RANDI v. LIVINGSTON UNION SCHOOL DISTRICT

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Court of Appeal, Fifth District, California.

RANDI W., a Minor, etc., Plaintiff and Appellant, v. LIVINGSTON UNION SCHOOL DISTRICT et al., Defendants and Respondents.

No. F020849.

Decided: December 15, 1995

Scott Righthand, San Francisco, for Plaintiff and Appellant. Robert J. Rosati, Myers & Overstreet, Gregory L. Myers, Sabrina Simmons–Brill, and C. Michael Carrigan, Fresno, for Defendants and Respondents.

OPINION

We will hold here that school authorities who recommend a former employee for hiring at another school may be subject to liability for physical harm to a student molested by the employee at the hiring school, on theories of negligent misrepresentation, fraud, and negligence per se when the recommendations fail to disclose known or reasonably suspected acts of sexual molestation previously committed by the employee and no report has been made pursuant to the Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.).

PROCEDURAL HISTORY

Plaintiff and appellant Randi W. (by and through her guardian ad litem, Marilyn E.W.) filed the instant lawsuit against Livingston Union School District, Muroc Joint Unified School District, Golden Plains Unified School District, Tranquility Elementary School, Mendota Unified School District, the State of California,1 Robert Gadams, Gilbert Rossette, Gary Rice, Richard Cole, Henry Escobar, Kathy Berkeley, and David Malcolm.

For purposes of all subsequent discussion, the defendants may be divided into two groups as follows:  Livingston Union School District, Robert Gadams, Henry Escobar, and Kathy Berkeley will be collectively referred to as the “Livingston defendants”;  all others are grouped as the “respondents.”   The Livingston defendants are not involved in this appeal.

A. The Complaint

The first amended complaint, the pleading with which we are concerned here, alleged that appellant was a student at Livingston Middle School where Robert Gadams served as vice principal.   On February 1, 1992, appellant was in Gadams's office when he “negligently and offensively touched, molested, and engaged in sexual touching of 13–year old [appellant] proximately causing injury to her.”

Count I:  Negligence

The first count of the first amended complaint, sounding in negligence, alleges that all defendants (including respondents) knew or had reason to know that Gadams had previously engaged in various types of “sexual wrongdoing” with minors and students, but that the defendants “negligently, carelessly, and/or with knowledge intentionally, maliciously, and/or fraudulently hired, retained, failed to report, failed to discipline, failed to supervise and/or affirmatively recommended defendant Robert Gadams to other positions of trust and positions whereby he would act as an authority figure to minors and students.”

Specific negligence allegations are made as to respondents. The first amended complaint alleges that Gadams worked in the Mendota school system during the 1985–1988 time frame.   In May of 1990, Gilbert Rossette, an official in the Mendota school district, provided to the placement office at Fresno Pacific College a “detailed recommendation” regarding Gadams, with the knowledge that it would be passed on to prospective employers—this despite Rossette's alleged knowledge of Gadams's prior sexual misconduct with female students, including Gadams's involvement in “ ‘sexual situations' with more than one female student․”   Rossette's recommendation set out numerous positive aspects of Gadams's tenure in Mendota, and concluded, “I wouldn't hesitate to recommend Mr. Gadams for any position!”

Similar allegations are made about Richard Cole, an official of Tranquility High School District and Golden Plains Unified School District where Gadams was employed between 1986 or 1987 and 1990.   The first amended complaint alleges that Cole, in 1990, provided Fresno Pacific College's placement office with a “detailed recommendation” of Gadams despite knowledge of Gadams's prior inappropriate conduct while an employee of the Golden Plains Unified School District.   Specifically, Cole knew that Gadams had been the subject of various complaints by parents, including charges that he had “made sexual overtures to students.”   These complaints had apparently led to Gadams's “resigning under pressure from Golden Plains due to sexual misconduct charges․”   The recommendation again listed Gadams's various strong points as an instructor and administrator, and Cole stated he “would recommend him for almost any administrative position he wishes to pursue.”

Gary Rice and David J. Malcolm, officials in the Muroc Joint Unified School District (where Gadams was employed in or around 1990 and 1991) also allegedly provided a “detailed recommendation” to Fresno Pacific College's placement office in 1991, despite knowledge of disciplinary actions taken against Gadams regarding sexual harassment allegations during Gadams's employment with the Muroc district.   The allegations included charges of sexual touching of female students and led to Gadams being forced by the district to resign.   The recommendation, signed by Malcolm, described Gadams as “an upbeat, enthusiastic administrator who relates well to the students” and who was “in a large part” responsible for the campus of Boron Junior/Senior High School being “a safe, orderly and clean environment for students and staff,” and he concluded by recommending Gadams “for an assistant principalship or equivalent position without reservation.”

All of these recommendations were made on forms, provided by Fresno Pacific College, which clearly stated that the provided information “will be sent to prospective employers.”

Appellant contends that all of these recommendations, with their associated failures to warn, were made “with actual malice, corruption and actual fraud since these defendants knew the true facts regarding Gadams and knew that an injury to a child by Gadams would probably result.”   Appellant alleges that her injuries were a proximate result of respondents' actions.

Count II:  Negligent Hiring

Appellant alleges that each of the respondents was negligent in hiring Gadams “without any significant investigation or knowledge that Gadams was fit to act in a position of trust with respect to children or with a complete indifference” to Gadams's history of sexual misconduct.   She alleges that her injuries were a direct and proximate result of these failures to investigate Gadams prior to his hiring by the various respondents.

Count III:  Negligent Misrepresentation

Appellant alleges that respondents' gratuitous recommendations of Gadams to Fresno Pacific College's placement office were made with “actual fraud, corruption, and actual malice”;  respondents knew them to be false, and knew that “minor public school children generally and those at Livingston would probably suffer injury because of the representations and failure to warn.”   Appellant alleges a duty owed by respondents “to those to whom the statements were made and to the children at public schools whose families rely upon said representations.”

Count IV:  Fraud

Appellant here alleges that respondents intentionally made the aforementioned knowingly false representations about Gadams with knowledge that they were “likely to injure [appellant],” and with the intent that they would be relied upon “by all other defendants and others, and in fact were relied upon by each other defendant and [appellant].”

Count V:  Negligence Per Se

Appellant alleges that respondents had a mandatory duty pursuant to Penal Code section 11165 et seq. and other statutes to report Gadams's prior sexual misconduct to “appropriate authorities and prospective employers.”   Respondents failed to do so, thus affording Gadams “the opportunity to maintain a position of trust and authority with regard to minor students thereby enabling his molest of [appellant].”

Count VI:  Title IX Violation

Finally, appellant alleges that she “has been the subject of sexual harassment by [respondents],” a violation of 20 United States Code sections 1681–1688.

B. The Demurrers

Respondents demurred to the first amended complaint. The demurrers argued that each cause of action in the first amended complaint failed as a matter of law because the facts alleged failed to establish any duty running from the respondents to appellant.

At the hearing on the demurrers the trial court expressed doubt as to whether appellant had, or could, adequately plead any duty running from respondents to her.  “And so my tentative ruling is to sustain the demurrer without leave to amend on the basis that there is no legal duty [ ] from these demurrering [sic ] defendants to the plaintiff.”   The court further noted that, if it were not going to sustain the demurrer on that basis, it would sustain it with leave to amend for failure to adequately plead causation and reliance.

The court subsequently issued a written order sustaining respondents' demurrers without leave to amend, holding that “the First Amended Complaint does not state facts sufficient to constitute a cause of action against the demurring defendants, on the basis that no duty exists to this plaintiff, from these demurring defendants.”   Judgment of dismissal with prejudice in favor of respondents was later entered, and this timely appeal followed.

DISCUSSION

The court's task on reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.   Accordingly, the court must assume the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in context.  (Garcia v. Superior Court (1990) 50 Cal.3d 728, 732, 268 Cal.Rptr. 779, 789 P.2d 960.)   The appellate court exercises its own independent judgment and is not bound by the decision of the trial court.   (People ex rel. Bender v. Wind River Mining Project (1990) 219 Cal.App.3d 1390, 1395, 269 Cal.Rptr. 106.)

The Trial Court Abused Its Discretion By Sustaining Respondents' Demurrers Without Leave To Amend.

A. Duty Interpreted

The Supreme Court has rather clearly stated that whether “duty” exists in a particular scenario is largely a function of public policy concerns.

“The question of ‘duty’ is decided by the court, not the jury.  (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 493, p. 2756 and cases cited;  Prosser & Keeton on Torts (5th ed. 1984) p. 236.)   As this court has explained, ‘duty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’  (Dillon v. Legg (1968) 68 Cal.2d 728, 734[, 69 Cal.Rptr. 72, 441 P.2d 912] [ ] [quoting Prosser, Law of Torts (3d ed. 1964) pp. 332–333].)   In California, the general rule is that all persons have a duty ‘ “to use ordinary care to prevent others being injured as the result of their conduct․’ ”  (Rowland v. Christian (1968) 69 Cal.2d 108, 112[ ][, 70 Cal.Rptr. 97, 443 P.2d 561] (citations omitted);  Civ.Code, § 1714.)  Rowland enumerates a number of considerations, however, that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate:  ‘the major [considerations] are 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.’  (Italics added.)  (69 Cal.2d at p. 113 [, 70 Cal.Rptr. 97, 443 P.2d 561].)   The foreseeabilityof a particular kind of harm plays a very significant role in this calculus (see Dillon v. Legg, supra, 68 Cal.2d 728, 739[, 69 Cal.Rptr. 72, 441 P.2d 912] ), but a court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”   (ballard v. uribe (1986) 41 cal.3d 564, 572, fn. 6, [224 cal.rptr. 664, 715 P.2d 624,] italics in original.)

A “duty” need not be predicated on the existence of a particular potential victim;  “[l]iability for negligent conduct may be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member.”  (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60, italics added.)

B. The General Negligence Cause

The first cause of action attempts to state a general negligence theory of liability.   Nothing in it expressly asserts any duty borne by respondents to appellant.   The sole discussion of duty therein relates only to the Livingston defendants' duty “to supervise the conduct of the students on the grounds of Livingston Middle School and to enforce those rules and regulations necessary for the protection of the students of Livingston, including, but not limited to, [appellant].”

There is no allegation that respondents had any ability to control Gadams or appellant or that respondents had any “special relationship” with appellant or Gadams when the alleged molestation occurred.   Thus, no duty to exercise reasonable control arose.  (See Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013–1014, 272 Cal.Rptr. 222.)

Appellant has not cited any authority positing liability on a general negligence theory under facts remotely similar to those alleged here.   Accordingly, she has not shown that the trial court's ruling was erroneous as to the first cause of action.

C. The Negligent Hiring Count

Although school districts are not vicariously liable for the conduct of their employees who sexually molest students, direct liability may result on a theory of negligent hiring.  (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1853–1855, 19 Cal.Rptr.2d 67 1.)

Appellant contends that Virginia G. supports her second cause of action.   But we know of no case, and appellant cites none, extending the negligent hiring theory to a nonemploying defendant.   The court's ruling was not error as to the second cause of action.

D. The Negligent Misrepresentation and Fraud Counts

Appellant devotes most of the discussion in her briefs to the negligent misrepresentation and fraud theories of liability pleaded in her third and fourth causes of action, respectively.   She concedes that no misrepresentations were made by respondents directly to her or her family.   Nevertheless, she argues that under the facts alleged she is entitled to protection as a third party endangered by negligent or deliberate misrepresentations respondents made to the Fresno Pacific College placement office.

Appellant's primary authority for this theory is the Restatement Second of Torts, sections 310 and 311.2

Restatement Second of Torts, section 310 states:

“An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor

“(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and

“(b) knows

“(i) that the statement is false, or

“(ii) that he has not the knowledge which he professes.”

Restatement Second of Torts, section 311 provides:

“(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

“(a) To the other, or

“(b) to such third persons as the actor should expect to be put in peril by the action taken.

“(2) Such negligence may consist of failure to exercise reasonable care

“(a) in ascertaining the accuracy of the information, or

“(b) in the manner in which it is communicated.” (Italics added.)

Appellant did not rely on Restatement sections 310 and 311 in the trial court, and nothing in the record indicates the court's attention was drawn to them.   The trial court based its “no duty” finding primarily in reliance on the Supreme Court's decision in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745.  Bily dealt with the question of “whether and to what extent an accountant's duty of care in the preparation of an independent audit of a client's financial statements extends to persons other than the client.”  (Id. at p. 375, 11 Cal.Rptr.2d 51, 834 P.2d 745.)   Addressing the negligent misrepresentation theory of liability, the Supreme Court adopted a rule substantially in accord with Restatement Second of Torts section 552, subdivision (2).  (3 Cal.4th at p. 414, 11 Cal.Rptr.2d 51, 834 P.2d 745.)

We do not find Bily controlling here.   In Bily the third-party plaintiffs were seeking recovery for damages allegedly resulting from economic loss as opposed to the damages based on physical injury sought by appellant here.   The distinction is material.   In comment a to section 552, the Restatement drafters differentiate between negligent misrepresentation resulting in physical harm, expressly referring to section 311, and that resulting in only pecuniary loss, noting that in the latter case “the courts have found it necessary to adopt a more restricted rule of liability․”  (At p. 127.)

Our Supreme Court has expressly recognized and given effect to the distinction.   In Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960, the court stated:

“Misrepresentations involving a risk of physical harm constitute an exception to the ordinary rule that ‘liability [for negligent misrepresentations] is imposed only on those who supply information for business purposes in the course of a business or profession.’  (See 5 Witkin, Summary of Cal.Law [ (9th ed. 1988) ] Torts, § 721, at p. 820.)   The ordinary rule is based on the principle that, in financial matters, a plaintiff ‘cannot expect the defendant to exercise the same degree of care [in social meetings] as he would when acting in a business or professional capacity.’  (Ibid.)  The misrepresentations in this case, of course, were not made in a financial context.   However, the duty to use reasonable care in giving information applies more broadly when physical safety is involved.   In cases ‘[w]here ․ the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be liability for the negligence even though the information is given gratuitously and the actor derives no benefit from giving it.’  [Fn. omitted.]  (Rest.2d Torts, supra, § 311, com. c., at p. 107;  see also Barbara A. v. John G. [ (1983) 145 Cal.App.3d 369,] 375–376[, 193 Cal.Rptr. 422];  Connelly v. State of California (1970) 3 Cal.App.3d 744, 752[, 84 Cal.Rptr. 257] [ ] [finding causes of action for gratuitous negligent misrepresentations involving risks of physical harm].)”  (50 Cal.3d at pp. 735–736, 268 Cal.Rptr. 779, 789 P.2d 960.)

Appellant contends the Supreme Court, in Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960, “approved” section 311 of the Restatement as California law.   As we will later discuss, Garcia involved a claim based on harm suffered by the person to whom false information was given, rather than, as here, a claim by a third person.   Thus, the principal issue raised by appellant's reliance on section 311 is whether its third-party protective provisions apply in California.   Before reaching that issue, however, we should consider a preliminary question.   Has appellant sufficiently pleaded facts alleging that respondents “[gave] false information” for purposes of section 311 or made a “misrepresentation” for purposes of section 310?

None of the three recommendation letters allegedly written by respondents affirmatively states that Gadams has never been suspected or accused of any improper sexual misconduct with female students or that he is free of negative character traits.   Only by referring to material that was not included in the letters can one consider them as misrepresentations or giving false information.   Can the failure to disclose constitute a misrepresentation or the giving of false information?   In a word, yes.

While mere nondisclosure is generally not actionable, our law has long recognized that “although one may be under no duty to speak as to a matter, ‘if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated.   If he speaks at all he must make a full and fair disclosure.’ ”  (Rogers v. Warden (1942) 20 Cal.2d 286, 289, 125 P.2d 7.)   This notion has been included in the statutory definition of deceit since 1872.  (See Civ.Code, § 1710, subd. 3.   See also Rest.2d Torts, § 529;  BAJI No. 12.37.)

In Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 85 Cal.Rptr. 444, 466 P.2d 996, the Supreme Court restated the principle:

“In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise [when] the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead․”  (Id. at p. 294, 85 Cal.Rptr. 444, 466 P.2d 996, fn. omitted.)

Perhaps one of the pithiest statements of the concept was given by this court in Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 201, 227 Cal.Rptr. 887:

“One who is asked for or volunteers information must be truthful, and the telling of a half-truth calculated to deceive is fraud.”

The rule has been frequently applied, and in a variety of factual contexts.   (See, e.g., Warner Corp. v. City of Los Angeles, supra, 2 Cal.3d at p. 294, 85 Cal.Rptr. 444, 466 P.2d 996 [test hole logs included in plans and specifications for a retaining wall were “misleading half-truths” because of nondisclosure of cave-ins and special drilling techniques used in drilling test holes];  Reed v. King (1983) 145 Cal.App.3d 261, 193 Cal.Rptr. 130 [seller of house who represented it as “fit for an ‘elderly lady’ living alone” had duty to disclose that house was site of a multiple murder 10 years earlier];  Kuhn v. Gottfried (1951) 103 Cal.App.2d 80, 85–86, 229 P.2d 137 [seller of medical practice who truthfully told buyer that a Dr. Jaworski had previously purchased practice but abandoned it held liable for fraud for failing to disclose pending litigation between seller and Dr. Jaworski concerning prior sale];  Milmoe v. Dixon (1950) 101 Cal.App.2d 257, 260–261, 225 P.2d 273 [failure to disclose fact houses were built without obtaining building permits was fraud because it materially qualified representations that houses were personally built by sellers and were sound and well built].

The recommendation letters attributed to respondents in the first amended complaint here come within the rule discussed.   The letters were given to an educational placement office and recommended Gadams's employment in future educational positions.   None of the letters expressly limit their statements to Gadams's teaching or administrative abilities.   Instead, they offer opinions about some of his personal qualities.   The Rossette letter described Gadams as “dependable [and] reliable” and states that his “biggest asset ․ is the genuine concern towards the students and the people he is affiliated with.”   The Cole letter referred to Gadams's “pleasant personality” and to his setting “high standards.”   The Malcolm letter stated Gadams is “an ․ administrator who relates well to the students” and credited his efforts in maintaining the Boron Junior/Senior High School campus as a “safe ․ environment for students․”   Each of the letters made an unqualified recommendation for Gadams's employment in other school positions.

We must assume the truth of appellant's allegations that respondents Rossette, Mendota Unified School District, and McCabe Junior High School “knew” that Gadams “had been in ‘sexual situations' with more than one female student” and that respondents Cole, Tranquility Elementary School and Golden Plains Unified School District “knew” that Gadams had “made sexual overtures to students.”   The allegations involving respondents Rice, Malcolm and Muroc Joint Unified School District are somewhat sketchier, falling short of alleging knowledge of actual conduct by Gadams.   Nevertheless, they allege that those respondents knew that informal and formal complaints had been lodged against Gadams, a formal, public school board meeting was held regarding Gadams's conduct, and “for these reasons” those respondents forced Gadams's resignation.   A reasonable inference from these allegations is that Rice, Malcolm, and Muroc knew that charges made against Gadams had some substance and were more than just unfounded rumors.

In our opinion the facts allegedly known by respondents, but not disclosed in the recommendation letters, “materially qualify” the facts disclosed about Gadams's conduct at the respondents' schools and render the letters misleading half-truths.   Respondents voluntarily took it upon themselves to represent to prospective employers (including Livingston) that Gadams was not merely qualified for an administrative position in a school setting, but that he would be a desirable hiree for such a position.   As the Restatement's drafters observed, “a statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.”  (Rest.2d Torts, § 529, com. a.)   It hardly need be stated that the facts not disclosed by respondents (Gadams's alleged history of improper sexual conduct towards or with female students at the elementary, junior, and senior high school levels) would likely have a bearing on the suitability of his employment on other school campuses.

We thus conclude that, assuming the truth of the pleaded facts, appellant has alleged that respondents gave false information or made misrepresentations within the scope of Restatement Second of Torts, sections 310 and 311.

We now return to the central issue raised by appellant's reliance on the Restatement—whether California law protects third parties under the circumstances described in sections 310 and 311.   As previously noted, appellant relies strongly on Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960.

Garcia was a self-styled wrongful death action brought against the State of California and a parole officer by the survivors of a woman who was killed by a parolee.   The parolee had previously made threats against the decedent's life in the presence of the parole officer, but the parole officer affirmatively told the decedent he did not think she had anything to worry about.   He told her that the parolee would “not [ ] come looking” for her and that the parolee had told the officer he was still in love with decedent.

The superior court sustained a demurrer by the defendants without leave to amend, and the appellate court affirmed.   The Supreme Court agreed that a cause of action for wrongful death was not stated, but held that leave should be granted to amend the complaint to state a cause of action for negligent misrepresentation involving a risk of physical harm.   In doing so, the Supreme Court expressly relied on section 311 of the Restatement Second of Torts.  (Garcia v. Superior Court, supra, 50 Cal.3d at p. 734, 268 Cal.Rptr. 779, 789 P.2d 960.)3

Garcia, of course, is factually distinguishable from this case.   In Garcia the risk of physical harm was to the person to whom the negligent misrepresentations were directly made, while here the risk was to third persons.   In its discussion, the Garcia court did not directly refer to section 311's subsection dealing with harm “to such third persons as the actor should expect to be put in peril by the action taken,” but instead replaced it with ellipses.  (See Garcia v. Superior Court, supra, 50 Cal.3d at p. 734, 268 Cal.Rptr. 779, 789 P.2d 960.)   Later the court framed the duty question as hinging on whether the parole officer “ ‘knows or should realize that [the listener's ] safety ․ may depend on the accuracy of the information.’ ”  (Id. at p. 736, 268 Cal.Rptr. 779, 789 P.2d 960, italics added.)

On the other hand, the court made the following observation, albeit arguably in dictum:

“․ In this context, ‘duty’ and ‘reasonable reliance’ are closely connected.   The likelihood that one's statements about personal safety will be taken seriously is a primary factor in determining whether one has a duty to exercise care in making such statements.   As the Restatement puts it, such a duty ‘extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend on the accuracy of the information.’  (Rest.2d Torts, supra, § 311, com. b, at p. 106.)”  (50 Cal.3d at p. 735, 268 Cal.Rptr. 779, 789 P.2d 960, italics added.)

Thus, while Garcia does not stand as direct, clear authority adopting all of Restatement Second of Torts section 311 as the law in California, nothing in the opinion suggests that it would not equally apply in a third-party risk case.

A somewhat analogous Restatement rule, embodied in section 324A, appears to be accepted as the law in California.  (FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572, 29 Cal.Rptr.2d 916;  Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 110–111, 128 Cal.Rptr. 901.)   Section 324A of the Restatement Second of Torts provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

“(a) his failure to exercise reasonable care increases the risk of such harm, or

“(b) he has undertaken to perform a duty owed by the other to the third person, or

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

While section 324A involves the rendition of services, rather than the making of representations, it is similar to section 311, subdivision (1)(b) in that it deals with a risk of physical harm to third persons.

Despite appellant's heavy reliance on and lengthy discussion of the applicability of section 311, respondents have chosen to ignore it in their briefs.   And they cite Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960 only for the proposition that reasonable reliance is an essential element of a cause of action for negligent misrepresentation involving physical harm.  (See id. at p. 737, fn. 7, 268 Cal.Rptr. 779, 789 P.2d 960.)

Respondents rely on Cohen v. Wales (1987) 133 A.D.2d 94, 518 N.Y.S.2d 633, a case that appears factually parallel to the instant one.   The rationale of the New York court's decision is set forth in a single paragraph.

“In opposing Warwick's motion to dismiss, the plaintiffs failed to carry their burden of establishing a sufficient factual predicate on which to posit a duty of care owed by it to the infant plaintiff (see, CPLR 3013).   The plaintiffs' claim of negligence against Warwick is based on the fact that it recommended a former employee for a position as a grammar school teacher with the Tri–Valley School District without disclosing that the teacher had been charged with sexual misconduct.   Some 11 years after becoming employed by the Tri–Valley School District, the teacher caused injury to the infant plaintiff.   An action for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff (Palsgraf v. Long Is. R.R., 248 N.Y. 339, 341, 162 N.E. 99).   The common law imposes no duty to control the conduct of another or to warn those endangered by such conduct, in the absence of a special relationship between either the person who threatens harmful conduct or the foreseeable victim (Pulka v. Edelman, 40 N.Y.2d 781, 782–783, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640).   The mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring (Bell v. Perrino, 112 A.D.2d 124, 490 N.Y.S.2d 821, lv. denied 66 N.Y.2d 604, 895, 498 N.Y.S.2d 1024, 791, 489 N.E.2d 769, 760).   Nor are there sound policy reasons warranting the expansion of the common-law duty of the schools since the plaintiffs have an adequate remedy at law as against the school district which had custody of the infant at the time of the injury and also against the wrongdoer (see, Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849).”  (Cohen v. Wales, supra, 518 N.Y.S.2d at pp. 633–634.)

The Cohen court referred to the action before it as simply “an action for negligence.”   Nothing in the brief opinion indicates the plaintiffs asserted, or the court considered, a negligent misrepresentation theory.   Neither does it mention or give reasons for failing to apply section 311 of the Restatement Second of Torts.   Thus, we consider Cohen as doubtful authority on the issue under discussion.

Our research has disclosed two other out-of-state decisions in cases bearing some factual similarity to this one.

In Moore v. St. Joseph Nursing Home, Inc. (1990) 184 Mich.App. 766, 459 N.W.2d 100, the estate of decedent, who was beaten and murdered by coworker St. Clair, sued St. Clair's former employer, alleging the former employer was negligent in failing to disclose to prospective employers (in particular, the employer for whom both St. Clair and decedent worked) St. Clair's record of 24 disciplinary warnings for acts ranging from outright violence to alcohol and drug use.   The Circuit Court granted summary disposition for the former employer, and the estate appealed.

The Michigan Court of Appeals rejected the plaintiffs' assertion that a former employer has a legal duty to disclose a former employee's dangerous proclivities to an inquiring prospective employer.   The court concluded that whether such a duty should exist was a question best left to the state's Legislature.  (459 N.W.2d at p. 103.)

As in Cohen v. Wales, supra, the Moore court did not discuss the possible applicability of Restatement Second of Torts section 311.   From the statement of facts appearing in the Moore opinion, that section would not have been applicable because there was no showing the defendant made any affirmative representations to St. Clair's new employer.   In fact, the defendant claimed it was never contacted by the new employer, but if it had been it would have provided no further information than St. Clair's employment dates.  (Moore v. St. Joseph Nursing Home, Inc., supra, 459 N.W.2d at p. 102.)   In short, Moore was not a negligent misrepresentation action.

The other case our research has disclosed is Gutzan v. Altair Airlines, Inc. (3d Cir.1985) 766 F.2d 135.   In Gutzan, Joseph Farmer presented himself to an employment agency, Romac & Associates, for placement as a computer programmer.   One of his references was from the United States Disciplinary Barracks in Fort Leavenworth, Kansas.   Farmer told Romac he had been incarcerated at Leavenworth “because, while he was stationed in Germany, his German girlfriend had charged him with rape, and that it was a policy of military courts to appease foreign women who made such charges.”  (766 F.2d at p. 137.)   While Romac representatives called Fort Leavenworth to verify Farmer's references, no inquiry was made as to the circumstances underlying Farmer's rape conviction.

Romac presented Farmer to Altair Airlines as a candidate for a job vacancy, repeating Farmer's explanation for his conviction, and apparently representing that the explanation “had been verified by military officials.”  (766 F.2d at p. 137.)   Altair eventually hired Farmer, making a conscious decision not to reveal Farmer's conviction to Altair's other employees.

During the year following Farmer's employment by Altair, two female employees complained to Farmer's supervisor about “disturbing incidents” involving Farmer.  (766 F.2d at p. 137.)   Finally, Farmer raped a coworker, Gutzan.   It was only at this point that Altair and Romac learned that Farmer's Army rape conviction had been for the rape of a coworker.

Gutzan sued both Altair and Romac, but Altair settled before trial.   Gutzan prevailed over Romac at jury trial, but Romac moved for and was granted a judgment notwithstanding the verdict.   Gutzan moved for a new trial and to set aside the verdict, both of which motions failed.   She then appealed.

Gutzan's primary issue on appeal was the trial court's failure to give specific jury instructions on negligent performance of services, negligent misrepresentation, reliance, and intervening negligent acts.   In its analysis of this issue, the Circuit Court, applying Pennsylvania substantive law (766 F.2d at p. 136, fn. 1), implied that Pennsylvania follows the rule of both Restatement Second of Torts sections 311 and 324A.

“The failure to include the specific language of Restatement (Second) of Torts § 311 (Negligent Misrepresentation Involving Risk of Physical Harm) and § 324A (Liability to Third Person for Negligent Performance of Undertaking) does not constitute reversible error.   The verdict of the jury demonstrates that it understood the duty owed by Romac, the personnel agency, to a third person (co-employee) for a negligent performance of its undertaking to the employer.   The jury found both the employer and the personnel agency negligent.   In so doing, it made, as the plaintiff concedes, ‘a factual determination that Romac had assumed a duty and intentionally or negligently misled Altair.’ ”  (Gutzan v. Altair Airlines, Inc., supra, 766 F.2d at p. 139.)

The court went on, however, to overturn the granting of Romac's motion for judgment notwithstanding the verdict.   The lower court's ruling had been based on the premise that Romac owed no duty to Gutzan.   The Circuit Court disagreed, expressly relying on sections 311 and 324A of the Restatement Second of Torts.  (766 F.2d at pp. 140–141.)

In summary, appellant has shown that her allegations fall squarely within the scope of Restatement Second of Torts section 311, the California Supreme Court has applied that section in another context without giving any indication it would not apply in a third-party risk case, California courts have applied an analogous rule (Rest.2d Torts, § 324A) in third-party risk cases, and the only other court we know of to have directly considered the issue imposed liability under section 311 (Gutzan v. Altair Airlines, Inc., supra, 766 F.2d 135).   Under these circumstances we see no compelling reason to reject section 311, subdivision (1)(b).  (See Canfield v. Security–First Nat. Bank (1939) 13 Cal.2d 1, 30–31, 87 P.2d 830 [in absence of contrary statute or decision, Restatement, while not binding authority, is entitled to great consideration].)

Since we have concluded that respondents owed a duty to appellant not to negligently misrepresent Gadams's desirability to prospective employers, it stands to reason that their duty not to intentionally misrepresent was at least equal.

The language of section 310 does not fit the facts pleaded here as snugly as does that of section 311, because it does not include language expressly protecting “such third persons as the actor should expect to be put in peril by the action taken.”  (Rest.2d Torts, § 311, subd. (1)(b).)   Nevertheless, it is clear that the authors of the Restatement intended it to apply to cases in which third persons are endangered by the misrepresentation.   Comments b and c to section 310 of the Restatement Second of Torts state, in part:

“b. ․

“The situation to which the rule stated in this Section is most usually applied is where the misrepresentation is made concerning the physical condition of a thing, either land, structures, or a chattel, and induces the other to believe that the thing is in safe condition for his entry or use, or induces a third person to hold the land or chattel open to the entry or use of the other in the belief that it is safe for the purpose.   The rule is, however, equally applicable to misrepresentation of other matters upon which the safety of the person or property of another depends.”  (Italics added.)

“c. Liability to third persons. A misrepresentation may be negligent not only toward a person whose conduct it is intended to influence but also toward all others whom the maker should recognize as likely to be imperiled by action taken in reliance upon his misrepresentation.   Thus, as stated in § 388, one who, by actively concealing a defect, misrepresents the condition of a chattel which he furnishes to another for use is liable not only (1) to the person to whom he furnishes the chattel and who, in the belief that it is safe, is injured while using it in a way for which it appears safe, but also (2) to such others as the actor permits to use or share in the use of the chattel and, in addition, (3) to others in the vicinity of its expected use who are harmed in person or property by such use․”

The quoted comments are wholly consistent with section 311, which clearly imposes liability for negligent misrepresentations when one in receipt of the misrepresentation, in reasonable reliance thereon, takes action which results in injury to a third party.   One of the illustrations of section 311 liability in the Restatement is instructive:

“The A Boiler Insurance Company undertakes as part of its service to inspect the boiler of B.   The A Company makes a careful inspection, and correctly concludes that the boiler is unsafe.   Through the negligence of its clerk, it issues a certificate which, while correctly stating all the defects in the boiler, gives the misleading impression that the boiler is nevertheless safe.   In reliance on the certificate, B continues to use the boiler, which bursts because of the defects and wrecks the adjacent building of C, causing bodily harm to C.   The A Company is subject to liability to C for his bodily harm and the wrecking of his building.”  (Rest.2d Torts, § 311, illus. 9, p. 109.)

In this illustration, C, the “bystander,” was not relying on A's misrepresentations;  yet A was liable to C.   As long as the recipient reasonably relied on the misrepresentations and injury results, A will be liable.

We conclude that the facts pleaded in appellant's amended complaint establish an adequate duty to support the negligent misrepresentation and fraud counts.

Although the trial court expressly limited its decision to sustain the demurrers without leave to amend to the duty issue, respondents urge that we should affirm on grounds other than those relied on by the trial court.   With regard to the negligent misrepresentation and fraud counts, they contend that as a matter of law there was neither reliance, intent to defraud, nor causation.

Respondents are correct in asserting that on an appeal from a judgment of dismissal following the sustaining of a general demurrer without leave to amend, we must affirm if the judgment is correct on any theory. (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 511, 146 Cal.Rptr. 614, 579 P.2d 505.)   Thus, we will examine respondents' alternative contentions even though the trial court stated that it would have granted appellant leave to amend on those grounds.

Reliance

Respondents cited Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960 as authority that reasonable reliance is an essential element of a cause of action for negligent misrepresentation involving physical harm.   They apparently interpret this as a requirement that the appellant relied on the misrepresentation.   The Restatement, however, makes it clear that a plaintiff need not rely on the misrepresentation and may, indeed, not even know that it was made.  (See Rest.2d Torts, § 311, com. d, illus. 8, pp. 108–109.)   The same is true in cases of intentional misrepresentation in which the injured plaintiff was not the person to whom the misrepresentation was made.  (See Rest.2d Torts, § 310, com. c, pp. 104–105.)

Respondents cite a number of cases for their position on the reliance requirement, including Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 23 Cal.Rptr.2d 101, 858 P.2d 568;  Slakey Brothers Sacramento, Inc. v. Parker (1968) 265 Cal.App.2d 204, 71 Cal.Rptr. 269;  Bell v. Renaldo (1975) 51 Cal. App.3d 779, 124 Cal.Rptr. 233;  Walters v. Marler (1978) 83 Cal.App.3d 1, 147 Cal.Rptr. 655;  and Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 231 Cal.Rptr. 72.   Those cases all involved claims only for damages resulting from economic loss as opposed to damages based on physical injury.   As we have noted earlier, cases involving only economic loss are subject to a more restrictive rule.  (Garcia v. Superior Court, supra, 50 Cal.3d at pp. 735–736, 268 Cal.Rptr. 779, 789 P.2d 960;  see also Hawkins v. Oakland Title Ins. & Guar. Co. (1958) 165 Cal.App.2d 116, 128, 331 P.2d 742 [“ ‘there is general agreement that a more restricted rule is necessary in the case of economic loss than where there is tangible harm to person or property․’ ” quoting Prosser on Torts (2d ed. 1955) at p. 543].)

One case cited by respondents did involve personal injury. In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 22 Cal.Rptr.2d 781, the plaintiff, injured while skiing, sued the manufacturer of his ski bindings, alleging (among other things) negligent and intentional misrepresentation.   The manufacturer won on these counts on a motion for summary adjudication, the court finding that “the only express statements relied on by plaintiff were those of [the ski rental shop], not those of [the manufacturer].”  (17 Cal.App.4th at p. 1726, 22 Cal.Rptr.2d 781.)

The appellate court concluded that the lower court's determination was supported by the evidence, noting that at deposition the plaintiff had admitted he had no specific recollection of ever seeing advertisements by the binding manufacturer prior to his accident.  (17 Cal.App.4th at pp. 1751–1752, 22 Cal.Rptr.2d 781.)

Where Westlye plainly differed from the instant case is that there was apparently neither evidence nor claim that representations were made by the manufacturer to the ski shop.   Consequently, the question of the applicability of Restatement Second of Torts sections 310 and 311 never arose.   In addition, Westlye was disposed of at the summary adjudication stage, not on demurrer.

Intent

The only intent required for either fraud or negligent misrepresentation is intent to induce reliance on the misrepresentation.  (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778;  Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402, 264 Cal.Rptr. 779.)   That intent, while not explicitly pleaded, is implicit from the pleaded fact that the school district representatives made their recommendations of Gadams “knowing said recommendation[s] would be presented to future potential employers ․”   Even if not sufficient, the complaint plainly could be suitably amended to affirmatively state intent to induce reliance.

Causation

Respondents assert that, as a matter of law, there is neither causation in fact nor proximate cause.   They rely on a single case, Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748.  Evan F. involved claims by two minors, brother and sister, against a local church and a larger church organization, for negligently hiring a pastor who allegedly sexually molested the male plaintiff, who, in turn, molested his sister.   On appeal from a summary judgment for the defendants, the court discussed the element of proximate or legal cause in the sister's causes of action for negligent hiring and negligent infliction of emotional distress.  (Id. at pp. 834–841, 10 Cal.Rptr.2d 748.)

The court first noted that “the term ‘proximate cause’ includes two basic components:  one is the policy considerations [regarding the limits of liability];  the other is ‘causation in fact.’ ”  (8 Cal.App.4th at pp. 834–835, 10 Cal.Rptr.2d 748.)   Conceding that causation in fact had been shown, the court turned to the policy considerations, concluding that they precluded the imposition of liability “on the person who hired the person who molested the person who molested the person in [the sister's] position.”  (Id. at p. 837, 10 Cal.Rptr.2d 748.)   The court emphasized that the sister's action was based on two intervening criminal acts of molestation.  (Id. at p. 838, 10 Cal.Rptr.2d 748.)

We find the Evan F. court's analysis inapplicable here.   As that court noted, the sister's position “is a step removed from the negligently hired employee and a step removed from that employee's conduct.”  (8 Cal.App.4th at p. 837, 10 Cal.Rptr.2d 748.)   Appellant, by contrast, was a direct victim of the recommended employee and his conduct.

We do not mean to imply that policy reasons for and against imposing liability in third-party negligent misrepresentation or intentional fraud cases are nonexistent or unimportant.   Undoubtedly such considerations were given weight in formulation of the Restatement rules upon which we found the existence of a legal duty.   We see no need to reconsider or reweigh those reasons as part of the causation analysis.   Indeed, one of the primary authorities upon which the Evan F. court relied suggests that it may be more helpful to consider policy issues in determining whether a legal duty exists rather than in the proximate cause context.  (See Prosser & Keeton on Torts (5th ed. 1984) § 42, pp. 274–275.)

The causation inquiry, thus, is whether there was a causation in fact nexus between respondents' conduct and appellant's injury.   This is an issue of fact unless reasonable minds can draw only one conclusion from appellant's allegations.  (Braman v. State of California (1994) 28 Cal.App.4th 344, 356, 33 Cal.Rptr.2d 608.)

Assuming the truth of appellant's allegations, we cannot conclude, as a matter of law, that respondents' conduct was not a substantial factor in causing her injuries.   Reasonable minds could infer that if respondents had not made the alleged negligent and fraudulent misrepresentations, the Livingston defendants would not have employed Gadams in a school position which gave him the opportunity to molest appellant.   If such facts are not already pleaded, any defect could easily be cured by amendment, as the trial court indicated.

To the extent respondents may be contending that Gadams's conduct was a superseding cause, the argument fails.   An actor is not relieved of liability because of the intervening act of a third person if that act was reasonably foreseeable. (Landeros v. Flood (1976) 17 Cal.3d 399, 411, 131 Cal.Rptr. 69, 551 P.2d 389;  see Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1236, 32 Cal.Rptr.2d 136.)   On the facts alleged, we cannot find that Gadams's molestation of appellant was unforeseeable as a matter of law.

E. The Negligence Per Se Count

The count for negligence per se is founded on the respondents' alleged statutory duty to report the various incidents of sexual misconduct involving Gadams to the authorities pursuant to the Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq., hereinafter “the Reporting Act”).

According to the Reporting Act, “child care custodians” (including school administrators) are required by law to report known or reasonably suspected incidents of child abuse to a “child protective agency” (which may include the police or sheriff's department, probation department, or welfare department).  (Pen.Code, §§ 11165.7, 11165.9, 11166.)   Failure to do so is a misdemeanor.  (Pen.Code, § 11172, subd. (e).)  If on investigation the county child protective agencies determine the report is not unfounded, they are required to forward the report of their own investigation to the State Department of Justice.  (Pen.Code, § 11169.)   The Department of Justice is required to maintain an index of all such reports and make such reports available under certain circumstances to the State Department of Social Services or to a county licensing agency which has contracted with the state for the performance of licensing duties.  (Pen.Code, § 11170, subd. (b)(3).)   In addition, the Department of Justice is required to notify a child protective agency filing such a report of any information in its index “which is relevant to the known or suspected instance of child abuse reported by the agency.”  (Pen.Code, § 11170, subd. (b)(1).)

Evidence Code section 669 is the codification of the principle of negligence per se.   It states in pertinent part:

“(a) The failure of a person to exercise due care is presumed if:

“(1) He violated a statute, ordinance, or regulation of a public entity;

“(2) The violation proximately caused death or injury to person or property;

“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;  and

“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”

In the instant case, there can be no doubt that appellant was “one of the class of persons for whose protection the [Reporting Act] was adopted.”   The act was intended to protect future as well as current child abuse victims, as is evidenced by the requirement that indexed reports be made available to local licensing agencies.   The principal issue before us, then, is whether the first amended complaint set forth sufficient factual allegations supporting the legal contention that respondents failed to report known or reasonably suspected incidents of child abuse.

“Child abuse” is defined in Penal Code section 11165.6 as including “sexual abuse,” which is in turn defined in section 11165.1, subdivision (a) as including a violation of one or more specific statutes, including Penal Code section 647a (annoying or molesting a child under 18 years of age).4

The crime of child annoyance or molesting does not require that the child be touched or even disturbed or irritated by the conduct.   All that the statute requires is that a person engage in acts directed at a minor “which would unhesitatingly disturb or irritate a normal person, if directed at such person” and that the acts were “motivated by an unnatural or abnormal sexual interest in” the victim.  (CALJIC No. 16.440 (1990 rev.) (5th ed. pocket pt.);   see generally People v. Thompson (1988) 206 Cal.App.3d 459, 253 Cal.Rptr. 564, in which this court upheld a conviction based on no touching and no verbal communication;  the defendant, in a car, followed a young girl on a bicycle, making facial and hand gestures to her).

Appellant contends her first amended complaint sufficiently alleges that the respondents knew or reasonably suspected that Gadams committed acts of child annoyance or molestation within the respondents' custody sufficient to trigger the reporting duty imposed by Penal Code section 11166, subdivision (a).   Because the allegations differ among the three separate sets of respondents, we must address them separately.

Regarding respondents Mendota Unified School District and Gilbert Rossette, the first amended complaint alleges that, while employed as a junior high school principal in the district, Rossette and the district knew “at a minimum” that Gadams “hugged female Junior High students, placed his arm(s) around female Junior High students, kept female students alone with him in his classroom after school, had been in ‘sexual situations' with more than one female student, gave back massages to female students while he was alone with them in the teachers lounge, [and] made sexual remarks to female students․”

The complaint alleges that respondents Cole, Tranquility High School District, Golden Plains Unified School District, and Tranquility Elementary School knew “at a minimum” that “parents of students complained that Gadams led a panty raid, made sexual overtures to students, sexual remarks to students, [and] that his actions toward students had ‘sexual overtones'․”

Mendota, Rossette, Golden Plains, Tranquility, and Cole argue that the complaint is insufficient because it does not state the ages of the alleged victims and fails to allege Gadams's intent.   Neither argument has merit.   The description of the alleged victims as students in public junior or senior high schools clearly implies that some, if not all, were under 18 years old.   As to intent, all that is required are facts known to the respondents which would give rise to a “reasonable suspicion” that Gadams's conduct violated Penal Code section 647.6.   Following the statutory command to construe appellant's pleading liberally (see Code Civ.Proc., § 452), we are satisfied the allegations are sufficient.

The allegations regarding respondents Muroc Joint Unified School District, David J. Malcolm, and Gary Rice are somewhat less direct than those against the other respondents.   The first amended complaint states that the Muroc defendants knew Gadams had been asked to resign after “informal complaints” were filed.  “It is believed that these defendants['] actions and failures to warn followed the filing of complaints, allegations and charges of sexual harassment․”   Further, Malcolm and Rice attended a formal school board meeting at which Gadams's “sexual harassment of female students and allegations regarding offensive and sexual touching of female students and ․ sexually suggestive remarks to students were discussed.”   As a result, these respondents forced Gadams's resignation at the school year end.

Muroc, Malcolm, and Rice challenge the allegations against them by referring to various definitions of “sexual abuse” appearing in Penal Code section 11165.1, subdivisions (b) and (c).   They argue that the allegation of “sexual harassment” does not equate to one of touching and does not fall within the definition of “sexual abuse.”   Their argument overlooks the provisions of section 11165.1, subdivision (a), which, as we have seen, includes violations of Penal Code section 647.6 as acts of “sexual abuse.”   While the allegation of “sexual harassment of female students” might be subject to a special demurrer for uncertainty, it sufficiently implies conduct violating Penal Code section 647.6 for purposes of surviving a general demurrer.   Further, we are not persuaded that the complaint's references to “allegations regarding offensive and sexual touching of female students and ․ sexually suggestive remarks to students” falls short of alleging the knowledge or reasonable suspicion requirement of Penal Code section 11166.   Respondents argue the complaint does not allege a factual basis for inferring they knew, or had an objectively reasonable basis for suspecting, the allegations were true.   Not so.   The complaint expressly alleges these respondents forced Gadams to resign because of the matters discussed at the board meeting, including the allegations of sexual touching and suggestive remarks to students.   A liberal construction of this allegation implies the reports made to the respondents were taken seriously by them and had sufficient substance to force the resignation.

Muroc, Malcolm, and Rice also argue that the Legislature did not intend Penal Code section 11166 to set a standard of conduct which, if not followed, would result in imposition of civil liability.   In view of Landeros v. Flood (1976) 17 Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389, the argument must be rejected.   In Landeros, the Supreme Court unanimously held that failure to comply with Penal Code section 11160 et seq., a statutory scheme nearly identical in structure to the Reporting Act but addressed to physical, rather than sexual, abuse, could form the basis of a negligence per se cause of action.  (17 Cal.3d at pp. 413–414, 131 Cal.Rptr. 69, 551 P.2d 389.)

Finally, respondents contend the fifth cause of action cannot be maintained because, (1) as a matter of law, appellant's injuries were not caused by the respondents' conduct, and, (2) respondents are statutorily immune from liability under Government Code sections 821.6 and 820.2.

We have previously discussed the causation question in connection with the negligent misrepresentation and fraud causes, and our conclusion there applies equally to this cause of action.

Neither of the statutes relied on by respondents as immunizing them from liability has any application here. Government Code section 821.6 provides immunity for a public employee “for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”   There is no allegation that any of the respondents instituted or prosecuted any judicial or administrative proceeding, and they have not cited any authority for the argument that the failure to perform a statutorily mandated function somehow falls within this statutory immunity.   Likewise, Government Code section 820.2, which deals with immunity for discretionary acts and omissions, appears inapplicable when the pleaded facts establish a mandatory duty to report.

On the facts alleged, respondents had a mandatory duty to report what they knew, or reasonably suspected, were acts of child abuse committed by Gadams.   The court should not have sustained the demurrer to the fifth cause of action without leave to amend.

F. The Title IX Count

Title IX (20 U.S.C. § 1681 et seq.) provides in pertinent part:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance․”  (20 U.S.C. § 1681, subd. (a).)

Title IX does permit students of a defined “educational institution” who are sexually harassed or molested by a teacher to sue that educational institution for damages.  (See Franklin v. Gwinnett County Public Schools (1992) 503 U.S. 60, 64–65, 76, 112 S.Ct. 1028, 1031–1032, 1038, 117 L.Ed.2d 208.)

However, nothing in the language of title IX, and in particular of 20 United States Code section 1681, suggests that such a cause of action could extend to educational institutions which have no direct relationship to the plaintiff.   Appellant makes no argument on appeal in support of this count, and her argument below lacked substance.   Accordingly, we conclude that respondents owed no duty to appellant under title IX.

G. Summary

Although the trial court correctly ruled that appellant's first (negligence), second (negligent hiring), and sixth (title IX violation) causes cannot be maintained, it erred in sustaining the demurrer without leave to amend as to the third (negligent misrepresentation), fourth (fraud), and fifth (negligence per se) causes.

DISPOSITION

The judgment is reversed with directions to vacate the order sustaining demurrers without leave to amend as to counts III, IV, and V of the first amended complaint.   Costs to appellant.

I concur with the majority's reasoning and conclusions as to the first (negligence), second (negligent hiring), and sixth (Title IX) purported causes of action of appellant's first amended complaint.   I respectfully dissent, however, from parts D and E of the majority opinion which conclude that appellant's first amended complaint states facts sufficient to constitute causes of action for negligent misrepresentation and fraud, and from part F of the majority opinion, which concludes that appellant's first amended complaint states facts sufficient to constitute a cause of action for negligence per se.

NO MISREPRESENTATION IS ALLEGED

The majority rely upon Restatement 2d, Torts, section 311, to find that appellant's allegations of negligent misrepresentation are adequately pleaded.  (See also Garcia v. Superior Court (1990) 50 Cal.3d 728, 734–735, 268 Cal.Rptr. 779, 789 P.2d 960.)   That section requires the defendant be “one who negligently gives false information to another.”   Similarly, the majority relies upon Restatement 2d, Torts, section 310, to find a valid cause of action stated for an intentional misrepresentation.  Section 310 similarly requires “an actor who makes a misrepresentation.”   For simplicity of discussion, I will hereinafter refer to both the “false information” requirement of section 311 and the “misrepresentation” requirement of section 310 by the term “misrepresentation.”   This necessary element appears to me to be entirely absent from the first amended complaint.

The respondents in this case consist of three groups of demurring defendants.

Defendant Gilbert Rossette is alleged to have acted on behalf of both himself and defendant Mendota Unified School District when he wrote a letter of recommendation for defendant Gadams in May of 1990.   The letter is attached to and expressly incorporated by reference into the first amended complaint.1  These defendants are alleged to have made “similar oral representations to [defendant] Livingston and others” (i.e., to have made representations “similar to” those made in the Rossette May 1990 letter of recommendation).

Defendant Richard Cole is alleged to have acted on behalf of himself, defendant Tranquility Elementary School, and defendant Golden Plains Unified School District, when he too wrote a letter of recommendation for Gadams in May of 1990.   Cole's letter is attached to and expressly incorporated by reference into the first amended complaint.2  These defendants are alleged to have made “similar oral representations to Livingston.”

Defendants David J. Malcolm and Gary Rice are alleged to have acted on behalf of themselves and defendant Muroc Joint Unified School District when they wrote a letter of recommendation for Gadams in March of 1991.   The letter is attached to and expressly incorporated by reference into the first amended complaint, although only Malcolm's name (and not Rice's) appears on it.3  These defendants are also alleged to have provided “oral representations and recommendations similar to those in” the letter “to Livingston and others.”

All three letters say positive things about Gadams. None of the three makes any negative comments about Gadams.   It is this latter aspect of the letters upon which the majority apparently relies to conclude that the letters are misrepresentations.   It is also this aspect of the letters about which the superior court judge spoke when he said “[t]he question is whether these districts have a duty to the plaintiff in this case, the victim, such that if it could be shown that they negligently authored letters of reference which negligently concealed or failed to disclose information that they had about this person's propensities․”

Nothing in the letters states that Gadams has no negative characteristics, or that no one has ever accused him of misconduct.   Nothing in the letters guarantees that Gadams would blamelessly or even competently perform any job which he might be offered.   Nor does the first amended complaint allege that respondents ever made any such representations.4

In my view appellant's first amended complaint is attempting to hold respondents liable not for any misrepresentation fraudulently or negligently made, but instead for having recommended Gadams for employment without disclosing in their recommendations any known or perceived deficiencies in Gadams' character or qualifications, or perhaps for having recommended him for employment at all.   This is not a “misrepresentation” or “false information” within the meaning of section 311 or section 310 of the Restatement.   Nor does the authority relied upon by the majority appear to support its reasoning and conclusion.

The majority cites comment “a” to Restatement 2d, Torts, section 529 for the proposition that “ ‘a statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.’ ”  (Maj. opn., p. 479.)   But the Scope Note to sections 525 through 549 points out that section 529 “deals only with the rules that determine the liability for pecuniary harm caused by fraudulent misrepresentations made for the purpose of influencing another's conduct to his pecuniary loss.”   That is not the situation we have here.   Indeed, if such a rule applied to the writing of letters of recommendation, every such letter ever written which mentioned no negative characteristic of the applicant would constitute a “false representation” except in those rare instances in which the applicant had no “unfavorable” characteristic to mention.

In Gutzan v. Altair Airlines, Inc. (3d Cir.1985) 766 F.2d 135, a job applicant (Farmer) told an employment agency (Romac) “that he had been incarcerated in Fort Leavenworth because, while he was stationed in Germany, his German girlfriend had charged him with rape, and that it was a policy of military courts to appease foreign women who made such charges.”   (Id. at p. 137.)   Farmer was hired by an employer (Wang) and raped a fellow employee (Gutzan).   Gutzan sued both the employer and the employment agency.   The employer settled.   Gutzan proceeded to trial against the employment agency only.   At trial, the employer's representative (Healy) testified that the employment agency's representative (Witkoski) “represented to him that Farmer's explanation had been verified by military officials.”  (Id. at p. 137.)   This was a misrepresentation.   In fact, no military official had verified Farmer's explanation.   The truth was that “[n]o one at Romac inquired into the incident which led to Farmer's rape conviction.”  (Ibid.)

In contrast to Gutzan, the first amended complaint in the present case makes no allegation that any respondent represented to Livingston (or to appellant) that accusations of misconduct had never been made against Gadams.   Nor is there any allegation that any respondent represented that accusations had been made and had been found to be meritless, but that in fact accusations had been made and had been found to have merit.

Nor does the majority's reliance on Illustration “9” in the “Comment” to section 311 of the Restatement appear to be apposite here.   Illustration “9” is described in the “Comment” to section 311 as an illustration of the applicability of clause (b) of subsection (2) of section 311.   Clause (2)(b) of section 311 pertains to negligence in the manner in which information is communicated.   Illustration “9” involves a company which inspects a boiler and “issues a certificate which, while correctly stating all the defects in the boiler, gives the misleading impression that the boiler is nevertheless safe.”   In the present case the respondents did not make any attempt at all to convey negative information about Gadams in their letters of recommendation.   They therefore did not communicate negative information about Gadams in a negligent manner.   What respondents did was to totally omit information which appellant contends should have been included in the letters.

The majority's attempt to characterize respondents' silence as a negligent misrepresentation appears to me to be an attempt to fit a square peg into a round hole.   A letter of recommendation is by its very nature an item which its author writes to help the subject of the letter to gain employment.   If a potential employer wishes to ask the author whether the job applicant has any known negative habits or behavioral tendencies, the potential employer can contact the author and ask the author.   Authors of letters of recommendation are not, and never have been, insurers of the integrity and occupational effectiveness of the persons those authors recommend for employment.

Although the majority opinion purports to review only “the duty issue” (maj. opn., p. 475), in actuality it does more than that.   Nothing in Restatement, 2d, section 310 or 311 mentions “duty” as an element of those torts.   If there is any “duty” involved in a violation of section 310 or 311, it is the duty to refrain from making a “misrepresentation” prohibited by section 310, or the duty to refrain from negligently giving “false information” as prohibited by section 311.   Whereas the trial court appears to have concluded (and correctly in my view) that no misrepresentation was made and that respondents had no affirmative duty to include in their letters of recommendation negative information about Gadams, the majority concludes that a misrepresentation has been adequately alleged in the first amended complaint.   I have no disagreement with the majority's making of a determination as to whether causes of action for violations of section 310 and 311 are adequately alleged.   That is our task upon review of the trial court's ruling, just as it was the trial court's task in the first instance.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)   But I disagree with the majority's conclusion that a misrepresentation has been adequately alleged in this pleading.

The majority opinion could have far reaching consequences. A letter of recommendation written years before any alleged inappropriate behavior may be used to hold the writer accountable.   In the absence of any express misrepresentation or exclusion of information in response to direct inquiry I see no breach of duty.   I would affirm the sustaining of the demurrer as to the third and fourth purported causes of action.

NEGLIGENCE PER SE

Even assuming the majority is correct that a teacher or school administrator who has violated the Penal Code section 11166 duty to report a known or reasonably suspected instance of child abuse to a child protective agency (see also Pen.Code, § 11166.5) may be held liable in tort to a subsequent victim of the same abuser, appellants' fifth purported cause of action for negligence per se fails to state facts sufficient to demonstrate a violation of Penal Code section 11166 by these respondents.

Penal Code section 11166 provides in relevant part that “any child care custodian ․ who has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible․”

The first amended complaint makes no allegation that any respondent had knowledge of or observed such a child.   The pleading does not attempt to state facts which might even remotely help to identify such a child.   Nor does it appear to attempt to allege any “child abuse” committed by Gadams prior to the alleged February 1, 1992, sexual touching of appellant at the Livingston Middle School.

“Child abuse” is defined in section 11165.6 to include not only “physical injury which is inflicted by other than accidental means on a child by another person” but also “the sexual abuse of a child.”  “Sexual abuse” is defined in section 11165.1 to mean “sexual assault” or “sexual exploitation.” 5  These latter two terms are further defined with particularity in section 11165.1.   No act of sexual assault or sexual exploitation is alleged in the pleading.

For respondents Richard Cole, Tranquility Elementary School, Golden Plains Unified School District, David Malcolm, Gary Rice and Muroc Joint Unified School District, the majority concludes that allegations that these respondents knew that complaints had been made about Gadams are sufficient to constitute a reasonable suspicion that Gadams had committed child abuse.   I disagree.   The reporting requirement of Penal Code section 11166 is triggered when a child care custodian “has knowledge of or observes a child ․ whom he or she knows or reasonably suspects has been the victim of child abuse.”   The statute does not require the reporting of all gossip heard by a child care custodian.   The first amended complaint contains no allegation that any minor ever told any respondent that Gadams had abused, sexually assaulted or molested him or her, or that any respondent ever observed any such abuse.

As for respondents Gilbert Rossette and Mendota Unified School District, the majority relies upon allegations that these respondents “knew” that Gadams “hugged female Junior High students” and “gave back massages to female students.”   It then further relies on the doctrine of liberal construction of pleadings to infer that respondents knew that Gadams had abused children.   The reasoning appears to be that (1) a child care custodian must report known child abuse (Pen.Code, § 11166(a)), (2) “child abuse” includes “sexual abuse of a child” (Pen.Code, § 11165.6), (3) “sexual abuse” includes “sexual assault” (Pen.Code, § 11165.1(a)), (4) “sexual assault” includes child molestation as defined in Penal Code section 647.6 (Pen.Code, § 11165.1(a)), and (5) hugging a child or rubbing a child's back is an act “which would unhesitatingly disturb or irritate a normal person, if directed at such person” and is an act which “was motivated by an unnatural or abnormal sexual interest in” the hugged or massaged child (CALJIC No. 16.440 (1990 Revision)), and is therefore a violation of Penal Code section 647.6.   In my view, the majority infers too much in an effort to rescue appellant from a conclusory and inadequate attempt to allege a violation of Penal Code section 11166.   We are not called upon to decide whether such conduct is appropriate, rather, we must decide whether it falls within statutorily proscribed conduct.   The pleading does not allege proscribed conduct.

Because no facts constituting a violation of Penal Code section 11166 have been alleged, the first amended complaint does not state facts constituting a cause of action for negligence per se against these respondents, even if the majority is correct in its conclusion that a violator of section 11166 may be held liable to a second victim for failing to report the abuser's known or reasonably suspected abuse of a first victim.

I would affirm the judgment.

FOOTNOTES

1.   The record does not indicate that the State of California has appeared in the action.   It is not a party to the appeal and we will ignore its presence as a named defendant.

2.   The Restatement's drafters included sections 310 and 311 in division two, dealing with liability for negligence, rather than in division four, dealing with misrepresentation.   In Garcia v. Superior Court, supra, 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960, the state Supreme Court discussed section 311 in examining “whether plaintiffs have stated a cause of action for negligent misrepresentation involving a risk of physical harm.”  (Id. at p. 735, 268 Cal.Rptr. 779, 789 P.2d 960.)   We see nothing in the Garcia opinion suggesting that the pigeon-holing of the theory of liability expressed in section 311 under the rubric of negligence, rather than that of misrepresentation, has any consequence.   Because appellant has urged the application of those sections in her negligent misrepresentation and fraud causes of action, and in light of the Supreme Court's discussion in Garcia, we deal with them under the misrepresentation rubric.

3.   For the trial court's guidance, the Supreme Court stated that “the statutory immunity from liability for misrepresentations (Gov.Code, §§ 818.8 and 822.2) does not apply to negligent misrepresentations involving a risk of physical harm.”  (Garcia v. Superior Court, supra, 50 Cal.3d at p. 738, fn. 8, 268 Cal.Rptr. 779, 789 P.2d 960.)

4.   Penal Code section 647a has been renumbered as section 647.6 and will hereafter be referred to by the new designation.  (See Stats.1987, ch. 1418, § 4.3, pp. 5229–5230.)

1.   The Rossette letter states:“I am privileged to write a letter of recommendation on behalf of Robert Gadams.   Mr. Gadams has been an active member in our community since 1985, the year he was hired to teach Math at McCabe Junior High.   He is dedicated, hard-working, dependable, reliable, and more importantly, he possesses a strong desire to excel.   He plans thoroughly, executes completely and evaluates effectively.“Mr. Gadams' biggest asset, however, is the genuine concern towards the students and the people he is affiliated with.   He is a ‘perfectionist [,’] and concentrates on ‘getting the very best’ from everyone.   He is enthusiastic, energetic and has outstanding rapport with everyone.   He is very active in community activities, and will not hesitate to volunteer his services for any beneficial event.“Mr. Gadams taught Math at McCabe Junior High from 1985–88.   He was also Director of Activities, Yearbook advisor, Student Council advisor and coached various school athletic teams.   He coordinated our after-school dances and was actively involved with the school/community recreational programs.“I wouldn't hesitate to recommend Mr. Gadams for any position!   Please don't hesitate to call if I can be of further assistance.”

2.   The Cole letter states:“I have worked with Bob Gadams in various capacities within the District the past five years.   Since 1986, Bob has taught evening classes in E.S.L. and general education.   His enthusiasm, organization and pleasant personality consistently generated a student waiting list, no matter what or where the assignment.“In 1988, we recruited Bob to serve as the District Projects Director and comprehensive high school Students Activity Director.   Here again, his multifaceted talents were in evidence.   Bob was a key player in guiding the district through a successful Coordinated Compliance Review last year.“Bob served as Principal of our summer school last year.   The session ended fiscally and academically strong.   Being a Business Major enabled him to readily grasp the budgeting process necessary to operate a sound financial public education system.“Bob's position is now Principal of one of the district's two continuation high schools.   One of his more recent assignments was to chair and prepare the Proposition 9B required ‘School Report Cards' for both continuation schools.   The initiative and enthusiasm he brought to this program has been appreciated.“Bob sets high standards and has the ability to achieve them.   Considering his experience at the elementary, high school and adult education levels, I would recommend him for almost any administrative position he wishes to pursue.”

3.   The Malcolm letter states:“Mr. Robert Gadams is the assistant principal at Boron Jr./Sr. High School.   He is an upbeat, enthusiastic administrator who relates well to the students.   As principal, I appreciate his ability to look at a given situation from various perspectives and choose an appropriate course of action.   I have full confidence in Mr. Gadams administrative abilities and feel comfortable leaving him in charge of the campus in my absence.“As disciplinarian, Mr. Gadams has handled referrals in an efficient, fair and timely manner.   He has instituted a lunch time detention, Saturday School and a semester exam option.   Our absenteeism and tardies have both been cut by over fifty percent from last year.   Due in large part to Mr. Gadams efforts, our campus is a safe, orderly and clean environment for students and staff.“Mr. Gadams does an outstanding job of handling assemblies and large group programs.   His work with the ASB has energized the student activities program.   He works well with group sponsors and the athletic director in coordinating the co-curricular and extra-curricular programs.“I recommend Mr. Robert Gadams for an assistant principalship or equivalent position without reservation.”

4.   The allegations against respondents Rossette and Mendota Unified School District are as follows:“On or about May 17, 1990, defendant Gilbert Rosette, [sic ] acting both on behalf of himself individually and on behalf of Mendota Unified School District and as Principal of McCabe Junior High School in the Mendota District, and Does 1–100, inclusive, provided a detailed recommendation to the Educational Placement Office at Fresno Pacific College knowing said recommendation would be presented to future potential employers including but not limited to Livingston Union School District and other California public school employers and defendants made similar oral recommendations to Livingston and others.   No warning to other schools, to the State of California or to any placement office was issued.   That recommendation evidencing a failure to warn as well, is attached to this complaint as Exhibit A hereto and incorporated by reference as is fully set forth herein.   At the time defendants issued the recommendation and failed to warn of Gadams propensities as referenced in Exhibit A attached hereto, these defendants were acting and known to be acting in a non-commercial, social service area providing information in a selective, misleading and negligent manner to a placement source and thereby to California public schools whereby when said information would be and was acted upon, Gadams would most probably be and was again placed in a position of trust as an educator of California children where he could and did continue to abuse them.   Further, at the time of the recommendation and failure to warn, Rosette [sic ] and Mendota knew, at a minimum, that in the time frame of from August 1985 to July 1988 they had ‘uneasy feelings' about defendant Gadams, they knew that Gadams hugged female Junior High students, placed his arm(s) around female Junior High students, kept female students alone with him in his classroom after school, had been in ‘sexual situations' with more than one female student, gave back massages to female students while he was alone with them in the teachers lounge, made sexual remarks to female students and other information that would render Gadams unfit to maintain a position where he was responsible for the welfare and education of children.   Finally the recommendations and failure to warn were made with actual malice, corruption and actual fraud since these defendants knew the true facts regarding Gadams and knew that an injury to a child by Gadams would probably result.”Similar allegations are made against the Cole respondents and the Malcolm respondents.

5.   Penal Code section 11165.1 states:“As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following:“(a) ‘Sexual assault’ means conduct in violation of one or more of the following sections:  Section 261 (rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b) of Section 288 (lewd or lascivious acts upon a child under 14 years of age), 288a (oral copulation), 289 (penetration of a genital or anal opening by a foreign object), or 647a (child molestation).“(b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:“(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.“(2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.“(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.“(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities;  interactions with, or demonstrations of affection for, the child;  or acts performed for a valid medical purpose.“(5) The intentional masturbation of the perpetrator's genitals in the presence of a child.“(c) ‘Sexual exploitation’ refers to any of the following:“(1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).“(2) Any person who knowingly promotes, aids, or assists, employ, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct.   For the purpose of this section, ‘person responsible for a child's welfare’ means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.“(3) Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3.”  (Fn. omitted.)

THAXTER, Associate Justice.

VARTABEDIAN, J., concurs.

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