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Court of Appeal, First District, Division 3, California.

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. ROBIN R. et al., Defendants and Appellants.

No. A043092.

Decided: November 30, 1989

Shernoff, Scott & Bidart, Marian Haycok Tully, Claremont, Cal., for defendants and appellants. Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Gail Y. Norton, San Francisco, Cal., for plaintiff and respondent.

 In this case we consider whether an insurer owes a duty to defend and indemnify a minor, insured through his parents' homeowner policy, who admitted to repeated acts of child molestation.   We hold that under the facts of this case, State Farm properly excluded coverage of the minor's acts.


During the 18–month period that defendant Robin R. was employed as a babysitter, he sexually molested 3 minor girls.   While the molestations were taking place, Robin was between the ages of 14 and 15 and his victims were between the ages of 1 and 5.

On May 1, 1985, Robin admitted in a juvenile proceeding to having feloniously orally copulated the three minors, in violation of Penal Code section 288a, subdivision (b)(1).   Because the juvenile referee found a factual basis for the admission, it was accepted.   There was no mention made during those proceedings of either lack of mental capacity, lack of intent to do the acts, or lack of intent to harm the girls.

Three months later, four consolidated actions seeking compensatory and punitive damages were filed against Robin and his parents.   Because Robin and his parents were insured under a State Farm homeowner's insurance policy, they tendered the defense.   State Farm defended Robin and his parents in the civil actions, subject to a reservation of rights to deny coverage to Robin.

State Farm settled the action against Robin's parents and filed for declaratory relief with respect to its obligations to Robin.   Robin entered into a stipulated judgment with the victims, without the knowledge or consent of State Farm.   In an exchange for a covenant not to execute, Robin assigned all of his rights against State Farm to the victims.

The victims then answered the complaint for declaratory relief and due to State Farm's refusal to pay any part of the stipulated judgment, filed a cross-complaint against State Farm alleging breach of its duty of good faith and fair dealing, and breach of Insurance Code section 790.03.   State Farm moved for summary judgment upon the bases that Robin's acts were excluded from coverage pursuant to policy terms, and statutory language, including Insurance Code section 533.

As evidence that Robin's acts were intentional, State Farm submitted the reporter's transcript from the juvenile court action against Robin in its motion for summary judgment.   The victims objected to the evidence State Farm offered, alleging that the juvenile court transcripts were inadmissible.

The trial court accepted and reviewed all evidence submitted and then granted State Farm's motion for summary judgment on the declaratory relief action.   The victims filed a timely notice of appeal.


When State Farm moved for summary judgment, it sought a determination that the homeowner's insurance policy issued to Robin's parents did not cover Robin's acts of sexual molestation.   There were two grounds upon which State Farm based its denial of coverage:  (1) molestation is intentional and criminal in nature;  and (2) molestation is excluded from coverage by Insurance Code section 533.

Because the trial court did not state upon which ground it granted summary judgment, this court will consider both of the grounds submitted by State Farm.

1. Coverage Cannot Be Provided For Intentional Or Criminal Acts.

 In its contract of insurance with Robin's parents, State Farm had an express exclusionary clause which stated that losses “expected or intended by the insured” were excluded from coverage.   State Farm had the burden of proving that this exclusion applied to the loss.   To support its contention that the acts were intentional, State Farm submitted the juvenile court transcript in which Robin admitted to violating Penal Code section 288a, subdivision (b)(1).   The admission of oral copulation in the juvenile proceedings compels a finding of intentional wrongdoing.   Unlike the crimes of assault and battery, oral copulation cannot be rebutted at trial with defenses such as self-defense, or simple negligence.  (Allstate Ins. Co. v. Gilbert (9th Cir.1988) 852 F.2d 449, 452;  State Farm Fire and Cas. Co. v. Bomke (9th Cir.1988) 849 F.2d 1218, 1220.)   An intent to harm is inherent in the offense of oral copulation.  (Bomke, supra, 849 F.2d at p. 1220.)

 Even though Robin and the victims object to the use of this evidence, their objection is meritless.   Robin submitted declarations stating that he was in the process of having his juvenile records sealed and that, therefore, they were inadmissible in the summary judgment motion.   However, Welfare and Institutions Code section 781, subdivision (a), provides in pertinent part:  “Once the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred, ․” (Emphasis added.)   State Farm moved for summary judgment approximately 18 months after the juvenile proceeding took place, which gave Robin time to get the juvenile records sealed.   Since Robin failed to complete the sealing process, he is bound by the wording of Welfare and Institutions Code section 781.   The records were not sealed, so they were properly submitted by State Farm.

Further, Robin and the victims affirmatively pled that Robin admitted to violating Penal Code section 288a.   Both the cross-complaint and the first amended cross-complaint refer to Robin's juvenile court admission.   The first amended cross-complaint states that Robin “committed repeated acts of sexual abuse, battery and molestation” against the girls;  and that in deposition he “admitted to the sexual molestation of [one minor girl] on at least twenty separate occasions”;  and that “[o]n May 1, 1985, in a juvenile proceeding, [Robin] ․ admitted to the oral copulation of” the three girls.

Because these were judicial admissions, they are binding.   They are considered to be conclusive on the pleader.   In discussing judicial admissions, the court in Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d 1030, 184 Cal.Rptr. 417, summarized the law by stating:  “ ‘A judicial admission in a pleading (either by affirmative allegation or by failure to deny an allegation) is entirely different from an evidentiary admission.   The judicial admission is not merely evidence of a fact;  it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues.’ ”  (Id., at p. 1035, 184 Cal.Rptr. 417, quoting Walker v. Dorn (1966) 240 Cal.App.2d 118, 120, 49 Cal.Rptr. 362.)

 We note that Robin, like the defendant in Allstate Ins. Co. v. Talbot (N.D.Cal.1988) 690 F.Supp. 886, attempted to admit psychological testimony that he was unable to control his conduct.   However, the psychological testimony is inapplicable here, as it was in Talbot, for any purpose because Robin admitted to the molestations in his juvenile proceeding and failed at that time to submit any evidence of lack of intent, or lack of capacity.   Indeed, if Robin lacked capacity, his admission could not have been accepted by the juvenile referee.   If Robin lacked intent to do the act, he relinquished such a defense when he voluntarily admitted to violating Penal Code section 288a.   By his admission, and his failure to raise any defense in the juvenile proceeding, he is bound by the determination that his acts of molestation were intended.

Further, Civil Code section 1668, which is implied by law as an integral part of an insurance policy, states:  “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”   (Emphasis added.)   California law presumes that a child over the age of 14 is capable of committing a crime.  (Pen.Code, § 26.)   Regardless of the legal theory of civil liability presented in the underlying complaint, the basis of the victims' recovery was premised upon Robin's acts of oral copulation.   Because the acts of oral copulation were criminal in nature, they are excluded from coverage by Civil Code section 1668.

2. Coverage Of Acts Of Sexual Molestation Are Prohibited By Insurance Code Section 533.

The second basis for summary judgment raised by State Farm was that Robin's acts were precluded from coverage by Insurance Code section 533.   California Insurance Code section 533 provides that “[a]n insurer is not liable for a loss caused by the wilful act of the insured;  ․”  (Emphasis added.)   This section is implied by law to exist as an exclusionary clause in every insurance contract.  (Evans v. Pacific Indemnity Co. (1975) 49 Cal.App.3d 537, 540, 122 Cal.Rptr. 680.)   In interpreting this clause, the court in Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 explained that in order for an insured person's act to be “willful” as required by section 533, it must be performed with a preconceived design to inflict injury.  (Id., at p. 887, 151 Cal.Rptr. 285, 587 P.2d 1098.)

It has been held that implicit in a conviction of Penal Code section 288 or 288a, is the conclusion that the molester acted with the specific intent to injure the child.   Thus, such a conviction is viewed as willful within the meaning of Insurance Code section 533.  (Allstate Ins. Co. v. Kim W. (1984) 160 Cal.App.3d 326, 332–333, 206 Cal.Rptr. 609;  State Farm Fire and Cas. Co. v. Bomke, supra, 849 F.2d at p. 1220.)   In Fire Insurance Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1023–1024, 251 Cal.Rptr. 620, the court held that a violation of Penal Code section 288 created an inference of an intent to injure that may not be overcome by evidence of a subjective lack of intent to harm.1

Because Robin could not rebut the proposition that he acted intentionally when he molested the girls, and because an intent to harm is inferred under Kim W., Abbott, Abraio, and Jenner, his acts of oral copulation were willful as defined by Insurance Code section 533.   As such, they are excluded from coverage under any policy of insurance.

3. The Presumption Of Intent To Harm Is Irrebuttable Under Insurance Code Section 533, Whether The Molester Is An Adult Or A Minor.

As the above discussed cases reveal, an adult who has been convicted of Penal Code section 288 or 288a will be denied insurance coverage for his acts because under Insurance Code section 533, his acts were “willful.”   This intent to harm the child, which precludes the molester from coverage, is an irrebuttable presumption in California.   In California, the Legislature has made the determination that Penal Code section 288 is intended not just to punish the molester, but also to protect infants and children from such assaults.  (Kim W., supra, 160 Cal.App.3d at p. 332, 206 Cal.Rptr. 609;  People v. Meacham (1984) 152 Cal.App.3d 142, 156, 199 Cal.Rptr. 586.)   As the court in Kim W. explained, “Implicit in the determination that children must be protected from such acts is a determination that at least some harm is inherent in and inevitably results from those acts.”  (Kim W., supra, 160 Cal.App.3d at pp. 332–333, 206 Cal.Rptr. 609.)

The harm that results to the victims from sexual molestation is the same whether the molester is an adult or a minor.   Because Insurance Code section 533 is not modified by the word “adult,” the acts of either a minor or an adult could fall within its reach.   The only logical conclusion is that if a minor admits to a violation of Penal Code section 288a, his intent to harm is irrebuttably presumed.

Just as a conviction of Penal Code section 288a, for an adult, renders his subjective intent to harm as irrelevant, the admission by a juvenile does the same.   The criminal admission or guilty plea is properly allowed in a civil proceeding on the independent ground that it is an admission.  (Evid.Code, §§ 1220–1225;  see also Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605, 25 Cal.Rptr. 559, 375 P.2d 439.)   The proper time to rebut intent to do the act or intent to harm is prior to the conviction or the admission.

Although this appears to be a case of first impression in California, other courts have grappled with this conundrum.   The court in Allstate Ins. Co. v. Jack S. (D.Nev.1989) 709 F.Supp. 963, 966 held:  “Although it may be understandable for a court to find as a matter of law that an adult intended to harm a child by sexually abusing that child, it is too broad a leap in logic to find that a minor intended to injure another minor by engaging in sexual acts.   Knowledge which may be inferred to an adult may not be properly inferred to a child.” 2  In coming to this conclusion, the court was relying upon the first Jenner opinion, which as discussed above, is no longer the law in California.   Further, we are not bound by the Nevada District Court decision, nor in light of California Insurance Code section 533 can we be bound.

We do find support in our holding in Illinois Farmers Ins. Co. v. Judith G. (Minn.Ct.App.1986) 379 N.W.2d 638, in which a boy who, between the ages of 13 and 16, molested 2 girls.   The court in Judith G. held that whenever sexual contact is perpetrated against a child, an intent to cause harm will be inferred.  (Id., at p. 642.)   The court explicitly held that the boy's “alleged lack of subjective intent to injure is irrelevant.”   (Ibid.)  Additionally, in Allstate Ins. Co. v. Roelfs (D.Alaska 1987) 698 F.Supp. 815, the court dealt with a minor who had admitted to sexually molesting another minor.   The Roelfs court held that an intent to injure is established as a matter of law from the intent to commit acts of sexual molestation.  (Id., at p. 818.)


We hold that the trial court properly granted summary judgment for State Farm on either theory:  (1) the loss was intentional and criminal in nature;  and (2) the loss was denied coverage pursuant to Insurance Code section 533.

The judgment is affirmed.


1.   In Abbott, the court expressly disavowed State Farm Fire and Cas. Co. v. Estate of Jenner (9th Cir.1988) 856 F.2d 1359, which Robin relies upon.   The first opinion of Jenner, the one cited by Robin, suggested that if the insured presented credible evidence of his lack of intent to harm, he could rebut the inference of intent to harm created by a violation of Penal Code section 288a.  (Jenner, supra, at p. 1364.)   However, a rehearing was granted in Jenner and a new order was issued.   (State Farm Fire and Cas. Co. v. Estate of Jenner (9th Cir.1989) 874 F.2d 604.)   The court held in the rehearing, that in light of State Farm Fire and Cas. Co. v. Abraio (9th Cir.1989) 874 F.2d 619, 623, which concluded that under the holding in Abbott, the presumption of intent to harm is irrebuttable for child molestation cases, that its prior order in Jenner was erroneous and reversed itself.   The court in Jenner granted summary judgment to State Farm under the theory that the child molestation involved an intent to harm and fell within the ambit of Insurance Code section 533 and was uninsurable.

2.   The molester in Jack S. was a 14–year–old girl who sexually assaulted a 3–year–old boy she was babysitting.   It is important to note that the court was only dealing with an exclusionary clause in the policy, and the court did not make reference to any statutory restrictions.

WHITE, Presiding Justice.


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