Judge William A. Crowfoot, Case Number: 24STCV13472, Date: 2024-12-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 24STCV13472, Date: 2024-12-10 Tentative Ruling

On May 30, 2024, plaintiff Rakhi Chames (“Plaintiff”) filed this action against defendants Los Angeles County Development Authority (“Defendant”) and Keandre Butler. Plaintiff filed the operative First Amended Complaint (“FAC”) on August 31, 2024.

Plaintiff alleges claims for harassment, discrimination, retaliation, and wrongful termination, as well as intentional infliction of emotional distress (“IIED”). The IIED claim is the subject of Defendant’s demurrer.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

As alleged in the FAC, Plaintiff began her employment with Defendant in or about August 2020 in Palmdale, California. (FAC, ¶ 8.) From August 2020 through September 2023, she was allegedly sexually harassed by Defendant’s employee, co-defendant Keandre Butler (“Butler”). (FAC, ¶ 9.) On multiple occasions, Butler, who was allegedly employed as a security guard for Defendant, attempted to make conversation with Plaintiff by stating that she “is a queen and needed a king”, and suggesting that she should end her relationship with her partner. (FAC, ¶¶ 10-11.) In November 2020, Plaintiff also witnessed Butler attempt to obtain the personal contact information of a client by providing false instructions, and the client informed Plaintiff that Butler had on occasion followed her home while making derogatory comments. (FAC, ¶ 12.) Also around November 2020, Plaintiff witnessed Butler making other sexually inappropriate comments on the phone and she complained to her managers and supervisors about Butler’s sexually harassing conduct. (FAC, ¶ 13-15.)

In or around February of 2022, Plaintiff alleges that she saw Butler run into the office after his lunch break wearing a tank top without a shirt; additionally, Butler’s pants were unbuttoned with the zipper open. (FAC, ¶ 17.) As Plaintiff tried to leave the office, Butler attempted to make conversation with Plaintiff. (FAC, ¶ 17.) Plaintiff alleges that Defendant did nothing in response to Plaintiff’s complaints to end the sexual harassment she experienced and Plaintiff was forced to end her employment. (FAC, ¶¶ 19-20.)

As part of Plaintiff’s Seventh Cause of Action for IIED, she alleges that Defendant (and Butler) engaged in extreme and outrageous conduct including sexual harassment. (FAC, ¶ 111.) Plaintiff further alleges that Defendant engaged in retaliation and failed to investigate or discipline the assaulters and harassers, or provide resources or sexual harassment training. (Ibid.) Defendant’s allegedly “extreme and outrageous conduct” also includes creating and perpetuating a hostile work environment. (Ibid.)

Defendant demurs to Plaintiff’s IIED claim on the grounds that Plaintiff fails to identify a statutory basis for liability and does not plead an IIED claim with sufficient specificity. The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

Liability against a public entity must be authorized by statute. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].) “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

In opposition, Plaintiff argues that her IIED claim is permitted pursuant to Government Code section 815.2, which imposes vicarious liability upon a public entity “for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2.) Plaintiff contends that Defendant is liable under a vicarious liability theory for the actions of Butler or Plaintiff’s managers and supervisors. (Opp., pp. 4-5.) Plaintiff additionally claims that she has properly alleged all the elements for an IIED claim. Plaintiff claims she has alleged outrageous conduct by listing Defendant’s failures to stop, reprimand, fire or take any action against Butler when he routinely harassed Plaintiff and others by making openly sexual remarks or “attempted to control” her personal life by suggesting she end her relationship with her partner. (Opp., pp. 5-6.) Plaintiff contends that Defendant’s failure to act amounts to outrageous conduct, especially considering that Defendant also retaliated against her for reporting Butler’s sexual harassment and assault. Notably, however, the FAC does not describe what retaliation, if any, occurred in connection with Plaintiff’s complaints about Butler.

On reply, Defendant argues that Plaintiff’s IIED claim fails because it cannot be vicariously liable for Butler’s sexual harassment, which is not within the scope of his employment. (Reply, p. 3; see Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1008-1019.) Additionally, even if Plaintiff’s supervisors and managers’ alleged conduct took place within the scope of their employment, there can be no vicarious liability here because her supervisors and managers are not personally liable for their alleged failure to prevent harassment. (See Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327-1328 [inaction on a sexual harassment complaint is not “aiding and abetting” harassment and does not provide grounds for personal liability]; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80.) Since mere inaction does not create personal liability for a supervisory employee’s failure to prevent sexual harassment (and Plaintiff alleges no specific facts supporting her claim for retaliation in connection with her complaints about Butler’s conduct), it follows that her supervisors and managers cannot be personally liable for IIED for the same inaction, and thus there is no basis for vicarious liability against Defendant. (See Lopez, supra, 40 Cal.3d at p. 795.) Accordingly, the Court concludes that Plaintiff fails to allege facts sufficient to state a cause of action for IIED. The demurrer is sustained to the Seventh Cause of Action.

Defendant’s demurrer to the Seventh Cause of Action is SUSTAINED with 20 days’ leave to amend.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.