Judge Gail Killefer, Case Number: 23STCV17364, Date: 2024-05-29 Tentative Ruling

TENTATIVE: Defendant LAUSD’s demurrer to the sixth and eighth causes of action is sustained with leave to amend. The demurrer to the second, third, and seventh causes of action is overruled. Defendant LAUSD’s motion to strike Plaintiff’s request for attorney’s fees is denied but granted as to Plaintiff’s request for punitive damages, with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for July 1, 2024, at 8:30 a.m. Moving party to give notice.

On July 27, 2023, O.B. (“Plaintiff”) filed a Complaint against Los Angeles Unified School District (“LAUSD”); Jerome A. Lowe (“Lowe”); and Does 1 to 50.

The Complaint alleges Plaintiff suffered personal injuries and damages due to childhood sexual abuse. The Complaint alleges eight causes of action: (1) Sexual Assault and Battery only against Defendant Lowe; (2) Negligent Hiring, Supervision, and Retention of Unfit Employee only against LAUSD; (3) Breach of Mandatory Duty: Failure to Report Suspected Child Abuse; (4) Negligent Failure to Warn, Train, or Educate; (5) Negligent Supervision of a Minor; (6) Negligence; (7) Intentional Infliction of Emotional Distress; and (8) Sexual Harassment under Ed. Code §§ 201; 220; 212.5.)

Defendant LAUSD now demurs to the second, third, sixth, seventh, and eighth causes of action. Plaintiff opposed the Motion. The matter is now before the court.

The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) Plaintiff’s Complaint, a true copy of which is attached as Exhibit “A” to the accompanying Declaration of Leslie Anne Burnet.

discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The Complaint alleges that when Plaintiff was 12 years old and in middle school at Gaspar De Portola Middle School, Plaintiff’s volleyball coach, Defendant Jerome Lowe, engaged in repeated and continuous sexual abuse of Plaintiff. (Compl., ¶¶ 1, 14-25.) In 2017, Defendant Lowe was arrested for his crimes against Plaintiff and other students and a criminal case was brought against him (Case No. LA090920-01). (Compl. ¶¶ 3, 28.) On May 31, 2023, Lowe was found guilty on each of 25 counts of felony child molestation, including two pertaining to the sexual assault of O.B. (Compl., ¶ 3.)

Plaintiff alleges that LAUSD was aware of Lowe’s conduct but did nothing to protect its students. (Compl., ¶ 2.) The Complaint alleges that on some occasions, LAUSD employees, including Lowe’s assistant coaches personally witnessed or knew of Lowe’s sexual inappropriate interactions with young children. (Compl., ¶ 26.) Plaintiff believes that one of Lowe’s assistant coaches complained to the school administration and/or local police about Lowe acting inappropriately. (Compl., ¶ 26.)

Under the Government Tort Claims Act, no person may sue a public entity or public employee for money or damages unless a timely written claim has been presented to, and acted on, or deemed rejected by the public entity. (Gov. Code, §§ 905, 912.4, 945.4.) Defendant LAUSD demurs to the second cause of action for Negligent Hiring, Supervision, and Retention; third cause of action for Failure to Report Suspected Child Abuse, Sixth Cause of Action for Negligence; seventh cause of action for Intentional Infliction of Emotional Distress (“IIED”); and eight cause of action for Sexual Harassment under Ed. Code §§ 201, 220, and 212.5, on the grounds that the claims are barred by the Government Tort Claims Act.

The Complaint alleges that the action is exempt from the Government Tort Claims Act under Gov. Code § 905(m) because it pertains to the recovery of damages suffered as a result of childhood sexual assault. (Compl., ¶ 12.) Gov. Code § 905(m) exempts “[c]laims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse.” (Gov. Code, § 904(m); see also A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1254–1255 (A.M.).)

Defendant argues that Plaintiff’s second, third, seventh, and eighth cause of action require no not fall within the exemption of Gov. Code § 905(m) and are thus barred as untimely.^{^[2]}

i. Exemption from the Government Claims Act as to the Second Cause of Action

[A]n action for recovery of damages suffered as a result of childhood sexual assault . . . for any of the following actions:

(1) An action against any person for committing an act of childhood sexual assault.

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

[A]ny act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 287 or of former Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; any sexual conduct as defined in paragraph (1) of subdivision (d) of Section 311.4 of the Penal Code; Section 647.6 of the Penal Code; or any prior laws of this state of similar effect at the time the act was committed. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.

(Id. [italics added].) The court finds that the fact that section 340.1(d) “does not limit the availability of causes of action permitted under subdivision (a)” to mean that the causes of action that a plaintiff may bring relating to childhood sexual assault are not exhaustive. After all, CCP § 340.1(d) “is not a type of claim per se, it is a statute of limitations governing claims” to recover “damages suffered as a result of childhood sexual assault” against a minor plaintiff. (A.M., supra, 3 Cal.App.5th at p. 1262; CCP § 340.1(a)(d).)

Therefore, CCP § 340.1 does not limit the causes of action that a plaintiff may bring but instead applies a special statute of limitations for causes of action designed to recover “damages suffered as a result of childhood sexual assault,” including against an “entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (CCP § 340.1(a) [italics added].) Here, Defendant LAUSD does not argue that it is not an entity that “owed a duty of care to Plaintiff” but rather that such duty was not triggered. (Demurrer, at p. 16:3-6.) CCP § 340.1(a) permits an action to proceed where “a wrongful or negligent act” or “an intentional act” by LAUSD was “a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.”

Therefore, as to the second cause of action for Negligent Hiring, Supervision, and Retention, the court finds that the claim on its face pertains to “damages suffered as a result of childhood sexual assault” and is exempt from the Tort Claims Act’s presentation requirement under Gov. Code § 905(m). Thus, the second cause of action is not barred.

ii. Exemption from the Government Claims Act as to the Third Cause of Action

As to the applicability of Gov. Code § 905(m) to the third cause of action, Plaintiff’s Child Abuse and Neglect Reporting Act (“CANRA”) claim, the court notes that that pursuant to Pen. Code § 11165.1, CANRA relies on the same Pen. Code sections as CCP § 340.1(d) to define “Sexual assault”:

(a) “Sexual assault” means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), Section 264.1 (rape in concert), Section 285 (incest), Section 286 (sodomy), Section 287 or former Section 288a (oral copulation), subdivision (a) or (b) of, or paragraph (1) of subdivision (c) of, Section 288 (lewd or lascivious acts upon a child), Section 289 (sexual penetration), or Section 647.6 (child molestation). “Sexual assault” for the purposes of this article does not include voluntary conduct in violation of Section 286, 287, or 289, or former Section 288a, if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.

(1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).

Accordingly, the court finds that the Plaintiffs’ claim for breach of mandatory duty for failure to report suspected child abuse falls under CCP § 340.1 because it is an “action for recovery of damages suffered as a result of childhood sexual assault” because it is against an “entity” whose wrongful, negligent, or intention violation of CANRA “was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (CCP § 340.1.) Accordingly, section 905(m) applies to the third cause of action and is not barred.

iii. Exemption from the Government Claims Act as to the Seventh Cause of Action

Defendant LAUSD points out that in A.M. v. Ventura Unified School Dist., supra, 3 Cal.App.5th at p. 1264, fn. 4, the California Supreme Court found that the plaintiff’s “claims for harassment and other nonsexual abuse claims” were not exempt from the claim presentation requirement under Gov. Code § 905(m) and the plaintiff was barred from pursuing those claims. Accordingly, LAUSD asserts that Plaintiff’s seventh cause of action for Intentional Infliction of Emotional Distress (IIED) is not exempt from the Government Tort Claims Act under section 905(m) because it is not a claim for sexual abuse and is thus time-barred.

“Section 340.1 governs the period within which a plaintiff must bring a tort claim based upon childhood sexual abuse.” (Quarry v. Doe I (2012) 53 Cal.4th 945, 952.) “Section 340.1, subdivision (a), gives a plaintiff additional time to pursue a tort action for “damages suffered as a result of childhood sexual assault.” This could include damages due to a plaintiff's awareness that the assault resulted from a prior cover-up.” (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 743.) In K.M., the plaintiff brought various claims against the defendant school district, including an IIED claim, and the trial involved testimony as to Plaintiff’s emotional state. (Id. at p. 729.) The Appeal Court in K.M. made no mention of emotional distress claims brought by a direct victim of childhood sexual assault as being barred.

The court finds that because the Complaint alleges that Plaintiff suffered emotional distress due to Defendant’s conduct, a cause of action for IIED relates to an action “for recovery of damages suffered as a result of childhood sexual assault” such that it is exempt from the Government Tort Claims presentation requirement under section 905(m). (CCP § 304.1(a).) Thus, the seventh cause of action is not barred.

iv. Exemption from the Government Claims Act as to the Eighth Cause of Action

Defendant LAUSD asserts that the eighth cause of action for Sexual Harassment under Ed. Code §§ 201; 220; 212.5 is not exempt under Gov. Code § 905(m) because it is a claim for sexual harassment rather than sexual abuse.

[U]nwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

(a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

(b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

(c) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

(d) Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

Plaintiff fails to show that a violation of Ed. Code § 212.5 for sexual harassment qualifies as “an action for recovery of damages suffered as a result of childhood sexual assault[.]” (CCP, § 340.1.) Specifically, Plaintiffs fail to show that sexual harassment as defined in Ed. Code § 212.5 fits the definition of sexual assault under CCP § 340.1(d):

(c) “Childhood sexual assault” as used in this section includes any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 287 or of former Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; any sexual conduct as defined in paragraph (1) of subdivision (d) of Section 311.4 of the Penal Code; Section 647.6 of the Penal Code; or any prior laws of this state of similar effect at the time the act was committed. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.

The court notes that in A.M. the California Supreme Court rejected the plaintiff’s claim for sexual harassment as falling under the extended statute of limitations of section 340.1. “The complaint alleges claims for harassment and other nonsexual abuse claims. Having failed to file a valid government tort claim, appellant may not pursue those claims.” (A.M., supra, 3 Cal.App.5th at p. 1264, fn. 4.) As a claim for childhood sexual harassment is not a claim “suffered as a result of childhood sexual assault” pursuant to A.M. the eighth cause is barred due to the Plaintiff’s failure to show that they complied with the claims presentation requirements of the Government Tort Claims Act. Thus, the demurrer to the eighth cause of action is sustained with leave to amend.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].) “A duty may arise through statute, contract, or the relationship of the parties.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920 [internal quotations and citations omitted].) The existence of a legal duty is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.) “However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.)

The second cause of action alleged that LAUSD “had had the responsibility and mandatory duty to adequately and properly investigate, hire, train, and supervise their staff and to protect their students from harm caused by unfit and dangerous individuals hired as staff.” (Compl., ¶ 41.) LAUSD “breached their mandatory duty to properly and adequately investigate, hire, train, and supervise Lowe.” (Compl., ¶ 43.) The third cause of action alleges that LAUSD was a “mandated reporter” under Pen. Code § 11164 and owed a duty to comply with the provision of CANRA and report any suspicion of child abuse. (Compl., ¶ 53.)

Defendant LAUSD argues that Plaintiff’s allegation that LAUSD knew or should have known about Lowes’ conduct is conclusory and cannot support the finding that LAUSD’s duty was triggered. (See D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 230 [“[T]o support her negligent supervision claim, appellant had to prove both that Shelburne posed a risk of harm to students and that the risk of harm was reasonably foreseeable, i.e., that LAUSD knew or should have known of the risk”] [italics original]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591 [“On the negligent supervision and failure to warn claims, Lopez will be required to show Watchtower knew or should have known of Campos's alleged misconduct and did not act in a reasonable manner when it allegedly recommended him to serve as Lopez's Bible instructor”].)

The court finds that what LAUSD and its employees knew, as well as the foreseeability of Lowe’s sexual conduct remains a disputed issue of fact. "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Here, it is sufficient that the Complaint alleges that LAUSD employees, including assistant coaches, were aware of such behavior because they witnessed it or that they should have been aware of such conduct. (Compl., ¶¶ 26, 42, 54, 79, 102.) Furthermore “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The identities of any LAUSD employees who knew or should have known about Lowe’s conduct as well as what they knew or observed are questions that can be resolved through discovery and does not render the second cause of action uncertain.

As to the third cause of action, Defendant LAUSD asserts that Plaintiff’s claim for Breach of Mandatory Duty: Failure to Report Suspected Child Abuse fails because “[t]here are no allegations in the Third Cause of Action of the Complaint as to when the District allegedly received the information necessitating the making of a report pursuant to CANRA. Therefore, the allegations are conclusory, and the claim is subject to demurrer for uncertainty pursuant to Code Civ. Proc. § 430.10(f).” (Demurrer, at p. 17:2-5.)

The court finds that the Complaint sufficiently alleged that LAUSD was legally mandated to report “any reasonable suspicions of child abuse” and that LAUSD knew or should have suspected that Lowe engaged in sexual misconduct but failed to report such conduct and that LAUSD is vicariously liable for LAUSD’s employees who acting within the scope of their employment violated CANDRA. (Compl., ¶ 51-57.) Specific information as to which employee knew what and when, are facts that can be uncovered in discovery and the absence of such specific facts does not render Plaintiff’s Complaint uncertain or conclusory. In Doe v. City of Los Angeles (2007) 42 Cal.4th 531, the California Supreme Court asserted that a plaintiff seeking shelter under CCP § 340.1(b)(2) need only pled “ultimate rather than evidentiary facts” and “‘may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’[Citation].”(Id. at p. 550.) The Court further noted that “the doctrine of less particularity may be especially appropriate in this setting” where the defendant has superior knowledge of the perpetrator's past acts of unlawful sexual conduct. (Id.)

Accordingly, the court does not find that the second and third causes of action are uncertain or improperly pled and the demurrer as to these two causes of action is overruled.

The sixth cause of action for negligence alleges that LAUSD owed a duty to control the conduct of Low due to the special relationship existing between said individuals. (Coml. ¶ 78.) Specifically, LAUSD “failed to take any preventive action to control, curb, and/or prevent that conduct, and failed to warn O.B. or her parents of that wrongful conduct, despite having a legal duty to do so.” (Compl. ¶ 80.) Defendant LAUSD demurs to the sixth cause of action on the basis that the Complaint fails to identify a statutory basis for liability.

The Government Claims Act abolishes all common law or judicially declared forms of liability for public entities, except for such liability that may be required by the state or federal constitution. (See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; see Gov. Code, § 815(a).) ¿“[P]ublic entities may only be held liable only if a statute is found declaring them to be liable.” (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.) (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App 4th 1056, 1061 citing Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809. “It is a plaintiff's responsibility to plead facts sufficient to show their cause of action lies outside the breadth of any applicable statutory immunity.” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585 [internal citation and quotation marks omitted].)

In opposition, Plaintiff asserts that the Complaint specifically alleges that LAUSD owed a duty of care to its minor students. (Compl., ¶¶ 41, 53, 61, 68, 78.) However, the statutory provision extending such liability is absent from the sixth cause of action. (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327 [“facts not alleged are presumed not to exist].) For example, in B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, liability was premised on Gov. Code §§ 815.2 and 815.6:

The complaint alleged two causes of action against defendants: (1) breach of a public entity's mandatory duty to report or cross-report child abuse allegations, under Government Code section 815.6, and (2) negligence by an employee within the scope of employment, under Government Code section 815.2, subdivision (a).

Accordingly, the demurrer to the sixth cause of action is sustained with leave to amend.

Lastly, Defendant LAUSD argues that the second cause of action for Negligent Hiring, Supervision, and Retention, the fourth cause of action for Failure to Warn, Train or Educate, and the fifth causes of action for Negligent Supervision of a Minor are duplicative of the sixth cause of action for negligence.

Plaintiff asserts that statutory and common law theories of negligence may be pleaded simultaneously and in separate counts. (See Landeros v. Flood (1976) 17 Cal.3d 399, 413.) However, as LAUSD is a government entity, its liability may only be premised on statute not common law because the Government Claims Act abolished all common law or judicially declared forms of liability for public entities, except for such liability that may be required by state or federal constitution. (See Miklosy, supra, 44 Cal.4th at p. 899.) Thus, there can be no negligence common law causes of action that are pleaded alongside statutory cause of action for negligence.

Having reviewed the Complaint, the court finds that the second, fourth, fifth, and sixth causes of action are premised on different operative facts and breaches of separate duties. The second cause of action is premised on the failure to properly train, hire, and supervise their staff. (Compl., ¶ 41.) The fourth cause of action is premised on the failure to inform and educate Plaintiff on LAUSD’s sexual harassment policies and how to report and respond to “inappropriate sexual harassment by faculty; and by failing to train its faculty, including Lowe, on LAUSD’s sexual harassment policies.” (Compl., ¶ 61.) The fifth cause of action is premised on LAUSD’s failure to “adequately and properly supervise, monitor, and protect O.B. from known and knowable dangers, such as those posed by Lowe.” (Compl., ¶ 69.) The sixth cause of action is premised on LAUSD’s failure to control or prevent Lowe’s conduct and failure to warn Plaintiff or her parents about Lowe’s conduct. (Compl., ¶ 80.)

E. Seventh Cause of Action – Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct by appellants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the appellants’ outrageous conduct. [Citation.] Conduct is considered outrageous when it is ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1164.) Whether the Defendant’s conduct was outrageous, oppressive, or malicious is a question of fact for the jury. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

Defendant LAUSD asserts that the seventh cause of action IIED fails to allege what facts to show that LAUSD’s conduct was extreme or outrageous or acted with the intent or reckless disregard towards Plaintiff. Plaintiff points out that the Complaint alleges that Lowe as an employee of LAUSD sexually assaulted Plaintiff, including grouping her breasts, touching her inner thigh, pressing his erect penis against Plaintiff’s buttocks, and sending inappropriate images to Plaintiff. (Compl., ¶¶ 16, 32.) The Complaint also alleges that LAUSD acted with reckless disregard for Plaintiff’s rights by Placing Lowe in a position of authority which enabled Lowe to commit wrongful sexual acts. (Comp., ¶¶ 83, 90.) Plaintiff’s further states that because the seventh cause of action incorporates Paragraphs 1 to 85, LAUSD’s reckless conduct can be found by the fact that LAUSD failed to supervise its employee, failed to report the sexual assault, failed to warn students of the dangers posed by staff, and failed to supervise its minor students. (Compl., ¶¶ 41, 55, 62, 70, 90, 91.)

Defendant LAUSD further asserts that it cannot be held liable for the sexual assault committed by an employee acting outside the scope of employment.

“The determination as to whether an employee committed a tort during the course of his employment turns on whether or not: 1) the act performed was either required or ‘incident to his duties’ [citation], or 2) the employee's misconduct could be reasonably foreseen by the employer in any event [citations].” (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520–521.) However, whether an employee’s sexual misconduct occurred outside the scope of employment remains a disputed issue of fact. In Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, the California Supreme Court stated: “This court has long held that whether an employee's tortious conduct falls outside of the scope of employment is generally a question of fact, even when the facts underlying that determination are not in dispute.” (Id. at p. 371.) This court declines to make the factual determination on demurrer that Defendant Lowe’s sexual misconduct occurred outside the scope of employment wherein Lowe’s coaching activities entailed “certain ‘peculiar aspects” made it foreseeable that a student may be sexually assaulted. (Id. at p. 313.) “An intentional tort is foreseeable, for purposes of respondeat superior, only if ‘in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.’ ” (Id. at p. 302 [italics original].)

Defendant LAUSD moves to strike Plaintiff’s request for attorney’s fees and punitive damages.

The court finds that Plaintiff has stated a viable claim for attorney’s fees under CCP § 1021.5 because the action seeks to protect children at school facilities and school-sanctioned events and promote the “institution and implementation of means and methods to recognize, detect and prevent pedophile behavior against children under the care of such enterprises, and institution of proper procedures and policies surrounding the mandatory duty to report suspected child molestation or endangerment.” (Compl., ¶¶ 50, 59, 67, 76, 85, 96, 105.)

Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

Plaintiff further asserts the determination of whether Plaintiff’s action would confer a significant benefit on the public is a question of fact not subject to resolution on demurrer. (See Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 966 [“The question of whether plaintiff's action is causally linked to achieving the relief obtained is a question of fact”].) The court agrees it would be premature to determine that the Plaintiffs are not entitled to attorney’s fees under section 1021.5 when the Plaintiffs have yet to prevail in this action and the merits of Plaintiff's request for attorney’s fees are not yet properly before the court.

Secondly, Plaintiff is not required to allege she attempted to settle her claims to request attorney's fees under section 1021.5 unless she seeks to recover fees under a catalyst theory. (See (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 594.) Plaintiff has made no such allegation. In non-catalyst cases, the California Supreme Court declined to extend the requirement that the plaintiff attempt to settle the action before seeking attorney’s fees under CCP § 1021.5:

[The] language [of CCP § 1021.5] does not expressly or by necessary implication require that the plaintiff have attempted to settle the dispute; it requires, instead, only that the court determine that private enforcement was sufficiently necessary to justify the award.

(Vasquez v. State of California (2008) 45 Cal.4th 243, 251–252; see also Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc. (2010) 180 Cal.App.4th 1542, 1550 [explaining that the requirement of pre-suit settlement attempts was left intact for catalyst cases].) Thus, in awarding fees under section 1021.5 for non-catalyst cases, the court may consider “whether the party seeking fees attempted to resolve the matter without litigation.” (Vasquez, at p. 251.)

To be sure, failed attempts to settle can help to demonstrate that litigation was necessary, but the absence of settlement attempts does not logically or necessarily demonstrate the contrary. Depending on the circumstances of the case, attempts to settle may have been futile, exigent circumstances may have required immediate resort to judicial process, or prior efforts to call the problem to the defendant's attention—perhaps by other parties or in other proceedings—may have been rebuffed.

Defendant LAUSD moves to strike Plaintiff’s request for punitive damages on the basis that under Gov. Code § 811.2, LAUSD is a “public entity” and Gov. Code § 3294 prohibits punitive damages against a public entity. Plaintiff does not maintain that punitive damages are permissible against LAUSD but instead seeks leave to amend Paragraphs 84 and 95 to seek punitive damages only against Defendant Lowe and Does 1 to 50.

Accordingly, the court grants Defendant LAUSD’s motion to strike punitive damages with leave to amend.

Defendant LAUSD’s demurrer to the sixth and eighth causes of action is sustained with leave to

amend. The demurrer to the second, third, and seventh causes of action is overruled. Defendant

LAUSD’s motion to strike Plaintiff’s request for attorney’s fees is denied but granted as

Plaintiff’s request for punitive damages, with leave to amend. Plaintiff is granted 30 days leave

to amend. The court sets the OSC RE: Amended Complaint for July 1, 2024, at 8:30 a.m.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Burnet Decl. ¶ 4, Ex. A.)

[2] Defendant LAUSD does not demurrer to the fourth cause of action on the basis that the claim is subject to exemption from the Government Tort Claims Act under Gov. Code § 905(m).