2013-00144510-CU-PO

Larann Holmes vs. Ian Lacasse

Nature of Proceeding: Hearing on Demurrer

Filed By: Pimentel, Lauren O.

*** If oral argument is requested, the parties shall at the time of the request
notify the clerk and opposing counsel of the specific causes of action that will
be addressed at the hearing. ***

Defendant American Management Services LLC dba Pinnacle’s (“AMS”) demurrer to
the First Amended Complaint (“1AC”) is SUSTAINED in part and OVERRULED in part,
with leave to amend, as follows.

Moving counsel is admonished because the notice of hearing does not provide the
correct address for Dept. 54.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3)-(4).

Opposing counsel is admonished for failing to comply with CRC Rule 3.1113(d) and
(e).

Plaintiff was a tenant of an apartment complex in Sacramento. She alleges she had a
number of incidents with the complex’s maintenance supervisor, defendant Martin,
beginning in December 2011 and ultimately including a sexual assault in her own
apartment in January 2013. According to the 1AC, defendant Martin has as a result
been convicted of at least one crime.

The 1AC now purports to allege 14 separate causes of action (“COA”) against several
defendants including but not limited to AMS and Martin. AMS now demurs to eight (8)
of these COA on various grounds set forth more fully below. Plaintiff opposes.

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1 and 2 COA for Sexual Assault/Battery and False Imprisonment. Defendant
AMS contends these two COA fail to plead facts sufficient to impose vicarious liability
stemming from defendant Martin’s sexual misconduct. In particular, AMS cites
Paragraphs 39 and 46 of the 1AC both of which merely allege in conclusory terms that
Martin’s misconduct was “committed while he was acting within the course and scope
of his employment with [AMS]” and that the latter is therefore vicariously liable. AMS
offers a variety of legal precedent for the proposition that an employer is generally not
vicariously liable for an employee’s sexual misconduct since such misconduct is fairly
characterized as being well beyond the course and scope of employment, with the only
established exception being the intentional misconduct by an on-duty, uniformed police
officer. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.)

In opposition, plaintiff concedes an employer is generally not liable for an employee’s
sexual assault but nevertheless maintains that vicarious liability attaches here because
defendant Martin was a “supervisor” at the time of the misconduct and because AMS
“sanctioned and rewarded his violent behavior.”

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The Court sustains the demurrer to both the 1 and 2 COA. As noted above, the
opposition admits an employer is generally not vicariously liable for a sexual assault
committed by an employee but plaintiff nevertheless attempts to show that this case
falls within an exception to the general rule of non-liability. However, plaintiff has cited
no specific legal precedent for holding an employer liable for misconduct occurring
similar to that in this case. Moreover, the opposition provides no authority for the
suggestion that vicarious liability can be based solely on the fact that the offending
employee was a “supervisor.” Indeed, this suggestion seems to run counter to
established precedent in this state.

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Regardless, this Court finds no allegation in the 1AC much less in the 1 or 2 COA
which actually asserts that AMS is vicariously liable as a result of defendant Martin
being a “supervisor.” Since a demurrer only challenges the sufficiency of a pleading,
the Court need not here consider claims not actually pled. Likewise, while the
opposition contends AMS has liability because it “sanctioned and rewarded [Martin’s]
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violent behavior,” there is no such allegation in either the 1 or 2 COA. Instead, as
noted above, both COA currently state only that the misconduct was “committed while
[Martin] was acting within the course and scope of his employment with [AMS]” and
thus, the latter has vicarious liability. (1AC, ¶¶39, 46.) To the extent plaintiff intends to
hold AMS liable on a theory that it ratified defendant Martin’s misconduct, it must be
specifically pled with the requisite facts.

3rd COA for Intentional Infliction of Emotional Distress. Defendant AMS argues
that this COA is defective for failing to plead facts which show it engaged in any
intentional, reckless or outrageous conduct toward plaintiff but instead generically
alleges in Paragraph 50 that “Defendants were aware of [plaintiff’s] vulnerability [to
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Martin’s actions].” AMS further contends that this 3 COA is impermissibly attempting
to create vicarious liability for Martin’s sexual misconduct.

The opposition counters by claiming the 3rd COA seeks to impose direct liability on
AMS for failing to take action despite knowing that defendant Martin posed a risk to the
apartments’ tenants.

The demurrer to the 3rd COA must be sustained because it clearly fails to plead facts
which satisfy each of the prima facie elements for an intentional infliction claim directly
against AMS. The current allegations are patently insufficient as against AMS and to
the extent plaintiff contends AMS may be liable on such a theory for failing to take
certain actions, she must specifically allege it and provide the requisite facts. Since
this COA is not properly pled as against AMS, the Court need not rule on defendant’s
secondary argument that the 3rd COA impermissibly attempts to create vicarious
liability in violation of the general rule of non-liability discussed in connection with the
first two COA.

5th COA for “Failure to Protect Tenant from Criminal Conduct.” AMS demurs to
this COA on the grounds it improperly attempts to impose vicarious liability for Martin’s
sexual misconduct and fails to state facts sufficient to constitute a valid COA against
AMS.

The Court notes that there is in California no COA for “Failure to Protect Tenant from
Criminal Conduct.” However, based on the allegations in Paragraph 56 (i.e.,
“Defendants, and each of them, negligently maintained, controlled, managed, and
operated the…Apartments, so as to fail to protect [plaintiff] from the criminal acts of
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Defendant Martin”), it appears the 5 COA is actually one for mere negligence (despite
plaintiff’s attempt to plead in Paragraph 58 a claim for punitive damages). Because
this COA currently lacks facts sufficient state a valid negligence based on AMS’ failure
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to protect plaintiff from foreseeable criminal activity, the demurrer to the 5 COA is
sustained.

To the extent AMS characterizes this COA as impermissibly attempting to hold AMS
vicariously liable for Martin’s conduct, the demurrer is overruled since this COA seeks
to hold AMS responsible for its own allegedly negligent conduct.

6th COA for Breach of Warranty of Habitability. Defendant again contends this is an
improper attempt to create vicarious liability for Martin’s sexual misconduct despite the
general rule of non-liability.

The Court disagrees because as alleged, this COA is not premised on AMS’ own
employment relationship with defendant Martin but rather merely AMS’ duty under
California law to provide its tenants with a habitable premises. Thus, the demurrer to
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the 6 COA is overruled. The Court notes that AMS did not in its moving papers argue
that the warranty of habitability is inapplicable to criminal conduct occurring on the
premises but regardless, it appears there is authority which permits a plaintiff in
California to hold a landlord liable for criminal conduct on a breach of warranty of
habitability theory. 8th COA for Constructive Eviction. Defendant AMS asserts that this COA too
impermissibly seeks to impose vicarious liability for Martin’s misconduct despite the
general rule.

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The Court overrules the demurrer to the 8 COA because it is not premised on the
employer-employee relationship between AMS and Martin. Instead, this COA is by its
own terms based solely on AMS’ own failure to maintain the premises in a reasonable
condition.

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11 COA for Premises Liability. AMS demurs to this COA on the same grounds as
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the 6 and 8 COA, that it seeks to create vicarious liability for Martin’s sexual
misconduct even though an employer is generally not liable for such conduct.

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For the same reasons cited above, the demurrer to the 11 COA must be overruled.
This COA does not seek to hold AMS vicariously liable for its employee’s misconduct
but rather for AMS’ alleged breach of its duty to maintain its property in a reasonably
safe manner. As this is essentially a negligence claim, it is not based on AMS’
employment relationship with Martin but rather based on AMS’ landlord-tenant
relationship with plaintiff and AMS’ own duty owed to her.

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12 COA for Nuisance. Defendant makes the same assertion here that this COA is a
disguised but improper attempt to impose vicarious liability for Martin’s sexual
misconduct.

The demurrer to this COA is overruled for the same reasons explained above. This
COA merely seeks to hold AMS liable for its conduct in creating a nuisance condition
and does not require or otherwise implicate the employment relationship between
defendants AMS and Martin. Thus, this COA does not “violate” the rule that an
employer is generally not liable for its employee’s sexual misconduct.

Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff
may file and serve an amended complaint no later than 6/13/2014. Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

Defendant to respond within 15 days if the amended complaint is personally served,
20 days if served by mail.

If defendant intends to demur to the amended complaint or move to strike, it shall
determine if any other defendant who has appeared in this action also intends to
demur or move to strike. If so, all such defendants shall coordinate a single hearing
date for the demurrers and motions to strike. Additionally, a copy of the amended
complaint shall be included with the moving papers.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)