Judge: Mark H. Epstein, Case: 23SMCV04828, Date: 2024-02-22 Tentative Ruling

Case Number: 23SMCV04828    Hearing Date: February 22, 2024    Dept: I

The demurrer is OVERRULED.  The motion to strike is DENIED.  Defendant has 30 days to answer.

Plaintiff filed a sexual assault claim against various defendants.  One is the alleged assaulter, Trimm, but the other—and the demurring party here—is the alleged assaulter’s employer.  Plaintiff contends that she was at the Bacari PDR bar in Playa Del Rey, which defendants Bacari Founder Holdings, Inc. and Bacari PDR, LLC own and operate.  (They are collectively referred to as the Bacari Defendants.)  Plaintiff claims that Trimm was a waiter on the night in question.  Plaintiff alleges that Trimm served her four glasses of wine, which was an issue because she was 18 years old (too young to drink) and weighed only 120 pounds.  Plaintiff alleges that Trimm knew plaintiff (and her friends) were underage but served them alcohol anyway.  Plaintiff further alleges that she became visibly inebriated as the evening wore on but Trimm continued to serve her alcohol.  She claims she asked Trimm for directions to the restroom and he led her down a set of stairs to a small employee bathroom unit, closed the door, and raped her.

As to the liability of the Bacari Defendants, plaintiff alleges that they had a custom and practice of serving alcohol to underage patrons—and indeed, the location was known for that.  (The Bacari defendants deny that this allegation is true, but for demurrer purposes the court must accept it as true.)  Accordingly, she asserts, Trimm was acting within the course and scope of his employment when he served plaintiff alcohol even when she was visibly inebriated and when he led her in her vulnerable state to the secluded restroom.  She alleges that as a result of the Bacari Defendants’ policy just stated, Trimm was in a position to rape her and her and caused her to be unable to defend herself.  Thus, she claims, the Bacari Defendants are liable for Trimm’s actions.

The main thrust of the Bacari Defendants’ demurrer is the Lisa M. doctrine.  (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.)  That case arose in the context of a hospital technician who was performing a procedure on the plaintiff and engaged in a sexual assault.  The employer was found not to be legally liable because, our Supreme Court held, he was not acting within the course and scope of his employment (which was to perform a legitimate medical procedure), but instead was acting for his own personal sexual gratification.  The Lisa M. case extended an earlier case in which a school employee sexually assaulted the plaintiff.  (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.)  Lisa M. has been followed and applied since it was decided and is plainly good law.  However, there is an exception to that doctrine.  Where the employer puts the offending employee in a position of authority and it is the abuse of that authority that leads to the sexual assault, a cause of action can be stated.  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.)

The court must admit that it is no fan of the Lisa M. doctrine.  Were the court writing on a clean slate, the court might well come out the other way.  Where the employer puts the employee in a position to commit the tort, perhaps it is proper to hold the employer liable under a vicarious liability theory.  But such is not the law and this court is legally required to follow the law as stated by the Court of Appeal and the Supreme Court.  It does so here and will give Lisa M. and similar cases full sway.

This court cannot honestly say that this case falls within the Mary M. doctrine.  Trimm was not in a position of authority, as was the police officer who assaulted the victim in Mary M.  He was a waiter.  He could not order plaintiff to do anything under color of law and certainly there is no allegation that he forced plaintiff to drink the alcohol.  But having said that, this case is also different from Lisa M. and John R.  In those cases, the employee was acting outside the scope of his employment from start to finish at least as it related to the tort.  Here, Trimm was (at least allegedly) following the Bacari Defendants’ policies when he continually served alcohol to underage patrons like plaintiff, even after they were noticeably drunk and visibly impaired (and vulnerable).  In other words, at least as alleged, “the incident leading to injury . . . [was] an ‘outgrowth’ of the employment (Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652); [or] the risk of tortious injury [was] ‘ “inherent in the working environment” ‘ (id at p. 656) or ‘ “typical of or broadly incidental to the enterprise [the employer] has undertaken” ‘ (Hinman v. Westinghouse elec. Co. (1970 2 Cal.3d 956, 960.)”  (Lisa M., supra, 12 Cal.4th at p. 298, parallel citations omitted, all but last bracket added.)

Here, plaintiff alleges that defendants created a business model that relied heavily on the purposeful intoxication of underage youth.  In particular, plaintiff alleges that “Bacari PDR is locally known as a venue at which underage patrons can easily access alcohol for purposes of inebriation, and a venue that is willing to knowingly and illegally provide to known underage patrons copious amounts of alcohol.  In fact, Bacari PDR knowingly served Plaintiff and the rest of her underage party, on the evening of December 28, 2021, pitchers of wine – a drink not usually consumed by the pitcher unless the purpose of consumption is to achieve a state of inebriation.”  (FAC, ¶38(a), emphasis in original.)  Further, the complaint alleges, the single, unmarked employee bathroom is a hideout for untoward conduct.  (Id. at ¶38(e).)  This environment at Bacari PDR also resulted in the inebriation (and thus reduced inhibitions) of the workers like Trimm.  (Id. at ¶38(c) [“This willingness to provide of alcohol to underage patrons, and failure by Bacari PDR to ensure that its staff avoids serving alcohol to underage patrons, promotes an ‘anything goes’ attitude within the social environment at Bacari PDR (especially at the later hours of evenings, after patrons and staff have consumed copious amount of alcohol)”], emphasis added.)

In Lisa M., the test to determine liability was whether the employer’s misconduct was sufficiently close or a generally foreseeable consequence of the enterprise.  Here, it is a sort of mixed situation.  Serving alcohol to under-age women even after they are obviously inebriated was consistent (allegedly) with the employer’s directive and not something Trimm did solely for his own gratification.  On the other hand, the alleged rape itself would not be the function of the employer’s directive (even plaintiff does not go that far); rather the facts and logic would suggest that Trimm’s motive in the alleged rape was personal.  But, and this is critical, as the Lisa M. court noted the logic underpinning the line between potential liability and having no liability is not just that the employee’s motives were personal, but that they were not “generated by or an outgrowth of workplace responsibilities, conditions or events” and thus the tort was not foreseeable.  (Lisa M., supra, 12 Cal.4th at pp. 301-302.)  And that is a distinction with a difference.  The allegations here, which the court must accept as true at the pleading stage, are that the Bacari Defendants purposefully created an environment of intoxication of underage youth—precisely the most vulnerable of drinkers.  And that is exactly the kind of environment that does lead to a condition or event in which the victim can be easily taken advantage of by the unscrupulous employee, as is the alleged case here.  Indeed, this is precisely the foreseeable outcome of serving excessive amounts of alcohol to underage people and also allowing staff to partake.  The fact that Trimm then allegedly raped plaintiff is hardly (at least in the court’s mind) the kind of unforeseeable event that would be the case where a janitor takes advantage of a child in school or a technician takes advantage of a patient during a procedure.  In both of those cases, nothing the employer did increased or enhanced the risk to the victim other than putting the victim and the perpetrator in proximity to one another.  But here, the employer’s alleged policy greatly increased the chance that the victim would find herself alone with the perpetrator—who is the very person who served the alcohol and saw the plaintiff was drunk—who could then take advantage of the situation to commit the tort.  In light of the foregoing analysis, the demurrer to the first cause of action for sexual battery is OVERRULED notwithstanding Lisa M.  (The Bacari Defendants in reply suggest that plaintiff did not oppose the demurrer to the first, third, and fifth causes of action and that failure constitutes a concession that the demurrer should be sustained.  First, the court reads the opposition as opposing the demurrer in all of its aspects.  Second, the failure to oppose a motion is not a concession that the motion ought to be granted.  The Barcari Defendants cite to no case that so holds, and the only authority of which the court is aware is a Rule of Court that applies only in the Courts of Appeal or the Supreme Court, not the trial courts.)

The second cause of action is for negligent retention or hiring or supervision.  While there is no allegation that Trimm had committed these acts before (meaning the rape, not the alcohol service), that does not doom the tort at this stage.  At the pleading stage, plaintiff is not required to plead things that are or would be uniquely within the defense’s knowledge.  There is no way for plaintiff to know Trimm’s personnel file or what, if any, complaints had been made against Trimm.  Indeed, the complaints received by the employer need not only have been against Trimm.  If this sort of thing had occurred in the past, that alone would suggest to the Bacari Defendants that significantly heightened supervision was required even for employees against whom no allegations had been made.  The complaint is sufficient to withstand demurrer, and the demurrer is OVERRULED.

The third cause of action is for intentional infliction of emotional distress.  For the reasons set forth above, the court does not agree that Lisa M. provides a complete shield for the defense.  Further, even if one separates the rape from the events leading up to it, the court is not prepared to say, as a matter of law, that a policy of serving excessive amounts of alcohol to underage people is not sufficiently outrageous to support the tort.  The demurrer is OVERRULED.

The fourth cause of action is a violation of the Unruh Act.  The Bacari Defendants’ theory is that Civil Code section 51 does not cover discrimination based on sex or sexual harassment because that particular form of harassment or misconduct is governed by section 51.9.  In support, the Bacari Defendants cite to Brown v. Smith (1997) 55 Cal.App.4th 767.  That case involved a tenant suing her landlord and the court did seem to so hold.  But Brown has been criticized on this point.  In Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, the Court of Appeal found Brown to be unpersuasive in that regard.  That court noted that section 51.9 was enacted much later than the original Unruh Act, but even so section 51.9 was not meant to suggest that the Unruh Act did not cover sexual harassment or sex discrimination.  The Smith Court noted that in Brown, the issue involved a landlord-tenant relationship rather than a customer-business relationship.  Thus, the Smith Court concluded, the “hole” that 51.9 plugged was not necessarily to the type of discrimination but to the plaintiff/defendant relationship.  But the court went further than that.  The Smith Court found the Brown analysis that sexual harassment was not covered by section 51 because harassment was not discrimination to be a flawed analysis.  To the contrary, the court concluded that section 51 was expansive enough to cover both claims and that sexual harassment was a form of sex discrimination.  The court finds the Smith reasoning persuasive and elects to follow it.  The fifth cause of action—for violation of section 51.9—survives as well.  The Bacari Defendants’ attack on that cause of action is based on Lisa M.  Accordingly, the demurrers as to the fourth and fifth causes of action are OVERRULED.

The motion to strike suggests that punitive damages cannot be assessed against the Bacari Defendants.  The Bacari Defendants are correct that punitive damages do not follow the normal respondeat superior rules.  Rather, for a corporate entity to be found liable for punitive damages, there must be a finding that the act in question was committed by an officer, director, or managing agent, or that the corporation authorized or ratified the misconduct, or that the employee was employed even though the employer had advance knowledge of the employee’s unfitness and had a conscious disregard for the rights or safety of others.  Plaintiff contends that the Bacari Defendants’ failure to investigate Timm’s actions or take any adverse action constitutes ratification.  That might be enough; at least the failure to investigate.  The court would agree that if the employer did a good faith investigation and simply disagreed with the plaintiff based on reasonable inferences from that investigation, that alone would be neither authorization nor ratification.  But that is different than allegedly failing to investigate at all following a complaint that an employee—while on duty—raped a patron.  In addition, at least the policy of serving excessive amounts of alcohol to under age drinkers even after they are noticeably intoxicated would be sufficient.  Accordingly, the motion to strike is DENIED.

The court makes two final observations.  First, while at this stage mere allegations will suffice, that will not be sufficient later.  Plaintiff will need to do more than prove that she was served alcohol to the point of inebriation and then raped by Trimm to establish liability by the Bacari Defendants.  Plaintiff will need to prove up the allegedly underlying policy.  The Bacari Defendants contend that their establishment is no more than a restaurant; they claim that it is not a den of iniquity for underage drinking and all that flows from it and the burden of proof will be on plaintiff to prove—not just assert—the contrary.  Second, the court acknowledges that its ruling and interpretation of Lisa M. may chart a new course.  The court does not believe that the court’s ruling contravenes any established appellate and Supreme Court authority, but the court cannot honestly say that established authority compels the court’s conclusion either.  There are worse candidates for writ review.  That said, the court believes that its ruling comports with law and also with the underpinnings of cases like Lisa M., and that if plaintiff can prove her allegations, there is potential liability for the Bacari Defendants.