Judge Marcella O. Mclaughlin, Case Number: 37-2023-00035972-CU-BT-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00035972-CU-BT-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Business Tort Demurrer / Motion to Strike 37-2023-00035972-CU-BT-CTL W VS SAN DIEGO UNIFIED SCHOOL DISTRICT [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/17/2024

1. APPLICATION TO APPEAR PRO HAC VICE The unopposed application of Melissa M. Bilancini to appear pro hac vice on behalf of defendant San Diego Unified School District is DENIED without prejudice.

An application to appear pro hac vice must be filed with the court and served on all parties who have appeared in the action and the State Bar of California 'at the time prescribed in Code of Civil Procedure section 1005[.]' CRC 9.40(c). Pursuant to section 1005(b), moving papers must be filed and served at least 16 court days before the hearing date. The notice deadline is extended by 2 court days for electronic service. Code Civ. Proc. § 1010.6(a)(4)(B). In this case, the application was filed and served on June 12, 2024. This was less than 16 court days plus 2 additional court before the scheduled hearing date of June 28, 2024. Thus, the application is untimely.

2. DEMURRER The demurrer to the consolidated amended complaint is SUSTAINED in part and OVERRULED in part.

A. The District's request for judicial notice (ROA 65) is denied. '[A]lthough it might be appropriate to take judicial notice of the existence of the websites, the same is not true of their factual content.' Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519.

Moreover, 'a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.' Fremont Indemnity Co. v. Fremont General Corp.

(2007) 148 Cal.App.4th 97, 115.

B. The demurrer to claims brought by plaintiff America Hernandez is sustained with leave to amend.

Plaintiffs allege that Hernandez is the 'the parent and guardian of a child who is, and at all times relevant hereto was, a student at a school within the...District.' (Id. at ¶ 25.) Plaintiffs further allege that the putative class consists of '[a]ll California residents who are present or former employees or students of SDUSD, or their dependents, whose Personal Identifying Information and/or Personal Health Information was breached and accessed or disclosed to unauthorized persons as a result of the cyberattack on SDUSD's computers, systems and/or servers on or about October 25, 2022.' (Id. at ¶ 81.) Thus, as pleaded, Hernandez lacks standing to represent the putative class. See Timlick v. National Enterprise Systems, Inc. (2019) 35 Cal.App.5th 674, 680 ('[A] named plaintiff in a class action must be a member of the class she seeks to represent.').

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3107073 33 CASE NUMBER: CASE TITLE: W VS SAN DIEGO UNIFIED SCHOOL DISTRICT [E-FILE] 37-2023-00035972-CU-BT-CTL C. The demurrer to count 1 is sustained with leave to amend. While plaintiff G.W. alleges that his personal information was compromised (see CAC at ¶ 24), there are no facts showing District disclosed or failed to preserve the confidentiality of his 'medical information.' See Civ. Code §§ 56.05(j), 56.10, 56.101.

D. The demurrer to count 2 is overruled. Plaintiffs allege that the District's Notice Letter was both untimely and did not contain the information required by Civil Code section 1798.29(d). The District, however, only challenges the latter allegations in its moving papers. 'A demurrer must dispose of an entire cause of action to be sustained.' Fremont Indemnity, 148 Cal.App.4th at 119. The court declines to consider the District's arguments regarding the timeliness issued raised for the first time on reply. See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.

E. The demurrer to count 3 is sustained without leave to amend. Plaintiffs do not oppose the demurrer to the California Customer Records Act claim. (Oppo. at 3:7-8.) The court deems the lack of opposition to the demurrer to be a concession as to the merits of the demurrer. SDSC Local Rule 2.1.19(B).

F. The demurrer to counts 4, 5, and 6 is overruled.

Government Code immunities extend only to tort actions that seek money damages. Gov. Code § 814.

Here, the challenged tort claims seek both monetary (see CAC at ¶¶ 158, 182, 196) and nonmonetary relief (see id. at ¶¶ 159, 184, 197). See Fremont Indemnity, 148 Cal.App.4th at 119.

Moreover, liberally construing the allegations in the consolidated amended complaint, the court finds that plaintiffs have alleged sufficient facts to state claims for invasion of privacy, negligence, and breach of confidence. (See CAC at ¶¶ 154, 179, 181, 190-192.) Whether plaintiffs can ultimately prove these facts remains to be determined.

G. The demurrer to count 7 is overruled. Plaintiffs allege that they have 'no other adequate remedy of law.' (Id. at 201.) They further allege that they 'seek an order of this Court for declaratory, equitable, and injunctive relief in the form of an order finding Defendants have failed and continue to fail to adequately protect Plaintiffs' and Class members' Personal and Medical Information from release to unknown and unauthorized third parties, requiring Defendants to correct or enact adequate privacy policies and security measures to protect and preserve Plaintiffs' and Class members' Personal and Medical Information in its possession, and requiring Defendants to publicly issue comprehensive corrective notices to Plaintiffs, Class members and the public.' (Id. at 203.) These facts – which the court must accept as true – are sufficient to state a claim for declaratory relief. See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.

H. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiffs are granted leave to amend the consolidated amended complaint consistent with this ruling. The amended pleading must be filed and served by July 8, 2024.

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3107073 33