Annie G. v. Glacial Garden Skating Arenas, LLC CA2/3 ( 2020 )

Filed 9/17/20 Annie G. v. Glacial Garden Skating Arenas, LLC CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANNIE G., a Minor, etc., B293351
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC624620)
v.
GLACIAL GARDEN SKATING
ARENAS, LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Reversed with
directions.
Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D.
Marshall, Normandy Kidd; Law Offices of Stephen Glick and
Stephen Glick for Plaintiff and Appellant.
Koeller, Nebeker, Carlson & Haluck, Gary L. Hoffman,
Maria K. Pleše; Hayes, Scott, Bonino, Ellingson, Guslani, Simonson
& Clause, Mark G. Bonino and Emma B. Lloyd for Defendants and
Respondents.
Annie G., a nine-year-old figure skater, was sexually
assaulted by her coach Donald J. Vincent. Through her guardian
ad litem, Annie G. sued Vincent, the United States Figure Skating
Association (USFSA) and the Professional Skaters Association
(PSA), as well as the skating rinks where Vincent had coached,
seeking to hold them liable for their negligence in failing to protect
her and to report Vincent’s misconduct to the appropriate
authorities. Annie G. challenges the trial court’s order sustaining
without leave to amend Glacial Garden Skating Arenas, LLC
(Skating Arena) and Ron White’s1 (collectively Glacial Garden)
demurrer to her third amended complaint. The trial court found
that Glacial Garden owed Annie G. no duty of care because
Annie G. was never a skating student with Glacial Garden and the
sexual abuse occurred after Glacial Garden had terminated Vincent
for inappropriate conduct with other children. We reverse the
judgment with instructions.
BACKGROUND
This appeal comes to us after the trial court sustained a
demurrer without leave to amend and so we recite the facts as
alleged in the pertinent complaints.
In June 2007, Glacial Garden hired Vincent as a figure
skating coach. Glacial Garden confirmed Vincent’s USFSA and
1 Ron White owned and operated Skating Arena, which is no
longer an existing business entity.
2
PSA memberships;2 however, it did not perform a background check
before hiring him.3
At Skating Arena, Vincent demonstrated “boundary violating
behaviors” with his minor skating students. These included giving
piggyback rides to young boys, “engaging in horseplay,” “holding
hands with at least one minor student,” and “sitting too closely” to
other students. In September and December 2007, Glacial Garden’s
skating director and Vincent’s direct supervisor, Jacqui Palmore,
reprimanded Vincent at least twice for inappropriate behavior with
minor students. Then, in August 2008, Glacial Garden fired
Vincent when a staff member caught him in a dark locked room
with a minor skater. The minor was hiding under a bench where
Vincent sat. Someone at Skating Arena, possibly White, reported
Vincent’s conduct to the USFSA and PSA as required by their rules
of conduct. However, the report did not result in an inquiry into
Vincent’s fitness as a coach.
That same month, after Vincent was terminated from Glacial
Garden, Vincent brought one of his minor skating students to
another skating rink, Paramount Iceland (Iceland). Vincent and
that student would often arrive and leave the rink together and, on
2 USFSA and PSA are the two governing skating associations
that are responsible for credentialing coaches. They each have a
code of ethics, mandatory reporting obligations, grievance
procedures, and disciplinary proceedings for charges of misconduct.
3 Annie G. and Glacial Garden appear to agree that, had
Glacial Garden performed a background check, it would have shown
that Vincent was fired from his prior job after he got into an
altercation with an adult. This alleged fact, however, does not
appear in any of Annie G.’s four complaints nor do the parties cite
to where it is found in the record.
3
several days per week, the student was in Vincent’s custody for the
entire day. When Vincent first arrived at Iceland, Darlene Sparks,
Iceland’s skating director, noted that Vincent isolated his student
from other coaches and students.4 Sparks knew about the incident
in the locked room at Skating Arena and that Glacial Garden fired
Vincent. Nevertheless, by January 2009, Iceland had hired Vincent
as a staff coach to teach one-on-one classes to minor skating
students.
Sometime in 2009, while coaching at Iceland, Vincent started
coaching Annie G. Sparks recommended Vincent as a coach for
Annie G. and helped her family negotiate a price for private lessons.
From the time he began to coach Annie G., Vincent harassed,
molested, and abused her. He isolated her from other skaters and
coaches, fondled her, threatened her, and touched her
inappropriately. In 2009 or 2010, another coach found Annie G.
and Vincent alone in the “coaches only” room at Iceland.
In the spring of 2011, Vincent started homeschooling
Annie G. at his residence, and the sexual abuse escalated. Annie G.
spent Monday through Friday with Vincent and was alone with him
for several hours per day, “studying at his home, eating meals
prepared by him, riding in his car to the skating rink, and
participating in one-on-one coaching sessions on and off the ice.”
Other coaches, parents, and employees at Iceland complained to
Sparks that Vincent was not a licensed teacher and should not be
homeschooling Annie G. From 2009 to 2011, Sparks also received
reports that Vincent was acting inappropriately with Annie G.,
assuming a parental role with her, touching her inappropriately,
4 Annie G.’s original complaint alleged that Sparks witnessed
Vincent isolating his skating students as early as 2008.
4
holding her hand in public off of the ice, and “reaching down inside
her pants to insert tailbone crash pads.” He violently sexually
assaulted Annie G. at his home in the fall and winter of 2011.
In December 2011, Iceland fired Vincent “for suspected child
molestation and sexual abuse of his minor skating students.”
Sparks reported Vincent’s misconduct towards Annie G. and
another skating student to the Los Angeles County Sheriff’s
Department and the USFSA. She also contacted the Los Angeles
Department of Children and Family Services (DCFS) to report that
Annie G. was in the custody of a “suspicious person,” however, the
report led to a misdirected investigation of Annie G.’s parents
instead of Vincent. DCFS interviewed Annie G. about the
suspected abuse, but she was unable to tell the social worker about
the abuse because she was afraid of Vincent’s threats that he would
harm her if she said anything. For whatever reason, Sparks never
alerted Annie G.’s parents about Vincent’s misconduct.
After Iceland fired Vincent, he took Annie G. to another rink,
Skating Edge Ice Arena (Skating Edge), where he continued to
coach and abuse her for another year until his arrest in January
2013. He was convicted on multiple felony counts for the sexual
assault of two minor children, including Annie G.
Annie G., through her guardian ad litem, sued Vincent,
Iceland, Sparks, and the USFSA for various negligent and
intentional torts for injuries resulting from Vincent’s abuse and
amended her complaint to add defendants Glacial Garden, Skating
Edge, and the PSA.
Her second amended complaint alleged causes of action
against Glacial Garden for negligence, negligent and intentional
misrepresentation, negligent and intentional infliction of emotional
5
distress, negligent hiring and retention, negligent training and
supervision, and failure to warn.
The trial court sustained Glacial Garden’s demurrer to the
second amended complaint without leave to amend as to her causes
of action for negligent and intentional misrepresentation, and
granted leave to amend the others. Annie G. filed a third amended
complaint, to which Glacial Garden demurred, and the trial court
sustained without leave to amend.5
The trial court concluded that Glacial Garden did not owe
Annie G. a legal duty because she was never at the skating arena
and no alleged conduct occurred towards her while Vincent was
employed there, thus, there was no special relationship between
Glacial Garden and Annie G. It found that Annie G. could not
allege causation based on Glacial Garden’s failure to report because,
even after Vincent was reported to the authorities, Vincent
remained her coach and the abuse continued. Judgment was
entered in favor of Glacial Garden. Annie G. appealed.
Annie G. filed two motions to take evidence on appeal in
support of her misrepresentation causes of action. That evidence
consisted of Sparks’s deposition taken after the trial court sustained
the demurrer to the third amended complaint and an April 2019
grievance that Sparks filed with the USFSA. After the perfection of
the appeal, Sparks testified at her deposition that Palmore had
misled her as to Vincent’s suitability as a coach and withheld vital
information which would have caused Iceland not to employ him.
Sparks testified that in 2009, when Vincent was seeking to be put
5Annie G.’s third amended complaint alleged negligence,
negligent infliction of emotional distress, negligent hiring and
retention, and negligent training and supervision against Glacial
Garden based on failing to report Vincent’s conduct.
6
on staff at Iceland, she called Glacial Garden and asked Palmore if
there was any reason she should not hire Vincent. Palmore
responded, “No, everything’s fine.” The 2019 grievance with the
USFSA contains similar allegations of the conversation between
Sparks and Palmore. We deferred ruling on the motions, finding
them more suitable for resolution here.6
DISCUSSION
Annie G. challenges the trial court’s finding that Glacial
Garden did not owe her a duty to report Vincent’s misconduct
because they did not have a special relationship and thus no
affirmative duty to protect Annie G. She also asserts that she can
amend her complaint to allege Glacial Garden misrepresented
Vincent’s fitness as a coach. Because we agree that Annie G. has
alleged sufficient facts on appeal to show she can state causes of
action for negligent and intentional misrepresentation against
Skating Arena she must be given leave to amend those causes of
action.
I. Standard of Review
We independently review the sustaining of a demurrer and
whether the complaint alleges facts sufficient to state a cause of
action or discloses a complete defense. (McCall v. PacifiCare of
Cal., Inc. (2001) 25 Cal. 4th 412, 415.) We assume the truth of the
6 AnnieG. filed two appeals. The first appeal was taken from
the judgments entered after orders sustaining the demurrers filed
by the USFSA and the PSA. The second appeal was taken from the
judgments in favor of Glacial Garden. While her appeals were
pending, Annie G. settled with Iceland, Sparks, the USFSA, and the
PSA. We subsequently dismissed the appeal against the USFSA
and the PSA.
7
properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded and matters of which judicial
notice has been taken. (Schifando v. City of Los Angeles (2003)
31 Cal. 4th 1074, 1081.) We construe the pleading in a reasonable
manner and read the allegations in context. (Ibid.) We must affirm
the judgment if the sustaining of a general demurrer was proper on
any of the grounds stated in the demurrer, regardless of the trial
court’s stated reasons. (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal. 4th 962, 967.)
It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect
can be cured by amendment. (Schifando v. City of Los Angeles,
supra, 31 Cal.4th at p. 1082.) The burden is on the plaintiff to
demonstrate how the complaint can be amended to state a valid
cause of action. (Ibid.) The plaintiff can make that showing for the
first time on appeal. (Careau & Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1386.)
II. Annie G.’s negligence causes of action fail because Glacial
Garden did not owe her a duty of care
To state a cause of action for negligence, a plaintiff must
plead duty, breach, causation, and damages. (Regents of University
of California v. Superior Court (2018) 4 Cal. 5th 607, 618.) The
existence of a duty of care is a question of law. (Parsons v. Crown
Disposal Co. (1997) 15 Cal. 4th 456, 465.) “Where, as here, a
‘complaint alleges injuries resulting from the criminal acts of third
persons . . . “the common law, reluctant to impose liability for
nonfeasance, generally does not impose a duty upon a defendant to
control the conduct of another [citations], or to warn of such conduct
[citations], unless the defendant stands in some special relationship
either to the person whose conduct needs to be controlled, or to the
8
foreseeable victim of such conduct.” ’ ” (Roman Catholic Bishop v.
Superior Court (1996) 42 Cal. App. 4th 1556, 1564, italics omitted.)
A defendant may also be held liable for the criminal acts of a third
party under the negligent undertaking doctrine. (Barenborg v.
Sigma Alpha Epsilon Fraternity (2019) 33 Cal. App. 5th 70, 76
(Barenborg).) “Under this doctrine, ‘a person who has no
affirmative duty to act but voluntarily acts to protect another has a
duty to exercise due care if certain conditions are satisfied.’ ” (Ibid.)
Neither exception applies here.
A. Glacial Garden did not have a special relationship with
Vincent or Annie G.
Annie G. contends that Glacial Garden had a special
relationship with her and Vincent for two reasons. First, Glacial
Garden’s membership with the USFSA and PSA and its adoption of
their reporting standards created a special relationship. Second,
Glacial Garden had unique knowledge of Vincent’s predatory
behavior that posed a risk to his other skating students at other
rinks. We disagree.
First, a defendant may owe a duty to protect the plaintiff from
third party conduct if the defendant has a special relationship with
either the plaintiff or the third party. (Regents, supra, 4 Cal.5th at
pp. 619–620.) Special relationships arise when the plaintiff is
dependent on the defendant for protection and the defendant has
superior control over the means of protection. (Id. at pp. 620–621.)
“Similarly, a duty to warn or protect may be found if the defendant
has a special relationship with the potential victim that gives the
victim a right to expect protection.” (Id. at p. 619.) “ ‘ “The key in
each [special relationship] is that the defendant’s relationship
with . . . the tortfeasor . . . places the defendant in the best position
to protect against the risk of harm.” ’ [Citations.] Thus, the
9
defendant’s ability to control the person who caused the harm must
be such that ‘if exercised, [it] would meaningfully reduce the risk of
the harm that actually occurred.’ ” (Barenborg, supra,
33 Cal.App.5th at p. 78.)
In Regents of University of California v. Superior Court,
supra, 4 Cal.5th at page 620, our Supreme Court considered those
features common to a special relationship. “Generally, the
relationship has an aspect of dependency in which one party relies
to some degree on the other for protection.” (Ibid.) “ ‘[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.” ’ ” (Id. at p. 621.) “Special relationships also
have defined boundaries. They create a duty of care owed to a
limited community, not the public at large.” (Ibid.) Although these
relationships often confer benefits to both participants, “many
special relationships especially benefit the party charged with a
duty of care,” for example, between a retail store and its customers
or a hotel and its guests. (Ibid.)
Here, Annie G. was never a student at Skating Arena and
only became Vincent’s student after he had been coaching another
student at Iceland for several months. Annie G. could not have
relied on Glacial Garden to protect her from harm and there was
certainly no benefit, financial or otherwise, conferred on Glacial
Garden when Vincent became Annie G.’s coach at a different
skating rink. The allegations make clear that, at the time, Iceland
and Sparks, not Glacial Garden, were in the best position to protect
Annie G. from Vincent. Sparks observed Vincent’s pattern of
isolating his students before hiring him as a coach and before she
recommended him to Annie G. As such, the relationship between
10
Annie G. and Glacial Garden was not a special relationship that
would give rise to a duty of care.
Second, that Annie G. was a stranger to Glacial Garden
notwithstanding, she asserts that a special relationship arose
between her and Glacial Garden by virtue of Glacial Garden’s
unique knowledge of Vincent’s predatory behavior. However, the
allegations indicate that Sparks observed behavior similar to what
Vincent exhibited at Glacial Garden while he coached at Iceland.
For example, just as Vincent had been caught in a locked room with
a student at Skating Arena, an Iceland coach found Vincent alone
in the “coaches only” room with Annie G. Further, Annie G. alleged
that Sparks knew that Vincent was violating his minor students’
boundaries, for instance, she was aware that another skating
student who was also one of Vincent’s victims, was spending nights
in Vincent’s home multiple days per week. Thus, the complaint
does not allege facts showing that Glacial Garden had unique
knowledge of Vincent’s predatory behavior to create a special
relationship between the parties.
Glacial Garden’s memberships with USFSA and PSA also did
not create a special relationship between the rink and Annie G. As
we stated above, special relationships do not create a duty to the
public at large, but rather to specific individuals. Annie G.’s
position would essentially make every skating rink that is a
member of USFSA and PSA liable for the acts of a third party at
every other skating rink where that third party had coached. This
contention goes too far and is not supported by the authority cited
by Annie G.
Annie G cites Doe v. United States Youth Soccer Assn., Inc.
(2017) 8 Cal. App. 5th 1118 (Doe). In Doe, a minor was sexually
abused by her former soccer coach. She sued the relevant national
11
youth soccer association, that association’s highest administrative
body in northern California, and the local league that employed her
coach. (Id. at pp. 1122–1123.) The plaintiff alleged that the
defendants breached their duty to protect her by failing to conduct
criminal background checks and by failing to warn or educate her
about the risk of sexual assault. (Id. at p. 1123.) The trial court
sustained the defendants’ demurrers, but the Sixth Appellate
District reversed. (Id. at p. 1122.) The court found that,
“defendants, through the coaches, acted as ‘quasi-parents’ by
assuming responsibility for the safety of the players whose parents
were not present.” (Id. at p. 1130.) The national organization, in
turn, required the local league to comply with its policies and rules
for hiring coaches. (Id. at p. 1131.) Since the national organization
established the standards under which coaches were hired, it also
had custody and supervision of children involved in its programs.
(Ibid.)
Annie G. also cites Juarez v. Boy Scouts of America, Inc.
(2000) 81 Cal. App. 4th 377. In Juarez, a former boy scout was
molested by the scoutmaster of his troop during officially sanctioned
scouting events, such as overnight campouts. The boy scout sued
Boy Scouts of America, the local chapter of that organization, and
the church where the scout meetings took place. The First
Appellate District affirmed the trial court’s order granting
summary judgment on all of plaintiff’s causes of action, save one—
his cause of action for negligence for the Boy Scouts of America and
the local chapter’s failure to take reasonable protective measures.
(Id. at pp. 384–385.) The complaint alleged the organizations had
an independent duty to protect and educate young men who
participate in their programs. Plaintiff’s theory was that, if the
adult leaders in his troop had received training on how to prevent
12
and detect sexual abuse, and if he had been warned and educated
about how to handle such a situation, the sexual molestations
would have been prevented. (Id. at p. 397.)
In both Doe and Juarez, the duty ran from the broader
organization, down through the hierarchy, and to the individual
victim because the organizations established mandatory rules and
policies that governed the local youth organizations who were in the
best position to protect the vulnerable minors under their
supervision. (Doe, supra, 8 Cal.App.5th at p. 1131; Juarez v. Boy
Scouts of America, Inc., supra, 81 Cal.App.4th at p. 411.) In other
words, the national organizations could be held liable because they
exercised control over how the minors were supervised and
protected. Here, Annie G.’s complaint does not and cannot allege
that Glacial Garden had any control over Vincent’s conduct at
Iceland where he coached Annie G. The USFSA and PSA, not
Glacial Garden, set the policies for credentialing coaches and the
procedures for reporting misconduct. We decline to find a duty that
would run from rink to rink due to their membership in the USFSA
and PSA.
B. Glacial Garden did not voluntarily assume a duty to
report Vincent’s misconduct
Like her contention above that Glacial Garden’s membership
in USFSA and PSA created a special relationship, we also reject
Annie G.’s argument that Glacial Garden’s adoption of USFSA and
PSA’s reporting obligations constituted a voluntary undertaking to
protect Annie G.
The negligent undertaking doctrine encompasses both
undertakings to render protective services to the plaintiff (Rest.2d
Torts, § 323), and undertakings to render services to a third party
to protect the plaintiff (Rest.2d Torts, § 324A). For liability to
13
attach, the defendant “ ‘must specifically have undertaken to
perform the task that he is charged with having performed
negligently, for without the actual assumption of the undertaking
there can be no correlative duty to perform that undertaking
carefully.’ ” (Doe, supra, 8 Cal.App.5th at p. 1139, fn. 7.) The
plaintiff must show: “(1) the defendant undertook to render
services to another; (2) the services were of the kind the defendant
should have recognized as necessary for the protection of third
persons; and (3) either (a) the defendant’s failure to exercise
reasonable care increased the risk of harm beyond what existed
without the undertaking, (b) the undertaking was to perform a duty
owed by the other to the third persons, or (c) a harm was suffered
because the other or third persons relied on the undertaking.”
(Barenborg, supra, 33 Cal.App.5th at p. 84.)
Annie G. concedes that Glacial Garden was not a custodian in
the sense that it provided childcare or had legal control over its
students. Rather, Annie G. contends that Glacial Garden, through
its adoption of USFSA and PSA’s reporting standards, had a duty to
report Vincent’s conduct that ran to Annie G. and other members of
those associations.
Adoption of an organization’s standards and rules does not
amount to a specific undertaking for the negligent undertaking
doctrine to apply. (See, e.g., Barenborg, supra, 33 Cal.App.5th at
pp. 83–84; University of Southern California v. Superior Court
(2018) 30 Cal. App. 5th 429; Doe, supra, 8 Cal.App.5th at p. 1139,
fn. 7.) In University of Southern California, at page 436, for
example, a student sued her university for negligence after she was
injured at an off-campus fraternity party when she was inebriated.
The university had a policy of requiring fraternities to obtain prior
authorization to serve alcohol at social events. (Id. at 437.) The
14
university also had public safety officers patrolling the areas
around the campus, including the area where the fraternity house
was located. (Id. at pp. 436–437.) The student asserted that the
university had failed to protect her from an unreasonable risk of
harm and breached that duty by failing to either prevent or shut
down the party. (Id. at p. 436.) The court concluded that the
university’s alcohol policy for social events and off-campus security
patrol did not amount to a specific undertaking to protect the
student from third party conduct at an off-campus party. A “college
has little control over such noncurricular, off-campus activities, and
it would be unrealistic for students and their guests to rely on the
college for protection in those settings.” (Id. at p. 449.)
The connection here is even more tenuous than between the
student and university in University of Southern California v.
Superior Court. Glacial Garden did not establish the policies for
hiring and supervising coaches at Iceland. Indeed, the only
connections between Iceland and Glacial Garden was their
membership in the USFSA and PSA and their employment of
Vincent. Glacial Garden’s membership in those associations did not
amount to a voluntary undertaking to protect every student at
every other member rink, including Annie G. The negligent
undertaking doctrine is therefore inapplicable.
C. Glacial Garden did not owe a duty to Annie G. as a
mandated reporter.
Annie G. argues that Glacial Garden owed her a duty to
report Vincent’s conduct that occurred while he was still a coach at
Skating Arena. Annie G. theorizes that, because Glacial Garden
failed to report Vincent’s conduct towards Doe, he was able to
continue to abuse minor students, including her, for four more years
after he left Skating Arena. While the parties dispute whether
15
Vincent’s conduct at Glacial Garden constituted reportable abuse or
neglect, we need not decide that issue here because Glacial
Garden’s duty to report did not run to Annie G.
In Randi W. v. Muroc Joint Unified School Dist. (1997)
14 Cal. 4th 1066, the California Supreme Court found that a
mandatory reporter’s duty to report ran to those children in the
custodial care of the person charged with reporting the abuse, but
not to all children “who may at some future time be abused by the
same offender.” (Id. at p. 1087.) In the plaintiff’s view, if a
childcare custodian fails to report suspected child abuse affecting
one child in its care or custody, it 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.”
(Ibid.) “Neither legislative intent nor public policy would support
such a broad extension of liability.” (Ibid.)
Similarly, here, we decline to impose liability on Glacial
Garden for failing to report Vincent’s misconduct towards his
student that he brought from Glacial Garden to Iceland such that it
can also be held liable for Annie G.’s injuries.7
7 Because we find that Glacial Garden did not owe Annie G. a
duty of care, there is no liability for the negligent hiring, retention,
and supervision of Vincent by Glacial Garden (see C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal. 4th 861,
877), or for negligent infliction of emotional distress (see Catsouras
v. Department of California Highway Patrol (2010) 181 Cal. App. 4th
856, 876).
16
III. Annie G. cannot state a cause of action for intentional
infliction of emotional distress.
Annie G.’s second amended complaint alleges a cause of
action for intentional infliction of emotional distress. Annie G.’s
cause of action fails, however, because Glacial Garden’s conduct was
not directed towards her.
The elements of the tort of intentional infliction of emotional
distress are: (1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff's
suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s
outrageous conduct. (Christensen v. Superior Court (1991)
54 Cal. 3d 868, 903.) The conduct must be conduct directed at the
plaintiff, or occur in the presence of a plaintiff of whom the
defendant is aware. (Catsouras v. Department of California
Highway Patrol, supra, 181 Cal.App.4th at pp. 874–875.) Conduct
not aimed or directed at the injured plaintiff will not support a
cause of action for the intentional infliction of emotional distress
since it was not done with the intention of causing emotional
distress.
Here, Annie G. was a stranger to Glacial Garden. She never
skated at Skating Arena and did not meet Vincent until he was a
coach at Iceland. Therefore, Glacial Garden’s alleged misconduct
could not have been directed towards her.
IV. Annie G. can state a cause of action for misrepresentation.
Annie G. asserts that she can amend her complaint, for a
fourth time, to plead negligent and intentional misrepresentation
causes of action against Glacial Garden based on Sparks’s
17
postjudgment deposition testimony that Palmore misled her
regarding Vincent’s fitness as a coach. Here, we agree as to Skating
Arena, but not as to White.8
Again, we find Randi W. instructive. There, the California
Supreme Court decided under what circumstances courts may
impose tort liability on employers who fail to use reasonable care in
recommending former employees for employment without disclosing
material information bearing on their fitness. (Randi W. v. Muroc
Joint Unified School Dist., supra, 14 Cal.4th at p. 1070.) The
defendant school district officers wrote letters of recommendation
on behalf of an administrative employee they formerly employed.
(Ibid.) However, despite defendants’ knowledge, the unreserved
recommendations failed to disclose prior charges and complaints
regarding the administrator’s sexual misconduct. (Ibid.)
Defendants’ letters allegedly induced another school district to hire
the administrator, who later sexually assaulted the plaintiff, a
student in that district. (Ibid.) The plaintiff sued her own school
district and other school districts who had written letters
recommending the administrator for employment but failed to
8 Annie G.’s motions to take evidence on appeal and requests
for judicial notice, filed on September 19, 2019 and October 18,
2019, are denied. We grant such requests only under exceptional
circumstances that justify deviating from the general rule that
appellate review is limited to the record before the lower court.
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434,
444, fn. 3.) No such exceptional circumstances are present here.
Nevertheless, on an appeal from a judgment after a demurrer has
been sustained without leave to amend, the plaintiff can show, for
the first time on appeal, that the complaint can be amended to state
a cause of action. (Careau & Co. v. Security Pacific Business Credit,
Inc., supra, 222 Cal. App. 3d 1371, 1386.)
18
disclose his history of sexual misconduct. (Id. at pp. 1071–1072.)
While the Supreme Court found that plaintiff could not state a
claim for general negligence, it nonetheless concluded that the
complaint could allege causes of action for negligent
misrepresentation and fraud. (Id. at p. 1070.) Specifically, that
defendants’ letters of recommendation, containing unreserved and
unconditional praise for the former employee despite knowledge to
the contrary, constituted misleading statements that could form the
basis for tort liability for fraud or negligent misrepresentation.
(Ibid.) The court noted that, ordinarily, a recommending employer
is not liable to a third person for failing to disclose negative
information regarding a former employee, however, when the
recommendation letter amounts to an affirmative
misrepresentation that presents a foreseeable and substantial risk
of physical harm to a third person, liability will attach. (Ibid.)
Similarly, here, while the chain of causation between
Palmore’s statement and Annie G.’s injuries is attenuated, we find
it can be alleged that Skating Arena had a duty under Rowland v.
Christian (1968) 69 Cal. 2d 108 to not misrepresent Vincent’s fitness
as a coach. Rowland enumerated certain considerations that courts
evaluate when determining whether a departure from the general
rule of no liability is appropriate. (Id. at p. 113.) These include the
foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connection between
the defendant’s conduct and the injury suffered, the moral blame
attached to the defendant’s conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences
to the community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved. (Ibid.)
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The specific harm alleged here was a reasonably foreseeable
consequence of Palmore’s unqualified endorsement of Vincent’s
fitness as a coach. When Palmore told Sparks that everything with
Vincent was fine, Palmore knew it to be otherwise, and had in fact
fired Vincent for his inappropriate behavior with his minor
students. Skating Arena could also reasonably foresee that, had it
disclosed Vincent’s conduct with his minor students, Iceland would
not have hired him. It was also reasonably foreseeable that Vincent
might engage in those same boundary violating behaviors at
Iceland, which could eventually result in a more serious assault,
like what occurred here. We acknowledge these attenuating
circumstances, however, for purposes of demurrer, we assume that
Annie G.’s injuries were caused by Skating Arena’s conduct.
The other Rowland factors also weigh in favor of finding a
duty here as well. Certainly, misrepresenting material facts that
are necessary to avoid or minimize the risk of child molestation or
abuse is morally blameworthy. Just as in Randi W., the company
had alternative courses of conduct to avoid potential liability,
mainly, it could have made a full disclosure of why it terminated
Vincent or simply refused to comment on Vincent’s fitness for
employment. (See Randi W. v. Muroc Joint Unified School Dist.,
supra, 14 Cal.4th at p. 1078.) The “absence of a duty to speak does
not entitle one to speak falsely.” (Garcia v. Superior Court (1990)
50 Cal. 3d 728, 736.) Moreover, it is undisputed that public policy
prioritizes protecting children from sexual abuse. (Randi W., at
pp. 1078–1079.)
As such, while we find that there was no general duty of care
owed to Annie G. by Glacial Garden, once Sparks inquired about
Vincent’s fitness, Skating Arena had a duty to not misrepresent
those facts because it was reasonably foreseeable that Vincent
20
would engage in the same behavior at Iceland and that there was a
risk for serious physical harm to his minor skating students,
including Annie G.9
V. Annie G. should be given leave to amend her negligent and
intentional misrepresentation causes of action.
Because of the unique circumstances of this case, mainly, that
Annie G. acquired new evidence that would assist her in amending
her complaint after the trial court dismissed her claims without
leave to amend, there was no exercise of discretion by the trial court
as to the new evidence. At the time of dismissal, the trial court was
well within its discretion to dismiss the complaint and deny leave to
amend. The trial court already granted Annie G. leave to amend
four times and, at the hearing on demurrer, Annie G.’s counsel
failed to offer any additional facts to show a reasonable possibility
that amendment was possible.
However, Annie G. has met her burden on appeal to show
that she can properly amend her complaint to state a cause of
action for negligent and intentional misrepresentation.
Accordingly, without finding an abuse of discretion, we conclude
that the trial court must allow Annie G. to amend her causes of
action for negligent and intentional misrepresentation.
9 We also conclude that White was properly dismissed even
considering Annie G.’s new allegations. At oral argument,
Annie G.’s counsel represented that, other than White’s knowledge
of Glacial Garden’s duty to report Vincent, he could not amend the
complaint with specific allegations of White’s tortious conduct with
respect to the misrepresentation by Palmore. Annie G.’s counsel
also represented that he could not amend the complaint to assert an
alter ego theory of liability against White. As such, the trial court’s
dismissal of White is affirmed.
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DISPOSITION
The judgment is reversed. The trial court is directed to
(1) vacate its order sustaining Glacial Garden Skating Arenas, LLC
and Ron White’s demurrer without leave to amend and (2) enter a
new order allowing Annie G. to amend her causes of action for
negligent and intentional misrepresentation against Glacial Garden
Skating Arenas, LLC and sustaining the demurrer without leave to
amend as to all other causes of action against Glacial Garden
Skating Arenas, LLC and Ron White. The parties shall bear their
own costs on appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
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