Opinion
A155721
05-18-2020
L.Z. et al., Plaintiffs and Appellants, v. CARDIOVASCULAR RESEARCH FOUNDATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-16-553523)
Plaintiff L.Z., a housekeeper at a Marriott Hotel (Marriott), was sexually assaulted and battered by a hotel guest who worked for defendant Cardiovascular Research Foundation (CRF) and was staying at the Marriott in order to attend a work conference. L.Z. and her husband (collectively, plaintiffs) brought a breach of contract action alleging CRF was responsible for the harm caused by its employee due to an indemnification clause contained in a contract between CRF and the Marriott.
We will refer to plaintiff by her initials to protect her privacy.
CRF successfully moved for summary judgment on the basis that the indemnification clause did not cover employee misconduct outside the scope of employment. Plaintiffs timely appealed. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed.
On October 11, 2015, CRF employees were staying at the Marriott while attending a conference at a nearby convention center. Sometime after 9:00 a.m., L.Z., a housekeeper at the Marriott, went to clean a suite being used by a CRF executive who had left to attend the work conference. She knocked on the door several times, opened it when no one responded, did not see anyone inside, and propped the door wide open with a stopper. As she started to clean, Alexander Damhuis—a CRF employee and conference attendee who was staying in a different room at the Marriott—suddenly appeared next to her and she noticed the door to the suite was now closed. L.Z. had never seen Damhuis before. Before L.Z. could do anything, Damhuis sexually assaulted and battered her, leaving her unconscious and with a broken neck, multiple broken ribs, and facial and brain injuries. Damhuis then jumped off the roof of the Marriott to his death. L.Z. regained consciousness in a hospital, where she remained for about three months.
Damhuis was Senior Coordinator for Continuing Medical Education for CRF and his job duties included coordinating and attending out-of-town educational activities such as the conference. The CRF executive, who was Damhuis' supervisor's supervisor, had not asked Damhuis to come to his suite. Damhuis did not have a key to the suite and had never been to the suite before the incident; there was no reason for him to go there for any work-related matters at any time.
CRF's use of the Marriott was pursuant to a December 19, 2007 contract entered into between CRF and the Marriott (CRF-Marriott Contract). The CRF-Marriott Contract set forth the conditions applicable to CRF's use of the Marriott and the services to be provided to CRF during conferences to be held in 2011, 2013, and 2015.
CRF initially proposed including in the CRF-Marriott Contract a unilateral indemnification clause requiring the Marriott to " 'indemnify and hold [CRF], its officers, directors, employees and agents harmless against all loss, expense or damage arising out of the negligence or willful misconduct of the [Marriott], its agents or employees.' " After negotiations, CRF and the Marriott adopted the mutual indemnification clause at issue in this case: "Each party to this Agreement shall, to the extent not covered by the indemnified party's insurance, indemnify, defend, and hold harmless the other party and its officers, directors, agents, employees, and owners from and against any and all demands, claims, damages to persons or property, losses, and liabilities, including reasonable attorneys' fees (collectively, 'Claims'), arising solely out of or solely caused by the indemnifying party's negligence or willful misconduct in connection with the provision and use of [the Marriott] as contemplated by [the CRF-Marriott Contract]. This paragraph shall not waive any statutory limitations of liability available to either party, including innkeepers' limitation of liability laws, nor shall it waive any defense either party may have with respect to any Claim."
In August 2016, plaintiffs brought an action against CRF and several CRF employees. The claims against CRF included negligent hiring, supervision, and retention; loss of consortium; and punitive damages. After the trial court sustained two demurrers with leave to amend, plaintiffs filed a second amended complaint—the operative complaint—asserting a single breach of contract cause of action solely against CRF on the basis that the indemnification clause imposed a duty on CRF to indemnify L.Z. for the harm caused by Damhuis. CRF filed a third demurrer—which was overruled—then filed an answer.
Thereafter, CRF filed a motion for summary judgment asserting its obligation under the indemnification clause was not triggered because Damhuis' misconduct did not occur in the scope of his employment with CRF and therefore did not constitute "the indemnifying party's negligence or willful misconduct," i.e., CRF's negligence or willful misconduct. CRF also argued it had no duty to indemnify L.Z. because the indemnification clause did not cover first party claims.
L.Z. argued CRF was responsible for Damhuis' misconduct because there was nothing in the indemnification clause that "restricts the types of willful misconduct that may trigger the indemnity obligations" to " 'work-related' " incidents or assaults occurring in the scope of employment. L.Z. also argued she was entitled to bring a first party action because Marriott and CRF employees testified at deposition that they understood the indemnification clause would apply to first party claims.
At the summary judgment hearing, the trial court tentatively ruled in favor of CRF. The court noted that the initial indemnity language CRF proposed stated the Marriott would indemnify CRF for claims " '[a]rising out of the negligence or willful misconduct of hotel, its agent, or employees.' " (Italics added.) In contrast, the signed indemnification clause provides that each party would only be responsible for "the negligence or willful misconduct of" the indemnifying "party"—presumably meaning CRF or the Marriot; the clause does not contain the words "its agent, or employees." The court stated, "The parties knew how to . . . write a contract that would cover [the acts of agents or employees outside the scope of their employment], and they didn't do it; they explicitly chose not to."
After further discussion, the trial court granted L.Z.'s request to continue the matter in order to depose a previously unavailable Marriott employee who had negotiated the CRF-Marriott Contract. The court also granted the parties an opportunity to file supplemental briefing. L.Z. thereafter deposed the Marriott employee and the parties submitted supplemental briefing. At the continued hearing, the court stated the deposition testimony and briefing did not provide any basis to change the tentative ruling and granted CRF's motion for summary judgment.
In its written order, the trial court stated: "After review of the deposition testimony of [the Marriott employee], the court remains of the view that based on the undisputed facts CRF is entitled to judgment in its favor. . . ." "Assuming without deciding that the indemnity provision provides for a first party claim by a Marriott employee, the undisputed facts establish that the indemnity provision does not impose liability on CRF for [Damhuis'] intentional torts. Because there is no dispute about the admissible extrinsic evidence, the interpretation of the phrase 'indemnifying party's willful misconduct' in the indemnity provision is an issue of law to be decided by this court, not an issue of fact to be decided by the trier of fact. [Citation.]"
The trial court reasoned: "While [L.Z.'s] proffered interpretation that the indemnification provision covers all willful misconduct committed by a CRF employee at the [Marriott] is plausible, it is far less plausible than CRF's proffered interpretation that the indemnification provision only covers the willful misconduct committed by a CRF employee in the scope and course of his employment. By common parlance as well as longstanding California law, the conduct of an entity party such as CRF is limited to the conduct of its employees that was done in the course and scope of their employment. While CRF and the [Marriott] were free to expand the scope of CRF's liability, there is no indication in the language of the indemnification provision or in any of the admissible extrinsic evidence that they chose to do. Nor is there any evidence that the parties mistakenly misused the language they agreed to or intended other language. Because there is no causal nexus between [Damnhuis'] tortious conduct and his work as a CRF employee, [his] misconduct is not CRF's conduct. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.) The undisputed facts show that [Damhuis] and [L.Z.] had never met before the incident, [Damhuis'] role as CRF's education coordinator did not include interaction with [the Marriott's] employees, and [the CRF Executive] never asked [Damhuis] to enter [the suite]. The fact that [Damhuis] was in [the Marriott], and therefore able to commit the tort, because he was a CRF employee is insufficient to establish the required causal nexus to attribute his misconduct to CRF. [His] intentional sexual assault is not fairly attributed to any aspect of [his] employment with CRF." The trial court entered judgment in favor of CRF, and L.Z. timely appealed.
DISCUSSION
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
I. The Indemnification Agreement was Limited to Acts by CRF, and Not Its Employees Acting Outside the Scope of Their Employment
The interpretation of a written instrument such as the CRF-Marriott Contract "is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citation.]" (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 247.) "Because indemnity agreements are construed under the same rules that govern the interpretation of contracts, an indemnity agreement must be interpreted so as to give effect to the mutual intention of the parties." (Ibid.) The court ascertains the parties' intent from the " 'clear and explicit' " language of the agreement, and if possible, solely from the written provisions of the agreement. (City of Bell, supra, 220 Cal.App.4th at 246; see also In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 47 [the parties' " 'mutual intention is to be determined, whenever possible, from the language of the writing alone' "].) The terms of the agreement are to be "interpreted in their 'ordinary and popular sense,' unless 'used by the parties in a technical sense or a special meaning is given to them by usage.' " (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.)
Here, as noted, the indemnification clause provided that "[e]ach party to the Agreement" must indemnify "the other party and its officers, directors, agents, employees, and owners from and against any and all demands, claims, damages to persons or property . . . arising solely out of or solely caused by the indemnifying party's negligence or willful misconduct." (Italics added.) L.Z. asserts the terms "negligence or willful misconduct" of the "indemnifying party" was meant to include not only the acts of CRF and the Marriott, but also the acts of its employees without regard to whether the employees were acting in the scope of their employment. We disagree.
The introductory paragraph of the CRF-Marriott Contract identified the parties to the agreement: "The following represents an agreement between Marriott [address and phone number] and Cardiovascular Research Foundation." Employees were not parties to the agreement. Throughout the contract, CRF and the Marriott referred to themselves as "party" or "parties" (e.g., "each party," "both parties"). They did not indicate anywhere in the contract that they intended to include "employees" in their definition of "party." (Santisas v. Goodin, supra, 17 Cal.4th at p. 608 [terms are given their ordinary meaning "unless 'used by the parties in a technical sense or a special meaning is given to them by usage' "].) In fact, CRF and the Marriott's use of the phrase "party and its officers, directors, agents, employees, and owners" in one part of the indemnification clause supports a determination that they intended to distinguish between "party" on the one hand and "officers, directors, agents, employees, and owners" on the other.
We conclude CRF and the Marriott intended to apply the ordinary and common meaning of the word "party" to mean CRF or the Marriott, and that the clear and express language of the indemnification clause limited coverage to "negligence or willful misconduct" attributable to CRF or the Marriott.
II. Damhuis' Acts Were Not Within the Scope of his Employment and Therefore Were Not Attributable to CRF
It is well established that an employee's misconduct can be attributed to the employer under the respondeat superior doctrine, which is "based on a ' "deeply rooted sentiment" ' that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This doctrine, however, applies only if the plaintiff can prove the employee committed the tortious conduct "within the scope of employment." (Id. at p. 209.)
Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291 (Lisa M.), which the trial court cited, and which L.Z. and CRF discuss at length in their appellate briefs, is instructive. In that case, a pregnant patient sought to hold a hospital-employer liable for damages she suffered when an ultrasound technician sexually assaulted her during a medical examination. (Id. at pp. 295-296, 298.) The California Supreme Court held an employer is not vicariously liable for an employee's assault that does not have a "causal nexus to the employee's work." (Id. at p. 297.) "That the employment brought tortfeasor and victim together in time and place is not enough." (Id. at p. 298.) Rather, the "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.]" (Ibid.) In conclusion, "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.)
"Looking at the matter with a slightly different focus," the Court 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.]" (Lisa M., supra, 12 Cal.4th at p. 299.) "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." (Ibid.)
Applying those principles to the patient's action against the hospital, the Court held there was no causal nexus because the ultrasound technician's sexual assault was not "engendered by the employment," i.e., its "motivating emotions" were not "fairly attributable to work-related events or conditions." (Lisa M., supra, 12 Cal.4th at p. 301.) The technician's job of performing an examination "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.' [Citation.]" (Ibid.)
The Court further held that analyzing the case "in terms of foreseeability leads to the same conclusion. An intentional tort is foreseeable, for purposes of respondeat superior, only if '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.' [Citation.]" (Lisa M., supra, 12 Cal.4th at p. 302.) "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 . . . with an ultrasound technician who simply took advantage of solitude, access and superior knowledge to commit a sexual assault." (Id. at pp. 302-303.)
Similarly, here, Damhuis' misconduct did not occur in the scope of his employment, regardless of whether we analyze the case in terms of causal nexus or foreseeability. First, a causal nexus did not exist because Damhuis' sexual assault and battery of L.Z. did not arise out of the conditions of his work. His job duties, which included organizing work conferences, "provided no occasion for a work-related dispute or any other work-related emotional involvement with [L.Z.]." (Lisa M., supra, 12 Cal.4th at p. 301.) L.Z. argues there was a causal nexus because CRF hosts conferences throughout the world (and their employees presumably stay at hotels during conferences). However, as the Court stated in Lisa M., "Hospital, by employing the technician and providing the ultrasound room, may have set the stage for his misconduct, but the script was entirely of his own, independent invention." (Id. at p. 306.) Here, too, although CRF caused its employees to stay at hotels for work purposes, Damhuis' act of raping and battering a hotel housekeeper was entirely his own and there was no evidence that the violent acts he committed were motivated or triggered by anything related to his employment activity.
Second, the sexual assault was not foreseeable, i.e., it was not the type of injury that " ' "as a practical matter are sure to occur in the conduct of the employer's enterprise.' " [Citation.]" (Lisa M., supra, 12 Cal.4th at p. 299.) L.Z. argues the sexual assault was foreseeable because "policy makers in various locations throughout the United States have begun passing laws to protect housekeepers like [L.Z.] because they are uniquely vulnerable to sexual assault." She has asked us to take judicial notice of proposed legislation and committee analysis from our State Legislature, local ordinances from Long Beach, California and Chicago, Illinois, and legislation passed by the New Jersey Legislature relating to housekeeper safety. We decline to take judicial notice of these documents, which were not presented below. (Brosterhous v. State Bar of California (1995) 12 Cal.4th 315, 325-326 [declining to take judicial notice of materials not presented to the trial court].)
In any event, we note that the question of foreseeability "is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought." (Lisa M., supra, 12 Cal.4th at p. 302.) The sexual assault that occurred in this case was not the type of injury that could be considered " ' "sure to occur as a result of the employer's enterprise" ' " (id. at p. 299), because the mere fact that CRF has employees stay at hotels for work conferences did not render it foreseeable that its employee would commit a sexual assault against a hotel housekeeper.
We conclude the trial court properly granted CRF's motion for summary judgment.
In light of our decision affirming summary judgment on the ground that the indemnification clause did not extend to Damhuis' misconduct, we do not address CRF's alternative argument that the indemnification clause also does not allow first party claims.
DISPOSITION
The judgment is affirmed. CRF shall recover its costs on appeal.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.