Judge: Peter A. Hernandez, Case: 20STCV40760, Date: 2022-09-12 Tentative Ruling

Case Number: 20STCV40760    Hearing Date: September 12, 2022    Dept: O

Defendant Hacienda La Puente Unified School District’s Demurrer to Plaintiffs’ Second Amended Complaint is SUSTAINED, with 20 days’ leave to amend.

Background   

Plaintiffs B.M., a minor, by and through her Guardian ad Litem, O.M.; A.G., a minor, by and through her Guardian ad Litem, L.S.; T.R., a minor, by and through her Guardian ad Litem, G.S.; and J.Z. (collectively, “Plaintiffs”) allege as follows:

Plaintiffs were sexually harassed and assaulted by their high school basketball coach, Erick Williams (“Williams”).

On January 25, 2022, this case was transferred from Department 32 of the Personal Injury Court to this instant department.

On May 16, 2022, Plaintiffs filed a Second Amended Complaint (“SAC”), asserting causes of action against Defendants Hacienda La Puente Unified School District (“District”), Williams and Does 1-60 for:

1.                  Intentional Infliction of Emotional Distress

2.                  Sexual Harassment (Civ. Code §§ 51.9 and 52)

3.                  Sexual Assault of a Minor

4.                  Negligent Hiring, Supervision, and Retention of Unfit Employee

5.                  Failure to Report Suspected Child Abuse

6.                  Negligent Supervision of a Minor

7.                  Negligent Failure to Warn, Train, or Educate

8.                  Negligence

A Trial Setting Conference is set for September 12, 2022.

Legal Standard

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

District demurs, pursuant to Code of Civil Procedure § 430.10, to the second cause of action in Plaintiff’s SAC, on the basis that it fails to state facts sufficient to constitute a cause of action.

Request for Judicial Notice

The court rules on District’s Request for Judicial Notice (“RJN”) as follows:

1.    Granted as to Request No. 1 (i.e., SAC);

2.    Denied as to Request No. 2/Exhibit C to Notice of Lodgment (i.e., agenda item from November 14, 2019 Regular Board of Education Meeting); and

3.    Denied as to Request No. 3/Exhibit D to Notice of Lodgment (i.e., October 24, 2019 Unadopted Minutes of the Regular Meeting Board of Education).

Merits

A person may be liable for sexual harassment in the context of a “business, service, or professional relationship” under Civil Code § 51.9. To state a cause of action under Civil Code § 51.9, plaintiff must allege (1) a business, service, or professional relationship existed between plaintiff and defendant; (2) defendant made sexual advances, solicitations, sexual requests, demands for sexual compliance by plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe and (3) plaintiff suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct. (Civ. Code § 51.9.)

Plaintiffs do not allege that District engaged in any offending conduct directly. Further, a school district cannot be vicariously liable for a teacher’s alleged acts of molestation under the doctrine of respondeat superior because such misconduct is outside the course and scope of the teacher’s employment. (John R. v. Oakland School Dist. (1989) 48 Cal.3d 438.)

District, however, acknowledges that principles of ratification may apply to a section 51.9 cause of action (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 111) and that Civil Code § 52, subdivision (b) provides that “[w]hoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right. . .”

Plaintiffs assert that “Defendant ERICK WILLIAMS denied Plaintiffs the right to free from sexual harassment pursuant to Civil Code section 51.9. Based upon information and belief, Defendants DISTRICT and DOES 21 through 50, inclusive, and each of them, aided, incited, and/or conspired in the denial of that right.” (SAC, ¶ 52.) Plaintiffs also each allege that “[b]ased upon information and belief, Defendant DISTRICT, and DOES 21 through 50, inclusive, and each of them, ratified, aided, or incited Defendant ERICK WILLIAMS’ sexual assault and harassment, and engaged in a concerted effort to hide evidence relating to childhood sexual assault, abuse and harassment perpetrated by Defendant ERICK WILLIAMS.” (Id., ¶¶ 22, 27, 31 and 38.) With that said, Plaintiffs have not alleged any facts supporting the conclusions within these paragraphs or the basis for their supposed information and belief. Again, a demurrer does not “admit contentions, deductions or conclusions of fact or law alleged in the pleading.”  (South Shore Land Co., supra, 226 Cal.App.2d at 732.) Also, “a pleading made on information and belief is insufficient if it merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-1159 [quotation marks and citations omitted].)

Plaintiffs have factually alleged only that Plaintiffs reported “some” (without specifying what) of Williams’ inappropriate behavior to the administration at La Puente High School on or about October 14, 2019, that they were told (by an unidentified person or persons) that Williams was not going to get fired over “dumb comments,” that other students have made similar (unspecified) complaints to District at some unknown time, and that District conducted an investigation and terminated Williams’ employment. (SAC, ¶ 41.) These allegations are insufficient.

District’s demurrer to the second cause of action is sustained, with 20 days’ leave given to amend.