Judge: Maurice A. Leiter, Case: 22STCV06047, Date: 2022-08-09 Tentative Ruling

Case Number: 22STCV06047    Hearing Date: August 9, 2022    Dept: 54

Hearing Date: August 9, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Paramount Unified School District

Responding Party: Plaintiff John G.D. Doe

T/R:     DEFENDANT’S DEMURRER TO THE FIRST CAUSE OF ACTION IS OVERRULED.

DEFENDANT’S DEMURRER TO THE FOURTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

DEFENDANT TO FILE AND SERVE AN ANSWER TO PLAINTIFF’S COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On February 17, 2022, Plaintiff John GD Doe sued Defendant Paramount Unified School District, asserting causes of action for (1) sexual assault; (2) negligence; (3) negligent failure to educate, train or ward; and (4) violation of Unruh Act. Plaintiff alleges he was sexually abused by his 8th grade teacher, Gillian Duran, while attending school in the Paramount Unified School District.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

            Defendant demurs to two causes of action in the complaint, on the grounds that Defendant is not vicariously liable for Duran’s conduct and that Defendant is not a “business establishment” under the Unruh Act.

A. First Cause of Action for Sexual Assault

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) An employer also may be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.)

Defendant asserts it cannot be held liable for Duran’s conduct because the conduct falls outside the scope of Duran’s employment. In opposition, Plaintiff asserts that Defendant ratified Duran’s conduct.

Plaintiff alleges that Duran sexually abused him on- and off-campus, and Duran frequently would miss faculty meetings and other job responsibilities to abuse Plaintiff. Plaintiff alleges Defendant knew of Duran’s frequent absences and became suspicious of Duran’s activities. Plaintiff alleges he told an employee about the abuse, but the employee did not report the abuse to any authorities. This is sufficient to allege ratification. (See e.g. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, [“The failure to discharge an agent or employee may be evidence of ratification. As noted in McChristian v. Popkin (1946) 75 Cal.App.2d 249 [171 P.2d 85], ‘ “If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.” ‘]

Defendant’s demurrer to the first cause of action is OVERRULED.

B. Fourth Cause of Action for Violation of the Unruh Act

            Defendant demurs to the cause of action for violation of Unruh Act on the ground that it is not “business establishment” under the Act. The Court of Appeal recently addressed this issue in Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367. After extensive discussion of legislative history and Supreme Court precedent, the Court found that California public school districts are not business establishments for the purposes of Unruh. (Id. at 370-397.) The California Supreme Court granted review of Brennon B. On August 4, 2022, the Court issued its decision affirming the Court of Appeal. (Brennon B. v. Superior Court (2022) 2022 WL 3096272.)

            Plaintiff cannot maintain a cause of action for violation of Unruh against Defendant. Defendant’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.