Judge: Maurice A. Leiter, Case: 22STCV36305, Date: 2024-02-27 Tentative Ruling

Case Number: 22STCV36305    Hearing Date: February 27, 2024    Dept: 54

Hearing Date: February 27, 2024

Department 54, Judge Maurice A. Leiter

Demurrer to Third Amended Complaint

Moving Party: Defendants Disney Networks Group, LLC, TFCF Payroll Services, Inc., and The Walt Disney Company

Responding Party: Plaintiff Jacobo Davalos

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE THIRD AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

DEFENDANTS 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 October 11, 2023, Plaintiff filed the operative third amended complaint against Defendants, asserting causes of action for (1) sexual battery; (2) battery; (3) hostile work environment sexual harassment; (4) quid pro quo sexual harassment; (5) wrongful termination; (6) constructive termination; (7) negligent hiring, supervision and retention; (8) failure to prevent discrimination and harassment; (9) IIED; (10) gender discrimination; and (11) retaliation.

Plaintiff was employed by Defendants The Walt Disney Company; Disney Networks Group, LLC fka Fox Networks Group, Inc., and TFCF Payroll Services, Inc. fka Fox Payroll Services Inc. from January 2017 to December 2019. During Plaintiff’s employment with Defendants, Plaintiff alleges that Defendant Cesar Fabricio Sedano, who was employed as a Vice President of Finance for Defendants, sexually harassed and battered Plaintiff on numerous occasions.

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. Failure to Exhaust Administrative Remedies

The Disney Defendants demur to the third and fourth causes of action for sexual harassment, the eighth cause of action for failure to prevent harassment, discrimination, and retaliation, the tenth cause of action for gender discrimination, and the eleventh cause of action for retaliation on the ground that Plaintiff failed to exhaust administrative remedies.

FEHA requires that a plaintiff file an administrative charge with the Civil Rights Department (CRD, formerly known as the DFEH) within three years of the alleged unlawful conduct, before filing suit. (Gov. Code § 12960(e).) Plaintiff was employed by Fox from 2018 to 2022. Disney and parts of Fox merged in March 2019; Disney allegedly assumed Fox’s liabilities from 2018 to March 2019. Plaintiff alleges Disney is liable for Sedano’s acts that occurred during this time. Plaintiff also alleges that Sedano was employed by Disney in 2019. Plaintiff’s employment was constructively terminated by Fox in October 2022. Plaintiff filed an administrative charge on January 6, 2023. The Disney Defendants maintain Plaintiff had three years from March 2019 to file an administrative charge against Disney.

In opposition, Plaintiff asserts the FEHA claims are timely under the continuing violations doctrine. California courts have held an employer may be liable under FEHA for unlawful conduct occurring outside the statute of limitations if it is sufficiently connected to the unlawful conduct within the limitations period. (See e.g. Blue Fountain Pools and Spas Inc. v. Sup. Ct. San Bernardino (2020) 53 Cal. App. 5th 239.)

As alleged, Fox would be liable for the acts that occurred outside of the limitations period under the continuing violations doctrine. The issue here is whether Plaintiff was required to file a separate administrative charge against Disney within three years of March 2019. Defendants assert Plaintiff cannot apply the continuing violations doctrine to Disney because Disney committed no wrongful acts during the limitations period. Plaintiff asserts that because Disney purchased Fox’s liabilities, it stepped into Fox’s shoes.

The Court finds that Plaintiff has sufficiently alleged Disney is liable under the continuing violations doctrine. Plaintiff was not required to file an administrative charge against Fox until his termination. Plaintiff alleges Disney stepped into Fox’s position with respect to liabilities from 2018 to March 2019.

Defendants’ demurrer to the third, fourth, eighth, tenth, and eleventh causes of action is OVERRULED.

B. Negligence

Defendants demur to the negligence cause of action on the ground that it is barred by the statute of limitations. Defendants assert the statute began to run in June 2019 when Sedano was no longer employed with Disney, requiring Plaintiff to file suit by June 2021 under the two-year statute for negligence claims. (CCP § 335.1.)

Plaintiff asserts the negligence claim is subject to the Revival Statute, CCP § 340.16. Defendants argue that this statute does not apply because Plaintiff has not alleged Defendants knew of Sedano’s conduct. Plaintiff alleges Sedano was subject to official complaints of sexual harassment in 2016 and 2017 of which Defendants were aware. This is sufficient to allege Defendants had notice of Sedano’s conduct.

The demurrer to the seventh cause of action is OVERRULED.