Judge: Virginia Keeny, Case: 20STCV05335, Date: 2022-09-06 Tentative Ruling


Case Number: 20STCV05335    Hearing Date: September 6, 2022    Dept: W

JOHN FF Doe v. doe 1, a business entity of form unknown, et al.

 

DEFENDANT los angeles unified school district’s motion for judgment on the pleadings and motion to strike Portions of the complaint

 

Date of Hearing:        September 6, 2022               Trial Date:       March 20, 2023

Department:              W                                            Case No.:        20STCV05335

 

Moving Party:            Defendant Los Angeles Unified School District

Responding Party:     Plaintiff John FF Doe

Meet and Confer:      No. (Stephenson-Cheang Decls. ¶¶ 4-5; Exhs. A.)

 

BACKGROUND

 

On February 10, 2020 Plaintiff John FF Doe (“Plaintiff”) filed a Complaint against Defendant DOE 1, a business entity of form unknown (Defendant has identified itself as Los Angeles Unified School District) (“LAUSD”) and DOES 2 – 100. Plaintiff alleges that that he suffered from childhood sexual assault that occurred approximately 50 years ago and perpetrated by a former teacher, Ms. Louise Perlmuter.

 

In the operative Complaint, Plaintiff asserts the following causes of action against LAUSD:

 

1.      Negligence

2.      Negligent supervision

3.      Negligent hiring and retention

4.      Negligent failure to warn, train, or educate

5.      Constructive fraud in violation of Civil Code § 1573

6.      Intentional infliction of emotional distress (“IIED”)

7.      Sexual harassment in violation of Civil Code § 51.9

8.      Breach of fiduciary duty

9.      Public entity liability for failure to perform.

 

On May 27, 2022, LAUSD filed the instant motion for judgment on the pleadings as well as the motion to strike portions of the Complaint. Plaintiff opposes both motions.

 

[Tentative] Ruling

 

1.      Defendant Los Angeles Unified School District’s Motion for Judgment on the Pleadings is  GRANTED in part as to the fourth, fifth, seventh and eighth causes of action without leave to amend, and DENIED in part as to the sixth and ninth causes of action

2.      Defendant Los Angeles Unified School District’s Motion to Strike is DENIED.

 

LEGAL STANDARD

 

Motion for Judgment on the Pleadings

 

The objection that a complaint does not state facts sufficient to constitute a cause of action is normally raised at an early stage in the proceedings by a general demurrer.  However, a general demurrer is not the only procedural device available for this purpose, and it is possible to raise the objection more than once by different methods. The most common alternative method is a motion at the trial, or prior to trial, for judgment on the pleadings pursuant to CCP section 438(c)(1)(B).  

 

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) 

 

Motion to Strike

 

The court may, upon a motion, or at any time in its discretion, strike “any irrelevant, false, or improper matter inserted in any pleading.”  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (Code Civ. Proc., § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or from any matter of which the court is required to or may take judicial notice.  (Code Civ. Proc., § 437, subds. (a), (b).)

 

DISCUSSION

 

Request for Judicial Notice

 

Plaintiff requests the court to take judicial notice of the following legislative materials concerning Assembly Bill No. 218: (1) Assembly Commission on Judiciary, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), March 8, 2019); (2) Assembly Commission on Judiciary, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), March 13, 2019; (3) Assembly Commission on Judiciary, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), March 27, 2019; (4) Senate Judiciary Committee, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), July 1, 2019; (5) Senate Committee on Appropriations, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), August 12, 2019; (6) Senate Committee on Appropriations, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), August 30, 2019; (7) Senate Rules Committee, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), September 3, 2019; and (8) Assembly Commission, Analysis of Assembly Bill No. 218 (2019-2020 Reg. Sess.), September 14, 2019.

 

Plaintiff’s Request for Judicial Notice is GRANTED pursuant to Evid. Code § 452(c) and (h).  

 

Procedural Issues

 

i.                    Meet and Confer

 

As a preliminary matter, the court finds that LAUSD failed to meet and confer in compliance with Code of Civil Procedure §§ 439 and 435.5. Based on the identical declarations submitted along both motions, LAUSD’s counsel contends that a meet and confer letter was sent but the parties were unable to meet and confer in time. (Stephenson-Cheang Decls. ¶¶ 4-5.) However, the letter was sent on May 16, 2022 but there is no indication that LAUSD’s counsel attempted to follow-up with Plaintiff’s counsel or request an extension. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code of Civ. Proc. §§ 435.5(a)(4); 439(a)(4).) Thus, while the Court shall rule on the merits, the Court admonishes LAUSD’s counsel for failing to meet and confer. Failure to follow the Code of Civil Procedure may result in hearing being taken off-calendar.

 

ii.                  Untimely Motion to Strike

 

In terms of the motion to strike, Plaintiff argues that it is untimely because it was filed after LAUSD filed its answer. (Opposition re: Strike at pg. 4.) The court agrees because LAUSD filed its answer to the Complaint on March 20, 2020. Pursuant to Code of Civil Procedure § 435, “it expressly appears that a defendant can move to strike a complaint only before he has answered it and not afterward.” (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 371; see also Stafford v. Ware (1960) 187 Cal. App. 2d 238, 239.) It is noted that LAUSD fails to address this argument in its reply.

 

Accordingly, the court denies LAUSD’s motion to strike on the ground that it is untimely.

 

Nonetheless, the court has no intention of allowing the complaint to be read to the jury and will not permit plaintiff’s counsel to present evidence that is not relevant to this action, nor to present incorrect statements of law to the jury.  Through the motion in limine and pre-trial process, the court anticipates that correct jury instructions will be prepared and extraneous evidence excluded. 

 

Motion for Judgment on the Pleadings

 

Defendant moves for judgment on the pleadings for the following causes of action: (1) the fourth cause of action for negligent failure to warn, train, educate; (2) the fifth cause of action for constructive fraud; (3) the sixth cause of action for intentional infliction of emotional distress; (4) the seventh cause of action for sexual harassment; (5) the eighth cause of action for breach of fiduciary duty; and (6) the ninth cause of action for failure to perform a mandatory duty. The court shall address each in turn.

 

i.                    Fourth Cause of Action – Negligent Failure to Warn, Train, and Educate

 

LAUSD argues the fourth cause of action for negligent failure to warn, train, and educate  plaintiff on how to avoid the risk of sexual abuse lacks merit because the Complaint fails to identify a statute that would impose liability on LAUSD. (Motion re: JOP at pp. 2-3.)  The court notes that the Fourth Cause of Action does not reference any statutory authority.   Earlier causes of action do reference statutes which imposed a duty on school districts to educate and warn students about certain dangers, but those sections of the Education Code were not enacted until 1999, more than twenty years after the incidents of abuse alleged here. (See e.g., Education Code §§ 32228; 32228.5; 35294.10; and 35294.15.)

 

Public entities cannot be liable for common law theories of general negligence. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)  Therefore, liability against a public entity must be authorized by statute.  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815(a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].) 

 

Here, LAUSD argues that there is no statutory authority for this cause of action.

 

The court agrees.  This cause of action is not based on the school administrator’s failure to adequately supervise or control Permuter, but rather on some inchoate requirement that an unnamed Doe employee of the district should have taught third and fourth graders how to avoid sexual abuse.  While Government Code §815.2(a) provides that “[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” (thereby laying the statutory framework for liability against the district based on negligent supervision and retention), there is no statute that imposes any duty on an administrator to teach students to avoid sexual abuse, at least not in the mid-1970s.   

 

Accordingly, the court grants the motion as it relates to the fourth cause of action.

 

ii.                  Fifth Cause of Action – Constructive Fraud

 

LAUSD argues that the fifth cause of action for constructive fraud fails because Plaintiff has failed to establish that either there was a fiduciary relationship between the parties or a statutory basis for liability. (Motion re: JOP at pg. 3.)

 

A breach of a fiduciary duty usually constitutes constructive fraud.  (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 563.) Civil Code § 1573 defines constructive fraud as: “[i]n any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him, or [i]n any such act or omission as the law specifically declares to be fraudulent, without respect to actual fraud.”

 

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. [¶] [A]s a general principle constructive fraud comprises any act, 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.”  (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415 (internal citation omitted); Devers v. Greenwood (1956) 139 Cal.App.2d 345, 348 (internal citations omitted) [“Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be treated as such, having all the actual consequences and all the legal effects of actual fraud. One who holds a confidential relation toward another will not be permitted to take advantage of such relation in favor of himself or deal with the other party to that relation upon terms of his own making.”].) 

 

Here, LAUSD argues that there is no legal authority that supports the proposition that there is a fiduciary relationship between a school district and an individual student to support the fifth cause of action. (Motion re: JOP at pg. 3.) Also, LAUSD argues that the Complaint fails to point to any statute that would impose direct liability on it for constructive fraud. (Id.)

 

In opposition, Plaintiff contends that there is a special relationship between a school district and its students and asserts that the existence of a fiduciary relationship is a question of fact. (Opposition re: JOP at pp. 8-9.)

In reply, LAUSD argues that Plaintiff is conflating the terms “special relationship” and “fiduciary relationship,” and that the Complaint fails to allege a statute that would impose direct tort liability against LAUSD.  (Reply re: JOP at pg. 3.)

 

Upon consideration of the arguments, the Court first finds that there is no legal authority to support plaintiff’s contention that a fiduciary relationship exists between a public school and an individual student. 

 

Second, the Court finds that LAUSD’s argument that Civil Code § 1573 does not impose a mandatory duty has merit. Government Code § 815.6 contains a three-pronged test to determine whether liability may be imposed on a public entity: (1) an enactment imposes a mandatory, not discretionary duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting this as a basis for liability; and (3) breach of the mandatory duty is proximate cause of the injury suffered. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 853.) “[M]andatory duty as used in Gov. C. ; 815.6…means an obligatory duty that a government entity is required to perform, in contrast with a permissive power that such an entity may choose or not choose to exercise.” (Posey v. State of California (1986) 180 Cal.App.3d 836.) It is noted that in his opposition Plaintiff fails to discuss whether Civil Code § 1573 imposes a mandatory duty on LAUSD. Instead, Plaintiff’s opposition revolves around the issue of a fiduciary duty. (See Opposition re: JOP at pp. 8-9.)

 

Accordingly, because the Complaint fails to allege a statute that imposes direct liability on LAUSD for breach of fiduciary duty or constructive fraud, the court grants the motion as to the fifth cause of action without leave to amend.  As further basis for this ruling, the court finds that no court of appeal decision has imposed a fiduciary duty on a school district to its students.  As stated above, the school district owes a duty of reasonable care to its students, not the heightened “fiduciary duty.”   (C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 702.)    

 

iii.                Sixth Cause of Action – IIED

 

LAUSD argues that the sixth cause of action lacks merit because it unsupported by statute to impose liability on a public entity and the alleged conduct is not “outrageous.” (Motion re: JOP at pg. 4.)

 

The tort of intentional infliction of emotional distress is comprised of three elements:  (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 suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct.  McMahon v. Craig (2009) 176 Cal. App. 4th 222, 234.  “In order to meet the first requirement of the tort, the alleged conduct . . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  Id. at 234-35. Whether conduct is sufficiently extreme and outrageous so as to be actionable may be determined as a matter of law.  Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 494. To avoid demurrer, the plaintiff must allege such acts with great specificity.  Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 160-61. Mere indignities, insults, threats, annoyances, petty oppressions and the like are not enough.  Hughes v. Pair (2009) 46 Cal. 4th 1035, 1051.  

 

As discussed above, “a public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.” (C.A., supra, at 879.) Plaintiff has adequately alleged that the school administrators’ willful disregard of known sexual misconduct by Perlmuter is the type of extreme and outrageous conduct which would support a claim for IIED.  Deliberately allowing a known sexual predator to have unsupervised access to vulnerable children would be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)  Thus, Plaintiff has adequately alleged an IIED claim, which requires a showing of (1) extreme and outrageous conduct with the intent to cause or reckless disregard of causing emotional distress; (2) severe emotional distress; and (3) causation. (So v. Shin (2013) 212 Cal.App.4th 652.)

 

Accordingly, the court denies the motion to extend it is directed at the sixth cause of action.

 

iv.                Seventh Cause of Action – Sexual Harassment

 

LAUSD also argues that the seventh cause of action for sexual harassment fails.  This cause of action, as plead, is a grab bag of legal theories and statutory references.  But it is fundamentally based on the legal theory that the LAUSD is vicariously liable for the acts of sexual harassment allegedly committed by Ms. Perlmuter.

 

As an initial matter, the court agrees with LAUSD that the LAUSD cannot be held vicariously liable for acts of sexual misconduct and abuse committed by Perlmutter against plaintiff because such acts are outside of a teacher’s scope of employment.  (See  e.g., Lisa M. v. Henry Mayo Newhall Memorial  Hospital (1995) 12 Cal.4th 291; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.) 

 

Turning to the different statutory bases on which the Seventh Cause of Action is grounded, the court finds each of them unavailing to impose direct liability on the district for acts of sexual harassment committed by Perlmuter. 

 

First, plaintiff cites to Section 51.9 of the Civil Code.  That section, however, imposes liability only on business establishments.  The courts have rejected the assertion that a school district can be held liable under Section 51.9, a ruling this court must follow.   (Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367, 369.)  But even if Section 51.9 could be construed to encompass public school districts, the statute was not passed until 1994, twenty years after the events at issue here.  There is nothing in the statute to indicate that the Legislature intended it to be given retroactive application. 

 

Plaintiff also relies on Education Code Sections 200, 201, 210.3, 231.5, and 262.4.  Those sections collectively prohibit discrimination on the basis of gender (and other protected classifications) in the public schools and provide for a private right of action to those injured.  Those statutes were first passed in 1982.  Again, there is nothing in the statutes to indicate that they were to be given retroactive effect. 

 

Accordingly, because a public school cannot be held liable directly for sexual harassment by a teacher, under the Unruh Civil Rights Act, or under these various education code provisions, the court grants the motion as it relates to the seventh cause of action.

 

v.                  Eighth Cause of Action – Breach of Fiduciary Duty

 

LAUSD argues that the eighth cause of action for breach of fiduciary duty fails because Plaintiff has failed to establish that either there was a fiduciary relationship between the parties or a statutory basis for liability. (Motion at pg. 6.)

 

As stated above, the court finds there is no fiduciary relationship as a matter of law between the district and its students.  Accordingly, the court grants the motion as it relates to the eighth cause of action.

 

vi.                Ninth Cause of Action – Failure to Perform Mandatory Duty

 

Lastly, LAUSD argues that the ninth cause of action for failure to perform a mandatory duty fails because the Complaint fails to allege a mandatory duty that LAUSD breached. The ninth cause of action asserts Failure to Perform Mandatory Duty under Education Code §§ 200, 201; Civil Code 51.9; and Title IX, 20 USC 1681. The Complaint asserts that by allowing Ms. Perlmuter to sexually abuse Plaintiff, LAUSD violated those statutes, which imposed a duty to prevent sexual harassment.

 

First, in terms of the Child Abuse and Neglect Reporting Act (“CANRA”), LAUSD notes that it was not enacted until 1980, while the alleged conduct occurred in 1976. (Motion re: JOP at pg. 6; Penal Code § 11165; Compl. ¶ 42.) LAUSD further argues that the CANRA is not retroactive. (Motion re: JOP at pp. 6-7.) It is noted that Plaintiff fails to address this issue in his opposition. Thus, because CANRA is not retroactive and the alleged conduct occurred before the statute was enacted, it cannot be stated that LAUSD violated the statute as far as it related to Plaintiff’s alleged harm.

 

Second, as noted above, the section 51.9 claim cannot proceed against LAUSD.

 

Third, in terms of violations of Education Code §§ 200-201, LAUSD argues that they merely recite legislative goals and policies, and do not impose any duties. (Motion re: JOP at pg. 7.) While the court believes that a mandatory duty may be created by those sections, the issue is moot as the statutes in question were passed after the conduct alleged here and are not retroactive. 

 

Fourth, Title IX of 20 USC § 1681(a) states “No person in the United States shall, on the basis of sex, be excluded form participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...” It was enacted prior to the conduct at issue here. A  Title IX plaintiff can establish school district liability by showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference. (Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also Fitzgerald v. Barnstable School Committee (2009) 555 U.S. 246, 257.)  Whether Title IX applies to the district here during the relevant time period will depend on the evidence presented.  The court cannot say, however, as a matter of law, that Title IX did not impose a mandatory duty on the district (if it was receiving federal assistance) to take corrective action for known or suspected sexual harassment of a student).  The court therefore denies the motion for judgment as to the Ninth Cause of Action.