Judge: Michael P. Linfield, Case: 22STCV11510, Date: 2022-10-26 Tentative Ruling
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Case Number: 22STCV11510 Hearing Date: October 26, 2022 Dept: 34
SUBJECT: Demurrer
and Motion to Strike
Moving Party: Defendant
Levon Blake Gordon
Resp. Party: Plaintiff Tiana Vernon
Defendant
Levon Blake Gordon’s Demurrer is OVERRULED. Defendant Levon Blake Gordon’s
Motion to Strike is DENIED.
BACKGROUND:
(1) Sexual Assault and
Battery (against Defendant Gordon);
(2) Sexual Harassment in
Violation of the Fair Employment and Housing Act (“FEHA”) (against both
Defendants);
(3) Failure to Prevent
Harassment, Discrimination and Retaliation (against Defendant 7-Eleven);
(4) Negligent Retention
and Supervision (against Defendant 7-Eleven); and
(5) Intentional
Infliction of Emotional Distress (against both Defendants).
On August 17, 2022,
Defendant Levon Blake Gordon, in propria persona, filed his Demurrer and
his Motion to Strike.
On September 28,
2022, Plaintiff filed her Opposition to the Demurrer and her Opposition to the
Motion to Strike.
Defendant Gordon has
not filed a reply or other response to the either of the Oppositions.
ANALYSIS:
I.
Demurrer
A.
Legal
Standard for a Demurrer
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. It raises issues of law, not fact, regarding the form or content of
the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on the
face of the pleading under attack; or from matters outside the pleading that
are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No
other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A
demurrer is brought under Code of Civil Procedure section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 430.50(a) (can be taken to the entire complaint or any
cause of action within).
A demurrer may be brought under Code of Civil Procedure section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10,
subdivision (f)), is disfavored and will only be sustained where the pleading
is so bad that defendant cannot reasonably respond—i.e., cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Id.)
B. Discussion
Defendant Gordon demurs to the
first, second, and fifth causes of action.
1. Sexual
Battery
a. Legal
Standard
Civil Code section 1708.5, subdivision (a), states that “[a] person
commits a sexual battery who does any of the following: [¶] (1) Acts with the
intent to cause a harmful or offensive contact with an intimate part of
another, and a sexually offensive contact with that person directly or
indirectly results. [¶] (2) Acts with the intent to cause a harmful or
offensive contact with another by use of his or her intimate part, and a
sexually offensive contact with that person directly or indirectly results. [¶]
(3) Acts to cause an imminent apprehension of the conduct described in
paragraph (1) or (2), and a sexually offensive contact with that person
directly or indirectly results.” Subdivision (b) of Civil Code section 1708.5
makes “[a] person who commits a sexual battery upon another [] liable to that
person for damages, including, but not limited to, general damages, special
damages, and punitive damages.”
b. Analysis
Defendant Gordon argues that
Plaintiff’s first cause of action for sexual battery fails because “Plaintiff
has not stated facts that constitute a viable cause of action for sexual
harassment [sic], and the facts necessary to show lack of consent are stated
ambiguously or unintelligibly and for which no supporting evidence is offered.”
(Demurrer, p. 4: 26–29.)
Plaintiff argues that she has
pleaded facts that constitute a viable claim for sexual battery. Plaintiff
points the Court to her allegations that Defendant engaged in multiple
instances of “unwanted touching” and that the rape on April 18, 2020 was
“unwelcome, unconsented to and highly traumatic for Plaintiff.” (Opposition to
Demurrer, p. 4:18, p. 4:21– 22; Complaint ¶¶ 21, 22.)
The Complaint states: (1) that
Defendant Gordon “repeatedly sexually harassed and sexually assaulted
Plaintiff”; (2) that Defendant Gordon “engaged in unconsented to touching in
the form of grabbing Plaintiff’s buttocks and rubbing her shoulders during the
time they worked together, among other episodes of unwanted touching”; (3) that
“[o]n or about April 18, 2020, [Defendant Gordon] grabbed Plaintiff, physically
held her against her will in the back office of the 7-Eleven location they both
worked, groped her buttocks, touched her breasts and vagina, and raped
Plaintiff by forcefully pulling down her pants and inserting his penis into her
vagina while she struggled to get away from him. This constituted a rape and
was unwelcomed, unconsented to, and highly traumatic for Plaintiff”; (4) that
“[a]t no time during her interactions with [Defendant Gordon] did Plaintiff
consent to be physical [sic] touched by him and, in fact, Plaintiff voiced her
objection to the physical touching”; (5) that “at all times, Plaintiff considered
and made clear to [Defendant Gordon] that any sexual advance, comment or
conduct from Defendant Gordon was unwelcome and unwanted.” (Complaint, ¶¶ 21–23,
capitalizations omitted.)
On a demurrer, the Court must assume
that the allegations of the complaint are true.
The Court finds that Plaintiff has pleaded sufficient facts for a viable
claim of sexual battery. Specifically, the alleged acts of unwanted sexual
touching on multiple instances, including the alleged rape on April 18, 2020, easily
meet the statutory definitions of Civil Code section 1708.5, subdivision (a). The
facts alleged are sufficient to find that Defendant Gordon acted with the
intent to cause a harmful or offensive contract with an intimate part of
Plaintiff and that a sexually offensive contact directly resulted.
The Court OVERRULES the Demurrer as
to the First Cause of Action.
2. Sexual
Harassment
a. Legal
Standard
“The elements [of a sexual harassment cause of action] are: (1)
plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome
sexual harassment; (3) the harassment complained of was based on sex; (4) the
harassment complained of was sufficiently pervasive so as to alter the
conditions of employment and create an abusive working environment; and (5)
respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608.)
“An employee of an entity subject to [FEHA,
Government Code section 12940, subdivision (j)] is personally liable for any
harassment prohibited by this section that is perpetrated by the employee,
regardless of whether the employer or covered entity knows or should have known
of the conduct and fails to take immediate and appropriate corrective action.”
(Gov. Code, § 12940, subd. (j)(3).)
b. Analysis
Defendant Gordon argues that
Plaintiff’s second cause for action fails because: (1) Defendant Gordon was
Plaintiff’s co-worker, not Plaintiff’s supervisor; (2) Defendant Gordon is not
an entity covered by the FEHA statute; (3) the requisite conduct and facts are
not alleged as to Defendant Gordon; and (4) the entire cause of action is
“grossly lacking” in the particularity required for these statutory actions.
(Demurrer, pp. 5:5–6, 5:12–15, 5:25–26.)
Plaintiff argues that the Demurrer
should be overruled because: (1) there is no element that Defendant Gordon must
be a supervisor for him to be liable for sexual harassment under FEHA (citing
Gov. Code § 12940, subd. (j)(3), and Also Page v. Super Cit. (1995) 31
Cal.App.4th 1206, 1210); and (2) that Plaintiff has pleaded sufficient facts
for this cause of action. (Opposition to Demurrer, pp. 5–6.)
The Court repeats the allegations in
the Complaint listed above regarding the first cause of action. (Complaint, ¶¶
21–23.) In addition, the Complaint alleges: (1) that Plaintiff “was an employee
of Defendant 7-Eleven; (2) that “[d]uring her employment, both Plaintiff and
Defendant Gordon worked the same shift at the 7-Eleven location at 1360 South
Figueroa Ave, Los Angeles, CA”; (3) that “[a]t all times relevant, Defendant
Gordon was [sic] 7-Eleven supervisor. [Defendant Gordon] exercise supervisory
authority over Plaintiff and her day-to-day job duties within the course and
scope of their employment with 7-Eleven”; (4) that “[d]uring Plaintiff’s
employment, while both Plaintiff and Defendant Gordon were on the clock and
working their regular shift, Defendant Gordon, repeatedly sexually harassed and
sexually assaulted Plaintiff”; and (5) that Defendant 7-Eleven “is strictly
liable for the sexual harassment, sexual assault and rape of Plaintiff, as
[Defendant Gordon] was a supervisor for 7-Eleven at the time Gordon sexual
harassed sexually assaulted and raped Plaintiff.” (Complaint, ¶¶ 18–21, 26,
capitalizations omitted.)
The Court finds that Plaintiff has
pleaded sufficient facts for a viable claim of sexual harassment. Plaintiff’s
allegations are sufficient to find that the harassment complained of was
sufficiently pervasive so as to alter the condition of employment and create an
abusive working environment. (Fisher, supra, at 608.) The Court
agrees with Plaintiff’s argument that the statute does not require Defendant
Gordon to have been her supervisor for respondeat superior liability to attach.
The Court OVERRULES the Demurrer as
to the Second Cause of Action.
3. Intentional
Infliction of Emotional Distress
a. Legal
Standard
“The elements of a prima facie case for the tort of intentional
infliction of emotional distress are: (1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated
in a civilized community.” (Wilson v.
Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
b. Analysis
Defendant Gordon argues that the
fifth cause of action fails because: (1) the facts regarding the prior causes
of action have not been sufficiently pleaded; and (2) Plaintiff has not cited
with particularity that Defendant’s alleged conduct was outrageous or that it
resulted in severe or extreme emotional distress. (Demurrer, p. 7:10–15, p.
7:19–23.)
Plaintiff argues: (1) that the other
causes of action have been more than adequately pleaded; (2) that the
allegations of Plaintiff’s actions, including rape, are sufficiently extreme
and outrageous; and (3) that the Complaint does allege that the extreme and
outrageous conduct caused Plaintiff “extreme emotional distress and cause her
extreme hardship.” (Opposition to Demurrer, pp. 7: 15–16, 8:11–20; Complaint,
¶¶ 28, 65.)
The Court repeats the allegations in
the Complaint listed above regarding the first cause of action. (Complaint, ¶¶
18–23, 26.) The Complaint also alleges that “[a]s a result of Defendant
Gordon’s extreme and outrageous conduct and Defendant 7-Eleven’s ratification
of [Defendant Gordon’s] conduct, its failure to make the work environment safe
for Plaintiff and its failure to take steps to prevent the sexual harassment,
sexual assault and rape from occurring, Plaintiff has suffered significant
economic and non-economic damages. Plaintiff has suffered, and continues to
suffer, severe emotional distress and significant economic damage, among other
categories of damages.” (Complaint, ¶ 28.)
The Court finds that Plaintiff has
pleaded sufficient facts for a viable claim of intentional infliction of
emotional distress. Specifically, the allegations if taken as true support
these findings: (1) that the allegations of sexual assault and rape are
sufficiently extreme and outrageous conduct with the intention or reckless
disregard of the probability of causing emotion emotional distress; (2) that
Plaintiff has suffered severe or extreme emotional distress; and (3) that
Defendant Gordon’s outrageous conduct is the actual and proximate cause of the
emotional distress. (Wilson, supra, at 1009.)
The Court OVERRULES the Demurrer as
to the Fifth Cause of Action.
II.
Motion to Strike
A. Legal
Standard for a Motion to Strike
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)¿
The
grounds for a motion to strike shall appear on the face of the challenged pleading
or form any matter of which the court is required to take judicial notice.
(Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant,
false, or improper matter inserted in any pleading and strike out all or any
part of any pleading not drawn or filed in conformity with the laws of this
state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When
the defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend. (Perlman v. Municipal Court (1979) 99
Cal.App.3d 568, 575.)¿
B. Discussion
Defendant Gordon argues that
Plaintiff’s Complaint fails to allege sufficient facts to support a claim for
punitive damages against Defendants. (Motion to Strike, p. 3:16–17.)
Plaintiff argues that she has
sufficiently alleged facts supporting punitive damages based on Defendants’
malice or oppression. (Opposition to Motion to Strike, p. 3:21; Complaint, ¶¶
21, 22, 30, 31, 33.)
The Court repeats the allegations in
the Complaint listed above regarding the first cause of action. (Complaint, ¶¶
18–23, 26, 28.)
The Court has found the prior causes
of action to be pleaded sufficiently.
Plaintiff’s allegations of battery
and rape – if found by a jury to be true – are easily sufficient for a finding
that Defendant(s) acted with malice or oppression against Plaintiff. Such a
finding by the trier of fact would be sufficient to support punitive damages.
The Court DENIES Defendant Gordon’s
Motion to Strike.
III.
Conclusion
Defendant
Levon Blake Gordon’s Demurrer is OVERRULED. Defendant Levon Blake Gordon’s
Motion to Strike is DENIED.