20 21 2 23 Bs 25 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT YOUNGJOO HWANG., CASE NO.: BC699005 Plaintiff, 5 ENFATLUE] ORDER RE: (1) DEFENDANT FRED SAVAGE’S vs. DEMURRER TO FIRST AMENDED COMPLAINT; AND FRED SAVAGE, et al. (2) DEFENDANT TWENTIETH CENTURY FOX FILM CORP. AND TWENTIETH CENTURY FOX TELEVISION'S DEMURRER Defendants, 8:30am, August 29, 2018 Dept. 56 On March 21, 2018, Plaintiff Youngjoo Hwang brought suit against one of her co workers, Defendant Fred Savage (“Savage”), and her employer, Defendants Twentieth Centur Fox Film Corp. and Twentieth Century Fox Television (collectively, “Fox”). Plaintiff allege: that Savage harassed Plaintiff on the basis of her gender, and on one occasion struck her arm, and that Fox failed to prevent this harassment or investigate Plaintiff’s claims. On May 15, 2018, Plaintiff filed a first amended complaint, which asserts causes of action for: (1) Violation of Civ. Code § 52.4 (against Savage only); (2) Violation of Civ. Code 52.1 (against Savage only); (3) Violation of Civ. Code § 51.7 (against Savage only); (4) Failurg to Prevent Discrimination and Harassment (against Fox only); (5) Negligent Hiring, Supervision, and Retention (against Fox only); (6) Intentional Infliction of Emotional Distress (against all Le Celforia ‘Anreles 01g P* Ottcer ctor * Deputy1 | defendants); (7) Negligent Infliction of Emotional Distress (against all defendants); (8) Civil 2 | Conspiracy (against all defendants); and (9) Violation of Bus. & Prof. Code § 17200 (against all 3. | defendants). 5 Savage and Fox each filed separate demurrers on June 19, 2018. 7 |Meet and Confer! 8 Pursuant to CCP § 430.41(a), “Before filing a demurrer pursuant to this chapter, th 9 |demurring party shall meet and confer in person or by telephone with the party who filed th 10 | pleading that is subject to demurrer for the purpose of determining whether an agreement can be 11 | reached that would resolve the objections to be raised in the demurrer.” B Plaintiff argues in opposition that Savage and Fox failed to meet and confer in good faith 14. | The Court agrees ihat it is not particularly in good faith for Defendants to have waited until Jun 15 | 11—just one week before the demurrer deadline—to write a meet and confer letter (rather tha 16 fall or meet in person), and then to request that Plaintiff respond by June 13, only two days later! 17 | (Gee Sedaghatfar Decl., Exh, A.) At the same time, after various emails, it was Plaintiff’ whi 1s. | refused Defendants’ request to extend the demurrer filing date by thirty days to allow for furthe 19 | meet and confer efforts, and in that same email, Plaintiff’s counsel stated, “Since all parties have 20 | provided arguments and al relevant authority supporting their respective postions have been se 21 [forth in detailed letters, 'm comfortable that our position will not change.” (Sedaghatfar Decl. 22 | Exh. F.) Pa Weighing the foregoing, and recognizing that substantive letters addressing the merits 0 "5 | the arguments were sent by both sides, the Court concludes that further meet and confer effort20 21 2 23 24 @ Bs would have been unlikely to resolve the issues presently in dispute. The Court therefore turns t the merits of the demurrers. Request for Judicial Notice Defendants request judicial notice of Plaintif's administrative complaint to th Department of Fair Employment and Housing (“DFEH”) and the subsequent Right to Sue lette provided to Plaintiff by DFEH. This unopposed request is GRANTED pursuant to Evid. Code § 452. (See also Harris v. Civil Service Com. (1998) 65 Cal. App. 4th 1356, 1371 fn.4.) Statute of Limitations Savage demurs to the second, sixth, and seventh causes of action on the ground th claims are untimely under the statute of limitations. Fox likewise demurs to the fourth, fifth, sixth, and seventh causes of action on the ground these causes of action are untimely. As to eact cause of action, Defendants assert that there is a two-year statute of limitations, except as to the fourth cause of action, for failure to prevent discrimination and harassment. As to that cause of action, Fox argues Plaintiff filed a claim with the DFEH on February 21, 2018, and that her sui is therefore limited to those actions occurring one year prior to the filing of the complaint. (Seq Gov. Code § 12960(4).) The only cause of action for which Plaintiff challenges the limitations period is the second cause of action, for violation of Civ. Code § 52.1. Savage argues that Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 760, established that Civ. Code § 52.1 has a two-yeat limitation. (Gatto actually held that it was subject to a one-year limitation period, but th provision upon which Garto relied—now found in CCP § 335.1—has since been amended, and] now requires a two-year statute of limitations.) In opposition, Plaintiff argues there is a split o20 21 2 authority regarding this issue, and that the Court should therefore conclude that a three-yea statute of limitation applies. (See Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, fn. [Courts have wrestled with the proper statute of limitations for a claim under sections 51 et seq.j is it one year on the theory that the claim is essentially a common law action founded on neglee (Code Civ. Proc., § 340) or three years based on a statutory cause of action (Code Civ. Proc., 338, subd. (a))? (See Gatto, supra, 98 Cal.App.4th at pp. 754-755, 120 Cal.Rptr.2d 550,-an cases cited; West Shield Investigations & Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935, 951-954, 98 Cal.Rptr.2d 612 (West Shield ).)"].) In reply, Savage merely notes that notwithstanding Stamps, more recent federal cases have continued to impose the statute of limitations identified by Gatto. (See, e.g., Thomas v. Sonoma County (N.D. Cal. 2013) 2013 WL] 3818758 [holding that violations of Civ. Code § 52.1 were subject to a two-year statute o} limitation}; Fenters v. Yosemite Chevron (E.D. Cal. 2010) 761 F.Supp.2d 957, 995 [accord].) Reviewing the various authorities, the Court agrees Savage’s view of the law is mor persuasive, CCP § 335.1 states that there is a two-year statute of limitations for “[a]n action foi assault, battery, or injury to, or for the death of, an individual caused by the wrongful act o1 neglect of another.” At heart, Plaintiff is alleging that Savage violated Civ. Code § 52.1 b; com jing assault or battery. Given the multiplicity of cases confirming that Civ, Code § 52.1 i governed by the statute of limitations in CCP § 335.1, and given the clear connection between the terms of that statute and the allegation here, the Court concludes Plaintiff's claim fo violation of Civ. Code § 52.1 is subject to a two-year statute of limitation. Plaintiff's suit was filed on March 21, 2018. Accordingly, Plaintiff's allegations as to the, second, fifth, sixth, and seventh causes of action must have occurred after March 21, 2016, an the allegations as to the fourth cause of action must have occurred after February 21, 2017,20 21 2 23 {224 25 “The defense of statute of limitatioris may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (1 Schwing, Cal. Affirmative Defenses (Thomson West 2007) Statute of Limitations, § 25:78, p. 1609, fns. omitted; see Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 550, 305 P.2d 20.) There is an important qualification, however: “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874, 31 Cal.Rptr. 603, 382 P.2d 875; see also, e.g., Geneva Towers Lid. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781, 129 Cal.Rptr.2d 107, 60 P.3d 692.) “The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.” (Moseley v. Abrams (1985) 170 Cal. App.3d 355, 358, 216 Cal.Rptr. 40.) (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.) Defendants argue all of the events that occurred in the complaint occurred in 2015. The Court concludes this cannot be determined by reference to the face of the complaint and thel matters judicially noticed alone. The complaint alleges that Plaintiff “was employed by Defendants Fox as a ‘Costumer| on or about 2015 for the television show ‘The Grinder.’ During this time Plaintiff wag responsible for the clothing worn by the cast members of this show, including the star actor, Defendant Savage. . . . During her employment, Plaintiff was subjected to an extremely hostil work environment at the hands of Defendant Savage and supervisory employees of Defendants ‘ox.” (FAC $f 11-12.) Plaintiff then goes on to allege a number of specific incidents, including times where other employees complained about Savage’s conduct, and Fox did nothing; a incident where Plaintiff complained about Savage, and Fox did nothing (but Savage yelled at20 2 2 23 24 25 Plaintiff); and incident in which Savage struck Plaintiff on the arm three times; and Fox’ subsequent failure to investigate this incident. (FAC §f 14-15, 19-25.) : Defendants argue Plaintiff's allegation that she “was employed . .. on or about 2015” and that various injuries thereafter occurred “during this time” or “during her employment’ demonstrate that all of the alleged events occurred in 2015. While Defendants’ reading of the allegations is reasonable, it is not the only reading: The allegations are clearly ambiguous. Specifically, a more straightforward reading of the allegations is that Plaintiffs employment began at some unspecified point in 2015, and that the various alleged incidents occurred at som unknown point in the weeks and months that followed. Aside from the alleged start of employment in 2015, there are no specific dates upon which the Court can calculate the statute: of limitation, Because the Court does not know precise dates of when events occurred, thd operation of the statutes of limitation are not clear on the face of the complaint, and Defendants| demurrers cannot be sustained on this basis. First, Second, and Third Causes of Action: Civ. Code §§ 52.4, 52.1, and 51.7 Civ. Code § 52.4 states, in relevant part: (a) Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. (©) For purposes of this section, “gender violence” is a form of sex dis and means either of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction20 21 2 24 S25 os Civ. Code § 52.1(b) states, in relevant part, “Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, a described in subdivision (a), may institute and prosecute in his or her own name and on his or her ‘own behalf a civil action for damages, including, but not li 1d to, damages under Section 52.” Civ. Code § 51.7 states, in relevant part, “All persons within the jurisdiction of this state have the right to be free from any violence,.or intimidation by threat of violence, committe against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (¢) of Section 51,” which includes gender. Plaintiff alleges Savage violated these provisions when, in response to Plaintiff's effort to brush dandruff from Savage's jacket (as required by her job as a costumer on a television fil set), Savage “violently struck [Plaintiff's] arm three es with his hand.” (FAC §] 22.) Plaintift also generally alleges Savage engaged in unkind or hostile conduct rendering Plaintiff's workplace unpleasant, and that his actions against Plaintiff were undertaken on account of het gender, Each of these causes of action require that Savage’s conduct, at least in part, arise from} conduct constituting gender discrimination or harassment. Savage demurs on the ground that Plaintiff's own allegations confirm that Savage’s conduct was not motivated by Plaintiff: gender. Savage argues that Plaintiff has already alleged that Savage did not like Plaintiff (see. eg, FAC $19 [“Savage made abundantly clear that he did not like Plaintiff when he said her, “It's so fucking annoying that I have to be nice to you when I fucking hate you!” and “I don' want to be fucking nice to people when I hate them!”]), and that the reason Savage struc20 21 2 2 eu ‘Sas Plaintiff was because he did not want Plaintiff to touch him (see, e.g., FAC 4 22). Savage argu that, because Plaintiff's own allegations reveal the motive for Savage's action was eithe personal animus or a desire not to be touched, she has not sufficiently pled a violation of any o' these provisions. Plaintiff argues that she has sufficiently alleged that Savage's conduct was due to her gender. Plaintiff points to allegations that Savage engaged in “aggressive behavior . . . aimed towards female employees” that “culminated in” Savage striking Plaintiff (FAC 4 12); that Savage had a “volatile and aggressive temper as it related to the female crew, including Plaintif?" (FAC 4 14); and that Savage has previously been accused of sexual harassment (FAC 17). Th Court agrees with Savage, however, that the foregoing is insufficient. In Gray v. Superior Court, the Court of Appeal affirmed a trial court order sustaining demurrer where the employee plaintiff summarily asserted he was terminated on the basis o gender without further allegations. “Gray's pleading has no specific factual allegations suggesting sexual discrimination. He simply lists Revelen's actions in failing to cooperate, postponing his annual review, submitting a false report and refusing to allow him to complete hig response, and affixes to them a sexual discrimination label.” (Gray v. Superior Court (1986) 181 Cal.App.3d 813, 820 [disapproved on other grounds, Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4tt 317.) The situation here is analogous. Plaintiff has alleged that Savage engaged in a number o| bad acts, but none of the acts alleged appear to be related to gender. Though Plaintiff notes Savage was “aggressive” and “volatile” toward women, she neither alleges that such aggression and volatility was due to their gender nor that Savage was not equally aggressive and volatile toward male crewmembers. As Savage notes, per Plaintiffs own allegations, Savage did not lik20 21 2 B ibe Plaintiff. Nothing suggests that such dislike was due to her gender. Absent clearer allegations, Plaintiff has not sufficiently pled a violation of Civ. Code $§ 52.4, 52.1, and 51.7, Savage’s demurrer is therefore SUSTAINED, with leave to amend, as to the first, second and third causes of action. Fourth Cause of Action: Failure to Prevent Harassment and Discrimination Pursuant to Gov. Code § 12940(k), “It is an unlawful employment practice . . . For ar employer to fail to take all reasonable steps necessary to prevent discrimination an harassment from occurring.” Plaintiff alleges Fox was aware of Savage’s reputation of mistreating women and not only hired him, but failed to investigate numerous complaints against him, thereby enabling Savage to harm Plaintiff. (FAC 4 49.) Fox argues Plaintiff's cause of action for failure to prevent discrimination and harassment fails because Plaintiff has not brought a cause of action for discrimination or harassment. Fo: argues that without such a cause of action, this cause of action must fail. (See Carter v. Call Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925 fn. 4 [“{Clourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940(k).”)) Plaintiff argues there is no requirement that she actually assert a cause of action against anyone for discrimination or harassment before suing Fox for failure to prevent it; rather,& 20 21 2 2B 24 25 Plaintiff can prove that discrimination or harassment occurred as part of her efforts to prove hei cause of action against Fox. Neither party presents any case law directly resolving this issue. Assuming Plaintiff i correct, however, even if she did not actually assert a cause of action for discrimination o1 harassment, she would need to plead sufficient facts to show that she was discriminated agains or harassed on the basis of some protected characteristic, presumably—based on the allegation of the first three causes of action—gender. For the reasons stated above, Plaintiff has not donq so, While she has alleged that she was mistreated, she has not sufficiently alleged that suc mistreatment was due to her gender. Fox’s demurrer to the fourth cause of action is therefore SUSTAINED, with leave t amend, Fifth Cause of Action: Negligent Supervision, Hiring, or 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. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App.4th 828, 836 [10 Cal.Rptr.2d 748].) 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.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238 Cal. App.4th 889, 902.) =10-ie 20 21 2 2B 24 25 Plaintiff alleges Fox was negligent in hiring, supervising, and retaining Savage. Fox’ sole argument in demurrer (aside from the statute of limitations issue, addressed above) is that this cause of action is covered by the exclusivity provision of California’s Worker’ Compensation Act. ‘An employee is generally limited to relief through worker’s compensation for injuries arising from negligence. Courts have held that this is true even of negligent hiring, supervision, or retention claims, and even where those claims relate to an underlying assault or battery. (Jone v. Department of Corrections & Rehabilitation (2007) 152 Cal.App-4th 1367, 1384.) Plaintifl cites several cases in. which negligent supervision claims were allowed to proceed notwithstanding the worker’s compensation scheme. Fox criticizes these cases in reply 2 relating solely to situations of sexual discrimination or harassment, and argues that Plaintiff ha: not sufficiently alleged sexual discrimination or harassment. At least one of the cases, however, focused not on the nature of the harassment, but on the ratification of an assault by a co: employees. (See Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d. 1420.) Lab. Code § 3601(b) holds that employers cannot be liable for assaults committed by one employed against another, but Hart held that where an assault was reported, and the employer did nothing, the employer may be deemed to have ratified the assault, and may be liable therefore, The Har court allowed a claim of negligent retention to go forward based on such an assault. Here, Plaintiff alleges Savage struck her in the arm, that Plaintiff reported the incident, and that Fox did not investigate or otherwise remedy the incident. (FAC §] 22-26.) The Court cannot say at this stage that, as a matter of law, these allegations are barred by the worker's exclusivity provision. “14.Fox’s demurrer to the fifth cause of action is therefore OVERRULED. Sixth Cause of Action: Intentional Infliction of Emotional Distress “A cause of action for intentional infliction of emotional distress exists when there is (1 extreme and outrageous conduct by the defendant with the intention of causing, or reckles: disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe ot extreme emotional distress; and (3) actual and proximate causation of the emotional distress bj the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Both Fox and Savage demur to this cause of action on the ground the conduct alleged i not sufficiently outrageous or extreme. As against Savage, the Court disagrees. Savage tries t characterize the allegations as “mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing moré than mere annoyances.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) Bu Plaintiff clearly alleges more than that, because she alleges not only threats but that she wa actually struck by Savage three times. The Court concludes this could constitute extreme o1 outrageous conduct As against Fox, however, the Court agrees the allegations are insufficient. Plaintiff argues Fox should not have hired Savage in the first place, failed to investigate him before the assaul despite complaints regarding his behavior toward women, and failed to investigate him after the assault. Nothing about Fox’s failure to investigate Savage, however, rises to the level of extrema or outrageous conduct. “Managing personnel is not outrageous conduct beyond the bounds o} human decency, but rather conduct essential to the welfare and prosperity of society. A simpla pleading of personnel management activity is insufficient to support a claim of intentional 12+20 21 2 23 (B24 S25 infliction of emotional distress, even if improper motivation is alleged.” (Janken v. GM Hughe. Electronics (1996) 46 Cal.App.4th 95, 80.) At least one unpublished federal case has persuasively argued that a failure to investigate harassment constitutes a personnel management activity for which intentional infliction of emotional distress does not apply. (Rascon ¥, Diversified Maintenance Systems (E.D. Cal. 2014) 2014 WL 1572554.) Plaintiff provides n rebuttal to the foregoing other than to argue Fox’s failure to investigate constituted an abuse o} power. The case she cites to support this proposition—Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493—is not analogous. There, an employee was subjected to racial epithets and the fired. The Court concluded the employer's willingness to allow the employee to be fired constituted a ratification of the racist diatribe he had been subjected to. Here, Plaintiff does not allege that she was punished either as part of the harm or following an investigation. Rather| Plaintiff merely alleges that after the incident, she left the show. (FAC § 24.) Absent some morq egregious conduct on the part of Fox, itis unclear how the failure to investigate or punish Savagd can constitute extreme or outrageous conduct. For the foregoing reasons, Fox’s demurrer is SUSTAINED, with leave to amend, as t this cause of action, and Savage’s demurrer is OVERRULED. Seventh Cause of Action: Negligent Infliction of Emotional Distress There are two classifications of plaintiffs for negligent infliction of emotional distress claims: (1) bystander; and Q) direct victim. (Marlene F. v. Affiliated Psychiatric Medical Clinic} Inc. (1989) 48 Cal.3d $83, 588.) None of Cross-Complainants’ allegations relate to bystander liability, -13-' In the direct victim context, “unless the defendant has assumed a duty to plaintiff in| 2 |which the emotional condition of the plaintiff is an object, recovery is available only if th 3 emotional distress arises out of the defendant's breach of some other legal duty and th 4 [emotional distress is proximately caused by that breach of duty.” (Potter v. Firestone Tire 5 | Rubber Co, (1993) 6 Cal.4th 965, 984, 985.) 7 Defendants both argue Plaintiff's claim for negligent infliction of emotional distress ig 8. | preempted by California’s Worker's Compensation Act. 10 The Court agrees. Unlike with the Hart case, discussed above with respect to thd 11 lexclusivity provision and the cause of action for negligent hiring and supervision, the case 12. | Plaintiff cites provides for damages beyond worker's compensation only where the negligen 13. |infliction of emotional distress arose from sexual discrimination or harassment. Plaintiff has 14. | failed to sufficiently plead any such gender-based harm. Moreover, unlike with Hart, the term: 15 |of the Labor Code itself makes clear that the instant cause of action would be subject to the 16 | workers compensation exclusivity provision. Specifically, the only potentially relevan 17. | exception, Lab. Code § 3601(b) provides for an exception where one employee is injured by the 18 | “willful and unprovoked physical act of aggression of the other employee.” It was this provision| 19 | that Hart relied on to conclude an employer could ratify its employee’s willful act and be subject 20 |to the exception for the purposes of a negligent retention claim. Here, however, the negligent 21 |infliction of emotional distress, by its terms, requires that Savage’s conduct be negligent, not 22 | willful, The Hart exception therefore would not apply here. 23 24 Defendants’ demurrers are both therefore SUSTAINED, with leave to amend. fe Bs 14.se & 20 21 2 2B 24 25 Eighth Cause of Action: Civil Conspiracy. “[I)n order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it and the damage resulting from such acts.” (State of California ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal. App 4th 402, 419.) Here, Plaintiff alleges Fox and Savage “collectively agreed to commit wrongful acts ag against Plaintiff” that Fox knew Savage would discriminate, harass, and assault Plaintiff; that Savage knew Fox would not investigate or remedy any such incidents; and that Fox and Savag agreed to do so for the purpose of protecting their respective financial interest in working with one another. (FAC 4 69-74.) Defendants demur in part on the ground these allegations are insufficiently specific, but the Court disagrees: Plaintiff clearly alleges the participants in the conspiracy, what was agreed, the motivation for the agreement, and the consequences for the agreement, Next, Defendants argue this cause of action is barred by the agent's immunity rule. Thi rule states that an employer and an employee cannot conspire with one another when the| employees actions are undertaken on behalf of the employer, rather than for the employee’: individual benefit. (See Applied Equip: Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512, fn. 4.) Plaintiff argues 1 rule does not apply because Fox and Savage had independent, individual interests in pursuing the conspiracy, and that Savage was not solely entering the conspiracy to benefit Fox. The Court agrees. The allegations, if true, would suggest Savage has his own image and brand to protect, and thus an independent interest, aside from Fox’s interest, -15-3 a Bs in avoiding the consequences of his actions. Accordingly, the Court concludes the agent’ immunity rule does not apply. Finally, Defendants argue Plaintiff is wrongfully attempting to use a conspiracy cause of action to create a duty. (Id. at 514 [Conspiracy is not an independent tort; it cannot create 3 duty,’ rather, it ‘allows tort recovery only against a party who already owes the duty.” Specifically, Defendants argue Plaintiff is alleging Fox and Savage conspired to commit the fourth and fifth causes of action (failure to prevent discrimination and harassment and negligent hiring, supervision, and retention), but those causes of action cannot be asserted against ai employee, and thus Savage had no duty to not fail to prevent discrimination or not negligently supervise himself, He therefore cannot conspire to do either of those things. (See Id. at $11 [to b liable for conspiracy, the conspirators must be “legally capable of committing the tort”]; Gov. Code § 12940 fonly an employer can be liable for failure to prevent discrimination ot harassment}; MeCliss v. Ward (E.D. Cal. 2008) 2008 WL 3374835 at *2 [Ward cannot be hel liable for the negligent hiring of himself."].) In opposition, Plaintiff does not dispute the foregoing, but argues that Defendants fait take into account the possibility that Fox conspired with Savage for Savage to commit violation of Civ. Code §§ 52.4, 52.1, and 51.7, rather than that Savage conspired with Fox to commit failure to prevent discrimination or negligent hiring. As discussed above, however, Plaintiff has failed to plead that Plaintiff violated any of those statutes. To plead conspiracy, Plaintiff must plead “wrongful acts... . done pursuant to” the conspiracy. Here, because the allegations regarding those statutory violations were insufficiently, the Court concludes there are likewise insufficient allegations of any wrongful acts committed as part of a conspiracy to violate those statutes. (Applied Equip. Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at 511 (“Standing -16-20 21 2 alone, a conspiracy does no harm and engenders no tort liability. It must be activated by thd commission of an actual tort.”),) Thus, because there can be no conspiracy as to the first three causes of action, and because Savage cannot have conspired to commit the fourth or fifth causes of action, Defendants’ demurrers are SUSTAINED, with leave to amend, as to the eighth cause of action. Ninth Cause of Action: Breach of Bus. & Prof. Code § 17200 The UCL is codified in Business and Professions Code section 17200 et seq. The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” “Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Podolsky y. First Healtheare Corp. (1996) 50 Cal.App.4th 632, 647, 58 Cal.Rptr.2d 89.) An act can be alleged to violate any or all of the three prongs of the UCL—unlawful, unfair, or fraudulent. (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) Defendants first demur on the ground that the ninth cause of action is contingent on all other causes of action, and that because those causes of action fail, this cause of action must al fail. For the reasons stated above, however, Plaintiff's cause of action against Fox for negligent hiring, supervision, or retention, and cause of action for intentional infliction of emotional distress against Savage, remain pending. Defendants are therefore. incorrect that all claims ar meritless. Second, Defendants demur on the ground the only relief available under Bus. & Prof Code § 17200 is res jon or injunctive relief, and that Plaintiff is entitled to neither. -17-20 2 2 2B a Bs As to restitution, Defendants argue Plaintiff can only claim restitution if she seeks th return of something given up to or taken by Defendants. (See, e.g., Day v. AT&T (1998) 63 Cal. App. 4th 325, 340; Madrid v, Perot Sys. Corp. (2005) 130 Cal. App. 4th 440, 453.) Defendant argue Plaintiff does not allege anything was taken by Defendants. The Court agrees. In opposition, Plaintiff's sole response is to argue that she is entitled t restitution because under People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1560, restitution “is available from those who did not receive money directly from the vietims of the fraudulent, unlawful, or uni ir practice.” This statement, however, relates solely to a questior regarding which defendant is the proper defendant from whom to obtain relief; there still must b the initial loss of property or money to someone because of the allegedly unfair or unlawful conduct. Defendants argument was not that the property lost by Plaintiff was not in thei possession, but that Plaintiff has not alleged any loss of property. Indeed, Plaintiff fails t identify any such iost property. Plaintiff's Bus. & Prof. Code § 17200 claim therefore cannot be based on restitution. As to injunctive relief, Defendants argue there is legitimate threat of future misconduct that needs to be prevented by an injunction. “In order to grant injunctive relief under the UCL, there must be.a thieat that thie wrongful conduct will continue.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1326-27; see also People v. Toomey (1984) 157 Cal.App.3d 1, 2 {there may be no injunctive relief for “wrongs which have been completed,” without “a showing! of threatened future harm or continuing violation.”].) : -18-2 23 ga 2 Bs Here, Plaintiff admits that she has not worked with Savage since the alleged incident occurred. Thus, her complaint is entirely backwards-looking, and seeks to punish wrongdoing, not prevent future harm. Plaintiff argues that there is a threat of future harm because she and) Savage continue to both work for Fox and could be required to work together again, but the| Court agrees this possibility is too speculative to warrant an injunction. The Court would have t assume that Fox would force Savage and Plaintiff to work together again and that Savage would again cause Plaintiff emotional distress through some willful behavior. The Court conclude these allegations do not support the issuance of an injunetion, Defendants’ demurrers to the ninth cause of action are therefore SUSTAINED, wit leave to amend. Conclusion Defendant Fred Savage’s demurrer is SUSTAINED, with twenty days leave to amend, a to the first, second, third, seventh, eighth, and ninth causes of action, and is OVERRULED as t the sixth cause of action. Defendants Twentieth Century Fox Film Corp. and Twentieth Century, Fox Television’s demurrer is SUSTAINED, with twenty days leave to amend, as to the fourth, sixth, seventh, eighth, and ninth causes of action, and is OVERRULED as to the fifth cause of action Defendants are‘ordered to give notice of this ruling, Parties who intend: to submit on this tentative must send an email to the Court at SMCDEPTS6@lacourt.org as directed by the instructions provided on the court website at -19-| | www.lacourtorg. If the department does not receive an email and there are no appearances a 2. | the hearing, the motion will be placed off calendar. 4 Dated this 29th day offAugust 2018 20 21 2 23 & = -20-