Judge: Stephen P. Pfahler, Case: 22CHCV01426, Date: 2023-12-11 Tentative Ruling

Case Number: 22CHCV01426    Hearing Date: December 11, 2023    Dept: F49

Dept. F-49

Date: 12-11-23

Case # 22CHCV01426

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendants, Doe 1

RESPONDING PARTY: Plaintiff, E.P.

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         3rd Cause of Action: Negligent Hiring and/or Retention, Negligent Supervision

·         4th Cause of Action: Negligent Supervision of a Minor

 

Motion to Strike

 

SUMMARY OF ACTION

From1987-1992, plaintiff E.P. alleges systematic and regular sexual abuse and molestation by a defendant identified as Doe 3, while Plaintiff was both a minor and present in an unspecified facility identified as the “Pacoima Congregation.” Plaintiff alleges “Pacoima Congregation” was aware of the activities of Doe 3, and failed to stop or report it.

 

On December 19, 2022, and July 26, 2023, Plaintiff filed a complaint and first amended complaint for Sexual Assault of a Minor, Intentional Infliction of Emotional Distress, Negligent Supervision of a Minor, Negligent Hiring and/or Retention, Negligent Supervision, and Negligence, and Does 1-3. On August 23, 2023, Doe 2, answered. On November 20, 2023, the court entered an order for dismissal of Doe 3 pursuant to the request of Plaintiff at the November 20, 2023, Case Management Conference.

 

RULING

Demurrer: Overruled

Requests for Judicial Notice: Denied.

 

The notice of demurrer challenges the third and fourth causes of action for Negligent Hiring and/or Retention, Negligent Supervision, and Negligence. The body of the demurrer also includes a challenge the first and second causes of action without any actual notice or even identification of the causes of action for Sexual Assault of a Minor, Intentional Infliction of Emotional Distress. Doe 3 is the only named defendant in the first and second causes of action, however. Doe 3 was dismissed by the court on November 20, 2023. The causes of action are now moot. Doe 1 is only named in the third and fourth causes of action. The court otherwise declines to consider any arguments by Doe 2 as to cause of action it is not a named party.

 

Doe 1 submits the subject demurrer on grounds of failure to state facts regarding the wrongful conduct of Doe 1 for acts allegedly committed by Doe 3. Doe 1 also challenges the insufficiency of any basis of duty imposed against Doe 1 to protect Plaintiff from Doe 3. Plaintiff in opposition counters that the argument relying on Code of Civil Procedure is “outdated and inapplicable” and Plaintiff properly states a claim under the statute. Plaintiff additionally maintains the operative complaint otherwise properly pleads all claims, including the basis of a duty of care. Defendant in a TWO DAY LATE reply emphasizes a lack of facts establishing liability under the operative statute. The argument relies on denial of any prior knowledge.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

4th Cause of Action: Negligent Supervision of a Minor

Defendant first challenges the instant cause of action on grounds of insufficient facts, specifically a lack of knowledge by Doe 1 of the alleged conduct of Doe 3, thereby establishing a basis of liability against the business entity. Defendant also challenges the lack of facts establishing a special relationship and therefore a duty of care to protect the minor. Plaintiff in opposition challenges the argument on grounds that Defendant presents an “outdate and inapplicable” standard for the subject statutory claim. Plaintiff also maintains that Defendant improperly relies on extrinsic inference.

 

The court begins with the governing statute, Code of Civil Procedure section 340.1. The section states in relevant part:

 

“(a) In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later, for any of the following actions:

(1) An action against any person for committing an act of childhood sexual assault.

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(b)(1) In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.

(2) For purposes of this subdivision, a “cover up” is a concerted effort to hide evidence relating to childhood sexual assault.

(c) An action described in paragraph (2) or (3) of subdivision (a) shall not be commenced on or after the plaintiff's 40th birthday unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.

...

(f) Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g).

...

(r) The changes made to the time period under subdivision (a) as amended by the act that amended this subdivision in 2019 ¿1 apply to and revive any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment, and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.”

 

The court relies on the current iteration of the statute for purposes of determining the sufficiency of the complaint. “‘[L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention’” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844 [“[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application”].) “[A] statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent “some constitutional objection” to retroactivity.” (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) “But it has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475.)

 

“‘[T]he interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.’ (Citation.) When this court ‘finally and definitively’ interprets a statute, the Legislature does not have the power to then state that a later amendment merely declared existing law.” (Citation).) [¶] “However, ‘if the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration. [Citation.] But even then, ‘a legislative declaration of an existing statute's meaning’ is but a factor for a court to consider and ‘is neither binding nor conclusive in construing the statute.’ [Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.)

 

The California Supreme Court previously interpreted legislative extensions of the statute of limitations for sex crimes applied to Code of Civil Procedure section 340.1. (Quarry v. Doe I (2012) 53 Cal.4th 945.) Consistent with the authority cited above, the court found that retroactive application of lapsed claims was allowable, when expressly authorized. (Id. at pp. 955, 957.) The court provides extensive discussion of the evolution of the amendments, including the revival of third party claims. The court found the revival of said lapsed third party claims valid based on express language in the 2002 amendments, rather than the relied upon 1998 and 1999 amendments cited by Defendants. (Id. at pp. 967-971, 984.) The court also acknowledged the remedial purpose of the statute as indicated in the legislative comments in support of the extension. (Id. at pp. 988-990; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 546, 545 [Code Civil Procedure section 340.1 a remedial statute to hold entities responsible for injuries caused to victims].)

 

Doe 1 appears in the action as the identified “religious non-profit corporation organized and existing under ... the laws of the State of New York.” [First Amend. Comp., ¶ 6.] The complaint specifically alleges knowledge of the potential child molesting activities within its congregation, and chose to intentionally discourage any reports to the police. [First Amend. Comp., ¶¶ 23-24.] The subject allegations sufficiently meet the pleading standard for knowledge. (Code Civ. Proc., § 340.1 subd. (c).)

 

As for the age of Plaintiff, the complaint alleges a range of dates from 1987 to 1992, when Plaintiff was four (4) to six (6) years old to ages nine (9) to 11. [First Amend. Comp., ¶¶ 25, 31-32.] Plaintiff is over the age of 40 at the time of the subject action. [First Amend. Comp., ¶ 4.] Again, the allegations comply with the statutory standard for liability against Doe 1. (Code Civ. Proc., § 340.1 subd. (c).)

 

As for the basis of special duty, the court also finds the allegations sufficiently pled. “A defendant cannot be held liable in negligence for harms it did not cause unless there are special circumstances — such as a special relationship to the parties — that give the defendant a special obligation to offer protection or assistance. This rule reflects a long-standing balance between several competing interests. It avoids difficult questions about how to measure the legal liability of the stranger who fails to take affirmative steps to prevent foreseeable harm, instead leaving the stranger to make his or her own choices about what assistance to offer. (Citation.) At the same time, it extends a right of recovery to individuals in relationships involving dependence or control, and who by virtue of those relationships have reason to expect the defendant's protection. (Citation.) Where such a special relationship exists between the defendant and a minor, the obligation to provide such protection and assistance may include a duty to protect the minor from third party abuse.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 220.) “A court considers whether the parties have a special relationship by considering the particular facts and circumstances of their association with one another.” (Id. at p. 221.)

 

The complaint specifically alleges the placement of Plaintiff with Doe 3, where the alleged abuse and molestation occurred under the guise of mandatory bible study courses at the home of Doe 3. [First Amend. Comp., ¶¶ 25-29.] The establishment of mandatory bible study for minors and allowance of the placement of said children with Doe 3, allegedly knowing of the prurient activities, both articulates the basis for an imposition of a special duty, but also completes the claim for breach, causation and damages. The demurrer is overruled.

 

3rd Cause of Action: Negligent Hiring and/or Retention, Negligent Supervision

Similar to the fourth cause of action, Defendant challenges the subject claim on grounds that Defendant only learned of the alleged conduct “after” it occurred, and therefore no retractive fault lies with Defendant. Plaintiff counters that the abuse was first reported between the ages of four and six, and continued well after the initial report during mandated bible study courses.

 

The complaint in fact alleges the reporting of the conduct during the alleged period of relevant time. [First Amend. Comp., ¶¶ 31, 67.] Based on both the special duty of care, and knowledge, the court finds the operative complaint sufficiently articulates negligent hiring. (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1565-1566.) The demurrer is overruled.

 

 

Motion to Strike: Denied.

Defendant moves to strike paragraphs 33, 35, 36, 37, 38, 40, subsection (c), 41, subsection (c), 42, 67, 68, a portion of paragraph 70, and paragraph 74. Paragraphs 33, 35, 36, 37, 38, 40, 41, and 42, are introductory paragraphs, while 67, 68, 70 and 74, are all part of the third cause of action. Defendant moves to strike the factual allegations based on challenges to the validity and veracity of the claims, including a denial of any duty to report said conduct to any law enforcement agency/ies. Defendant also presents an argument regarding clergy-penitent privilege, as well as a series of citations suggesting the subject allegations seek to “punish” Doe 1 for religious beliefs in violation of the First Amendment to the United States Constitution.

 

Plaintiff in opposition contends the motion improperly tries to recharacterize the basis of the complaint as one involving a mandatory reporting duty, which is not the purpose of the action. Plaintiff also denies any application of the clergy-penitent privilege or any Constitutional Rights challenge.

 

Defendant in a TWO DAY LATE reply challenges the objection to the judicial notice regarding the characterization of elders as volunteers. Regardless, Defendant reiterates the lack of any mandatory duty to report, and the clergy-petinent privileges.

 

To the extent, certain arguments challenging the statutory sufficiency of the claim duplicate the demurrer, the motion to strike is denied on this basis. The court otherwise finds no basis for consideration of the mandatory duty to report or warn the congregation argument. (Conti v. Watchtower Bible & Tract Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1226.) The arguments regarding potentially privileged information or constitutional challenges are both insufficiently supported and exceed the scope of the motion.


The motion to strike is denied.

 

In summary, the demurrer is overruled and the motion to strike denied. Doe 1 to answer the operative complaint within 10 days of this order.

 

Doe 1 to give notice.