Judge Holly J. Fujie, Case 22STCV22801 2023-03-30 Tentative Ruling

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

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

The currently operative first amended complaint (the “FAC”) 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.

In relevant part, the FAC 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 FAC ¶¶ 12, 14, 16.) Moving Defendant had knowledge that Doe 2 had engaged in unlawful sexual conduct with other minors before he came into contact with Plaintiff, but did not disclose this knowledge to Plaintiff’s parents or any government authority. (FAC ¶¶ 18-20.)

Moving Defendant filed a demurrer (the “Demurrer”) to the first, third, and fourth causes of action on the grounds that the FAC 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 FAC concerning Plaintiff’s entitlement to punitive and statutory damages and attorney’s fees.[1]

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 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.)

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 FAC fails to allege a basis for holding a public entity liable for the first, third, and fourth causes of action.

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 stated above, as a matter of law, a public school district is not vicariously liable for a teacher’s sexual misconduct with a student and may only be held liable for its own negligence in hiring and supervising the teacher. (See Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 908-09.) Intentional infliction of emotional distress does not sound in negligence, and Plaintiff has not identified a statutory duty that provides a basis for holding Moving Defendant liable for the sexual misconduct of staff that, as a matter of law, does not occur in the scope of employment. The Opposition does not set forth facts that suggest that the defect in the intentional infliction of emotional distress claim may be cured by further amendment. The Court therefore SUSTAINS the Demurrer to the first cause of action without leave to amend.

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 Opposition does not address the arguments raised in the Demurrer. The Court finds that Plaintiff has conceded Moving Defendant’s arguments under Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021. The Court therefore GRANTS the Demurrer to the third and fourth causes of action without leave to amend.

Under 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 FAC regarding punitive, exemplary, and statutory damages, and attorney’s fees. As it is unopposed, the Court GRANTS the Motion without leave to amend. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

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.

[1] Plaintiff did not file an opposition to the Motion. Any opposition papers were required to have been filed and served at least nine court days before the hearing under CCP section 1005, subdivision (b).