Judge: Holly J. Fujie, Case: 22STCV22801, Date: 2023-01-13 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 22STCV22801    Hearing Date: January 13, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Alhambra Unified School District (sued as “Doe 1”) (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            Plaintiff’s complaint (the “Complaint”) alleges: (1) intentional infliction of emotional distress; (2) negligence (negligent hiring and/or retention/failure to warn, train, or educate; (3) breach of fiduciary duty; (4) constructive fraud; and (5) sexual battery.[1]

In relevant part, the Complaint alleges: While Plaintiff was a student at an elementary school within Moving Defendant’s school district, he was sexually harassed, molested, and abused by Defendant Doe 2 (“Doe 2”), who was a teacher at the school.  (See Complaint ¶¶ 12, 14, 16.)  Moving Defendant had knowledge that Doe 2 had engaged in unlawful sexual conduct with other minors in the past.  (Complaint ¶ 18.)  Moving Defendant did not disclose this knowledge to Plaintiff’s parents or any government authority.  (Complaint ¶ 20.) 

Moving Defendant filed a demurrer (the “Demurrer”) on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action and is uncertain.  Moving Defendant also filed a motion to strike (the “Motion”) portions of the Complaint concerning damages.

DEMURRER

Meet and Confer

The meet and confer requirement has been met for both the Demurrer and Motion.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge.  (Id.)  Demurrers for uncertainty are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.  (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.) 

Tort Liability of a Government Entity

            The Tort Claims Act immunizes public entities from tort liability unless liability is authorized by statute.  (See Gov. Code § 815, subds. (a)-(b); K.M. Grossmont Union High School District (2022) 84 Cal.App.5th 717, 756.)  Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.  (Gov Code § 815.6.)  A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.  (Gov. Code § 815.2, subd. (a).)

A school district cannot be held vicariously liable for a teacher’s sexual misbehavior with a student.  (Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 908-09 (citing John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438).)  The only way a school district may be held liable must be premised on its own direct negligence in hiring and supervising the teacher.  (Id. at 909.)  A public school district may be vicariously liable under Government Code section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.  (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)

            The Demurrer argues that the causes of action alleged against Moving Defendant in the Complaint fail to set forth a proper basis for holding a public entity liable.  The Court will analyze Moving Defendant’s arguments as they apply to each cause of action alleged against it in the Complaint.

First Cause of Action: Intentional Infliction of Emotional Distress

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.  (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.)

As previously stated, a school district is not vicariously liable for a teacher’s sexual misconduct with a student.  (See Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 908-09.) 

Plaintiff argues that Moving Defendant may be held liable for intentional infliction of emotional distress pursuant to Lawson v. Superior Court (2010) 180 Cal.App.4th 1372 (“Lawson”), Toney v. State (1976) 54 Cal.App.3d 779 (“Toney”), and Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193 (“Phyllis P.”).  Lawson and Toney, neither of which involve sexual misconduct of a teacher, are distinguishable because the respective courts’ analyses of government liability were predicated on a finding that the defendant employees’ actions arose out of the scope of employment. 

Phyllis P. is also distinguishable.  In Phyllis P., the appellate held that the trial court erred in sustaining the defendants’ demurrer to the petitioner’s causes of action for negligent and intentional infliction of emotional distress arising out of the sexual assault of the petitioner’s daughter by another student.  (See Phyllis P., supra, 183 Cal.App.3d at 1195).  The Phyllis P. court held that a school owed a duty of care to a parent arising from a special relationship, and that the school breached that special relationship when the school affirmatively concealed from the petitioner that her child had reported having been repeatedly molested by a fellow student, and that the school had instituted a program of psychological counseling for the child.  (Id. at 1195-96.)  Phyllis P. addressed school officials’ failure to inform the petitioner of the danger posed by her daughter’s classmate—a decision “directed at” the parent, rather than at the student.  (See id.; Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 915.)  Unlike in Phyllis P., the allegations in the Complaint solely concern Moving Defendant’s liability based on conduct directed at Plaintiff rather than a third party. 

The Court therefore SUSTAINS the Demurrer to the first cause of action with 20 days leave to amend.

Second Cause of Action: Negligence

The elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) 

            The Complaint alleges that Moving Defendant negligently hired and supervised Doe 2.  (See Complaint ¶ 58.)  The Complaint also alleges that Moving Defendant was negligent per se due to its failure to comply with California Penal Code section 11166.  (See Complaint ¶ 61-69.) 

            As previously recited, a government entity may be liable for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.  (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)  The Demurrer’s sole argument regarding the second cause of action is that negligence per se is not an independent cause of action.  The doctrine of negligence per se is not a separate cause of action; rather, it creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.  (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534.)  While Moving Defendant’s argument is an accurate statement of law, the Complaint alleges that Moving Defendant was negligent in its retention and supervision and that it was negligent because it violated Penal Code section 11166.  The negligence per se allegations are alleged within the second cause of action and are not alleged as a separate cause of action.  Furthermore, a demurrer must dispose of an entire cause of action to be sustained.  (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  The Court therefore OVERRULES the Demurrer to the second cause of action.

Third and Fourth Causes of Action: Breach of Fiduciary Duty and Constructive Fraud

To state a cause of action for breach of fiduciary duty, a plaintiff must allege: (1) the existence of a fiduciary relationship; (2) breach of that relationship; and (3) damages.  (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.)  Whether a fiduciary duty exists is generally a question of law.  (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915.)

Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.  (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)  Most acts by an agent in breach of his fiduciary duties constitute constructive fraud.  (Id.)  The elements of a constructive fraud cause of action are: (1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury. (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) 

The Complaint alleges that Moving Defendant entered into a fiduciary duty with Plaintiff because it acted in loco parentis when it encouraged Plaintiff’s family to place Plaintiff within its care.  (See Complaint ¶ 101.) 

The Demurrer argues that the Complaint does not sufficiently allege the existence of a fiduciary relationship between Plaintiff and Moving Defendant.  Plaintiff cites to Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 812 (“Weiland”) to support the argument that Moving Defendant acted as his fiduciary.  Weiland is inapposite.  In Weiland, the Court of Appeal noted that the “confidential relations existing between attorney and client are in many respects similar to those existing between a teacher and his pupils.  (Weiland, supra, 179 Cal.App.2d at 812.)  The Weiland court made this analogy in the context of an analysis of the termination of a public school employee for immoral and unprofessional conduct.  (See id. at 810-11.)  Weiland did not involve consideration of a fiduciary duty, and the Weiland court made no rulings on the existence of a fiduciary duty between teachers or schools and students.  The Court therefore SUSTAINS the Demurrer ot the third and fourth causes of action with 20 days leave to amend.  If Plaintiff files an amended pleading that does not sufficiently allege breach of fiduciary duty and constructive fraud, the Court will consider sustaining an ensuing demurrer to these causes of action without leave to amend. 

MOTION TO STRIKE

Under California Code of Civil Procedure (“CCP”) section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

Moving Defendant seeks to strike the allegations in the Complaint’s prayer for appropriate statutory damages; and (2) for attorney’s fees pursuant to CCP section 1021.5 and Civil Code sections 52.4 and 52. (See Complaint 32:15, 32:18.)

Statutory Damages

            The Complaint prays for appropriate statutory damages without identifying any statutory basis for an award.  The Court GRANTS the Motion as to these damages with 20 days leave to amend.  (See Carter v. Prime Healthcare Paradise Valley LLC (2001) 198 Cal.App.4th 396, 410 (where statutory remedies are invoked, the facts must be pleaded with particularity).) 

Attorney’s Fees

Attorney’s fees are generally not recoverable unless authorized by a contract, statute or law.  (CCP § 1033.5, subd. (a)(10).) 

Civil Code section 52.4 authorizes a person who has been subjected to gender violence to bring a civil action for damages against any responsible party and recover attorney’s fees.  (Civ. Code § 52.4, subd. (a).)  Civil Code section 52 allows a plaintiff to recover damages against defendants who has violated specified civil rights.  (See Civ. Code § 52.)  In an action for damages a defendant based upon that defendant’s commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney’s fees to a prevailing plaintiff against the defendant who has been convicted of that felony.  (CCP § 1021.4.) 

The Complaint does not allege grounds for liability under Civil Code sections 52.4, 52, or CCP section 1021.4.  The Court therefore SUSTAINS the Motion to these bases for the recovery of attorney’s fees with 20 days leave to amend.

Under CCP section 1021.5, upon motion, a court may award attorney’s 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.  (CCP § 1021.5.)

Moving Defendant argues that the Complaint does not implicate the enforcement of an important right affecting the public interest.  There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action, however.  (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.)  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.  (Id.)  Since Plaintiff may move for an award of attorney’s fees under the statute with or without including the statute in the Complaint and the issue of public benefit may be determined or not at trial irrespective of whether the allegations are left or stricken, the Court DENIES the Motion as to attorney’s fees pursuant to CCP section 1021.5.  (See id.)

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 13th day of January 2023