2017-00224110-CU-PO

Bailey Boone vs. St. Francis High School

Nature of Proceeding: Hearing on Demurrer (Roman Catholic Bishop of Sacramento)

Filed By: Blomberg, Chad E.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific causes of action that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters.

***

Defendant Roman Catholic Bishop of Sacramento’s (“Bishop”) demurrer to plaintiff’s First Amended Complaint (“1AC”) is SUSTAINED, with and without leave to amend, as follows.

The opposition and reply papers failed to comply with CRC Rule 3.1110(b)(1), (3) and (4).

Factual Background

This 2017 action arises out of defendant Martis’ sexual abuse of plaintiff who was at the time a student at St. Francis Catholic High School (“SFHS”), alleged at the relevant time to have been owned and operated by the Bishop. Martis was a softball coach for SFHS from 2010 through 2014. He is alleged to have begun “grooming” plaintiff for sexual abuse beginning in 2012 through one-on-one hitting lessons for team members, later sending plaintiff inappropriate text messages in 2013 and hiring her for a “sham summer job” at his home, where he exploited plaintiff throughout the summer of 2013

when she was 16 years old. Plaintiff’s parents discovered the inappropriate relationship in 2015 and a subsequent investigation led to charges against Martis, who is currently in prison.

The 1AC purports to assert four (4) negligence-based causes of action against both SFHS and Bishop (i.e., negligence, negligent supervision/retention of employee/volunteer, negligent supervision of plaintiff and negligent failure to warn/train plaintiff based on Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377) as well as two intentional torts against Martis alone (i.e., sexual battery, intentional infliction of emotional distress).

Moving Papers. Defendant Bishop now demurs to the four causes of action alleged against it on the grounds they fail to plead sufficient facts. More specifically, like SFHS, Bishop contends that the facts alleged in the 1AC fail to establish it owed a duty of care to plaintiff and/or was the legal cause of the criminal sexual abuse committed at Martis’ home, as well as that these causes of action are barred by the two year statute of limitations found in Code of Civil Procedure §335.1 since the 1AC does not plead facts sufficient to invoke the extended limitations period found in §340.1 for childhood sexual abuse. Bishop further asserts that the 1AC’s reliance on its religious rules and administration in an attempt to impose a duty of care conflicts with the constitutional right to religious freedom and established proscriptions against state interference with religious affairs.

Opposition. Plaintiff opposes, arguing first that the demurring party’s “incredulous” claims of not owing a duty of care or being the cause of the alleged injury, as well as plaintiff being barred by the statute of limitations must be rejected because defendant’s claims ignore facts specifically pled in the 1AC including that plaintiff’s parents paid tuition to SFHS and Martis acted as a “quasi-counselor” to plaintiff, “both of which impose a duty of care.” The opposition next asserts that this action was timely commenced under Code of Civil Procedure §340.1 because plaintiff is not yet 26 years old and that SFHS owed her a duty of care, the breach of which was the legal cause of the sexual abuse by Martis. Curiously, the opposition later suggests that SFHS has failed to distinguish between “sexual contact” and “childhood sexual abuse,” as defined in §340.1. (Oppos., p.8:1-p.9:24.)

Plaintiff contends SFHS nowhere cited or discussed a prominent decision by the Supreme Court of California relating to heightened duties of care owed by school personnel and the liability which arises from the sexual abuse of a student by a school employee when there was negligent hiring, retention and supervision of that employee (see, e.g., C.A. v. Wm. S. Hart Union High School District (2012) 53 Cal.4th 861), adding that a majority of the “school district cases” cited in the moving papers are inapplicable to private schools like SFHS. According the opposition, while SFHS cited Leger v. Stockton Unified School District for the proposition that ‘a school need not provide supervision where there is no reason to think any is required,’ the moving papers omitted the very next sentence: “It appears that a [private] school has a duty to provide supervision with respect to a particular activity if the school officials could reasonably anticipate that supervision was required…” Plaintiff insists the 1AC’s allegations that her family paid tuition to SFHS, Martis’ encouraged plaintiff to discuss her personal/family problems with him and he acted as a “quasi-counselor” created a duty of care to provide supervision of this minor student and softball team member.

Finally, according to the opposition, there are “many similarities between the Boy

Scouts of America [as discussed in Juarez] and the Defendants” including their soliciting children to participate in the organization, knowing of the history of frequent childhood sexual abuse within its organization and the failure to warn, train or educate the youths participating in the organization. Thus, for the same reasons discussed in Juarez, the Rowland factors establish the existence of a duty on the part of SFHS to warn, train or educate plaintiff in the present case about the risk of sexual abuse at the hands of Martis.

Request for Judicial Notice

Defendant Bishop’s request for judicial notice of SFHS’ December 2012 Articles of Incorporation and related documents is unopposed and is granted. The upshot of this is that while the 1AC alleges SFHS was at the relevant times owned and operated by the Bishop, it appears that SFHS was at the relevant times a separate corporation not under the control of the Bishop.

Analysis

Bishop’s demurrer to the 1AC is sustained for the reasons set forth in the concurrent tentative ruling on SFHS’ demurrer to the 1AC. Accordingly, the court need not address the additional questions of whether plaintiff’s action is barred by the statute of limitations or otherwise violates the constitutional right to freedom of religion or existing law prohibiting the state’s interference with religious affairs.

Conclusion

The demurrer of defendant Bishop is sustained. As this is the first challenge to the complaint, leave to amend is granted except as to the fourth cause of action based on Juarez. If oral argument is requested in an attempt to obtain leave to amend this fourth cause of action, plaintiff shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to state a cause of action under Juarez.

Plaintiff may file and serve a Second Amended Complaint no later than 9/14/2018. Although not required by court rule or statute, plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

Defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 15 2017-00224110-CU-PO

Bailey Boone vs. St. Francis High School

Nature of Proceeding: Hearing on Demurrer (St. Francis Catholic High School)

Filed By: Blomberg, Chad E.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific causes of action

that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Defendant St. Francis Catholic High School’s (“SFHS”) demurrer to plaintiff’s First Amended Complaint (“1AC”) is SUSTAINED, with and without leave to amend, as follows.

The opposition and reply papers failed to comply with CRC Rule 3.1110(b)(1), (3) and (4).

Factual Background

This 2017 action arises out of defendant Martis’ sexual abuse of plaintiff who was at the time a student at SFHS, alleged at the relevant time to have been owned and operated by the Roman Catholic Bishop of Sacramento (“Bishop”). Martis was a softball coach for SFHS from 2010 through 2014. He is alleged to have begun “grooming” plaintiff for sexual abuse beginning in 2012 through one-on-one hitting lessons for team members, later sending plaintiff inappropriate text messages in 2013 and hiring her for a “sham summer job” at his home, where he exploited plaintiff throughout the summer of 2013 when she was 16 years old. Plaintiff’s parents discovered the inappropriate relationship in 2015 and a subsequent investigation led to charges against Martis, who is currently in prison.

The 1AC purports to assert four (4) negligence-based causes of action against both SFHS and Bishop (i.e., negligence, negligent supervision/retention of employee/volunteer, negligent supervision of plaintiff and negligent failure to warn/train plaintiff) as well as two intentional torts against Martis alone (i.e., sexual battery, intentional infliction of emotional distress).

Moving Papers. Defendant SFHS now demurs to the four causes of action alleged against it on the grounds they fail to plead sufficient facts. More specifically, SFHS contends that the facts alleged in the 1AC fail to establish SFHS owed a duty of care to plaintiff and/or was the legal cause of the criminal sexual abuse committed at Martis’ home, as well as that the four causes of action are barred by the two year statute of limitations found in Code of Civil Procedure §335.1 since the 1AC does not plead facts sufficient to invoke the extended limitations period found in §340.1 for childhood sexual abuse.

With respect to the duty and causation questions, SFHS contends that a school cannot be vicariously liable for the sexual misconduct by its agents and liability must, therefore, be premised on the school’s own direct negligence especially where, as here, the misconduct occurred off campus and there was no reason to believe additional supervision was warranted. According to SFHS, the 1AC nowhere alleges that SFHS knew Martis posed an unreasonable risk of sexual abuse at any time or failed to conduct a background check before allowing him to serve as a coach and that mere fact Martis may have provided one-on-one hitting lessons to plaintiff and others on campus is insufficient to give SFHS notice of any unreasonable risk of sexual misconduct. Similarly, although Martis was also trained to identify personal problems his players may have and encouraged plaintiff to share hers with him, Paragraph 17 of the 1AC admits Martis never actually reported plaintiff’s problems to SFHS. The 1AC does not allege that SFHS was ever aware of the progression of Martis’ relationship

with plaintiff, their inappropriate text messages or the “sham summer job” at Martis’ home.

SFHS insists the negligent failure to warn/train plaintiff cause of action premised on Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 fails because the finding of a special duty to take reasonable measures to protect plaintiff Juarez from sexual molestation by a scoutmaster was premised on a specific, unique set of facts which are not alleged in the case at bar.

As to the statute of limitations, SFHS maintains that plaintiff has failed to allege facts sufficient to invoke the provision for additional time found in Code of Civil Procedure §340.1 for claims arising from “childhood sexual abuse,” without which her claims against SFHS are barred by the two year limitations period set forth in §335.1. SFHS concedes §340.1 (a) generally gives an abuse victim either three years from discovery or until age 26, subdivision (a)(2) limits the application of this extended period to “An action…against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.” (Underline added for emphasis.) In short, SFHS asserts that because the 1AC has failed to allege facts which show SFHS (1) owed a duty of care relative to Martis’ sexual misconduct and/or

(2) was the legal cause of his abuse of plaintiff in 2013, plaintiff cannot permissibly rely on §340.1’s extended limitations period, rendering this action time-barred by operation of §335.1’s two year period which expired on plaintiff’s 20th birthday.

Opposition. Plaintiff opposes, arguing first that the demurring party’s “incredulous” claims of not owing a duty of care or being the cause of the alleged injury, as well as plaintiff being barred by the statute of limitations must be rejected because defendant’s claims ignore facts specifically pled in the 1AC including that plaintiff’s parents paid tuition to SFHS and Martis acted as a “quasi-counselor” to plaintiff, “both of which impose a duty of care.” The opposition next asserts that this action was timely commenced under Code of Civil Procedure §340.1 because plaintiff is not yet 26 years old and that SFHS owed her a duty of care, the breach of which was the legal cause of the sexual abuse by Martis. Curiously, the opposition later suggests that SFHS has failed to distinguish between “sexual contact” and “childhood sexual abuse,” as defined in §340.1. (Oppos., p.8:1-p.9:24.)

Plaintiff contends SFHS nowhere cited or discussed a prominent decision by the Supreme Court of California relating to heightened duties of care owed by school personnel and the liability which arises from the sexual abuse of a student by a school employee when there was negligent hiring, retention and supervision of that employee (see, e.g., C.A. v. Wm. S. Hart Union High School District (2012) 53 Cal.4th 861), adding that a majority of the “school district cases” cited in the moving papers are inapplicable to private schools like SFHS. According the opposition, while SFHS cited Leger v. Stockton Unified School District for the proposition that ‘a school need not provide supervision where there is no reason to think any is required,’ the moving papers omitted the very next sentence: “It appears that a [private] school has a duty to provide supervision with respect to a particular activity if the school officials could reasonably anticipate that supervision was required…” Plaintiff insists the 1AC’s allegations that her family paid tuition to SFHS, Martis’ encouraged plaintiff to discuss her personal/family problems with him and he acted as a “quasi-counselor” created a duty of care to provide supervision of this minor student and softball team member.

Finally, according to the opposition, there are “many similarities between [Juarez] and the Defendants” including soliciting children to participate in the organization, knowing of the history of frequent childhood sexual abuse within its organization and the failure to warn, train or educate the youths participating in the organization. Thus, for the same reasons discussed in Juarez, the Rowland factors establish the existence of a duty on the part of SFHS to warn, train or educate plaintiff in the present case about the risk of sexual abuse at the hands of Martis.

Reply. The Reply asserts the opposition failed to challenge or respond to a number of key arguments in support of this demurrer including that the one-on-one hitting lessons occurred on campus and are not alleged to have involved any sexual activity; the 1AC does not allege SFHS was aware of Martis’ “grooming” of plaintiff or her visits to Martis’ home; the “grooming” occurred in secret and were intended to avoid detection; SFHS did not encourage plaintiff to go to Martis’ home and her reasons for those visits are not alleged to be related to any school activity; there is no allegation of any sexual conduct occurring on campus and the only sexual acts alleged admittedly occurred only at Martis’ home; California courts have rejected the notion that sexual misconduct is foreseeable whenever an adult and a minor are alone in a room together; there is no allegations that a background check on Martis was not performed or not performed properly, or would have revealed anything suggesting Martis posed an unreasonable risk of sexual abuse; or that plaintiff’s abuse occurred after SFHS became a separate corporate entity in 2012. SFHS also contends the opposition’s claims about a duty of care being owed have no bearing on the issue posed here: Whether a school owes a duty to supervise or protect students while they are off campus when there is no notice or knowledge of an unreasonable risk of abuse. The reply also reiterates that Juarez is factually distinguishable and thus, does not apply to the case at bar and finally, in the absence of a duty owed by SFHS, plaintiff cannot take advantage of the extended limitations period found in Code of Civil Procedure §340.1.

Request for Judicial Notice

Defendant SFHS’ request for judicial notice of its December 2012 Articles of Incorporation and related documents is unopposed and is granted. The upshot of this is that while the 1AC alleges SFHS was at the relevant times owned and operated by the Bishop, it appears that SFHS was at the relevant times a separate corporation not under the control of the Bishop.

Analysis

At the outset, it must be pointed out that the question of whether a duty of care exists in a particular case is a question of law for the court alone to decide after consideration of the factors discussed in Rowland and the facts of the case at bar. (See, e.g., Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446; Foltz v. Johnson (2017) 16 Cal.App.5th 647, 655.) As the present matter is a demurrer, the court accepts as true all facts properly pleaded in the 1AC but disregards those allegations which are insufficiently pled or unsubstantiated contentions, deductions or conclusions of fact or law. (See, e.g., Doheny Park Terrace Homeowners Assn., Inc. v. Truck Insurance Exchange (2005) 132 Cal.App.4th 1076, 1085.)

Negligence. This first cause of action alleges in Paragraphs 33-34 that SFHS “entered into an express or implied duty to provide” and “agreed to provide a reasonably safe environment for children including Plaintiff,” while Paragraphs 36-37

then generically assert that SFHS was aware “grooming” (a process used to draw a victim into a sexual relationship) “could occur on its premises” but SFHS “negligently failed to adopt child protection policies and/or failed to enforce [them] when Defendant…knew or had reason to know that [Martis] posed a threat of childhood sexual abuse to minor students including Plaintiff.” There can be no dispute that SFHS had a duty to make its premises safe for those who would foreseeably be present but the 1AC currently fails to plead facts which are sufficient to persuade this court that SFHS owed a duty of care to protect plaintiff from Martis’ criminal sexual abuse particularly when plaintiff has failed to set forth facts demonstrating how SFHS could have reasonably foreseen Martis’ conduct and when none of it is alleged to have occurred on the SFHS campus. Notably, the 1AC does not appear to allege that SFHS failed to conduct a background check on Martis or that a background check failed to detect something which would have alerted SFHS to the likelihood Martis would engage in the course of conduct he did or that SFHS ever knew or should have known of any specific fact which could or should have led to some preventive measure not utilized. Since foreseeability of the harm is the single most important Rowland factor (see, e.g., Juarez, at 401-405) and since plaintiff failed to plead facts establishing that the harm she suffered was foreseeable under the circumstances, this court is not convinced that SFHS owed a duty to take additional steps to protect plaintiff from Martis’ covert misconduct and without first establishing the existence of a duty of care, plaintiff cannot state a valid cause of action for negligence. To find a duty based on the scant facts currently pled would effectively make SFHS an insurer of plaintiff’s safety from unforeseen criminal conduct and therefore, the demurrer to the negligence cause of action must be sustained.

Negligent Supervision/Retention of Employee/Volunteer. This second cause of action alleges inter alia that SFHS had a duty to use reasonable care in investigating and supervising Martis and despite knowing or having reason to know he had “dangerous and exploitive propensities” and was acting inappropriately with minor students, SFHS failed to investigate Martis and continued to employ him.

In California, an employer can be held liable for negligent hiring if the employer knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him and this theory of negligent hiring encompasses the particular risk of molestation by an employee with a history of this specific conduct. (Juarez, at 395.) However, there can be no liability for negligent supervision or retention in the absence of knowledge by the employer principal that its agent or employee was a person who could not be trusted to act properly without being supervised and thus, it is not enough to allege that the sexual misconduct was conceivable: The plaintiff must allege facts showing that it was foreseeable. (Juarez, at 395-396.) As explained above, the 1AC in the case at bar fails to plead any specific facts sufficient to support the contention that SFHS knew or should have known Martis had “dangerous and exploitive propensities” and/or was acting inappropriately with plaintiff or any other student. Thus, plaintiff has failed to adequately SFHS’ breach of its duty and to establish that its breach was a legal cause of plaintiff’s harm.

Negligent Supervision of Plaintiff. This cause of action fails as well since the 1AC does not allege that plaintiff suffered any sexual abuse while on SFHS’ campus or that SFHS otherwise had reason to suspect any improper conduct by Martis at any location.

Negligent Failure to Warn/Train Plaintiff per Juarez. The court finds that the Juarez decision is, by its own terms, limited to its unique facts and the factual allegations in the present action fall short in several key respects including but not limited to the Boy Scouts’ “officially sanctioned” overnight camping trips and concession of “more than one incident of sexual abuse per week for the last two decades,” with many more cases going unreported. (Juarez, at 385, 403.) The First District Court of Appeal was careful to clarify its holding:

We do not intend our decision to serve as a manifesto by which lower courts are to impose duties of care upon all forms of charitable organizations engaged in volunteer youth programs, requiring them to take steps to prevent or minimize the chance that group leaders will engage in intentional misconduct against the youths participating in their programs. Because we expect our analysis to carry this caveat implicitly, and now explicitly, we do not share the Scouts’s [sic] concern that imposition of a duty will work a grave hardship on others whose programs, experience with abuse of minors, and other factors we identify as important to the issue of duty are not examined by us today. (Juarez, at 409.)

In light of the foregoing, the court will sustain the demurrer to this cause of action without leave to amend.

Statute of Limitations. Having already sustained the demurrer to all four of the negligence-based causes of action, the court need not address here the question of whether plaintiff’s action is barred by the statute of limitations.

Conclusion

For the reasons set forth above, the demurrer of defendant SFHS is sustained. As this is the first challenge to the complaint, leave to amend is granted except as to the fourth cause of action based on Juarez. If oral argument is requested in an attempt to obtain leave to amend this cause of action, plaintiff shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to state a cause of action under Juarez.

Plaintiff may file and serve a Second Amended Complaint no later than 9/14/2018. Although not required by court rule or statute, plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

Defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)