Judge: Lee W. Tsao, Case: 22NWCV01526, Date: 2024-01-16 Tentative Ruling
Case Number: 22NWCV01526 Hearing Date: January 16, 2024 Dept: C
E. S. vs DOE 1, et al.
Case No.: 22NWCV01526
Hearing Date: January 16, 2024 @ 9:30 AM
#2
Tentative Ruling
I.
Defendant DOE 1’s Demurrer is OVERRULED.
II.
Defendant’s Motion to Strike is DENIED.
Answer
is due within 20 days.
Defendant DOE 1 (“DOE 1”) demurs to the Third Cause of
Action for Negligent Hiring, Supervision, and Retention, and the Fourth Cause
of Action for Negligent Supervision of a Minor in the First Amended Complaint
(“FAC”) filed on July 7, 2023.
Background
Plaintiff, a female over the age of 40, alleges she was
sexually assaulted when she was between just ten to fifteen years old by
Defendant DOE 3 (“DOE 3”), an adult male, on a monthly basis between 1989 to
1993 at DOE 1’s Bell Gardens Congregation. (FAC ¶¶ 4, 23-24.) DOE 3 was DOE 1’s
employee, agent, and Ministerial Servant/Elders, at all relevant times. (Id. at
¶¶ 7-15, 24.) DOE 1 supervised and exercised control over DOE 3, finalized DOE
3’s appointment with its Bell Gardens Congregation, and formulated organizational
policies including promulgating mandatory policies for their congregation
regarding suspected childhood sexual abuse. (Id. at ¶¶ 7-18.)
DOE 3 was allegedly a “fellow member, agent, and leader of
Entity Defendants’ Bell Gardens Congregation” at that time. (Id. at ¶
25.) DOE 3 allegedly held “church services and other church affiliated mandated
activities” at Plaintiff’s grandfather’s home. (Id. at ¶ 26.) DOE 3
allegedly groomed and isolated Plaintiff in a room to perform acts of sexual
assault, abuse, and molestations. (Id. at ¶ 27.) DOE 3’s alleged sexual
assault, abuse, and molestation of Plaintiff ceased after Plaintiff reported it
to her mother. (Id. at ¶ 28.) Plaintiff’s mother subsequently reported DOE
3’s sexual assault, abuse, and molestation of Plaintiff to the “Entity
Defendants’ Elders at the Bell Gardens Congregation.” (Id. at ¶ 29.) The
Complaint alleges that the Entity Defendants’ Elders attempted to conceal and
cover up DOE 3’s sexual assaults by instructing Plaintiff’s mother to not
report the assault to the police. (Id.)
Request for Judicial Notice
Plaintiff requests Judicial
Notice of the Declaration of Michael A. Amaro which incorporates the previous
version of the Code of Civil Procedure.
The Request is GRANTED under Evidence
Code section 452(a) and (c).
Demurrer
Legal Standard
The party against whom a
complaint has been filed may object to the pleading, by demurrer, on several
grounds, including the ground that the pleading DOEs not state facts sufficient
to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an
entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)
Analysis
A. Third
Cause of Action: Negligent Hiring, Supervision, and Retention
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, 836-837.)
DOE 1 argues that the alleged molestation of Plaintiff
ceased before the elders of the church were notified of the molestation, so the
church cannot be held legally responsible.
According to DOE 1, Plaintiff’s Complaint fails to allege that Defendant
had knowledge of the perpetrator’s propensity or history of sexual misconduct
with minors, including the Plaintiff. (Santillan v. Roman Cath. Bishop of
Fresno (2012) 202 Cal.App.4th 708.)
The Court is unpersuaded.
The FAC alleges, upon information and belief, that “Defendants had
actual knowledge that DOE 3 was a sexual predator prior to 1989.” (FAC ¶ 30.) “Prior
to… DOE 3’s sexual assault and/or sexual abuse, and molestation of Plaintiff,
Defendants, through their agents, representative, servants, employees, and/or
volunteers knew or should have known, reasonably suspected, and/or were
otherwise on notice, that DOE 3 conduct and relationship with young children,
including Plaintiff, was inappropriate, unlawful, wrong, and/or otherwise
created a risk of childhood sexual assault.” (FAC ¶ 31.) The FAC goes on to
allege that “Elders at Entity Defendants’ Bell Garden Congregation were made
aware, and confirmed that DOE 3 had inappropriately touched, sexually assaulted
and/or sexually abused, and molested other children.” (FAC ¶ 32.) Based
thereon, the court determines that notice is sufficiently alleged under current
law. The allegations are not deficient
simply because they are alleged upon information and belief. "Plaintiff may allege on information and
belief any matters that are not within his personal knowledge, if he has
information leading him to believe that the allegations are true.” (Pridonoff
v. Balokovich (1951) 36 Cal.2d 788, 792.)
DOE 1 also contends that there was no special relationship
between DOE 1 and Plaintiff giving rise to a duty to protect Plaintiff from
harm. Here, DOE 1’s duty to protect
Plaintiff from harm arises from its control over DOE 3. “In a case involving harm caused by a third party,
a person may have an affirmative duty to protect the victim of another's harm
if that person is in what the law calls a “special relationship” with either
the victim or the person who created the harm.” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 215 (emphasis added).)
Paragraph 16 of the FAC alleges “DOE 1 had the ability to control who became an
employee, volunteer, and/or agent of the Bell Gardens Congregation including
DOE 3.” Paragraph 17 alleges “DOE 3 was
an employee, agent, servant, member, and/or volunteer of Defendants when he
sexually assaulted the Plaintiff—then a minor.” Thus, DOE 1’s duty to protect Plaintiff from
harm arises from its ability to control its employee, DOE 3.
Accordingly, the Court finds that Plaintiff has sufficiently
alleged the Third Cause of Action.
B. Fourth
Cause of Action: Negligent Supervision of a Minor
DOE 1 argues that Plaintiff’s Fourth Cause of Action for
Negligent Supervision of a Minor fails because DOE 1 did not owe a duty of care
to the Plaintiff. For the reasons
discussed above, the Court finds there was a special relationship between DOE 1
and the alleged third-party perpetrator, DOE 3, giving rise to DOE 1’s duty to
protect Plaintiff from harm.
Accordingly, the Court finds that Plaintiff has
sufficiently alleged the Fourth Cause of Action.
Motion to Strike
Motions to strike are used to reach defects or
objections to pleadings which are not challengeable by demurrer (i.e., words,
phrases, prayer for damages, etc.). (CCP §§ 435, 436 & 437.) A motion to
strike lies only where the pleading has irrelevant, false or improper matter,
or has not been drawn or filed in conformity with laws. (C.C.P. § 436.) The
grounds for moving to strike must appear on the face of the pleading or by way
of judicial notice. (C.C.P. § 437.)
The
Motion to Strike is DENIED. As noted above, Plaintiff has alleged
sufficient facts to support her claim for negligent supervision or hiring.