Judge Lee S. Arian, Case Number: 23STCV25948, Date: 2025-06-13 Tentative Ruling

On January 24, 2023, Plaintiff filed this case alleging that she booked a one-hour sports massage through Defendant Soothe’s platform or app with massage therapist Jhonatan Aleman ("Aleman"). Upon arrival, Plaintiff and Aleman directly negotiated to add an additional 30 minutes to the massage for an extra $50 in cash. Plaintiff alleges that during the extended session, Aleman offered to massage her chest, which she accepted, and during which he allegedly touched her breasts and made inappropriate comments. Plaintiff asserts causes of action for assault, battery, and intentional infliction of emotional distress against Aleman.

Defendant Soothe operates a digital platform that connects clients with massage therapists and other service providers in the fields of massage, facials, beauty, hair, and nails. Plaintiff asserts two causes of action against Soothe: one for negligent hiring, retention, and supervision, and one for general negligence. Soothe now moves for summary judgment, or in the alternative, summary adjudication, on Plaintiff’s theory of vicarious liability and contends there was no negligence in its hiring, retention, or supervision of Aleman.

Specifically, defendant sooth moves for summary adjudication on the following issues:

Issue No. 1: Defendant Soothe is entitled to summary judgment on all causes of action because Jhonatan Aleman was not an employee of Soothe and Soothe was not otherwise negligent.

Issue No. 2: Defendant Soothe is entitled to summary judgment on all causes of action because, even if a disputed fact exists as to employment, Jhonatan Aleman was not acting within the course and scope of his employment at the time of the incident.

Issue No. 3: Defendant Soothe is entitled to summary adjudication as to Plaintiff's fourth cause of action for Negligent Hiring, Supervision, and Retention because there is no disputed fact to show that Jhonatan Aleman was unfit to be a masseuse, nor is there any disputed fact to show that Soothe knew or should have known of any alleged unfitness

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

· On October 21, 2022, Plaintiff "Jane Doe," at approximately 7:00 pm, used the Soothe app to book a massage for approximately 8:00 or 9:00 pm.

· Plaintiff had received approximately 30 massages in the past and does not request a particular gender for the masseuse.

· Plaintiff booked and paid for a one-hour sports massage because she was sore after an intense workout.

· After booking the massage on the app, the masseuse, Defendant Jhonatan Aleman ("Aleman"), came to Plaintiff’s home to provide a massage.

· Plaintiff and Aleman agreed that Aleman would give a 30 minute “add-on” massage for an additional $50.

· Aleman started the massage with the Plaintiff laying on her stomach, as he massaged her back and arms and used hot stones.

· Aleman then went into the restroom to wait while Plaintiff turned over onto her back under the sheet.

· Aleman continued the massage by doing a stretching massage on Plaintiff's arms and legs.

· Aleman then asked the Plaintiff if she would like a chest massage, to which the Plaintiff replied “yes.”

· Aleman then began by massaging Plaintiff's pectorals, before he transitioned to doing circular motions around her nipples for a minute or two and commented on the Plaintiff's nipple piercings.

· The massage then lasted “maybe another 15 minutes” after Aleman touched the Plaintiff's breasts before it finished.

· Plaintiff paid Aleman the $50 in cash for the extra 30 minutes after the massage was over.

· On October 24, 2022, Plaintiff contacted Soothe by email, to which Soothe's Trust and Safety Department then responded by email and later telephone. During these communications, Plaintiff informed Soothe of her complaint about the touching of her breasts and her concern about Aleman contacting her again. In response, Soothe confirmed that Aleman would not be able to contact her again through the app and refunded the cost of the massage and the cost of her Soothe membership, but was unable to refund the extra $50 in cash she had paid Aleman for the extra 30 minutes.

· As a result of the incident, Plaintiff filed suit against Aleman and Soothe. In her First Amended Complaint, Plaintiff asserted the fourth cause of action for Negligent Hiring, Supervision, and Retention, and the fifth cause of action for Negligence, against Soothe.

· On or about July 19, 2017, Soothe entered into Client Referral Agreement with Aleman.

· Pursuant to the Client Referral Agreement, Soothe and Aleman agreed that Aleman has the right, under the agreement, to accept and perform massage therapy appointments for clients referred by Soothe. Aleman would be paid pursuant to the Soothe service fee for each completed engagement.

· Pursuant to the Client Referral Agreement, Soothe and Aleman agreed that Soothe was to maintain an online platform accessible by computer and/or smartphone through which clients could schedule an engagement, and through which Aleman could receive and accept or reject such engagement.

· Pursuant to the Client Referral Agreement, Soothe and Aleman agreed that Aleman represented that he was engaged in the business of providing “in-home” massage therapy and that he possessed all licenses and certifications necessary to perform such services in the State of California. Along those lines, Aleman agreed to provide copies of his licenses and certifications to Soothe within 30 days of the execution of the agreement.

· Pursuant to the Client Referral Agreement, Soothe and Aleman agreed that Aleman would maintain a professional appearance consistent with the standards generally adhered to in the profession of massage therapy.

· Upon entering into the Client Referral Agreement with Aleman, Soothe performed a background check on Aleman. This background check did not reflect any criminal history on the party of Aleman.

· On February 19, 2022, Soothe performed an additional background check for criminal history on Aleman, which showed no criminal history.

· Upon entering into the Client Referral Agreement with Aleman, Soothe confirmed that Aleman was properly licensed in the State of California for massage therapy.

· On October 4, 2021, Soothe again required Aleman to again confirm that he was properly licensed in the State of California.

· On October 4, 2021, Soothe required Aleman to again confirm that he was properly licensed in the State of California.

· Soothe's first notice of an alleged impropriety regarding the massage therapy services provided to Plaintiff was on October 24, 2022.

· On October 25, 2022, pursuant to the receipt of the complaint by Plaintiff, Soothe suspended Aleman from providing services under its platform. Aleman has not performed any further services for Soothe referrals since that date.

(Plaintiff’s responses to Defendant’s Separate Statement Nos 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 23, 24, 27, 34, 35, 36, 37, 41, 42, and 43.)

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).)

A predicate issue here is whether Aleman was Soothe’s employee or an independent contractor. Two primary tests exist under the law to determine whether someone is an employee or independent contractor – (1) the ABC test, which the California Supreme Court set forth in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 958-962 and (2) the Borella test. Under the ABC test, a person may be classified as an employee unless: (a) the worker is free from the control and direction of the hiring entity in connection with the performance of the work; (b) the work being performed is outside of the usual course of the hiring entity's business; and (c) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Id.

California Labor Code Section 2777 provides that the "ABC" test does not apply "to the relationship between a referral agency and a service provider" if the following conditions are met:

(1) The service provider is free from the control and direction of the referral agency in connection with the performance of the work for the client, both as a matter of contract and in fact.

(2) If the work for the client is performed in a jurisdiction that requires the service provider to have a business license or business tax registration in order to provide the services under the contract, the service provider shall certify to the referral agency that they have the required business license or business tax registration.

(3) If the work for the client requires the service provider to hold a state contractor's license pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, the service provider has the required contractor's license.

(4) If there is an applicable professional licensure, permit, certification, or registration administered or recognized by the state available for the type of work being performed for the client, the service provider shall certify to the referral agency that they have the appropriate professional licensure, permit, certification, or registration. The referral agency shall keep the certifications for a period of at least three years.

(5) The service provider delivers services to the client under the service provider's name, without being required to deliver the services under the name of the referral agency.

(6) The service provider provides its own tools and supplies to perform the services.

(7) The service provider is customarily engaged, or was previously engaged, in an independently established business or trade of the same nature as, or related to, the work performed for the client.

(8) The referral agency does not restrict the service provider from maintaining a clientele and the service provider is free to seek work elsewhere, including through a competing referral agency.

(9) The service provider sets their own hours and terms of work or negotiates their hours and terms of work directly with the client.

(10) Without deduction by the referral agency, the service provider sets their own rates, negotiates their rates with the client through the referral agency, negotiates rates directly with the client, or is free to accept or reject rates set by the client.

(11) The service provider is free to accept or reject clients and contracts, without being penalized in any form by the referral agency. This paragraph does not apply if the service provider accepts a client or contract and then fails to fulfill any of its contractual obligations.

It appears to the Court that the evidence establishes that all of these conditions are met, with the possible exception of conditions 5 and 7. The Court will hear argument regarding those conditions.

Moreover, independent of Labor Code 2777, in Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, the Court held that the ABC test applies to claims arising under the Industrial Welfare Commission (IWC) wage orders, consistent with the California Supreme Court's decision in Dynamex Operations West v. Superior Court . The Court reasoned that wage orders expressly define “employ” to include the “suffer or permit to work” standard, and that this broad language reflects a statutory purpose to extend labor protections to the widest class of workers. However, the Court declined to apply the ABC test “categorically to every working relationship, particularly when Borello appears to remain the standard for worker's compensation.” This reasoning equally applies to the scope of employment in tort claims, where “to employ” is not defined by the “suffer or permit to work” standard expressed in the wage orders. Accordingly, though the Court wants to hear from the parties regarding the application of Labor Code 2777 as set forth above, it believes that Borello is the appropriate test to apply in the tort context in any event.

Borello provided guidance for determining whether the individuals at issue were employees or independent contractors. “Whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 528.) However, “the ‘control-of-work-details’ test…must be applied with deference to the purposes of the protective legislation” and that the “nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the ‘history and fundamental purposes’ of the statute.” (Borello, 48 Cal.3d at 353.) These secondary factors include:

(a) whether the one performing services is engaged in a distinct occupation or business;

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

(g)whether or not the work is a part of the regular business of the principal; and

(h)whether or not the parties believe they are creating the relationship of employer-employee. (Ayala, 59 Cal.4th at p. 532.)

“Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (Borello, 48 Cal.3d at 351 (internal citations omitted).)

Under the Borello test, the most significant factor is whether the hiring entity has the right to control the manner and means by which the work is performed, rather than just the end result. (Ayala, 59 Cal.4th at 528.) The evidence provided showed that Soothe exercised no meaningful control over Aleman’s performance. Aleman had complete discretion over his availability, which engagements to accept, the method and manner of performing his massage services, and the selection and use of his own tools and equipment. (UMF Nos. 20, 21, 28, 30.) These facts strongly weigh in favor of independent contractor status.

The secondary Borello factors also weigh in favor of finding that Aleman was an independent contractor as follows:

· Aleman was engaged in a distinct occupation or business as a licensed massage therapist, independent from Soothe’s general referral platform (UMF Nos. 16, 18);

· The work of a massage therapist is typically performed by a licensed specialist without supervision, not under the direction of a central employer (UMF No. 18);

· The occupation required a state-issued license and specialized training (UMF No. 24);

· Aleman provided his own tools and controlled the location of his services (UMF No. 30);

· The relationship was project-based and could be terminated at any time, indicating a lack of permanence (UMF No. 20);

· Aleman’s massage services were not part of Soothe’s regular business operations, as Soothe merely operated a referral platform and did not itself offer or license massage therapy (UMF Nos. 1, 16); and

· Both parties expressly agreed to an independent contractor relationship (UMF Nos. 32, 33).

The parties do not appear to dispute that whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved consistent with the guidance established in Borello. Plaintiff alleges that Soothe exercised extensive control over its massage therapists and dictated the location, type, and duration of Aleman’s work. (PMF Nos. 17, 35.) However, the evidence does not support this contention. Soothe does not dictate the location, type, or duration of the massage. Instead, the client initiates the request by selecting these parameters, and the therapist may accept or reject the engagement. The therapist is not required to accept the job, nor does Soothe impose the location, type, or duration of the session beyond what the client has already requested. Plaintiff argues that Soothe requires therapists to travel to the location for the massage, but this is only because the location is designated by the client. In this regard, Soothe functions solely as an extension of its client, facilitating the client's request rather than imposing any directive of its own.

Plaintiff cites Section 1(B) of the service agreement and argues that Soothe imposes the location, time, and type of massage on the therapist. However, the plain language of the agreement states that a massage session is defined as one “requested by a Client using SOOTHE’s electronic platform,” and includes the following parameters: Client name, client-designated service time (or available service window if flexible), client-designated service duration (as may be modified by the client), client-designated location for performance of service, and client-designated massage type (e.g., Deep Tissue, Swedish, Sports, Couple/Multi-person, Pre-natal). With the exception of the client’s name and location, all engagement parameters are made available to the therapist when an engagement is offered. The agreement further provides that the parameters and other terms of any engagement may be modified by mutual agreement between the client and the therapist, including negotiation of additional therapy time. In short, Section 1(B) confirms that the client, not Soothe, determines the service parameters, and the therapist retains the discretion to accept or reject the engagement.

The referral agreement and the evidence of actual practice submitted by Plaintiff do not contradict Defendant’s contention that the therapist retains complete discretion over which engagements to accept, full control over the most efficient and effective manner of performing services, and direct control over all aspects of the tools and equipment used. All requirements of the massage, such as location, time, and type, are proposed by the client. The parameters and other terms of any engagement may then be modified by mutual agreement between the client and the therapist, including negotiation of additional therapy time. (Referral Agreement, Section 1(B).) Additionally, there is no supervision exercised over the therapist.

While Plaintiff points to evidence showing that a therapist cannot perform a type of massage not selected through the app (Ellis Decl., ¶¶ 20–21), the more relevant communication concerning the means of accomplishing the job, such as how to perform the massage, the desired pressure, and the specific areas to focus on as the need arises during the massage is communicated orally on site, outside the app.

The evidence shows that Soothe institutes a punishment system for service failures. Under the provider agreement, a therapist may forfeit all or part of the engagement fee and be subject to $250 in liquidated damages for failing to appear, failing to perform the requested service, failing to provide the service during the agreed time window, or failing to start on time. (Section 3(f).) Additionally, Soothe reserves the right to unilaterally suspend or remove a therapist from its platform for breach of the provider agreement or upon receiving a client complaint. (Sections 7(a), 24–26.) However, the existence of a punishment system and the right to suspend or remove a therapist from the platform do not, by themselves, establish the level of control required under Borello. These types of contractual remedies, such as forfeiture of payment for nonperformance, liquidated damages, or termination for breach, are common in independent contractor relationships. They reflect a right to ensure contract compliance, not a right to control the manner and means by which the work is performed, which remains the core inquiry under Borello. Moreover, while Soothe may remove a therapist from the platform for breach of the provider agreement or in response to a client complaint, that is not termination at will or without cause, typical of employment relationships.

Overall, Soothe does not independently impose restrictions on the therapist regarding the manner in which the work is performed. Rather, it simply communicates and relays the client’s requests to the therapist concerning the outer parameters of the massage, such as type, location, and time. While there are certain limitations such as requiring initial contact with the client to remain within the app there is no requirement that other critical aspects of communication, such as how the massage is to be performed, be conducted through the app. Those details are discussed on site between the therapist and the client.

(a) Whether the person performing the services is engaged in a distinct occupation or business: Soothe does not itself provide massage services, is not licensed to perform massage, and does not operate a massage establishment. It functions as a referral platform connecting therapists and customers. It is undisputed that Soothe operates in multiple service categories beyond massage, including facials, beauty services, hair, and nails. Plaintiff contends that massage is Soothe’s core business model. (PMF Nos. 15–17, 19, 34.) However, the evidence cited does not establish that, only that it is one of several services offered through the platform along with other services. The business model centers around connecting therapists or beauty technicians to clients. Massage services are neither distinct from nor central to Soothe’s business, as Soothe functions primarily as a referral agency operating across various wellness and beauty fields. This factor weighs in favor of Soothe, or, most favorably to Plaintiff, is neutral.

(b) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision: Massage therapy is typically performed by licensed specialists who work independently and without supervision rather than under the direction of a central employer. Plaintiff provides no evidence to contradict this. Although communication before the massage occurs through the app, which Soothe can access, communication during the massage itself is not monitored, and the massage is not supervised. This factor weights in favor of Soothe.

(c) The skill required in the particular occupation: Massage therapy is a skilled occupation. It requires formal certification and specialized training. Therapists on the Soothe platform may be paid upwards of $100 for a 90-minute session. This factor weighs in favor of Soothe and is not in dispute.

(d) Whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work: Under the Client Referral Agreement, Aleman retains full discretion and control over the tools, equipment, and methods used to perform massage services. (Chillingworth Decl., ¶ 6(m); Ex. C, ¶ 4(a).) Plaintiff provides no evidence to dispute this. While Plaintiff argues that Soothe dictates the place of work, the record shows that Soothe merely relays the client’s chosen location. Soothe does not independently select or control the site of the massage. This factor weighs in favor of Soothe.

(e) The length of time for which the services are to be performed: Each massage session lasts no more than a few hours. Plaintiff argues that therapists may remain on the platform indefinitely so long as they do not violate the terms of their agreement, maintain active license and clear background checks. However, this indefinite availability is comparable to a homeowner keeping a trusted handyman on a list of go-to providers for future projects, provided the handyman continues to perform well. Merely being on such a list does not transform the homeowner into an employer. However, courts recognize a distinction between being on a homeowner’s personal referral list and being available on a commercial platform or app. Accordingly, this factor is neutral.

(f) The method of payment, whether by time or by the job: Payment is processed through the app via Stripe, and therapists are paid a flat fee based on the service category selected by the client. This fee structure supports a per-engagement arrangement rather than compensation based on time worked. Unlike massage parlor employees, who are typically paid hourly regardless of whether they have clients, therapists on the Soothe platform are not compensated for merely being available on the app.

The evidence shows that the flat fee is calculated based on several variables, including session duration, location, and service type. To the extent Plaintiff argues that Soothe determines the amount of pay, this is only partially accurate. While Schedule 1 of the Client Referral Agreement sets default pay rates for various service categories, it also provides that the fee may be negotiated at the time an engagement is offered. Specifically, “[r]egardless of the pre-arranged Service Fee, SOOTHE and THERAPIST shall have the right to attempt to negotiate Service Fees different from the pre-arranged fees set forth in Schedule 1 at the time an Engagement is offered.” This indicates that while default rates exist, the final compensation is subject to potential negotiation. Accordingly, this factor is in Soothe’s favor.

(g) Whether the work is part of the regular business of the principal: While Plaintiff contends that massage is part of Soothe’s regular business, the evidence shows that Soothe operates a platform offering a range of wellness services, including facials, hair, and nails. Soothe does not itself perform or supervise massage services, which distinguishes its role from that of a traditional employer such as a massage parlor. However, a portion of its business does involve connecting massage therapists to clients. Accordingly, this factor is neutral.

(h) Whether or not the parties believe they are creating the relationship of employer-employee: The agreement between Soothe and Aleman expressly states that the relationship is one of independent contractor. Plaintiff offers no evidence suggesting that Aleman believed he was entering into an employment relationship. The contractual language and belief of the parties support an independent contractor relationship and thus this factor weighs in Soothe’s favor.

Considering the totality of the evidence, the Court finds that the primary Borello factor, whether the hirer controls the manner and means by which the work is performed, strongly weighs against a finding of an employment relationship. The evidence shows that Soothe does not direct how massage therapists perform their services. Therapists retain discretion over the techniques, tools, and methods used, and the core service details, such as type, duration, and location, are determined by the client, not Soothe.

As to the secondary Borello factors, while some are neutral or mixed, most weigh in favor of independent contractor status.[1]

As to the negligent hiring and supervision cause of action, it is undisputed that, upon entering into the Client Referral Agreement with Aleman, Soothe conducted a background check which revealed no criminal history. Soothe also confirmed that Aleman was properly licensed to perform massage therapy in the State of California. A subsequent background check conducted on February 19, 2022, again showed no criminal history. Soothe required Aleman to reconfirm his licensure status on October 4, 2021. (PMF 34-37.)

As of October 24, 2022, Aleman had performed 778 massage appointments through Soothe referrals and had received 363 client reviews, with an average rating of 4.9 out of 5. Soothe received its first notice of any alleged impropriety involving Aleman on October 24, 2022, from Plaintiff. Prior to that date, Soothe was not responsible for hiring, training, supervising, controlling, monitoring, or retaining Aleman. Nor was Soothe aware of any facts suggesting that Aleman was likely to engage in or had engaged in any acts of sexual misconduct or impropriety toward any client, whether referred through Soothe or otherwise. There was no indication that Aleman posed any risk to client safety while performing massage therapy services.

After receiving Plaintiff’s complaint, Soothe promptly suspended Aleman from the platform the next day. (Chillingworth Decl., ¶¶ 9–13.)

Defendant has met its burden to negate the elements of Plaintiff’s negligent hiring and supervision claim.

Plaintiff argues that the nature of placing therapists in private, unsupervised settings with clients creates a foreseeable risk of harm. However, “[m]ore than a mere possibility of occurrence is required since, with hindsight, everything is foreseeable.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 503.) Moreover, in the context of negligent hiring, supervision, and retention of independent contractors, “[w]e are cited to no authority, nor have we found any authority basing liability on lack of, or on inadequate, supervision, in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” (Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 663.)

Here, Defendant has presented undisputed evidence that it conducted background checks on Aleman at the time of onboarding and again in 2022, both of which revealed no criminal history. (PMF Nos. 34–37.) Aleman was properly licensed, had completed 778 appointments, received 363 client reviews, and maintained an average rating of 4.9 out of 5. Soothe had not received any prior complaints or notice of improper conduct involving Aleman before the incident involving Plaintiff.

While Plaintiff critiques the adequacy of Soothe’s preventative measures, there is no evidence showing that its vetting or monitoring procedures were inadequate in this case. The absence of prior complaints, along with Aleman’s clean background checks, professional licensure, and consistently high ratings, provides no indication that he was a person who could not be trusted to act properly without supervision. While Plaintiff raises concerns about the lack of safeguards during massage sessions, she has not identified any negligence in Soothe’s selection or retention of Aleman, nor shown that Soothe had reason to believe supervision was necessary. Without such knowledge, a duty to impose additional safety measures does not arise under California law. Accordingly, Plaintiff’s negligent hiring and supervision claim fails.

Hon. Lee S. Arian

Judge of the Superior Court

[1] While the Court believes the Borello test is the appropriate one to apply in the tort context, as well as in this case specifically, it will hear from the parties regarding the application of the ABC test. Soothe contends that even under that test, Aleman is an independent contractor.