Judge Matthew C. Braner, Case Number: 37-2023-00025872-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00025872-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00025872-CU-PO-CTL G VS VICTORY OUTREACH INTERNATIONAL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Victory Outreach International and Victory Outreach San Diego's demurrers are OVERRULED in part, and SUSTAINED in part.

A demurrer may be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., � 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) It is not necessary to 'plead evidentiary facts supporting [an] allegation of ultimate fact,' and a pleading 'is adequate so long as it apprises the defendant of the factual basis for the claim.' (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) In considering whether the complaint adequately states a claim, the court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants demur to the only causes of action alleged against them: the third, fourth, and fifth for negligent supervision, hiring, and retention, negligent supervision of a minor, and failure to report suspected child abuse, respectively. Defendants argue Plaintiff has failed to adequately allege the claims with sufficient 'detailed allegations' to satisfy the 'particularity in pleading requirement.' However, no such requirement exists for pleading these claims (which do not sound in fraud), and Defendant's arguments otherwise lack merit.

First, Plaintiff has adequately pled a claim for negligent hiring, supervision, and retention, which has five elements: 1) the defendant hired the employee; 2) the employee was unfit or incompetent to perform the work for which he or she was hired; 3) the defendant knew or should have known the employee was or became unfit or incompetent, and the employee's unfitness or incompetence presented a particular risk to others; 4) the employee's unfitness or incompetence harmed the plaintiff; and 5) the defendant's negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff's harm. (CACI 426.) Here, Plaintiff has alleged Defendants hired Defendant Joaquin Adame, who then acted as their agent, (Complaint, �� 6, 67), and then became unfit for the position of a religious teacher/leader for children by sexually assaulting minors in Defendants' care. (Complaint, �� 41, 70.) Plaintiff alleges Defendants knew or should have known of this unfitness and risk to Plaintiff because Defendant Adame singled out Plaintiff and forced him to spend unnecessary, suspicious, and excessive private alone time with Plaintiff, and acted overly friendly, 'sweet talked,' and inappropriately grabbed Plaintiff at public events. (Complaint, � 41.) Plaintiff alleges Defendant Adame sexually assaulted him (i.e., harm) and that he would not have been harmed but for Defendants' negligence in hiring, Calendar No.: Event ID: TENTATIVE RULINGS

3105668 18 CASE NUMBER: CASE TITLE: G VS VICTORY OUTREACH INTERNATIONAL [IMAGED] 37-2023-00025872-CU-PO-CTL supervising, and retaining Defendant Adame. (Complaint, �� 12, 22, 68, 75.) Second, Plaintiff has adequately pled a claim for negligent supervision of a minor, which has the elements of general negligence: 1) duty; 2) breach; 3) causation; and 4) damages. (See, e.g., Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) Here, Plaintiff alleges Defendants, as a religious institution that assumed custody, care, and control over Plaintiff, had a special in loco parentis duty to supervise and protect him while under their care. (Complaint, �� 31, 47, 67-68.) Defendants breached that duty by failing to protect Plaintiff from sexual assault by Defendant Adame despite knowing or being on sufficient notice of Defendant Adame's suspicious behavior, that such risk of harm was foreseeable, and Plaintiff in fact suffered such harm. (Complaint, �� 41, 78, 80-82.) Accordingly, the demurrer is overruled as to the third and fourth causes of action.

Finally, Plaintiff has not adequately pled a claim for failure to report child sexual abuse under Penal Code section 11165.9. Plaintiff alleges he was the victim of child sexual abuse by Defendant Adame, and that Defendants' employees and agents were 'mandated reporters' under Penal Code section 11165.7. (Complaint, � 88.) Plaintiff alleges Defendants have vicarious liability for their employees' failure to report the child sexual abuse of Plaintiff by Defendant Adame, which they knew or should have known had occurred or was ongoing, given the red flags described earlier in the complaint. (Complaint, �� 86-95; see Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 138 [breach of the duty to report may give rise to a claim under the doctrine of negligence per se].) However, Plaintiff has failed to allege with any degree of specificity who the purported mandated reporters were. A mandated reporter who 'fails to report an incident of known or reasonably suspected child abuse or neglect as required by [� 11166] is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1000) or by both that imprisonment and fine.' (Pen. Code, � 11166, subd. (c).) The existence of this potential for individual criminal liability requires that Plaintiff specify the persons whom he alleges breached their mandated duty to report under Penal Code section 11166.

Accordingly, the demurrer is sustained with leave to amend as to the fifth cause of action.

Plaintiff has 30 days from entry of this order to file an amended complaint.

The minute order is the order of the court.

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3105668 18