Judge Thomas D. Long, Case Number: 22STCV39581, Date: 2024-06-27 Tentative Ruling

On December 19, 2022, Plaintiff W.B. filed this action against Doe Defendants, arising from childhood sexual assault. The Complaint alleges (1) negligent hiring, retention, and supervision; (2) negligent supervision of a minor; (3) negligence; and (4) and failure to report suspected child abuse in violation of Penal Code section 11164 based on vicarious liability.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Defendant first argues that this action is time-barred. However, as explained in the Opposition, the action is timely under California’s 2020 childhood sexual assault revival statute, codified at Code of Civil Procedure section 340.1, subdivision (q). Defendant abandoned this argument in its Reply.

B. Plaintiff Does Not Allege Sufficient Facts About Defendant’s Knowledge of the Abuse.

Defendant also argues that the first, second, and third causes of action (based in negligence) do not contain facts showing that Perpetrator’s conduct was foreseeable to Defendant. (The third cause of action is actually not brought against Defendant Doe 2.)

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) An employer may be liable to a third person for negligent hiring or retention when the employer hired an employee who was incompetent or unfit, the employer had reason to believe an undue risk of harm would exist because of the employment, and harm occurred. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213-1214.) A claim for negligent supervision requires a showing of foreseeability of a particular risk of harm. (D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 235.)

The Complaint alleges that Plaintiff was sexually assaulted by Perpetrator (an employee, agent, servant, member, and/or volunteer of Defendants) for about seven years. (Complaint ¶¶ 15, 27.) The abuse occurred at Perpetrator’s trailer home when Perpetrator used the position conferred upon him by Defendants as a mentor to garner Plaintiff’s trust. (Complaint ¶¶ 27-28.)

Plaintiff alleges that Defendant was “aware of the risk of sexual assault because, among other things, Defendants had a prior history of abuse perpetrated by their Big Brothers. For example, in August of 1977, Big Brother Donald Rimbey [a member of Doe 2] was charged with six counts of molesting two nine-year-old boys.” (Complaint ¶ 32.) This abuse was done by a different individual, and it occurred several years before Perpetrator’s abuse of Plaintiff beginning in 1983. (See Complaint ¶ 27.)

Plaintiff alleges that Defendant knew or was on notice about “Perpetrator’s dangerous and sexual propensities towards minors in part because Perpetrator was openly physical and affectionate with other male minors.” (Complaint ¶ 33.) This does not specifically state that Defendant was aware of actual abuse and does not show a foreseeability of a particular risk of that harm. Additionally, “Defendants received reports and complaints of Perpetrator’s inappropriate behavior and inappropriate meetings with minors prior to Perpetrator’s sexual assault of Plaintiff.” (Complaint ¶ 33.) This too is conclusory and does not state specific facts about Defendant’s knowledge. (See also Complaint ¶¶ 42-46, 60, 62, 70.)

In opposition, Plaintiff relies on Defendant’s representations on its website that Defendant is accountable for each child in its program and prioritizes safety. (Opposition at pp. 6-7; see Complaint ¶¶ 9-12.) This is not a substitute for Defendant’s knowledge of and foreseeability of the risk of specific harm.

The demurrer to the first and second causes of action is sustained. (The third cause of action is not brought against Defendant.)

Similarly, the fourth cause of action for failure to report suspected child abuse alleges that Defendant “had knowledge of or reasonably suspected that Plaintiff was a victim of child abuse because it was objectively reasonable to suspect, based on Perpetrator’s improper conduct, that Perpetrator was sexually abusing, sexually assaulting, and exploiting Plaintiff.” (Complaint ¶ 86.) As with the first three causes of action, The Complain lacks sufficient facts to show Defendant’s knowledge.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court