Filed 10/26/17
                            CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



M.F.,                                            D070150

        Plaintiff and Appellant,

        v.                                       (Super. Ct. No. 37-2014-00039787-
                                                 CU-PO-CTL)
PACIFIC PEARL HOTEL MANAGEMENT
LLC,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Reversed and remanded for further proceedings.



        Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, Jeremy K. Robinson; The

Pride Law Firm and Jessica K. Pride, for Plaintiff and Appellant.

        Williams Iagmin and Jon R. Williams, for Defendant and Respondent.
                                             I

                                    INTRODUCTION

       In this appeal, we address whether, for purposes of overcoming the workers'

compensation exclusivity doctrine (Lab. Code, §§ 3600, subd. (a), 3602, subd. (a)), a

housekeeping employee stated claims against her hotel employer for violating provisions

in the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et

seq.)1 requiring the employer to protect the employee from nonemployee sexual

harassment. The employee alleged facts showing: (1) she was raped while working on

the employer's premises by a drunk nonemployee trespasser; (2) the employer knew or

should have known the trespasser was on the employer's premises for about an hour

before the rape occurred; and (3) the employer knew or should have known that, while on

the employer's premises, the trespasser had aggressively propositioned at least one other

housekeeping employee for sexual favors.

       We conclude these facts are sufficient to state claims under the FEHA for sexual

harassment by a nonemployee (§ 12940, subd. (j)(1)) and for failure to prevent such

harassment (§ 12940, subd. (k)).2 Because the superior court determined otherwise and

dismissed the employee's operative third amended complaint (complaint) after sustaining

the employer's demurrer to it without leave to amend, we reverse the judgment and

remand the matter to the court for further proceedings consistent with this decision.

1      Further statutory references are to the Government Code unless otherwise
specified.

2      We express no view on whether these claims will ultimately prove meritorious.
                                             2
                                             II

                                    BACKGROUND

       According to the allegations in the complaint, which we must accept as true for

purposes of this appeal (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919,

924), M.F. worked for Pacific Pearl Hotel Management, LLC (Pacific) as a housekeeper

at its five-building hotel property. One morning, the hotel's engineering manager saw a

drunk man, who was not a guest of the hotel, walking around the hotel property with a

beer in his hand (the trespasser). The engineering manager first saw the trespasser

walking around the balcony on the third floor of one of the hotel buildings. The

engineering manager then saw the trespasser on the second floor of the building and once

more in the elevator as it was going down to the first floor of the building. The

engineering manager did not ask the trespasser to leave. The engineering manager also

did not report the trespasser's presence to housekeeping management or to the police

department.

       The trespasser approached housekeepers cleaning hotel rooms three times while he

walked around the hotel property. On the first occasion, the trespasser asked the

housekeeper to use the restroom. He falsely told the housekeeper the room she was

cleaning was his cousin's room, but he could not produce a room key. The trespasser

then made sexually harassing comments, showed the housekeeper a handful of $5 bills,

and offered the housekeeper money in exchange for sexual favors. A maintenance

worker overheard the trespasser's sexually harassing comments and helped the

housekeeper persuade the trespasser to leave the room.

                                             3
       On the second occasion, the trespasser tried to enter a hotel room on the third floor

of another building. He offered the housekeeper who was cleaning the room money for

sexual favors. The housekeeper closed the door on the trespasser and reported the

incident to housekeeping management.

       Using a walkie-talkie system, a housekeeping manager broadcasted the trespasser's

activities and location to other housekeeping managers. The housekeeping manager then

went to one of the buildings to check on the safety of the housekeepers. However, the

housekeeping manager did not go to the building where the second incident occurred

because M.F.'s supervisor was assigned to that building. M.F.'s supervisor checked the

first floor of the building, but did not check the second floor, where M.F. was working.

       On the third occasion, the trespasser went to the hotel room M.F. was cleaning.

Her cleaning cart was parked in front of the room door. As she went to put cleaning

supplies back into the cart, the trespasser confronted her and blocked her exit. He pushed

the cart to the side, pushed the room door open, forced M.F. back into the room, and

asked her to close the blinds. She refused to close the blinds and tried to get past him.

He grew agitated and punched her in the face, knocking her out.

       When M.F. regained consciousness, the blinds were closed and the trespasser was

raping her on the hotel room bed. He sexually harassed, assaulted, battered, and

sodomized her for over two hours. During that time, her cleaning cart remained outside

the hotel room, the blinds remained closed, and no one from the hotel came looking for

her.



                                             4
       Approximately two hours after the trespasser started assaulting M.F., a

housekeeping employee knocked on the hotel room door to deliver a crib. The trespasser

answered the door and told the employee to leave the crib outside the room. The

employee left the crib and did not inquire as to M.F.'s whereabouts. A short time later,

the trespasser left the room.

       M.F. used the hotel room phone to call housekeeping for help, but no one

answered. She then called the police department, who responded and rescued her. She

went to a hospital, where she remained for weeks. She still has not recovered from her

injuries.

       M.F. sued Pacific for hostile work environment sexual harassment and for failure

to prevent sexual harassment.3 The gravamen of the complaint as to Pacific was that

Pacific violated the FEHA by allowing the trespasser to sexually harass M.F. and by

failing to take reasonable steps to prevent the sexual harassment from occurring.

       Pacific demurred to the complaint on the ground the complaint failed to state a

cause of action. Pacific argued M.F. had not pleaded sufficient facts to show Pacific

knew or should have known about any conduct by the trespasser requiring action by

Pacific or putting Pacific on notice a sexual assault might occur. Consequently, Pacific

argued the complaint did not state viable claims under the FEHA and M.F.'s claims

against Pacific were barred by the workers' compensation exclusivity doctrine.




3      M.F. sued other parties for other causes of action not at issue in this appeal.

                                              5
       The superior court agreed with Pacific's position. The court sustained Pacific's

demurrer without leave to amend and dismissed M.F.'s complaint with prejudice.4

                                             III

                                      DISCUSSION

                                             A

       "The standards for reviewing a judgment of dismissal following the sustaining of a

demurrer without leave to amend are well settled. ' " 'We treat the demurrer as admitting

all material facts properly pleaded, but not contentions, deductions or conclusions of fact

or law. [Citation.] We also consider matters which may be judicially noticed.'

[Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a

whole and its parts in their context. [Citation.] When a demurrer is sustained, we

determine whether the [complaint] states facts sufficient to constitute a cause of action.

[Citation.] And when it is sustained without leave to amend, we decide whether there is a

reasonable possibility that the defect can be cured by amendment: if it can be, the trial

court has abused its discretion and we reverse; if not, there has been no abuse of

discretion and we affirm. [Citations.] The burden of proving such reasonable possibility

is squarely on the plaintiff." ' " (Finch Aerospace Corp. v. City of San Diego (2017) 8

Cal.App.5th 1248, 1251–1252.)




4     Pacific previously demurred to M.F.'s first amended complaint and second
amended complaint on similar grounds. The court sustained these demurrers with leave
to amend.
                                             6
                                              B

       Generally, the right to recover workers' compensation benefits is the exclusive

remedy for an employee against an employer for a workplace injury. (Lab. Code,

§§ 3600, subd. (a), 3602, subd. (a); Arriaga v. County of Alameda (1995) 9 Cal.4th 1055,

1058-1059.) This includes an injury caused by "an employer's negligent or reckless

failure to provide adequate premises security despite knowledge of danger to its

employees." (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1263.)

       "The underlying premise behind this statutorily created system of workers'

compensation is the ' "compensation bargain.'' ' [Citation.] Pursuant to this presumed

bargain, 'the employer assumes liability for industrial personal injury or death without

regard to fault in exchange for limitations on the amount of that liability. The employee

is afforded relatively swift and certain payment of benefits to cure or relieve the effects of

industrial injury without having to prove fault but, in exchange, gives up the wider range

of damages potentially available in tort.' " (Charles J. Vacanti, M.D., Inc. v. State Comp.

Ins. Fund (2001) 24 Cal.4th 800, 811.) "[W]hen a complaint affirmatively alleges facts

indicating that [the Workers' Compensation Act (Lab. Code, § 3200 et seq.)] applies, no

civil action will lie, and the complaint is subject to a general demurrer unless it states

additional facts that negate application of the exclusive remedy rule." (Arriaga v. County

of Alameda, supra, 9 Cal.4th at p. 1060.)

       Pacific does not dispute the workers' compensation exclusivity doctrine is

inapplicable to claims under the FEHA. (See B & E Convalescent Center v. State

Compensation Ins. Fund (1992) 8 Cal.App.4th 78, 89–92; Meninga v. Raley's, Inc.

                                              7
(1989) 216 Cal.App.3d 79, 91; Jones v. Los Angeles Community College Dist. (1988) 198

Cal.App.3d 794, 808–809; see also Light v. Department of Parks & Recreation (2017) 14

Cal.App.5th 75, 97–98 [citing a number of California authorities concluding "claims for

intentional infliction of emotional distress in the employment context may be asserted

where the actionable conduct also forms the basis for a FEHA violation"].)

Consequently, if the complaint states viable claims against Pacific under the FEHA, the

workers' compensative exclusivity doctrine presents no bar to M.F.'s claims, and the

complaint is not subject to a general demurrer on this ground.

                                             C

                                              1

       The FEHA provides: "An employer may … be responsible for the acts of

nonemployees, with respect to sexual harassment of employees ..., where the employer,

or its agents or supervisors, knows or should have known of the conduct and fails to take

immediate and appropriate corrective action. In reviewing cases involving the acts of

nonemployees, the extent of the employer's control and any other legal responsibility that

the employer may have with respect to the conduct of those nonemployees shall be

considered." (§ 12940, subd. (j)(1).)5 The FEHA also makes it unlawful "[f]or an

employer ... to fail to take all reasonable steps necessary to prevent ... harassment from

occurring." (§ 12940, subd. (k).) A plaintiff cannot state a claim for failure to prevent



5      Effective January 1, 2018, this provision of the FEHA will be amended to
substitute the word "if" for the word "where" in the first quoted sentence. (Stats. 2017,
ch. 799, § 6.) The amendment does not affect our decision.
                                              8
harassment unless the plaintiff first states a claim for harassment. (See Featherstone v.

Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166;

Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288–289.)

                                             2

       Pacific contends the complaint fails to state viable claims under these provisions

of the FEHA because M.F. has not and cannot allege facts showing Pacific knew the

trespasser posed a risk to housekeeping employees before he appeared on the hotel

property and began harassing them. However, the fact Pacific may not have had any

responsibility to housekeeping employees under the FEHA before the trespasser appeared

on the hotel property does not preclude Pacific from having such responsibilities after the

trespasser appeared, particularly after the trespasser began confronting and aggressively

propositioning housekeeping employees for sexual favors. "Once an employer is

informed of the sexual harassment, the employer must take adequate remedial measures.

The measures need to include immediate corrective action that is reasonably calculated to

(1) end the current harassment and (2) to deter future harassment. [Citation.] The

employer's obligation to take prompt corrective action requires (1) that temporary steps

be taken to deal with the situation while the employer determines whether the complaint

is justified and (2) that permanent remedial steps be implemented by the employer to

prevent future harassment." (Bradley v. Department of Corrections & Rehabilitation

(2008) 158 Cal.App.4th 1612, 1630.)

       Likewise, the fact the trespasser's initial harassment was not directed at M.F. does

not preclude Pacific from having responsibilities under the FEHA toward her. If an

                                             9
employer knows a particular person's abusive conduct places employees at unreasonable

risk of sexual harassment, the employer cannot escape responsibility to protect a likely

future employee victim merely because the person has not previously abused that

particular employee. (See Ferris v. Delta Air Lines, Inc. (2001) 277 F.3d 128, 136.)6

"The more egregious the abuse and the more serious the threat of which the employer has

notice, the more the employer will be required under a standard of reasonable care to take

steps for the protection of likely future victims." (Id. at p. 137.)

                                               3

       Pacific also contends the complaint fails to state viable claims because section

12940, subdivision (j)(1), is inapplicable to the factual circumstances of this case.

However, the language of section 12940, subdivision (j)(1), does not limit its application

to a particular fact pattern. Rather, the language of the statute provides for liability

whenever an employer (1) knows or should know of sexual harassment by a

nonemployee and (2) fails to take immediate and appropriate remedial action (3) within

its control.

       The statute's legislative history also does not support this contention. As Pacific

correctly points out, the statute's legislative history indicates the Legislature enacted the

statute to reject the analysis in Salazar v. Diversified Paratransit, Inc. (2003) 103

Cal.App.4th 131 (Salazar) and to clarify the FEHA protects employees from



6      "Because [the] FEHA is modeled after federal antidiscrimination laws, decisions
interpreting federal statutes are relevant when interpreting similar provisions of [the]
FEHA." (Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 7.)
                                              10
nonemployee sexual harassment. (Carter v. California Dept. of Veterans Affairs (2006)

38 Cal.4th 914, 921.) But, nothing in the legislative history indicates the Legislature

intended to limit the statute's application to the specific factual circumstances presented

in the Salazar case. The Legislative Counsel's Digest, which is entitled to great weight

because it is the official summary of the bill's legal effect relied upon by the Legislature

during the legislative process (Madrigal v. California Victim Comp. & Government

Claims Bd. (2016) 6 Cal.App.5th 1108, 1117), contains no hint of such a limitation.

Rather, the Legislative Counsel's Digest states, "This bill would revise [existing law] to

include sexual harassment by nonemployees if the employer knows or should have

known of the incident and fails to take corrective action. [¶] The bill would state the

Legislature's intent to construe and clarify existing law and reject the interpretation given

to existing law by [the Salazar case]." (Legis. Counsel's Dig., Assem. Bill No. 76,

(2003–2004 Reg. Sess.) 4 Stats. 2003, Summary Dig., p. 329.)

       The committee reports and analyses relied upon by Pacific also do not indicate an

intent to limit the statute's application to the factual circumstances presented in the

Salazar case. Rather, the reports and analyses indicate an intent to limit the statute's

application to sexual harassment, and to not apply it to harassment on other prohibited

bases. (Assem. Conc. in Sen. Amend. to Assem. Bill No. 76 (2003–2004 Reg. Sess.) as

amended Aug. 28, 2003, p. 1 ["The Senate amendments are technical and clarifying and

... expressly limit the bill to the sexual harassment issue presented by the Salazar case"];

id. at p. 3 ["This bill speaks solely to the sexual harassment issue presented by the

Salazar case and no longer addresses the question of harassment on other prohibited

                                              11
bases"]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill

No. 76 (2003–2004 Reg. Sess.) as amended Aug. 28, 2003, p. 2 ["The [Senate]

amendment limits the application of this bill to instances of sexual harassment, rather

than to all harassment"].)

                                              4

        Finally, Pacific contends that even if it had some responsibility to M.F. under the

FEHA, it fulfilled its responsibilities by providing a reasonable and adequate response.

However, whether an employer sufficiently complied with its mandate to " 'take

immediate and appropriate corrective action' " (§ 12940, subd. (j)(1)) is a question of fact.

(Bradley v. Cal. Dept. of Corrections and Rehabilitation, supra, 158 Cal.App.4th at

p. 1630.) Questions of fact generally require the consideration and weighing of evidence,

which makes them unsuitable for resolution on demurrer. (See Klein v. Chevron U.S.A.,

Inc. (2012) 202 Cal.App.4th 1342, 1376.) This case presents no exception to the general

rule.

                                             IV

                                       DISPOSITION

        The judgment is reversed and the matter is remanded to the superior court for

further proceedings consistent with this decision. M.F. is awarded her appeal costs.




                                             12
                    MCCONNELL, P. J.

WE CONCUR:



BENKE, J.



O'ROURKE, J.




               13
