On 12/18/2015 TA ROE filed a Personal Injury - Other Personal Injury lawsuit against SIGNS OF LIFE JOB ASSISTANCE TRAINING AND PLACEMEN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MAURICE A. LEITER and MICHELLE WILLIAMS COURT. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MAURICE A. LEITER
MICHELLE WILLIAMS COURT
T. R. A MINOR BY AND THROUGH HER
SIGNS OF LIFE JOB ASSISTANCE TRAINING
SIGNS OF LIFE 2
DOES 1 THROUGH 60
SIGNS OF LIFE GROUP HOME II
HARRIS MOSES LEE JR.
SCOTCH INC. A NEVADA CORP.
MOSES LEE HARRIS JR.
SALEM LAW FIRM APLC THE
MACHTINGER JOHN F.
LEWIS BRISBOIS BISGAARD & SMITH
LONGO DAN L.
LEWIS BRISBOIS BISGAARD & SMITH LLP
3/24/2016: Legacy Document
4/27/2016: Proof of Service (not Summons and Complaint)
6/30/2016: Legacy Document
12/21/2016: Legacy Document
6/14/2017: Notice of Ruling
6/19/2017: Legacy Document
9/18/2017: Legacy Document
11/8/2017: Amended Complaint
11/27/2017: Legacy Document
12/15/2017: Legacy Document
1/9/2018: Legacy Document
1/17/2018: Notice of Ruling
1/25/2018: Legacy Document
2/13/2019: Substitution of Attorney
2/27/2019: Stipulation and Order
9/7/2016: DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO OUR MOTION TO STRIKE PUNITIVE DAMAGES AND ATTORNEYS' FEES IN PLAINTIFF'S COMPLAINT
10/17/2016: NOTICE OF ORDER TRANSFERRING PERSONAL INJURY CASE TO IC COURT, DEPT. B OF THE SOUTH CENTRAL (COMPTON) DISTRICT
Substitution of Attorney; Filed by T. R., A MINOR, BY AND THROUGH HER (Plaintiff)Read MoreRead Less
at 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by PartyRead MoreRead Less
at 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - StipulationRead MoreRead Less
at 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion for Summary Judgment - Not Held - Clerical ErrorRead MoreRead Less
Notice (of Entry of Order on Stipulation to Continue Defendants' Motion for Summary Judgment/Adjudication); Filed by Scotch, Inc. (Defendant); KATRINA WATKINS (Defendant); ANNA MAYS (Defendant)Read MoreRead Less
Stipulation and Order (Stipulation to Continue Defendants' Motion for Summary Judgment/Adjudication; and Order); Filed by Scotch, Inc. (Defendant); KATRINA WATKINS (Defendant); ANNA MAYS (Defendant)Read MoreRead Less
at 09:30 AM in Department A, Maurice A. Leiter, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
at 09:30 AM in Department A, Maurice A. Leiter, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Notice (Notice of Continuance of Final Status Conference and Jury Trial); Filed by T. R., A MINOR, BY AND THROUGH HER (Plaintiff)Read MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
Notice of Rejection (Application and Order For Appointment of Guardian AD Litem); Filed by T. R., A MINOR, BY AND THROUGH HER (Plaintiff)Read MoreRead Less
NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
Civil Case Cover Sheet- Unlimited; Filed by T. R., A MINOR, BY AND THROUGH HER (Plaintiff)Read MoreRead Less
APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVILRead MoreRead Less
COMPLAINT FOR PERSONAL INJURIES AND DAMAGES [BASED UPON CAUSES OF ACTION FOR: 1. VIOLATION OF BANE CIVIL RIGHTS ACT; ETCRead MoreRead Less
Summons; Filed by nullRead MoreRead Less
Complaint; Filed by T. R., A MINOR, BY AND THROUGH HER (Plaintiff)Read MoreRead Less
Application ; Filed by Plaintiff/PetitionerRead MoreRead Less
Application-Miscellaneous (FOR TA ROE GUARDIAN AD LITEM ); Filed by Attorney for Pltf/PetnrRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC604819 Hearing Date: August 27, 2020 Dept: A
# 9. TA Roe v. Signs of Life Job Assistance, Training and Placement Program, et al.
Case No.: BC604819
Matter on calendar for: motion for summary judgment
Plaintiff TA Rose is a developmentally disabled person who was raped at Signs of Life Group Home II by Moses Lee Harris, Jr., one of its employees. Plaintiff alleges the group home’s owners concealed and ratified the employee’s actions. Defendant Scotch Inc. owns the group home. Defendant Anna Mayes is the licensee, President, Treasurer, and Director of Scotch. Defendant Katrina Watkins is the Secretary and Administrator/Operations Manager of Scotch.
The Fifth Amended Complaint (“FAC”) alleges the following causes of action:
Violation of Bane Civil Rights Act;
Violation of Ralph Civil Rights Act;
Sexual assault and battery;
Intentional infliction of emotional distress;
Negligent employment, supervision, and retention;
General negligence and negligence per se; and
Defendants Scotch, Mayes, and Watkins move for summary judgment, or, in the alternative, summary adjudication. Plaintiff opposes.
For the reasons set forth below, the Court denies the motion.
A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) "A moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact. [Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 178–179.]" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)
“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (C.C.P., § 437c(q).) Defendants’ objections to plaintiff’s submitted declarations were not relevant to the disposition of the motion. Plaintiff’s relevant objections are discussed below.
An employer is “vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 294, 296.) Sexual torts are not per se unforeseeable in the workplace. (Id. at 300.) For a sexual intentional tort to fall within the scope of employment it must be “engendered by” or an “outgrowth” of the employment: “the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Id. at 297–298.) “[A] sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.” (Id. at 301.) This is “distinguished from ‘but-for’ causation . . . [t]hat the employment brought tortfeasor and victim together in time and place is not enough.” (Id. at 298.) “ ‘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.’ [Citation.]” (Id. at 301.)
For vicarious liability to apply, the intentional tort also must be generally foreseeable. (Lisa M, supra, 12 Cal.4th at 302.) In other words, “ ‘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.’ [Rodgers v. Kemper Constr. Co., (1975) 50 Cal. App. 3d 608, 619.]” (Lisa M., supra, 12 Cal.4th at 302.) The test hinges on whether the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought. (Ibid.) “ ‘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.” ’ [Citation.]” (Id. at 299.)
In Lisa M., supra, 12 Cal.4th 294, an ultrasound technician brought the plaintiff to an ultrasound room and molested her. Although employment was the ‘but-for’ cause that made the encounter possible, the California Supreme Court found “a technician simply took advantage of solitude with a naïve patient to commit an assault for reasons unrelated to his work . . . [t]he 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.” (Id. at 301–302.)
“[C]ourts have rarely held an employee’s sexual assault or sexual harassment of a third party falls within the scope of employment. [Citations.]” (Daza v. Los Angeles Community College Dist. (2016) 247 Cal.App.4th 260, 268.) Still, on a motion for summary judgment or adjudication the moving party must establish there is no triable issue of material fact. (C.C.P., § 437c(c).)
Defendants’ Separate Statement of Undisputed Facts (“SSUF”) does not include facts sufficient to demonstrate the lack of a triable issue of material fact on whether the intentional tort was foreseeable, or “whether the employment predictably creates the risk employees will commit intentional torts of the type for which liability is sought.” (Lisa M, supra, 12 Cal.4th at 302.) Without such facts, defendants do not carry their initial burden.
Defendants’ memorandum cites undisputed facts Nos. 16–18 for the proposition that Harris committed the assault for reasons unrelated to his work. (Mtn. at 14.) However, these asserted facts merely state that Harris was removed after an investigation and subsequently was arrested and convicted. And according to the SSUF, the support for these facts are allegations in the FAC. Missing from the SSUF are any facts establishing Harris’s duties or conditions of employment, or any other facts that would allow the Court to analyze whether the assault was foreseeable. On a motion for summary judgment, of course, the moving party must establish the undisputed facts underlying its argument. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1213–1214.)
In the absence of factual support, defendants essentially ask the Court to rule that the rape was unforeseeable as a matter of law. As noted, the law does not support this. Sexual torts are foreseeable when the employee’s duties were such that they “would be expected to, or actually did, give rise to intense emotions on either side.” (Lisa M., supra, 12 Cal.4th at 302.) For example, liability has been extended to physicians and therapists who become “sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship.” (See, e.g. Simmons v. United States (9th Cir. 1986) 805 F.2d 1363, 1369–1370.)
The Court notes that the FAC alleges it was Harris’s role to redirect plaintiff’s aggressive nature by, in part, talking about her day, school, and other people. (FAC, ¶ 15.) And in opposition to this motion, plaintiff argues that the facts here resemble those of a psychiatric technician whose continued contacts with a patient foreseeably led to the tort. (Opp at 19, citing Roe v. California Dept. of Developmental Services (N.D. Cal. 2017) 2017 WL 2311303.) Plaintiff has not established that the rape here indeed was foreseeable, but defendants, who have the initial burden on this motion, have not shown that it was not.
In their reply memorandum, defendants assert that “Mr. Harris was not engaged in any work-related activities, whether it be for Scotch, Ms. Mayes, or Ms. Watkins, at the time of the sexual assault or battery, any false imprisonment, or any IIED inflicted by Mr. Harris. This is undisputed.” (Reply, at 9.) But these supposedly undisputed facts are not included in defendants’ SSUF. The failure to include and support them in the Separate Statement is fatal to defendants’ motion. The Court sustains plaintiff’s objection to these factual assertions. To the extent defendants assert that Mayes or Watkins did not employ Harris, the SSUF also lacks facts addressing the FAC’s alter-ego allegations; the motion therefore lacks a factual basis for the statement.
Defendants have failed to meet their initial burden of showing no triable issue of material fact as to vicarious liability. The motion for summary judgment is denied. The motion for summary adjudication as to the third, fourth, and fifth causes of action is denied.
Bane Civil Rights Act and Ralph Civil Rights Act
“There are two distinct elements of a [Civil Code] section 52.1 [the Bane Civil Rights Act] cause of action. A plaintiff must show [i] intentional interference or attempted interference with a state or federal constitutional or legal right, and [ii] the interference or attempted interference was by threats, intimidation or coercion.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.)
The Ralph Civil Rights Act (“the Ralph Act”), codified in Civil Code §§ 51.7 and 51(b), creates a private cause of action for victims of hate crimes. Civil Code § 51.7 states that “[all] persons… have the right to be free from any violence, or intimidation by threat of violence, committed against their persons… on account of any characteristic listed or defined in [§ 51(b)].” The characteristics listed in Civil Code § 51(b) include disability and medical condition. The Ralph Act is violated only when a defendant’s discriminatory motive is a “substantial factor” in committing the actionable conduct. (See In re M.S. (1995) 10 Cal.4th 698, 718–720.)
The problems with defendants’ SSUF’s permeate these causes of action as well. The SSUF fails to set forth material facts addressing the elements of each cause of action. Defendants have failed to meet their burden of showing no triable issue of material fact as to the first and second causes of action.
The motion for summary adjudication as to the first and second causes of action is denied.
Negligent hiring and supervision and negligence per se
Liability for negligent hiring and supervision 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.” (Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054.) The rule applies to negligent supervision as well. (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 240.)
A key SSUF as to this cause of action is that defendants followed proper procedure after discovering the July 2014 letter that was written by plaintiff to Harris. (SSUF 6.) However, the cited evidence, pages 130–133 of Mayes’s deposition, does not support this fact: it references the November 2014 assaults and the ensuing aftermath. (Exh. B.) Further, defendants’ argument is based on their unpersuasive vicarious liability argument, which is discussed above. (Mtn. at 15.) Defendants have failed to meet their burden of showing no triable issue of material fact as to the sixth and seventh causes of action.
The motion for summary adjudication as to the sixth and seventh causes of action is denied.
Slander is defined by California Civil Code § 46 as “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which . . . [¶] 4. Imputes to [them] impotence or a want of chastity; . . . .”(Civ. Code § 46.) The FAC alleges defamatory statements were made to multiple individuals. (FAC, ¶ 141.) However, the moving papers and SSUF only address statements made to Officer Corona. The motion fails to dispose of the entire cause of action; summary adjudication must be denied. (C.C.P., § 437c(f)(1).)
The motion for summary judgment or, in the alternative, summary adjudication is denied.
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