holding “defendants . . . made positive assertions . . ., assertions [that were] deceptively incomplete because defendants knowingly concealed material facts . . . .” Id. at 592 .
How later courts described this case
- holding “defendants . . . made positive assertions . . ., assertions [that were] deceptively incomplete because defendants knowingly concealed material facts . . . .” Id. at 592 .
- "[Hjaving volunteered ... information, defendants were obliged to complete the picture by disclosing material facts regarding charges and complaints of [the employee’s] sexual improprieties.”
- holding that defendants’ letters of recommendation “constituted affirmative representations” that “were false and misleading”
- holding that a party is “obliged to disclose all other facts which ‘materially qualify’ the limited facts disclosed.”
Written by the judges who cited it.
The opinion
KENNARD, J., Concurring and Dissenting.
I concur with and join in the majority opinion with the exception of part II.B. (The Negligence Per Se *1088 Count) and that portion of part III. (Conclusion) reversing the Court of Appeal’s judgment as to count 5 (negligence per se) and directing the Court of Appeal to affirm the trial court’s order sustaining defendant’s general demurrer to count 5. Unlike the majority, I conclude that plaintiff has adequately pleaded a cause of action for negligence under the doctrine of negligence per se.
The theory of count 5 of plaintiff’s complaint is that the three defendant school districts that formerly employed Robert Gadams, the vice principal who sexually molested plaintiff, violated the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.; hereafter the Reporting Act) by failing to report to the proper authorities Gadams’s prior incidents of sexual misconduct with students, and that this statutory violation renders them liable under the doctrine of negligence per se for the damages she suffered as a result of her molestation by Gadams.
To plead a cause of action for negligence under the doctrine of negligence per se, a plaintiff must allege these elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to the plaintiff; (3) the death or injury resulted from an occurrence of the kind that the statute, ordinance, or regulation was designed to prevent; and (4) the plaintiff belonged to the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Evid. Code, § 669, subd. (a).) Here, the majority concludes that count 5 of plaintiff’s complaint fails to satisfy the last of these requirements because, as a matter of law, plaintiff does not belong to the class of persons for whose protection the Reporting Act was adopted. I disagree.
The Reporting Act states its legislative purpose: “The intent and purpose of this article is to protect children from abuse.” (Pen. Code, § 11164, subd. (b).) The Reporting Act does not state that its purpose is to protect from abuse “some children” or only “children within the care and custody of the reporting party.” No such qualification appearing in the text of the statute, this court should not insert such a qualification under the guise of statutory construction. (Code Civ. Proc., § 1858.) Instead, this court should accept at face value the Legislature’s simple, unqualified statement that the Reporting Act is meant “to protect children from abuse,” and it should construe the intended protected class broadly to include all children who foreseeably could be protected from abuse by compliance with its provisions.
Assuming the allegations of plaintiff’s complaint are true, as we are required to do at this stage of the proceeding, plaintiff is within the protected class of children who foreseeably could have been protected from abuse had *1089 defendants complied with the requirements of the Reporting Act. Had defendants reported Gadams’s prior acts of sexual misconduct with students, it is reasonably probable that Gadams would have been criminally prosecuted or that his teaching credential would have been suspended or revoked, as a result of which he would never have been employed in the position by means of which he was able to molest plaintiff.
In this regard, I agree with the analysis of the Court of Appeal, which stated: “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 majority asserts that construing the class to be protected by the Reporting Act as including children, like plaintiff, who are later victimized by the same abuser “would impose a broader reporting obligation than the Legislature intended.” (Maj. opn., ante, at p. 1087.) This is just not so. The scope of the reporting obligation remains the same regardless of whether future abuse victims are considered to be within the protected class. The composition of the protected class affects the scope of a reporting party’s potential liability, but it has no effect on the scope of the reporting obligation.
Accordingly, I would permit plaintiff to proceed on the negligence per se theory embodied in count 5 of her complaint.
Baxter, J., and Werdegar, J., concurred.
On February 26, 1997, the opinion was modified to read as printed above.