Judge: David A. Hoffer, Case: 30-2021-01235183, Date: 2023-08-21 Tentative Ruling
Before the Court is a demurrer filed by Defendant Doe 1, Santa Ana Unified School District (“the District”), to Plaintiff’s First Amended Complaint (“FAC”) and motion to strike portions of the FAC.
The demurrer is OVERRULED as to the first, second, third and fourth causes of action, and SUSTAINED without leave to amend as to the fifth and sixth causes of action.
The motion to strike is GRANTED in part without leave to amend and DENIED in part.
Motion 1: Demurrer
First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action
As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2’s sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.)
Plaintiff’s opposition makes clear that she is not arguing the District is vicariously liable for the sexual abuse of Doe 2, but is instead seeking to impose liability for the District’s own conduct and vicarious liability for the negligent acts of the District’s other employees. (See Opp. at 6:4-8.) The District can be vicariously liable for the negligent conduct of its supervisory personnel who knew, or should have known, of Doe 2’s propensities. (See C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 878–79.)
In Doe v. City of Los Angeles (2007) 42 Cal.4th 531, the Supreme Court determined that in terms of the “reason to know” standard in C.C.P. section 340.1, the proper focus is whether, after examining the facts in defendant's possession, a reasonable person of ordinary intelligence—or, in the particular circumstance, a person possessed of defendant's “superior intelligence”—would have inferred the existence of the unlawful sexual conduct or regarded its existence as so highly probable as to conduct himself or herself as if it did exist. Section 340.1 imposes no duty of inquiry. (Doe v. City of Los Angeles, supra, 42 Cal.4th at 547; see Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 718-723; Deutsch v. Masonic Homes of Calif., Inc. (2008) 164 Cal.App.4th 748, 772-775.)
The Court finds the FAC now alleges adequate facts demonstrating the District had reason to know that Doe 2 had engaged in past unlawful sexual conduct with a minor. The FAC alleges the following: (1) prior to being hired by the District, existing members of the District’s administration and coaching staff knew of a prior sexual relationship between Doe 2 and another minor; (2) Doe 2 would regularly drive Plaintiff off campus in Doe 2’s personal vehicle in plain view of the District’s staff, coaches and administrators and at least three named staff members witnessed this occurring; (3) employees of Doe 1 witnessed Doe 2 parked with Plaintiff on the premises of Doe 1 on previous occasions; (4) Doe 2 would give letters and notes to Plaintiff during class and after school and other students and staff would witness such notes and letters being given to Plaintiff by Doe 2; (5) Doe 2 would give Plaintiff gifts such as teddy bears, airbrushed shirts, roses, and basketball-related gifts, which was witnessed by three of the District’s staff members; (6) Doe 2 would hold Plaintiff’s hand, embrace and hug Plaintiff as well as fondle and massage Plaintiff's neck and shoulders, and smack Plaintiff’s buttocks and said conduct occurred in front of multiple persons, including District staff and administration; and (7) District staff witnessed Doe 2 at times shutting the door to the locker room at the school such that only Doe 2 and Plaintiff were in the locker room. (See FAC ¶¶ 52, 93-94, 96-98, 103, 106.)
The foregoing allegations, taken as a whole, are sufficient to show that the District possessed information from which a reasonable person would have inferred the existence of inappropriate sexual behavior by Doe 2, or regarded its existence as highly probable. Thus, the District’s demurrer is not well-taken. In addition, contrary to the District’s argument, the negligence-based claims are pled with the requisite particularity and the FAC adequately pleads information to support the allegations of ultimate fact pled on information and belief. (See, e.g., FAC ¶¶ 51-53, 91-98, 102-103.)
The District’s arguments pertaining to Education Code section 32260, Cal. Const. Art. I, section 28, and CANRA are also not well-taken. Because the FAC sufficiently alleges vicarious liability based on the acts of the District’s employees (other than Doe 2) in negligently supervising, training, hiring and/or retaining Doe 2, the negligence-based claims remain viable. (See Gov’t Code § 815.2; C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 878–79.) A demurrer does not lie to a portion of a cause of action; thus, the demurrer on these grounds is overruled. (See Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856 fn 14.)
Accordingly, the demurrers to the first through fourth causes of action are OVERRULED.
Fifth Cause of Action: Intentional Infliction of Emotional Distress
“Extreme and outrageous conduct,” as required for intentional infliction of emotional distress, is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and must be of a nature which is especially calculated to cause, and does cause, mental distress. (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) In addition, it is “not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Here, the allegations do not show the District acted intentionally or with reckless disregard of the probability of causing emotional distress to Plaintiff. The allegations showing the District had reason to know of Doe 2’s unlawful propensities and kept her employed do not show that the District acted intentionally to harm Plaintiff or engaged in conduct especially calculated to cause harm to Plaintiff, nor do the District’s acts as alleged amount to conduct that is so outrageous that it would exceed all bounds usually tolerated in a civilized community. Accordingly, Plaintiff failed to allege sufficient facts to state the IIED cause of action.
“[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; see also, Heritage Pac. Fin'l, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994.) Here, Plaintiff had a prior opportunity to amend to allege a viable IIED claim, but failed to do so. In addition, Plaintiff failed to demonstrate in the Opposition how she can cure the defect. Thus, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.
Sixth Cause of Action: Sexual Harassment/Abuse in Educational Setting (Educ. Code § 220)
A claim asserted under Education Code section 220 requires actual knowledge of the harassment of the student. (Donovan v. Poway Unified School District (2008) 167 Cal.App.4th 567, 604.) While the FAC now adequately pleads the District had reason to know of Doe 2’s harassment of Plaintiff, the allegations again fail to demonstrate that the District or any of its employees had actual knowledge of Doe 2’s harassment of Plaintiff.
Because Plaintiff again failed to allege a viable claim under Education Code section 220 and failed to show how she can cure the defect, the demurrer to the sixth cause of action is SUSTAINED without leave to amend.
Motion 2: Motion to Strike
Pursuant to Code Civ. Proc. § 436, the Court may “strike out any irrelevant, false or improper matter inserted in any pleading” and “strike out all or any part of any pleading not drawn or filed in conformity with the laws of the state, a court rule, or an order of the court.” (C.C.P. § 436(a), (b).)
Alter Ego Allegations (Item 1): The District is correct that alter ego allegations appear to have no place in this litigation as Plaintiff’s claims involve allegations of sexual abuse and negligent hiring/supervision by the District and its employees. The alter ego doctrine does not appear to be applicable to the present matter, where no allegations of a sham corporate entity or corporate misdeeds are made. Moreover, even if the doctrine was applicable, the FAC contains insufficient facts to support the alter ego allegation. (See FAC ¶ 11; see also, Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Accordingly, the motion as to Item 1 is GRANTED without leave to amend, but without prejudice to future amendment should facts be uncovered supporting said allegation.
Ratification Allegations (Item 2): The District is correct that the ratification allegations are unsubstantiated. There are no facts pled showing the District knew of Doe 2’s harassment of Plaintiff and refused to take action or that it engaged in any other conduct showing that it treated Doe 2’s conduct as its own, such that ratification can be inferred. (See Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1158.) Thus, the motion as to Item 2 is GRANTED without leave to amend, but without prejudice to future amendment should facts be uncovered supporting said allegation.
Statutory Damages (Item 3): The Court finds the prayer for “appropriate statutory damages” is not properly pled as Plaintiff has not identified (in the FAC or the Opposition) the statutory basis for the request. In addition, if Plaintiff is attempting to seek treble damages pursuant to Code of Civil Procedure section 340.1, such damages are unavailable against the District. (See Los Angeles Unified Sch. Dist. v. Superior Ct. (2023) 14 Cal.5th 758, 790.) Thus, the motion as to Item 3 is GRANTED without leave to amend, but without prejudice to future amendment should facts be uncovered supporting entitlement to the requested relief.
Attorneys’ Fees (Item 4): The District seeks an order striking Plaintiff’s prayer for attorney’s fees pursuant to Code of Civil Procedure section 1021.5. “‘[T]here is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a ... judgment[.]’ [Citation.] As there was no requirement they be pled at all, the trial court erred in striking [plaintiff’s] prayer for attorney fees based on a failure to adequately plead their basis.” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 [emphasis original].) Accordingly, the motion as to Item 4 is DENIED.
The District is to file an Answer to the FAC within 15 days.
Counsel for the District is ordered to give notice of these rulings.