Kai Jolly v. Jacob Atkinson, et al.

Case Number

21CV04871

Case Type

Hearing Date / Time

Mon, 11/04/2024 - 10:00

Nature of Proceedings

Motion of Ritz-Carlton Hotel Company, LLC for Summary Judgment

Tentative Ruling

Kai Jolly v. Jacob Atkinson, et al.                             

Case No. 21CV04871        

Hearing Date: November 4, 2024                  

HEARING:              Motion of Ritz-Carlton Hotel Company, LLC for Summary Judgment

ATTORNEYS:        For Plaintiff Kai Jolly: Jennifer M. Miller, Timothy C. Hale, Nye, Stirling, Hale & Miller, LLP

                                    For Defendant Ritz-Carlton Hotel Company, LLC: Paul J. Lipman, Wesierski & Zurek, LLP

                                    For Defendant Jacob Atkinson: Robert L. Reisinger, Ford, Walker, Haggerty & Behar, LLP

                                   

TENTATIVE RULING:

The motion of Ritz-Carlton Hotel Company, LLC for summary judgment, is denied.

Background:

This action commenced on December 13, 2021, by the filing of the original complaint by plaintiff Kai Jolly (“Jolly”) against defendants Jacob Atkinson (“Atkinson”) and Ritz-Carlton Hotel Company, LLC (“RCHC”). RCHC was also sued as Marriott International, Inc.  The complaint set forth five causes of action: (1) negligence; (2) negligent hiring, training, and supervision; (3) intentional infliction of emotional distress; (4) premises liability; and (5) sexual battery (Civ. Code, § 1708.5). The first through fourth causes of action were asserted against RCHC. The third and fifth causes of action were asserted against Atkinson.

On March 4, 2022, RCHC filed a demurrer to the first through fourth cause of action. RCHC concurrently filed a motion to strike the punitive damages allegations and prayer of the complaint.

On May 16, 2022, the demurrer to the first, third, and fourth causes of action was sustained with leave to amend. The motion to strike was denied.

On May 31, 2022, Jolly filed her operative first amended complaint (“FAC”) asserting the same five causes of action based on a claim of sexual assault.

As alleged in the FAC:

Jolly was a patron at the Ritz-Carlton Bacara hotel on July 10, 2021, to get a massage and celebrate her friend’s birthday. (FAC, ¶ 6.) Atkinson was Jolly’s scheduled Masseuse. (FAC, ¶ 7.)

When Jolly and Atkinson got to the massage room, Atkinson told Jolly to remove all her clothes. (FAC, ¶ 8.) During the massage, Atkinson massaged Jolly’s upper thigh and touched her vagina repeatedly. (FAC, ¶ 9.) Atkinson touched Jolly’s labia and moved his finger to separate the labia and touched Jolly at the opening of Jolly’s vagina. (Ibid.)

Atkinson told Jolly to turn over onto her back, folded the sheet down to expose Jolly’s breasts, and ran his hands over Jolly’s entire torso including Jolly’s breasts. (FAC, ¶ 11.) When the massage was over, Atkinson told plaintiff, “That was beautiful.” (FAC, ¶ 12.)

Later that day, Jolly called the Ritz-Carlton Bacara to report what Atkinson had done, and was transferred to the director of loss prevention. (FAC, ¶ 13.) The director of loss prevention told Jolly that he would get back to her but never did. (Ibid.) Jolly called back, to follow-up, but her calls were not returned. (Ibid.)

RCHC never investigated Jolly’s complaint and Atkinson is still employed at the Ritz-Carlton Bacara. (FAC, ¶ 14.) On July 11, 2021, Jolly reported the incident to the police. (FAC, ¶ 15.) The police reached out to The Ritz-Carlton Bacara, but The Ritz-Carlton refused to participate in the investigation. (Ibid.)

“As a result of the above-described conduct, Plaintiff suffered physical injury, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.” (FAC, ¶ 23.)

The causes of action asserted against RCHC are the first, second, third, and fourth causes of action. RCHC now moves for summary judgment arguing that Jolly has “no specific facts to show that the Hotel ratified the conduct of Atkinson.” (MSJ, p. 2, ll. 17-18.)

Jolly opposes the motion claiming that there are triable issues of fact as to whether RCHC ratified the conduct of Atkinson.

Analysis:

Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The moving party “bears the burden of persuasion that that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

“Summary judgment law in this state no longer requires a defendant moving for summary judgment to conclusively negate an element of the plaintiff’s cause of action (e.g., if “X” is an essential element, by proving “not X”). [Citation.] Instead, a defendant may simply show the plaintiff cannot establish an essential element of the cause of action “ ‘by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.’ ” [Citation.] Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102.)

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

           

Separate Statement and Application of the Facts

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

“(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

“(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

“(2) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Cal. Rules of Court, rule 3.1350(d)(1-2).)

“If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f)(3).)

Here, both the separate statement in support of the motion (“SS”), as well as Jolly’s separate statement (“PSS”), contain numerous “facts” that are not pertinent to the disposition of the motion. The general allegations upon which Jolly’s action is premised, is not in dispute. The court will view these additional facts as background information, or provided for informational purposes.

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

Here, most of the facts set forth in both the SS and PSS are undisputed. To summarize the undisputed facts contained in the SS:

On July 10, 2021, Jolly was at the hotel to celebrate a friend’s birthday. While there, she was scheduled for a massage from Atkinson, who was an employee of the hotel. The massage lasted 50 minutes and was not stopped early by Jolly, nor did she object during the massage.

Following the massage, while she was checking out with the Spa Experience Expert Isabella Steussy, Jolly complained that the massage was terrible, and that Atkinson was “sketchy” without providing further details. She asked that a manager contact her.

Steussy contacted the Spa Director, Haywon Kim, and the Spa Manager, Holly Mosher, about Jolly’s complaints, on the date of the incident. On the same date, Kim left a voice mail message for Jolly.

On the date of the incident, the hotel had various policies and procedures in place in the event a guest had a complaint related to the spa.

On the date of the incident, Mitchel Frank Vargas was the Director of Loss Prevention for the hotel. On the date of the incident, Adriana Wells was the Director of Human Resources.

On July 11, 2021, Jolly spoke with Kim and told her, among other things, that Atkinson had asked her to remove her underwear, which she thought was strange. Jolly said that Atkinson was touching her inappropriately, including touching her vagina. Jolly also said that Atkinson concluded the massage by saying “that was beautiful” or “that was a special massage.” Kim advised Jolly that the information would be forwarded to Loss Prevention for further investigation. The same day, Kim notified Vargas about the incident and provided Vargas with Atkinson’s written statement and Mosher’s input.

On July 11, 2021, Vargas, in his capacity as Loss Prevention Director for the hotel, spoke with Jolly by telephone to obtain her account of the incident.

On July 11, 2021, Jolly called the Santa Barbara County Sheriff’s Department and spoke to Deputy Munoz, who in turn contacted Vargas and advised Vargas that he was conducting a sex crime investigation that occurred at the hotel. Deputy Munoz told Vargas that the suspect was a masseuse employed by the hotel and asked Vargas to identify the masseuse. Vargas told Deputy Munoz that he would check with his supervisors to get permission to release private information of an employee.

On July 12, 2021, Vargas contacted Don Wilhite, who is attached to Marriott’s Global Safety and Security, U.S. Western Region by e-mail and asked him to call him ASAP about the police investigation. Wilhite told Vargas: “if law enforcement is investigating a potential assault on the property, we will cooperate with limits. You can provide the name of the associate, but have to be careful with other information.”

The internal investigation of Jolly’s allegations was referred to JT Magee, the Senior Manager of Investigations. Magee was brought into the case to interview associates and others that could have been involved that were employed by the hotel.

On July 15, 2021, Magee interviewed hotel employees involved in or related to Jolly’s allegations at the hotel, including Kim, Mosher, Steussy, Atkinson, and Vargas. Wells was present in the room with Magee during the interviews.

Atkinson was suspended pending the outcome of the hotel’s internal investigation of Jolly’s allegations.

As a result of the internal investigation, it was determined that there was insufficient evidence to take any employment action against Atkinson other than mandatory re-training. Atkinson completed the re-training as to harassment prevention, draping protocols, inappropriate conduct by guest and therapist, and exit strategy if a guest displayed improper conduct. Atkinson acknowledged the re-training on July 30, 2021.

Atkinson did not perform any massages, at the hotel, from Jolly’s massage on July 10, 2021, until he returned from suspension on July 30, 2021.

 Atkinson was not charged with sexual assault nor did the District Attorney pursue charges.

The California Massage Therapy licensing board suspended Atkinson’s license pending their own investigation. After completing the investigation, they found the evidence inconclusive and reinstated Atkinson’s license.

PSS includes many additional facts. Most of the facts relate to Jolly’s allegations as to what Atkinson did and are irrelevant to her claims of ratification by RCHC of Atkinson’s actions. Other facts are also irrelevant, such as a massage therapist giving the guest the option of fully disrobing or not. If given as a choice, this fact does not indicate any improper behavior. Likewise, pre-incident events such as falling asleep at work, or post-incident conduct, would have no bearing on the issue of ratification as to this specific action.

The facts that are relevant to the issue of ratification, and are either undisputed or not reasonably disputed, are:

On July 11, 2021, Jolly told Kim, via telephone, that Atkinson had suggested Jolly completely disrobe at the beginning of her massage in order to receive better service.

On the date of the incident, there was no circumstance where it would be acceptable for a massage therapist to expose a client’s breasts or to touch a client’s genitals.

RCHC’s “Spa Safety & Security: Inappropriate Conduct of Therapist or Guest” Policy states: “the therapist should: [r]efrain from discussing the guest’s allegation with the guest or anyone other than the Spa Management, the Human Resources Director/HR leader, personnel from Loss Prevention who respond to the complaint or are assigned to investigate the complaint, the General Manger or representatives from the Corporate Internal Investigations or Legal and Claims departments.” The policy does not reference law enforcement or authorize the therapist to speak to law enforcement. The policy also states that the individual who receives a complaint from a guest concerning a therapist should “not discuss the guest’s allegation with the guest or anyone other than the Spa Management, the Human Resources Director/HR leader, personnel from Loss Prevention who respond to the complaint or are assigned to investigate the complaint, the General Manger or representatives from the Corporate Internal Investigations or Legal and Claims departments.” Law enforcement is not referenced.

After having called the spa manager the following day, Jolly called the spa front desk multiple times in an attempt to get Atkinson’s last name because she wanted to make a complaint with the massage board. They would not give her Atkinson’s last name. Jolly, after a “long time” figured out Atkinson’s last name when a friend looked Atkinson up on LinkedIn.

Deputy Van Tassel, who became involved in the investigation, authored Sheriff’s Report - 21-8049, which identifies Atkinson only as “Jacob,” and states, on the third page: “At the time of this report, I have yet to positively identify or interview Jacob. Multiple attempts were made by me to identify “ ‘Jacob’ ” at the Ritz-Carlton Bacara Resort. My efforts were met with resistance by staff members who stated various things such as they were not the right person to get identifying information on Jacob.”

Deputy Van Tassel had called the hotel and spoken with security staff attempting to obtain Atkinson’s last name. Deputy Van Tassel made approximately two to three phone calls and was transferred an estimated four times, to multiple people, but no one at the hotel would give him Atkinson’s last name.

Likewise, Deputy Munoz, referenced above, also recalls only knowing Atkinson’s first name and never learned his last name through the course of the investigation involving Jolly, even though he asked a hotel employee. Munoz was frustrated that hotel employees would not provide Atkinson’s last name.

As part of the internal investigation, Magee, referred to above, did not interview Jolly.

By way of the motion and the opposition, the parties concede that the sole issue of the motion is whether there are triable issues of fact as to whether RCHC ratified Atkinson’s alleged sexual battery of Jolly.

“ ‘ “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. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] 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. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]’ ” [Citations.]’ [Citation.]’ “ “ ‘A principal may be liable when it ratifies an originally unauthorized tort. [Citations.] And generally, the ratification relates back to the time the tortious act occurred. [Citations.] As noted, ratification may occur when an employer learns of misconduct and fails to discharge an agent or employee. [Citations.]’ ” [Citation.]” (Ratcliff v. The Roman Catholic Archbishop of Los Angeles (2022) 79 Cal.App.5th 982, 1002; italics added.)

“Ratification is not itself a tort, but a doctrine that holds the ratifying party liable for the tort committed by another party. It is the voluntary election by a party to adopt, as its own, an act purportedly done on its behalf by another, the effect of which is to treat the act as originally authorized by the ratifier. [Citation.] Ratification is not an element of a claim; it is a choice to adopt someone’s act as one’s own. Evidence of the ratification may come in many forms, for example where an employer fails to terminate, investigate, or respond to charges that an employee has committed an intentional tort. [Citation.]” (Id. at pp. 1002-1003.)

While RCHC’s policies and procedures are quoted at length in the SS and the motion itself, there is a triable issue of material fact as to whether those policies and procedures were sufficient and whether they were properly followed following Jolly’s complaint. And if not, does that constitute ratification of Atkinson’s alleged sexual battery? Also, while RCHC makes repeated representations that the police did get Atkinson’s full name, it is not entirely clear when or how it was obtained. There is evidence that indicates an attempt to withhold Atkinson’s last name from Jolly and at least two of the police Deputies. There is a triable issue of material fact as to whether this constitutes ratification of Atkinson’s alleged sexual battery. The failure of Magee to interview Jolly also creates a triable issue of material fact as to whether the internal investigation itself operated as a ratification, rather than as a legitimate investigation.

While RCHC has presented some compelling evidence, triable issues of material fact remain, and the motion for summary judgment will be denied.