Case Name: Andrea Kline, et al. v. Saratoga Union School District, et al.
Case No.: 19CV340517

I. Background

In brief, plaintiffs Andrea and John Kline (collectively, “Parents”) allege defendant Saratoga Union School District (the “District”) and its staff mishandled their daughter’s complaint about bullying by another student at her middle school. They commenced this action against the District, Superintendent Nancy Johnson, Principal Barbara Neal, counselor Angela Deans, as well as the parents of the alleged bully. Currently before the Court is a motion for judgment on the pleadings by the District and its staff.

As relevant here, Parents allege their daughter (“Minor”) was the target of significant bullying and harassment that culminated in the particular incident giving rise to her complaint against the perpetrating classmate (“Classmate”), and in turn, the claims in this action. (Compl., ¶¶ 10, 16–18.) According to the complaint in this action, Classmate deliberately cut Minor off and tripped her while they were running on a gravel track during their regularly-scheduled physical-education class. (Compl., ¶ 11.) Minor fell and sustained a severe laceration accompanied by tissue evulsion. (Compl., ¶ 11.) Minor went to the emergency room where physicians determined her injury required the intervention of a plastic surgeon. (Compl., ¶ 12.) The significant tissue loss from the laceration and subsequent plastic surgery required many sutures and significant aftercare. (Compl., ¶¶ 12–13.)

Parents allege that when they and Minor finally spoke with the District’s staff, including Superintendent Johnson and Principal Neal, these defendants: made excuses for Classmate and minimized what had happened; inconsistently credited Minor’s characterization of Classmate’s conduct as deliberate while refusing to characterize the conduct as bullying; and failed to separate Minor and Classmate through rescheduling of shared classes (even temporarily for the duration of an investigation). (Compl., ¶¶ 19–23.) Parents and Minor claim that Superintendent Johnson then scheduled counseling sessions for Minor with school counselor Angela Deans (“Deans”) who disclosed her notes and conversations with Minor to Johnson and Neal. (Compl., ¶ 24.) The District and its staff purportedly used the counseling sessions as a means of collecting evidence and then used the information collected under the guise of providing emotional support to confront Minor in a hurtful way as well as to shame and discredit her. (Compl., ¶ 25.)

To summarize, the complaint alleges the District and its staff failed to protect Minor from being injured by Classmate and then failed to adequately and impartially address Minor’s complaint, becoming embroiled in the dispute as advocates for Classmate.

Parents and Minor assert causes of action against the District, its staff, and Classmate’s parents for: (1) negligence (against District, Johnson, Neal, and Classmate’s parents); (2) negligent supervision (against District, Johnson, and Neal); (3) assault and battery (against Classmate’s parents); (4) invasion of privacy (against District, Johnson, Neal, and Deans); and (5) intentional infliction of emotional distress (against District, Johnson, Neal, and Deans).

The District and its staff (Johnson, Neal, and Deans) (collectively, “Defendants”) move for judgment on the pleadings as to the first, second, fourth, and fifth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

II. Discussion

A motion for judgment on the pleadings, like a demurrer, tests the legal sufficiency of the pleading. (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1337.) A court assumes the truth of the factual allegations in the complaint to determine whether any claim has been stated. (Ibid.) The existence of a pleading defect, if any, must be apparent from “the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).)

Defendants argue neither Parents nor Minor properly plead a statutory claim against them. They additionally argue they are immune from liability based on a number of different statutes. The Court first addresses the sufficiency of the allegations more generally before discussing Defendants’ assertions of immunity and, ultimately, concluding the motion must be granted in part and denied in part.

A. Sufficiency of Allegations

Defendants argue the first, fourth, and fifth causes of action are improper because they are based on common law rather than statutory theories of liability and that no statutory bases for liability are pleaded. Defendants’ arguments are unavailing because they are based on an incomplete statement of the law and analysis.

The general rule is that a public entity is only liable to the extent authorized by statute. (Gov. Code, § 815.) This means that a plaintiff cannot assert claims against a public entity based on common law theories of liability without more; it does not mean that a plaintiff may not rely on common law theories in conjunction with statutory authorization for proceeding based on those theories. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1112, disapproved on another ground by Hayes v. County of San Diego (2013) 57 Cal.4th 622.) To illustrate, a public entity is directly liable when it violates a mandatory duty owed to the plaintiff. (Gov. Code, § 815.6.) Additionally, a public entity is vicariously 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.) A public employee is individually liable for his or her own tortious conduct “to the same extent as a private person.” (Gov. Code, § 820, subd. (a).) In sum, in addition to direct liability imposed on a public entity by statute, “‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.)

Here, it is true that Parents and Minor only identify statutory bases for liability by section number in the second cause of action, not in the first, fourth, and fifth causes of action. (Compl., ¶ 34.) But the first cause of action paraphrases Government Code section 815.2 and 820. (Compl., ¶ 29.) And, all of the allegations about vicarious liability are incorporated by reference into the fourth and fifth causes of action. (Compl., ¶¶ 38, 42.) Also, it is self-evident that Parents and Minor seek to hold staff liable for their own tortious conduct and District vicariously liable for the conduct of its staff. Thus, although Parents and Minor do not cite by section number a statutory basis for the District’s direct liability in the first, fourth, and fifth causes of action, it is obvious and they do adequately identify a statutory basis for the District’s vicarious liability and the direct liability of its staff. This is sufficient for pleading purposes. Accordingly, Defendants’ categorical assertion that common law theories are improper as well as their related assertion that no statutory bases for liability are pleaded lack merit.

Defendants also argue there is no duty to protect Minor from unforeseeable harm. But while Defendants frame their argument as directed to the element of duty as relevant to the first and second causes of action, they focus on other elements of negligence and seem to confuse distinct legal concepts.

“[A] school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’ [Citations.]” (C.A., supra, 53 Cal.4th at p. 869.) “[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (Id. at p. 870.) “This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student….” (Ibid.) Accordingly, it is indisputable and Defendants do not actually appear to be disputing whether they owed a duty of care.

In reaching this conclusion, the Court clarifies that a “court’s task in determining whether a duty exists ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446.) And so, in focusing on whether harm was, in fact, foreseeable based on the particular circumstances of this case (including facts beyond those pleaded), Defendants stray from their argument as framed, namely whether a duty is owed.

Defendants’ actual arguments—that they did not breach a duty and cause any injury—go beyond the scope of this challenge to the legal sufficiency of the pleading. Indeed, Defendants rely almost exclusively on cases addressing the sufficiency of evidence with respect to the elements of breach and causation. (See Dailey v. L.A. Unified School Dist. (1970) 2 Cal.3d 741, 747–50; Thompson v. Sacramento Unified School Dist. (2003) 107 Cal.App.4th 1352 .)

In sum, Defendants’ arguments about the sufficiency of the theories pleaded are not persuasive and do not justify granting their motion as to the first, second, fourth, and fifth causes of action.

That said, there is some merit to Defendants’ argument about the sufficiency of Parents’ allegations to the extent they assert claims individually as compared to representing Minor in pursuing her own claims. While Parents’ opposition to Defendants’ argument is conclusory and unsupported by legal authority, they identify an important fact—their payment of Minor’s medical expenses—that reflects Defendants’ argument reaches the correct conclusion but remains flawed.

Although Defendants frame their argument as an argument about standing, this is inapt. In California, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) “This means the plaintiff must possess a substantive right or standing to prosecute an action.” (GameStop, Inc. v. Super. Ct. (2018) 26 Cal.App.5th 502, 510.) Of course, Parents have standing to prosecute an action in their own names. Additionally, Minor, although lacking capacity, has standing to seek redress for her own injuries. Under Code of Civil Procedure section 372, subdivision (a), when a minor is a party to the action, the minor lacks capacity to proceed and must appear through a guardian ad litem. The guardian ad litem is not a party, but merely a representative of the real party in interest, namely the minor. (McClintock v. West (2013) 219 Cal.App.4th 540, 549.) In sum, Minor, a real party in interest, must be represented by a guardian ad litem (in this case, her mother); no standing issue is presented. And, Parents have standing to assert their own claims. Thus, the issue is simply whether Parents allege they suffered any injury.

With one exception, Parents do not actually allege they individually suffered any injuries. In the fourth and fifth causes of action in particular, Parents identify Minor as the injured party. (See, e.g., Compl., ¶¶ 41, 43.) But as relevant to the first and second causes of action, Parents allege that Minor’s mother took her to the emergency room and medical expenses were incurred for treatment of Minor’s knee injury. While Parents do not explicitly allege, verbatim, that they paid Minor’s medical expenses, this inference is reasonable in light of all of the facts alleged. (Compl., ¶¶ 2, 15.) “‘The parents of a minor are normally responsible for medical and hospital care furnished the minor, and the cause of action to recover these items normally rests with the parents.’” (White v. Moreno Valley Unified School District (1986) 181 Cal.App.3d 1024, 1030, quoting Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 162–63.) “But the child is also liable for the reasonable value of these expenses.” (White, supra, 181 Cal.App.3d at p. 1030, quoting Bauman, supra, 42 Cal.App.2d at pp. 162–63.) “Thus, strictly speaking, the cause of action to recover medical expenses incurred on account of a minor’s personal injuries does not belong exclusively to the parents; in reality it belongs to both the parents and the minor.” (White, supra, 181 Cal.App.3d at p. 1030.) With that said, there can be no double recovery. (Ibid.; accord Laughner v. Byrne (1993) 18 Cal.App.4th 904, 910–11.) Thus, when a parent represents a minor as guardian ad litem for the purpose of pursuing the minor’s claim to recover these expenses in the minor’s own right, the parent cannot recover these same expenses individually. (Laughner, supra, 18 Cal.App.4th at pp. 910–11.) Here, Minor’s mother is representing Minor as guardian ad litem in Minor’s action to recover these expenses on her own behalf. Consequently, Parents cannot recover these expenses individually.

In summary, Parents’ first and second causes of action against Defendants individually cannot proceed in light of the election to represent Minor in pursuing the expenses on her own. And, Parents’ third and fourth causes of action are not properly pleaded because they do not allege they suffered any injuries or that their rights were violated.

B. Statutory Immunity

Defendants argue the causes of action asserted against them fail because they have statutory immunity from liability under Government Code sections 818.8, 820.2, 821.6, 822.2 as well as Civil Code section 47.

1. Government Code § 820.2

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) As the California Supreme Court has explained, “a ‘workable definition’ of immune discretionary acts draws the line between ‘planning’ and ‘operational’ functions of government.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981, quoting Johnson v. State of Cal. 69 Cal.2d 782, 793–94.) “Immunity is reserved for those ‘basic policy decisions [which have]…been [expressly] committed to coordinate branches of government,’ and as to which judicial interference would thus be ‘unseemly.’” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 793, italics in original.) “Such ‘areas of quasi-legislative policy-making…are sufficiently sensitive’ [citation] to call for judicial abstention from interference that ‘might even in the first instance affect the coordinate body’s decision-making process’ [citation].” (Caldwell, supra, 10 Cal.4th at p. 981.) “On the other hand, said Johnson, there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 796.) “Moreover, [ ] immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages…took place. The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision. [Citations].’” (Caldwell, supra, 10 Cal.4th at p. 981, quoting Johnson, supra, 69 Cal.2d at p. 795, fn. 8.)

Here, while Defendants cite cases that suggest discretionary immunity may apply in the context of decisions about school discipline, they do not provide more than superficial analysis of the standard for immunity to establish that, at this juncture, the acts described in the pleading qualify as discretionary acts rather than operational acts carried out in accordance with predetermined policies. Also, Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4th 31 does not establish, as a matter of law, that discretionary immunity applies to the acts of school administrators in this context because the First District explicitly declined to address that issue; the issue was not raised on appeal. (Skinner, supra, 37 Cal.App.4th at p. 40, fn. 2.) Accordingly, discretionary immunity does not provide a basis for granting judgment on the pleadings.

2. Government Code § 821.6

Under Government Code section 821.6, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” “California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048.) “Immunity under Government Code section 821.6 is not limited to claims for malicious prosecution, but also extends to other causes of action arising from conduct protected under the statute, including defamation and intentional infliction of emotional distress.” (Ibid.)

Additionally, as Defendants point out, “Government Code section 821.6 immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings.” (Gillan, supra, 147 Cal.App.4th at p. 1048, citing Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209–1210.) “An investigation before the institution of a judicial proceeding is part of the prosecution of a judicial proceeding for purposes of the statute, even if the authorities later decide not to file charges.” (Gillan, supra, 147 Cal.App.4th at p. 1048.) “Acts undertaken in the course of an investigation,” including public statements about the progress of an investigation or statements made to the victim, “cannot give rise to liability.” (Ibid.) But the acts must be undertaken within the scope of employment and in furtherance of the investigation. (Catsouras v. Dept. of Cal. Highway Patrol (2010) 181 Cal.App.4th 856, 889.) This determination may involve a question of fact that cannot be resolved at the pleading stage. (Id. at pp. 889–90.) On the other hand, when there is only one reasonable conclusion that can be drawn from the facts alleged, this determination may be made on the pleadings. (Richardson-Tunnell v. Schools Insurance Program for Employees (2007) 157 Cal.App.4th 1056, 1062–63, disapproved on another ground in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8.)

To illustrate, when a plaintiff alleges police officers disseminated and caused to spread across the internet a photograph of the decapitated corpse of the plaintiff’s relative solely as a Halloween prank, the allegations are insufficient to establish the officers’ conduct occurred within the scope of employment and in furtherance of an investigation. (Catsouras, supra, 181 Cal.App.4th at pp. 863, 889.) Under such circumstances, immunity cannot be established at the pleading stage. (Ibid.) In contrast, when employees of a retirement plan and school district videotape a teacher during her wedding ceremony and reception as part of their investigation of her worker’s compensation claim, immunity may be determined at the pleading stage and a court may grant judgment for the defendant on the pleadings. (Richardson-Tunnel, supra, 157 Cal.App.4th at pp. 1062–63.)

Here, the fourth and fifth causes of action are based on Defendants’ handling of the investigation into the bullying complaint. Although Parents and Minor take issue with how Defendants’ handled the investigation, the facts alleged indisputably disclose that the conduct at issue in the fourth and fifth causes of action occurred within the scope of employment and in furtherance of the investigation. Unlike in Catsouras, the claims are not predicated on email communications that, on their face, lacked a sufficient nexus to the investigation and were sent for personal reasons. The facts alleged here more closely resemble those in Richardson-Tunnel in which it was self-evident from the facts pleaded that the conduct was related to the investigation of a work-related matter by those tasked with investigating. Accordingly, the facts pleaded establish Defendants are immune from liability under Section 821.6 with respect to the fourth and fifth causes of action.

To be sure, Parents and Minor do not advance a persuasive argument to support a contrary conclusion. They insist there can be no immunity without a formal proceeding, which assertion is contrary to California law. They do not effectively distinguish Amylou R. based on the ratio decidendi or cite any number of California cases that came after to support a contrary conclusion. The only new case they do cite is neither factually analogous nor the subject of any legal analysis in the opposition. (See Quon v. Arch Wireless Operating Co. (C.D.Cal. 2006) 445 F.Supp.2d 111.) The points they advance about their lack of knowledge about the specific job duties of District’s staff members are not well-taken because they are made without reference to any authority establishing such duties are relevant under applicable standards and given they characterize Defendants’ conduct as investigatory conduct. Ultimately, any doubt is extinguished by the authority Defendants provide in their reply about the regulatory framework for investigation of bullying complaints.

Consequently, the motion is meritorious with respect to the fourth and fifth causes of action because Defendants are immune from liability under Section 821.6.

3. Government Code §§ 818.8, 822.2

Defendants also argue they are immune from liability under Government Code section 822.2, which states “[a] public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” But as Parents and Minor articulate in opposition, the immunity provided by Section 822.2 is qualified and may be overcome by fraud, corruption, or (as they allege) malice, which Defendants do not adequately address on reply. Accordingly, the Court is not persuaded based on the facts and analysis presented at this juncture that Defendants are also immune under Section 822.2.

Defendants also assert the District has direct immunity under Section 818.8 for: “an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” Parents and Minor seem to tacitly concede this point as they do not address it in their opposition. Even so, it is unnecessary to resolve the issue of whether this immunity applies given the existence of immunity under Section 821.6, in the absence of a more robust discussion from the parties, and because allegations of subterfuge make up only a portion of the conduct giving rise to the causes of action asserted.

In sum, the Court does not grant judgment on the pleadings based on statutory immunity under Section 818.8 or Section 822.2.

4. Civil Code § 47

Defendants also claim their conduct was privileged under Civil Code section 47. “Section 47 establishes a privilege that bars liability in tort for the making of certain statements.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) “Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],’ with certain statutory exceptions ….” (Hagberg, supra, 32 Cal.4th at p. 360.) “The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Ibid.) Based on the facts alleged here, the privilege could only conceivably apply if Defendants made statements falling within clause three or four. But Defendants do not adequately establish the same.

“Section 47, subdivision (c) extends a qualified privilege to other communications.” (Hagberg, supra, 32 Cal.4th at p. 360.) “Under section 47, subdivision (c), a qualified privilege, that is a privilege that applies only to communications made without malice, applies to ‘communication[s]…to a person interested therein, (1) by one who is also interested or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.’” (Ibid.) The common interest privilege may cover statements by school officials or parents regarding matters of school administration and on-campus conduct. (See, e.g., Hicks v. Richard (2019) 39 Cal.App.4th 1167, 1177–78; see also Martin v. Kearney (1975) 51 Cal.App.3d 309, 311–312.) Accordingly, the facts pleaded support the conclusion that the privilege may apply under the circumstances presented here. But, ultimately, because the privilege is qualified, the Court cannot conclusively determine that Defendants’ conduct was indisputably and absolutely privileged based on the pleading.

C. Conclusion

Defendants’ motion for judgment on the pleadings is GRANTED as to all causes of action asserted by Parents individually against both the District and its staff, GRANTED as to the fourth and fifth causes of action asserted by Minor through her guardian ad litem against the District and its staff, and DENIED as to the first and second causes of action asserted by Minor through her guardian ad litem. Any amended pleading shall be filed within 30 days of the Court’s order. (Code Civ. Proc., § 438, subd. (h)(2).) Parents may not amend their first and second causes of action.