Judge: Mark H. Epstein, Case: 24SMCV01637, Date: 2024-09-16 Tentative Ruling
Case Number: 24SMCV01637 Hearing Date: September 16, 2024 Dept: I
The demurrer is SUSTAINED WITH LEAVE TO AMEND in part;
SUSTAINED WITHOUT LEAVE TO AMEND in part; and OVERRULED in part. The motion to strike is MOOT.
Plaintiff J.L. is a minor and filed this action through his
Guardian ad Litem (GAL). The action is
filed against the Beverly Hills Unified School District and certain individual
employees thereof. The complaint alleges
that J.L. is a child who is highly gifted in certain areas, but also suffers
from certain disabilities. (Compl.
¶14.) Plaintiff had an Individualized
Education Plan (IEP) achieved through discussions between the parent, student,
and school personnel. (Ibid.) While plaintiff was attending “boot camp,” a
program offered by the school to prepare students for the transition to sixth
grade, plaintiff’s peers allegedly began bullying him. The bullying included name calling, teasing,
and food fighting. (Id., at
¶15.) According to the complaint, the
bullying was very bad and the school made no accommodations to help him, which
caused plaintiff’s parents to withdraw him from the boot camp program. (Ibid.)
Plaintiff began attending Beverly Vista in August 2021. According to plaintiff, the bullying began
within the first month. (Compl.
at ¶16.) This time it included name
calling, stalking, verbal harassment, and aggressive physical contact. (Ibid.) Plaintiff’s mother (who is the GAL) allegedly
notified defendants Hartley and Little about the problem in September 2021, but
the bullying continued well into 2022, even after plaintiff’s mother reached
out to Hartley for help. Allegedly,
Hartley responded that it was not her role to provide mental health
support. (Id., at ¶¶17-18.) Plaintiff asserts that the bullying increased
in spring 2022, with students now making sexual noises at him, touching him,
preventing him from leaving class, and engaging in other bullying behavior. (Ibid.) On May 3, 2022, plaintiff alleges that he was
physically attacked at school. (Id.,
at ¶19.) But staff allegedly did not
tell plaintiff’s parents; they only found out when plaintiff’s brother told
them. (Ibid.) In summer 2022, plaintiff claims he was
stalked at a local mall by a group of students and had to call security for
help. (Id. at ¶20.) The bullying allegedly continued into the
seventh grade. (Id. at ¶21.) At one point, the school offered to provide a
one-on-one aide, which plaintiff had for about two months. However, that did not stop the bullying. (Id., at ¶22.) On May 17, 2023, plaintiff’s parents told the
school that the school was not safe for plaintiff and they would place him in
another school the following year. (Id.,
¶23.) A few days later, while plaintiff
was at a urinal, a classmate made a comment about plaintiff’s penis, and when
plaintiff ignored the classmate he was put into a headlock. (Id., at ¶24.) Plaintiff contends that the school dismissed
the incident as merely an aggressive bear hug.
(Ibid.) The gist of the
action is that despite being told time and time again of the problem, the
administration and employees of the school did nothing to protect plaintiff
from being bullied, and that the bullying was based in large measure on
plaintiff’s disability. That inaction,
plaintiff claims, is tortious conduct by the individuals, and BHUSD is
vicariously liable for that conduct.
Also, under the Bane Act and Education Code section 220, BHUSD is
allegedly directly liable for these actions.
Defendants demur to the complaint; plaintiff opposes.
Defendants demur in part on grounds of uncertainty. That kind of demurrer is disfavored, and will
be successful only if the defendant really cannot figure out the nature of the
complaint. This complaint is not at that
level, and other than stating that this is a ground for demurrer, defendants
never discuss the ground. The demurrer
is OVERRULED as to uncertainty.
Defendants demur to the common law causes of action on the
ground that public entities and employees can only be sued if there is a
statutory basis authorizing the suit.
That is a true statement of law, but it ultimately is not enough. Government Code section 815 states that a
public entity is not liable for an injury that arises from an act or omission
of the entity or an employee, but section 815.2 provides that the public entity
is liable for an injury proximately caused by an act or omission of an employee
within the course and scope of that employee’s duty if the act or omission
would give rise to a cause of action against the employee. And under Government Code section 820, a
public employee is (generally speaking) liable for an injury she or he causes
to the same extent as a private person.
(Lueter v. State of California (2002) 94 Cal.App.4th 1285.) In essence, then, to the extent that
plaintiff is asserting vicarious liability against BHUSD, no particular statute
needs to be identified. If the employee
is liable, so is the entity. And the
court sees no utility in greater identification of statutes that would give
rise to liability as against the employee.
Thus, to that extent as well, the demurrer is OVERRULED.
The court has some trouble, though, with the negligent
hiring, training, and retention causes of action. To the extent that the complaint is against
BHUSD for the tort directly, it would seem to be precluded. However, a more liberal reading of the
complaint is that there are personnel within BHUSD who are responsible for
hiring, training, and retention. To the
extent that those people were negligent, they can be held liable and BHUSD can
be held liable vicariously. One might
debate whether that is too broad a reading of the statute, but it does appear
to be the law. In C.A. v. William S.
Hart Union High School Dist. (2012) 53 Cal.4th 861, our Supreme Court faced
a similar problem. The complaint
contained this same cause of action, but did not identify who the person was
who negligently hired, trained, or retained the guidance counselor (who in that
case was alleged to have engaged in tortious conduct). The Court concluded that a demurrer on that
basis could not succeed. Rather, after
noting that the complaint need not allege each evidentiary fact, the Court
concluded that “[w]e cannot say from the face of the complaint that the
District had no supervisory or administrative personnel whose
responsibilities included hiring, training, supervising, disciplining or
terminating a guidance counsellor.” (Id.,
at p. 872, emphasis in original.)
Accordingly, the complaint there survived the demurrer. This is similar. Plaintiff here has not said who the employee
was who was responsible for hiring and the like, but if that employee acted
negligently in doing so, then the employee is liable, and BHUSD is liable
vicariously. Accordingly, although the
court has some difficulty with the cause of action, the difficulties are not
sufficient to cause the court to agree with the defense and therefore the
demurrers to these causes of action are OVERRULED.
Plaintiff also alleges intentional infliction of emotional
distress. That is more of a
problem. The issue here is that if one
focuses on the public employees’ conduct, it is hard to see that the conduct is
so horrible and outrageous to form the predicate for the tort. Taken for what it is worth, the complaint
alleges that a number of school employees were aware of the bullying and of the
pain—physical and emotional—that it was causing plaintiff. Yet, despite having a duty to protect
plaintiff, they did nothing at all, or at least nothing substantial. That is bad, and it might well be a
tort. But the question is whether it is
so outrageous “as to exceed all bounds of [conduct] usually tolerated in a
civilized community. [Citations.] Generally, conduct will be bound 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!” ‘ “ (Berkley v. Dowds
(2007) 152 Cal.App.4th 518.) Whether the
conduct rises to that level is initially a question for the court, but if
reasonable minds might differ, it is for the jury. The court cannot say that the school’s
inaction is enough. It is not good, and
the court believes that sufficient emotional distress has been alleged to
satisfy that aspect of the tort. But the
conduct, or more particularly the lack thereof, just does not rise to the level
necessary as a matter of law, at least as pled.
That said, the situation might well be different if any of the employees
allegedly did anything to encourage the bullying, such as watching it happen
but doing nothing. That kind of conduct
could well be viewed as implying tacit support for bullying, and supporting the
bullying of a child—especially based on a disability—is the kind of thing that
would cause a reasonable person in the community to exclaim “Outrageous!” Accordingly, the demurrer to this cause of
action is SUSTAINED WITH LEAVE TO AMEND.
Defendants are also in a strong position regarding the Bane
Act. The Bane Act is essentially
California’s response to the increase in hate crimes. Civil Code section 52.1, states that a person
can sue a person who, through violence or intimidation, interferes with the
exercise of a constitutional or statutory right, including the right to be free
from discrimination based on a disability.
The biggest problem plaintiff has is that none of the individuals or
BHUSD are alleged to have engaged in misconduct through violence or
intimidation. Those that bullied
plaintiff did, without a doubt (if the allegations are true). But BHUSD’s employees did not act violently
toward plaintiff, they did not threaten him or intimidate him. To get around that problem, plaintiff
contends that BHUSD and its employees aided and abetted the bullying
conduct. The court has some problem with
that. Aiding and abetting requires more
than failing to stop bad behavior. It
requires that the aider or abettor provide some “substantial assistance to the
[tortfeasor] in accomplishing the tortious result and the person’s own conduct,
separately considered, constitutes a breach of duty to the third person.” (Saunders v. Superior Court (1994) 27
Cal.App4th 832; Casey v. U.S. Bank National Assn. (2005) 127 Cal.App.4th
1138.) That means that nonfeasance is
harder to bring within those bounds than misfeasance. Failing to protect plaintiff does not seem
like aiding and abetting, at least not without more detail. To be sure, the individual employees or the
school might well have had a duty to protect plaintiff, at least while
plaintiff was in school. But the breach
of that duty does not mean that failing to act provided “substantial
assistance” to those who were engaging in bullying; it would depend on how the
duty was breached. If it was breached
only through neglect, it is hard to equate that with aiding and abetting. Again, it could well be that there are actual
actions that could be alleged. Or, as
stated above, it could be that if an individual was present during the bullying
behavior and encouraged it—either actively or by standing by and watching
without taking action to stop it—an argument could be made that the
encouragement by an authority figure is enough.
But that is not what is alleged.
Accordingly, the demurrer to the Bane Act cause of action is SUSTAINED
WITH LEAVE TO AMEND.
Finally, the court turns to Education Code section 220. Plaintiff concedes that this cause of action
cannot be stated as against the individual defendants. The demurrer is therefore SUSTAINED WITHOUT
LEAVE TO AMEND in that regard. However,
the demurrer is OVERRULED as to BHUSD.
This statute states that no person shall be subjected to discrimination
on the basis of (among other things) disability by an educational institution
that receives state financial assistance.
At the pleading stage, the court is not prepared to say that by allowing
plaintiff to be bullied (allegedly due to his disability) to the point where he
had to leave the school whilst taking no action to protect him, BHUSD still did
not discriminate against plaintiff.
Depending on how the facts play out, this cause of action might or might
not survive summary judgment, but it is sufficient for pleading purposes. The point is that plaintiff alleges that the
individuals (and hence BHUSD) had actual notice of the bullying and yet acted
with indifference to those actions. This
seems enough for now. (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567.)
The motion to strike is MOOT because the demurrers to the
third and fifth causes of action were sustained.
Plaintiff has 30 days’ leave to amend as set forth above.