Judge: John J. Kralik, Case: 22BBCV00562, Date: 2023-01-13 Tentative Ruling

Case Number: 22BBCV00562    Hearing Date: January 13, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff John Doe alleges that he is an adult male who was born in 1980.  He alleges that he was a victim of childhood sexual assault in 1988 when he was approximately 8 years old when he attended the after-school day care program facilitated and organized by Defendants Does 1, 2, and/or 4-20.  He alleges that he was a victim of unlawful childhood sexual assault and molestation and other conduct by Defendant Doe 3, while Doe 3 was an employee and/or agent of Does 1, 2, and/or 4-60.  Plaintiff alleges that Doe 3 was employed as the driver and after-school youth director and/or counselor for the Youth Program.

The complaint, filed August 4, 2022, alleges causes of action for: (1) sexual assault against Doe 3; (2) IIED against Doe 3; (3) negligence against Does 1, 2, and 4-60; (4) negligent hiring, supervision, and retention against Does 1, 2, and 4-60; (5) failure to report suspected child abuse against Does 1, 2, and 4-60; and (6) negligence against Does 41-50. 

B.     Demurrer on Calendar

On November 7, 2022, Defendant National Council of the Young Men’s Christian Associations of the United States of America d/b/a YMCA of the USA (“YMCA-USA,” sued as Doe 2) filed a demurrer to the complaint.

On December 30, 2022, Plaintiff filed an opposition brief.

On January 6, 2023, YMCA-USA filed a reply brief.

REQUEST FOR JUDICIAL NOTICE

            With the moving papers, YMCA-USA requests that the Court take judicial notice of Exhibits: (A) Defendant’s 1984 Constitution and Bylaws; and (B) Defendant’s 1988 Constitution and Bylaws.  In opposition, Plaintiff objects to the request for judicial notice. 

            The Court will take judicial notice of the existence of the bylaw documents, but not for the truths of the matters asserted therein.  Based on the demurrer papers, it appears that YMCA-USA seeks to use the bylaw documents to “conclusively” establish and prove that each member association acted independently and that it did not owe a duty of care to Plaintiff.  At this time, the Court will not take judicial notice of such facts.

DISCUSSION

            YMCA-USA demurs to the 3^rd, 4^th, and 5^th causes of action alleged in the complaint. These are the only three causes of action alleged against YMCA-USA.

A.    Misjoined Party

YMCA-USA demurs to the 3^rd, 4^th, and 5^th causes of action, arguing that it is an improper, misjoined party.  YMCA-USA argues that each of the events alleged in Plaintiff’s complaint occurred at Defendant Young Men’s Christian Association of Burbank’s (“YMCA-Burbank,” Doe 1) facility and by YMCA-Burbank’s employee.  YMCA-USA argues that Plaintiff has not alleged facts showing that YMCA-USA had any control over its local member association branches or their employees.  In making its arguments, YMCA-USA relies on its Constitution and Bylaws.

As discussed above, the Court only takes judicial notice of the existence that such documents exist, but declines to take judicial notice of the truth of the matters stated therein.  While the documents themselves may make certain statements, the Court cannot ascertain their truth at this time whether control was in fact exercised over the branch members and/or the employees.  Thus, as YMCA-USA’s arguments regarding misjoinder rely on the Constitution and Bylaw documents, the demurrer on the ground of misjoinder fails.

Further, while YMCA-USA argues that all the events occurred at YMCA-Burbank’s premises as a result of YMCA-Burbank’s employee, these are extrinsic arguments that the Court cannot consider at the demurrer stage.  The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.  (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)  According to the allegations of the complaint, Plaintiff was a victim of sexual abuse as a result of Doe 3’s misconduct while he was an employee of Doe 1, Doe 2, and/or Does 4-60.  (See Compl., ¶13.)  Whether Doe 3 was solely an employee of Doe 1/YMCA-Burbank or an employee of both YMCA-Burbank and YMCA-USA will have to be determined beyond the pleading stage.  At the demurrer stage, the allegations of the complaint are accepted as true.

Thus, the demurrer on the ground of misjoinder is overruled.

B.     3^rd cause of action for negligence

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) 

YMCA-USA demurs to the 3^rd cause of action, arguing that it did not owe Plaintiff a duty of care.  YMCA-USA again relies on its Constitution and Bylaws, arguing that it did not have any control over YMCA-Burbank or Doe 3.  However, as discussed above, the Court declines to take judicial notice of the contents of the corporate documents and the truths of the matters stated therein.  

Rather, at the pleading stage, the Court accepts as true the facts alleged in the complaint.  In the 3^rd cause of action, Plaintiff alleges that Does 1, 2, and 4-60 had a duty to take reasonable steps to protect Plaintiff while he was in their care, custody and control.  (Compl., ¶57.)  The allegations are not limited to YMCA-Burbank (Doe 1), but rather Plaintiff alleges that he was sexually assaulted by Doe 3, who was an employee/agent of Does 1 (YMCA-Burbank), 2 (YMCA-USA), and 4-60 while he was participating in their programs.

Thus, the demurrer to the 3^rd cause of action is overruled.

C.     4^th cause of action for negligent hiring, supervision, and retention

The elements of a negligent hiring, supervision, or retention of employee claim are: (1) the defendant employer hired the employee; (2) the employee was/became unfit or incompetent to perform the work for which he/she was hired; (3) the defendant employer knew or should have known that the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed the plaintiff; and (5) the defendant employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff’s harm.  (CACI 426.) 

YMCA-USA argues that the 4^th cause of action fails for the same reasons as the 3^rd cause of action and that it is duplicative of the 3^rd cause of action.  For the reasons discussed above, the demurrer on this basis is overruled.

YMCA-USA also argues that the complaint lacks facts showing that YMCA-USA interviewed, hired, paid, supervised, or retained Doe 3.  However, the complaint makes such allegations.  The complaint alleges that Doe 3 was employed by and/or an agent of Does 1, 2, and/or 4-60 as a driver and the youth director/counsel for the Youth Program.  (Compl., ¶¶6, 15.)  Plaintiff alleges that at all times, Doe 2 knew that Doe 3 was an employee of Doe 1 and that Doe 1 knew that Doe 3 was an employee/agent of Doe 2.  (Id., ¶6.)  Plaintiff alleges that Does 1, 2, and 4-60 negligently hired, supervised, retained, monitored, investigated, and/or otherwise employed Doe 3.  (Id., ¶33(a).)  The 4^th cause of action also includes allegations that Does 1, 2, and 4-60 were responsible for hiring, training, supervising, and retaining Doe 3 even though he was unfit and unqualified.  (Id., ¶¶66-67.)  At the demurrer stage, these allegations are sufficient.  Whether YMCA-USA in fact did hire, supervise, and retain Doe 3 will have to be determined beyond the pleading stage when the parties can submit evidence to the Court.

Thus, the demurrer to the 4^th cause of action is overruled.

D.    5^th cause of action for failure to report suspected child abuse

Penal Code, § 11166(a) states: “Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter's professional capacity or within the scope of the mandated reporter's employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written follow up report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident.”  A “mandated reporter” is defined in section 11165.7, which includes an administrator or employee of a public or private youth center, youth recreation program, or youth organization.  (Penal Code, § 11165.7(a)(7).) 

In the 5^th cause of action, Plaintiff alleges that Does 1, 2, and/or 4-60, acting through its administrators, supervisory employees, staff, and employees were at all times mandated reporters and were obligated to report reasonably suspected incidents of child abuse.  (Compl., ¶77.)  Plaintiff alleges that they should have had reasonable suspicion of Doe 3’s sexual misconduct, but they violated the Child Abuse and Neglect Reporting Act by failing to comply with their reporting requirements.  (Id., ¶¶78-79.) 

YMCA-USA argues that the 5^th cause of action fails because no special relationship existed between YMCA-USA and Plaintiff or YMCA-USA and Doe 3.  Again, YMCA-USA argues that it did not control YMCA-Burbank’s operations.  However, as discussed above, these arguments rely on YMCA-USA’s corporate documents. 

Further, Plaintiff’s cause of action for failure to report suspected child abuse is not based on a special relationship but rather on the statutory framework provided under the Penal Code.  In the complaint, Plaintiff alleges that YMCA-Burbank, YMCA-USA, and Does 4-60 were mandated reporters and that they failed to comply with their duties in making a report about Doe 3’s suspected child abuse. 

For these reasons, the demurrer to the 5^th cause of action is overruled.

CONCLUSION AND ORDER

            The demurrer of Defendant National Council of the Young Men’s Christian Associations of the United States of America d/b/a YMCA of the USA (Doe 2) to the 3^rd, 4^th, and 5^th causes of action in the complaint is overruled.

Defendant shall provide notice of this order.