Case Number: BC670949 Hearing Date: April 26, 2019 Dept: 2

Motion for Summary Adjudication by Defendant, Coldwater, LLC (erroneously sued as Déjà Vu Consulting, Inc. dba Déjà Vu Showgirls), filed on 4/5/19 is DENIED as to the 1st cause of action for Assault, 2nd cause of action for Battery and 5th cause of action for Sexual Battery. Defendant has not established it is entitled to judgment in its favor based on the material facts proffered. Cal. Code Civil Procedure § 437c(p)(2). The motion for summary adjudication as to the 4th cause of action for Sexual Assault GRANTED.

The undisputed material facts establish the following: Plaintiff was employed at Coldwater’s club named Déjà vu, located in North Hollywood. UF 1. Plaintiff conversed with a heavyset man who asked her how much it would cost for her to “take care” of the two other unidentified men in the room. UF 15. Plaintiff initially informed the heavyset man that she would not have sex with either man. UF 16.

Plaintiff proceeded to have sex with the first man. UF 19. After having sex with the first man, Plaintiff cleaned herself up in the dressing room and then proceed to the stage to perform. UF 22-23.

A claim for assault or battery requires proof that Plaintiff did not consent to the Defendant’s conduct or touching. Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603–1604; So v. Shin (2013) 212 Cal.App.4th 652, 668–669.

The claim for sexual battery under Cal. Civil Code § 1708.5 also requires evidence that Plaintiff did not consent. It is distinct from a battery claim in that sexual battery involves an intimate body part. Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225; Civ. Code, § 1708.5.

After consideration of all of the relevant material facts as a whole, including Plaintiff’s testimony, whether Plaintiff consented to the conduct is a triable issue of fact.

Whether or not the men threated Plaintiff is disputed by Plaintiff’s testimony, who testified “he told me to just do it” in a “very authoritative tone.” She felt like she didn’t have a choice. Fact 17 is disputed. Plaintiff did not agree to it, she testified she stated “I didn’t want to do it.” Fact 18 is disputed by Plaintiff’s evidence of her testimony.

Whether Plaintiff refused to have sex is disputed by Plaintiff’s testimony. She said, “that wasn’t something I was going to do.” “My answer was firmly no.” Fact 20 is disputed by Plaintiff’s testimony.

Fact 24, 25 and 26 seeks to establish that Plaintiff returned voluntarily to the “fish tank” to willingly have sex with the second man. She disputes this as she testified “he told me to go in there.” Facts 24-26 are disputed.

The 4th cause of action for Sexual Assault does not state a cognizable cause of action. The motion for summary adjudication is GRANTED as to this cause of action only.

Summary judgment, or in this case, adjudication, is necessarily a test of the sufficiency of the complaint. Defendant has no obligation to negate a legally inadequate claim. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662-63.

If summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from matters submitted by the Plaintiff that the Plaintiff could state a cause of action, the trial court should give the Plaintiff an opportunity to amend. Bostrom at 1663.

In this case, Plaintiff has not persuasively established that “sexual assault” is a cognizable cause of action.

Plaintiff cites So v. Shin (2013) 212 Cal.App.4th 652, which does not discuss a civil claim for “sexual assault.” Rather it involved civil claims for assault and battery (among other claims) against health care providers.

Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217 involved claims by a minor for unlawful seduction/child sexual abuse and intentional infliction of emotional distress.

While Defendant argues that it cannot be held liable for the conduct of third parties, the arguments are limited only to the issue of Plaintiff’s consent. The Points and Authorities do not discuss Defendant’s liability for the conduct of third parties. Motion, 6:1-3, 8:7-10.

Moving party is ordered to give notice.