Case Number: BC694991 Hearing Date: June 08, 2018 Dept: 34

SUBJECT: Demurrer to First Amended Complaint; Motion to Strike

Moving Party: Defendant County of Los Angeles

Resp. Party: Plaintiff Alicia C.

The demurrer to the first, second, fourth, and fifth causes of action is OVERRULED.

The demurrer to the third cause of action is SUSTAINED with leave to amend.

The motion to strike is DENIED in part and GRANTED in part. The Court strikes the references to Civil Code sections 52.3 and 52.4

BACKGROUND:

Plaintiff commenced this action on 02/22/18. On 02/26/18, plaintiff filed a First Amended Complaint (“FAC”) against defendants for: (1) sexual battery; (2) violation of civil rights; (3) negligent retention and supervision; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress.

Plaintiff alleges that she had made multiple complaints to the Sheriff’s department about her ex-husband’s continuous violations of a Court-ordered restraining order. Eventually, plaintiff spoke to defendant Clark, a Sheriff’s deputy, about the situation. Plaintiff alleges that defendant Clark instructed her to communicate any further complaints about her ex-husband directly to Clark because calling the “sheriff’s station would take too long.” (FAC, ¶ 14.) Plaintiff further alleges that defendant Clark continuously pressured her to engage in a sexual relationship with him and that she believed that doing so was the only way to get the Sheriff’s department to take action on her complaints.

DEMURRER

ANALYSIS:

Defendant demurs to each cause of action on the ground that they fail to state facts sufficient to constitute a cause of action. Defendant further demurs to the third cause of action on the ground that it is uncertain in that it fails to specify how defendant “knew” or “should have known” about defendant Clark’s behavior. (See Notice of Demurrer, p. 3:2-4:14.) Specifically, defendant argues the first, second, fourth, and fifth causes of action must fail because the County cannot be held liable under the theory of vicarious liability. (See Demurrer, p. 5:13-15.) Defendant further argues that the second cause of action must fail because the statutes upon which it is based are inapplicable. (See Id. at p. 5: 20-21.) Finally, defendant argues that the third cause of action must fail because the County is immune from general negligence claims. (See Id. at p. 5:16-19.)

First, Second, Fourth, and Fifth Causes of Action: Vicarious Liability

Defendant argues that it may not be held liable under the theory of respondeat superior in connection with the first, second, fourth, and fifth causes of action because employers are not vicariously liable for the actions of their employees when those actions “substantially deviates from the employer’s business for personal reasons” or “is the result of personal compulsion” or even when the opportunity for misconduct arose out of the conditions of employment. (See Demurrer, p. 7:22-8:2 [citing Farmers Ins. Group v. Santa Clara County (1995) 11 Cal.4th 992, 1004-1005; Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 299-300].) In Farmers Ins. Group, supra, the court noted that:

“[S]everal decisions have addressed whether an employee’s sexual misconduct directed toward a third party is within the scope of employment for respondeat superior purposes. Those cases hold that, except where sexual misconduct by on-duty police officers against members of the public is involved . . . the employer is not vicariously liable to the third party for such misconduct. . . .” (Farmers Ins. Group, supra, at p. 1006.)

Defendant argues that the exception for on-duty police officers has been further narrowed such that “respondeat superior liability has only been found where the officer abused a person whom he had arrested or detained, and thus has exerted authority over that person.” (See Demurrer, p. 8:19-21 [citing White v. County of Orange (1985) 166 Cal.App.2d 566 and Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.) Next, defendant cites to a series of cases in an attempt to show that an employer can only be responsible for an employee’s sexual misconduct in the context of an arrest by an on-duty officer. (See Demurrer, p. 9:11-11:5.) For example, in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, the court ruled that the school district was not liable for a teacher’s molestation of a student by ruling that “the authority of a police officer over a motorist . . . plainly surpasses that of a teacher over a student. The teacher’s authority is different in both degree and kind, and it is simply not great enough to persuade us that vicarious liability should attach hear for the teacher’s tort.” (Id. at p. 452.) In Farmers Ins. Group., supra, court found that the County “was not vicariously liable for sexual misconduct committed by Nelson, a jail corrections officer, against other officers” because he “exercised no job-conferred authority over Daugherty or Murphy at the time he harassed them” and even upon becoming the victims’ supervisor, Nelson’s “supervisory authority did not include the extraordinary power to detain, arrest or jail his trainee.” (See Demurrer, p. 9:19-10:6.) Finally, in Doe 1 v. City of Murietta (2002) 102 Cal.App.4th 899, the court found that the City could not be held vicariously liable for an officer’s sexual assault of several Boy Scouts who participated in ride-alongs because “the sexual activity in question did not arise from an officer exercising his job-created law enforcement authority over the victims to force or coerce them to commit sexual acts. Rather, plaintiffs became infatuated with Boyd, pursued him, and consented to his sexual acts.” (See Id. at p. 219-220.)

In summary, defendant argues that the facts alleged by plaintiff show that “Clark did not exert authority over the plaintiff. At best, the plaintiff wanted Clark to exert authority over her ex-husband. . . . the complaint suggests that Clark was seeking or receiving the equivalent of a bribe to do things for the plaintiff. It cannot be argued that an officer’s purported attempt to get or accept a bribe is within the scope of his employment.” (See Demurrer, p. 11:6-10.) As detailed below, each of the cases cited by defendant is easily distinguishable from the facts alleged in the FAC.

In Mary M. v. City of Los Angeles, supra, the Supreme Court of California set forth its rationale for allowing a public entity to be held liable for a sexual assault committed by an on-duty police officer:

“Our society has entrusted police officers with enforcing its laws and ensuring the safety of the lives and property of its member. In carrying out these important responsibilities, the police act with the authority of the state. When police officers on duty misuse that formidable power to commit sexual assaults, the public employer must be held accountable for their actions. ‘It is, after all, the state which puts the officer in a position to employ force and which benefits from its use.’” (Id. at p. 221.)

While it is true that many of the published decisions concern assaults that arose out of an officer’s decision to take their victim into custody, defendant fails to prove that this must always be the case. As plaintiff shows in her opposition, the cases cited by defendant do not establish that a public entity may only be held liable for sexual assaults that arise out of an arrest by an on-duty officer. (See Opposition, p. 10:24-12:13.)

The allegations in Farmers Ins. Group, supra, “involved a police officer who sexually harassed three female coworkers who he was supervising. These coworkers were fellow officers who are not as susceptible to the influence of the impressive and intimidating power and prestige officers display in their official capacities because his fellow officers were vested with such power themselves and not subject to his control.” (Opposition, p. 11:4-8.) Likewise, the allegations in Doe 1 v. City of Murrieta, supra, “did not originate while the officer was carrying out his official duties as a law enforcement officer in the field . . . ‘the officer’s sexual misconduct was not against a member of the general public — it was against individuals who worked with Boyed and were trained and supervised by him.’” (Id. at p. 11:21-25 [citing City of Murrieta, supra, at p. 909].) In sum, the cases cited by defendant “are dissimilar to this case since they do not address the issue of a police officer who meets a vulnerable member of the general public while he is on duty, and in the scope of his employment, who then misuses his official authority and the visible symbols of that authority by engaging in sexually assaultive behavior over that person.” (Opposition, p. 12:8-12.)

Here, plaintiff has alleged that she made multiple official complaints to the Sheriff’s Department about her ex-husband’s violations of the restraining order; “on numerous prior occasions” . . . she “was turned away.” (FAC ¶ 13.) Eventually, plaintiff spoke to defendant Clark, who was the first Sheriff’s deputy to take her complaints seriously. She alleges that Clark “wrote down his personal phone number” and directed her to “call him directly if Plaintiff sees her ex-husband at her house and that Defendant Clark would be there right away.” (Id. at ¶ 14.) Clark further “advised plaintiff not to call the sheriff’s station, but rather, to call Clark directly, as the sheriff’s station would take too long, whereas Clark would arrive much faster.” (Ibid.) Over the next few weeks, plaintiff communicated directly with Clark about problems with her ex-husband, however “each conversation turn[ed] sexual in nature as a result of Clark’s insistence.” (Id. at ¶ 17, see generally, Id. at ¶¶ 15-20.) After several weeks, Clark asked plaintiff to visit him at his home. (See Id.at ¶¶ 20-21.) Plaintiff felt “hopeless and helpless” and “agreed to drive out to Palmdale to meet with Clark as he was the only deputy that had taken time to listen to Plaintiff’s concerns and was willing to help Plaintiff.” (Id. at ¶ 21.) Because plaintiff “believed that defendant Clark would help her if she slept with him,” she eventually “gave into defendant Clark’s sexual advances.” (Ibid.) In summary, plaintiff “made no attempt to resist or disobey the actions of Defendant Clark because Clark was a LASD deputy, and used the color of law to force and otherwise coerce Plaintiff to submit to his sexual advances in exchange for his assistance in proving that Plaintiff’s ex-husband was violating a court-ordered restraining order.” (Id. at ¶ 32.)

As noted above, the rationale for holding public entities liable for the torts committed by police officers is that “[o]ur society has entrusted police officers with enforcing its laws and ensuring the safety of the lives and property of its members.” (Mary M., supra, at p. 221.) A police officer certainly violates that trust by abusing his power to assault a victim who is in his custody. Defendant’s demurrer fails to explain how that trust is not equally violated when an on-duty officer abuses his authority to assault “a vulnerable member of the general public” who simply asks the officer to perform his duty to enforce the law. (See Opposition, p. 12:8-12.)

Further, the Court notes the dates of the cases on which defendant relies:

White v. County of Orange 1985

John R. v. Oakland Unified School Dist. 1989

Mary M. v. City of Los Angeles 1991

Farmers Ins. Group v. Santa Clara County 1995

Lisa M. v. Henry Mayo Newhall Mem. Hosp. 1995

Doe 1 v. City of Murietta 2002

These cases are mostly 20-30 years old. As we have learned from the #MeToo movement, times have changed. What might have been excusable behavior – or behavior for which the employer was not previously liable – is no longer so easily excused. Men in power are no longer being given a free pass to sexually exploit vulnerable victims.

It is not this Court’s role on demurrer to determine if the plaintiff’s allegations are true. But she has certainly alleged sufficient facts to pursue her causes of action.

Accordingly, defendant’s demurrer to the first, second, fourth, and fifth causes of action is OVERRULED.

Defendant improperly brings a general demurrer against only part of the second cause of action

Plaintiff’s second cause of action alleges that all defendants violated her civil rights by way of violating Civil Code section 51.9, 52, 52.1, 52.3, and 52.4. (See FAC ¶ 37.) Defendant demurs to this cause of action on the ground that sections 51.9, 52.1, 52.3, and 52.4 are inapplicable. (See Demurrer, p. 13:11-14:3.)

“A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer.” (Edmon & Karnow, Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 7:42.2.) Here, defendant’s demurrer to the second cause of action is a general demurrer on the ground that “it fails to state facts sufficient to constitute a cause of action.” (See Demurrer, p. 3:5-7; See Edmon & Karnow, supra, at ¶ 7:39.) Because defendant fails to challenge plaintiff’s claims under Civil Code section 52, defendant improperly seeks to bring a general demurrer against only part of a cause of action.

Accordingly, the demurrer to the second cause of action is OVERRULED.

Third Cause of Action: Negligent Retention and Supervision

Finally, defendant demurs to the third cause of action on the grounds that it cannot be held directly liable under a theory of general negligence, it has no liability for failure to train or supervise defendant Clark, and that the pleading is uncertain because it is based on conclusory allegations that fail to explain how defendant could have known of any need to protect plaintiff from Clark prior to her eventual complaint about him. (See Demurrer, p. 11:15-13:8.) Specifically, defendant argues that the FAC:

“does not state how the County knew or reasonably should have known anything, particularly since the alleged misconduct took place outside of a police station. While it claims that the County knew or should have known that Clark was unfit ‘because of his inappropriate behavior, harassment, and similar conduct (FAC ¶ 49), the allegation appears to concern his conduct relative to plaintiff, not any supposed prior misconduct. The complaint does not allege anything that the County should have known beforehand, nor any way that the County should have learned before the plaintiff complained about Clark. To the contrary, the complaint demonstrates that when the plaintiff complained, she got the County’s immediate attention and response.” (Demurrer, p. 12: 25-13:8.)

Plaintiff’s opposition argues that, notwithstanding the general requirement that a claim for negligent retention or supervision against a public entity must have a statutory basis, the claim “may be had against a public entity if triable issues of material fact exist to establish the cause of action.” (See Opposition, p. 13:3-6 [citing City of Murrieta, supra, at p. 914].) The court’s conclusion in City of Murrieta is easily distinguishable from the allegations in plaintiff’s FAC. In City of Murrieta, the Court of Appeal concluded that the trial court had erred in granting summary judgment to defendants on plaintiff’s negligent supervision claim because there were triable issues of material fact as to whether defendants knew or should have known that the officer was sexually exploiting plaintiffs or posed a risk to doing so. (See Id. at p. 914.) Specifically, the court noted that there was sufficient evidence to support the conclusion that the officer’s sexual involvement with plaintiffs was “reasonably foreseeable” because:

“Boyd and plaintiffs were spending an unusual amount of time together, going on frequent one-on-one ride-alongs late at night. Plaintiff were also frequently calling Boyd at the station and often waited for him at the station for a ride home. Sgt. Attebery was aware of this activity and plaintiffs’ infatuation with Boyd.” (Ibid.)

Here, unlike City of Murriteta, the FAC does not allege facts to suggest that any other member of the Sheriff’s Department knew or should have known about Clark’s alleged behavior. The FAC suggests that plaintiff spoke to Clark at the Sheriff’s Station on one occasion on 12/12/16 and thereafter communicated with him at his “personal phone number.” (See FAC, ¶¶ 13-14.) Their subsequent interactions allegedly took place over the phone, outside of plaintiff’s house, and at Clark’s house. (See Id. at ¶¶ 15-22.) The allegations suggest that plaintiff made her first complaint about Clark on 01/11/17 and that she was contacted by Internal Affairs within a week to schedule an interview about her accusation. (See Id. at ¶¶ 25-26.) Plaintiff does not allege that Clark had a documented history of prior similar behavior that should have put the County on notice that he posed a risk to the public.

Based on the allegations in the FAC, plaintiff has failed to allege facts sufficient to show that defendant knew or should have known that Clark was unfit for duty or posed a risk to members of the public.

Accordingly, defendant’s demurrer to the third cause of action is SUSTAINED.

MOTION TO STRIKE

ANALYSIS:

Defendant separately moves to strike the references to Civil Code sections 51.9, 52, 52.1, and 52.4 from the heading of the second cause of action as well as from paragraph 37 of the FAC. (See Notice of Motion, p. 2:8-15.) Defendant moves to strike these references on the ground that the accompanying allegations fail to state a cause of action under the statutes and that the references are therefore “irrelevant or improper or are not drawn in conformity with the laws of this State.” (Id. at p. 2:16-18.)

Section 51.9.

Civil Code section 51.9 creates liability for sexual harassment when a plaintiff proves, among other things, the existence of a “business, service, or professional relationship between the plaintiff and defendant.” (Id. at subd. (a)(1).) The relevant relationships include, “but [are] note limited to,” any of the following persons:

“(A) Physician, psychotherapist, or dentist. . . . (B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer. (C) executor, trustee, or administrator. (D) landlord or property manager. (E) teacher. [or] (F) A relationship that is substantially similar to any of the above.” (Id. at subd. (a)(1)(A)-(F).)

Defendant argues that plaintiff cannot maintain a claim under Section 51.9 because the applicable relationships “are business relationships (e.g., attorney and client). Any relationship here is not among those listed in the statute nor in any way similar.” (Motion, p. 4:21-25.) In opposition, plaintiff argues that the FAC sufficiently alleges that “Defendant was in a business, service, or professional relationship with Plaintiff.” (See Opposition, p. 3:3-4.) The FAC alleges that defendant Clarks’ “trusted status in the community afforded him by virtue of being a deputy with Defendant LASD and his offer of assistance under color of law establishes a professional service relationship between him and Plaintiff that is based on trust, ethical application of authority and fairness to all individual Defendants were charged to protect.” (See FAC ¶ 40.) For present purposes, this allegation is sufficient. Defendant argues, in conclusory fashion, that the relationship between the police and the public that they are entrusted to protect is substantively different than the relationships identified in Section 51.9. However, defendant presents no support for this claim.

Section 52.1

Civil Code section 52.1 imposes liability on any person “whether or not acting under color of law” who “interferes by threat, intimidation, or coercion . . . with the exercise or enjoyment by any individual . . . of rights secured by the Constitution or laws of the United States, or . . . laws of this state.” (Civ. Code § 52.1, subd. (a).)

Defendant argues that it cannot be liable under section 52.1 because the FAC does not allege any threats, intimidation, or coercion. (See Motion, p. 5:1-2.) This argument ignores the plain language of the FAC, which, as plaintiff summarizes in her opposition, alleges that:

“Defendant Clark drove to Plaintiff’s home, lured and coerced Plaintiff into meeting him outside of her house, as well as meeting him at his own house, under the auspices of his official authority to help her with her current situation involving her ex-husband’s continued violations of a restraining order.” (Opposition, p. 4:2-5 [citing FAC ¶¶ 18-21].)

The allegations in the FAC clearly support the inference that Clark coerced plaintiff into engaging in a sexual relationship in exchange for his promise to help. This is sufficient to maintain a cause of action under section 52.1.

Section 52.3

Civil Code section 52.3 provides that “no governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, shall engage in a pattern or practice of conduct by law enforcement officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California.” (Civ. Code § 52.3, subd. (a).)

Defendant argues that plaintiff cannot prevail on a cause of action under section 52.3 because “the alleged conduct here appears to be entirely singular to one officer, not the result of a combination of officers acting together, and there is no allegation of fact to show any combination, pattern, or practice.” (Motion, p. 5:3-8.)

Plaintiff acknowledges that the FAC does not currently allege a “pattern or practice” of sexual misconduct by LASD but now alleges that she “is informed and believes and on that basis alleges that there has been a ‘pattern or practice’ of sexual misconduct by Los Angeles Sheriff’s Department deputies against members of the public” and seeks leave to amend the complaint to allege sufficient additional facts. (See Opposition, p. 4: 19-24.)

Accordingly, the references to Civil Code section 52.3 are stricken from the FAC and plaintiff is granted leave to amend the allegations.

Section 52.4.

Defendant argues that plaintiff cannot state a cause of action under Civil Code section 52.4 because it expressly excludes the possibility of vicarious liability. (See Motion, p. 5:9-10.) Section 52.4 provides, in relevant part:

“Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.” (Civ. Code § 52.4, subd. (e).)

In opposition, plaintiff maintains that the County “has independent liability based on its policies and procedures for its failure to protect Plaintiff, leading to a violation of her civil rights. As such, Defendant’s Motion to Strike should be denied.” (See Opposition, p. 5:12-15.) While it is possible that plaintiff may prove that defendant has independent liability, her opposition implicitly concedes that any such liability would not arise under section 52.4 as a result of the County “personally commit[ing] an act of gender violence.” (See Ibid.)

Accordingly, the references to Civil Code section 52.4 are stricken from the FAC and plaintiff is granted leave to amend the allegations.