Case Number: BC514155 Hearing Date: May 16, 2014 Dept: 34

Moving Party: Defendants Southern California Conference of Seventh-Day Adventists dba South Bay Junior Academy; Dinah Villanueva; and Susan Vlach (“defendants”)

Resp. Party: Plaintiffs Danny Sandoval and Connie Sandoval (“plaintiffs”)

Defendants’ demurrer to the first amended complaint is OVERRULED in its entirety.

Defendants’ motion to strike the stated amounts of is GRANTED. Defendants’ motion to strike the request for punitive damages and the request for attorneys fees is DENIED.

BACKGROUND:

Plaintiffs commenced this action on 7/3/13. The complaint alleges that defendants made plaintiffs’ child, a student at their facility, sit on a special wooden chair for several hours every day, which caused him physical and emotional problems.

Plaintiffs filed a first amended complaint (“FAC”) on 3/17/14 against defendants for negligence, defamation, IIED, and battery. Plaintiffs enrolled their son, Kenneth, in defendant school where defendant Villanueva was his teacher and Vlach was the principal. (FAC ¶ 2.) In October 2012 plaintiffs were informed by Villanueva that Kenneth had disciplinary problems and that she would be making him sit on a T-stool, which consists of a block of wood placed horizontally on a vertical piece of wood, for two hours during one day. (Id., ¶ 3.) Plaintiffs allege that, after the first day, Villanueva continued to use the T-stool to discipline Kenneth all day for six months without informing plaintiffs that the discipline was continuing. (Id., ¶¶ 4, 5.) This resulted in physical and emotional injuries for Kenneth. (Id., ¶ 5.) Defendants failed to remedy the issue when plaintiffs confronted them. (See id., ¶¶ 6, 8.) Plaintiffs allege that Villanueva falsely told plaintiffs and other teachers that Kenneth had ADHD. (Id., ¶¶ 8-10.)

ANALYSIS:
Demurrer

Defendants demur to the second, third, and fourth causes of action in the FAC on the ground that plaintiffs fail to state sufficient facts.

Second Cause of Action for Defamation

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)

Plaintiffs allege that Villanueva made false statements to other teachers that Kenneth had ADHD. (See FAC ¶¶ 8-10, 18.) Defendants do not argue that these statements were privileged. Defendant simply argue that the statement that Kenneth had ADHD “does not rise to the level of a defamatory statement. It does not have a natural tendency to injure or cause special damage to a child in school. ADHD can take many forms including being inattentive, impulsive and/or hyperactive. The statement is akin to a teacher saying in her opinion the child is inattentive or the child has focusing issues when the child is hyperactive. It does not rise to the level of defamation.” (Demurrer, p. 6:8-12.)

Defendants provide no authority which holds that false statements that a child has a disorder such as ADHD cannot support a defamation claim. These statements could have a tendency to injure Kenneth’s reputation. (See 5 Witkin, Summary 10th (2005) Torts, § 529, p. 782 [“Defamation is an invasion of the interest in reputation.”].) Whether or not the statements or defamatory is a factual issue that is better left for the jury.

Defendants’ demurrer to the second cause of action is OVERRULED.

Third Cause of Action for Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress is comprised of the following elements: (1) defendant’s extreme and outrageous conduct; (2) intention of causing emotional distress, or reckless disregard of the probability of causing emotional distress with knowledge of plaintiff’s presence when the conduct occurred; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the conduct was the actual and proximate causation of the emotional distress. (CACI 1600; see also Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Outrageous conduct is not a bright-line determination but depends upon an intuitive appraisal of “values, sensitivity threshold, and standards of civility.” (Kovr-Tv, Inc. v. Superior Court (1994) 31 Cal.App.4th 1023, 1028.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.'” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

The fact that conduct might be termed outrageous is not itself sufficient. “The tort calls for intentional, or at least reckless conduct-conduct intended to inflict injury or engaged in with the realization that injury will result.” [Citation.] The conduct must be of a nature that is especially calculated to cause mental distress of a very serious kind. [Citation.] (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.)

Defendants argue that Villanueva’s use of the T-stool was not outrageous conduct. This argument is not well taken. Though Villanueva informed plaintiffs that she would place Kenneth on the stool for two hours as a form of discipline, she thereafter placed him on the stool all day for six months without informing plaintiffs. (See FAC ¶¶ 4-5.) Plaintiffs allege that when they informed Vlach, the principal at defendant school, she told them to talk to Villanueva and did not give plaintiffs any attention. (Id., ¶ 6.) If indeed, Kenneth was forced to sit on the T-stool all day, every day, for six months, this is sufficient for a jury to find outrageous conduct. Plaintiffs allege facts as to Kenneth’s emotional distress. (See FAC ¶ 5; Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617 [general allegations of emotional distress are not sufficient; instead, a plaintiff must set forth facts indicating the nature and extent of the mental suffering].)

Defendants’ demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action for Battery

To establish a claim for civil battery, a plaintiff must show the following elements: (1) defendant touched plaintiff or caused plaintiff to be touched with the intent to harm or offend; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended as a result; and (4) a reasonable person in plaintiff’s situation would have been offended by the touching. (CACI 1300; So v. Shin (2013) 212 Cal.App.4th 652, 669.)

Plaintiffs allege that Villanueva “plac[ed] … Kenneth on a T Stool.” (FAC ¶ 24.) This implies that Villanueva touched Kenneth to put him on the stool. But even if Kenneth weren’t touched, ordering a young child to sit on the T-stool would be sufficient to form the basis for cause of action for battery. If a student were to disobey the direct order of a teacher, he could be expelled. In this context, ordering Kenneth to sit on the T-stool is no different than physically placing Kenneth on the T-stool.

Plaintiffs allege that they did not consent to the touching. (See id., ¶ 4.) Plaintiffs allege that this was harmful and offensive. (Id., ¶¶ 4-5, 24.) These allegations are sufficient to support the fourth cause of action.

Defendants’ demurrer to the fourth cause of action is OVERRULED.

Motion to Strike

Defendants seek to strike plaintiffs’ request for punitive damages, the statement as to the amount of damages, and the request for attorney’s fees.

Punitive damages

The standard of proof for recovery of punitive damages is “clear and convincing” evidence of malice, fraud, or oppression. (Civil Code § 3294(a).) Under Civil Code 3294(c),

[¶] (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.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.'” (American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1051.)

Plaintiffs allege that Villanueva made Kenneth sit on the T-Stool all day for six months, without informing his parents. (See FAC ¶¶ 4-5.) Plaintiffs allege that when they went to see Vlach, the school’s principal, she did not give them any attention and took no action to assist plaintiffs. (Id., ¶ 6.) This is sufficient to allege that defendants engaged in despicable conduct with a willful and conscious disregard of plaintiffs’ rights or safety.

Defendants’ motion to strike references to punitive damages is DENIED.

Damages Statements

Defendants seek to strike the allegations as to damages amounts in paragraph 27 of the FAC and in the prayer for relief. “[W]here an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated. . . .” (Code Civ. Proc., § 425.10(b).) Plaintiff is seeking damages for personal injuries to Kenneth. Therefore, the amount of damages should not have been stated.

Defendants’ request to strike the stated damages amounts is GRANTED.

Attorney’s Fees

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Courts may strike prayers for attorney fees where a party demonstrated no potential basis for their recovery. (Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.) However, unsupported attorneys fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Sup. Ct. (1996) 44 Cal.App.4th 1689, 1699.)

Defendants seek to strike the request for attorney’s fees in the prayer for relief. Though defendants are correct that there are no allegations to support the claim for attorney’s fees based on a statute or contract, this does not mean that no such basis could be alleged. To the extent that defendants wish to obtain more facts as to the attorney’s fees request, they may do so during the discovery process.

Accordingly, defendants’ motion to strike plaintiffs’ request for attorney’s fees is DENIED.

Defendants to answer within 10 days.