Judge Robert B. Broadbelt, Case Number: 22STCV41100, Date: 2023-08-14 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV41100, Date: 2023-08-14 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.

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

Plaintiff Martha Kodama (“Plaintiff”) filed the operative First Amended Complaint in this action against defendant University of Southern California (“Defendant”) on May 15, 2023. Plaintiff alleges 10 causes of action for (1) negligence; (2) negligence; (3) negligent hiring, retention, and supervision; (4) negligent hiring, retention, and supervision; (5) sexual assault; (6) sexual battery; (7) sexual harassment; (8) intentional infliction of emotional distress; (9) gender violence; and (10) negligent infliction of emotional distress.

Defendant now moves the court for an order (1) sustaining its demurrer to each cause of action alleged against it, and (2) striking from the First Amended Complaint the prayer for treble damages and references to punitive damages.

The court sustains Defendant’s demurrer to each cause of action alleged against it[1] because Plaintiff’s First Amended Complaint does not state facts sufficient to constitute a cause of action for damages as a result of sexual assault since the face of the pleading shows that each cause of action is barred by the statute of limitations. (Code Civ. Proc., § 430.10, subd. (e); see Raja Development Co., Inc. v. Napa Sanitary District (2022) 85 Cal.App.5th 85, 92 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred”] [internal quotations omitted].)

Each cause of action alleged by Plaintiff is based on the rape and sexual assault of Plaintiff in November 1982. (FAC p. 2:1-2 [“This action arises from sexual assault, battery, rape and abuse of young women [sic] while she was a student at the University of Southern California]; FAC ¶¶ 25, 70 [“This action alleges . . . injuries suffered as a result of conduct that would constitute ‘sexual assault’ and rape”], 79, 98-100, 109-110, 116-117, 124, 129-130, 140-141,145-146.) “In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff’s 18th birthday, the time for commencement of the action shall be the later of the following: [¶] (1) Within 10 years from the date of the last act . . . of sexual assault against the plaintiff [, or] [¶] (2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act . . . of sexual assault against the plaintiff.” (Code Civ. Proc., § 340.16, subd. (a).)

However, “any claim seeking to recover damages suffered as a result of sexual assault that occurred on or after the plaintiff’s 18th birthday that would otherwise be barred before January 1, 2023, solely because of the applicable statutes of limitations has or had expired,” was revived by Code of Civil Procedure section 340.16. (Code Civ. Proc., § 340.16, subd. (e)(1).) The claims to be revived may be brought by a plaintiff who alleges all of the following: (1) the plaintiff was sexually assaulted; (2) one or more entities are legally responsible for damages arising out of the sexual assault; and (3) the entity or entities engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse. (Code Civ. Proc., § 340.16, subd. (e)(2).)

Plaintiff alleges that, in approximately November 1982, at which time she was about 18 years old, she was sexually abused, raped, and physically assaulted in the women’s shower by a janitor or custodian employed by Defendant. (FAC ¶¶ 25-27.) “[S]hortly after[,]” Plaintiff was diagnosed with vaginitis and gonorrhea, which was caused by the rape and sexual assault of Plaintiff. (FAC ¶ 27.) Thus, under Code of Civil Procedure section 340.16, subdivision (a), Plaintiff’s claims for the recovery of damages as a result of the November 1982 rape would have expired at the end of November 1992 (10 years + date of the last act, i.e., November 1982). (Code Civ. Proc., § 340.16, subd. (a).) However, as set forth above, Code of Civil Procedure section 340.16 was recently amended to revive certain claims for damages as a result of sexual assault for the period of time between January 1, 2023 and December 31, 2023, provided that the plaintiff has pleaded facts establishing the statutory requirements for revival.

The court finds that Plaintiff has not alleged that Defendant or its officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegation of sexual assault and therefore finds that Plaintiff has not alleged that her claims for damages as a result of a sexual assault have been revived.

As to the existence of a cover up, Plaintiff alleges that (1) Defendant knew or had reason to know of the perpetrator’s sexual assault, harassment, abuse, and attempted rape of other students under Defendant’s care; (2) Defendant knew or had reason to know of the perpetrator’s sexual assault, harassment, abuse and rape of Plaintiff in Defendant’s student housing; (3) Defendant “covered up their knowledge of [the perpetrator’s] sexual assault, harassment, abuse and rape of Plaintiff and other students at the offending student housing, thereby allowing such further sexual abuse, harassment, to continue to other students[;]” and (4) the rape and sexual assault of Plaintiff “was the result of a cover-up by” Defendant. (FAC ¶¶ 66-69.) The court finds that Plaintiff has sufficiently alleged that Defendant “covered up their knowledge of” the sexual assaults carried out by the perpetrator of “Plaintiff and other students at the offending student housing . . . .” (FAC ¶ 68.) However, Plaintiff has not pleaded that the alleged cover up related to “a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.” (FAC ¶ 68; Code Civ. Proc., § 340.16, subd. (e)(2)(C) [emphasis added].)

The court therefore finds that Plaintiff has not pleaded facts sufficient to show that her claims for damages suffered as a result of sexual assault have been revived under Code of Civil Procedure section 340.16, subdivision (e). Thus, as set forth above, the court finds that, on the face of the First Amended Complaint, Plaintiff’s claims for damages suffered as a result of sexual assault expired by the end of November 1992. The court grants Plaintiff leave to amend the First Amended Complaint in order to allege that Defendant or its “officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.” (Code Civ. Proc., § 340.16, subd. (e)(2)(C).)

Defendant requests that the court strike from the First Amended Complaint (1) the prayer for treble damages, and (2) the references to punitive damages as they relate to Defendant.

The court has sustained Defendant’s demurrer to each cause of action alleged against it in the First Amended Complaint for the reasons set forth above. The court therefore denies Defendant’s motion to strike as moot.

The court sustains defendant University of Southern California’s demurrer to plaintiff Martha Kodama’s First Amended Complaint.

The court denies as moot defendant University of Southern California’s motion to strike.

The court grants plaintiff Martha Kodama 20 days leave to file a Second Amended Complaint that cures the deficiencies set forth above.

The court orders defendant University of Southern California to give notice of this ruling.

[1] Plaintiff alleges the first, third, and fifth through 10 causes of action against Defendant. The court notes that, although the ninth cause of action states that it is “Against Defendant DOES 1 through 50” only, in support of this cause of action, Plaintiff has alleged that (1) Defendant authorized and ratified the subject wrongful conduct, and (2) as such, Plaintiff is entitled to damages “against all Defendants.” (FAC ¶¶ 141, 142 [emphasis added].) Thus, the court has interpreted the First Amended Complaint as alleging this cause of action against Defendant.

martha kodama ; Plaintiff, vs. university of southern california , et al.; Defendants.	Case No.:	22STCV41100

	Hearing Date:	August 14, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) Defendant’s demurrer to first amended complaint (2) defendant’s motion to strike portions of first amended complaint