Doe v. CFR Enterprises, Inc. ( 2023 )

Filed 6/29/23; certified for publication 7/27/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JANE DOE #21 (S.H.) et al.,
Plaintiffs and Appellants,
A163543
v.
CFR ENTERPRISES, INC., et al., (San Mateo County
Super. Ct. No. 19CIV00392)
Defendants and Respondents.
JANE DOE #4 (D.T.),
Plaintiff and Appellant,
(San Mateo County
v. Super. Ct. No. 19CIV04095)
DESERT VENTURES SOUTH,
LLC,
Defendant and Respondent.
JANE DOE #9 (J.C.) et al.,
Plaintiffs and Appellants,
(San Mateo County
v. Super. Ct. No. 19CIV05035)
RME CLINICS, INC., et al.,
Defendants and Respondents.
In 2019, several dozen plaintiffs sued Massage Envy Franchising, LLC
(a franchisor) and Massage Envy franchisees alleging that as adults they
were sexually assaulted by massage therapists at Massage Envy locations in
1
California between August 2003 and November 2014. This is an appeal by 18
of those plaintiffs from judgments entered against them after demurrers were
sustained without leave to amend on the ground that the applicable statutes
of limitations barred all their claims. Just as the appellate briefing was
about to be completed, the Governor approved Assembly Bill No. 2777, which
amended section 340.16 of the Code of Civil Procedure to revive certain
claims that relate to sexual assault. (Stats. 2022, ch. 442, § 3, eff. Jan. 1,
2023.) After plaintiffs argued in their reply brief that the new statute
revived all their claims, we asked for and received supplemental briefing
from the parties on the effect of the new law.
It is clear that the new law revives some, if not all, of plaintiffs’ claims.
But it is impossible for us to fairly say more at this point, because the
operative complaints and the demurrers at issue were drafted before the
revival statute was enacted. We shall reverse the judgment of dismissal and
remand to the trial court for further proceedings to give plaintiffs the
opportunity to amend their complaints if necessary, and to give defendants
the opportunity to make further arguments, if they so choose, regarding the
effect of the revival statute on each of the causes of action brought by each of
the plaintiffs in this case.
FACTUAL AND PROCEDURAL BACKGROUND
Allegations in Plaintiffs’ Complaints
Three separate complaints are at issue in this appeal, which is brought
by 18 of the original plaintiffs.1 In one of the complaints, the plaintiffs
1 The appellants are Jane Doe Nos. 21 (S.H.), 23 (A.H.), 25 (M.H.), 27
(R.L.), 28 (A.L.), 30 (M.M.), 33 (A.M.), 37 (M.S.), and 38 (E.L.) in superior
court case No. 19CIV00392; Jane Doe No. 4 (D.T.) in case No. 19CIV04095;
and Jane Doe Nos. 9 (J.C.), 10 (E.D.), 11 (T.S.), 12 (A.H.), 15 (J.M.), 16 (T.R.),
18 (L.N.), and 19 (M.M.) in case No. 19CIV05035. The contours of this appeal
2
alleged in general terms that the defendants were aware of a “rampant
problem of sexual assaults occurring at Massage Envy locations,” and
concealed or suppressed information about the assaults, intending that
plaintiffs would buy massage services that defendants knew were unsafe.
Defendants allegedly “actively prevent[ed] sexual assault . . . from being
reported to law enforcement and/or state massage therapy boards,” or to the
public at large. And although defendants allegedly knew that their security
screening of massage therapists was deficient, their background checks were
below industry standards, and their massage therapists were not trained or
supervised, defendants concealed this information from plaintiffs and
deliberately represented the opposite, including that they had a “zero
tolerance” policy relating to sexual misconduct by massage therapists, and
that their massage therapists were psychologically fit, properly screened, and
safe. Plaintiffs alleged they reasonably relied on defendants’ false assurances
that the massage services they offered were safe and free of inappropriate
touching, and had no way to discover that the assurances were false, because
have been in some flux. Initially, there were 23 plaintiffs/appellants and
numerous defendants/respondents. Only one of the respondents, Massage
Envy Franchising, LLC, was common to all the plaintiffs. Before the opening
brief was filed, three plaintiffs dismissed their appeals, leaving 20 plaintiffs.
After respondents’ brief was filed, another plaintiff dismissed her appeal in
its entirety and the remaining 19 plaintiffs dismissed their appeals as to the
common defendant. According to a letter filed by plaintiffs’ counsel on May
30, 2023, 13 named defendants remained in the appeal as respondents. At
oral argument, appellants’ counsel informed us that one of the 19 remaining
plaintiffs had settled her case and would be dismissing her appeal. The
dismissal has since been entered, leaving 18 plaintiffs/appellants.
3
of defendants’ misrepresentations, omissions, and acts of cover-up, which
were designed to obtain the plaintiffs as customers.2
Each plaintiff in each of the three cases alleged nine causes of action:
(1) negligence; (2) premises liability; (3) intentional infliction of emotional
distress; (4) sexual battery (Civ. Code, § 1708.5); (5) violation of the Ralph
Civil Rights Act of 1976 (Ralph Act, Civ. Code, § 51.73); (6) negligent
misrepresentation; (7) fraud, intentional misrepresentation, concealment,
false promise; (8) violation of the Consumers Legal Remedies Act (CLRA, Civ.
Code, § 1750 et seq.); and (9) fraudulent and unfair business practices in
violation of the unfair competition law (UCL, Bus. & Prof. Code, § 17200 et
seq.).
Demurrers and Judgments
Defendants demurred to the complaints based on the then-applicable
statutes of limitations. They contended that plaintiffs’ claims for negligence,
premises liability, intentional infliction of emotional distress, sexual battery,
and negligent misrepresentation were subject to a two-year limitations period
governing “[a]n action for assault, battery, or injury . . . caused by the
wrongful act or neglect” (Code Civ. Proc.,4 § 335.1), and that the Ralph Act
2 The three operative complaints are lengthy: one is 170 pages long,
one is 100 pages, and one is 34 pages. In their appellate briefs, to the limited
extent plaintiffs cite to specific allegations in the complaints, they rely
primarily on just one of the three complaints. Plaintiffs assert that “identical
or similar passages may be found” in the other complaints, but they do not
provide citations to those passages by page number, as they are required to
do by rule 8.204(a)(1)(C) of the California Rules of Court.
3 The Ralph Act sets forth “the right to be free from any violence, or
intimidation by threat of violence, committed against their persons” on
account of their sex. (Civ. Code, §§ 51.7, subd. (b)(1); 51, subd. (b).)
4 All statutory references are to the Code of Civil Procedure unless
otherwise stated.
4
claims were subject to a three-year limitations period (§ 338, subd. (n); see
also Civ. Code, § 52.4, subds. (b) & (c)), as were the claims for fraud (§ 338,
subd. (d)) and violation of the CLRA. (Civ. Code, § 1783). Defendants argued
that the longest applicable statute of limitations was four years, for claims of
fraudulent and unfair business practices (Bus. & Prof. Code, § 17208), and
that because each of the plaintiffs was allegedly assaulted more than four
years before the actions were filed, the statutes had run and the claims were
time-barred.5
After complicated pretrial proceedings not relevant for our purposes,
case management orders were issued that sustained all of defendants’
demurrers without leave to amend on the basis of the applicable statutes of
limitations.6 Judgments were entered in favor of defendants, and plaintiffs
timely appealed.7 While this appeal was being briefed, plaintiffs dismissed
their appeals as to Massage Envy Franchising, LLC, leaving only the
franchisees as respondents.
Plaintiffs’ Appeal and the Subsequent Amendment of Section 340.16 to Revive
Lapsed Claims
In their opening brief on appeal, plaintiffs argued that they adequately
pleaded delayed discovery in connection with their fraud claims, with the
5 None of the appellants alleged an assault after November 2014, and
each of the lawsuits was filed in 2019.
6 The court concluded that the applicable limitations period for
plaintiffs’ causes of action for the negligent misrepresentation period, like the
limitations periods for fraud, was three years; and the limitations period on
the negligent misrepresentation, fraud, and CLRA claims began to run at the
time of the alleged sexual assaults.
7 The parties stipulated that all of the judgments, which were issued on
the same statute of limitations grounds by the same trial court judge, could
be appealed through a single notice of appeal.
5
result that the statute of limitations was tolled as to all their claims. And
they argued that section 340.16, as enacted in 2018 and subsequently
amended through 2020, established a 10-year statute of limitations for sexual
assault claims in actions filed after January 1, 2019, which rendered their
claims timely.
In their respondents’ brief, defendants argued that section 340.16 did
not apply to plaintiffs’ claims. Defendants claimed that section 340.16
prospectively enlarged the statute of limitations for tort claims arising from
sexual assault, but did not revive any of the plaintiffs’ claims, all of which
had accrued and lapsed before section 340.16 took effect, including the fraud
claims, which, defendants argued, accrued on the dates of the alleged
assaults.8 Defendants relied on section 3, which provides that “[n]o part of
[the Code of Civil Procedure] is retroactive, unless expressly so declared”; on
the absence of any statutory language in section 340.16 that would revive
plaintiffs’ claims; and on case law holding that “lapsed claims are not
considered revived without express legislative language of revival.” (Quarry
8 Defendants acknowledged that the Legislature had amended section
340.16 in 2019 and 2020 to revive certain limited classes of claims pertaining
to student health centers or to UCLA that would otherwise be barred by the
applicable statute of limitations; these amendments had no effect on
plaintiffs’ claims. (See Stats. 2019, ch. 462, § 1, effective Oct. 2, 2019
[amending former subd. (c) (now subd. (c)(1)) to revive until Dec. 31, 2020,
claims seeking to recover more than $250,000 “arising out of a sexual assault
or other inappropriate contact, communication, or activity of a sexual nature
by a physician occurring at a student health center between January 1, 1988,
and January 1, 2017”]; Stats. 2020, ch. 246, § 1, effective Jan. 1, 2021 [adding
subd. (d) to revive until Dec. 31, 2021 claims “seeking to recover damages
arising out of a sexual assault or other inappropriate contact, communication,
or activity of a sexual nature by a physician [associated with certain facilities
owned and operated by UCLA] between January 1, 1983, and January 1,
2019”].)
6
v. Doe I (2012) 53 Cal.4th 945, 953; see also Doe v. Roman Catholic
Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 962 [“[t]he only time a
court will apply a limitations period enacted after the underlying wrong
occurs is when the pre-amendment limitations period has not yet expired
(because, in that situation, the plaintiff’s claim is still viable and the new
limitations period is not being applied retroactively) or . . . when the
Legislature ‘expressly’ declares its intent to revive expired claims”].)
Then, in September 2022, after respondents filed their brief on appeal,
but before appellants filed their reply, Governor Newsom approved Assembly
Bill No. 2777 (2021-2022 Reg. Sess.), which amended section 340.16 to revive
claims that seek to recover “damages suffered as a result of a sexual assault”
occurring on or after a plaintiff’s 18th birthday, provided that the claims had
not been litigated to finality or compromised by a written settlement
agreement before January 1, 2023. (§ 340.16, subds. (a), (b)(3), (e)(6); Stats.
2022, ch. 442, § 3, eff. Jan. 1, 2023.) In their reply brief, filed in November
2022, plaintiffs now had an entirely new argument. They contended that the
judgments below should be reversed because their cases would still be
pending on January 1, 2023, and Assembly Bill No. 2777 rendered all their
claims timely.
We requested and received supplemental briefing from the parties
addressing the effect of Assembly Bill No. 2777.
DISCUSSION
A. Standard of Review
On an appeal from a judgment of dismissal based on an order
sustaining a demurrer without leave to amend, we apply the de novo
standard of review. (Honig v. San Francisco Planning Dept. (2005) 127
Cal.App.4th 520, 524.) We assume that all material factual allegations in the
7
complaint are true. (Ibid.) “A demurrer is properly sustained without leave
to amend where the pleading discloses on its face that the action is barred by
the applicable statute of limitations.” (Ibid.)
In determining whether section 340.16, as amended, renders plaintiffs’
claims timely, we must “ ‘determine the Legislature’s intent so as to
effectuate the law’s purpose.’ (People v. Murphy (2001) 25 Cal.4th 136, 142.)
‘We begin by examining the statutory language, giving it a plain and
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the entire substance of the
statutes in order to determine their scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statutes’
nature and obvious purpose. [Citation.] We must harmonize the various
parts of the enactments by considering them in the context of the statutory
[framework] as a whole. [Citation.] If the statutory language is
unambiguous, then its plain meaning controls. If, however, the language
supports more than one reasonable construction, then we may look to
extrinsic aids, including the ostensible objects to be achieved and the
legislative history.’ ” (Skidgel v. California Unemployment Ins. Appeals Bd.
(2021) 12 Cal.5th 1, 14.)
B. Analysis
Since October 2, 2019, section 340.16 has provided that “[i]n any civil
action for recovery of damages suffered as a result of sexual assault, where
the assault occurred on or after the plaintiff’s 18th birthday, the time for
commencement of the action shall be the later of the following: [¶] (1) Within
10 years from the date of the last act, attempted act, or assault with the
intent to commit an act, of sexual assault against the plaintiff. [¶] (2) Within
three years from the date the plaintiff discovers or reasonably should have
8
discovered that an injury or illness resulted from an act, attempted act, or
assault with the intent to commit an act, of sexual assault against the
plaintiff.” 9 (§ 340.16, subd. (a); Stats. 2019, ch. 462, § 1; Stats. 2020, ch. 246,
§ 1; Stats 2022, ch. 442, § 3.) “Sexual assault” is defined to mean any of a
number of crimes described in the Penal Code, assault with the intent to
commit any of those crimes, or an attempt to commit any of those crimes.
(§ 340.16, subd. (b)(1); Stats. 2019, ch. 462, § 1; Stats. 2020, ch. 246, § 1; Stats
2022, ch. 442, § 3.)
Effective January 1, 2023, section 340.16 was amended in two respects
to revive certain claims seeking to recover damages suffered as a result of a
sexual assault that would otherwise be barred by application of a statute of
limitations. (Stats. 2022, ch. 442, § 3.) The relevant revival provisions are in
subdivisions (b)(3) and (e) of section 340.16, to which we now turn.
1. Section 340.16, subdivision (b)(3)
As amended in 2022, section 340.16 “applies to any action described in
subdivision (a) that is based upon conduct that occurred on or after January
1, 2009, and is commenced on or after January 1, 2019, that would have been
barred solely because the applicable statute of limitations has or had expired.
Such claims are hereby revived and may be commenced until December 31,
2026. This subdivision does not revive any of the following claims: [¶] (A) A
claim that has been litigated to finality in a court of competent jurisdiction
9 Section 340.16 was first enacted in 2018 and took effect on January 1,
2019. From January 1, 2019 through October 1, 2019, the 10-year and three-
year periods were defined with reference to an “act, attempted act, or assault
with intent to commit an act, of sexual assault by the defendant against the
plaintiff.” (Stats. 2018, ch. 939, § 1; italics added.) October 2, 2019 was the
effective date of the amendment to section 340.16 that enlarged the statute of
limitations for civil claims against defendants who were not alleged to have
committed sexual assault. (Stats. 2019, ch. 462, § 1.)
9
before January 1, 2023. [¶] (B) A claim that has been compromised by a
written settlement agreement between the parties entered into before
January 1, 2023.” (§ 340.16, subd. (b)(3) (§ 340.16(b)(3)), italics added.)
There is no dispute that section 340.16(b)(3) revives the causes of
action for sexual battery brought by the 16 plaintiffs in this case who allege
they were sexually assaulted after January 1, 2009.10 But while the plaintiffs
assert that the amendment revives all their causes of action, defendants
argue that only the sexual battery causes of action are revived.
Defendants’ argument is unpersuasive because it rests on their view
that section 340.16(b)(3), as they put it, applies only to “any [sexual
assault/battery] action described in subdivision (a).” But the words “sexual
assault/battery” have been inserted by defendants; they do not appear in
section 340.16(b)(2), which by its terms “applies to any action described in
subdivision (a) that is based upon conduct that occurred on or after January
1, 2009 . . . .” (§ 340.16(b)(3), italics added.) Subdivision (a) is not limited to
causes of action for sexual assault/battery: it applies to “any civil action for
recovery of damages suffered as a result of sexual assault.”11 (§ 340.16, subd.
(a), italics added.) Defendants recognized this in their respondents’ brief,
where they observed that when section 340.16 was enacted, it enlarged the
two- and three-year statutes of limitations for “tort claims arising from
sexual assault occurring after a plaintiff’s 18th birthday,” including the
Ralph Act. And, as defendants admitted in their respondents’ brief, leaving
10 Only two of the 18 plaintiffs allege they were assaulted before
January 1, 2009. Jane Doe No. 18 alleges she was assaulted in March 2008,
and Jane Doe No. 19 alleges she was assaulted in August 2003.
11 Further, the causes of action permitted under subdivision (a) include
“causes of action against persons or entities other than the alleged person
who committed the” alleged sexual assault or battery. (§ 340.16, subd. (b)(2).)
10
aside the causes of action for violation of the UCL, all of the plaintiffs’ causes
of action, “regardless of the legal theory alleged,” sought “damages as a result
of sexual assault.”12 As defendants explained in their respondents’ brief,
“[e]ach plaintiff alleged that she experienced damages from sexual assault . . .
under multiple legal theories, from negligence to fraud.”
Although it is clear that section 340.16(b)(3) revives at least some of the
causes of action alleged by the 16 Jane Doe plaintiffs who allege they were
sexually assaulted on or after January 1, 2009, we are not prepared to hold
that all their causes of action are revived, because the parties’ supplemental
briefs do not address the application of the amended statute to each of the
causes of action alleged by each of the plaintiffs. In particular, the parties
say nothing about whether section 340.16(b)(3) revives plaintiffs’ causes of
action under the UCL.
In the absence of an analysis by the parties in their appellate briefs of
the application of section 340.16(b)(3) to each of the causes of action alleged
by the plaintiffs who allege assaults on or after January 1, 2009, we remand
the matters for the trial court to address the issue in the first instance.
2. Section 340.16, subdivision (e)
In addition to reviving claims by the application of newly enacted
subdivision (b)(3), the 2022 amendment of section 340.16 added subdivision
(e) (§ 340.16(e)), which establishes a one-year window reviving claims seeking
damages suffered as a result of sexual assault where the plaintiff alleges that
the defendant or defendants “engaged in a cover up or attempted a cover up
12 Damages are not available under the UCL. (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [“[a] UCL action is
equitable in nature; damages cannot be recovered”].)
11
of a previous instance or allegations of sexual assault by an alleged
perpetrator of such abuse.” (§ 340.16(e)(2)(C); Stats 2022, ch. 442, § 3.)
By its terms, section 340.16(e) applies when a plaintiff alleges that they
were sexually assaulted (§ 340.16(e)(2(A)); that one or more entities13 are
“legally responsible for damages arising out of the sexual assault,”
(§ 340.16(e)(2)(B)); and that “[t]he entity or entities, including but not limited
to, their officers, directors, representatives, employees, or agents, engaged in
a cover up or attempted a cover up of a previous instance or allegations of
sexual assault by an alleged perpetrator of such abuse.” (§ 340.16(e)(2)(C).)
“Legally responsible” is defined as meaning that “the entity or entities are
liable under any theory of liability established by statute or common law,
including, but not limited to, negligence, intentional torts, and vicarious
liability.” (§ 340.16(e)(4)(C).) “Cover up” is defined as “a concerted effort to
hide evidence relating to a sexual assault that incentivizes individuals to
remain silent or prevents information relating to a sexual assault from
becoming public or being disclosed to the plaintiff, including, but not limited
to, the use of nondisclosure agreements or confidentiality agreements.”
(§ 340.16(e)(4)(A).)
Unlike the revival provision in section 340.16(b)(3), section 340.16(e)
applies to claims regardless of when the alleged sexual assault occurred: for
plaintiffs who plead the requisite statutory allegations of a cover-up, section
340.16(e) revives until December 31, 2023 “any claim seeking to recover
damages suffered as a result of a sexual assault that occurred on or after the
plaintiff’s 18th birthday that would otherwise be barred before January 1,
13 “Entity” is defined as “a sole proprietorship, partnership, limited
liability company, corporation, association, or other legal entity.”
(§ 340.16(e)(4)(B).)
12
2023, solely because the applicable statute of limitations has or had
expired.”14 (§ 340.16(e)(1).) And section 340.16(e) by its terms revives “any
related claims, including, but not limited to, wrongful termination and sexual
harassment, arising out of the sexual assault that is the basis for a claim
pursuant to this subdivision.” (§ 340.16(e)(5).)
For purposes of this appeal, this means that the claims of Jane Doe No.
18 and Jane Doe No. 19, who allege they were assaulted before January 1,
2009, are potentially subject to revival under section 340.16(e) even though
those claims are not revived by section 340.16(b)(3). And the claims of the
other remaining plaintiffs who allege they were assaulted on or after January
1, 2009 are also potentially subject to revival by section 340.16(e), as well as
section 340.16(b)(3). The revival of claims under 340.16(e) depends upon
whether plaintiffs have alleged a “cover up” under section 340.16(e)(2)(C).
In arguing on appeal that section 340.16(e) applies to them and revives
their claims, plaintiffs simply assert in their supplemental brief that they
alleged “knowledge and cover-up of previous sexual assaults by the
franchisee defendants.” But plaintiffs do not discuss the definition of “cover
up” in section 340.16(e)(4)(A) and do not demonstrate how each plaintiff
alleged a “cover up” as defined in that subdivision with respect to the
particular defendant entity or entities that each plaintiff claims is liable for
her assault. Nor do plaintiffs demonstrate that each plaintiff has alleged
that the relevant entity’s “cover up” (as defined in section 340.16(e)(4)(A))
predated her alleged assault as required by section 340.16(e)(2)(C). Instead,
14 Under section 340.16(e)(1), “a cause of action may proceed if already
pending in court on January 1, 2023, or, if not filed by that date, may be
commenced between January 1, 2023, and December 31, 2023.” It is
undisputed that the complaints at issue in this appeal were all pending in
court on January 1, 2023.
13
plaintiffs point to paragraphs in two of the operative complaints that are not
specific as to time and that primarily concern Massage Envy Franchising,
LLC, who is no longer a party to this appeal. As a result, we cannot discern
whether each plaintiff has alleged that the defendant or defendants allegedly
liable for her injuries “engaged in a cover up or attempted a cover up of a
previous instance or allegations of sexual assault by an alleged perpetrator of
such abuse,” as the newly amended statute requires.15 (§ 340.16(e)(2)(C).)
None of this is particularly surprising. That is because, as we have
noted plaintiffs’ complaints were drafted before the 2022 amendment of
section 340.16, and the amendment was enacted in the course of appellate
briefing. The parties’ appellate briefs include very few citations to the actual
allegations in the lengthy operative complaints. Even the supplemental
briefing does not differentiate among the plaintiffs as to the elements of the
revival statute. For these reasons, the question whether plaintiffs’
complaints survive demurrers based on the now-applicable statute of
limitations and its pleading requirements is better left to the trial court to
address in the first instance.
For the guidance of the trial court on remand, we briefly address
defendants’ assertion that plaintiffs’ claims are not revived by section
340.16(e). Defendants point to section 340.16(e)(2)(C), which requires a
plaintiff to allege that the legally responsible entity “engaged in a cover up or
attempted a cover up of a previous instance or allegations of sexual assault
by an alleged perpetrator of such abuse” (italics added), and urge us to
15 Defendants assert broadly and without citation to specific passages
in the complaints that the only allegations of cover ups describe actions
allegedly taken after the plaintiffs were assaulted. The plaintiffs dispute
that assertion, but do not point us to any allegation of a cover up that clearly
predated a plaintiff’s alleged assault.
14
interpret it to require plaintiff to allege a cover up of a previous instance or
allegations of sexual assault by an alleged perpetrator of such abuse who is
also the perpetrator of the abuse that is the basis for a claim pursuant to this
subdivision.
Defendants’ argument is conclusory: defendants offer no discussion,
analysis, or authority to support their position. We do not find it persuasive,
because nothing in the language of the statute requires that the alleged cover
up involve a previous instance of sexual assault by the same individual who
later assaulted the plaintiff. The statutory language requires only that the
plaintiff allege a cover up of a previous instance or allegations of sexual
assault by “an alleged perpetrator of such abuse.” (§ 340.16(e)(2)(C), italics
added.) Defendants’ interpretation would require adding words to the
statute, which we will not do. 16 (California Cannabis Coalition v. City of
Upland (2017) 3 Cal.5th 924, 939; see § 1858 [in construing a statute the role
of the court “is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or omit
what has been inserted”].)
In any event, it is not clear that defendants’ position as to the meaning
of section 340.16(e)(2)(C) need be reached. It may be that each plaintiff has
alleged, or can allege, that the entity who is allegedly liable to her engaged in
16 Neither the plaintiffs nor the defendants claim that the statutory
language is ambiguous, and we do not find it ambiguous. We granted
plaintiffs’ request for judicial notice of certain portions of the legislative
history (Assem. Bill No. 2777 (2021-2022 Reg. Sess.), as filed with the
Secretary of State, as well as Assem. Floor and Sen. Floor Analyses of Assem.
Bill No. 2777, dated Aug. 11, 2022). We find nothing in those documents that
suggests the Legislature intended section 340.16(e) to require a plaintiff to
allege that defendants sought to cover up a prior assault committed by the
same perpetrator who later allegedly assaulted the plaintiff.
15
a cover up of a previous incident of sexual abuse by her alleged assailant. In
that case, defendants’ argument about the interpretation of the statute will
be moot.
DISPOSITION
The judgments are reversed. The matters are remanded to the trial
court for further proceedings consistent with this opinion. The parties shall
bear their own costs on appeal.
16
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A163543, Doe v. CFR Enterprises, Inc.; Doe v. Desert Ventures South, LLC;
Doe v. RME Clinics Inc.
17
Filed 7/27/23 after nonpublished opinion filed 6/29/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JANE DOE #21 (S.H.) et al.,
Plaintiffs and Appellants,
A163543
v.
CFR ENTERPRISES, INC., et al., (San Mateo County
Super. Ct. No. 19CIV00392)
Defendants and Respondents.
JANE DOE #4 (D.T.),
Plaintiff and Appellant,
(San Mateo County
v. Super. Ct. No. 19CIV04095)
DESERT VENTURES SOUTH,
LLC,
Defendant and Respondent.
JANE DOE #9 (J.C.) et al.,
Plaintiffs and Appellants,
(San Mateo County
v. Super. Ct. No. 19CIV05035)
RME CLINICS, INC., et al., ORDER GRANTING
PUBLICATION
Defendants and Respondents.
BY THE COURT:
The opinion in the above-entitled matter filed on June 29, 2023, was
not certified for publication in the Official Reports. For good cause and
1
pursuant to California Rules of Court, rule 8.1105, it now appears that the
opinion should be published in the Official Reports, and it is so ordered.
Dated: _______________________ ________________________________
Stewart, P.J.
A163543, Doe et al. v. CFR Enterprises, Inc., et al., Desert Ventures South,
LLC, RME Clinics, Inc., et al.
2
Court: San Mateo County Superior Court
Trial Judge: Hon. Marie S. Weiner
Thompson Law Offices, Robert William Thompson; Law Office of Valerie T.
McGinty, Valerie Tallant McGinty; Laffey, Bucci & Kent, Brian T. Kent,
Stewart Ryan; ADZ Law, Jessica A. Dayton, for Plaintiffs and Appellants
Greines, Martin, Stein & Richland, Laurie Hepler, Jeffrey Gurrola, for
Defendants and Respondents Massage Envy Franchising, LLC and ME SPE
Franchising LLC
Stone & Associates, Colette F. Stone, for Defendant and Respondent OC Spa
Group, Inc.
CMBG3 Law, W. Joseph Gunter, Rebecca A. Bellow, Jonathan Sayre, for
Defendant and Respondent Eight Hands Four Hearts, Inc.
Chapman Glucksman Dean & Roeb, Gregory K. Sabo, Chelsea L. Zwart, for
Defendant and Respondent John Choi
Gordon Rees Scully Mansukhani, David A. Serrano, Tara Santosuosso, for
Defendant and Respondent Hau’Oli Ohana Oi’, LLC
Bremer, Whyte, Brown & O’Meara, Eileen J. Gaisford for Defendants and
Respondents Coastal Massage Channel Islands Harbor LLC, RME Clinics
Inc., WMC Clinic Development and Marina Clinic Development, Inc.
A163543, Doe et al. v. CFR Enterprises, Inc., et al., Desert Ventures South,
LLC, RME Clinics, Inc., et al.
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Lewis Brisbois Bisgaard & Smith, Christopher J. Nevis, Steffanie A. Malla,
Jeffrey A. Miller, for Defendants and Respondents Coastal Massage Ventura
LLC and CFR Enterprises, Inc.
Perry, Johnson, Anderson, Miller & Moskowitz, David F. Beach, Oscar A.
Pardo, Daphne A. Beletsis, for Defendants and Respondents Desert Ventures
South, LLC and Jackal Nandan, LLC dba Massage Envy Dana Point
A163543, Doe et al. v. CFR Enterprises, Inc., et al., Desert Ventures South,
LLC, RME Clinics, Inc., et al.
4