Romero v. Superior Court
| Decision Date | 08 June 2001 |
| Docket Number | No. D036580.,D036580. |
| Citation | 107 Cal.Rptr.2d 801,89 Cal.App.4th 1068 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Nicanor ROMERO et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Ryan N., a Minor, etc., et al. Real Parties in Interest. |
Ford, Walker, Haggerty & Behar, Maxine J. Lebowitz and Timothy Lee Walker, Long Beach, for Petitioners.
No appearance for Respondent.
Elaine L. Heine, San Diego, for Real Parties in Interest.
Plaintiff and real party in interest Ryan N. (Ryan), then 13 years of age, was sexually assaulted by another minor, defendant Joseph W. (Joseph) who was then 16 years of age,1 while both teenagers were visiting a teenage son of petitioners and defendants Nicanor Romero and Gail Romero (together petitioners or the Romeros) in petitioners' home. Ryan's mother, real party in interest Marcellyn W. (mother or Ryan's mother), brought Ryan to the Romeros' home and left her there after telling Gail Romero that she did not leave her child anywhere without adult supervision, and Gail Romero replied that she and her husband would be at home gardening. Mother, however, gave permission for Ryan to walk with Joseph and other teenagers that afternoon from petitioners' home to a drug store without adult supervision. Later that afternoon, Joseph sexually assaulted Ryan after petitioners left their home for an hour to buy pizza for the teens.
Ryan and her mother (together plaintiffs) sued the Romeros for negligent supervision and intentional infliction of emotional distress. The Romeros brought a motion for summary judgment or, alternatively, for summary adjudication, arguing (among other things) that they owed no duty to Ryan or her mother. Concluding that the Romeros owed a duty of care to the plaintiffs in this matter, the court denied summary judgment, but summarily adjudicated there was no merit to the plaintiffs' claims for punitive damages and intentional infliction of emotional distress.
Contending the court erred in ruling that they owed a duty to Ryan, petitioners ask this court to issue a peremptory writ of mandate commanding the court to vacate its ruling and issue a new order granting their motion for summary judgment. We adopt and apply the duty rule announced in Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 46 Cal.Rptr.2d 73 (Chaney) (discussed, post), and hold that to the extent plaintiffs alleged the Romeros were liable for negligent supervision under a theory of nonfeasance for negligently failing to properly supervise Ryan and control the conduct of her assailant Joseph, the Romeros did not owe a duty of care to supervise Ryan or take other measures to protect her against Joseph's sexual assault because there is no evidence from which the trier of fact could find that the Romeros had prior actual knowledge that Joseph had a propensity to sexually assault female minors. Balancing the duty factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland,) we also hold that to the extent plaintiffs alleged the Romeros were liable for negligent supervision under a theory of misfeasance and principles of ordinary negligence, the Romeros again owed no duty of care to Ryan. Consequently, petitioners were entitled to summary judgment. We grant the petition.
The facts are largely undisputed. At the time of the April 1999 incident from which the instant action arose (the incident), Ryan was 13 years of age and attending middle school in the 8th grade, and Joseph was 16 and attending high school in the 11th grade. About two weeks before the incident, Ryan met Joseph at Skateworld, where she gave him her phone number. When Joseph phoned Ryan the next day, her mother asked her who had called. Ryan told her mother that she had met Joseph at Skateworld, and he was 16 years old and in the 11th grade. Joseph called Ryan every evening, and mother sometimes answered the phone. Mother approved of his calls to Ryan and later met Joseph. She thought he was a nice young man.
The Romeros first met Joseph about a year prior to the incident, after their teenage son Elijah befriended him. During that year, Joseph visited the Romeros' home once or twice per month, he spent the night there about eight times, and sometimes he went to church with the Romeros.
Prior to the incident, Joseph had a long history of school misconduct, including sexual harassment of female students, fighting, and other misbehavior that resulted in numerous detentions and suspensions. He had been arrested and charged with vandalism and violating curfew. Gail Romero was aware of Joseph's curfew violations, but there is no evidence the Romeros knew about the arrests and Joseph's misconduct in school. Prior to the incident, Ryan and her mother had never met, and did not know, the Romeros.
Sometime during the morning of April 18, 1999, the Romeros' son, Elijah, met with Joseph, who asked whether Ryan could come over to the Romeros' house. Elijah asked his mother, Gail Romero, for permission to invite Joseph and Ryan over to the house.
Later that morning, Joseph phoned Ryan and asked her whether she wanted to get together with him. While still on the phone with Joseph, Ryan asked her mother for permission, and her mother took the phone and spoke with Joseph. Mother gave her permission, and they decided Ryan and Joseph would "hang out" together at the Romeros' house, and Joseph gave her directions.
After making these arrangements with Joseph, mother and her live-in boyfriend drove Ryan to the Romeros' home and arrived at about 3:00 p.m. Upon their arrival, Gail Romero came out of the house, and she and mother introduced themselves and spoke for about 20 minutes. During this conversation, Ryan was standing next to her mother.
Mother asked Gail Romero whether Ryan could stay there and visit with Joseph and other minors present. Mother said, "I do not leave my child anywhere without adult supervision," and asked, "Are you going to be home?" Gail Romero replied, "Yes, we're just going to be in the backyard gardening." Gail Romero then asked mother whether it was okay for Ryan and the other teens to walk to the Thrifty Drug Store during her visit at the Romeros' home, and mother gave her approval.
After telling Gail Romero she would return at 5:00 p.m., mother and her boyfriend left. Ryan, Joseph and the other teens walked to the Thrifty Drug Store and returned to the Romeros' home. Gail Romero supervised the teens by checking several times to see what they were doing. Gail Romero felt she needed to care for Ryan while she was in her home, but she also felt Ryan was safe with the other teens who were there.
At about 4:30 p.m., the Romeros left to buy the teens a pizza. They were gone for about an hour.
While the Romeros were gone, Joseph sexually assaulted Ryan inside a bedroom in the Romeros' home. Joseph later entered a plea in juvenile court admitting one count of committing a lewd and lascivious act upon a child under the age of 14 years, a felony, in violation of Penal Code section 288, subdivision (a).
Ryan and her mother filed their original complaint in October 1999. In their operative third amended complaint, they alleged a total of 16 causes of action, naming Joseph, his father and mother, the Romeros, and the local public school district as defendants. Plaintiffs asserted three tort claims against the Romeros: Negligent supervision (seventh cause of action, alleged by Ryan alone), and two counts of intentional infliction of emotional distress (12th cause of action, alleged by Ryan; and 14th cause of action, alleged by Ryan's mother). Plaintiffs sought both compensatory and punitive damages.
In support of her claim for negligent supervision, Ryan alleged in paragraph 36 of her amended pleading that on the date in question, the Romeros invited her into their home, and they were "entrusted with [the] responsibility of caring for [her] physical and emotional well being." She further alleged that the Romeros "represented to plaintiffs that their home was safe and that [Ryan] would not be exposed to harm or unreasonable risks while under their supervision." Ryan also asserted that she was a minor of "tender years" and dependent on the Romeros for protection from harm and unreasonable risks.
In paragraph 37, Ryan alleged that, "[a]s a result of the special relationship created between [the Romeros] and [her], as alleged in paragraph 36, [the Romeros] owed a duty to [her] to properly supervise her and protect her from harm and unreasonable risks while she was entrusted in their care and invited into their home." (Italics added.)
In paragraph 38, Ryan asserted that the Romeros "knew or should have known" that Joseph was "engaging in abnormal sexual behavior with minors"; that Joseph was "experiencing mental problems and was not in control of his mental state or his actions"; and that "due to his abnormal behavior and mental problems," Joseph was "acting in reckless disregard for the safety of others" and was "engaging in, or wished to engage in acts of sexual misconduct with [her]." Ryan also alleged that the Romeros "negligently failed to properly supervise and protect [her] from harm and unreasonable risks by failing to prevent [Joseph] from committing acts of sexual molestation on [her] or warn plaintiffs of the same." She also asserted that the Romeros negligently failed to warn her and her mother of Joseph's "abnormal sexual behavior, mental problems and unlawful sexual contact with [her]."
In paragraph 39, Ryan alleged that the Romeros breached their duty of care to her by failing to properly supervise and protect her from harm and unreasonable risks by "failing to prevent [Joseph] from committing acts of sexual molestation on [Ryan] or warn plaintiffs of the same." She also averred that as a result of...
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