Judge: Nathan Vu, Case: 2022-01255062, Date: 2022-10-17 Tentative Ruling

Please Note: The hearing on this matter has been changed to 8:30 A.M.

Demurrer

Defendant Capistrano Unified School District’s demurrer to the third cause of action in the First Amended Complaint is SUSTAINED, with 21 days leave to Amend.

Defendant Capistrano Unified School District demurs to the third cause of action in the First Amended Complaint (FAC), by which Plaintiffs Chelsea Boyle and Darren Boyle (Parents) assert a claim for negligent infliction of emotional distress against Defendant.

Standards for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)

Negligent Infliction of Emotional Distress

A cause of action for negligent infliction of emotional distress is not an independent tort.  (Christensen v. Superior Court (1991) 54 Cal.3d 868.) Rather, it is “a variation of the tort of negligence [and the] traditional elements of duty, breach of duty, causation and damages apply.” (Slaughter vs. Legal Process & Courier Serv. (1984) 162 Cal.App.3d 1236, 1249.) To establish negligent infliction of emotional distress, a plaintiff must show (1) that the defendant was negligent; (2) that the plaintiff suffered serious emotional distress; and (3) that the defendant’s negligence was a substantial factor in causing the plaintiff’s emotional distress. (See ibid.; Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 286-287.)

Under California law, plaintiffs suing for recovery of negligently inflicted emotional distress must fall within two specific categories: 1) “bystanders” or 2) “direct victims”. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) Here, Defendant asserts that the third cause of action fails because Parents fall into neither category.

Bystander Theory

In a bystander case, the plaintiff must have suffered severe distress as a result of witnessing physical injury to a person who is closely related to the plaintiff. (See Dillon v. Legg (1968) 68 Cal.2d 728, 741.) “In the absence of physical injury or impact to the plaintiff [themselves], damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal. 3d 644, 647.) “[T]o satisfy the second Thing requirement the plaintiff must experience a contemporaneous sensory awareness of the causal connection between the defendant's infliction of harm and the injuries suffered by the close relative.” (Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal. App. 4th 830, 836.)

In this case, the FAC fails to allege sufficient facts to support bystander negligent infliction of emotional distress and the opposition does not address the bystander theory. The FAC contains no allegations of any direct and contemporaneous awareness of Plaintiff K.B.’s bullying. Nor do Parents allege that they witnessed any actual acts of bullying against K.B. That is not sufficient to allege a bystander claim. (See Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 911 [parents cannot make out negligent infliction of emotional distress claim where they were not aware of sexual relationship between daughter and teacher while relationship was happening], abrogated on other grounds, Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 136-137 (2021).)

Direct Victim Theory

In the alternative, Parents may make out a claim for negligent infliction of emotional distress under the “direct victim” theory. This requires that the Parents show that there was a violation of a duty that the Defendant owed directly to the Parents. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205; Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076 [plaintiff may recover under direct victim theory where there is negligent breach of duty arising out of a preexisting special relationship].)

Parents argue that they have sufficiently alleged a direct victim claim under Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, and Doe v. Superior Court (2015) 237 Cal.App.4th 239. Parents contend that these cases stand for the proposition that a child’s caretaker and the caretaker’s employer bear the duty to disclose and not conceal known threats to the child’s safety, because the caretaker has a special relationship with the child.

Phyllis P. v. Superior Court involved an 8-year old girl being raped and molested by a 13-year old boy a “number of times” on the way to school and on school premises. (Phyllis P. v. Superior Court, supra, 183 Cal.App.3d at p. 1195.) The girl’s teacher, the school psychologist, and principal knew of these sexual assaults, but instead of notifying the mother, “they took it upon themselves to withhold that information,” they “engaged in a ‘cover-up’ which they should have foreseen would cause petitioner more emotional distress than merely informing her of the incidents in the first place[,]” and then “dealt with the perpetrator . . . with what amounted to a slap on the wrist.” (Id. at pp. 1196–97.)

The court of appeal in Phyllis P. v. Superior Court held that, under these circumstances, a special relationship existed between the school and the mother such that the school had a duty to notify her upon learning of the assault on her daughter. (Id. at p. 1196.) Rather than bystander liability, the mother in this case was “asserting a cause of action as a direct victim of defendant’s negligent act, or failure to act, and not for injuries based upon her direct observation of the injury to her daughter.” (Id. at p. 1197.)

Doe v. Superior Court involved an employee of a summer camp who was observed for having inappropriate interactions with young girls in 2007. (Doe v. Superior Court, supra, 237 Cal.App.4th at p. 242.) Camp management was advised of these incidents and a senior employee investigated but determined there was no evidence of inappropriate touching. (Ibid.) The employee was nonetheless terminated for failing to follow camp rules. (Ibid.)

The camp management never disclosed the incident to the parents or the police and the parents did not learn about a 2007 incident, or that their daughter was a victim, until 2013. (Id. at pp. 242-243.) The court of appeal in Doe v. Superior Court held that the camp owed a duty to disclose to parents that one of its employees had an inappropriate sexual interest in the minor camper. (Id. at p. 247.)

Phyllis P. v. Superior Court and Doe v. Superior Court stand for the proposition that a special relationship exists between caretakers and a child’s parents that imposes a duty on the caretakers to disclose to the parents any assaults or bad acts that have occurred, and a duty not to engage in a “cover up” and withhold information from parents about their child. The breach of this duty may support a “direct victim” claim for negligent infliction of emotional distress.

However, the FAC does not sufficiently allege a direct victim claim under Phyllis P. v. Superior Court and Doe v. Superior Court. Plaintiffs’ allegations focus on Defendant’s response after the Parents and Defendant discussed the incidents that happened to K.B.; essentially, the FAC asserts that no follow up investigation occurred. There are no allegations that Defendant never informed Parents of the incidents when they occurred or that Defendant concealed the incidents from Parents. Indeed, the FAC alleges that Plaintiffs were the ones with knowledge of one or more of the incidents and informed the Defendant of them. (See FAC, ¶ 8 [“K.B.’s parents contacted principal Becerra to address the issue.”].)

Thus, Parents have failed to assert allegations sufficient to establish the third cause of action.

Defendant shall give notice of this ruling.