Judge: Maurice A. Leiter, Case: 22STCV29986, Date: 2024-04-26 Tentative Ruling

Case Number: 22STCV29986    Hearing Date: April 26, 2024    Dept: 54

Hearing Date: April 26, 2024

Department 54, Judge Maurice Leiter

Demurrer to Second Amended Complaint

Moving Party: Defendant County of Los Angeles

Responding Party: Plaintiff Alison Oley

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On January 19, 2024, Plaintiff Alison Oley filed the operative second amended complaint against Defendants County of Los Angeles and Mario Rangel, asserting causes of action for (1) violation of the Unruh Act; (2) sexual harassment; (3) failure to prevent harassment; (4) violation of Bane Act; (5) IIED; and (6) distribution of private explicit materials. Plaintiff alleges Defendant Rangel, a drill instructor at the LA Sherriff’s Department academy, sexually harassed her beginning when she was a trainee.

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice is GRANTED as to the existence of the documents, but not as to the truth of the matters asserted in them.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Fourth Cause of Action for Violation of the Bane Act

Defendant demurs to the fourth cause of action on the ground that Plaintiff failed to file a government tort claim addressing these allegations. Defendant presents the County’s rejection of Plaintiff’s April 7, 2022 tort claim for conduct that occurred prior to October 6, 2021 as untimely. Defendant also presents the Superior Court’s denial of Plaintiff’s application for leave to file a late claim. Defendant asserts that the Bane Act allegations occurred before October 6, 2021. In opposition, Plaintiff lists Rangel’s conduct that occurred after October 6, 2021, including physically choking Plaintiff to the point of unconsciousness in January 2022. The demurrer cannot be sustained on this basis.

Defendant also asserts that the fourth cause of action fails because Rangel’s conduct was outside the scope of his employment. Plaintiff argues that this is a question of fact not suitable for determination on demurrer. The Court agrees.

The demurrer to the fourth cause of action is OVERRULED.

B. Sixth Cause of Action for Violation of Civil Code § 1708.85

Defendant demurs to the sixth cause of action for distribution of private explicit materials in violation of Civil Code § 1708.85 on the grounds that Rangel’s conduct fell outside the scope of employment and that Civil Code § 1708.85 allows for liability only against persons, not entities. As discussed, whether Rangel’s conduct was within the scope of employment is a question of fact. Plaintiff alleges Rangel violated this section by uploading private text messages to the County’s computer system while working. This is sufficient to allege that Rangel’s conduct occurred within the scope of employment. Defendant does not provide authority stating an entity cannot be held liable for an individual’s acts violating Civil Code § 1708.85 under respondeat superior.

The demurrer to the sixth cause of action is OVERRULED.