Opinion
A149362
08-02-2018
ALEXANDRA VASSTROM, Plaintiff and Appellant, v. PATRICK FOO TZENG et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-15-543723)
Appellant Alexandra Vasstrom appeals after the trial court granted the motion for summary judgment filed by respondent Michelle Ho in this action arising from the sexual assault by Patrick Foo Tzeng, an employee at a foot massage spa owned by respondent. On appeal, appellant contends the court erred when it granted the summary judgment motion because there are triable issues of material fact regarding whether respondent can be held either vicariously or directly liable for Tzeng's sexual assault. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 11, 2015, appellant filed a first amended complaint against Tzeng and respondent, "dba Massage Lounge aka Super Foot Spa," which included a cause of action for intentional tort against Tzeng and a cause of action for respondeat superior liability and general negligence against respondent. The cause of action against respondent alleged both that Tzeng was acting within the scope of his employment when performing the massage on appellant and that respondent "negligently hired [Tzeng] to work as a massage practitioner there knowing that he was unfit to do such work and/or by failing to use reasonable care to discover his unfitness before hiring him by, among other things, failing to ensure that he was properly certified and/or licensed and failing to properly train him." Appellant further alleged that respondent "negligently supervised defendant Tzeng by, among other things, allowing him to perform m[a]ssages in private rooms in which no one outside the room could see what was going on inside it."
On March 2, 2016, respondent filed a motion for summary judgment. The evidence presented in support of and against respondent's motion included the following.
On January 22, 2013, appellant went for a foot massage at the Super Foot Spa (spa) in San Francisco, which was owned by respondent. The masseur appellant requested was not there, but she agreed to have Tzeng give her a foot massage. He led her to a private room with only one reclining massage chair. Tzeng dimmed the lights and drew the curtain in the doorway shut. He soaked her feet in a bucket of water and massaged many parts of her body while she was fully clothed. He then had appellant turn over onto her stomach, after which she fell asleep. When she woke up, she was on her back, her knees were up, her left pants leg had been pulled down, and Tzeng's face was at her crotch. She could feel digital and oral penetration. She did not consent to this conduct.
Tzeng had received a certificate of completion from the American Vocational College dated January 10, 2011, showing that he had completed 100 hours of massage training. He began working at the spa in October 2012, where he performed an average of one or two massages a day. At the time of the incident with appellant, Tzeng did not possess a massage license, but in March 2013, he passed the licensing exam and obtained a license.
Jeffrey Forman, who had run the massage therapy associate of arts degree program at De Anza College for 23 years and had previously been qualified as an expert witness in the field of massage therapy, submitted a declaration in support of appellant's opposition to the motion for summary judgment. In his declaration, Forman stated that the American International Vocational School, from which Tzeng received his certificate of completion, had been "un-approved" by the California Massage Therapy Council on February 1, 2012, and transcripts from that institution were no longer accepted for certification. Forman also had discovered that in 2010, the National Certification Board for Therapeutic Massage & Bodywork had permanently revoked the school's approval code "because investigators had substantial evidence against it that individuals could receive massage therapy transcripts for money without ever attending any classes." Forman further stated that this information "raises the reasonable question, did Patrick Foo Tzeng ever complete any massage therapy training or did he receive a certificate from a school that did not require that he attend classes?"
Dr. Forman believed that, regardless, a certificate from a "questionable school" like the one Tzeng attended "inadequately prepares someone to be a professional massage therapist working on clients unsupervised and without additional training. One hundred hours of massage education even at a top caliber school is barely scratching the tip of the iceberg of knowledge needed to prepare someone for the safe and ethical practice of massage therapy. . . . It is irresponsible to just turn someone like this loose on the public."
Forman also stated in his declaration that respondent had knowingly violated the San Francisco Health Code when she employed Tzeng, who did not have a valid massage practitioner permit. He stated that respondent had fallen below the standard of care as an owner of a massage establishment "because she allowed this unlicensed, underprepared individual to practice without training and supervision." He also stated that "[s]he tried to cover her unlawful tracks by making [Tzeng] apply for a permit after the incident on January 30, 2013."
In her declaration in support of the motion for summary judgment, respondent stated that before the January 2013 incident, she had received no complaints about Tzeng's performance as a masseur. Nor had she known of any incident in which Tzeng had "sexually assaulted a client while performing a massage" or "committed sexual assault under any circumstance."
In responses to interrogatories, appellant stated that she had no information about (1) what acts of sexual abuse Tzeng had committed before his assault of appellant or (2) whether respondent knew whether Tzeng had committed prior acts of sexual abuse.
On June 13, 2016, the court granted respondent's motion for summary judgment. In its order, the court explained that "[appellant] alleges an intentional tort cause of action against [respondent] based on a respondeat superior theory, as well as a direct cause of action against [respondent] for negligent hiring, supervision, retention, and training." With respect to the intentional tort cause of action, the court found that "the undisputed facts support only inferences that Tzeng isolated and lulled [appellant] in order to turn a foot massage into a sexual assault for purposes of personal gratification, a motivation unrelated to work-related events or conditions." The court further found there was "no evidence that an employee's sexual assault against a patron is a generally foreseeable consequence of a massage enterprise such as the one operated by [respondent]; nor is there any evidence that Tzeng presented a risk of this sort. [Citation.] Sexual activity is a concern for massage establishments [citation], but it does not follow that every operator should anticipate that employees will sexually assault patrons. Notably, [appellant] has not cited any authority where the court found . . . a massage operator vicariously liable for a sexual assault by an employee against a patron."
With respect to appellant's direct negligence claim, the court found that respondent had "satisfied her initial burden of production as to negligent hiring and supervision through [her] declaration and [appellant's] factually devoid special interrogatory responses demonstrating that [appellant] has no evidence showing that [respondent] knew or should have known of Tzeng's proclivity to engage in the sexual assault. [Citation.] [Appellant] has not shown a triable issue as to [respondent's] knowledge that Tzeng was unfit, her failure to exercise due care to timely discover Tzeng's unfitness or her knowledge that Tzeng could not be trusted to work without supervision. [Citation.] Nor can [appellant] establish liability based on negligent training because the undisputed evidence demonstrates that Tzeng was trained not to have sexual contact with clients. [Citations.]" The court found that the speculation of Forman, appellant's expert, "that perhaps Tzeng did not receive any training" did "not create a triable issue of fact. In addition, it is common sense—and training is not necessary to divine—that it is improper to sexually assault a patron. As for the regulatory violations, [respondent] carried her initial burden of production and [appellant] failed to establish a triable issue of fact on causation in that there is no evidence that the violations were a substantial factor in causing the tortious conduct."
On July 19, 2016, the court entered judgment for respondent.
On August 15, 2016, appellant filed a notice of appeal.
At oral argument, we granted respondent's unopposed motion to augment the record to include respondent's declaration in support of the motion for summary judgment.
DISCUSSION
Appellant contends the court erred when it granted respondent's motion for summary judgment because there are triable issues of material fact regarding whether respondent can be held either vicariously or directly liable for Tzeng's sexual assault.
I. Summary Judgment Rules and Standard of Review
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853 (Aguilar).) " 'The plaintiff . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. ([p])(2).)" (Aguilar, at p. 849.)
" ' "[W]e take the facts from the record that was before the trial court when it ruled on that motion," ' and ' " ' "review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' " ' [Citations.] In addition, we ' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' [Citation.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
II. 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. [Citation.]" (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.), fn. omitted.) For the employer to be liable, the incident leading to injury must be engendered by or an outgrowth of the employment: "[T]he 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]." (Id. at p. 298.) The tort thus must also have been generally foreseeable based on the employee's duties. (Id. at p. 299.) "[F]oreseeability '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.]" (Ibid.)
" '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." ' [Citation.]" (Lisa M., supra, 12 Cal.4th at p. 299.)
In Lisa M., a hospital ultrasound technician sexually assaulted a patient during an ultrasound exam. The Supreme Court rejected the contention that the assault was within the scope of the technician's employment: "[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. . . . 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." (Lisa M., supra, 12 Cal.4th at p. 301.)
The Lisa M. court distinguished cases in which non-sexual torts had arisen from work-related disputes or sexual torts were engendered by intense emotional involvement within a medical relationship. (Lisa M., supra, 12 Cal.4th at pp. 300-303.) As to the latter situation, the court offered the example of "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]." (Id. at p. 303.) In light of such possible scenarios, the court refused to find that "sexual misconduct is per se unforeseeable in the workplace." (Id. at p. 300.)
The court's analysis in terms of foreseeability led to the same conclusion, given that the assault "was the independent product of [the technician's] aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, [his] actions were not foreseeable from the nature of the work he was employed to perform." (Lisa M., supra, 12 Cal.4th at p. 303.) The court was unpersuaded by the plaintiff's emphasis on the physically intimate nature of the technician's work, explaining "that a job involv[ing] physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault. [Citation.] . . . 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' [citation]." (Id. at p. 302, fn. omitted; accord, Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 394 (Juarez) [agreeing with "cases that have consistently held that under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer"].)
For these reasons, the Supreme Court reversed the appellate court's judgment, which had found the trial court's grant of summary adjudication on this ground improper. (See Lisa M., supra, 12 Cal.4th at pp. 295, 305-306.)
In the present case, appellant has not alleged any material factual dispute that would preclude us from determining respondent's respondeat superior liability as a question of law. (See Lisa M., supra, 12 Cal.4th at p. 299.) For the same reasons discussed in Lisa M., we conclude the trial court correctly found, as a matter of law, that appellant could not show that Tzeng's assault was within the scope of his employment. Like the ultrasound technician in Lisa M., appellant's actions in the present case—undressing appellant while she slept and penetrating her vagina digitally and orally—plainly did not arise out of his duties as a massage practitioner at the spa. (See Lisa M., at p. 301.) Instead, his employment as a massage practitioner, which involved him touching clients' bodies in a private area of the spa, merely "provided the opportunity to meet [appellant] and be alone with her in circumstances making the assault possible." (Id. at p. 299; accord, Juarez, supra, 81 Cal.App.4th at p. 395 [rejecting "proposition that simply because the scoutmaster/scouting relationship provided the opportunity for [scoutmaster's] wrongful acts, [those] intentional criminal actions should be imputed to the [scouting organization]"].)
We find unpersuasive appellant's attempt to distinguish the present case from Lisa M. simply because "it was [Tzeng's] job to put his bare hands on [appellant] and rub her body whereas the ultrasound technician was supposed to conduct his examination using a wand . . . ." (See Lisa M., supra, 12 Cal.4th at p. 302 ["a job involving physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault"].)
Nor does the fact that sexual conduct can be a concern at massage establishments make Tzeng's assault foreseeable. (See, e.g., Bus. & Prof. Code, § 4609, subds. (a)(1)(A)-(F) & (10) [making it a violation for a massage practitioner to engage in sexually suggestive advertising, engage in sexual activity at massage establishment, or engage in sexual activity while providing massage services for compensation].) First, the primary focus of such laws is concern about prostitution taking place at massage establishments, not sexual assault. Second, as respondent notes, there are many professions that are regulated by the Business and Professions Code, with prohibitions against engaging in sexual conduct with patients or clients. (See, e.g., Bus. & Prof. Code, §§ 6106.9 [prohibiting sexual relations between attorneys and clients]; 726 [mandating disciplinary action for licensed health care practitioner who commits "sexual abuse, misconduct or relations with a patient, client or customer"]; 729 [sexual exploitation of patients "by a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor is a public offense"].) Thus, as with other regulated professionals, a sexual assault by a massage practitioner is not rendered foreseeable simply because massage establishments and practitioners are subject to regulations related to sexual conduct. (Cf. Lisa M., supra, 12 Cal.4th at p. 302 ["[t]o 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 sum, both because sexual assault plainly was not " ' "inherent in the working environment" ' " or " ' "typical of or broadly incidental to the enterprise [respondent had] undertaken" ' " (Lisa M., supra, 12 Cal.4th at p. 298) and because Tzeng's conduct was " 'so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of [respondent's] business,' " respondent was not vicariously liable for Tzeng's conduct. (Id. at p. 299.) The trial court therefore correctly granted respondent's motion for summary judgment. (See Aguilar, supra, 25 Cal.4th at p. 849.)
III. Direct Negligence
" '[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him. [Citations.]' [Citation.] '[T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct.' [Citation.] Furthermore, there can be no liability for negligent supervision 'in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.' [Citation.]" (Juarez, supra, 81 Cal.App.4th at p. 395; accord, Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902 (Z.V.) ["To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act"].)
In Juarez, a panel of this Division rejected the plaintiff's contention that the Scouts organization was liable for negligence in the selection, supervision, and retention of a scoutmaster who molested a troop member. (Juarez, supra, 81 Cal.App.4th at pp. 395-396.) As we explained: "While the undisputed facts show with certainty that [the scout] was seriously harmed by [the scoutmaster's] misconduct, those same undisputed facts establish that there was nothing in [the scoutmaster's] background and nothing that was made known to the Scouts during his tenure as scoutmaster . . . that could be deemed a specific warning that [he] posed an unreasonable risk to minors." (Id. at p. 397.) We therefore affirmed the trial court's grant of summary adjudication on the plaintiff's direct negligence causes of action. (Ibid.)
In Z.V., supra, 238 Cal.App.4th 889, the plaintiff, a child in foster care, sued Riverside County after being sexually assaulted by a county social worker in a county van. The appellate court affirmed the trial court's grant of summary adjudication in favor of the county on a negligent supervision cause of action. (Id. at pp. 892-893.) The court explained that there "are no facts that might have shown propensity or disposition on [the social worker's] part to sexually assault a foster child. And, since the case comes to us on a motion for summary judgment, it is a reasonable assumption that [the plaintiff] has had ample opportunity to discover whether Riverside County had some prior knowledge of a propensity on [the social worker's] part to sexually assault the county's dependent children." (Id. at p. 903.)
In the present case, appellant focuses on evidence that "Tzeng had minimal education (at best) and virtually no experience and, nevertheless, was allowed to perform the massage in question in a darkened, secluded room." She points to Forman's statement in his declaration in support of her opposition to summary judgment that respondent fell below the standard of care as an owner of a massage establishment "because she allowed this unlicensed, underprepared individual to practice without training and supervision." According to appellant, this evidence raises triable issues of fact regarding whether respondent breached duties to properly train and supervise Tzeng.
However, while Tzeng's allegedly poor or incomplete massage training and lack of a license might be relevant to a claim against respondent based on an injury caused by Tzeng's deficient performance as a massage practitioner, those facts do not provide a basis for holding respondent liable for his sexual assault on a theory of negligent hiring or supervision. Instead, the relevant question is whether respondent knew or should have known of a propensity on Tzeng's part to commit sexual assault. (See Juarez, supra, 81 Cal.App.4th at p. 395 [theory of negligent hiring " 'encompasses the particular risk of molestation by an employee with a history of this specific conduct.' "]; Z.V., supra, 238 Cal.App.4th at p. 902 [to establish negligent supervision, plaintiff must show that a supervisor had prior knowledge of the employee's "propensity to do the bad act"].) Appellant has not alleged the existence of any evidence showing that respondent was on notice that Tzeng had such a propensity, or even that Tzeng had committed a previous sexual assault. And "since the case comes to us on a motion for summary judgment, it is a reasonable assumption that [appellant] has had ample opportunity to discover whether [respondent] had some prior knowledge of a propensity" on the part of Tzeng to sexually assault massage clients. (Z.V., at p. 903.)
Indeed, the only evidence presented on this issue was respondent's statement in her declaration in support of the motion for summary judgment that she had no such prior knowledge.
In this case, as in Juarez and Z.V., because the "undisputed facts establish that there was nothing in [Tzeng's] background and nothing that was made known to [respondent] . . . that could be deemed a specific warning that [he] posed an unreasonable risk to [clients]," the court properly granted respondent's motion for summary judgment. (Juarez, supra, 81 Cal.App.4th at p. 397; see Z.V., supra, 238 Cal.App.4th at pp. 902-903; see also Aguilar, supra, 25 Cal.4th at p. 849.)
This case is distinguishable from J.H. v. Los Angeles Unified School District (2010) 183 Cal.App.4th 123, 128-129, cited by appellant, in which a young child in an afterschool program with inadequate supervision was physically and sexually assaulted by another child with a known history of discipline problems. The appellate court reversed the trial court's grant of summary judgment in favor of the defendant school district after finding that, despite the unusual circumstance of a sexual assault by a young child, triable issues of material fact existed regarding whether the child's injuries were proximately caused by playground supervisors' alleged negligent supervision and were a foreseeable, unreasonable risk of harm, given that "playground supervisors are required to be on the lookout for the safety of their charges, including assaults on children, not just for specific forms of assault." (Id. at p. 148.) --------
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5); see Z.V., supra, 238 Cal.App.4th at p. 904 [departing from usual rule that loser pays costs on appeal, based on intention of not "further aggravating" losing plaintiff's trauma].)
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.