Judge: Alison Mackenzie, Case: 22SMCV02509, Date: 2023-05-24 Tentative Ruling
Case Number: 22SMCV02509 Hearing Date: May 24, 2023 Dept: 207
Background
Plaintiff J.M. brings this action against several Doe
entities and individuals. Plaintiff alleges he was sexually assaulted by Doe 3
when he was a minor child. Doe 1 (“Defendant”) is a religious organization
which is alleged to have employed Doe 3 at the time the alleged sexual assault
occurred. Plaintiff’s Complaint alleges one cause of action against Defendant
for negligent hiring, supervision, and retention. Defendant now brings a
demurrer to this cause of action, arguing it fails to state sufficient facts to
constitute a cause of action against it and is barred by the applicable statute
of limitations. Plaintiff opposes the demurrer.
Legal
Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must
be apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the
pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
The general rule is that the plaintiff need only allege
ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles
(2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter
of pleading, even as against a special demurrer, is that his complaint set
forth the essential facts of the case with reasonable precision and with
sufficient particularity to acquaint the defendant with the nature, source and
extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be
sustained where the pleading is so unintelligible that a defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Analysis
1. Meet
& Confer
The Court
finds Defendant has complied with the meet and confer requirements set forth
under Code of Civil Procedure § 430.41. (Walters Decl. at ¶6.)
2. Third
Cause of Action for Negligent Hiring, Supervision, and Retention
Defendant’s demurrer is directed
at Plaintiff’s third cause of action for negligent hiring, supervision, and
retention. The elements of a cause of action for negligent hiring, retention,
or supervision are: (1) the employer’s hiring, retaining, or supervising an
employee; (2) the employee was incompetent or unfit; (3) the employer had
reason to believe undue risk of harm would exist because of the employment; and
(4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8
Cal.App.4th 828, 836-837.) Code Civ. Proc. § 340.1(c) provides that actions for
recovery of damages suffered as a result of childhood sexual assault “shall not
be commenced on or after the plaintiff’s 40th birthday unless the person or
entity knew or had reason to know, or was otherwise on notice, of any
misconduct that creates a risk of childhood sexual assault by an employee,
volunteer, representative, or agent, or the person or entity failed to take
reasonable steps or to implement reasonable safeguards to avoid acts of
childhood sexual assault.”
Courts have defined the knowledge
sufficient to satisfy the notice requirement under section 340.1(c):
In Doe v.
City of Los Angeles (2007) 42 Cal.4th 531 [67 Cal. Rptr. 3d 330, 169 P.3d 559]
(Doe), our Supreme Court explained this notice requirement. First, the entity
being sued for acts of molestation by its agent or employee must have had knowledge
or notice of the perpetrator’s unlawful sexual conduct. Second,
the term “knew” in the statute means actual knowledge and the term “reason to know”
refers to a type of constructive knowledge. Third, this does not mean
“inquiry notice,” i.e., notice of facts that would put the entity on notice of a
duty to inquire and thereby learn that molestation had occurred. Fourth, reason
to know means that the entity defendant has acquired actual knowledge of facts from
which a reasonable person of ordinary intelligence, or one of the superior intelligence
of the actor, would either infer, or consider highly probable, that the agent had
previously committed an act of unlawful sexual conduct with the minor. (42 Cal.4th
at pp. 545–549.)
(Santillan v. Roman Catholic Bishop
of Fresno (2012) 202 Cal.App.4th 708, 717-718.)
Defendant argues the Complaint
merely alleges that Defendant knew or should have known of Doe 3’s unlawful
sexual conduct without providing any supporting allegations that show how or
why Defendant knew or should have known of it. Plaintiff argues he has adequately
pled all the elements of his third cause of action, pointing specifically to
paragraphs 6-10, 17, and 23-42 of the Complaint as providing sufficient factual
allegations. While these paragraphs contain allegations regarding Doe 3’s
molestation of Plaintiff, only paragraphs 32-35 concern Defendant’s alleged
notice of knowledge of Doe 3’s actions.
Paragraph 32 states “Plaintiff is
informed, believes, and thereupon alleges that other employees, staff,
administrators, agents, Elders, Ministerial Servants, and Overseers knew or
should have known of DOE 3’s inappropriate behavior and dangerous propensity
towards minor children, including Plaintiff.”
Paragraph 33 alleges “Prior to,
during, and after DOE 3’s sexual assault and/or sexual abuse, and molestation
of Plaintiff, Entity Defendants through their agents, representative, servants,
employees, and/or volunteers knew or should have known, reasonably suspected,
and/or were otherwise on notice, that DOE 3 conduct and relationship with young
children, including Plaintiff, was inappropriate, unlawful, wrongful, and/or
otherwise created a risk of childhood sexual assault.”
Paragraph 34 claims Defendant had
“confirmed actual knowledge of DOE 3’s sexual assault and/or sexual abuse, and
molestation of Plaintiff.”
Paragraph 35 states “Plaintiff is
informed and believes, and thereupon alleges that Entity Defendants’ Elders and
administrators confirmed that Plaintiff had, and/or continued to be, sexually
abused and/or sexually assaulted, and molested by DOE 3, yet despite this
knowledge, refused and/or failed to report the child abuse and/or assault to
law enforcement and/or other appropriate agency as required.”
The Court agrees with Defendant
that each of these paragraphs only asserts in conclusory terms that Defendant
knew or should have known of Doe 3’s unlawful or inappropriate conduct with
children or that he otherwise posed a risk of sexual assault to children. Several
of these allegations are made upon information and belief. “Plaintiff may
allege on information and belief any matters that are not within his personal
knowledge, if he has information leading him to believe that the allegations
are true.” (Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792.) The
Complaint does not allege the information upon which these statements are made.
Plaintiff argues he has satisfied
this notice requirement by alleging Doe 3 engaged in wrongful and inappropriate
sexual misconduct with minors. (Opposition at 6-7.) He states that under Santillan,
“Circumstantial evidence such as a single event of seeing a minor enter
a priest’s room, hearing unusual sounds, and seeing the priest and minor
pulling up their pants after leaving the room was sufficient to put the church
on notice.” (Id. at 6.) Plaintiff points to allegations in the Complaint
that Doe 3 openly groomed and talked to minors about inappropriate material
during youth bible study classes. However, the Complaint does not allege that
any other employee of Defendant ever witnessed this behavior. The example Plaintiff
cites from Santillan involved a hypothetical scenario the Court described
where another priest witnessed the priest alleged to be a molester and child
leave the priest’s room. The Complaint does not allege any employee of
Defendant was present for or otherwise witnessed Doe 3’s alleged conduct during
the youth bible study classes.
“[T]he statute does not directly impute
knowledge to the nonperpetrator defendant based on what that defendant should have
noticed, but requires an assessment of the facts that the defendant did know in
order to determine whether a reasonable person would have inferred the unlawful
conduct.” (Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th
748, 774.) “Under Doe, notice is measured by the facts known to the defendant—either
knowledge of the fact that prior unlawful conduct had occurred, or knowledge of
facts from which such prior unlawful conduct should be inferred—not by facts which
the defendant should have discovered or should have noticed.” (Id. at 775.)
The Court finds Plaintiff has failed to plead sufficient facts showing
Defendant knew or should have known that Doe 3 posed a risk to children.
Defendant also argues Plaintiff has failed to sufficiently
plead the existence of a special relationship between Plaintiff and Defendant
such as to give rise to a duty of care. “A special
relationship exists when ‘the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some control over the
plaintiff's welfare. [Citation.]’” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1129 [quoting
Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499].)
In his opposition, Plaintiff
argues “Doe 1 sat in a special relationship with Plaintiff, a minor member of
its congregation due to its overseeing of minor members at Doe 1 mandated
activities and by appointing Doe 3 as the youth bible studies leader. Doe 1
further mandated that its minor members, including Plaintiff, attend such youth
bible studies at Doe 3’s home without supervision or any reasonable safeguards.”
(Opposition at 8.) However, these factual allegations do not appear in the
Complaint. Instead, Plaintiff’s Complaint alleges Defendant supervised and
exercised control over Doe 3 and appointed him to the position of Elder within
the organization. (Complaint at ¶¶7, 15.) It further alleges Doe 3 was the
“employee, agent, servant, member, and/or volunteer of Defendant’s
organization. (Id. at ¶17.) The Complaint then alleges Doe 3 molested
Plaintiff during church activities, without providing any allegations showing
these activities were mandated by Defendant. In short, the Complaint does not
allege facts showing Defendant exercised control over Plaintiff’s welfare.
A special relationship may also
arise where the circumstances show the alleged harm was reasonably foreseeable
to the defendant. For example, in Margaret W. v. Kelley R. (2006) 139
Cal.App.4th 141, plaintiff was allegedly raped by several boys after leaving the
home of one of the assailant’s parents. The Court held that the defendant, who
was the mother of one of the assailants, owed no duty to prevent the criminal
conduct as there were no facts that defendant had prior knowledge of the
assailants’ criminal propensities. The Court held that the rape was not
foreseeable and thus defendant did not have a duty to take steps to prevent the
rape. Similarly, in Romero v. Superior Court (2001) 89 Cal.App.4th 1068,
the plaintiff alleged that the parents of the minor boy who molested plaintiff
was liable based on negligent supervision for failing to properly supervise the
assailant. The Court held defendants owed no duty of care to take measures to
supervise the assailant or control the conduct of assailant as there was no
evidence they knew the assailant had a propensity to sexually assault the
plaintiff. As set forth above, Plaintiff’s Complaint similarly fails to allege
facts showing Defendant knew or should have known that Doe 3 posed a danger to
Plaintiff and other children. The Court finds Plaintiff has failed to
sufficiently plead facts showing Defendant owed him a duty of care to prevent
or warn of Doe 3’s sexual misconduct.
Defendant’s demurrer to the third
cause of action is SUSTAINED. As these issues can be cured by providing
additional factual allegations and Plaintiff has requested leave to amend, the
Court will sustain the demurrer with leave to amend.
Conclusion
Defendant’s demurrer to Plaintiff’s third cause of action
for negligent hiring and supervision is SUSTAINED with 30-days’ leave to amend.