2012-00123011-CU-PO

Tina Lee vs. Golden Corral Corporation

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Linkert, Richard S.

The motion of Defendant Golden Corral Corporation (“GCC”) and Mark Manges
(“Manges”) (collectively “Defendants”) for summary judgment or, alternatively,
summary adjudication of issues is UNOPPOSED and GRANTED as follows:

Plaintiffs Charlie L., a minor, and Tina Lee (collectively “Plaintiffs”) allege that Co-
Defendant Juan Jose Moreno Arguello (“Arguello”) committed a sexual battery against
Charlie L. while the latter was using a GCC restroom. Plaintiffs allege that Arguello
worked as a GCC chef. Manges allegedly was the manager on duty the day of the
incident.

In their complaint, Plaintiffs have pleaded causes of action sexual battery, negligent
infliction of emotional distress (”NIED”), premises liability, negligence, vicarious liability
and negligent hiring and retention. Defendants now move for summary judgment or, in
the alternative, summary adjudication of issues.

Preliminarily, the court notes that this motion was originally set for hearing on January
24, 2014. On January 16, 2014, the parties filed a joint ex parte application to
continue the hearing to today’s date. The reasons offered for the continuance were
that Plaintiff’s counsel was going to withdraw, and Plaintiffs needed additional time to
find new counsel. The court’s files do not reflect that Plaintiffs’ original counsel
withdrew or that Plaintiffs obtained new counsel.

Defendants have organized their motion by attacking Plaintiffs’ allegations of vicarious
liability as well as the allegations of direct liability. “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.” (Lisa M. v. Henry Mayo
Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 296 [citation omitted].) For an employer
to be held liable for an employee’s intentional, sexual tort, the tort must have been
engendered by or arise from the work. (Id. at 301.) As one court recently stated:

The law is clear that an employer is not strictly liable for all actions of its
employees during working hours. [Citation.] Rather, there must be a
causal nexus between the tort and the employee’s work, i.e., the tort…
must be engendered by or arise from the work. [Citation.] That the
employment brought tortfeasor and victim together in time and place is
not enough. [Citation.] “[B]ut for” causation is insufficient. [Citation.]

For a causal nexus to exist the incident leading to injury must be an
“outgrowth” of the employment [citation]; the risk of tortious injury must
be inherent in the working environment [citation] or typical of or broadly
incidental to the enterprise [the employer] has undertaken [citation].
[Citation.] In other words, the risk of the tort must be a generally
foreseeable consequence of the enterprise. [Citation.] If the employee
acts out of personal malice unconnected with the employment, the
employee is not acting within the scope of employment. [Citation.] The
mere fact that an employee has an opportunity to abuse facilities or
authority necessary to the performance of that employee’s duties does
not render the employer vicariously liable. [Citation.] A tort will not be
considered engendered by the employment unless its motivating
emotions were fairly attributable to work-related events or conditions.
[Citation.] An employee who abuses job-created authority over others for
purely personal reasons is not acting within the scope of employment.
[Citation.]

(Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 101-102 [brackets and ellipsis
added] [citations and internal quotation marks omitted].) Thus, for example, a hospital
employing a technician who performed an ultrasound on a pregnant woman was not
vicariously liable for the technician’s alleged sexual battery; the assailant’s motivations
were not an outgrowth of workplace responsibilities, events of conditions. (Lisa M.,
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supra, 12 Cal.4 at 301-302.)

If a sexual assault performed by a medical technician charged with examining a
patient’s pelvic area is not an outgrowth of either the technician’s work duties or the
employing hospital’s enterprise, a sexual assault committed by a chef in the employing
restaurant’s restroom is not such an outgrowth either. (See UMF 1-4 [incident
occurred while Charlie L. used restroom at restaurant where chef was employed].)
Rather, such an assault is the result of propinquity and lust, which are insufficient to
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support vicarious liability. (Lisa M., 12 Cal.4 at 301 [citation omitted].) As a result,
the court agrees that Plaintiffs’ claims based on vicarious liability are not legally viable.

To obtain summary judgment, or summary adjudication of a cause of action, however,
Defendants must also demonstrate the nonexistence of any triable issue whether they
may directly be held liable for the alleged assault. (See CCP § 473c(f)(1) [a party may
obtain summary adjudication of an entire cause of action, affirmative defense, issue of
duty or claim for damages].) Defendants confront Plaintiffs’ direct-liability allegations
by producing evidence that they had no knowledge that Arguello had previously
committed such an assault. In fact, the evidence establishes that Arguello had no
criminal record when Defendants hired him and that Defendants had no knowledge
that Arguello had any propensity to commit sexual misconduct. (The court does not
intend to imply that Arguello did in fact have such a propensity.) (See UMF 8-14.)
Thus, the evidence establishes that Defendants committed no tort because any sexual
assault was unforeseeable. This evidence suffices to shift the burden of production to
Plaintiffs.

Plaintiffs have not produced any responsive evidence and have not otherwise opposed
the motion. As a result, Defendants have persuaded the court that they are entitled to
summary adjudication of the causes of action against them and, therefore, to summary
judgment.

Summary judgment is granted.

Defense counsel is advised that the Sacramento County Superior Court’s Local Rules
were revised and renumbered as of 01/01/13. When giving notice of the court’s
tentative ruling system, counsel should cite Local Rule 1.06, not former Local Rule
3.04.

Pursuant to CRC 3.1312, Defendants are directed to lodge for the court’s signature a
formal order, and separate judgments.