Case Name: Jane Doe 1, et al. v. South Valley Dance Arts, et al.

Case No.: 18CV340012

(1) Mr. Kevin Cole’s Demurrer to the Second Cause of Action in Plaintiffs’ First Amended Complaint
(2) Mr. Kevin Cole’s Motion to Strike Paragraph 24 from Plaintiffs’ First Amended Complaint

Factual and Procedural Background

Plaintiffs Jane Doe 1 and Jane Doe 2, minors, are twin sisters. (First Amended Complaint (“FAC”), ¶1.) Plaintiffs Jane Doe 1 and Jane Doe 2 were members of defendant South Valley Dance Arts (“SVDA”) and had danced on behalf of SVDA at Sobrato High School approximately 2 – 3 times each year. (FAC, ¶7.)

During the 2014-15 and 2015 – 2016 school years, plaintiff Jane Doe 3 was a student at Sobrato High School. (FAC, ¶8.) During that time, defendant Kevin Cole (“Cole”) sexually abused, molested, harassed, and/or assaulted plaintiff Jane Doe 3 on school grounds, many times in front of school staff. (Id.) Defendant Cole continued to sexually harass and/or stalk plaintiff Jane Doe 3 until at least August 2017. (Id.)

Defendant Cole had been employed by defendant Morgan Hill Unified School District (“District”) as a technician in the drama department in 2014, at which time a complaint had been made of his inappropriate touching of two female students. (FAC, ¶9.) Defendant District did not report this incident or defendant Cole’s sexual harassment, assault, and/or molestation of plaintiff Jane Doe 3 to authorities as required by Penal Code section 11164 et seq. (Id.)

Defendant District required defendant SVDA to hire a backstage production person for safety purposes and recommended defendant Cole for that position. (FAC, ¶10.) On November 30, 2017, plaintiff Jane Doe 1 needed to make a quick costume change, but no one on behalf of SVDA was present to assist her. (FAC, ¶11.) Defendant Cole offered to help, even though he had been told at the beginning of the show by production manager, Tiffany Hoiberg, that he should not be helping girls change. (Id.) While purportedly helping plaintiff Jane Doe 1 change, defendant Cole removed plaintiff Jane Doe 1’s pants and used both of his hands to grab/massage her legs from the thigh to and including her buttocks up and down three times on each leg, touching her buttocks each time. (Id.) When removing plaintiff Jane Doe 1’s top, defendant Cole groped and/or stroked plaintiff Jane Doe 1’s body, including her breasts. (Id.) During the next quick change, plaintiff Jane Doe 1 verbalized her mother’s presence, at which time defendant Cole assisted only with her shoes. (Id.) The next day, December 1, 2017, defendant Cole grabbed plaintiff Jane Doe 1 hard from behind by her arm and abdomen/hip and held on to her for approximately 20 seconds, stopping only when plaintiff Jane Doe 1 pulled away to go onto the stage. (Id.)

On December 1, 2017, plaintiff Jane Doe 2 requested assistance for a quick change several times over the radio. (FAC, ¶12.) Defendant Cole assisted plaintiff Jane Doe 2 with her costume change, and began rubbing her on the sides of her abdomen, and moving his hands all the way to her buttocks approximately 3-4 times. (Id.) Plaintiff Jane Doe 2 was scared, and could not say anything. (Id.) A fellow dancer slapped defendant Cole’s hands away from plaintiff Jane Doe 2. (Id.) The production manager stated over the radio that there was a problem and defendant Cole was asked to leave the show over the incident. (Id.)

On December 18, 2018, plaintiffs Jane Doe 1 and Jane Doe 2 filed a complaint against defendants SVDA, District, and Cole.

On January 8, 2019, plaintiffs Jane Doe 1, Jane Doe 1, and Jane Doe 3 filed the operative FAC against defendants SVDA, District, and Cole asserting causes of action for:

(1) Sexual Assault of a Minor [plaintiffs against defendant Cole]
(2) Negligence
(3) Intentional Infliction of Emotional Distress [plaintiffs against defendant Cole]

On February 13, 2019, defendant District filed an answer to plaintiffs’ FAC.

On April 17, 2019, defendant SVDA filed an answer to plaintiffs’ FAC.

On August 30, 2019, defendant Cole filed the two motions now before the court: (1) a demurrer to the second cause of action in plaintiffs’ FAC; and (2) a motion to strike paragraph 24 from plaintiffs’ FAC.

I. Defendant Cole’s demurrer to the second cause of action in plaintiffs’ FAC is OVERRULED.

In demurring to the plaintiffs’ second cause of action for negligence, defendant Cole contends a claim for negligence is inconsistent with the other two causes of action which allege that he intentionally injured the plaintiffs. Defendant Cole cites Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 972 (Mahoney) where the court wrote:

Civil Code section 1714 provides: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief.”

That statute simply codifies the common law dichotomy of intentional torts and negligence. California has recognized various degrees of negligence which invoke various legal consequences but as was stated in Donnelly v. Southern Pacific Co., 18 Cal.2d 863, at page 869 [118 P.2d 465]: “A negligent person has no desire to cause the harm that results from his carelessness, … and he must be distinguished from a person guilty of willful misconduct, such as assault and battery, who intends to cause harm. [Citation.] Willfulness and negligence are contradictory terms. [Citations.] If conduct is negligent, it is not willful; if it is willful, it is not negligent.”

Defendant Cole also cites Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 (Bartosh) where the court wrote, in relevant part:

The crimes of assault and battery are intentional torts. In the perpetration of such crimes negligence is not involved. As between the guilty aggressor and the person attacked the former may not shield himself behind the charge that his victim may have been guilty of contributory negligence, for such a plea is unavailable to him. (Villines v. Tomerlin, 206 Cal.App.2d 448, 458 [23 Cal.Rptr. 617]; 2 Rest., Torts, § 481, p. 537; Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 6 [146 P.2d 57].) By the same token where an innocent bystander is injured as a proximate result of a battery committed by a defendant upon another, such defendant may not assert the defense of contributory negligence as against an innocent bystander on the grounds that the latter failed to retreat from a place lawfully occupied by him to an area outside the range of the defendant’s criminal conduct.

Neither Mahoney nor Bartosh preclude plaintiffs from pleading inconsistent theories of liability. Both Mahoney and Bartosh are distinguishable based upon their procedural posture. Neither involved the adequacy of pleading. Instead, Mahoney and Bartosh discuss the concept of inconsistent theories of liability at the trial stage. Plaintiffs persuasively cite Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586 where the California Supreme Court wrote, “‘[T]here exists an inconsistency between a cause of action for wilful injuries and a cause of action for injuries arising from negligence. But it is not such an inconsistency as would either have prevented the uniting of the two causes of action in the same complaint originally or the reliance upon both by the plaintiff at the trial…. The law is well settled in this state that a plaintiff may plead and proceed to trial upon inconsistent causes of action….’ [Citations.]”

Accordingly, defendant Cole’s demurrer to the second cause of action in plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc, §430.10, subd. (e)] for negligence is OVERRULED.

II. Defendant Cole’s motion to strike paragraph 24 from plaintiffs’ FAC is DENIED.

Paragraph 24 of the FAC states, “In serving as a technician for dance performances, KEVIN COLE owed a duty to exercise due care towards the children involved in the program, including plaintiffs JANE DOE 1 and JANE DOE 2, so as to avoid injuring them. As an employee of MORGAN HILL UNIFIED SCHOOL DISTRICT on school grounds during school hours, KEVIN COLE owed a duty to exercise due care towards students on the premises, including JANE DOE 3, so as to avoid injuring them.”

In apparent recognition that a demurrer does not lie to a portion of a cause of action , defendant Cole moves to strike paragraph 24 which specifically charges defendant Cole with negligence. In moving to strike, defendant Cole incorporates, by reference, the arguments he asserted in demurring to the second cause of action. For the reasons stated above, defendant Cole’s motion to strike paragraph 24 from plaintiffs’ FAC is DENIED.

The Court will prepare the order.