Belladiem Bookin v. Eric Torbet, et al.

truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial Court to sustain a demurrer if the Plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the Court to sustain a demurrer without leave to amend if the Plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) "The reviewing Court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.) "[I]n ruling on a demurrer the trial Court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.) (2) First Cause of Action (COA) for Childhood Sexual Abuse - Code of Civil Procedure Section 340.1, Subdivision (a)(1) Plaintiff argues she has alleged facts to support a claim under Penal Code section 647.6, one of the statutes constituting childhood sexual abuse under Code of Civil Procedure section 340.1. (Code Civ. Proc., § 340.1, subd. (c).) "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." (Pen. Code, § 647.6, subd. (a)(1).) Torbet argues that the elements of this Penal Code section have not been alleged. "[A] violation of [Penal Code] section 647.6, subdivision (a) requires proof of the following elements: (1) the existence of objectively and unhesitatingly irritating or annoying conduct; (2) motivated by an abnormal sexual interest in children in general or a specific child; (3) the conduct is directed at a child or children, though no specific child or children need be the target of the offense; and (4) a child or children are victims." (People v. Phillips (2010) 188 Cal.App.4th 1383, 1396.) Here, the FAC alleges Plaintiff was approximately five years old when the alleged sexual abuse began. (FAC, ¶ 12.) Torbet was a grown man at the time of the alleged sexual abuse. (Ibid.) The FAC alleges that Torbet "induced physical contact ... sometimes with his hand and her vagina by having her do yoga or dancing poses with him, or by giving her piggyback rides, or by having her sit on his lap and moving her back and forth across his genitals while he was sexually aroused and inducing her to kiss his cheek." (FAC, ¶ 15.) This type of behavior allegedly "continued every time he came over, and at least once a week, until she began to lose interest in dolls around 5th grade, leading him to switch to imaginary sexual acts, referring to her by a different name, showing her how to do things such as put hickies on his arm, or playing games in which he would slide his hand up her thighs." (FAC, ¶ 16.) Torbet's alleged "grooming created an emotional dependency in Plaintiff on Torbet that he then exploited for his own sexual gratification." (FAC, ¶ 13.) The elements of the first cause of action for childhood sexual abuse have been alleged based on Penal Code section 647.6. (See FAC, ¶¶ 1, 9, 11-17.) (3) Second COA for Sexual Battery - Civil Code Section 1708.5 Sexual battery under Civil Code section 1708.5 includes: "(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results. "(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results. "(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results." (Civ. Code, § 1708.5, subds. (a)(1)-(3).) " 'Intimate part' means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female." (Civ. Code, § 1708.5, subd. (d)(1).) " 'Offensive contact' means contact that offends a reasonable sense of personal dignity." (Id., subd. (d)(2).) "A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages." (Civ. Code, § 1708.5, subd. (b).) The SAC alleges: "Initially Torbet used the girl's dolls to exploit her sexually, simulating the dolls engaging in sex acts while describing such acts in detail to the young 3rd grader who had never heard such talk, and telling her it

was a natural thing. As he normalized his abuse, he began to induce her to simulate the sexual acts with the dolls while he made moaning sounds, first with kissing, then digital penetration, then oral copulation and intercourse. He also induced physical contact with him, sometimes with his hand and her vagina by having her do yoga or dancing poses with him, or by giving her piggyback rides, or by having her sit on his lap and moving her back and forth across his genitals while he was sexually aroused and inducing her to kiss his cheek. [¶] This type of behavior continued every time he came over, and at least once a week, until she began to lose interest in dolls around 5th grade, leading him to switch to imaginary sexual acts, referring to her by a different name, showing her how to do things such as put hickies on his arm, or playing games in which he would slide his hand up her thighs. Torbet also created something he called 'sex camp' so that Plaintiff and one of her friends would know how to please boys on whom they had crushes. Torbet then created a simulated boy out of a cardboard box and induced the young girls to simulate sex acts with it and to French kiss each other. He also induced them to simulate various sexual positions with the cardboard boy and each other, including the missionary position, and had them practice performing oral sex on a felt marker, while telling them to be sure to swallow. At other times he would tell her to pretend she was his student, and would spank her for purportedly getting in trouble." (SAC, ¶¶ 15-16.) These alleged circumstances, assuming their truth, allege a harmful, sexually offensive contact by Torbet with Plaintiff under Civil Code section 1708.5. (FAC, ¶¶ 1, 9, 11-17.) (4) Third COA for IIED "The elements of a cause of action for IIED are as follows: (1) Defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, Plaintiff suffered extreme or severe emotional distress. [Citation] Additionally, '[i]t must be conduct directed at the Plaintiff, or occur in the presence of the Plaintiff of whom the Defendant is aware.' [Citation.] 'The requirement that the Defendant's conduct be directed primarily at the Plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.' " (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) "Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) "Behavior may be considered outrageous if a Defendant abuses a position which gives him power to damage the Plaintiff's interest." (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) "Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability." (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.) Plaintiff supports her IIED claim with the allegations in the FAC discussed in this ruling above. (See FAC, ¶¶ 1-28.) The FAC further alleges, "Torbet's conduct was intentional and malicious and done for the purpose of causing Plaintiff to suffer humiliation, mental anguish, and severe emotional and physical distress. [¶] As a proximate result of Defendant Torbet's tortious and felonious conduct, Plaintiff has suffered and will continue to suffer physical harm, humiliation, emotional distress, and mental and physical pain and anguish, all to her damage in a sum according to proof." (See FAC, ¶¶ 30-31.) The elements of the third COA for IIED have been alleged. (See FAC, ¶¶ 1, 9, 11-17, 30-31.) (5) Fourth COA for Negligence The SAC alleges the fourth COA for negligence against all Defendants. (SAC, p. 7, ll. 12-14.) However, Plaintiff concedes in her opposition that this COA is not directed at Torbet. (Opposition, p. 7, ll. 4-5 ["This cause of action is not directed at Defendant Torbet."].) As to this COA, Plaintiff does not make any argument as to why Torbet's demurrer should not be sustained. (Ibid.) Plaintiff does not appear to seek leave to amend this COA as to Torbet. (Ibid.) Based on Plaintiff's concession, the Court will sustain Torbet's demurrer to the fourth cause of action for negligence, as to Torbet only, without leave to amend. (6) Plane's Capacity to Sue as Guardian Ad Litem Torbet argues based on Plaintiff's discovery responses that Plane cannot act as Plaintiff's guardian ad litem in this action. The Court's records indicate that a conservatorship was established In the Matter of the Conservatorship of Belladiem ("Bella") Mikayla Bookin, Santa Barbara Superior Court case No. 24PR00514. Plane's appointment as guardian ad litem in this action was made pursuant to this conservatorship. (Application and Appointment Guardian Ad Litem, April 10, 2025; Order Appointing Guardian Ad Litem, April 11, 2025.) The

Court declines to address these issues on demurrer notwithstanding Torbet's argument that Plaintiff's discovery responses are inconsistent with this appointment. The conservatorship involves factual issues in another action not appropriate for resolution on demurrer. "This is not summary judgment or trial; it is demurrer. Our task is to treat the well-pleaded allegations of the complaint as true and determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] 'The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the Court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the Plaintiff.' " (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 559-560.)

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