Case Name: Chinese Performing Arts of America v. Silicon Valley Dance Academy, Inc., et al.
Case No.: 1-13-CV-253688

Cross-complainants Bing Wang and Kitty Xu were dance instructors for cross-defendants Chinese Performing Arts of America (“CPAA”) and Ann Woo (collectively, “Cross-Defendants”) from May 2002 to June 2012. (Cross-Complaint, ¶ 11.) Ms. Wang and Ms. Xu allege that they suffered injuries to their respiratory tracts as a result of remodeling work performed at Cross-Defendants’ place of business from 2010 to 2012. (Cross-Complaint, ¶¶ 12-15.) In addition, Cross-Defendants criticized and mocked Ms. Xu’s attire and appearance in public. (Cross-Complaint, ¶ 16.) Because they could not endure the working conditions at CPAA, Ms. Wang and Ms. Xu resigned in June 2012 and established their own dancing school, cross-complainant Silicon Valley Dance Academy (“SVDA”). (Cross-Complaint, ¶ 17 and 18.) Cross-Defendants made false statements about Ms. Wang and Ms. Xu, including that they had asked students’ parents to pay them instead of CPAA, they persuaded others not to work for CPAA, and they were trying to close down CPAA by unfair competition. (Cross-Complaint, ¶ 18.) CPAA filed the underlying action against Cross-Complainants on September 25, 2013, and on January 3, 2014, Cross-Complainants filed their cross-complaint asserting the following causes of action: (1) civil battery (against all Cross-Defendants), (2) negligence (against all Cross-Defendants), (3) civil harassment (against Ms. Woo), (4) libel (against all Cross-Defendants), (5) slander (against all Cross-Defendants), and (6) unfair competition (against all Cross-Defendants).

Currently before the Court are Cross-Defendants’ demurrer to the cross-complaint and special motion to strike the same.

Cross-Defendants’ requests for judicial notice filed in support of their demurrer and motion to strike are GRANTED. The pleadings in this action are court records relevant to the issues to be decided in the instant motions. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].) To the extent that the request is granted, however, the Court takes judicial notice only of the existence of these documents and the fact that they contain certain allegations, and not of the truth of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1568 [a court may take judicial notice of the existence of each document in a court file and the fact that certain findings were made, but may not take judicial notice of the truth of factual findings].)

Cross-Defendants demur to each of the six causes of action asserted in the cross-complaint on the ground that it fails to allege facts sufficient to state a cause of action.

With respect to the first cause of action, the demurrer is SUSTAINED without leave to amend. Cross-Complainants fail to allege that Cross-Defendants “intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s person” as required to state a claim for battery. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527.) While the tort of battery is not limited to direct body-to-body contact, it requires some application of force against the plaintiff, and instructing contractors to perform work that created dust during Ms. Wang and Ms. Xu’s teaching time (see Cross-Complaint, ¶ 20) simply does not rise to the level of force. (See Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881 [throwing flammable liquid on an individual and lighting it on fire was battery]; People v. Mansfield (1988) 200 Cal.App.3d 82, 88 [while “the least touching” may constitute battery, force against the person is required].)

The demurrer to the second cause of action is SUSTAINED with 10 days’ leave to amend. As urged by Cross-Defendants, this claim for negligence apparently arising out of Cross-Complainants’ employment with CPAA is likely subject to worker’s compensation exclusivity. While Cross-Complainant argues that worker’s compensation exclusivity may not apply because CPAA treated Cross-Complainants as independent contractors, the cross-complaint itself does not state any facts that would negative the application of the act, and the second cause of action is accordingly subject to demurrer. (See Doney v. Tambouratgis (1979) 23 Cal.3d 91, 97 [“where the complaint affirmatively alleges facts indicating coverage by the act[,] … unless the complaint goes on to state additional facts which would negative the application of the act, no civil action will lie and the complaint is subject to a general demurrer”].)

The demurrer to the third cause of action is SUSTAINED with 10 days’ leave to amend. In this claim, Cross-Complainants seek unspecified injunctive relief pursuant to Code of Civil Procedure section 527.6, which provides that a person who has suffered harassment may seek an injunction prohibiting the same, and defines “harassment” as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose[, which] must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Code Civ. Proc., § 527.6, subd. (b)(3).) Cross-complainants fail to describe the specific injunctive relief sought, and fail to allege great or irreparable harm if injunctive relief is not granted. The Court notes that the alleged harassment occurred in the context of employment, and Cross-Complainants no longer work with the Cross-Defendants.

Criticizing and mocking one’s attire and/or appearance as alleged in paragraph 30 of the cross-complaint does not rise to the level of harassment contemplated by section 527.6. (See Schild v. Rubin (1991) 232 Cal.App.3d 755, 763 [basketball playing in manner which constituted a reasonable use of neighbor’s property “was not so outrageous, extreme, intense or enduring as to come within the scope of injunctive relief for willful harassment pursuant to section 527.6”]; cf. Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1414 [where defendant sent obscene letters to his girlfriend knowing the girlfriend’s mother would read them, “[w]ithout doubt, defendant’s socially unacceptable course of conduct would have seriously alarmed, annoyed, or harassed a reasonable person, and would have caused a reasonable person to suffer substantial emotional distress”].)

The Court also notes that a petition for injunctive relief pursuant to section 527.6 must be filed on the form adopted for mandatory use by the Judicial Council of California. (See Thomas v. Quintero (2005) 126 Cal.App.4th 635, 642 [form adopted for mandatory use in response to section 527.6, subdivision (m)].)

As to the fourth and fifth causes of action for libel and slander, the demurrer is SUSTAINED with 10 days’ leave to amend. Cross-Defendants contend that the statements that form the bases for these claims were made in its underlying complaint in this action, and are consequently privileged under Civil Code section 47, subdivision (b). Cross-Complainants respond that they are suing for separate publications to third parties. It is not possible to determine which position is correct from the allegations of the cross-complaint, which merely alleges unspecified publications to unidentified “third parties” in conclusory fashion. (See Cross-Complaint, ¶¶ 36, 44.) Given that Cross-Complainants fail to plead any facts supporting the publication element of these claims, they are inadequate to survive demurrer.

Finally, the demurrer to the sixth cause of action for violation of Business & Professions Code section 17200 is OVERRULED given that Cross-Defendants state a claim for work-related harassment. (See People ex rel. City of Santa Monica v. Gabriel (2010)186 Cal.App.4th 882, 888 [whether a particular act is business-related is a question of fact; landlord’s sexual harassment of a tenant was a “business practice” subject to suit under section 17200].)

Cross-Defendants’ special motion to strike is DENIED. On a special motion to strike, “[t]he moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, citing Code of Civil Procedure section 425.16, subdivision (b)(1).) Here, Cross-Defendants contend that the fourth and fifth causes of action for libel and slander, and, derivatively, the sixth cause of action for unfair competition, are based upon statements made in their underlying complaint and consequently arise from protected activity. However, as discussed above, the cross-complaint does not identify the publications at issue, and Cross-Defendants offer no evidence beyond the pleading itself that the publications alleged are those made in the underlying complaint. While the Court notes that the statements alleged by Cross-Complainants are similar to allegations in the underlying complaint, it is entirely possible that, as Cross-Complainants contend, pre-litigation publications of these statements form the basis for their claims. Cross-Defendants have thus failed to meet their initial burden of demonstrating that Cross-Complainants’ claims arise from protected activity.

The Court will prepare the order.