Deanna Cardona, et al. v. The Devereux Foundation, et al

Case Number

24CV03696

Case Type

Hearing Date / Time

Wed, 01/22/2025 - 10:00

Nature of Proceedings

Defendants’ Demurrer To Plaintiffs’ Complaint

Tentative Ruling

For Plaintiffs Deanna Cardona and Brianna Cardona: Gregory J. Ramirez, Law Office of Gregory J. Ramirez; Alexander Rosenberg, Rosenberg Law, P.C.

For Defendant The Devereux Foundation: Brett Schoel, Vanessa R. Cornejo, La Follette, Johnson, DeHaas, Fesler & Ames

                                   

For Tri-Counties Association for the Developmentally Disabled: Paul J. Bauer, Daniella M. Crisanti, Sagaser, Watkins & Wieland, PC

For Additional Parties: See List

RULING

For all reasons discussed herein, the demurrer of defendants to plaintiffs’ complaint is sustained, in part, as to the third and fourth causes of action, with leave to amend. Except as herein sustained, the demurrer is otherwise overruled. Plaintiffs shall file and serve their second amended complaint, if any, on or before February 3, 2025.

Background

On July 2, 2024, plaintiffs Deanna Cardona (Deanna) and Brianna Cardona (Brianna) (collectively, plaintiffs) filed their original complaint in this action against defendants The Devereux Foundation (Devereux), Tri-Counties Community Housing Corporation (Tri-Counties CHC), Tri-Counties Association For The Developmentally Disabled, Inc. (Tri-Counties ADD), and additional defendants further described below, alleging four causes of action: (1) gross negligence; (2) premises liability; (3) sexual battery; and (4) sexual assault. (Note: To avoid confusion due to common surnames, the Court will refer to plaintiffs by their first names. No disrespect is intended.) As alleged in the complaint: 

Tri-Counties CHC, in connection with Tri-Counties ADD and Devereux, owns, operates and supervises premises located at 4084 Foothill Road in Santa Barbara, California (the premises). (Compl., ¶¶ 5-6.) One defendant who is the father (hereinafter referred to as Father) of a resident under the supervision of Tri-Counties ADD at the premises is also a member of the board of directors of Tri-Counties ADD. (Id. at ¶ 7.) Devereux was the employer of Deanna and Brianna. (Id. at ¶¶ 3-4.)

Deanna began working for Devereux on April 7, 2022, and was assigned by Devereux to work at the premises on June 12, 2022. (Compl., ¶¶ 20 & 25.) Brianna began working for Devereux at the premises in July 2022. (Id. at ¶ 30.) 

While working at the premises, plaintiffs were exposed to three residents who each engaged in conduct that plaintiffs allege constitutes physical and sexual assault and battery. (Compl., ¶¶ 26 & 31.) This conduct includes: headbanging and headbutting, hitting, punching, nail digging, shirt grabbing, hair pulling, masturbation including pooping on the floor and bed while doing so, and a resident stuffing her vagina with feathers. (Id. at ¶¶ 8-9, 11, 13, 15, 27, 33-35.) Plaintiffs were also instructed to teach a resident “how to use and clean a vibrator.” (Id. at ¶ 14.) On October 8, 2022, a resident at the premises physically and sexually assaulted Deanna causing Deanna to sustain serious injuries which required medical attention. (Id. at ¶¶ 28-29.)

In August 2022, plaintiffs placed Devereux, Tri-Counties ADD, and Tri-Counties CHC on notice that patients at the premises were becoming increasing physically and sexually aggressive. (Compl., ¶ 36.) Devereux, Tri-Counties ADD, and Tri-Counties CHC ignored plaintiffs’ plea for help, required plaintiffs to maintain a code of silence, alienated plaintiffs from other staff, and retaliated against plaintiffs. (Id. at ¶¶ 37-40.)

Brianna quit working with Devereux, Tri-Counties ADD, and Tri-Counties CHC in October 2022 after they made her sit alone with a resident without help. (Compl., ¶ 42.) Plaintiffs have been forced to seek medical attention to recover from the physical and sexual batteries and assaults and retaliation. (Id. at ¶ 41.)

On November 1, 2024, Tri-Counties ADD and Father filed a demurrer to the complaint on the grounds that plaintiffs have failed to state facts sufficient to constitute a cause of action. The demurrer is opposed by plaintiffs.

Analysis

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Demurrer to the first and second causes of action:

The title under which the factual basis for relief is stated in the first cause of action alleged in the complaint is gross negligence in violation of the California Fair Employment and Housing Act or FEHA (codified at Government Code section 12900 et seq.). The title under which the factual basis for relief is stated in the second cause of action is premises liability. As grounds for their demurrer to the first and second causes of action alleged in the complaint, Tri-Counties ADD and Father contend that plaintiffs have failed to allege facts giving rise to a legal duty owed to plaintiffs as a matter of law.

To support their argument, Tri-Counties ADD and Father assert that under the provisions of Welfare and Institutions Code section 4500 et seq. (the Lanterman Developmental Disabilities Services Act or Lanterman Act), Tri-Counties ADD operates as a “regional center” which is tasked with assessing services and support required by developmentally disabled persons within the State of California. Tri-Counties ADD and Father further assert that Tri-Counties ADD contracts with “direct service providers” or vendors to provide those services and support to developmentally disabled persons, and engages in “limited monitoring” of these contracts.

Tri-Counties ADD and Father contend that, pursuant to the Lanterman Act, Tri-Counties ADD contracted with Devereux, a direct service provider, to provide direct services to the defendants and persons named or identified in the complaint. According to Tri-Counties ADD and Father, they had no authority to hire, fire, promote, demote, or reprimand employees of Devereux. Under these circumstances and citing the decision in Shalghoun v. North Los Angeles County Regional Center, Inc. (2024) 99 Cal.App.5th 929, 947-948, Tri-Counties ADD and Father argue that under the circumstances present here, plaintiffs have failed to plead facts sufficient to give rise to a duty of care owed by them to plaintiffs, including to protect plaintiffs from the conduct of third party residents at the premises.

Even if the Court were to assume the truth of the matters stated in the demurrer and further described above, Tri-Counties ADD and Father fail to explain where or how these matters are disclosed on the face of the complaint, either expressly or by inference. Moreover, a reasonable interpretation of the complaint shows that the factual matters alleged by Tri-Counties ADD and Father are not disclosed or contained in the complaint either expressly or by inference. For these reasons, the allegations offered by Tri-Counties and Father do not provide a proper or sufficient basis to sustain the demurrer. (Harboring Villas Homeowners Assn. v. Superior Court (1998) 63 Cal.App.4th 426, 429 [also noting that objections to matters not disclosed in the pleading may be taken by answer to the complaint].),

Furthermore, while a demurrer may raise an issue of law (see Code Civ. Proc., § 589, subd. (a)), a demurrer tests only the pleading and not the evidence or other extrinsic matters outside the pleading. (See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [also noting that the court is precluded from weighing disputed facts on demurrer].) The facts and circumstances presented in the demurrer to show that Tri-Counties ADD and Father do not owe a duty to plaintiffs constitutes extrinsic matters which the Court may not consider for present purposes. Instead, these are matters of evidentiary concern and do not present grounds for sustaining the demurrer. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)

For all reasons discussed above, the demurrer of Tri-Counties ADD and Father to the first and second causes of action alleged in the complaint is improper and does not for present purposes show that plaintiffs have failed to state fact sufficient to constitute a cause of action for gross negligence under FEHA or for premises liability. Therefore, the Court will overrule the demurrer as to the first and second causes of action alleged in the complaint.

Demurrer to the third and fourth causes of action for sexual battery and sexual assault:

In the third and fourth causes of action for, respectively, sexual battery and sexual assault, plaintiffs allege that they were sexually battered and assaulted by patients of Devereux at the premises. Tri-Counties ADD and Father assert that these causes of action are alleged against Father and two residents at the premises only and not against Tri-Counties ADD. Therefore, the demurrer is directed to only to whether plaintiffs have alleged facts sufficient to state a cause of action against Father.

Tri-Counties ADD and Father contend that it is unclear whether the theories of liability for sexual battery and assault arise from Father’s relationship to one of the residents of the premises or from Father’s membership in the board of directors of Tri-Counties ADD. Further, Tri-Counties ADD and Father argue, Father cannot be held vicariously liable for the torts of a child under the facts alleged in the complaint.

Plaintiffs do not address or effectively address the demurrer to the third and fourth causes of action as to Father.

“A person commits a sexual battery who does any of the following: [¶] (1) [a]cts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results[;] (2) [a]cts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results[;] or [a]cts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.” (Civ. Code, § 1708.5, subd. (a)(1)-(3).) “A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact and the batteree suffer a ‘sexually offensive contact.’” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.)

The parties do not offer, and the Court is not aware of, any legal authority demonstrating that the elements of a cause of action for sexual assault are different from the elements of a cause of action for sexual battery. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 300, 303 [referring to alleged sexual molestation by an ultrasound technician as “sexual battery” and “sexual assault”].)

Plaintiffs do not, and cannot reasonably, dispute that the third and fourth causes of action do not allege a direct sexual assault or battery by Father, who purportedly resides out of state. (See Compl., ¶ 7.) Further, wholly absent from the complaint are any facts showing expressly or by inference that any resident at the premises was a minor, that Father had any ability to effectively control any resident at the premises, that Father had any knowledge or awareness of any propensity of a resident of the premises to commit the acts alleged in the complaint, or that there exists a special relationship between Father and plaintiffs which would give rise to a duty by Father to prevent the harm alleged in the complaint. (See, e.g., Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1290; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435.) For these reasons, the Court will sustain the demurrer to the third and fourth causes of action as to Father.

In their opposition, plaintiffs appear to suggest that the third and fourth causes of action are also directed to Tri-Counties ADD. Though this is not clear from the titles of or allegations asserted in these causes of action, the demurrer is directed only to whether plaintiffs have alleged facts sufficient to constitute a cause of action for sexual battery or assault as against Father.

Leave to amend:

Apart from citing general legal authority regarding amendments to pleadings, in their opposition to the demurrer, plaintiffs do not request leave to amend, fail to show in what manner the complaint can be amended, and fail to demonstrate why any amendment will change its legal effect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Further, the Court questions whether there exists any reasonable possibility that the deficiencies in the third and fourth causes of action as to Father, further discussed above, can be cured. (Ibid.)

Notwithstanding that plaintiffs have not shown how the complaint can be amended, as this is plaintiffs’ original complaint, the Court will grant plaintiffs leave to amend the third and fourth causes of action as authorized herein. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) The Court further notes that to the extent there exist deficiencies in the third and fourth causes of action with respect to whether these causes of action are also directed to Tri-Counties ADD, the Court expects plaintiffs to cure these deficiencies in their amended pleading.