Judge: Michael Shultz, Case: 24STCV18814, Date: 2025-01-09 Tentative Ruling
Case Number: 24STCV18814 Hearing Date: January 9, 2025 Dept: 40
24STCV18814 Marina A. Velasco v. Ruben Vasquez, et al.
[TENTATIVE] ORDER SUSTAINING DEMURRER
AND GRANTING THE MOTION TO STRIKE BY DEFENDANT, RUBEN VASQUEZ
I. BACKGROUND
The
complaint alleges that Plaintiff appeared for a dental examination and related procedures
at Defendants’ offices on August 13, 2022, at which time Plaintiff alleges she
was sexually assaulted by Defendant, Ruben Vasquez (“Vasquez” or “Defendant”),
who was employed by Defendants, United Dental and Marlon Zamboni. Plaintiff
alleges 12 causes of action arising from this incident.
II. ARGUMENTS
Defendant Vasquez challenges the fourth cause
of action for violation of the Ralph Civil Rights Act (“Ralph Act”) and the
fifth cause of action for violation of the Tom Bane Civil Rights Act (“Bane
Act”). Defendant asserts that the alleged battery does not violate the Ralph Act
without a discriminatory motive, which Plaintiff has not alleged. A claim under the Bane Act requires that
Defendant coerced, intimidated, or threatened, Plaintiff to prevent Plaintiff from
exercising a constitutionally protected right. The alleged battery does not
fall within the scope of each statute.
Defendant
attempted to meet and confer with Plaintiff about the demurrer and motion to
strike, but Plaintiff did not respond. Plaintiff filed notices of
non-opposition to both motions.
III. LEGAL
STANDARDS
The
bases for demurrer are limited by statute and may be sustained for reasons
including failure to state facts to state a cause of action and uncertainty. (Code
Civ. Proc., § 430.10.) A demurrer “tests the sufficiency of a
complaint as a matter of law and raises only questions of law.” (Schmidt
v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) The
court must assume the truth of (1) the properly pleaded factual allegations;
(2) facts that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may
not consider contentions, deductions, or conclusions of fact or law. (Moore
v. Conliffe (1994) 7 Cal.4th 634, 638.)
A
motion to strike is limited to matters that appear on the face of the pleading
or on any matter of which the court can take judicial notice. (Code
Civ. Proc., § 437.) The court may strike out any irrelevant, false, or improper matter inserted in any
pleading; or strike all or any part of the pleading not drawn or filed in
conformity with the laws of California, a court rule, or an order of the court.
(Code Civ. Proc. §436 subd. (a)-(b).)
IV. DISCUSSION
A. Ralph
Act
The
Ralph Act is codified at Civil Code § 51.7. To prevail on the claim, Plaintiff
must show that Defendant threatened or committed a violent act against Plaintiff
and was motivated by a perception of Plaintiff’s protected status: “sex, race,
color, religion, ancestry, national origin, disability, medical
condition, marital status or sexual orientation. (Austin
B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860,
880).
The violence or intimidation must have been committed because of one or more of
the Plaintiff’s protected characteristics. (Civ.
Code, § 51.7.)
The
complaint asserts this conclusory allegation, but it is not supported by the
facts described in the complaint. (Complaint, ¶ 53-54.) Plaintiff alleges that
Defendant represented himself as a licensed physician, which he was not,
administered anesthesia into Plaintiff’s mouth, and “proceeded to sexually
assault Plaintiff” and later apologized in a text message. (Complaint, ¶ 21, 23.)
Plaintiff paid for the procedure and immediately left. (Complaint, ¶ 22.)
B. Bane
Act
The
Bane Act is codified at Civil Code, § 52.1 and imposes liability "where
another person ‘interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or enjoyment
by any individual or individuals of rights secured by the Constitution or laws
of the United States, or of the rights secured by the Constitution or laws of
this state.” (King
v. State of California (2015) 242 Cal.App.4th 265, 294; Civ.
Code, § 52.1.)
Plaintiff
makes conclusory allegations that Vasquez interfered with or attempted to
interfere with Plaintiff’s “peaceable exercise and enjoyment of said rights by
threats, intimidation, or coercion.” (Complaint, ¶ 62.) The “rights” are
alleged to be the right to be free from violence, threats of violence, or intimidation,
or coercion.” (Complaint, ¶ 60.) The allegations do not refer to a right
specifically protected by the Constitution.
C. Motion
to strike
Defendant moves to strike the request for attorney’s fees under
Civil Code § 1708.5 which does not expressly permit recovery of such fees. The
request for attorney’s fees under § 52.1 is not recoverable, because the Bane
Act violation does not survive demurrer.
Defendant’s arguments are well taken, and Plaintiff filed a
notice of non-opposition.
V. CONCLUSION
Based
on the foregoing, demurrer to the fourth and fifth causes of action are
SUSTAINED without leave to amend. The court GRANTS Defendant’s motion to strike
paragraph 50 at page 9 of the complaint and paragraph 10 at page 17 of the
complaint.