THE EVENTS OF NOVEMBER 13TH CONSTITUTE AN UNLAWFUL BATTERY


          The elements of a claim of battery are:

 

          1.       Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff’s person;

          2.       Plaintiff did not consent to the act;

          3.       The harmful or offensive contact caused injury, damage loss or harm to the Plaintiff.


(Book of Approved Jury Instructions (“BAJI”) 7.50 - BATTERY (as adapted))

Harmful or offensive contact includes contact that is not harmful but offended a reasonable sense of personal dignity. (Restatement (Second), Torts §19.)

          HARASSER touched HARASSED EMPLOYEE, both in the office (while she was refusing to kiss him) and in the car while she was trying to get away. He intentionally touched her. (HARASSER Depo. 107:5-6; 110: 2-3; 112:14-113:2.) Plaintiff did not consent. (HARASSER Depo. 107:12-18; 110:15-18; 113:8-17; 127:3-13.) Plaintiff was harmed in that she was severely distressed as a result. (HARASSER Depo. 114:15-20; NURSE Depo. 46:8-47:5; 48:1-10; 52:4-12; 53:1-19; 56:19-25; EMPLOYEE Depo. 303:12-304:3; 311:1-3.) Her medical provider (who did not know about the assault) advised EMPLOYEE she was too anxious and stressed to work and should stay home. (NURSE Depo. supra and Exhibit 4.) HARASSER’s battery forced Plaintiff from her job. (HARASSER Depo. 114: 3-6; 115:24-117:1; EMPLOYEE Depo. 303:12-304:3; 311:1-3.)

          There can be no dispute; Plaintiff suffered emotional distress and financial loss as a direct result of HARASSER’s offensive touching. The only question is the extent of the damage and the amount required to compensate her.


VI.

          THE EVENTS OF NOVEMBER 13TH CONSTITUTE UNLAWFUL ASSAULT

          An assault arises when the plaintiff apprehends or fears offensive contact --a battery. (5 Witkin, Summary of California Law (9th ed.), “Torts,” Sections 346-347, pp. 436-437.)

          HARASSER has testified that when he tried to kiss her, EMPLOYEE slumped down and tried to avoid the kiss. (HARASSER Depo. 110:5-18; 113:8-13.) There can be no dispute that she demonstrated apprehension of battery - - the kiss. She also demonstrated apprehension when she tried to escape HARASSER’s first attempt to kiss her. (HARASSER Depo. 107:1-18.)