Judge Lynette Gridiron Winston, Case Number: 23PSCV03427, Date: 2024-04-29 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV03427, Date: 2024-04-29 Tentative Ruling

Case Number: 23PSCV03427 Hearing Date: April 29, 2024 Dept: 6

CASE NAME: Yang Yang, et al. v. Foothill Christian Church Corporation, et al.

1. Defendants’ Foothill Church of Glendora and Lindsey Wilson’s Demurrer to Plaintiff’s First Amended Complaint; and

2. Motion to Strike Plaintiff’s First Amended Complaint

TENTATIVE RULING

The Court SUSTAINS the demurrer to the Seventh Cause of Action with leave to amend. The Court OVERRULES the demurrer in all other respects. Plaintiffs must file and serve an amended complaint within 20 days of the Court’s order. Alternatively, if Plaintiffs decline to amend and choose to proceed on the remaining causes of action, Defendants must file and serve an answer within 30 days of the Court’s order.

The Court GRANTS the motion to strike to the following portions of the First Amended Complaint:

1. Paragraph 7, page 3 line 4, “jointly and severally”;

2. Paragraph 49, “emotional distress, mental anguish, embarrassment, humiliation and anxiety and “cost of counseling and therapy as a direct result of FOOTHILL’S and MRS. WILSON’s breach of the Contract.” “MRS. WILSON’S”, “MRS. WILSON’S”;

3. Paragraph 60, page 13, line 18, “and MRS. WILSON” “their”

4. Paragraph 63, page 14, line 7 “and MRS WILSON”

The Court DENIES the motion to strike in all other respects.

Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a case involving childhood bullying. On November 3, 2023, plaintiffs Nicholas Amoroso (Nicholas), Yang Yang, Marilyn Amoroso, a minor, by and through her parent and guardian ad litem, Nicholas Amoroso (collectively, Plaintiffs) filed this action. On February 23, 2024, Plaintiffs filed the operative First Amended Complaint (FAC) against defendants Foothill Christian Church Corporation (Foothill), Lindsey Wilson (Wilson) (collectively, Defendants), and Does 1 through 10, alleging causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, negligent supervision, negligent infliction of emotional distress, intentional infliction of emotional distress, California civil rights violation, and fraud in the inducement of a contract.

On March 25, 2024, Defendants demurred to and moved to strike the FAC. On April 16, 2024, Plaintiffs opposed the demurrer and motion to strike. Defendants did not reply to the oppositions.

LEGAL STANDARD – Demurrer

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 of 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.)

REQUESTS FOR JUDICIAL NOTICE – Demurrer

The Court GRANTS Defendants’ requests for judicial notice. (Evid. Code § 452, subd. (d).) But the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents,” it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

DISCUSSION – Demurrer

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a)(1), Defendants were required to meet and confer with Plaintiffs either in person or by telephone before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a)(1).) Defendants’ supporting declaration does not indicate having met and conferred in person or by telephone. (Reisdorph Decl., ¶ 6.) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will still consider the demurrer, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward.

First Cause of Action – Breach of Contract

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Defendants demur to the First Cause of Action for breach of contract on the grounds that it fails to state a cause of action, is uncertain, and it cannot be ascertained whether the contract is written, oral, or implied by conduct. Defendants contend the FAC alleges breach of contract based on terms not contained in the written contract, specifically as it pertains to Foothill’s policies regarding bullying. Defendants argue that it is unclear whether the terms that were allegedly violated were written, oral, or implied. Defendants further contend it is unclear whether this cause of action is alleged only against Foothill or against both Foothill and Wilson, the latter of whom is not allegedly a party to the written contract. Defendants also contend that it is unclear as to which alleged bullying activities occurred on campus or off.

In opposition, Plaintiffs contend that the FAC shows Nicholas and Foothill entered into a written contracted signed by both parties on January 24, 2022, and that the terms of that contract incorporated Foothill’s policies from the 2022-2023 Elementary Handbook. Plaintiffs contend neither the contract nor the Handbook provided a three strikes disciplinary policy, and at most only mentioned a bullying policy that was not available to Nicholas at the time of the contract. Plaintiffs contend the FAC alleges Nicholas performed as promised. Plaintiffs further contend they have alleged that Foothill breached the contract on January 21, 2023 by adding the three strikes disciplinary policy, which was not included in the original contract, and then removing Marilyn from the school under that policy.

The Court finds the FAC contains sufficient allegations to state a cause of action for breach of contract. The Court liberally construes pleadings at this stage with a view toward substantial justice between the parties. (Code Civ. Proc., § 452.) In essence, Plaintiffs allege that Nicholas and Yang on the one hand and Foothill on the other entered into a contract for Marilyn to attend school during the 2022-2023 and 2023-2024 school years, that the contract incorporated Foothill’s various policies into its terms, that Foothill unilaterally added the three strikes disciplinary policy after the fact, and that Foothill breached by removing Marilyn from the school under that policy. (FAC, ¶¶ 10-12, 20, 34.) The Court further notes that the FAC alleges Foothill failed to comply with its own policy regarding bullying by failing to address the various instances of bullying Marilyn experienced. (FAC, ¶¶ 13-33.)

Moreover, the Court does not find that it cannot be ascertained from the FAC whether the contract is oral or written. (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 99 [if contract as a whole can be construed as written despite unclear pleadings, the claim is not subject to demurrer under Code of Civil Procedure section 430.10, subdivision (g)].) The FAC expressly alleges that Nicholas and Yang on the one hand and Foothill on the other entered into a written contract, which forms the basis of this action. (FAC, ¶ 10.) The FAC also alleges that Wilson gave Nicholas notice of the modification to include the three strikes disciplinary policy in an email, which was sent after Nicholas allegedly registered Marilyn for the 2023-2024 school year and paid all fees. (FAC, ¶¶ 19-20.) The Court finds these allegations sufficient to demonstrate the existence of a written contract.

Furthermore, the Court does not find the FAC uncertain as to whether this cause of action is alleged against Wilson. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [demurrers for uncertainty are disfavored because ambiguities and be clarified through modern rules of discovery].) The FAC indicates at the top of the First Cause of Action that it is directed to Foothill only. (FAC, 8:21-23; see also Cal. Rules of Court, rule 2.112, subd. (4) [“Each separately stated cause of action, count, or defense must specifically state: (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’)”.]) While the FAC does allege in certain places that Wilson breached the contract, (FAC, ¶¶ 7, 49), the Court reads this as Wilson doing so in her capacity as employee of Foothill, (FAC, ¶ 5).[1] Any ambiguity on this point can be clarified through discovery. (See Lickiss, supra, 208 Cal.App.4th at p. 1135.) Additionally, since Defendants brought this demurrer together rather than separately, (Notice of Demurrer, 2:6-11), it is enough for Plaintiffs to have alleged a cause of action for breach of contract against Foothill, (Majestic Realty Co. v. Pacific Lighting Corp. (1974) 37 Cal.App.3d 641, 642-643 [a joint special demurrer of two defendants must be overruled if the complaint is good against the other]).

Based on the foregoing, the Court OVERRULES the demurrer to the First Cause of Action.

Second Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

“’The covenant of good faith is implied as a supplement to express contractual covenants to prevent a contracting party from engaging in conduct that frustrates the other party's rights to the benefits of the agreement.’ [Citation.]” (Thompson Pac. Constr., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 541.) To state a cause of action for breach of the implied covenant of good faith and fair dealing, the plaintiff must allege facts demonstrating breach beyond the contractual duty itself. (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.)

Defendants demur to the Second Cause of Action for breach of the implied covenant of good faith and fair dealing on the grounds that it fails to state a cause of action, is uncertain, and it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct. More specifically, Defendants contend this cause of action is duplicative of the First Cause of Action.

In opposition, Plaintiffs contend they have alleged Foothill breached its contractual obligation, in that Foothill and Wilson prevented Plaintiffs from receiving the benefits of the contract.

The Court finds the FAC alleges sufficient facts to state a cause of action for breach of the implied covenant of good faith and fair dealing. The FAC alleges that the three strikes disciplinary policy was added after Nicholas had registered and paid for Marilyn to attend Foothill during the 2023-2024 school year. (FAC, ¶¶ 19-20.) The FAC then alleges that Foothill ended Marilyn’s enrollment at Foothill based on that three strikes disciplinary policy. (FAC, ¶ 28.) Viewed as a whole, the Court reads the FAC as alleging that Foothill unilaterally added this policy after the fact and then used it as the basis for ending Marilyn’s enrollment, thereby preventing her from obtaining the benefits of the contract. (See Cobb v. Ironwood Country Club (2015) 233 Cal.App.4th 960, 963 [“When one party to a contract retains the unilateral right to amend the agreement governing the parties' relationship, its exercise of that right is constrained by the covenant of good faith and fair dealing which precludes amendments that operate retroactively to impair accrued rights.”])

Therefore, the Court OVERRULES the demurrer to the Second Cause of Action.

Fourth Cause of Action – Negligent Infliction of Emotional Distress

To state a cause of action for negligent infliction of emotional distress, the plaintiff must allege facts demonstrating the traditional elements of duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)

Defendants demur to the Fourth Cause of Action for negligent infliction of emotional distress on the grounds that it fails to state a cause of action. Defendants contend this is a duplicate of the Third Cause of Action for negligent supervision and Fifth Cause of Action for intentional infliction of emotional distress.

In opposition, Plaintiffs contend they have alleged sufficient facts to state a cause of action for negligent infliction of emotional distress, namely that Defendants owed a duty to Marilyn, they breached that duty, and Marilyn was harmed as a result. Plaintiffs also contend a demurrer is not the place for a factual dispute, which Defendants are attempting here.

The Court finds the FAC alleges sufficient facts to state a cause of action for negligent infliction of emotional distress. The FAC alleges that Foothill was Marilyn’s school and that Wilson was an employee of Foothill, and thereby alleges the basis for the duty to Marilyn. (FAC, ¶¶ 4-5; see Doe v. Lawndale Elementary Sch. Dist. (2021) 72 Cal.App.5th 113, 125-126 [school districts and their employees have special relationships with their students and thereby owe their students a duty of care].) The FAC further alleges that Defendants breached that duty by failing to address the bullying, blaming Marilyn for the bullying she was experiencing, and embarrassing her in front of others, and that Marilyn suffered emotional and other harm as a result. (FAC, ¶¶ 74-76.)

The Court notes that a cause of action for negligent supervision differs from a regular negligence cause of action because the former focuses on the employer’s failure to supervise the employee. (See J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 Cal.App.5th 1142, 1163.) Additionally, intentional infliction of emotional distress differs because it is an intentional tort and is not based in negligence. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) Thus, the Court does not find this cause of action for negligent infliction of emotional distress duplicative of the Third or Fifth Causes of Action. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative causes of action generally subject to demurrer].)

Therefore, the Court OVERRULES the demurrer to the Fourth Cause of Action.

Fifth Cause of Action – Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts demonstrating, “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.)

Defendants demur to the Fifth Cause of Action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action. Defendants contend their alleged conduct is not extreme or outrageous. Defendants contend calling Marilyn in to the office regarding bullying is not extreme, but rather is consistent with Foothill’s policies, and that blaming Marilyn herself for the bulling is not contradicted by the prior allegations that Marilyn was involved in the underlying activities at issue. Defendants also contend that involving Marilyn in a meeting discussing the reason for her removal from Foothill is not outrageous or extreme, nor is her removal from the music program in front of several peers.

In opposition, Plaintiffs contend they have alleged sufficient facts to state a cause of action for intentional infliction of emotional distress. Plaintiffs contend that Defendants do not dispute the facts alleged, but instead they seek to downplay the seriousness of their actions and their effect on Marilyn.

The Court agrees with Plaintiffs. Whether conduct is extreme and outrageous is a question of fact. (Berry, supra, 90 Cal.App.5th at p. 1274.) Demurrers are not the appropriate place for determining the truth of disputed facts. (See Panterra GP, Inc. v. Superior Court of Kern County (2022) 74 Cal. App. 5th 697, 709.) The TAC alleges Defendants engaged in instances of potentially extreme and outrageous conduct directed towards Marilyn, a nine-year-old child, by allegedly telling her she was no longer welcome to participate in the school’s music group in front of her peers or by allegedly failing to address repeated instances of bullying or by allegedly blaming her for the bullying she allegedly experienced. (See FAC, ¶¶ 29, 78.) Thus, whether Defendants’ alleged conduct was extreme and outrageous will not be resolved on this demurrer.

Therefore, the Court OVERRULES the demurrer to the Fifth Cause of Action.

Sixth Cause of Action – California Civil Rights Violation

To state a cause of action under the Ralph Act, the plaintiff must allege facts demonstrating that “the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right. [Citations.]” (Gabrielle A. v. Cnty. of Orange (2017) 10 Cal.App.5th 1268, 1291.) To state a cause of action under the Bane Act, the plaintiff must allege facts demonstrating violence or intimidation by threat of violence, and that violence or threat of 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. [Citations.]” (Id., at p. 1290.)

Defendants demur to the Sixth Cause of Action for violations of Civil Code sections 51.7 and 52.1, i.e., the Ralph Act and the Bane Act, respectively, on the grounds that it fails to state a cause of action. Defendants contend Plaintiffs’ allegations in support of this cause of action are the actions of third parties, and that there are no allegations that Defendants directly threatened violence to Plaintiffs. Defendants contend both of these actions require violence. Defendants also contend speech alone is not sufficient to constitute a violation unless it involves a threat of violence. Defendants further contend there is no connection between the harassment and Marilyn’s race.

In opposition, Plaintiffs cite an incident alleged in the FAC regarding one of the perpetrators who bullied Marilyn intentionally hit her in the face with a metal water bottle, causing significant physical and emotional harm. Plaintiffs contend the TAC alleges the bullying of Marilyn was due to her Asian heritage and her physical appearance on many occasions.

The Court agrees that the TAC fails to allege sufficient facts under the BANE Act as plaintiffs fail to allege any acts of violence or threats of violence by Defendants. However, the Court finds the TAC alleges sufficient facts to state a cause of action based on the Ralph Act. The TAC alleges specific instances of bullying connected to Marilyn’s race or Asian heritage. (TAC, ¶¶ 14-16, 24, 82.) The TAC also alleges an instance in which one of Marilyn’s bullies hit her in the face with a metal water bottle and caused her severe injuries. (TAC, ¶ 26.) The TAC further alleges that Defendants failed to address the bullying on multiple occasions, (TAC, ¶¶ 17-18, 26), which could be construed as aiding in the denial of a protected right, (see Gabrielle, supra, 10 Cal.App.5th at p. 1291.)

Since a demurrer can only be sustained when it disposes of an entire cause of action, the Court OVERRULES the demurrer to the Sixth Cause of Action. (Poizner, supra, 148 Cal.App.4th at p. 119; Kong, supra, 108 Cal.App.4th at p. 1046.)

Seventh Cause of Action – Fraud in the Inducement of a Contract

To state a cause of action for fraudulent misrepresentation, the plaintiff must allege facts demonstrating, “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citations.]” (Lazar v. Superior Ct. (1996) 12 Cal.4th 631, 638.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice. [Citations]. Thus, the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” [Citation.] A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citation.]” (Lazar, supra, 12 Cal.4th at p. 645.) “Fraud in the inducement is a subset of the tort of fraud. It occurs when the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. [Citations.]” (Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828, 839, internal quotation marks omitted.)

Defendants demur to the Seventh Cause of Action for fraud in inducement of a contract on the grounds that it fails to state a cause of action. Defendants contend the FAC contains no allegations indicating that Foothill did not intend to enroll Plaintiffs into the 2023-2024 school year, but instead it alleges that Plaintiffs were informed five months after the pre-enrollment agreement that Plaintiffs would not be allowed to return for the 2023-2024 school year. Defendants contend the allegations show Marilyn was involved with multiple incidents at the school that led to her removal from Foothill, and that Plaintiffs only allege Defendants failed to provide a record of strikes Marilyn received and failed to provide video evidence of one of the incidents.

In opposition, Plaintiffs contend they have alleged sufficient facts showing that Foothill knowingly encouraged Nicholas to enroll Marilyn in the 2023-2024 school year despite not intending on allowing Marilyn to attend that school year. Plaintiffs cite to the unilateral modification of the disciplinary policy and exclusively using that policy against Marilyn. Plaintiffs contend this damaged them because it prevented them from looking elsewhere to enroll Marilyn, and that no other schools had open enrollment when Marilyn was removed from Foothill for the 2023-2024 school year.

The Court finds the FAC fails to allege sufficient facts to state a cause of action for fraud in the inducement. The FAC lacks the requisite specificity to plead a fraud cause of action. (Lazar, supra, 12 Cal.4th at p. 645.) The FAC does not allege any specific misrepresentations made to Nicholas at the time he allegedly registered Marilyn for the 2023-2024 school year. (FAC, ¶ 20.) The FAC also does not allege how or when the misrepresentations were made, or who made the misrepresentations on behalf of Foothill, their authority to so speak on behalf of Foothill, to whom they spoke, what was communicated, or whether the communications were oral or in writing. (See Id.; Lazar, supra, 12 Cal.4th at p. 645.) The FAC also fails to allege any facts showing any representations made with an intent to defraud Plaintiffs.

Based on the foregoing, the Court SUSTAINS the demurrer to the Seventh Cause of Action with leave to amend.

LEGAL STANDARD – 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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

REQUESTS FOR JUDICIAL NOTICE – Motion to Strike

DISCUSSION – Motion to Strike

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a)(1), Defendants were required to meet and confer with Plaintiffs either in person or by telephone before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(1).) Defendants’ supporting declaration does not indicate having met and conferred in person or by telephone. (Reisdorph Decl., ¶ 6.) Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) The Court will still consider the motion to strike, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward.

Analysis

Defendants seek to strike various allegations from the FAC which can be broken down into four categories: (1) alleged joint and several liability of Defendants; (2) improper emotional distress damages in connection with the breach of contract cause of action; (3) allegations against Wilson individually; and (4) punitive damages.

Joint and Several Liability

Defendants contend the language “jointly and severally liable” in paragraph 7 of the FAC is improper because the parties are not subject to joint and several liability as to all causes of action. In opposition, Plaintiffs contend the allegations against Wilson are proper because she was acting as an agent for Foothill or was in certain instances the perpetrator of the bullying against Marilyn.

The Court agrees with Defendants. The allegation that Defendants are jointly and severally liable for all causes of action in the FAC is unsupported by the other allegations in the FAC. The FAC does not allege that Plaintiffs entered into a contract with Wilson in her individual capacity. (FAC, ¶¶ 10, 20.) The only causes of action alleged against Wilson in the FAC are the Fourth and Fifth Causes of Action. (FAC, 16:12-14, 17:6-8.) To the extent Plaintiffs are attempting to hold Wilson individually liable for actions taken in her capacity as an employee of Foothill, this is improper and subject to a motion to strike. (See Code Civ. Proc., § 436, subd. (a).) Thus, the Court grants the motion to strike as to request no. 1.

Improper Emotional Distress Damages in Connection with Breach of Contract Cause of Action

Emotional distress damages are generally not recoverable for a breach of contract claim, except when the breach is accompanied by physical injury or the breach is of such a kind that serious emotional disturbance was likely to result. (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 214.) “[W]hen the express object of the contract is the mental and emotional well-being of one of the contracting parties, the breach of the contract may give rise to damages for mental suffering or emotional distress.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 559.)

Defendants contend certain language regarding emotional distress damages in paragraph 49 of the FAC should be stricken because they are alleged in connection with the First Cause of Action for breach of contract. Plaintiffs’ opposition does not address this argument.

The Court agrees with Defendants. The FAC contains no allegations indicating that the express object of the contract was the mental and emotional well-being of one of the contracting parties. (See Erlich, supra, 21 Cal.4th at p. 559.) The alleged contract was to provide for Marilyn’s enrollment at Foothill during the 2022-2023 and 2023-2024 school years. (FAC, ¶¶ 10, 20.) The Court also construes Plaintiffs’ lack of opposition on this issue as a tacit admission the Defendants’ argument is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) Accordingly, the Court grants the motion to strike as to request no. 2.

Allegations Against Wilson Individually

Defendants seek to strike various allegations against Wilson in her individual capacity, i.e., references to Wilson in paragraphs 60, 63, and 103 through 107 of the FAC. Defendants contend Plaintiffs removed Wilson from various causes of action with the filing of the FAC, but Plaintiffs did not remove the allegations against her. Defendants contend Wilson is not a party to the contract, and there are no allegations that she was authorized to enter or negotiate the contract on behalf of Foothill.

In opposition, Plaintiffs acknowledge that Wilson was removed from these causes of action as a direct party, but that this does not relieve Wilson of accountability as Foothill’s direct agent acting within her professional capacity here. Plaintiffs contend that Wilson was the person acting at all times on behalf of Foothill.

The Court agrees in part with Defendants. As noted above, the FAC does not allege that Wilson was a party to the contract. (FAC, ¶¶ 10, 20.) This means the allegations in paragraphs 60 and 63 against Wilson are untenable since they allege Wilson breached the implied covenant of good faith and fair dealing. (FAC, ¶¶ 60, 63; Thompson Pac. Constr., Inc., supra, 155 Cal.App.4th at 541 [must be a contracting party for a breach of the implied covenant of good faith and fair dealing].)

The Court declines to strike the language in paragraphs 103 through 107 of the FAC on the grounds that they are moot. These allegations pertain to the Seventh Cause of Action, to which the Court sustained the demurrer with leave to amend, as set forth above. However, Plaintiffs can allege conduct by Wilson within a cause of action not stated against Wilson.

Accordingly, the Court grants the motion to strike as to request nos. 3 and 4, but denies the motion to strike as to request nos. 7-11.

Punitive Damages

“While punitive damages may be recovered in a products liability case [citation] and in a negligence action [citation], in order to justify an award of punitive damages on the basis of a conscious disregard of the safety of others, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of its conduct and that it wilfully [sic] and deliberately failed to avoid those consequences. [Citation.]” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 395, italics in original.)

Defendants seek to strike the word “exemplary” from paragraph 99 of the FAC, along with paragraphs 96 and 109 in their entirety and the prayer for punitive damages for the Seventh Cause of Action. Defendants contend the FAC fails to allege sufficient facts entitling Plaintiffs to punitive damages on the grounds that Plaintiffs failed to allege acts of violence for the Sixth Cause of Action. Defendants also contend Wilson should have been removed from the allegations in connection with the Seventh Cause of Action. Defendants further contend the FAC fails to allege facts demonstrating that Foothill acted with oppression or malice, and that punitive damage claims against corporations require allegations that the act was committed by an officer, director, or managing agent, which the FAC does not do.

In opposition, Plaintiffs contend Defendants are attempting to litigate factual disputes. Plaintiffs contend they have alleged Defendants knew of the bullying but still failed to protect Marilyn, and that Marilyn was dismissed from the school in a public setting.

The Court finds the FAC alleges sufficient facts to support requests for punitive damages. As noted above, the Court found the FAC stated sufficient facts to state a cause of action for violation of the Ralph Act, which permits recovery of punitive damages. (Civ. Code, § 52, subd. (b)(1).) The Court also finds that the FAC alleges Wilson is a managing agent for purposes of Civil Code section 3294, subdivision (b). (See FAC, ¶¶ 5, 7.) The Court therefore declines to strike the word “exemplary” from paragraph 99 of the FAC and declines to strike paragraph 96 of the FAC. Accordingly, the Court denies the motion to strike as to request nos. 5 and 6.

With respect to paragraph 109 and the prayer for relief for the Seventh Cause of Action, the Court declines to strike these portions of the FAC on the grounds that they are moot in light of the Court sustaining the demurrer to the Seventh Cause of Action with leave to amend. Thus, the Court denies the motion to strike as to request nos. 12 and 13.

CONCLUSION

The Court GRANTS the motion to strike to the following portions of the First Amended Complaint:

1. Paragraph 7, page 3 line 4, “jointly and severally”;

3. Paragraph 60, page 13, line 18, “and MRS. WILSON” “their”

4. Paragraph 63, page 14, line 7 “and MRS WILSON”

The Court DENIES the motion to strike in all other respects.

Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Ambiguities on this issue are addressed in Defendants’ concurrently filed motion to strike, discussed below.