Superior Court of California

County of Los Angeles

North Central District

Department B

Dean S.,

Plaintiff,

Doe 1, et al.,

Defendants.

Case No.: 22BBCV01069

Hearing Date: June 23, 2023

[TENTATIVE] order RE:

demurrer

BACKGROUND

A. Allegations

Plaintiff Dean S. alleges that he was born in 1962 and was the victim of childhood sexual assault that occurred from 1975 until 1977 when he was 13 to 15 years old. Plaintiff alleges that Doe 1 is a corporation that helps children develop supportive relationships with positive role models, which includes assigning “Bigs” (adults) with “Littles” (children). Doe 2 is alleged to be a Doe 1 local affiliate in Los Angeles. Doe 3 is another corporation. Plaintiff alleges that he was a participant in Doe 1, Doe 2, and Doe 3’s youth programs held at Doe 3, where Doe 4 and Doe 5 were employees and/or agents. Plaintiff alleges that Doe 3 supervised and exercised control over Plaintiff’s abusers, employees, and/or agents Doe 4 and Doe 5. Plaintiff alleges that Doe 3 was affiliated with Doe 1 and Doe 2 by the programs, activities, policies, procedures, and guidance. Doe 4 is alleged to be an adult male, an employee/agent of Does 1-3, and was hired as a pastor and/or minister. Doe 5 is alleged to be an adult male, an employee/agent of Does 1-3, and was hired as a spiritual leader and Big Brother mentor.

Plaintiff alleges that in 1975, Doe 4 befriended Plaintiff and utilized Doe 1-3’s facilities to gain access to Plaintiff. Plaintiff alleges that from 1975-1977, Doe 4 committed childhood sexual assault against Plaintiff. He alleges that while on a Doe 3 sponsored church retreat, Doe 4 took advantage of his position as a Big Brother mentor and assaulted Plaintiff, including forcing Plaintiff to perform oral sex on him, fondling Plaintiff’s genitals, digitally penetrating, Plaintiff, and anally raping Plaintiff.

Plaintiff alleges in 1976, Doe 5 attended church with Plaintiff at Doe 3 and Doe 5 was appointed as Plaintiff’s new mentor. Plaintiff alleges that Doe 5 built a rapport with Plaintiff and committed sexual assault on Plaintiff, including kissing, oral copulation, digital penetration, and anal penetration of Plaintiff.

The complaint, filed November 23, 2022, alleges causes of action for: (1) sexual assault of a minor against Doe 4 and Doe 5; (2) IIED against Doe 4 and Doe 5; (3) negligent supervision, hiring, and retention against Doe 1, Doe 2, Doe 3, and Doe 6; (4) negligent supervision of a minor against Doe 1, Doe 2, Doe 3, and Doe 6; and (5) negligence against Does 6 through 60.

On March 28, 2023, Plaintiff dismissed without prejudice Doe 4 and Doe 5 from the action.

B. Demurrer on Calendar

On March 27, 2023, Doe 1 filed a demurrer to the 3^rd and 4^th causes of action to the complaint.

On June 5, 2023, Plaintiff filed an opposition and the declaration of Neda Saghafi. On June 6, 2023, Plaintiff filed a notice of errata concerning the declaration of Neda Saghafi and refiled the declaration.

On June 9, 2023, Doe 1 filed a reply brief.

DISCUSSION

Doe 1 demurs to the 3^rd cause of action for negligent supervision, hiring, and retention and 4^th cause of action for negligent supervision of a minor. Doe 1 argues that Plaintiff has not alleged the existence of a special relationship and that Plaintiff has not shown that the Rowland factors support an imposition of a duty against Doe 1. In opposition, Plaintiff argues that he has alleged sufficient facts to show that there is a special relationship between Plaintiff and Doe 1. Both parties rely on Brown v. USA Taekwondo (2021) 11 Cal.5th 204.

In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, the California Supreme Court stated that generally, there is no duty to control the conduct of another nor warn against those endangered by such conduct, but an exception to the no-duty-to-protect rule exists where the defendant has a special relationship with either the dangerous third party or the victim; and even were this special relationship exists, policy considerations in Rowland v. Christian (1968) 69 Cal.2d 108 must be considered, which may weigh against imposing a duty to protect in a given case (to clarify, the Rowland factors are not used to establish a duty, but instead to decide whether to limit the duty). (Brown, supra, 11 Cal.5th at 211.) The California Supreme Court stated held that the Court of Appeal correctly determined whether a duty existed based on a special relationship, and finding none, correctly ended its analysis there without considering the Rowland factors.

In Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, the plaintiffs were trained in the Olympic sport of taekwondo as teenagers and were sexually abused by their coach. The plaintiffs sued their coach, USA Taekwondo, and the United States Olympic Committee. The Court of Appeal held that USAT had a special relationship with the coach because the coach was required to register with USAT to coach taekwondo at USAT-sponsored competitions and USAT could implement policies and procedures to protect athletes from sexual abuse by their coach, which put it in a unique position to protect athletes from harm. (Brown, supra, 40 Cal.App.5th at 1083.) In contrast, USOC did not owe a duty to plaintiffs because it did not have a special relationship with the coach or the plaintiffs because while it had the ability to control USAT (including requiring it to adopt policies to protect athletes), it did not have direct control over the conduct of coaches. (Id.) The Court of Appeal stated: “The key in each [special relationship] is that the defendant's relationship with ... the tortfeasor ... places the defendant in the best position to protect against the risk of harm. [Citations.] 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.” (Id. at 1092 [internal quotation marks omitted].) The common features of a special relationship include: (1) “the relationship has an aspect of dependency in which one party relies to some degree on the other for protection”; (2) the “corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection”; (3) the typical setting is where the “plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare”; (4) defined boundaries where the duty of care is owed to a limited community, and not to the public at large; and (5) while relationship often advantage both participants, many special relationships especially benefit the party charged with the duty of care. (Id. at 1092.)

Upon finding a special relationship exists, a defendant may be excused or limited in its duty of care based on the following policy considerations: “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.” (Id. at 1096 [quoting Rowland, supra, 69 Cal.2d at 113].)

Doe 1 argues that no special relationship exists that would give rise to a duty because there are no facts demonstrating that Doe 1 owed a duty to Plaintiff, or that a special relationship existed between Doe 1 and Does 4-5. Doe 1 argues that the allegations are conclusory.

In the complaint, Plaintiff alleges:

7. Doe 1 is a corporation headquartered in Tampa, Florida and registered to conduct business is California. Doe 1’s mission includes helping children develop supportive relationships with positive role models, we make a direct and lasting impact on their lives. Doe 1 represents to the public that it is accountable to the 240,000 “Bigs” that are making a difference in the lives of children each and every day… and accountable to a generation of children ready to be impacted by their programs. Doe 1 declares that making the best possible match between “Little” and “Big” is critical to the growth and development of a child. Doe 1 begins the matching process by thoroughly screening potential “Bigs.” Doe 1 promises throughout the life of the match, their professional staff will be in ongoing communication with you, your child, and your child’s “Big.”

8. Doe 1 operates through a national system of local affiliates. Doe 1 is responsible for vetting and screening children’s “Bigs” and placing an adult (“Big”) with a child (“Little”). Doe 2 is one of Doe 1’s local affiliates, operating in California, that operates the programs created by Doe 1 in Los Angeles where Bigs and Littles are matched by Doe 1. Doe 1 and Doe 2’s programs are directed specifically to youth with a purpose and mission to serve youth while promising a responsible and safe one-to-one mentorship and relationship between Bigs and Littles.

…

56. Doe 1 represents to the public that since 1904, it has been making matches between adult volunteers (“Bigs”) and children (“Littles”), ages five through young adulthood in communities across the country. Namely, Doe 1 holds itself out to the public (including Plaintiff) as an organization that makes a direct and lasting impact on their children’s lives and holds itself accountable to the 240,000 Bigs that are making a difference in the lives of children each and every day and to a generation of children ready to be impacted by Doe 1’s programs.

57. Doe 1 was not simply a passive bystander, but rather an active participant in deciding who became a “Big” and what qualifications were required. Furthermore, Doe 1 was the entity both implementing and utilizing screening and background checks on potential “Bigs” for their agencies across the country and matching them with a child. Doe 1 could have equally refused to allow an individual to be a “Big,” removed them from such a position, and prevented their match/contact with a child participating in their programs in any of the agencies across the country. In other words, Doe 1 had direct authority and control over the perpetrators’ conduct, and as a result held a special relationship.

(Compl., ¶¶7-8, 56-57.)

In the 3^rd cause of action, Plaintiff alleges that a special relationship existed between Does 1-3 and Does 4-5 because Does 4-5 were employees/agents of Does 1-3, each of whom had the ability to control Does 4-5’s conduct yet failed to do so. (Compl., ¶77.) Plaintiff alleges that Does 1-3 accepted the entrustment of minor Plaintiff and he was under Does 1-3’s direct supervision, care, and control; thus, creating a special, trusting, and fiduciary relationship between Plaintiff and Does 1-3. (Id., ¶78.) He alleges that Does 1-3 stood in loco parentis with Plaintiff and his family. (Id.) Plaintiff alleges Does 1-3 had a duty to take reasonable steps to protect Plaintiff, a minor child, from known/foreseeable harm, including sexual assault, while he was in their care, custody, and control, and that they knew that Does 4-5 had, were engaged, and/or presented a risk of sexual assault of minors in Does 1-3’s care, custody, and control. (Id., ¶¶79-80.) Plaintiffs allege Does 1-3 knew or should have known that without adequate policies, protocols, and supervision, sexual assault/abuse of children by their agents was a foreseeable risk and danger and that Does 1-3 had a duty to take reasonable steps to prevent Does 4-5 from using their positions with Does 1-3 to sexually assault/abuse children. (Id., ¶¶81-82.) Plaintiff alleges that Does 1-3 had a duty to warn, train, or educate their staff and members about the risk of sexual assault/abuse and that they breached their duties by failing to use reasonable care to protect Plaintiff from their employees Does 4-5. (Id., ¶¶83-84.)

In the 4^th cause of action, Plaintiff alleges that Does 1-3 were responsible for the care, custody, supervision, control, and protection of minors entrusted to them, including Plaintiff, and that they knew or should have known that Does 4-5 had or were engaged in unlawful conduct with Plaintiff. (Compl., ¶¶87-88.) Plaintiff alleges that if Does 1-3 had adequately and properly supervised, monitored, and protected Plaintiff and adequately performed their duties and responsibilities, he would not have been harmed and would not have been subject to sexual assault, abuse, and harassment by Does 4-5. (Id., ¶¶89-90.)

The Court finds that Plaintiff has alleged sufficient facts to show that there was a special relationship existed as a basis for the element of duty. At the demurrer stage, the Court takes the allegations of the complaint as true; whether they can actually be proven will be determined beyond the pleading stage. In the complaint, Plaintiff alleges that Doe 1 was the entity that vetted and screened Bigs and made the matches between the Bigs and Littles, whereas Doe 2 was Doe 1’s local affiliate that operated Doe 1’s programs. As currently alleged, Plaintiff has alleged facts that Doe 1’s relationship with Plaintiff had an aspect of dependency in which Plaintiff relied on Doe 1 for protection—i.e., the proper vetting and screening of Bigs prior to matching Bigs with Littles. Doe 1 is allegedly tasked with matching Bigs with Littles, such that Doe 1 allegedly exercised control over Plaintiff’s relationship as a Little to his Big (Does 4 and 5). In addition, the complaint alleges that Plaintiff is vulnerable and dependent upon Doe 1 as a minor and Little in the program, and that Doe 1 has some control over Plaintiff’s welfare, such as by choosing who Plaintiff will be paired with in the mentor relationship and during sponsored events. The program was also provided to a limited community to those who were involved with the Big-Little program and sponsored events. Based on the allegations of the complaint, Plaintiff has adequately alleged sufficient facts to show that a special relationship between Plaintiff and Doe 1 existed.

Thus, the next step is to determine whether the Rowland factors excuse or limit Doe 1’s duty of care. Doe 1 argues that the element of foreseeability of harm would weigh against imposing a duty.

“In examining foreseeability, the court's task ... is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” (Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1096 [internal quotation marks omitted].)

Plaintiff argues that the type of harm alleged in the complaint was foreseeable because the program allowed Bigs to have regular, unsupervised contact with minors; Doe 4 took Plaintiff to social outings and camping trips through the program; Doe 4 isolated himself with Plaintiff for extended periods during sponsored retreats. (Compl., ¶¶37, 40, 48; see e.g., Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1098 [“Juarez, supra, 81 Cal.App.4th at p. 404, 97 Cal.Rptr.2d 12 [‘[I]t should be reasonably foreseeable to the Scouts that a child participating in scouting might fall prey to a sexual predator, with no documented history of such proclivities, who is serving as an adult volunteer in the child's scouting troop.’].”].) Again, at the demurrer stage, the Court finds that Plaintiff’s allegations are sufficient to establish the existence of a special relationship and that Rowland does not impose a limitation to this finding (at least based on the factor of foreseeability, which was the only factor argued by Doe 1).

Accordingly, the demurrer is overruled.

CONCLUSION AND ORDER

Defendant Doe 1’s demurrer to the complaint is overruled as to the 3^rd and 4^th causes of action.

Defendant shall provide notice of this order.