Judge: Peter A. Hernandez, Case: 23PSCV02302, Date: 2024-01-18 Tentative Ruling

Case Number: 23PSCV02302    Hearing Date: January 18, 2024    Dept: K

Defendant Christian Herrera’s Demurrer to the Complaint is OVERRULED, in part (i.e., as to the third cause of action) and SUSTAINED with leave to amend within 20 days, in part (i.e., as to the fourth cause of action).

Background[1]  

Plaintiff Jackeline Perez (“Plaintiff”) alleges as follows:

Plaintiff is a competitive bodybuilder. On July 8, 2023, Plaintiff met Christian Herrera (“Herrera”), a nutrition and posing coach, for a scheduled consultation and posing session at Self Made Training Facility in West Covina. Herrera touched Plaintiff inappropriately during the posing session.

On July 28, 2023, Plaintiff filed a complaint, asserting causes of action against Herrera and Does 1-50 for:

1.                  Sexual Assault & Battery (Civ. Code § 1708.5)

2.                  Assault and Battery

3.                  Sexual Assault and Intimidation by Violence (Civ. Code § 51.7 [The Ralph Civil Rights Act of 1976])

4.                  Interference with Rights by Threat, Intimidation, or Coercion (Civ. Code § 52.1 [The Bane Civil Rights Act])

A Case Management Conference is set for January 18, 2024.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion[2]

Herrera demurs, pursuant to Code of Civil Procedure § 430.10, subdivision (e), to the third and fourth causes of action in Plaintiff’s complaint, on the basis that they both fail to state facts sufficient to constitute causes of action.

Third Cause of Action (i.e., Sexual Assault and Intimidation by Violence (Civ. Code § 51.7 [The Ralph Civil Rights Act of 1976]))

The elements of a cause of action for violations of the Ralph Civil Rights Act (Civil Code § 52.1) are:

(1)       Defendant threatened to commit, or committed, violent acts against plaintiff or his/her property;

(2)       A motivating reason for defendant’s conduct was his/her perception of plaintiff’s characteristic [i.e., race/color/religion/ancestry/national origin/political affiliation/sex/sexual orientation/age/disability/citizenship/primary language/immigration status/position in a labor dispute/[other actionable characteristic];

(3)       Plaintiff was harmed; and that

(4)       Defendant’s conduct was a substantial factor in causing plaintiff harm.

(Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881; CACI Nos. 3063 and 3064.)

Herrera focuses on the first element only, claiming that “[t]he complaint pleads no facts supporting any violence or intimidation by threat of violence by Defendant.” (Dem., 4:13-14). Plaintiff, however, has alleged that, when Plaintiff and Herrera were alone together during a posing session, Herrera came close to Plaintiff suddenly and without warning or permission, and began pinching and grabbing across Plaintiff’s stomach and torso, that Herrera moved his hands lower across Plaintiff’s torso and rolled down Plaintiff’s bikini bottom, and that Herrera pinched Plaintiff’s lower stomach and rubbed his fingers across Plaintiff’s groin and vagina. (Complaint, ¶¶ 14 and 15).

Plaintiff has also alleged that after she moved her hands to block Herrera’s hands from continuing to touch her, pulled her bikini bottom back up and warned Herrera to stop, Herrea continued to pinch Plaintiff’s body, including her legs and hip, without Plaintiff’s consent. (Id., ¶ 16). Plaintiff has alleged that Herrera instructed Plaintiff to change her pose position, which Plaintiff did, and that Herrera, without warning, consent, or permission, groped and fondled Plaintiff’s vagina again while standing behind her, this time placing both of his hands between Plaintiff’s legs. (Id., ¶ 18). Plaintiff has alleged that Herrera placed both of his hands on Plaintiff’s breasts. (Id., ¶ 19).

Plaintiff’s allegations of a purported sexual assault constitute “violence or intimidation by threat of violence” sufficient to withstand demurrer. Herrera’s demurrer to the third cause of action is overruled.

Fourth Cause of Action (i.e., Interference with Rights by Threat, Intimidation, or Coercion (Civ. Code § 52.1 [The Bane Civil Rights Act]))

The elements of a cause of action for violations of the Bane Civil Rights Act are:

(1)       Defendant’s actual, or attempted, threats, intimidation, or coercion;

(2)       Interference with plaintiff’s exercise or enjoyment of a constitutional or statutory right;

(3)       By threatening, or committing, violent acts;

(4)       Plaintiff reasonably believed that defendant would commit violence against plaintiff or plaintiff’s property if plaintiff exercised a constitutional or statutory right;

(5)       Defendant injured plaintiff or plaintiff’s property to prevent plaintiff from exercising a constitutional or statutory right, or to retaliate against plaintiff’s exercise of such rights;

(6)       Plaintiff was harmed; and

(7)       Defendant’s conduct was a substantial factor in causing that harm.

(Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at 882; CACI No. 3066.)

Herrera contends that Plaintiff has failed to delineate the constitutional right alleged to be violated. The court agrees. However, it appears that Plaintiff may be able to remedy the insufficiency if leave is granted.

Herrera’s demurrer to the third cause of action is sustained, with 20 days’ leave to amend.