Judge Daniel M. Crowley, Case Number: 24STCV22903, Date: 2024-12-31 Tentative Ruling

Defendant Los Angeles Unified School District’s demurrer to Plaintiff R.E.’s Complaint is overruled as to the 3rd, 4th, 5th, and 6th causes of action.

Defendant Los Angeles Unified School District (“LAUSD”) (“Moving Defendant”) demurs Plaintiff R.E.’s (“R.E.”) (“Plaintiff”) 3rd, 4th, 5th, and 6th causes of action in his complaint (“Complaint”). (Notice of Demurrer, pgs. 1-4; C.C.P. §§430.10(e), (f).)[1]

Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a), emphasis added.)

The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (C.C.P. §430.41(a)(3).)

Moving Defendant’s counsel declares that “[o]ver the course of several email exchanges, I informed Plaintiff’s counsel of the District’s position with respect to Plaintiff’s third, fourth, fifth, and sixth causes of action for Bane and Ralph Act violations and two intentional torts. Plaintiff’s counsel indicated that Plaintiff would not dismiss these causes of actions therefore necessitating this motion.” (Decl. of Harber ¶3.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a)(3)(B). In the future, Moving Defendant’s counsel is to attempt to meet and confer with Plaintiff’s counsel in person, by telephone, or by video conference as required by C.C.P. §430.41(a); corresponding by email or letter does not meet the requirements of the statute. Therefore, the Court will consider Moving Defendant’s demurrer.

Plaintiff filed the operative Complaint on September 5, 2024, against Moving Defendant and Non-moving Defendant Autism Learning Partners, LLC (“ALP”) (collectively, “Defendants”)[2] alleging six causes of action: (1) Negligence Contract [against Defendants]; (2) Negligent Training, Supervision, and Retention [against Defendants]; (3) Violation of the Bane Act, Civil Code §52.1 [against Defendants]; (4) Violation of the Ralph Civil Rights Act, Civil Code §51.7 [against Defendants]; (5) Battery [against Defendants]; and (6) Assault [against Defendants].

Moving Defendant filed the instant demurrer on October 29, 2024. Plaintiff filed his opposition on December 17, 2024. Moving Defendant filed its reply on December 23, 2024.

Plaintiff alleges he has autism and an intellectual disability. (Complaint ¶1.) Plaintiff alleges he is 16 years old, yet his cognitive abilities are those of a 1.5-year-old, and he is nonverbal. (Complaint ¶1.) Plaintiff alleges that during the 2023-2024 school year, he was a 10th grader receiving special education at Sophia T. Salvin Special Education Center (“Special Education Center”), a school that is supported and administered by LAUSD. (Complaint ¶1.)

Plaintiff alleges Does 1 through 10, inclusive, and each of them, are sued herein under said fictitious names. (Complaint ¶6.) Plaintiff alleges Doe 1 is the Behavior Intervention Implementation (“BII”) aide who abused Plaintiff. Plaintiff alleges that at all relevant times, Doe 1 was an employee and agent of ALP, contracted to work at the Special Education Center as an agent of LAUSD. (Complaint ¶6.) Plaintiff alleges Does 2-5 are ALP employees and agents of LAUSD at all times relevant to the Complaint. (Complaint ¶6.) Plaintiff alleges Does 6-10 are LAUSD employees at all times relevant to the Complaint. (Complaint ¶6.) Plaintiff alleges their true names and capacities are unknown to Plaintiff. (Complaint ¶6.)

Plaintiff alleges Does 1 through 10 were employees and/or agents of the LAUSD and/or ALP and acting within their employment and/or agency relationship when they engaged in the unlawful acts and omissions described in this complaint that harmed Plaintiff. (Complaint ¶7.) Plaintiff alleges LAUSD and ALP ratified the unlawful actions and omissions of Does 1 through 10, in that its supervisory officials knew all the material facts of their misconduct after it occurred, and approved of it by retaining Does 1 through 10 and failing to take reasonable measures to stop the misconduct, such as by investigating or disciplining those responsible. (Complaint ¶7.)

Plaintiff alleges that at all times mentioned herein, each Defendant was the agent, servant, and/or employee of the other Defendants, and each Defendant was acting in the course and scope of his/her as an agent, servant, and/or employee of the other Defendants. (Complaint ¶8.) Plaintiff alleges the Defendants, and each of them, are individuals, who engaged in, joined in, and conspired with the other wrongdoers in carrying out the tortious and/or negligent or unlawful activities described in this Complaint, and the Defendants, and each of them, ratified the acts of the other Defendants as described in this Complaint. (Complaint ¶8.)

Plaintiff alleges on information and belief that Defendants and each of them were the agents, representatives, and/or employees of each other and every other Defendant. (Complaint ¶10.) Plaintiff alleges in doing the things hereinafter alleged, Defendants and each of them were acting within the course and scope of said alternative personality, capacity, identity, agency, representation, and/or employment and were within the scope of their authority, whether actual or apparent. (Complaint ¶10.)

Plaintiff alleges on information and belief that at all times mentioned herein, Defendants and each of them were the trustees, partners, servants, joint venturers, shareholders, contractors, and/or employees of each and every other Defendant, and the acts and omissions herein alleged were done by them, acting individually, through such capacity and within the scope of their authority, and with the permission and consent of each and every other Defendant and that said conduct was thereafter ratified by each and every other Defendant and that each of them is jointly and severally liable to Plaintiff. (Complaint ¶11.)

Plaintiff alleges that During the 2023-2024 school year, LAUSD assigned R.E. two BII aides for his disability-related behavioral issues at school. (Complaint ¶19.) Plaintiff alleges the BII aides worked for ALP, which was contracted by LAUSD. (Complaint ¶19.)

Plaintiff alleges the BII aides, and all staff working with and supervising R.E. at the Special Education Center, knew that his disabilities would make it impossible for him to report abuse. (Complaint ¶20.)

Plaintiff alleges one of the BII aides assigned to R.E., Doe 1, physically, psychologically, and emotionally abused him during the 2023-2024 school year. (Complaint ¶21.) Plaintiff alleges Doe 1 made forcible physical contact with Plaintiff’s body, causing him substantial physical and emotional pain. (Complaint ¶21.) Plaintiff alleges he did not consent to this forcible physical contact and the touching was offensive to both a reasonable person in general and Plaintiff in particular. (Complaint ¶21.) Plaintiff alleges the forcible touching amounted to child abuse. (Complaint ¶21.)

Plaintiff alleges his family first discovered the abuse on or about April 17, 2024, when a Vice Principal at the Special Education Center called his mother to inform her that the school had called authorities to report child abuse against R.E. (Complaint ¶22.) Plaintiff alleges the Vice Principal said that the person who committed the abuse was the male BII aide assigned to R.E., and that he had been let go from the school. (Complaint ¶22.) Plaintiff alleges on information and belief that school administrators had received a report that the aide pinched R.E.’s hand on or about April 17, 2024. (Complaint ¶22.) Plaintiff alleges The Los Angeles Police Department opened an investigation into the incident. (Complaint ¶22.)

Plaintiff alleges on information and belief that the BII aide had been physically abusing R.E. for several months. (Complaint ¶23.) Plaintiff alleges he had been coming home from school with cuts, ripped clothes, pinch marks on his hands, and scratches on his face, and had been crying more than normal. (Complaint ¶23.) Plaintiff alleges he also suffered from increased aggression, anxiety, vigilance, and agitation. (Complaint ¶23.)

Plaintiff alleges on information and belief that in the weeks and likely months prior to the abuse of R.E. coming to light on or about April 17, Defendant employees and agents of the District and ALP witnessed, suspected, and knew about the physical, psychological, and emotional abuse of R.E. at school. (Complaint ¶24.) Plaintiff alleges they did not report suspected child abuse of R.E. to law enforcement or the county welfare department, in violation of their duties as “mandated reporters” under the Child Abuse and Neglect Reporting Act. (Complaint ¶24.)

Plaintiff alleges he suffered physical, psychological, and emotional pain and injuries as a result of the abuse by Defendant Doe 1 and the other Defendants’ failure to report or stop it. (Complaint ¶25.) Plaintiff alleges the forceful physical touching of his body led to pain, marks and scratches, and severe mental anguish. (Complaint ¶26.) Plaintiff alleges the abuses also caused dramatic changes in his behavior. (Complaint ¶27.) Plaintiff alleges this included being more agitated and vigilant, having more aggressive behaviors, and crying more than normal. (Complaint ¶27.) Plaintiff alleges he also started engaging in the self-injurious behaviors of rubbing his chin uncontrollably, pinching his own face and neck, and trying to pull his hair out. (Complaint ¶27.) Plaintiff alleges that after the abuse came to light, his psychiatrist diagnosed him with post-traumatic stress disorder (“PTSD”). (Complaint ¶28.)

Moving Defendant demurs to the 3rd, 4th, 5th, and 6th causes of action on the basis they fail to state facts sufficient to constitute causes of action against Defendants and are uncertain. (Demurrer, pgs. 1-3; C.C.P. §§430.10(e), (f).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“The Bane Act permits an individual to pursue a civil action for damages where another person ‘interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.’ ‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threat[], intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’” (King v. State of California (2015) 242 Cal.App.4th 265, 294, internal citation omitted.)

“[T]o state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence or threatened violence must be due to plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1290.)

Plaintiff alleges Doe 1 interfered with Plaintiff’s rights to be free from bodily restraint and harm—under California Civil Code § 43—when he physically and emotionally abused Plaintiff, including by making forcible physical contact with Plaintiff’s body that he did not want or consent to. (Complaint ¶64.)

Plaintiff alleges Doe 1 interfered with Plaintiff’s rights as a student with a disability to an “appropriate” public education—under 20 U.S.C. §1412— when he physically and emotionally abused Plaintiff. (Complaint ¶65.)

Plaintiff Doe 1 interfered with Plaintiff’s rights to be free from violence and intimidation committed against his person because of his disability and medical condition—under the Ralph Civil Rights Act, California Civil Code § 51.7—when he physically abused Plaintiff because of his disabilities and medical condition. (Complaint ¶66.)

Plaintiff alleges Doe 1 interfered with Plaintiff’s right to attend a school campus that was “safe, secure and peaceful”—under Article 1, section 28 of the California Constitution—when he physically and emotionally abused Plaintiff. (Complaint ¶67.)

Plaintiff alleges Doe 1 used violence, threats, aggression, intimidation, and coercion when he interfered with—and prevented Plaintiff from exercising—the above-mentioned rights. (Complaint ¶68.) Plaintiff alleges Doe 1 knew that Plaintiff had these rights and intended to deprive him of enjoying the interests they protected. (Complaint ¶69.) Plaintiff alleges Doe 1’s violent, threatening, and coercive interference with Plaintiff’s rights were substantial factors in causing Plaintiff physical and mental harm. (Complaint ¶70.)

Plaintiff alleges Defendant Does 1 through 10 knew, or in the exercise of reasonable care should have known, that unless they and each of them intervened to protect Plaintiff and to adequately supervise, prohibit, control, regulate, discipline, and/or otherwise penalize the conduct and acts of Doe 1 and the other Defendants, Defendants’ failure to do so would have the effect of encouraging, ratifying, condoning, exacerbating, increasing, and worsening said conduct, acts, and failures to act. (Complaint ¶73.)

Plaintiff alleges such conduct was performed or ratified by Defendants and each of them is responsible for a substantial portion of the violent and tortious conduct. (Complaint ¶74.)

Plaintiff alleges LAUSD and ALP are vicariously liable for the Bane Act violations. (Complaint ¶75.) Plaintiff alleges that at the time of their violations of the Bane Act that harmed Plaintiff, Defendants Does 1-5 were employees of ALP and agents of LAUSD, and Does 6-10 were employees of LAUSD, and acting within the scope of their employment and agency relationships with LAUSD and ALP. (Complaint ¶75.) Plaintiff alleges LAUSD had a nondelegable duty to protect students like Plaintiff. (Complaint ¶75.) Plaintiff alleges The Bane Act violations arose from their work for LAUSD and ALP, as they occurred in the course of their ordinary duties supervising Plaintiff at school. (Complaint ¶75.) Plaintiff alleges it is reasonably foreseeable that a BII aide such as Doe 1 would violate the Bane Act by using violence, threats, intimidation, and coercion when attempting to supervise, control, discipline, and respond to the behaviors of severely disabled students and that other personnel would fail to intervene to protect the students. (Complaint ¶75.)

Plaintiff alleges LAUSD and ALP ratified the Bane Act violations. (Complaint ¶76.) Plaintiff alleges Does 1 through 10 acted on behalf of LAUSD and ALP. (Complaint ¶76.) Plaintiff alleges LAUSD’s and ALP’s supervisory officials learned of all the material facts of the violations after they occurred and subsequently approved of them by retaining Does 1 through 10 and failing to take reasonable measures to stop the misconduct, such as by investigating and disciplining those responsible, until they finally started to take action on or about April 17, 2024. (Complaint ¶76.)

Plaintiff sufficiently alleges a cause of action for violation of the Bane Act. Plaintiff sufficiently alleges violence by Moving Defendant’s agent to prevent Plaintiff from exercising recognized state and federal rights. (Complaint ¶¶7-11, 64-67.) Plaintiff sufficiently alleges the violence was due to Plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes. (Complaint ¶66.)

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 3rd cause of action is overruled.

“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that [defendant] aided, incited, or conspired in the denial of a protected right.” (Gabrielle A., 10 Cal.App.5th at pg. 1291.)

Liability may also be found if a defendant “aids, incites, or conspires” in the denial of a right protected under Civil Code §51.7. (Civ. Code §52(b).)

Plaintiff alleges that, at all times relevant, the right to be free from any violence or intimidation by threat of violence committed against his person on account of his disabilities or medical condition. (Complaint ¶82.) Plaintiff alleges Doe 1 committed acts of violence and/or intimidation by threats of violence against Plaintiff’s person, including by making forcible physical contact with his body without his consent. (Complaint ¶83.)

Plaintiff alleges a substantial motivating reason for Doe 1’s conduct was Plaintiff’s intellectual and mental disabilities and medical condition. (Complaint ¶84.) Plaintiff alleges Doe 1 used unlawful physical force to attempt to control, punish, and manage Plaintiff’s disability-caused behaviors. (Complaint ¶84.) Plaintiff alleges Doe 1 had hostility towards the disabilities of Plaintiff. (Complaint ¶84.)

Plaintiff alleges the violence and intimidation by Doe 1 against Plaintiff on account of his disabilities and medical conditions were substantial factors causing physical and mental harms to Plaintiff. (Complaint ¶85.) Plaintiff alleges other Defendants acted to aid, incite, and/or conspire with Doe 1 to deny Plaintiff his right to be free from any violence or intimidation by threat of violence committed against his person on account of his disabilities and medical conditions. (Complaint ¶86.)

Plaintiff alleges LAUSD and ALP are vicariously liable for the Ralph Civil Rights Act violations. (Complaint ¶88.) Plaintiff alleges that at the time of their violations of the Ralph Civil Rights Act that harmed Plaintiff, Defendants Does 1-5 were employees of ALP and agents of LAUSD, and Does 6-10 were employees of LAUSD, acting within the scope of their employment and agency relationships with LAUSD and ALP. (Complaint ¶88.) Plaintiff alleges LAUSD had a nondelegable duty to protect students like Plaintiff. (Complaint ¶88.) Plaintiff alleges The Ralph Civil Rights Act violations arose from their work for LAUSD and ALP, as they occurred in the course of their ordinary duties supervising Plaintiff at school. (Complaint ¶88.) Plaintiff alleges it is reasonably foreseeable that a BII aide such as Doe 1 would violate the Ralph Civil Rights Act by using violence or intimidation when attempting to supervise, control, discipline and respond to the behaviors of severely disabled students, and that other personnel would fail to intervene to protect the students. (Complaint ¶88.)

Plaintiff alleges The District and ALP ratified the Ralph Civil Rights Act violations. (Complaint ¶89.) Plaintiff alleges Does 1 through 10 acted on behalf of LAUSD and ALP. (Complaint ¶89.) Plaintiff alleges LAUSD’s and ALP’s supervisory officials learned of all the material facts of the violations after they occurred, and subsequently approved of them by retaining Does 1 through 10 and failing to take reasonable measures to stop the misconduct, such as by investigating and disciplining those responsible, until they finally started to take action on or about April 17. (Complaint ¶89.)

Plaintiff sufficiently alleges a cause of action for violation of the Ralph Act. Plaintiff alleges Moving Defendant’s agent committed a violent act against him. (Complaint ¶¶83, 86, 88.) Plaintiff alleges that a substantial motivating reason for Moving Defendant’s agent’s conduct was his perception of Plaintiff’s disabilities and medical conditions, and that Doe 1 had hostility toward Plaintiff’s disabilities. (Complaint ¶84.) Plaintiff alleges he was harmed and the violence and intimidation by Doe 1 against Plaintiff on account of his disabilities and medical conditions were substantial factors in causing Plaintiff’s harms. (Complaint ¶85.)

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 4th cause of action is overruled.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff's harm.” (Id. at pgs. 668-669.)

Plaintiff alleges on various dates at least during the 2023-2024 school year, Doe 1 committed batteries upon Plaintiff. (Complaint ¶92.) Plaintiff alleges Doe 1 touched Plaintiff and caused him to be touched with the intent to harm and offend him. (Complaint ¶93.) Plaintiff alleges he never consented to this touching. (Complaint ¶94.) Plaintiff alleges he was harmed and offended by this unconsented touching in that it caused him physical pain and severe mental anguish. (Complaint ¶95.) Plaintiff alleges a reasonable person in his situation would have been offended by Doe 1’s touching. (Complaint ¶96.)

Plaintiff alleges LAUSD and ALP are vicariously liable for the batteries. (Complaint ¶97.) Plaintiff alleges at the time of the batteries that harmed Plaintiff, Defendants Does 1-5 were employees of ALP and agents of LAUSD, and Does 6-10 were employees of LAUSD, acting within the scope of their employment and agency relationships with LAUSD and ALP. (Complaint ¶97.) Plaintiff alleges LAUSD had a nondelegable duty to protect students like Plaintiff. (Complaint ¶97.) Plaintiff alleges the batteries arose from their work for LAUSD and ALP, as they occurred in the course of their ordinary duties supervising Plaintiff at school. (Complaint ¶97.) Plaintiff alleges it is reasonably foreseeable that a BII aide such ad Doe 1 would engage in battery when attempting to supervise, control, discipline and respond to the behaviors of severely disabled students. (Complaint ¶97.)

Plaintiff alleges LAUSD and ALP ratified the batteries. (Complaint ¶98.) Plaintiff alleges Doe 1 acted on behalf of ALP and LAUSD. (Complaint ¶98.) Plaintiff alleges LAUSD’s and ALP’s supervisory officials learned of all the material facts of the batteries after they occurred, and subsequently approved of them by retaining Doe 1 and failing to take reasonable measures to stop the misconduct. (Complaint ¶98.)

Plaintiff alleges on various dates at least during the 2023-2024 school year Doe 1 committed assaults upon Plaintiff. (Complaint ¶101.) Plaintiff alleges Doe 1 acted intending to cause harmful and offensive contact to Plaintiff. (Complaint ¶102.) Plaintiff alleges he reasonably believed that he was about to be touched in a harmful and offensive manner. (Complaint ¶103.) Plaintiff alleges he did not consent to Doe 1’s conduct. (Complaint ¶104.) Plaintiff alleges this conduct harmed him in that it caused him mental harm, including anguish and humiliation. (Complaint ¶105.) Plaintiff alleges the conduct was a substantial factor in causing the mental harm. (See Complaint ¶106.)

Plaintiff alleges LAUSD and ALP are vicariously liable for the assaults. (Complaint ¶107.) Plaintiff alleges at the time of the assaults that harmed Plaintiff, Defendants Does 1-5 were employees of ALP and agents of LAUSD, and Does 6-10 were employees of LAUSD, acting within the scope of their employment and agency relationships with the District and ALP. (Complaint ¶107.) Plaintiff alleges LAUSD had a nondelegable duty to protect students like Plaintiff. (Complaint ¶107.) Plaintiff alleges the assaults arose from their work for LAUSD and ALP, as they occurred in the course of their ordinary duties supervising Plaintiff at school. (Complaint ¶107.) Plaintiff alleges it is reasonably foreseeable that a BII aide such as Doe 1 would engage in assaults when attempting to supervise, control, discipline and respond to the behaviors of severely disabled students. (Complaint ¶107.)

Plaintiff alleges LAUSD and ALP ratified the assaults. (Complaint ¶108.) Plaintiff alleges Doe 1 acted on behalf of LAUSD and ALP. (Complaint ¶108.) Plaintiff alleges LAUSD’s and ALP’s supervisory officials learned of all the material facts of the assaults after they occurred, and subsequently approved of them by retaining Doe 1 and failing to take reasonable measures to stop the misconduct. (Complaint ¶108.)

Plaintiff sufficiently alleges causes of action for battery and assault against Moving Defendant. Plaintiff sufficiently alleges that Doe 1’s intentional torts were committed within the scope of his agency relationship with LAUSD. Plaintiff alleges that Doe 1 was acting within the scope of his agency relationship with LAUSD when he engaged in the unlawful acts that harmed Plaintiff. (Complaint ¶ 7.) More specifically, the Complaint alleges that Doe 1’s intentional torts “arose from [his] work for the District,” as “they occurred in the course of [his] ordinary duties supervising Plaintiff at school.” (Complaint ¶¶95, 107.) As alleged in the Complaint, “[i]t is reasonably foreseeable that a BII aide such as Doe 1 would” engage in batteries and assaults, “when attempting to supervise, control, discipline, and respond to the behaviors of severely disabled students.” (Complaint ¶¶97, 107.) Because Doe 1’s misconduct was incidental to his duties as LAUSD’s agent, and reasonably foreseeable in light of LAUSD’s business of providing education to severely disabled students, his acts were within the scope of his agency relationship with LAUSD. (See Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015 [explaining that an intentional tort is within scope of an employment relationship if “if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.”].)

The precedents that Moving Defendant cites in its demurrer in support of its argument that it is not vicariously liable for Doe 1’s abuse exclusively involve educators who engaged in sexual misconduct, which is not alleged here. (See Demurrer, pg. 9, citing C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 865; John R. v. Oakland Unified School District (1989) 48 Cal.3d 438.)

Accordingly, Moving Defendant’s demurrer to Plaintiff’s 5th and 6th causes of action is overruled.

Moving Defendants’ demurrer to Plaintiff’s Complaint is overruled as to the 3rd, 4th, 5th, and 6th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Moving Defendant does not demur to the 1st and 2nd causes of action asserted in Plaintiff’s Complaint.

[2] The Court notes this Complaint makes specific allegations to the DOEs in the Complaint, who have not yet been served. For the purposes of this Demurrer, the Court does not distinguish between the causes of action made against all Defendants and allegations also including the unnamed and unserved DOEs.