Judge Thomas Falls, Case 22STCV149395 2022-10-03 Tentative Ruling

(1) Defendant Covina Valley Unified School District’s Demurrer to Plaintiff’s First Amended Complaint

(2) Defendant Covina-Valley Unified School District’s Notice Of Motion And Motion To Strike Plaintiff’s First Amended Complaint

(1) Defendant Covina Valley Unified School District’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED because Plaintiff has alleged sufficient facts for vicarious liability

(2) DEFENDANT COVINA-VALLEY UNIFIED SCHOOL DISTRICT’S NOTICE OF MOTION AND MOTION is DENIED as the court finds it is premature to decide the issue of attorney fees pursuant to CCP 1021.5

This case arises from allegations of sexual assault endured when in school. Plaintiff NICHOLAS INCLAN (“Plaintiff”) asserts the following allegations against Defendants COVINAVALLY UNIFIED SCHOOL DISTRICT (“CVUSD”), a public entity, and KIMBERLY NORTHROP (collectively, “Defendants”): Defendant Northrop was a teacher at Northview High School, where Plaintiff was her student during the 2004 to 2005 academic year. Northrop began sexually grooming Plaintiff by seeking to earn his emotional and psychological trust. After two weeks, Northrop began sexually assaulting Plaintiff. Northrop also sexually assaulted two other students. Plaintiff further alleges that another CVUSD teacher sexually assaulted students. Despite CVUSD’s awareness that at least one of its teachers sexually abused a minor student at Northview High School, CVUSD continued to ignore Northrop’s inappropriate behavior.

On July 21, 2022, Plaintiff filed its First Amended Complaint (“FAC”) against Defendants for:

On August 23, 2022, Defendant filed the instant Demurrer with a Motion to Strike

On September 19, 2022, Plaintiff filed its Opposition to the Demurrer and Motion to Strike.

Defendant CVUSD demurs to the 4^th cause of action for Sexual Harassment, which Plaintiff asserts in violation of Civil Code Section 51.9.

Civil Code Section 51.9 provides that a person is liable in a cause of action for sexual harassment when (1) “there is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party”; (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”; and (3) “plaintiff suffered or will suffer economic loss or disadvantage or personal injury.” (Cal. Civ. Code § 51.9.)

1. Vicarious liability under Government Code section 815.2 fails as a matter of law because school districts cannot be vicariously liable for the molestation of students as such actions are deemed outside the scope of employment (Demurrer p. 8);

2. The ratification theory fails for two reasons: (a) courts have specifically rejected a ratification theory against a public entity and (b) substantively, Plaintiff fails to specifically allege that CVUSD “approved” of Northrop’s conduct and “accepted the benefits which from [such conduct]” (Demurrer pp. 9-10);

3. Education Code sections 200 and 201 do not establish a mandatory duty on the District because imposition of mandatory duties require “explicit and forceful” language but both sections merely provide general policies, which fall short of the requirement. (Demurrer pp. 10-11).

Additionally, pursuant to California Government Code section 815.2, Defendant CVUSD is liable for the injuries proximately caused by the acts or omissions of its employees, agents, servants and/or joint venturers, where such acts or omissions were within the course and scope of employment . . . Accordingly, Defendant CVUSD is liable for the actions of its employees, who were charged with the duty of caring for and protecting Plaintiff, specifically when they failed to properly discharge such duty and Plaintiff was sexually harassed.

Section 815 establishes that public entity tort liability is exclusively statutory: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ Section 815.2, in turn, provides the statutory basis for liability relied on here: ‘(a) 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.’

(C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 868) (italics added).

Insofar as tort liability requires that a public entity’s duty of care be specifically provided by statute, “California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds.’” (Id. at p. 869.) In addition, a school district and its employees have a special relationship with the pupils that imposes “obligations beyond what each person generally owes others under Civil Code section 1714” including the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (Id. at pp. 869-870.) This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by “injuries to a student resulting from a teacher's sexual assault.” (Id, citing Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1851-1855.) Lastly, schools have “the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.” (C.A., supra, 53 Cal.4th at p. 871, citing Cal.Code Regs., tit. 5 section 5551) (emphasis added).[1]

Defendant CVUSD argues that “[c]learly Ms. Northrop, as the alleged assailant, may be liable for a sexual harassment claim. However, school districts cannot be vicariously liable for the molestation of students as such actions are deemed outside the scope of employment as a matter of law.” (Demurrer p. 8:10-14, citing John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.)

In Opposition, Plaintiff explains that it is not alleging that CVUSD’s liability arises from Northrop’s conduct but CVUSD’s “other employees’ actions and inactions, taken within the scope of their employment” in that those employees were charged with the duty of caring for and protecting Plaintiff. (Opp. p. 9, citing C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 871.)

- “The teacher with the classroom directly next to Northrop knew and saw Plaintiff frequently stay late after class and eat lunch alone in Northrop’s classroom. Upon further information and belief, Northrop’s eating lunch alone with Plaintiff in her classroom was even more suspicious because most of the English department (of which Northrop was a part) ate lunch together”

- “One teacher also noted that Northrop would bring Starbucks coffees all the time for Plaintiff (as well as the other students she abused). This teacher later acknowledged that Northrop’s behavior was consistent with grooming”

- “A different staff member frequently saw Northrop among a group of other teachers who were known to inappropriately “hang out” with minor students. On information and belief, there were allegations of sexual assault against other members of this group of teachers involving minor students”

- “Indeed, the Assistant Principal would later admit that Northrop left the school because of the multiple rumors circulating about her sleeping with her students. Despite this awareness, CVUSD took no steps to investigate or report Northrop to appropriate authorities”

In sum, Plaintiff’s allegations amount to “red flags,” and such red flags are sufficient to lead to the inference that staff “knew or should have known” that Northrop was sexually abusing Plaintiff. After all, there were rumors—rumors illustrated by Northrop’s suspicious repeated one-on-one time with Plaintiff—and rumors which the Assisted Principal was aware of. (See John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 453 [The only way a school district may be held liable must be “premised on its own direct negligence in hiring and supervising the teacher.”]) (emphasis added).

Therefore, as the district did not “take reasonable measures to guard [Plaintiff] against [the] harassment,” then Plaintiff has alleged sufficient facts to establish vicarious liability based on the district’s breach of its mandatory duty to protect Plaintiff.[3]

Based thereon, the court need not discuss the ratification and education code theories as the sexual harassment cause of action survives.

Conclusion

Therefore, the demurrer is OVERRULED as to the 4^th cause of action for Sexual Harassment.

Defendant seeks to strike attorney fees as sought under CCP section 1021.5 and 51.9

As for section 51.9, the court has determined Plaintiff has stated a viable cause of action. Therefore, the motion to strike is denied as to section 51.9.

As for CCP section 1021.5, the section provides the court with discretion to award attorneys’ fees to a successful party in an action which has resulted in the enforcement of an important right affecting the public interest if a significant benefit has been conferred on the general public or a large class of persons, the necessity and financial burden of private enforcement makes the award appropriate, and such fees should not be paid out of the recovery in the interest of justice. (See Code Civ. Proc., § 1021.5.)

The court acknowledges both parties’ arguments have merit. On one hand, Defendant argues it is premature to seek attorney fees when the prevailing party has not yet been determined. On the other hand, Plaintiff argues whether or not the request is sought in the complaint now is irrelevant because the motion for the fees can be brought a later time.

Here, as an award of attorneys’ fees pursuant to CCP section 1021.5 is discretionary and depends on a weighing of factors, the court is more persuaded by Plaintiff that it is inappropriate at this stage to determine the issue.

Therefore, the court finds it cannot determine whether Plaintiffs are entitled to section 1021.5 attorneys’ fees at this stage or not.

[1] Based on Defendant’s Demurrer, it does not appear that Defendant disputes the mandatory duty here the “duty of caring for and protecting Plaintiff.”

[2] To the extent that Plaintiff also relies on allegations that two other teachers, Jelani Kimble and Jason Van Duyne, sexually assaulted students, the court is uncertain as to the relevancy as to this individual Plaintiff. Specifically, one of the teachers began grooming and sexually his student in 2008, which appears to be after Plaintiff graduate the school; again, raising questions about the relevancy of such allegations as pertinent to this Plaintiff. (FAC ¶¶35, 37.)

[3] Based on Defendant’s Demurrer, it does not appear that Defendant disputes the mandatory duty here the “duty of caring for and protecting Plaintiff.”