Preview
Richelle L. v. Roman Catholic Archbishop of San Francisco
(2003) 106 Cal.App.4th 25 15
Roman Catholic Bishop v. Superior Court
(1996) 42 Cal.App.4th 1556 15
Romero v. Superior Court
(2001) 89 Cal.App.4th 1068
Rowland v. Christian
(1968) 69 Cal.2d 108 6, 10
Stansfield v. Starkey
(1990) 220 Cal. App.3d 59 16
Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153 17
Statutes:
Civ. Code, § 51.9 1,17, 18
Civ. Code, § 127 16
Civ. Code, § 157 16
Civ. Code, § 711 16
Civ. Code, § 1573
Code Civ. Proc., § 434c
Code Civ. Proc., § 437c
Pen. Code, § 11166 12
Other:
5 Witkin, Cal. Proc. § 719 (5th Plead. 2008) 16
Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795 15
iv
DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I. STATEMENT OF FACTS
From a “Big Brother” program that began in New York City in 1904 to match children in need
of mentorship (“Littles”) with adult mentors (“Bigs”), the Big Brother program expanded to cities
throughout the country. A separate program for girls developed, and in 1977, Big Brothers of America
combined with Big Sisters International to become BBBSA. BBBSA is one of the oldest and largest
youth mentoring organizations in the United States.
BBBSA is a non-profit national-level organization driven by its members, which are separate
and independent local organizations (also called “local affiliates”) who agree to comply with certain
minimum BBBSA rules, develop their own affiliate-specific policies and procedures, and match
program participants with the local affiliate’s volunteers. (See Separate Statement of Undisputed
Material Facts (“SSUMF”) Nos. 1, 2, 3 and 6.) As a member-driven organization, BBBSA with the
member local affiliates developed minimum participation requirements, called the “National
Standards.” (SSUMF Nos. 2 and 3.) Local affiliates then develop their own affiliate-specific criteria
for how they would comply with the minimum participation requirements, including but not limited to
how volunteers were screened and what child abuse training would be utilized. (SSUMF Nos. 2 and
8.) For example, in the 1996 National Standards, which were in effect when the Woody’s applied to
BBBSMC, a local affiliate was required to comply with the minimum National Standards regarding
the volunteer intake process used by the local affiliate as follows:
The volunteer intake process used by the agency shall assess the volunteer’s
uitability for program service based upon written criteria for acceptance.
Required Procedures:
a) The agency shall develop criteria which specify the requirements for program
participation as a Big Brother or Big Sister.
b) A written application shall be submitted by the volunteer which provides identifying
information.
c) The agency shall obtain independent verification of assessment information from at
least three references from individuals not related to the volunteer.
d) The agency shall obtain arrest and conviction records on the volunteer from local or
state or national law enforcement authorities, where legally permissible. Where such
records are not legally accessible to the agency the volunteer shall provide an authentic
copy of his/her arrest and conviction records.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
e) The professional staff shall conduct an in-person interview with the volunteer.
f) The professional staff shall conduct an assessment ofthe volunteer's home
environment, which shall be performed either by a home visit or such other procedures
reasonably designed to satisfy this objective". [FN 1: The adoption of "such other
procedures reasonably designed to satisfy this objective" will not require invoking the
Equivalency Policy.]
g) The professional staff shall determine the need to interview significant others who
live in the volunteer's home.
h) The professional staff shall determine the need to obtain information from other
community organizations with which the volunteer is or has been involved.
(1996 National Standards, pp. 13-14; see also SSUMF No. 7.)
BBBSA did not set a local affiliate’s own policies or procedures; sit on the local affiliate’s
board; screen or train volunteers; accept program participants; match Littles with a Big Brother, Big
Sister, or a married couple (a “couples match”); or have day-to-day control or supervision over the
minor participant or the adult volunteer. (SSUMF No. 8 and 13.) Instead, it is the local agencies
formulated its own policies and procedures approved of by its own board, implemented the same, and
had direct, day-to-day control over the program participants, including its volunteers. (SSUMF Nos.
2-6)
Defendant Big Brothers Big Sisters of Monterey County (“BBBSMC” and formerly, but prior
to Plaintiff’s involvement, known as Big Brothers Big Sisters of Salinas Valley) was the local affiliate
in which Plaintiff was a participant and with which Jon David Woody with his wife Nancy (“the
Woody’s”) volunteered as a “couples match.” BBBSMC agreed to comply with the National
Standards pursuant to affiliation agreements.' (SSUMF Nos. 2 and 3.) BBBSMC dissolved in 2010.7
(See BBBSMC’s Exhibit H, Certification of Domestic Nonprofit Corporation.)
In 1997, the Woody’s applied to BBBSMC as a couple to be a volunteer unit (called a “couple
match”) and were screened (including but not limited to BBBSMC performing background checks
with fingerprints, interviews, reference checks, a home assessment interview) and accepted as
volunteers by BBBSMC. (SSUMF Nos. 7-8.) The local affiliate who is actually in the community is
1 The agreements are a 1989 Agency-in-Formation Agreement, a 1991 Provisional Membership
Affiliation Agreement (“MAA”), a 1993 modification to BBBSMC’s name (from BBBS Salinas
Valley), the 1995 full member affiliation agreement, and a 2001 updated MAA.
2 BBBSMC was also sued as a defendant in this case.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
in the best position to interview and evaluate potential mentors for inclusion in the program. Plaintiff
who was a participant with BBBSMC was matched by BBBSMC with the Woody’s in 2000 until
2002, when Plaintiff’s participation with BBBSMC ended. (SSUMF No. 9.)
There is no evidence that BBBSA and BBBSMC had any knowledge of any sexual
misconduct or propensity to commit sexual misconduct by Woody prior to learning of the sexual
abuse allegations made against him by another individual in 2008,3 at which time Woody was already
under criminal investigation for allegations of sexual abuse. In 2008, when BBBSMC was first
informed that there were allegations of sexual abuse against Woody, they relayed the information to
BBBSA, who was also then first informed of the same. The 2008 reports of sexual abuse against
Woody by another party and then by Plaintiff in 2010 were made years after Plaintiff’s involvement
with BBBSMC ended in 2002, and years after both David and Nancy Woody were officially removed
as a potential BBBSMC couples match in 2004, after two years of not being matched with a
BBBSMC participant.
BBBSA did not have any involvement with Plaintiff, Woody, or his wife while they served as
a couple volunteer with BBBSMC. Instead, it was BBBSMC as the local affiliate that was responsible
for the interactions with and oversight of the volunteers and program participants, like the Woody’s
and Plaintiff, pursuant to BBBSMC’s own policies and procedures. (SSUMF, Nos.
Til. LEGAL STANDARD
A. Motion for Summary Judgment
The purpose of summary judgment is to penetrate through the pleadings to ascertain the
presence or absence of triable issues of material fact to determine if trial is necessary to resolve the
parties’ dispute. (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1107.) A defendant moving for
3 There is no merit to Plaintiff’s initial baseless claims that Jon David Woody was previously
convicted of crimes involving sexual misconduct in Texas as it would have required this Defendant
Woody to simultaneously reside, work, and be incarcerated in multiple states and there are no other
matching identifiable facts between the two Woody’s besides the shared name. Notably, Plaintiff’s
discovery responses regarding this allegation were factually devoid and merely referenced criminal
records for the other Woody in Texas. See Plaintiff’s response to BBBSA’s Request for Production,
Set Two, No. 33
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
summary judgment bears the burden of producing evidence establishing that one or more elements of
the plaintiff’s cause of action cannot be established, or that there is a complete defense thereto. (Code
Civ. Proc., § 437c, subd. (0)(2); Garcia v. W & W Cmty. Dev., Inc. (2010) 186 Cal.App.4th 1038,
1041.) If the defendant carries the burden of production, the defendant causes a shift, and the plaintiff
is then subjected to a burden of production of the plaintiff’s own to make a prima facie showing of the
existence of a triable issue of material fact. (Code Civ. Proc., § 434c, subd. (p)(2); Aguilar v. Atl.
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) In opposing a motion for summary judgment, the
plaintiff cannot rely on the allegations of their pleadings or on mere speculation and conjecture;
instead, the plaintiff must produce admissible evidence creating a triable issue of fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509,
1524.)
“There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) When the evidence shows that
there is no triable issue of material fact and the moving party is entitled to judgment as a matter of
law, the trial court must grant summary judgment. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra,
at p. 843.) The existence or nonexistence of a duty is a question of law and, as such, it is particularly
amenable to resolution by summary judgment. (Romero v. Superior Court (2001) 89 Cal.App.4th
1068, 1078.)
Iv. ARGUMENT
A. Plaintiff’s Causes of Action for Negligence Against BBBSA Fails As A Matter of
Law Due TO (1) The Lack of Special Relationship, (2) The Rowland Limiting
Factors, And (3) Lack of Foundation
1. There is No Special Relationship between BBBSA and Plaintiff
As a matter of law, the national entity BBBSA did not owe Plaintiff a duty of care to Plaintiff
as a participant ofa local program with Defendant Big Brothers Big Sisters of Monterey County
based on the undisputed material facts in this case. “To prevail in a negligence action, a plaintiff must
show that the defendant owed a legal duty, the defendant breached that duty and the breach
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
proximately caused injury to the plaintiff. “Absent a legal duty, any injury is an injury without
actionable wrong.’” (J.L. v. Children's Inst., Inc. (2009) 177 Cal.App.4th 388, 396 [citations
omitted].) Plaintiffs alleging a defendant had a duty to protect them must establish (1) a special
relationship an exception to the general no-duty-to-protect rule applies and (2) that the Rowland
factors support the imposition of the duty.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209
(Brown), citing Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).) 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.” (/d. at 216, citing Regents of Univ. of
California v. Superior Court (2018) 4 Cal.Sth 607, 619 (Regents).)
Both requirements were addressed in the 2021 California Supreme Court case, Brown v. USA
Taekwondo, in which plaintiffs who had been minor-aged athletes, alleged they were sexually abused
by a coach, and sued the national Olympic committee, national governing body for Olympic sport of
taekwondo, and other entities for direct and vicarious liability arising from the coach’s abuse. The
California Supreme Court held that “how courts should decide whether a defendant has a legal duty to
take action to protect the plaintiff from injuries caused by a third party” required a two-step inquiry:
(1) there must exist a special relationship between the parties or some other set of circumstances
giving rise to an affirmative duty to protect; and (2), if so, the court must consult the Rowland factors
to determine whether that duty should be limited based on relevant policy considerations. (Brown,
supra, 11 Cal.Sth at p. 209, citing Rowland, supra, 69 Cal.2d 108.) In Brown, the Supreme Court
recognized that simply because a national organization has basic requirements by which it is affiliates
are obligate to comply does not impose liability on the national organization.
In Brown, plaintiffs sued USA Taekwondo (hereinafter “USTA”) and the United States
Olympic Committee (hereinafter “USOC”) for vicarious liability arising from a USAT-registered
coach’s alleged sexual abuse of plaintiffs. The defendant USOC was “a federally chartered nonprofit
corporation whose central function is to coordinate amateur sports throughout the country for athletes
hoping to one day compete in the Olympics” through which it “certifies and oversees each sport's
national governing body, the entity responsible for conducting and administering the sport in the
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
United States.” ((Brown, supra, 11 Cal.Sth at p. 210.) The defendant USAT was the national
governing body for the sport of taekwondo and athletes who wanted to compete in taekwondo at the
Olympics or in any other USAT-sponsored competition were required to join USAT and train under a
USAT-registered coach, as the Brown plaintiffs had done. (/bid.). The plaintiffs allege that the sexual
abuse of young athletes was a known problem, that there were a series of other incidents of sexual
abuse by coaches, and the plaintiffs alleges that USAT failed to properly implement the USOC’s “safe
sport program” to protect athletes from such abuse resulting in USOC placing USAT on probational
status, and that USAT failed to take sufficient steps to protect plaintiffs by permitting the perpetrator
coach to continue coaching for several months.
The Brown Defendants demurred to the Complaint and the California Supreme Court affirmed
the Court of Appeal’s findings that USAT, the organization of which the athletes were participants,
had “a special relationship with the foreseeably dangerous person that entails an ability to control that
person's conduct” and 6 ee L in the best position to protect against the risk of harm’ 39 999 and “
“meaningfully reduce the risk of the harm that actually occurred;’” whereas, USOC’s the ability to
regulate USAT's conduct was insufficient because it did not establish that USOC had the ability to
control the coach’s conduct, or USOC was in the best position to protect plaintiffs from the coach’s
sexual abuse.
Specifically, as to the USOC, the Brown Court of Appeal found:
Plaintiffs contend USOC had a special relationship with [the coach] or plaintiffs
because USOC had authority to certify or decertify national governing bodies,
including USAT; USOC mandated national governing bodies adopt a safe sport
program by 2013; and [the coach’s] sexual abuse of plaintiffs occurred at taekwondo
competitions sanctioned by USOC. These allegations show USOC had the ability to
regulate USAT's conduct, but they do not establish that USOC had the ability to control
[the coach’s] conduct, or USOC was in the best position to protect plaintiffs from [the
oach’s] sexual abuse. (Regents, supra, 4 Cal.5th at p. 621, 230 Cal.Rptr.3d 415, 413
P.3d 656; see Barenborg, supra, 33 Cal.App.Sth at p. 80, 244 Cal.Rptr.3d 680 [“Absent
an ability to monitor the day-to-day operations of local chapters, the authority to
discipline generally will not afford a national fraternity sufficient ability to prevent the
harm and thus will not place it in a unique position to protect against the risk of
harm.”]; University of Southern California v. Superior Court (2018) 30 Cal.App.Sth
429, 449, 241 Cal.Rptr.3d 616 [college did not have special relationship with students
or guests attending off-campus party at fraternity because “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”].) USOC's
indirect control over [the coach] through its regulation of USAT is too remote to create
special relationship.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
(Brown vy. USA Taekwondo (2019) 40 Cal.App.Sth 1077, 1101-1102, as modified on denial of reh'g
(Nov. 6, 2019), aff'd (2021) 11 Cal.Sth 204 [emphasis added].)
Here, BBBSA is akin to the USOC in that its indirect control over BBBSMC’s volunteer is too
remote to create a special relationship whereas BBBSMC, like USAT, was in the best position to
oversee volunteer screening and a volunteer matched with Plaintiff. BBBSMC agreed to comply with
those minimum National Standards pursuant to an Affiliation Agreement and developed their own
affiliate-specific policies and procedures, including but not limited to how volunteer applications were
processed and what child abuse training would be provided. (SSUMF Nos. 2-4, 6.) Whereas,
BBBSMC formulated its own policies and procedures and had direct, day-to-day control over the
program participants. (SSUMF No. 6.)
In contrast, and there is no evidence to support that BBBSA (and BBBSA did not) set
BBBSMC’s policies or procedures; sat on BBBSMC’s board; screened or trained BBBSMC’s
volunteers; accepted BBBSMC’s program participants; make any matches or have day-to-day control
over the minor participant or the adult volunteer of BBBSMC. BBBSA never had any involvement
with Plaintiff, Woody, or his wife while they served as a couple volunteer with BBBSMC. BBBSA’s
indirect control by its regulation of BBBSMC, specifically for BBBSA to require BBBSMC to
comply with the minimum National Standards as agreed to in the Affiliation Agreement, is too remote
to create a special relationship between BBBSA and Plaintiff, as it was insufficient to create a special
relationship between the Brown Plaintiff and USOC.
This indirect relationship between BBBSA and Plaintiff is unlike the greater control required
in other cases. For example, in Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.Sth
1118, 113 (US Youth Soccer), the Court found that the United States Youth Soccer Association (“US
Youth Soccer) “established the standards under which coaches were hired” and therefore “determined
which individuals, including [the alleged perpetrator], had custody and supervision of children
involved in its program.” In US Youth Soccer, the organization required its members to collect
criminal conviction information on staff and volunteers, but despite knowing the inefficacy of a
voluntary self-disclosure form without any background check (and with advice from its own risk
management committee that failure to conduct such checks could be considered a breach of duty from
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
which liability could arise), yet US Youth Soccer did not require criminal background checks. (/d. at
p. 1127.) The Court found that US Youth Soccer’s decision to allow the use of a voluntary self-
disclosure form for criminal histories without criminal background checks despite knowing it was
ineffective allowed those that concealed their criminal histories to have study and supervision of
children. (
Here, there was no such control or decisions by BBBSA over the volunteer intake process
such ineffective procedures that effectively enabled those who concealed their criminal histories to
become volunteers or staff with access to children; instead, BBBSA set National Standards by which
the local agencies like BBBSMC “develop[ed] criteria which specify the requirements for program
participation as a Big Brother or Big Sister” that included minimum requirements for applications,
reference checks, criminal background checks, in-person interviews, a home assessment, interview of
significant others if needed, and obtaining information from other community organizations if needed.
There is no evidence to support that BBBSA exercised any direct control like US Youth Soccer’s
decision to knowingly allow those who concealed their criminal histories to have study and
supervision of minor participants.
Similarly, in Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 405 and 408
(Juarez) (disapproved of on other grounds by Brown, supra, 11 Cal.5th 204), there was a far greater
degree of control exercised by the Boy Scouts of America who “develop[] their programs, establishes
policies and procedures, and designs leadership training for scouting professionals and volunteer
leaders” including a “Youth Protection Program” regarding sexual abuse. In contrast, BBBSA did not
set the local organization’s policies, which were instead independently determined and implemented
by each agency, including but not limited to the volunteer intake process and the selection of materials
to be used for training regarding child abuse.
While BBBSA had the ability to enforce BBBSMC’s compliance with the MAA, like the
USOC in Brown, the mere indirect control by BBBSA resulting from its ability to regulate
BBBSMC’s compliance with the minimum National Standards is insufficient to impose liability on
BBBSA for the sexual abuse of Plaintiff by the third party, Woody.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
B. The Rowland Considerations Support Limiting Imposition of Liability on BBBSA
Arguendo, even if a special relationship exists between the defendant and plaintiff, the
Rowland factors that limit the imposition of duty on the defendant must also be considered:
While the Rowland factors do overlap to some degree with the considerations that
determine the existence of a special relationship, application of one test does not
obviate the need for the other. This is because the two tests operate differently. A court
considers whether the parties have a special relationship by considering the particular
facts and circumstances of their association with one another. The Row/and factors, by
contrast, consider, “‘at a relatively broad level of factual generality,” whether policy
considerations justify limiting any resulting duty of protection.
(Brown, supra, 11 Cal.5th at p. 221 [citations omitted]; see also id. at p. 217 [Rowland was not
designed as a freestanding means of establishing duty, but instead as a means for deciding whether to
limit a duty derived from other sources].) The Rowland factors “involves the balancing of a number of
considerations,” including “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.” (Jbid., citing Rowland, supra, 69 Cal.2d at pp. 112-113.)
In Juarez, the Court found closeness between the harm in the Boy Scouts of America failing to
provide the available Spanish-language version of the Youth Protection Program, which was a sexual
abuse prevention training that Boy Scouts of America both developed and implemented in the local
Boy Scout troops, with a plaintiff
who did not read, write, or speak English and participated in a Boy
Scout troop in which Spanish was spoken 90% of the time. (Juarez, supra, 81 Cal.App.4th at 399 and
405-406.) In contrast, here, there was no BBBSA-mandated training as each agency was able to
determine which training materials would be utilized according to the National Standards and there is
no evidence that BBBSMC failed to provide Plaintiff and/or her mother training during Plaintiff’s
participation at BBBSMC ages from 2000 to 2002. It was BBBSMC and not BBBSA that was
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
responsible for developing and implementing agency-specific policies and procedures for operations,
including but not limited to volunteer screening and training about sexual abuse. (SSUMF Nos. 2, 3,
6.)
In fact, there is no specific conduct or omission by BBBSA that was “close” to Plaintiff’s
alleged sexual abuse by Woody. (SSUMF No. 12.) BBBSA had no knowledge or involvement with
Woody or Plaintiff during their participation with BBBSMC. (SSUMF Nos. 11 and 12.) As with the
USOC in Brown, the indirect control by BBBSA resulting from its ability to regulate BBBSMC’s
compliance with the minimum National Standards supports limiting the imposition of liability.
Also, in US Youth Soccer, the facts in which Court found a closeness were far greater: by
failing to require criminal background checks, the alleged perpetrator was hired because his prior
criminal conviction was not discovered: If defendants had conducted a criminal background check of
the abuser is that case, his prior conviction for domestic violence would have been discovered and it
would have been highly unlikely that he would have been hired.” (US Youth Soccer, supra, 8
Cal.App.Sth at p. 1136.) In contrast, here, there is no evidence to support that Woody had a prior
criminal history (again, there is no merit to Plaintiff’s allegations that Woody had a criminal record in
Texas as that was a different individual with the same name).
Regarding moral blame attached to the Defendant’s conduct, the Juarez Court found no moral
fault with national organizations for the alleged failure to provide “reasonable steps to ensure that
their knowledge concerning the potential for sex abuse within the scouting environment, and how to
avoid it was imparted to the scouts, adult volunteers, and parents of Troop 255.” (Juarez, supra, 81
Cal.App.4th at p. 407) “This omission, if proven, carries with it no particular moral blame.” And in
US Youth Soccer, the Court also found no moral blame:
There is nothing in the present record indicating that defendants were in any way
involved in the sexual assault of plaintiffor knew that Fabrizio would harm her. Nor
did defendants act in bad faith or with reckless indifference to the consequences of
failing to conduct criminal background checks. Defendants made an attempt to identify
potential sexual predators by requiring that an applicant disclose his or her prior
criminal convictions and authorize that the information be verified. Though this
procedure proved ineffective in the present case, it was not unreasonable to expect that
an applicant, who had a prior conviction, would abandon his or her application.
Accordingly, we do not attribute moral blame to defendants.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
(US Youth Soccer, supra, 8 Cal.App.5th at p. 1137.)
BBBSA had no knowledge of or involvement with Woody or Plaintiff during their
participation with BBBSMC. BBBSA and BBBSMC did not know of the allegations, of sexual
misconduct or any other misconduct against Woody until years after his participation in BBBSMC
ended and only upon being informed of the allegations from BBBSMC, who was itself first informed
by law enforcement as they conducted an investigation in 2010. And there is no evidence of a failure
by BBBSMC to comply with BBBSA’s National Standards as BBBSMC performed background
checks with fingerprints, interviews of the Woody’s, reference checks, and a home assessment
interview. BBBSMC oversaw the match between Plaintiff and the Woody’s without any involvement
from BBBSA. It was BBBSMC that was responsible for the interactions with and oversight of the
volunteers and program participants pursuant to the BBBSMC-specific policies and procedures. Here,
the Rowland analysis supports limiting the imposition of a duty on BBBSA for the alleged sexual
abuse of Plaintiffby a third party who was a volunteer with Defendant BBBSMC.
C. Plaintiff’s Negligence Per Se Claim Fails Because There is No Triable Issue of
Whether BBBSA Failed to Make a Mandated Report of Abuse
There is clearly no merit to this claim against BBBSA for negligence per se based on a
baseless alleged failure by BBBSA to file a mandated report against Woody, which ignores that
BBBSA was unaware of any reportable conduct involving Woody until years after his participation in
BBBSMC ended and when he was already the subject of a criminal investigation by law enforcement,
who was far more knowledgeable about any reports against Woody than BBBSA, who learned only
learned of it third-hand from BBBSMC, once they were contacted in 2010 as a part of the law
enforcement investigation.
Yet, despite the fact that BBBSA had no knowledge of or any reasonable suspicion‘ of any
report of child abuse or neglect pursuant to statute from which a duty to report would arise, Plaintiff
baselessly alleges a failure by BBBSA to make a mandated report of “continuing molestations and
4 A reasonable suspicion as defined in the mandated reporter statute in Penal Code § 11166 is
“objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a
reasonable person in a like position, drawing, when appropriate, on the person’s training and
experience, to suspect child abuse or neglect.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
assaults,” for which they had no basis as BBBSA was unaware of any issues with Woody until law
enforcement themselves informed BBBSMC of the same during a criminal investigation and then
BBBSMC informed BBBSA. (Complaint, p. 24-25, § 83, attached as Exhibit J and SSUMF Nos. 11
and 12.) Plaintiff acknowledges that Woody was already in custody for another sexual abuse
allegation when she made a report and Woody was incarcerated at the time of her report in 2009.
Given that there were no reportable events known to BBBSA (or BBBSMC) until law enforcement
was already involved, BBBSA cannot be held liable for negligence per se for failing to make a
mandated report as there was no reportable event. (SSUMF No. 12.)
D. BBBSA is Not Vicarious Liable for Negligence
The Court has also rejected imposing vicarious liability on organizations like “the Scouts and
the Church for intentional sexual molestation by one of its volunteers” based on arguments that such
volunteers “are invariably placed in authoritative positions of trust—situations that heighten the
vulnerability of the boys entrusted to their care.” (Juarez, supra, 81 Cal.App.4th at pp. 393-394
[“under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of
employment and should not be imputed to the employer.) The Court has “reject[ed] the proposition
that simply because the scoutmaster/scouting relationship provided the opportunity for [the
perpetrator volunteer’s] wrongful acts, [the perpetrator volunteer’s] intentional criminal actions
should be imputed to the Scouts and the Church. Rather, the imposition of tort liability for a third
party's sexual misconduct requires that direct negligence be established. (/d. at p. 395, citing Farmers
Ins. Grp. v. Cnty. of Santa Clara (1995) 11 Cal.4th 992; see also Brown v. USA Taekwondo, supra, 40
Cal.App.Sth at pp. 1106-1107 [allegations show USOC was able to exercise control over USAT, and
USAT in turn could exercise control over [the coach]. But the allegations do not establish how USOC
and USAT granted [the coach] “authority to act for and in the place of the principal for the purpose of
bringing him or her into legal relations with third parties” [citations omitted].) Similarly, here, Woody
was a volunteer when he engaged in the alleged sexual abuse of Plaintiff. Further, it is an undisputed
fact that Woody volunteered with Defendant BBBSMC and not Defendant BBBSA, who has no
volunteers; there was no communication between Woody and BBBSA; and BBBSA had no
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
knowledge of Woody’s involvement with BBBSMC. There is also no evidence of ratification;
critically, the first report of misconduct by Woody to BBBSA was made in 2008, when Woody no
longer participating with BBBSMC and was already under criminal investigation.
For all the foregoing reasons, as a matter of law, there can be no claim for vicarious liability
against BBBSA for Woody’s sexual abuse of Plaintiff and BBBSA is entitled to summary judgment
dismissing the negligence cause of action against BBBSA.
E. Plaintiff's Cause of Action For Intentional Infliction of Emotional Distress Fails As
A Matter of Law
Court have also rejected imposing Intentional Infliction of Emotional Distress (ITED) on
organizations based on a volunteer’s sexual abuse of a minor. A cause of action for intentional
infliction of emotional distress exists when there is cceees (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 plaintiffs’ suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant's outrageous conduct.”” ”” [Citations.]
A defendant's conduct is ‘outrageous’ when it is so cece extreme as to exceed all bounds of that usually
tolerated in a civilized community.””’ [Citation.] And the defendant's conduct must be ceces 0 intended to
inflict injury or engaged in with the realization that injury will result.’”’” (Brown v. USA Taekwondo,
supra, 40 Cal.App.Sth at p. 1109 [citations omitted.].)
In Brown, the Court of Appeal found that:
USAT's failure to adopt and implement adequate policies and procedures to prevent the
sexual abuse of taekwondo athletes, and USOC's failure to require USAT to take
prompt action to protect youth athletes, were not, as a matter of law, so ec 66e6 extreme as
to exceed all bounds of that usually tolerated in a civilized community.’””’” [Citation.]
To the extent USAT did not protect plaintiffs from [the coach] after learning in
September 2013 of Brown's sexual abuse allegations, that could potentially support a
claim against USAT for the intentional infliction of emotional distress. But plaintiffs
have not alleged facts showing [the perpetrator coach] continued to sexually abuse (or
even coach) any of the plaintiffs after [the perpetrator coach’s] sexual abuse of Brown
was disclosed to USAT in September 2013.
(Ibid. citing Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)
As set forth supra, it is an undisputed fact that no allegations were made against Woody to
BBBSA until 2010, at which time there was already a criminal investigation underway by law
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
enforcement. As it was in Brown, Plaintiff’s argument that BBBSA itself failed or failed to require
BBBSMC to take further action to protect plaintiff from sexual abuse does not constitute the requisite
extreme and outrageous conduct for an ITED cause of action. Therefore, Plaintiff cannot sustain the
claim for ITED against BBBSA based on the alleged failure of BBBSA to protect Plaintiff from sexual
abuse by Woody. Therefore, BBBSA is entitled to summary judgment dismissing the ITED cause of
action against BBBSA.
F. Plaintiff’s Cause of Action For Breach of Fiduciary Duty Fails As A Matter of Law
Plaintiff's claim for breach of fiduciary duty requires a showing that BBBSA owed and
breached a fiduciary duty to her. Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524 (“The elements
of a cause of action for breach of fiduciary duty are: 1) the existence of a fiduciary duty; 2) a breach
of fiduciary duty; and 3) resulting damage.”). A “fiduciary relationship” is a recognized legal
relationship, such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and
client. Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271, citing Frankel,
Fiduciary Law (1983) 71 Cal.L.Rev. 795 “[B]efore a person can be charged with a fiduciary
obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must
enter into a relationship which imposes that undertaking as a matter of law.” (Cleveland v. Johnson
(2012) 209 Cal.App.4th 1315, 1338.) “[E]xamples of relationships that impose a fiduciary obligation
to act on behalf
of and for the benefit of another are ‘a joint venture, a partnership, or an agency.’” (/d.
at p. 1339.) A “quasi parental relationship” does not create a fiduciary relationship any more than a
“parental relationship” creates a fiduciary duty except in the limited circumstances when a parent is
disposing of a child's property. The California Supreme Court has specifically rejected the concept of
fiduciary duty in the relationship between a child consumer and an adult provider of products or
services to children. (Comm. On Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d
197, 222; see also, Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556 and
Richelle L. v. Roman Catholic Archbishop of San Francisco (2003) 106 Cal.App.4th 25.)
Here, there is no evidence to support the existence of a fiduciary duty between plaintiff
and
BBBSA; as set forth supra, there is only a very indirect relationship between BBBSA and plaintiff
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
through BBBSA’s ability to regulate Defendant BBBSMC, of which plaintiff
was a participant.
Plaintiff alleges that BBBSA “recruited, enticed and encouraged” Plaintiff
and her family to allow
Plaintiffto be taken into the care and supervision of Woody and owed Plaintiff an “in loco parentis
duty of care” to implement safeguards when she was in Woody’s care. (Comp. § 87). Plaintiff
improperly argues that the alleged sexual abuse by Woody while Plaintiff
was a participant of
BBBSMC itself established a breach of a fiduciary duty by BBBSA and BBBSMC, which is
insufficient. BBBSA had not communication with Plaintiff
and even if BBBSA had had any
communication with Plaintiff or her family, which it did not as set supra, any communications
encouraging Plaintiffto join BBBSMC and allegedly failed to somehow prevent Woody’s alleged
sexual abuse despite the undisputed fact that BBBSA had no knowledge of any misconduct by Woody
is insufficient to establish the requisite elements: (1) a breach of a fiduciary duty BBBSA owed to
Plaintiff and (2) that any breach of a fiduciary by BBBSA caused Plaintiff’s harm from the sexual
abuse by Woody. Therefore, BBBSA is entitled to summary judgment dismissing the Breach of
Fiduciary cause of action against BBBSA.
G. Plaintiff’s Cause of Action For Constructive Fraud - Civil Code § 1573 Fails As A
Matter of Law
Plaintiff’s Constructive Fraud claim against BBBSA fails as a matter of law because there is
no fraud committed by BBBSA that resulted in Plaintiff’s harm from Woody’s sexual abuse.
Constructive fraud requires: (1) In any breach of duty which, without an actually fraudulent intent,
gains an advantage to the person in fault, or any one claiming under him, by misleading another to his
prejudice, or to the prejudice of any one claiming under him; or, (2) In any such act or omission as the
law specially declares to be fraudulent, without respect to actual fraud. (Civ. Code, § 157.) There are
two necessary components in properly pleading a fraud cause of action: “(1) the facts constituting the
fraud must be alleged; and (2) every element of the cause of action for fraud must be alleged in the
proper manner (i.e., factually and specifically.” (Civ. Code, § 711, § 127.) A plaintiff must plead facts
"which show how, when, where, to whom, and by what means the representations were tendered."
(Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Typically, a misrepresentation of fact is pled
verbatim. (5 Witkin, Cal. Proc. § 719 (Sth Plead. 2008).) And in actions against corporations, the
16
DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
plaintiff must “allege the names of the persons who made the allegedly fraudulent representations,
their authority to speak, to whom they spoke, what they said or wrote, and when it was said or
written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) An essential
element of any claim for fraud by concealment is that there be a "duty" to disclose material
information. (Mktg. West v. Sanyo Fisher (USA) (1992) 6 Cal.App.4th 603, 611-612.)
Here, Plaintiff alleges that "Defendants" (without distinction between any of the defendants),
at some unstated time, misrepresented, concealed or failed to disclose information "relating to sexual
misconduct of the Perpetrator or Defendant's other. .. agents" without specifying what BBBSA as a
corporation was allegedly communicated that was fraudulent, when it was said, to whom it was said,
or in what manner it was said. (Complaint, {| 56.) Plaintiff classifies this conduct as
“misrepresentations, suppressions and concealment of facts.” (Complaint, § 100). Yet, it is an
undisputed material fact that BBBSA did not know any allegations of misconduct involving Woody
until both BBBSMC and BBBSA were informed of the allegations by law enforcement during their
criminal investigation, so there was no breach because BBBSA could not have informed Plaintiff or
taken any action. Further, there was no advantage gained by BBBSA to Plaintiff’s prejudice. As
explained, supra, no such fiduciary or special relationship existed between Plaintiff and BBBSA,
there was no breach, and, therefore, no cause of action based on constructive fraud is viable.
Therefore, BBBSA is entitled to summary judgment dismissing the Constructive Fraud cause of
action against BBBSA.
H. _Plaintiff’s Cause of Action for Sexual Harassment - Civil Code § 51.9 Fails AS A
Matter of Law
Plaintiff’s Fifth Cause of Action for Sexual Harassment is brought under Civil Code § 51.9
and fails for lack of a qualifying relationship. To prevail on this cause of action, a plaintiff must prove
that there existed between the plaintiff and defendant “a business, service, or professional
relationship” that is: “a. Physician, psychotherapist, or dentist; b. Attorney, holder of a master's degree
in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial
planner loan officer, collection service, building contractor, or escrow loan officer; c. executor,
trustee, or administrator; d. landlord or property manager; e. teacher; or f. A relationship that is
17
DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
substantially similar to any of the above” and that the defendant “made sexual advances, solicitations,
sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or
physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and
pervasive or severe. (§ 51.9, subd. (a)(2).)
However, Plaintiff has not alleged that she and BBBSA had any of these types of relationships
that are sufficient to invoke the statute. As set forth supra, there was a very indirect relationship
between BBBSA and Plaintiff, in that BBBSA was a national organization who merely had the power
to enforce the independent local affiliate’s, here BBBSMC’s, compliance with the National Standards
and that Plaintiff was a participant of BBBSMC’s program. Therefore, there is no requisite
relationship to sustain a cause of action for sexual harassment against BBBSA based on Plaintiff’s
alleged sexual abuse by the third-party Woody. Further, BBBSA cannot be held vicarious liability for
Woody’s sexual abuse of Plaintiff for the reasons set forth supra. Therefore, BBBSA is entitled to
summary judgment dismissing the Sexual Harassment cause of action against BBBSA.
Vv. CONCLUSION
Plaintiff’s claim in this case fairly rests with her abuser, Jon David Woody. To the extent, she
believes the entity which placed her with Woody bears a portion ofthe responsibility, that claim is one
to be made and proven against BBBSMC. However, the fact that BBBSMC is no longer in existence
or otherwise financially viable, does not create a case against BBBSA.
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DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
For the foregoing reasons, BBBSA cannot be held liable to Plaintiff for the alleged sexual
abuse by Woody and, therefore, respectfully requests that this Court enter judgment in BBBSA’s favor
and dismiss all claims asserted in the Complaint, or in the alternative, grant summary adjudication.
BLEDSOE, DIESTEL, TREPPA & CRANE
LLP
Respectfully submitted,
Dated: October 6, 2023 By /s/ Alison Crane
Alison M. Crane
Attorneys for Defendant BIG BROTHERS
BIG SISTERS OF AMERICA
Preview
Richelle L. v. Roman Catholic Archbishop of San Francisco (2003) 106 Cal.App.4th 25 15 Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556 15 Romero v. Superior Court (2001) 89 Cal.App.4th 1068 Rowland v. Christian (1968) 69 Cal.2d 108 6, 10 Stansfield v. Starkey (1990) 220 Cal. App.3d 59 16 Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153 17 Statutes: Civ. Code, § 51.9 1,17, 18 Civ. Code, § 127 16 Civ. Code, § 157 16 Civ. Code, § 711 16 Civ. Code, § 1573 Code Civ. Proc., § 434c Code Civ. Proc., § 437c Pen. Code, § 11166 12 Other: 5 Witkin, Cal. Proc. § 719 (5th Plead. 2008) 16 Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795 15 iv DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF FACTS From a “Big Brother” program that began in New York City in 1904 to match children in need of mentorship (“Littles”) with adult mentors (“Bigs”), the Big Brother program expanded to cities throughout the country. A separate program for girls developed, and in 1977, Big Brothers of America combined with Big Sisters International to become BBBSA. BBBSA is one of the oldest and largest youth mentoring organizations in the United States. BBBSA is a non-profit national-level organization driven by its members, which are separate and independent local organizations (also called “local affiliates”) who agree to comply with certain minimum BBBSA rules, develop their own affiliate-specific policies and procedures, and match program participants with the local affiliate’s volunteers. (See Separate Statement of Undisputed Material Facts (“SSUMF”) Nos. 1, 2, 3 and 6.) As a member-driven organization, BBBSA with the member local affiliates developed minimum participation requirements, called the “National Standards.” (SSUMF Nos. 2 and 3.) Local affiliates then develop their own affiliate-specific criteria for how they would comply with the minimum participation requirements, including but not limited to how volunteers were screened and what child abuse training would be utilized. (SSUMF Nos. 2 and 8.) For example, in the 1996 National Standards, which were in effect when the Woody’s applied to BBBSMC, a local affiliate was required to comply with the minimum National Standards regarding the volunteer intake process used by the local affiliate as follows: The volunteer intake process used by the agency shall assess the volunteer’s uitability for program service based upon written criteria for acceptance. Required Procedures: a) The agency shall develop criteria which specify the requirements for program participation as a Big Brother or Big Sister. b) A written application shall be submitted by the volunteer which provides identifying information. c) The agency shall obtain independent verification of assessment information from at least three references from individuals not related to the volunteer. d) The agency shall obtain arrest and conviction records on the volunteer from local or state or national law enforcement authorities, where legally permissible. Where such records are not legally accessible to the agency the volunteer shall provide an authentic copy of his/her arrest and conviction records. 2 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT e) The professional staff shall conduct an in-person interview with the volunteer. f) The professional staff shall conduct an assessment ofthe volunteer's home environment, which shall be performed either by a home visit or such other procedures reasonably designed to satisfy this objective". [FN 1: The adoption of "such other procedures reasonably designed to satisfy this objective" will not require invoking the Equivalency Policy.] g) The professional staff shall determine the need to interview significant others who live in the volunteer's home. h) The professional staff shall determine the need to obtain information from other community organizations with which the volunteer is or has been involved. (1996 National Standards, pp. 13-14; see also SSUMF No. 7.) BBBSA did not set a local affiliate’s own policies or procedures; sit on the local affiliate’s board; screen or train volunteers; accept program participants; match Littles with a Big Brother, Big Sister, or a married couple (a “couples match”); or have day-to-day control or supervision over the minor participant or the adult volunteer. (SSUMF No. 8 and 13.) Instead, it is the local agencies formulated its own policies and procedures approved of by its own board, implemented the same, and had direct, day-to-day control over the program participants, including its volunteers. (SSUMF Nos. 2-6) Defendant Big Brothers Big Sisters of Monterey County (“BBBSMC” and formerly, but prior to Plaintiff’s involvement, known as Big Brothers Big Sisters of Salinas Valley) was the local affiliate in which Plaintiff was a participant and with which Jon David Woody with his wife Nancy (“the Woody’s”) volunteered as a “couples match.” BBBSMC agreed to comply with the National Standards pursuant to affiliation agreements.' (SSUMF Nos. 2 and 3.) BBBSMC dissolved in 2010.7 (See BBBSMC’s Exhibit H, Certification of Domestic Nonprofit Corporation.) In 1997, the Woody’s applied to BBBSMC as a couple to be a volunteer unit (called a “couple match”) and were screened (including but not limited to BBBSMC performing background checks with fingerprints, interviews, reference checks, a home assessment interview) and accepted as volunteers by BBBSMC. (SSUMF Nos. 7-8.) The local affiliate who is actually in the community is 1 The agreements are a 1989 Agency-in-Formation Agreement, a 1991 Provisional Membership Affiliation Agreement (“MAA”), a 1993 modification to BBBSMC’s name (from BBBS Salinas Valley), the 1995 full member affiliation agreement, and a 2001 updated MAA. 2 BBBSMC was also sued as a defendant in this case. 3 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT in the best position to interview and evaluate potential mentors for inclusion in the program. Plaintiff who was a participant with BBBSMC was matched by BBBSMC with the Woody’s in 2000 until 2002, when Plaintiff’s participation with BBBSMC ended. (SSUMF No. 9.) There is no evidence that BBBSA and BBBSMC had any knowledge of any sexual misconduct or propensity to commit sexual misconduct by Woody prior to learning of the sexual abuse allegations made against him by another individual in 2008,3 at which time Woody was already under criminal investigation for allegations of sexual abuse. In 2008, when BBBSMC was first informed that there were allegations of sexual abuse against Woody, they relayed the information to BBBSA, who was also then first informed of the same. The 2008 reports of sexual abuse against Woody by another party and then by Plaintiff in 2010 were made years after Plaintiff’s involvement with BBBSMC ended in 2002, and years after both David and Nancy Woody were officially removed as a potential BBBSMC couples match in 2004, after two years of not being matched with a BBBSMC participant. BBBSA did not have any involvement with Plaintiff, Woody, or his wife while they served as a couple volunteer with BBBSMC. Instead, it was BBBSMC as the local affiliate that was responsible for the interactions with and oversight of the volunteers and program participants, like the Woody’s and Plaintiff, pursuant to BBBSMC’s own policies and procedures. (SSUMF, Nos. Til. LEGAL STANDARD A. Motion for Summary Judgment The purpose of summary judgment is to penetrate through the pleadings to ascertain the presence or absence of triable issues of material fact to determine if trial is necessary to resolve the parties’ dispute. (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1107.) A defendant moving for 3 There is no merit to Plaintiff’s initial baseless claims that Jon David Woody was previously convicted of crimes involving sexual misconduct in Texas as it would have required this Defendant Woody to simultaneously reside, work, and be incarcerated in multiple states and there are no other matching identifiable facts between the two Woody’s besides the shared name. Notably, Plaintiff’s discovery responses regarding this allegation were factually devoid and merely referenced criminal records for the other Woody in Texas. See Plaintiff’s response to BBBSA’s Request for Production, Set Two, No. 33 4 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT summary judgment bears the burden of producing evidence establishing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (0)(2); Garcia v. W & W Cmty. Dev., Inc. (2010) 186 Cal.App.4th 1038, 1041.) If the defendant carries the burden of production, the defendant causes a shift, and the plaintiff is then subjected to a burden of production of the plaintiff’s own to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 434c, subd. (p)(2); Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) In opposing a motion for summary judgment, the plaintiff cannot rely on the allegations of their pleadings or on mere speculation and conjecture; instead, the plaintiff must produce admissible evidence creating a triable issue of fact. (Code Civ. Proc., § 437c, subd. (p)(2); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.) “There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) When the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law, the trial court must grant summary judgment. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, at p. 843.) The existence or nonexistence of a duty is a question of law and, as such, it is particularly amenable to resolution by summary judgment. (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078.) Iv. ARGUMENT A. Plaintiff’s Causes of Action for Negligence Against BBBSA Fails As A Matter of Law Due TO (1) The Lack of Special Relationship, (2) The Rowland Limiting Factors, And (3) Lack of Foundation 1. There is No Special Relationship between BBBSA and Plaintiff As a matter of law, the national entity BBBSA did not owe Plaintiff a duty of care to Plaintiff as a participant ofa local program with Defendant Big Brothers Big Sisters of Monterey County based on the undisputed material facts in this case. “To prevail in a negligence action, a plaintiff must show that the defendant owed a legal duty, the defendant breached that duty and the breach 5 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT proximately caused injury to the plaintiff. “Absent a legal duty, any injury is an injury without actionable wrong.’” (J.L. v. Children's Inst., Inc. (2009) 177 Cal.App.4th 388, 396 [citations omitted].) Plaintiffs alleging a defendant had a duty to protect them must establish (1) a special relationship an exception to the general no-duty-to-protect rule applies and (2) that the Rowland factors support the imposition of the duty.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (Brown), citing Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).) 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.” (/d. at 216, citing Regents of Univ. of California v. Superior Court (2018) 4 Cal.Sth 607, 619 (Regents).) Both requirements were addressed in the 2021 California Supreme Court case, Brown v. USA Taekwondo, in which plaintiffs who had been minor-aged athletes, alleged they were sexually abused by a coach, and sued the national Olympic committee, national governing body for Olympic sport of taekwondo, and other entities for direct and vicarious liability arising from the coach’s abuse. The California Supreme Court held that “how courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party” required a two-step inquiry: (1) there must exist a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect; and (2), if so, the court must consult the Rowland factors to determine whether that duty should be limited based on relevant policy considerations. (Brown, supra, 11 Cal.Sth at p. 209, citing Rowland, supra, 69 Cal.2d 108.) In Brown, the Supreme Court recognized that simply because a national organization has basic requirements by which it is affiliates are obligate to comply does not impose liability on the national organization. In Brown, plaintiffs sued USA Taekwondo (hereinafter “USTA”) and the United States Olympic Committee (hereinafter “USOC”) for vicarious liability arising from a USAT-registered coach’s alleged sexual abuse of plaintiffs. The defendant USOC was “a federally chartered nonprofit corporation whose central function is to coordinate amateur sports throughout the country for athletes hoping to one day compete in the Olympics” through which it “certifies and oversees each sport's national governing body, the entity responsible for conducting and administering the sport in the 6 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT United States.” ((Brown, supra, 11 Cal.Sth at p. 210.) The defendant USAT was the national governing body for the sport of taekwondo and athletes who wanted to compete in taekwondo at the Olympics or in any other USAT-sponsored competition were required to join USAT and train under a USAT-registered coach, as the Brown plaintiffs had done. (/bid.). The plaintiffs allege that the sexual abuse of young athletes was a known problem, that there were a series of other incidents of sexual abuse by coaches, and the plaintiffs alleges that USAT failed to properly implement the USOC’s “safe sport program” to protect athletes from such abuse resulting in USOC placing USAT on probational status, and that USAT failed to take sufficient steps to protect plaintiffs by permitting the perpetrator coach to continue coaching for several months. The Brown Defendants demurred to the Complaint and the California Supreme Court affirmed the Court of Appeal’s findings that USAT, the organization of which the athletes were participants, had “a special relationship with the foreseeably dangerous person that entails an ability to control that person's conduct” and 6 ee L in the best position to protect against the risk of harm’ 39 999 and “ “meaningfully reduce the risk of the harm that actually occurred;’” whereas, USOC’s the ability to regulate USAT's conduct was insufficient because it did not establish that USOC had the ability to control the coach’s conduct, or USOC was in the best position to protect plaintiffs from the coach’s sexual abuse. Specifically, as to the USOC, the Brown Court of Appeal found: Plaintiffs contend USOC had a special relationship with [the coach] or plaintiffs because USOC had authority to certify or decertify national governing bodies, including USAT; USOC mandated national governing bodies adopt a safe sport program by 2013; and [the coach’s] sexual abuse of plaintiffs occurred at taekwondo competitions sanctioned by USOC. These allegations show USOC had the ability to regulate USAT's conduct, but they do not establish that USOC had the ability to control [the coach’s] conduct, or USOC was in the best position to protect plaintiffs from [the oach’s] sexual abuse. (Regents, supra, 4 Cal.5th at p. 621, 230 Cal.Rptr.3d 415, 413 P.3d 656; see Barenborg, supra, 33 Cal.App.Sth at p. 80, 244 Cal.Rptr.3d 680 [“Absent an ability to monitor the day-to-day operations of local chapters, the authority to discipline generally will not afford a national fraternity sufficient ability to prevent the harm and thus will not place it in a unique position to protect against the risk of harm.”]; University of Southern California v. Superior Court (2018) 30 Cal.App.Sth 429, 449, 241 Cal.Rptr.3d 616 [college did not have special relationship with students or guests attending off-campus party at fraternity because “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”].) USOC's indirect control over [the coach] through its regulation of USAT is too remote to create special relationship. 7 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Brown vy. USA Taekwondo (2019) 40 Cal.App.Sth 1077, 1101-1102, as modified on denial of reh'g (Nov. 6, 2019), aff'd (2021) 11 Cal.Sth 204 [emphasis added].) Here, BBBSA is akin to the USOC in that its indirect control over BBBSMC’s volunteer is too remote to create a special relationship whereas BBBSMC, like USAT, was in the best position to oversee volunteer screening and a volunteer matched with Plaintiff. BBBSMC agreed to comply with those minimum National Standards pursuant to an Affiliation Agreement and developed their own affiliate-specific policies and procedures, including but not limited to how volunteer applications were processed and what child abuse training would be provided. (SSUMF Nos. 2-4, 6.) Whereas, BBBSMC formulated its own policies and procedures and had direct, day-to-day control over the program participants. (SSUMF No. 6.) In contrast, and there is no evidence to support that BBBSA (and BBBSA did not) set BBBSMC’s policies or procedures; sat on BBBSMC’s board; screened or trained BBBSMC’s volunteers; accepted BBBSMC’s program participants; make any matches or have day-to-day control over the minor participant or the adult volunteer of BBBSMC. BBBSA never had any involvement with Plaintiff, Woody, or his wife while they served as a couple volunteer with BBBSMC. BBBSA’s indirect control by its regulation of BBBSMC, specifically for BBBSA to require BBBSMC to comply with the minimum National Standards as agreed to in the Affiliation Agreement, is too remote to create a special relationship between BBBSA and Plaintiff, as it was insufficient to create a special relationship between the Brown Plaintiff and USOC. This indirect relationship between BBBSA and Plaintiff is unlike the greater control required in other cases. For example, in Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.Sth 1118, 113 (US Youth Soccer), the Court found that the United States Youth Soccer Association (“US Youth Soccer) “established the standards under which coaches were hired” and therefore “determined which individuals, including [the alleged perpetrator], had custody and supervision of children involved in its program.” In US Youth Soccer, the organization required its members to collect criminal conviction information on staff and volunteers, but despite knowing the inefficacy of a voluntary self-disclosure form without any background check (and with advice from its own risk management committee that failure to conduct such checks could be considered a breach of duty from 8 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT which liability could arise), yet US Youth Soccer did not require criminal background checks. (/d. at p. 1127.) The Court found that US Youth Soccer’s decision to allow the use of a voluntary self- disclosure form for criminal histories without criminal background checks despite knowing it was ineffective allowed those that concealed their criminal histories to have study and supervision of children. ( Here, there was no such control or decisions by BBBSA over the volunteer intake process such ineffective procedures that effectively enabled those who concealed their criminal histories to become volunteers or staff with access to children; instead, BBBSA set National Standards by which the local agencies like BBBSMC “develop[ed] criteria which specify the requirements for program participation as a Big Brother or Big Sister” that included minimum requirements for applications, reference checks, criminal background checks, in-person interviews, a home assessment, interview of significant others if needed, and obtaining information from other community organizations if needed. There is no evidence to support that BBBSA exercised any direct control like US Youth Soccer’s decision to knowingly allow those who concealed their criminal histories to have study and supervision of minor participants. Similarly, in Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 405 and 408 (Juarez) (disapproved of on other grounds by Brown, supra, 11 Cal.5th 204), there was a far greater degree of control exercised by the Boy Scouts of America who “develop[] their programs, establishes policies and procedures, and designs leadership training for scouting professionals and volunteer leaders” including a “Youth Protection Program” regarding sexual abuse. In contrast, BBBSA did not set the local organization’s policies, which were instead independently determined and implemented by each agency, including but not limited to the volunteer intake process and the selection of materials to be used for training regarding child abuse. While BBBSA had the ability to enforce BBBSMC’s compliance with the MAA, like the USOC in Brown, the mere indirect control by BBBSA resulting from its ability to regulate BBBSMC’s compliance with the minimum National Standards is insufficient to impose liability on BBBSA for the sexual abuse of Plaintiff by the third party, Woody. 9 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT B. The Rowland Considerations Support Limiting Imposition of Liability on BBBSA Arguendo, even if a special relationship exists between the defendant and plaintiff, the Rowland factors that limit the imposition of duty on the defendant must also be considered: While the Rowland factors do overlap to some degree with the considerations that determine the existence of a special relationship, application of one test does not obviate the need for the other. This is because the two tests operate differently. A court considers whether the parties have a special relationship by considering the particular facts and circumstances of their association with one another. The Row/and factors, by contrast, consider, “‘at a relatively broad level of factual generality,” whether policy considerations justify limiting any resulting duty of protection. (Brown, supra, 11 Cal.5th at p. 221 [citations omitted]; see also id. at p. 217 [Rowland was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources].) The Rowland factors “involves the balancing of a number of considerations,” including “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.” (Jbid., citing Rowland, supra, 69 Cal.2d at pp. 112-113.) In Juarez, the Court found closeness between the harm in the Boy Scouts of America failing to provide the available Spanish-language version of the Youth Protection Program, which was a sexual abuse prevention training that Boy Scouts of America both developed and implemented in the local Boy Scout troops, with a plaintiff who did not read, write, or speak English and participated in a Boy Scout troop in which Spanish was spoken 90% of the time. (Juarez, supra, 81 Cal.App.4th at 399 and 405-406.) In contrast, here, there was no BBBSA-mandated training as each agency was able to determine which training materials would be utilized according to the National Standards and there is no evidence that BBBSMC failed to provide Plaintiff and/or her mother training during Plaintiff’s participation at BBBSMC ages from 2000 to 2002. It was BBBSMC and not BBBSA that was 10 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT responsible for developing and implementing agency-specific policies and procedures for operations, including but not limited to volunteer screening and training about sexual abuse. (SSUMF Nos. 2, 3, 6.) In fact, there is no specific conduct or omission by BBBSA that was “close” to Plaintiff’s alleged sexual abuse by Woody. (SSUMF No. 12.) BBBSA had no knowledge or involvement with Woody or Plaintiff during their participation with BBBSMC. (SSUMF Nos. 11 and 12.) As with the USOC in Brown, the indirect control by BBBSA resulting from its ability to regulate BBBSMC’s compliance with the minimum National Standards supports limiting the imposition of liability. Also, in US Youth Soccer, the facts in which Court found a closeness were far greater: by failing to require criminal background checks, the alleged perpetrator was hired because his prior criminal conviction was not discovered: If defendants had conducted a criminal background check of the abuser is that case, his prior conviction for domestic violence would have been discovered and it would have been highly unlikely that he would have been hired.” (US Youth Soccer, supra, 8 Cal.App.Sth at p. 1136.) In contrast, here, there is no evidence to support that Woody had a prior criminal history (again, there is no merit to Plaintiff’s allegations that Woody had a criminal record in Texas as that was a different individual with the same name). Regarding moral blame attached to the Defendant’s conduct, the Juarez Court found no moral fault with national organizations for the alleged failure to provide “reasonable steps to ensure that their knowledge concerning the potential for sex abuse within the scouting environment, and how to avoid it was imparted to the scouts, adult volunteers, and parents of Troop 255.” (Juarez, supra, 81 Cal.App.4th at p. 407) “This omission, if proven, carries with it no particular moral blame.” And in US Youth Soccer, the Court also found no moral blame: There is nothing in the present record indicating that defendants were in any way involved in the sexual assault of plaintiffor knew that Fabrizio would harm her. Nor did defendants act in bad faith or with reckless indifference to the consequences of failing to conduct criminal background checks. Defendants made an attempt to identify potential sexual predators by requiring that an applicant disclose his or her prior criminal convictions and authorize that the information be verified. Though this procedure proved ineffective in the present case, it was not unreasonable to expect that an applicant, who had a prior conviction, would abandon his or her application. Accordingly, we do not attribute moral blame to defendants. ll DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (US Youth Soccer, supra, 8 Cal.App.5th at p. 1137.) BBBSA had no knowledge of or involvement with Woody or Plaintiff during their participation with BBBSMC. BBBSA and BBBSMC did not know of the allegations, of sexual misconduct or any other misconduct against Woody until years after his participation in BBBSMC ended and only upon being informed of the allegations from BBBSMC, who was itself first informed by law enforcement as they conducted an investigation in 2010. And there is no evidence of a failure by BBBSMC to comply with BBBSA’s National Standards as BBBSMC performed background checks with fingerprints, interviews of the Woody’s, reference checks, and a home assessment interview. BBBSMC oversaw the match between Plaintiff and the Woody’s without any involvement from BBBSA. It was BBBSMC that was responsible for the interactions with and oversight of the volunteers and program participants pursuant to the BBBSMC-specific policies and procedures. Here, the Rowland analysis supports limiting the imposition of a duty on BBBSA for the alleged sexual abuse of Plaintiffby a third party who was a volunteer with Defendant BBBSMC. C. Plaintiff’s Negligence Per Se Claim Fails Because There is No Triable Issue of Whether BBBSA Failed to Make a Mandated Report of Abuse There is clearly no merit to this claim against BBBSA for negligence per se based on a baseless alleged failure by BBBSA to file a mandated report against Woody, which ignores that BBBSA was unaware of any reportable conduct involving Woody until years after his participation in BBBSMC ended and when he was already the subject of a criminal investigation by law enforcement, who was far more knowledgeable about any reports against Woody than BBBSA, who learned only learned of it third-hand from BBBSMC, once they were contacted in 2010 as a part of the law enforcement investigation. Yet, despite the fact that BBBSA had no knowledge of or any reasonable suspicion‘ of any report of child abuse or neglect pursuant to statute from which a duty to report would arise, Plaintiff baselessly alleges a failure by BBBSA to make a mandated report of “continuing molestations and 4 A reasonable suspicion as defined in the mandated reporter statute in Penal Code § 11166 is “objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person’s training and experience, to suspect child abuse or neglect. 12 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT assaults,” for which they had no basis as BBBSA was unaware of any issues with Woody until law enforcement themselves informed BBBSMC of the same during a criminal investigation and then BBBSMC informed BBBSA. (Complaint, p. 24-25, § 83, attached as Exhibit J and SSUMF Nos. 11 and 12.) Plaintiff acknowledges that Woody was already in custody for another sexual abuse allegation when she made a report and Woody was incarcerated at the time of her report in 2009. Given that there were no reportable events known to BBBSA (or BBBSMC) until law enforcement was already involved, BBBSA cannot be held liable for negligence per se for failing to make a mandated report as there was no reportable event. (SSUMF No. 12.) D. BBBSA is Not Vicarious Liable for Negligence The Court has also rejected imposing vicarious liability on organizations like “the Scouts and the Church for intentional sexual molestation by one of its volunteers” based on arguments that such volunteers “are invariably placed in authoritative positions of trust—situations that heighten the vulnerability of the boys entrusted to their care.” (Juarez, supra, 81 Cal.App.4th at pp. 393-394 [“under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer.) The Court has “reject[ed] the proposition that simply because the scoutmaster/scouting relationship provided the opportunity for [the perpetrator volunteer’s] wrongful acts, [the perpetrator volunteer’s] intentional criminal actions should be imputed to the Scouts and the Church. Rather, the imposition of tort liability for a third party's sexual misconduct requires that direct negligence be established. (/d. at p. 395, citing Farmers Ins. Grp. v. Cnty. of Santa Clara (1995) 11 Cal.4th 992; see also Brown v. USA Taekwondo, supra, 40 Cal.App.Sth at pp. 1106-1107 [allegations show USOC was able to exercise control over USAT, and USAT in turn could exercise control over [the coach]. But the allegations do not establish how USOC and USAT granted [the coach] “authority to act for and in the place of the principal for the purpose of bringing him or her into legal relations with third parties” [citations omitted].) Similarly, here, Woody was a volunteer when he engaged in the alleged sexual abuse of Plaintiff. Further, it is an undisputed fact that Woody volunteered with Defendant BBBSMC and not Defendant BBBSA, who has no volunteers; there was no communication between Woody and BBBSA; and BBBSA had no 13 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT knowledge of Woody’s involvement with BBBSMC. There is also no evidence of ratification; critically, the first report of misconduct by Woody to BBBSA was made in 2008, when Woody no longer participating with BBBSMC and was already under criminal investigation. For all the foregoing reasons, as a matter of law, there can be no claim for vicarious liability against BBBSA for Woody’s sexual abuse of Plaintiff and BBBSA is entitled to summary judgment dismissing the negligence cause of action against BBBSA. E. Plaintiff's Cause of Action For Intentional Infliction of Emotional Distress Fails As A Matter of Law Court have also rejected imposing Intentional Infliction of Emotional Distress (ITED) on organizations based on a volunteer’s sexual abuse of a minor. A cause of action for intentional infliction of emotional distress exists when there is cceees (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 plaintiffs’ suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”” ”” [Citations.] A defendant's conduct is ‘outrageous’ when it is so cece extreme as to exceed all bounds of that usually tolerated in a civilized community.””’ [Citation.] And the defendant's conduct must be ceces 0 intended to inflict injury or engaged in with the realization that injury will result.’”’” (Brown v. USA Taekwondo, supra, 40 Cal.App.Sth at p. 1109 [citations omitted.].) In Brown, the Court of Appeal found that: USAT's failure to adopt and implement adequate policies and procedures to prevent the sexual abuse of taekwondo athletes, and USOC's failure to require USAT to take prompt action to protect youth athletes, were not, as a matter of law, so ec 66e6 extreme as to exceed all bounds of that usually tolerated in a civilized community.’””’” [Citation.] To the extent USAT did not protect plaintiffs from [the coach] after learning in September 2013 of Brown's sexual abuse allegations, that could potentially support a claim against USAT for the intentional infliction of emotional distress. But plaintiffs have not alleged facts showing [the perpetrator coach] continued to sexually abuse (or even coach) any of the plaintiffs after [the perpetrator coach’s] sexual abuse of Brown was disclosed to USAT in September 2013. (Ibid. citing Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) As set forth supra, it is an undisputed fact that no allegations were made against Woody to BBBSA until 2010, at which time there was already a criminal investigation underway by law 14 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT enforcement. As it was in Brown, Plaintiff’s argument that BBBSA itself failed or failed to require BBBSMC to take further action to protect plaintiff from sexual abuse does not constitute the requisite extreme and outrageous conduct for an ITED cause of action. Therefore, Plaintiff cannot sustain the claim for ITED against BBBSA based on the alleged failure of BBBSA to protect Plaintiff from sexual abuse by Woody. Therefore, BBBSA is entitled to summary judgment dismissing the ITED cause of action against BBBSA. F. Plaintiff’s Cause of Action For Breach of Fiduciary Duty Fails As A Matter of Law Plaintiff's claim for breach of fiduciary duty requires a showing that BBBSA owed and breached a fiduciary duty to her. Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524 (“The elements of a cause of action for breach of fiduciary duty are: 1) the existence of a fiduciary duty; 2) a breach of fiduciary duty; and 3) resulting damage.”). A “fiduciary relationship” is a recognized legal relationship, such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client. Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271, citing Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795 “[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1338.) “[E]xamples of relationships that impose a fiduciary obligation to act on behalf of and for the benefit of another are ‘a joint venture, a partnership, or an agency.’” (/d. at p. 1339.) A “quasi parental relationship” does not create a fiduciary relationship any more than a “parental relationship” creates a fiduciary duty except in the limited circumstances when a parent is disposing of a child's property. The California Supreme Court has specifically rejected the concept of fiduciary duty in the relationship between a child consumer and an adult provider of products or services to children. (Comm. On Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 222; see also, Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556 and Richelle L. v. Roman Catholic Archbishop of San Francisco (2003) 106 Cal.App.4th 25.) Here, there is no evidence to support the existence of a fiduciary duty between plaintiff and BBBSA; as set forth supra, there is only a very indirect relationship between BBBSA and plaintiff 15 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT through BBBSA’s ability to regulate Defendant BBBSMC, of which plaintiff was a participant. Plaintiff alleges that BBBSA “recruited, enticed and encouraged” Plaintiff and her family to allow Plaintiffto be taken into the care and supervision of Woody and owed Plaintiff an “in loco parentis duty of care” to implement safeguards when she was in Woody’s care. (Comp. § 87). Plaintiff improperly argues that the alleged sexual abuse by Woody while Plaintiff was a participant of BBBSMC itself established a breach of a fiduciary duty by BBBSA and BBBSMC, which is insufficient. BBBSA had not communication with Plaintiff and even if BBBSA had had any communication with Plaintiff or her family, which it did not as set supra, any communications encouraging Plaintiffto join BBBSMC and allegedly failed to somehow prevent Woody’s alleged sexual abuse despite the undisputed fact that BBBSA had no knowledge of any misconduct by Woody is insufficient to establish the requisite elements: (1) a breach of a fiduciary duty BBBSA owed to Plaintiff and (2) that any breach of a fiduciary by BBBSA caused Plaintiff’s harm from the sexual abuse by Woody. Therefore, BBBSA is entitled to summary judgment dismissing the Breach of Fiduciary cause of action against BBBSA. G. Plaintiff’s Cause of Action For Constructive Fraud - Civil Code § 1573 Fails As A Matter of Law Plaintiff’s Constructive Fraud claim against BBBSA fails as a matter of law because there is no fraud committed by BBBSA that resulted in Plaintiff’s harm from Woody’s sexual abuse. Constructive fraud requires: (1) In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, (2) In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. (Civ. Code, § 157.) There are two necessary components in properly pleading a fraud cause of action: “(1) the facts constituting the fraud must be alleged; and (2) every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically.” (Civ. Code, § 711, § 127.) A plaintiff must plead facts "which show how, when, where, to whom, and by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Typically, a misrepresentation of fact is pled verbatim. (5 Witkin, Cal. Proc. § 719 (Sth Plead. 2008).) And in actions against corporations, the 16 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) An essential element of any claim for fraud by concealment is that there be a "duty" to disclose material information. (Mktg. West v. Sanyo Fisher (USA) (1992) 6 Cal.App.4th 603, 611-612.) Here, Plaintiff alleges that "Defendants" (without distinction between any of the defendants), at some unstated time, misrepresented, concealed or failed to disclose information "relating to sexual misconduct of the Perpetrator or Defendant's other. .. agents" without specifying what BBBSA as a corporation was allegedly communicated that was fraudulent, when it was said, to whom it was said, or in what manner it was said. (Complaint, {| 56.) Plaintiff classifies this conduct as “misrepresentations, suppressions and concealment of facts.” (Complaint, § 100). Yet, it is an undisputed material fact that BBBSA did not know any allegations of misconduct involving Woody until both BBBSMC and BBBSA were informed of the allegations by law enforcement during their criminal investigation, so there was no breach because BBBSA could not have informed Plaintiff or taken any action. Further, there was no advantage gained by BBBSA to Plaintiff’s prejudice. As explained, supra, no such fiduciary or special relationship existed between Plaintiff and BBBSA, there was no breach, and, therefore, no cause of action based on constructive fraud is viable. Therefore, BBBSA is entitled to summary judgment dismissing the Constructive Fraud cause of action against BBBSA. H. _Plaintiff’s Cause of Action for Sexual Harassment - Civil Code § 51.9 Fails AS A Matter of Law Plaintiff’s Fifth Cause of Action for Sexual Harassment is brought under Civil Code § 51.9 and fails for lack of a qualifying relationship. To prevail on this cause of action, a plaintiff must prove that there existed between the plaintiff and defendant “a business, service, or professional relationship” that is: “a. Physician, psychotherapist, or dentist; b. Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer; c. executor, trustee, or administrator; d. landlord or property manager; e. teacher; or f. A relationship that is 17 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT substantially similar to any of the above” and that the defendant “made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. (§ 51.9, subd. (a)(2).) However, Plaintiff has not alleged that she and BBBSA had any of these types of relationships that are sufficient to invoke the statute. As set forth supra, there was a very indirect relationship between BBBSA and Plaintiff, in that BBBSA was a national organization who merely had the power to enforce the independent local affiliate’s, here BBBSMC’s, compliance with the National Standards and that Plaintiff was a participant of BBBSMC’s program. Therefore, there is no requisite relationship to sustain a cause of action for sexual harassment against BBBSA based on Plaintiff’s alleged sexual abuse by the third-party Woody. Further, BBBSA cannot be held vicarious liability for Woody’s sexual abuse of Plaintiff for the reasons set forth supra. Therefore, BBBSA is entitled to summary judgment dismissing the Sexual Harassment cause of action against BBBSA. Vv. CONCLUSION Plaintiff’s claim in this case fairly rests with her abuser, Jon David Woody. To the extent, she believes the entity which placed her with Woody bears a portion ofthe responsibility, that claim is one to be made and proven against BBBSMC. However, the fact that BBBSMC is no longer in existence or otherwise financially viable, does not create a case against BBBSA. 18 DEFENDANT BBBSA’S MPA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT For the foregoing reasons, BBBSA cannot be held liable to Plaintiff for the alleged sexual abuse by Woody and, therefore, respectfully requests that this Court enter judgment in BBBSA’s favor and dismiss all claims asserted in the Complaint, or in the alternative, grant summary adjudication. BLEDSOE, DIESTEL, TREPPA & CRANE LLP Respectfully submitted, Dated: October 6, 2023 By /s/ Alison Crane Alison M. Crane Attorneys for Defendant BIG BROTHERS BIG SISTERS OF AMERICA