16 Cal. App. 5th 693
Cal. Ct. App. 5th2017Background
- M.F., a housekeeper at a multi‑building hotel, was raped in a guest room by a drunk nonemployee trespasser while working. She suffered severe injuries and required hospitalization.
- Hotel employees (engineering and housekeeping staff) observed the trespasser walking the property for about an hour; some housekeepers reported he aggressively propositioned them and offered money for sex.
- Housekeeping managers broadcast the trespasser’s location by radio; some managers checked buildings but did not locate M.F. or otherwise remove the trespasser; an engineering manager who saw the trespasser did not ask him to leave or notify police.
- The trespasser confronted M.F., blocked her exit, knocked her unconscious, and assaulted and raped her for over two hours; other staff encountered the trespasser during the assault but did not investigate M.F.’s whereabouts.
- M.F. sued the hotel (Pacific) under FEHA for sexual harassment by a nonemployee (Gov. Code § 12940(j)(1)) and for failure to prevent harassment (§ 12940(k)). The trial court sustained Pacific’s demurrer without leave to amend and dismissed the complaint; the court of appeal reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEHA §12940(j)(1) and (k) apply to nonemployee sexual harassment on employer premises | M.F. argued the hotel knew or should have known of the trespasser’s harassing, aggressive conduct toward housekeepers and failed to take immediate, appropriate action to stop or prevent it | Pacific argued it lacked notice that the trespasser posed a risk to employees and so owed no FEHA duties; therefore workers’ compensation exclusivity barred tort recovery | Court held FEHA covers nonemployee harassment where employer knows or should know and fails to act; facts alleged state viable FEHA claims, so workers’ comp exclusivity does not bar them |
| Whether allegations here sufficiently plead employer knowledge and failure to take corrective action | M.F. argued prior incidents and staff observations put the hotel on notice and required immediate/remedial measures to protect employees | Pacific argued prior conduct did not show foreseeable risk to M.F. and that the hotel’s response was adequate as a matter of law | Court held the pleaded facts—that the trespasser had been observed, had propositioned other housekeepers, and hotel staff broadcast his location but did not remove him—are sufficient to plead notice and a failure to take prompt, appropriate remedial action; adequacy of response is a factual question not resolvable on demurrer |
| Whether the Legislature intended §12940(j)(1) to be limited to particular factual patterns (e.g., Salazar) | M.F. relied on the statute’s plain text and legislative intent to protect employees from nonemployee sexual harassment generally | Pacific relied on Salazar and legislative history to argue a narrower scope | Court rejected narrowing: statutory text and legislative materials do not confine the provision to Salazar facts; §12940(j)(1) applies when employer knows or should know of nonemployee harassment and fails to act |
| Whether dismissal without leave to amend was proper | M.F. argued facts pleaded suffice and any deficiency could be cured | Pacific argued defects were incurable | Court found plaintiff had pleaded sufficient facts and that the trial court erred in sustaining demurrer without leave to amend; reversed and remanded |
Key Cases Cited
- Yvanova v. New Century Mortgage Corp., 62 Cal.4th 919 (court treats demurrer as admitting well‑pled facts)
- Arriaga v. County of Alameda, 9 Cal.4th 1055 (workers’ compensation exclusivity bars civil actions absent facts negating exclusivity)
- Arendell v. Auto Parts Club, Inc., 29 Cal.App.4th 1261 (employer negligence in failing to provide adequate premises security can be compensable under workers’ comp principles)
- Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal.4th 800 (explaining the workers’ compensation ‘‘bargain’’ and exclusivity rationale)
- Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (Second Circuit: employer may be liable to foreseeable victims when it has notice of a nonemployee’s abusive conduct)
- Bradley v. Department of Corrections & Rehabilitation, 158 Cal.App.4th 1612 (employer must take prompt, appropriate corrective action; adequacy is a factual question)
- Salazar v. Diversified Paratransit, Inc., 103 Cal.App.4th 131 (case whose interpretation of nonemployee harassment was expressly rejected/clarified by statute)
- Finch Aerospace Corp. v. City of San Diego, 8 Cal.App.5th 1248 (standards for reviewing demurrer sustained without leave to amend)