SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

APPEARANCES:
For Plaintiff(s): No Appearances
For Defendant(s): Patricia L Glaser and Michael L. Smith

NATURE OF PROCEEDINGS: Hearing on Motion for Summary Judgment

Pursuant to Government Code sections 68086, 70044, and California Rules of Court, rule 2.956,
Kelli C. Norden CSR #7200, certified shorthand reporter is appointed as an official Court
reporter pro tempore in these proceedings, and is ordered to comply with the terms of the Court
Reporter Agreement. The Order is signed and filed this date.

The matter is called for hearing.

There is no appearance by or for the Plaintiff.

The Court notes that counsel for Plaintiff was disbarred as of 09/18/20.

The Court has reviewed the moving papers and issues its tentative ruling.

****************************TENTATIVE RULING******************************

I. Facts and Relevant Procedural History

On March 23, 2018, plaintiff Jane Doe (“plaintiff”) filed this civil sexual assault action against
defendant Russell Simmons (“defendant”). According to the undisputed facts, plaintiff alleges
that she was sexually assaulted by defendant at a Clarion Hotel in Sacramento. (Fact No. 3.) The
alleged incident took place in 1988. (Fact No. 1.) Plaintiff’s operative First Amended Complaint
asserts the following causes of action against defendant: (1) sexual battery (forcible rape); (2)
intentional infliction of emotional distress; and (3) negligent infliction of emotional distress.

On August 15, 2019, the Court had denied defendant’s first motion for summary judgment
because he relied on admissions made in the course of settlement negotiations to demonstrate
that the action was time-barred. (See 8/15/19 Order.) Plaintiff filed an evidentiary objection to
that evidence, which the Court sustained. (Ibid.) Currently before the Court is defendant’s
Minute Order Page 1 of 7
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

unopposed second motion for summary judgment.

II. Preliminary Matters

A. Request for Judicial Notice
Defendant requests judicial notice of the following documents: (1) a copy of a business tax
inquiry report from the City of Sacramento’s Department of Finance regarding the Clarion Hotel
located on Arden Way in Sacramento; (2) a copy of a business tax inquiry report from the City of
Sacramento’s Department of Finance regarding the Clarion Hotel located on 16th Street in
Sacramento; (3) a December 8, 2017 article from Capital Public Radio; (4) a June 21, 2019
article from the Sacramento Business Journal; (5) a November 3, 2016 article from the
Sacramento Business Journal; (6) a December 6, 2017 article from the Sacramento Business
Journal; (7) a June 22, 2017 article from Sactown Magazine; (8) a May 4, 2015 article from the
Sacramento Bee; and (9) a May 1, 2015 article from CBS Sacramento.

The Court GRANTS the request for judicial notice as to the business tax inquiries but DENIES
the request as to the newspaper articles for various reasons. Evidence Code section 452,
subdivision (h), which defendant relies on, permits a trial court to judicially notice “[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” Defendant relies on the
articles to prove the truth of the matters asserted therein, namely the closure of Clarion Hotels in
the Sacramento area. When newspaper articles are used for that purpose, the request for judicial
notice is properly denied. (See People v. Ramos (1997) 15 Cal.4th 1133, 1167.) In any event, no
foundation was laid for the articles. Judicial notice of them is also unnecessary to resolving the
issues raised by the motion. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison
(1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of matters not necessary,
helpful, or relevant].)

The Court has also considered (1) the request for admission propounded on plaintiff on
December 7, 2018 (See 8/20/19 Newell Decl., ¶2, Exh. A); and (2) its September 13, 2019 Order
Granting Defendant’s Discovery Motions.

B. Defendant’s Motion for Leave to File a Second Motion for Summary Judgment
Accompanying defendant’s second motion for summary judgment is a motion for leave to file
said motion. As defendant notes in that motion, he is renewing his motion for summary judgment
that the Court previously denied due to his failure to provide admissible evidence to satisfy his
moving burden. Defendant requests that the Court exercise its discretion and grant him leave to
file because he is now able to cure the evidentiary defects that infected the earlier motion.

Minute Order Page 2 of 7

 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

Per Code of Civil Procedure section 437c, subdivision (f)(2), “[a] party shall not move for
summary judgment based on issues asserted in a prior motion for summary adjudication and
denied by the court unless that party establishes, to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting the issues reasserted in the
summary judgment motion.” Here, plaintiff essentially admitted to certain facts when the Court
granted the order deeming requests admitted on September 13, 2019 (after the denial of the prior
summary judgment motion). (9/13/19 Order.) The singular RFA at issue asked plaintiff to admit
or deny “that the alleged incident described in paragraph 12 of the First Amended Complaint in
this action took place in 1988.” (8/20/19 Newell Decl., Exh. A.)

In Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, the Court of Appeal
considered whether the trial court erred in allowing the County of San Diego to file successive
motions of summary judgment and/or adjudication. (Id. at p. 1104.) The trial court had
previously denied the County’s motion on the ground that the only evidence proffered was that
of a County employee who “lacked the knowledge necessary to make the statements set forth in
the declaration.” (Id. at p. 1103.) The trial court later allowed the county to file a second motion,
reasoning “in part that the denial of the first motion was based entirely on the fact that the
County had supported its motion with a declaration from ‘the wrong person,’ and that permitting
a successive motion had the potential to obviate a lengthy trial.” (Id. at p. 1104.) The successive
motion was granted and plaintiff appealed. (Id. at pp. 1104-1105.) On appeal, plaintiff cited Le
Francois v. Goel (2005) 35 Cal.4th 1094 and In re Marriage of Barthold (2008) 158 Cal.App.4th
1301 to argue that the trial court exceeded its authority in permitting the successive motion. (Id.
at pp. 1105-1107.) The appellate court disagreed and held that “neither Barthold nor Le Francois
limits a trial court's authority to permit a party to file a successive motion for summary judgment
and/or adjudication supported by evidence that was not presented in connection with a prior
motion. [¶] Accordingly, we conclude that the trial court did not err in permitting respondents to
file successive motions for summary judgment and/or adjudication.” (Id. at p. 1107.)

This is the situation here. The Court previously denied defendant’s motion for summary
judgment on the ground the proffered evidence was inadmissible and thus insufficient to
establish his moving burden. Yet in this motion, he provides the Court with new evidence to
support his argument. The motion for leave to file a second motion for summary judgment is
GRANTED.

C. The Effect of Plaintiff’s Decision Not to Oppose the Motion

Plaintiff did not file an opposition to defendant’s motion. The Court cannot, however, deem that
as a concession by plaintiff that the motion should be granted. Rather, the Court must look at the
moving papers and determine whether defendant has made a prima facie case for summary
Minute Order Page 3 of 7
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

judgment, meaning that the defendant has established that he is entitled to judgment based upon
undisputed facts. If defendant is able to make that showing, then plaintiff’s failure to oppose the
motion will result in the motion being granted. However, if defendant is unable to make that
showing, then the motion will be denied even though there is no opposition to it. Accordingly,
the Court analyzes the moving papers below to determine if a prima facie case was made.

III. Legal Standards

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” (Code
Civ. Proc., § 437c, subd. (c).) Where a defendant seeks summary judgment or adjudication, he
must show that either “one or more elements of the cause of action, even if not separately
pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at
§ 437c, subd. (o)(2).) Once the defendant meets this burden, the burden shifts to the plaintiff to
show that a “triable issue of one or more material facts exists as to that cause of action or defense
thereto.” (Ibid.) On a motion for summary judgment, the moving party's supporting documents
are strictly construed, while those of his or her opponent are liberally construed, and doubts as to
the propriety of summary judgment should be resolved against granting the motion. (D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Of course here, because there was no
opposition, if defendant meets his initial burden, the motion will be granted. Even so, the Court
must construe the defendants evidence strictly, and doubts as to whether defendant has made out
his prima facie case are construed against him.

IV. Court’s Ruling and Analysis

Defendant moves for summary judgment on the basis that all of plaintiff’s claims are time-barred
by the statute of limitations. In order to determine if an action is time-barred, the defendant must
first demonstrate which limitations period applies to each claim and after making that
determination, when the claims accrued. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,
1109.) “While resolution of the statute of limitations issue is normally a question of fact, where
the uncontradicted facts established through discovery are susceptible of only one legitimate
inference, summary judgment is proper.” (Id. at p. 1112.)

A. Statute of Limitations
Defendant correctly contends that an action for assault or battery is subject to Code of Civil
Procedure section 335.1, which imposes a two-year statute of limitations. The same period
applies to the intentional infliction of emotional distress claims. (Wassmann v. South Orange
County Community College District (2018) 24 Cal.App.5th 825, 852-853.) Defendant contends
that the negligent infliction of emotional distress has a one-year limitations period. (Bennett v.
Suncloud (1997) 56 Cal.App.4th 91, 97.)
Minute Order Page 4 of 7
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

While the Court agrees that plaintiff’s sexual battery and intentional infliction claims are subject
to a two-year limitations period, it is not convinced a one-year limitations period applies to the
negligent infliction claim. The Bennett Court applied a one-year limitations period to such a
claim pursuant to former section 340 of the Code of Civil Procedure. (Bennett, supra, 56
Cal.App.4th at p. 97.) That section was amended in 2002 and language regarding the limitations
period for an injury or death caused by the wrongful act or neglect of another was added to the
newly-created section 335.1. (Stats.2002, ch. 448, §§ 2-3.) Thus, the applicable statute of
limitations for all of plaintiff’s claims, including her negligent infliction claim, is two years.
However, for purposes of this motion, that is a distinction without a difference. As discussed
below, plaintiff’s claims fail even under a two-year limitations period.

Defendant contends that plaintiff’s claims are time-barred because plaintiff admitted the alleged
incident occurred in 1988 but filed her action in 2018. (Fact No. 1; see also, 8/20/19 Newell
Decl., ¶2, Exh. A; 9/13/19 Order; FAC, ¶12.) This is true. As previously stated, the Court
granted defendant’s motion to deem the request for admission asking plaintiff to admit that the
alleged sexual battery occurred in 1988. (Ibid.) “[A] deemed admitted order establishes, by
judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of
all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) “For summary
judgment purposes, deposition answers are simply evidence ... considered and weighed in
conjunction with other evidence. They do not constitute incontrovertible judicial admissions as
do ... answers to requests for admissions[.]” (Scalf v. D.B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1522.)

Thus, plaintiff has incontrovertibly admitted that the alleged incident occurred in 1988. In
calculating the limitations period per section 335.1, she would have had to file her action in 1990
unless the statute is tolled. Plaintiff has alleged tolling in the First Amended Complaint, asserting
that defendant’s extended absence from California makes her case timely. But, as addressed
below, the Court disagrees.

B. Tolling
In her First Amended Complaint, plaintiff alleges that defendant “recently moved” to California
after previously living in New Jersey. (FAC, ¶10.) This implicates Code of Civil Procedure
section 351, which provides that “[i]f, when the cause of action accrues against a person, he is
out of the State, the action may be commenced within the term herein limited, after his return to
the State.” Read liberally, plaintiff alleges that her claims against defendant, while otherwise
time-barred, did not begin to accrue until his return to California, impliedly less than two years
before the complaint was filed. “If, in anticipation of an affirmative defense, the complaint
Minute Order Page 5 of 7
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

alleges facts to refute it, the pleadings themselves create ‘a material issue which defendant [ ]
would have ... to refute in order to obtain summary [judgment].’ (Westlye v. Look Sports, Inc.
(1993) 17 Cal.App.4th 1715, 1739-1740.)” (Bacon v. Southern Cal. Edison Co. (1997) 53
Cal.App.4th 854, 858, parallel citations omitted.) Thus, defendant must refute this issue to
prevail.

Defendant argues that section 351 does not save plaintiff’s action. Defendant cites legal authority
holding that the tolling provisions of section 351 no longer apply when the defendant physically
returns to the state and his or her presence is sufficiently prolonged so as to enable the plaintiff to
discover the defendant’s presence and serve him or her with the summons and complaint. (See
Stewart v. Stewart (1907) 152 Cal. 162, 166.) Defendant asserts that is the case here. Defendant
declares that he was physically present and living in California between 1996 and 1999 and then
again from 2012 until 2018. (Fact No. 2.) He attests that “[f]rom 2012 to 2018, I routinely
worked in my office during weekdays and I rarely travelled out of town.” (Simmons Decl., ¶10.)
He corroborates this statement with lease agreements, utility and internet bills, tax returns, as
well as declarations from his staff describing his regular and continued presence in the Los
Angeles area. (Simmons Decl., Exhs. A-C [lease agreement, LADWP bills, and internet service
bills]; Albert Decl., ¶¶2-3; Bonney Decl., ¶2, Exh. 1 [defendant’s tax returns filed as a California
resident from 2013 to 2017]; Reyes Decl., ¶¶2-3.) In considering the uncontradicted evidence,
defendant demonstrates his presence has been sufficiently prolonged, open, and unconcealed
since at least 2012. Absent any evidence to the contrary, section 351’s tolling provisions did not
apply during that period. Accordingly, the limitations period would have run in 2014,
approximately four years before plaintiff filed her action. Accordingly, defendant has made out a
prima facie case that the entire case is time-barred.

2 In a footnote, defendant argues that section 351 is unconstitutional as applied to him because it
violates the commerce clause, citing Bendix Autolite Corp. v. Midwesco Enterprises (1988) 486
U.S. 888, 893. That case concerned an Ohio tolling provision similar to section 351 and held the
provision was unconstitutional because it violated the commerce clause. (Id. at pp. 891-893.)
There is ample California authority addressing the constitutionality of section 351 where the
commerce clause is implicated. “In both Abramson and Bendix, state tolling statutes ran afoul of
the commerce clause because the defendants were nonresidents who caused the breach and/or
injury in conjunction with their involvement in interstate commerce with local residents. As
Bendix enunciated, it is under that particular confluence of facts that the statute's
constitutionality must be analyzed.” (Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122.) For
section 351 to be declared unconstitutional as applied to defendant, he would have to show that
the alleged injury was in conjunction with his involvement in interstate commerce. Defendant
makes no such showing and so this argument is unsubstantiated.
Minute Order Page 6 of 7
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
West District, Santa Monica Courthouse, Department R

BC699288 October 1, 2020

JANE DOE VS RUSSELL W SIMMONS 10:30 AM

Judge: Honorable Mark H. Epstein CSR: None

Judicial Assistant: E. Sam ERM: None
Courtroom Assistant: A. Wiggins Deputy Sheriff: None

As discussed above, the burden therefore shifts to plaintiff to demonstrate her claims are timely.
However, no opposition has been filed. Therefore, defendant’s case is unrebutted and he is
entitled to summary judgment.

V. Conclusion
In light of the foregoing, the Court grants defendant’s motion for summary judgment. Defendant
will prepare the judgment.

DATED: October 1, 2020

Hon. Mark H. Epstein

Judge of the Superior Court

*************************END OF TENTATIVE RULING**************************

Due to the recent disbarment of Plaintiff's counsel, the Court grants the motion but will hold its
order for a period of two (2) weeks to allow Plaintiff time to respond.

The DEFENDANT RUSSELL SIMMONS' SECOND MOTION FOR SUMMARY

JUDGMENT filed by Russell W. Simmons on 01/23/2020 is Granted.

Counsel for Defendant to give notice.

Minute Order Page 7 of 7