DOE VS SOUTHEASTERN CALIFORNIA CONFERENCE OF SEVENTH-DAY ADVENTIST

Plaintiff first argues that the Court should overrule the demurrer because it is untimely. Pursuant to C.C.P. § 430.40(a), a demurrer must be filed within 30 days of service of the Complaint/FAC. Here, Plaintiff filed the FAC on March 20, 2026, and served it electronically the same day. Defendant filed its demurrer on April 23, 2026, 34 days later. Accordingly, Plaintiff is correct that the demurrer was not timely filed. However, the

Court has discretion to consider an untimely motion. (See, CRC 3.1300(d); Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 58, n. 2; Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29.) Additionally, challenging a motion or opposition on the merits rather than only objecting to its procedural inadequacies may constitute a waiver of any objection thereto. (See, Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 59.) In the present case, the Court exercises its discretion and rule on the demurrer despite it being filed late because Plaintiff had sufficient time to file a substantive opposition, so she was not prejudiced by the delay.

A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (C.C.P. § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v.

Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

NEGLIGENT SUPERVISION OF A MINOR (1ST) CAUSE OF ACTION

Plaintiff’s first cause of action is for negligent supervision of a minor, which is a negligence cause of action. To maintain a cause of action for negligence, the plaintiff must show: (1) a legal duty to use due care; (2) breach of such duty; (3) the breach was the proximate or legal cause of resulting injuries. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Without a duty of care owed by the alleged wrongdoer to the person injured, no negligence is established. (Jean Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711.) “It is well established that ‘the existence and scope of a duty are questions of law, while breach, causation, and injury are fact-specific issues for the trier of fact.’” (Achay v. Huntington Beach Union High School District (2022) 80 Cal.App.5th 528, 535.)

As a general rule, all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct. (See, Civ. Code §1714(a); Doe v. Superior Court (2015) 237 Cal.App.4th 239, 244–45.) However, under traditional tort law principles, one is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control.” (Nally v. Grace Community Church of the Valley (1988) 47 Cal.3d 278, 293; Benavidez v.

San Jose Police Dept. (1999) 71 Cal.App.4th 853, 859.) In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 217, the court held that if there was no special relationship and no other circumstances that give rise to an affirmative duty to protect from a third party, there can be no such duty based on the Rowland factors. “A special relationship between the defendant and the victim is one that ‘gives the victim a right to

expect’ protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that ‘entails an ability to control [the third party's] conduct.’” (Id. at 216.) As the court in Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 500 explained:

A defendant may have an affirmative duty to protect the plaintiff from harm by a third party “even though the risk of harm is not of the defendant's own making,” if a special relationship exists. [Citation.] “Relationships that have been recognized as ‘special’ share a few common features. Generally, the relationship has an aspect of dependency in which one party relies to some degree on the other for protection. [Citations.] ... [¶] The corollary of dependence in a special relationship is control.

Whereas one party is dependent, the other has superior control over the means of protection. ‘[A] typical setting for the recognition of a special relationship is where “the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare.” ’ ” [Citation.] As a result, the plaintiff can claim a right to expect the defendant's protection. [Citation.]

The determination of whether a duty is owed is an issue of law for the court. (Kentucky Fried Chicken of Calif., Inc. v. Sup. Ct. (Brown) (1997) 14 Cal.4th 814, 819). Where there is no legal duty, such serves as a complete defense to a negligence cause of action. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362).

Plaintiff here alleges and argues that Defendant had a special relationship with her because she engaged in church activities, and Defendant therefore owed her a duty to prevent Dien’s abuse.

In the context of sexual abuse of minors, examples of special relationships have been found where children were attending schools or participating in church-sponsored programs [Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671-672], attending camp away from the parents [Doe v. Superior Court (2015) 237 Cal.App.5th 239, 246-248], and when on a team where the coaches were acting as quasi-parents with players [Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1129-1131].

Plaintiff cites the case of Conti v. Watchtower Bible & Tract Society of New York, Inc. (2015) 235 Cal.App.4th 1214, as support for its position that Defendant had a duty to Plaintiff because she was engaged in church related activities when the abuse occurred. (Opposition, p. 7:2-11.) In Conti, a minor who was sexually abused by a member of her congregation while they were engaged in “field service,” a churchsponsored activity where members go door-to-door preaching in the community, sued the church and its elders. (Conti, supra, 235 Cal.App.4th at 1217.) Plaintiff is correct that the court in Conti held “under the special relationship doctrine and the Rowland factors that defendants had a legal duty to exercise due care to prevent Conti from being molested during her church-sponsored field service.” (Id. at 1233 [emphasis added].)

However, the court also held that a church did not have a special relationship with its members or children that would require the church to warn about a member that had previously molested a child, or to continuously monitor that member. (Id. at 1227-1231.) Specifically, the Conti court stated “[t]here was no special relationship between the church and all of the children in the Congregation simply because they were members of the church. Nor did the church have a special relationship with Kendrick, for purposes of a duty to monitor his behavior toward children, by virtue of control over his conduct with them.” (Id. at 1231.)

The Supreme Court of California has also held that a religious counseling relationship is insufficient to create a special relationship and duty to prevent harm. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293-294 [Court held that a pastor who provides counseling to a church member does not have a duty to prevent suicide or refer the member to a licensed professional].)

Here, Plaintiff argues that she had a special relationship with Defendant because she was involved in church related activities when she was abused by Dien. (Opposition, p. 8:12-14.) She alleges that Dien’s inappropriate conduct toward her occurred when he drove her to church, provided counseling and moral guidance, and had her assist him with translating sermons from Indonesian to English, often in his vehicle. (FAC at ¶¶ 13- 19, 89.) There are no allegations that the conduct occurred while she was attending school or engaged in other church-sponsored activities where she was under the custody and/or control of the Church. Thus, the facts alleged do not support a finding that Defendant had a special relationship with Plaintiff. (See, Nally, supra, 47 Cal.3d 293-294.)

Furthermore, Plaintiff’s reliance on Juarez, supra, 81 Cal.App.4th 377 and United States Youth Soccer, supra, 8 Cal.App.5th 1118 are unhelpful, as those cases are distinguishable.

In Juarez, the court did not find there was a special relationship, but instead that the defendant’s duty to the plaintiff existed based on the Rowland factors. (Juarez, supra, 81 Cal.App.4th at 401-411.) However, the California Supreme Court in Brown v. USA Taekwondo (2021) 11 Cal.5th 204, disapproved of this holding, finding instead that if there was no special relationship giving rise to an affirmative duty to protect from a third party, there can be no such duty based on the Rowland factors. (Id. at 217.) The Court stated:

Brown argues for a different approach to the duty to protect. She argues that even if the defendant lacks any special relationship with the parties and there are no other circumstances that would give rise to an affirmative duty to protect, such a duty may nonetheless arise after considering the policy factors set out in the landmark decision in Rowland, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. We reject the argument.

(Id. at 217 [emphasis added].) The Court went on to say:

Where such a special relationship exists between the defendant and a minor, the obligation to provide such protection and assistance may include a duty to protect the minor from third party abuse. ... And there may be

other circumstances that give rise to a comparable affirmative duty to protect. ... But where no such circumstances exist, the Rowland factors do not serve as an alternative basis for imposing duties to protect. The purpose of the Rowland factors is to determine whether the relevant circumstances warrant limiting a duty already established, not to recognize legal duties in new contexts.

(Id. at 220-221 [internal quotations omitted][emphasis added].) In coming to this decision, the Brown Court specifically disapproved of the Juarez court’s finding of a duty based only on the Rowland factors. (Id. at n. 9.)

In United States Youth Soccer, where a minor was abused by a coach, the national soccer association had bylaws that required state associations and affiliate leagues to screen criminal conviction information on coaches by voluntary disclosure rather than independent third parties. (Id. at 1126.) The court there found a special relationship since the league affiliates were required to comply with policies of the national soccer association, and noted that mandatory attendance was one of the bases for the special relationship, because, like a school, parents entrusted the defendants to keep their children safe. (Id. at 1130-1131.)

In the present case, Plaintiff’s attendance at the Church was not mandatory, and there are no other factor showing custody or control over Plaintiff. Therefore, Plaintiff has not pled sufficient facts to establish Defendant owed a duty to her to protect her against Dien’s conduct.

NEGLIGENT SUPERVISION OF AN EMPLOYEE (2ND) AND NEGLIGENT RETENTION (3RD) CAUSES OF ACTION

An employer may be liable for its own direct negligence in hiring, retaining, or failing to oversee an incompetent or unfit employee whose characteristics might pose a danger to a person the employee is expected to come into contact with due to the employment relationship if the employer knew or should have known that the employee created a particular risk and that particular harm materializes. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038.) Negligent hiring/supervision/ retention/training of an employee is based on direct liability for negligence, not vicarious liability. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)

To establish a negligent hiring, supervision, and/or retention cause of action, a plaintiff must plead and prove the following: (1) the employer hired employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence in hiring /supervising/ retaining the employee was a substantial factor in causing plaintiff's harm. (CACI No. 426; see also, Federico v.

Sup. Ct. (1997) 59 Cal.App.4th 1207, 1213–14.) To recover for negligent hiring or supervision, the harm that occurred must be from the particular risk that the employer was aware of when it hired the employee. (See, Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 837-838 [No liability for negligent hiring of pastor who was a child

molester when the plaintiff was not molested by the pastor, but by her brother, who had been molested by the pastor].) Additionally, the risk of the particular harm suffered must be reasonably foreseeable. (D.Z. v. Los Angeles Unified School District (2019) 35 Cal.App.5th 210, 229-230 [“to support her negligent supervision claim, appellant had to prove both that [the defendant] posed a risk of harm to students and that the risk of harm was reasonably foreseeable”].)

Here, while Plaintiff alleges “Defendant knew or should have known of Dien's dangerous propensities,” this is a conclusion without factual support. (FAC at ¶¶ 46-47, 49-51, 65- 66, 98.) As support for this statement, Plaintiff alleges that: Dien’s wife and another pastor knew about Plaintiff’s allegations of abuse, and instead of reporting them, they and others spread false rumors and tried to intimidate Plaintiff into recanting; other parishioners told Plaintiff only God could judge Dien because he was a pastor; she was placed on an involuntary hold due to the rumors; at the time of her abuse there were rumors of Dien making sexually inappropriate comments to other minor females; and at his criminal trial, two other victims came forward. (FAC at ¶¶ 24-29, 32-34, 46, 49-51, 99-107.)

However, all of this alleged information/knowledge of allegations and other victims came out well after Dien was hired, and after the alleged abuse of Plaintiff occurred. (Ibid.) Since the abuse had already occurred when Defendant purportedly obtained this knowledge, Plaintiff has not pled sufficient facts to show Defendant’s conduct in hiring, supervising, and retaining Dien was a substantial factor in causing plaintiff's harm. (See, CACI No. 426; Federico, supra, 59 Cal.App.4th at 1213-1214.)

Furthermore, while Plaintiff alleges that Dien’s wife and another pastor knew about Plaintiff’s allegations, there are no allegations showing either of those individuals had sufficient authority within Defendant such that their knowledge should be imputed on Defendant. (FAC at ¶¶ 49-51, 106-107.) Additionally, there are no facts stating what the rumors about another victim were, or who in authority at Defendant knew about them. Finally, Plaintiff alleges that Defendant was aware of the risk of sexual abuse of minors by pastors due to policies and procedures it created and General Conference rules, and it acknowledged the role of the Church in minimizing this risk. (FAC at ¶¶ 54-58, 66-72, 112-113.)

However, these allegations are of no assistance to Plaintiff because they refer to a general risk of abuse by any pastor, not Dien specifically, and an employer’s liability is based on its knowledge that the specific employee (here, Dien) was unfit and that unfitness created a particular risk that occurred. (See, CACI No. 426; Federico, supra, 59 Cal.App.4th at 1213-1214; Evan F., supra, 8 Cal.App.4th at 837-838.)

SEXUAL BATTERY (4TH) CAUSE OF ACTION

Under Civil Code section 1708.5, subdivision (a), a person commits sexual battery if he does any of the following:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results. (2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

A cause of action for sexual battery requires that the batterer intends to cause a harmful or offensive contact and that the victim suffer a sexually offensive contact. (Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.)

Two doctrines may be implicated in assessing liability against an employer: (1) the doctrine of respondeat superior, pursuant to which the employer is indirectly or vicariously liable for torts committed by its employees within the scope of their employment; and (2) an agency theory pursuant to which an employer may be directly liable for acts of its agents. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1427.)

Vicarious Liability

An employer can be “vicariously liable for the torts of its employees committed within the scope of the employment.” (See, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) While whether or not the tort was committed within the scope of the employee’s employment is generally a question of fact, if the facts are undisputed and no conflicting inferences can be drawn from the facts presented, resolution of the issue becomes a question of law (Mary M. vs. City of Los Angeles (1991) 54 Cal.3d 202, 213.)

California courts have repeatedly held that sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer. (Juarez v. Boy Scouts of America (2000) 81 Cal.App.4th 377; M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 133 [court held that an alleged sexual assault by City’s firefighters while in a fire truck at a convention was outside the scope of employment and City was not vicariously liable]; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447-452 [the California Supreme Court held that a school district was not vicariously liable for the molestation of a student by a teacher because the teacher’s actions were not within the scope of employment]; Ortega v.

Pajaro Valley Unified School District (1998) 64 Cal.App.4th 1023, 1057 [“John R. makes it clear that a teacher's sexual abuse of a child is not an act for which a school district may be held responsible. The District can be held liable only for its own conduct which causes injury”]; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 144 [school custodian who sexually assaulted an 11 year-old student on school grounds, during working hours, was acting outside the scope of his employment]; Steven F. v.

Anaheim Union High School District (2003) 112 Cal.App.4th 904, 908–09 [school district not vicariously liable for acts of teacher who had inappropriate sexual relationship with student].) This is true even if the abuse occurred during work hours on the employer’s premises. (Juarez, supra, 81 Cal.App.4th at 377.) The rationale is that sexual misconduct simply is not foreseeable, because it does not relate to employment duties or tasks, but rather, is committed only for the employee's personal gratification. (Lisa M., supra, 12 Cal.4th at

302.) Thus, Defendant cannot be held liable for Dien’s sexual abuse on a vicarious liability theory.

Ratification

As an alternative theory to respondeat superior, an employer may be liable for the conduct of an agent if it ratifies the conduct after the fact by voluntarily electing to adopt the agent’s conduct. (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.) Ratification is generally applied where the employer failed to investigate or respond to charges that an employee committed an intentional tort, where the employer fails to discharge the employee who committed the misconduct, or learns of the misconduct and fails to act. (C.R. v. Tenet Healthcare Corp., supra, 169 Cal.App.4th at 1111.)

In the present case, Plaintiff alleges that she reported Dien’s sexual abuse, and Defendant ratified Dien’s conduct by allowing him to remain in his position after it knew of his abuse and by supporting him during the criminal proceedings. (FAC at ¶¶ 48, 52- 53.) This is sufficient, for pleading purposes, to show Defendant ratified Dien’s sexual abuse. Therefore, the demurrer to the 4th cause of action should be overruled.

NIED (5TH) CAUSE OF ACTION

Finally, Plaintiff next asserts a NIED claim, which is a form of negligence. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1071.) The elements of NIED are: (1) legal duty to use due care; (2) breach of such duty: (3) damages and injury; (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Store (1993) 6 Cal. 4th 124, 129.) There are two types of NIED claims: direct victim and bystander.

Plaintiff appears to be asserting a direct victim claim for NIED. Direct victim NIED cases involve damages for serious emotional distress that results from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed as a matter of law. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1073.) Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Thing v. La Chusa (1989) 48 Cal.3d 644, 668, fn 12.) Under a “direct victim” theory of NIED, the plaintiff must establish that the defendant owed a duty that is imposed by law, assumed by the defendant, or exists by virtue of a special relationship. (Potter v.

Firestone Tire & Rubber Co. (1992) 6 Cal.4th 965, 985.) Additionally, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Ibid.)

As discussed in detail above, Plaintiff fails to allege sufficient facts to show Defendant owed a duty to protect her from Dien’s abuse.