Judge: Mark C. Kim, Case: BC624620, Date: 2023-04-20 Tentative Ruling

Case Number: BC624620    Hearing Date: April 20, 2023    Dept: S27

1.     BC624620

Plaintiff, Anna G., as GAL for Annie G., filed BC624620 against Defendants, Paramount Iceland Skating Rink, Glacial Garden Skating Arenas, LLC and Ron White for alleged criminal sexual abuse by Plaintiff’s former figure skating coach, Donald Vincent.  Plaintiff filed BC624620 on 6/21/16. 

 

Plaintiff alleges she suffered sexual abuse starting at the age of seven, and the abuse occurred at the Paramount Iceland Skating Rink.  Plaintiff alleges Vincent, prior to working at Paramount, worked at Glacial Garden, which was owned by White. 

 

Plaintiff alleges Glacial Garden fired Vincent when a staff member caught him in a dark locked room with a minor skater, a small boy, hiding under a bench with Vincent sitting over him.  The staff member had witnessed other boundary violating behaviors by Vincent.  After Glacial Garden fired Vincent, he applied with Paramount; Paramount vetted Vincent before hiring, and as part of the vetting, called Glacial Gardens and asked if there was any problem with Vincent, and was told by Glacial Garden’s employee that there was not a problem with him. 

 

Procedurally, on 11/19/18, the trial court, Honorable Michael P. Vicencia presiding, sustained Defendants’ demurrer to the TAC without leave to amend.  On 9/17/20, the Court of Appeals reversed the trial court’s decision in part and ordered the trial court to sustain the demurrer with leave to amend as to negligent and intentional misrepresentation (as to Glacial Garden), and to sustain the demurrer without leave to amend as to all other causes of action (and as to all causes of action as to White).  Plaintiff petitioned the Supreme Court for review, but the Supreme Court ultimately deemed the issue moot in light of its ruling on Brown v. Taekwondo (2021) 11 Cal.5th 204.  On 7/29/21, Plaintiff filed her operative Fourth Amended Complaint.  On 1/25/22, the Court sustained a demurrer to the 4AC in part, without leave to amend, and ordered Defendants to answer the remaining claims in the 4AC (the 3rd, 4th, and 5th causes of action). 

 

2.     22STCV31771

Plaintiff, Araceli Gonzalez Herrera filed 22STCV31771 against Defendant, Jacqueline Palmore on 9/27/22.  In 22STCV31771, Herrera alleges Palmore failed to report Vincent’s behavior, and her failure to report the behavior contributed to Plaintiff’s damages, which are the same as those detailed in BC624620.  Notably, Palmore is the Glacial Gardens employee who allegedly told Paramount there was no problem with Vincent.

 

3.     Consolidation

On 3/09/23, the Court consolidated the two actions for all purposes. 

4.     Demurrer

a.     Procedural History

Defendant filed this demurrer and motion to strike in 22STCV31771, prior to consolidation.  Defendant filed all moving papers on 1/20/23.  Thereafter, the cases were consolidated.  All opposition and reply papers have been correctly filed in BC624620, the lead consolidated case. 

 

b.     Request for Judicial Notice

Defendant seeks judicial notice of the TAC in BC624629 and various allegations therein.  The RJN is granted.  The Court will discuss the import of those allegations further below. 

 

Defendant also seeks judicial notice of the fact that the United States Olympic Committee “SafeSport” program was initiated in 2010 and not adopted until 2013.  Defendant contends the ruling in Brown v. USA Taekwondo, discussed at length below, conclusively so held.  Because Plaintiff does not object to the RJN, it is granted.  Again, the import of this fact will be discussed further below. 

 

c.     Parties’ Positions

Defendant demurs to the FAC.  She contends the FAC is subject to demurrer for various reasons.  First, she contends the negligence cause of action fails to state a cause of action because there was no special relationship between her and Plaintiff, or between her and Vincent.  Second, she contends the fraud cause of action fails because it lacks specificity, and also because it implicates the sham pleading doctrine; additionally, she contends Plaintiff failed to allege any intentional misrepresentation upon which Plaintiff relied.  Third, she contends the statutory cause of action for fraud and deceit fails for the same reasons stated in connection with the fraud cause of action; additionally, she contends reliance is not pled.  Finally, she contends the IIED cause of action fails to plead any conduct directed at Plaintiff, or even awareness of Plaintiff. 

Plaintiff opposes the demurrer.  She contends the negligence cause of action does not necessitate a special relationship because it is based on affirmative actions, rather than omissions.  She contends the fraud causes of action are pled with the requisite specificity, do not implicate the sham pleading doctrine, and adequately allege intentional misrepresentation and reliance.  She contends the IIED cause of action is adequately pled because a defendant does not need to specifically know of the plaintiff’s identity for the plaintiff to state a claim; the defendant must only direct her conduct at the class of persons to which the plaintiff belongs, which is the case here.

 

d.     Legal Standard on Demurrer

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).)

 

e.     Meet and Confer

Defense Counsel, Michael J. Dailey submitted a declaration in compliance with the meet and confer requirements. 

 

f.      Evidentiary Objections

Defendant submitted evidentiary objections with her reply.  She objects to the Declaration of Plaintiff’s attorney, Evan B. Marshall, on the ground that extrinsic evidence cannot be considered when determining the merits of a pleading challenge.  The Court will evaluate the FAC on its own merits, but will consider the Marshall Declaration for the purpose of determining whether leave to amend should be granted in the event the demurrer is overruled.  The objections are therefore overruled, but the Court will consider the declaration for that sole purpose. 

 

g.     Court of Appeals Opinion

On 6/21/21, the Court of Appeals issued its Remittitur in this case, which indicates its 9/17/20 opinion has now become final.  The opinion held (a) the negligence causes of action fail because Glacial Garden did not owe Plaintiff a duty of care; (b) Plaintiff cannot state a claim for IIED because Glacial Garden did not direct any conduct toward Plaintiff; (c) Plaintiff CAN state a claim for intentional misrepresentation against Glacial Garden, but not against White; specifically, Glacial Garden had a duty, through its employees, to not misrepresent Vincent’s fitness as a coach, and when its employee told Vincent’s future employer, Paramount, that Vincent was “fine,” even though he was known to be not “fine,” this led to Glacial Garden hiring Vincent, which led to Plaintiff’s harm.  The Court of Appeals noted that the trial court acted properly in sustaining the demurrer without leave to amend, as the plaintiff had already filed four complaints, and did not, at the hearing, indicate how she would amend if given leave to do so; however, she learned of facts subsequent to the hearing and prior to the ruling on appeal that supported her claims, and those facts were sufficient to state a claim against Glacial Garden.

 

h.     Supreme Court Opinion in Brown v. USA Taekwondo (2021) 11 Cal.5th 204

In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, the Supreme Court considered the issue of whether and when a defendant owes a duty to protect a plaintiff from the wrongful acts of a third party.  The plaintiffs in Brown were three female teenage competitive taekwondo athletes.  They were sexually abused by their coach, Marc Gitelman, over a period of several years.  They filed suit against Gitelman and several others, including USA Taekwondo (USAT) and the United States Olympic Committee (USOC). 

 

USAT is the national governing body for the sport of taekwondo, and USOC is a federally chartered nonprofit corporation whose function is to coordinate amateur sports throughout the country for athletes hoping to compete in the Olympics.  The plaintiffs alleged USAT was liable for failure to protect them from Gitelman because it failed to take sufficient steps to protect them once abuse allegations were made against him.  The plaintiffs alleged USOC was liable for failure to protect them from Gitelman because the USOC required USAT to adopt a Safe Sport Program, but failed to ensure it actually did so.

 

The trial court sustained USAT’s demurrer and also USOC’s demurrer.  The Court of Appeals affirmed as to USOC but overturned as to USAT.  The Supreme Court agreed with the Court of Appeals.  The main issue on appeal was whether and to what extent USAT and/or USOC had a duty to protect the plaintiffs from the wrongful and wrongful acts of Gitelman.

 

The Supreme Court noted that there was a split in authority concerning whether and when such duty arises.  All courts agree that there is ordinarily no duty to protect against the wrongful conduct of a third party.  In determining whether an exception to the general rule exists, some Courts of Appeal have applied a two-step test, where the court must first determine whether a special relationship exists and, if it does, must then apply the Rowland factors to determine whether to impose a duty.  Other Courts of Appeal have held that EITHER the special relationship test OR the Rowland test could be used, and if either were answered in the affirmative, then a duty would exist.  Still other Courts of Appeal held that the special relationship test incorporates the Rowland test, and the two are used in lockstep in order to make the duty determination.

With respect to a special relationship, the Supreme Court explained, “A special relationship between the defendant and the victim is one that “gives the victim a right to expect” protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that “entails an ability to control [the third party's] conduct.” (Regents, supra, 4 Cal.5th at p. 619.) Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. (Id. at pp. 619–620, 230 Cal.Rptr.3d 415, 413 P.3d 656; see Rest.3d Torts, supra, §§ 40–41.) The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly. (See, e.g., Rest.3d Torts, supra, § 40, com. h, pp. 42–43.)”

 

With respect to the so-called “Rowland factors,” the Supreme Court explained, “To depart from the general principle that all persons owe a duty of care to avoid injuring others, we explained, ‘involves the balancing of a number of 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.’”

 

The Supreme Court ultimately determined that trial courts must apply a two-step test to determine whether to impose a duty on a defendant to protect a plaintiff from harm caused by a third party.  The trial court must first determine if there is a special relationship between the plaintiff and the defendant or the defendant and the third party.  If and only if there is, the trial court must go on to determine whether imposing liability is appropriate using the Rowland factors.  The Supreme Court affirmed the Court of Appeals’ determination that such a duty was appropriately applied to USAT, both because USAT had a special relationship with the plaintiffs, and also because there was no Rowland factor that would limit USAT’s duty.  The Supreme Court also affirmed the Court of Appeals’ decision that USOC should be dismissed, holding that because USOC lacked a special relationship with the plaintiffs or with their coach, no duty ran from it to the plaintiffs to protect them from their coach’s wrongful conduct. 

 

The Supreme Court held the plaintiffs had pled a special duty running between USAT and Gitelman because USAT was able to control Gitelman’s actions, as demonstrated by USAT registering him as a coach, taking disciplinary action against him, and ultimately barring him from coaching.  USOC, in contrast, had no special relationship with Gitelman or the plaintiffs because USOC had only the ability to regulate USAT, but no independent obligations of its own. 

 

i.      Negligence

Defendant demurs to the negligence cause of action on the ground that Plaintiff failed to allege a special relationship, as required by Brown, supra, to support her claims against Defendant.  Plaintiff, in opposition to the demurrer, concedes a special relationship must be pled in order to support a claim for negligence based on omission, but contends she is alleging negligence based on an affirmative statement, not based on an omission to speak.  Thus, it appears Plaintiff is actually alleging a cause of action for negligent misrepresentation.

 

In reply, Defendant contends the negligent misrepresentation cause of action is insufficiently pled because Plaintiff has not pled reliance.  Plaintiff is alleging Sparks, as an agent of Paramount, relied on Defendant’s statements that Vincent was “fine,” when he really was not.  Defendant contends the conversation at issue was alleged to have occurred in 2009, but Paramount had already hired Vincent in 2008, and therefore there could be no reliance on any such statement to support a claim for negligent misrepresentation. 

 

Plaintiff’s FAC, at ¶4, alleges Vincent coached at Glacial Garden from 2007 to 2008, at Paramount from August of 2008 to December of 2011, and at Skating Edge from December of 2011 to January of 2013.  At ¶40, Plaintiff alleges, “In 2009, when Vincent was seeking to be put on staff at Paramount (i.e., after being fired by Glacial)…Sparks called…and spoke to Defendant Palmore to ascertain if there was any reason Vincent should not be allowed to teach at Paramount.”  This is the conversation where Plaintiff alleges Defendant told Sparks Vincent was “fine.” 

 

Defendant argues Sparks could not have relied on this conversation to hire Vincent because the conversation took place in 2009, but Vincent was hired in 2008.  Plaintiff does not meaningfully explain this problem in her opposition.  Indeed, the opposition, at page 3, line 14, repeats the assertion that the phone call took place in 2009.  Plaintiff argues, at page 6, lines 17-20, that the FAC clearly alleges the phone call took place after Vincent left Glacial Garden but before Paramount hired Vincent.  She does not, however, dispute the fact that she alleges Paramount hired Vincent in 2008 but the conversation took place in 2009. 

 

Plaintiff must clarify her timeline by way of an amended complaint to assert her claim for negligence, which must be labeled as negligent misrepresentation, as this is really what she is attempting to plead. 

 

j.      Intentional Misrepresentation

Defendant’s first argument is that the cause of action for intentional misrepresentation fails to state a cause of action because it lacks specificity with respect to the timing of the phone call, which is made more troublesome due to the inconsistencies with the dates, detailed above.  The demurrer is sustained with leave to amend on this ground; Plaintiff must explain the timeline in manner consistent with her conclusions concerning reliance.

 

Defendant also argues Plaintiff is violating the sham pleading doctrine by asserting this cause of action.  Specifically, she contends Plaintiff, in her Third Amended Complaint in the related (now consolidated) action, alleged Sparks witnessed Vincent engaging in suspicious behavior with minors immediately after hiring him, but did nothing to protect Plaintiff from his abuse.  Defendant alleges Plaintiff is engaged in a sham pleading by failing to include those details in her FAC against Defendant, and these details prove that Defendant’s speech or failure to speak did not cause Sparks to hire or retain Vincent. 

 

In opposition, Plaintiff alleges she learned, AFTER making these allegations against Sparks, that Sparks was taking the position that she relied on Defendant’s statements and would not have retained Vincent if Defendant had spoken truthfully.  These arguments, in opposition to the demurrer, are made in Counsel’s declaration and attached portions of the Sparks deposition transcript; there are no allegations in the FAC in this regard. 

 

The demurrer is sustained with leave to amend, and Plaintiff must plead facts specifically showing that (a) the conversation between Sparks and Defendant happened at a time that could induce reliance, and (b) Sparks would have acted differently if Defendant had spoken truthfully.

 

Defendant also argues Plaintiff does not and cannot allege that she relied on any statement made by Defendant.  Defendant notes that Plaintiff and Defendant never met or spoke.  Plaintiff, in opposition to the demurrer, cites Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1078, wherein the Court held that the minor plaintiff need not personally rely on statements about her abuser’s fitness to teach or coach her, and it is sufficient that some adult in charge of her care relied on such statements.  Defendant does not cite anything contrary in reply.  The demurrer on this ground is overruled.

 

Defendant does, in reply, argue Plaintiff cannot plead Defendant knew Vincent was going to abuse her, and also argues the abuse was not foreseeable, as it occurred in 2011 after Vincent commenced homeschooling her in 2011.  These are issues of fact, not pleading issues.  Defendant also argues her statement was one of opinion and is therefore not actionable.  If, as is pled, Defendant knew Vincent had engaged in appropriate behavior with children, and instead of stating as much, stated he was “fine,” a trier of fact could find this is not a statement of opinion in context.  The demurrer on this ground is overruled.

 

k.     Fraud and Deceit

Defendant challenges this cause of action on the same bases as the intentional misrepresentation cause of action, and the demurrer is sustained on the grounds discussed above.  Defendant also argues Plaintiff, when pleading a statutory claim for fraud and deceit (as opposed to a common law claim for intentional misrepresentation), must plead that she herself relied on the statements made.  Plaintiff cites nothing contrary in opposition.  The demurrer on this ground is sustained.  Because this is a purely legal issue, and because Plaintiff did not address it in opposition, leave to amend is denied.

 

l.      IIED

Defendant’s sole argument in support of her demurrer to the IIED cause of action is that Plaintiff failed to allege Defendant directed any conduct at Plaintiff or Defendant’s conduct occurred in the presence of Plaintiff, whose presence Defendant was aware of. 

 

Plaintiff, in opposition to the demurrer, contends Defendant does not need to know her victim’s identity or direct her conduct toward her victim, so long as the damages result from the defendant’s breach of a duty owed to the plaintiff.  Plaintiff fails, however, to show that Defendant had even a vague idea that she existed, regardless of whether Defendant knew of her identity.  The demurrer is sustained without leave to amend.

 

5.     Motion to Strike

a.     Parties’ Positions

Defendant also filed a motion to strike attacking the FAC.  Defendant moves to strike the entire FAC as a sham pleading.  Alternatively, she moves to strike all allegations relating to the SafeSport program, because the program did not exist during the relevant time period.  Additionally, she moves to strike Plaintiff’s prayers for punitive damages and attorneys’ fees, contending neither is supported by the facts of the case.

 

Plaintiff opposes the motion.  She argues the sham pleading doctrine is not implicated because there is a viable reason for the discrepancies between the prior pleading and the current pleading.  She contends punitive damages are appropriate because she has properly alleged fraud, malice, and/or oppression.  She contends attorneys’ fees are appropriate pursuant to the tort of another doctrine. 

 

b.     Sham Pleading

The Court discussed the sham pleading argument above.  Plaintiff must cure the defects detailed above by way of a Second Amended Complaint.

 

c.     SportSafe Program

Plaintiff’s FAC contains myriad allegations about the SportSafe program, which is a mandatory reporting program that Plaintiff alleges gave rise to a reporting duty on the part of Defendant.  Defendant notes that the program was created in 2010 and enacted in 2013, both of which were after the alleged conversation that gives rise to this action.  Defendant therefore moves to strike the references as irrelevant to the litigation.

 

Plaintiff, in opposition to the motion, argues the safety rules were already in place and governed Defendant prior to their formal implementation.  Plaintiff is free to allege that there were rules in place prior to 2010, but her allegations concerning a program that did not exist at the time of the conversation cannot be relevant to Defendant’s duty.

 

Plaintiff also argues Defendant’s duty to speak up arose no later than 2010, and if she had spoken up then, the damage to Plaintiff would not have occurred.  There are two problems with this argument.  First, while Defendant’s RJN showed the program was created in 2010, it was not actually enacted until 2013.  Second, Plaintiff fails to cite to any rule that says a person in a supervisory position had a duty, when the rules were enacted, to report behavior that had occurred many years prior and was perpetrated by a person no longer managed by the supervisor. 

 

The motion to strike is granted.  Leave to amend to make reference to the rules if and only if Plaintiff can either allege that they were in place at the relevant time period and/or that Defendant was governed by them during the relevant time period.  Plaintiff is granted leave to amend to add allegations concerning any rules that were in place at the relevant time. 

 

d.     Punitive Damages

Plaintiff currently has no cause of action adequately pled against Defendant.  The motion to strike the prayer for punitive damages is therefore moot.  The Court notes that, if Plaintiff successfully pleads a cause of action for fraud, the cause of action will support imposition of punitive damages. 

 

e.     Attorneys’ Fees

Defendant correctly notes that the American rule requires each side to pay her own attorneys’ fees.  Plaintiff argues an exception to the rule exists where, as here, she is seeking attorneys’ fees as an element of costs under the tort of another doctrine.  Plaintiff does not meaningfully articulate how that doctrine applies here.  This is an ordinary tort action with multiple alleged joint tortfeasors.  The motion to strike is granted without leave to amend. 

 

6.     Conclusion

The demurrer is sustained with leave to amend on the grounds detailed above.  Plaintiff must file a Second Amended Complaint within thirty days.  Defendant must file a responsive pleading within the statutory time thereafter. 

 

7.     Case Management Conference  

The parties are reminded that there is a CMC on calendar concurrently with the hearing on the demurrer and motion to strike.  The Court asks Counsel to make arrangements to appear remotely at the hearing on the demurrer, motion to strike, and CMC.