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

Case No.: 17CV305617

Demurrer to the First Amended Complaint

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

Plaintiff Morgan was 5 years old when her mother married defendant Michael on March 9, 2002. (FAC, ¶19.) Defendant Michael sexually abused plaintiff Morgan between 2006 and 2013. (FAC, ¶¶21 – 32.)

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. (FAC, ¶27.)

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

On September 19, 2017, plaintiff Morgan filed the operative FAC against defendants Michael, FBT, and Daniel. The FAC asserts 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 the motion now before the court, a demurrer to plaintiff Morgan’s FAC.

I. Request for judicial notice.

In opposition to defendants FBT and Daniel’s demurrer, plaintiff Morgan requests judicial notice of the FAC and Income and Expense Declarations filed by Michael on December 29, 2014 and June 11, 2014 in Santa Clara County Superior Court case number 6-14-FL-011982, Christine Fortes v. Michael Fortes.

Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

To the extent plaintiff Morgan asks this court to take judicial notice of the existence of the documents, plaintiff Morgan’s request is GRANTED. However, to the extent plaintiff Morgan invites this court to take judicial notice of the truth of any matters asserted in the documents, plaintiff Morgan’s request is DENIED.

Plaintiff Morgan also invites the court to take judicial notice of the truth of matters found in defendant Michael’s deposition testimony. Plaintiff Morgan cites Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477 (Bounds) where the court wrote, “a court may take judicial notice of the pleading party’s discovery responses (or those of the party’s authorized agent) to the extent “they contain statements of the [party] or his agent which are inconsistent with the allegations of the pleading before the court.” [Citation.]” Plaintiff Morgan’s reliance on Bounds is misplaced because it applies to a “pleading party’s discovery responses,” not defendant Michael. Moreover, plaintiff Morgan omits the very next sentence from Bounds where the court stated, “But in doing so, ‘[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.’ [Citation.]” (Ibid.) To the extent plaintiff Morgan asks this court to take judicial notice of defendant Michael’s deposition testimony, the request is DENIED.

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

A. Negligence.

In relevant part, the FAC alleges, “In or around 2010 to 2001, Michael Fortes worked from home for an extended period of time of approximately six months in 2011. Defendant Michael Fortes suffered from a thyroid condition, Graves disease, during this time and often worked from home due to illness and discomfort from his medications. When Defendant Michael Fortes worked from home during this time, he sexually abused Plaintiff Morgan Fortes on many occasions.” (FAC, ¶28.)

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.” (FAC, ¶46.)

“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.” (FAC, ¶48.)

“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.” (FAC, ¶52.)

Defendants FBT and Daniel demur to plaintiff Morgan’s FAC on the ground that there are no allegations which would subject them to liability for the sexual abuse alleged to be perpetrated by defendant Michael only. “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “[T]he existence of a duty is a question of law for the court.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 (Delgado); see also 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.)

1. Defendant Daniel.

Although not explicitly stated, the court understands defendant Daniel’s argument to be that he bears no individual liability for the actions of his brother, defendant Michael. “[A]s a general matter, there is no duty to act to protect others from the conduct of third parties.” (Delgado, supra, 36 Cal.4th at p. 235.) Instead, any liability is based on defendant Daniel’s alleged role as “co-owner, principal, agent, managing agent, employee and Corporate officer of and for Defendant [FBT].” In opposition, plaintiff Morgan confirms defendant Daniel’s liability is based on actions he took on behalf of the corporate defendant FBT. “DANIEL FORTES … failed to use reasonable care to discover MICHAEL FORTES unfitness prior to allowing him to be hired to work from home on behalf of FORTES BROTHERS, and, unreasonably failed to oversee and supervise employee MICHAEL FORTES thereafter. In addition to this, he has continued to allow MICHAEL FORTES to be employed as an employee of FORTES BROTHERS.” (MPA in Opposition, p. 12, lines 4 – 9.) 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 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)] for negligence is SUSTAINED with 10 days’ leave to amend.

2. 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.)

Here, plaintiff Morgan apparently seeks to impose liability against defendant FBT by alleging that defendant Michael’s conduct was foreseeable by FBT because “MICHAEL FORTES knew, or reasonably should have known, that given his proclivity to sexually molest, assault, and batter children, said children … were at a reasonable foreseeable risk when allowed to be alone or in a position to be placed in isolation with Defendant MICHAEL FORTES.” (FAC, ¶49.) “Defendant MICHAEL FORTES’ knowledge was and is imputable to Defendant [FBT] … as Defendant MICHAEL FORTES is and was a principal, co-owner, agent, managing agent and employee of and for Defendant [FBT].” (FAC, ¶51.) This allegation of imputed knowledge is not sufficient.

Under the doctrine of imputed knowledge, “[a] principal is chargeable with and is bound by the knowledge of, or notice to, his agent received while the agent is acting within the scope of his authority and which is with reference to a matter over which his authority extends.” [Citations.] Similarly, a corporation, as the principal, is charged with the knowledge of its current agents and of information actually contained in its records. [Citations.] The fact that the agent does not communicate the knowledge to the principal is irrelevant; the knowledge is imputed by law. [Citations.]

(Syntex Corp. v. Lowsley-Williams & Cos. (1998) 67 Cal.App.4th 871, 894 – 895 (Subsequent review dismissed.))

However, the prerequisite to imputed knowledge is that the knowledge is acquired by the agent while acting within the scope of his authority and for which he has a duty to disclose. Moreover, “It is true that in general the knowledge of an agent which he is under a duty to disclose to his principal or to another agent of the principal, is to be imputed to the principal.” (Sands v. Eagle Oil & Refining Co. (1948) 83 Cal.App.2d 312, 319.) “The underlying reason for it is that an innocent third party may properly presume the agent will perform his duty and report all facts which affect the principal’s interest. But this general rule does not apply when the third party knows there is no foundation for the ordinary presumption,-when he is acquainted with circumstances plainly indicating that the agent will not advise his principal.” (Ibid.)

In view of the allegations here, there are no facts which would give rise to the presumption that defendant Michael should or would disclose his personal proclivities to defendant FBT. Consequently, in spite of plaintiff Morgan’s conclusory allegations of agency and attempt to allege foreseeability, the factual allegations simply do not support imputing defendant Michael’s knowledge to defendant FBT. Absent such foreseeability, defendant FBT owes no duty to plaintiff Morgan.

Accordingly, defendant FBT’s demurrer to the first cause 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)] for negligence is SUSTAINED with 10 days’ 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.)

In opposition, plaintiff Morgan confirms that defendants FBT and Daniel’s liability for the second, third, and fourth causes of action are based upon 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 such knowledge is attributable to defendants FBT and Daniel. (See MPA in Opposition, p. 10, lines 10 – 24.) As discussed above, such knowledge is not properly imputed to defendants FBT or Daniel despite the conclusory allegations of agency or imputed knowledge.

Accordingly, defendants FBT and Daniel’s demurrer to the second through fourth 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)] for negligent hiring, supervision, and retention is SUSTAINED with 10 days’ leave to amend.

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, an each of them, had actual or imputed knowledge of Defendant MICHAEL FORTES’ above-referenced actions.” (FAC, ¶73.) “Defendants, and each of them, either expressly or implicitly approved of and/or subsequently ratified Defendant MICHAEL FORTES’ actions as described above.” (FAC, ¶74.) 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].)

Except to make some blanket assertion that defendants FBT and Daniel are “liable on all causes of action” and the FAC alleges facts sufficient to constitute the causes of action “in intentional tort,” 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.

D. Uncertainty.

Defendants FBT and Daniel also demur to the entire FAC on the basis of uncertainty pointing to the fact that plaintiff Morgan employs a “chain letter” or “shotgun” approach to pleading whereby the first paragraph of each cause of action incorporates by reference all prior allegations. Without specifying how, defendants contend the FAC is rendered ambiguous, unintelligible, and uncertain. “‘A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party. [Citations.] A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired. [Citations.] . . . [a] demurrer for uncertainty will not lie as to even uncertain and ambiguous allegations, if such allegations refer to immaterial matters. In such event, they will be treated as surplusage and disregarded. [Citations.]’” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 631.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Defendants FBT and Daniel’s demurrer to plaintiff Morgan’s FAC on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.