Case Number: BC530751    Hearing Date: July 08, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

TRACY STROUD, et al. )
) Case Number BC530751
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
FRESCO II RESTAURANT, et al., ) July 8, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer and motion to strike of Defendant Anthony Murachanian to the First Amended Complaint came on for hearing on July 8, 2014. Plaintiffs Tracy Stroud and Adriana Zaragoza appeared through their counsel of record, ________________. Defendant Anthony Murachanian appeared through his counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant Anthony Murachanian is OVERRULED as to the fourth and fifth causes of action, and OVERRULED as to the third with respect to Plaintiff Adriana Zaragoza and SUSTAINED with leave to amend through July 29, 2014 with respect to Plaintiff Tracy Stroud. The motion to strike of Defendant is DENIED.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

TRACY STROUD, et al. )
) Case Number BC530751
Plaintiffs, )
) STATEMENT OF DECISIONS
V )
) Date of Hearing:
FRESCO II RESTAURANT, et al., ) July 8, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of both the termination of Plaintiffs Tracy Stroud (“Stroud”) and Adriana Zaragoza (“Zaragoza,” collectively “Plaintiffs”), who were waitresses at defendant Fresco II Restaurant (“Fresco”), and alleged incidents of sexual battery committed subsequent to the March 2013 suspension of Plaintiffs. During a birthday party held at Fresco, Plaintiffs were allegedly drugged, and Zaragoza was allegedly sexually assaulted by Defendant Anthony Murachanian (“Defendant”).

2. Plaintiffs filed their Complaint on December 17, 2013 alleging causes of action for sexual harassment, wrongful termination, sexual battery, and intentional infliction of emotional distress. Defendants Fresco, Lenny Graffeo, and Lea Graffeo filed their Answer on February 6, 2014. Pursuant to an amendment to the Complaint on March 26, 2014, Defendant was named a party to the action.

3. The First Amended Complaint (“FAC”) was filed by Plaintiffs on June 6, 2014, alleging an additional cause of action for sexual harassment of Zaragoza. The FAC was signed by counsel on May 13, 2014, and apparently circulated first to Defendants before being filed with the Court.

4. As such, Defendant filed his demurrer to the FAC and motion to strike on June 4, 2014, two days before the FAC was filed with the Court. Plaintiffs filed their opposition to both on June 24, 2014.

5. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

6. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

7. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

8. Third Cause of Action (Sexual Battery) – A person commits a sexual battery if they act: (1) (a) with intent to cause harmful or offensive contact with an intimate part of another and (b) a sexually offensive contact with that person directly or indirectly results; (2) (a) with intent to cause harmful or offensive contact with another by use of his or her intimate part and (b) sexually offensive contact with that person directly or indirectly results; or (3) (a) to cause imminent apprehension of conduct in (1) or (2) and, (b) sexually offensive contact with that person directly or indirectly results. Cal. Civ. Code §1708.5(a).

9. On demurrer, Defendant attempts to assert that the Complaint fails to state how the sexual intercourse complained of in the Complaint was “unconsented or a battery.” Demurrer at 5:15. Defendant states that he “cannot determine from the pleading what contact he had with Plaintiff Stroud that constitutes sexual battery.” Id. at 6:13-14. Further, as to Zaragoza, Defendant argues that she “does not allege how this was a battery, particularly if it was consensual.” Id. at 6:15-16.

10. With respect to Zaragoza, Defendant’s argument is unavailing. Paragraph 45 of the FAC clearly states that she was subjected to unconsented sexual intercourse at the hands of defendants. Incorporating the allegations of ¶14, where Plaintiffs state that Zaragoza “was sexually assaulted by” Defendant, it is clear that Plaintiffs allege that Zaragoza, without her consent, was subjected to sexual intercourse with Defendant. In light of these factual allegations, and the liberal construction afforded to pleadings on demur, Plaintiffs have alleged sufficient facts with respect to Zaragoza with respect to Defendant.

11. With respect to Stroud, however, the FAC does not include sufficient factual allegations to infer that contact was had with anyone’s intimate part. Section 1708.5 requires, as a precursor to liability, that acts are carried with the intent of causing harmful or offensive contact either (1) with an intimate part; (2) by an intimate part; (3) the imminent apprehension of (1) or (2). As pled, the facts do not have the requisite specificity with respect to what acts were committed upon Stroud to sustain a sexual battery cause of action.

12. Accordingly, the demurer to the third cause of action is OVERRULED with respect to Plaintiff Zaragoza and SUSTAINED with leave to amend with respect to Plaintiff Stroud.

13. Fourth Cause of Action (Intentional Infliction of Emotional Distress) – The elements for IIED are: (1) outrageous conduct by the defendant; (2) intentionally or recklessly causing emotional distress; (3) resulting in severe emotional distress. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259. A common formulation for this is “conduct exceeding that which is usually tolerated by a decent society and of a nature which is expected to cause, and does cause, mental distress. Such outrageous behavior occurs where a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Logan v. Southern Cal. Rapid Transit Dist., (1982) 136 Cal.App.3d 116, 130. “The only exception to [the rule that conduct be directed primarily at plaintiff is] when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 905.

14. Defendant argues that the FAC is deficient because it fails to specifically allege what Defendant has done to cause distress. This is unavailing. Paragraph 54 of the FAC specifically states that all prior allegations in the FAC are incorporated into the fourth cause of action, including the unconsented sexual intercourse alleged in ¶45. Without a doubt, the commission of unconsented sexual intercourse with another is outrageous conduct that any rational person could know would result in severe emotional distress. By intentionally committing such an act, one intentionally causes emotional distress or engages in reckless conduct that has a high risk of such causation. The facts as alleged, therefore, are sufficient to state a cause of action for intentional infliction of emotional distress.

15. Accordingly, the demurrer is OVERRULED as to the fourth cause of action.

16. Fifth Cause of Action (Sexual Harassment) – Defendant cites Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, for the proposition that FEHA “does not also impose personal liability for harassment on nonsupervisory coworkers.” Id. at 1140. However, as Plaintiff correctly points out, Carrisales has since been superseded by the Legislature. See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1186 (“After we decided Carrisales, the Legislature abrogated our holding. . . . As a result, the FEHA’s harassment provision now provides that ‘[a]n employee of an entity subject to this division is personally liable for any harassment prohibited by this section . . . in enacting subdivision (j)(3), the Legislature indisputably expressed its intent to impose individual liability on employees who harass”).

17. As such, Defendant has provided no basis upon which to claim the FAC’s fifth cause of action is defective.

18. Accordingly, the demurrer is OVERRULED as to the fifth cause of action.

19. Standard for motion to strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Cal. Code Civ. Proc., § 436(a). In granting a motion to strike made under Code of Civil Procedure § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Cal. Code Civ. Proc., § 436(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Cal. Code Civ. Proc., § 431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Cal. Code Civ. Proc., § 436(b).

20. Defendant urges that mention in the FAC of punitive damages be struck because Plaintiffs have not pled sufficient facts to show oppression, fraud, or malice as required by Civil Code §3294(a).

21. For purposes of pleading punitive damages, “malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code §3294(c)(1). As noted above, ¶45 of the FAC alleges that Defendant engaged in unconsented to sexual intercourse with Plaintiffs. This alone, if true, is sufficient to qualify as “despicable conduct” that is done with “willful and conscious disregard” of the rights of plaintiff.

22. Accordingly, the motion to strike is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE