Judge: Carolyn M. Caietti, Case: 37-2023-00013603-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00013603-CU-PO-CTL JOHN DS ROE VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant County of San Diego's Demurrer to Plaintiff's First Amended Complaint is OVERRULED IN PART (on grounds of misjoinder and to the tenth (negligence), eleventh (negligent hiring and supervision) and twelfth (negligent training) causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to the sixth (Unruh Act), eighth (sexual harassment/Civ. Code, § 51.9), ninth (constructive fraud) and the (mislabeled) twelfth (negligent infliction of emotional distress) causes of action).

The Court will clarify with the parties the status of the third cause of action for sexual harassment in violation of Civil Code section 51.9 as it appears to be a duplicate of the eighth cause of action.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Joinder The County first demurs to the FAC 'on the grounds the six Plaintiffs are improperly joined. Specifically, Plaintiffs' claims do not arise out of the same transaction, occurrence or series of transactions or occurrences as required by Code of Civil Procedure section 478.' (ROA 16 – Notice of Demurrer, at p. 2:8-10.) Technically, the demurrer is defective. 'A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.' (C.C.P., § 430.60.) County did not 'distinctly specify' C.C.P. section 430.10(d), which allows for demurrer on grounds of 'misjoinder of parties.' Further, C.C.P. section 478 is currently repealed.

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3029878  41 CASE NUMBER: CASE TITLE:  JOHN DS ROE VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00013603-CU-PO-CTL Even if the Court considers this ground for demurrer and assuming County intended to cite to C.C.P.

section 378, which allows for joinder of plaintiffs, County's position is not persuasive. First, it requests dismissal as to each individual officer. But this demurrer is by County only. There is no record of Plaintiffs serving the individual officers with service of process. County also does not provide any legal authority the Court can dismiss the non-appearing individual officers based on misjoinder. (See, Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198 (a demurrer on grounds of misjoinder can be successfully used only by the persons improperly joined).) Second, under the standards on demurrer, joinder of County is appropriate. C.C.P. section 378 provides for joinder of more than one plaintiff in a single action under certain circumstances. It allows people to join in one action as plaintiffs if '[t]hey assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.' (C.C.P., § 378(a)(1).) 'It is not necessary that each plaintiff be interested as to every cause of action or as to all relief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.' (Id., at subd. (b).) Permissive joinder standards must 'be liberally construed so as to prevent the diseconomy of a 'multiplicity' of cases.' (Petersen v. Bank of America Corp. (2014) 232 Cal.App.4th 238, 249 (Petersen).) To that end, the 'same transaction' or 'series of transactions' component is satisfied if there is any factual relationship between the claims joined. (Ibid.) All parties cite Moe v. Anderson (2012) 207 Cal.App.4th 826. There, two patients alleged separate sexual assaults committed by a physician. The court held joinder was not appropriate as to the physician since the assaults involved 'separate and distinct' events 'during separate and distinct time periods.' (Id., at p. 833.) However, the claims against the medical group/physician's employer was appropriate since the same issue of negligent supervision and hiring was common to both plaintiffs and would involve the same evidence against a single defendant. (Id., at p. 836; see also Peterson, supra, 232 Cal.App.4th at p. 252-53 (upholding joinder of nearly 1000 plaintiffs who sued a mortgage lender despite the existence of separate transactions over several years, varying forms of loan impropriety and disparate damages because of allegations of common business practices and issues of liability).) Similarly, here, it is alleged County was aware of all of the individual officers' conduct during Plaintiffs' confinement at County facilities. (FAC, at ¶ 4.) Further, County, inter alia, did not take adequate corrective and preventative action, ratified and endorsed the abuse, failed to hire, retain, train and supervise the individual defendants and ignored and concealed the abuse. (E.g., FAC, at ¶¶ 21, 29-31, 125-155.) In liberally construing the FAC, assuming the facts are true and in liberally construing the joinder standards to prevent diseconomy, the demurrer is OVERRULED on this ground.

Sixth Cause of Action – Unruh Act The sixth cause of action for violation of the Unruh Act is SUSTAINED WITHOUT LEAVE TO AMEND.

Under the Unruh Act all persons in California are free and equal and 'entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.' (Civ. Code, § 51(a).) In order to be a 'business establishment' under the Unruh Act, an entity must effectively operate as a business or a commercial enterprise or engage in behavior involving sufficient businesslike attributes.' (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 669, 681 (quotations omitted) (holding school district was not a 'business establishment' for purposes of the Unruh Civil Rights Act).) Here, the FAC does not allege – and Plaintiffs do not point to - any facts County is a 'business establishment' as defined by Brennon B. Plaintiffs also do not identify how they could amend the FAC to cure this defect. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect).) Eighth Cause of Action – Sexual Harassment The eighth cause of action is for violation of Civil Code section 51.9, which prohibits 'pervasive and severe' sexual harassment in business, service and professional relationships outside the workplace.

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3029878  41 CASE NUMBER: CASE TITLE:  JOHN DS ROE VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00013603-CU-PO-CTL (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) County argues Plaintiffs did allege sufficient facts to establish vicarious liability as Plaintiffs must establish the employee's conduct was committed within the scope of their employment. (Gov. Code, § 815.2(a).) In opposition, Plaintiffs argue employers may be held vicariously liable if the act has a casual nexus to the employee's work. (Opp., citing M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129 & Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) Neither M.P., nor Lisa M. concerned Civil Code section 51.9.

Under the standard on a demurrer, sufficient facts to establish vicarious liability are alleged. Ordinarily, whether an employee acted within the scope of employment presents a question of fact. (M.P., supra, at p. 129.) In Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the California Supreme Court held a police officer's rape of a women he detained while on duty was 'not so divorced from his work that, as a matter of law, it was outside the scope of employment.' (Mary M., supra, 54 Cal.3d at p. 214.) The Court reasoned the danger an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law and inherent in this formidable power is the potential for abuse. (Id., at p. 216-218.) Here, the FAC alleges sufficient facts the acts were not outside the scope of employment as the individual officers acted under color of authority while on duty, in the course and scope of their employment, while Plaintiffs were confined and committed under County's control and the alleged abuse occurred at County facilities.

However, the recent Fourth District, Division One case of K.M. v. Grossmont Union High School District (2022) 84 Cal.App.5th 717, rev. withdrawn (Feb. 15, 2023) changes the analysis. In K.M., a student made a section 51.9 claim against a school district based on allegations a public-school employee sexually harassed him. The appellate court ruled the trial court properly sustained the school district's demurrer without leave to amend.

First, although not raised by the parties here, the court held a public school district is not a 'person' within the meaning of Civil Code section 51.9, thus the claim was not cognizable against the district. The court reasoned 'a public school district is a political subdivision of the State of California,' and there was no indication the California legislature intended to impose section 51.9 liability against public entities.

(Id., at p. 752 (internal citation omitted).) Here, Plaintiffs allege County is a governmental (public) entity; and not a 'person'.

Second, the K.M. court found the plaintiffs' Government Code sections 815.2 and 820 vicarious liability argument did not support liability under Civil Code section 51.9. (K.M., supra, at p. 756-57.) Third, Plaintiffs' opposition alludes to ratification, but K.M. found principles of ratification do not apply to a section 51.9 cause of action against public entities. (K.M., supra, at p. 757.) The Court welcomes oral argument on the impact of K.M. to this matter.

For these reasons, the County's demurrer to the cause of action for violation of Civil Code section 51.9 is SUSTAINED WITHOUT LEAVE TO AMEND.

Ninth Cause of Action – Constructive Fraud The demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Although the Notice of Demurrer does not demurrer to the ninth cause of action, all parties briefed the issue and the Court will consider the merits. Constructive fraud requires a fiduciary or confidential relationship.

(Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) Here, the FAC does not allege any facts revealing a fiduciary or confidential relationship. At most, Plaintiffs allege County acted in loco parentis 'like a teacher would in an academic situation and/or other qualified institutions for correction and rehabilitation of juveniles, thus establishing a confidential, fiduciary and special relationship with Plaintiffs.' (FAC, at ¶ 101.) Plaintiffs do not provide any case law supporting this Calendar No.: Event ID:  TENTATIVE RULINGS

3029878  41 CASE NUMBER: CASE TITLE:  JOHN DS ROE VS COUNTY OF SAN DIEGO [IMAGED]  37-2023-00013603-CU-PO-CTL example and application or that a governmental agency like County operated in a fiduciary or confidential relationship with Plaintiffs. Plaintiffs also do not identify any facts they could allege to cure this defect.

Tenth Cause of Action – Negligence The Notice of Demurrer includes the tenth cause of action for negligence. There is no discussion in the memorandum. Thus, to the extent County demurrers to the tenth cause of action for negligence, the demurrer is OVERRULED.

Eleventh Cause of Action – Negligent Hiring and Supervision & Twelfth Cause of Action – Negligent Training The eleventh and twelfth causes of action (FAC, at ¶¶ 124-146) states sufficient facts to constitute negligent hiring and supervision and negligent training. Contrary to County's argument, a governmental entity may be vicariously liable under Government Code section 815.2 for the negligence of its employees in hiring, supervising and retaining an employee. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 (concluding a public school district may be vicariously liable for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student).) County relies in part on de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, but as explained by the Supreme Court in C.A., supra, these facts are distinguishable. In de Villers, no one in the coroner's office had the responsibility, within the scope of their employment, to ensure employees did not use laboratory poison to murder their relatives; thus, Government Code section 815.2 'did not come into play.' (C.A., supra, at p. 874.) Further, the Court explained, in the absence of such a special relationship, a toxicologist's supervisors and coworkers owed her husband no duty to prevent his murder, defeating public entity liability under section 815.2.

Here, County does not meet its burden of showing the absence of a similar special relationship between its officers and the plaintiffs. Thus, the demurrer to the eleventh and twelfth causes of action are OVERRULED.

Twelfth Cause of Action – Negligent Infliction of Emotional Distress The demurrer to the (mislabeled) twelfth cause of action for negligent infliction of emotional distress is SUSTAINED WITHOUT LEAVE TO AMEND. Negligent infliction of emotional distress and negligence are the same cause of action with the same elements, with the former a subset of the latter. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) It does not appear from the allegations that the negligence cause of action is any different than their negligent infliction of emotional distress cause of action and Plaintiffs do not argue any differences. Thus, the negligence cause of action is duplicative and unnecessary. (See, Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 (ruling demurrer properly sustained to duplicative negligence cause of action where such pleading 'adds nothing to the complaint by way of fact or theory').) For these reasons, the demurrer is OVERRULED IN PART AND SUSTAINED IN PART WITHOUT LEAVE TO AMEND.

Concluding Orders Defendant County of San Diego is ordered to file and serve an answer consistent with this ruling by December 15, 2023.

The Case Management Conference remains on calendar.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant County is ordered to serve written notice of the Court's final ruling on all appearing parties by December 5, 2023.

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