Judge: Robert B. Broadbelt, Case: 23STCV16614, Date: 2025-04-22 Tentative Ruling

Case Number: 23STCV16614    Hearing Date: April 22, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant KinderCare Learning Centers, LLC

RESPONDING PARTY:       Plaintiff Jane Doe C.M.

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS 

The court rules on defendant KinderCare Learning Centers, LLC’s evidentiary objections, filed on April 17, 2025, as follows:

The court overrules Objections Nos. 1-17 because the objections are directed to statements that plaintiff Jane Doe C.M. made in her responsive separate statement and are not directed to evidence.  (Cal. Rules of Ct., rule 3.1354, subd. (b) [specifying format of objections “to evidence”].)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 or cross-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).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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).)  “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.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendant KinderCare Learning Centers, LLC (“Defendant”) moves the court for an order granting summary adjudication in its favor and against plaintiff Jane Doe, C.M. (“Plaintiff”) on the first through fourth causes of action on the ground that (1) Plaintiff has alleged that Defendant is vicariously liable for the acts committed by its employee, who is alleged to have sexually assaulted Plaintiff, under the theories of respondeat superior and authorization or ratification, and (2) Defendant is not vicariously liable for those causes of action under those theories.[1]  (Compl., ¶¶ 1, 7.)

1.     First Cause of Action for Assault

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)  

The court finds that Defendant has met its burden of showing that the first cause of action for assault has no merit because Defendant has shown that it cannot be held vicariously liable for this intentional tort, committed by its employee (“Perpetrator”), under the doctrine of respondeat superior. 

Due to the special relationship between employers and employees, “California deems employers to be vicariously liable for the torts committed by their employees if, but only if, the employee is acting within the scope of employment.  [Citations.]  This legal principle is known more commonly as respondeat superior.”  (Musgrove v. Silver (2022) 82 Cal.App.5th 694, 707 [emphasis in original] [internal citations omitted].)  Courts have “articulated no fewer than four different tests for assessing whether particular acts should be deemed to be within the scope of employment and hence a basis for imposing vicarious liability [citation].”  (Ibid. [internal citation omitted].)  The four tests are as follows: (1) the risk-focused test, (2) the foreseeability-focused test, (3) the benefit and custom-focused test, and (4) the public policy-focused test.  (Id. at pp. 708-710.)  The court finds that Defendant has met its initial burden to show that it cannot be held liable for Perpetrator’s wrongful acts under the risk-based and foreseeability-focused tests.

The risk-focused test “focuses on whether the risk engendered by the employee’s allegedly tortious conduct is inherent in the working environment or may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.”  (Musgrove, supra, 82 Cal.App.5th at p. 708 [internal quotation marks and citations omitted].)  Thus, “an employee’s allegedly tortious conduct is deemed to be within the scope of employment only if that conduct is required by, engendered by, or an outgrowth of his employment.”  (Ibid. [internal quotation marks and citation omitted].)  “Put differently, there must be a nexus between the employee’s tort and the employment.”  (Ibid. [internal quotation marks and citation omitted].)

The foreseeability-focused test “focuses on whether the employee’s [allegedly tortious] []conduct could be reasonably foreseen by the employer.  [Citation.]  For these purposes, the concept of foreseeability has a different—and, significantly, a narrower—definition than it does in tort law generally.  Under this narrower definition, an employee’s allegedly tortious conduct is sufficiently foreseeable to be deemed within the scope of employment, only if, in the context of the particular enterprise, the employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.  [Citations.]”  (Musgrove, supra, 82 Cal.App.5th at p. 708 [internal quotation marks, emphasis, and citations omitted].)  Thus, “what matters is whether the employee’s act is foreseeable in light of the duties the employee is hired to perform [citations], and hence whether the plaintiff’s injury is the type of injury that as a practical matter [is] sure to occur in the conduct of the employer’s enterprise.”  (Id. at p. 709 [internal quotation marks, emphasis, and citations omitted]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 302 [“The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought”].)

First, as to the risk-focused test, Defendant has (1) presented evidence showing that the job duties of its daycare teachers are to supervise, care for, and ensure the safety of the children, and (2) cited authority to support its position that it cannot be held vicariously liable for the sexual misconduct of its employees because such misconduct is not a risk required by, engendered by, or was an outgrowth of Perpetrator’s employment with Defendant.  (Undisputed Material Fact (“UMF”) No. 5; Welsh Decl., ¶ 3; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 144 [“the act of rape is not attributable to the school district because it is neither a required or incidental duty of a school employee, nor is it a reasonably foreseeable consequence of the educational enterprise”]; Lisa M., supra, 12 Cal.4th at pp. 300 [finding that a technician’s acts in sexually assaulting the plaintiff during an ultrasound procedure were not engendered by or an outgrowth of his employment], 301 [“a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.  Here the opposite was true: a technician simply took advantage of solitude with a naïve patient to commit an assault for reasons unrelated to his work”], 302 [the personal motivations of the technician were not generated by or an outgrowth of workplace responsibilities, conditions, or events].)

Second, as to the foreseeability-focused test, Defendant has presented (1) evidence to show that the job duties of its daycare teachers include the supervision, caring, and protecting of the safety of children, and (2) authority to support its contention that sexual misconduct against children at daycare facilities is not characteristic of Defendant’s enterprise (i.e., the provision of daycare services) and therefore was not so unusual or startling that it would seem unfair to include Plaintiff’s loss among other of Defendant’s costs.  (UMF No. 5; Alma W., supra, 123 Cal.App.3d at pp. 142 [“it defies every notion of fairness to say that rape is characteristic of a school district’s activities”], 143 [finding that “[t]here is no aspect of a janitor’s duties that would make sexual assault anything other than highly unusual and very startling”]; Lisa M., supra, 12 Cal.4th at p. 303 [“Although the routine [ultrasound] examination [the technician] was authorized to conduct involved physical contact with Lisa M., [the technician’s] assault on plaintiff did not originate with, and was not a generally foreseeable consequence of, that contact.  Nothing happened during the course of the prescribed examinations to provoke or encourage [the technician’s] improper touching of plaintiff[,]” such that his “actions were not foreseeable from the nature of the work he was employed to perform”].)

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to whether Defendant may be held vicariously liable under the doctrine of respondeat superior.

Plaintiff has submitted (1) the deposition transcript of Gwendolyn Lopez, Defendant’s person most qualified, in which Lopez testified that (i) given the nature of childcare, physical interaction between staff and students (i.e., including Defendant and Plaintiff) is inevitable, and (ii) Defendant is in “a unique position to assist” children because, for example, children of certain ages do not know how to talk, and are vulnerable, and (2) Defendant’s Quality Foundations Standard Operating Procedures and Health and Safety Guidelines (“Guidelines”) provide that (i) physical interaction with children is part of the environment, but (ii) staff members are expected to monitor their own behavior and the behavior of coworkers to ensure that such behavior is not misunderstood.  (Gamez Decl., ¶ 2 and Ex. A, Lopez Dep., pp. 83:23-84:2, 88:11-25; Gamez Decl., Ex. I, Def. Guidelines, p. KLC#00144, ¶ 1-2.)  Plaintiff has also submitted evidence showing that Defendant—although stating in its Guidelines that staff members “should also avoid situations in which their behaviors could be misunderstood, such as being alone with children in closed or dark rooms”—does not “do anything to try and have that sort of situation where employees are potentially alone with children in a closed or dark room[.]”  (Gamez Decl., Ex. I, Def. Guidelines, p. KLC#00144, ¶ 1-2; Decl., Ex. A, Lopez Dep., p. 90:4-8.)

Thus, based on the evidence described above, the court finds that Plaintiff has submitted evidence to show that triable issues of material facts exist as to whether (1) under the risk-based test, the circumstances of Perpetrator’s employment with Defendant—including that Perpetrator was a daycare assistant whose duties inevitably involved physical contact with students—were highly likely to engender a relationship that might have resulted in the sexual exploitation of Plaintiff, a vulnerable child at Defendant’s facility, and (2) Perpetrator’s alleged conduct could be reasonably foreseen by Defendant because, in the context of this particular enterprise (i.e., the provision of daycare services), the conduct is not so unusual that it would seem unfair to include the loss resulting from it among other costs of Defendant’s business.  (Musgrove, supra, 82 Cal.App.5th at pp. 708 [setting forth risk-focused test], 708-709 [setting forth foreseeability-focused test]; Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 108 [finding sufficient evidence for a jury to conclude that the mental health worker that assaulted the plaintiffs was acting within the scope of his employment based on the duties of a mental health worker in helping patients with daily living activities, the personal involvement with patients, who are vulnerable, and the inadequate training on worker-patient boundaries, such that “[s]exual exploitation of the patients by employees is a foreseeable hazard arising from the circumstances of the job”].)

The court notes that Defendant has also argued that it has met its burden to show that it cannot be held vicariously liable for this cause of action (1) under the respondeat superior doctrine based on application of the benefit and custom-focused[2] and public policy-focused tests, and (2) based on the theories of authorization and ratification.  However, because the court has determined that Plaintiff has met her burden to show that a triable issue of material fact exists as to whether Defendant may be held vicariously liable under the respondeat superior doctrine based on the application of the risk-focused and foreseeability-focused tests, the court does not reach those issues.

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for assault.

2.     Second Cause of Action for Battery

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.”  (Carlsen, supra, 227 Cal.App.4th at p. 890.)

The court finds that Defendant has met its burden of showing that the second cause of action for battery has no merit because Defendant has shown that it cannot be held vicariously liable for this intentional tort, committed by Perpetrator, under the doctrine of respondeat superior and based on the application of the risk-focused and foreseeability-focused tests for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to whether Defendant may be held vicariously liable under the doctrine of respondeat superior for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court therefore denies Defendant’s motion for summary adjudication as to the second cause of action for battery.

3.     Third Cause of Action for Sexual Battery

“A person commits a sexual battery who does any of the following: [¶] (1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.  [¶]  (2) Acts with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, and a sexually offensive contact with that person directly or indirectly results.  [¶]  (3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.”  (Civ. Code, § 1708.5, subds. (a)(1), (a)(2), (a)(3).)

The court finds that Defendant has met its burden of showing that the third cause of action for sexual battery has no merit because Defendant has shown that it cannot be held vicariously liable for this intentional tort, committed by Perpetrator, under the doctrine of respondeat superior and based on the application of the risk-focused and foreseeability-focused tests for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to whether Defendant may be held vicariously liable under the doctrine of respondeat superior for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court therefore denies Defendant’s motion for summary adjudication as to the third cause of action for sexual battery.

4.     Fourth Cause of Action for Intentional Infliction of Emotional Distress

“The elements of a cause of action for [intentional infliction of emotional distress] are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.”  (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.)

The court finds that Defendant has met its burden of showing that the fourth cause of action for intentional infliction of emotional distress has no merit because Defendant has shown that it cannot be held vicariously liable for this intentional tort, committed by Perpetrator, under the doctrine of respondeat superior and based on the application of the risk-focused and foreseeability-focused tests for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court finds that Plaintiff has met her burden to show that a triable issue of material fact exists as to whether Defendant may be held vicariously liable under the doctrine of respondeat superior for the reasons set forth in connection with the court’s discussion on the first cause of action.

The court therefore denies Defendant’s motion for summary adjudication as to the fourth cause of action for intentional infliction of emotional distress.

ORDER

The court denies defendant KinderCare Learning Centers, LLC’s motion for summary adjudication.

The court orders plaintiff Jane Doe, C.M. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 22, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court