Amended Document Filed

Cal. Super. - 5th Dist.March 18, 2021

\OOONQUI-bWNH NNNNNNNNN-‘fl-Ar-‘r-‘Hr-AHHH OONQMAWNHOOOONQUIfiWNHO MICHAEL A. MCGILL (State Bar N0. 23 1 6 1 3) mmcgill@adamsferrone.com E_F|LEDADAMS, FERRONE & FERRONE, APLC 12/14/2021 4.57 PM 4333 Park Terrace Drive, Suite 200 Superior Cou'rt 0f California Westlake Village, California 91361 County 0f Fresno Telephone: (805) 373-5900 By: L Herrera! Deputy Facsimile: (818) 874-1382 Attorneys for Plaintiff Rudy Ramos SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY 0F FRESNO RUDY RAMOS, ) Case N0.; 21CECG00784 ) Plaintiff, ) ) VS. ) FIRST AMENDED COMPLAINT ) FOR DAMAGES AND STATE OF CALIFORNIA; CALIFORNIA ) INJUNCTIVE RELIEF DEPARTMENT OF CORRECTIONS AND ) REHABILITATION; ROBERT DOWNEY JR, ) DEMAND FOR JURY TRIAL individually and as a Captain for State 0f ) California, California Department of Corrections ) and Rehabilitation, and DOES 1 THROUGH 10 ) ) Defendants. ) I. PREFATORY 1. This is an action for damages and injunctive relief for personal injury suffered by Plaintiff as a result 0f sexual and physical assault against Plaintiff. II. PARTIES 2. Plaintiff RUDY RAMOS (RAMOS) was, and at all relevant times unless otherwise mentioned herein, employed by Defendant in the capacity as a correctional officer. As such, he is entitled t0 the benefits and protections of the Public Safety Officers Procedural Bill of Rights Act (POBOR). Plaintiff’s home address is confidential under state law. 3. Defendant STATE OF CALIFORNIA is a public entity doing business under the l FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 2 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Constitution and laws of the State of California, and is responsible for the operation, management and control of multiple state agencies, including, without limitations, the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITIAOTN (“CDCR”), as well as other departments and agencies. CDCR is a duly constituted state agency operating under the laws of the State of California, wholly situated in California. At all relevant times herein, Defendant ROBERT DOWNEY JR. (“DOWNEY”), was employed as a Captain for the State of California and CDCR. 4. Defendant DOES 1 through 10 are not known or identified at this time. On information and belief, Plaintiff alleges that each DOE is in some manner responsible for the wrongs alleged herein, and that each such Defendant advised, encouraged, participated in, ratified, directed, or conspired to do, the wrongful acts alleged herein. When the true names and capacities of said Defendants become known, Claimant will seek relief to amend this claim to show their true identities in place of their fictitious names as DOES 1 through 10. 5. Defendants, and each of them, were the agent, employees and servants of every other Defendant. Defendants acted in the course and scope of said agency, service and employment at all relevant times. III. FACTS COMMON TO ALL COUNTS 6. On or about August 30, 2019, Plaintiff was sexually and physically assaulted and battered by Defendant DOWNEY, at work, while DOWNEY was acting and employed in his official capacity as a manager for the State of California and CDCR. 7. Ramos reported the illegal activity to his employer, as did Plaintiff’s supervisor, with the hopes that the State of California and CDCR would take steps to mitigate or correct the wrongful conduct. The State of California and CDRC initiated an investigation into Ramos’ complaint. Ramos was interviewed as part of the investigation on or about December 12, 2019. Ramos has, in good faith, and in an effort to mitigate his losses, initiated and participated in internal investigations conducted by the State of California and CDCR aimed at lessening his harm. As a result, the doctrine of equitable tolling applies and renders this claim timely. See 3 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, any statute of limitations is tolled “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one”, and where the employee chooses one alternative that “stands to lessen the harm that is the subject of a potential second action”, or “where a first action, embarked upon in good faith, is found to be defective for some reason.” 5. As of today’s date, the Defendants have not finalized, completed or otherwise responded to Ramos’ complaint, or otherwise indicated that the investigation is ongoing or otherwise in order. As a result, Plaintiff filed a tort claim on July 30, 2020. 6. In addition, Plaintiff obtained a Right to Sue from the California Department of Fair Employment and Housing on July 31, 2020. IV. CAUSES OF ACTION FIRST CAUSE OF ACTION SEXUAL BATTERY (Civil Code § 1708.5) Against all Defendants 7. Plaintiff hereby incorporates each and every preceding paragraph as though set forth in full here. 8. Defendant Downey acted with intent to cause a harmful and offensive contact with an intimate part of the Plaintiff and a sexually offensive contact with Plaintiff resulted. 9. Defendant Downey’s conduct was intentional. 10. Defendant Downey’s conduct was a substantial factor in causing Plaintiff harm and emotional distress for which Plaintiff has suffered. 11. As a result of Defendant Downey’s intentional conduct, Plaintiff is entitled to punitive damages against Downey. The employer is liable for the torts of its employees that occur within the course and scope of the employee’s employment. Defendant Downey’s conduct occurred due to the work related conduct of both employees, engaging in a work place meeting, with Defendant Downey exercising supervisory authority to compel Plaintiff to attend and participate. 4 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Plaintiff prays for general damages, special damages and compensatory damages along with all recoverable costs, expenses and interests from Defendants in an amount to be determined at trial. 13. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is at present unaware of the precise amounts of these expenses and fees and will seek leave of court to amend this Complaint when the amounts are fully known. SECOND CAUSE OF ACTION GENDER VIOLENCE (Civil Code § 52.4) Against All Defendants 14. Plaintiff hereby incorporates each and every preceding paragraph as though set forth in full here. 15. Defendant Downey acted with intent to cause a harmful and offensive contact with an intimate part of the Plaintiff and a sexually offensive contact with Plaintiff resulted. 16. Defendant Downey’s conduct was intentional. 17. Defendant Downey’s conduct was a substantial factor in causing Plaintiff harm and emotional distress for which Plaintiff has suffered. 18. As a result of Defendant intentional conduct, Plaintiff is entitled to punitive damages against Downey. The employer is liable for the torts of its employees that occur within the course and scope of the employee’s employment. Defendant Downey’s conduct occurred due to the work related conduct of both employees, engaging in a meeting, with Defendant Downey exercising supervisory authority to compel Plaintiff to attend and participate. 19. Plaintiff prays for general damages, special damages and compensatory damages along with all recoverable costs, expenses and interests from Defendants in an amount to be determined at trial. 20. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is at present unaware of the precise amounts of these expenses and fees and will seek leave of court to amend this Complaint when the amounts are fully known. Plaintiff is entitled to attorney fees and costs under §52.4. 5 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION RALPH ACT (Civil Code § 51.7) Against All Defendants 21. Plaintiff hereby incorporates each and every preceding paragraph as though set forth in full here. 22. Defendant Downey acted with intent to cause a harmful and violent offensive contact with an intimate part of the Plaintiff and a sexually offensive contact with Plaintiff resulted. Defendant grabbed Plaintiff’s body; and held him against his will while engaging in sexual assault and battery. 23. Defendant Downey’s conduct was intentional. 24. Defendant Downey’s conduct was a substantial factor in causing Plaintiff harm and emotional distress for which Plaintiff has suffered. 25. As a result of Defendant Downey’s intentional conduct, Plaintiff is entitled to punitive damages against Downey. The employer is liable for the torts of its employees that occur within the course and scope of the employee’s employment. Defendant Downey’s conduct occurred due to the work related conduct of both employees, engaging in a meeting, with Defendant Downey exercising supervisory authority to compel Plaintiff to attend and participate. 26. Plaintiff prays for general damages, special damages and compensatory damages along with all recoverable costs, expenses and interests from Defendants in an amount to be determined at trial. 27. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is at present unaware of the precise amounts of these expenses and fees and will seek leave of court to amend this Complaint when the amounts are fully known. Plaintiff is entitled to attorney fees and costs. SIXTH CAUSE OF ACTION SEXUAL HARASSMENT (FEHA, Cal Gov’t Code § 12940(j)) Against All Defendants 6 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. Plaintiff incorporates each of the allegations contained above and below as if they were fully set forth here. 29. Defendant State of California: California Department of Corrections and Rehabilitation is an employer within the meaning of Government Code §12926(d) and Government Code § 12940 prohibiting employers and their agents from discriminating, harassing, or retaliating against employees on the basis of sex. Plaintiff was at all material times an employee covered by California Government Code Section 12940 (a) prohibiting discrimination, harassment, or retaliation in employment on the basis of sex, race, national origin, gender and /or sexual orientation. 30. Defendant Downey harassed Plaintiff on the basis of his sex and gender, and created a hostile work environments, under the California Fair Employment and Housing Act (“FEHA”). In addition, Defendant Downey is a supervisor within FEHA, and as a result, Defendant State of California and CDCR are strictly liable for the harassment. 31. Plaintiff was subjected to unwanted sexual harassment and sexual discrimination by Defendant Downey in the course of her employment with Defendant State of California: California Department of Corrections and Rehabilitation. 32. A reasonable person in Plaintiff’s circumstances would have considered the work environment to have been hostile and/or abused based on Defendant conduct. 33. Defendant State of California: California Department of Corrections and Rehabilitation by and through its employees, agents, representatives, including those in supervisory positions, condoned and ratified the harassing conduct by failing to take appropriate action in response to Plaintiff’s complaint regarding Defendant Downey’s conduct. 34. Plaintiff reported Defendant Downey’s sexual assault and battery to her supervisor, agents and/or representatives of Defendant Downey. 35. Defendant State of California: California State of Corrections and Rehabilitation failed to take all reasonable steps to prevent discrimination and harassment against Plaintiff from occurring, and to take immediate and appropriate corrective action to remedy the harassment, in 7 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation of California Government Code Section 12940, subsection (k), by engaging in the course of conduct set forth herein, among other things. 36. Defendant State of California: California Department of Corrections and Rehabilitation committed the acts alleged herein in conscious disregard of Plaintiff’s right to work in an environment free from discrimination and harassment on the basis of his sex and gender. 37. FEHA provides for an award of reasonable attorney’s fees and costs incurred by a prevailing plaintiff in an action brought under its provisions. Plaintiff has employed and will continue to employ attorneys for the initiation and prosecution of this action. Plaintiff has incurred and will continue to incur attorney’s fees and costs herein. Plaintiff is entitled to an award of attorney’s fees and costs. 38. Wherefore, Plaintiff seeks general and special damages in an amount to be proven at trial and attorney’s fees and costs. FIFTH CAUSE OF ACTION FAILURE TO PREVENT SEXUAL HARASSMENT (FEHA, Cal Gov’t Code § 12940(k)) Against State of California, CDCR 39. Plaintiff hereby incorporates each and every preceding paragraph as though set forth in full here. 40. Defendant Downey acted with intent to cause a harmful and violent offensive contact with an intimate part of the Plaintiff and a sexually offensive contact with Plaintiff resulted. Defendant grabbed Plaintiff’s body; held on to him and detained and restrained him. 41. Defendant Downey’s conduct was intentional. 42. Defendant Downey’s conduct was a substantial factor in causing Plaintiff harm and emotional distress for which Plaintiff has suffered. 43. It is an unlawful employment practice in California for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” [Gov.C. § 12940(k). Defendant did not take proactive and preventative measures to keep 8 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff protected from Downey. Plaintiff prays for general damages, special damages and compensatory damages along with all recoverable costs, expenses and interests from Defendants in an amount to be determined at trial. 44. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is at present unaware of the precise amounts of these expenses and fees and will seek leave of court to amend this Complaint when the amounts are fully known. Plaintiff is entitled to attorney fees and costs. V. PRAYER WHEREFORE, Plaintiff prays for the following relief: From Defendant The State of California: California Department of Corrections and Rehabilitation: 1. For pre-judgment interest pursuant to Civil Code section 3287 et. Sez. And/or any other provision of law providing for pre-judgment interest; 2. For general, special, compensatory (including lost wages and benefits), statutory, and all other appropriate damages according to proof; 3. For injunctive relief as described above; 4. For costs of suit; 5. For attorney’s fees as permitted by law; and 6. For any and all other appropriate relief the Court deems necessary. From Defendant Downey 1. For general damages according to proof; 2. For special damages according to proof; 3. For punitive damages and exemplary damages according to proof; 4. For pre-judgment interest pursuant to Civil Code section 3287 et. seq. and/or any other provision of law providing for pre-judgment interest; 5. For compensatory damages and other economic damages according to proof; 6. For costs of suit as allowed by law; and 9 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. For such other further relief as the Court may seem just and proper Dated: December 14, 2021 Respectfully Submitted, ADAMS, FERRONE & FERRONE, APLC By: ________________________________ MICHAEL A. MCGILL Attorney for Plaintiff, RUDY RAMOS DEMAND FOR JURY TRIAL Plaintiff RUDY RAMOS hereby demands a jury trial on all causes of action for which a jury is available under the law. Dated: December 14, 2021 Respectfully Submitted, ADAMS, FERRONE & FERRONE, APLC By: ________________________________ MICHAEL A. MCGILL Attorney for Plaintiff, RUDY RAMOS