Judge: Shirley K. Watkins, Case: 19STCV03910, Date: 2022-10-31 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 19STCV03910    Hearing Date: October 31, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Equinox Holdings, Inc.’s Motion for Summary Judgment is DENIED.

Defendant Equinox Holdings, Inc.’s Motion for Summary Adjudication is DENIED.

Defendant Equinox Holdings, Inc.’s Request for Judicial Notice is GRANTED  as to Exhibits 10-12’s existence but not as to any hearsay or triable issues of fact.
            Objections made in the Separate Statements are overruled.

1.         INTRODUCTION

Defendant Equinox Holdings, Inc. (Defendant) moved for summary judgment (MSJ) or alternatively summary adjudication (MSA) against Plaintiff Jane Doe’s (Plaintiff) Complaint.  Defendant’s MSA identified issues as to Plaintiff’s second cause of action (COA) for negligent hiring, supervision, and retention, third COA for employee negligence and vicarious liability, and fourth COA for Unruh Act Sexual Harassment violation.  Plaintiff’s Complaint alleged only these three COAs against Defendant.

            2.         DISCUSSION 

                        A.        AS TO ISSUE NO. 1: Defendant asserts plaintiff’s second cause of action for Negligent Hiring, Supervision and Retention against Equinox fails because the undisputed material facts show that Equinox had no prior knowledge of any prior complaints involving defendant Humberto Sanchez (“Sanchez”).

            As to the element of prior notice, the parties argued over a complaint submitted by Ashley Wenter (Wenter,) a member of Defendant’s gym.  The assault against Plaintiff allegedly occurred on July 20, 2018 (Defendant’s Separate Statement of Fact (DSSF) 8-9.)  At issue is whether the alleged misconduct perpetrated upon Wenter and her complaint of it to Defendant occurred prior to or after July 20, 2018.  Defendant submitted a July 25, 2018, email from Maureen Rounds, general manager of the Woodland Hills gym, to her team members.  (DSSF 22: Exh. 3, Bate Stamp EQUI_Jane Doe 000214.)  The email started by stating that Wenter “just filed a complaint.” However, within the body of the email, Rounds continued to state that Wenter participated in a yoga class “last Tuesday” when Wenter was approached by Sanchez.  The “last Tuesday” referred to in the email would be July 17, 2018, and prior to Plaintiff’s incident.  Defendant also submitted Wenter’s deposition testimony showing that she complained to a person on the membership services team on the same day and a manager emailed her the next day.  (See Defendant’s Exh 9, pg. 15:18-25.)  Although Wenter’s deposition testimony does not identify the date of the incident or her complaint, the Court notes that there is evidence (i.e., the manager’s email to Wenter) which would clarify the date of Wenter’s incident and complaint.  In any event, the body of the July 25, 2018, email from Rounds to her team members and Wenter’s deposition testimony shows a triable issue of fact as to whether Defendant had prior notice of an incident involving Sanchez. 

            Defendant asserted even if Wenter’s incident occurred prior to Plaintiff’s incident, the two incidents are not similar.  Wenter’s incident allegedly involved only a verbal contact or harassment and Plaintiff’s incident involved a sexual battery.  However, the element of knowledge or notice is either actual or constructive.  The Wenter incident arguably could have placed Defendant on constructive notice of a potential sexual battery because Wenter’s complaint involved sexual harassment.  Sexual harassment and sexual battery are not so far removed from each other as Defendant would argue.  Wenter’s complaint provided facts showing that Sanchez' conduct was arguably predatory on a sexual level, even though an actual sexual battery was not involved.  Because both Wenter’s incident and Plaintiff’s incident involved some form of sexual misconduct, there is a triable issue.  Wenter’s complaint is sufficiently similar to show a triable issue of fact as to prior notice of a particular risk. 

Defendant then argued that the evidence shows no triable issue of fact as to their compliance with their duty because Defendant checked Sanchez’s background.  As cited by Defendant, the arguments as to a sufficient background check are relevant to the “hiring” element of the COA.  The COA also includes negligent supervision and retention claims.  Even if there is no triable issue of fact as to a sufficient background check and hiring of Sanchez, the argument is insufficient to dispose of the entire COA or issue of duty because it does not address the negligent supervision and retention elements.  With the above analysis of Wenter’s complaint, there is a triable issue as to negligent supervision and retention of Sanchez for a potential of three days between July 17, 2018, and July 20, 2018.  The fact that the claim may rely upon three days of Defendant’s alleged failure to act is sufficient to create a triable issue. The MSJ and MSA as to Issue 1 is DENIED. 

                        B.        AS TO ISSUE NO. 2: Defendant asserts plaintiff’s third cause of action for Employee Negligence and Vicarious Liability against Employer fails as a matter of law because there is no special or heightened duty of care and sexual assault by an employee is not within the course and scope of employment. “The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from “but for” causation.  That the employment brought tortfeasor and victim together in time and place is not enough. We have used varied language to describe the nature of the required additional link … : the incident leading to injury must be an “outgrowth” of the employment (Internal citation omitted.); the risk of tortious injury must be “ 'inherent in the working environment' ” (Internal citation omitted.) or “ 'typical of or broadly incidental to the enterprise [the employer] has undertaken' ” (Internal citation omitted.).”  (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298 (Lisa M.).)  But according to the California Supreme Court, “(o)rdinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’” Lisa M., supra, 12 Cal.4th, 291 at 299.  More precisely, “Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact.” Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138, see also Rest.2d Agency, §228, com. d. p. 505. “An act is within the scope of employment if the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought.” Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 107.  The Court agrees that the scope of a masseur's employment is specifically and intentionally to touch a person's body, some of which is naked. The Court cannot say as a matter of law that Sanchez did not act within the course and scope of his employment. The Court finds there is a triable issue. The MSA as to Issue 2 is DENIED. 

                        C.        AS TO ISSUE No. 3 against the fourth COA: Defendant asserts that there is no triable issue of fact because the masseur-client relationship is not covered under Civil Code section 51.9; Plaintiff terminated the massage session; and Defendant did not authorize or ratify the alleged sexual misconduct. 

            The elements for a Civil Code section 51.9 violation, as applicable to this case, are:  (1) plaintiff had a business, service, or professional relationship with defendant; (2) defendant engaged in physical conduct of a sexual nature/hostile nature based on gender;  (3) defendant’s conduct was unwelcome and also pervasive or severe; and (4) plaintiff has suffered or will suffer economic loss or disadvantage, personal injury, the violation of a statutory or constitutional right as a result of defendant’s conduct.”  (CACI no. 3065.)

            As to a “business, service or professional” relationship, the statute provides examples of such relationships and also provides that a “relationship that is substantially similar” can be included.  (Civ. C. sec. 51.9(a)(1).)  Defendant argued, without case law authority, that the relationship at issue must be a “special, confidential and/or fiduciary relationship.”  The contention is not persuasive because the statute makes no express reference to such relationships.  Defendant’s use of the examples of relationships listed in the statute is not persuasive because a building contractor, landlord, property manager, or teacher relationship is not special, confidential, or fiduciary.  The Court further notes that case law expressly holds that fiduciary relationships are not required under this statute.  C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1109-1110 (Tenet).  The existence of a “business, service, or professional” relationship is fact dependent.  (Id. at pg. 1106-1107.)  In Tenet, the Court reviewed whether a certified nursing assistant (CNA) relationship with a patient is covered under the statute.  The Court looked to the allegation that  CNA’s duty is alleged to be “substantially similar” to that of a physician’s duty.  In the instant action, there is a colorable argument that massage therapists have a service or professional relationship with their clients similar to that of a physician.  Massage therapist provide therapeutic services related to health and are licensed.  Because licensure is required, there is an inference that specialized education is required to perform massages and a lay person cannot perform massages in a business setting.  In general terms, doctors provide health services that require a license.  Because there is a colorable argument that massage therapists have a service or professional relationship with their clients, there is a triable issue of material fact as to the first element. 

            Moreover, if a building contractor can be liable, the Court cannot say that a masseur, who has even more intimate contact with a client, would not also be liable. 

As to liability by Corporate Defendant/Employer for Civil Code section 51.9 violations by an employee, Defendant argued that there are no triable issues of fact as to authorization or ratification.   “As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee's conduct is generally a factual question. [Citation.]” (Internal citations omitted.)”  (Tenet, supra, 169 Cal.App.4th at pp. 1110-1111.)  Plaintiff disputes the facts showing Defendant’s investigation, suspension, and termination; the “facts” presented by Plaintiff presents a dispute of a material fact. 

The parties argued over whether the 2018 amendment or the 2019 amendment of the statute applies.  Neither party presented sufficient legal authority to support their contentions found in footnotes to their briefs.  However, statutes are generally presumed to operate “prospectively in the absence of a clear indication of a contrary legislative intent.”  (Quarry v. Doe I (2012) 53 Cal.4th 945, 955.)  “In a principle of significance to the present case, changes to rules governing pending litigation, for example, frequently have been designated as prospective, because they affect the future; that is, the future proceedings in a trial. The prospective label applies even though the trial concerns conduct that occurred prior to the enactment of the new law. (Internal citations omitted.)”  (Id. at p. 956.)  “The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.”  (Landgraf v. USI Film Products (1994) 511 U.S. 244, 270.)  The instant action was filed on February 4, 2019, after enactment of the 2019 amendment of the statute, which does not include the requirement to show termination of the relationship.  Even in amendments to statutes in pending actions, the amended statute is seen to apply.  It is undisputed that the alleged violation of the statute occurred in 2018, however, “the amendment applies to all existing causes of action from the date of its enactment.”  (Id.)  Further, it would be unfair to impose the additional burden found in the 2018 amendment of the statute upon Plaintiff when it is not included in the 2019 amendment of the statute, especially when the Legislature expressly removed it from the then-existing amendment of the statute when the action was filed.  The applicable amendment of the statute is the 2019 amendment.  Because the 2019 amendment applies, the Court does not consider the arguments regarding an inability to easily terminate the relationship.  The MSA as to Issue 3 is DENIED. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.