Doe v. City of Los Angeles

• Citation: 169 P.3d 559,42 Cal.4th 531,67 Cal.Rptr.3d 330
• Decision Date: 01 November 2007
• Docket Number: No. S142546.,S142546.
• Court: United States State Supreme Court (California)
• Parties: John DOE, Plaintiff and Respondent, v. CITY OF LOS ANGELES et at, Defendants and Appellants. John Doe 2, Plaintiff and Respondent, v. City of Los Angeles et al., Defendants and Appellants.

67 Cal.Rptr.3d 330

42 Cal.4th 531

169 P.3d 559

John DOE, Plaintiff and Respondent, v. CITY OF LOS ANGELES et at, Defendants and Appellants.

John Doe 2, Plaintiff and Respondent, v. City of Los Angeles et al., Defendants and Appellants.

No. S142546.

Supreme Court of California.

November 1, 2007.

Zalkin & Zimmer, Devin M. Storey, Irwin M. Zalkin, San Diego; Taylor & Ring, David M. Ring, John C. Taylor, Los Angeles; Bennett, Johnson & Galler, Todd A. Walburg and William C. Johnson for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Amy Jo Field, Deputy City Attorney, for Defendant and Respondent City of Los Angeles.

Sedgwick, Detert, Moran & Arnold, Christina J. Imre, Los Angeles, Orly Degani, Gregory H. Halliday and Thomas A. Delaney, Irvine, for Defendant and Respondent Boy Scouts of America.

Hennigan, Bennett & Dorman, J. Michael Hennigan and Lee W. Potts, Potts, for Roman Catholic Archbishop of Los Angeles and Defense Laison Counsel as Amici Curiae on behalf of Defendant and Respondent Boy Scouts of America.

Sweeney & Greene, James F. Sweeney and Stephen R. McCutcheon, Jr., Sacramento, for California Catholic Conference as Amicus Curiae on behalf of Defendant and Respondent Boy Scouts of America.

MORENO, J.

Code of Civil Procedure section 340.1, which extends the statute of limitations within which a victim of childhood sexual abuse may sue a person or entity who did not perpetrate the abuse but was a legal cause of it, requires that such actions be brought before the victim's 26th birthday, unless the defendant "knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person...." (Code Civ. Proc., § 340.1, subd. (b)(2).)

Plaintiffs, John Doe and John Doe 2, now in their 40's, sued the City of Los Angeles and the Boy Scouts of America alleging they had been sexually abused by David Kalish, a police officer, while they were participants in the Los Angeles Police Department Explorer Scout Program in the 1970's.¹ The superior court dismissed their actions on the ground that the statute of limitations had lapsed because plaintiffs failed to adequately plead that defendants "knew or had reason to know, or [were] otherwise on notice, of any unlawful sexual conduct" by Kalish. The Court of Appeal affirmed.

We granted review to examine whether the pleadings in these cases are sufficient to invoke the extended statute of limitations set forth in subdivision (b)(2). We conclude that subdivision (b)(2) is a remedial statute that the Legislature intended to be construed broadly to effectuate the intent that illuminates section 340.1 as a whole; to expand the ability of victims of childhood sexual abuse to hold to account individuals and entities responsible for their injuries. This principle of broad construction is not consistent with language in the opinion of the Court of Appeal below that imposed heightened pleading requirements on plaintiffs seeking to bring their actions within this expansion of the statute of limitations in childhood sexual abuse cases. However, even without the stringent pleading requirements imposed by the Court of Appeal, we agree with its conclusion that the statute requires more specific allegations than were made by plaintiffs in this case. Accordingly, we affirm the judgment of the Court of Appeal.

I. FACTS

A. Doe 1's Complaint

Doe 1's operative pleading is his fourth amended complaint. He alleges that Kalish sexually abused him "between approximately 1974 through 1979" when he was under 18 years old and a participant in the "Law Enforcement Explorer Scout program" at LAPD's Devonshire division. Kalish, who was a supervisor of that program and allegedly used his position as supervisor to molest Doe 1, is not a party to this appeal. The complaint further alleges causes of action against the City, BSA, and "Law Enforcement Explorer Post 522" for negligent vetting, supervision, training and retention of Kalish, negligent supervision and management of the Explorer Scout program, negligent failure to warn and negligent failure to supervise and protect Doe 1.²

Doe 1 alleges that he first met Kalish while Doe 1 was a participant in the Deputy Auxiliary Police (DAP) program at LAPD's Devonshire division. The DAP program was sponsored by the police department and provided social and athletic activities to at-risk children between the ages of 12 and 14. According to Doe 1, it was common knowledge among LAPD officers that Kalish sought out and befriended boys in the DAP program who "bec[a]me his eventual victims." Kalish encouraged some of these boys to join the Explorer Scout program after they completed the DAP program "so that he could have further access to them in subsequent years." Doe 1 joined the Devonshire Explorer Scout program in 1975, when he was 14 years old, and remained a participant until sometime in 1979, when he was 17.

The Explorer Scout program was sponsored by BSA and LAPD. On information and belief, Doe 1 alleges that BSA required law enforcement agencies like LAPD to comply with guidelines that, among other things, required proper vetting and supervision of adult leaders, prohibited fraternization between the adult leaders and scouts outside of sanctioned events and also prohibited one-on-one contact between adult leaders and scouts. The Explorer Scout program at Devonshire was supervised by a lieutenant who was the designated community relations officer. The lieutenant, in turn, reported to a captain. While the community relations officer exercised supervision and oversight, advisors like Kalish dealt directly with the participants.

Doe 1 alleges that a number of unqualified officers, including Kalish, were involved in the Devonshire Explorer Scout program. Doe 1 also alleges that Explorer Scouts were used for activities of questionable value to the community such as refurbishing Kalish's home. In exchange, Explorer Scouts, including Doe 1, were given beer, though none was old enough to drink alcohol legally.

Doe 1 alleges that Kalish was a pedophile and a friend of Vince Pirelli, a known pornographer who specialized in pornographic movies featuring boys. According to Doe 1, Pirelli was present at Kalish's house at the same time as some of the Explorer Scouts, and Kalish pressured Doe 1 to participate in Pirelli's pornographic movies. Another of Kalish's victims was also pressured into making pornographic movies for Pirelli. On information and belief, Doe 1 alleges that Kalish filmed sexual encounters at his home with victims other than Doe 1 and had a preference for "young slight blond boys," a description that fit at least two of his victims from the Explorer Scout program.

Doe 1 alleges on information and belief that it was "commonly known" that Kalish invited Explorer Scouts into his home outside of sanctioned program events and activities. Kalish would pick up plaintiff and other Explorer Scouts, at least one of whom Kalish also sexually abused, and drive them to his house. There, he allowed Explorer Scouts to drink and watch pornography. On one occasion, a boy who had been drinking at Kalish's house became drunk and was involved in a traffic incident that resulted in a police report.

Kalish also drank with some of his victims in the parking lot of Devonshire station after his victims had completed their evening shift at the Communications Division. On one occasion, Kalish became intoxicated and asked another victim, who was an unlicensed 15 year old, to drive him home. Kalish took the same boy to the police academy to watch Kalish complete his monthly firearm qualification, and then bought his victim gifts at the police academy gift shop. At other times, he took the boy to the police academy to play racquetball or jog, after which they showered together, and then Kalish would take the boy home at 3:00 or 4:00 a.m. Kalish showed favoritism to this boy and others, including Doe 1, by buying them LAPD jackets and shirts, some of which were unavailable to the public, and openly giving them these gifts at Devonshire station. He also showed favoritism by providing "additional ride-alongs, ride-alongs in the downtown patrol division, and commendations."

Doe 1 alleges that other police officers from Devonshire station participated in unauthorized activities and trips with Kalish and Explorer Scouts. Additionally, it was "commonly known" that Kalish traveled to Thailand which is "a known haven for pedophiles." Doe 1 alleges on information and belief that, on one of these trips, other LAPD officers observed Kalish with a young Thai boy.

Doe 1 alleges that on one occasion Kalish molested him at a sanctioned Explorer Scout activity and on another occasion as Kalish was driving Doe 1 home from a sanctioned activity. A third incident occurred at Doe 1's home. Doe 1 was afraid of what would happen to his Explorer Scout career and his hope to become a police officer if he resisted Kalish. Additionally, Kalish had threatened at least one other victim to keep him silent and constantly asked whether that victim had confided in anyone.

On information and belief, Doe 1 alleges that nationwide there have been at least 31 reported incidents of the sexual abuse of Explorer Scouts by police officers participating in the Explorer Scout program. With respect to the Devonshire program, Doe L alleges that, prior to the incidents involving Kalish, there were "other instances of misconduct ... between Advisors and Scouts involving drinking and sexual fraternization" that should have put those in charge of the program on notice of the need to make changes to protect the scouts against sexual exploitation. He alleges further that "other LAPD officers viewed the Explorer/Scout program as a ...