Judge: Robert B. Broadbelt, Case: 23STCV30016, Date: 2024-07-16 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: 23STCV30016    Hearing Date: July 16, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Kevin Kimball     

RESPONDING PARTY:       Plaintiff A. Goertz

(1)   Demurrer to Complaint

MOVING PARTIES:              Defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc.

RESPONDING PARTY:       Plaintiff A. Goertz

(2)   Demurrer to Complaint

(3)   Motion to Strike Portions of Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer filed by defendant Kevin Kimball.

The court considered the moving and reply papers filed in connection with the demurrer and motion to strike filed by the entity defendants. 

The court did not consider the opposition papers to the demurrer and motion to strike filed by the entity defendants because they were not served and filed at least nine court days before the hearing on these matters.  (Pl. Opp. to Demurrer, p. 13 [proof of service of opposition on July 3, 2024, i.e., eight court days before the hearing]; Pl. Opp. to Mot. to Strike, p. 12 [proof of service of opposition on July 3, 2024, i.e., eight court days before the hearing]; Code Civ. Proc., § 1005, subd. (b).)

BACKGROUND

Plaintiff A. Goertz (“Plaintiff”) filed this employment action on December 7, 2023, against defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Krafton, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, LP., Krafton Ventures, Inc., Krafton Ventures, LLC, Krafton Americas, Inc., and Kevin Kimball.  The Complaint alleges six causes of action for (1) harassment (sex); (2) discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (“FEHA”); (3) wrongful termination in violation of public policy; (4) retaliation; (5) intentional infliction of emotional distress; and (6) false imprisonment.

Now pending before the court are two sets of responsive pleadings. 

First, on March 8, 2024, defendant Kevin Kimball (“Kimball”) filed a demurrer to Plaintiff’s Complaint, moving the court for an order sustaining his demurrer to Plaintiff’s first through fourth causes of action.  

Second, defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc. (collectively, the “Entity Defendants”) filed a demurrer to Plaintiff’s Complaint on March 15, 2024, and on March 18, 2024, filed a motion to strike portions of the Complaint, moving the court for an order (1) sustaining their demurrer to each cause of action alleged in Plaintiff’s Complaint, and (2) striking from the Complaint the prayer for punitive damages, the allegations regarding alter ego liability, and other allegations as improper or irrelevant.

DEMURRER FILED BY DEFENDANT KIMBALL

The court overrules Kimball’s demurrer to the first cause of action for statutory harassment because it states facts sufficient to constitute a cause of action since Plaintiff has alleged facts establishing that (1) she was a member of a protected class (Compl., ¶ 16 [Plaintiff is a woman]); (2) she was subjected to unwelcome harassment by Kimball when he, at a work-related function, sexually assaulted her and forced himself on her in a bathroom stall (Compl., ¶¶ 17-18); (3) the harassment was based on Plaintiff’s membership in an enumerated class (i.e., because of her gender) (Compl., ¶ 17 [Kimball violated Plaintiff’s rights “based on her gender”]); and (4) the harassment unreasonably interfered with her work performance because it was sufficiently severe and pervasive enough to alter the conditions of Plaintiff’s employment and to create a hostile and offensive working environment (Compl., ¶¶ 25, 39).  (Code Civ. Proc., § 430.10, subd. (e); Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170 [elements of prima facie case of unlawful harassment under FEHA]; Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878 [“‘Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature’”].)

The court sustains Kimball’s demurrer to the second, third, and fourth causes of action because Plaintiff has stated, in her opposition, that she “would agree to Amend her Complaint and remove Defendant Kimball from her Second Cause of Action for Retaliation, Third Cause of Action for Wrongful Termination and her Fourth Cause of Action for Discrimination.”  (Opp., p. 6:3-5.)  Because Plaintiff has agreed to dismiss her second, third, and fourth causes of action against Kimball, the court sustains his demurrer to those causes of action without leave to amend.

DEMURRER FILED BY ENTITY DEFENDANTS

The court overrules Entity Defendants’ demurrer to Plaintiff’s first through fourth causes of action on the ground that they do not state facts sufficient to constitute a cause of action because Plaintiff did not sufficiently allege that Entity Defendants acted as her employer since Plaintiff (1) has defined “Defendants” to include all of the Entity Defendants (Compl., ¶ 10), and (2) has alleged facts establishing that she was employed by Entity Defendants by alleging that  (i) she “was employed by Defendants” (Compl., ¶ 17) and (ii) she “worked for Defendants” (Compl., ¶¶ 18, 31).  (Code Civ. Proc., § 430.10, subd. (e).)  The court acknowledges, as Entity Defendants have noted, that Plaintiff has also alleged that she was working in the Publishing Department of defendant Krafton, Inc., from whom she was paid (Compl., ¶ 16).  However, as set forth above, Plaintiff has also alleged that she worked for and was employed by all Entity Defendants, which the court must accept as true.  (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078 [“a demurrer accepts as true all well pleaded facts . . . .”].)

The court overrules Entity Defendants’ demurrer to the first cause of action for statutory harassment because it states facts sufficient to constitute a cause of action since (1) as set forth above, the court has found that Plaintiff sufficiently alleged that she was employed by Entity Defendants (Compl., ¶¶ 17-18); (2) Plaintiff alleged that the actionable conduct committed by Kimball, Entity Defendants’ executive, was based on her gender (Compl., ¶ 17); and (3) Plaintiff has alleged facts establishing that the sexual assault by Kimball was sufficiently severe or pervasive as to alter the terms of her employment (Compl., ¶¶ 17-18, 39).  (Code Civ. Proc., § 430.10, subd. (e); Martin, supra, 97 Cal.App.5th at p. 170 [elements of prima facie case of unlawful harassment under FEHA].)

The court sustains Entity Defendants’ demurrer to the second cause of action for discrimination because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing that “some other circumstance [underlying the adverse employment action taken against her (i.e., her termination)] suggested discriminatory motive.”  (Code Civ. Proc., § 430.10, subd. (e); Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 397 [elements of prima facie case of discrimination under FEHA].)  Instead, the facts appear to allege that Entity Defendants terminated her not because of discriminatory animus, but in retaliation for reporting the sexual assault and sexual harassment by Kimball (Compl., ¶ 19).

The court sustains Entity Defendants’ demurrer to the third cause of action for violation of public policy because it does not state facts sufficient to constitute a cause of action since     (1) this cause of action appears to be derivative of the second cause of action for discrimination (Compl., ¶ 54 [above-referenced actions constitutes a wrongful termination]), and (2) the court has sustained Entity Defendants’ demurrer to that cause of action for the reasons set forth above.  (Code Civ. Proc., § 430.10, subd. (e); Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [“Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails”].)  The court notes that it has overruled Entity Defendants’ demurrer to the fourth cause of action for retaliation set forth below, which may support a wrongful termination cause of action.  However, it is unclear whether Plaintiff intended to support her wrongful termination cause of action on the claim for retaliation because (1) the third cause of action states it is based on, generally, the “above referenced actions” (Compl., ¶ 54), which (2) do not include or appear to reference the fourth cause of action for retaliation and instead appear to refer to the actions alleged in support of the second cause of action for discrimination.

The court overrules Entity Defendants’ demurrer to the fourth cause of action for retaliation because it states facts sufficient to constitute a cause of action since Plaintiff has alleged facts establishing that she engaged in a protected activity by “complain[ing] to [Entity] Defendants’ management about both [the] sexual assault and the hostile working environment and the discrimination she experienced” (Compl., ¶ 61).  (Code Civ. Proc., § 430.10, subd. (e); Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879 [elements of prima facie case of retaliation under FEHA].)  

The court overrules Entity Defendants’ demurrer to the fifth cause of action for intentional infliction of emotional distress because it states facts sufficient to constitute a cause of action since Plaintiff (1) has alleged that Entity Defendants created a hostile work environment by, inter alia, condoning the sexual assault committed against Plaintiff by Kimball (Compl., ¶ 20) and allowing to exist a hostile, oppressive, dangerous, and violent work environment (Compl., ¶ 18), and therefore (2) has alleged facts establishing that Entity Defendants’ conduct was so extreme as to exceed all bounds of that usually tolerated in a civilized community.  (Code Civ. Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [elements of intentional infliction of emotional distress]; Id. at p. 1051 [“If properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress’”].)

The court overrules Entity Defendants’ demurrer to the sixth cause of action for false imprisonment because Entity Defendants have not met their burden to show that it does not state facts sufficient to constitute a cause of action since (1) Plaintiff appears to allege that Entity Defendants are liable for Kimball’s false imprisonment of her on the ground that they ratified his wrongful conduct (Compl., ¶ 73 [alleging that each defendant was Plaintiff’s employer and supervisor, each had the right and duty to stop the actions, and each ratified Kimball’s conduct]), but (2) Entity Defendants did not, in their demurrer, challenge their liability on this ground.  (Code Civ. Proc., § 430.10, subd. (e); Demurrer, pp. 11:22-12:5; Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109 [“As an alternative to respondeat superior, an employer may be liable for an employee’s act where the employer subsequently ratifies the originally unauthorized tort”].)

MOTION TO STRIKE FILED BY ENTITY DEFENDANTS

Entity Defendants move the court for an order striking the following from Plaintiff’s Complaint: (1) the allegations regarding the existence of an alter ego relationship set forth in paragraphs 10, 13-15, and 48, in their entirety; (2) the references to “PUBG” in the entirety of paragraph 2 and a portion of paragraph 10; (3) the references to punitive damages in the portions of paragraphs 31 and 35, the allegations in support of the request for punitive damages in paragraphs 42, 52, 57, 64, and 70, in their entirety, and the prayers for punitive damages; (4) the request for attorney’s fees in paragraph 63; (5) the term “stalking” in a portion of paragraph 29; (6) the reference to “12950” in paragraphs 30 and 34; (7) the reference to “12940(h)(3)” in a portion of paragraph 36; (8) the reference to “(f)” in a portion of paragraph 40; and (9) the portion of paragraph 45 stating “December 8, 2023.”

First, the court finds that Plaintiff has not alleged facts supporting her claim that Entity Defendants are alter egos of each other (i.e., that there is such a unity of interest and ownership between them that the separate personalities do not exist and that there would be an inequitable result if the acts are treated as those of one entity alone), and therefore grants Entity Defendants’ motion to strike the references and allegations of “alter ego” in (1) the portion of paragraph 10 on page 3, line 27, and (2) the portion of paragraph 13 on page 4, lines 17 and 19.  (Code Civ. Proc., § 436, subd. (a); Cam-Carson, LLC v. Carson Reclamation Authority (2022) 82 Cal.App.5th 535, 549 [elements of alter ego doctrine].)  The court denies Entity Defendants’ request to strike the other allegations in paragraph 13, and paragraphs 14-15 and 48 in their entirety, because those paragraphs allege facts independent of the alter ego doctrine (e.g., that Entity Defendants are partners, co-owners, associates, joint venturers, principals and agents, and/or employers-employees of the others, and that they ratified the acts of each other).  (Compl., ¶¶ 13, 14-15, 48.)

Second, the court denies Entity Defendants’ motion to strike paragraph 2 and the portion of paragraph 10 referring to defendant PUBG Santa Monica, Inc., because Entity Defendants have not cited any allegation in the Complaint or judicially noticed document establishing that defendant PUBG Santa Monica, Inc. is not a separate entity that is capable of being sued.  (Mot., p. 9:1-7.)

Third, the court denies Entity Defendants’ motion to strike the prayers for punitive damages (Compl., Prayer, p. 11:10, 11:18) and related allegations (Compl., ¶¶ 31, 35, 42, 64, and 70) because Plaintiff has alleged facts establishing that Entity Defendants’ officers, directors, and/or managing agents authorized or ratified an act of oppression and fraud (i.e., the sexual assault committed against Plaintiff by Kimball).  (Code Civ. Proc., § 436, subd. (a); Compl., ¶¶ 20 [Entity Defendants, including their managerial employees, allowed the harassment to exist], 21 [Entity Defendants’ and their officers, directors, and managing agents were aware of and had notice of the perverse and harassing conduct but did not address Kimball’s sexual assault], 22, 27; Civ. Code, § 3294, subd. (b); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726 [ratification occurs where “the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties”]; Ibid. [“Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature”].)  The court denies as moot the motion to strike the requests for punitive damages in paragraphs 52 and 57 because those allegations are included in the second and third causes of action, to which the court has sustained Entity Defendants’ demurrer.

Fourth, court grants Entity Defendants’ motion to strike the request for attorney’s fees pursuant to Civil Code section 52, subdivision (b)(3) in paragraph 63 (page 13, line 11) because (1) that statute allows for the recovery of attorney’s fees for the denial of a right provided by Civil Code sections 51.7 (the Ralph Civil Rights Act of 1976) or 51.9, but (2) Plaintiff has not alleged that Entity Defendants violated those statutes in her Complaint.  (Code Civ. Proc., § 436, subd. (a); Civ. Code, §§ 52, subd. (b)(3), 51.7, subd. (a), 51.9.)  

Fifth, the court denies Entity Defendants’ motion to strike (1) the term “stalking” in paragraph 29, and (2) the references to Government Code section 12950 in paragraphs 30 and 34, because the court finds that Entity Defendants have not shown that they are irrelevant, false, or improper and therefore subject to a motion to strike.  (Code Civ. Proc., § 436, subd. (a); PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 [motions to strike should not be used as a line item veto for the civil defendant].)  

Sixth, the court grants Entity Defendants’ motion to strike the reference to Government Code section 12940, subdivision (h)(3) because that statute does not exist.  (Code Civ. Proc., § 436, subd. (a); Gov. Code, § 12940.)

Seventh, the court grants Entity Defendants’ motion to strike the reference to Government Code section 12940, subdivision (f) in paragraph 40, because (1) that provision declares it an unlawful employment practice for an employer to require medical or psychological examinations of an employee or to make any medical or psychological inquiry of an employee, but (2) Plaintiff has referenced this statute in support of her assertion that Entity Defendants’ conduct constitutes unlawful harassment in violation of that statute (Compl., ¶ 40).  (Code Civ. Proc., § 436, subd. (a).)

Finally, the court denies Entity Defendants’ motion to strike the reference to December 8, 2023 in paragraph 45 because Entity Defendants have not shown that this allegation is false, irrelevant, or improper.  (Code Civ. Proc., § 436, subd. (a).)  The court, however, acknowledges that Plaintiff appears to have made a typographical error in identifying the date of the alleged sexual assault in this paragraph.  (Compl., ¶¶ 17, 34 [alleging the date of the subject incident to be December 8, 2022].)  The court will grant Plaintiff leave to amend the Complaint to allege the correct date of the subject incident.

ORDER

            The court overrules defendant Kevin Kimball’s demurrer to plaintiff A. Goertz’s first cause of action for statutory harassment.

            The court sustains defendant Kevin Kimball’s demurrer to plaintiff A. Goertz’s second, third, and fourth causes of action without leave to amend.

            The court overrules defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc.’s demurrer to plaintiff A. Goertz’s first and fourth through sixth causes of action.

            The court sustains defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc.’s demurrer to plaintiff A. Goertz’s second and third causes of action with leave to amend.

            The court grants defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc.’s motion to strike the following from plaintiff A. Goertz’s Complaint, with leave to amend: (1) the term “alter ego” in paragraph 10 (page 3, line 27); (2) the terms “alter ego” in paragraph 13 (page 4, lines 17 and 19); (3) “California Civil Code § 52(b)(3)” in paragraph 63 (page 13, line 11); (4) the reference to “12940(h)(3)” in paragraph 36 (page 9, line 9); and (5) the reference to subdivision “(f)” in paragraph 40 (page 9, line 23).

            The court denies all other relief requested in defendants PUBG Santa Monica, Inc., PUBG Entertainment, Inc., Striking Distance Studios, Inc., Krafton Ventures Fund, L.P., Krafton Ventures, Inc., Krafton Ventures, LLC, and Krafton Americas, Inc.’s motion to strike.

            The court grants plaintiff A. Goertz 20 days leave to file a First Amended Complaint that cures the defects in the Complaint set forth in this ruling.

The court orders plaintiff A. Goertz to give notice of this ruling.

IT IS SO ORDERED.

DATED:  July 16, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court