Judge: Robert C. Longstreth, Case: 37-2023-00046094-CU-NP-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00046094-CU-NP-CTL PEREZ, III VS UNIVERSITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 12/14/2023

Defendant University of San Diego's Demurrer to Plaintiff's Complaint (ROA 23) is SUSTAINED with leave to amend as to the second, third, and fourth causes of action.

A complaint must contain '[a] statement of the facts constituting the cause of action, in ordinary and concise language.' (Code Civ. Proc. § 425.10(a)(1).) 'In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.' (Id. at § 452.) As to the second cause of action for violation of the Bane Act, the demurrer is sustained with leave to amend. (Code Civ. Proc. § 430.10(e).) Plaintiff alleges that Defendant 'intentionally interfered with or attempted to interfere, by threats, intimidation, and coercion, with plaintiff's rights secured by the Constitution as well as the laws of this state, including the right to be free from sexual harassment and assault.' (Compl. ¶ 30.) However Plaintiff does not allege facts of Defendant's intentional interference with Plaintiff's rights. Plaintiff also does not allege any threat or act of intimidation or coercion by Defendant, nor any specific intent by Defendant.

Plaintiff's second cause of action includes an allegation that Defendant 'aided, allowed, incited, and/or conspired with the denial or attempted denial of Plaintiff's rights as secured by the Constitution and the laws of this state.' (Compl. ¶ 31.) This conclusory allegation is not sufficient to support a theory of either civil conspiracy or aiding and abetting against Defendant; Plaintiff must plead facts to support such liability. 'It is well settled that bare allegations and rank conjecture do not suffice for civil conspiracy.' (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 (internal quotes and citation omitted); see also Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, fn. 10, aiding and abetting requires giving 'substantial assistance' to the tortfeasor.) As to the third cause of action for hazing in violation of Penal Code section 245.6, the demurrer is sustained with leave to amend. (Code Civ. Proc. § 430.10(e).) Under Penal Code section 245.6, '[t]he person against whom the hazing is directed may commence a civil action for injury or damages.' (Id. at subd. (e).) 'The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.' (Ibid.) Defendant contends that Plaintiff has not pled any facts that Defendant's agents 'requested, commanded, participated in, or ratified the hazing.' (Pen. Code § 245.6(e).) The court agrees.

'Ratification is the voluntary election by a person to adopt in some manner as his own an act which was Calendar No.: Event ID:  TENTATIVE RULINGS

3082186  13 CASE NUMBER: CASE TITLE:  PEREZ, III VS UNIVERSITY OF SAN DIEGO [IMAGED]  37-2023-00046094-CU-NP-CTL purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.' (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) Plaintiff's Complaint alleges Defendant knew or should have known of the hazing practices but failed to prevent hazing from occurring and thus ignored the university's zero-tolerance policy against hazing, but these allegations do not constitute a ratification. To sufficiently allege ratification, Plaintiff must allege facts of Defendant's adoption after the fact of the hazing that was done by others.

As to the fourth cause of action for intentional infliction of emotional distress, the demurrer is sustained with leave to amend. (Code Civ. Proc. § 430.10(e).) Although the hazing incidents described in Plaintiff's complaint clearly appear extreme and outrageous, the hazing was done by others. Plaintiff does not allege any representative of the university was present or participated in the hazing. Moreover, to be liable, Defendant's conduct must be directed primarily at the plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 904.) Here, there is no allegation that any conduct of the university was directed at Plaintiff.

Plaintiff may file a First Amended Complaint on or before July 19, 2024.

Defendant's Motion to Strike (ROA 31-32 and 41) is DENIED as moot based on the court's ruling sustaining the demurrer with leave to amend.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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