TENTATIVE RULING

Calendar:    7

Date:          4/12/2024 

Case No: 23 GDCV02180 Trial Date: None Set 

Case Name: Soleimani, et al. v. Saint Francis High School of La Canada-Flintridge, et al.

DEMURRER

MOTION FOR SANCTIONS

Moving Party:            Defendant California Interscholastic Federation (Demurrer)

Responding Party: Plaintiff James Soleimani through his GAL (Demurrer)

Meet and Confer?      Yes 

RELIEF REQUESTED:

Demurrer

Sanctions

CAUSES OF ACTION: from Complaint  

1) Negligence v.   All Defendants Other than Aidan 

2) NIED v.   All Defendants Other than Aidan 

3) IIED v.   Defendant Aidan 

4) Battery v.   Defendant Aidan 

SUMMARY OF FACTS:

Plaintiff James Soleimani, a minor appearing through his GAL, Marta Recasens, alleges that plaintiff enrolled at defendant Saint Francis High School of La Canada Flintridge (SFHS) in August of 2020, and that it was important to plaintiff and his family that plaintiff attend a Roman Catholic high school for various strongly held personal beliefs.  Plaintiff alleges that he was particularly interested in playing organized football with the SFHS teams that participate in defendant California Interscholastic Federation (CIF) organized games against other CIF teams in the Southern California section of CIF.  

Due to the COVID-19 pandemic, from early 2020 through May 2021, SFHS had no in-person instruction, and no active football program.  In June of 2021, plaintiff began attending SFHS’s football camp, and won a place on the Junior Varsity team.  Plaintiff alleges that in August of 2021, plaintiff suffered an injury to his shoulder during football practice and was in October 2021 evaluated by a doctor and also diagnosed with a tear in the tendon of a finger and prescribed no PE or sports for 2 weeks.

In October of 2021, plaintiff alleges that during the first half of a SFHS football game, plaintiff was on the sidelines due to his medical restrictions, wearing his football uniform but not wearing pads or a helmet, when defendant Aidan Austin (Aidan), a fellow student, while wearing his football helmet, aggressively accosted plaintiff verbally for not being tough enough to play through injuries.  Plaintiff alleges he did not respond aggressively, but despite plaintiff’s peaceful response to Aidan’s bullying, Aidan, with his helmet still on, butted plaintiff in the face repeatedly, injuring plaintiff.  Plaintiff alleges he did not fight back or do anything other than attempt to shield himself from Aidan’s criminal battery. 

Plaintiff alleges that no defendant took any significant disciplinary action against Aidan for the helmet assault, although it occurred in open view of hundreds of people, including one or more of the other defendants.  

At halftime, Aidan, obviously undeterred by any defendants, hunted plaintiff down in the weight room and, unprovoked, put plaintiff in a choke hold and beat him repeatedly over the head.  Plaintiff alleges that the following day, upon receiving reports of Aidan’s unprovoked violence against plaintiff, defendant John Jordan, Dean of Students of SFHS, punished both of them equally, by suspending them both from Friday’s football game.  

Plaintiff alleges that in November of 2021, Aidan again aggressively hunted plaintiff down in the locker room, threatened him, and proceeded to knee plaintiff in the groin, pulled plaintiff’s jacket over plaintiff’s head and repeatedly struck plaintiff in the head with a closed fist.  Plaintiff alleges that he did not fight back and sought only to shield himself.  Plaintiff alleges that again defendants responded by treating plaintiff and Aidan equally, as if both were equally culpable for Aidan’s unprovoked criminal attack, which defendants had not stopped or prevented.    

The complaint alleges that in mid-October, another SFHS student reported to plaintiff that the student had seen Aidan carrying a knife on campus, and warned plaintiff to stay away from Aidan because he was armed.  In the latter half of October, when plaintiff was intimidated and fearful of a knife armed Aidan again attacking him, plaintiff had a video displayed SnapChat conversation with another SFHS student, in which the other student viewed, near plaintiff, an airsoft gun, and plaintiff made a joke about the airsoft gun being a real firearm.  

Plaintiff alleges that in November of 2021, plaintiff and Recasens met with Jordan to discuss what Jordan claimed was his and SFHS’s investigation of the foregoing altercations and their aftermath.  Jordan informed them that Jordan had a grainy photo of a gun that plaintiff had supposedly displayed on social media, but never presented this image to plaintiff or Recasens.  The following day, plaintiff and Recasens met with SFHS’s Disciplinary Board, comprised of defendant Jordan, defendant Thomas Moran, Principal of SFHS, and six other individuals, in which plaintiff read a statement about the altercations and their aftermath, and admitted in his statement that within a week of Aidan’s most recent beating, plaintiff remembered having commented as a joke on social media that an airsoft gun the plaintiff owned was a real firearm.  Plaintiff alleges that he contritely admitted this joke as inappropriate and asked forgiveness.  Plaintiff was then expelled. 

Plaintiff alleges that had defendants acted more promptly in disciplining and either suspending or expelling Aidan prior to the last assault on plaintiff, plaintiff would not have been frightened and intimidated into joking that the airsoft gun was real, which joke led to plaintiff’s expulsion.    

The complaint alleges that plaintiff has been damaged as a result of his expulsion, including mental suffering, the loss of the companionship and society of teachers and friends at SFHS, and due to the disciplinary record created with the expulsion, finding it difficult to be accepted as a student at a comparable religious high school and, later, college.  Plaintiff also alleges that at the new high school in which plaintiff enrolled, he was not allowed to play football for one year due to CIF rules.  In contrast, Aidan, who was not expelled but suspended, and transferred to a different school, was allowed to participate in football after only six months.  

Plaintiff alleges that plaintiff appealed the expulsion ruling to CIF explaining the circumstances, but CIF would not change its decision. 

Plaintiff also alleges that prior to Aidan’s attacks, plaintiff had been an honor roll student, but his academic career was damaged when he failed courses because of the stress he endured from the bullying, beating and expulsion, and that plaintiff because of the beatings and expulsion, suffers from post-traumatic stress disorder.  

The complaint also names as defendants the Roman Catholic Archdiocese of Los Angeles (Archdiocese) and Antonio Marti, the President of SFHS.

The complaint alleges that all defendants other than Aidan breached their duty of properly supervising Aidan to ensure that he did not bully or physically abuse plaintiff and breached their duty by failing to suspend or expel Aidan when Aidan repeatedly battered plaintiff.    

The complaint alleges causes of action against Aidan only for IIED and battery. 

ANALYSIS:

Demurrer

Procedural

Untimely 

Defendant CIF has filed a demurrer to the complaint challenging the sufficiency of the two causes of action as stated against CIF. 

Plaintiff in opposition appears to suggest that the demurrer is untimely. 

Under CCP § 415.20, where service is by substituted service, the service “is deemed complete on the 10th day after the mailing.”   Here, the service was therefore complete on November 4, 2023.  Thirty days after this service would have been December 4, 2023.  The demurrer was filed and served on December 22, 2023, beyond the deadline.  

Under CCP § 430.41(a)(2)

“(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”

Meet and Confer

Plaintiff in opposition argues that the court should refuse to entertain the demurer on the ground there is no showing that before filing the demurrer, the demurring party properly met and conferred. 

As discussed above, moving defendant CIF filed and served a Declaration sufficient to secure an automatic extension to respond to the pleading.   

In support of the demurrer, defendant filed a further declaration, in which counsel for defendant again indicates that a meet and confer letter was sent on November 7, 2023.  [Donald Decl., para. 3].  The letter is attached to the declaration and explains the basis for defendant’s argument that the complaint is improperly brought against defendant CIF, indicates that counsel is “free to discuss with you, the contents of this letter,” and expressly indicates defendant will be filing a demurrer in the event defendant does not hear that plaintiff will dismiss CIF without prejudice.  [Donald Decl., para. 3, Ex. A].  The letter also requests a response no later than November 14, 2023, to permit defendant time to prepare a demurrer.  [Ex. A, p. 2].   The declaration indicates that having heard nothing from plaintiff in response to the meet and confer, defendant filed the form requesting additional time to file a demurrer, which, as noted above, was filed on November 20, 2023.  [Donald Decl., para. 4].  

Defendant indicates that one hour after that declaration was served, plaintiff’s counsel objected to the meet and confer process, and that in response, defendant’s counsel invited a substantive meet and confer but plaintiff’s counsel declined.  [Donald Decl., para. 5].  The declaration attaches emails reflecting that counsel for plaintiff emailed requesting that counsel for defendant withdraw the form served that date because defendant was ineligible for an automatic extension because counsel did not meet and confer in person or by telephone.  [Donald Decl., Ex. B].  Counsel for defendant responded, “I disagree with your interpretation but nevertheless am happy to discuss the points raised in my letter that up until now you have ignored.  I can be reached at the number below.”  [Ex. B].

Evidently neither party attempted a phone call.   

Plaintiff relies on CCP § 430.41(a), which provides:

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

 (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

 (2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

 (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

   (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

   (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

 (4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

(Emphasis added).

“(4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”  

CCP § 430.41(a)(4).  

“Most importantly, Code of Civil Procedure section 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in subdivision (a)(1). Indeed, subdivision (a)(4) of that section provides that “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Thus, even if the District did not comply with the meet-and-confer requirements, we do not agree with plaintiffs that the consequence of that failure is for the court to lose jurisdiction over the pleadings.”

Olson, at 515, footnote omitted. 

The court here accordingly cannot, and will not, refuse to consider the demurrer and effectively overrule it on meet and confer grounds.   

In any case, even if it appeared that a further meet and confer could have resolved the issues raised by the demurrer, the court would ordinarily simply order the parties to further meet and confer prior to the matter being called for hearing, and to have the moving party file with the court a supplemental declaration reporting the results of the further meet and confer.  The court will hear argument whether the hearing will be called this date at second call or continued to a new date to permit this procedure to be followed.  The court notes that from the material which has been submitted to the court, it would appear that such a process would likely be a waste of time.  

It may also bear noting that even if the court were to disregard or refuse to consider the demurrer on this ground (which it expressly may not do under the statute), the practical outcome of such a determination would be that the moving party would raise the same issues raised in the demurrer by a motion for judgment on the pleadings such an outcome would not foster judicial efficiency. 

Substantive 

First Cause of Action—Negligence and Second Cause of Action—NIED 

To plead a claim for negligence, a plaintiff must allege the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach.   Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.  

Negligent infliction of emotional distress requires negligence and severe emotional disturbance.  Marlene F. v. Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.  

To support a NIED claim here, plaintiff must have suffered damages as a result of a duty “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”  Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073, quoting Marlene F., at 590. See also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 984-985  (“That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship…”)

It is recognized that the issue of whether a duty of care was owed is a question of law.  See Clarke v. Hoek (1985) 174 Cal.App.3d 208, 213 (“The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone.”). Garcia v. Paramount Citrus Association, Inc. (2008) 164 Cal.App.4th 1448, 1452 (“The existence of a duty owed by a defendant to a plaintiff is a question of law for the court, reviewed de novo on appeal.”)

Here, CIF argues that while the complaint here appears to acknowledge that as a student of defendant SFHS, plaintiff’s school had a duty to supervise plaintiff at the times referenced in the complaint, no such duty appears to be alleged against CIF.  Defendant argues that plaintiff’s allegations against the CIF appear to focus on the ultimate consequence of plaintiff’s expulsion as it relates to the CIF’s rules regarding eligibility.  

The complaint is somewhat vague as to defendant CIF, alleging in the negligence cause of action:

“Defendants other than AIDAN owed SFHS students, including Plaintiff, a duty to exercise reasonable care and to take reasonable steps to protect said students from bullying, including without limitation by (a) adequately supervising students to ensure that no bullying or other improper physical abuse by students occurs against other students, and (b) suspending or expelling other students who have engaged, even once, in battery of other students.”

[FAC, para. 46].  

There are two paragraphs in the general allegations which appears to expressly allege some sort of conduct of CIF, alleging:

“41. Unlike Plaintiff, who was barred by CIF rules from participating in football for one full year at his new high school, AIDAN, who transferred to a different school, was allowed to participate in football after only six months. 

42. Plaintiff appealed the expulsion ruling to CIF explaining the circumstances, but CIF would not change its decision.”

[Complaint, paras. 41, 42]. 

“Neither the California Constitution nor California statutory law contains any provision that entitles students to an absolute right to participate in extracurricular activities and, precisely, in interscholastic athletics. Absent such support, the opportunity to participate in interscholastic athletic activities is a privilege, not a right or an entitlement of such dignity to warrant due process protection. Our conclusion is consistent with the overwhelming majority of other states whose appellate courts have held that students do not possess a constitutionally protected interest in their participation in extracurricular activities and, specifically, in interscholastic sports.”

Ryan, at 1061, citations omitted.      

  Defendant also relies on Education Code section 33353, under which it argues that the CIF has limited duties, and is described, “(a) The California Interscholastic Federation is a voluntary organization that consists of school and school-related personnel with responsibility for administering interscholastic athletic activities in secondary schools,” which gives “the governing boards of school districts specific authority to select their athletic league representatives.”  

Defendant requests judicial notice of CIF Bylaws 209, entitled Discipline, Expulsion and Transfer for Disciplinary Reasons, which provides, in pertinent part

“A. Expulsion

A student who is expelled by a public school district in the State of California pursuant to the provisions of Education Code Section 48900 et seq., or from a public school from any other State, or any private or parochial school or district, shall be ineligible to practice or compete with any CIF team or individual sport program that is under the jurisdiction of the CIF for the period of the expulsion.”

“If a student transfers from any public or private school when a disciplinary action is in place or pending, that student shall be ineligible for competition in all sports for one (I) year from the date of the transfer to the new school.”

[RFJN, Ex. B]. 

It is not clear what duty is being alleged here which can be legally imposed on defendant CIF, as it has no duty to supervise students or make determinations concerning discipline as alleged in the complaint.  

Defendant also argues that plaintiff has failed to allege that the rules and bylaws were improperly applied to him and has not identified any recoverable damages attributable to CIF’s ruling.   Specifically, defendant argues that the possibility of obtaining a scholarship in college is recognized in Ryan as alleged damages which are within the realm of being purely speculative:

“Finally, the trial court's observation that “for many students, the possibility of obtaining a college education literally hinges on their ability to receive an athletic scholarship, and qualification for such scholarships almost always requires participation in high school interscholastic athletics” does not create a property right to such participation. To invoke procedural due process protection, an individual must have a legitimate claim of entitlement to a benefit—not simply a unilateral expectation or an abstract need. The possibility of obtaining a scholarship does not elevate participation in interscholastic athletics into an interest that due process protects, because such opportunities are themselves simply expectancies. The acquisition of a scholarship is purely speculative, contingent upon far more than simply maintaining playing privileges. For example, a scholarship is contingent upon not only the availability of the scholarship, but also the student's excelling during season, meeting certain academic and entrance exam requirements, overcoming any inference from a disciplinary record, remaining healthy, and overcoming like competitors for the same finite scholarships that are distributed by coaches in their unbridled discretion. Consequently, the opportunity to earn, or the possibility of obtaining, an athletic scholarship is too speculative to elevate participation in interscholastic sports to the level of a constitutionally protected interest.

Ryan, at 1064-1065, citations omitted.     

Plaintiff in opposition argues that the claims against defendant CIF are well pleaded because the Ryan case held that participation in school sports is not a constitutional right that required “due process” before it could be taken away but did not hold that an improper expulsion could not be grounds for a claim of negligence or other torts.  

Plaintiff argues that plaintiff’s theory against defendant CIF is not that it had a legal obligation to supervise plaintiff, but rather that plaintiff has two theories of liability against CIF.  

The first is a theory that CIF allowed defendant Aidan, perhaps because he is African American, to return to playing football after a short suspension, but refused to allow plaintiff, who is white, to play at all during his critical junior year, and then refused plaintiff’s appeal, damaging plaintiff’s academic career and prospects for college, and emotionally traumatizing him.  [Paras. 40-44, 46].  

The second is a theory that CIF owed a duty to students at its member schools to ensure that its constitution and bylaws included requirements that its school and staff members exercise reasonable care to protect the students from bullying by adequately supervising students, and suspending or expelling other students who have engaged in battery of other students, and a duty to have its own enforcement and monitoring mechanisms in place to ensure that member schools comply with the anti-bullying guidelines that CIF lacks.  [para. 46].   The argument appears to be that the bylaws include detailed rules about interschool transfers and forbid profanity but say nothing about bullying.  

Specifically, with respect to the first theory, which appears to be a racial discrimination or disparate treatment theory, this does not appear to be based in negligence. This argument is a theory based in some flaw in the CIF’s review of plaintiff’s alleged appeal, which would likely implicate administrative remedies, and a duty arising from a source other than a general negligence duty of due care.  Also, it would appear to depend on some sort of due process analysis when Ryan holds that participation in extracurricular activities such as football does not give rise to due process rights. The complaint does not allege how the CIF is authorized to engage in a process to investigate the proprietary of scholastic penalties independently imposed by a member school, how that process would occur, and what the CIF would be authorized to do based on the outcome of such an investigation.  Also, the damages alleged are not sufficiently tied to any alleged conduct by the CIF but rather is attached to the conduct of the other defendants and plaintiff.  

As to the second theory, there is no explanation of how this duty to pass and enforce policies against bullying is a duty imposed by law, with no legal authorities cited, and the opposition essentially concedes that the duty has not been voluntarily assumed by defendant CIF, as the allegations are that the CIF has not established a policy on bullying, so practically speaking has not assumed a duty to enforce any such policy.  It also is problematic with respect to the imposition of such a duty with respect to any mechanism by which CIF could ensure compliance by its member schools with an anti-bullying policy, or that, in this case, CIF had notice of facts giving rise to plaintiff’s allegations of bullying.  

As argued in the reply, defendant CIF is not arguing that it can never be sued in negligence or tort, but that there is no theory in negligence or tort which has been established as viable by plaintiff under the factual circumstances of this particular case.  

This conclusion is the case, and the demurrer accordingly is sustained.  The demurrer is sustained as to both causes of action, as the NIED cause of action depends on the underlying negligence alleged in the negligence cause of action, alleging only very broadly that the previous allegations are realleged, that “Plaintiff suffered serious emotional distress, and that “The negligence of these Defendants was a substantial factor in causing Plaintiff’s serious emotional distress.”  [Complaint, paras. 51-53]. 

Defendant urges that the demurrer be sustained without leave to amend.  However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion irrespective of whether leave to amend is requested or not.”  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.  

One opportunity to amend is permitted, if possible. 

Motion for Sanctions

Plaintiff brings a motion for sanctions against defendant CIF, arguing that defendant filed a demurrer to plaintiff’s complaint, but failed to conduct a timely, “speaking” (in person or telephonic) meet and confer as required by the CCP.   Plaintiff argues that not only should the court overrule the demurrer but should also impose monetary sanctions against CIF and its counsel pursuant to CCP sections 128.5 and 128.7. 

Plaintiff seeks relief under CCP §128.5, which provides, in pertinent part:   

(a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

(b) For purposes of this section:

(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.

(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.

(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers or, on the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.”

An award of sanctions for a party’s frivolous action or delaying tactic is within the sound discretion of the trial court, and the “test on appeal is whether the trial court abused the broad discretion” to justify the court of appeal’s interference with a sanction award.  Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893, quotation, citation omitted.   

““Section 128.5 permits the trial court to impose sanctions under certain narrowly defined conditions. Sanctions are warranted only if the moving party meets its burden of proving that the opposing party's action or tactic was (1) totally and completely without merit, measured by the objective, ‘reasonable attorney’ standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. [Citations.] Whether sanctions are warranted depends on an evaluation of all the circumstances surrounding the questioned action. [Citation.]” (Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236, 238 Cal.Rptr. 756, fn. omitted.).”

Wallis, at 893. 

Plaintiff also relies on CCP § 128.7, which provides for the recovery of sanctions against a party or attorney who violates specified conditions.   Subdivision (b) provides, in pertinent part:

"(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading...an attorney... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all the following conditions are met:

(1)  It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 

(2)  The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3)  The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."  

The section requires that a separate motion be filed, and that the motion be served, but not filed, by 21 days later to permit the challenged paper to be withdrawn.   CCP § 128.7 (d).  This procedure has been followed here.    

Under CCP §128.7(c), where the court determines that subdivision (b) has been violated, it “may…impose an appropriate sanction…” on the violators, making the section discretionary.   

In determining whether this section has been violated and sanctions are appropriate, the trial court is to apply an “actual belief” standard, and to “measure the truth-finding inquiry’s reasonableness under an objective standard….”   Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 82, citation omitted. 

With respect to a lack of legal merit, the applicable standard has been stated as follows: “courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’”   Peake v. Underwood (2014) 227 Cal.App.4th 428, 448, quoting In re Marriage Flaherty (1982) 31 Cal.3d 637, 650.

Plaintiff argues, as plaintiff argued in opposition to the demurrer, that counsel for defendant failed to meet and confer with plaintiff’s counsel via telephone or in person, or even attempt to do so, prior to filing the demurrer, so that sanctions are warranted, as the demurrer was plainly made in bad faith, and is frivolous or solely intended to cause unnecessary delay.  Plaintiff argues that instead of answering, defendant CIF chose to demur when it had no right to do so, delaying this action for months. 

As discussed in detail above, under the applicable meet and confer requirements, CIF did have the right to file the demurrer pursuant to its declaration supporting the application of an automatic extension of time to respond.  

To the extent the argument is that there was no in person or telephonic meet and confer prior to the filing of the demurrer, the court has also discussed in detail above that the statute upon which plaintiff relies, CCP § 430.41, expressly states:

“(4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”  

CCP § 430.41(a)(4).  

As pointed out in the opposition, plaintiff here has failed to satisfactorily explain away plaintiff’s own tactics with respect to ignoring offers by counsel for defendant to engage in the very meet and confer plaintiff complains was not conducted prior to the demurrer being filed.   

Plaintiff here has failed to establish that under either statute, the demurrer was made in bad faith, was frivolous or solely intended to cause unnecessary delay, or that the demurrer was presented for an improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.  

Plaintiff has further failed to establish that defendant has engaged in sanctionable conduct in light of the fact that the demurrer has substantive merit. The court sustains the demurrer on the grounds urged by defendant in the demurrer.  

RULING:

Demurrer to Plaintiff’s Complaint:

The Court will hear argument concerning whether the parties will be ordered to engage in meet and confer efforts in person or by telephone or by video conference      prior to this matter being called for hearing.  If so, defendant will be ordered to prepare the required declaration and file it on eCourt before the matter will be called for hearing.  

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the first cause of action for negligence and second cause of action for NIED on the grounds the complaint fails to sufficiently allege a legal or factual basis for the imposition, or assumption, of a negligence duty on the party of moving defendant California Interscholastic Federation or conduct on the part of moving defendant which resulted in plaintiff’s alleged damages.  

Defendant’s UNOPPOSED Request for Judicial Notice in Support of Demurrer to Plaintiff’s Complaint is GRANTED. 

UNOPPOSED Request for Judicial Notice in Support of Plaintiff’s Opposition to Demurrer of California Interscholastic Federation is GRANTED. 

Ten days leave to amend, if possible. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed. 

Plaintiff’s Motion for Sanctions Against Defendant California Interscholastic Federation and its Counsel Pursuant to CCP sections 128.7, 128.5 is DENIED.

The Court cannot find that the conduct at issue, filing and pursuing a demurrer to the complaint, constitutes actions or tactics made in bad faith under CCP § 128.5.

The Court also cannot find pursuant to CCP § 128.7 that the demurrer to the complaint is being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.  

UNOPPOSED Request for Judicial Notice is GRANTED to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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