Judge: Stephen P. Pfahler, Case: 23STCV10162, Date: 2024-02-01 Tentative Ruling

Case Number: 23STCV10162    Hearing Date: April 10, 2024    Dept: 68

Dept. 68

Date: 4-10-24

Case #23STCV10162

Trial Date: Not Set

 

DEMURRER/MOTION TO STRIKE

 

MOVING PARTY: Defendant, Skyhop Global, LLC

RESPONDING PARTY: Plaintiff, Alexis Craney-Foster

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

·         7th Cause of Action: Sexual Assault and Battery

·         12th Cause of Action: Failure to Provide Meal Breaks in Violation of Labor Code § 226.7

·         13th Cause of Action: Failure to Provide Rest Breaks in Violation of Labor Code § 226.7

·         14th Cause of Action: Failure to Provide Meal Breaks in Violation of Labor Code § 226.7

·         15th Cause of Action: Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203

·         17th Cause of Action: Breach of Contract in Violation of Civil Code Section 1549

 

Motion to Strike

·         Seventeenth Cause of Action for Breach of Contract

·         SECOND AMENDED COMPLAINT, ¶ 36: all references to “past situation” and “past complaints against her supervisors.”

·         SECOND AMENDED COMPLAINT, ¶ 137: all references to “past situation” and “past complaints against her supervisors” under the Seventh Cause of Action of sexual assault and battery.

·         SECOND AMENDED COMPLAINT, ¶ 143: all references to “Individual Defendants” and “they engaged in sexually inappropriate behavior” under the Seventh Cause of Action of sexual assault and battery.

·         SECOND AMENDED COMPLAINT, ¶ 144: all references to “the Individual Defendants’ sexual misconduct” under the Seventh Cause of Action of sexual assault and battery.

·         SECOND AMENDED COMPLAINT, ¶ 145: all references to “the Individual Defendants’ actions” under the Seventh Cause of Action of sexual assault and battery.

·         SECOND AMENDED COMPLAINT, ¶ 149: all references to “Individual Defendants” under the Seventh Cause of Action of sexual assault and battery.

 

SUMMARY OF ACTION

Plaintiff Alexis Craney-Foster was an employee of defendant SkyHop Global LLC from January 8, 2021, through September 27, 2022, as an airport shuttle driver for airport employees. During the course of employment, Plaintiff alleges defendant Timothy Boykin began a course of sexually inappropriate comments and touching. On June 5, 2021, Boykin visited her home, where he non-consensually engaged in sexual intercourse with Plaintiff while Plaintiff was intoxicated and incapacitated in her home after normal work hours.

 

Plaintiff complained about the conduct of Boykin, which led, at least in part to his dismissal. New supervisor defendant Eros Surla also allegedly engaged in sexually harassing conduct.


Plaintiff again complained, and was promised $50,000 in exchange for the execution for a settlement agreement. Plaintiff refused. Plaintiff continued to report the inappropriate conduct of Surla, but was told no relief was available. Plaintiff was subsequently terminated.

 

On May 5, 2023, Plaintiff filed a 17 cause of action complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assault and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5; and, Breach of Contract in Violation of Civil Code Section 1549. On September 5, 2023, the court sustained the demurrer to the seventeenth cause of action in the complaint with leave to amend.

 

On September 25, 2023, Plaintiff filed a 16 cause of action first amended complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assualt and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; 13; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; 15. Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; and, Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5. On December 14, 2023, the court sustained the demurrer to the seventh cause of action in the first amended complaint, and granted the motion to strike allegations in regard to the conduct of Boykin without leave to amend.

 

On January 3, 2024, Plaintiff filed a second amended complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assault and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; and, Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5; Breach of Contract in Violation of Civil Code Section 1549.

 

RULING

Demurrer: Sustained without Leave to Amend in Part/Overruled in Part

SkyHop Global, LLC (SkyHop) submits a demurrer to the seventh cause of action for sexual assault and battery, as well challenges to the twelfth, thirteenth, fourteenth, fifteenth, and seventeenth causes of action for Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Failure to Provide Rest Breaks in Violation of Labor Code § 226.7, Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203, and Breach of Contract in Violation of Civil Code Section 1549, as to individual defendants Boykin, Surla, Leviett, Murad, and Anderson.

 

In both demurrers to the complaint and first amended complaint, SkyHop only challenged the seventh cause of action for sexual assault and battery. SkyHop never previously raised any challenges to the wage and hour claims as to any individual defendant, and only now raises the argument, though the claims against all defendants existed since the filing of the complaint.

 

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer. (Code Civ. Proc., § 430.41, subd. (b).) The piecemeal demurrer on behalf of individual defendants to the twelfth, thirteenth, fourteenth, fifteenth, and seventeenth causes of action for Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Failure to Provide Rest Breaks in Violation of Labor Code § 226.7, Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203, and Breach of Contract in Violation of Civil Code Section 1549, as to individual defendants Boykin, Surla, Leviett, Murad, and Anderson will NOT be considered. The demurrer to the subject causes of action is OVERRULED without further substantive consideration.

 

On the seventh cause of action for Sexual Assault and Battery, SkyHop contends the operative complaint lacks facts to establish a basis of vicarious liability, thereby supporting the claim. Plaintiff in opposition maintains the numerous reported incidents of workplace unwelcome sexual contact, and the failure to remedy the situation, renders the employer liable. SkyHop in reply reiterates the lack of facts supporting the vicarious liability claim.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

The standard for determining whether uninvited sexual contact constitutes an action within the course and scope of employment brought forth extensive consideration from the California Supreme Court. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992.) “‘[A]n employer is liable for risks “arising out of the employment.” [Citations.] [¶] 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. ...’” [¶] ‘“One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. ... [¶] In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.” (Id., at pp. 1003-1004 (internal quotation marks omitted).)

 

“[T]he law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an employer will not be held vicariously liable for an employee's malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes. (Citation.) Thus, if the employee ‘inflicts an injury out of personal malice, not engendered by the employment’ (Citation) or acts out of ‘personal malice unconnected with the employment’ (Citation), or if the misconduct is not an ‘outgrowth’ of the employment (Citation), the employee is not acting within the scope of employment. Stated another way, ‘[i]f an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.’ (Citation.) In such cases, the losses do not foreseeably result from the conduct of the employer's enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Id. at pp. 1004–1005.)

 

Where an employee pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer ... The mere fact that an employee has the opportunity to abuse facilities necessary to the performance of his duties does not render an employer vicariously liable for the abuse. [¶] Nor does the fact that the offense occurred during working hours make [the perpetrator’s] action incidental to his employment. .... If an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior. (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 140.)

 

The second amended complaint alleges Plaintiff entering the office of Surla, whereby Surla initiated unwelcomed sexual contact with Plaintiff [Sec. Amend. Comp., ¶¶ 128-129], and proceeded to make lewd comments [Sec. Amend. Comp., ¶¶ ,130, 132]. The remainder of the cause of action alleges reporting the actions of Surla, with no follow-up investigation or disciplinary action occurring [Sec. Amend. Comp., ¶¶ 134-135, 137], Plaintiff’s termination from employment [Sec. Amend. Comp., ¶¶ 139], and legal statements regarding vicarious liability [Sec. Amend. Comp., ¶¶ 143-149].

 

The court finds the latest iterations of the subject cause of action in no way establishes conduct within the course and scope of employment for purposes of establishing vicarious liability. (See Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1005; see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 219.) In a review of all three complaints, consideration of all factual circumstances alleged, and the applicable legal standard, the court finds no basis for further leave to amend. The court concludes Plaintiff cannot state a legal basis for the instant cause of action against SkyHop without omitting or altering material key facts, thereby otherwise constituting a sham pleading. (See Code Civ. Proc., § 430.41, subd. (e)(1); Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.) The demurrer is therefore sustained without leave to amend.

 

 

Motion to Strike: Granted in Part/Moot in Part/Denied in Part

SkyHop moves to strike the following:

Seventeenth Cause of Action for Breach of Contract; Second Amended Complaint, ¶ 36: all references to “past situation” and “past complaints against her supervisors”; Second Amended Complaint, ¶ 137: all references to “past situation” and “past complaints against her supervisors” under the Seventh Cause of Action of sexual assault and battery; Second Amended Complaint, ¶ 143: all references to “Individual Defendants” and “they engaged in sexually inappropriate behavior” under the Seventh Cause of Action of sexual assault and battery; Second Amended Complaint, ¶ 144: all references to “the Individual Defendants’ sexual misconduct” under the Seventh Cause of Action of sexual assault and battery; Second Amended Complaint, ¶ 145: all references to “the Individual Defendants’ actions” under the Seventh Cause of Action of sexual assault and battery; and, Second Amended Complaint, ¶ 149: all references to “Individual Defendants” under the Seventh Cause of Action of sexual assault and battery.

 

On paragraphs 137, 143, 144, 145, and 149, the motion to strike is MOOT based on the demurrer sustaining the sexual assault and battery cause of action without leave to amend, as to SkyHop.

 

On the individual defendants within the sexual assault and battery cause of action, the motion to strike is DENIED due to the failure to raise the arguments in any of the prior challenges to the motion. (Code Civ. Proc., § 435.5, subd. (b).)

 

On the seventeenth cause of action for breach of contract, SkyHop challenges the cause of action as added without leave of court. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (Citation.) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785; see Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456; Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Plaintiff offers no apparent defense to the argument.

 

A review of the prior court orders shows no leave to amend to add in the subject cause and in fact an instruction to Plaintiff to move for leave to amend on December 14, 2023. Plaintiff again elected to forego seeking leave to amend. Again, the subject motion constitutes the third review of the subject action. While the court undertakes no consideration of the merits of the subject cause of action, the addition of the cause of action after voluntarily omitting it from the first amended complaint, combined with the continued failure to remedy the alleged omission, leads to the conclusion that Plaintiff elects to not follow procedure. The court therefore grants the motion to strike the seventeenth cause of action with prejudice/without leave to amend. (Code Civ. Proc., § 435.5, subd. (e)(1).)

 

Finally on paragraph, SkyHop moves to strike paragraph 36 regarding all references to “past situation” and “past complaints against her supervisors” on the basis that a settlement agreement bars such claims. Plaintiff presents an extensive argument regarding protections barring victims from addressing sexual violence claims.

 

The court finds no reference to said settlement agreement in the operative complaint, and otherwise declines to consider extrinsic inference or facts barring a showing within the operative pleading regarding support for the argument. The motion to strike is therefore DENIED on this item.

 

In summary, the demurer is sustained without leave to amend as to the seventh cause of action for sexual assault and battery as to demurring defendant only and overruled as to the remainder. The motion to strike is moot as to all allegations within the sexual assault and battery claim. The motion to strike the seventeenth cause of action is granted with prejudice/without leave to amend. The motion to strike portions of paragraph 36 of the second amended complaint, and the claims against the individual defendants, is denied. SkyHop to answer the remaining portions of the operative pleading within 10 days of this order.

 

Multiple motions to quash will be heard on June 11 and 13, 2024, as well as the Case Management Conference.

 

Defendant to provide notice.