Judge Thomas Falls, Case 20STCV19630 2022-09-02 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

(1) Defendants Claremont Unified School District’s (“CUSD”), Brett O’Connor’s, and Andrea Deligio’s DEMURRER to Plaintiff’s Second Amended Complaint

(2) Defendants Claremont Unified School District’s (“CUSD”), Brett O’Connor’s, and Andrea Deligio’s MOTION TO STRIKE

(1) Defendants Claremont Unified School District’s (“CUSD”), Brett O’Connor’s, and Andrea Deligio’s DEMURRER to Plaintiff’s SECOND Amended Complaint is OVERRULED IN PART (i.e., 1^st-3^rd cause of actions); SUSTAINED IN PART WITH LEAVE TO AMEND (4^th cause of action); SUSTAINED IN PART WITHOUT leave to amend (5^th and 6^th causes of actions).

(2) Defendants Claremont Unified School District’s (“CUSD”), Brett O’Connor’s, and Andrea Deligio’s MOTION TO STRIKE is DENIED.

This case arises from an alleged sexual battery. Plaintiff Victoria Figueroa (“Plaintiff”), by and through her guardian ad litem, Frances Valenzuela, alleges the following against Defendants CUSD, Brett O’Connor, and Andrea Deligio (collectively, “Defendants”): “On three occasions placed his right hand on Plaintiff’s inner thigh skin to skin, as Plaintiff was wearing shorts at the time, with the intent to cause a harmful or offensive contact with an intimate part of Plaintiff’s body. Defendant JUAN ENRIQUEZ’s conduct in placing his right hand on Plaintiff’s inner thigh skin to skin on three occasions, with the requisite intent, caused Plaintiff immediate apprehension of offensive contact with an intimate part of Plaintiff's body, specifically her vagina, and which conduct did in fact act to cause Plaintiff immediate apprehension of offensive contact with an intimate part of Plaintiff's body, specifically her vagina.” (Second Amended Complaint (“SAC”) ¶23.)

2. Negligent Supervision of School Premises (against CUSD, Brett O’Connor, Andrea Deligio, and Does 2-100)

3. Negligent Supervision and Training of Employees (CUSD, Doe 1, Brett O’Connor, Andrea Deligio, and Does 2-100)

4. Violation of Cal. Constitution (CUSD, Doe 1, Brett O’Connor, Andrea Deligio, and Does 2-100)

On November 5, 2021, Judge Michael E. Whitaker sustained Defendants’ demurrer with 20 days leave to amend.

On December 23, 2021, Defendants filed their second and instant Demurrer with a Motion to Strike, which this court sustained with leave to amend.

On June 23, 2022, Plaintiff, by and through her Guardian Ad Litem, Frances Valenzuela, filed their Second Amended Complaint (“SAC”) against Defendants with an additional cause of action for Sexual Assault.

On July 25, 2022, Defendants filed their CLAREMONT UNIFIED SCHOOL DISTRICT, BRETT O'CONNOR and ANDREA DELIGIO (collectively, “Defendants”) filed the instant Demurrer and motion to strike

On August 18, 2022, Defendants filed a Notice of Errata and filed their motion to strike.[1]

On August 22, 2022, Plaintiff filed its Opposition to the Demurrer with a motion to strike.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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. (CCP §§ 430.30, 430.70.) 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 of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

As a threshold matter, the court must determine whether Plaintiff has pled sufficient facts for sexual battery/assault against Defendant Enriquez as the basis of liability on Defendants is predicated upon vicarious liability.

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.[3]

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

Section 1708.5 defines an intimate part as “the sexual organ, anus, groin, or buttocks of any person, or the breast of a female” and offensive contact as “contact that offends a reasonable sense of personal dignity.” (Id., § 1708.5(d), (f)) (emphasis added). “A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact and the batteree suffer a ‘sexually offensive contact.’” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225; see also Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208 (quoting Angie M.).)

Here, Defendants briefly and conclusively state that “Plaintiff did not and cannot suffer a "sexually offensive contac as a matter of law” and that “[s]imply stated, the ‘fear’ of an assault differs significantly from the fear of a sexual assault.” (Demurrer p. 9.)

The court is uncertain how the fear of a sexual assault is not applicable here Plaintiff alleges that Enriquez touched Plaintiff’s thigh three times with the intent of causing an offensive contact to her intimate body part (i.e., vagina).

First Cause of Action for Negligent Supervision and Training (First-Third Causes of Actions)

A claim against a public entity for negligent hiring, training, and supervision is legally tenable under Government Code section 815.2.[4] (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) To establish negligent supervision, a plaintiff must show that a person in supervisorial position over the actor had prior knowledge of the actor’s propensity to the bad act. (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902) (emphasis added).[5] The absence of knowledge precludes liability. (Romero v. Superior Court. (2001) 89 Cal.App.4th 1068, 1084 [“In addition to the special relationship created . . . we hold there must also be evidence showing facts from which the trier of fact could reasonably infer that the adult had prior actual knowledge, and thus must have known, of the offenders’ assaultive propensities.”]) (italics original). Therefore, if a supervisory or administrative employee of the school district is proven to have breached the protective duty of ordinary care school personnel owe students under their supervision by negligently exposing a student to a foreseeable danger of molestation by a school employee, resulting in the student’s injuries, liability falls on the school district under Government Code section 815.2. (C.A., supra, 53 Cal.4th at 865-866.) To emphasize, a school district’s liability “must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculations. That an individual school employee has committed sexual misconduct with a student or students does not of itself establish, or raise any presumption, that the employing district should bear liability for the resulting injuries.” (Id. at 878) (emphasis added, italics original). “In short, the third party’s misconduct must be foreseeable to the defendant.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 682-683.)

Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, CUSD and/or principal DOE 1 failed to report to the new school Claremont High School the prior similar bad conduct that had occurred and was perpetuated by Defendant JUAN ENRIQUEZ, believed to have occurred at El Roble Intermediate School, by said Defendant JUAN ENRIQUEZ. As a result of this failure to report and communicate the information to Claremont High School, Claremont High School, principal BRETT O’CONNOR, assistant principal ANDREA DELIGIO and DOES 2-100 were UNAWARE that they needed to take the appropriate safeguards against such bad conduct recurring. Because of said failure to inform or notify Claremont High School, Defendants CUSD and DOE 1, failed to provide a safe and secure learning environment, and to enforce rules and regulations necessary to prevent disorderly and dangerous practices which are foreseeable and likely to result in injury or harm.

- The special relationship between the student and school, by itself, does not create liability;

- It has long been established that section 28 [of the California Constitution] "does not impose an express affirmative duty on any government agency to guarantee the safety of schools;

Here, the court finds Defendants’ arguments nothing more than conclusions without an analysis.

Fourth Cause of Action for Violation of Cal. Const. Art. 1 § 28(F)(1); Cal. Education Code § 44807; Cal. Ed. Code § 8202; Cal.; Cal. Ed. Code § 49709; Cal. Code Reg., Tit. 5, § 5552 Cal. Government Code 815.6

The court SUSTAINS the fourth cause of action with leave to amend because it fails to comply with California Rules of Court (“CRC”) Rule 2.112, particularly in that combines multiple causes of action into one.[6]

Fifth Cause of Action for Sexual Battery and Sixth Cause of Action for Sexual Assault

Plaintiff brings forth these causes of action against Defendants because “it’s agents, specifically defendants BRETT O’CONNER AND ANDREA DELIGIO, knew of Defendant ENRIGUEZ’s propensities to engage in conduct of this nature beforehand as alleged above and therefore knew or should have known of Defendant ENRIGUEZ’s conduct, yet failed to take appropriate action to protect Plaintiff and other students.” (SAC ¶¶60, 68, respectively.)

Defendants argue that these new causes of action are (1) barred by the statute of limitations and (2) “the liability of moving defendants, if any, is negligence based, i.e., vicarious, not direct and not as an intentional tort.” (Demurrer p. 13.)

The statute of limitations for assault and battery is two years. Two years (CCP §335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.)

Here, the touching occurred on August 22, 2019; thus, these causes of action must have been asserted against Defendants on August 22, 2021. However, the actions have been asserted by way of the SAC on June 23, 2022, over one year too late.

Thus, as there is no probability that Plaintiff can cure this defect, the court SUSTAINS the demurrer as to the fifth and sixth causes of action WITHOUT leave to amend.

Defendants served and filed two copies of the demurrer rather than one demurrer and one motion to strike. Plaintiff sent two emails to Defendants for a copy of the motion to strike after noticing the error. Thus, it is inarguable that the motion to strike is untimely. That said, as Plaintiff had an opportunity to respond, the court will consider the motion to strike.

1. Paragraph 10, page 3, lines 18 though 27, in its entirety, which states in, pertinent part, that “Defendants, and each of them, authorized all of the conduct, acts, and omissions as alleged, had both actual and constructive notice of said conduct, acts and omissions, and ratified said conduct, acts or omissions of every other defendant;” and

First, as Defendants did not adequately analyze the issue of negligent supervision and training in the demurrer, the motion to strike paragraph 10 is DENIED.

Second, as to Defendants’ request to strike entire causes of action, that is inappropriate on a motion for strike. A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under¿CCP § 436: “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281, citation omitted. Accordingly, the motion to strike the fifth and sixth causes of actions are denied.

[1] Defendants served and filed two copies of the demurrer rather than one demurrer and one motion to strike. Plaintiff sent two emails to Defendants for a copy of the motion to strike after noticing the error.

[2] Defendants again raise the sham pleading doctrine. That issue, however, was resolved and is no longer a meritorious argument.

[3] Plaintiff argues that the second subsection applies, but the court is uncertain how so. (Opp. p. 6 [“Defendant Enriquez's conduct in touching Plaintiff's inner thigh, without her consent meets the requisite of the Sexual Battery Statute subsections 2 and 3.”].) Subsection 2 applies when the perpetrator uses his or her own intimate part to make the offensive contact. Here, however, Plaintiff alleges that Enriquez used his hand. A hand is not an intimate body part. Therefore, it appears subsection 1 applies as Enriquez used his hands to allegedly cause contact with Plaintiff’s vagina.

[4] “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.”

[5] Case Law has clearly established that a school district cannot be vicariously liable for the acts of the perpetrator. (See John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441 [“The principal question before us is whether the school district that employed the teacher can be held vicariously liable for the teacher’s acts under the doctrine of respondent superior. We hold that the doctrine is not applicable in these circumstances and that while the school district may be liable if its own direct negligent is established, it cannot be held vicariously liable for its employee’s torts.”].) (emphasis added).

[6] According to CRC Rule 2.112, each cause of action in a complaint must be separately numbered. Here, Plaintiff is asserting six causes of action within one cause of action.