Bob Filner

Technically, former mayor Bob Filner may have touched city employee Stacy McKenzie's breasts, but it was an "inadvertent, unintentional grazing of [her] breasts," with his elbow.

That's the crux of the city's argument as to why McKenzie's lawsuit doesn't hold water.

On February 13, the city will present their argument to Superior Court judge Joan M. Lewis.

The demurrer, essentially a “so what” in legal speak, debunks McKenzie's claims that Filner's hug from behind, his rubbing of her arm, and the elbow resting atop her breasts, is not evidence of gender violence or sexual battery.

"...[There are] no allegations whatsoever in the [first amended complaint] that Filner ever made or attempted contact with Plaintiff's sexual organ, anus, groin, or buttocks," reads the city's demurrer. "And, in regard to Plaintiff's breasts, the only thing Plaintiff alleges is that when Filner was embracing Plaintiff from behind on the one alleged occasion, with his arm around her neck and shoulder, his elbow happened to rest on top of her breasts. There is no allegation that Filner purposely touched her breasts or that, through his actions, he was intentionally making or trying to make contact with her breasts. An inadvertent, unintentional grazing of Plaintiff's breasts with an elbow is not enough to constitute sexual battery."

The complaint, filed in December 2013, alleged that then-mayor Filner made unwarranted advances on McKenzie, a longtime Parks and Recreation Dept. employee, during an event at Fiesta Island. McKenzie says that after a brief introduction, Filner approached her and asked her if she wanted to go on a date with him. McKenzie escaped, at least for a brief period. As she spoke to other city employees, Filner reappeared, this time from behind, grabbing McKenzie around her shoulders, elbows atop her breasts, and began rubbing McKenzie's arms. The mayor told McKenzie's colleagues that he wanted to make her "employee of the day" and spoke of how "great" she was.

Months later, several more women began to come forward with similar allegations. Filner resigned amid the allegations. Women sued. The city settled some of the cases. But, as evidenced in the demurrer, the city is not ready to settle with all of the women.

Attorneys for McKenzie say Filner's actions amount to gender violence. In their argument, they use Civil Code 54.2 which states, in part, "...gender violence is a form of sex discrimination and means any of the following:...(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction."

Judge Lewis will hear the city's demurrer at an 8:30 a.m. hearing on February 13 in Department 65.