Judge: Mark C. Kim, Case: 22LBCV00376, Date: 2023-03-07 Tentative Ruling
Case Number: 22LBCV00376 Hearing Date: March 7, 2023 Dept: S27
Plaintiff, R.A. filed this action
against Defendants, Doe 1, Doe 2, and Does 3-60. Plaintiff alleges Doe 1 is a CA nonprofit
that provided after-school programs, overnight camps, recreational services,
and other services to minors in LA County and surrounding areas; Doe 1 is a
partnership operated, run, controlled, managed, directed, supervised, and/or
operated by Doe 2. Plaintiff alleges Doe
2 is a national nonprofit corporation headquartered in the State of Illinois,
which managed, ran, controlled, oversaw, supervised and/or operated Doe 1.
Plaintiff alleges Robert “Bob”
Felder was an adult male employee of Does 1 and 2, and specifically was the general
manager of Doe 1. Plaintiff alleges
Felder died in 1986 and is not a party to the lawsuit. Plaintiff alleges he sustained childhood
sexual assault at the hands of Felder in the 1970s.
Plaintiff’s complaint includes
causes of action for negligent hiring, supervision, and retention against all
defendants and negligence against Does 31-50.
Plaintiff has amended his complaint to name Young Men’s Christian
Association of Greater Long Beach as Doe 1 and National Council of YMCAs of the
USA as Doe 2.
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. It raises issues of law, not fact, regarding the form or content of
the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on the
demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
A demurrer can
be used only to challenge defects that appear on the face of the pleading under
attack; or from matters outside the pleading that are judicially noticeable.
Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be
considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP §
430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial
notice may be taken], and § 430.50(a) [can be taken to the entire complaint or
any cause of action within]. Specifically, a demurrer may be brought per CCP §
430.10(e) if insufficient facts are stated to support the cause of action
asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no
jurisdiction of the subject of the cause of action alleged in the pleading.
Furthermore, demurrer for uncertainty will be sustained only where the
complaint is so bad that the defendant cannot reasonably respond. CCP §
430.10(f).
However, in construing the allegations, the court is to give effect to
specific factual allegations that may modify or limit inconsistent general or
conclusory allegations. Financial Corporation of America v. Wilburn, 189
Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are
inconsistent with facts which are incorporated by reference from exhibits
attached to the complaint, the facts in the incorporated exhibits control.
Further, irrespective of the name or label given to a cause of action by the
plaintiff, a general demurrer must be overruled if the facts as pled in the
body of the complaint state some valid claim for relief. Special demurrers are
not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the
complainant to show the Court that a pleading can be amended successfully.
(Id.)
Finally, CCP section 430.41 requires that “[b]efore filing a demurrer
pursuant to this chapter, the demurring party shall meet and confer in person
or by telephone with the party who filed the pleading that is subject to demurrer
for the purpose of determining whether an agreement can be reached that would
resolve the objections to be raised in the demurrer.” (CCP §430.41(a).) The
parties are to meet and confer at least five days before the date the
responsive pleading is due. (CCP §430.41(a)(2).) Thereafter, the demurring
party shall file and serve a declaration detailing their meet and confer
efforts. (CCP §430.41(a)(3).)
Defense Counsel submitted a declaration in satisfaction of the meet and
confer requirement.
Defendant filed a request for
judicial notice with its demurrer. Defendant
seeks judicial notice of its 1971 and 1975 constitution and bylaws. Plaintiff opposes the RJN, contending the documents
are not the proper subject of judicial notice.
Neither party cites a case directly on point. The Court finds it can take judicial notice
of the existence of the constitutions and bylaws, but not of the truth of the
matter asserted therein. At the pleading
stage, the Court will not make any factual determinations concerning the meaning
of the constitution and/or bylaws.
Plaintiff, with his opposition to
the demurrer, seeks judicial notice of a North Central District trial court
order overruling a demurrer brought by this same defendant on the same grounds
in another case against the defendant. The
RJN is granted, in that the Court takes judicial notice of the fact that the
ruling exists and is what it purports to be, but the Court notes that trial
court rulings have no precedential value, and the Court is not relying on the
other trial court’s ruling in rendering its ruling below.
Defendant’s first argument on demurrer
is that it has been misjoined in this case as a party. CCP §378 permits a demurrer for misjoinder
when the plaintiffs lack sufficient unity of interest. §379 permits a demurrer for misjoinder of
parties when there are no common questions or law and/or fact as to the defendants. Defendant did not make any showing that
either of these defects appears on the face of the complaint or that any matter
subject to judicial notice reveals these defects. The demurrer on the ground that Defendant has
been misjoined as a party is therefore overruled.
Defendant’s second argument is that
Plaintiff has failed to allege Defendant owed him a duty of care. Specifically, Defendant contends its
constitution and bylaws conclusively prove that Defendant had no control over
its co-defendant and/or Felder, and therefore there was no duty of care. Plaintiff’s complaint, however, alleges that
Defendant employed Felder. At the
pleading stage, this must be taken as true.
The demurrer on the ground that there is no duty running between
Plaintiff and Defendant is therefore overruled.
Defendant’s final argument is that Plaintiff
has not pleaded facts upon which to support his contention that there was an
employment relationship between Defendant and Felder, and therefore he has not
pled a claim for negligent hiring, supervision, and retention.
Pursuant to Berkley v. Dowds (2007)
152 Cal.App.4th 518, 527, negligence may be pleaded in general
terms, without specific facts showing how the injury occurred. Plaintiff herein alleges each and every
element of his claim for negligent hiring, supervision, and retention in the
body of his cause of action. Factual determinations
concerning whether the constitution and/or bylaws preclude liability on the
part of Defendant are not ripe at the pleading stage and must be raised in
connection with the fact-finding phase of the lawsuit, if at all.
The demurrer is overruled. Defendant must file an answer to the complaint
within ten days.
Moving Defendant is ordered to give
notice.
The Court notes that there are no
future hearing dates scheduled in this action.
The Court sets a Case Management Conference for May 24, 2023..
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If any party does not submit on the
tentative, the party should make arrangements to appear remotely at the hearing
on this matter.