Judge Upinder S. Kalra, Case Number: 22STCV38179, Date: 2024-02-08 Tentative Ruling

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1. Demurrer to the First and Second Causes of Action for failure to state sufficient facts to constitute a cause of action;

1. Demurrer to the First and Second Causes of Action is SUSTAINED with leave to amend;

On December 7, 2022, Plaintiff D.L. (Plaintiff) filed a Complaint against Defendants DOE 1, a New York corporation and DOE 2, a California nonprofit corporation (Defendants) with three causes of action for: (1) Negligent Hiring, Supervision, and Retention; (2) Negligent Supervision of a Minor; and (3) Negligence.

On August 7, 2023, Defendant DOE 1 filed a motion to strike portions of the Complaint.

On October 23, 2023, Plaintiff filed the operative First Amended Complaint (FAC) with the same three causes of action.

According to the FAC, this is an action to recover damages on behalf of an adult who was a victim of childhood sexual assault pursuant to Cal. Code of Civil Procedure § 340.1. The alleged perpetrator was Lowell Banks (Banks) who is now deceased. Plaintiff alleges she met Banks through Defendants’ Highland Park Congregation where Banks held a position of authority.

On November 28, 2023, Defendant DOE 1 filed the instant demurrer and motion to strike portions of the FAC. On January 26, 2024, Plaintiff filed oppositions. On February 1, 2024, Defendant filed replies.

The court DENIES Defendant’s request for judicial notice of fact. The court grants Plaintiff’s request for judicial notice as to Exhibits 1, 2, and 3. (Evid. Code § 452(a), (c), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

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.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3). The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties met and conferred via telephone on July 14, 2023. (Walters Decl. ¶ 4.) Accordingly, this requirement is met.

The court starts its analysis with CCP § 340.1 because the two causes of action at issue here depend upon it.

Defendant contends that Plaintiff failed to sufficient plead a special relationship. Specifically, the FAC lacks facts that they had any control over DOE 3 (presumably this is Banks), that Plaintiff was in Defendant’s custody or control or expected protection from DOE 1 at her private residence, or that being a member of Defendant’s congregation established a special relationship. Defendant also contends that there are insufficient facts that Defendant had actual knowledge of Banks’ past unlawful sexual conduct prior to the alleged abuse therefore there are insufficient facts that Defendant was the legal cause of the sexual assault. Plaintiff argues that Defendant misinterprets CCP § 340.1(c). Plaintiff additionally argues that the FAC sufficiently alleges Banks’ misconduct during the course and scope of his employment for Defendant and that Defendant created the harm by mandating she attend, obey, and be led and isolated by Banks without any reasonable safeguards. Defendant replies that CCP § 340.1(c) is not a standalone basis for liability and that Plaintiff failed to sufficiently plead a special relationship/legal duty.

(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.

(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.

A plain reading of CCP § 340.1(c) indicates there are two methods to attach liability: first, with knowledge of any misconduct that creates a risk of childhood sexual assault by an employee, or, second, by failure to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.[2] Plaintiff argues that she sufficiently pled facts under either theory.

i. 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

The first avenue for liability requires actual knowledge or notice of the perpetrator’s unlawful sexual conduct. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545-549 (Doe); Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748, 774-775 (Deutsch); Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 717-718, 722 (Santillan).) This does not mean inquiry notice and does not create an inquiry duty. (Santillan, supra, at p. 718.) “Knew” means actual knowledge, “reason to know” means a person would have inferred the existence of the ultimate fact or would have regarded the existence of the ultimate fact as so highly probable as to have behaved in conformity with that belief, and “otherwise on notice” does not require a formal complaint or formal notice. (Doe, supra, at pp. 546-548 [noting, however, that the Doe court did not further develop what “otherwise on notice” means.]) In sum, “the knowledge or notice requirement refers to knowledge or notice of past unlawful sexual conduct by the individual currently accused of other unlawful sexual conduct.” (Id. at 549.)

Upon reviewing the FAC, Plaintiff has not sufficiently alleged knowledge by Defendant of any misconduct by Banks that created a risk of childhood sexual assault. First, Plaintiff alleges on information and belief that Defendants “knew or should have known of Banks’ dangerous propensities and prior inappropriate behavior with minor children but failed to warn Plaintiff or Plaintiff’s parents . . . .” and that Defendants’ “knew or should have known that Banks was committing inappropriate conduct with minor children, including Plaintiff.” (FAC ¶¶ 25, 27.) This is conclusory.[3] Second, Plaintiff alleges that “Defendants were made aware, and confirmed that Banks had inappropriate touched, sexually assaulted and/or sexually abused, and molested other children, including Plaintiff.” (FAC ¶ 28.) This is also conclusory. Third, Plaintiff alleges that Banks had “a propensity and history of which Defendants . . . had actual notice” and that “[p]rior to, during, and after the sexual assault of Plaintiff, Defendants . . . had knowledge, and/or were otherwise on notice, that Banks had and/or was engaged in, and/or presented the risk of, sexual assault of Plaintiff and other minors.” (FAC ¶¶ 40,43.) Again, this is conclusory. The only facts the court sees describe the alleged assault itself. (FAC ¶ 26.)

ii. Failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault

As a threshold matter, the court has not found authority interpreting the second avenue for liability under CCP § 340.1(c). As such, the court applies the plain meaning of the statute in its analysis. Upon reviewing the FAC, Plaintiff has not sufficiently alleged Defendant’s failure to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault either. First, Plaintiff alleges that Defendant “failed to take any remedial action,” “failed to notify or warn other members, parents of children active in their congregation, or any other persons of the possible risk of further childhood sexual abuse by Banks, limit or supervise Banks’ access to children, including Plaintiff, and notify law enforcement and other appropriate agencies of the known sexual assault and/or sexual abuse, and molestation of Plaintiff,” “refusal to timely and adequately act to prevent, stop, and report Banks’ unlawful and inappropriate misconduct.” (FAC ¶ 27, 29, 31.) These are conclusory. Second, Plaintiff alleges that Defendant “[failed] to take reasonable steps, and to implement reasonable policies, procedures, and safeguards to avoid, detect, and report acts of unlawful sexual conduct by employees, including Banks with minor children.” (FAC ¶33(f).) Again, this is conclusory. Third, Plaintiff alleges that Defendant “negligently failed to implement and/or enforce policies and procedures that were aimed at preventing or detecting sexual assault and assault of their minor members.” (FAC ¶ 56.) This is not factual allegations.

Accordingly, Plaintiff has not sufficiently alleged failure to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.

Therefore, the court SUSTAINS Defendant’s demurrer to the first and second causes of action with leave to amend.[4]

11. Paragraph 44, “but failed and/or refused to take any affirmative action, including but not limited to notifying law enforcement”

13. Paragraph 62 “and/or failed to notify law enforcement, despite having a legal duty to do so”

14. Paragraphs 13, 15, 16, 20, 39, 40, 43, 45, and 48 reference to “employee” or “employment”

1.Demurrer to the First and Second Causes of Action is SUSTAINED with 20 days leave to amend;

[1] The 2024 update to the statute applies to childhood sexual assault claims that occurred on or after January 1, 2024. (CCP § 340.1(p).) Claims that occurred on or before December 31, 2023 “may only be commenced pursuant to the applicable statute of limitations set forth in existing law as it read on December 31, 2023.” (Ibid.) Here, the 2022 and 2023 versions did not change subdivision (c) pertaining to plaintiffs who are 40 years or older at the time of filing.

[2] The court disagrees with Plaintiff’s argument that Doe and Santillan are outdated because they analyze what “knowledge” means and the court is unaware of authority overruling that analysis. Additionally, Plaintiff later argues that she sufficiently pled facts to revive her claim under the knowledge requirement. (Opp. 7:12-17.)

[3] There are less factual allegations here than in Doe which the Court held were deficient to survive demurrer. (Doe, supra, at pp. 537 [“the statute requires more specific allegations than were made by plaintiffs in this case.”])

[4] As such, the court declines to develop the remaining arguments at this time.