Case Name: Morgan Trappen-Fortes v. Michael Fortes, et al.

Case No.: 17CV305617

(1) Demurrer to the Third Amended Complaint
(2) Motion to Strike the Third Amended Complaint

Plaintiff Morgan Trappen-Fortes (“Morgan”) is the stepdaughter of defendant Michael Fortes (“Michael”). (Third Amended Complaint (“TAC”), ¶5.) Defendant Daniel Fortes (“Daniel”) is defendant Michael’s brother and plaintiff Morgan’s uncle by marriage. (TAC, ¶9.) Defendants Michael and Daniel are principals, co-owners, agents, employees, and officers of defendant Fortes Brothers Towing, Inc. (“FBT”). (TAC, ¶¶7 – 8.)

Plaintiff Morgan was 5 years old when her mother married defendant Michael on March 9, 2002. (TAC, ¶19.) Defendant Michael sexually abused plaintiff Morgan between 2006 and 2013. (TAC, ¶¶21 – 40.)

Defendants Michael and Daniel were known to frequent under-age child prostitutes ranging from about 14 to 16 years of age. (TAC, ¶27.)

Defendant Michael worked from home for an extended period of time of approximately six months in 2011. (TAC, ¶30.) Defendant Michael suffered from a thyroid condition, Graves disease, during this time and often worked from home due to illness and discomfort from his medication. (TAC, ¶30.) As defendant Michael was limited in his ability to work outside the home due to Graves disease, defendants Daniel and Michael assigned and allowed defendant Michael to work from home at a time when they both knew plaintiff Morgan was homeschooling and would be in close proximity to defendant Michael. (TAC, ¶¶27 – 28.)

Plaintiff Morgan worked for defendant FBT during the summer of 2011 and 2012 during which time defendant Michael continued his sexual abuse of plaintiff Morgan. (TAC, ¶29.)

On January 25, 2017, plaintiff Morgan commenced this action by filing a complaint.

On September 19, 2017, plaintiff Morgan filed a first amended complaint against defendants Michael, FBT, and Daniel asserting causes of action for:

(1) Negligence
(2) Negligent Hiring [versus Daniel]
(3) Negligent Supervision
(4) Negligent Retention
(5) Assault
(6) Sexual Battery by an Adult in a Position of Authority over a Minor in Violation of Civil Code Section 1708.5, 1708.5.5.
(7) Domestic Violence in Violation of Civil Code Section 1708.6
(8) False Imprisonment
(9) Negligent Infliction of Emotional Distress
(10) Intentional Infliction of Emotional Distress
(11) Gender Violence
(12) Duress
(13) Civil Harassment in Violation of California Code of Civil Procedure Section 527.6

On January 2, 2018, defendants FBT and Daniel filed a demurrer to plaintiff Morgan’s FAC. On April 5, 2018, the court issued an order sustaining defendants Fortes Brothers Towing, Inc. and Daniel Fortes’s demurrer to the first amended complaint.

On April 16, 2018, plaintiff Morgan filed a second amended complaint (“SAC”). A minute order for a case management conference held on November 6, 2018 stated, in relevant part, “Order for filing of 3rd Amended Complaint is signed in open court and served on counsel. Court sets Motion for Demurrer at defense Counsel’s request on January 29, 2019 at 9 a.m. in Dept. 19.”

On November 16, 2018, the court signed an order pursuant to a stipulation to have defendants Michael, Daniel, and FBT’s motion to strike the TAC heard on January 29, 2019 at 9:00 a.m.

On December 21, 2018, defendants filed a demurrer to the TAC and also filed a motion to strike the TAC.

On January 15, 2019, plaintiff filed an opposition to the demurrer only.

A minute order dated January 29, 2019 indicated the TAC had not been filed, directed plaintiff to file the TAC, and continued the hearing on the defendants’ demurrer and motion to strike to April 2, 2019.

On March 13, 2019, plaintiff filed the operative TAC which continues to assert the same thirteen causes of action previously asserted in the FAC.

I. Defendants’ motion to strike [a portion of] the TAC is unopposed and GRANTED.

Defendants move to strike paragraph 162 of the TAC. Plaintiff Morgan did not file any opposition to defendants’ motion to strike. Accordingly, defendants’ motion to strike paragraph 162 of the TAC is GRANTED.

II. Defendants Michael, Daniel, and FBT’s demurrer to plaintiff Morgan’s TAC is SUSTAINED, in part, and OVERRULED, in part.

A. Negligence.

1. Defendant Michael.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI, No. 400.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.)

Defendant Michael contends the claims against him are for intentional torts and it is improper to assert liability against him under a negligence theory. Defendant Michael offers no legal authority to support this argument. Defendant Michael is alleged to be plaintiff’s stepfather since March 9, 2002. “[P]arents are under a common law duty to protect their children.” (People v. Rolon (2008) 160 Cal.App.4th 1206, 1215.) At the very least, defendant Michael’s liability under a negligence theory may be premised on his duty as a parent and failure to protect plaintiff Morgan from harm.

Accordingly, defendant Michael’s demurrer to the first cause of action in plaintiff Morgan’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is OVERRULED.

2. Defendant Daniel.

Plaintiff Morgan alleges defendant Daniel “was a co-owner, principal, agent, managing agent, employee and Corporate officer of and for Defendant [FBT]. In the above-referenced roles he had the authority to hire and allocate positions to employees. In addition to this, he had the authority to determine whether corporate agents and employees would be allowed to work or otherwise perform their duties at home. Furthermore, he was aware of Defendant MICHAEL FORTES’ sexual attraction to underage girls. Defendant DANIEL FORTES had in fact frequented underage prostitutes with Defendant MICHAEL FORTES, and he knew that Defendant MICHAEL FORTES would be working at home for [FBT] while Plaintiff [Morgan], his underage niece, would be at home for extended periods of time, with Defendant MICHAEL FORTES.” (TAC, ¶58.)

“In the above-referenced roles Defendant DANIEL FORTES had a duty to protect third parties, including but not limited to Plaintiff MORGAN FORTES, from reasonably foreseeable harm from [FTB’s] employees and agents and to take all reasonable steps necessary to prevent said reasonably foreseeable harm.” (TAC, ¶60.)

“Defendants, and each of them, breached their duty of care to MORGAN FORTES by allowing Defendant MICHAEL FORTES to work out of a home office at the family residence despite knowing that MICHAEL FORTES frequented child prostitutes.” (TAC, ¶66.)

As plaintiff Morgan’s uncle, defendant Daniel does not owe a common law duty to protect his niece. “One of the most important, long standing, and recently reaffirmed principles of American tort law: You are not responsible for mere inaction without some sort of special relationship which creates a duty to take some action; the law does not require people to be good samaritans (i.e., the traditional “no duty to aid” rule).” (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 717.) Plaintiff Morgan, in opposition, contends there is some special relationship by virtue of Daniel being a “close family member.” Plaintiff Morgan, however, cites no legal authority to support a duty based solely upon a close family relationship outside of the parent-child relationship.

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation.]” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

“ ‘An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]’ [Citation.] ‘Liability for negligent hiring … is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.’ [Citation.] Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ [Citation.]” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; see also Federico v. Superior Court (1997) 59 Cal.App.4th 1207.)

Plaintiff Morgan apparently equates foreseeability with liability to suggest that Daniel may be individually liable because he had reason to know or foresee that defendant Michael would sexually abuse her. However, the liability discussed in connection with negligent hiring, supervision, or retention is as to the employer, not the individual in the employer’s organization who had reason to know or foresee of a particular risk or hazard. Plaintiff Morgan offers no factual or legal authority to support imposition of individual liability against defendant Daniel.

Accordingly, defendant Daniel’s demurrer to the first cause of action in plaintiff Morgan’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is SUSTAINED WITHOUT LEAVE TO AMEND.

3. Defendant FBT.

Defendant FBT understands its liability on the negligence cause of action to be premised upon a theory of respondeat superior but contends such theory fails because there are no allegations that defendant Michael was acting in the scope of his employment in committing the sexual abuse of his stepdaughter, plaintiff Morgan.

“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.) “Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 – 297 (Lisa M.).) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’” (Lisa M., supra, 12 Cal.4th at p. 299; see also CACI, Nos. 3720, 3722, and 3723.)

In Maria D. v. Westec Residential Security, Inc. (2000) 85 Cal.App.4th 125 (Maria D.), an on-duty security guard employed by defendant security company pulled the plaintiff over under the pretense of being a police officer and then raped her. The trial court entered summary judgment in favor of the employer. The appellate court affirmed holding, as a matter of law, that the defendant employer could not be vicariously liable under the doctrine of respondeat superior since the causal nexus between the sexual assault and the security guard’s employment was too attenuated for a trier of fact to conclude the misconduct was within the scope of his employment. The court undertook a historical analysis of the legal landscape with regard to respondeat superior.

The Maria D. court relied, in part, on the Supreme Court decision in Lisa M. where the plaintiff was sexually molested by an ultrasound technician employed by a hospital. The rule set forth in Lisa M. begins with determining whether “the assault or other intentional tort [had] ‘a causal nexus’ to the employee’s work.” (Maria D., supra, 85 Cal.App.4th at p. 143.) “In the Supreme Court’s view, the required causal nexus was to be distinguished from ‘but for’ causation and it was not enough that the employment brought the tortfeasor and the victim together. The nature of the required additional link has been described in various ways: ‘[T]he incident leading to injury must be an ‘outgrowth’ of the employment; the risk of tortious injury must be ‘inherent in the working environment’ or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’” (Id.; citations omitted.) Alternatively,

“California courts have also asked whether the tort was, in a general way, foreseeable from the employee’s duties. Respondeat superior liability should apply only to the types of injuries that “as a practical matter are sure to occur in the conduct of the employer’s enterprise.” [Citation.] The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” [Citation.] The Supreme Court continued: “[T]he tortious occurrence must be ‘a generally foreseeable consequence of the activity.’ In this usage . . . foreseeability ‘merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’ [Citations.] [This] foreseeability test is useful ‘because it reflects the central justification for respondeat superior [liability]: that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.’ [Citation.]

(Id.)

Applying those rules to the facts in Maria D., the court held, “the causal nexus between the sexual assault and the security guard’s employment was too attenuated for a trier of fact to conclude that the misconduct was within the scope of his employment.” (Id. at p. 146.) “[T]he mere fact the security guard had an opportunity to abuse the trappings of his profession does not render Westec vicariously liable for the rape.” (Id.) “That the employment brought tortfeasor and victim together in time and place is not enough.” (Id.)

For respondeat superior liability to apply, the security guard’s acts must have been engendered by or be an outgrowth of his employment. [Citation.] Here, the security guard’s motivating emotions were not fairly attributable to any work-related event or condition. [Citation.] There was no work-related dispute or emotional involvement with plaintiff that motivated or triggered the sexual assault. [Citations.] The security guard’s aberrant decision to assault plaintiff did not arise out of the performance of his duties as a private security guard. [Citation.] His motivation was strictly personal and unrelated to the protection of Westec’s clients’ persons and property or the performance of any other duty of a security guard. [Citation.] The security guard simply took advantage of a woman driving alone in the early morning hours to commit an assault for reasons unrelated to his work. [Citation.] The sexual assault was not typical of nor broadly incidental to the security guard’s employment duties. [Citation.] The security guard substantially deviated from his employment duties solely for personal purposes. [Citations.] The assault was not motivated or triggered by anything in the employment activity but was the result of only, in the words of the Supreme Court, “propinquity and lust.” [Citation.]

(Id. at p. 147.)

With regard to foreseeability, the Maria D. court held the misconduct was not foreseeable from the nature of the security guard’s duties. The security guard did not have authority to pull plaintiff over, to conduct field sobriety tests (which he did), or to order plaintiff into his automobile. “The security guard’s sexual assault of plaintiff was not fairly attributable to any peculiar aspect of Westec’s business operations. It was the independent product of his aberrant decision to engage in conduct unrelated to his duties.” (Id.)

In Lisa M., a pregnant plaintiff sustained injury from a fall and sought treatment in defendant hospital’s emergency room. The treating physician ordered an ultrasound which was performed by an ultrasound technician, a hospital employee. The technician performed the prescribed examination. “The exact placement and movement of the wand varies with the patient’s body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline.” (Lisa M., supra, 12 Cal.4th at p. 295.) Under false pretenses of determining the sex of the baby, the technician told plaintiff that, “he would need to scan ‘much further down,’ and it would be uncomfortable. With plaintiff’s cooperation, [the technician] pulled plaintiff’s shorts down and began to scan in her pubic hair. According to plaintiff, he also inserted the wand in her vagina. After a while he put down the wand and fondled plaintiff with his fingers. Plaintiff testified he moved his fingers ‘around everywhere down there.’ While fondling plaintiff, Tripoli said he needed to excite her to get a good view of the baby.” (Id.)

With regard to the causal nexus between the sexual assault and the ultrasound technician’s employment, the Lisa M. court explained and concluded,

a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work. Tripoli’s job was to perform a diagnostic examination and record the results. The task provided no occasion for a work-related dispute or any other work-related emotional involvement with the patient. The technician’s decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible. “If . . . the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.”

(Id. at p. 301.)

Under a foreseeability analysis, the court reached the same conclusion.

In arguing Tripoli’s misconduct was generally foreseeable, plaintiff emphasizes the physically intimate nature of the work Tripoli was employed to perform. In our view, that a job involves physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault. [Citation.] To hold medical care providers strictly liable for deliberate sexual assaults by every employee whose duties include examining or touching patients’ otherwise private areas would be virtually to remove scope of employment as a limitation on providers’ vicarious liability. In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to “propinquity and lust.” [Footnote.]

Here, there is no evidence of emotional involvement, either mutual or unilateral, arising from the medical relationship. Although the procedure ordered involved physical contact, it was not of a type that would be expected to, or actually did, give rise to intense emotions on either side. We deal here not with a physician or therapist who becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship [citations], but with an ultrasound technician who simply took advantage of solitude, access and superior knowledge to commit sexual assault. [Footnote.]

Although the routine examination Tripoli was authorized to conduct involved physical contact with Lisa M., Tripoli’s assault on plaintiff did not originate with, and was not a generally foreseeable consequence of, that contact. Nothing happened during the course of the prescribed examinations to provoke or encourage Tripoli’s improper touching of plaintiff. [Citations.] The assault, rather, was the independent product of Tripoli’s aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, Tripoli’s actions were not foreseeable from the nature of the work he was employed to perform.

(Id. at pp. 302 – 303.)

Just as in Maria D. and Lisa M., defendant FBT cannot, as a matter of law, be vicariously liable under the doctrine of respondeat superior since the causal nexus between the sexual assault and the defendant Michael’s employment was too attenuated for a trier of fact to conclude the misconduct was within the scope of his employment. In opposition, plaintiff Morgan expressly concedes defendant FBT’s liability is not derivatively based, but is instead based upon defendant FBT’s direct liability under theories of negligent supervision, hiring, and retention. (See section V(B), p. 9 of the Memorandum of Points and Authorities in Opposition, etc.—“Defendants’ Contention that the TAC Fails Based on Respondeat Superior Is A Red Herring as Plaintiff Assets [sic] that Defendants’ Liability For the Harm Caused to Plaintiff is Direct, Not Derivative.”)

Accordingly, defendant FBT’s demurrer to the first cause of action in plaintiff Morgan’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Negligent Hiring, Supervision, and Retention.

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation.]” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

“ ‘An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]’ [Citation.] ‘Liability for negligent hiring … is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.’ [Citation.] Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ [Citation.]” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; see also Federico v. Superior Court (1997) 59 Cal.App.4th 1207.)

1. Defendants Michael and Daniel.

Under the authorities cited above, an employer may be liable to a third person for negligently hiring, supervision, or retaining an unfit employee. The authorities do not impose individual liability even as against one who is alleged to be a “co-owner, principal, agent, managing agent, employee and Corporate officer” of the employer.

Accordingly, defendants Michael and Daniel’s demurrer to the second through fourth causes of action in plaintiff Morgan’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent hiring, supervision, and retention is SUSTAINED WITHOUT LEAVE TO AMEND.

2. Defendant FBT.

As mentioned above, liability for negligent hiring, supervision, and retention “will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” In ruling on the prior demurrer to the FAC, the court found the allegations insufficient because the claims were based on defendant Michael’s own knowledge of his sexual attraction to plaintiff Morgan and defendant Michael’s own knowledge of his previous molestation of plaintiff Morgan and the court’s conclusion that defendant Michael’s knowledge could not be imputed to defendants FBT or Daniel. In the TAC, plaintiff Morgan now alleges FBT’s knowledge is based upon defendant Daniel’s actual knowledge of defendant Michael’s sexual proclivities. In demurring, defendant FBT contends these allegations concerning defendant Daniel’s knowledge are “far too tenuous to establish foreseeability on the part of FBT.” However, plaintiff Morgan’s allegations of defendant Daniel’s knowledge are facts which this court must accept as true.

Accordingly, defendant FBT’s demurrer to the second through fourth causes of action in plaintiff Morgan’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent hiring, supervision, and retention is OVERRULED.

C. Intentional Torts.

Defendants FBT and Daniel demur to the fifth through thirteenth cause of action on the basis that there are no allegations of any wrongful conduct by them to support direct liability nor are there any allegations which would subject them to vicarious liability. For example, the fifth cause of action for assault alleges defendant Michael assaulted plaintiff Morgan but goes on to allege, “Defendants, and each of them, had actual or imputed knowledge of Defendant MICHAEL FORTES’ above-referenced actions.” (TAC, ¶88.) “Defendants, and each of them, either expressly or implicitly approved of and/or subsequently ratified Defendant MICHAEL FORTES’ actions as described above.” (TAC, ¶89.) Liability for assault is not based on one’s knowledge of or approval/ratification of an assault by another. (See CACI, No. 1301 [stating the elements of an assault].)

Unlike the FAC, the TAC now also alleges, “Defendants, and each of them, wantonly, recklessly, and in conscious and reckless disregard of Plaintiff MORGAN FORTES’ rights, placed Defendant MICHAEL FORTES as an employee at home to work while Plaintiff MORGAN FORTES was home schooling from the same location. This despite the fact that she was a minor child, and despite the fact that Defendant MICHAEL FORTES had a sexual attraction to minor children, which was known to Defendant DANIEL FORTES.” (TAC, ¶90.)

In opposition, plaintiff Morgan cites Newman v. Larsen (1964) 225 Cal.App.2d 22, 24 (Newman), where the court wrote, “Specific intent is not necessary for the crime of assault with a deadly weapon. [Citation omitted.] Intent may be implied from the commission of wrongful acts evidencing wanton, wilful or reckless disregard for human safety. [Citation omitted.]” Plaintiff Morgan incorrectly cites Newman for the proposition that conscious and reckless disregard for the safety of another may give rise to liability in intentional tort. Newman stands for the proposition that intent may be implied. Assault is an intentional tort. (See CACI, Nos. 1301 and 1320.) There is no allegation that defendants FBT or Daniel intended to assault plaintiff Morgan. At best, the allegations give rise to a theory of negligent supervision or retention which plaintiff Morgan has already asserted in the third and fourth causes of action.

Apart from Newman, plaintiff Morgan proffers no legal authority to support direct liability against defendants FBT and Daniel on the fifth through thirteenth causes of action.

Accordingly, defendants FBT and Daniel’s demurrer to the fifth through thirteenth causes of action in plaintiff Morgan’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED WITHOUT LEAVE TO AMEND