Judge Randolph M. Hammock, Case Number: 23STCV30324, Date: 2024-07-15 Tentative Ruling

Plaintiffs Michelle Ceja and Mayra Flores allege they were constructively discharged from their employment with Defendant On-Line Power, Incorporated, after complaining of harassment from a coworker, Defendant Octavio Reyes.

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.)

Defendant On-Line Power demurrers to the Seventh Cause of Action for Battery and the Eighth Cause of Action for Assault. Defendant first argues that Plaintiffs have failed to identify the alleged tortfeasor that committed the battery against Plaintiff Flores.

Not so. Plaintiff Flores alleges that Defendant Octavio Reyes followed her into a workplace restroom and “grabbed her shoulders forcefully, pushed her against the sink, and demanded that she kiss him. As she told him to stop, he began kissing her on the forehead and on both cheeks.” (FAC ¶¶ 25.)

Defendant then argues that Plaintiff has failed to allege facts supporting that Defendant On-Line is vicariously liable for the tort of its employee, Defendant Reyes, or that Defendant ratified Reyes’ conduct.

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] (Mary M. v. City of Los Angeles (1991), 54 Cal. 3d 202, 208). “A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. [Citation.]’ ” (Id., citing Perez v. Van Groningen & Sons, Inc., 41 Cal.3d at p. 968). Even tortious conduct that violates an employee’s official duties, does not benefit the employer, and is willful or malicious in nature may be within the scope of employment. (Id.)

Relatedly, “[a]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] 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. [Citations.] Whether an employer has ratified an employee's conduct is generally a factual question. [Citation.]’ ” (Ventura v. ABM Indus. Inc. (2012) 212 Cal. App. 4th 258, 272).

Here, Plaintiffs alleged that Defendant Reyes, an employee of Defendant On-Line Power, assaulted or battered Plaintiff Flores at work. (FAC ¶¶ 25.) Plaintiffs allege that Defendant Reyes “was an employee and supervisor at On-Line Power at the time of [Plaintiffs’] employment.” (Id. ¶ 15.) After Defendant Reyes’ alleged assault on Plaintiff Flores, Plaintiffs allege that Plaintiff Flores “promptly notified ON-LINE POWER’s Supervisor Jose Zamora of the assault, who said he would talk to REYES and investigate the incident.” (Id. ¶¶ 28.) Plaintiffs also allege Plaintiff Flores reported the incident to Supervisor Ben Cortez, who “then referred FLORES to Human Resources and reassured her the incident was being investigated.” (Id. ¶ 29.) For a brief time, Defendant Reyes was “sent home.” (Id. ¶ 30.) Two or three weeks later, however, Defendant Reyes returned to work “under a signed contract.” (Id. ¶¶ 30, 31.)

Thus, for pleadings purposes, Plaintiffs have alleged that Defendant Reyes assaulted and/or battered Plaintiff Flores, and that Defendant On-Line power subsequently ratified that misconduct by permitting Defendant Reyes to return to work. (See Ventura, supra, 212 Cal. App. 4th at 272 [“The failure to discharge an employee who has committed misconduct may be evidence of ratification”].) The court need not determine at this time whether Defendant On-Line Power is vicariously liable for the acts of Defendant Reyes.

Finally, Defendant argues the FAC is uncertain because it “lumps” the Defendants together and “incorporates by reference” all preceding paragraphs. But when considering the FAC liberally and in context, Defendant’s concerns are overblown. (Taylor, supra, 144 Cal. App. 4th at 1228.) The ultimate facts against the Defendants supporting liability are clear form the pleading. Moreover, “[d]emurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Fin. Indus. Regul. Auth., (2012) 208 Cal. App. 4th 1125.) Therefore, the demurrer for uncertainty fails.

Defendant also moves to strike portions of the FAC pertaining to a request for punitive damages. (See Notice of Motion, p. 2 & 3.) Defendant argues Plaintiff’s allegations are insufficient to support an award of punitive damages.

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

(1) “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.

“When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation's employees. But the law does not impute every employee's malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ.Code, § 3294, subd. (b).)” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 164.)

Here, considering the allegations discussed more fully in the demurrer—and accepting them as true—Plaintiffs have alleged sufficient or specific facts of fraud, oppression, or malice. Plaintiffs allege that Defendant Reyes, an employee of Defendant On-Line, assaulted and battered Plaintiff Flores in workplace restroom. (FAC ¶ 25.) Plaintiffs go on to allege that Abbie Gougerchian, owner of Defendant On-Line, was aware of Defendant Reyes’ alleged pattern of sexual harassment. (Id. ¶ 33.)

Therefore, Plaintiff has alleged that Gougerchian, apparently an officer, director, or managing agent of Defendant On-Line, ratified Defendant Reyes’ misconduct by keeping him employed despite knowledge of his misconduct. If true and proven at trial, these facts could support an award of punitive damages against the entity Defendant.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.