Judge: Ashfaq G. Chowdhury, Case: 23GDCV00651, Date: 2024-01-26 Tentative Ruling
Case Number: 23GDCV00651 Hearing Date: January 26, 2024 Dept: E
DEMURRER WITH MOTION TO STRIKE
[CCP
§430.10 et. seq.; CCP § 436]
Date: 1/26/24
Case No: 23GDCV00651
Trial Date: None
Set
Case Name: Dianelly Ervin, et al. v. Brett Mohr, et
al.
Moving
Party: Defendant Southern California Conference of Seventh-Day Adventists
dba Glendale Adventist Academy
Responding
Party: Plaintiff J.P., a minor
through Guardian Ad Litem Dianelly Ervin, and Anahi Pardo
Pleading filed on: May
30, 2023
Demurrer filed on: November
6, 2023
Pleading served on: June 21, 2023
Meet and Confer? Ok
RELIEF REQUESTED:
Sustain demurrer
to first, second, third, and fourth causes of action in plaintiffs’ First
Amended Complaint for failure to state sufficient facts to constitute a cause
of action.
CAUSES OF ACTION: from FAC
1) Negligent
Supervision (By Plaintiff J.P against Defendants Glendale Adventist Academy and
DOES 1 through 10, Inclusive)
2)
Negligent Supervision (By Plaintiff A.P. against Defendants
Academy and DOES 1 through 10, Inclusive)
3)
Intentional Infliction of Emotional Distress (By Plaintiff J.P
against Defendants MOHR, Academy and DOES 11 through 30, Inclusive)
4)
Intentional Infliction of Emotional Distress (By Plaintiff A.P.
against Defendants MOHR, Academy and DOES 11 through 30, Inclusive)
SUMMARY OF FACTS:
During the 2019 school year, Mohr
engaged in discussions with some students about anal sex, oral sex, “regular
sex,” masturbation and sex preferences in the presence of other students,
including J.P. and A.P., who were uncomfortable by discussions that were not
part of the class curriculum.
MEET AND CONFER
A party
filing a demurrer “shall meet and confer in person or by telephone with the
party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd.
(a).) “The parties shall meet and confer at least five days before the date the
responsive pleading is due. If the parties are not able to meet and confer at
least five days prior to the date the responsive pleading is due, the demurring
party shall be granted an automatic 30-day extension of time within which to
file a responsive pleading, by filing and serving, on or before the date on
which a demurrer would be due, a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41,
subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to
overrule or sustain a demurrer. (Id., §430.41(a)(4).)
Defendants
submit the declaration of Jon Dagget who states that he sent Plaintiff’s
counsel multiple meet and confer letters, but the parties could not reach an
agreement. The letters show the basis for Defendants’ demurrer and the
deficiencies in the complaint and FAC. Therefore, the meet and confer
requirement has been met.
JUDICIAL NOTICE
Defendant’s
request for judicial notice of search for case by Defendant Name performed on
November 3, 2023 at 10:18 am is GRANTED pursuant to Evidence Code section 452.
ANALYSIS:
Demurrer
Legal
Standard
A demurrer
for sufficiency tests whether the complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The
court “treat[s] the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law ....” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters; therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.)
The only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
The general
rule is that the plaintiff need only allege ultimate facts, not evidentiary
facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All
that is required of a plaintiff, as a matter of pleading ... is that his
complaint set forth the essential facts of the case with reasonable precision
and with sufficient particularity to acquaint the defendant with the nature,
source and extent of his cause of action.” (Rannard v. Lockheed Aircraft
Corp. (1945) 26 Cal.2d 149, 156- 157.)
On demurrer,
a trial court has an independent duty to “determine whether or not the ...
complaint alleges facts sufficient to state a cause of action under any legal
theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)
Demurrers do not lie as to only parts of causes of action, where some valid
claim is alleged but “must dispose of an entire cause of action to be
sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally it is an abuse of discretion to sustain a demurrer without
leave to amend if there is any reasonable possibility that the defect can be
cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
First and Second Causes of Action -
Negligent Supervision
The elements of negligent hiring,
supervision, or retention of employee are 1) employer defendant hired employee,
2) employee was or became unfit or incompetent to perform the work for which
she was hired, 3) employer defendant knew or should have known that employee
was or became unfit or incompetent and that this unfitness or incompetence
created a particular risk to others, 4) employee’s unfitness or incompetence
harmed plaintiff, and 5) that employer defendant’s negligence in hiring,
supervising, or retaining employee was a substantial factor in causing
plaintiff’s harm. (CACI No. 426.)
“Liability [for negligently
hiring, supervising, or retaining an unfit employee] is based upon the facts
that the employer knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “[T]he cornerstone of a
negligent hiring theory is the risk that the employee will act in a certain way
and the employee does act in that way.” (Id. at p. 1055.)
Defendants concede that Glendale had a duty to protect students
against foreseeable acts of harm. However, Defendants deny that Mohr’s alleged
conduct was a foreseeable risk of causing injury to students and that the
discussions were extreme or distressing enough to be regarded as a breach of
the duty of care. Defendants state the risk of harm to Plaintiffs was
unforeseeable, and the duty to protect Plaintiffs against harm was not
triggered by Mohr’s topics of discussion.
The FAC alleges as follows:
Mohr
was arrested in 2021 on multiple charges of child sexual abuse. In December
2021, Mohr pleaded nolo contendere to, and was convicted of, four
charges of lewd and lascivious conduct with a child under 14 years of age and
one charge of continuous sexual abuse of a child. Mohr is currently serving a
lengthy sentence in state prison and is a registered sex offender.
Plaintiffs
are informed and believe that Mohr had been arrested approximately a decade
prior for lewd conduct towards a minor student at the Academy and that the
Academy was aware of the facts and circumstances underlying the arrest. Mohr
nevertheless was retained as an employee of the Academy thereafter, and
continued to teach there until his February 2021 arrest.
Mohr
failed to cease or desist his lewd, manipulative and unacceptable conduct.
Instead, he made numerous sexual and sexualized remarks and comments, unrelated
to his classes or teaching subject matter, during school on a continuous
ongoing basis towards various Academy students under varying circumstances,
when the students were alone or with others. MOHR also proceeded to groom and
molest several of his minor students at the Academy in the decade between his
arrests, including those leading to his conviction.
(FAC ¶¶ 12-13.)
Plaintiffs sufficiently allege that Glendale knew or should have
known of Mohr’s past criminal history, particularly that he was prone to engage
in inappropriate sexual actions.
The judicially noticed records do not prove the falsity of these
allegations as the records do not specify what charges Mohr was charged with
nor whether or not he was actually convicted.
The Court finds that given this prior history, the risk of harm
was foreseeable to Glendale and Glendale’s hiring and retention of Mohr was a
substantial factor in causing Plaintiffs harm. As a result of Defendants’
conduct, Plaintiffs allege they “required medical and psychological treatment,
counseling and care, and will continue to require said treatment and care for
an extended period of time. Plaintiff[s] [are] informed and believes, and
thereon alleges, that said injuries will result in some permanent disability to
Plaintiff[s], in an amount to be set forth in accordance with California Code
of Civil Procedure Section 425.11. (FAC ¶¶ 25, 35.)
Although the alleged underlying actions by Mohr themselves may not
considered extreme and outrageous (for purposes of IIED claim), Mohr’s conduct and
Glendale’s failure to intervene could have resulted in harm to Plaintiffs.
The Court OVERRULES the demurrer
to the first and second causes of action.
Third and Fourth Causes of Action
- Intentional Infliction of Emotional Distress
“In order to state a cause of
action for intentional infliction of emotional distress a plaintiff must show:
(1) outrageous conduct by the defendant; (2) the defendant's intention of
causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and (4)
actual and proximate causation of the emotional distress by the defendant's
outrageous conduct.” (Trerice v. Blue Cross of California (1989) 209
Cal.App.3d 878, 883.) “While the outrageousness of a defendant's conduct
normally presents an issue of fact to be determined by the trier of fact
[citation], the court may determine in the first instance, whether the
defendant's conduct may reasonably be regarded as so extreme and outrageous as
to permit recovery.” (Ibid.)
On review of the FAC, the Court
finds that the pleading does not sufficiently plead a cause of action for IIED.
The FAC alleges that during Plaintiffs’ Biology class with Mohr in 2019, Mohr
“set up a red cup in his Biology classroom for students to drop in written
questions, whether those questions pertained to class subjects or not. Mohr
engaged in discussions with some students about anal sex, oral sex, “regular
sex,” masturbation and sex preferences in the presence of other students,
including J.P. and A.P., who were discomfited by discussions which were not
part of the class curriculum.
Plaintiffs noted that Mohr would
talk about inappropriate subjects, then tell his students not to mention those
discussions to “anyone else.” (FAC ¶ 5.)
While a close call, these
allegations cannot be classified as “extreme or outrageous conduct,” in the
Court’s view.
Plaintiffs argue that Mohr was
clearly not acting in his role as a Chemistry, Biology, and Anatomy teacher,
and that Mohr’s sexual discussions with young teen children without parental
consent would reasonably result in disgust and anger from a religious
community. However, Plaintiffs provide no authority to support this assertion. Plaintiffs
agree that the standard for determining liability in IIED claims is whether
“conduct has been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” (Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)
(emphasis added.)
In these alleged circumstances, it
does not appear obviously unreasonable in inappropriate for a biology or
anatomy teacher to engage in discussions regarding the human body when it is a
part of the curriculum and teaching material.
While it may be unusual to engage
in these discussions aside from the teaching course during class time, the
allegations as they stand do not appear to constitute extreme and outrageous
conduct. Given that the FAC states the topics of these conversations at a
general level without going into the specifics of the discussions, the Court finds
that the facts are insufficient to satisfy an IIED claim.
The Court’s tentative is to
SUSTAIN the demurrer to the FAC, but the Court will hear argument.