Judge: Michael Shultz, Case: 24STCV21577, Date: 2024-12-05 Tentative Ruling
Case Number: 24STCV21577 Hearing Date: December 5, 2024 Dept: 40
24STCV21577 Quinton A. Sales v. Equinox Holdings, Inc., et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Plaintiff entered into a membership agreement with Defendant,
Equinox Holdings, Inc. Defendant, Victoria Engel, the general manager of the
West Hollywood Equinox, allegedly engaged with Plaintiff inappropriately.
Plaintiff alleges claims for sexual harassment, retaliation and related claims
under California Government Code § 12940 (FEHA claims), breach of contract, and
a tort claim for negligent hiring, supervision, training, and retention.
Defendants
demur to the first, third, and fourth, causes of action. Plaintiff’s opposition
was due on Wednesday, November 20, 2024 (nine court days before the hearing). (Code Civ. Proc., § 1005(b). Plaintiff did not
file an opposition but instead filed a first amended complaint on November 21,
2024.
Plaintiff
may amend a complaint once after a demurrer is filed but before the date of
hearing if the amended complaint is filed and served no later than the date for
filing an opposition. (Code
Civ. Proc., § 472.) As the amended complaint was untimely filed without
leave, the court strikes the amended complaint as it is improper, and will
consider the demurrer to the complaint. (Code Civ. Proc., § 436.)
II.
LEGAL STANDARDS
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.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (Blank
v. Kirwan (1985) 39 Cal.3d
311, 318.)
Sufficient facts are the essential facts
of the case "with reasonable precision and with particularity that is
sufficiently specific to acquaint the defendant with the nature, source, and
extent of his cause of action.” (Gressley
v. Williams (1961) 193
Cal.App.2d 636, 643-644.) Whether the
Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens
v. Superior Court (1986) 180
Cal.App.3d 605, 609–610.)
A demurrer may also be sustained if a
complaint is “uncertain.” Uncertainty exists where a complaint’s factual
allegations are so confusing, they do not sufficiently apprise a defendant of
the issues it is being asked to meet. (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).)
A pleading is required to assert general
allegations of ultimate fact. Evidentiary facts are not required. (Quelimane Co. v. Stewart Title Guaranty
Co. (1998) 19 Cal. 4th 26, 47; Lim
v. The.TV Corp. Internat.
(2002) 99 Cal. App. 4th 684, 690.) However, unlike federal courts, California
state courts are not a notice pleading jurisdiction, and notice alone is not a
sufficient basis for any pleading. California is a fact pleading jurisdiction.
Merely putting an opposing party on notice is not sufficient. (Bach
v. County of Butte (1983) 147
Cal.App.3d 554, 561; see Diodes,
Inc. v. Franzen (1968) 260
Cal.App.2d 244, 250.)
III.
DISCUSSION
A. Demurrer
to the FEHA claims alleged in the first and fourth causes of action is
SUSTAINED.
The first cause of action asserts violation of Gov. Code §
12940 (k). The statute imposes liability on an employer who fails to take all
reasonable steps to prevent discrimination and harassment from occurring. (Gov. Code, § 12940(k).)
The fourth cause of action asserts a FEHA claim for retaliation. The statute
prohibits retaliation against a person that has opposed practices forbidden
under FEHA. (Gov.
Code, § 12940(h).) Although subpart(h) applies to retaliation by “any
employer … or person” “legislative history or, more precisely, the absence
of legislative history, behind the inclusion of the word “person” in
subdivision (h) of section 12940 also supports our conclusion that the
subdivision does not impose personal liability on nonemployer
individuals." (Jones
v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1169.)
The ”fundamental foundation” for
FEHA liability is the existence of an employment relationship between the
parties. (McCoy
v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301. Plaintiff
alleges he entered into a membership agreement with Defendant Equinox for use
of the facilities. (Complaint, ¶ 9.) Accordingly, demurrer is SUSTAINED to the
first and fourth causes of action.
B. Demurrer
to the third cause of action for sexual harassment in violation of Civil Code §
51.9 is OVERRULED.
Section 51.9 of the Civil Code precludes sexual harassment
between a plaintiff and defendant who have a business, service, or professional
relationship between them. (Civ.
Code, § 51.9 (a).) Defendants argue that Plaintiff did not allege the
existence of such a relationship between the parties. Defendants argue that the
statute limits the types of relationships to which the law applies, and the relationship
between a health club and member is not enumerated.
Contrary to Defendants’
argument, the statute is not limited to the types of relationships described.
Rather, the statute provides that "[s]uch a relationship may exist between
a plaintiff and a person, including, but not limited to, any of the following
persons: … or [a] relationship that is substantially similar” to any of the
types of the articulated relationships. (Civ.
Code, § 51.9. Judd
v. Weinstein (9th Cir. 2020) 967 F.3d 952, 957 ["In no uncertain
terms, section 51.9 imposes liability for sexual harassment in any ‘business,
service, or professional relationship that is substantially similar’ to the
enumerated examples. (Judd
v. Weinstein (9th Cir. 2020) 967 F.3d 952, 957.)
Characteristic of the enumerated
examples is a "relationship wherein an inherent power imbalance exists
such that, by virtue of his or her ‘business, service, or professional’
position, one party is uniquely situated to exercise coercion or leverage over
the other. This is the key element common to every example in the statute.” (Judd
957.) Whether the relationship between the parties falls outside the
scope of the statute is a question for the trier of fact. (Judd
at 958–959. [“Of course, each inquiry into whether a particular
relationship falls within the scope of section 51.9 must be informed by the
specific facts of that case." (Judd
at 958.)
Plaintiff alleges that
Defendant Engel, in her role as general manager, told Plaintiff that unless he
committed to a relationship with her, he was not welcome to use the West
Hollywood Equinox Gym. (Complaint, ¶ 14.) Defendant Engel allegedly engaged in
improper conduct from December 2023 through March 2024 by interrupting
Plaintiff; attempting to engage in personal conversations; making unwanted
sexual advances toward Plaintiff; making personal comments about Plaintiff to
other gym personnel who were under her direct supervision; touching Plaintiff
in an unwanted manner; blocking Plaintiff’s path as he moved through the
facility; and touching and picking up Plaintiff’s personal belongings to
prevent Plaintiff from moving away from her. (Complaint, ¶ 17.)
Plaintiff reported Engel’s
conduct to Equinox. (Complaint, ¶ 17.vi.) Thereafter, Plaintiff alleges that
Defendants created falsehoods about the nature of Plaintiff’s visits to the
West Hollywood gym in order to retaliate against Plaintiff for reporting
Engel’s conduct. Defendants allegedly threatened to terminate his membership if
he used the West Hollywood gym and banned Plaintiff from the gym. (Complaint, ¶
19.)
A reasonable inference can be
drawn that these alleged facts support the type of relationship covered by the
statute.” (Judd
v. Weinstein (9th Cir. 2020) 967 F.3d 952, 958 [“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged."].)
IV.
CONCLUSION
Accordingly, demurrer to the FEHA
claims alleged in the first and fourth causes of action is SUSTAINED and
demurrer to the third cause of action is OVERRULED. Plaintiff is ordered to
file a first amended complaint within 10 days. The court strikes the amended
complaint filed on November 21, 2024.