Case Name: Viney Jackson, et al. v. Burke Williams, Inc., et al.

Case No.: 18CV336730

(1) Demurrer of Defendant Burke Williams, Inc. to Plaintiffs’ Complaint for Damages
(2) Motion of Defendant Burke Williams, Inc. to Strike Punitive Damages from Plaintiffs’ Complaint

Factual and Procedural Background

On March 4, 2017, plaintiff Viney Jackson, her daughters and friends from church were guests of defendant Burke Williams, Inc. (“BWI”), an upscale spa in Santana Row providing a full range of spa services including massage treatments. (Complaint, ¶¶2 and 9.) Defendant Robert Hernandez (“Hernandez”), a masseuse employed by defendant BWI, sexually assaulted and battered plaintiff Viney Jackson in the course of a massage. (Complaint, ¶¶7 and 10.)

Before employment at BWI, defendant Hernandez had been the subject of prior complaints of sexual impropriety by his massage clients. (Complaint, ¶7.) In conjunction with hiring defendant Hernandez as a masseuse, defendant BWI failed to exercise the necessary care, attention, and diligence to discover and become aware of defendant Hernandez’s history of prior complaints. (Id.) After hiring defendant Hernandez, defendant BWI negligently, carelessly and/or recklessly failed to train, monitor, evaluation and supervise defendant Hernandez, exposing its clients and customers to defendant Hernandez’s commission of sexual assaults, batteries and other inappropriate physical touching, and/or failed to take immediate and appropriate corrective action when such issues arose. (Complaint, ¶8.)

On October 15, 2018, plaintiffs Viney Jackson and Robert Jackson (“Plaintiffs”) filed a complaint against defendants BWI and Hernandez asserting causes of action for:

(1) Negligence
(2) Premises Liability [versus BWI]
(3) Negligent Hiring and Retention of Unfit Employee [versus BWI]
(4) Battery
(5) Sexual Battery
(6) Intentional Infliction of Emotional Distress

On February 8, 2019, defendant BWI filed the two motions now before the court, a demurrer and motion to strike Plaintiffs’ complaint.

I. Defendant BWI’s demurrer to the fourth through sixth causes of action in Plaintiffs’ complaint.

A. Respondeat superior.

Defendant BWI understands its liability on the fourth, fifth, and sixth causes of action for battery, sexual battery, and intentional infliction of emotional distress, respectively, to be premised upon a theory of respondeat superior but contend such theory fails in spite of Plaintiffs’ conclusory allegation that defendant Hernandez “at all times herein relevant, each defendant was the … employee, … agent, … affiliate, or representative of each other named defendant, and at all times herein relevant, was acting in the course and scope of that relationship, with the express or implied authority or consent of the other Defendants, or which Defendants have ratified the sexual assault and other wrongful acts at issue in this Action.” (Complaint, ¶6.)

“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.) “Equally well established, if somewhat surprising on first encounter, is the principle that an 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 Memorial Hospital (1995) 12 Cal.4th 291, 296 – 297 (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.’” (Lisa M., supra, 12 Cal.4th at p. 299; see also CACI, Nos. 3720, 3722, and 3723.)

In Maria D. v. Westec Residential Security, Inc. (2000) 85 Cal.App.4th 125 (Maria D.), an on-duty security guard employed by defendant security company pulled the plaintiff over under the pretense of being a police officer and then raped her. The trial court entered summary judgment in favor of the employer. The appellate court affirmed holding, as a matter of law, that the defendant employer could not be vicariously liable under the doctrine of respondeat superior since the causal nexus between the sexual assault and the security guard’s employment was too attenuated for a trier of fact to conclude the misconduct was within the scope of his employment. The court undertook a historical analysis of the legal landscape with regard to respondeat superior.

The Maria D. court relied, in part, on the Supreme Court decision in Lisa M. where the plaintiff was sexually molested by an ultrasound technician employed by a hospital. The rule set forth in Lisa M. begins with determining whether “the assault or other intentional tort [had] ‘a causal nexus’ to the employee’s work.” (Maria D., supra, 85 Cal.App.4th at p. 143.) “In the Supreme Court’s view, the required causal nexus was to be distinguished from ‘but for’ causation and it was not enough that the employment brought the tortfeasor and the victim together. The nature of the required additional link has been described in various ways: ‘[T]he incident leading to injury must be an ‘outgrowth’ of the employment; the risk of tortious injury must be ‘inherent in the working environment’ or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.’” (Id.; citations omitted.) Alternatively,

“California courts have also asked whether the tort was, in a general way, foreseeable from the employee’s duties. Respondeat superior liability should apply only to the types of injuries that “as a practical matter are sure to occur in the conduct of the employer’s enterprise.” [Citation.] The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” [Citation.] The Supreme Court continued: “[T]he tortious occurrence must be ‘a generally foreseeable consequence of the activity.’ In this usage . . . foreseeability ‘merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’ [Citations.] [This] foreseeability test is useful ‘because it reflects the central justification for respondeat superior [liability]: that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.’ [Citation.]

(Id.)

Applying those rules to the facts in Maria D., the court held, “the causal nexus between the sexual assault and the security guard’s employment was too attenuated for a trier of fact to conclude that the misconduct was within the scope of his employment.” (Id. at p. 146.) “[T]he mere fact the security guard had an opportunity to abuse the trappings of his profession does not render Westec vicariously liable for the rape.” (Id.) “That the employment brought tortfeasor and victim together in time and place is not enough.” (Id.)

For respondeat superior liability to apply, the security guard’s acts must have been engendered by or be an outgrowth of his employment. [Citation.] Here, the security guard’s motivating emotions were not fairly attributable to any work-related event or condition. [Citation.] There was no work-related dispute or emotional involvement with plaintiff that motivated or triggered the sexual assault. [Citations.] The security guard’s aberrant decision to assault plaintiff did not arise out of the performance of his duties as a private security guard. [Citation.] His motivation was strictly personal and unrelated to the protection of Westec’s clients’ persons and property or the performance of any other duty of a security guard. [Citation.] The security guard simply took advantage of a woman driving alone in the early morning hours to commit an assault for reasons unrelated to his work. [Citation.] The sexual assault was not typical of nor broadly incidental to the security guard’s employment duties. [Citation.] The security guard substantially deviated from his employment duties solely for personal purposes. [Citations.] The assault was not motivated or triggered by anything in the employment activity but was the result of only, in the words of the Supreme Court, “propinquity and lust.” [Citation.]

(Id. at p. 147.)

With regard to foreseeability, the Maria D. court held the misconduct was not foreseeable from the nature of the security guard’s duties. The security guard did not have authority to pull plaintiff over, to conduct field sobriety tests (which he did), or to order plaintiff into his automobile. “The security guard’s sexual assault of plaintiff was not fairly attributable to any peculiar aspect of Westec’s business operations. It was the independent product of his aberrant decision to engage in conduct unrelated to his duties.” (Id.)

In Lisa M., a pregnant plaintiff sustained injury from a fall and sought treatment in defendant hospital’s emergency room. The treating physician ordered an ultrasound which was performed by an ultrasound technician, a hospital employee. The technician performed the prescribed examination. “The exact placement and movement of the wand varies with the patient’s body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline.” (Lisa M., supra, 12 Cal.4th at p. 295.) Under false pretenses of determining the sex of the baby, the technician told plaintiff that, “he would need to scan ‘much further down,’ and it would be uncomfortable. With plaintiff’s cooperation, [the technician] pulled plaintiff’s shorts down and began to scan in her pubic hair. According to plaintiff, he also inserted the wand in her vagina. After a while he put down the wand and fondled plaintiff with his fingers. Plaintiff testified he moved his fingers ‘around everywhere down there.’ While fondling plaintiff, Tripoli said he needed to excite her to get a good view of the baby.” (Id.)

With regard to the causal nexus between the sexual assault and the ultrasound technician’s employment, the Lisa M. court explained and concluded,

a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work. Tripoli’s job was to perform a diagnostic examination and record the results. The task 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. “If . . . the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.”

(Id. at p. 301.)

Under a foreseeability analysis, the court reached the same conclusion.

In arguing Tripoli’s misconduct was generally foreseeable, plaintiff emphasizes the physically intimate nature of the work Tripoli was employed to perform. In our view, that a job involves physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault. [Citation.] To hold medical care providers strictly liable for deliberate sexual assaults by every employee whose duties include examining or touching patients’ otherwise private areas would be virtually to remove scope of employment as a limitation on providers’ vicarious liability. In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to “propinquity and lust.” [Footnote.]

Here, there is no evidence of emotional involvement, either mutual or unilateral, arising from the medical relationship. Although the procedure ordered involved physical contact, it was not of a type that would be expected to, or actually did, give rise to intense emotions on either side. We deal here not with a physician or therapist who becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship [citations], but with an ultrasound technician who simply took advantage of solitude, access and superior knowledge to commit sexual assault. [Footnote.]

Although the routine examination Tripoli was authorized to conduct involved physical contact with Lisa M., Tripoli’s assault on plaintiff did not originate with, and was not a generally foreseeable consequence of, that contact. Nothing happened during the course of the prescribed examinations to provoke or encourage Tripoli’s improper touching of plaintiff. [Citations.] The assault, rather, was the independent product of Tripoli’s aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, Tripoli’s actions were not foreseeable from the nature of the work he was employed to perform.

(Id. at pp. 302 – 303.)

Lisa M. is relevant to the analysis of defendant BWI’s liability. However, Lisa M. is somewhat distinguishable in that the facts were more developed on a motion for summary judgment. Here, we are merely at the pleading stage and the court must accept Plaintiff’s allegations as true. Still, there are no allegations from which the court can derive foreseeability. At paragraph 7 of the complaint, Plaintiffs allege defendant BWI should have discovered defendant Hernandez’s prior history of sexual impropriety, but do not allege any actual knowledge. The foreseeability of defendant Hernandez committing a sexual assault is to be distinguished from the general foreseeability of an average massage therapist performing his/her duties. Recall, “respondeat superior liability should apply only to the types of injuries that ‘as a practical matter are sure to occur in the conduct of the employer’s enterprise.’ [Citation.] The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. [Citation.]” (Maria D., supra, 85 Cal.App.4th at p. 143.) “In this usage . . . foreseeability ‘merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’” (Id.; emphasis added.) A spa offering massage does not normally expect with any certainty that, inevitably, one of its masseuses will commit a sexual assault upon a client.

Indeed, the Maria D. court recognized alternative legal remedies may exist against an employer who has reason to know of a particular employee’s propensity to harm. “The employer remains potentially liable to a victim of sexual assault for negligent hiring, retention, and supervision of a security guard. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal. App. 4th 1556, 1564-1565 [50 Cal. Rptr. 2d 399]; Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828, 842-843 [10 Cal. Rptr. 2d 748]; Rest.2d Agency § 213, com. d, p. 459 [“The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.”].)

The foreseeability Plaintiffs refer to may render defendant BWI liable for negligent hiring, retention, or supervision (which Plaintiffs already assert in other causes of action), but it is not the foreseeability that an employee’s conduct in this particular enterprise (day spa) would subject the employer to liability under respondeat superior.

B. Ratification.

As an alternative basis for liability, Plaintiffs contend there are adequate allegations that defendant BWI ratified defendant Hernandez’s conduct. Plaintiffs cite to Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169–170 where the court wrote:

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. (Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 519, 231 Cal.Rptr. 715; Civ.Code, § 2339.) The failure to discharge an employee who has committed misconduct may be evidence of ratification. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852, 77 Cal.Rptr.2d 12.) 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. (McChristian v. Popkin (1946) 75 Cal.App.2d 249, 171 P.2d 85; Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th 833, 77 Cal.Rptr.2d 12.) Whether an employer has ratified an employee’s conduct is generally a factual question. (Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 194 Cal.Rptr. 51.)

The same language is adopted by the court in C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 (Tenet), another decision cited by Plaintiffs. However, in Tenet, the allegations of ratification went beyond the generic and conclusory allegations that are found in Plaintiffs’ complaint at paragraph 6 or 37.

Here, there were sufficient allegations defendant ratified Mr. Gaspar’s alleged sexual misconduct. The first amended complaint alleges: Mr. Gaspar was an agent and employee of defendant; Mr. Gaspar was acting at all times on behalf of defendant; all acts or omissions alleged in the first amended complaint were ratified by defendant; during a two to three year period, several of defendant’s “managing agents and supervisors” knew Mr. Gaspar was sexually abusing patients and “refused to take any action”; the managing agents and supervisors “hid” this information so Mr. Gaspar could continue to work for it; while this was occurring, Mr. Gaspar sexually assaulted a female employee and the information was “hid” so he could continue his employment; with knowledge of Mr. Gaspar’s sexual misconduct, no disciplinary action was taken and he was allowed to be alone with women who were patients; and defendant intentionally or negligently “spoiled evidence” including destroying documents concerning other sexual assaults in order to conceal them from plaintiff. The foregoing allegations that defendant, with knowledge of Mr. Gaspar’s misconduct, continued to employ him and destroyed documents was sufficient to state a claim that it ratified his sexual misconduct.

(Tenet, supra, 169 Cal.App.4th at p. 1112.)

Plaintiffs contend there are additional facts which they can allege to support liability against defendant BWI under a theory of ratification and ask the court for leave to amend should the court sustain the demurrer. As currently pleaded, the court finds the allegations insufficient to support liability against defendant BWI under a theory of either respondent superior or ratification. Accordingly, defendant BWI’s demurrer to the fourth through sixth causes of action in Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for battery, sexual battery, and intentional infliction of emotional distress, respectively, is SUSTAINED with 10 days’ leave to amend.

II. Defendant BWI’s motion to strike punitive damages from Plaintiffs’ complaint.

In light of the court’s ruling above, the court deems defendant BWI’s motion to strike punitive damages from Plaintiff’s complaint to be MOOT.