Judge Gail Killefer, Case Number: 22STCV39184, Date: 2023-07-20 Tentative Ruling

TENTATIVE: Defendant County’s demurrer to the first and second causes of action is sustained with leave to amend. The demurrer to the third cause of action is sustained without leave to amend. Defendant to give notice.

On December 16, 2022, L.M. (“Plaintiff”) filed a Complaint against the County of Los Angeles (“Defendant County”) and Does 1 to 50.

The operative First Amended Complaint (“FAC”) alleges five causes of action:

On June 15, 2023, Defendant County filed a Demurrer to Plaintiff’s FAC. Plaintiff filed opposing papers on July 7, 2023. Defendant County filed a reply on June 13, 2023.

DEMURRER[1]

I. Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer.¿ (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true, and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations, or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿¿

II. Allegations in the FAC

The First Amended Complaint (“FAC”) alleges that Plaintiff is a survivor of childhood sexual abuse within the meaning of CCP § 340.1(d), and Plaintiff brings this action pursuant to CCP § 340.1(q). (FAC ¶ 1.) The FAC meets the procedural requirements of subsections 340.1(f),(g), and (h). The FAC states that Plaintiff, who is now over the age of forty, was removed from the custody of her biological family in or around 1967 when she was a minor (approximately two years old) and was placed in a foster home by Defendant County. (FAC ¶¶4, 11.)

The FAC alleges that the County acted carelessly by placing Plaintiff in the care, custody, and control of the Perpetrator and his wife in a foster home licensed and vetted by Defendant County where the Perpetrator was allowed to repeatedly sexually assault Plaintiff while the Perpetrator was licensed, trained, supervised and/or compensated by Defendants. (FAC ¶¶ 5, 12, 13, 15.) The FAC further alleges that Defendant County “had a duty to take reasonable measures to protect Plaintiff from sexual assaults and are liable for their failure to do so pursuant to Government Code §§ 815.2, 815.4, 815.6, and 820 and proscribed by C.C.P. § 340.1.” (FAC ¶ 6.)

Defendant County demurs to first, second, and third causes of action in the FAC.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].) “A duty may arise through statute, contract, or the relationship of the parties.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920 [internal quotations and citations omitted].) The existence of a legal duty is a question of law for the Court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.)

“Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation.] However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’ [Citation.]” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

Defendant County demurs to the first cause of action on the basis that it is uncertain and fails to state sufficient facts to constitute a cause of action for Negligence. Specifically, Defendant County argues that mere citations to Gov. Code §§ 815.2, 815.6, and 820 are insufficient to allege a breach of mandatory duties or vicarious liability.

The FAC sufficiently alleges that Plaintiff seeks to recover damages under CCP § 340.1(d). The FAC fails to allege, however, that the County is statutorily liable pursuant to CCP §340.1, subdivisions (a)(2), (a)(3), or subdivision (c). Those subsections state, in relevant part:

(a) In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later, for any of the following actions:

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (Code Civ. Proc., § 340.1.) Plaintiff’s opposing papers is where Plaintiff first states that liability to the County stems from section 340.1(a)(2), while also suggesting that liability extends from section 340.1 subdivisions (a)(3) and (c).

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(c) An action described in paragraph (2) or (3) of subdivision (a) 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. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.

Although Plaintiff states the basis for liability under CCP § 340.1 in the opposition, such allegations must be included in FAC. “[T]he duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified” in the pleading. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) In Plaintiff’s complaint, it is unclear if the County’s liability is based on a negligent or wrongful act pursuant to section 340.1(a)(2) or an intentional act under section 340.1(a)(3) or both.

Despite the lack of specificity as to which subdivision of section 340.1 applies to Plaintiff’s claims, the FAC alleges sufficient facts to impose on the County a duty of care because Plaintiff was under the care, custody, and control of the County while she was a minor in foster care. Plaintiff’s status as a minor in foster care has been found sufficient to impose a duty of care on Defendant County. (See Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405 [Minor plaintiff could file a tort action against County defendant for child molestation that occurred while the minor plaintiff was living in foster care].) Therefore, references to the subdivisions of section 340.1 provide clarity and specificity as to what duty County Defendant is alleged to have breached and must be stated in the FAC.

The FAC also states that the County’s liability stems from its failure to prevent the sexual assault “pursuant to Government Code §§ 815.2, 815.4, 815.6, and 820 and proscribed by C.C.P. § 340.1.” (FAC ¶ 6.)

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.

The FAC alleges that the “PERPETRATOR was approved licensed [sic], trained, supervised, and/or compensated by Defendants” and that by approving the Perpetrator as a foster parent Defendants “put him in a position of custodial, psychological, and legal authority over Plaintiff.” (FAC ¶ 13, 22, 25.) Though it may be inferred, the FAC pleads no facts that state that the Perpetrator was an independent contractor of Defendant County under CCP § 815.3.

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.

Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.

The FAC again fails to state facts that show the Perpetrator is alleged to have been an employee of the County such that Gov. Code §§ 815.2 and 820 apply. Thus, the FAC lacks specificity. “Every fact essential to the existence of statutory liability must be pleaded.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) The FAC’s reference to Gov. Code §§ 815.2 and 820 without supporting facts is insufficient to put Defendant County on notice as to how it is liable to Plaintiff under those provisions of the Government Code.

Lastly, the FAC also stated that liability is imposed pursuant to Gov. Code § 815.6 which states:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

Again, though Gov. Code § 815.6 is briefly referenced in the FAC, the FAC fails to state sufficient facts as to how section 815.6 applies and imposes a duty on Defendant County to act. The FAC also fails to state what “enactment” was implemented that was designed to protect Plaintiff from the kind of injury she suffered. “Section 815.6 has three discrete requirements which ‘must be met before governmental entity liability may be imposed under Government Code section 815.6: (1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.’” (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 428 citing Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.)

Here, the FAC fails to allege facts to show that Plaintiff has a claim against Defendant County under Gov. Code § 815.6. Therefore, the court finds that Plaintiff’s first cause of action for negligence fails as it is not pled with the requisite specificity to put Defendant County on notice as to what claims are brought against it.

Therefore, the demurrer to the first cause of action is sustained with leave to amend.

ii. Second Cause of Action: Negligent Hiring, Retention, and Supervision

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, 836–37.)¿¿

Defendant County contends that under Gov. Code § 815, public entities are immune from suits to personal injury unless there is a statute that provides for an exception. “We find no relevant case law approving a claim for direct liability based on a public entity's allegedly negligent hiring and supervision practices.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252.) “We conclude that a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.” (Id. at 255-256.)

The FAC alleges that Plaintiff had a special relationship with Defendant County and thus “owed Plaintiff a duty to not allow Perpetrator to foster children under his care, given his dangerous and exploitive propensities, which Defendants COUNTY OF LOS ANGELES and DOES 1 to 50 knew or should have known of, had they engaged in a meaningful and adequate investigation of PERPETRATOR’S background prior to approval of the Foster Home, and/or meaningful, adequate, effective, and reasonable supervision of PERPETRATOR and of the Foster Home during the time foster children, including Plaintiff, were placed there by Defendants COUNTY OF LOS ANGELES and DOES 1 to 50.” (FAC ¶ 37.)

However, the second cause of action fails to identify any statutory basis to support a direct claim against Defendant County for injuries caused by County’s negligence in hiring and supervising the Perpetrator. The second cause of action is also silent as to whether Plaintiff seeks to impose vicarious liability on Defendant County pursuant to Gov. Code § 815.2. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 874 [permitting vicarious liability under Government Code section 815.2 when the public entity for negligent hiring and supervision when the public entity had a legal duty to protect students from harm and failed to exercise ordinary care by hiring a known child molester].)

As absent a statutory basis, liability cannot be imposed on the County for Negligent Hiring, Retention, and Supervision, the demurrer to the second cause of action is sustained with leave to amend.

Defendant County demurrers to the third cause of action on the basis that it is duplicative of the second cause of action as the claim neither adds any additional facts or theories of liability. (See Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [Cause of action found to be duplicative when conclusory allegations were identical to another cause of action and “adds nothing to the complaint by way of fact or theory.”].)

The allegations cited in support of the third cause of action state the Defendant County “owed Plaintiff a duty to provide reasonable supervision, to adequately supervise Perpetrator, to use reasonable care in investigating PERPETRATOR’S background and the Foster Home, and to provide adequate warning to Plaintiff and her guardians, other foster children, and those foster children’s guardians, of PERPETRATOR’S unfitness as a foster parent and agent appointed by Defendants COUNTY OF LOS ANGELES and DOES 1 to 50.” (FAC ¶ 47.)

Plaintiff’s opposition fails to address how the third cause of action is not premised on the same facts and negligence theory of liability as the second cause of action and is not duplicative. The court agrees the third cause of action is duplicative of the second cause of action and sustains the demurrer without leave to amend. (See Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [“The fifth alleged cause of action contains, by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery. There is no authority for a pleading of this type and the demurrer was properly sustained without leave to amend as to that cause.”].)

Defendant County’s demurrer to the first and second causes of action is sustained with leave to amend. The demurrer to the third cause of action is sustained without leave to amend. Defendant County to give notice.

[1] Moving Defendant submits the declaration of its counsel, Alan B. Blanco (“Blanco”) to demonstrate that it has fulfilled its meet and confer obligations prior to filing the instant demurrer. Blanco attests that he sent an email to Plaintiff’s Counsel to discuss the points of contention and that on May 25, 2023, May 30, 2023, and June 7, 2023, the parties met and conferred by telephone. (Blanco Decl. ¶¶ 3, 4.) The Blanco Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.