Judge: Salvatore Sirna, Case: 21STCV43583, Date: 2022-11-14 Tentative Ruling
Case Number: 21STCV43583 Hearing Date: November 14, 2022 Dept: A
Defendant Claremont Unified School District’s DEMURRER
TO PLAINTIFF’S FIRST AMENDED COMPLAINT
Respondent: Plaintiff John SJ Doe
Defendant Claremont Unified School District’s MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT
Respondent: Plaintiff John SJ Doe
TENTATIVE RULING
Defendant Claremont
Unified School District’s Demurrer to Plaintiff John SJ Doe’s First Amended
Complaint is SUSTAINED with 20 days’ leave to amend.
Defendant Claremont
Unified School District’s Motion to Strike Portions of Plaintiff John SJ Doe’s
First Amended Complaint is deemed MOOT.
BACKGROUND
This
action arises from the sexual abuse of a high school student by school staff. Defendant
Brandy Wilborn (Wilborn) was a teacher’s aide employed by Defendant Claremont
Unified School District (CUSD) at Claremont High School. Plaintiff John SJ Doe was
a student at Claremont High School. From December 2014 to May 2015, Wilborn
sexually assaulted, abused, molested, and harassed Plaintiff. Wilborn was then
arrested in 2015 and pled no contest to unlawful sexual intercourse with a
minor.
On
November 29, 2021, Plaintiff filed a complaint for damages against CUSD,
Wilborn, and Does 1 through 50, alleging the following causes of action: (1)
intentional infliction of emotional distress against all defendants; (2)
negligence against CUSD and Does 1-50; (3) negligent supervision against CUSD
and Does 1-50; (4) negligent retention/hiring against CUSD and Does 1-50; (5)
negligent failure to train, warn, or educate against CUSD and Does 1-50; (6)
breach of fiduciary duty against all defendants; (7) constructive fraud pursuant
to Civil Code, section 1573 against all defendants; (8) sexual harassment pursuant
to Civil Code, section 51.9 against all defendants; (9) sexual harassment and
abuse in the educational setting pursuant to Education Code, section 220
against CUSD and Does 1-50; (10) sexual battery against Wilborn; (11) gender
violence pursuant to Civil Code, section 52.4 against Wilborn; and (12)
violation of Penal Code, section 647.6, subdivision (a)(1) against Wilborn.
Wilborn
answered with a general denial and affirmative defenses on February 8, 2022,
while CUSD responded with a demurrer and motion to strike Plaintiff’s complaint
on April 6, 2022. On June 17, 2022, the court sustained CUSD’s demurrer with
leave to amend on the grounds that Plaintiff failed to plead facts sufficient
to state a cause of action. Plaintiff filed a first amended complaint (FAC) on September
6, 2022.
On
October 6, 2022, CUSD filed a demurrer and motion to strike Plaintiff’s FAC,
arguing Plaintiff still fails to allege actionable facts for Plaintiff’s causes
of action against CUSD. Prior to filing on October 4, CUSD’s counsel attempted
to contact Plaintiff’s counsel via telephone and sent an email attempting to
meet and confer. (Kostrenich Decl., ¶ 5-6.) On October 5, Plaintiff’s counsel
rejected the positions taken by CUSD’s counsel via email. (Kostrenich Decl., ¶
7.)
REQUESTS FOR JUDICIAL NOTICE
In
opposition to CUSD’s motion to strike, Plaintiff has requested the court take
judicial notice of eight exhibits of legislative materials regarding Assembly
Bill No. 218. Because the court has sustained CUSD’s demurrer and deemed CUSD’s
motion to strike as moot, Plaintiff’s request for judicial notice deemed MOOT.
LEGAL STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts sufficient
to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A
demurrer tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering
demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.) “The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, at p. 747.)
DISCUSSION
Intentional Infliction of Emotional Distress
CUSD
argues Plaintiff cannot establish CUSD’s liability for intentional infliction
of emotional distress (IIED) because (1) it cannot be asserted against public
entities or employees and (2) Plaintiff failed to allege sufficient facts to
state a claim of IIED against CUSD’s other employees. The court agrees
Plaintiff cannot hold CUSD vicariously liable for Wilborn’s actions and has
failed to allege sufficient facts to state a claim for IIED against CUSD’s
other staff.
First,
the court considers whether a claim of IIED may be brought against CUSD.
Pursuant to Government Code, section 815, subdivision (a), a public entity is
not liable for injuries “except as otherwise provided by statute.” Because IIED
is a common law tort, CUSD argues it cannot be asserted against CUSD or its
employees. However, the court’s analysis does not stop there. “A public entity
is liable for injury proximately caused by an act or omission of an employee of
the public entity within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause of action against
that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)
Similarly, “a public employee is liable for injury caused by his act or
omission to the same extent as a private person.” (Gov. Code, § 820, subd.
(a).)
Public
entities have previously been held liable for the intentional torts of their
employees. (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1389; Toney
v. State of California (1976) 54 Cal.App.3d 779, 788-789.) However, courts
have declined to hold schools liable for the sexual misconduct of their staff,
instead allowing them to be held liable for their own negligence in the hiring,
retention, and supervision of the abuser. (John R. v. Oakland Unified School
Dist. (1989) 48 Cal.3d 438, 451 (John R.); C.A. v. William S.
Hart Union High School Dist. (2012) 53 Cal.4th 861, 878 (C.A.).)
Thus, to the extent Plaintiff attempts to hold CUSD liable for Wilborn’s IIED, Plaintiff’s
First Amended Complaint fails as a matter of law.
Second,
the court considers whether Plaintiff adequately pled a claim of IIED against
CUSD for the conduct of its other staff. To establish a claim of IIED, one must
show “(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional distress;
and (3) actual and proximate causation of the emotional distress by the defendant’s
outrageous conduct.” (Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, quoting Cervantez v. J.C. Penney Co. (1979)
24 Cal.3d 579, 593.) Extreme and outrageous conduct is defined as exceeding “all
bounds of decency usually tolerated by a decent society” and intending to cause
mental distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 618.) There is no dispute that sexual abuse of a minor by a
mentor or teacher is beyond the bounds of decency tolerated by a decent society.
In
addition to being extreme and outrageous, the conduct giving rise to an IIED
claim must be intentional and “directed at the plaintiff, or occur in the
presence of a plaintiff of whom the defendant is aware.” (Christensen v.
Superior Court (1991) 54 Cal.3d 868, 903.) A defendant acts with reckless
disregard when the defendant directs “conduct at, and in conscious disregard of
the threat to, a particular individual.” (Ibid.) Here, Plaintiff did not
pled any facts establishing CUSD staff were aware of Wilborn’s sexual abuse or
acting in reckless disregard of the dangers Wilborn posed. Plaintiff does make
conclusory allegations that CUSD was “intentional and malicious” (FAC, ¶ 52) and
concealed Wilborn’s sexual abuse to protect their reputation. (FAC, ¶ 47.)
However, Plaintiff does not allege any facts to support these allegations.
Instead, Plaintiff points to “red flags” that “alerted or should have alerted
CUSD” of Wilborn’s sexual abuse. (FAC, ¶ 21.) Plaintiff also points to a
statement by a Claremont Police Department lieutenant who stated “Wilborn’s inappropriate
sexual relationship with Plaintiff was known months before Wilborn’s May 8,
2018, arrest.” (FAC, ¶ 22.) This statement also does not establish CUSD staff
knew of Wilborn’s sexual abuse as it is vague.
Without
establishing any facts that demonstrate CUSD staff were aware of Wilborn’s
sexual abuse, Plaintiff cannot establish they acted intentionally or in a
reckless manner to conceal Plaintiff’s abuse and emotionally harm the
Plaintiff. Accordingly, CUSD’s demurrer to Plaintiff’s first cause of action
for IIED is SUSTAINED.
Negligence, Negligent Supervision, Negligent
Retention/Hiring, and Negligent Failure to Warn, Train, or Educate
CUSD
argues Plaintiff’s causes of action for negligence, negligent supervision,
negligent retention/hiring, and negligent failure to warn, train, or educate
are not adequately pled. The court agrees.
The
basic of elements of a negligence claim are (1) duty, (2) breach, (3)
causation, and (3) damages. (Leslie G. v. Perry & Associates (1996)
43 Cal.App.4th 472, 480.) The elements of a cause of action for negligent
hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or
supervising an employee; (2) the employee was incompetent or unfit; (3) the
employer had reason to believe undue risk of harm would exist because of the
employment; and (4) harm occurs. (Evan F.
v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.) To
demonstrate, if school employees responsible for hiring or supervising teachers
“knew or should have known of [teacher’s] prior sexual misconduct toward
students, and thus, that he posed a reasonably foreseeable risk of harm to students
under his supervision . . . , the employees owed a duty to protect the students
from such harm.” (Virginia G. v. ABC Unified School Dist. (1993) 15
Cal.App.4th 1848, 1855.) Lastly, the existence of a special relationship can give
rise to a duty to warn or educate about certain dangers, including sexual
abuse. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8
Cal.App.5th 1118, 1129.)
Here,
Plaintiff established CUSD’s staff owed Plaintiff a duty of care as Plaintiff
was a minor student attending CUSD. “California law has long imposed on school
authorities a duty to supervise at all times the conduct of the
children on the school grounds and to enforce those rules and regulations
necessary to their protection.” (C.A., supra, 53 Cal.4th at p.
869, quoting Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d
741, 747.) Courts also consider school employees to have a special relationship
with their students which imposes “the duty to use reasonable
measures to protect students from foreseeable injury at the hands of
third parties acting negligently or intentionally.” (Id., at p.
869-870.) Furthermore, school employees are mandatory reporters who must report
if they have knowledge of or reasonably suspect child abuse pursuant to the
Child Abuse and Neglect Reporting Act (CANRA). (Pen. Code, § 11166, subd. (a).)
In
addition to a special relationship, another factor in duty analysis is
foreseeability of the harm. (See Jennifer C. v. Los Angeles Unified School
Dist. (2008) 168 Cal.App.4th 1320, 1328 (Jennifer C.).) “Foreseeability
is determined in light of all the circumstances and does not require prior
identical events or injuries.” (M.W. v. Panama Buena Vista Union School
Dist. (2003) 110 Cal.App.4th 508, 519 (M.W.).) It is an objective
standard that looks at whether the negligent conduct or absence of safeguards
created a foreseeable risk of a particular type of harm. (Ibid.)
CUSD
contends Plaintiff failed to plead with particularity whether CUSD’s staff were
aware of Wilborn’s sexual abuse. “[T]o state a cause of action against a public
entity, every fact material to the existence of its statutory liability must be
pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976)
60 Cal.App.3d 814, 819.) For example, “a pleading that did no more than assert
boilerplate allegations that defendants knew or were on notice of the
perpetrator's past unlawful sexual conduct would not be sufficient nor would
allegations of information and belief that merely asserted the facts so alleged
without alleging such information that ‘lead[s] [the plaintiff] to believe that
the allegations are true.’” (Doe v. City of Los Angeles (2007) 42
Cal.4th 531, 551, fn. 5 [determining whether defendants had actual or constructive
notice for purposes of extending statute of limitations], quoting Pridonoff
v. Balokovich (1951) 36 Cal.2d 788, 792.)
Here,
Plaintiff pointed to “red flags” including that Wilborn was “spending an
inordinate amount of time with students;” was “driving students, including
Plaintiff, off-campus;” was “seen in public, outside of school hours, with
minors, including Plaintiff;” and was accused and investigated prior to arrest
for misconduct with students that was inappropriate and sexual in nature. (FAC,
¶ 21.) However, Plaintiff does not provide any additional facts about these
circumstances, including who had the opportunity to observe them and which ones
even occurred on campus. In claiming instances of abuse were reported and
investigated, Plaintiff also fails to state which entity learned of and
investigated the abuse. Plaintiff cited a statement from law enforcement that
Wilborn’s inappropriate sexual relationship with Plaintiff was known months
before Wilborn’s arrest but does not specify who actually knew. (FAC, ¶ 22.) Plaintiff
further alleged “that there had been reports of sexual abuse and/or misconduct
with children that involved or implicated [Wilborn] prior to and/or during the
time she was retained with [CUSD]” and that the reports could have been
discovered by proper background checks. (FAC, ¶ 40.) However, Plaintiff fails
to allege any facts or information that support Plaintiff concluding these
prior reports could have been discovered by proper background checks.
Beyond
conclusory and boilerplate assertions that CUSD had actual or constructive
knowledge of abuse, Plaintiff has not alleged any facts establishing CUSD’s
staff were aware of Wilborn’s sexual abuse or even had the opportunity to
become aware. Evidence that a school employee sexually abused a minor “does not
of itself establish, or raise any presumption, that the employing district
should bear liability for the resulting injuries” as a “[school] district's
liability must be based on evidence of negligent hiring,
supervision or retention, not on assumptions or speculation.” (C.A., supra,
53 Cal.4th at p. 878.)
Accordingly,
because Plaintiff has not alleged facts sufficient to establish Wilborn’s
sexual abuse was foreseeable by CUSD’s staff, CUSD’s demurrer to Plaintiff’s
causes of action for negligence, negligent supervision, negligent
retention/hiring, and negligent failure to warn, train, or educate are SUSTAINED.
Breach of Fiduciary Duty and Constructive Fraud
CUSD
argues Plaintiff’s causes of action for breach of fiduciary duty and
constructive fraud fail as a matter of law. The court agrees.
“The
elements of a cause of action for breach of fiduciary duty are the existence of
a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.) The existence of a fiduciary duty or confidential
relationship is also required for a successful constructive fraud claim. (Michel
v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 762-763.)
Here,
Plaintiff has not provided nor has the court been able to locate any authority
establishing the existence of a fiduciary duty or confidential relationship
between a student and school staff. Merely asserting that Plaintiff placed
trust and confidence in CUSD is insufficient to establish a fiduciary duty. (Ampuero
v. Luce (1945) 68 Cal.App.2d 811, 819.) Thus, the court SUSTAINS CUSD’s demurrer to
Plaintiff’s sixth cause of action for breach of fiduciary duty and seventh
cause of action for constructive fraud.
Sexual Harassment
CUSD
argues Plaintiff’s causes of action for sexual harassment under the Civil Code
and Education Code are not sufficiently pled. The court agrees.
Civil
Code, section 51.9 allows for a cause of action for sexual harassment to be
brought against “persons” who are in a business, service, or professional
relationship with a plaintiff, including teachers. (Civil Code, § 51.9, subd.
(a)(1)(E).) Citing C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th
1094 (Tenet), Plaintiff argues CUSD can be held liable as a “person” and
for ratifying Wilborn’s sexual abuse.
In Tenet,
the court held corporations are persons pursuant to Civil Code, section 51.9
and can be subjected to liability for sexual harassment. (Id., at p.
1110.) However, at least one court has already rejected this argument, limiting
Tenet to private corporations and holding public entities are not subject
to liability under Civil Code, section 51.9. (K.M. v. Grossmont Union High
School District (Oct. 25, 2022, D075957) __ Cal.App.4th __ [2022 WL
14391790, *16-17]. And to the extent Plaintiff attempts to hold CUSD
vicariously liable for Wilborn’s actions, the court rejects that argument for
the same reasons it rejects vicarious liability with regards to Plaintiff’s
IIED claim.
Plaintiff’s
alternative theory of liability that CUSD ratified Wilborn’s sexual abuse fails
as well. Under the theory of ratification, an employer can be liable for an
employee’s conduct “where an employer fails to investigate or respond to
charges that an employee committed an intentional tort, such as assault or
battery.” (Baptist v. Robinson (143 Cal.App.4th 151, 169.) “Ratification
requires full knowledge by the principal of all of the material facts at the
time of the act of ratification.” (Dufresne v. Elite Insurance Co. (1972)
26 Cal.App.3d 916, 926.) However, when “circumstances are such as to put a
reasonable man on inquiry” and the principal fails to investigate, ratification
can be established despite the principal’s lack of full knowledge. (Reusche
v. California Pacific Title Ins. Co. (1965) 231 Cal.App.2d 731, 737.) Here,
as noted above with regards to Plaintiff’s causes of action for negligence,
Plaintiff has failed to allege sufficient facts that establish CUSD’s staff had
any actual or constructive knowledge of Wilborn’s sexual abuse. Accordingly,
Plaintiff cannot assert a cause of action for sexual harassment.
Education
Code, section 220 prohibits “discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or ethnicity, religion,
sexual orientation, or any other characteristic that is contained in the
definition of hate crimes set forth in Section 422.55 of the Penal
Code,
including immigration status, in any program or activity conducted by an
educational institution that receives, or benefits from, state financial
assistance, or enrolls pupils who receive state student financial aid.” A
school is liable for violations of Section 220 when the school has actual
notice of the violation and liability is not imposed through principles of
respondeat superior or constructive notice. (Donovan v. Poway Unified School
Dist. (2008) 167 Cal.App.4th 567, 605.) Actual notice is required to “ensure
liability for money damages under section 220 is based on a
funding recipient's own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Ibid.)
For
the same reasons noted above, Plaintiff has failed to plead facts sufficient to
establish CUSD had notice of Wilborn’s abuse. Because CUSD’s staff did not have
any notice, Plaintiff has failed to state a claim for violations of Education
Code, section 220. Accordingly, the court SUSTAINS CUSD’s demurrer to
Plaintiff’s eight cause of action for sexual harassment and ninth cause of
action for sexual harassment and abuse in the educational setting.
CONCLUSION