Case Name: Jane Doe v. Lucky Feet, Inc.
Case No.: 18-CV-331185

I. Background

This case brought by plaintiff Jane Doe (“Plaintiff”) against defendant Lucky Feet, Inc. dba Lucky Feet Massage (“Defendant”) arises from one of Defendant’s employees inappropriately touching Plaintiff during a massage.

According to the complaint, Defendant is a massage business. Plaintiff went to Defendant’s place of business to receive a massage with some friends. Defendant employs Jie Jin (“Jin”) as a massage therapist. Jin led Plaintiff into a massage room to perform the massage. Plaintiff was fully clothed in jeans and a t-shirt when she entered. During the massage Jin pulled up Plaintiff’s shirt and improperly massaged her bare breasts, buttocks, and vagina. During the assault, Plaintiff was terrified and frozen.

Afterward, Plaintiff talked with her friends and discovered that none of them had received similar treatment from their massage therapists. Plaintiff told her family about what occurred. Plaintiff’s uncle complained to Defendant about the incident. Defendant took no action against Jin, who remains employed by Defendant as a massage therapist.

Based on the foregoing allegations, Plaintiff alleges causes of action for: (1) negligence; (2) fraud; (3) intentional infliction of emotional distress; (4) sexual battery; (5) gender violence; (6) violation of the Ralph Act; and (7) false imprisonment.

Currently before the Court is Defendant’s demurrer to the third through seventh causes of action of the complaint.

II. Discussion

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (South Shore), internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.)

B. Meet and Confer

Plaintiff argues the demurrer should be overruled because Defendant failed to meet and confer and file the requisite meet and confer declaration. A demurring party must meet and confer with the opposing party prior to filing a demurrer in an informal attempt to resolve objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) If such efforts are unsuccessful and a demurrer is filed, the demurring party must file and serve a declaration describing the meet-and-confer process. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Defendant did not file a meet-and-confer declaration with its demurrer. Plaintiff also submits a declaration from her counsel, who affirmatively states that Defendant never attempted to meet and confer.

However, an insufficient meet-and-confer process “shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will overlook—in this instance only—Defendant’s failure to comply with the Code of Civil Procedure. Defendant is admonished to remain apprised of, and comply with, the applicable law going forward.

C. Merits of the Demurrer

Defendant demurs to the third through seventh causes of action on the ground Plaintiff fails to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Defendant argues that each challenged cause of action fails because Plaintiff has not alleged facts showing that it is vicariously liable for Jin’s intentional torts under respondeat superior.

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. . . . [A]n employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal. 4th 291, 296-97 (Lisa M.)). “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.’ ” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213 (Mary M.); Lisa M., supra, 12 Cal. 4th at p. 299; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 162 (Baptist).)

“For the employer to be liable for an intentional tort, the employee’s act must have a ‘causal nexus to the employee’s work.’ ” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521.) The test for whether a sufficient nexus exists has been condensed over time into a disjunctive test. (Ibid.) “The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.” (Ibid.)

Defendant relies primarily on two California Supreme Court cases discussing when employers are liable under respondeat superior for sexual assaults—Lisa M. and Farmer’s Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992 (Farmer’s).

In Lisa M., the employer of an ultrasound technician—a hospital—was not vicariously liable for the technician’s sexual assault on a pregnant woman during an ultrasound procedure. (Lisa M., supra, 12 Cal. 4th at pp. 295 and 306.) The court reasoned that where an intentional tort such as assault is motivated by a work related dispute or emotion, the intentional tort could be within the scope of employment. (See id. at p. 303 [contrasting case where work related quarrel proceeded the assault with case where rape was not related to work duties].) “As with these nonsexual assaults, a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.” (Id. at p. 301.)

Applying this standard in Lisa M., the California Supreme Court declined to impose respondeat superior liability on the hospital. “The flaw in plaintiff’s case for Hospital’s respondeat superior liability is not so much that [the employee’s] actions were personally motivated, but that those personal motivations were not generated by or an outgrowth of workplace responsibilities, conditions or events.” (Id. at pp. 301-302.) The ultrasound procedure “provided no occasion for a work-related dispute or any other work-related emotional involvement with the patient. The technician’s decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible.” (Id. at p. 301). “Nothing happened during the course of the prescribed examinations to provoke or encourage [the employee’s] improper touching of plaintiff.” (Id. at p. 303.)

In Farmer’s, a deputy sheriff sexually harassed co-workers at the jail where they worked. (Farmer’s, supra, 11 Cal. 4th at pp. 998-999.) The court considered whether the sexual misconduct was within the scope of the deputy’s employment in light of the facts that “most of the harassment took place on the jail premises during work hours while the deputies were on duty.” (Id. at p. 1007.) The plaintiffs argued that other cases had held employers vicariously liable for physical injuries at work during working hours. (Id. at p. 1008.) The court rejected this based on reasoning very similar to Lisa M.: “Each one of those decisions involved an assault precipitated by a work-related dispute, thus clearly illustrating the principle that the tortious act must arise out of the employment. The misbehavior here, which had nothing to do with the work performed by Nelson or his victims, stands in sharp contrast to the conduct in those cases.” (Ibid.)

After quoting extensively from Lisa M. and Farmer’s, Defendant contends that the conduct here did not arise from Jin’s employment, but from a personal drive. Defendant asserts Jin’s conduct was not a normal part of giving a massage at their business: “giving a massage does not include sexually-based conduct as a part of the business conduct.” (Dem., p. 6:24-25.) Thus, “[a]ny sexually-based conduct as an intentional act is attributable to the individual responsible, not the business.” (Dem., p. 6:25-26.)

Defendant’s argument is predicated on the assumption that Jin was acting on some personal motivation not within the scope of his duties when he touched various intimate parts of Plaintiff. This assumption is contradicted by the allegations in the complaint. Plaintiff alleges “[t]he improper touching . . . occurred in the course and scope of the performance of [sic] duties of Jie Jin . . . .” (Complaint, ¶ 14.) A demurrer does not test the truth of the allegations, and accepts them as true. (Align, supra, 179 Cal.App.4th at p. 958.) Thus, the Court must accept Plaintiff’s allegation regarding the scope of Jin’s duties as true.

Moreover, whether these actions are within scope of Jin’s employment is a question of fact which the Court may decide on demurrer only if “no competing inferences are possible.” (Mary M., supra, 54 Cal.3d at p. 213.) As Plaintiff points out in opposition, at least one competing inference is possible. It may be that Jin was not seeking some personal gratification, but was carrying out what he believed to be an acceptable part of his massage therapist duties. (Opp., p. 5:21-22.) Plaintiff alleges that this was not an isolated or unusual incident, and sexual misconduct was commonplace for massage therapists at Defendant’s location. (Complaint, ¶ 16.) In this context, one possible inference is that Jin believed he was doing his job by providing a massage similar to those his co-workers provided.

Ultimately, a demurrer is not the place to resolve issues of fact regarding Jin’s motivations. (See Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098 [“The problem with [defendant’s] argument is that we are reviewing a demurrer, not a summary judgment”].) Although several cases—such as Lisa M. and Farmer’s—have held that sexual assaults were not within the scope of employment (see Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 394 [listing cases]), these cases were typically decided on summary judgment where the court could consider facts showing the sexual assault was personally motivated (see Lisa. M., supra, 12 Cal. 4th at p. 296 [reviewing court of appeal decision reversing summary judgment]; see also Farmers Ins. Group, supra, 11 Cal.4th at p. 1001 [reviewing court of appeal decision vacating order granting motion for summary judgment]). “A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore, supra, 226 Cal.App.2d at p. 732.) At the pleading stage, the Court does not consider facts or extrinsic evidence and, thus, Defendant’s argument cannot be properly resolved on demurrer.

Furthermore, as Plaintiff points out, Defendant does not address Plaintiff’s alleged legal theory of ratification in its papers. “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.” (Baptist, supra, 143 Cal.App.4th at pp. 169–170; see also Ventura v. ABM Industries Incorporated (2012) 212 Cal.App.4th 258, 272.) A pleading may survive demurrer on a ratification theory irrespective of whether it sufficiently alleges respondeat superior. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.) Defendant fails to dispose of the third through seventh causes of action in their entirety because it fails to address ratification as an alternative basis for vicarious liability. Therefore, even supposing Defendant’s respondeat superior argument was meritorious—which it is not—the demurrer would still be overruled. (See PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to part of a cause of action”].)

Accordingly, the demurrer to the third through seventh causes of action is OVERRULED.