2012-00124047-CU-PO

John Doe 80 vs. Richard Roe 1

Nature of Proceeding: Hearing on Demurrer

Filed By: Van Wert, Christina R.

Defendants Boy Scouts of America and Golden Empire, Boy Scouts of America
(“Defendants”) demurrer to Plaintiffs John Doe 80, John Doe 81 and John Doe 82’s
second amended complaint (“SAC”) is ruled upon as follows.

In this action, Plaintiffs allege that while they were boy scouts they were sexually
molested by Belden “Jack” Morgan who served as a Scoutmaster for ten years.
Plaintiffs allege that Defendants are liable for damages suffered by plaintiff because
they had known for years of the danger that pedophiles presented to Boy Scouts.
Defendants had allegedly secretly removed Scoutmasters for child sexual abuse, and
kept Ineligible Volunteer Files that revealed that scouting is a “pedophile magnet and
sanctuary for child molesters.” (SAC ¶¶ 12, 14.) Defendants allegedly knew or should
have known before Plaintiffs were molested that Morgan was a child molester.
Defendant Local BSA had warned Morgan that he was being “inappropriate.” (SAC ¶
15-16.)

In its ruling of Defendants’ demurrer to the first amended complaint, the Court
overruled Defendants’ demurrer to the first cause of action for negligence and
sustained with leave to amend the demurrer to the second cause of action for fraud
and the third cause for fraudulent concealment. Defendants now demur to the second
and third causes of action in the SAC in addition to the newly added eighth cause of
action for “negligent failure to warn, train or educate plaintiffs.”

Second Cause of Action (Fraud)

The demurrer is sustained with leave to amend. The Court previously ruled that
Plaintiffs failed to allege fraud with the requisite specificity as they simply alleged that
“defendants affirmatively represented to plaintiffs” that Morgan did not have a history of
molesting children.”

In the SAC Plaintiffs allege that defendant Morgan and “other not yet identified
Scoutmasters or Assistant Scoutmasters (but whose identities are more in the
knowledge of BSA Defendants)”, serving in Defendant BSA, affirmatively represented
to Plaintiffs and their family that Morgan did not have a history of molesting children,
that Scoutmaster, Defendant Morgan and other not yet identified Scoutmasters or
Assistant Scoutmasters [ ], serving in Defendant BSA did not know that Morgan had a
history of molesting children, and that Scoutmaster Defendant Morgan and other not
yet identified Scoutmasters or Assistant Scoutmasters [ ], did not know that Morgan
was a danger to children.” (SAC ¶ 44.) Plaintiffs also allege that “defendants
affirmatively represented to Plaintiffs and their family that it did not know it had a long-
standing problem within the Scouts of having child molesting agents.” (SAC ¶ 45.)

As the Court stated in its ruling on the demurrer to the first amended complaint: The
elements of a claim for fraud are (I) misrepresentation of a material fact; (2) knowledge
of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4) actual and justifiable reliance by the plaintiff; and (5)
resulting damage. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192
Cal.App.3d 684, 693.) It is hornbook law that fraud-based claims are subject to a
stricter pleading standard then that governing most California causes of action. To
advance a cognizable fraud claim, “every element of the cause of action . . . must be
alleged in full, factually and specifically, and the policy of liberal construction of
pleading will not usually be invoked to sustain a fraud claim deficient in any material
respect.” (Wilhelm v. Pray, Price,Williams & Russell (1986) 186 Cal.App.3d 1324,
1331.) The heightened particularity requirement necessitates pleading facts that
“show how, when, where, to whom, and by what means the representations were
tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) When fraud is
alleged against a corporate defendant, the plaintiff must specifically allege the names
of the persons who allegedly made the representation, their authority to speak, to
whom they spoke, what they said or wrote, and when it was said or written. ( Tarmann
v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Here, despite Plaintiffs’ arguments to the contrary, they have not adequately alleged a
cause of action for fraud based on the affirmative misrepresentations set forth in the
second cause of action. Again, fraud is being pled against two corporate defendants
yet there are no specific facts for example, regarding when any of the above
representations were made, who specifically made the representations, or whether the
representations were spoken or written. (Tarmann, supra, 2 Cal.App.4th at 157.)
Plaintiffs’ general allegations that the representations were made in 1993, 1996, 1998
by agents “including but not limited to the officials in charge of each Defendant and the
officials in charge of each Scout program in which Plaintiffs participated” are
insufficiently specific. (SAC ¶ 46.) Plaintiffs’ argument that the specificity requirement
be relaxed is rejected. A situation where representations are alleged to have been
made directly to Plaintiff is not one where “it appears from the nature of the allegations
that the defendant must necessarily possess full information concerning the facts of
the controversy.” (Committee on Children’s Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 217). This is not a situation, such as an advertising campaign,
where one may not be able to recall a specific advertisement leading to a decision to
purchase a product.

Further, to the extent Plaintiffs argue that representations by Morgan or any individual
(yet unnamed) volunteer can be imputed to Defendants on an agency theory, case law
indicates that this is inappropriate. Indeed, controlling authority has found that these
individuals are not employees/agents of the Boy Scouts of America or a local council
as neither retains the right to control the day-to-day activities of the local units or the
adult volunteers. “The troop committee and the scout master are voluntary workers
whose services are given in the community rather than to the [BSA] organization which
is, in practical effect, merely an adviser rather than an employer.” (Young v. Boy
Scouts of America (1935) 9 Cal.App.2d 760, 765.) To the extent that Plaintiffs argue
that Defendants have abandoned their advisory role and are precluded from relying
upon Young because of a brief filed with the United States Supreme Court in Dale v.
Boy Scouts of America (2000) 530 U.S. 640, in which they argued an inconsistent
position, they are incorrect. In that brief, which is cited in out-of-state authority, BSA
argued that “it acts in an advisory capacity to scoutmasters and can refuse to
recognize a leader who does not adhere to its beliefs.” (John Roe #1 v. Boy Scouts of
America Corporation (2013) 147 Conn.App. 622, 637.) This is not inconsistent with its
role as an advisor rather than an employer, indeed, the “Dale brief does not change
the fact that the defendants do not select scoutmasters and they do not control their day-to-day activities.” (Id. at 637-638.) Recent California case law recognizes that “[n]
either the BSA nor the [local council] operates any scout troops. Scout troops are
operated by local organizations such as a PTA or a church.” (Juarez v. Boy Scouts of
America (2000) 81 Cal.App.4th 377, 384, fn.1.)

The Court, however, overrules the demurrer to the extent it is based on Defendants’
argument that Plaintiffs failed to allege facts that Defendants intended to induce them
to “submit to sexual contact.” Plaintiffs, of course, do not allege that they were
defrauded into submitted to sexual contact. Rather they contend that they were
defrauded in that had the representations not been made, they would not have
associated with Defendants. (SAC ¶ 53.)

In sum, the demurrer to the second cause of action is sustained with leave to amend.

Third Cause of Action (Fraudulent Concealment)

Defendants’ demurrer is overruled. Defendants argue that Plaintiffs failed to state a
cause of action because they failed to allege facts establishing that they owed
Plaintiffs a fiduciary duty and thus they had no duty to disclose to Plaintiffs. As
conceded by Defendants, in paragraphs 56 and 57 of the SAC, Plaintiffs have alleged
that Defendants “concealed and failed to disclose Morgan’s alleged sexual misconduct
as well as the sexual misconduct of other, unnamed volunteer leaders.” Defendants
only argue that the cause of action is deficient because Plaintiffs failed to allege the
existence of a fiduciary relationship.

However, as pointed out by Plaintiffs a defendant may be under a duty to disclose for
purposes of a fraudulent concealment action “(1) when the defendant is in a fiduciary
relationship with the plaintiff; (2) when the defendant had exclusive knowledge of
material facts not known to the plaintiff; (3) when the defendant actively conceals a
material fact from the plaintiff; and (4) when the defendant makes partial
representations but also suppresses some material facts.” (LiMandri v. Judkins (1997)
th
52 Cal.App.4 326, 336.) Indeed, “the duty to disclose may arise without any
confidential relationship where the defendant alone has knowledge of material facts
which are not accessible to the plaintiff.” (Magpali v. Farmers Group, Inc. (1996) 48
th
Cal.App.4 471, 482.) Here while Plaintiffs may not have alleged that Defendants
owed them a fiduciary duty, they have alleged that Defendants actively concealed
material facts from them, specifically, facts related to Morgan’s alleged sexual
misconduct as well as the sexual misconduct of other, unnamed volunteer leaders.
Plaintiffs have also alleged that Defendant knew they were concealing these facts and
that Plaintiffs were ignorant of these material facts. (SAC ¶ 57.) Thus, under the
above cited authority, Plaintiffs have alleged a basis for a fraudulent concealment
action despite the fact that they did not allege the existence of a fiduciary duty as they
alleged that Defendants actively concealed material facts from Plaintiffs.

Again, Defendants’ demurrer to this cause of action was based solely on the argument
that Plaintiffs failed to allege a fiduciary relationship.

Given the above, the Court need not address Plaintiffs’ additional arguments in
opposition that it alleged facts giving rise to a fiduciary duty or “special relationship”
such that a duty of care was owed.

The demurrer to the third cause of action is overruled. Eighth Cause of Action (“Negligent Failure to Warn, Train, or Educate Plaintiffs”)

Defendants’ demurrer is moot. Plaintiff filed a request for dismissal of this cause of
action on May 20, 2014.

As a result, Defendants’ demurrer to the second cause of action is sustained with
leave to amend and the demurrer to the third cause of action is overruled. The
demurrer to the eighth cause of action is moot.

Where leave was given, Plaintiffs may filed and serve an amended complaint no later
than June 13, 2014. Defendants shall file and serve their responses within 10 days
thereafter, 15 days of the amended complaint is served by mail. (Although not
required by any statute or rule of court, Plaintiffs are requested to attach a copy of the
instant minute order to the amended complaint to facilitate the filing of the pleading.)

The notice of demurrer does not provide notice of the Court’s tentative ruling system
as required by Local Rule 1.06(D). Defendants’ counsel is ordered to notify Plaintiffs’
counsel immediately of the tentative ruling system and to be available at the hearing,
in person or by telephone, in the event Plaintiffs’ counsel appears without following the
procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.