Judge Thomas D. Long, Case Number: 22STCV39581, Date: 2025-04-01 Tentative Ruling

On August 12, 2024, Plaintiff W.B. filed a first amended complaint (“FAC”) 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.

On September 30, 2024, Defendant Doe 2 filed a demurrer to the first, second, and fourth causes of action.

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 argues that Plaintiff filed this untimely FAC without leave of court. (Demurrer at pp. 6-7.) On June 27, 2024, the Court sustained Defendant’s demurrer to the complaint with 30 days’ leave to amend. Plaintiff did not file the FAC until August 12, 2024. Although the FAC was filed late, the Court will not strike or dismiss it. Requiring Plaintiff to move for leave to re-file the FAC would be a waste of judicial and party resources.

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

Defendant also argues that the first and second causes of action (based in negligence) do not contain facts showing that Perpetrator’s conduct was foreseeable to Defendant

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) from about 1983 to 1990. (FAC ¶¶ 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. (FAC ¶¶ 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. From 1982 to 1987 alone, at least 22 Big Brothers were convicted of sexually assaulting their Littles. 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.” (FAC ¶ 33.) 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 also alleges that “[i]n 1986, another Big Brother who was a member of Doe 2 was sentenced to 18 years in prison after a jury found him guilty of three counts each of sodomy, oral copulation and lewd conduct with a child.” (FAC ¶ 33.) Although this was during the same time period as Plaintiff’s allegations, it too involved a different individual.

The FAC adds allegations that Defendant “has acknowledged that their program is attractive to potential molesters because it encourages volunteers to develop close, private relationships with boys who have no male role model or male figure in their lives, and are ‘high risk’ of being sexually abused.” (FAC ¶ 34.) Defendant “encouraged volunteers to spend weekends with their Littles, including allowing Big Brothers to host sleepovers without prior approval, despite the fact that sleepovers present a heightened danger to children of being sexually abused due to the intimate nature, private surroundings, extended duration, and long periods of isolation attendant with sleepovers.” (FAC ¶ 35.) These allegations are broad and do not allege facts regarding Defendant’s knowledge about the risk of harm to this Plaintiff from this Perpetrator. “[T]here can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.)

Like in the Complaint, 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,” and Defendant “received reports and complaints of Perpetrator’s inappropriate behavior and inappropriate meetings with minors prior to Perpetrator’s sexual assault of Plaintiff.” (FAC ¶ 37.) 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.” (FAC ¶ 37.) This too is conclusory and does not state specific facts about Defendant’s knowledge. Plaintiff did not amend any of these allegations after the prior demurrer.

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 ¶ 90.) As with the first two causes of action, the FAC lacks sufficient facts to show Defendant’s knowledge for their legal obligation to report reasonably suspicious incidents of child abuse.

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