Judge David B. Gelfound, Case Number: 20STCV44178, Date: 2024-03-05 Tentative Ruling

Judge: David B. Gelfound, Case: 20STCV44178, Date: 2024-03-05 Tentative Ruling

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Case Number: 20STCV44178 Hearing Date: March 5, 2024 Dept: F49

Dept. F49

Date: 3/5/24

Case Name: T.M. v. St. Nicholas Greek Orthodox Church, et al.

Case # 20STCV44178

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MARCH 5, 2024

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES

Los Angeles Superior Court Case # 20STCV44178

Motion filed: 12/7/23

MOVING PARTY: Greek Orthodox Archdiocese of America (the “Archdiocese” or the “moving Defendant”)

RESPONDING PARTY: Plaintiff Timothy Mullen (“Plaintiff”)

NOTICE: ok

RELIEF REQUESTED: An order granting the moving Defendant’s Motion for Summary Judgment, or in the alternative, granting Summary Adjudication as to the Third and Sixth Causes of Action.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises out of Plaintiff’s claim that in 1982, he was sexually assaulted by Father Stanley Adamakis (“Adamakis”) (now deceased), a Greek Orthodox priest in Northridge, CA, when Plaintiff was approximately 15 years old. (SAC 2:8–9.)

On November 18, 2020, Plaintiff filed this action. Subsequently, following a stipulation and order, Plaintiff filed the operative Second Amended Complaint (“SAC”) on April 1, 2021, alleging the following causes of action: (1) Negligence (Against Saint Nicholas Greek Orthodox Church); (2) Negligence (Against Greek Orthodox Metropolis of San Francisco); (3) Negligence (Against Greek Orthodox Archdiocese of America); (4) Negligent Hiring, Retention and Supervision (Against Saint Nicholas Greek Orthodox Church); (5) Negligent Hiring, Retention and Supervision (Against Greek Orthodox Metropolis of San Francisco) and (6) Negligent Hiring, Retention and Supervision (Against Greek Orthodox Archdiocese of America).

On July 29, 2021, Defendants Saint Nicholas Greek Orthodox Church (“St. Nicholas”), Greek Orthodox Metropolis of San Francisco (the “Metropolis”), and the Archdiocese (collectively, “Defendants”) filed their Answer to the SAC.

On December 7, 2023, the Archdiocese filed the instant Motion for Summary Judgment (the “Motion”).

On February 20, 2024, Plaintiff opposed the Motion. Subsequently, on February 29, 2024, the Archdiocese filed its Reply.

ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843(Aguilar).) In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Thus, summary judgment is granted when, after the court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475), or where the opposition is weak. (Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)

A defendant has satisfied its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. (Code Civ. Proc. § 437c, subd. (o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.) Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (Code of Civ. Proc., § 437c, subd. (o)(2).)

A. Casuse of Action - Negligence

A plaintiff suing for negligence must prove: “duty, breach, causation, and damages.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).) Whether a duty of care existed is a question of law, and thus “particularly amenable to resolution by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.) Absent such a duty, there is no liability, no matter how easily the injury might have been prevented. (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396.)

Generally, one owes no duty to control or warn of the conduct of another, but such a duty may arise if a special relationship exists with either the victim or the person who created the harm. (Brown v. USA Taekwondo, (2021) 11 Cal.5th 204, 215 (USA Taekwondo).) A special relationship between the defendant and the victim is one that “gives the victim a right to expect” protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that “entails an ability to control [the third party's] conduct.” (Id., at 216; Regents, supra, 4 Cal.5th at 619.) “Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect.” (Regents, supra, 4 Cal.5th at 619.)

“To reach the conclusion that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that the defendant is in a position to protect against and should be expected to protect against.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 78 (Barenborg), citing Donaldson v. Young Women’s Christian Assn. of Duluth (Minn. 1995) 539 N.W.2d 789, 792.) Thus, the defendant's ability to control the person who caused the harm must be such that “if exercised, [it] would meaningfully reduce the risk of the harm that actually occurred.” (Barenborg, at 78.)

1. Special Relationship Between the Archdiocese and Adamakis

Here, the Archdiocese argues that no special relationship exists, as there was neither an employment nor an agency relationship between it and the alleged tortfeasor, Adamakis. (Mot., at 10, 13.)

a.) Employment Relationship

To support the assertion that there was no employment relationship, the Archdiocese has presented Adamakis’s employment records, which confirm that Adamakis was not employed by the Archdiocese during the period of alleged abuse (1982 through 1985) nor was assigned by the Archdiocese to any parish after 1979. (Def’s SOE, Ex. “3.”) Moreover, the Archdiocese introduces a letter from Adamakis, dated March 31, 1981, indicating that he was secularly employed in California, rather than by any of Defendants. (Mot., at 10-11, Def.’s SOE, Ex. “4.”)

“[Under the] summary judgment statute, a moving defendant needs not to support his motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff's case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482 (Leslie).) (Emphasis in original.)

Here, the Archdiocese presented affirmative evidence, specifically Adamakis’s employment records, to demonstrate the absence of an employment relationship. Mirroring the reasoning of the Leslie court, the Court concludes that the Archdiocese has satisfied its burden on this issue, and the burden shifts to Plaintiff to present evidence that there is a triable issue regarding the employment relationship between Adamakis and the Archdiocese, or between him and St. Nicholas, which was allegedly under the Archdiocese’s control.

In response, Plaintiff’s argument for an employment relationship begins with a definition of an employee. Plaintiff first cites Labor Code section 2750, claiming that an employee is one “engage[d] ... to do something for the benefit of the employer or a third person.” (Opp’n., at 11.) Furthermore, Plaintiff relies on the “control-of-work” test from common law, as adopted by the Supreme Court in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (S.G. Borello).

The Court acknowledges that the “control-of-work” test, as outlined in S.G. Borello, is utilized to ascertain whether a person rendering service to another is classified as an “employee” or an “independent contractor.” (S.G. Borello, supra, 48 Cal.3d at 350.) This classification is important in finding the vicarious liability of an employer. However, Plaintiff appears to have overlooked a more fundamental definition of “employee” in the S.G. Borello decision. “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire,’ but do not include independent contractors.” (Id., at 349.) This definition underscores the necessity of “a contract of hire,” aligning with the Labor Code section referenced by Plaintiff. The complete text of Labor Code section 2750 states, “The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person.” (Underlines added.)

Here, Adamakis’s employment records, which were uncontested by Plaintiff, reveal the absence of any employment contract, paystub, or Human Resources records that could suggest an employment relationship between Adamakis and any Defendants.

The Court underlines the standard for Plaintiff to demonstrate the existence of a triable issue of fact when opposing a motion for summary judgment: “the plaintiff must produce substantial evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing.... [R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

In response, Plaintiff disputes Defendants’ claim that Adamakis was not an employee nor agent of the Archdiocese (Opp’n., at 4) by relying on deposition excerpts from Plaintiff himself, who witnessed Adamakis performing the liturgy services and acting as a priest before the congregation at Saint Nicholas Greek Orthodox Church. (Ibid., Pl.’s SOE, Ex. “1,” at 139:25, 140:1-25, 141:1-25, 142:1-6.) To support this position, Plaintiff further references testimony from Candace Andreno (Andreo Dep. at 25:15-26:12), a parishioner of St. Nicholas between approximately 1977 and 1995.

Nonetheless, the Court concludes that Candace Andreno’s (“Andreno”) deposition, even assuming its contents to be true, does not imply that Adamakis’s involvement in church activities necessarily indicates his employment by St. Nicholas.

Q: ... Can you explain that?

A: Yes, absolutely... I remember, I think it was the first festival I ever saw, he [Adamakis] tried to say a prayer with all of us before we were going to dance[.] ... And I remembered this actually the other day, my grandmother at the festival going up to him and saying, ... “What are you doing here around the these kids? You need to go away you’re not even a priest here.”

(Andreno Dep., at 25:19-26:12.) (Underlines added.)

Andreno’s testimony, as cited by Plaintiff, indicates Adamakis’s involvement in specific church activities, but it falls short of substantiating an employment relationship. This leaves Plaintiff’s own deposition testimony as the sole piece of evidence contesting the lack of an employment relationship.

Considering the unequivocal employment records and Adamakis's own admission of secular employment outside the church, the Court concludes that Plaintiff’s evidence does not meet the threshold of “substantial evidence sufficient to establish a triable issue of material fact” as required to counter the merits of Defendant’s showing.

Therefore, the Court finds that there is no triable issue regarding the absence of an employment relationship between Adamakis and St. Nicholas, leading to the conclusion that the Motion for Summary Judgment on this point is warranted.

b.) Agency Relationship

“An agent is one who represents another, called the principal, in dealings with third persons.” (Civ. Code, § 2295.) “In California agency is either actual or ostensible. (Civ. Code, § 2298.) An agency is actual when the agent is really employed by the principal. (Civ. Code, § 2299.) An agency is ostensible when a principal causes a third person to believe another to be his agent, who is really not employed by him. (Civ. Code, § 2300.)

As the Court has concluded that there are no triable issues as to the employment relationship between Adamakis and any of the Defendants, the Court first dismisses the issue of actual agency and proceeds to examine the potential existence of ostensible agency. Although the presence of an agency relationship is typically a question of fact, it “becomes a question of law when the facts can be viewed in only one way.” (Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32 Cal.3d 649, 658.)

“‘It is elementary that there are three requirements necessary before recovery may be had against a principal for the act of an ostensible agent. The person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one; such belief must be generated by some act or neglect of the principal sought to be charged; and the third person in relying on the agent's apparent authority must not be guilty of negligence. (Citation.)’” (Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 400.) (Underlines added.) An Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438, fn. 11.) (Underlines added.)

Here, the undisputed evidence does not establish any triable issue of fact suggesting that the alleged principal – any of the Defendants – made statements or engaged in any conduct that would tend to generate a reasonable belief in Plaintiff. Although Plaintiff argues that Adamakis was an agent of the Archdioceses because he told Plaintiff that he was a priest at St. Nicholas and took Plaintiff to St. Nicholas approximately 50-100 times, and that Adamakis had keys to the church (Opp’n., at 2), the mere fact that Adamakis presented himself as an agent of St. Nicholas does not establish such relationship. Furthermore, for Plaintiff to establish an agency relationship, there must be a reasonable belief in the purported agent’s authority. Here, it is evident that any alleged sexual abuse by Adamakis falls outside the scope of a priest’s authority, and any assertion to the contrary is unreasonable.

Accordingly, the Court concludes that Plaintiff has failed to establish any triable issue of facts supporting an ostensible agency relationship between Adamakis and any Defendants.

2. Special Relationship Between the Archdiocese and Plaintiff

“No special relationship between a church and its minor parishioners unless the church had ‘actual custody or control’ of the child, such as where the child attended a church school.” (Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 672, citing Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1567.)

Here, the Archdiocese asserts that there is no special relationship between it and Plaintiff, as Plaintiff was never under the care of the Archdiocese. (Mot., at 15.) It contends that without such a special relationship, Plaintiff fails to establish the essential element of the cause of action that the Archdiocese owes a duty to Plaintiff. (Id., at 6.)

The Court notes that it is undisputed that Plaintiff never enrolled in any of the Archdiocese’s youth programs, or as a student in St. Nicholas school. (UMF No. 29, Ex. “11.”) Moreover, Plaintiff admits he never attended any Sunday School program in any of Defendants’ churches. (UMF No. 25, Def.’s SOE, Ex. “11.”) Furthermore, Plaintiff admits he never participated in the Greek Orthodox Youth Association. (UMF No. 27, Def.’s SOE, Ex. “11.”)

Based on this, the Court concludes that there is no evidence of a special relationship between St. Nicholas and Plaintiff as St. Nicholas, or the Archdiocese, never had “actual custody or control” over Plaintiff.

Therefore, the Court concludes that St. Nicholas and the Archdiocese do not owe a duty to Plaintiff based on a special relationship between Plaintiff and Defendants.

3. Plaintiff’s Other Argument

Plaintiff contends that the Archdioceses is directly liable for negligence because it had reason to know the foreseeable risk posed by Adamakis to harm others, and despite this knowledge, it only limited his priestly functions while allowing him to maintain his title as a priest and did not prohibit him from attending churches within its jurisdiction (Opp’n., at 14.)

The Court observes that Plaintiff’s argument does not attempt to establish a special relationship. Therefore, the Court explores Plaintiff’s application of an alternative source of duty for the Archdiocese.

The California Supreme Court has addressed a similar application in USA Taekwondo. “Without denying the gravity of the injuries these plaintiffs suffered, nor the broader problem of sexual abuse of minors in organized youth sports and other activities, we decline Brown's invitation to take that step [for finding a duty even if there was no special relationship]. The requirement of an affirmative duty to protect itself embodies a policy judgment of considerable standing: A defendant cannot be held liable in negligence for harms it did not cause unless there are special circumstances — such as a special relationship to the parties — that give the defendant a special obligation to offer protection or assistance. This rule reflects a long-standing balance between several competing interests.” (USA Taekwondo, supra, 11 Cal.5th at 220.)

Given this precedent, the Court concludes that the Archdiocese’s duty must be considered within the context of a special relationship, as set forth in the previous discussion. Consequently, the Court finds Plaintiff’s argument for direct liability under a negligence theory to lack merits.

Accordingly, the Motion for Summary Judgment is GRANTED as to the negligence cause of action.

B. Cause of Action - Negligent Hiring, Retention, and Supervision

To prevail a cause of action for negligent hiring, retention and supervision the plaintiff will be required to prove: (1) the employer’s hiring, retention, or supervision of an employee; (2) the employee is incompetent or unfit; (3) that employer had reason to believe undue risk of harm would exist because of the employment; and (4) that the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) This cause of action is one of direct liability for negligence, not vicarious liability. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) (Underlines added.) (See CACI 426.)

The CACI Jury Instruction No. 426 provides, in relevant part, that:

“To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of employer defendant] hired [name of employee];

2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired /[specify other particular risk]];

...”

(Underlines added.)

As detailed previously, Plaintiff has failed to present sufficient evidence to establish a triable issue of material fact as to Defendant’s affirmative evidence showing an absence of an employment relationship between Adamakis and St. Nicholas, or, the moving Defendant. Consequently, Plaintiff is deemed unable to establish the first and second elements required for a claim of negligent hiring, retention, and supervision, specifically, the absence of proof that Adamakis was hired by any of Defendants.

Therefore, the Motion for Summary Judgment is GRANTED concerning the cause of action for negligent hiring, retention, and supervision against the moving Defendant.

CONCLUSION

Defendant Greek Orthodox Archdiocese of America’s Motion for Summary Judgment is GRANTED as to all causes of action against the moving Defendant.

Moving party is ordered to provide notice of this order.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Dept. F49

Date: 3/5/24

Case Name: T.M. v. St. Nicholas Greek Orthodox Church, et al.

Case # 20STCV44178

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MARCH 5, 2024

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES

Los Angeles Superior Court Case # 20STCV44178

Motion filed: 11/21/23

MOVING PARTY: Defendant Greek Orthodox Metropolis of San Francisco (“Metropolis” or the “moving Defendant”)

RESPONDING PARTY: Plaintiff Timothy Mullen (“Plaintiff”)

NOTICE: ok

RELIEF REQUESTED: An order granting the moving Defendant’s Motion for Summary Judgment, or in the alternative, granting Summary Adjudication as to the Second and Fifth Causes of Action.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On July 29, 2021, Defendants Saint Nicholas Greek Orthodox Church (“St. Nicholas”), the Metropolis, and Greek Orthodox Archdiocese of America (collectively, “Defendants”) filed their Answer to the SAC.

On November 21, 2023, Metropolis filed the instant Motion for Summary Judgment (the “Motion”).

On January 25, 2024, Plaintiff opposed the Motion. Subsequently, on February 2, 2024, Metropolis filed its Reply.

ANALYSIS

A. Judicial Notice

The moving Defendant requests the Court take judicial notice of the following documents: (1) Plaintiff’s SAC, and (2) Defendants’ Answer filed on July 29, 2021.

Evidence Code section 452, subdivision (d) permits the court, in its discretion, to take judicial notice of the records of any court in this state. Upon taking notice of court records, the court accepts as true only that (1) they were filed and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.)

The Court GRANTS Defendants’ request for judicial notice to the extent that aligns with the above rulings.

B. First Casuse of Action - Negligence

1. Special Relationship Between the Metropolis and Adamakis

Here, the Metropolis argues that no special relationship exists, as there was neither an employment relationship between it and the alleged tortfeasor, Adamakis, nor did it have the ability to control Adamakis. (Mot., at 10.)

a). Employment Relationship

To support the assertion that there was no employment relationship, the Metropolis has presented Adamakis’s employment records, which confirm that Adamakis was neither employed by nor assigned to St. Nicholas (Def’s SOE, Ex. “3.”) Moreover, the Metropolis introduces a letter from Adamakis, dated March 31, 1981, indicating that he was secularly employed in California, rather than by Defendant St. Nicholas. (Mot., at 10-11, Def.’s SOE, Ex. “4.”)

Here, the Metropolis presented affirmative evidence, specifically Adamakis’s employment records, to demonstrate the absence of an employment relationship. Mirroring the reasoning of the Leslie court, the Court concludes that the Metropolis has satisfied its burden on this issue, and the burden shifts to Plaintiff to present evidence that there is a triable issue regarding the employment relationship between Adamakis and St. Nicholas, which was allegedly under Metropolis’s control.

In response, Plaintiff disputes that Adamakis was not an employee nor agent of the Metropolis (Opp’n., at 4), relying on deposition excerpts from Plaintiff himself, who witnessed Adamakis performing the liturgy services and acting as a priest before the congregation at Saint Nicholas Greek Orthodox Church. (Ibid., Pl.’s SOE, Ex. “1,” at 139:25, 140:1-25, 141:1-25, 142:1-6.) To support this position, Plaintiff further references testimony from Candace Andreno (Andreo Dep. at 25:15-26:12), a parishioner of St. Nicholas between approximately 1977 and 1995.

Nonetheless, the Court concludes that Candace Andreno’s (“Andreno”) deposition, even assuming tis contents to be true, does not imply that Adamakis’s involvement in church activities necessarily indicates his employment by St. Nicolas.

Q: ... Can you explain that?

A: Yes, absolutely... I remember, I think it was the first festival I ever saw, he tried to say a prayer with all of us before we were going to dance[.] ... And I remembered this actually the other day, my grandmother at the festival going up to him and saying, ... “What are you doing here around the these kids? You need to go away you’re not even a priest here.”

(Andreno Dep., at 25:19-26:12.) (Underlines added.)

b). The Metropolis’s Ability to Control Third-party Adamakis

To establish a duty of care based on a special relationship, the defendant's ability to control the person who caused the harm must be such that if exercised, it would meaningfully reduce the risk of the harm that actually occurred. (Barenborg, supra, 33 Cal.App.5th at 78.) (Underlines added.)

In Zelig v. County of Los Angeles (20002) 27 Cal.4th 1112 (Zelig), the plaintiff, the child of the victim who was fatally shot by her ex-husband in the courthouse, sued the county and sheriff’s department for negligence. The California Supreme Court held, in part, that officers had no duty to protect victims of assailants where officers had not increased the risk of harm to the victim. (Id., at 1134.) The Court noted that “[i]ndeed, the risk of injury to Eileen [the victim] at the hands of her ex-husband was at least as great outside the courthouse.” (Id., at 1137.)

Here, the Metropolis contends that it lacked a special relationship with Adamakis, citing his noncompliance with summons to the Ecclesiastical Tribunal as evidence of its inability to control Adamakis’s conduct. (Mot., at 21, UMF No. 33, Def.’s SOE, Ex. “6.”)

Conversely, Plaintiff asserts the Metropolis’s control over Adamakis, arguing the archbishop and the metropolitan bishops’ authority to ordain, assign, transfer, and if necessary, defrock the priest. (Opp’n., at 18.) Further, Plaintiff argues that the Metropolis’s ability to control is also evident by pointing out Adamakis’s suspension, his summons to the Spiritual Court, and a letter from the Chancellor of the Metropolis restricting his service. (Opp’n., at 19, Def.’s SOE Ex. “8.”) Plaintiff suggests that the Metropolis “could have” precluded Adamakis from gaining unsupervised access to the Church premises or misusing his position to abuse Plaintiff. (Opp’n., at 8.)

The Court observes that Plaintiff’s argument of what the Metropolis “could have done” does not equate to any affirmative action taken by the Metropolis. Additionally, echoing the rationale in Zelig, the Court finds Plaintiff’s line of reasoning unconvincing. In Zelig, the court states that the risk of injury was not increased by the officers in the courthouse because the “risk of injury to the victim at the hands of her ex-husband was at least as great outside the courthouse premises. For example, he could just as readily have shot [the victim] as she picked up one of her children from a public or private school.” (Zelig, supra, 27 Cal.4th at 1137.) Similarly, in this case, the undisputed facts indicate that Plaintiff was allegedly abused by Adamakis on multiple occasions, including at Adamakis’ home, in his car, and at St. Nicholas. (UMF No. 31, Def.’s SOE, Ex. “2.”) This distribution of incidents indicates that the risk of injury to Plaintiff at the hands of Adamakis was just as significant outside the church. Therefore, it cannot be argued that the Metropolitan’s actions, such as suspending, summoning Adamakis, announcing his disqualification from service, and recommending his defrocking, could have increased Plaintiff’s risk of harm within St. Nicolas.

Therefore, the Court concludes that there is insufficient evidence to establish that triable issues of fact exist regarding a special relationship between Adamakis and the Metropolis, grounded on the assertion that the Metropolis had control over Adamakis that would meaningfully reduce the risk of the harm that actually occurred.

c.) Plaintiff’s Other Argument

Plaintiff contends that Metropolis is directly liable for negligence because it had reason to know the foreseeable risk posed by Adamakis to harm others, and despite this knowledge, it only limited his priestly functions while allowing him to maintain his title as a priest and did not prohibit him from attending churches within (Opp’n., at 16.)

Given this precedent, the Court concludes that the Metropolis’s duty must be considered within the context of a special relationship, as set forth in the previous discussion. Consequently, the Court finds Plaintiff’s argument for direct liability under a negligence theory to lack merits.

2. Special Relationship Between the Metropolis and Plaintiff

Here, the Metropolis asserts that there is no special relationship between it and Plaintiff, as Plaintiff was never under the care of the Metropolis. (Id., at 16.) It contends that without such a special relationship, Plaintiff fails to establish the essential element of the cause of action that the Metropolis owes a duty to Plaintiff. (Id., at 6.)

The Court notes that it is undisputed that Plaintiff never enrolled in any of the Metropolis’s youth programs, or as a student in St. Nicholas school. (UMF No. 29, Ex. “11.”) Moreover, Plaintiff admits he never attended any Sunday School program in any of Defendants’ churches. (UMF No. 25, Def.’s SOE, Ex. “11.”) Furthermore, Plaintiff admits he never participated in the Greek Orthodox Youth Association. (UMF No. 27, Def.’s SOE, Ex. “11.”)

Based on this, the Court concludes that there is no evidence of a special relationship between St. Nicolas and Plaintiff as St. Nicolas never had “actual custody or control” over Plaintiff.

Therefore, St. Nicolas and the Metropolis do not owe a duty to Plaintiff based on a special relationship between Plaintiff and Defendants.

Accordingly, the Motion for Summary Judgment is GRANTED as to the negligence cause of action.

C. Second Cause of Action - Negligent Hiring, Retention, and Supervision

The CACI Jury Instruction No. 426 provides, in relevant part, that:

“To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of employer defendant] hired [name of employee];

2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired /[specify other particular risk]];

...”

(Underlines added.)

As detailed previously, Plaintiff has failed to present sufficient evidence to establish a triable issue of material fact as to Defendant’s affirmative evidence showing an absence of an employment relationship between Adamakis and St. Nicholas, or, the moving Defendant. Consequently, Plaintiff is deemed unable to establish the first and second elements required for a claim of Negligent Hiring, Retention and Supervision, specifically, the absence of proof that Adamakis was hired by any of Defendants.

Therefore, the Motion for Summary Judgment is GRANTED concerning the second cause of action.

CONCLUSION

Defendant Greek Orthodox Metropolis of San Francisco’s Motion for Summary Judgment is GRANTED.

Moving party is ordered to provide notice of this order.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Dept. F49

Date: 3/5/24

Case Name: T.M. v. St. Nicholas Greek Orthodox Church, et al.

Case # 20STCV44178

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MARCH 5, 2024

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES

Los Angeles Superior Court Case # 20STCV44178

Motion filed: 11/8/23

MOVING PARTY: Defendant Saint Nicholas Greek Orthodox Church (“St. Nicholas” or the “moving Defendant”)

RESPONDING PARTY: Plaintiff Timothy Mullen (“Plaintiff”)

NOTICE: ok

RELIEF REQUESTED: An order granting the moving Defendant’s Motion for Summary Judgment, or in the alternative, granting Summary Adjudication as to the First and Fourth Causes of Action.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

On November 8, 2023, St. Nicholas filed the instant Motion for Summary Judgment (the “Motion”).

On January 1, 2024, Plaintiff opposed the Motion. Subsequently, on January 19, 2024, St. Nicholas filed its Reply.

ANALYSIS

A. Judicial Notice

The moving Defendant requests the Court take judicial notice of the following documents: (1) Plaintiff’s SAC, (2) Defendants’ Answer filed on July 29, 2021, and (3) the Certified Driver Record Information for Vasilios Thanos.

The Court GRANTS the moving Defendants’ request for judicial notice for (1) Plaintiff’s SAC and (2) Defendants’ Answer to the extent that aligns with the above rulings.

However, the Court DENIES the moving Defendant’s request for judicial notice for Vasilios Thanos’ driver record information.

Evidence Code section 452, subdivision (h) permits the court, in its discretion, to take judicial notice of the “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Although the issuance of a valid government-issued driver's license may fall within the justification of being “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,” the specific driver’s information, such as weight and height, does not. Here, the request targets explicitly the information contained therein, rather than the issuance or validity of the driver’s license itself. Therefore, this request for judicial notice for driver record information is DENIED.

B. Casuse of Action - Negligence

1. Special Relationship Between St. Nicholas and Adamakis

Here, St. Nicholas contends that no special relationship exists because there was neither an employment nor an agency relationship between it and the alleged tortfeasor, Adamakis. (Mot., at 10, 13.)

a) Employment Relationship

To support the assertion that there was no employment relationship, St. Nicholas has presented Adamakis’s employment records, which confirm that Adamakis was neither employed by nor assigned to St. Nicholas during the period of alleged abuse (1982 through 1985). (Def’s SOE, Ex. “3.”) Moreover, St. Nicholas introduces a letter from Adamakis, dated March 31, 1981, indicating that he was secularly employed in California, rather than by any of Defendants. (Mot., at 10-11, Def.’s SOE, Ex. “4.”)

Here, St. Nicholas presented affirmative evidence, specifically Adamakis’s employment records, to demonstrate the absence of an employment relationship. Mirroring the reasoning of the Leslie court, the Court concludes that St. Nicholas has satisfied its burden on this issue, and the burden shifts to Plaintiff to present evidence that there is a triable issue regarding the employment relationship between Adamakis and St. Nicholas.

In response, Plaintiff disputes Defendants’ claim that Adamakis was not an employee nor agent of St. Nicholas (Opp’n., at 4) by relying on deposition excerpts from Plaintiff himself, who witnessed Adamakis performing the liturgy services and acting as a priest before the congregation at Saint Nicholas Greek Orthodox Church. (Ibid., Pl.’s SOE, Ex. “1,” at 139:25, 140:1-25, 141:1-25, 142:1-6.) To support this position, Plaintiff further references testimony from Candace Andreno (Andreo Dep. at 25:15-26:12), a parishioner of St. Nicholas between approximately 1977 and 1995.

Q: ... Can you explain that?

(Andreno Dep., at 25:19-26:12.) (Underlines added.)

b.) Agency Relationship

Here, the undisputed evidence does not establish any triable issue of fact suggesting that the alleged principal – any of the Defendants – made statements or engaged in any conduct that would tend to generate a reasonable belief in Plaintiff. Although Plaintiff argues that Adamakis was an agent of St. Nicholas because he told Plaintiff that he was a priest at St. Nicholas and took Plaintiff to St. Nicholas approximately 50-100 times, and that Adamakis had keys to the church (Opp’n., at 1), the mere fact that Adamakis presented himself as an agent of St. Nicholas does not establish such relationship. Furthermore, for Plaintiff to establish an agency relationship, there must be a reasonable belief in the purported agent’s authority. Here, it is evident that any alleged sexual abuse by Adamakis falls outside the scope of a priest’s authority, and any assertion to the contrary is unreasonable.

Accordingly, the Court concludes that Plaintiff has failed to establish any triable issue of facts supporting an ostensible agency relationship between Adamakis and any Defendants.

2. Special Relationship Between St. Nicholas and Plaintiff

Here, St. Nicholas asserts that there is no special relationship between it and Plaintiff, as Plaintiff was never under the care of St. Nicholas. (Mot., at 16.) It contends that without such a special relationship, Plaintiff fails to establish the essential element of the cause of action that St. Nicholas owes a duty to Plaintiff. (Id., at 6.)

The Court notes that it is undisputed that Plaintiff never enrolled in any of youth programs, or as a student in St. Nicholas school. (UMF No. 29, Ex. “11.”) Moreover, Plaintiff admits he never attended any Sunday School program in any of Defendants’ churches. (UMF No. 25, Def.’s SOE, Ex. “11.”) Furthermore, Plaintiff admits he never participated in the Greek Orthodox Youth Association. (UMF No. 27, Def.’s SOE, Ex. “11.”)

Based on this, the Court concludes that there is no evidence of a special relationship between St. Nicholas and Plaintiff as St. Nicholas never had “actual custody or control” over Plaintiff.

Therefore, the Court concludes that St. Nicholas does not owe a duty to Plaintiff based on a special relationship between Plaintiff and Defendants.

3. Plaintiff’s Other Argument

Plaintiff contends that St. Nicholas is directly liable for negligence because it had reason to know the foreseeable risk posed by Adamakis to harm others, and despite this knowledge, it only limited his priestly functions while allowing him to maintain his title as a priest and did not prohibit him from attending churches within its jurisdiction (Opp’n., at 14.)

Given this precedent, the Court concludes that St. Nicholas’s duty must be considered within the context of a special relationship, as set forth in the previous discussion. Consequently, the Court finds Plaintiff’s argument for direct liability under a negligence theory to lack merits.

Accordingly, the Motion for Summary Judgment is GRANTED as to the negligence cause of action.

C. Cause of Action - Negligent Hiring, Retention, and Supervision

The CACI Jury Instruction No. 426 provides, in relevant part, that:

“To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of employer defendant] hired [name of employee];

2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired /[specify other particular risk]];

...”

(Underlines added.)

Therefore, the Motion for Summary Judgment is GRANTED concerning the cause of action for negligent hiring, retention, and supervision against the moving Defendant.

CONCLUSION

Defendant Saint Nicholas Greek Orthodox Church’s Motion for Summary Judgment is GRANTED as to all causes of action against the moving Defendant.

Moving party is ordered to provide notice of this order.