Judge: Jon R. Takasugi, Case: 21STCV16080, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV16080    Hearing Date: August 17, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Big Brother Big Sisters of America (BBBSA)’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.

            On 4/28/2021, Plaintiff John Doe filed suit against Defendant Doe 1 (BBBSA or Defendant or Doe 1) and Defendant Doe 2 (Catholic Big Brothers Big Sisters of Los Angeles [CBBBSLA] or Doe 2). On 4/4/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) negligence; (2) negligent supervision of alleged perpetrator; (3) negligent hiring and retention; and (4) negligent supervision of a minor.

            Now, BBBSA demurs to Plaintiffs’ FAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Joinder

            Defendant Doe 2 filed a joinder to this demurrer. However, as pointed out by Plaintiff, Defendant Doe 2’s joinder is untimely, and Doe 2 should not be able to circumvent the deadline to demur by joining BBBSA’s demurrer (See CCP § 430.40.) Second, Defendant Doe 2’s demurrer is not a true joinder in that Doe 2 advances different arguments not raised in BBBSA’s demurrer, and the arguments raised by BBBSA do not apply equally to Doe 2.

As set forth below, BBBSA’s demurrer is based on a contention that the only connection alleged between Doe 2—the entity which actually enrolled Plaintiff in its mentorship program and introduced Plaintiff to Shea—and BBBSA is that BBBSA is the national entity and alleged principal of Doe 2 and Shea. Accordingly, the substantive arguments advanced by BBBSA for their lack of liability simply do not apply to Doe 2. 

Factual Background

Plaintiff alleges that in approximately 1977, when he was eight-years old, his mother enrolled him in a mentorship program with CBBBSLA (of which BBBSA is the national entity). (FAC¶ 18.) In connection with that program, Plaintiff contends he was matched with Shea. (FAC ¶ 19.) Thereafter, Shea engaged in illegal and inappropriate sexual abuse and assaults of Plaintiff. (FAC ¶ 21-24.) Plaintiff was abused and assaulted by Shea on numerous occasions for over a year until approximately 1978. (FAC ¶ 21.)

Discussion

            BBBSA argues that Plaintiff cannot state a claim against it because the negligence causes of action require the existence of a special relationship, and no such relationship existed here.

In support, BBBSA cites the California Supreme Court’s recent decision in Brown v. Taekwondo (2021) 11 Cal.5th 204. There, the Court clarified the issue of duty by setting forth 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 the answer is “yes,” then the Court must consult the Rowland factors to determine whether relevant policy considerations counsel limiting that duty. (Id., at 209.)

In reviewing the lower court’s order sustaining a demurrer de novo, under the two-step inquiry, the Brown Court had to first determine whether a special relationship existed. The Court ultimately concluded that for purposes of the demurrer, the plaintiffs had adequately alleged a special relationship between plaintiffs and the Taekwondo Association (USAT), the local organization, but not between plaintiffs and the U.S. Olympic Committee (USOC). (Id. at 211.)

The Court made its determination based on the defendant’s ability to control the assailant’s actions. In particular, a special relationship is based upon two reasons: (1) the defendant’s ability to control the environment, to predict and prevent the risk; and (2) plaintiff’s reasonable dependency. (Id., at 227.) The Court found that a special relationship was demonstrated by USAT having registered the assailant as a coach, taking disciplinary action against the assailant, and later barring him from coaching for USAT. (Id., at 211.) By contrast, the Court concluded that USOC had no special relationship with plaintiffs as pled in the complaint because allegations against it largely rested on USOC’s ability to regulate USAT’s conduct, and this was insufficient to show that USOC could control the coach’s conduct or to give reason for plaintiffs to look to USOC for protection.  

 Defendant argues that Plaintiff’s allegations against it better resemble those against USOC, rather than USAT. The Court agrees.

Here, Plaintiff alleges that Plaintiff’s mother contacted Defendant Catholic Big Brothers and Big Sisters of Los Angeles to enroll Plaintiff in the mentorship program of CBBBSLA, and that Shea met Plaintiff through CBBBSLA. (FAC, ¶ 18.) Plaintiff does not allege any facts which could show that BBBSA here controlled Shea, or even had knowledge of Shea. Moreover, Plaintiff does not allege any facts which could show that it was foreseeable to BBBSA that Shea posed any threat to Plaintiff, or that it had any knowledge of the risk Shea posed to Plaintiff. (See Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 111.) (to impose the legal duty to prevent third-party criminal attacks, a plaintiff is required to establish a high degree of foreseeability and actual knowledge – not constructive, inferential, or knowledge by association.)

            As such, the only connection alleged between CBBBSLA—the entity which actually enrolled Plaintiff in its mentorship program and introduced Plaintiff to Shea—and BBBSA is that Defendant is the national entity and alleged principal of CBBBSLA and Shea. For the same reasons set forth in Brown, supra, 11 Cal.5th 204, the Court finds the alleged facts to be insufficient to show a special relationship existed between Defendant here and Plaintiff.

            Nothing in Plaintiff’s opposition disrupts this conclusion. There, Plaintiff argues he had “every reason to look to BBBSA for protection” because BBBSA itself published reports in 1982 and 1986 on the issue of sexual abuse as it pertained to BBBSA, and it publishes Standards for Practice for One-to-One Service” setting forth specific guidelines for how affiliates must operate and maintain their respective operations to keep children in its programs safe.  (See Opp.) However, as noted by Defendant in reply, the reports in question were generated five years after the alleged assault. Similarly, the Standards did not exist at the time of the alleged assault. Accordingly, these sources cannot show that at the time of the assault BBBSA controlled the environment that enabled Plaintiff's assault, or that Plaintiff had any reasonable dependency on BBBSA at the time for protection. 

            Plaintiff also argues that even without a special relationship, BBBSA owed him a general duty of care under Civil Code section 1714. However, while a person may maintain a duty to act with reasonable care under the circumstances as provided for in California Civil Code § 1714, it is also well-established that “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 211) (quoting Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) Otherwise, “[a] person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” (Regents, supra, 4 Cal.5th at p. 619.) Here,  Plaintiff has not alleged any facts which could show affirmative action by BBBSA that gave rise to a duty to act.  

            Based on the foregoing, BBSA’s demurrer to Plaintiff’s Complaint is sustained, without leave to amend.

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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