Judge: Robert B. Broadbelt, Case: 20STCV46671, Date: 2023-06-29 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 20STCV46671    Hearing Date: June 29, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant AIDS Healthcare Foundation

RESPONDING PARTIES:    Plaintiffs Annette Turner and Tammy Davis

Demurrer to Third Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiffs Annette Turner (“Turner”) and Tammy Davis (“Davis”) (collectively, “Plaintiffs”) filed the operative Third Amended Complaint in this action on December 28, 2022, against defendants AIDS Healthcare Foundation, Victor’s Services, LLC, and Tony Rositas.  Plaintiffs allege nine causes of action for (1) sexual harassment; (2) gender violence; (3) negligence; (4) violation of Civil Code section 1941.1; (5) conversion; (6) sexual battery; (7) violation of Civil Code section 1941.3; (8) violation of Civil Code section 1950.5; and (9) willful or negligent failure to exercise ordinary care of property.

Defendant AIDS Healthcare Foundation (“Defendant”) now moves the court for an order sustaining its demurrer to the first cause of action as alleged by plaintiff Turner, the second cause of action as alleged by Plaintiffs, and the sixth cause of action as alleged by plaintiff Davis.

DISCUSSION

The court notes that, as a threshold issue, Plaintiffs argue that the demurrer is unclear since the notice of demurrer (1) states that Defendant is demurring to the first, second, and sixth causes of action, but (2) also states that Defendant is demurring to the “third cause of action for violation of Civil Code section 1708.5[,]” which is the sixth cause of action.  (Notice of Dem., p. 2:5, 2:13-14 [emphasis added].)  The court finds that, although the notice of demurrer contains a typo by referring to the sixth cause of action as the “third cause of action[,]” the notice of demurrer and demurrer sufficiently identify the cause of action to which Defendant is demurring by stating that it is directed to the cause of action for sexual battery in violation of Civil Code section 1708.5.  Further, although Plaintiffs contend that it is unclear as to whether the demurrer is directed to the first cause of action as alleged by both Plaintiffs, the court finds that Defendant has made clear that it is demurring to the first cause of action as alleged only by plaintiff Turner.  (Notice of Dem., p. 2:9-10.)  The court therefore evaluates the demurrer on its merits. 

The court sustains Defendant’s demurrer to plaintiff Turner’s first cause of action for sexual harassment in violation of Civil Code section 51.9 because it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

A plaintiff may state facts alleging a cause of action for sexual harassment in violation of Civil Code section 51.9 by alleging claims for either (1) a “hostile environment form of sexual harassment[,]” or (2) a “quid pro quo form of sexual harassment.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048, 1049.)  To establish a claim for the hostile environment form of sexual harassment, the harassing conduct must be pervasive or severe.  (Id. at p. 1048.)  To establish a claim for quid pro quo harassment, a plaintiff must allege more than an “unfulfilled threat” and instead must allege that, after rejecting sexual advances, solicitations, requests, or demands for sexual compliance, the defendant thereafter followed through on the threat by using their authority to cause injury to the plaintiff.  (Id. at pp. 1049-1050 [noting that, to establish quid pro quo sexual harassment under the employment laws, “a plaintiff must show ‘that a tangible employment action resulted from refusal to submit to a supervisor’s sexual demands’”].)

First, the court finds that plaintiff Turner has not alleged facts sufficient to state a cause of action for the hostile environment form of sexual harassment.  The court notes that plaintiff Turner has alleged that (1) a male security guard made offensive and vulgar comments regarding sex and plaintiff Turner’s gender (TAC ¶ 15), and (2) a female security guard called plaintiff Turner derogatory names (TAC ¶ 17).  However, the court finds that these allegations are insufficient to establish that the sexually harassing conduct “was either ‘pervasive or severe.’”  (Hughes, supra, 46 Cal.4th at p. 1048.)  “To be pervasive, the sexually harassing conduct must consist of ‘more than a few isolated incidents.’”  (Ibid. [emphasis in original].)  However, “[a]n isolated incident of harassing conduct ‘may qualify as “severe” when it consists of “a physical assault or the threat thereof.” ’”  (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1488 [emphasis in original].)  Here, plaintiff Turner has not alleged that the harassers threatened physical assault or did physically assault her, and instead has alleged “a few isolated incidents” of harassing conduct.  (Hughes, supra, 46 Cal.4th at p. 1048.)  The court therefore finds that plaintiff Turner has not alleged facts establishing the hostile environment form of sexual harassment within the meaning of Civil Code section 51.9 by failing to allege facts showing that the sexual harassment alleged was pervasive or severe.

Second, the court finds that plaintiff Turner has not alleged facts sufficient to state a cause of action for the quid pro quo form of sexual harassment.  Although plaintiff Turner has alleged that the male security guard appeared to have sexually propositioned her (TAC ¶ 15), Turner did not allege that a tangible adverse action resulted from her refusal.  (Hughes, supra, 46 Cal.4th at p. 1049.) 

The court sustains Defendant’s demurrer to Plaintiffs’ second cause of action for gender-based violence in violation of Civil Code section 52.4 because it does not state facts sufficient to constitute a cause of action since (1) this statute “does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence[,]” and (2) Plaintiffs have not alleged that Defendant personally committed the acts of gender violence, and instead have alleged that (i) defendant Tony Rositas engaged in sexual violence against plaintiff Davis (TAC ¶¶ 129, 75, 78-80), and (ii) a male security guard employed by Defendant made sexually offensive and vulgar comments to plaintiff Turner (TAC ¶ 15), such that Defendant cannot be liable for those acts.  (Code Civ. Proc., § 430.10, subd. (e); Civ. Code, § 52.4, subd. (e).)

The court sustains Defendant’s demurrer to plaintiff Davis’s sixth cause of action for sexual battery in violation of Civil Code section 1708.5 because it does not state facts sufficient to constitute a cause of action since (1) plaintiff Davis has not alleged that Defendant committed a sexual battery against her as required to obtain damages under Civil Code section 1708.5, subdivision (b), and (2) plaintiff Davis has argued, in her opposition, that she is not alleging this cause of action against Defendant based on a respondeat superior or other theory of vicarious liability.  (Code Civ. Proc., § 430.10, subd. (e); Civ. Code, § 1708.5, subd. (b) [“A person who commits a sexual battery upon another is liable to that person for damages”] [emphasis added]; Opp., p. 5:24-26 [“Plaintiffs’ claims for violation of Civil Code §[] . . . 1708.5 are based upon [Defendant’s] status as a landlord, and not an employer and allege liability based upon [Defendant’s] own independent actions and inactions, and not under any vicarious liability theory”] [emphasis in original].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Plaintiffs have not met their burden to show what facts they can allege in order to render the challenged causes of action sufficient against Defendant.  The court therefore sustains Defendants’ demurrer without leave to amend.

ORDER

The court sustains defendant AIDS Healthcare Foundation’s demurrer to plaintiff Annette Turner’s first cause of action for sexual harassment in violation of Civil Code section 51.9 without leave to amend.

The court sustains defendant AIDS Healthcare Foundation’s demurrer to plaintiffs Annette Turner and Tammy Davis’s second cause of action for gender-based violence in violation of Civil Code section 52.4 without leave to amend.

The court sustains defendant AIDS Healthcare Foundation’s demurrer to plaintiff Tammy Davis’s sixth cause of action for sexual battery in violation of Civil Code section 1708.5 without leave to amend.

The court orders defendant AIDS Healthcare Foundation to give notice of this ruling.

IT IS SO ORDERED.

DATED:  June 29, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court