Judge: Mark H. Epstein, Case: 24STCV22289, Date: 2025-06-02 Tentative Ruling

Case Number: 24STCV22289    Hearing Date: June 2, 2025    Dept: I

The demurrer to the second, fourth, and fifth causes of action are SUSTAINED WITH LEAVE TO AMEND.  The motion to strike is DENIED. 

Plaintiff filed a breach of contract and sexual battery action against defendant Equinox Holdings, which operates a fitness center of which plaintiff was a member.  According to the SAC, plaintiff joined the gym on or about December 7,2022.  He intended to receive appropriate and suitable workouts for a person his age—80 years old—and with his challenges.  Plaintiff alleges that he wanted 30 minutes sessions and he was given 30 minute sessions, but he was charged for 60 minute sessions, resulting in his being overcharged by $5000.  One cause of action seeks a recovery for that.  More significant, plaintiff states that he saw inappropriate sexual behavior in the locker room by defendant’s trainers and others.  He also alleges that he was subjected to nonconsensual sexual touching of his body by trainers and other personnel.  Plaintiff alleges that he was forced to try another gym in Orange County, but that it was not suitable as to location and that he suffered similar problems there.  The Membership Agreement, which plaintiff signed and forms the basis of the contract, has a clause regarding “Member Conduct” and “Mutual Respect.”  Defendant Equinox demurs and plaintiff opposes.

The first issue is the contract issue.  The court has some sympathy here for the defense.  The court cannot tell whether plaintiff is alleging a breach of the Membership Agreement or some oral agreement.  The Membership Agreement does not seem to say that Equinox has an obligation to provide 30 minute training sessions at half the price of a 60 minute session.  So the court would need the complaint to better flesh out why or where that is.  To the extent that plaintiff refers to the “No Refund” clause, the court does not understand how the refusal to refund $5000 violates that term.  If the reason is because there is a legal obligation to provide a refund, plaintiff will need to spell it out.  If the issue is that this is an oral agreement, plaintiff will need to so allege.  It might be enforceable by way of enforcing an oral contract, but it is not a violation of the no refund provision.  Plaintiff needs to make it clear what the violation is and what it is from which the violation stems.  The demurrer is SUSTAINED.

Plaintiff also contends that defendant violated the Membership Agreement by allowing employees and others to harass him.  The problem is that the Membership Agreement does not so state.  The clause to which plaintiff refers is the Member Conduct clause, which imposes duties on him, not others.  Nor does the court understand precisely how this violates the contract’s Mutual Respect clause.  Again, plaintiff can flesh this out by amendment.

The claims for which plaintiff sues Equinox for sexual misconduct might well be barred by Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291.  In that case and its progeny, our Supreme Court concluded that claims of sexual assault are not claims that can be brought against the employer because the employee’s misconduct is not within the course and scope of the employee’s duties.  Rather, the Court held, it is a function of the employee’s desire to satisfy his or her own personal gratification or needs.  Accordingly, there is no vicarious liability for such misconduct.  This court has never loved the Lisa M. line of cases, but it is the law and it has been affirmed and restated many times.  The court will enforce it.  For that reason, the trainer’s misconduct likely will not serve to give rise to direct liability here.  Nor is there any vicarious liability with regard to what non-employees did. 

But that does not leave plaintiff with no remedy at all.  To the extent plaintiff can allege and ultimately prove negligent hiring, retention, or supervision, that is a tort aimed directly at the employer.  And to the extent that plaintiff can show that Equinox had a duty to ensure that other members did not act inappropriately and Equinox breached that duty, then a cause of action for negligence will lie.

That essentially means that the IIED cause of action cannot survive.  While the allegations against the trainer might well be sufficient (if proven) to warrant the sort of outrageous behavior causing serious emotional distress so as to fall within the tort, that cannot be alleged against Equinox, for that would be done only through vicarious liability.  Accordingly, the demurrer is SUSTAINED.

As for NIED, that is generally not a tort separate from negligence.  If Equinox had a duty to ensure that the misconduct alleged did not occur, and if it breached that duty, then there is negligence.  The NIED allegation adds nothing.  Absent some explanation as to why this is not simply duplicative of negligence, the demurrer is SUSTAINED.

Turning to the motion to strike, the defense moves to strike the fee request in the prayer and the request for punitive damages.  The court will DENY the motion as to fees, but defendant can rest assured that fees will not be awarded absent a valid basis to do so.  Right now, the court does not see it, but that is not to say that it will not become apparent later.  As to punitive damages, the motion is DENIED.  While it might be thin, the court notes that there are allegations in the elder abuse cause of action that might be sufficient.  That is a question better tested on summary judgment.

Plaintiff has 30 days’ leave to amend.  The court warns plaintiff that this will be the third amended complaint.  There can be no assurance that leave will be granted again.