Judge: Lisa R. Jaskol, Case: 23STCV20215, Date: 2024-05-24 Tentative Ruling
Case Number: 23STCV20215 Hearing Date: May 24, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On August 22, 2023, Plaintiff D.F., a minor, by and through her guardians ad litem Channing Fleetwood and Raquel Fleetwood, filed this action against Defendants Bethany Lutheran Church of Lakewood, Mary Fink, Samantha Root, and Does 1-10 for negligence, negligent hiring, supervision, and retention, violation of Education Code section 49001 et seq., violation of Education Code section 220 (discrimination based on disability in an educational setting), intentional infliction of emotional distress, and negligent infliction of emotional distress.
On October 11, 2023, the Court appointed Raquel Fleetwood to serve as Plaintiff D.F.’s guardian ad litem.
On January 29, 2024, Plaintiffs D.F. (“D.F.”), a minor, by and through her guardian ad litem Raquel S. Fleetwood, and Raquel S. Fleetwood (“Fleetwood”) filed a second amended complaint against Defendants Bethany Lutheran Church of Lakewood (“Church”), Mary Fink (“Fink”), Samantha Root (“Root”), and Does 1-10 for negligence, negligent hiring, supervision, and retention, violation of Education Code section 220 (discrimination based on disability in an educational setting), intentional infliction of emotional distress, and negligent infliction of emotional distress.
On February 28, 2024, Defendants Church, Fink, and Root (“Defendants”) filed a demurrer and a motion to strike all references to punitive damages, to be heard on May 1, 2024. On April 18, 2024, Plaintiffs D.F. and Fleetwood (“Plaintiffs”) filed oppositions. On April 24, 2024, Defendants filed replies. The Court continued the hearing to May 24, 2024.
Trial is scheduled for February 18, 2025.
PARTIES’ REQUESTS
Defendants ask the Court to sustain the demurrer to the causes of action for negligence, negligent hiring, supervision, and retention, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants also ask the Court to strike all references to punitive damages.
Plaintiffs ask the Court to overrule the demurrer and deny the motion to strike.
LEGAL STANDARD
A. Demurrer
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)
B. Motion to strike
“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 . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)
DISCUSSION
A. The second amended complaint
The second amended complaint includes the following allegations:
On January 30, 2023, ten-year-old D.F. experienced a serious and potentially life-threatening asthma attack while in Root’s class at the Church’s school. However, the Church and Root did not provide any medical assistance to D.F. at any point on January 30, 2023. D.F. had a serious asthma condition which is a qualifying disability. D.F.’s mother, Fleetwood, was called and asked to bring D.F.’s rescue inhaler to the school. Fleetwood immediately rushed to campus to take D.F. the inhaler.
When Fleetwood mother arrived at the front office, office personnel indicated they would take the rescue inhaler to D.F. D.F.’s mother trusted that the Church’s office personnel would act diligently to get D.F. her rescue inhaler. Fleetwood was unable to directly communicate with D.F.
The Church’s office personnel and Root negligently failed to contact each other regarding D.F.’s inhaler despite knowing D.F. desperately needed the inhaler to prevent further damage from her attack. During this time, Fleetwood was forced to wait.
D.F. asked Root repeatedly if she could go check for her inhaler. Root refused. Knowing D.F. had not received her rescue inhaler, Root negligently sent D.F. to her physical education class, where D.F. was required to perform physical activity. D.F. told the physical education teacher that she still needed her inhaler, but the teacher said D.F. didn’t look that bad. D.F. was afraid to disobey her teacher and therefore followed the teacher’s orders to participate in P.E. and run laps despite suffering agony from the attack and the potential of serious health repercussions.
Meanwhile, Fleetwood was growing concerned about whether D.F. had received her rescue inhaler.
Because D.F. had been forced to exert significant physical energy during her untreated asthma attack on January 30, 2023, D.F. experienced serious respiratory and medical complications which required her parents to take her to the emergency room later that day. D.F. spent five days in the Intensive Care Unit (ICU) at a nearby hospital. D.F.’s oxygen levels were seriously affected and could not be stabilized for several days.
Fleetwood experienced extreme mental anguish and emotional distress as a result of Defendants’ conduct leading to D.F.’s hospitalization.
B. Defendants’ demurrer
1. Fleetwood’s negligence-based claims
Defendants contend that Fleetwood lacks standing to bring suit because Defendants’ alleged misconduct did not harm her. According to Defendants, Fleetwood merely asserts the rights and interests of D.F. Therefore, Defendants argue, the Court should sustain the demurrer to the claims Fleetwood has asserted against them (negligence, negligent hiring, supervision, and retention, and negligent infliction of emotional distress).
In response, Plaintiffs argue that Fleetwood has standing to assert a claim for negligent infliction of emotional distress (“NIED”) on a bystander theory. (Opposition p. 6.) A bystander NIED claim has three elements: (1) the plaintiff must be closely related to the injury victim, (2) the plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and (3) as a result, the plaintiff must suffer serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1153 (Ko), citing Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668 (Thing).) NIED liability is limited to “plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.” (Id. at p. 1154, quoting Thing, supra, 48 Cal.3d at p. 666.)
Plaintiffs rely on the Court of Appeal’s decision in Ko, where the plaintiffs allegedly saw a vocational nurse abuse their son. Although the plaintiffs were not physically present when the abuse took place, they viewed the abuse in real time as they watched the livestream of video and audio on their smartphone from a “nanny cam” located in their home. (Ko, supra, 58 Cal.App.5th at p. 1146.) The trial court ruled the plaintiffs could not state a cause of action for NIED because they were not “ ‘present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim.’ ” (Ibid., quoting Thing, supra, 48 Cal.3d at p. 668.) The Court of Appeal reversed, holding the plaintiffs’ “virtual presence” during the child’s abuse through a real-time audiovisual connection satisfied the contemporaneous presence requirement of Thing. (Ko, supra, 58 Cal.App.5th at p. 1146.)
The Court of Appeal contrasted its earlier decision in Ra v. Superior Court (2007) 154 Cal.App.4th 142, 144-145 (Ra), where it concluded the plaintiff could not recover on an NIED claim arising from her emotional distress upon hearing a loud crash in a clothing store from the area where her husband was shopping, then learning a sign had fallen on his head. The Court of Appeal held the plaintiff's “ ‘fear for her husband's safety at the time she heard the loud bang emanating from the part of the store where she knew he was shopping and her belief the possibility of his injury was more likely than not are insufficient as a matter of law to establish contemporaneous awareness of her husband's injuries at the time of the injury-producing accident within the meaning of’ ” Thing. (Ko, supra, 58 Cal.App.5 at p. 1155, quoting Ra, supra, 154 Cal.App.4th at pp. 152-153.)
Here, Plaintiffs have not alleged facts showing that Fleetwood was present at the scene of the injury-producing event at the time it occurred and was then aware that it was causing injury to D.F. Unlike the plaintiffs in Ko, Fleetwood did not personally and contemporaneously perceive the injury-producing event and its traumatic consequences. Instead, like the plaintiff in Ra, Fleetwood’s fear for D.F.’s safety and concern about whether D.F. had received her inhaler are insufficient to establish contemporaneous awareness of D.F.’s injuries at the time of the injury-producing event.
The Court therefore concludes that Plaintiffs have failed to state a claim for NIED on a bystander theory. Therefore, Plaintiffs’ bystander NIED claim does not provide a basis for Fleetwood’s standing.
Plaintiffs also argue that Defendants owed Fleetwood a duty of care independent of any duty owed to D.F because Fleetwood gave D.F.’s inhaler to the Church’s staff and trusted them to act diligently to get the inhaler to D.F. (Opposition p. 6.) To support this “direct victim” NIED claim, Plaintiffs also argue that Defendants owed Fleetwood a duty to keep her updated on the events concerning her daughter but violated that duty. (Opposition pp. 6-7.)
“ ‘ “Direct victim” cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. “[T]he label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.] In these cases, the limits [on bystander cases ...] have no direct application. [Citations.] Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.” ’ ” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205-206, quoting Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038; see Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 (Potter) [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element”].) The Court therefore considers whether Fleetwood has alleged facts stating a claim for negligence.
Defendants argue that Fleetwood cannot state a claim for negligence because Defendants did not owe her a duty of care. To determine whether Defendants owed Fleetwood a duty, the Court looks at “the seven factors traditionally used by our Supreme Court to determine the existence of a duty . . . .” (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 657.) These factors are “(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Ibid.)
Assessing these factors in light of the facts alleged in the second amended complaint, the Court cannot say as a matter of law that Defendants did not have a duty to fulfill their promise to Fleetwood to ensure that Fleetwood’s daughter, D.F., received the inhaler that Fleetwood brought to the school at Defendants’ request in response to D.F.’s asthma attack. (See Potter, supra, 6 Cal.4th at p. 985 [recognizing potential for negligence liability where “the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object”].) The Court therefore overrules the demurrer to Fleetwood’s claims for negligence, NIED on a direct victim theory, and negligent hiring, supervision, and retention. The Court sustains the demurrer to Fleetwood’s claim for NIED on a bystander theory.
2. D.F.’s IIED claim
“A cause of action for intentional infliction of emotional distress exists when there is “ ‘ “ ‘ “(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's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ ” ' ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, quoting Potter, supra, 6 Cal.4th at p. 1001.) “A defendant's conduct is ‘outrageous’ when it is so “ ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Id. at pp. 1050-1051, quoting Potter, supra, 6 Cal.4th at p. 1001.) “And the defendant's conduct must be “ ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ ” (Ibid., quoting Potter, supra, 6 Cal.4th at p. 1001.)
Defendants
assert that the Court should sustain their demurrer to D.F.’s intentional infliction
of emotional distress (“IIED”) claim because D.F. has failed to plead facts showing
extreme and outrageous conduct.
The
Court cannot say as a matter of law that a person does not engage in extreme and outrageous conduct by requiring a child who is experiencing
an asthma attack to participate in strenuous physical activity even though the child has not received the inhaler she requested. The Court overrules the
demurrer to the IIED claim.
C. Defendants’ motion to strike punitive damages
allegations
1. Punitive damages
Civil Code section 3294 provides in part:
“(a) In an action for the breach of an obligation not
arising from contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the plaintiff,
in addition to the actual damages, may recover damages for the sake of example
and by way of punishing the defendant.
* * *
“(c) As used in this section, the following definitions shall apply:
“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
"(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”
(Civ. Code, § 3294, subds. (a), (c).)
2. Defendants’ motion
Defendants ask the Court to strike the punitive damages allegations in the second amended complaint because Plaintiffs have not alleged facts showing that Defendants engaged in conduct amounting to malice, oppression or fraud. According to Defendants, their conduct was at most negligent. (See Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128 [“Simple negligence will not justify an award of punitive damages”].)
Plaintiffs oppose the motion, arguing the second amended complaint alleges facts showing Defendants acted with conscious disregard of the rights or safety of D.H., supporting D.F.’s punitive damage claim.
The Court cannot say as a matter of law that a person does not act with conscious disregard of the rights of safety of another when the person requires a child who is experiencing an asthma attack to participate in strenuous physical activity even though the child has not received the inhaler she requested. The Court denies the motion to strike the punitive damage allegations.
CONCLUSION
The Court SUSTAINS the demurrer of Defendants Bethany Lutheran Church of Lakewood, Mary Fink, and Samantha Root to Plaintiff Raquel S. Fleetwood’s bystander negligent infliction of emotional distress claim with 30 days leave to amend. In all other respects, the Court OVERRULES the demurrer.
The Court DENIES the motion to strike filed by Defendants Bethany Lutheran Church of Lakewood, Mary Fink, and Samantha Root.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.