Judge: Cynthia A Freeland, Case: 37-2023-00028660-CU-NP-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00028660-CU-NP-NC J.B. VS RADY CHILDREN'S HOSPITAL-SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/30/2023

Defendant County of San Diego ('Defendant')'s demurrer to Plaintiff J.B. ('Plaintiff')'s First Amended Complaint (the 'FAC') is sustained.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

In this case, the FAC alleges four causes of action against Defendant: (1) negligence; (2) negligent hiring, retention, and supervision of an unfit employee; (3) negligent supervision of a minor; and (4) negligent failure to warn, train, or educate. Defendant's demurrer is not explicitly directed at any individual cause of action; rather, Defendant has demurred to the entire FAC based on various purported deficiencies permeating the entire pleading. As a result, the court will address the individual bases for the demurrer in turn.

First, Defendant's argument that the FAC fails to sufficiently identify a statutory basis from which Defendant may be held liable is well taken. California Government Code ('CGC') § 815(a) provides that '[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' Cal. Gov't Code § 815(a). CGC § 815 'abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.' Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409 (emphasis in original). '[S]ince all California governmental tort liability flows from the California Government Claims Act, the plaintiff must plead facts sufficient to show his or her cause of action lies outside the breadth of any applicable statutory immunity. He or she must plead with particularity, every fact essential to the existence of statutory liability.' City of Los Angeles v. Sup. Ct. (2021) 62 Cal. App. 5th 129, 148.

In this case, the court agrees with Defendant that the FAC, as presently pled, fails to identify a statutory Calendar No.: Event ID:  TENTATIVE RULINGS

3059850 CASE NUMBER: CASE TITLE:  J.B. VS RADY CHILDREN'S HOSPITAL-SAN DIEGO [IMAGED]  37-2023-00028660-CU-NP-NC basis from which Defendant may be held liable. Plaintiff has brought this action as a survivor of childhood sexual assault under California Code of Civil Procedure ('CCP') § 340.1. See FAC, ¶¶ 1-2.

The FAC alleges that in July 1999, Plaintiff, who was 15 years old at the time, was admitted to Rady Children's Hospital and Health Center's Emergency Department ('Rady') following a suicide attempt.

Ibid., ¶¶ 3, 14. Rady subsequently transferred Plaintiff to Defendant's Emergency Screening Unit ('ESU'). Ibid. Following her transfer to the ESU, Defendant transferred Plaintiff to an in-patient Child and Adolescent Psychiatry Services ('CAPS') program overseen or operated by Defendant. Ibid., ¶¶ 3, 15.

During Plaintiff's admission to the CAPS program, she was roommates with another minor named Sylvia. Ibid., ¶ 16. Plaintiff subsequently discovered that a staff member of the CAPS program was sexually abusing Sylvia. Ibid., ¶¶ 17-18. When the staff member found out that Plaintiff was aware of Sylvia's abuse, he backed Plaintiff into a corner, fondled her, and forced her to perform oral copulation on him. The staff member repeated this abuse on three later occasions. Ibid., ¶ 19. The FAC alleges that Defendant is liable under various negligence theories for the alleged abuse committed by its employee in the course and scope of his employment while Plaintiff was under Defendant's custody, care, and supervision.

The foregoing is insufficient to establish a statutory basis for liability against Defendant. Plaintiff, in her opposition to the demurrer, points to ¶¶ 24-53 of the FAC in support of her position that Defendant owed her various duties, and then lists certain statutory exemptions that might apply to Defendant. However, no such statutes have been identified in the FAC. It is insufficient to merely allege that Defendant breached various duties. Indeed, the law is clear that public entities such as Defendant cannot be found liable for non-statutory, common law negligence. See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, 1183; Gibson v. Pasadena (1978) 83 Cal. App. 3d 651, 655. Moreover, CCP § 340.1 simply states that there is no statute of limitations for actions to recover damages suffered as a result of childhood sexual assault and that, in relevant part, a plaintiff need not comply with the governmental claims presentation requirements before bringing such an action against a public entity.

CCP § 340.1 does not, by itself, supply the statutory basis for holding a public entity liable. Nor has Plaintiff provided any authority for the proposition that CCP § 340.1 supersedes the requirements set forth in the California Government Claims Act. Consequently, the court must sustain the demurrer on those grounds.

Second, Defendant's contention that it cannot, as a matter, be vicariously liable for the sexual abuse committed by the CAPS staff member is not well taken. CGC § 815.2 provides that: (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

Cal. Gov't Code §§ 815.2(a), (b). CGC § 815.4 likewise provides that: A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.

Cal. Gov't Code § 815.4.

In this case, Defendant contends that it cannot be held vicariously liable for sexual abuse committed by a CAPS staff member because such conduct would not be within the course and scope of his employment. However, as Defendant implicitly, if not explicitly, concedes in its reply brief, no such categorical exclusion applies under California law. To be sure, some courts have found public entities to Calendar No.: Event ID:  TENTATIVE RULINGS

3059850 CASE NUMBER: CASE TITLE:  J.B. VS RADY CHILDREN'S HOSPITAL-SAN DIEGO [IMAGED]  37-2023-00028660-CU-NP-NC not be vicariously liable for the sexual misconduct of an employee toward a third party. See, e.g., Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133 (school district not liable for janitor's rape of a student); Rita M. v. Roman Catholic Archbishop (1986) 187 Cal. App. 3d 1453 (Roman Catholic archbishop not liable for seduction of parishioner by priests). Other courts have, in fact, found such vicarious liability. See, e.g., Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 (city found vicariously liable for rape committed by on-duty police officer against woman whom the officer had detained). These cases turn on the fact-intensive inquiry of whether the employee or independent contractor was acting within the course and scope of his or her employment with the public entity at the time of the sexual assault. See, e.g., Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992. Such an inquiry is not suitable for resolution by way of the pending demurrer. See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.'). That being said, it is sufficient, for pleading purposes, that the Complaint has alleged that the CAPS staff member gained access to Plaintiff and sexually abused her through the staff member's employment-related activities using the tasks, instrumentalities, and authority vested in him by way of his employment. See FAC, ¶¶ 30, 59, 80, 95, 106. Consequently, the court must overrule the demurrer on this issue.

Third, Defendant's assertion that it cannot be liable under a ratification theory is unavailing for purposes of the pending demurrer. Ratification is an alternative to respondeat superior for an employer's liability for its employee's misconduct. See C.R. Tenet Healthcare Corp. (2009) 169 Cal. App. 4th 1094, 1110.

'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.]' Thomas v. Regents of University of California (2023) 97 Cal. App. 5th 587, 648. In general, whether an employer has ratified the misconduct of its employee is a question of fact. See Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85, 109. In this case, the FAC alleges at multiple points that Defendant failed to take action to investigate the CAPS staff member's sexual misconduct, reasonably supervise the staff member, or prevent the staff member's sexual abuse of patients, or otherwise ratified the staff member's misconduct. See FAC, ¶¶ 10, 20, 42-44, 52. Whether Defendant did, in fact, ratify the staff member's misconduct is a factual issue that cannot be resolved by way of the pending demurrer.

Consequently, the court must overrule the demurrer on this issue.

Fourth, the court agrees with Defendant that the FAC does not, in certain respects, plead Plaintiff's negligence theories with the requisite particularity. As set forth above, Plaintiff must plead facts sufficient to show that her causes of action lie outside the breadth of any applicable statutory immunity. She must plead with particularity every fact essential to the existence of statutory liability. The court finds that she has not done so. For instance, as explained above, Plaintiff has failed to identify a statutory basis for liability against Defendant and, therefore, has failed to identify the specific factual allegations supporting the alleged statutory basis for liability. Consequently, the court must sustain the demurrer on this issue.

Fifth, the court finds that Defendant has not demonstrated that it is immune from liability under CGC § 820.2's 'discretionary act' immunity. CGC § 820.2 provides that '[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.' Cal. Gov't Code § 820.2. The Second District Court of Appeal has stated: [T]he Supreme court held that the mere existence of discretionary choice in the act to be performed does not bring the act within the reach of section 820.2, as virtually all acts a governmental employee is called upon to perform involve some degree of choice. (69 Cal.2d at 788-790, 73 Cal.Rptr. 240, 447 P.2d 352.) Rather, the high court held, immunity should attach only to those decisions which involve 'basic policy' choices which constitute an exercise of discretion by a coordinate branch of government and therefore should ' 'remain beyond the range of judicial inquiry.' ' (Id. at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352, quoting 3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484.) Scott v. County of Los Angeles (1994) 27 Cal. App. 4th 125, 141. 'Such 'areas of quasi-legislative policy-making ... are sufficiently sensitive' to call for judicial abstention from interference that 'might even Calendar No.: Event ID:  TENTATIVE RULINGS

3059850 CASE NUMBER: CASE TITLE:  J.B. VS RADY CHILDREN'S HOSPITAL-SAN DIEGO [IMAGED]  37-2023-00028660-CU-NP-NC in the first instance affect the coordinate body's decision-making process' . . . On the other hand . . .

there is no basis for immunizing lower-level, or 'ministerial,' decisions that merely implement a basic policy already formulated. Moreover, . . . immunity applies only to deliberate and considered policy decisions, in which a '[conscious] balancing [of] risks and advantages ... took place. The fact that an employee normally engages in 'discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision. [Citations.]'' Conway v. County of Tuolumne (2014) 231 Cal. App. 4th 1005, 1014-1015 (citing Johnson v. State of California (1968) 69 Cal. 2d 782) (emphasis in original).

In this case, Defendant has not demonstrated that its employee(s)'s decision not to investigate the CAPS staff member's sexual misconduct was a deliberate and considered policy decision undertaken after engaging in a conscious balancing of the risks and advantages of other policy objectives.

Consequently, the court must overrule the demurrer on this issue.

Finally, Defendant's request that the court dismiss Doe defendants is denied. CCP § 474 provides, in relevant part, that '[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]' Cal. Code Civ. P. § 474. 'Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a 'Doe'), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it.' McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal. App. 4th 368, 371.

In this case, the FAC alleges, in pertinent part, that: 8. The true names and capacities of Defendant DOES 2 through 50 ('DOES 2-50') are individuals and entities of whose true name, form, and current whereabouts are presently unknown to Plaintiff, but who, at the time of the conduct alleged herein, were employed by Defendant COUNTY OF SAN DIEGO, contracted with COUNTY OF SAN DIEGO, and/or otherwise owed a duty to Plaintiff and/or had a duty to control the CAPS program staff members. Plaintiff therefore sues said Defendants by such fictitious names pursuant to C.C.P. § 474. Plaintiff will amend this Complaint to show their true names and capacities when ascertained. Plaintiff is informed and believes, and thereon alleges, that each Defendant designated herein as a DOE defendant is legally responsible in some manner for the events and happenings alleged herein and in such manner proximately caused damages to Plaintiff as hereinafter alleged.

9. Defendants DOES 2-50 were at all times acting within the course and scope of their agency or employment under Defendant COUNTY OF SAN DIEGO, and with the full knowledge, consult, authority, ratification, and/or permission of each of the remaining defendants.

See FAC, ¶¶ 8-9.

The foregoing complies with the prescriptions of CCP § 474. To the extent that Defendant believes that the Complaint fails to allege wrongdoing by other individual(s) or entity(ies), such issues can be resolved through the discovery process. Consequently, the court must overrule the demurrer on this issue.

Accordingly, the court sustains the demurrer as set forth herein with leave to amend as Plaintiff has demonstrated a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967. Plaintiff shall file and serve a second amended complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 12, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 12, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this Calendar No.: Event ID:  TENTATIVE RULINGS

3059850 CASE NUMBER: CASE TITLE:  J.B. VS RADY CHILDREN'S HOSPITAL-SAN DIEGO [IMAGED]  37-2023-00028660-CU-NP-NC notice is not required.

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