Tentative Rulings

Case Number: BC554613    Hearing Date: November 12, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

This is an action for damages for alleged sexual assault and battery of a minor. Plaintiff John CJ Doe (“Plaintiff’) commenced this action on August 13, 2014. On April 3, 2017, Plaintiff filed a First Amended Complaint (“FAC”) against Defendant Doe 1 (later amended to Peter Kraus) (“Defendant”) alleging causes of action for (1) negligence, (2) intentional infliction of emotional distress, (3) sexual battery, (4) assault, and (5) gender violence.

Pursuant to a stipulation of the parties filed on October 2, 2019, the court continued trial to February 18, 2020. On October 16, 2019, Plaintiff filed the instant motion for leave to amend the FAC. Defendant filed an opposition on October 29, 2019. On November 1, 2019, Plaintiff filed a reply.

LEGAL STANDARD

CCP §473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

Judicial policy favors resolution of all disputed matters between the parties, and therefore, courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].)

Pursuant to CRC 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located. CRC 3.1324(b) requires a separate declaration that accompanies the motion, stating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier.

DISCUSSION

Plaintiff seeks leave to file a second amended complaint (“SAC”) to remove the sexual battery and assault causes of action and replace them with Defendant’s alleged violation of five penal code provisions aimed at protecting minors from childhood sexual abuse. (Motion p. 1:6-9.) Plaintiff specifically seeks to add causes of action for violations of Cal. Penal Code §§ 261.5(a), 286(a)-(b)(1), 287(a)-(b)(1), 289(h), and 647.6(a)(1). Defendant opposes on the grounds that (1) Plaintiff has not explained the delay in bringing these causes of action, and the delay has prejudiced Defendant, (2) Plaintiff does not adequately establish that the proposed new causes of action allow for a civil private right of action, and (3) Plaintiff’s motion does not comply with the procedural requirements necessary to bring a motion for leave to amend.

Civil Right of Action for Violations of Penal Code Sections

Plaintiff asserts that children who are sexually victimized by adults are entitled to pursue civil causes of action against the perpetrator. Plaintiff argues that leave to amend is appropriate because Defendant admitted to violating the above penal code sections. (See Reilley Decl., Exh. C., p. 85:2-86:14; 98:24-99:14.) In opposition, Defendant contends that Plaintiff has not shown that the penal code sections provide for a private cause of action.

The California Supreme Court has stated that a violation of a state statute does not necessarily give rise to a private cause of action, and “whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.) In Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, the court considered whether a minor could bring claims for unlawful seduction and childhood sexual abuse based on violations of the penal code, specifically including Pen. Code § 261.5 for unlawful sexual intercourse with a minor. (Angie M., supra, 37 Cal.App.4th at p. 1224.) The Angie M. court noted that the enactment of section 261.5 and other penal statutes evidenced that the legislature had a “long-standing and consistent history of specifically protecting minors from sexual exploitation and predation.” (Id. at p. 1225.) Further, the court explicitly stated that “the Legislature has impliedly recognized a right to a civil action for ‘seduction of a person below the age of legal consent’ and ‘childhood sexual abuse’ by enacting statutes of limitation for such actions under Code of Civil Procedure sections 340 and 340.1.” (Id. at 1225.) The court proceeded to hold that a cause of action for violations of the penal code for child sex abuse, including for a violation of § 261.5, could be stated. (Ibid.)

Consistent with the rule articulated in Lu v. Hawaiian Gardens Casino, Inc., the court’s holding in Angie M. makes clear that the legislature intended that Plaintiff may bring a civil right of action for seduction of a person below the age of legal consent and childhood sexual abuse. Whether the specific penal codes Plaintiff cites are applicable is a question better suited for a demurrer or other challenge to the pleading at a future point. (see Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”].)

Defendant also argues that Plaintiff has not established that a civil private cause of action exists for violations of the cited penal code sections because Plaintiff already has a civil remedy for sexual battery and the wrongs alleged under CCC § 1708.5. However, the Angie M. court stated that a civil cause of action for violation of the penal code for child sex abuse or seduction for a person below the age of legal consent does not duplicate a battery cause of action under CCC § 1708.5. (Angie M., supra, 37 Cal.App.4th at p. 1225.) The court noted that the civil cause of action for violation of the penal code is a distinct cause of action from section 1708.5 based on its different elements: “[CCC § 1708.5] is interpreted to require that the batteree did not consent to the contact. [Citation] Intent to cause offensive or harmful contact, offensive contact and lack of consent are not elements of the statutory violations alleged. (Ibid.) Therefore, the court finds that Plaintiff’s proposed causes of action would provide for a different and distinct civil remedy from a sexual battery claim under CCC § 1708.5.

//

//

Prejudice

Plaintiff argues that Defendant will not be prejudiced by the amendment because Plaintiff is not seeking to add or change any factual allegations beyond those currently in the FAC but only seeks to remove the sexual battery and assault causes of action and replace them with civil violations of the penal code sections stated above. Plaintiff seeks to allege new legal theories based on the same set of facts. Plaintiff also contends that allowing an amendment to add the additional causes of action furthers the interest of justice by permitting Plaintiff to bring causes of action where Defendant has admitted to wrongdoing, and if the motion is denied, Plaintiff will be permanently deprived of the right to assert meritorious claims against Defendant.

In opposition, Defendant argues that he would be prejudiced because he has relied on a consent defense for the sexual battery cause of action since the inception of the case. Further, Defendants contends that additional discovery would be needed to assert such defenses as mistake of age and that Defendant must be allowed time to bring a motion for summary judgment.

The court finds that Defendant will not be prejudiced by allowing Plaintiff to amend the complaint to bring potentially meritorious claims. In determining whether a party will be prejudiced by a delay, courts have held that “it is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.’.) (Kittredge Sports Co., supra, at p. 1048.) Here, Plaintiff’s proposed causes of action are based on the same underlying acts on which discovery has already been conducted. To the extent that any additional discovery may be needed for Defendant to assert defenses, such discovery would be minimal. Further, the parties have stipulated to extend trial in this matter to February 18, 2020, and Defendant has waived the right to dismiss under CCP §§ 583.310, 583.330(a) prior to December 13, 2020. (see Stipulation, 10/2/19.)[1] Even where Plaintiff has delayed in bringing an amendment, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co., supra, at p. 1048.)

Therefore, the court finds that the proposed amendment will not prejudice Defendant.

Procedural Defects

Defendant further asserts that there are numerous procedural defects with Plaintiff’s notice of motion and proposed amended complaint. As noted, a notice of motion to amend must conform with the procedural requirements of CRC Rule 3.1324.

Here, Plaintiff’s moving papers did not include the declaration required under CRC Rule 3.1324(b) and did not explicitly state what allegations are proposed to be deleted and added. (see CRC Rule 3.1324(a).) However, Plaintiff attached a copy of the proposed Second Amended complaint and stated that Plaintiff is requesting for leave to remove the sexual battery (Civil Code § 1708) and assault causes of action, and to replace them with causes of action for violations of Penal Code§§ 261.5(a), (c); 286(a)-(b)(1); 287(a)-(b)(l); 289(h); and 647.6(a)(1). (see Motion p. 4:14-16; Reilley Decl. ISO motion, Exh. A.) Moreover, Plaintiff has filed a separate declaration with the reply papers that states the allegations to be deleted and added, and otherwise complies with CRC Rule 3.1324. (see Reilley Decl. ISO Reply.)

Although Plaintiff should have filed a separate declaration with the initial moving papers, the court finds that Defendant has not been prejudiced by Plaintiff’s delay in filing the declaration because Plaintiff included the proposed SAC with its moving papers. (Reilley Decl. ISO motion, Exh. A.)

Conclusion and order

For the foregoing reasons, Plaintiff’s motion for leave to file a Second Amended Complaint is GRANTED. Plaintiff is ordered to file and serve on Defendant the Second Amended Complaint within five (5) days of date of this order.

Moving Party is ordered to give notice of this order and file proof of service of such.

DATED: November 12, 2019 ___________________________

Elaine Lu

Judge of the Superior Court