TENTATIVE RULING

Defendant Mobile Massage by Joe, LLC’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend.

Plaintiff Courtney Johntrell Rawls may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Mobile Massage by Joe, LLC to give notice. 

REASONING

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant Mobile Massage by Joe, LLC (“Defendant”) demurs to each claim alleged in Plaintiff Courtney Johntrell Rawls (“Plaintiff”)’s complaint. At the outset, the Court notes that Defendant relies in part on extrinsic evidence showing that an alleged address is Plaintiff’s residence. The Court will not consider extrinsic evidence in the context of a demurrer; thus, any arguments relying on evidence attached to the demurrer are OVERRULED. Second, insofar as Defendant takes issue with Plaintiff’s identification of Defendant as “Mobile Message by Joe LLC,” Plaintiff has filed an amendment identifying Defendant Mobile Massage by Joe, LLC in place of Doe 1; thus, the arguments to that effect are also OVERRULED. The allegations of each cause of action are virtually identical; thus, the Court considers the allegations as a whole.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

Plaintiff alleges that Defendant’s employee assaulted Plaintiff, and the Court assumes that Plaintiff intends to hold Defendant liable based on its employee’s conduct, i.e., under a respondeat superior theory (see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 [“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment”]), while noting that such a theory has not been explicitly alleged in any way.

The facts in the complaint are substantially similar to those of Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291 (Lisa M.), which held that an “employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Id. at p. 297.) “[A] sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions,” and a situation where an employee “took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work” is not one that imputes liability to the employer where “[t]he task provided no occasion for a work-related dispute or any other work-related emotional involvement with the patient.  “ (Id. at p. 301.)

While the alleged assault may have been made possible by the circumstances of the examination, the “decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination.” (Lisa M., supra, 12 Cal.4th at p. 301.) The employee’s conduct was “not generated by or an outgrowth of workplace responsibilities, conditions or events.” (Id. at p. 302.) Further, the conduct was not foreseeable, for the purposes of liability, where there are no facts alleging “emotional involvement, either mutual or unilateral, arising from the medical relationship.” (Ibid.) Instead, it “was the independent product of [the employee’s] aberrant decision to engage in conduct unrelated to his duties,” and his conduct was “not foreseeable from the nature of the work he was employed to perform.” (Id. at p. 303.)

There are also no allegations that Defendant ratified the employee’s conduct in any way. It follows that “it would not be fair to attribute to” Defendant, who employed a party to conduct specific work, “the costs of a deliberate, independently motivated sexual battery unconnected to” the work the employee was hired to do. (Lisa M., supra, 12 Cal.4th at p. 304.)

As to the cause of action for negligent hiring, retention, or supervision, Plaintiff must allege (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.) Plaintiff alleges only that Defendant failed to take precautions to prevent the alleged conduct, but this conclusory statement does not suffice to show that Defendant knowingly hired an unfit employee.

For these reasons, Defendant Mobile Massage by Joe, LLC’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend. Plaintiff Courtney Johntrell Rawls may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023