Case Number: KC066823    Hearing Date: August 04, 2014    Dept: J

Re: Heriberta Islas v. Cal Blend Soils, Inc., etc., et al. (KC066823)

DEMURRER TO COMPLAINT

Moving Parties: Defendants Michael McKain and Sandy McKain

Respondent: Respondent: Plaintiff Heriberta Islas

POS: Moving OK; Opposing OK; Reply OK

The Complaint herein alleges that Plaintiff was verbally and sexually harassed by Defendants and that she was wrongfully terminated when she complained about the harassment. The Complaint, filed on 4/15/14, asserts causes of action for:

1. Constructive Termination in Violation of Public Policy
2. Hostile Work Environment Harassment
3. Retaliation in Violation of FEHA
4. Battery
5. Assault

The Case Management Conference is set for 9/9/14.

Defendants Michael McKain and Sandy McKain (collectively “Defendants”) demur to the fourth and fifth causes of action in the Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action against Defendants.

FOURTH CAUSE OF ACTION FOR BATTERY AND FIFTH CAUSE OF ACTION FOR ASSAULT:

The elements of a cause of action for battery are: (1) defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff’s body; (2) plaintiff did not consent to the contact; and (3) the contact caused injury, damage, loss or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal. App. 4th 516, 526.) The elements of a cause of action for assault are: (1) defendant intentionally caused plaintiff’s immediate apprehension of a harmful or offensive contact with the plaintiff’s body; (2) plaintiff did not consent to the contact; and (3) the contact caused injury, damage, loss or harm to plaintiff, such as emotional distress. (Lowry v. Standard Oil Co. (1944) 63 Cal. App. 2d 1, 6.)

The Complaint alleges that during Plaintiff’s employment with Cal Blend Soils, Inc. (“Cal Blend”) and Defendants, Plaintiff was verbally and physically sexually harassed by Defendants, which included touching Plaintiff on intimate parts of her body and making inappropriate sexual comments (Complaint ¶¶ 15, 40); several of Plaintiff’s co-workers intentionally touched Plaintiff on the intimate parts of her body and Plaintiff was faced with the apprehension of and actually experienced harmful and offensive touching by Plaintiff’s co-workers (Complaint ¶¶ 63, 71); Plaintiff complained to Defendants and also asked Plaintiff’s co-workers to stop touching her on the intimate parts of her body, but the incidents of harmful and offensive touching continued (Id. ¶¶ 64, 72); several of Plaintiff’s co-workers made unwanted unlawful, harmful, offensive contact with Plaintiff’s person (Id. ¶¶ 65, 73); Cal Blend and Defendants knowingly failed to stop and permitted the Plaintiff’s battery by her co-workers to occur (Id. ¶¶ 66, 74); and that as a result, Plaintiff was damaged (Id. ¶¶ 67, 75). The Complaint adequately alleges facts to support causes of action for battery and assault against Defendants. Thus, the demurrer is overruled.

While the allegations in the fourth and fifth causes of action concern the acts of Plaintiff’s co-workers only, it also incorporates the allegations made in paragraphs 15 and 40 that allege acts by Defendants. (Complaint ¶¶ 62, 70.)

Defendants have 10 days to answer.