Jane Doe v. Campus Hollywood Musicians Institute, Inc., et al.

(1) DEFENDANT LARRY CARR’S DEMURRER TO FIRST AMENDED COMPLAINT

(2) DEFENDANT TODD BERHOST’S DEMURRER TO FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendants (1) Larry Carr and (2) Todd Berhost

RESPONDING PARTY(S): Plaintiff Jane Doe

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Jane Doe brings this action against Defendants Campus Hollywood Musicians Institute, Inc.; Musicians Institute, Inc.; Musicians Institute—College of Contemporary Music; Jose Hernandez; Larry Carr; and Todd Berhost. Plaintiff alleges she worked for Defendants as an admissions advisor, where she faced sexual harassment. After making complaints of the harassment, Plaintiff alleges she faced retaliation at work, necessitating time off.

Defendants Larry Carr and Todd Berhost now separately demurrer to the FAC. Plaintiff opposed both motions.

TENTATIVE RULING:

Defendant Larry Carr’s Demurrer to the Fourth Cause of Action is OVERRULED.

Defendant Carr is ordered to file an Answer to the FAC within 10 days of this Ruling.

Defendant Todd Berhost’s Demurrer to the Eighth Cause of Action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing, consistent with this ruling.

If no leave to amend is given, Defendant Berhost is ordered to file an Answer to the FAC within 10 days of this Ruling.

Moving party to give notice.

DISCUSSION:

Defendant Larry Carr’s Demurrer to First Amended Complaint

I. Meet and Confer

The Declaration of attorney Nathan V. Okelberry reflects that the parties met and conferred.

II. Legal 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.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)  

III. Analysis

Defendant Carr demurrers to the Fourth Cause of Action for Sexual Harassment, arguing Plaintiff has failed to plead facts sufficient to support the claim against him.

To state her claim, Plaintiff must allege that “(1) she was subjected to verbal or physical contact of a sexual nature, (2) the conduct was unwelcome, and (3) the abusive conduct was sufficiently severe or pervasive so as to alter the conditions of her employment thus creating an abusive working environment.” (Sheffield v. Los Angeles Cnty. Dep't of Soc. Servs. (2003) 109 Cal. App. 4th 153, 161.) “[T]he question of whether or not there is a hostile work environment must be determined from the totality of the circumstances.” (Sheffield v. Los Angeles Cnty. Dep't of Soc. Servs. (2003) 109 Cal. App. 4th 153, 162.)

Plaintiff alleges that Defendant Carr is her “co-worker” and also “held supervisory authority over [her], controlling various tangible aspects of Plaintiff’s employment, including the ability to hire and fire Plaintiff.” (FAC ¶ 6.)

The allegations against Defendant Carr appear at paragraph 28 of the FAC as follows:

Around September of 2021, while Plaintiff was at a restaurant with Plaintiff’s coworkers and Defendant HERNANDEZ, Defendant HERNANDEZ asked Plaintiff if Plaintiff had any other piercings. Because Plaintiff did not deny that Plaintiff did not have any other piercings aside from Plaintiff’s ear piercings, Defendant HERNANDEZ assumed and loudly said, “You have your tits pierced. Eddie, Larry, she has her tits pierced.” When Plaintiff left the restaurant, Defendant CARR asked Plaintiff to drop Defendant CARR off at a metro stop. Once Plaintiff arrived at the metro stop, Defendant CARR looked at Plaintiff’s breasts and said, “Let me see your tits.” Plaintiff, in sheer shock replied, “What the hell?” Defendant CARR responded, “I’m dead serious, let me see them.” Plaintiff rebuffed Defendant CARR’s request immediately and told Defendant CARR to “have a good night.” Defendant CARR is now Plaintiff’s supervisor and the interim Supervisor for the Admissions Apartment.

Plaintiff alleges Carr’s “comments and gestures” were “sexually harassing.” (Id. 122.) Plaintiff alleges the harassment she faced, including that from Defendant Carr, was “severe, pervasive, constant and continuous, and was offensive, humiliating and harassing to Plaintiff and would have been offensive to a reasonable person under Plaintiff’s circumstances.” (Id. ¶ 121.) 

Considering the totality of the circumstances, the conduct is sufficiently severe or extreme for pleadings purposes to state a claim for sexual harassment against Carr.

Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

Defendant Todd Berhost’s Demurrer to First Amended Complaint

I. Meet and Confer

The Declaration of attorney Nathan V. Okelberry reflects that the parties met and conferred.

II. Analysis

A. Plaintiff’s DFEH Charge Names Defendant Berhost

Defendant Todd Berhost demurrers to the Eighth Cause of Action for aiding and abetting, first arguing that he was not named in Plaintiff’s charge with the DFEH. Defendant contends “a party needs to be expressly named in a DFEH complaint in order for administrative remedies to be exhausted as to that party.” (Dem. 5: 17-18.) 

In her opposition, Plaintiff provides her DFEH Complaint. Plaintiff is correct that this document plainly includes “Todd Berhost” as one of the respondents. (See Finkelberg Decl., Exh. A.) Defendant omits this argument from his Reply, presumably recognizing the error in his argument. 

Thus, the argument fails.

B. Plaintiff Has Not Plead Sufficient Facts to Support the Aiding and Abetting Claim Against the Moving Defendant

Next, Defendant contends Plaintiff has not alleged sufficient facts against him to support her Eighth Cause of Action for Aiding and Abetting Sexual Harassment. 

“Under the FEHA, ‘[a]iding and abetting occurs when one helps another commit a prohibited act. [Citation.] The concept of aiding and abetting involves two separate persons, one helping the other.’” (Vernon v. State of California (2004) 116 Cal. App. 4th 114, 133.) It requires the person give “substantial assistance or encouragement to the [employer] to so act....” (Alch v. Superior Ct. (2004) 122 Cal. App. 4th 339, 389.)

Defendant Berhost is alleged to be “President and Chief Executive Officer for Defendants INSTITUTE, CAMPUS, and COLLEGE,” who “held supervisory authority over Plaintiff.” (Id. ¶ 7.) Plaintiff alleges that she faced ongoing sexual harassment from her supervisor, David Hernandez.  Plaintiff alleges Defendant Berhost knew of Hernandez’s sexual harassment. (Id. ¶ 74.) Plaintiff reiterates that Defendant Berhost “knew or should have known of Defendant HERNANDEZ’s conduct and allowed it to continue, therefore aiding and abetting, creating, and maintaining a hostile work environment and sexual harassment.” (Id. ¶162.) Plaintiff alleges Hernandez’s acts were “carried out by and/or ratified by Defendants.” (Id. ¶ 167.)

Once Plaintiff complained of the harassment, Defendant Berhost allegedly “began critiquing Plaintiff’s work, giving Plaintiff dirty looks, and using aggressive tones towards Plaintiff to the extent that Plaintiff was constructively discharged.” (Id. ¶ 150.) 

Moving party to give notice.  

IT IS SO ORDERED.

Dated:   July 21, 2023 ___________________________________