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3 SUPERIOR COURT OF THE STATE OF CAL§QrRFIf.\I(I:AAe(r/6 1 5 2079

4 FOR THE COUNTY OF LOS ANGELES — WEST o§cer/c/e,
5 ea euty
6 JANE DOE, CASE NO: BC699288

7 Plaintiff(s), [ ORDER DENYING

DEFENDANT’S MOTION FOR
8 vs. SUMMARY JUDGMENT
9 RUSSELL SIMMONS and DOES 1-50; Dept.: R
10 Hearing Date: 8/15/19
11 Defendant(s). Hearing Time: 8:30am

12 1. Facts and Relevant Procedural History

13 On 3/28/18, plaintiff Jane Doe (“plaintiff”) filed this action alleging sexual assault and
14 other issues against defendant Russell Simmons (“defendant”).
15 According to the operative First Amended Complaint (“FAC”), plaintiff chaperoned her
15 young son to a concert of rap and hip-hop acts associated with defendant, who is the founder of a
17 recording company, Def Jam Recordings. (FAC, ‘I[‘[[2, 11.) During the concert, defendant invited
18 plaintiff and her son backstage. (Id. at ‘][11.) While there, defendant invited plaintiff to an after-
19 party at a hotel, where they socialized at the bar until they went to a nightclub. (Ibid.) Upon
20 returning to the hotel, defendant requested plaintiff accompany him to his room to retrieve an
21 item. (Ibid.) Plaintiff hesitated but defendant insisted he was not inviting her to have sex because

22 he was dating a model. (Ibid.)

23 Plaintiff was assured by these statements and accompanied defendant to him room. (FAC,
24 ‘][12.) Once they entered the room, defendant shut the door and told plaintiff he was going to have

25 sexual relations with her; after plaintiff refused, he stated he would either have sex with her or

26 her son. (lbid.) Defendant then raped her. (Ibz'd.)

27 The FAC asserts the following causes of action: (1) sexual battery (forcible rape); (2)
23 intentional iniction of emotional distress; and (3) negligent iniction of emotional distress.

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 1 Currently before the court is defendant’s motion for summary judgment.

2 2. Plaintiffs Evidentiary Objection

3 Plaintiff objects to the second paragraph contained within the declaration of Felton

4 Newell, Esq. The paragraph in question describes an email plaintiff’s counsel sent to his

5 colleagues prior to the beginning of the case; the paragraph also incorporates the email, which is

6 attached as Exhibit A. (Newell Decl., ‘][2, Exh. A.)

7 Plaintiff argues the email’s contents are settlement negotiations and thus, per Evidence

8 Code section 1152, inadmissible. Evidence Code section 1152, subdivision (a) provides that:

9 “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered

10 or promised to furnish money or any other thing, act, or service to another who has sustained or

11 will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any

12 conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for

13 the loss or damage or any part of it.”

14 Prior to the enactment of Evidence Code section 1152, certain statements made during

15 settlement negotiations were admissible. (See People ex rel. Dept. of Public Works v. Forster

16 (1962) 58 Cal.2d 252, 264, superseded by statute.) The case Caira v. Oner (2005) 126

17 Cal.App.4th 12 (“Cairo”), discusses the legislative history of section 1152 and changes to the rule

18 in Forster. The court stated that: 1

19 “The Law Revision Commission comment accompanying the enactment of Evidence

20 Code section 1152 specifically emphasized that the statute was drafted to include statements made
21 in the context of settlement negotiations:
22 “The words ‘as well as any conduct or statements made in
negotiation thereof’ make it clear that statements made by
23 parties during negotiations for the settlement of a claim may
not be used as admissions in later litigation. This language
24 will change the existing law under which certain statements
25 made during settlement negotiations may be used as
admissions. People [ex rel. Dept. Public Works ] v. Forster
26 [1962] 58 Cal.2d 257, 23 Cal.Rptr. 582, 373 P.2d 630 [
(Forster ) ]. The rule excluding offers is based upon the
27 public policy in favor of the settlement of disputes without
Q28 litigation. The same public policy requires that admissions
‘if made during settlement negotiations also be excluded.... The

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1 rule ‘of the Forster case is changed by [Evidence Code]

Section 1152 because that rule prevents the complete candor
2 between the parties that is most conducive to settlement.”
(Cal. Law Revision Com. com., 29B West's Ann. Evid.Code
3 (1995 ed.) foll. § 1152, p. 519.)"
4 (Caira, supra, 126 Cal.App.4th at 32.)
5 The court went on to say that in light of this legislative history, courts have recognized
6 purpose of section 1152 is “ ‘to promote candor in settlement negotiation. . .”’ and that “[e]vidence
7 should be excluded under Evidence Code section 1152 where ‘The strong public policy favoring
8 settlement negotiations and the necessity of candor in conducting them combine to require
9 exclusion....’ [Citation.]” (Caira, supra, 126 Cal.App.4th at 32-33; see also C & K Engineering

10 Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 13 [stating the trial court properly excluded

11 certain statements plaintiff’s agent made during settlement negotiations because they were
12 inadmissible under Evidence Code section 1152].)

13 Thus, admissions made during the course of settlement negotiations are inadmissible.

14 Here, defendant relies on the email to prove plaintiff’s claims are barred. However, it is clear the

15 information in the email was disclosed in the course of settlement negotiations. (Newell Decl.,
16 Exh. A.) Plaintiff’ s counsel provides additional emails from the same conversation where
17 defendant’s counsel states he will engage in settlement discussions. Specifically, defendant’s
18 counsel states “[y]es, we will engage” in response to the question of whether his client “wishes
19 to engage in good faith [] settlement discussions[.]” (Mastroianni Decl., Exh. A.) Only then did

20 plaintiff’s counsel provide detail and a settlement demand; he also stated the demand would

21 remain open for a short period of time. (Ibid.)

22 Defendant’s argument in reply does not support a contrary conclusion. Defendant

23 responds to plaintiff’s evidentiary objection by stating the email “is not covered by the settlement

24 privilege codified in Evidence Code Section 1154 as it was not an offer to settle or an actual
25 settlement.” (Def. Resp. to P1aintiff’s Evid. Obj, p. 2:9-12.) But this argument is misplaced;
26 plaintiff is relying on a completely different section, Evidence Code section 1152. Section 1152
27 protects any communications made during settlement negotiations; section 1154 protects offers

28 or promises to accept a compromise. Defendant further cites to a case, Arave v. Merrill Lynch,

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1 Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 534 (“Arave”) for the proposition that

2 section 1154 does not protect statements that “are not connected with any attempt of compromise

3 or are statements of fact independent of an offer to compromise.”

4 Arave is not persuasive because it only deals with Evidence Code section 1154, which is

5 inapplicable here, and does not discuss the applicability of section 1152. “The evidence supports

6 a finding that Arave’s letter was not an offer to compromise and is therefore not made

7 inadmissible by Evidence Code section 1154.” Id. at 535. Section 1154, shields evidence that a

8 person has offered or accepted or promised to accept something in satisfaction of a claim. “It is

9 well settled, however, that the rule which excludes offers of compromise **127 does not apply to

10 statements which are in nowise connected with any attempt of compromise or are statements of

11 fact independent of an offer of compromise [Citations.] [‘]I] In considering whether a person’s

12 statement amounts to an ordinary admission or constitutes an offer of compromise, the intention

13 of the party is dispositive [I]f the party making the proposal apparently intended to make no 5
14 concessions but to exact all that he deemed himself entitled to, the proposal is an ordinary

15 admission against interest and not an attempt to compromise.” Id. at 534 (italics in original)
16 (citations omitted)

17 Here, plaintiff’ s counsel first inquired whether defendant’s counsel was even interested in

18 discussing settlement; once he received a confirmation, he provided information and an initial

19 settlement demand. Some of the information provided in the email by plaintiff’s counsel was a
20 concession, since he specifically notes he provided a date that may subject his client’s claim to a

21 statute of limitations defense. (Newell Decl., Exh. A.) Then, in referencing that information, he

22 provides a settlement demand. This demand is not independent of the statements of fact because

23 he states the demand reects the age of the claim. (Ibid.) This is in contrast to the plaintiff in

24 Arave, who sent a demand letter without any prior discussions regarding-settlement, made no

25 concessions, and only sent the letter “as an assertion of the full extent of what he deemed himself

26 entitled to receive.” (Arave, supra, 19 Cal.App.5th at 536.) As such, the email does not constitute

27 an offer to compromise under Evidence Code section 1154.

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1 In the present case, because the demand was made in the course of settlement negotiations

2 and contained material concessions, the court finds that it is covered by Evidence Code section

3 1152. (See Caira, supra, 126 Cal.App.4th at 32-36.)

4 Accordingly, the court sustains plaintiff’ s objection to the second paragraph of the Newell
5 declaration and the exhibit referenced therein.

6 3. Plainti"s Failure to File a Separate Statement

7 Per California Rule of Court, rule 3.1350(d) and Code of Civil Procedure section 437c,

8 subdivision (b)(3), plaintiff was required to file a separate statement. However, she did not do so

9 and defendant contends she therefore conceded material facts, including the date of the alleged

10 incident, and that the court should grant the motion for her failure to file a separate statement.

11 Defendant provides no legal authority supporting his argument that plaintiff conceded all

12 material facts by her failure to file a separate statement. Additionally, plaintiff did file an

13 evidentiary objection to the key fact contained in defendant’s separate statement.

14 Further, the court is not required to grant defendant’s motion. As discussed below,

15 defendant fails to satisfy his moving burden. The court may not grant the motion against the

16 opposing party for failure to file a separate statement unless the moving party satisfies its initial
17 burden first. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.) Since

18 defendant fails to satisfy his burden, the court may not grant the motion for plaintiff’s failure to

19 file a separate statement.

20 4. Legal Standards

21 Summary judgment is proper “if all the papers submitted show that there is no triable issue
22 as to any material fact and that the moving party is entitled to judgment as a matter of law.’’ (Code

23 Civ. Proc., § 437c, subd. (c).) Where a defendant seeks summary judgment or adjudication, he

24 must show that either “one or more elements of the cause of action, even if not separately pleaded,

25 cannot be established, or that there is a complete defense to that cause of action.” (Id. at § 437c,

26 subd. (o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be

27 established” because of the lack of evidence on some essential element of the claim. (Union Bank

28 v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the

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 1 burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to i
2 that cause of action or defense thereto.” (Ibid.)

3 The moving party bears the initial burden of production to make a prima facie showing
4 that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield C0. (2001) 25 Cal.4th

5 826, 850 (“Aguilar”).) A defendant moving for summary judgment must show either (1) that one

6 or more elements of the cause of action cannot be established or (2) that there is a complete

7 defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p).) A defendant may discharge

8 this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery

9 responses conceding that the plaintiff lacks evidence to establish an essential element of the

10 plaintiff's case.
11 “ ‘[A] defendant may simply show the plaintiff cannot
establish an essential element of the cause of action “by
12 showing that the plaintiff does not possess, and cannot
13 reasonably obtain, needed evidence.’ (Id. at p. 854.) Thus,
rather than affirmatively disproving or negating an element
14 (e.g., causation), a defendant moving for summary judgment
15 has the option of presenting evidence reecting the plaintiff
does not possess evidence to prove that element. ‘The
16 defendant may, but need not, present evidence that
conclusively negates an element of the plaintiffs cause of
17 action. The defendant may also present evidence that the
18 plaintiff does not possess, and cannot reasonably obtain,
needed evidence—as through admissions by the plaintiff
19 following extensive discovery to the effect that he has
discovered nothing’ to support an essential element of his
20 case. (Aguilar, supra, at p. 855.) Under the latter approach,
21 a defendant's initial evidentiary showing may ‘consist of the
deposition testimony of the plaintiffs witnesses, the
22 plaintiffs factually devoid discovery responses, or
admissions by the plaintiff in deposition or in response to
23 requests for admission that he or she has not discovered
24 anything that supports an essential element of the cause of
action.’ (Lona v. Citibank, NA., supra, 202 Cal.App.4th at
25 p. 110.) In other words, a defendant may show the plaintiff
does not possess evidence to support an element of the cause
26 of action by means of presenting the plaintiff's factually
27 devoid discovery responses from which an absence of
evidence may be reasonably inferred. (Scheiding v.
{:35 28 Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

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 1 Thus, a moving defendant has two means by which to shift ‘
the burden of proof under the summary judgment statute:
2 ‘The defendant may rely upon factually insufficient
discovery responses by the plaintiff to show that the plaintiff
3 cannot establish an essential element of the cause of action
4 sued upon. [Citation.] [Or a]ltemative1y, the defendant may
utilize the tried and true technique of negating (‘disproving’)
5 an essential element of the plaintiffs cause of action.’
6 (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)”
(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102-1103.)
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Until the moving defendant has discharged its burden of proof, the opposing plaintiff has
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no burden to come forward with any evidence. Once the moving defendant has discharged its
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burden as to a particular cause of action, however, the plaintiff may defeat the motion by
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producing evidence showing that a triable issue of one or more material facts exists as to that
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cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) On a motion for summary judgment, the
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moving party's supporting documents are strictly construed and those of his or her opponent
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liberally construed, and doubts as to the propriety of summary judgment should be resolved
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against granting the motion. (D ’Amico v. Board ofMedical Examiners (1974) 11 Cal.3d 1, 21.)
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5. Court’s Ruling and Analysis
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Defendant moves for summary judgment on the basis that all of plaintiff’s claims are time-
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barred by the statute of limitations.
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“Statute of limitations is the collective term applied to acts or parts of acts that prescribe
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the periods beyond which a plaintiff may not bring a cause of action.” (V. C. v. Los Angeles
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Unified School Dist. (2006) 139 Cal.App.4th 499, 509.) “A plaintiff must bring a claim within
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the limitations period after accrual of the cause of action. In other words, statutes of limitation
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do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues
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at the time when the cause of action is complete with all of its elements.” (Id. at pp. 509-510
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[internal citations and quotation marks omitted].)
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“While resolution of the statute of limitations issue is normally a question of fact, where
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the uncontradicted facts established through discovery are susceptible of only one legitimate
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inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
‘$.13 28

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1 Defendant contends the applicable statute of limitations for plaintiff’s claims for sexual

2 battery, intentional iniction of emotional distress, and negligent infliction of emotional distress

3 are two years. Code of Civil Procedure section 335.1 states that an action for assault or battery

4 must be commenced within two years. Section 335.1 also applies to plaintiff’s intentional and

5 negligent iniction of emotional distress claims. (See Code Civ. Proc., § 335.1; Miller v. Bank of

6 America, Nat. Ass’n (2012) 858 F.Supp.2d 1118, 1127 [applying Code of Civil Procedure section

7 335.1 to plaintiff’s intentional iniction of emotional distress and negligent iniction of

8 emotional distress claims]; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.)

9 Defendant argues the claims are barred because the alleged assault occurred more than

10 two years before the original complaint was filed on 3/23/2018. As evidence, defendant relies
11 solely on the settlement email from plaintiff’s counsel. But as discussed above, the email is

12 inadmissible as a confidential settlement negotiation. (See Evid. Code, § 1152, subd. (a).) The

13 FAC contains no allegations of when the alleged assault occurred; thus, there are no allegations

14 or evidence supporting when the alleged assault occurred.

15 Defendant is unable to demonstrate the statute of limitations bars plaintiff's claims.

16 For the first time in reply, and in a footnote, defendant additionally argues the “allegations

17 of [plaintiff’ s] own First Amended Complaint undisputedly establish that her claims are time

18 barred[]” because she alleges the assault took place at the now-closed Clarion Hotel. (Reply, p.
19 4, fn. 4.) Defendant then cites to two news articles attached to his counsel’s supplemental

20 declaration that state the Clarion Hotel closed in 2012. (Newell Suppl. Decl., Exh. A.) Since

21 plaintiff filed her original complaint in March 2018, her claim would necessarily be time-barred.

22 The moving party generally may not rely on additional evidence filed with its reply papers. (San

23 Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) But the

24 court has discretion to consider the new evidence, provided the opposing party has notice and an

25 opportunity to respond. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14

26 Cal.App.5th 438, 449-450.) The court declines to do so here as the new evidence is hearsay.

27 Moreover, this is not simply new evidence but an entirely new argument that could have been

28 raised in the moving papers. In his moving papers, defendant never once argued the FAC is time-

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 1 barred on its face because of the allegation regarding the Clarion Hotel. In fact, he specifically

2 argues the exact opposite: “[a]1though the Complaint is silent as to when the purported incident

3 took place, correspondence from P1aintiff’s counsel confirms that” the incident is time-barred.

4 (Motion, p. 9:7-8.) Thus, the court, in its discretion, will not consider the new argument or

5 evidence filed with the reply papers.

6 There is therefore no need for the court to reach the tolling arguments raised by defendant.
7 6. Conclusion

8 In light of the foregoing, the court denies defendant’s motion for summary judgment.

9 Defendant is ordered to provide notice.

10 / /
11 /
12 DATED: August 15, 2019

13 Hon. Marc Gross

14 Judge of the Superior Court
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