Demurrers to and Motions to Strike the First Amended Complaint by defendant The First Baptist Church of San Jose dba Church on the Hill

These unconsolidated actions allege sexual assault and negligence on behalf of various minor plaintiffs. Defendant has filed identical demurrers and motions to strike against plaintiffs Jane Doe 6, 7, 8, and 9, who are collectively referred to herein as “Plaintiffs.” Plaintiffs are represented by the same counsel and have filed identical opposition papers in each case. Thus, the court will address the motions in a single tentative ruling, but will issue a separate order in each case.

Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d); see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files].)

Demurrers to the First Amended Complaint

With respect to the second cause of action for negligence, Defendant argues that Plaintiffs fail to allege facts establishing a duty of care to support negligence. The elements of a cause of action for negligence are: the defendant had a duty to use due care; he or she breached that duty; and the breach was the proximate or legal cause of plaintiff’s injury. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.) “Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection.” (Ibid.) “In the absence of a special relationship, a person who has not created a peril has no duty to come to the aid of another.” (Greyhound Lines, Inc. v. Department of California Highway Patrol (2013) 213 Cal.App.4th 1129, 1136.)

Here, Plaintiffs concede that they did not have a special relationship with Defendant. Instead, Plaintiffs argue that they are owed a duty of care pursuant to a Rowland factors analysis. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Among the various Rowland factors is foreseeability of harm to the plaintiff. With respect to this factor, Plaintiffs rely on the provisions of the Child Abuse and Neglect Reporting Act. (See First Amended Complaint [“FAC”] at ¶¶ 9, 31, and 34; Penal Code §§ 11164 et seq.) However, Plaintiffs’ argument regarding foreseeability was specifically addressed by the California Supreme Court:

“Under plaintiff’s interpretation of the Reporting Act, a child care custodian that fails to report suspected child abuse affecting one child in its care or custody could be held liable, perhaps years later, to any other children abused by the same person, whether or not those children were within its custodial protection. Neither legislative intent nor public policy would support such a broad extension of liability.”

(Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1087.)

As a preliminary matter, the duty to report under the Reporting Act (see Pen. Code § 11166) applies to a “child care custodian” who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse. (Randi W. v. Muroc Joint Unified School Dist., supra, 14 Cal.4th at p. 1087.) Here, Plaintiffs fail to allege that they were under the care of Defendant or that Defendant was their child care custodian.

Aside from the Child Abuse and Neglect Reporting Act, Plaintiffs also allege that there was a foreseeability of harm because Defendant failed to take appropriate precautions to ensure that inquiries about its former employees would be addressed with relevant information. (See FAC at ¶¶ 14, 31, and 34.) Specifically, Defendant allegedly allowed “Ms. H,” Director of Children’s Ministries and not affiliated with Defendant’s Human Resources, to provide a positive recommendation about Keith Woodhouse (“Woodhouse”) to Child Development, Inc. (“CDI”). (Id. at ¶¶ 10, 12, 14, 31, and 34.) However, there are no facts supporting the existence that Ms. H had the ostensible authority to provide recommendations on behalf of Defendant. (See Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448 [the principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control]; see also Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 961 [ostensible authority must be based on the acts or declarations of the principal and not solely upon the agent’s conduct].) Nor are there facts showing that Defendant had knowledge of Ms. H’s communication with CDI. It does not necessarily follow from Ms. H’s status as Director of the Children’s Ministries that she had the authority to provide employment references on behalf of Defendant. Since Defendant had neither a statutory nor a common law duty to protect Plaintiffs, Defendant cannot be liable for negligence. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614 [threshold element of a cause of action for negligence is the existence of a duty].)

Therefore, Defendant’s demurrers to the second cause of action are SUSTAINED with ten days’ leave to amend.

With respect to the fifth cause of action for negligent misrepresentation, Defendant argues that there is no misrepresentation by Defendant to support this claim. “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184; see Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, fn. 4 [negligent misrepresentation is a species of the tort of deceit and like fraud, requires a misrepresentation, justifiable reliance and damage].)

Here, the fifth cause of action is based on the alleged positive recommendation given by Ms. H to CDI about Woodhouse. (See FAC at ¶¶ 10, 12, 14, 31, and 34.) As stated above, there is nothing in the FAC to suggest that Ms. H was an ostensible agent of Defendant or that the church had any knowledge of her communication with CDI. Thus, Plaintiffs fail to allege that Defendant made any misrepresentation to support of the fifth cause of action.

Therefore, Defendant’s demurrers to the fifth cause of action are SUSTAINED with ten days’ leave to amend.

Motions to Strike Portions of the FAC

Given the court’s ruling on demurrer, the motions to strike are MOOT.