Judge: Lee W. Tsao, Case: 23NWCV02532, Date: 2024-10-09 Tentative Ruling
Case Number: 23NWCV02532 Hearing Date: October 9, 2024 Dept: C
E.G. VS. ABC UNIFIED SCHOOL DISTRICT,
ET AL.
CASE NO.: 23NWCV02532
HEARING: 10/9/24 @ 10:30 A.M.
#10
TENTATIVE RULING
I.
Defendants’ demurrer to plaintiff’s complaint is SUSTAINED in part and
OVERRULED in part as set forth below.
II.
Defendants’ motion to strike is MOOT IN PART and GRANTED IN PART.
Moving Party to give NOTICE.
Defendant ABC Unified
School District required students who were attending school in person to wear
masks. Plaintiff E.G., a fifth grader who attended Kennedy Stern Academy during
the 2021-2022 school year, did not follow the mask requirement. She was also
unvaccinated. Upon presenting to the school in January 2022, the school advised
her she could return to school if she tested negative for COVID-19 after quarantining
for five days. She returned the following day with her father, and the school physically
isolated her and then sent her home.
Plaintiff sues the ABC
Unified School District; Director of Secondary Curriculum and Professional
Learning Crechena Wise; principal Melissa Christensen; and Director of School
Services, Child Welfare and Attendance Melinda Ortiz for the following causes
of action: (1) false imprisonment; (2) negligence; (3) intentional infliction
of emotional distress; (4) violation of Bane Act; (5) violation of right to
free speech; and (6) human experimentation. Plaintiff alleges that Wise,
Christensen, and Ortiz were acting within the scope of their employment. (Compl.,
¶¶ 3, 4, 5.)
Defendants demur to the
six causes of action in the complaint on the grounds that they do not state
facts sufficient to constitute a cause of action.
Defendants also move to
strike portions of the claim for penalties and punitive damages.
I.
Demurrer
Legal Standard
The party against whom
a complaint has been filed may object to the pleading, by demurrer, on several
grounds, including that the pleading does not state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A party
may demur to an entire complaint, or to any causes of action stated therein. (Code
Civ. Proc., § 430.50, subd. (a).) The complaint must be construed liberally by drawing
reasonable inferences from the facts pleaded. (Flynn v. Higham
(1983) 149 Cal.App.3d 677, 679.)
Meet-and-Confer
The
parties have sufficiently met and conferred. (Decl. Stumreiter, ¶¶ 2,3.) (Code
Civ. Proc., § 430.41, subd. (a)(3).)
Request for Judicial
Notice
Plaintiff requests
judicial notice of the contents of an email from the California Department of
Public Health dated February 3, 2022, a response to a technical assistance
request. Plaintiff requests this under Evidence Code section 452, subdivision (c).
Defendants object on various grounds.
The Court grants
judicial notice of the contents of the technical assistance under Evidence Code
section 452, subdivision (h). (American Indian Model Schools vs. Oakland
Unified School Dist. (2014) 277 Cal.App.4th 528, 572.)
Discussion
Immunity
Defendants assert both public entity immunity and individual
immunity. Defendants argue public entity immunity based on Government Code
section 815.2 and individual immunity based on Government Code section 820.6.
Public Entity Immunity
A public entity is not liable for an injury, except as otherwise
provided by statute. (Gov. Code, § 815, subd. (a).)
Direct Liability
Because the first three causes of action
are based on common law, the school district is immune from direct liability
for those causes of action.
Derivative
Liability
A public employee is immune from liability for acts committed “in good
faith, without malice and under the apparent authority of an enactment that is
unconstitutional, invalid or inapplicable” except to the extent the employee
would have been liable had the enactment been constitutional, valid and
applicable. (Gov. Code, §
820.6.) The term “enactment”
means a constitutional provision, statute, charter provision, ordinance, or
regulation. (Gov. Code, § 810.6.) Here, Defendants do not state which enactments they believed were constitutional,
valid, or applicable and which turned out not to be constitutional, valid, or
applicable. Thus, the demurrer is not sustained on this ground.
Under Government Code section 815.2, subdivision
(a), vicarious liability may be imposed on public entities for the
“tortious acts and omissions of their employees.” (See Comment
to Gov. Code, § 815.2.)
The Court will next
adjudicate derivative public entity liability and public employee liability of
the individual causes of action.
False Imprisonment
Defendants argue that taking Plaintiff to an isolation room was within
the authority of a government entity acting under its police power. In
opposition, Plaintiff argues that no immunity for false imprisonment exists for
public employees.
The elements of a tortious
claim of false imprisonment are the following: (1) the
nonconsensual, intentional confinement of a person, (2) without lawful
privilege, and (3) for an appreciable period, however brief. (Lyons v. Fire
Insurance Exchange (2008) 161 Cal.App.4th 880, 888.)
Plaintiff alleges that on or about January 24, 2022, defendants
ABCUSD, Christensen, and Ortiz abused their position of authority over E.G.
when they isolated, segregated, and imprisoned her in an isolation room against
her will. (Compl., ¶ 65.)
Contrary to what Defendants claim, they lack police power and
acted without lawful privilege. The privilege applies to a property owner
protecting his, her, or their property; medical professionals detaining a
person for psychiatric evaluation and treatment; a private citizen arresting
someone. (See Collyer vs. S.H. Kress & Co. (1936) 5 Cal.2d 175, 180;
Heater v. Southwood Psychiatric Ctr. (1996) 42 Cal.App.4th 1068,
1079-1081; Pen. Code, § 837.) Police power does not extend to a school district
and its employees in this situation. The case that Defendants cite is about a
county making and enforcing ordinances and regulations, which is not what is
happening here. (Cotta v. City and County of S. F. (2007) 157
Cal.App.4th 1550, 1557.)
The demurrer to the first cause of action is OVERRULED.
Negligence
Defendants argue that the school district
has no common law negligence liability. Defendants also argue that the
individuals are not liable because the negligence claim is based on duties that
are not cognizable as duties. Defendants further argue that Plaintiff must
plead any statutory duties.
To allege
negligence claims, complainants need only state what occurred, and generally
that the acts were negligently done, but “need not state the specific act or
omission constituting negligent conduct.” (Crouse v. Brobeck (1998) 67
Cal. App.4th 1509, 1532.)
Here,
Plaintiff alleges that defendants breached a duty by “intentionally and
negligently failing to exercise ‘that degree of care ‘which a person of
ordinary prudence, charged with comparable duties, would exercise under the
circumstances’ when they committed negligent and intentional conduct of intentional
intimidation, bullying, harassment, discrimination, humiliation, isolation,
dehumanization, segregation akin to jailing a healthy child, attempting to
force E.G. into independent study in violation of the Education Codes, and
filed a false police report knowing that the claim or report was false, or with
reckless disregard for the truth or falsity of the claim or report.” (Compl., ¶
80.)
The Court
finds that Plaintiff has met the pleading requirements by alleging what occurred:
jailing a healthy child, attempting to force the child into independent study,
and filing a false police report.
Contrary
to what Defendants claim, Plaintiff does not need to plead statutory duties in
these circumstances.
The
demurrer to the second cause of action is OVERRULED.
Intentional
Infliction of Emotional Distress
Defendants
argue that the conduct alleged is not extreme or outrageous. Defendants also argue that the alleged report
to police is privileged under Civil Code section 47.
Pleading intentional infliction of emotional
distress requires the following: “(1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff suffered severe
emotional distress; and (3) the defendant's extreme and outrageous conduct was
the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of
Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)
The conduct must be so extreme as to be beyond
all bounds of decency tolerated by society. (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050-1051.) Mere indignities, insults, threats, annoyances, petty
oppressions, and the like are not enough. (Id. at 1051.) Whether the
alleged conduct is outrageous is usually a question of fact. (So v. Shin
(2013) 212 Cal.App.4th 652, 672.)
The Court finds that separating a potentially infectious
child from other children and adults at an elementary school was a
precautionary measure and, as such, was not extreme or outrageous.
As to allegedly filing a false police report, the
privileges afforded by section 47 of the Civil Code are not limited to actions
for defamation. (Deaile v. General Telephone Co. of Cal. (1974) 40
Cal.App.3d 841, 849.) But it does not make privileged any communication between a person and a law enforcement agency in
which the person makes a false report that another person has committed, or is
in the act of committing, a criminal act or is engaged in an activity requiring
law enforcement intervention, knowing that the report is false, or with
reckless disregard for the truth or falsity of the report. (Civ. Code, § 47,
subd. (b)(5).) Here, Plaintiff alleges that defendant Crechena Wise called the
sheriff’s department and knowingly filed a false police report claiming E.G.’s
father was “hostile” when a video taken of the incident demonstrates otherwise.
(Compl., ¶ 37.) Based on these
allegations, the Court finds that the privilege does not apply. However, the Court also finds that making a false
report that someone is “hostile,” as opposed to more serious conduct, is not
extreme or outrageous.
The demurrer to the third cause of action is
SUSTAINED with 20 days leave to amend.
Bane Act
Defendants argue that there was no interference
with speech rights because the alleged actions concerned plaintiff’s conduct,
not speech. Defendants also argue that wearing masks was required by the
California Department of Public Health and Los Angeles County.
The Bane Act and related statutes were California's response to
the increase in hate crimes. (Bay Area Rapid Transit Dist. v.
Super. Ct. (1995) 38 Cal.App.4th 141, 144.) Civil Code section 52.1
provides that a person may bring a cause of action “in his or her own name and
on his or her own behalf” against anyone who ‘interferes by threats,
intimidation or coercion, with the exercise or enjoyment’ of any constitutional
or statutory right.” (Ibid.) To state a cause of action
under section 52.1 there must first be violence or intimidation by threat of
violence. (Gabrielle A. v. Cnty. of Orange (2017) 10 Cal. App. 5th
1268, 1290.) 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. (Ibid.)
Plaintiff
does not allege that she belongs to any of the groups set forth in Civil Code
section 51.7 or a group similarly protected by constitution or statute from
hate crimes.
The
demurrer to the fourth cause of action is SUSTAINED with 20 days leave to
amend.
Violation
of Right to Free Speech
Defendants
argue that the fifth cause of action fails because the clause of the
Constitution and the statute on which Plaintiff relies lack a private damage
remedy. Defendants also argue that the speech Plaintiff alleged is not speech,
but rather conduct. Plaintiffs allege violations of Califiornia Constitution,
Article I, section 2, subdivision (a) and Education Code section 48907, section
(a). Plaintiff seeks punitive damages and compensation for emotional damage.
(Compl., ¶¶ 116, 117.)
Nothing
in the language or history of the California Constitution, Article I, section
2, subdivision (a) indicates an implied right to seek money damages for its
violation. (Degrassi v. Cook (2002) 29 Cal.4th 333, 342.)
Further,
there is no remedy for violating an elementary school student’s right to free
speech under the Education Code. The only remedy available under the Education
Code is to a high school student, and the remedies available are injunctive and
declaratory relief and attorney’s fees. (Educ. Code, § 48950, subd. (b).)
The
demurrer to the fifth cause of action is SUSTAINED without leave to amend.
Human
Experimentation
Defendants
demur to the sixth cause of action on the grounds that the mask requirement is
not an experiment, but rather a school safety measure.
Plaintiff
alleges the following: “California Health & Safety Code 24714 provides that
a ‘medical experiment’ means, among other things ‘(a) the use of a drug or
device.’ Masks meet the definition of “device” per Health & Saf Code
109920. The masks are only emergency use authorized by the Federal Drug
Administration (‘FDA’) and as such legally defined as experimental.” (Compl, ¶
121.)
“Medical
experiment” means, “the severance or penetration or damaging of tissues of a
human subject or the use of a drug or device (as defined in Section 109920 and
109925), electromagnetic radiation, heat or cold, or a biological substance or
organism, in or upon a human subject in the practice or research of medicine in
a manner not reasonably related to maintaining or improving the health of the
subject or otherwise directly benefiting the subject.” (Health & Saf. Code,
§ 24174, subd. (a).)
Here,
Plaintiff has not pleaded that masks were used in the practice or research of
medicine in a manner not reasonably related to maintaining or improving her
health or for her direct benefit.
The
demurrer to the sixth cause of action is SUSTAINED with 20 days leave to
amend.
II.
Motion
to Strike
Motions to strike are used to reach defects or
objections to pleadings which are not challengeable by demurrer (i.e., words,
phrases, prayer for damages, etc.). (Code Civ. Proc., §§ 435, 436 & 437.) A
motion to strike lies only where the pleading has irrelevant, false, or
improper matter, or has not been drawn or filed in conformity with laws. (Code Civ.
Proc., § 436.) The grounds for moving to strike must appear on the face of the
pleading or by way of judicial notice. (Code Civ. Proc., § 437.)
Meet-and-Confer
The parties have sufficiently met and
conferred. (Decl. Stumreiter, ¶¶ 2,3.) (Code Civ. Proc., § 435.5, subd.
(a)(3).)
Discussion
Defendants move to strike the punitive damages allegations,
the civil penalty allegations pursuant to Civil Code section 52.1, and the
civil penalty allegations pursuant to Health and Safety Code section 24176.
Because the Court has sustained the demurrer as
to the Bane Act and Human Experimentation causes of action, Defendants’ motion
to strike the civil penalties is moot.
Defendants argue that punitive damages against
a public entity are barred by Government Code section 818. Defendants are
correct.
Thus, defendants’ motion to strike punitive damages
is granted with respect to the school district. Defendants’ motion to strike
civil penalty allegations pursuant to Civil Code section 52.1 and Health and
Safety Code section 24176 is moot.
Hence,
defendants’ motion to strike is GRANTED in part and MOOT in part.