Judge Teresa A. Beaudet, Case Number: 23STCV24103, Date: 2024-10-28 Tentative Ruling

Plaintiff Sara Lewis (“Plaintiff”) filed this action on October 4, 2023 against Defendants BMG Rights Management (US) LLC (“BMG”) and Kenny MacPherson (“MacPherson”) (jointly, “Defendants”).

On February 13, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges causes of action for (1) sexual battery, (2) gender violence, (3) sexual harassment - Civil Code section 51.9, (4) negligent hiring, supervision, and retention,

(5) discrimination, (6) harassment, (7) retaliation, (8) failure to prevent discrimination, harassment, and retaliation, (9) violation of Labor Code section 1102.5, (10) violation of Labor Code section 98.6, (11) wrongful termination in violation of public policy, and (12) intentional infliction of emotional distress.[1]

In the FAC, Plaintiff alleges, inter alia, that she was “employed at Chrysalis Music Group, Inc. (‘Chrysalis’).” (Compl., ¶ 5.) Plaintiff alleges that “[w]hat should have been [Plaintiff’s] dream job in the music industry became a literal nightmare at the hands of Defendant Kenny MacPherson. For years, [Plaintiff] endured an onslaught of unwanted sexual advances by MacPherson, who unabashedly used his power and authority to exact [Plaintiff’s] compliance and submission.” (Compl., ¶ 1.) Plaintiff alleges that “[a]t the time of the grooming and assaults by Defendant MacPherson, he was the President of Chrysalis USA from approximately 2002 to 2005, and then promoted to President and Senior Executive of Chrysalis Music Division North America.” (FAC, ¶ 6.) Plaintiff alleges that “Chrysalis merged with Defendant BMG Rights Management (US) LLC (‘BMG’) in December of 2012.” (FAC, ¶ 8.)

Plaintiff alleges that “[u]nwilling to accept [Plaintiff’s] rejections, MacPherson spent years grooming and harassing [Plaintiff], escalating from non-consensual touching, to groping, and even a traumatic sexual assault. MacPherson’s sexual harassment and abuse of [Plaintiff] was well known among colleagues and executives, and yet, rather than help [Plaintiff], her co-workers and supervisors chided her behind her back and shielded MacPherson from accountability.” (FAC, ¶ 3.)

MacPherson now demurs to the first, second, third, sixth, ninth, tenth, and twelfth causes of action of the FAC. Plaintiff opposes.

In addition, BMG now demurs “to the First Amended Complaint.” Plaintiff opposes.

The Court grants MacPherson’s request for judicial notice in support of MacPherson’s demurrer.

The Court also grants BMG’s request for judicial notice in support of BMG’s demurrer.

In his demurrer, MacPherson asserts that “each of Plaintiff’s causes of action against MacPherson is time-barred.” (Demurrer at p. 7:19-20.)

Pursuant to Code of Civil Procedure section 340.16, subdivision (e)(1), “[n]otwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff’s 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.”[2] Pursuant to Code of Civil Procedure section 340.16, subdivision (e)(2), “[t]his subdivision revives claims brought by a plaintiff who alleges all of the following:

(B) One or more entities are legally responsible for damages arising out of the sexual assault.

(C) The entity or entities, including, but not limited to, their 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.”

MacPherson also notes that Code of Civil Procedure section 340.16, subdivision (e)(3) provides that “[f]ailure to allege a cover up as required by subparagraph (C) of paragraph (2) as to one entity does not affect revival of the plaintiff’s claim or claims against any other entity.” MacPherson argues that “[i]f Section 340.16(e) allowed plaintiffs to proceed with time-barred claims against individuals, it is axiomatic that the statute would also include language confirming that a plaintiff’s failure to allege the requisite cover up as to one individual is not fatal to the plaintiff’s claims against any another individual.” (Demurrer at p. 9:1-4.)

But as noted by Plaintiff, Code of Civil Procedure section 340.16, subdivision (e)(1) provides that “[n]otwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff’s 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.” (Code Civ. Proc., § 340.16, emphasis added.) Plaintiff asserts that Code of Civil Procedure section 340.16, subdivision (e)(2) “sets forth the triggers required for the revival: allegations that the plaintiff was sexually assaulted, that one or more ‘entities’ are legally responsible for damages, and that entity or entities engaged in actual or attempted cover up…In other words, subdivision (e)(2) sets forth the conditions for reviving ‘any claims;’ it does not limit the scope of the claims subject to revival.” (Opp’n at pp. 11:25-12:1.) Indeed, the Court is not persuaded by MacPherson’s argument that Code of Civil Procedure section 340.16, subdivision (e) does not revive claims against individuals. Code of Civil Procedure section 340.16, subdivision (e) does not contain any such language and MacPherson does not provide legal authority supporting such proposition.

Next, MacPherson argues that “Plaintiff fails to allege any prior sexual assault or related cover up.” (Demurrer at p. 10:6.) As set forth above, Code of Civil Procedure section 340.16, subdivision (e)(2) provides that “[t]his subdivision revives claims brought by a plaintiff who alleges all of the following: (A) The plaintiff was sexually assaulted. (B) One or more entities are legally responsible for damages arising out of the sexual assault. (C) The entity or entities, including, but not limited to, their 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.” (Emphasis added.)

For purposes of Code of Civil Procedure section 340.16, subdivision (e), “‘Cover up’ means a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” (Emphasis added.) MacPherson contends that the FAC “is devoid of any allegation that MacPherson (or anyone else) previously sexually assaulted any other individual (and, consequently, devoid of any allegations of a related cover up).” (Demurrer at p. 11:4-6, emphasis omitted.)

MacPherson notes that the FAC alleges that “[u]nbeknownst to [Plaintiff] at the time, and upon information and belief, prior to [Plaintiff’s] employment, Chrysalis covered up previous instances of sexual harassment and misconduct in the company, including, but not limited to NDAs.” (FAC, ¶ 20.) The FAC further alleges that “[u]pon information and belief, prior to [Plaintiff’s] employment and MacPherson’s harassment of her, another assistant was subjected to inappropriate sexual advances and/or behavior by a supervisor. In exchange for the assistant’s silence, Chrysalis provided a monetary benefit to the assistant.” (FAC, ¶ 21.) MacPherson appears to assert that these allegations do not adequately allege a “sexual assault” as that term is defined in Code of Civil Procedure section 340.16, subdivision (b)(1),

In the opposition, Plaintiff does not appear to point to any allegations in the FAC that “[t]he 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,” as the term “sexual assault” is defined in Code of Civil Procedure section 340.16, subdivision (b)(1). (Code Civ. Proc., § 340.16, subd. (e)(2)(C), emphasis added.) Rather, Plaintiff points to allegations that “Chrysalis covered up previous instances of sexual harassment and misconduct in the company, including, but not limited to NDAs,” that “another assistant was subjected to inappropriate sexual advances and/or behavior by a supervisor,” and that “Chrysalis fostered and promoted a culture of sexual harassment and sexual battery by engaging in cover-ups of prior instances of sexual misconduct perpetrated by supervisors against their subordinates…” (FAC, ¶¶ 20, 21, 55 emphasis added.) These allegations do not reference “sexual assault” as such term is defined in Code of Civil Procedure section 340.16, subdivision (b)(1).

Based on the foregoing, the Court sustains MacPherson’s demurrer to the first, second, third, sixth, ninth, tenth, and twelfth causes of action of the FAC, with leave to amend. Plaintiff does not appear to dispute MacPherson’s assertion that “by filing her Complaint pursuant to Section 340.16(e), Plaintiff concedes that she is seeking to revive claims that are otherwise time-barred.” (Demurrer at p. 11:15-17.)[4]

As set forth above, Code of Civil Procedure section 340.16, subdivision (e)(2) provides that “[t]his subdivision revives claims brought by a plaintiff who alleges all of the following:

(B) One or more entities are legally responsible for damages arising out of the sexual assault.

In its demurrer, BMG first asserts that “Plaintiff’s claims against BMG do not get past the starting gate because she fails to allege, and cannot allege, that BMG ‘engaged in a cover up or attempted a cover up’—a prerequisite for revival of lapsed claims under A.B. 2777…The only alleged sexual assault in this case occurred no later than 2007, which Plaintiff concedes was years before BMG even existed.” (Demurrer at pp. 11:17-12:3.)

BMG points to paragraph 81 of the FAC, which alleges that “Chrysalis’s conduct, actions, and omissions served to create an environment in which MacPherson was afforded years of continuous secluded access to [Plaintiff], who was sexually abused, molested and assaulted by MacPherson between 2003 and 2007. Upon report [sic] her assaults, Chrysalis should have investigated and appropriately responded to such complaints, and should have taken action to further protect [Plaintiff].” (FAC, ¶ 81, emphasis added.) BMG also points to paragraph 9 of the FAC, which alleges that “BMG is a Limited Liability Company formed in Delaware in 2009.” (FAC, ¶ 9, emphasis added.)

In the opposition, Plaintiff asserts that she “has alleged that Chrysalis merged completely into Defendant BMG, which renders BMG—as the surviving corporation—subject to all liabilities of the merged or now-defunct corporation.” (Opp’n at p. 14:10-12.) As discussed above, Plaintiff alleges that “[Chrysalis Music Group, Inc.] merged with Defendant BMG Rights Management (US) LLC…in December of 2012.” (FAC, ¶¶ 5, 8.)

Plaintiff cites to Corporations Code section 1113, subdivision (i)(1), which provides that “[u]pon a merger pursuant to this section, the separate existences of the disappearing parties to the merger cease and the surviving party to the merger shall succeed, without other transfer, to all the rights and property of each of the disappearing parties to the merger and shall be subject to all the debts and liabilities of each in the same manner as if the surviving party to the merger had itself incurred them.” Plaintiff also cites to Corporations Code section 17710.16, subdivision (a), which provides that “[u]pon a merger of limited liability companies or limited liability companies and other business entities pursuant to this article, the separate existence of the disappearing limited liability companies and disappearing other business entities ceases and the surviving limited liability company or surviving other business entity shall succeed, without other transfer, act or deed, to all the rights and property, whether real, personal, or mixed, of each of the disappearing limited liability companies and disappearing other business entities, and shall be subject to all the debts and liabilities of each in the same manner as if the surviving limited liability company or surviving other business entity had itself incurred them.”

In the reply, BMG asserts that “successor principles, at best, would satisfy only the second prong of Code of Civil Procedure section 340.16(e)(2) – namely, that BMG is an entity ‘legally responsible’ for Plaintiff’s damages as a successor to Plaintiff’s actual employer, Chrysalis. But even accepting, arguendo, that BMG is ‘legally responsible,’ as a successor to Chrysalis, Plaintiff would still need to demonstrate the additional and separate third prong of section 340.16(e)(2) – that BMG was the entity that engaged in a ‘cover up.’ Plaintiff fails to do so…” (Reply at pp. 3:25-4:2, emphasis omitted.) But this interpretation of Code of Civil Procedure section 340.16 would render meaningless the law that a surviving limited liability company that merges with another business entity “shall be subject to all the debts and liabilities of each in the same manner as if the surviving limited liability company or surviving other business entity had itself incurred them.” (Corp. Code, § 17710.16, subd. (a), emphasis added.) Here, Plaintiff alleges Chrysalis merged with BMG in December of 2012, and that BMG is the successor entity. (FAC, ¶ 8.) The Court does not see why Corporations Code section 17710.16, subdivision (a) would not operate here such that BMG would be subject to alleged liabilities Chrysalis incurred by “engag[ing] 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).)

BMG does not appear to argue that Corporations Code section 17710.16 (or Corporations Code section 1113) is not applicable. Rather, BMG argues that “[s]tatutes generally providing for successor liability in corporate transactions do not supersede A.B. 2777’s specific language prohibiting revival of clams against entities that did not themselves engage in ‘cover up’ activity.” (Reply at p. 6, fn. 2.) In support of this assertion, BMG notes that the Court of Appeal in Edais v. Superior Court (2023) 87 Cal.App.5th 530, 542 found that “a canon of statutory construction instructs that, where statutes conflict, more specific provisions take precedence over more general ones.” (Internal quotations omitted.) But the Court does not see how Corporations Code section 17710.16 and Code of Civil Procedure section 340.16 conflict.

Next, BMG argues that “Plaintiff fails to allege a ‘previous’ sexual assault.” (Demurrer at p. 14:11.) As set forth above, Code of Civil Procedure section 340.16, subdivision (e)(2) provides that “[t]his subdivision revives claims brought by a plaintiff who alleges all of the following: (A) The plaintiff was sexually assaulted. (B) One or more entities are legally responsible for damages arising out of the sexual assault. (C) The entity or entities, including, but not limited to, their 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.” (Emphasis added.) For purposes of Code of Civil Procedure section 340.16, subdivision (e), “‘Cover up’ means a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” (Emphasis added.)

BMG notes that the FAC alleges that “[u]nbeknownst to [Plaintiff] at the time, and upon information and belief, prior to [Plaintiff’s] employment, Chrysalis covered up previous instances of sexual harassment and misconduct in the company, including, but not limited to NDAs.” (FAC, ¶ 20.) BMG notes that the FAC further alleges that “[u]pon information and belief, prior to [Plaintiff’s] employment and MacPherson’s harassment of her, another assistant was subjected to inappropriate sexual advances and/or behavior by a supervisor. In exchange for the assistant’s silence, Chrysalis provided a monetary benefit to the assistant.” (FAC, ¶ 21.) In addition, BMG notes that the FAC alleges that “Chrysalis fostered and promoted a culture of sexual harassment and sexual battery by engaging in cover-ups of prior instances of sexual misconduct perpetrated by supervisors against their subordinates, by issuing NDAs and/or other agreements to incentivize silence, and providing monetary incentives to victims of such sexual misconduct in exchange for their silence.” (FAC, ¶ 55.)

BMG asserts that these allegations “do not save Plaintiff’s claims against BMG because they are conclusory and insufficient to allege a cover up or attempted cover up of ‘a previous instance or allegations of sexual assault,’ as A.B. 2777 requires.” (Demurrer at p. 16:3-5, emphasis omitted.) BMG cites to Code of Civil Procedure section 340.16, subdivision (b)(1), which, as set forth above, provides that “[a]s used in this section, ‘sexual assault’ means any of the crimes described in Section 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.” As discussed, Penal Code section 243.4 concerns sexual battery, Penal Code section 261 concerns rape, Penal Code section 264.1 concerns “punishment for aiding or abetting rape,” Penal Code section 286 concerns sodomy, Penal Code section 287 concerns oral copulation, Penal Code section 289 concerns “penetration by a foreign object,” former Penal Code section 262 concerns spousal rape, and former Penal Code section 288a concerns oral copulation. BMG asserts that “Plaintiff’s FAC alleges no facts to establish a previous instance or allegations of sexual assault under the applicable Penal Code definitions. Indeed, the term ‘sexual assault’ itself is noticeably absent from Plaintiff’s new allegations.” (Demurrer at p. 16:10-12.)

In the opposition to BMG’s demurrer, Plaintiff also does not appear to point to any allegations in the FAC that “[t]he 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,” as the term “sexual assault” is defined in Code of Civil Procedure section 340.16, subdivision (b)(1). (Code Civ. Proc., § 340.16, subd. (e)(2)(C), emphasis added.) Rather, Plaintiff points to allegations that “Chrysalis covered up previous instances of sexual harassment and misconduct in the company, including, but not limited to NDAs,” that “another assistant was subjected to inappropriate sexual advances and/or behavior by a supervisor,” and that “Chrysalis fostered and promoted a culture of sexual harassment and sexual battery by engaging in cover-ups of prior instances of sexual misconduct perpetrated by supervisors against their subordinates…” (FAC, ¶¶ 20, 21, 55 emphasis added.) Plaintiff does not appear to respond to BMG’s point that the term “sexual assault” as it is used in Code of Civil Procedure section 340.16, subdivision (e) is defined in Code of Civil Procedure section 340.16, subdivision (b)(1).

Based on the foregoing, the Court sustains BMG’s demurrer to the FAC. As discussed above, each of the causes of action of the FAC are alleged against BMG. Plaintiff does not appear to dispute BMG’s assertion that “[b]y purporting to file her FAC pursuant to A.B. 2777, Plaintiff correctly concedes that her claims are otherwise time barred…” (Demurrer at p. 11:8-9.)[5]

Lastly, BMG asserts that its demurrer should be sustained without leave to amend. BMG asserts, inter alia, that any “amendments would be too late, because A.B. 2777’s one-year revival window has lapsed.” (Demurrer at p. 20:20-21.) As discussed, Code of Civil Procedure section 340.16, subdivision (e)(1) provides that “[n]otwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff’s 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.” (Emphasis added.) Here, Plaintiff’s FAC was filed on February 13, 2024.

On June 2, 2003, long after the expiration of section 340.9’s revival period, Davaloo and the Abdel-Messihs filed first amended complaints in response to demurrers by State Farm, attempting to correct obvious deficiencies in their original complaints. State Farm demurred to the first amended complaints. The trial court sustained the demurrers without leave to amend, finding that, because the original complaints are devoid of factual allegations, the first amended complaints do not relate back to the filing of the original complaints and thus the actions are time-barred and not revived by section 340.9. Davaloo and the Abdel-Messihs appealed. We affirm.”

The Davaloo Court found that “[t]o allow an insured to file a complaint at the very end of section 340.9’s revival period lacking any factual allegations specific to the dispute with his or her insurer and then use the relation-back doctrine to make amendments to the wholly deficient complaint would contravene the Legislature’s express directive that…section 340.9 operate to revive certain earthquake claims for a period of one year only.” (Davaloo v. State Farm Ins. Co., supra, 135 Cal.App.4th at p. 420 [internal quotations omitted].)

BMG asserts that “[t]he same reasoning applies here. Nothing in A.B. 2777 permits plaintiffs with long-expired sexual harassment and sexual assault claims to file ‘placeholder’ complaints within the one-year revival period and then try to develop facts necessary to meet the elements of A.B. 2777, including an alleged ‘cover up’ of someone else’s prior sexual assault, after the revival period has closed.” (Demurrer at p. 19:20-24.) But the Court agrees with Plaintiff that Davaloo is distinguishable. As discussed, the Davaloo Court noted that the complaints in that case “list[ed] numerous, generic allegations against ‘Defendants’ based on the insurance company’s alleged failure to pay policy benefits for Northridge earthquake damage but contain no allegations as to a particular dispute between Davaloo or the Abdel-Messihs and State Farm.” (Id. at p. 411.) Here, by contrast, Plaintiff’s original Complaint contains detailed factual allegations regarding the dispute between Plaintiff and Defendants.

Plaintiff cites to Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277, where the Court of Appeal noted that “[a]n amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not ‘relate back’ to an earlier timely filed complaint. Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. However, the doctrine will not apply if the ‘the plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those pleaded in the original complaint.’” (Internal citations omitted.) Here, BMG does not appear to argue that Plaintiff seeks by the FAC to recover upon a set of facts entirely unrelated to those pleaded in the original Complaint. The Pointe San Diego Residential Community Court noted that “[t]he courts have long recognized that the fact that an original complaint contained pleading deficiencies does not preclude the application of the relation-back doctrine. If the original complaint defectively states a cause of action, it may be amended after the running of the statute [of limitations] [to add additional factual allegations] as long as the cause of action stated in the amended pleading can trace its descent from the original pleading.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, supra, 195 Cal.App.4th at p. 281 [internal quotations and citations omitted].)

In light of the foregoing, Court sustains BMG’s demurrer to the FAC with leave to amend.

Based on the foregoing, MacPherson’s demurrer to the first, second, third, sixth, ninth, tenth, and twelfth causes of action of the FAC is sustained, with leave to amend.

In addition, based on the foregoing, BMG’s demurrer to the FAC (and each cause of action alleged therein) is sustained, with leave to amend.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, the Court orders MacPherson and BMG to file and serve proposed judgments of dismissal within 30 days of the date of this order.¿

[1]The first, second, third, sixth, ninth, tenth, and twelfth causes of action are alleged against both Defendants. The fourth, fifth, seventh, eighth, and eleventh causes of action are alleged against BMG only.

[2]The caption page of Plaintiff’s FAC alleges, inter alia, “[f]iled Pursuant to Code of Civil Procedure Section 340.16, as Amended by Assembly Bill 2777.” (Compl., p. 2.)

[3]Code of Civil Procedure section 340.16, subdivision (e)(4)(C) provides that “[f]or purposes of this subdivision:… (C) ‘Legally responsible’ means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability.”

[4]In the opposition to MacPherson’s demurrer, Plaintiff concedes that “Plaintiff’s claims for the incidents dating up to 2007 had previously become barred solely because the previously applicable statute of limitations had expired.” (Opp’n at p. 6:7-8.)

[5]In the opposition to BMG’s demurrer, Plaintiff concedes that “Plaintiff’s claims for the incidents dating up to 2007 had previously become barred solely because the previously applicable statute of limitations had expired.” (Opp’n at p. 6:6-8.)

Superior Court of California

County of Los Angeles

Department 50