Judge: Michelle Williams Court, Case: 22STCV08463, Date: 2022-08-09 Tentative Ruling

Case Number: 22STCV08463    Hearing Date: August 9, 2022    Dept: 74

22STCV08463           MARSY ALESNA vs LOS ANGELES POLICE FEDERAL CREDIT UNION

Defendant Los Angeles Police Federal Credit Union as to the demurrer and all Defendants as to the motion to strike

TENTATIVE RULING:  The demurrer in OVERRULED and the motion to strike is DENIED. Defendants shall have 20 days leave to answer the First Amended Complaint.

Background

On March 9, 2022, Plaintiff Marsy Alesna filed this action against Defendants Los Angeles Police Federal Credit Union, Shannon Graham, Nury Frost, and Cynthia Padilla. Plaintiff filed the First Amended Complaint on May 12, 2022 which asserts nine causes of action arising out of Plaintiff’s employment. The FAC asserts causes of action for sex and gender based FEHA violations, assault, sexual battery, whistleblower retaliation, Labor Code break violations, violation of Business and Professions Code section 17200, and intentional infliction of emotional distress.

Demurrer and Motion to Strike

On June 14, 2022, Defendant Los Angeles Police Federal Credit Union filed the instant demurrer to the fourth cause of action for assault and fifth cause of action for sexual battery.

Defendants Los Angeles Police Federal Credit Union, Shannon Graham, Nury Frost, and Cynthia Padilla all move to strike the punitive damages allegations.

Opposition

In opposition, Plaintiff alleges the FAC adequately alleges the allegations of assault and battery occurred during the scope of the perpetrator’s employment and Defendant ratified the conduct. Plaintiff also alleges the FAC alleges sufficient facts to support punitive damages.

Reply

In reply, Defendant reiterates its arguments made in the initial moving papers.

Meet and Confer

Defendant submitted the declaration of Kyra Buch, which satisfies the requirements of Code of Civil Procedure sections 430.41 and 435.5.

Demurrer

Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A special demurrer to a complaint is appropriate when the grounds of the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty, which the court strictly construes even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the demurrer is sustained, plaintiff must prove the possibility of cure by amendment. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.) 

Assault and Sexual Battery – Fourth and Fifth Causes of Action

The FAC alleges Plaintiff has worked for Defendant since March 28, 2005 and her current title is Operations Support Representative. (FAC ¶¶ 77, 102.) Plaintiff alleges Training Department Employee Steven asked Plaintiff to participate in a sexual harassment video for Defendant. (FAC ¶¶ 79 103.) When Plaintiff refused, he “proceeded with inappropriately grabbing Plaintiff’s buttocks.” (Ibid.) Plaintiff reported this to a supervisor, who questioned “Are you sure?,” and took no remedial measure. (Ibid.) Plaintiff also alleges she “asked a Coworker, Jorge Regalado, for assistance in archiving and printing a document” and he then “inappropriately placed his hand on Plaintiff’s hips.” (Ibid.) Plaintiff immediately reported this incident to Defendant’s “Vice President of People Wes Kubik.” (Ibid.) Plaintiff further alleges “[d]espite protesting the aforementioned inappropriate and lewd conduct to Supervisor May De La Torre, Call Center Supervisor Sharri Barret, Supervisor Defendant Graham, Operations Manager Linda Wong, Vice President of People Wes Kubik, as well as various Human Resources employees of LAPFCU, no corrective measures were taken. LAPFCU thereby ratified and condoned the conduct.” (FAC ¶ 80.)

Defendant contends the FAC fails to allege sufficient facts to hold it liable for Steven and Regalado’s alleged conduct. While Defendant addresses several potential theories of vicarious liability, the demurrer must be overruled if the FAC states a basis for liability under any theory. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 (“plaintiff need only plead facts showing that he may be entitled to some relief.”); Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301, 307 (“If the factual allegations of the complaint are adequate to state a cause of action under any legal theory, the demurrer must be overruled.”).)

The FAC adequately alleges Defendant ratified the alleged conduct and may therefore be held liable on that basis. “As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.)

Defendant relies upon Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, a summary judgment case, to argue the allegations are insufficient. Defendant contends “[m]ere actions, or failure to act, are not relevant to prove an employer’s alleged ratification of an assault and battery” citing Fretland with the parenthetical “testimony regarding superiors’ failure to take action not relevant to prove ratification of an assault and battery.” (Dem. at 8:11-13.) However, this is an inaccurate statement of California law and an incorrect summary of Fretland. As stated in Fretland:

In opposing summary judgment, Fretland did not produce any evidence which either contradicts Raffaelli's testimony or in any way indicates the County may have ratified the assault and battery. Instead, Fretland relied on his own deposition testimony during which he maintained that he repeatedly reported incidents of discrimination and harassment to his superiors, who failed to take any action. This testimony may arguably be relevant to prove the County actively participated in discrimination, but it is not relevant to prove ratification of the assault and battery.

(Fretland, supra, 69 Cal.App.4th at 1491.) Thus, the court found reports of discrimination and harassment, claims also alleged by the plaintiff, were not relevant to plaintiff’s separate assault and battery claims. This case does not stand for the proposition advanced by Defendant. As the court in Fretland acknowledged, “an employer can be held civilly liable as a joint participant in assaultive conduct committed by its employee pursuant to the doctrine of ratification.” (Fretland, supra, 69 Cal.App.4th at 1489–1490.) Courts routinely find ratification under the circumstances alleged in the FAC. “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Baptist, supra, 143 Cal.App.4th at 169.) The FAC alleges Defendant was made aware of the conduct at issue and took no remedial action. (Ibid. (“The failure to discharge an employee who has committed misconduct may be evidence of ratification.”).)

The FAC alleges Plaintiff reported the incidents several supervisors, managers, and Human Resources employees, no corrective measures were taken, and Defendant continued to employ the two individuals at issue. (FAC ¶¶ 80-81, 104, 111.) Nothing further is required. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1112; Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1432 (“We believe under the doctrine of ratification, [Citations] Hart may state a cause of action by alleging National was aware of Campbell’s acts in jumping on, grabbing and pinching him, and did nothing to discipline him.”); Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621 (“ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by redressing the harm done and punishing or discharging the employee.”).)

Defendant’s demurrer is OVERRULED.

Motion to Strike

Defendants Los Angeles Police Federal Credit Union, Shannon Graham, Nury Frost, and Cynthia Padilla move to strike all the punitive damages allegations from the FAC.

Standard

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 of Civ. Proc. § 435(b)(1); Cal. Rules of Court, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any 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(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

Discussion

Defendants argue the FAC fails to allege sufficient facts of fraud, malice, or oppression to support a claim for punitive damages. (Mot. at 3:8-4:1.) The Court finds the allegations are sufficient. Plaintiff’s complaint arises out of allegations of sexual harassment and sexual battery and each cause of action pursuant to which Plaintiff seeks punitive damages relies upon these allegations. (FAC ¶¶ 14, 36, 56, 79, 103.) These allegations are sufficient to constitute malice pursuant to Civil Code section 3924: “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3924(c)(1). See Fisher, supra, 214 Cal.App.3d at 621 (“sexual harassment is subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights and therefore supports punitive damage allegations.”).)

Defendants also contend the FAC does not allege sufficient facts to hold a corporate entity liable for punitive damages. (Mot. at 4:2-5:10.) Civil Code section 3294(b) provides: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer . . . ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the . . . ratification . . . must be on the part of an officer, director, or managing agent of the corporation.”

The Court finds the allegations are sufficient at the pleading stage. The FAC specifically alleges Defendants Graham, Frost, and Padilla were managing agents of Defendant Los Angeles Police Federal Credit Union. (FAC ¶¶ 3-5.) Plaintiff complained to Graham about the conduct at issue, no remedial measures were taken, and Graham ignored or rationalized the conduct. (FAC ¶¶ 14, 36, 58, 79-80, 103, 129.) Plaintiff further alleges she complained to the “Vice President of People” to no avail. (Ibid.) Plaintiff also alleges she “complained to Defendants and its relevant managers and supervisors, who had authority over Plaintiff and/or authority to investigate, discover, or correct the violations or noncompliances, including amongst others: Defendant’s harassment, discrimination, and retaliation against Plaintiff due to her sex/gender, and Defendants’ participation in unlawful activities.” (FAC ¶ 128.)

Nothing further is required to state a claim for punitive damages against Defendant. (See e.g. Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372 (“Lochner, as Kiewit's EEO officer, had the duties and responsibilities to enforce its policies against discrimination, retaliation, and harassment based on gender and other protected classes. A trier of fact could therefore reasonably infer he had the authority and discretion regarding enforcement of those policies because he did not conduct, or direct anyone else to conduct, an investigation regarding the portable toilet incident.”); Hart, supra, 189 Cal.App.3d at 1433 (“If plaintiff can show that Debbie Adams' knowledge of the harassment early on and failure to take action or Mary Drury’s later knowledge and failure to act constitutes ratification imputable to National, he is entitled to punitive damages.”).) The motion to strike is DENIED in its entirety.