Judge Thomas Falls, Case 22STCV10793 2023-01-17 Tentative Ruling

(2) Defendant JOSE DEJESUS MARQUEZ'S MOTION TO STRIKE PORTIONS OF PLAINTIFF JANE DOE'S COMPLAINT

(1) Defendant JOSE DEJESUS MARQUEZ'S DEMURRER TO PLAINTIFF JANE DOE'S COMPLAINT is SUSTAINED in part with leave to amend (4^th cause of action for Civil Code section 52.4) and OVERRULED in part (2^nd cause of action for Battery).

(2) Defendant JOSE DEJESUS MARQUEZ'S MOTION TO STRIKE PORTIONS OF PLAINTIFF JANE DOE'S COMPLAINT is GRANTED.

This is a sexual assault case. Plaintiff JANE DOE alleges the following against Defendant JOSE DEJESUS MARQUEZ (and Doe Defendants): In 2020, when Plaintiff was at Defendant’s residence, Defendant “approached Plaintiff and digitally penetrated Plaintiff’s vagina (the “Incident”). (Complaint ¶6.)

On September 8, 2022, Defendant filed the instant Demurrer with a Motion to Strike.

On November 1, 2022, the case was transferred to Department R, and thereafter Department O.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. 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. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

First, Plaintiff argues Defendant’s authority in its meet and confer letter was not competent. (See Opp. p. 8.) However, a review of Defendant’s meet and confer illustrates that it is detailed and supported by legal authority. To the extent that Plaintiff argues Defendant was to engage in additional conversations and provide more, Plaintiff hasn’t provided authority for such request. Second, even if the parties did not talk via phone, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41(a)(4), 435.5(a)(4).)

Therefore, as Plaintiff provided a well taken opposition such Plaintiff would not be prejudiced with the court hearing the motion, the court declines to overrule or continue the demurrer on said grounds.

Defendant demurs to the 2^nd cause of action for Battery and the 4^th cause of action for violation of Civil Code § 52.4 on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code of Civ. Proc. § 430.10 subd., (e)) (See Notice of Motion.)

Defendant MARQUEZ [] made a harmful and offensive physical contact with Plaintiff’s person, said Defendants intended that the physical contact harm or offend Plaintiff and acted with a willful disregard of Plaintiff’s rights, and Plaintiff did not consent to said contact.

In turn, CACI 1300 provides that to establish a claim for battery, the plaintiff must prove all of the following:

That [name of defendant] [touched [name of plaintiff]] [or] [caused [name of plaintiff] to be touched] with the intent to harm or offend [him/her/nonbinary pronoun]; 2. That [name of plaintiff] did not consent to the touching; [and] 3. That [name of plaintiff] was harmed [or offended] by [name of defendant]’s conduct[./; and] [4. That a reasonable person in [name of plaintiff]’s situation would have been offended by the touching.]

Defendant focuses on the fourth element by arguing that “the Complaint fails to state a cause of action for battery in that the Plaintiff does not allege that a reasonable person in the Plaintiffs situation would have been offended by the alleged touching,” and as such, the cause of action does not allege all elements of the cause of action. (Demurrer p. 3.)

In Opposition, Plaintiff argues that “Directions for Use” for CACI 1300 specifically clarifies that the bracketed element #4 is needed “if the offensive nature of the conduct is at issue.”

Here, the court agrees with Plaintiff. For one, element #4 is not always needed and Defendant’s cited authority does not stand for the proposition it contends. Second, the instructions further state “it will be clear whether the alleged conduct was offensive” such that “offensive nature of the conduct will most likely not be at issue if the conduct was clearly harmful.”[2] It is clear from the face of the complaint that when one puts his fingers into Plaintiff’s sexual organ without her permission that it is offensive.

Therefore, as there was no need for Plaintiff to have belabor the point that the touching would have been offensive to a reasonable person because that fact is clearly implied, the court OVERRULES the demurrer as to the 2^nd cause of action for battery. (See also Opp. p. 5, citing to Kiseskev v. Carpenter’s Trust For So. Cal. (1983) 144 Cal.App.3d 222, 228 [“Also taken as true are facts that may be implied or inferred from those expressly alleged.”].)

Plaintiff bases this cause of action based on the following pertinent allegation:

In connection with the INCIDENT, Plaintiff was subjected to gender violence perpetrated by Defendant MARQUEZ and DOES 1 to 20 within the meaning of Civil Code §52.4.

For purposes of this section, “gender violence” is a form of sex discrimination and means either of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. (d) For purposes of this section, “gender” has the meaning set forth in Section 51.”

Here, the court agrees with Defendant that the complaint fails to state facts sufficient to state a cause of action for violation of Civil Code § 52.4 because Plaintiff does not allege that the alleged touching was committed under "coercive conditions" or that the alleged touching was committed in part "based on the gender of the victim.” The allegation is merely a recitation of the statute such that it is conclusory and doesn’t provide the ultimate facts necessary to state a cause of action.[3]

Therefore, the court SUSTAINS the demurrer with leave to amend as to the 4^th cause of action.

Defendant seeks to strike Plaintiff’s request for attorney fees. Specifically, Defendant argues that “[g]iven there is no express reference in the cited statute to any right to an award of attorney fees, it must be concluded that the Legislature, for whatever reason, decided that attorney fees are not recoverable in actions under Civ. Code§ 1708.5.” (Motion to Strike p. 2.)

In Opposition, Plaintiff alleges that the statute allows for recovery of “any other relief the court deems necessary.” (Opp. p. 2.) Effectively, since the statute allows for the court to award any relief, and one such form of relief are attorney fees, then the statute’s language is clear that attorney fees are recoverable. Assuming the statute is not clear, Plaintiff explains that the legislative intent, demonstrated by Digest Senate Bill 2336, further supports recovery of attorney fees.

Effectively, the issue before the court is one of statutory construction.[4]

The court in Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819 provides the following statutory interpretation framework in a three-step analysis:

First, a court should examine the actual language of the statute. [Citations.] Judges, lawyers and laypeople all have far readier access to the actual laws enacted by the Legislature than the various and sometimes fragmentary documents shedding light on legislative intent. More significantly, it is the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed ‘into law’ by the Governor. The same care and scrutiny does not befall the committee reports, caucus analyses, authors' statements, legislative counsel digests and other documents which make up a statute's ‘legislative history.’ [¶] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations]. [¶] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] ... “But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.] [¶] The final step—and one which we believe should only be taken when the first two steps have failed to reveal clear meaning—is to apply reason, practicality, and common sense to the language at hand.

Code section 1708.5 provides that in a sexual battery case, the court may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper.” (Civ. Code § 1708.5) (emphasis added).

Here, the court agrees with Defendant that the phrase “any other “relief” is ambiguous.

While “any” in its “ordinary, everyday meaning” means “unmeasured or unlimited in amount, number, or extent” (i.e., unlimited scope), the word “relief” in its ordinary use has multiple definitions.[5] Amongst one of nine definitions is that relief means a “legal remedy.” Now, the word “remedies” also is not as simply defined because there are multiple forms of remedies (e.g., damages, restitution, or specific performance).[6] Whether attorney fees may constitute a form of remedies is also unclear because the American rule for attorney fees is that each party bears their own attorney fees. (Buckhannon Home v. West Va. Dep't (2001) 532 U.S. 598, 602.) In fact, this principle is codified in Code of Civil Procedure section 1021 that leaves each party to bear his or her own attorney fees unless “specifically provided for by statute.” (Civ. Code § 1021) (emphasis added). And here, the statute does not specifically allow for attorney recovery fees. Consequently, the definition(s) of remedies and the rules pertinent to attorney fees suggest that attorney fees do not amount to a remedy. Accordingly, absent a clear definition of the word “relief,” it is patently unclear whether attorney fees constitute “any other relief.” As such, the court must not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.

Plaintiff provides the Digest for Senate Bill 2336 which states that “[t]his bill would provide that any person who commits a sexual battery, as specified, is liable for damages, including, but not limited to, general, special, and punitive damages. The bill would also provide for additional remedies, as specified.”

However, the reliance on the Digest for Senate Bill 2336 undermines Plaintiff’s very own argument. If, as it appears, the legislators discussed the recovery of attorney fees in sexual battery actions, then the legislators would have included such language in the final passage, but the law contains no such language. In fact, a review of the statute’s legislative history reveals that the only amendment since the statute’s inception was Assembly Bill No. 453, authored by assembly members Cristina Garcia and Blanca Rubio. The bill, ultimately approved by the Governor, sought to “additionally provide that a person commits a sexual battery who causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed. The bill would also specify that a person commits a sexual battery who causes contact between an intimate part of the person and a sexual organ of another from which the person removed a condom without verbal consent.” (2021 California Assembly Bill No. 453, California 2021-2022 Regular Session, 2021 California Assembly Bill No. 453, California 2021-2022 Regular Session) (italics added). This amendment illustrates that had the legislature intended to provide additional protections for a plaintiff—this time in the form of attorney fees—it could have and would have done so.

Moreover, as Defendant notes, the next code section, Civil Code section 1708.6 which governs liability in domestic violence cases, states “[t]he court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney's fees.” (Civ. Code § 1708.6) (emphasis added). Why then does this section allow for explicit recovery of attorney fees? Because the section was enacted “to enhance the civil remedies available to victims of domestic violence in order to underscore society's condemnation of these acts, to ensure complete recovery to victims, and to impose significant financial consequences upon perpetrators.” [Stats. 2002, Ch. 193, § 1 (legislative findings); see also A. Introduction, Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch. 2(VI)-A.).] Accordingly, absent a similar purpose for Section 1708.5, the court will not impute one onto the Legislature.

Therefore, guided by the statutory interpretation canon of expressio unius est exclusio alterius,[7] had the Legislature intended for recovery of attorney fees in sexual battery cases, it could have and would have done so.

Based on the foregoing, the demurrer is sustained in part and overruled in part, with leave to amend. As for the motion to strike, it is granted.

[1] Though the court not find this bill on legal search databases.

[2] Defendant’s Reply fails to address the “Directions for Use” portion of CACI 1300.

[3] Plaintiff’s Opposition merely states “[t]hese allegations clearly meet either definition of “gender violence” set forth under Civ. Code §52.4(c), above.” The court is uncertain how so.

[4] The parties focus on the phrase “any other relief.”

[5] See Merriam-Webster. Relief. In Merriam-Webster.com dictionary n.d. URL

https://www.merriam-webster.com/dictionary/relief. Retrieved January 11, 2023.)

[6] See Remedies Definition, Black’s Law Dictionary (2nd ed.)

[7] The doctrine means “the expression of certain things in a statute necessarily involves exclusion of other things not expressed.” (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.)