Case Number: B19STCV03013 Hearing Date: June 21, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MICHAEL MUNOZ,

Plaintiff(s),

vs.

FITNESS INTERNATIONAL, LLC, ET AL.,

Defendant(s).

CASE NO: 19STCV03013

[TENTATIVE] ORDER

Dept. 3

1:30 p.m.

June 21, 2019

Background Facts

Plaintiff, Michael Munoz filed this action against Defendant, Fitness International, LLC for negligence, vicarious negligence, negligent hiring and retention, assault and battery, and vicarious assault and battery. Plaintiff’s operative complaint is his First Amended Complaint, which he filed on 3/25/19.

The crux of the complaint is the allegation that Plaintiff was working out at one of Defendant’s L.A. Fitness locations when Defendant’s employee approached him and asked him to stop making noises, which were bothering other guests. Plaintiff denied doing so, and Defendant’s employee was hostile and menacing. Plaintiff therefore took out his cell phone to videotape the interaction, and the employee became angry and grabbed Plaintiff, striking him by a heavy blow or grab that injured Plaintiff’s wrist, necessitating surgery.

Plaintiff does not know the employee’s identity, and has named him as Doe 1 to the action. The first and fourth causes of action are asserted solely against doe defendants, while the second, third, and fifth causes of action are asserted against the named defendant and also the doe defendants.

Initial Note

The attorneys for both sides met and conferred concerning Plaintiff’s original complaint, and the meet and confer conversation resulted in the filing of the operative First Amended Complaint. The attorneys also met and conferred concerning the demurrer and motion to strike directed at the FAC, but were unable to resolve their differences.

Procedural Defects

The Court previously continued the hearing on Defendant’s demurrer on the ground that the demurrer violated CRC 3.1320, which requires a separate notice of demurrer, demurrer, and points and authorities in support of demurrer. Defendant filed an amended demurrer, and Plaintiff correctly notes that the amended demurrer violates CRC 3.1320(a), which prohibits a defendant from combining multiple grounds for demurrer in one paragraph. The Court wishes to rule on the demurrer on its merits, and finds this procedural defect does not operate as a bar to doing so.

Demurrer

Vicarious Liability

Defendant demurs to the second and fifth causes of action, each of which sound in vicarious liability/respondeat superior, on the ground that they fail to state a cause of action and are uncertain. Defendant argues Plaintiff has pled conduct so far outside the normal employment relationship that it cannot support a claim for vicarious liability. Neither party cites on point applicable authority concerning whether and when an employer is vicariously liable for its employee’s intentional act on the job. The Court, therefore, provides the following general discussion of the issue for guidance.

Respondeat superior imposes vicarious (or derivative liability) upon the employer—i.e., it imputes the employee’s fault to the employer and thus makes the employer responsible in damages just as if he or she personally committed the tortious act. Respondeat superior is therefore a form of strict liability: The employer is responsible for the employee’s wrongful acts (whether negligent or intentional) notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct. Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960.

Whether an employee’s wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”:

• Whether the act was either required by the employer or “incidental” to the employee’s duties (“nexus” test); or

• Whether the employee’s misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”). Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521.

Normally, the question of scope of employment turns on the facts of each case. However, where the operable, overt, observable facts are indisputable, the question is one of law. Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968. The factual determination requires consideration of such matters as the employee’s “normal” activities; the time, place and purpose of the specific act; the extent to which the employer’s interests were advanced by the act; whether the employer had reason to know that the employee would likely so act, etc. Harris v. Trojan Fireworks Co. (1984) 155 Cal.App.3d 830, 835.

The court of appeals determined there was a triable factual issue concerning whether a retail employer could be liable for an employee’s assault upon a customer following a brief verbal altercation; the Court noted that an employee’s physical eruption, stemming from an interaction with a customer, “may well be” a predictable risk of retail employment. Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 380-383.

In light of Flores, the Court cannot say, as a matter of law at the pleading stage, that Moving Defendant is not liable for its employee’s conduct detailed in Plaintiff’s complaint herein. The demurrer to the second and fifth causes of action is overruled.

Hiring, Training, and Retention

Plaintiff’s third cause of action is for negligent hiring, training, and retention. Defendant argues the cause of action is insufficiently pled per Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054. The Court therein held (citations omitted):

The eighth cause of action is labeled “Negligent Hiring, Training and/or Supervision.” In essence, plaintiff asserts that ABC’s negligence in either hiring or supervising Marshall resulted in the sexual assault and on that basis ABC can be held liable. California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (citations.) Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (citations). This is where plaintiff’s complaint flounders.

Plaintiff alleged that ABC knew or should have known that “Marshall engaged in the purchase and use of serious, mind-altering illegal drugs, that defendant Marshall used his position at ABC to gain sexual favors, and that use of a ‘casting couch’ is common within the entertainment industry.” Given the harm that plaintiff suffered–a brutal sexual assault after having been surreptitiously drugged–the pleading allegations are insufficient to allege a cause of action. ABC’s knowledge that Marshall personally used “serious mind-altering drugs” does not equate with knowledge that he would surreptitiously use drugs to place a prospective employee into a situation of helplessness before violently assaulting him. Nor does ABC’s knowledge that Marshall used his position “to gain sexual favors” have material relevance to this matter. Use of the word “gain” is consistent with the quid pro quo form of sexual harassment but that is not the basis of plaintiff’s claim. The “casting couch” allegation suffers from a similar infirmity. That is, knowledge that Marshall used his position of authority to extract or to coerce sexual favors is not knowledge that he would first drug and then attack a potential employee. In the context of negligent hiring, those are qualitatively different situations. In sum, the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way. Plaintiff has failed to allege those necessary facts.

Plaintiff’s FAC herein, at ¶¶29-31, merely alleges the elements of a cause of action for negligent hiring, training, and retention without alleging any facts in support of those allegations. Plaintiff, in opposition to the demurrer, argues he has learned additional facts during discovery that support his cause of action. Defendant, in reply, argues the Court cannot consider any facts not pled in the FAC in ruling on the demurrer; the Court can only consider the facts pled in the FAC in deciding whether to sustain or overrule the demurrer, but can consider the other facts in determining whether or not to grant leave to amend.

Because the FAC states mere conclusions without factual support, the demurrer is sustained. Because this is the first ruling on a pleading challenge in the case, leave to amend is granted. Plaintiff is ordered to file a Second Amended Complaint, wherein he alleges facts in support of his claim for negligent hiring, training, and retention, within twenty days.

Motion to Strike

Defendant moves to strike Plaintiff’s prayer for punitive damages and related allegations from his FAC. Defendant argues Plaintiff failed to plead facts sufficient to support imposition of punitive damages against it, a corporate employer, because it failed to allege authorization or ratification on the part of an officer, director, or managing agent of the corporation.

Plaintiff, in opposition to the motion, argues he has adequately pled that Doe 1 was acting in a managerial capacity, such that the requirements of §3294(b) are met. The Court has reviewed the complaint, and cannot find any allegation that Doe 1 was a “managing agent” of Defendant. The motion to strike is therefore granted. Again, because this is the first pleading challenge, leave to amend is granted. Plaintiff is ordered to file an amended complaint within twenty days.

When amending the complaint, the Court advises Plaintiff that not all “managers” of corporate entities are “managing agents” of those entities. In White v. Ultramar (1999) 21 Cal.4th 563, the Supreme Court explained what the term “manager” means in the context of §3294(b). The Court held (citations omitted):

Using these interpretive rules to guide us, we believe that in amending section 3294, the Legislature intended (citation) to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy. Our view finds support in a principle which “seeks to ascertain common characteristics among things of the same kind, class, or nature when they are cataloged in legislative enactments.” (citation.) The principle requires that when we interpret general statutory terms following the listing of specific classes of persons or things, we must construe the terms as applying to persons or things of the same general nature or class as those listed. The rule ” ‘ “is based on the obvious reason that if the [writer] had intended the general words to be used in their unrestricted sense, [he or she] would not have mentioned the particular things or classes of things which would in that event become mere surplusage.” ‘ ” (citation.) Using the doctrine to aid our interpretation of “managing agent,” we note that section 3294, subdivision (b), placed that term next to the terms “officer” and “director,” intending that a managing agent be more than a mere supervisory employee. The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term “managing agent,” and placing it in the same category as “officer” and “director,” the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer’s liability for punitive damages.

Conclusion

Defendant’s demurrer to the vicarious liability based causes of action (second and fifth) is overruled. Defendant’s demurrer to the negligent hiring, training, and retention cause of action (third) is sustained. Defendant’s motion to strike is granted. Plaintiff is ordered to file a Second Amended Complaint within twenty days. Defendant is ordered to file a responsive pleading within the statutory time thereafter.

Defendant is ordered to give notice.