Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV05013, Date: 2024-08-13 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV05013, Date: 2024-08-13 Tentative Ruling

Defendants Daniel Elfman (“Elfman”) and Musica de la Muerte, Inc. (“MDLM”) (collectively “Defendants”) move the Court for an order granting summary judgment or adjudication in their favor as to Plaintiff Jane Doe XX (“Plaintiff”)’s complaint on the ground that Plaintiff cannot satisfy the elements required to revive claims under Code of Civil Procedure section 340.16, subdivision (e), because the elements of (1) a sexual assault, (2) liability of an entity, and (3) a cover up of a prior incident of sexual assault have not been and cannot be established; Plaintiff’s claims are barred by the applicable statute of limitations; Plaintiff cannot satisfy the elements of each claim; and Plaintiff’s causes of action are barred as to MDLM on the grounds that Plaintiff has pled no identifiable facts, conduct, or relationship of MDLM that could give rise to any liability.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Plaintiff Jane Doe XX alleges that Defendant Daniel Elfman approached Plaintiff in April 1997 at the home of a mutual friend, and they immediately connected and had a common interest in music and film. (Compl. ¶ 11.) Plaintiff was 21 years old at the time, and Defendant was 47 years old. (Compl. ¶ 12.) Plaintiff alleges that Defendant then began grooming her with the intent to manipulate her emotions and take advantage of her so he could ultimately sexually abuse and exploit her. (Compl. ¶ 13.) Plaintiff alleges that Defendant exposed himself to Plaintiff on several occasions and engaged in lewd conduct and sexual abuse without Plaintiff’s consent when Plaintiff slept next to Defendant. (Compl. ¶¶ 18-38.) Plaintiff alleges that she suffered shock, humiliation, and shame, Plaintiff later learned that Defendant engaged in the same behavior with another individual. (Compl. ¶¶ 39-41.) Plaintiff alleges claims for sexual assault, gender violence, intentional infliction of emotional distress, sexual harassment, and negligence.

Defendants first contend that Plaintiff cannot satisfy the elements required to revive claims under Code of Civil Procedure section 340.16, subdivision (e), because the elements of (1) a sexual assault, (2) liability of an entity, and (3) a cover up of a prior incident of sexual assault have not been and cannot be established. Code of Civil Procedure section 340.16, subdivision (e), which allows a claim for damages as a result of sexual assault to be revived, provides, in pertinent part:

(C) The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.

Code of Civil Procedure section 340.16, subdivision (e)(4), defines a cover up as “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.”

Defendants argue that Plaintiff has not alleged and cannot establish a single element required under Code of Civil Procedure section 340.16, subdivision (e). As to whether Plaintiff can show she was sexually assaulted, Defendants point to Plaintiff’s allegation that she has no knowledge of Elfman physically touching her (Compl. ¶ 35), and she has stated in discovery that she is unable to admit or deny whether Elfman ever touched her without consent, whether Elfman ever used physical force against her, or whether Elfman ever physically restrained her. (Defs.’ UMF Nos. 9-11.) Defendants present evidence in the form of Elfman’s declaration in which he states he did not touch Plaintiff sexually without her consent, he did not sexually assault her in any manner, and he has never physically restrained her or used or threatened any physical force against her. (Defs.’ UMF Nos. 12-13.) Defendants argue that Elfman did not engage in any act with Plaintiff that qualifies as sexual assault within the meaning of Code of Civil Procedure section 340.16 and the relevant provisions of the Penal Code, and Plaintiff’s allegation that Elfman undressed in her presence and masturbated while she slept is not, as a matter of law, sexual assault, such that Plaintiff’s claims are fatally defective.

In opposition, Plaintiff argues that factual issues remain regarding the nature of Plaintiff’s sexual assault. Plaintiff contends she has alleged a claim under Penal Code section 243.4, subdivision (d), which concerns sexual battery and prohibits the touching of an intimate part of another person who is restrained or otherwise does not consent. Plaintiff also contends that she has no way of knowing whether Elfman made contact with her person until she takes his deposition, and further investigation is necessary. Plaintiff argues that Defendants must show that Plaintiff cannot reasonably obtain evidence to support her claim, and Defendants have not done this.

In this motion, Defendants have provided evidence, in the form of Elfman’s declaration, that Elfman did not sexually assault Plaintiff. This allows Defendants to show that no triable issue of fact exists as to Plaintiff’s claim under Code of Civil Procedure section 340.16 because Plaintiff must show that Elfman sexually assaulted her. This shifts the burden to Plaintiff to create a triable issue, i.e., to show that the trier of fact could conclude that Plaintiff was sexually assaulted, but Plaintiff has provided only speculative statements that it is possible she could have been sexually assaulted. In other words, Plaintiff has provided no evidence that she was sexually assaulted by Plaintiff within the purview of Code of Civil Procedure section 340.16 and the relevant provisions of the Penal Code. Plaintiff cannot defeat this motion with only her speculation that Elfman could have sexually assaulted her.

Insofar as Plaintiff contends that she cannot know if she was sexually assaulted until she takes Elfman’s deposition, it is not clear if Plaintiff is intending to formally request a continuance to obtain additional discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). Assuming this was such a request, the statute provides as follows:

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.

(Code Civ. Proc., § 437c, subd. (h).) The Court lacks a basis, especially without argument from Plaintiff, to conclude that taking Elfman’s deposition will allow Plaintiff to obtain the discovery necessary to create a triable issue here because the Court must presume that Elfman will testify at his deposition to the same facts set forth in his declaration, wherein he states that he did not touch Plaintiff sexually without her consent, he did not sexually assault her in any manner, and he has never physically restrained her or used or threatened any physical force against her. Put simply, Plaintiff has failed to create a triable issue of material fact as to whether her claim for sexual assault under Code of Civil Procedure section 340.16 can be revived under Code of Civil Procedure section 340.16. It follows that without evidence of sexual assault, Plaintiff also cannot establish a valid claim under Code of Civil Procedure section 340.16, subdivision (a).

The Court need not address the parties’ arguments as to the cover up by an entity because the failure to provide evidence of sexual assault makes it such that Plaintiff’s claim cannot move forward due to failure to create a triable issue as to an element of the claim. Further, there is no basis to conclude that additional discovery in the form of Elfman’s deposition would help Plaintiff to create a triable issue. Accordingly, Defendants’ motion for summary adjudication is GRANTED as to Plaintiff’s first cause of action for sexual assault.

Defendants argue that Plaintiff’s second, third, fourth, and fifth causes of action fail because Plaintiff has alleged that she became aware of the conduct alleged in her complaint in 2002, and she did not file this action until October 2023, more than 20 years later. (Compl. ¶ 31.) Plaintiff’s gender violence claim is subject to a three-year statute of limitations (Civ. Code, § 52.4, subd, (b)), Plaintiff’s intentional infliction of emotional distress claim is subject to a two-year statute of limitations (Code Civ. Proc., § 335.1)), Plaintiff’s fourth cause of action is subject to a three-year statute of limitations (Gov. Code, § 12960, subd. (e)(5)), and Plaintiff’s fifth cause of action for negligence is subject to a two-year statute of limitations (Code Civ. Proc., § 335.1)). Plaintiff’s claims, then, are all untimely, and she has not alleged any facts or provided any argument that would compel a different conclusion, such as alleging facts showing that her claims were tolled in any way. Thus, Defendants’ motion for summary adjudication is GRANTED as to Plaintiff’s second cause of action for gender violence, third cause of action for intentional infliction of emotional distress, fourth cause of action for sexual harassment, and fifth cause of action for negligence.

Given that Defendants’ motion for summary adjudication has been granted as to each of Plaintiff’s claims, Defendants Daniel Elfman and Musica de la Muerte, Inc.’s Motion for Summary Judgment, or in the Alternative for Summary Adjudication is GRANTED in its entirety. Defendants Daniel Elfman and Musica de la Muerte, Inc. shall prepare, serve, and submit a proposed judgment as per statute.