Case Name: Jane Doe v. Ali Kamarei, et al.
Case No.: 18CV324275
I. Factual Background
This is a sexual abuse case brought by plaintiff Jane Doe (“Plaintiff”), a minor, against defendant Ali Kamarei (“Defendant”). As alleged in the Complaint, Defendant is in a romantic relationship with Plaintiff’s mother. (Complaint, ¶ 5.) Consequently, he was entrusted with caring for Plaintiff. (Id. at ¶ 11.) On multiple occasions, beginning around January 2017, Defendant touched Plaintiff’s sexual organs underneath her clothing. (Id. at ¶ 6.)
The Complaint asserts causes of action for sexual battery and intentional infliction of emotional distress.
Currently before the Court are Defendant’s demurrer and motion to strike. Plaintiff opposes only the demurrer and files a request for judicial notice in support.
II. Request for Judicial Notice
Plaintiff seeks judicial notice of the Complaint. Under Evidence Code section 452, subdivision (d), court records are generally proper subjects of judicial notice. With that said, judicial notice is unnecessary because the Complaint is the pleading under review and, as such, must be considered by the Court. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.)
As such, Plaintiff’s request for judicial notice is DENIED.
III. Demurrer
Defendant demurs to both causes of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e) and (f).)
As a preliminary matter, Defendant’s papers reflect a significant lack of care and attention to detail. In the demurrer itself, Defendant erroneously labels both the first and second causes of action as claims for “Breach of Contract” despite the fact no such claim is alleged in the Complaint. He also states under the heading “Demurrer to Second Cause of Action” that the “First Cause of Action” fails to state sufficient facts and is uncertain. (Dem. at p. 1:23, 2:1-4.) Then, in the introduction to his memorandum, Defendant includes an incomplete paragraph discussing defects in a breach of contract claim even though no such claim is pled in this case. (Mem. of Pts. and Auth. at p. 2:1-7.)
Next, in advancing his arguments, Defendant is terse and does not distinguish between the two causes of action despite the fact these claims have separate and distinct elements. Nor does he distinguish between the grounds for demurrer. To that point, there is a significant difference between demurring on the ground of failure to state sufficient facts and the ground of uncertainty.
A demurrer on the ground of failure to state sufficient facts “tests the legal sufficiency of a complaint,” particularly whether a plaintiff has alleged facts to establish every element of each cause of action. (Rakestraw v. California Physicians’ Serv. (2000) 81 Cal.App.4th 39, 43; see also Augustine v. Trucco (1954) 124 Cal.App.2d 229, 236.) In contrast, a demurrer for uncertainty will be sustained only where the allegations of the pleading are so unintelligible the defendant cannot reasonably respond them, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) A “[special] demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605; People v. Lim (1941) 18 Cal.2d 872, 883.) Given the stark difference between these two grounds for demurrer, it is problematic to advance a single set of arguments relative to both.
Turning to the contentions made, Defendant first asserts the allegation Plaintiff was touched inappropriately on multiple occasions “beginning in or around January 2017” is insufficient. He argues Plaintiff “should state the specific date or dates of the alleged sexual battery” to provide him with “factual notice” of what battery is being alleged. (Mem. of Pts. and Auth. at p. 2:25-27.)
At the outset, it is unclear if this argument is directed only to the sexual battery claim or also the claim for intentional infliction of emotional distress. Regardless, the argument is unsubstantiated. The only authority Defendant references in support is Code of Civil Procedure section 425.10, which provides that a complaint must contain “a statement of the facts constituting the cause of action.” (See Code Civ. Proc., § 425.10, subd. (a)(1).) This statute is one of general application and has nothing to do with the specific pleading requirements for a claim for sexual battery or intentional infliction of emotional distress. As such, Defendant’s position is unsupported.
Defendant next contends Plaintiff does not allege the purported touching was intentional, which is essential for a claim of sexual battery. (See Shanahan v. State Farm Gen. Ins. Co. (2011) 193 Cal.App.4th 780, 788 [“[T]he tort of sexual battery requires an intent to cause a harmful or offensive contact[.]”]; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.) This argument appears to relate only to the first cause of action.
The contention lacks merit as Plaintiff does allege Defendant’s conduct was intentional. Specifically, she states in her first cause of action that “[t]he above-described conduct was willful, wanton, and malicious, and was intended to cause injury.” (Complaint, ¶ 10, emphasis added.) The words “willful” and “wanton” indicate intentionality. As defined by Black’s Law Dictionary (Tenth ed. 2014), the word “willful” means: “Voluntary and intentional.” As for “wanton,” it can be defined as “causing harm or acting without showing care for others, often intentionally.” (Cambridge Dict., https://dictionary.cambridge.org/us/dictionary/english/wanton [as of September 6, 2018].) Additionally, Plaintiff explicitly alleges Defendant’s conduct was intended to cause her injury.
Accordingly, the demurrer to both the first and second causes of action on the grounds of failure to state sufficient facts and uncertainty is OVERRULED.
IV. Motion to Strike
Defendant moves to strike the prayer for attorney’s fees, arguing there is no basis for them. Plaintiff filed a statement of non-opposition to this motion.
As such, the unopposed motion to strike the prayer for attorney’s fees is GRANTED WITHOUT LEAVE TO AMEND.