Judge Theresa M. Traber, Case Number: 23STCV08690, Date: 2024-04-15 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCV08690, Date: 2024-04-15 Tentative Ruling

Case Number: 23STCV08690 Hearing Date: April 15, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 15, 2024 TRIAL DATE: NOT SET

CASE: Irma Leticia Mejia v. Cameo Hotel Inc.

CASE NO.: 23STCV08690

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY: Defendants Cameo Hotel Inc and Valley Active Properties, LLC

RESPONDING PARTY(S): Plaintiff Irma Leticia Mejia

CASE HISTORY:

· 04/19/23: Complaint filed.

· 08/17/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination and sexual harassment action. Plaintiff alleges that she was sexually harassed and assaulted by her co-workers.

Defendants Cameo Hotel Inc and Valley Active Properties, LLC demur to the first, second, and sixth causes of action in the first amended complaint and move to strike portions of the prayer for damages in the First Amended Complaint.

TENTATIVE RULING:

Defendants Cameo Hotel Inc and Valley Active Properties, LLC’s demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the second cause of action and otherwise OVERRULED.

Defendants’ Motion to Strike is DENIED.

DISCUSSION:

Demurrer to First Amended Complaint

Defendants Cameo Hotel Inc. and Valley Active Properties LLC demur to the first cause of action for sexual battery, the second cause of action for negligent retention and supervision, and the sixth cause of action for intentional infliction of emotional distress for failure to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Abe G. Salen attached to the demurrer states that the parties met and conferred via email and telephone between August 28 and September 8, 2023 concerning the issues presented here, but were unable to reach a resolution. (Declaration of Abe G. Salen ISO Dem. ¶¶ 7-9, Exhs. 2-3.) Defendants have therefore satisfied their statutory meet-and-confer obligations.

Vicarious Liability

Defendants demur to the first cause of action for sexual battery and the sixth cause of action for intentional infliction of emotional distress for failure to state facts sufficient to constitute a cause of action because Defendants are not vicariously liable for the alleged conduct of their employees.

“An employer is vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) Further, “an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297 citing Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 378-380.) However, “while the employee . . . need not have intended to further the employer’s interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Id at 298.) That said, employers are strictly liable for any harassing conduct committed by a supervisor, and are liable for harassment by other employees where the employer ratifies the harassment by failing to take immediate and appropriate corrective action when made aware of the conduct. (Gov. Code § 12940(j)(1); McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 517-18.)

Defendants argue that they are not vicariously liable for the sexual assault which Plaintiff alleges their employees committed because, they claim, the assault was “not generated by or an outgrowth of workplace responsibilities, conditions, or events.” (Lisa M., supra, 12 Cal.4th at 302.) Plaintiff concedes that the assault which she alleges fell outside the scope of the individual Defendants’ employment and claims that the corporate Defendants are nevertheless liable under section 12940(j)(1). Plaintiff alleges that one of the individual Defendants, “Philip,” was Plaintiff’s manager and “boss” (FAC ¶ 18). Plaintiff alleges that she informed Philip of Defendant Oliver’s attempts to kiss her, Defendant Utuy’s unwanted comments towards her, and Defendant Utuy’s assault. (¶¶ 14-17, 19-23.) Defendants contend that the First Amended Complaint is ambiguous because it does not clearly state whether Defendant Philip was Plaintiff’s supervisor, since Plaintiff also alleges that Philip instructed Plaintiff to report her complaint directly to the owner, Timothy Hopkins. (FAC ¶ 14.) However, construing the pleadings in the light most favorable to Plaintiff, as required on a demurrer, the Court finds that the straightforward allegation that Philip was Plaintiff’s manager is sufficient to allege vicarious liability for harassing conduct under the Fair Employment and Housing Act. Plaintiff has thus alleged that the conduct was either committed by a supervisor, or that a supervisor was informed and failed to take immediate corrective action.

Worker’s Compensation Exclusive Remedy

Defendants also demur to the first, second, and sixth causes of action on the basis that each claim is barred by the exclusive remedy of worker’s compensation.

As a general rule, an employee who sustains an injury “arising out of and in the course of the employment” is limited to recovery through worker’s compensation only. (Labor Code § 3600(a); Fermino v. Fedco (1994) 7 Cal.4th 701, 708.) However, where an employee proximately causes another employee’s injury by a “willful and unprovoked physical act of aggression,” the victim may bring an action for damages against the perpetrator. (Labor Code § 3601(a)(1).) That said, an employer cannot be vicariously liable for that injury if the exclusive remedy is applicable. (Labor Code § 3601(b).) Thus, injuries which occur within the scope of employment—and therefore injuries for which the employer is vicariously liable—are barred by the exclusivity rule so long as the employer’s conduct does not contravene public policy. (Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1382.)

Defendants first contend that they cannot be vicariously liable with respect to the first cause of action for sexual battery and sixth cause of action for intentional infliction of emotional distress in the event that the injury arises out of the scope of Plaintiff’s employment. As Plaintiff has conceded that the harassment she alleges falls outside the scope of the employment relationship and asserts liability under FEHA’s strict liability provision, this argument is immaterial.

Defendants also contend that Plaintiff’s second cause of action for negligent retention and supervision is likewise barred. Negligent retention and supervision claims, even in the context of sexual misconduct, are barred by the workers’ compensation exclusivity rule. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 161 accord. Coit. Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1605-06.) This cause of action is therefore barred by the exclusivity rule.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

As the Court has found that the second cause of action for negligent retention and supervision is barred by the exclusivity rule as a matter of law, there is no amendment to the second cause of action which could cure the defects identified herein. The Court therefore finds that leave to amend is not warranted.

Conclusion

Motion to Strike Portions of First Amended Complaint

Defendants move to strike portions of the First Amended Complaint pertaining to punitive damages.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. Id.§ 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id.§ 437. “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768. A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. Code Civ. Proc., § 436(b). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original).

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).)

The Declaration of Abe G. Salen attached to the motion states that the parties met and conferred via email and telephone between August 28, 2023 and September 8, 2023 concerning the issues presented here, but were unable to reach a resolution. (Declaration of Abe G. Salen ISO Mot. ¶¶ 7-9, Exhs. 2-3.) Defendants have therefore satisfied their statutory meet-and-confer obligations.

Analysis

Defendants contend that Plaintiff has failed to allege a sufficient basis for punitive damages.

Civil Code section 3294 subdivision (a) provides:

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Subdivision (b) defines liability for an employer for the malicious, fraudulent, or oppressive conduct of its employees:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code § 3294(b).)

As discussed above, Plaintiff alleges that one of the individual Defendants, “Philip,” was Plaintiff’s manager and “boss.” (FAC ¶ 18.) Plaintiff alleges that she informed Philip of Defendant Oliver’s attempts to kiss her, Defendant Utuy’s unwanted comments towards here, and Defendant Utuy’s assault. (¶¶ 14-17, 19-23.) Construing these allegations in the light most favorable to Plaintiff, the Court finds that the First Amended Complaint sufficiently alleges ratification by a managing agent to permit a claim for punitive damages at the pleading stage.

Conclusion

Accordingly, Defendants’ Motion to Strike is DENIED.

CONCLUSION:

Accordingly, Defendants Cameo Hotel Inc and Valley Active Properties, LLC’s demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the second cause of action and otherwise OVERRULED.

Defendants’ Motion to Strike is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: April 15, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.