Judge: Stephen P. Pfahler, Case: 22STCV20916, Date: 2023-03-29 Tentative Ruling

Case Number: 22STCV20916    Hearing Date: March 29, 2023    Dept: F49

Dept. F-49

Date: 3-29-23

Case # 22STCV20916

 

DEMURRER TO THE COMPLAINT

 

MOVING PARTY: Defendant, Los Angeles Unified School District, et al.

RESPONDING PARTY: Plaintiff, Jane RG Doe

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         2nd Cause of Action: Constructive Fraud

·         3rd Cause of Action: Intentional Infliction of Emotional Distress

·         4th Cause of Action: Sexual Harassment

·         5th Cause of Action: Breach of Fiduciary Duty

 

SUMMARY OF ACTION

Plaintiff Jane RG Doe was a student at Telfair Elementary School with the Los Angeles Unified School District (LAUSD). Plaintiff was born on October 26, 1996. Plaintiff alleges teacher, defendant Paul Chapel III molested her during an unspecified period of time, but Plaintiff was a minor at all relevant times.

 

According to Plaintiff, defendant Ruben Zacarias was the superintendent of LAUSD, and aware of prior criminal charges, yet assigned him to a third-grade class at Telfair Elementary School in October 1998. The principal of the school received reports of inappropriate touching of students that led to the removal of Chapel from teaching duties on April 15, 2011. Plaintiff alleges a 44 day lapse between the reports and the removal.

 

Chapel pled no lo contender in August, 2013 to 13 felony counts of child molestation, and is currently serving a 25 year sentence.

 

On June 27, 2022, Plaintiff filed a complaint for Intentional Infliction of Emotional Distress; Negligence; Negligent Supervision; Negligent Hiring and/or Retention; Negligent Failure to Warn Train or Educate; Constructive Fraud; Sexual Harassment; Sexual Battery; Gender Violence; and, Violations of Penal Code sections 286 and 647.6. On June 27, 2022, the clerk entered a default against Paul Chapel III. On October 6, 2022, the case was reassigned from the personal injury court Department 32 to Department 47. A 170.6 filed by plaintiff on October 13, 2022 led to the reassignment of the action to Department 49. On October 20, 2022, Plaintiff filed a first amended complaint for Negligence, Negligent Supervision, Negligent Hiring and/or Retention, Negligent Failure to Warn, Train or Educate; Constructive Fraud; Intentional Infliction of Emotional Distress; Sexual Harassment (Civ. Code § 51.9); Breach of Fiduciary Duty; Sexual Battery; Gender Violence (Civ. Code § 52.4); and Violations of Penal Code sections 286 and 647.6.

 

RULING

Demurrer: Overruled in Part/Sustained in Part.

Defendants Los Angeles Unified School District (LAUSD) and Ruben Zacarias bring the subject demurrer to the second, third, fourth, and fifth causes of action for Constructive Fraud, Intentional Infliction of Emotional Distress, Sexual Harassment (Civ. Code § 51.9), and Breach of Fiduciary Duty. The court individually addresses the arguments.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “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.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

2nd Cause of Action, Constructive Fraud: Sustained with Leave to Amend.

Defendants contends the complaint lacks sufficient facts regarding constructive fraud in that no fiduciary exists between Plaintiff and Defendants. Plaintiff in opposition contends the requirement of placing children in school imposes a fiduciary duty. Defendants in reply reiterate the lack of any fiduciary relationship between the parties. A “special relationship” is not the equivalent of a fiduciary duty.

 

“1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573.) “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive[;] and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517 (footnote 14.) “‘Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.’” (Barrett v. Bank of America (1986) 183 Cal.App.3d 1362, 1369.)

 

“‘[A]s a general principle constructive fraud comprises any, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.’”

 

(Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

 

A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150.) “A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other's interest without that person's knowledge or consent.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–02.)

 

California Education Code section 48200 requires children between the ages of six to 18 years of age attend a full time school subject to an exemption. (Ed. Code, § 48200.) Plaintiff relies on the in loco parentis imposed duty of care as the basis of a fiduciary through analogizing the standard with that of a lawyer, as presented in case dicta addressing circumstances imposing a “confidential relationship.” [Comp., ¶¶ 18-23.] (Board of Ed. of San Francisco Unified School Dist. v. Weiland (1960) 179 Cal.App.2d 808, 812.) The court finds the imposition of a “confidential relationship” imposed via the entrustment of children to a school facility and staff insufficiently establishes a defined fiduciary duty, as established in the standard. Plaintiff otherwise presents any basis of authority for the finding of the imposition of a fiduciary duty.

 

Nevertheless, even assuming a fiduciary duty exists under the “confidential duty” analogy, the court finds the complaint fails to meet the underlying fraud elements. The complaint relies on redundantly pled allegations regarding Defendants alleged knowledge of the sexual propensities of Chapel, concealment of said prior activities, and resulting trauma, as a basis of fraud. [Comp., ¶¶ 24-30, 38-41, 118-140.]

 

The minor child was directly assaulted by Chapel. Nothing in the complaint alleges a fraudulent representation of certain expectations by moving defendants other than the circumstances of their alleged knowledge of prior wrongful conduct. The placement of the child under the part time care of Chapel arguably placed the child in a position to be taken advantage of, but the mere circumstances of placing the two together fails to rise to the level of a fraudulent act, whereby moving defendants actually took advantage of the trust and confidence of the child simply based on the assignment of Chapel to the subject classroom. The distinction remains an integral part of the claim for purposes of stating fraud. While the allegations regarding the breach of duty to protect the child from the predatory teacher remain unchallenged, elevating the conduct to a level of constructive fraud remains insufficiently supported. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.)

 

The demurrer is therefore sustained with 30 days leave to amend as to this cause of action.

 

3rd Cause of Action, Intentional Infliction of Emotional Distress: Overruled.

Defendants argue against any basis of vicarious liability due to the actions of defendant Chapel. Even if a basis of liability existed, moving defendants challenge any showing of conduct directed towards Plaintiff. Plaintiff in opposition cites to Government Code section 815.2 for the support of the argument regarding the ability of a party to allege vicariously liability on intentional infliction of emotional distress, where the underlying elements are sufficiently pled. Defendants in reply continue to challenge any vicarious liability claims, due to conduct outside the scope of employment.

 

“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).) The California Supreme Court allows for a finding of vicarious liability based on claims arising from negligence. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868–869.)

 

Other courts have also found a party may pled a basis of vicarious liability for the commitment of intentional infliction of emotional distress, where a special duty of care exists towards the intended recipient. (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1389-1390.) Accordingly, the court finds no bar to the claim on the basis of vicarious liability, and therefore the only criteria requires the determination of an adequately pled claim. (Ibid.)

 

“The elements of [intentional infliction of emotional distress] are ‘(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.’” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129.) “The tort calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 130.)

 

The complaint sufficiently alleges reckless conduct thereby supporting a finding of outrageous conduct for purposes of intentional infliction of emotional distress in that Defendants were aware of the prior complaints, and continued to allow Chapel to teach and/or remain in proximity to students. [Comp., ¶¶ 142, 144-145.] Defendants argument in reply regarding the holding of Lawson omits the basis of the order sustaining the demurrer—the failure to state the actual cause of action. (Lawson v. Superior Court, supra, 180 Cal.App.4th at p. 1391.)

 

The demurrer is overruled.

 

4th Cause of Action, Sexual Harassment: Overruled in Part/ Sustained with Leave to Amend in Part.

Defendants challenge the lack of statutory authority establishing a basis of vicarious liability, due to the exclusion of a public entity from the statute. As for individual defendant Zacarias, the demurrer challenges liability on grounds that allegations of sexual advances by defendant Chapel constitutes conduct outside the course and scope of employment. Defendant preemptively challenges any ratification arguments or agency arguments.

 

Plaintiff contends that the both defendants remain vicariously liable, regardless of any personal conduct under the plain language of the statute, due to prior knowledge of employee actions. Plaintiff directly relies on ratification theory for imposing liability. Plaintiff alternatively argues that LAUSD remains liable under Civil Code section 52 pursuant to Education Code language.

 

Civil Code section 51.9 provides in part:

 

(1) There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

…

(E) Teacher.

…

(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the 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.

(3) The plaintiff has 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 described in paragraph (2).

…

LAUSD relies on the latest case regarding liability against a public entity. “We begin with the central issue here: whether a public school district is a ‘person’ under Civil Code section 51.9. We conclude that it is not.” (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 751.)

 

Notwithstanding the square applicability of the case, Plaintiff relies on an unpled theory of liability under Civil Code section 52, as part of a range of liability options under the Unruh Act, and reliance on certain sections of the Education Code.

 

“(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 1981, et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)), the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), the federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.), the Unruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), and the Fair Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900), Div. 3, Gov. C.), except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes.”

 

(Ed. Code, § 201, subd. (g).)

 

“This chapter may be enforced through a civil action.” (Ed. Code, § 262.4.)

 

The court disagrees with Plaintiff’s interpretation of the statute as expansive. The plain language of the statute merely allows acknowledges other options, thereby barring any potential limiting arguments based on the availability of other statutory relief. Nothing in these sections overcomes the law denying a public school district as a non-person under the statute, thereby allowing a basis of liability. (K.M. v. Grossmont Union High School Dist., supra, 84 Cal.App.5th at pp. 751-755.) The court declines to consider statutory sections otherwise not part of the operative pleading. The demurrer is therefore sustained as to LAUSD.

 

As for vicarious liability against Zacarias, the court considers the existence of ratification theory. The California Supreme Court rejected a finding of vicarious liability for the sexual assault of a teacher against a student. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 452.) Plaintiff contends that the harassment claim is not based on conduct outside the scope of employment, but on the ratification of the conduct of Chapel through the placement of him at the school even with notice of prior abusive conduct.

 

“‘As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee's conduct is generally a factual question. [Citation.]’”

 

(C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)

“[P]laintiff's theory of the District's liability does not depend on blurring the line between direct and vicarious liability or on an assumption that a public entity's negligence liability is inherently vicarious. Plaintiff alleges the District's administrators and employees knew or should have known of [the employee’s] dangerous propensities, but nevertheless hired, retained and failed to properly supervise [the employee]. These allegations, if proven, could make the District liable under a vicarious liability theory encompassed by section 815.2. [¶]

 

“The lead opinion in John R. v. Oakland Unified School Dist. … it is true, referred to the school district's potential liability for negligent hiring and supervision of the molesting teacher as ‘direct.’ In context, however, that label served merely to distinguish the negligent hiring and supervision theory from the theory that the district was vicariously liable for the teacher's molestation, a theory we rejected on the ground the molestation was beyond the scope of the teacher's employment. (Citation.) To the same effect is Delfino v. Agilent Technologies, Inc. … referring to a negligent supervision and retention theory as one of ‘direct liability,’ where the plaintiff had also sought to hold the employer vicariously liable for the intentional torts of its employee. (Citation.) As these decisions did not consider the theory of vicarious liability posited here—that the District is liable under section 815.2 for the negligence of its administrative and supervisory personnel—they cannot be taken as either endorsing or precluding this theory.”

 

(C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 875.)

 

The court finds the argument in the motion and reply limiting liability to negligence based claims lacks support under the case cited in support of the argument. Nothing precludes a basis of ratification theory of liability based on prior knowledge, regardless of whether the conduct of Chapel was outside the conduct of the course and scope of employment. Ratification applies to tortious conduct without any factual distinctions for purposes of a demurrer.

 

“Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” (Gov. Code, § 820.8.) The court also finds the conclusive argument citing to Government Code section 820.8 insufficiently addresses the direct basis of liability allowed under Government Code section 815.2.

 

The complaint both alleges the elements for sexual harassment, as well as specific allegations of Defendant’s awareness of Chapel’s prior child molestation charges prior to the decision to place him in a classroom with students. [Comp., ¶¶ 8-9, 12, 20-21, 24-27, 29-56, 149, 153.] (Civ. Code, § 51.9; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 [“The failure to discharge an agent or employee may be evidence of ratification”].)

 

The demurrer is overruled as to this cause of action as to Zacarias.

 

5th Cause of Action, Breach of Fiduciary Duty: Sustained with Leave to Amend.

Defendants challenge the lack of any fiduciary duty between the parties.

 

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150.) “A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other's interest without that person's knowledge or consent.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–02.)

 

For the reasons addressed in the constructive fraud cause of action regarding the lack of a fiduciary duty, the demurrer to the instant cause of action is sustained with 30 days leave to amend.

 

 

Motion to Strike

LAUSD moves to strike the claim for treble damages under Government Code section 818. Plaintiff in an extensive opposition maintains the right to assert such claims against a public entity. LAUSD reiterates the arguments and declares any imposition of treble damages as “unconstitutional.”

 

“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code, § 818.) LAUSD analogizes the sought after treble damages as punitive in nature, thereby subsuming the claim within the statute.

 

“As our Supreme Court's authorities uniformly teach: “Government Code section 818 in context means that, under the Tort Claims Act, a plaintiff who alleges injury caused by a public entity may be entitled to actual damages for that injury, but not punitive damages.” (Citation.) In referring to ‘“damages imposed primarily for the sake of example and by way of punishing the defendant,”’ section 818 ‘contemplates ... punitive damages [that] are designed to punish the defendant rather than to compensate the plaintiff.’ (Citation.) All punitive awards serve a public policy objective by deterring future misconduct; however, it is only when those damages also ‘fulfill “legitimate and fully justified compensatory functions”’ that they are to be regarded as ‘not “simply” or solely punitive’ under section 818. (Citation.) The treble damages provision in section 340.1 does not have a compensatory function; its primary purpose is to punish past childhood sexual abuse cover ups to deter future ones. While this is a worthy public policy objective, it is not one for which the state has waived sovereign immunity under the Tort Claims Act. (Citation.) A public entity like LAUSD is immune from these enhanced damages under section 818.”

(Los Angeles Unified School Dist. v. Superior Court (2021) 64 Cal.App.5th 549, 567.)

 

The court finds Plaintiff’s argument distinguishing the treble damages request as lacking actual support for a finding that the sought after recovery constitutes a compensatory function, rather than punitive. (Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, 272-275.)

 

The motion to strike is granted.

 

In summary, the demurer to the complaint is sustained for moving defendants as to the constructive fraud, and breach of fiduciary cause of action, sustained with leave to amend as to LAUSD and overruled as to Zacarias on the Sexual Harassment cause of action, and overruled as to the intentional infliction of emotional distress cause of action. The motion to strike is granted.

 

Plaintiff is granted 30 days leave to amend. Plaintiff may only add facts in support of the pled claims. Plaintiff may NOT add any new causes of action, but may add facts. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If Plaintiff fails to timely file an amended complaint, defendants shall answer the remaining causes of action within 10 days of the lapsed period for the filing of the amended pleading.

 

Moving parties to give notice.