LINE: 8 CIV534203 JONATHAN MCDOUGALL VS. MANUEL SEDILLO, ET AL.

JANE DOE #1 COUNTY OF SAN MATEO
JENNY D. SMITH DAVID A. LEVY

MOTION FOR SUMMARY OF JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION IN FAVOR OF THE COUNTY OF SAN MATEO TENTATIVE RULING:

Defendant County of San Mateo’s motion for summary judgment is denied for failure to dispose of the entire action. Defendant’s alternative motion for summary adjudication is denied as to the seventh and eighth causes of action and granted as to the ninth and tenth causes of action.

A. Procedural Issues.

1. The Present Motion is Permissible. The minute order from Defendant’s previous motion that the Court “declines the request to make these rulings either specifically with or without prejudice” is not a ruling that Defendant may not bring the present motion. A party may not “move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court.” (Code of Civ. Proc. Sect. 437c, subd. (f)(2).) Defendant’s prior motion was for summary judgment only, not summary adjudication. Since summary adjudication was never denied, section 437c(f)(2) does not apply.

A renewed motion must be based on new or different facts or law. (Code of Civ. Proc. Sect. 1008.) The present motion is based on the new evidence of Jane Doe #1’s deposition testimony, which did not exist at the time of the December 2017 hearing. Section 1008 does not bar this motion.

2. Motion as to Plaintiff Jane Doe #1.

The motion is moot as to Plaintiff Jane Doe #1. She dismissed this action on May 14, 2019, after the motion was filed.

3. First through Sixth Causes of Action

The Court does not address the first six causes of action. Although the moving papers address those claims, the Notice of Motion makes clear that they are not the subject of this motion.

B. Seventh Cause of Action (Negligence Per Se).

The motion as to the seventh cause of action is denied.

Defendant argues that Plaintiff cannot prove causation because even if Eileen Rizzo had complied with her obligation as a mandatory reporter, Plaintiff still would have suffered the damages she claims. Causation is generally a question of fact for the jury, unless the undisputed facts compel a single reasonable conclusion. Jane Doe 1 and Jane Doe 2 lied to investigators, leading them to conclude that there was no case against Sedillo. Further, Sedillo continued to seek out Plaintiff even after the July 2014 hotline report was made. These facts do not compel a conclusion that Jane Doe #2 would not have ended up in a sexual relation with Sedillo if Rizzo had reported Jane Doe #1’s statements in June 2014.

The seventh cause of action is based on Rizzo’s failure to report Jane Doe #1’s statement that she had planned to and did have a sexual relationship with Sedillo. This occurred in June 2014. However, Jane Doe #2 did not engage in sexual contact with Sedillo until July 11, 2014. (UMF 10.) Immediately after Defendant received the July 15, 2014 report about Sedillo, Defendant placed him on leave and prohibited him from having contact with Jane Doe 2. It is possible that if Rizzo had reported Jane Doe #1’s statements in June 2014, Defendant would have taken the same action. If so, then it is possible that Sedillo would not have been able to commence sexual activity with Jane Doe #2 on July 11, 2014. A triable issue of fact.

That Jane Doe #2 behaved in ways to protect Sedillo after they were in a sexual relationship does not compel the conclusion that she would have behaved the same way at a time when she and Sedillo were not in a sexual relationship. A triable issue of fact exists about whether Rizzo’s reporting on Sedillo in June 2014 would have prevented Sedillo from victimizing Jane Doe #2.

C. Eighth Cause of Action (NIED). The motion is denied as to the eighth cause of action. Defendant’s argument sets forth two paragraphs of law but concludes only “Although this duty (Penal Code section 11166) is imposed by the law, that is as far as the analysis proceeds.” (Moving P&A at 12:16-19.) The argument is unclear. The motion acknowledges that the NIED claim is based on a failure to comply with a mandatory reporting duty (Penal Code sect. 11166), which is also the basis of the claim for negligence per se. The eighth cause of action (NIED) seeks emotional distress damage arising from the negligent failure to report.

D. Ninth Cause of Action (Negligent Hiring, Retention, Supervision)

The motion is granted as to the ninth cause of action.

The existence of a duty is a question of law. When a minor is a dependent of the county, a special relationship exists sufficient to permit a nonstatutory cause of action for negligence. (Ronald S. v. Cty. of San Diego (1993) 16 Cal.App.4th 887.) The Court concludes that a special relationship existed between the County and Jane Doe #2.

Plaintiff offers no evidence to raise a triable issue of material fact about whether Defendant breached its duties. Plaintiff cites evidence that Sedillo held an extra help position in the County’s juvenile probation department and that he was denied a full-time position after he failed a background check. (PAMF 53.) No explanation is given why Sedillo failed the background check; the evidence states only vaguely that there were “many concerns” about his background. The nature of Juvenile Probation is different from Child and Family Services. No evidence suggests that the “many concerns” about Sedillo’s background that denied him a full-time position with Juvenile Probation might have prevented him from being hired with Child and Family Services.

Plaintiff also contends that Gene Ketchen (Sedillo’s supervisor), Ketchen’s manager, and the Child and Family Services director, were negligent in supervising and retaining Sedillo because Sedillo did not document his cases for eight months preceding the July 15, 2014 hotline report. The failure to supervise Sedillo in documenting his cases does not lead to the conclusion that such failure to supervise resulted in the sexual abuse of Jane Doe #2. The evidence does not raise a triable issue of fact regarding the County’s vicarious liability for negligent supervising Sedillo. E. Tenth Cause of Action (Breach of Mandatory Duty).

The motion is granted as to the tenth cause of action.

Plaintiff alleges that and the County breached mandatory duties:

1. Documentation of visits within 24-48 hours pursuant to the County handbook; 2. CDSS Regulation 31-075.3 3. CDSS Regulation 31-320.5. 4. CDSS Regulation 31-320.4. 5. CDSS Regulation 31-320.6.

The Court finds as a matter of law that the regulations are enactments for purposes of establishing a mandatory duty.

Even if Defendant failed to perform the mandatory duties, the motion is granted because the regulations are not intended to protect against the risk that a social worker would sexually abuse the minor. (Gov’t Code § 815.6 (mandatory duty must be designed to protect against risk of particular kind of injury).)

The only possible exception is Regulation 31-320.4, which requires that “the majority” of visits occur in the child’s foster home or placement, and that the social worker visit the child “alone and in a quiet and private setting” “whenever possible and practicable.” (Oppos. RJN, Exh. 5.) The language leaves it to the discretion of the social worker where to have the visits take place each time, suggesting that this regulation does not create a mandatory duty as to the location of visits.

Moreover, even the regulation created a mandatory duty, it does not appear intended to protect against sexual abuse. Instead, it provides for the child and social worker to be alone and in a quiet and private setting whenever possible. There is no evidence or argument that this requirement is intended to prevent a social worker from meeting secretly with the child for sexual activity.

F. Plaintiff’s Objections. The Court declines to rule on Plaintiff’s objections, since none of the challenged matter is material to disposition of the motion. (Code of Civ. Proc. Sect. 437c, subd. (q).) Further, all of the objections are to statements in Defendants Separate Statement of Undisputed Facts, which are not evidence.

G. Ruling

Defendant County of San Mateo’s motion for summary judgment is denied. The motion fails to dispose of every cause of action alleged against the moving party.

Defendant’s alternative motion for summary adjudication is denied as to the seventh and eighth causes of action; the motion is granted as to the ninth and tenth causes of action. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant County of San Mateo shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.