Case Name: Doe v. Gilroy Unified School District, et al.
Case No.: 2016-1-CV-294797

Defendant Douglas Le (“Le”) is a former teacher at Gilroy High School (“GHS”), located within the Gilroy Unified School District (“District”). (See complaint, ¶¶ 3-4.) According to the allegations of the complaint, Le sexually harassed plaintiff Jane AA Doe (“Plaintiff”) in his capacity and position as a teacher. (See complaint, ¶¶ 14, 22, 23.) The complaint alleges that District knew that Le had engaged in unlawful sexually-related conduct with minors in the past and was continuing to engage in such conduct with Plaintiff but failed to take reasonable steps and implement reasonable safeguards to avoid acts of such conduct. (See complaint, ¶¶ 16-19, 24-25, 38, 44-46, 71-77, 80-82, 116.)

On May 5, 2016, Plaintiff filed a complaint against District, GHS and Le, asserting causes of action for:
1) Negligence (against all defendants);
2) Negligent supervision (against District and GHS);
3) Negligent hiring/retention (against District and GHS);
4) Intentional infliction of emotional distress (against all defendants);
5) Assault (against Le);
6) Sexual harassment in violation of Civil Code § 51.9 (against all defendants); and,
7) Gender violence in violation of Civil Code § 52.4 (against Le).

District demurs to the sixth cause of action for sexual harassment in violation of Civil Code § 51.9, asserting that: the employee’s conduct was necessarily outside the scope of employment; the FAC does not allege that she notified District of the harassment or that District responded with deliberate indifference; and, the FAC does not allege a proper statutory basis for liability against District.

In opposition, Plaintiff cites to C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 (hereinafter “C.A.”), asserting that “[t]he C.A. Court specifically held ‘we conclude a public school district may be vicariously liable under Government Code 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’… [a]s such, and with the following analysis, there should be no doubt that Plaintiff’s Fourth and Ninth Causes of Action are not subject to demurrer.” (See Pl.’s opposition to demurrer to FAC (“Opposition”), p.2:13-19.) Plaintiff also argues that “GUSD may be held directly liable pursuant to Gov. Code Section 815.6” and Education Code sections 200, 201, 212.5, 231.5, 262.4. (See Opposition, pp.3:16-26, 4:1-28, 5:1-10.) Plaintiff also argues that C.A., supra, “supports direct public school liability for C.C. Section 51.9 sexual harassment.” (Opposition, p.5:10-20.) Finally, Plaintiff argues that District is vicariously liable for violation of Civil Code § 51.9 under ratification principles. (See Opposition, pp.5:20-28, 6:1-27, 7:1-21.)
District can be liable on a theory of negligent hiring and supervision of Le; however, the challenged cause of action is for violation of Civil Code section 51.9.

Relying on C.A., supra, Plaintiff argues that “a public school district, such as GUSD, may be held liable for the sexual abuse or harassment of a minor student when the abuse is committed by a school district employee.” (Opposition, p.2:10-14.) Plaintiff quotes from C.A., in which Plaintiff states “[t]he C.A. Court specifically held ‘we conclude a public school district may be vicariously liable under [Government Code] 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.’” (Opposition, p.2:14-17.) Plaintiff then concludes: “As such, and with the following analysis, there should be no doubt that Plaintiff’s Fourth and Ninth Causes of Action are not subject to demurrer.” (Opposition, p.2:17-19.)

First, the complaint only has seven causes of action; thus, Plaintiff’s conclusion that the ninth cause of action is not subject to demurrer is nonsensical. Second, District is only demurring to the sixth cause of action for violation of Civil Code section 51.9. Third, it appears that Plaintiff misunderstands the import of the California Supreme Court’s holding in C.A., supra. The plain language of C.A., as quoted by Plaintiff addresses whether a school district may be vicariously liable under section 815.2 for the negligent hiring, supervising or retaining of an employee—causes of action encompassed by the first three causes of action of Plaintiff’s complaint. C.A. never addresses a violation of Civil Code section 51.9. Accordingly, Plaintiff’s assertion lacks merit.

The complaint does not allege liability pursuant to section 815.6.

Plaintiff asserts that “GUSD cannot sidestep liability by applying incorrect statutes and outdated case law” since District may be held directly liable for Le’s sexual abuse of Plaintiff pursuant to Government Code section 815.6. (See Opposition, p.2:21-28, 3:1-2.) However, as District notes, Government Code section 815 states that a public entity is not liable for an injury “[e]xcept as otherwise provided by statute,” and thus, “[a] plaintiff asserting liability under Government Code section 815.6 ‘must specifically allege the applicable statute….” (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896.) Here, the complaint neither identifies section 815.6 as a basis for the sixth cause of action, nor alleges that it is seeking direct liability for the violation of section 51.9. Accordingly, to the extent that Plaintiff is seeking direct liability pursuant to Government Code section 815.6, it fails to state a cause of action.

District cannot be vicariously liable or liable on a ratification theory for a violation of Civil Code section 51.9.

Civil Code section 51.9, subdivision (a)(1) states:

A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves… [t]here is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

(A) Physician, psychotherapist, or dentist. For purposes of this section, “psychotherapist” has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.
(B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner, loan officer, collection service, building contractor, or escrow loan officer.
(C) Executor, trustee, or administrator.
(D) Landlord or property manager.
(E) Teacher.
(F) A relationship that is substantially similar to any of the above.

(Civ. Code § 51.9.)

Here, it is clear that District is not an enumerated “person” that is listed in Section 51.9. Nevertheless, Plaintiff argues that:

the C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870-871 decision supports direct public school liability for C.C. Section 51.9 sexual harassment. There, the Court held, over the objection of the public school district, that “[r]esponsibility for the safety of public school students is not borne solely by instructional personnel. School principals and other supervisory employees, to the extent their duties include overseeing the education environment and the performance of teachers and counselors, also 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.”

(Opposition, p.5:10-19 (emphasis added by Plaintiff).)

Here, however, Plaintiff again misunderstands the California Supreme Court’s decision. The C.A. court did not address a statutory violation of section 51.9; no such statute is even mentioned in the Supreme Court’s decision. Rather, the C.A. court addressed whether the plaintiff could maintain a theory of vicarious liability for negligent hiring, retention and supervision. (See C.A., supra, 53 Cal.4th at pp.865 (stating “[w]e conclude plaintiff’s theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one”), 879 (stating that “we conclude 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”).) In fact, in both C.A., supra, and in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, the California Supreme Court has stated that the school district is not vicariously liable for the sexual harassment of a teacher. (See C.A., supra, 53 Cal.4th at pp.865 (stating that “[o]n review, the question presented is whether the district may be found vicariously liable for the acts of its employees (Gov. Code § 815.2) – not for the acts of the counselor, which were outside the scope of her employment (see John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441-452), but for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor’s propensities and nevertheless hired, retained and inadequately supervised her”) (emphasis added), 878 (stating “we have weighed in this case the value of negligence actions in providing compensation to injured parties and preventing future harm of the same nature, and have followed John R.’s suggestion that these remedial goals are best addressed ‘by holding school districts to the exercise of due care’ in their administrators’ and supervisors’ ‘selection of [instructional] employees and the close monitoring of their conduct,’ rather than by making districts vicariously liable for the intentional sexual misconduct of teachers and other employees”); see also John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441 (stating that “[w]e hold that the doctrine [of respondeat superior] is not applicable in these circumstances and that while the school district may be liable if its own direct negligence is established, it cannot be held vicariously liable for its employee’s torts”) and 452-453 (reversing court of appeal’s judgment “insofar as it reversed the trial court’s order sustaining the district’s demurrer to those claims premised on a theory of vicarious liability under the respondeat superior doctrine and the Court of Appeal is directed to enter judgment affirming the trial court—thus leaving plaintiffs free to pursue only their claims against the district premised on its own direct negligence in hiring and supervising the teacher”).) Moreover, the language from C.A., supra, quoted by Plaintiff sounds in negligence, discussing foreseeability of sources of harassment.

Citing a federal opinion, and C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, Plaintiff argues that District can be held liable on a theory of ratification. (See Opposition, pp.6:7-27, 7:1-21.) C.R., supra, seems inapposite, however, as it did not involve a public entity whose liability is limited to that “provided by statute.” (See Gov. Code § 815.) The lone statute cited by Plaintiff for its assertion that District may be liable for Le’s sexual harassment in violation of Civil Code section 51.9 is Government Code section 815.2, subdivision (a), which states 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.” (Gov. Code § 815.2, subd. (a).) As previously noted above, the California Supreme Court—in the case cited by Plaintiff—has already stated that a school district cannot be liable for its employee’s acts constituting sexual harassment because such acts are outside the scope of employment. (See C.A., supra, 53 Cal.4th at p.865, citing John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441-452.) Instead, the California Supreme Court stated that a school district’s liability is instead premised on its administrators’ and supervisors’ negligent hiring, supervising and retaining—acts which are within those administrators’ and supervisors’ scope of employment. The federal case cited by Plaintiff fails to articulate a statutory basis for liability against District for a cause of action for violation of Civil Code section 51.9 on a ratification theory or a vicarious liability theory.

Even if the complaint alleged Government Code section 815.6, the sixth cause of action does not allege facts supporting a violation of Civil Code section 51.9.

As previously stated, Plaintiff, in opposition, argues that Government Code section 815.6 provides a basis to hold District directly liable for Le’s sexual harassment, even though the complaint did not cite to the statute as a basis for liability. Section 815.6 states: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code § 815.6.)

Plaintiff then recites a number of sections from the Education Code to support Plaintiff’s belief that it should be entitled to state a cause of action for sexual harassment in violation of Civil Code § 51.9. (See Opposition, citing Ed. Code §§ 201, 231.5, 212.5.) Education Code section 201 states that “[i]t is the intent of the Legislature that each public school undertake educational activities to counter discriminatory incidents on school grounds and, within constitutional bounds, to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.” (Ed. Code § 201, subd. (f), quoted by Opposition, p.4:6-11.) The portions of Education Code section 231.5 cited by Plaintiff states that “[e]ach educational institution in the State of California shall have a written policy on sexual harassment… [that] shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies… [and] provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable.” (Ed. Code § 231.5 subds. (b), (c), (e), quoted by Opposition, p.4:11-20.) Plaintiff also quotes section 212.5 which defines “sexual harassment.” (See Opposition, p.4:20-26, quoting Ed. Code § 212.5.)

However, the sixth cause of action does not allege a breach of these purported duties provided by the Education Code. For example, there is no allegation that District failed to undertake educational activities, or failed to have a written policy on sexual harassment, or had a policy that did not include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment. Instead, the sixth cause of action as against District is based on its alleged ratification of the sexual harassment. Even if the sixth cause of action had alleged a failure to have a written policy or a failure to undertake educational activities, those failures are not connected to the actual sexual harassment that Civil Code section 51.9 prohibits. (See Civ. Code § 51.9; compare with Ed. Code §§ 201, 212.5, 231.5.) Although Education Code section 201, subdivision (g) states that “[i]t is the intent of the Legislature that this chapter shall be interpreted as consistent with… the Unruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes,” it does not follow that one could assert a cause of action premised on a violation of one statute seeking damages wholly unrelated to the statute on which those damages are premised.

Plaintiff does not identify a breach of a statutory duty that results in liability pursuant to Government Code section 815.6, and thus fails to allege any basis to state facts sufficient to constitute a claim for violation of Civil Code section 51.9. (See Goodman v. Kennedy (1976)18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) District’s demurrer to the sixth cause of action of the complaint is SUSTAINED without leave to amend.

The Court will prepare the order.