Judge: Lynette Gridiron Winston, Case: 23PSCV00285, Date: 2023-10-19 Tentative Ruling
Case Number: 23PSCV00285 Hearing Date: October 19, 2023 Dept: 6
CASE NAME: Jane Doe, et al. v. Glendora Unified School District, et al.
Defendants’ Demurrer to Plaintiffs’ First Amended Complaint
TENTATIVE RULING
The Court SUSTAINS the demurrer to the Third Cause of Action as to Defendant Kelsen.
The Court SUSTAINS the demurrer to the Fourth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
The Court SUSTAINS the demurrer to the Fifth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
The Court SUSTAINS the demurrer to the Sixth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
Plaintiffs can make an offer of proof as to why leave to amend should be granted as to Defendant Kelsen.
BACKGROUND
This case arises from a sexual assault. On January 1, 2023, Plaintiffs Jane Doe (Daughter), a minor by and through her guardian ad litem, Jane GA Doe, and Jane GA Doe, individually (Mother) (collectively, Plaintiffs), filed this action against Defendants Glendora Unified School District (GUSD), Cullen Elementary School, Sandberg Elementary School, Cheryl Bonner (Bonner), Virginia Kelsen (Kelsen), and Does 1 through 20, alleging causes of action for negligent supervision of students, negligent hiring, supervision, training, and retention, intentional infliction of emotional distress (x 2), and negligent infliction of emotional distress (x 2).
On June 27, 2023, the Court sustained a demurrer to the emotional distress claims, i.e., the Third through Sixth Causes of Action, with leave to amend, and dismissed Cullen Elementary School and Sandberg Elementary School from this action. On July 26, 2023, Plaintiffs filed the operative First Amended Complaint (FAC) against GUSD, Bonner, Kelsen (collectively, Defendants), and Does 1 through 20, alleging the same causes of action.
On August 29, 2023, Defendants filed a demurrer to the emotional distress claims in the FAC. On October 9, 2023, Plaintiffs opposed. On October 12, 2023, Defendants replied.
LEGAL STANDARD
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents or release not part of court record].)
A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])
A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)
DISCUSSION
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ efforts to meet and confer insufficient, as there is no evidence they met and conferred telephonically or in person. (Danforth Decl., ¶ 3.) Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court admonishes the parties to comply with these requirements going forward.
Third Cause of Action – Intentional Infliction of Emotional Distress (by Daughter as to Defendant Kelsen)
To plead a cause of action for intentional infliction of emotional distress (IIED), the plaintiff must allege facts demonstrating: (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....” (Catsouras v. Dep’t of California Highway Patrol (2010) 181 Cal.App.4th 586, 874-875.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.)
“Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, citing Rest.2d Torts, § 46, com. d.) Said differently, the test for judging outrageous conduct is less an analytical, bright-line test but rather one that appears “more intuitive.” (KOVR-TV, Inc., supra, 31 Cal.App.4th at p. 1028.) Furthermore, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware.” (Catsouras, supra, 181 Cal.App.4th 856 at p. 875).
Defendants demur to the Third Cause of Action on the grounds that the FAC fails to allege sufficient facts to state a cause of action for intentional infliction of emotional distress (IIED) against Defendant Kelsen. The Court agrees.
The primary allegations against Defendant Kelsen are found in paragraphs 29 and 40 of the FAC. None of these allegations mention any direct interactions between Daughter and Kelsen where the parties were in each other’s presence, or that Kelsen directed any extreme and outrageous conduct toward Daughter. (See FAC, ¶¶ 29, 40.) Rather, the extent of these allegations pertain solely to interactions between Kelsen on the one hand and Mother and her husband, i.e., Daughter’s parents, on the other hand. The Court also finds these allegations to be largely conclusory contentions of Kelsen having engaged in a cover up regarding the sexual assault, (Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, 849 [conclusory allegations not admitted by demurrer]), and further notes that the FAC does not allege an investigation was never actually conducted.
Additionally, the Court notes that Plaintiffs did not respond to Defendants’ demurrer to Daughter’s IIED against Defendant Kelsen. The Court construes such failure to respond to this argument as a tacit admission that this argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 504, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)
Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action as to Defendant Kelsen. Plaintiff can make an offer of proof as to why leave to amend should be granted.
Fourth Cause of Action – Intentional Infliction of Emotional Distress (by Mother as to all Defendants)
Defendants demur to the Fourth Cause of Action on the grounds that Mother failed to allege sufficient facts to support a cause of action for IIED. Defendants’ argument is based on the contention that Mother was not physically present during any of the alleged physical abuse and that such conduct was not directed at her. The Court agrees as to Defendant Kelsen but disagrees as to Defendants GUSD and Bonner.
The Court notes that Mother need not necessarily have been physically present during any of the alleged abuse for her to have a claim for IIED. Mother is asserting a cause of action as a direct victim of Defendants' acts, or failure to act, and not for injuries based upon her direct observation of the injury to her daughter. The FAC alleges interactions between Mother and the Defendants which ostensibly indicate that such actions were directed at Mother. For example, Plaintiffs allege that GUSD and Bonner attempted to cover up the assault by instructing others to screen calls from Mother so as to avoid letting her know about the alleged sexual assault from John Doe. (FAC, ¶¶ 28, 89, subd. (b).) Plaintiffs also allege that GUSD placed Mother on leave from her position with GUSD, barred her from entering the campus, and would not respond to her multiple calls and inquiries regarding Daughter’s diabetic issues on a particular incident on May 11, 2022. (FAC, ¶¶ 49, 51.) At this stage of the proceedings, these allegations are sufficient to state a cause of action for IIED as to Defendants GUSD and Bonner.
With respect to Defendant Kelsen, however, the Court again finds the allegations to be insufficient. Plaintiffs’ allegations regarding Kelsen’s alleged efforts to block Mother from discovering the sexual assault are largely conclusory and do not clearly evidence an intent on Kelsen’s part to cause Mother to suffer extreme emotional distress. (See FAC, ¶¶ 29, 40.) At most, the allegations show that Kelsen had a phone call with Mother and her husband regarding the alleged sexual assault, that Kelsen would investigate the matter, and that Kelsen declined to have John Doe taken out of Daughter’s class at that time. (FAC, ¶ 40.) It is unclear how these acts constitute intent to cause Mother emotional distress. Plaintiffs otherwise speculate about things Kelsen could have done but did not do. (Id.) It is also important to note that the FAC does not allege Kelsen never conducted the investigation. (See Id.)
Defendants also contend that their actions are subject to immunity under Government Code section 820.2. The Court finds this issue cannot be determined from the face of the FAC. Government Code § 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." (Gov. Code § 820.2.) This immunity is extended to public entities through Government Code section 815.2, subdivision (b), so that where the public employee is immune, the public entity is immune as well. (See Gov. Code § 815.2.) In order to demonstrate immunity pursuant to section 820.2, the "public agency must demonstrate its employee in fact consciously exercised discretion in connection with the negligent acts or omission charged" and "make a showing that such a policy decision ... took place.” (Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1058 quoting Johnson v. State of California (1968) 69 Cal.2d 782, 794-795.) Here, the question as to whether any decision was discretionary for purposes of § 820.2 immunity is not properly decided on a demurrer.
Based on the foregoing, the Court SUSTAINS the demurrer to the Fourth Cause of Action for IIED by Mother as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner. Plaintiff can make an offer of proof as to why leave to amend should be granted as to Defendant Kelsen.
Fifth Cause of Action – Negligent Infliction of Emotional Distress (by Daughter against all Defendants)
To allege a cause of action for negligent infliction of emotional distress (NIED), the plaintiff must allege facts demonstrating duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)
Defendants demur to the Fifth Cause of Action on the grounds that NIED is not a cause of action, it is duplicative, and fails to state sufficient facts as to Defendant Kelsen. The Court agrees as to Defendant Kelsen, but disagrees on the other grounds.
The Court already addressed Defendants’ argument regarding whether NIED is a cause of action in its ruling on the demurrer to the original Complaint. (Order Tentative Ruling (6/27/23).) The Court still finds that the legal authority on this issue does not support Defendants’ position. In fact, the Supreme Court stated in Burgess v. Superior Court (1992) 2 Cal.4th 1064 that, “(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached.” (Id., at p. 1074.) Accordingly, the Court rejects Defendants’ arguments in this regard.
The Court also does not find Daughter’s NIED claim to necessarily be duplicative of the First and Second Causes of Action of the FAC. Defendants’ moving papers provide very little analysis on this argument, but merely contend Daughter’s NIED claim is based on the same set of facts. This is a common pleading practice and is not automatically grounds for a demurrer; plus, the same set of facts can provide the basis for multiple causes of action or pleading in the alternative. (See Dubin v. Robert Newhall Chesebrough Tr. (2002) 96 Cal.App.4th 465, 477 [“A plaintiff is permitted to plead alternative inconsistent theories.”])
The Court finds Plaintiff Daughter alleges sufficient facts to state a cause of action for NIED against Defendants GUSD and Bonner. Plaintiffs allege that Daughter was a student of GUSD, (FAC, ¶ 17), that Bonner instructed Daughter on how to deal with sexual assaults and unwanted sexual advances, (FAC, ¶ 42), which caused her emotional distress. (FAC, ¶¶ 42, 96.) Plaintiffs also allege Defendants belatedly separated Daughter and John Doe without prior notice and without considering how the action might interfere with Daughter’s 504 accommodations or her health. (FAC, ¶ 96), denied her access to water needed for her health condition (FAC, ¶¶96, 97), and accused her of fabricating the ongoing sexual abuse, harassment, and bullying (FAC, ¶ 97.). Daughter alleges she experienced other emotional distress while attending Cullen Elementary due to John Doe’s actions and GUSD’s and Bonner’s failures to address his actions in a proper manner, such as threats of violence from John Doe. (See, e.g., FAC, ¶¶ 44-49, 94, 98.)
With respect to Defendant Kelsen, however, the Court finds the FAC again fails to allege sufficient facts for Daughter to state a cause of action for NIED against Kelsen. As noted above, the FAC contains no allegations evidencing any direct interactions between Daughter and Kelsen.
As for Defendants’ governmental immunity claim, the Court declines to decide that issue at this stage for the same reasons set forth above.
Based on the foregoing, the Court SUSTAINS the demurrer to the Fifth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner. Plaintiff can make an offer of proof as to why leave to amend should be granted as to Defendant Kelsen.
Sixth Cause of Action – Negligent Infliction of Emotional Distress (by Mother against all Defendants)
Defendants demur to the Sixth Cause of Action for NIED on the grounds that NIED is not a cause of action, the FAC fails to allege facts to state a breach of a duty owed to Mother, and Mother’s claim is barred by governmental immunity.
For the reasons already set forth above, the Court rejects Defendants’ arguments that NIED is not a cause of action and the Court declines to decide Defendants’ governmental immunity claim at the demurrer stage. As discussed herein, the Court finds that the FAC alleges facts which demonstrate Defendants owed Plaintiff Mother a duty for purposes of NIED.
On the previous demurrer to the original Complaint, there was much discussion of the case of Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, in which the Court of Appeal held the defendant school district had a special relationship with the parents of a certain student who had been subjected to a series of sexual assaults and ultimately raped by a fellow student, specifically holding that the school district should have informed the parents of the first sexual assault. (Id., at p. 1196.) On the current demurrer, Defendants addressed the Phyllis P. case again, and argue that the facts are distinguishable in that here there are no facts showing that Daughter was mistreated in the past by John Doe or that GUSD deliberately withheld any information from Mother after December 13. (Demurrer, p. 17:7-24.) Defendants further argue that the Court of Appeals called into question the overall reasoning of Phyllis P., in Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 910-912, which rejected the parents attempt to seek emotional distress damages based on alleged injuries to their child who had a sexual relationship with a teacher. (Dem. pp. 17:25-19:6.)
However, the Court in Steven F. agreed that a special relationship existed in Phyllis P., which created a duty owed to the parents. noting that “the decision by school officials not to inform the parent of the danger posed by the 13 year old was clearly a decision ‘directed at’ the parent, not the student. Second, there is a sense of outrageousness in that decision which also makes it explainable under Bro’s model. The school officials in Phyllis P. were deliberately usurping the parental prerogative to protect the child.” Steven F, supra, 112 Cal.App.4th at p. 915.
Here, Mother asserts this claim as a direct victim, not as a bystander. The allegations of the FAC are construed liberally. As discussed above with Mother’s IIED claim, the FAC alleges that GUSD and Bonner attempted to cover up the assault by instructing office staff to screen calls from Mother so as to avoid letting her know about the alleged sexual assault and to thwart any requested investigation by the parents. (FAC, ¶¶ 28, 100, subd. (b).) The FAC alleges that Bonner deliberately usurped Mother’s parental prerogative to protect Daughter by holding a simulation event to train Daughter to say “no” to unwanted sexual advances, without notifying Mother or obtaining her consent. (FAC, ¶ 100, subd. (d). The FAC also alleges that GUSD placed Mother on leave from her position with GUSD, barred her from entering the campus, and would not respond to her multiple calls and inquiries regarding Daughter’s diabetic issues on a particular incident on May 11, 2022. (FAC, ¶¶ 49, 51, 100, subd. (i), (j).)
The Court finds these allegations sufficient to establish a duty owed to Mother and that she sufficiently alleges conduct directed at Mother. Mother alleges sufficient facts to state a cause of action for NIED as to Defendants’ GUSD and Bonner.
With respect to Defendant Kelsen, however, the Court finds the allegations to be insufficient for the same reasons discussed with Mother’s IIED cause of action.
Based on the foregoing, the Court OVERRULES the demurrer to the Sixth Cause of Action as to Defendants GUSD and Bonner and SUSTAINS the demurrer as to Defendant Kelsen. Plaintiff can make an offer of proof as to why leave to amend should be granted as to Defendant Kelsen.
CONCLUSION
The Court SUSTAINS the demurrer to the Third Cause of Action as to Defendant Kelsen.
The Court SUSTAINS the demurrer to the Fourth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
The Court SUSTAINS the demurrer to the Fifth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
The Court SUSTAINS the demurrer to the Sixth Cause of Action as to Defendant Kelsen and OVERRULES as to Defendants GUSD and Bonner.
Plaintiffs can make an offer of proof as to why leave to amend should be granted as to Defendant Kelsen.