Freeman vs. Massage Envy Franchising, LLC

Plaintiff is ordered to serve notice of this ruling.

109 2025-01526045 1. Demurrer to Complaint 2. Motion to Strike Complaint Freeman vs.

3. Case Management Conference Massage Envy Franchising, LLC A. Demurrer

Defendants Tustin Massage Envy, Brittany Sieger, and Greg Sieger’s Demurrer to Plaintiff Brittany Freeman’s Complaint is sustained in large part as set forth below. Plaintiff is given 20 days leave to amend.

1. First cause of action for negligence

Moving Defendants argue, and the Court agrees, that it is not clear if Plaintiff is attempting to allege medical malpractice or negligence in a non-medical context.

The Complaint alleges that the Siegers own Massage Envy Tustin. (Compl., ¶7.) On March 3, 2025, Plaintiff went to Massage Envy Tustin for a massage to address pain in her back and neck. (Compl., ¶13.) Sheila Horowitz was the assigned massage therapist; Ms. Horowitz is an employee of Massage Envy Tustin. (Compl., ¶¶8,13.)

In sum, Plaintiff alleges that Horowitz injured her while performing an intraoral massage on Plaintiff, with the goal of addressing the tension and pain Plaintiff felt in her neck. (Compl., ¶¶15-19.) Plaintiff alleges that she raised her hand to indicate extreme discomfort and pain; Ms. Horowitz momentarily paused the massage but failed to adjust her technique or pressure to reduce the discomfort and pain, and “proceeded with great force to massage PLAINTIFF’s jaw hinge and wisdom teeth area”. (Compl., ¶18.)

Plaintiff’s opposition to the demurrer appears to argue that there are distinct allegations of medical malpractice and ordinary negligence. Plaintiff must separate her claims into distinct causes of action and meet all pleading standards.

Moreover, as to the Siegers, there is no negligence alleged. Plaintiff admits that Ms. Horowitz is an employee of Defendant Massage Envy Tustin, not the Siegers. (See Compl., ¶¶7-8.)

The Court also notes that there is no authority for the sub-claim of “negligent infliction of emotional distress”. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 667.) Negligent infliction of emotional distress is not an independent tort in California, but is regarded simply as the tort of negligence. (see Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 894.)

The Court therefore sustains the demurrer.

2. Second cause of action for battery

Although Moving Parties address this claim, it is not brought against them.

3. Third cause of action for IIED

Moving Defendants argue that there are no allegations that they intended to harm Plaintiff.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a

civilized community.’ And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051; CACI 1600.)

An employee's willful, malicious, and even criminal torts may fall within the scope of his or her employment, even though the employer did not authorize the employee to commit crimes or intentional torts. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.)

The allegations against Moving Defendants are that Ms. Horowitz “performed an intraoral massage that significantly deviated from accepted massage practices and professional standards”. (Compl., ¶47.) This does not state a claim for IIED.

However, Plaintiff also alleges that “Defendant HOROWITZ continued to perform the massage despite PLAINTIFF’s obvious and extreme discomfort, demonstrating a reckless disregard for PLAINTIFF’s physical and emotional well-being.” (Compl., ¶48.) “The abovedescribed conduct by Defendant HOROWITZ took place while performing duties within the scope of her employment relationship with Defendants MASSAGE ENVY TUSTIN and/or SIEGERS; therefore, said Defendants are responsible for all damages to PLAINTIFF under the doctrine of Respondeat Superior.” (Compl., ¶53.) The Complaint alleges that he massage was carried out with a reckless disregard for her pain and safety. (Compl., ¶51.)

Malicious or evil purpose is not essential to liability for IIED. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.)

Thus, the Court finds sufficient facts as to the employer Massage Envy Tustin.

However, there is no conduct alleged by the Siegers that could state a claim.

Thus, the Demurrer is sustained as to the Siegers only.

4. Fourth cause of action for “failure to warn” and fifth cause of action for lack of informed consent

In the medical context, lack of informed consent is a subcategory of professional negligence doctrine. A medical professional’s failure to obtain informed consent can give rise to liability in medical malpractice. (Cobbs v. Grant (1972) 8 Cal. 3d 229.)

Here, the Complaint alleges that “intraoral massages carry risks of serious injury, including the possibility of a dislodged condyle, which would not be obvious to an ordinary client of massage services”; Plaintiff was not informed. (Compl., ¶¶56-59, in the fourth cause of action.)

Plaintiff alleges in relevant part that “Neither Defendant HOROWITZ nor Defendant MASSAGE ENVY TUSTIN and/or Defendants SIEGER informed PLAINTIFF about the risks associated with intraoral massage, including the possibility of permanent and life-altering injuries, and thus PLAINTIFF’s consent was not a fully informed one. A reasonable person in PLAINTIFF’s position would not have agreed to the procedure if they had been adequately informed of these risks. Had PLAINTIFF been properly informed of all material risks associated with intraoral massage, she would not have consented to the procedure.” (Compl., ¶66, in the fifth cause of action.)

These two claims appear to overlap.

Moreover, there is again no facts alleged to state a claim against the Siegers, who Plaintiff admits were not Ms. Horowitz’s employer.

The Court therefore sustains the demurrer.

5. Sixth cause of action for negligent hiring, training, supervision

Moving Defendant argues that the allegations here are conclusory, specifically that Defendants should have known Ms. Horowitz was incompetent.

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; CACI 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

Here, Defendants take issue with the allegations that Plaintiff was incompetent. But considering all properly alleged facts, the Court finds the allegation sufficient.

However, the Sieger, again, are not Ms. Horowitz’s employer.

Thus, the Demurrer is sustained as to the Siegers only.

6. Seventh cause of action for “negligent operation of activity requirement franchise”

It is not clear to the Court what claim Plaintiff is trying to assert; this appears to be another negligence claim.

The Court therefore sustains the demurrer.

7. Eighth cause of action for “vicarious liability”

Vicarious liability is not a separate cause of action but a theory of recovery against the employer. (See e.g. CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1264.)

The Court therefore sustains the demurrer.

B. Motion to Strike

Moving Defendants seek to strike Plaintiff’s request for attorney’s fees and punitive damages.

Code of Civil Procedure § 1021 codifies the “American rule” that each party must bear the expense of its own attorney's fees. 14 Cal.5th at 417. (Java Oil Ltd. v Sullivan (2008) 168 Cal.App.4th 1178, 1189–1192 (California courts may enforce foreign money judgments that automatically award attorney's fees to successful litigant, e.g., under “English rule” that generally requires loser to pay winner's attorney's fees; these awards are not contrary to California public policy).

Here, Plaintiff alleges no agreement with Defendants that provides for attorney’s fees nor does Plaintiff cite to a statute that could provide for attorney’s fees to the prevailing party.

Thus, the request for attorney’s fees is stricken.

The issue of punitive damages is moot given the above rulings.

The case management conference is continued to December 7, 2026 at 10:00 a.m. in Department C27.

Moving Defendants are ordered to serve notice.

110 2026-01540310 1. Demurrer to Complaint 2. Demurrer to Complaint Wach vs. East 3. Case Management Conference

The demurrer of Defendants Sebastian East DDS and Sebastian East Dental Corp. to the third cause of action contained within Plaintiff Lawrence Wach’s complaint is sustained with 15 days leave to amend.. [ROA # 25.]

The demurrer of Defendant Providence Health and Services to the second and third causes of action contained within Plaintiff’s complaint is sustained with 15 days leave to amend. [ROA # 32.]

Plaintiff’s Complaint Plaintiff alleges that he went to Defendant Sebastian East, DDS and Sebastian East Dental Corporation (together, “Dr. East”), for surgery to repair Plaintiff’s lower jaw. This took place at the premises of Defendant Provident Health and Services (“Providence”), the actual or ostensible employer of Dr. East. [Complaint (ROA #2), ¶¶ 2-4, 11-12.]

Plaintiff alleges that the procedure was to involve only surgery inside Plaintiff’s mouth in order to repair his broken jaw and he did not consent to any contact with any part of his face. [Complaint, ¶ 14.]

During the surgery, Dr. East used an electrocautery tool that he intentionally set or rest of Plaintiff’s face while Plaintiff was under anesthesia. The tool was still hot and severely burned Plaintiff’s face. [Complaint, ¶¶ 15-19.]

Plaintiff asserts through causes of action against all Defendants: (1) professional negligence; (2) battery; and (3) dependent adult abuse and neglect, Welf. & Inst. Code §15600.

Dr. East demurs to the third cause of action. Providence demurs to the second and third causes of action.

Legal Standard

A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.