Judge Monica Bachner, Case 20STCV35070 2023-01-03 Tentative Ruling

Defendant Fitness International, LLC’s motion for summary judgment is denied.

Defendant Fitness International, LLC (“Fitness”) (“Defendant”) moves for summary judgment as to Plaintiff Michelle Arianna Garza’s (“Garza”) (“Plaintiff”) causes of action against Defendant Fitness in her second amended complaint (“SAC”). (Notice of Motion, pg. 2.)

On June 15, 2021, Plaintiff filed the operative SAC against Defendant Fitness and Defendant Shelden Coyaso Balatico (“Balatico”) (collectively, “Defendants”) alleging six causes of action: (1) invasion of privacy, (2) defamation,[1] (3) negligence, (4) negligent hiring, (5) intentional infliction of emotional distress (IIED), and (6) negligent infliction of emotional distress (NIED)[2] arising from Plaintiff’s interaction with Defendant Balatico at Defendant Fitness’s location at 7021 Hollywood Boulevard, Los Angeles, CA 90028 on August 14, 2019. On February 1, 2022, Defendant Fitness filed its motion for summary judgment. On December 20, 2022, Defendant Balatico and Defendant Plaintiff filed oppositions. On December 29, 2022, Defendant Fitness filed its reply.

Plaintiff filed a separate statement in opposition to the motion for summary judgment in violation of C.R.C. Rule 3.1354(b), which provides,

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.

(C.R.C., Rule 3.1354(b).) Plaintiff’s separate statement violates C.R.C. Rule 3.1350(h) in opposition to the motion for summary judgment because it raises objections. (C.R.C., Rule 3.1350(h).) Plaintiff failed to file a separate set of written objections to evidence. Therefore, the Court will not consider Plaintiff’s objections. (C.R.C., Rule 3.1354(b).)

Defendant Fitness filed response separate statements to Plaintiff and Defendant Balatico that are filled with objections in violation of C.R.C. Rule 3.1350(h). Defendant Fitness failed to file a separate set of written objections to evidence for these objections. Therefore, the Court will not consider Defendant Fitness’s objections in its response separate statements to Plaintiff and Defendant Balatico. (C.R.C., Rule 3.1354(b).)

Defendant Fitness’s 2/1/2022 Request for Judicial Notice of Plaintiff’s SAC, the Stipulation Dismissing Plaintiff’s sixth cause of action, and this Court’s 12/14/21 Minute Order is denied as there is no need to take judicial notice since the Court can review the records of the case at hand.

Defendant Fitness’s 12/29/22 objections are improper as certain objections object to multiple portions of the evidence and are not in proper format. (C.R.C., Rule 3.1354(b).) Nonetheless, the Court will rule on these objections. Objections Nos. 1-4 are overruled.

Plaintiff alleges on August 14, 2019, she was a member at Defendant Fitness’s 7021 Hollywood Boulevard location and had access to its facilities and equipment. (SAC ¶¶8-9.) Plaintiff alleges upon completing her workout, she was changing in the women’s locker room when she noticed Defendant Balatico standing behind her and taking a video of her while she was changing. (SAC ¶10.) Plaintiff alleges Defendant Balatico did not identify himself, but when Plaintiff questioned Defendant Balatico, he identified himself as a “supervisor” at Defendant Fitness and began accusing Plaintiff of not leaving Defendant Fitness after closing hours. (SAC ¶11.) Plaintiff alleges Defendant Balatico refused to leave the women’s locker room and attempted to grab Plaintiff’s phone from her. (SAC ¶11.) Plaintiff alleges Defendant Balatico represented to Plaintiff during the incident and later on Defendant Balatico’s social media post that he had the authority and permission under his employment contract with Defendant Fitness to take the actions he did. (SAC ¶12.) Plaintiff alleges the policies and procedures put into place by Defendant Fitness warranted and instructed Defendant Balatico to take a course of action during closing time, such as entering the women’s locker room and documenting by videotape or other means and that Defendant Balatico was instructed by his supervisor and/or a manager to go into the women’s locker room and videotape Plaintiff at the time of closing because the intercom was not working at the time. (SAC ¶¶13, 14.) Plaintiff alleges that when she was finally able to leave the women’s locker room, Defendant Balatico followed Plaintiff and continued to harass Plaintiff, and other patrons and gym members gathered outside the women’s locker room to see if Plaintiff was in danger. (SAC ¶15.) Plaintiff alleges when she tried to validate her parking ticket, Defendant Balatico grabbed the machine and would not her let her validate the ticket. (SAC ¶16.) Plaintiff alleges she was scared and “horrified of her safety” when she finally made her way out of Defendant Fitness. (SAC ¶16.)

Plaintiff alleges shortly thereafter, she was informed by another individual that Defendant Balatico had posted videos and pictures of her while in the locker room throughout social media. (SAC ¶17.) Plaintiff alleges that although Defendant Balatico’s social media accounts were his personal accounts, they were used to post work-related videos and pictures on many occasions prior to the incident to promote Defendant Balatico as a dance/workout instructor and further promote Defendant Fitness. (SAC ¶17.) Plaintiff alleges she later saw the social media posts of herself, which was left on Defendant Balatico’s social media for over a day until his employment was terminated with Defendant Fitness. (SAC ¶18.) Plaintiff alleges when she notified management of Defendant Fitness of the incident, she was told that anything in the locker rooms after hours was “fair game” and the management also told Plaintiff that the intercom system was not working at the time of the incident. (SAC ¶19.) Plaintiff alleges that Defendant Balatico’s actions were known and encouraged by Defendant Fitness pursuant to Defendant Fitness’s policies and procedures, and Defendant Balatico was acting within the scope of his employment during the incident because he was supposedly carrying out his duties as Defendant Fitness’s employee. (SAC ¶20.)

“An actionable claim [for invasion of privacy] requires three essential elements: (1) the claimant must possess a legally protected privacy interest; (2) the claimant’s expectation of privacy must be objectively reasonable; and (3) the invasion of privacy complained of must be serious in both its nature and scope.” (County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905, 926, citations omitted.) The common law cause of action for invasion of privacy based upon intrusion has two elements: “[f]irst, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.” (Hernandez v. Hillsides (2009) 47 Cal.4^th 272, 285.) “An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. Conversely, the invasion may be unjustified if the claimant can point to ‘feasible and effective alternatives’ with ‘a lesser impact on privacy interests.’” (County of Los Angeles, 56 Cal.4th at pg. 926, citation omitted.)

Plaintiff alleges she had a reasonable expectation of privacy in the women’s locker room inside of Defendant Fitness. (SAC ¶22.) Plaintiff alleges Defendants intentionally intruded in the women’s locker room and recorded Plaintiff while she was changing and Plaintiff later discovered that the video Defendants had taken of her along with pictures of Plaintiff while in the locker room were posted on Defendant Balatico’s social media accounts. (SAC ¶23.) Plaintiff alleges Defendants’ intrusion would be highly offensive to a reasonable person. (SAC ¶24.) Plaintiff alleges she was harmed as a result and as a direct and proximate result of Defendants’ conduct she sustained serious emotional damages including but not limited to nervousness, anxiety, and increased levels of stress. (SAC ¶¶25, 28.) Plaintiff alleges Defendants’ conduct was a substantial factor in causing Plaintiff’s harm. (SAC ¶26.) Plaintiff alleges Defendant Balatico’s actions were done within the scope of his employment at Defendant Fitness because he represented to Plaintiff during the incident and throughout the social media posts that he was a supervisor of Defendant Fitness and was acting within his contractual authority. (SAC ¶29.)

Defendant Fitness argues Plaintiff’s first cause of action fails because (1) Plaintiff does not have any expectation of privacy or a right to remain in Defendant Fitness’s premises after close of business hours after midnight, and (2) Defendant Fitness is not vicariously liable for Defendant Balatico’s conduct, which was outside the scope of his employment as an aerobics instructor and because he was not on duty at the time of the incident. (Memorandum, pgs. 7-12.) Defendant Fitness further argues in reply it cannot be personally liable for invasion of privacy as a matter of law because the club closed and she was in the club after close of business hours. (Reply pg. 9.)

A “reasonable expectation of privacy depends on the circumstances and is measured by common habits in the use of domestic and business properties.” (In re Deborah C. (1981) 30 Cal.3d 125, 137.) Plaintiff must have had an “objectively reasonable” expectation of privacy in the place, conversation or matter intruded upon. (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.) The reasonableness of privacy expectations may be linked to “such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred.” (Id. at pgs. 286-287.)

In In re Deborah C., the Court determined that the large gaps above and below the doors in a public fitting room did not promote a reasonable feeling that all actions behind the doors were insulated from public observation, and held that the plaintiff did not have a reasonable expectation of privacy. (Id.) The fitting room adjoined a narrow common corridor through which customers and salesclerks must have passed frequently, and slight deviations must have brought people close to the fitting room doors. (Id.) The Deborah C. Court determined that “one who uses a dressing room is entitled to the modicum of privacy it appears to afford.” (Id. at 139.)

Defendant Fitness failed to submit evidence showing Plaintiff did not have a reasonable expectation of privacy in the women’s locker room. Specifically, Defendant Fitness submitted evidence that at about 11:35 pm Plaintiff was the only member in the women’s locker room and was in the sauna in the locker room at about 11:37 p.m., and Plaintiff was putting on her top as she walked out of the sauna and had her top around her neck when she saw Defendant Balatico. (Defendant Fitness’s Disputed Separate Statement of Fact [“DF-DSSF”] 7, 8; Decl. of An ¶3, Exh. B at 212:22-25, 213:6-9, 217:14-218:4.) Defendant Fitness’s evidence is insufficient to determination if the physical arrangement of the sauna area in the women’s locker room or the common habits in the use of the sauna area of the women’s locker room would have led a person under the circumstances to have a reasonable expectation of privacy. (In re Deborah C., 30 Cal.3d at pg. 137.) Defendant Fitness failed to meet its burden demonstrating Plaintiff cannot establish the element of a reasonable expectation of privacy in the first cause of action for invasion of privacy and does not shift the burden to Plaintiff to demonstrate an issue of material fact.

Assuming, arguendo, Defendant Fitness met its burden, Plaintiff demonstrates there is an issue of material fact as to whether Plaintiff had a reasonable expectation of privacy in the women’s locker room. Specifically, Plaintiff submitted evidence that the women’s locker room at Defendant Fitness’s 7021 Hollywood Boulevard location features a zig-zag style entry that leads to a dressing room area that is connected to a bathroom. (Plaintiff’s Additional Material Facts [“PAMF”] 12; P-COE Exh. 2 at 67:15-22.) Plaintiff submitted evidence that immediately upon exiting the sauna at midnight per her usual routine, Plaintiff picked up her bag from the floor, turned around, and saw Defendant Balatico standing a few steps in front of her inside the doorway separating the dressing room from the sauna area, at which time Plaintiff did not have a shirt on, leaving her breasts completely exposed for about three minutes during her interaction with Defendant Balatico because she was “just in utter shock” when she saw him, and she screamed. (PAMF 18; P-COE Exh. 2 at 72:17-73:25, 76:10-77:2, 124:4-12, 217:14-220:4.) Plaintiff further submitted evidence that in her seven years at Defendant Fitness she never saw a man in the women’s locker room, she saw Defendant Balatico at 12:00 a.m. as soon as she walked out of the sauna and her location was about 20 to 25 feet to reach her location inside the women’s locker room between the sauna area and where the sinks are. (PAMF 18; P-COE Exh. 2 at 76:10-77:2, 124:4-12.) Plaintiff submitted evidence that she did not hear anyone knocking or announcing themselves or any intercom announcements before she encountered Defendant Balatico. (PAMF 17; P-COE Exh. 2 at 67:6-14, 68:5-11.) Plaintiff submitted evidence that Defendant Balatico was not wearing an employee uniform at the time of the incident. (PAMF 19; P-COE Exh. 2 at 218:11-14.) Plaintiff submitted evidence that there is a triable issue of material fact as to whether the intercom system was working on the night of the incident to issue a warning that the gym was closing into the sauna area, and that she did not hear a knock on the dressing room door. (PAMF 17; P-COE Exh. 2 at 67:6-14, 68:5-11.) Accordingly, Plaintiff established a material issue of fact as to whether she had a reasonable expectation of privacy in the women’s locker room.

Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) “While the employee thus need not have intended to further the employer’s interests, the 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. . . . An act serving only the employee’s personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way.” (Id. at pg. 297.) Whether an employee’s wrongful acts were committed during the scope of employment is judged by a two-prong disjunctive test: (1) Whether the act was either required by the employer or “incidental” to the employee’s duties (“nexus” test); or (2) Whether the employee’s misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”). (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521; CACI 3720.)

Defendant Fitness submitted evidence that Plaintiff cannot establish a nexus between the wrongful act and Defendant Balatico’s employment to demonstrate Defendant Fitness is liable as Defendant Balatico’s employer. Specifically, Defendant Fitness submitted evidence that Defendant Fitness’s aerobic instructors’ job duties are to teach group aerobics classes that instructors are scheduled to instruct, such as Zumba, and does not include closing activities of the club. (DF-DSSF 18; Decl. of Whitney ¶2.) Defendant Fitness submitted evidence that Defendant Balatico was not scheduled to work and was not clocked in at the time of the incident. (Defendant Fitness’s Undisputed Separate Statement of Fact [“DF-USSF”] 20; Decl. of Pham ¶5, 6, 7, Exhs. 2, 3.) Defendant Fitness submitted evidence that the last time Defendant Balatico worked at Defendant Fitness’s 7021 Hollywood Boulevard location was on August 12, 2019. (DF-DSSF 21; Decl. of Pham ¶7, Exh. 3.) Defendant Fitness further submitted evidence that contrary to Plaintiff’s allegation that Defendant Balatico’s social media account was used to advertise Defendant Fitness as part of Defendant Balatico’s employment, Defendant Fitness has a strict policy prohibiting the use of social media accounts to promote and advertise Defendant Fitness. (DF-USSF 19; Decl. of Whitney ¶3.) Defendant Fitness met its burden to establish there is no nexus between the wrongful act and Defendant Balatico’s employment. Defendant Fitness shifted its burden to Plaintiff to demonstrate a triable issue of material fact as to whether a nexus exists between Defendant Balatico’s wrongful act and his employment.

Plaintiff met her burden to establish a triable issue of material fact as to whether a nexus exists between Defendant Balatico’s wrongful act and his employment duties. Specifically, Plaintiff submitted evidence that Defendant Balatico’s employment duties were not limited to teaching Zumba or group fitness classes and included, among other things, assisting and/or covering any other employees for various duties, if requested. (PAMF 5; P-COE Exh. 1 at 51:21-52:17; Exh. 4 at No. 28.) Plaintiff submitted evidence that Defendant Balatico was trained and actually performed closing duties at Defendant Fitness’s 7021 Hollywood Boulevard location on approximately 10 to 50 occasions, and at the direction and under the supervision of “CK,” Defendant Fitness’s general manager at Defendant Fitness’s 7021 Hollywood Boulevard location. (PAMF 6; P-COE Exh. 1 at 93:17-94:3, 94:10-14, 95:3-8, 97:19-98:25, 99:7-16.) Plaintiff submitted evidence that CK and other front desk staff would ask various employees with Defendant Fitness, including personal trainers, janitors, and group fitness instructors to close the gym if no other employee could be there. (PAMF 7; P-COE Exh. 1 at 99:1-100:12.) Plaintiff submitted evidence that Jacxon Ryan, the operations manager at Defendant Fitness’s 7021 Hollywood Boulevard location at the time of the incident, testified that closing duties include ensuring members are cleared out of locker rooms by midnight. (PAMF 9; P-COE Exh. 6 at 15:9-23, 25:17-20.) Accordingly, Plaintiff met her burden to establish a material issue of fact as to whether a nexus existed between Defendant Balatico’s wrongful act and his employment.

Defendant Balatico also submitted evidence establishing a triable issue of material fact as to whether a nexus exists between Defendant Balatico’s wrongful act and his employment duties. Specifically, Defendant Balatico submitted evidence that he had authority to supervise club members and direct them to leave the gym at closing pursuant to Defendant Fitness’s policies, even when he was s assisting another employee. (Defendant Balatico’s Disputed Separate Statement of Fact [“DB-DSSF”] 18; DB-COE Exh. A at 93:17-94:3, 95:3-96:25, 97:11-99:4, 100:20-102:12, 129:2-19, 158:10-159:4, 189:6-191:12, 205:9-15, 208:3-8; Exh. B at 20:2-22:3, 23:23-25:18, 31:13-21, 32:14-34:7, 44:6-45:3, 45:17-46:5, 53:23-54:7, 81:13-17.) Accordingly, Defendant Balatico established a material issue of fact as to whether a nexus existed between his wrongful act and his employment.

Defendant Fitness submitted evidence that Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness. Specifically, Defendant Fitness submitted evidence that Defendant Balatico’s job duties as an aerobics instructor required him to teach group fitness classes at scheduled times and did not require him to conduct club closing duties after hours. (DF-DSSF 18; Decl. of Whitney ¶2) (DF-USSF 19; Decl. of Whitney ¶3.) Defendant Fitness submitted evidence that Defendant Balatico was not scheduled to work, nor was he clocked in at the time of the incident. (DF-DSSF 20; Decl. of Pham ¶¶5, 6, 7, Exhs. 2, 3) (DF-USSF 21; Decl. of Pham ¶7, Exh. 3.) Defendant Fitness met its burden to establish Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness. Defendant Fitness shifted its burden to Plaintiff to demonstrate a triable issue of material fact as to whether a Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness.

Plaintiff met her burden to establish a triable issue of material fact as to whether Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness. Specifically, Plaintiff submitted evidence that Defendant Balatico testified he was “working for” and “representing” Defendant Fitness at the time of the incident, although he was not scheduled to work that closing period. (PAMF 29; P-COE Exh. 1 at 149:1-24, 208:3-8.) Plaintiff submitted evidence that Defendant Balatico testified that he performed closing duties at the gym on 10 to 50 occasions prior to the incident, at times under the direction and supervision of CK. (PAMF 6; P-COE Exh. 1 at 93:17-94:3, 94:10-14, 95:3-8, 97:19-98:25, 99:7-16.) Plaintiff submitted evidence that CK and other front desk staff would ask various employees with Defendant Fitness, including personal trainers, janitors, and group fitness instructors to close the gym if no other employee could be there. (PAMF 7; P-COE Exh. 1 at 99:1-100:12.) Accordingly, Plaintiff met her burden to establish a triable issue of material fact as to whether Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness.

Defendant Balatico also submitted evidence establishing a triable issue of material fact as to whether his alleged misconduct was not foreseeable to Defendant Fitness. Specifically, Defendant Balatico submitted evidence that Plaintiff was engaged in a similar incident in the locker room past closing time approximately two weeks before the incident with Defendant Balatico and had an altercation with a different employee of Defendant Fitness, Marko Carapic, who advised her she needed to leave the gym; Carapic told his manager about the incident. (DB-DSSF 11; DB-COE Exh. B at 25:25-26:25, 27:14-28:12.) Accordingly, Defendant Balatico established a triable issue of material fact as to whether Defendant Balatico’s alleged misconduct was not foreseeable to Defendant Fitness.

[1] The Court sustained a demurrer without leave to amend as to the second cause of action. (12/14/21 Order.)

[2] Defendant Fitness and Plaintiff stipulated to strike Plaintiff’s sixth cause of action for NIED. (7/16/21 Order.)

[3] Given the Court’s ruling, the Court does not address the remaining causes of action.