Randi W. v. Livingston Union School Dist., F020849
| Decision Date | 15 December 1995 |
| Docket Number | No. F020849,F020849 |
| Citation | 41 Cal.App.4th 400,49 Cal.Rptr.2d 471 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 41 Cal.App.4th 400, 45 Cal.App.4th 1570, 50 Cal.App.4th 447 41 Cal.App.4th 400, 45 Cal.App.4th 1570, 50 Cal.App.4th 447, 106 Ed. Law Rep. 772, 11 IER Cases 680 RANDI W., a Minor, etc., Plaintiff and Appellant, v. LIVINGSTON UNION SCHOOL DISTRICT et al., Defendants and Respondents. |
We will hold here that school authorities who recommend a former employee for hiring at another school may be subject to liability for physical harm to a student molested by the employee at the hiring school, on theories of negligent misrepresentation, fraud, and negligence per se when the recommendations fail to disclose known or reasonably suspected acts of sexual molestation previously committed by the employee and no report has been made pursuant to the Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.).
Plaintiff and appellant Randi W. (by and through her guardian ad litem, Marilyn E.W.) filed the instant lawsuit against Livingston Union School District, Muroc Joint Unified School District, Golden Plains Unified School District, Tranquility Elementary School, Mendota Unified School District, the State of California, 1 Robert Gadams, Gilbert Rossette, Gary Rice, Richard Cole, Henry Escobar, Kathy Berkeley, and David Malcolm.
For purposes of all subsequent discussion, the defendants may be divided into two groups as follows: Livingston Union School District, Robert Gadams, Henry Escobar, and Kathy Berkeley will be collectively referred to as the "Livingston defendants"; all others are grouped as the "respondents." The Livingston defendants are not involved in this appeal.
The first amended complaint, the pleading with which we are concerned here, alleged that appellant was a student at Livingston Middle School where Robert Gadams served as vice principal. On February 1, 1992, appellant was in Gadams's office when he "negligently and offensively touched, molested, and engaged in sexual touching of 13-year old [appellant] proximately causing injury to her."
The first count of the first amended complaint, sounding in negligence, alleges that all defendants (including respondents) knew or had reason to know that Gadams had previously engaged in various types of "sexual wrongdoing" with minors and students, but that the defendants "negligently, carelessly, and/or with knowledge intentionally, maliciously, and/or fraudulently hired, retained, failed to report, failed to discipline, failed to supervise and/or affirmatively recommended defendant ROBERT GADAMS to other positions of trust and positions whereby he would act as an authority figure to minors and students."
Specific negligence allegations are made as to respondents. The first amended complaint alleges that Gadams worked in the Mendota school system during the 1985-1988 time frame. In May of 1990, Gilbert Rossette, an official in the Mendota school district, provided to the placement office at Fresno Pacific College a "detailed recommendation" regarding Gadams, with the knowledge that it would be passed on to prospective employers--this despite Rossette's alleged knowledge of Gadams's prior sexual misconduct with female students, including Gadams's involvement in " 'sexual situations' with more than one female student...." Rossette's recommendation set out numerous positive aspects of Gadams's tenure in Mendota, and concluded, "I wouldn't hesitate to recommend Mr. Gadams for any position!"
Similar allegations are made about Richard Cole, an official of Tranquility High School District and Golden Plains Unified School District where Gadams was employed between 1986 or 1987 and 1990. The first amended complaint alleges that Cole, in 1990, provided Fresno Pacific College's placement office with a "detailed recommendation" of Gadams despite knowledge of Gadams's prior inappropriate conduct while an employee of the Golden Plains Unified School District. Specifically, Cole knew that Gadams had been the subject of various complaints by parents, including charges that he had "made sexual overtures to students." These complaints had apparently led to Gadams's "resigning under pressure from Golden Plains due to sexual misconduct charges...." The recommendation again listed Gadams's various strong points as an instructor and administrator, and Cole stated he "would recommend him for almost any administrative position he wishes to pursue."
Gary Rice and David J. Malcolm, officials in the Muroc Joint Unified School District (where Gadams was employed in or around 1990 and 1991) also allegedly provided a "detailed recommendation" to Fresno Pacific College's placement office in 1991, despite knowledge of disciplinary actions taken against Gadams regarding sexual harassment allegations during Gadams's employment with the Muroc district. The allegations included charges of sexual touching of female students and led to Gadams being forced by the district to resign. The recommendation, signed by Malcolm, described Gadams as "an upbeat, enthusiastic administrator who relates well to the students" and who was "in a large part" responsible for the campus of Boron Junior/Senior High School being "a safe, orderly and clean environment for students and staff," and he concluded by recommending Gadams "for an assistant principalship or equivalent position without reservation."
All of these recommendations were made on forms, provided by Fresno Pacific College, which clearly stated that the provided information "will be sent to prospective employers."
Appellant contends that all of these recommendations, with their associated failures to warn, were made "with actual malice, corruption and actual fraud since these defendants knew the true facts regarding Gadams and knew that an injury to a child by Gadams would probably result." Appellant alleges that her injuries were a proximate result of respondents' actions.
Appellant alleges that each of the respondents was negligent in hiring Gadams "without any significant investigation or knowledge that Gadams was fit to act in a position of trust with respect to children or with a complete indifference" to Gadams's history of sexual misconduct. She alleges that her injuries were a direct and proximate result of these failures to investigate Gadams prior to his hiring by the various respondents.
Appellant alleges that respondents' gratuitous recommendations of Gadams to Fresno Pacific College's placement office were made with "actual fraud, corruption, and actual malice"; respondents knew them to be false, and knew that "minor public school children generally and those at Livingston would probably suffer injury because of the representations and failure to warn." Appellant alleges a duty owed by respondents "to those to whom the statements were made and to the children at public schools whose families rely upon said representations."
Appellant here alleges that respondents intentionally made the aforementioned knowingly false representations about Gadams with knowledge that they were "likely to injure [appellant]," and with the intent that they would be relied upon "by all other defendants and others, and in fact were relied upon by each other defendant and [appellant]."
Appellant alleges that respondents had a mandatory duty pursuant to Penal Code section 11165 et seq. and other statutes to report Gadams's prior sexual misconduct to "appropriate authorities and prospective employers." Respondents failed to do so, thus affording Gadams "the opportunity to maintain a position of trust and authority with regard to minor students thereby enabling his molest of [appellant]."
Finally, appellant alleges that she "has been the subject of sexual harassment by [respondents]," a violation of 20 United States Code sections 1681-1688.
Respondents demurred to the first amended complaint. The demurrers argued that each cause of action in the first amended complaint failed as a matter of law because the facts alleged failed to establish any duty running from the respondents to appellant.
At the hearing on the demurrers the trial court expressed doubt as to whether appellant had, or could, adequately plead any duty running from respondents to her. "And so my tentative ruling is to sustain the demurrer without leave to amend on the basis that there is no legal duty [ ] from these demurrering [sic ] defendants to the plaintiff." The court further noted that, if it were not going to sustain the demurrer on that basis, it would sustain it with leave to amend for failure to adequately plead causation and reliance.
The court subsequently issued a written order sustaining respondents' demurrers without leave to amend, holding that "the First Amended Complaint does not state facts sufficient to constitute a cause of action against the demurring defendants, on the basis that no duty exists to this plaintiff, from these demurring defendants." Judgment of dismissal with prejudice in favor of respondents was later entered, and this timely appeal followed.
The court's task on reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, the court must assume the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in...
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