Case Number: BC708604 Hearing Date: August 28, 2019 Dept: O

ANALYSIS

Defendants Bonita Unified School District and Lori O’ Leary’s demurrers to Plaintiff’s Second Amended Complaint is SUSTAINED, in part, and OVERRULED, in part.

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” and collectively as “Defendants”) contend the same arguments in their demurrers. Namely, they contend that the third, fifth, sixth, and seventh causes of actions in the Second Amended Complaint (“SAC”) 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 the employee before he or she could allege that defendant negligently hired, retained, or supervised him. (See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1187–1188.)

Again, the Court finds that Plaintiff cannot state a cause of action for negligent retention of Defendant Collin Disney (“Disney”) as a student. Negligent retention relates to the retention of employees. Defendant Disney is not an employee of Defendants. Despite Plaintiff’s attempt to plead around this issue by asserting that Education Code section 48900 mandates a school to suspend or expel a student, this section only gives schools the discretion to discipline students for such egregious behavior, and thus does not impute any duty to dismiss a student for sexual misconduct.

Defendants contend that the Court had previously stated that Plaintiff was not allowed to amend as to Defendant O’ Leary. Defendants misinterpret the court’s ruling. In fact, the Court stated: “As pled, this cause of action alleges that Defendants owed Plaintiff a duty not to retain Disney as a student.” (Emphasis added.) Nowhere did the court say in its ruling that the amendment was limited to a negligent retention theory as to Defendant Disney.

The Demurrer is SUSTAINED without leave to amend as to Defendant Disney and OVERRULED as to Defendant O’ Leary.

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 still finds that no fiduciary relationship exists between a school district and its students. Plaintiff has not established any legal basis for its allegations that Plaintiff and Defendants had a special relationship. 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 SAC to show that Defendants, particularly Defendant O’ Leary, directly sexually assaulted Plaintiff. The facts only show that another student, Defendant 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, the 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.)

With respect to Defendant Bonita, none of the cases cited by Plaintiff in her opposition demonstrate that sufficient facts were pled in the SAC for IIED. At most, they only show that a cause of action for IIED is vicarious in nature and authorized by Government Code section 815.2. Plaintiff, however, has failed to allege facts that sufficient to impose liability for IIED on a public entity such as Defendant Bonita.

However, Plaintiff has now pled sufficient facts for an IIED cause of action against O’ Leary. Plaintiff asserts that she is informed and believes that Defendant O’ Leary saw Defendant Disney openly and obviously sexually abusing her in Defendant O’ Leary’s classroom, yet intentionally failed to take any action to protect her from Defendant Disney’s repeated sexual abuse. (SAC ¶ 153.) This specificity is sufficient to demonstrate an extreme and outrageous act of neglect for Plaintiff’s well-being.

While Defendant contends that these allegations are not truthful, this is not for the court to decide at this stage. Again, on a demurrer, the court only looks to the sufficiency of the pleadings. (SKF Farms, supra, 153 Cal.App.3d at 905; Hahn, supra, 147 Cal.App.4th at 747.) As pled, the complaint states a cause of action for IIED against Defendant O’ Leary.

Demurrer is SUSTAINED as to Defendant Bonita without leave to amend and OVERRULED as to Defendant O’ Leary.

Sexual Harassment (7th Cause of Action)

Plaintiff alleged sexual harassment under Civil Code section 51.9. 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 this section and, in particular, because Defendants are not employers of either Plaintiff or Defendant Disney, the perpetrator of the sexual acts alleged in the operative complaint.

Plaintiff contends that the Education Code allows for liability through Civil Code section 51.9, and that Government Code section 815.2 allows for vicarious liability. Plaintiff also again contends that Civil Code section 51.9 defines one of the protected relationships as a “teacher.”

The Court had previously noted that Education Code section 262.4 may provide a basis for alleging Defendants had a duty to prevent sexual harassment by Defendant Disney, but that Civil Code section 51.9 does not. Here, Plaintiff has now incorporated the language of Education Code section 262.4 into her pleading. However, she continues to assert that this cause of action falls under Civil Code section 51.9. Plaintiff still has not demonstrated a cause of action under this section. Section 51.9 deals with sexual harassment in an employment setting. The allegations specifically state that Plaintiff was a student at Defendant Bonita, and that Defendant Disney, who is another student, sexually harassed Plaintiff. (SAC ¶ 158-159.) However, Defendant Disney is not a co-worker of Plaintiff in any meaningful sense of the term, nor is Defendant Bonita or Defendant O’ Leary Plaintiff’s employer.

Additionally, Plaintiff alleged that Defendant O’ Leary was the perpetrator of the sexual harassment for a potential Civil Code section 51.9 violation to apply. Civil Code section 51.9 does protect individuals from teachers who sexually abuse their students. While Defendant O’ Leary may be Plaintiff’s teacher, there is no allegation that O’ Leary engaged in sexual misconduct against Plaintiff. The facts, as Plaintiff alleged, clearly indicate that the perpetrator of the sexual misconducts was Defendant Disney.

Thus, demurrer is SUSTAINED without leave to amend.

Therefore, Defendants’ demurrer to Plaintiff’s fifth and seventh causes of action are SUSTAINED without leave to amend. Defendants’ demurrer to the third and sixth causes of action are SUSTAINED without leave to amend with respect to Defendant Disney in the third cause of action and Defendant Bonita in the sixth cause of action and OVERRULED with respect to Defendant O’Leary on both causes of action.

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

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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. (CCP § 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court’s own files or records). (CCP § 437.)

Attorney Fees (as to both O’ Leary and Bonita)

Code of Civil Procedure section 1021.5 states that a court may award attorneys’ fees to a successful party in an action which has resulted in the enforcement of an important right affecting the public interest. With respect to actions involving public entities, this section applies to allow for attorney fees against, but not in favor of public entities. (CCP § 1021.5)

Defendant contends that there is no public benefit to this lawsuit because Plaintiff has a substantial financial interest in the outcome of this case. The Court disagrees. While there is may be a financial benefit conferred to Plaintiff, there is a much greater public benefit in enforcing a school’s duty to protect the interest of minor children, which potentially is at the heart of this lawsuit. Thus, section 1021.5 is applicable to this case.

Defendant also contends that Plaintiff cannot recover attorney fees under Civil Code section 52.4 because there is no business relationship between Plaintiff and Defendant Disney for Civil Code section 51.9 to apply. However, these sections deal with the recovery of attorney fees for a gender violence cause of action (which Plaintiff alleged in the Ninth cause of action), not a sexual harassment cause of action under Civil Code section 51.9.

The Motion to strike attorney’s fees is DENIED.

Punitive Damages (as to Defendant O’ Leary only)

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CC § 3294.)

Defendant contends that Plaintiff did not allege conduct by Defendant O’ Leary that rises to the level of fraudulent, malicious, or oppressive conduct. The Court disagrees. Plaintiff has sufficiently alleged facts supporting the imposition of punitive damages. Specifically, paragraph 153 alleges that she is informed and believes that Defendant O’ Leary saw Defendant Disney openly and obviously sexually abusing her in Defendant O’ Leary’s classroom, yet intentionally failed to take any action to protect her from Disney’s repeated sexual abuse.

The Motion to strike punitive damages is DENIED.

Plaintiff is ordered to file and serve a Third Amended Complaint that comports to the court’s above rulings within 10 days. Defendants are ordered to file and serve their answers within 15 days from the filing of Plaintiff’s Third Amended Complaint.