Case Name: Davila, et al. v. Lanzas
Case No.: 16-CV-302972

Defendant Dora Lanzas (“Lanzas”) demurs to the second amended complaint (“SAC”) filed by plaintiffs Jorge E. Davila, Daniel Barrios, Uriel Vargas, Jose E. Castro, Kevin Gonzalez and Christian Castro (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for negligence and emotional distress. According to the allegations of the SAC, Plaintiffs attended the church were Lanzas and her husband, Gustavo Lanzas (“Gustavo”), were pastors. (SAC, ¶ 6.) Between 2004 and 2008, Lanzas lured Plaintiffs (minor children at the time) to defendant her home where Gustavo sexually molested them. (Id., ¶ 7.)

Lanzas allegedly invited specific minors handpicked by her husband to come to her come to her home, and then left them overnight with perpetrator Gustavo, who molested them. (SAC. ¶ 7.) Lanzas lured Plaintiffs there under the pretense of her husband conducting “sex education” class for the boys attending the church. (Id., ¶ 9.) Lanzas communicated to church members and others that she had actual knowledge and was aware of the sexual molestation of multiple minor boys by her husband since the early 1990’s and of Plaintiffs between 2004 and 2008. (Id., ¶ 11.) Lanzas also was aware that her husband possessed pornographic materials and graphic sex illustrations for the purpose of conducting “sex education” for the young male members of the church. (Id., ¶ 29.) Consequently, Gustavo’s conduct was reasonably foreseeable to Lanzas such that she owed a duty of care to Plaintiffs to protect them from harm. (Id., ¶ 27.)

Lanzas is alleged to have negligently failed to manage and control her home and failed to prevent Gustavo from carrying out his tortious conduct against Plaintiffs, resulting in them suffering physical and psychological harm. (SAC, ¶ 40.) Lanzas maintained a special relationship with Plaintiffs and therefore had an affirmative duty to take reasonable measures to protect them from molestation, which she failed to do. (Id., ¶¶ 41-48.)

Based on the foregoing, on November 21, 2016, Plaintiffs filed the original complaint in this action against Lanzas and Gustavo’s estate asserting claims for: (1) negligence; (2) breach of duty to warn; and (3) emotional distress. On March 1, 2017, Plaintiffs filed the first amended complaint (“FAC”) as a matter of course asserting the following causes of action: (1) negligence; (2) breach of special and affirmative duty to warn, protect and prevent harm; and (3) emotional distress.

Lanzas subsequently demurred to the SAC in its entirety and on June 29, 2017, the Court sustained the demurrer on the ground of failure to state facts sufficient to constitute a cause of action with 10 days’ leave to amend. After the parties executed a stipulation to extend Plaintiffs’ time to amend their pleading, Plaintiffs filed the SAC on August 18, 2017, asserting claims for: (1) negligence; (2) breach of special and affirmative duty to warn, protect and prevent harm; and (3) emotional distress. On October 2, 2017, Lanzas filed the instant demurrer to the SAC on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiffs oppose the motion.

II. Analysis

In her prior demurrer to the FAC, Lanzas maintained that none of the claims asserted against her had been or could be stated because she did not owe any duty to Plaintiffs under the alleged circumstances of this action.

As the Court noted in its preceding order on the demurrer to the FAC, a legal duty to use due care is a necessary element of a claim for negligence. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI No. 400.) The existence of a duty of care is a question of law for the court and must be decided on a case-by-case basis. (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.) Generally, one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.App.3d 799, 806.) However, a duty may arise where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.” (Id. [internal citation omitted].)

In the preceding order, the Court found, based on Chaney v. Superior Court (1995) 39 Cal.App.4th 152, that “[a] plaintiff attempting to assert liability against the wife of a person who sexually assaults a minor invited into their home must be able to allege the defendant wife had actual knowledge of her husband’s deviant propensities.” (Order on Dem. to FAC, p. 7:13-16.) In Chaney, the first California case to consider the precise question of the extent of a spouse’s duty to his or her minor invitees to prevent sexual assaults perpetrated by that individual’s husband or wife, the court opined that the spouse’s duty of care to the injured child depends on whether the perpetrator’s behavior was reasonably foreseeable. (Chaney, 39 Cal.App.4th at 157.) The behavior is not considered reasonably foreseeable if the non-perpetrator spouse did not have knowledge of his or her partner’s “deviant propensities.” (Id.) Constructive knowledge or notice is insufficient, actual knowledge is required, and while such knowledge may be inferred from the circumstances, it can only be so inferred where the circumstances are such that the defendant spouse “must have known” and not “should have known” of those propensities. (Id., citing Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, fn. 4.)

The plaintiff in Chaney was found to have failed to plead sufficient facts to demonstrate that the defendant’s husband’s conduct was reasonably foreseeable to her, with the court concluding that allegations that the wife was aware that her husband paid “excessive” attention to the plaintiff and was “excessive” in his gift giving to her were insufficient to show that his wife had knowledge of his deviant propensities such that it would cause her to take measures to prevent the sexual abuse alleged. (Chaney v. Superior Court, supra, 39 Cal.App.4th at 158.) Applying the pleading standard articulated in Chaney to the allegations of the FAC, Plaintiff was found to have failed to plead facts establishing that Lanzas owed her a duty, with no allegations that she had actual knowledge of Gustavo’s deviant propensities. Instead, Plaintiffs had merely pleaded that Gustavo paid “unusual attention” to them and they visited with “unusual frequency,” which was akin to the allegations found to be insufficient to establish actual knowledge of deviant propensities in Chaney. (FAC, ¶ 9.)

In an effort to correct the foregoing deficiency, Plaintiffs now allege in the SAC that Lanzas communicated to other individuals, including church members, that she “had actual knowledge and was aware of the sexual molestation of multiple minor boys by [Gustavo] since the early 1990’s and of the [Plaintiffs] between 2004 and 2008,” and that she was aware that her husband kept pornographic materials and sexual paraphernalia for the purpose of conducting “sex education” for young male members of her church. (SAC, ¶¶ 10-12, 29.) Lanzas insists in the memorandum in support of her demurrer that the foregoing is still insufficient to establish actual notice on her part of her Gustavo’s deviant propensities such that it was foreseeable to her that he would abuse Plaintiffs in her home because Plaintiffs have not specifically set forth when the comments were made by her to others demonstrating her actual knowledge of her husband’s conduct, or to whom they were made.

While Plaintiffs are closer to pleading knowledge on Lanzas’ part of her husband’s deviant propensities than they were in the FAC, the Court agrees with the defendant that there are still not enough facts pleaded from which an inference of actual knowledge can be made. Without knowing when Lanzas communicated her knowledge of Gustavo’s abhorrent conduct in the early 1990’s and between 2004 and 2008 to others, it is not clear when she came to possess such knowledge. Was she aware of the sexual molestation perpetrated by her husband in the early 1990’s while it was happening or at some point after which preceded the molestation suffered by Plaintiffs? It is not entirely clear based on how the allegations of the SAC are currently pleaded. If Lanzas was not aware of such conduct by her husband prior to when it happened to Plaintiffs, absent any other facts, reasonable foreseeability on her part cannot be established. Thus, the allegations of the SAC are still insufficient to impose a duty upon Lanzas to warn or protect Plaintiffs from Gustavo’s conduct.

Lanzas additionally argues that Plaintiffs have still failed to demonstrate the existence of a “special relationship” between them which gave rise to a duty of care. As the Court articulated in its preceding order on Lanzas’ demurrer to the FAC,

[t]he concept of a “special relationship” giving rise to a duty either to control a third person or to protect the foreseeable victim of the third person’s conduct was created by the courts in order to ameliorate the perceived inequities of the common law rule that one person owed no duty to control the conduct of another. [Citation.] Due to the practical difficulties of rejecting the common law rule, the courts increased the number of instances in which affirmative duties were imposed by expanding the list of special relationships justifying departure from the rule, but without actually rejecting it. [Citation.]

It is important to remember, though, that the relevant inquiry in any given case is not simply whether there exists some special relationship in the abstract. Resolution of the issue whether a special relationship exists giving rise to a duty to protect (or warn) comprehends consideration of the same factors underlying any duty of care analysis. [Citations.] In other words, to say that a “special relationship” exists is to say nothing other than the factors favoring imposition of a duty of care in particular circumstances outweigh the countervailing factors (one of which is that the harm was caused by a third person). The existence of a “special relationship” does not create the duty. “Special relationship,” rather, is simply a label expressing the conclusion that the facts, considered in light of the pertinent legal considerations, support the existence of a duty of care.

(Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 645–46.)

Because there was no authority to support the proposition that a special relationship existed between the parties merely by virtue of a pastor-parishioner relationship as Plaintiffs alleged, and Plaintiffs had not pleaded that Lanzas had invited them to her home where the abuse took place such that she could be deemed to have engaged in affirmative misconduct or misfeasance, the Court concluded that Plaintiffs had failed to demonstrate that Lanzas owed them a duty of care. Lanzas maintains that this is still the case in the SAC because her status as the pastor’s wife or co-pastor did not give rise to a special relationship with Plaintiffs, and even if it did, Plaintiffs’ failure to demonstrate that she had actual knowledge of her husband’s propensity for deviant acts at the time they were molested or before remains a barrier to finding the existence of a duty of care. The Court agrees with the latter assertion based on Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, a case discussed in the preceding order.

In that case, three minor girls brought suit against a husband and wife for assault and battery and negligence arising out of the defendant husband’s sexual molestation of the children in defendants’ home. A “special relationship” between the defendant wife and the minor plaintiffs giving rise to a duty of care was found to exist where it was alleged that the wife had encouraged and invited the plaintiffs over despite knowing that her husband had a prior history of molesting women and children and it was reasonably foreseeable that he would do so again. (Pamela L. v. Farmer, supra, 112 Cal.App.3d at 210-211.) While Plaintiffs in the instant action have now pleaded that it was Lanzas who invited them to her home where the molestation took place (SAC, ¶ 8), which was not pleaded in the FAC, they have not pleaded facts, as articulated above, which demonstrate that Gustavo’s deviant actions towards them were reasonably foreseeable to Lanzas when they occurred. Thus, Plaintiffs have not pleaded facts giving rise to a duty of care between themselves and Lanzas. The Court, however, will provide Plaintiffs with one final opportunity to state their claims. Consequently, Lanzas’ demurrer to the SAC on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.