Case Number: BC708604 Hearing Date: May 15, 2019 Dept: O

ANALYSIS

Defendants Bonita Unified School District and Lori O’ Leary’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND. Plaintiff has 10 days to file an amended complaint.

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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, 147 Cal.App.4th at 747.)

Defendants Bonita Unified School District (“Bonita”) and Lori O’ Leary (“O’ Leary”) contend the same arguments in their demurrers. Namely, they contend that the third, fifth, sixth, and seventh causes of actions in the First Amended Complaint (“FAC”) fail to state facts sufficient to constitute a cause of action against them.

Negligent Retention (3rd Cause of Action)

California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an un¿t employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) Plaintiff needs to allege whether a defendant hired employee before he or she can allege such a cause of action. (See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1187–1188.)

The Court agrees with Defendants that Plaintiff cannot state a cause of action for negligent retention. As pled, this cause of action alleges that Defendants owed Plaintiff a duty not to retain Disney as a student. (FAC ¶ 83, emphasis added.) Negligent retention relates to the retention of employees. Disney is not an employee of Defendants. While Plaintiff contends in her opposition that this cause of action is a corollary of Plaintiff’s negligent supervision claim, the facts as currently pled do not demonstrate a cause of action for negligent retention.

While the court is hard pressed to find facts for a negligent retention theory based on the facts as currently pled, the court will allow Plaintiff one more opportunity to amend this cause of action. Demurrer is SUSTAINED without leave to amend.

Constructive Fraud (5th Cause of Action)

The elements of constructive fraud are: (1) a fiduciary relationship; (2) nondisclosure or breach of that fiduciary duty; (3) intent to deceive; and (4) justifiable reliance and resulting injury (causation). (Stokes v. Henson (1990) 217 Cal.App.3d 187, 197.)

While Plaintiff contends that Defendants were in a fiduciary relationship with Plaintiff, the Court finds that no fiduciary relationship exists between a school district and its students. Furthermore, there is no statute that authorizes the assertion of a claim of constructive fraud against a public entity. (See Gov. Code § 815(a).) The case of Board of Education v. Weiland (1960) 179 Cal.App.2d 808 cited by Plaintiff dealt with the moral turpitude of a teacher, which is not applicable in this present situation involving sexual assault by another student. Again, Plaintiffs never alleged facts in the FAC to show that Defendants, particularly Defendant O’ Leary, directly sexually assaulted Plaintiff. The facts only show that another student, Disney, assaulted Plaintiff.

Because Plaintiff is unable to demonstrate that a fiduciary duty exists between a student and a teacher and that such a duty is enforced by statute, Demurrer is SUSTAINED without leave to amend.

Intentional Infliction of Emotional Distress (“IIED”) (6th Cause of Action)

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590; see also Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

None of the cases cited by Plaintiff in her opposition demonstrates that sufficient facts were pled in the FAC for IIED; they only show that a cause of action for IIED is vicarious in nature and authorized by Government Code § 815.2. Plaintiff, however failed to state facts that allege a statute that imposes liability for IIED on a public entity.

Furthermore, Plaintiff did not address the issue that the FAC is void of facts that show a direct conduct which proximately caused Plaintiff’s harm. The FAC does not state what egregious conduct Defendants commited towards Plaintiff, and only alleges conclusory statements that Defendants did such things.

Again, while the court is hard pressed to find facts for a IIED cause of action based on the facts as currently pled, the court will allow Plaintiff one more opportunity to amend this cause of action. Demurrer is SUSTAINED with leave to amend.

Sexual Harassment (7th Cause of Action)

Plaintiff alleged sexual harassment under Civil Code section 51.9. Civil Code section 51.9 provides liability for sexual harassment when: (1) there is a business, service, or professional relationship between the plaintiff and defendant; (2) the defendant has made sexual advances […] 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) there is an inability by the plaintiff to easily terminate the relationship; and (4) the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury. (Civ. Code § 51.9.)

Defendants contend that they cannot be liable for sexual harassment under section 51.9 because there was no business relationship between Plaintiff and Defendants that would trigger application of Civil Code section 51.9, particularly because Defendants are not employers of either Plaintiff or Disney, the perpetrator of the sexual acts alleged in the FAC. Plaintiff contends that the Education Code allows for liability through Civil Code section 51.9, and that section 51.9 specifically includes “teacher” as a business, service or professional relationship.

A careful reading of Civil Code section 51.9 indicates that while it does include teacher as a business, service or professional relationship, the statute requires a direct causation of the harm (i.e., the 2nd element that the defendant teacher directly made sexual advances to Plaintiff). Here, there are no facts that support this direct causation of harm to Plaintiff by Defendants in Plaintiff’s FAC. There are no facts in the FAC to suggest Defendant O’ Leary directly participated in the alleged acts. Respondent superior or vicarious liability also could not apply to because Plaintiff contends in the opposition that vicarious liability exists between Defendants O’ Leary and Bonita, not Defendant O’ Leary and Disney.

While Plaintiff contended in her opposition that the Education Code section 262.4 allows for the enforcement of Civil Code section 51.9, Plaintiff did not allege a cause of action for sexual harassment under Education Code sections 212.5 and 262.4, but instead alleges one under Civil Code section 51.9. The Education Code may provide a basis for alleging Defendants had a duty to prevent sexual harassment by Defendant Disney, but Civil Code section 51.9 does not.

Thus, demurrer is SUSTAINED with leave to amend as to Defendants Bonita and O’ Leary.

Therefore, Defendants’ demurrer to Plaintiff’s third and fifth causes of action are SUSTAINED without leave to amend, and the sixth, and seventh causes of action are SUSTAINED with leave to amend. Plaintiff has 10 days to file an amended complaint.

Defendants Bonita Unified School District and Lori O’ Leary’s motion to strike the Complaint is moot.

Based on the Court’s order concerning the demurrer, Defendants’ motion to strike portions of the complaint is moot.

Plaintiff’s Motion to Compel Further Responses to Request for Production of Documents from Defendant Bonita Unified School District is CONTINUED to July 10, 2019.

Plaintiff Jane PE Doe (“Plaintiff”) moves for an order compelling Defendant Bonita Unified School District (“Defendant”) to produce certain documents relating to the other defendants in this case, Collin James Disney (“Disney”) and Lori O’ Leary (“O’ Leary”). Disney is a student in Defendant and is alleged to have committed sexual assault against Plaintiff. O’ Leary is an employed as a teacher in Defendant at a school where the alleged sexual assault occurred.

Given that Plaintiff will need to substantially revise her complaint after the Court’s order on the demurrer, and that a new theory seems to be emerging from Plaintiff’s documents, the Court will hold off on deciding this motion to compel further responses as many of the requests in this motion may no longer be at issue.

The Court also strongly encourages that the parties stipulate to a protective order in the interim to address many of the concerns raised by both parties.

Accordingly, in the interest of judicial efficiency, this motion will be continued to July 10, 2019, to be heard after Plaintiff has filed her second amended complaint.