Judge: Gary Y. Tanaka, Case: 21STCV16267, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV16267    Hearing Date: December 13, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                         Tuesday, December 13, 2022

Department B                                                                                                     Calendar No. 9

 

PROCEEDINGS

 

John Doe v. Doe 1, et al. 

21STCV16267

1.     Big Brothers Big Sisters of America’s Demurrer to Second Amended Complaint

 

TENTATIVE RULING

 

          Big Brothers Big Sisters of America’s Demurrer to Second Amended Complaint is overruled, in part, and sustained, without leave to amend, in part.

 

Background

 

Plaintiff filed his Complaint on April 29, 2021. Plaintiff’s operative Second Amended Complaint was filed on May 9, 2022. Plaintiff alleges the following facts. Plaintiff alleges that he was sexually abused by Daniel Donohue, a mentor that he met through a youth mentor program run by Defendants. Plaintiff’s FAC alleged the following causes of action: 1. Sexual Battery; 2. Gender Violence; 3. Sexual Harassment (Civil Code § 51.9); 4. Unfair Business Practices (Business and Professions Code § 17200); 5. Intentional Infliction of Emotional Distress; 6. Assault; 7. Constructive Fraud (Civil Code § 1573); 8. Negligence; 9. Negligent Supervision; 10. Negligent Hiring/Retention; 11. Breach of Fiduciary Duty.

 

Plaintiff’s SAC alleges the following causes of action: 1. Sexual Battery; 2. Gender Violence (Civ. Code 52.4); 3. IIED; 4. Assault; 5. Constructive Fraud (Civ. Code 1573); 6. Negligence; 7. Negligent Supervision; 8. Negligent Hiring/Retention; 9. Breach of Fiduciary Duty; 10. Negligent Supervision of BBBSLA; 11. Negligent Undertaking; 12. Negligent Misrepresentation.

 

          Meet and Confer

 

          Defendant Big Brothers Big Sisters of America set forth a meet and confer declaration in sufficient compliance with CCP 430.41.  (Decl., Elaine Kobylecki, ¶¶ 3-4.)

 

          Demurrer

 

          A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.)  Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

 

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

 

Defendant demurs to the sixth through eighth and tenth through twelfth causes of action, for failure to state sufficient facts to state a cause of action.

 

Sixth Cause of Action for Negligence

Seventh Cause of Action for Negligent Supervision

Eighth Cause of Action for Negligent Hiring/Retention

 

The demurrer to the sixth through eighth causes of action is overruled.  Plaintiff states facts sufficient to state a cause of action.

 

Defendant’s demurrer is based on the ground that insufficient facts are alleged to demonstrate the existence of a duty of care.  However, with the SAC, Plaintiff has now alleged facts demonstrating the existence of a duty of care on the part of Defendant.

 

Both parties recognize the controlling authority of Brown v. USA Taekwondo (2021) 11 Cal.5th 204. “The issue before us concerns how courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.  . . . “[W]e now clarify that whether to recognize a duty to protect is governed by a two-step inquiry. First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.”  Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.

In Brown v. Taekwondo (2021) 11 Cal.5th 204, participants in a taekwondo program training for the Olympics sued Defendants Taekwondo Association (USAT), the local organization, and U.S. Olympic Committee (USOC), a national organization, based on sexual misconduct of an agent.  The Court held that Plaintiffs had sufficiently alleged the existence of a special relationship between Plaintiffs and USAT but failed to allege such facts of a special relationship with USOC.  Notably, the Court stated that, as to USOC, Plaintiffs’ case “rested largely on allegations that USOC had the ability to regulate USAT's conduct.”  Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 211.

Plaintiff has now alleged sufficient facts that Defendant had the ability to control the actions of Donohue.  (SAC, ¶¶b21, 22, 28, 29.)  The factual allegations are distinguishable from the factual allegations stated against USOC in Brown, in that Plaintiff has alleged facts that go beyond Defendant’s ability to merely “regulate” the conduct of co-Defendant BBSLA. Instead, Plaintiff has alleged that demurring Defendant had the ability to control the actions of the alleged perpetrator, Donohue.

 

Thus, having found that Plaintiff has alleged facts to demonstrate the existence of a special relationship, the Court must proceed with the second prong of the Brown analysis.

The question of whether Defendant owes a duty to plaintiff requires the “balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”  Rowland v. Christian (1968) 69 Cal.2d 108, 113.

1 - Foreseeability of harm to the injured party:

The Court finds that Plaintiff has alleged sufficient facts to show the existence of foreseeability of harm to Plaintiff for purposes of the Rowland analysis. Plaintiff alleges that Defendant should have been aware that Donohue had been arrested for disorderly conduct involving masturbation and exposing himself in public. (SAC, ¶ 50.) Plaintiff alleges that Defendant was also aware that another child for whom Donohue was assigned as a mentor complained that Donohue had attempted to place his hands down the child’s pants.  (SAC, ¶ 51.) Plaintiff alleges facts demonstrating that Defendant was aware of the risk and potential for sexual abuse and sexual predators based on the unique nature of its business model and services.  (SAC, ¶¶ 39-45.)  Here, for purposes of the Rowland analysis, and, also, after taking into account that a demurrer can only be analyzed on the face of the allegations of the pleading and does not evaluate evidence, Plaintiff has alleged sufficient facts to meet the foreseeability of harm element.

2 - Degree of certainty he or she suffered injury:

The allegations of the SAC clearly state that Plaintiff suffered injury.  (SAC, ¶¶ 64-74.)

3: Closeness of connection between Defendant's conduct and the injury suffered:

Defendant argues that no active conduct by it contributed to the harm suffered by Plaintiff. Defendant contends that it was not even aware of the existence of Donohue. However, as noted above, the Court can only focus on the allegations of the pleading and not facts or evidence outside the scope of the pleadings. Thus, for the reasons already set forth above with respect to the foreseeability factor, sufficient facts have been alleged to show a sufficiently close connection between Defendant’s alleged conduct and the injury suffered.

4 - Moral blame attached to Defendant's conduct:

While, under the facts alleged, the moral blame here would primarily lie with the alleged perpetrator, again, assuming all allegations as true, at the pleading stage, a certain level of moral blame could be attached to demurring Defendant by allegedly failing to investigate the alleged prior incidents and failing to comply with policies to prevent these types of attacks on their members.

5 - Policy of preventing future harm:

The policy of preventing future harm would be fostered and may contribute to, perhaps, instituting greater and more stringent policies to ensure that such attacks do not occur in the future.

6 - Extent of burden to Defendant and consequences to community of imposing a duty of care with resulting liability for breach:

Here, the burden to impose a duty of care to Defendant is significant.  However, the consequences of not imposing a burden of duty of care to Defendant under the facts alleged by Plaintiff is also great.

7 - Availability, cost, and prevalence of insurance for the risk involved:

The Court is not in the position of analyzing this factor at the pleading stage since this factor will be reliant on evidence obtained through discovery.

Therefore, based on the facts alleged by Plaintiff, and, after conducting the through analysis required under Brown, the Court determines that Plaintiff has alleged sufficient facts to demonstrate that Defendant did owe a duty of care to Plaintiff.

Thus, the demurrer to the sixth through eighth causes of action is overruled.

Tenth Cause of Action for Negligent Supervision of BBBSLA

Eleventh Cause of Action for Negligent Undertaking

Twelfth Cause of Action for Negligent Misrepresentation

 

Defendant’s demurrer to tenth through twelfth causes of action of the Second Amended Complaint is sustained without leave to amend.

 

Generally, upon the sustaining of the demurrer, the scope of leave to amend is to amend the existing causes of action not to add new causes of action or parties.  See, People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.  Addition of a new cause of action or parties may be proper, however, when it “directly responds to the court's reason for sustaining the earlier demurrer.”  Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Here, the scope of leave to amend upon the sustaining of the demurrer to the First Amended Complaint did not authorize the adding of these new causes of action.  In addition, the new causes of action were not added based on any of the Court’s reasoning for sustaining the demurrer to the First Amended Complaint.

 

Thus, the demurrer to the tenth through twelfth causes of action is sustained without leave to amend.

 

Plaintiff is ordered to give notice of this ruling.