2017-00220165-CU-PO

Stephanie Hawthorne vs. John Robert Fox

Nature of Proceeding: Hearing on Demurrer

Filed By: Covarrubias, Mariel

Defendant Massage Envy Franchising, LLC’s (“MEF”) Demurrer to Plaintiff’s Complaint is OVERRULED in part and SUSTAINED with leave to amend in part.

This action involves the alleged sexual assault of plaintiff Stephanie Hawthorne (“Plaintiff”) at a Massage Envy located in Elk Grove, California on October 8, 2016. Plaintiff filed her complaint on October 5, 2017, against defendants John Robert Fox (the massage therapist), MEF, and R & S Barnes Enterprises, Inc. alleging the following eight causes of action: (1) IIED; (2) NIED; (3) assault; (4) battery and sexual battery; (5) violation of Civil Code section 51.9 and Business and Professions Code section 726; (6) false imprisonment; (7) negligent hiring, supervision, and retention; and (8) negligence.

MEF now demurs to all of the causes of action, except the sixth cause of action which is only alleged against defendant Fox. MEF demurs on the grounds that the causes of action fail to state a cause of action. (Code Civ. Proc. § 430.10(e).)

Legal Standard on Demurrer

A demurrer challenges the legal sufficiency of the complaint on the grounds that it fails

to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e); Rakestraw v. California Physicians’ Service (2000) 81 Cal. App. 4th 39, 42-43.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. “[W]e are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action – Intentional Infliction of Emotional Distress

MEF’s demurrer to the first cause of action is SUSTAINED with leave to amend as this is the first demurrer to the complaint.

To establish a claim for intentional infliction of emotional distress (“IIED”), Plaintiff must allege (1) MEF engaged in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the possibility of causing, emotional distress; (2) Plaintiff suffered extreme emotional distress; and (3) MEF’s extreme and outrageous conduct was the actual and proximate cause of Plaintiff s extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001 (citing Christensen v. Superior Court (1991) 54 Cal. 3d. 868).)

MEF contends Plaintiff’s cause of action for IIED fails because she does not allege any conduct directed at her by MEF as required by the first prong above. As the California Supreme Court observed in Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903, the outrageous conduct “must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (See id. [“Past decisions of this court have invariably presupposed that the defendant’s misconduct was directed to and was intended to cause severe or extreme emotional distress to a particular individual or, when reckless disregard was the theory of recovery, that the defendant directed the conduct at, and in conscious disregard of the threat to, a particular individual”], and id. at 904 [“The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury”].)

In opposition, Plaintiff contends MEF’s conduct was directed towards her because MEF generally knew female massage customers were receiving massages from Mr. Fox, even if MEF did not know the female customers’ actual names. Plaintiff argues this case is similar to Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965. In Potter, a manufacturing company was alleged to have intentionally inflicted emotional distress upon residents of a community that drew drinking water from a source contaminated by the defendant. The trial court issued an award in favor of the residents on their claims for negligent and intentional infliction of emotional distress and the Court of Appeal affirmed. However, the California Supreme Court reversed the judgment and remanded for a retrial on the issue of the defendant’s liability for intentional infliction of emotional distress. The Court reasoned the trial court’s finding did not satisfy the requisite knowledge requirement under Christensen that the defendant had knowledge of “these particular plaintiffs.” (Potter, supra, 6 Cal. 4th at 1002-1003.) Despite Plaintiff’s claims, Potter does not support her argument. Under Christensen and Potter, to be liable for IIED, a defendant must be aware of the plaintiff and direct intentional or reckless conduct at that plaintiff.

Here, Plaintiff alleges MEF “had actual knowledge of JOHN ROBERT FOX’s malicious and despicable propensities to touch, feel, sexually assault, grope, harass, and/or rape women, including but not limited to female massage customers.” (Complaint at ¶ 15.)

Plaintiff further alleges MEF “recklessly disregarded the probability of causing severe emotional distress to Plaintiff which resulted from taking no steps to prevent JOHN ROBERT FOX from sexually harassing Plaintiff or engaging in unwanted, harmful, and offensive sexual contact with Plaintiff. Defendants MASSAGE ENVY FRANCHISING, LLC, and R & S BARNES ENTERPRISES, INC. in fact took no measures to prevent JOHN ROBERT FOX from engaging in unwanted, harmful, and offensive sexual contact with Plaintiff.” (Complaint at ¶ 20.)

The Court finds these allegations are insufficient to allege MEF engaged in conduct in reckless disregard of the probability of causing this particular Plaintiff emotional distress.

Second, Seventh and Eighth Causes of Action – NIED, Negligent Hiring, Supervision, and Retention, and Negligence

MEF’s demurrer as to the second, seventh, and eighth causes of action is SUSTAINED with leave to amend as this is the first demurrer to the complaint and Plaintiff asserts in her papers that she can plead additional supporting facts.

Preliminarily, with respect to the second cause of action, the Court clarifies that “there is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” ( See Potter, supra, 6 Cal. 4th at 984-985 (citation omitted) (citing Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1073; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal. 3d 583, 590.)

MEF contends that all of Plaintiff’s negligence causes of action fail because MEF, as a franchisor, owes no direct legal duty to Plaintiff to prevent the alleged sexual misconduct of Mr. Fox.

A franchisor will be liable for sexual harassment at a franchised location if it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations. (Patterson v. Dominos Pizza (2014) 60 Cal. 4th 424, 503.) Where a “reasonable inference [can] be drawn that [the franchisor] retained or assumed the traditional right of general control an ’employer’ or ‘principal’ has over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees” (Patterson, supra, 60 Cal. 4th at 503), the franchisor may ultimately be deemed the de facto employer of the franchisee. Also, if one of the parties has the right to control and supervise the actions of another, there is an agency, not an independent contractor relationship, even if the right to control is not exercised and there is no actual supervision of the agent’s work. (Malloy v. Fong (1951) 37 Cal. 2d 356, 370.)

Plaintiff contends the following allegations are sufficient to assert MEF’s liability as a franchisor via an agency relationship:

“Plaintiff is informed and believes, and thereon alleges, that at all times relevant herein, each defendant, whether designated by name or as a DOE, was the

agent, servant and employee of every other defendant, who was a principal, master, and employer of each other defendant, and every defendant was acting within the course and scope of said agency, authority and employment.” (Complaint at ¶ 7.)

The Court finds the foregoing allegations are insufficient. Plaintiff fails to allege any facts as to how MEF retained general control over the relevant day-to-day operations, such as hiring, direction, supervision, discipline, or discharge. Accordingly, MEF’s demurrer as to the second, seventh, and eighth causes of action is SUSTAINED. However, because this is the first demurrer to the complaint and Plaintiff asserts in her papers that she can plead additional supporting facts, leave to amend is granted.

Third, Fourth, and Fifth Causes of Action – Assault, Sexual Battery, and Violation of Civil Code section 51.9 and Business and Professions Code section 726

MEF’s demurrer to the third, fourth, and fifth causes of action is OVERRULED.

MEF contends Plaintiff’s third, fourth, and fifth causes of action fail because Mr. Fox’s alleged conduct occurred outside the scope of his employment as a massage therapist and, therefore, MEF cannot be vicariously liable.

“Ordinarily, 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. v. Henry Mayo Newhall Mem’l Hosp. (1995) 12 Cal. 4th 291, 299, citing Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 213.) “Where the undisputed facts would not support an inference that the employee was acting within the scope of his employment,” the complaint may be challenged by way of demurrer. (John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438, 447; Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal. App. 3d 545.)

Under the doctrine of respondeat superior, an employer can be vicariously liable for torts committed by an employee if those acts occurred during the “course and scope of employment.” (Lisa M, supra, 12 Cal. 4th at 296; see also Perez v. Von Groningen & Sons, Inc (1986) 41 Cal. 3d 962, 967.) However, for an employer to be held liable for an intentional tort, the tort must have a causal nexus to the employee’s work, meaning that the tort must arise from the work of the employment. (Lisa M., supra, 12 Cal. 4th at 297.) In other words, “the risk of tortious injury must be ‘foreseeable’ in the sense it is inherent in the working environment” of the employee’s typical employment. (MP. v. City of Sacramento (2009) 177 Cal. App. 4th 121, 129.) “But for” causation is not applicable to respondeat superior liability; it is not enough that employment merely brought tortfeasor and victim together. (Lisa M., supra, 12 Cal. 4th at 298-99.) “The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Lisa M., supra, 12 Cal. 4th at 299.)

In Lisa M. plaintiff alleged she was sexually assaulted by an ultrasound technician during an ultrasound exam. The Court held the employer was not vicariously liable for this conduct because the assault was not an outgrowth of the technician’s job duties.

In this case, Plaintiff alleges she was sexually assaulted by her massage therapist while she was receiving a massage. Plaintiff contends Mr. Fox’s position as a

massage therapist gave him opportunities and access to her undressed body while she was in a vulnerable position, and his job duties required him to put his hands all over her body. Therefore, Plaintiff contends Mr. Fox’s employment gave him access far beyond simply being alone in a room with Plaintiff, as was the case with the ultrasound techinican in Lisa M.

The Court is persuaded the duties required by Mr. Fox as a massage therapist can be distinguished from those of an x-ray technician and, therefore, can be distinguished from Lisa M. The Court finds Plaintiff’s allegations are sufficient to assert vicarious liability against MEF. Plaintiff has alleged she was sexually assaulted while Mr. Fox was performing his employment duty of massaging Plaintiff. This is sufficient at this stage of the proceedings.

Conclusion

Where leave to amend is granted, Plaintiff may file and serve a First Amended Complaint on or before March 6, 2018. Response to be filed and served within 30 days of service of the Amended Complaint, 35 days if served by mail.