Case Number: BC664531 Hearing Date: March 19, 2018 Dept: 32

Melissa Rajaii,

Plaintiff,

v.

County of Los Angeles, et al.,

Defendants.

Case No.: BC664531

Hearing Date: March 19, 2018

[TENTATIVE] order RE:

(1) Demurrer of Assistance League of Los Angeles to first amended complaint

(2) County of Los Angeles’ Demurrer to first amended complaint

BACKGROUND

Plaintiff Melissa Rajaii (“Plaintiff”) alleges that she was sexually assaulted, harassed, and abused by Defendant Edgar Foster (“Foster”), an employee of Defendant County of Los Angeles (“County”), while performing community service for Defendant Assistance League of Los Angeles (“Assistance League”). Plaintiff alleges that Defendants were aware of Edgar’s prior sexual misconduct and exploitation of volunteers, but failed to take action to prevent further abuses. Plaintiff asserts causes of action for (1) 42 U.S.C. § 1983; (2) assault and battery; (3) negligence; (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress.

DISCUSSION

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

A. Assistance League’s Demurrer

Assistance League demurs to the second and fourth causes of action for sexual battery and intentional infliction of emotional distress (“IIED”) on the grounds that it cannot be held liable for the action of Defendant Foster. The demurrer is well-taken.

Under the doctrine of respondeat superior, an employer may be held “vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 296.) “[A]n intentional tort gives rise to respondeat superior liability only if it was engendered by the employment. . . .” (Id. at 298 [emphasis added].) Thus, it is possible to allege a cause of action for an intentional tort against an employer based on the action of the employer’s employee. Here however, no employment relationship is alleged between Assistance League and Foster. Plaintiff clearly alleges that Foster was an employee of County. (FAC ¶ 3.) As such, the doctrine of respondeat superior does not apply, and no cause of action is stated against Assistance League.

While plaintiff asks for leave to amend, Plaintiff fails to demonstrate how the FAC could be amended to state a claim against the Assistance League. Accordingly, Assistance League’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

B. County’s Demurrer

On December 13, 2017, the Court sustained County’s motion for judgment on the pleadings to the entire complaint on the grounds that Plaintiff failed to allege a County-wide custom or policy to support a claim under 42 U.S.C. § 1983; Plaintiff failed to identify a statutory basis for holding County—a public entity—liable as required by Cal. Gov. Code § 815(a); and there were no allegations that suggest that Foster was acting within the scope of his employment when he sexually assaulted and harassed Plaintiff. While Plaintiff has now removed County as a Defendant to her Section 1983 claim, Plaintiff’s FAC fails to correct the defects described above.

Courts have repeatedly held that sexual assault and harassment falls outside of the scope of employment. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 997 [“Since the deliberate targeting of an individual employee by another employee for inappropriate touching and requests for sexual favors is not a risk that may fairly be regarded as typical of or broadly incidental to the operation of a county jail, such conduct must be deemed to fall outside the scope of a deputy sheriff’s employment.”].) Here, Foster was the supervisor overseeing a volunteer community service project. Sexual assault and harassment cannot be regarded as typical or incidental to such work. Foster’s alleged misconduct is unrelated to the community service project and was personal in nature. Plaintiff even alleges that Foster committed said acts “for FOSTER’s sexual gratification.” (FAC ¶ 11.) As such, the acts attributed to Foster fall outside the scope of his employment with County. This is fatal to all of Plaintiff’s claims.

To the extent that Plaintiff’s causes of action are premised on the theory that County negligently hired and/or supervised Foster, such a claim would also fail. There is no statutory basis for “a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices,” (de Villers v. County of San Diego (2007) 156 Cal. App. 4th 238, 252.) and it does not appear that plaintiff can assert a “special relationship/” (See, C.A. v. William S. Hart Union High School Dist., (2012) 53 Cal. 4th 861.)

While plaintiff asks for leave to amend, Plaintiff fails to demonstrate how the FAC could be amended to state a claim against County. Accordingly, County’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.