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1 MORGAN A. STEWART (State Bar No. 209852)
mstewart@manlystewart.com
2 SAUL E. WOLF (State Bar No. 244833)
swolf@manlystewart.com
3 CRISTINA J. NOLAN (State Bar No. 318495)
cnolan@manlystewart.com
4 MANLY STEWART FINALDI
19100 Von Karman Avenue, Suite 800
5 Irvine, California 92612
Telephone: (949) 252-9990
6 Facsimile: (949) 252-9991
7 Attorneys for Plaintiff
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SANTA BARBARA, ANACAPA DIVISION
11
MANLY STEWART FINALDI
12 JANE OB DOE, an individual, Case No. 20CV03946
19100 Von Karman Avenue, Suite 800
13 Plaintiff, Assigned for All Purposes to:
Telephone (949) 252-9990
Irvine, California 92612
Hon. Colleen K. Sterne
14 v. Department 5
15 SANTA BARBARA UNIFIED SCHOOL NOTICE OF COURT RULING ON
DISTRICT, a California local public entity; DEFENDANT MATEF HARMACHIS'
16 MATEF HARMACHIS, an individual; and MOTION TO QUASH SUBPOENA TO
DOES 1 to 100, inclusive, COMMISSION ON TEACHER
17 CREDENTIALING
Defendant.
18
Action Filed: November 30, 2020
19 Trial Date: None
20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 PLEASE TAKE NOTICE that on April 25, 2022 at 8:30 a.m. in Department 5 of the
22 Anacapa Court House, a Motion to Quash by Defendant Matef Harmachis to Quash Business
23 Records Subpoena of Plaintiff to the Commission on Teacher Credentialing ("Motion"), was
24 scheduled before the Honorable Colleen K. Sterne. Cristina J. Nolan, Esq. of Manly, Stewart &
25 Finaldi appeared on behalf of the Plaintiff via zoom. John Stumreiter of Carpenter, Rothans &
26 Dumont, LLP appeared on behalf of Defendant Matef Harmachis via Zoom. And Marianne
27 Gordon of Tyson and Mendes appeared on behalf of Defendant Santa Barbara Unified School
28 District via zoom. Matt Beasley appeared on behalf of the Office of the Attorney General,
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NOTICE OF COURT RULING ON DEFENDANT MATEF HARMACHIS' MOTION TO QUASH
SUBPOENA TO COMMISSION ON TEACHER CREDENTIALING
1 California Department of Justice via zoom.
2 PLEASE TAKE FURTHER NOTICE the Motion of Defendant Matef Harmachis to
3 quash the business records subpoena of Plaintiff to the Commission on Teacher Credentialing is
4 GRANTED IN PART AND DENIED IN PART. The Commission shall comply with the
5 subpoena and produce documents only to the extent set forth herein on or before May 23, 2022, or
6 such other date as the Plaintiff and the Commission may agree in writing or as otherwise ordered
7 by the Court.
8 Plaintiff was ordered to give notice. Please see Minute Order for the ruling, attached as
9 Exhibit A.
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11 DATED: May 16, 2022 MANLY STEWART FINALDI
MANLY STEWART FINALDI
12
19100 Von Karman Avenue, Suite 800
13
Telephone (949) 252-9990
Irvine, California 92612
By:
14 CRISTINA J. NOLAN
Attorneys for Plaintiff
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NOTICE OF COURT RULING ON DEFENDANT MATEF HARMACHIS' MOTION TO QUASH
SUBPOENA TO COMMISSION ON TEACHER CREDENTIALING
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 04/25/2022 Time: 10:13 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Clara Sotelo-Martinez Dept: SB Dept 5
Deputy Sheriff: David Allcott
Court Reporter: Marie Castro Case No: 20CV03946
Jane Ob Doe vs Santa Barbara Unified School District et al
Parties Present:
Cristina Nolan Plaintiff’s Counsel (via Zoom)
Marianne Gordon Defendant’s Counsel (via Zoom)
John J. Stumreiter Defendant’s Counsel (via Zoom)
Matthew Beasley Counsel to Non-Party (via Zoom)
NATURE OF PROCEEDINGS: Motion: Strike/ Motion: Quash/ Motion: Quash/ Demurrer
Defendant’s Counsel, John J. Stumreiter, gives oral argument.
Plaintiff’s Counsel, Cristina Nolan, responds.
The Court adopts her tentative ruling as follows:
RULING:
(1) The demurrer of defendant Santa Barbara Unified School District is sustained, without leave to
amend, as to the seventh and ninth causes of action of plaintiff’s third amended complaint.
(2) The motion of defendant Santa Barbara Unified School District to strike portions of plaintiff’s third
amended complaint is granted, without leave to amend, to strike from paragraph 6 of the prayer of the
third amended complaint the words “and SBUSD” on page 51, line 6, and “and against SBUSD pursuant
to Title IX” on page 51, lines 6 to 7.
(3) Defendant Santa Barbara Unified School District shall file and serve its answer to the third
amended complaint, as it exists following this ruling on the demurrer and motion to strike, on or before
May 10, 2022.
(4) The motion of defendant Matef Harmachis to quash the business records subpoena of plaintiff to
the Commission on Teacher Credentialing is granted in part and denied in part. The Commission shall
comply with the subpoena and produce documents only to the extent set forth herein on or before May
23, 2022, or such other date as the plaintiff and the Commission may agree in writing or as otherwise
ordered by the court. Plaintiff shall serve notice of this order on the Commission on or before April 29,
2022.
(5) As set forth herein, the motion of defendant Santa Barbara Unified School District to quash the
business records subpoena of plaintiff to the Office of the Santa Barbara County District Attorney is
denied. The Office of the Santa Barbara County District Attorney shall comply with the subpoena and
produce documents, subject to the qualifications set forth herein, on or before May 23, 2022, or such
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other date as the plaintiff and the SBDA may agree in writing or as otherwise ordered by the court.
Plaintiff shall serve notice of this order on the SBDA on or before April 29, 2022.
Background:
(1) Demurrer and Motion to Strike Procedural History
As alleged in plaintiff’s third amended complaint (TAC): Plaintiff Jane OB Doe (Doe or plaintiff) is a
pseudonym for the female plaintiff who was a minor at all relevant times in plaintiff’s complaint. (TAC, ¶
1.) Plaintiff was a student attending Santa Barbara High School (SBHS) within defendant Santa Barbara
Unified School District (District). (TAC, ¶ 12.)
Defendant Matef Harmachis was a teacher hired by the District to teach history, government, or
economics at SBSH. (TAC, ¶ 14.) Harmachis was supervised by District administrators. (TAC, ¶ 15.)
Harmachis has an extensive history of disciplinary issues within the District related to inappropriate
conduct with students. (TAC, ¶ 17.) District knew or should have known that Harmachis presented a
danger to students and needed to be removed from the classroom. (TAC, ¶¶ 17-22.
Beginning in 2016 and through 2017, Harmachis sexually abused, harassed, and molested plaintiff on
the school premises, including within his SBHS classroom. (TAC, ¶ 36.) This sexual abuse included, but
is not limited to, sexual talk and innuendo, biting plaintiff’s ear, hugging plaintiff, and groping plaintiff.
(Ibid.)
Defendants should have been aware of Harmachis’s wrongful conduct at or about the time it was
occurring and took no action to obstruct, inhibit, or stop such continuing conduct, and took no action to
help plaintiff. (TAC, ¶ 38.) As a result, plaintiff has experienced multiple mental, emotional, and
psychological problems. (TAC, ¶ 40.)
On November 30, 2020, plaintiff filed her original complaint in this action asserting 13 causes of action:
(1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) negligent failure to warn,
train, or educate; (5) negligence per se; (6) intentional infliction of emotional distress; (7) assault; (8)
sexual battery (Civ. Code, § 1708.5); (9) sexual harassment (Civ. Code, § 51.9); (10) gender violence
(Civ. Code, § 52.4); (11) breach of fiduciary duty; (12) constructive fraud (Civ. Code, § 1573); and (13)
public entity liability for failure to perform mandatory duty.
On January 21, 2021, District filed its demurrer to the fourth through sixth, ninth, and eleventh through
thirteenth causes of action and its motion to strike portions of the complaint.
On March 29, 2021, the court heard the District’s demurrer and sustained the demurrer with leave to
amend. The court also granted the motion to strike in certain respects with leave to amend.
On April 29, 2021, plaintiff filed her FAC asserting nine causes of action: (1) negligence; (2) negligent
supervision; (3) negligent hiring/ retention; (4) intentional infliction of emotional distress; (5) assault; (6)
sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ. Code, § 51.9); (8) gender violence
(Civ. Code, § 52.4); and (9) public entity liability for failure to perform mandatory duty. The first, second,
third, and ninth causes of action are asserted against the District only; the fifth, sixth, and eighth causes
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of action are asserted against Harmachis only; the fourth and seventh causes of action are asserted
against both the District and Harmachis.
On August 2, 2021, the court sustained the District’s demurrer, with leave to amend, as to the seventh
(sexual harassment) and ninth (mandatory duty) causes of action, and granted the District’s motion to
strike, with leave to amend, to strike allegations relating to enhanced damages pursuant to Code of Civil
Procedure section 340.1, attorney fees pursuant to Civil Code section 52, and Title IX remedies.
On September 7, 2021, plaintiff filed her second amended complaint (SAC) asserting nine cause of
action: (1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) intentional infliction of
emotional distress; (5) assault; (6) sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ.
Code, § 51.9); (8) gender violence (Civ. Code, § 52.4); and (9) public entity liability for failure to perform
mandatory duty. The first, second, third, and ninth causes of action are asserted against the District only;
the fifth, sixth, and eighth causes of action are asserted against Harmachis only; the fourth and seventh
causes of action are asserted against both the District and Harmachis.
On November 22, 2021, the court sustained Harmachis’s demurrer, with leave to amend, as to the fourth
through eighth causes of action of the SAC.
On December 7, 2021, plaintiff filed her TAC asserting nine causes of action: (1) negligence; (2)
negligent supervision; (3) negligent hiring/ retention; (4) intentional infliction of emotional distress; (5)
assault; (6) sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ. Code, § 51.9); (8) gender
violence (Civ. Code, § 52.4); and (9) public entity liability for failure to perform mandatory duty. The first,
second, third, and ninth causes of action are asserted against the District only; the fifth, sixth, and eighth
causes of action are asserted against Harmachis only; the fourth and seventh causes of action are
asserted against both the District and Harmachis. The filing of the TAC made District’s demurrer and
motion to strike as to the SAC moot.
On February 10, 2022, the District filed its demurrer to the seventh and ninth causes of action of the
TAC. The District also concurrently filed a motion to strike prayers for attorney fees. The demurrer and
motion to strike are opposed by plaintiff.
(2) Motions to Quash
On November 12, 2021, counsel for plaintiff, attorney Cristina J. Nolan, issued a deposition subpoena to
the Custodian of Records of the Commission on Teacher Credentialing (CTC). Plaintiff concurrently
served a copy of the subpoena and a notice to consumer on defendant Harmachis. The subpoena
requests production of documents described as: “Any and all records and other documents in your
possession, custody or control, related to MATEF HARMACHIS [DOB and SSN].” (Stumreiter decl., ¶ 2
& exhibit A.) The subpoena provided for production of documents on December 10, 2021.
On November 19, 2021, attorney Nolan issued a deposition subpoena to the Custodian of Records of the
Office of the Santa Barbara District Attorney (SBDA). The subpoena requests production of documents
described as: “Any and all non-privileged records, in your possession, custody or control, related to
JUSTIN ANTHONY SELL [DOB and SSN], including but not limited to transcripts, pleadings, files,
materials, documents and any and all jail call transcripts.” (Harrison decl., ¶ 3 & exhibit A.) The
documents served on the District includes the subpoena and a notice to consumer addressed to Sell.
(Ibid.) The subpoena provided for production of documents on December 17, 2021.
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On December 8, 2021, Harmachis filed his motion to quash or to limit production of documents from the
CTC. The motion is opposed by plaintiff. The proof of service of the motion includes service on deponent
CTC. CTC has not filed opposition or any other response to this motion.
On December 20, 2021, the District filed its motion to quash or to limit production of documents from the
SBDA. The motion is opposed by plaintiff. The proof of service of the motion, concurrently filed on
December 20, showed service on plaintiff and defendant Harmachis but not on the SBDA.
On March 21, 2022, the court held an initial hearing on these two motions to quash. The court
determined that it was inclined to deny Harmachis’s motion to quash in part but ordered the parties to
further meet and confer about the means of production. The court continued the hearing on the motion to
quash as to the CDC subpoena to allow for this meet and confer process. The court also continued the
District’s motion to quash the SBDA subpoena to permit service and, potentially, a response from the
SBDA.
On March 22, 2022, the District filed proof of service of the papers as to the District’s motion to quash on
the SBDA, including notice of this hearing date. The SBDA has not filed any response to the motion to
quash.
On April 11, 2022, plaintiff and Harmachis filed separate reports regarding their meet and confer efforts.
In general, the parties agree that the CDC should determine what documents should be produced, and
what redactions should be made, as otherwise consistent with this court’s order. Harmachis also makes
additional arguments discussed below.
Analysis:
(1) Demurrer and Motion to Strike of District
(A) Demurrer
“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we
give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”
(Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.)
In support of her opposition, plaintiff requests that the court take judicial notice of the court’s minute order
of March 29, 2021, ruling on the District’s demurrer and motion to strike as to the FAC. The court will
grant this request for judicial notice. (See Evid. Code, § 452, subd. (d)(1).)
Plaintiff’s seventh cause of action is for sexual harassment under Civil Code section 51.9. “A person is
liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the
following elements:
SC-2411 (Revised July 1, 2013) MINUTE ORDER
“(1) There is a business, service, or professional relationship between the plaintiff and
defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a
business, service, or professional relationship with the defendant or a third party. Such a relationship
may exist between a plaintiff and a person, including, but not limited to, any of the following persons: [¶]
… [¶]
“(E) Teacher. [¶] … [¶]
“(I) A relationship that is substantially similar to any of the above.
“(2) The defendant has made sexual advances, solicitations, sexual requests, demands for
sexual compliance by the plaintiff, 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) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury,
including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a
result of the conduct described in paragraph (2).” (Civ. Code, § 51.9, subd. (a).)
The District argues that, as a public agency, it cannot be held directly liable under section 51.9 and that
plaintiff has not, and cannot, allege facts sufficient to support vicarious liability against the District.
Plaintiff argues that the District can be held directly liable for violation of section 51.9 under Education
Code section 201 and under Government Code section 815.6.
Education Code section 201 expresses the Legislature’s declaration of purpose and intent in adopting
chapter 2 of part 1 of division 1 of title 1 of the Education Code, including:
“(a) All pupils have the right to participate fully in the educational process, free from discrimination and
harassment.
“(b) California's public schools have an affirmative obligation to combat racism, sexism, and other
forms of bias, and a responsibility to provide equal educational opportunity.
“(c) Harassment on school grounds directed at an individual on the basis of personal characteristics
or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by
the California Constitution and the United States Constitution.” (Ed. Code, § 201, subds. (a)-(c).)
Government Code section 815.6 provides: “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.”
As discussed in prior demurer rulings addressing this issue, there are no published cases cited which
apply Civil Code section 51.9 to a public school district. As the court noted in ruling on the demurrer to
this cause of action in the original complaint:
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“Section 51.9, subdivision (a)(2) imposes liability where the plaintiff proves that ‘the defendant’ has
engaged in specified conduct. Based upon the general definition in the Civil Code of ‘person’— ‘the word
person includes a corporation as well as a natural person’ (Civ. Code, § 14, subd. (a))—it has been held
that ‘a corporation may be civilly liable for violating section 51.9.’ (C.R. v. Tenet Healthcare Corp. (2009)
169 Cal.App.4th 1094, 1110.) While business entities may be directly liable based on this definition, it is
a more complicated question whether section 51.9 applies to District for direct liability as a public entity.
There is a general rule of statutory construction that ‘the word “person” should not be held to include any
political subdivision of the state in the absence of an express indication that such was the legislative
intent. This general rule of statutory construction, which is supported by numerous cases, is founded
upon the principle that statutory language should not be interpreted to apply to agencies of government,
in the absence of a specific expression of legislative intent, where the result of such a construction would
be to infringe sovereign governmental powers. [Citations.] Where, however, no impairment of sovereign
powers would result, the reason underlying this rule of construction ceases to exist and the Legislature
may properly be held to have intended that the statute apply to governmental bodies even though it used
general statutory language only.’ (Hoyt v. Board of Civil Service Com’rs of City of Los Angeles (1942) 21
Cal.2d 399, 402.) By contrast to section 51.9, ‘employer’ in the Fair Employment and Housing Act is
defined expressly to include ‘the state or any political or civil subdivision of the state, and cities ….’ (Gov.
Code, § 12926, subd. (d).) The legislative history of section 51.9 [previously] cited by plaintiff is at best
ambiguous, focusing on the ‘professional services’ element rather than the definition of ‘person.’ (See
Assem. Com. on Judiciary, Analysis of Sen. Bill No. 612 (1993-1994 Reg. Sess.) as amended Jan. 19,
1994, pp. 1-3 ….) … It therefore does not appear that the District, as a public entity, is intended as
person to be directly liable under section 51.9.” (Minute Order, filed Mar. 29, 2021, at p. 6.)
Neither Education Code sections 200 and 201 nor Government Code section 815.6 provide any basis for
applying Civil Code section 51.9 use of “person” to the District. Education Code sections 200 and 201
identify important public goals in the education process and, as the court has previously ruled, plaintiff
has stated claims against the District on some legal theories arising out of the allegations of misconduct
of Harmachis and the District’s response to that misconduct. Education Code section 262.4 provides that
“[t]his chapter may be enforced through a civil action.” The general declarations of policy in Education
Code sections 200 and 201 do not, however, provide any basis for applying Civil Code section 51.9
outside of section 51.9’s textual limitations. Similarly, Government Code section 815.6 does not make
Civil Code section 51.9 applicable where section 51.9’s text does not by its terms apply to the District. As
the FEHA definition makes clear, the Legislature knows how to word a definition to make a public agency
fall within a statute’s application. The language of Civil Code section 51.9 does not fit with such a
definition and so direct liability under section 51.9. does not apply.
With respect to vicarious liability, plaintiff asserts that the District is liable through ratification. (TAC, ¶
148.) “ ‘As an alternate theory to respondeat superior, an employer may be liable for an employee’s act
where the employer either authorized the tortious act or subsequently ratified an originally unauthorized
tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence
of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to
investigate or respond to charges that an employee committed an intentional tort, such as assault or
battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual
question. [Citation.]’ [Citations.] A principal may be liable when it ratifies an originally unauthorized tort.
[Citations.] And generally, the ratification relates back to the time the tortious act occurred.” (C.R. v.
Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110–1111.)
District distinguishes the holding in C.R. v. Tenet Healthcare Corp. by noting that the entity defendant in
that case was a private entity and not a public entity. Neither party provides any authority that addresses
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this issue specifically. District points to the general proposition that government tort liability depends on
specific statutes and that section 51.9 does not expressly provide for governmental tort liability. Plaintiff
points to general agency principles that hold the principal liable based upon ratification. (See Murillo v.
Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.)
As the court has previously identified, the approach most consistent with government tort principles is
that implied ratification (as opposed to express ratification by a government body with sufficient authority
(see Mott v. Horstmann (1950) 36 Cal.2d 388, 391)) is not a sufficient basis for governmental tort liability.
“ ‘Ratification is the voluntary election by a person to adopt in some manner as his own an act which was
purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to
treat the act as if originally authorized by him. [Citations.]’ [Citation.]” (Estate of Stephens (2002) 28
Cal.4th 665, 673.) With respect to private entities, an entity may ratify conduct of an employee that is not
otherwise within the course and scope of employment as in C.R. v. Tenet Healthcare Corp. In the
present case, statutory liability for injuries by an employee of the public entity is limited as a matter of
statutory policy to acts or omissions “within the scope of his employment.” (Gov. Code, § 815.2, subd.
(a).) Expanding public agency liability to exceed the scope of employment after the fact by implied
ratification is contrary to the policy choice made in the Government Claims Act. The stronger argument in
this case is that implied ratification is not sufficient to find public entity liability under section 51.9. (See
Garcia ex rel. Marin v. Clovis Unified School Dist. (E.D.Cal. 2009) 627 F.Supp.2d 1187, 1203.)
Plaintiff alleges that the former Superintendent of the District was quoted as saying that “We don’t
believe Mr. Harmachis should be in a classroom working with kids,” and that the District was made aware
of Harmachis’s propensity for sexual misconduct. (TAC, ¶ 153.) These are not allegations of express
ratification by someone with sufficient authority. Accordingly, the demurrer to the seventh cause of action
will be sustained. The court has previously provided plaintiff with an opportunity to state her best case
and plaintiff does not identify any particular way in which a truthful amendment would state this cause of
action. The demurrer will be sustained to this cause of action without leave to amend.
District also demurs to the ninth cause of action. Plaintiff’s ninth cause of action is for failure to perform a
mandatory duty. Plaintiff alleges that a mandatory duty exists by virtue of Government Code sections 820
and 815.2, Civil Code sections 51.9 and 1708, Penal Code sections 11166 and 11167, Education Code
sections 200 and 201, and title 20 United States Code section 1681(a). (TAC, ¶¶ 167, 168.)
“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.)
“To assert liability under Government Code section 815.6 for breach of a mandatory duty, a plaintiff must
specifically allege liability in his or her complaint and identify the applicable statute or regulation that
imposes the alleged mandatory duty.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.
Government Code section 820, subdivision (a) provides the general rule that “a public employee is liable
for injury caused by his act or omission to the same extent as a private person.” Government Code
section 815.2, subdivision (a) provides the general rule that “[a] public entity is liable for injury
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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.” Civil Code section 1708 provides the general rule
of tort law that “[e]very person is bound, without contract, to abstain from injuring the person or property
of another, or infringing upon any of his or her rights.” None of these sections provides a mandatory duty
to a public entity within the meaning of Government Code section 815.6.
As discussed above, the court concludes that Civil Code section 51.9 does not provide a basis for direct
liability as to the District. Based on that same reasoning, section 51.9 does not create a mandatory duty
that would subject the District to liability under Government Code section 815.6.
Education Code sections 200 and 201 provide in full:
“It is the policy of the State of California to afford all persons in public schools, regardless of their
disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section
422.55 of the Penal Code, including immigration status, equal rights, and opportunities in the educational
institutions of the state. The purpose of this chapter is to prohibit acts that are contrary to that policy and
to provide remedies therefor.” (Ed. Code, § 200.)
“(a) All pupils have the right to participate fully in the educational process, free from discrimination and
harassment.
“(b) California’s public schools have an affirmative obligation to combat racism, sexism, and other
forms of bias, and a responsibility to provide equal educational opportunity.
“(c) Harassment on school grounds directed at an individual on the basis of personal characteristics
or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by
the California Constitution and the United States Constitution.
“(d) There is an urgent need to prevent and respond to acts of hate violence and bias-related
incidents that are occurring at an increasing rate in California's public schools.
“(e) There is an urgent need to teach and inform pupils in the public schools about their rights, as
guaranteed by the federal and state constitutions, in order to increase pupils’ awareness and
understanding of their rights and the rights of others, with the intention of promoting tolerance and
sensitivity in public schools and in society as a means of responding to potential harassment and hate
violence.
“(f) It 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.
“(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with Article 9.5
(commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code,
Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 1981, et seq.), Title IX of the Education
Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of
1973 (29 U.S.C. Sec. 794(a)), the federal Individuals with Disabilities Education Act (20 U.S.C. Sec.
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1400 et seq.), the federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.), the Unruh
Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), and the Fair Employment and Housing Act (Pt. 2.8
(commencing with Sec. 12900), Div. 3, Gov. 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.” (Ed. Code,
§ 201.)
The plain language of Education Code sections 200 and 201 consists of statements of policy, not
statements of duty. “ ‘An enactment creates a mandatory duty if it requires a public agency to take a
particular action. [Citation.] An enactment does not create a mandatory duty if it merely recites legislative
goals and policies that must be implemented through a public agency’s exercise of discretion.’ [Citation.]”
(Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308.) The inclusion of harassment
specifically within the policy language strongly implies that prohibitions of harassment may be found in
other provisions of chapter 2 of the Education Code. Indeed Education Code section 262.4 provides that
chapter 2 “may be enforced through a civil action,” suggesting the existence of a mandatory duty in other
provisions of chapter 2. Because the only sections in chapter 2 alleged do not themselves impose any
mandatory duty, the ninth cause of action does not allege a claim based upon a mandatory duty under
sections 200 and 201.
The cited provision in Title IX is: “No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance ….” (20 U.S.C. § 1681(a).) Again, although
section 1681 is alleged in the ninth cause of action, plaintiff makes no persuasive argument as to its
application to create a mandatory duty actionable under the Government Clams Act. Additionally, section
1681 applies only to education programs and activities “receiving Federal financial assistance.” There
are no allegations in the TAC that District receives federal financial assistance as to any program
involving plaintiff. There are thus no sufficient allegations that section 1681 is applicable to District.
Penal Code sections 11166 provides in part:
“Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a
report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated
reporter’s professional capacity or within the scope of the mandated reporter’s employment, has
knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been
the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to
the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or
electronically transmit a written followup report within 36 hours of receiving the information concerning
the incident. The mandated reporter may include with the report any nonprivileged documentary
evidence the mandated reporter possesses relating to the incident.” (Pen. Code, § 11166, subd. (a).)
Plaintiff’s first cause of action (which is not at issue in this demurrer) is based, at least in part, upon the
District’s vicarious liability for its employee-mandated reporters’ failure to make the reports required
under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) (CANRA), particularly
under Penal Code section 11166. (E.g., TAC, ¶¶ 65-73.) The extensive definition of “mandated reporter”
in Penal Code section 11165.7 of those who have the reporting requirement under subdivision (a) of
section 11166, are all individuals, not entities. “CANRA differentiates between mandated reporters like
teachers, who report suspected abuse, and government agencies, who investigate the reports of abuse.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
The statutory framework ‘ “requires persons in positions where abuse is likely to be detected to report
promptly all suspected and known instances of child abuse to authorities for follow-up investigation.” ’
[Citations.]” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 140.) As section
11166 makes clear, “[t]he reporting duties under this section are individual ….” (Pen. Code, § 11166,
subd. (i)(1).)
While mandated reporters are individuals, Penal Code section 11166 also provides some obligations to
entities. Under subdivisions (j) and (k), a county probation or welfare department and a law enforcement
agency have cross-reporting obligations that are separate from reporting obligations of individuals. Penal
Code section 11166 does not, however, impose reporting obligations to the District as distinct from the
obligations of the District’s employees.
“The law is clear that, to prove a violation under section 815.6, a plaintiff must plead the existence of a
specific statutory duty. ‘ “Unless the applicable enactment is alleged in specific terms, a court cannot
determine whether the enactment relied upon was intended to impose an obligatory duty to take official
action to prevent foreseeable injuries or whether it was merely advisory in character.”
[Citation.]’ [Citation.]” (Jacqueline T. v. Alameda County Child Protective Services (2007) 155
Cal.App.4th 456, 471.) Penal Code section 11166 provides mandatory duties to its employees for which
neglect the District may be liable vicariously as is asserted in plaintiff’s other causes of action. However,
the District itself does not have a mandatory duty under CANRA upon which liability under Government
Code section 815.6 can be premised.
Plaintiff has not alleged a mandatory duty of the District upon which liability under Government Code
section 815.6 can be premised. The District’s demurrer to the ninth cause of action will therefore be
sustained. This is a demurrer to the third amended complaint, this issue has been raised since the
demurrer to the original complaint, and plaintiff has not shown how this cause of action can be amended
to state a cause of action based upon section 815.6. The demurrer to this cause of action will be
sustained without leave to amend.
(B) Motion to Strike
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon
terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.”
(Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not
supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The
grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of
which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
The District moves to strike the prayer for attorney fees pursuant to Civil Code section 52 and pursuant
to Title IX.
“Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial,
is liable for each and every offense for the actual damages suffered by any person denied that right and,
in addition, the following: [¶] … [¶]
(3) Attorney’s fees as may be determined by the court.” (Civ. Code, § 52, subd. (b)(3).)
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Plaintiff notes that her claim for attorney fees pursuant to Civil Code section 52 is based upon her claim
under Civil Code section 51.9. (Opposition, at p. 6.) As discussed above, the court will sustain the
District’s demurrer to the seventh cause of action based upon section 51.9. There is therefore no basis
for a claim for attorney fees under section 52 stated in the TAC. The motion to strike the allegations for
attorney fees under section 52 as to the District will be granted without leave to amend.
Similarly, plaintiff bases her claim for attorney fees under Title IX in her claim for liability based upon
failure to discharge a mandatory duty. (Opposition, at pp. 6-7.) As discussed above, the court will sustain
the District’s demurrer to the ninth cause of action based upon Title IX, among other statutes. There is
therefore no basis for a claim for attorney fees under Title IX in the TAC. The motion to strike the
allegations for attorney fees under Title IX will be granted without leave to amend.
(2) Motions to Quash
“If a subpoena requires the attendance of a witness or the production of books, documents, electronically
stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a
deposition, the court, upon motion reasonably made by any person described in subdivision (b), … may
make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those
terms or conditions as the court shall declare, including protective orders. In addition, the court may
make any other order as may be appropriate to protect the person from unreasonable or oppressive
demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., §
1987.1, subd. (a).)
(A) Motion to Quash Subpoena to Committee on Teacher Credentialing
Defendant Harmachis moves to quash or to limit production of documents pursuant to the subpoena to
CTC. Harmachis objects that the subpoena is made without a court order, that the subpoena calls for
information which is confidential by law, that the subpoena is vague, ambiguous, and overbroad as
apparently unlimited in time or subject, and invades Harmachis’s right to privacy.
Harmachis’s first objection is that the documents sought are not permitted to be disclosed without a
court order and the subpoena is insufficient based upon Education Code section 44230.
“The commission shall maintain for public record, and may disclose, only the following information
relating to the credentials, certificates, permits, or other documents that it issues: the document number,
title, term of validity, subjects, authorizations, effective dates, renewal requirements, and restrictions. The
commission may also disclose the last known busi
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1 MORGAN A. STEWART (State Bar No. 209852) mstewart@manlystewart.com 2 SAUL E. WOLF (State Bar No. 244833) swolf@manlystewart.com 3 CRISTINA J. NOLAN (State Bar No. 318495) cnolan@manlystewart.com 4 MANLY STEWART FINALDI 19100 Von Karman Avenue, Suite 800 5 Irvine, California 92612 Telephone: (949) 252-9990 6 Facsimile: (949) 252-9991 7 Attorneys for Plaintiff 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA BARBARA, ANACAPA DIVISION 11 MANLY STEWART FINALDI 12 JANE OB DOE, an individual, Case No. 20CV03946 19100 Von Karman Avenue, Suite 800 13 Plaintiff, Assigned for All Purposes to: Telephone (949) 252-9990 Irvine, California 92612 Hon. Colleen K. Sterne 14 v. Department 5 15 SANTA BARBARA UNIFIED SCHOOL NOTICE OF COURT RULING ON DISTRICT, a California local public entity; DEFENDANT MATEF HARMACHIS' 16 MATEF HARMACHIS, an individual; and MOTION TO QUASH SUBPOENA TO DOES 1 to 100, inclusive, COMMISSION ON TEACHER 17 CREDENTIALING Defendant. 18 Action Filed: November 30, 2020 19 Trial Date: None 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that on April 25, 2022 at 8:30 a.m. in Department 5 of the 22 Anacapa Court House, a Motion to Quash by Defendant Matef Harmachis to Quash Business 23 Records Subpoena of Plaintiff to the Commission on Teacher Credentialing ("Motion"), was 24 scheduled before the Honorable Colleen K. Sterne. Cristina J. Nolan, Esq. of Manly, Stewart & 25 Finaldi appeared on behalf of the Plaintiff via zoom. John Stumreiter of Carpenter, Rothans & 26 Dumont, LLP appeared on behalf of Defendant Matef Harmachis via Zoom. And Marianne 27 Gordon of Tyson and Mendes appeared on behalf of Defendant Santa Barbara Unified School 28 District via zoom. Matt Beasley appeared on behalf of the Office of the Attorney General, 1 NOTICE OF COURT RULING ON DEFENDANT MATEF HARMACHIS' MOTION TO QUASH SUBPOENA TO COMMISSION ON TEACHER CREDENTIALING 1 California Department of Justice via zoom. 2 PLEASE TAKE FURTHER NOTICE the Motion of Defendant Matef Harmachis to 3 quash the business records subpoena of Plaintiff to the Commission on Teacher Credentialing is 4 GRANTED IN PART AND DENIED IN PART. The Commission shall comply with the 5 subpoena and produce documents only to the extent set forth herein on or before May 23, 2022, or 6 such other date as the Plaintiff and the Commission may agree in writing or as otherwise ordered 7 by the Court. 8 Plaintiff was ordered to give notice. Please see Minute Order for the ruling, attached as 9 Exhibit A. 10 11 DATED: May 16, 2022 MANLY STEWART FINALDI MANLY STEWART FINALDI 12 19100 Von Karman Avenue, Suite 800 13 Telephone (949) 252-9990 Irvine, California 92612 By: 14 CRISTINA J. NOLAN Attorneys for Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF COURT RULING ON DEFENDANT MATEF HARMACHIS' MOTION TO QUASH SUBPOENA TO COMMISSION ON TEACHER CREDENTIALING EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 04/25/2022 Time: 10:13 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Clara Sotelo-Martinez Dept: SB Dept 5 Deputy Sheriff: David Allcott Court Reporter: Marie Castro Case No: 20CV03946 Jane Ob Doe vs Santa Barbara Unified School District et al Parties Present: Cristina Nolan Plaintiff’s Counsel (via Zoom) Marianne Gordon Defendant’s Counsel (via Zoom) John J. Stumreiter Defendant’s Counsel (via Zoom) Matthew Beasley Counsel to Non-Party (via Zoom) NATURE OF PROCEEDINGS: Motion: Strike/ Motion: Quash/ Motion: Quash/ Demurrer Defendant’s Counsel, John J. Stumreiter, gives oral argument. Plaintiff’s Counsel, Cristina Nolan, responds. The Court adopts her tentative ruling as follows: RULING: (1) The demurrer of defendant Santa Barbara Unified School District is sustained, without leave to amend, as to the seventh and ninth causes of action of plaintiff’s third amended complaint. (2) The motion of defendant Santa Barbara Unified School District to strike portions of plaintiff’s third amended complaint is granted, without leave to amend, to strike from paragraph 6 of the prayer of the third amended complaint the words “and SBUSD” on page 51, line 6, and “and against SBUSD pursuant to Title IX” on page 51, lines 6 to 7. (3) Defendant Santa Barbara Unified School District shall file and serve its answer to the third amended complaint, as it exists following this ruling on the demurrer and motion to strike, on or before May 10, 2022. (4) The motion of defendant Matef Harmachis to quash the business records subpoena of plaintiff to the Commission on Teacher Credentialing is granted in part and denied in part. The Commission shall comply with the subpoena and produce documents only to the extent set forth herein on or before May 23, 2022, or such other date as the plaintiff and the Commission may agree in writing or as otherwise ordered by the court. Plaintiff shall serve notice of this order on the Commission on or before April 29, 2022. (5) As set forth herein, the motion of defendant Santa Barbara Unified School District to quash the business records subpoena of plaintiff to the Office of the Santa Barbara County District Attorney is denied. The Office of the Santa Barbara County District Attorney shall comply with the subpoena and produce documents, subject to the qualifications set forth herein, on or before May 23, 2022, or such SC-2411 (Revised July 1, 2013) MINUTE ORDER other date as the plaintiff and the SBDA may agree in writing or as otherwise ordered by the court. Plaintiff shall serve notice of this order on the SBDA on or before April 29, 2022. Background: (1) Demurrer and Motion to Strike Procedural History As alleged in plaintiff’s third amended complaint (TAC): Plaintiff Jane OB Doe (Doe or plaintiff) is a pseudonym for the female plaintiff who was a minor at all relevant times in plaintiff’s complaint. (TAC, ¶ 1.) Plaintiff was a student attending Santa Barbara High School (SBHS) within defendant Santa Barbara Unified School District (District). (TAC, ¶ 12.) Defendant Matef Harmachis was a teacher hired by the District to teach history, government, or economics at SBSH. (TAC, ¶ 14.) Harmachis was supervised by District administrators. (TAC, ¶ 15.) Harmachis has an extensive history of disciplinary issues within the District related to inappropriate conduct with students. (TAC, ¶ 17.) District knew or should have known that Harmachis presented a danger to students and needed to be removed from the classroom. (TAC, ¶¶ 17-22. Beginning in 2016 and through 2017, Harmachis sexually abused, harassed, and molested plaintiff on the school premises, including within his SBHS classroom. (TAC, ¶ 36.) This sexual abuse included, but is not limited to, sexual talk and innuendo, biting plaintiff’s ear, hugging plaintiff, and groping plaintiff. (Ibid.) Defendants should have been aware of Harmachis’s wrongful conduct at or about the time it was occurring and took no action to obstruct, inhibit, or stop such continuing conduct, and took no action to help plaintiff. (TAC, ¶ 38.) As a result, plaintiff has experienced multiple mental, emotional, and psychological problems. (TAC, ¶ 40.) On November 30, 2020, plaintiff filed her original complaint in this action asserting 13 causes of action: (1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) negligent failure to warn, train, or educate; (5) negligence per se; (6) intentional infliction of emotional distress; (7) assault; (8) sexual battery (Civ. Code, § 1708.5); (9) sexual harassment (Civ. Code, § 51.9); (10) gender violence (Civ. Code, § 52.4); (11) breach of fiduciary duty; (12) constructive fraud (Civ. Code, § 1573); and (13) public entity liability for failure to perform mandatory duty. On January 21, 2021, District filed its demurrer to the fourth through sixth, ninth, and eleventh through thirteenth causes of action and its motion to strike portions of the complaint. On March 29, 2021, the court heard the District’s demurrer and sustained the demurrer with leave to amend. The court also granted the motion to strike in certain respects with leave to amend. On April 29, 2021, plaintiff filed her FAC asserting nine causes of action: (1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) intentional infliction of emotional distress; (5) assault; (6) sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ. Code, § 51.9); (8) gender violence (Civ. Code, § 52.4); and (9) public entity liability for failure to perform mandatory duty. The first, second, third, and ninth causes of action are asserted against the District only; the fifth, sixth, and eighth causes SC-2411 (Revised July 1, 2013) MINUTE ORDER of action are asserted against Harmachis only; the fourth and seventh causes of action are asserted against both the District and Harmachis. On August 2, 2021, the court sustained the District’s demurrer, with leave to amend, as to the seventh (sexual harassment) and ninth (mandatory duty) causes of action, and granted the District’s motion to strike, with leave to amend, to strike allegations relating to enhanced damages pursuant to Code of Civil Procedure section 340.1, attorney fees pursuant to Civil Code section 52, and Title IX remedies. On September 7, 2021, plaintiff filed her second amended complaint (SAC) asserting nine cause of action: (1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) intentional infliction of emotional distress; (5) assault; (6) sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ. Code, § 51.9); (8) gender violence (Civ. Code, § 52.4); and (9) public entity liability for failure to perform mandatory duty. The first, second, third, and ninth causes of action are asserted against the District only; the fifth, sixth, and eighth causes of action are asserted against Harmachis only; the fourth and seventh causes of action are asserted against both the District and Harmachis. On November 22, 2021, the court sustained Harmachis’s demurrer, with leave to amend, as to the fourth through eighth causes of action of the SAC. On December 7, 2021, plaintiff filed her TAC asserting nine causes of action: (1) negligence; (2) negligent supervision; (3) negligent hiring/ retention; (4) intentional infliction of emotional distress; (5) assault; (6) sexual battery (Civ. Code, § 1708.5); (7) sexual harassment (Civ. Code, § 51.9); (8) gender violence (Civ. Code, § 52.4); and (9) public entity liability for failure to perform mandatory duty. The first, second, third, and ninth causes of action are asserted against the District only; the fifth, sixth, and eighth causes of action are asserted against Harmachis only; the fourth and seventh causes of action are asserted against both the District and Harmachis. The filing of the TAC made District’s demurrer and motion to strike as to the SAC moot. On February 10, 2022, the District filed its demurrer to the seventh and ninth causes of action of the TAC. The District also concurrently filed a motion to strike prayers for attorney fees. The demurrer and motion to strike are opposed by plaintiff. (2) Motions to Quash On November 12, 2021, counsel for plaintiff, attorney Cristina J. Nolan, issued a deposition subpoena to the Custodian of Records of the Commission on Teacher Credentialing (CTC). Plaintiff concurrently served a copy of the subpoena and a notice to consumer on defendant Harmachis. The subpoena requests production of documents described as: “Any and all records and other documents in your possession, custody or control, related to MATEF HARMACHIS [DOB and SSN].” (Stumreiter decl., ¶ 2 & exhibit A.) The subpoena provided for production of documents on December 10, 2021. On November 19, 2021, attorney Nolan issued a deposition subpoena to the Custodian of Records of the Office of the Santa Barbara District Attorney (SBDA). The subpoena requests production of documents described as: “Any and all non-privileged records, in your possession, custody or control, related to JUSTIN ANTHONY SELL [DOB and SSN], including but not limited to transcripts, pleadings, files, materials, documents and any and all jail call transcripts.” (Harrison decl., ¶ 3 & exhibit A.) The documents served on the District includes the subpoena and a notice to consumer addressed to Sell. (Ibid.) The subpoena provided for production of documents on December 17, 2021. SC-2411 (Revised July 1, 2013) MINUTE ORDER On December 8, 2021, Harmachis filed his motion to quash or to limit production of documents from the CTC. The motion is opposed by plaintiff. The proof of service of the motion includes service on deponent CTC. CTC has not filed opposition or any other response to this motion. On December 20, 2021, the District filed its motion to quash or to limit production of documents from the SBDA. The motion is opposed by plaintiff. The proof of service of the motion, concurrently filed on December 20, showed service on plaintiff and defendant Harmachis but not on the SBDA. On March 21, 2022, the court held an initial hearing on these two motions to quash. The court determined that it was inclined to deny Harmachis’s motion to quash in part but ordered the parties to further meet and confer about the means of production. The court continued the hearing on the motion to quash as to the CDC subpoena to allow for this meet and confer process. The court also continued the District’s motion to quash the SBDA subpoena to permit service and, potentially, a response from the SBDA. On March 22, 2022, the District filed proof of service of the papers as to the District’s motion to quash on the SBDA, including notice of this hearing date. The SBDA has not filed any response to the motion to quash. On April 11, 2022, plaintiff and Harmachis filed separate reports regarding their meet and confer efforts. In general, the parties agree that the CDC should determine what documents should be produced, and what redactions should be made, as otherwise consistent with this court’s order. Harmachis also makes additional arguments discussed below. Analysis: (1) Demurrer and Motion to Strike of District (A) Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.) In support of her opposition, plaintiff requests that the court take judicial notice of the court’s minute order of March 29, 2021, ruling on the District’s demurrer and motion to strike as to the FAC. The court will grant this request for judicial notice. (See Evid. Code, § 452, subd. (d)(1).) Plaintiff’s seventh cause of action is for sexual harassment under Civil Code section 51.9. “A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements: SC-2411 (Revised July 1, 2013) MINUTE ORDER “(1) There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons: [¶] … [¶] “(E) Teacher. [¶] … [¶] “(I) A relationship that is substantially similar to any of the above. “(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, 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) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).” (Civ. Code, § 51.9, subd. (a).) The District argues that, as a public agency, it cannot be held directly liable under section 51.9 and that plaintiff has not, and cannot, allege facts sufficient to support vicarious liability against the District. Plaintiff argues that the District can be held directly liable for violation of section 51.9 under Education Code section 201 and under Government Code section 815.6. Education Code section 201 expresses the Legislature’s declaration of purpose and intent in adopting chapter 2 of part 1 of division 1 of title 1 of the Education Code, including: “(a) All pupils have the right to participate fully in the educational process, free from discrimination and harassment. “(b) California's public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity. “(c) Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution.” (Ed. Code, § 201, subds. (a)-(c).) Government Code section 815.6 provides: “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.” As discussed in prior demurer rulings addressing this issue, there are no published cases cited which apply Civil Code section 51.9 to a public school district. As the court noted in ruling on the demurrer to this cause of action in the original complaint: SC-2411 (Revised July 1, 2013) MINUTE ORDER “Section 51.9, subdivision (a)(2) imposes liability where the plaintiff proves that ‘the defendant’ has engaged in specified conduct. Based upon the general definition in the Civil Code of ‘person’— ‘the word person includes a corporation as well as a natural person’ (Civ. Code, § 14, subd. (a))—it has been held that ‘a corporation may be civilly liable for violating section 51.9.’ (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.) While business entities may be directly liable based on this definition, it is a more complicated question whether section 51.9 applies to District for direct liability as a public entity. There is a general rule of statutory construction that ‘the word “person” should not be held to include any political subdivision of the state in the absence of an express indication that such was the legislative intent. This general rule of statutory construction, which is supported by numerous cases, is founded upon the principle that statutory language should not be interpreted to apply to agencies of government, in the absence of a specific expression of legislative intent, where the result of such a construction would be to infringe sovereign governmental powers. [Citations.] Where, however, no impairment of sovereign powers would result, the reason underlying this rule of construction ceases to exist and the Legislature may properly be held to have intended that the statute apply to governmental bodies even though it used general statutory language only.’ (Hoyt v. Board of Civil Service Com’rs of City of Los Angeles (1942) 21 Cal.2d 399, 402.) By contrast to section 51.9, ‘employer’ in the Fair Employment and Housing Act is defined expressly to include ‘the state or any political or civil subdivision of the state, and cities ….’ (Gov. Code, § 12926, subd. (d).) The legislative history of section 51.9 [previously] cited by plaintiff is at best ambiguous, focusing on the ‘professional services’ element rather than the definition of ‘person.’ (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 612 (1993-1994 Reg. Sess.) as amended Jan. 19, 1994, pp. 1-3 ….) … It therefore does not appear that the District, as a public entity, is intended as person to be directly liable under section 51.9.” (Minute Order, filed Mar. 29, 2021, at p. 6.) Neither Education Code sections 200 and 201 nor Government Code section 815.6 provide any basis for applying Civil Code section 51.9 use of “person” to the District. Education Code sections 200 and 201 identify important public goals in the education process and, as the court has previously ruled, plaintiff has stated claims against the District on some legal theories arising out of the allegations of misconduct of Harmachis and the District’s response to that misconduct. Education Code section 262.4 provides that “[t]his chapter may be enforced through a civil action.” The general declarations of policy in Education Code sections 200 and 201 do not, however, provide any basis for applying Civil Code section 51.9 outside of section 51.9’s textual limitations. Similarly, Government Code section 815.6 does not make Civil Code section 51.9 applicable where section 51.9’s text does not by its terms apply to the District. As the FEHA definition makes clear, the Legislature knows how to word a definition to make a public agency fall within a statute’s application. The language of Civil Code section 51.9 does not fit with such a definition and so direct liability under section 51.9. does not apply. With respect to vicarious liability, plaintiff asserts that the District is liable through ratification. (TAC, ¶ 148.) “ ‘As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]’ [Citations.] A principal may be liable when it ratifies an originally unauthorized tort. [Citations.] And generally, the ratification relates back to the time the tortious act occurred.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110–1111.) District distinguishes the holding in C.R. v. Tenet Healthcare Corp. by noting that the entity defendant in that case was a private entity and not a public entity. Neither party provides any authority that addresses SC-2411 (Revised July 1, 2013) MINUTE ORDER this issue specifically. District points to the general proposition that government tort liability depends on specific statutes and that section 51.9 does not expressly provide for governmental tort liability. Plaintiff points to general agency principles that hold the principal liable based upon ratification. (See Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.) As the court has previously identified, the approach most consistent with government tort principles is that implied ratification (as opposed to express ratification by a government body with sufficient authority (see Mott v. Horstmann (1950) 36 Cal.2d 388, 391)) is not a sufficient basis for governmental tort liability. “ ‘Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. [Citations.]’ [Citation.]” (Estate of Stephens (2002) 28 Cal.4th 665, 673.) With respect to private entities, an entity may ratify conduct of an employee that is not otherwise within the course and scope of employment as in C.R. v. Tenet Healthcare Corp. In the present case, statutory liability for injuries by an employee of the public entity is limited as a matter of statutory policy to acts or omissions “within the scope of his employment.” (Gov. Code, § 815.2, subd. (a).) Expanding public agency liability to exceed the scope of employment after the fact by implied ratification is contrary to the policy choice made in the Government Claims Act. The stronger argument in this case is that implied ratification is not sufficient to find public entity liability under section 51.9. (See Garcia ex rel. Marin v. Clovis Unified School Dist. (E.D.Cal. 2009) 627 F.Supp.2d 1187, 1203.) Plaintiff alleges that the former Superintendent of the District was quoted as saying that “We don’t believe Mr. Harmachis should be in a classroom working with kids,” and that the District was made aware of Harmachis’s propensity for sexual misconduct. (TAC, ¶ 153.) These are not allegations of express ratification by someone with sufficient authority. Accordingly, the demurrer to the seventh cause of action will be sustained. The court has previously provided plaintiff with an opportunity to state her best case and plaintiff does not identify any particular way in which a truthful amendment would state this cause of action. The demurrer will be sustained to this cause of action without leave to amend. District also demurs to the ninth cause of action. Plaintiff’s ninth cause of action is for failure to perform a mandatory duty. Plaintiff alleges that a mandatory duty exists by virtue of Government Code sections 820 and 815.2, Civil Code sections 51.9 and 1708, Penal Code sections 11166 and 11167, Education Code sections 200 and 201, and title 20 United States Code section 1681(a). (TAC, ¶¶ 167, 168.) “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.) “To assert liability under Government Code section 815.6 for breach of a mandatory duty, a plaintiff must specifically allege liability in his or her complaint and identify the applicable statute or regulation that imposes the alleged mandatory duty.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349. Government Code section 820, subdivision (a) provides the general rule that “a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Government Code section 815.2, subdivision (a) provides the general rule that “[a] public entity is liable for injury SC-2411 (Revised July 1, 2013) MINUTE ORDER 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.” Civil Code section 1708 provides the general rule of tort law that “[e]very person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” None of these sections provides a mandatory duty to a public entity within the meaning of Government Code section 815.6. As discussed above, the court concludes that Civil Code section 51.9 does not provide a basis for direct liability as to the District. Based on that same reasoning, section 51.9 does not create a mandatory duty that would subject the District to liability under Government Code section 815.6. Education Code sections 200 and 201 provide in full: “It is the policy of the State of California to afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, equal rights, and opportunities in the educational institutions of the state. The purpose of this chapter is to prohibit acts that are contrary to that policy and to provide remedies therefor.” (Ed. Code, § 200.) “(a) All pupils have the right to participate fully in the educational process, free from discrimination and harassment. “(b) California’s public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity. “(c) Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution. “(d) There is an urgent need to prevent and respond to acts of hate violence and bias-related incidents that are occurring at an increasing rate in California's public schools. “(e) There is an urgent need to teach and inform pupils in the public schools about their rights, as guaranteed by the federal and state constitutions, in order to increase pupils’ awareness and understanding of their rights and the rights of others, with the intention of promoting tolerance and sensitivity in public schools and in society as a means of responding to potential harassment and hate violence. “(f) It 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. “(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 1981, et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)), the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. SC-2411 (Revised July 1, 2013) MINUTE ORDER 1400 et seq.), the federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.), the Unruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), and the Fair Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900), Div. 3, Gov. 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.” (Ed. Code, § 201.) The plain language of Education Code sections 200 and 201 consists of statements of policy, not statements of duty. “ ‘An enactment creates a mandatory duty if it requires a public agency to take a particular action. [Citation.] An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency’s exercise of discretion.’ [Citation.]” (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308.) The inclusion of harassment specifically within the policy language strongly implies that prohibitions of harassment may be found in other provisions of chapter 2 of the Education Code. Indeed Education Code section 262.4 provides that chapter 2 “may be enforced through a civil action,” suggesting the existence of a mandatory duty in other provisions of chapter 2. Because the only sections in chapter 2 alleged do not themselves impose any mandatory duty, the ninth cause of action does not allege a claim based upon a mandatory duty under sections 200 and 201. The cited provision in Title IX is: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….” (20 U.S.C. § 1681(a).) Again, although section 1681 is alleged in the ninth cause of action, plaintiff makes no persuasive argument as to its application to create a mandatory duty actionable under the Government Clams Act. Additionally, section 1681 applies only to education programs and activities “receiving Federal financial assistance.” There are no allegations in the TAC that District receives federal financial assistance as to any program involving plaintiff. There are thus no sufficient allegations that section 1681 is applicable to District. Penal Code sections 11166 provides in part: “Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written followup report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident.” (Pen. Code, § 11166, subd. (a).) Plaintiff’s first cause of action (which is not at issue in this demurrer) is based, at least in part, upon the District’s vicarious liability for its employee-mandated reporters’ failure to make the reports required under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) (CANRA), particularly under Penal Code section 11166. (E.g., TAC, ¶¶ 65-73.) The extensive definition of “mandated reporter” in Penal Code section 11165.7 of those who have the reporting requirement under subdivision (a) of section 11166, are all individuals, not entities. “CANRA differentiates between mandated reporters like teachers, who report suspected abuse, and government agencies, who investigate the reports of abuse. SC-2411 (Revised July 1, 2013) MINUTE ORDER The statutory framework ‘ “requires persons in positions where abuse is likely to be detected to report promptly all suspected and known instances of child abuse to authorities for follow-up investigation.” ’ [Citations.]” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 140.) As section 11166 makes clear, “[t]he reporting duties under this section are individual ….” (Pen. Code, § 11166, subd. (i)(1).) While mandated reporters are individuals, Penal Code section 11166 also provides some obligations to entities. Under subdivisions (j) and (k), a county probation or welfare department and a law enforcement agency have cross-reporting obligations that are separate from reporting obligations of individuals. Penal Code section 11166 does not, however, impose reporting obligations to the District as distinct from the obligations of the District’s employees. “The law is clear that, to prove a violation under section 815.6, a plaintiff must plead the existence of a specific statutory duty. ‘ “Unless the applicable enactment is alleged in specific terms, a court cannot determine whether the enactment relied upon was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or whether it was merely advisory in character.” [Citation.]’ [Citation.]” (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 471.) Penal Code section 11166 provides mandatory duties to its employees for which neglect the District may be liable vicariously as is asserted in plaintiff’s other causes of action. However, the District itself does not have a mandatory duty under CANRA upon which liability under Government Code section 815.6 can be premised. Plaintiff has not alleged a mandatory duty of the District upon which liability under Government Code section 815.6 can be premised. The District’s demurrer to the ninth cause of action will therefore be sustained. This is a demurrer to the third amended complaint, this issue has been raised since the demurrer to the original complaint, and plaintiff has not shown how this cause of action can be amended to state a cause of action based upon section 815.6. The demurrer to this cause of action will be sustained without leave to amend. (B) Motion to Strike “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) The District moves to strike the prayer for attorney fees pursuant to Civil Code section 52 and pursuant to Title IX. “Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: [¶] … [¶] (3) Attorney’s fees as may be determined by the court.” (Civ. Code, § 52, subd. (b)(3).) SC-2411 (Revised July 1, 2013) MINUTE ORDER Plaintiff notes that her claim for attorney fees pursuant to Civil Code section 52 is based upon her claim under Civil Code section 51.9. (Opposition, at p. 6.) As discussed above, the court will sustain the District’s demurrer to the seventh cause of action based upon section 51.9. There is therefore no basis for a claim for attorney fees under section 52 stated in the TAC. The motion to strike the allegations for attorney fees under section 52 as to the District will be granted without leave to amend. Similarly, plaintiff bases her claim for attorney fees under Title IX in her claim for liability based upon failure to discharge a mandatory duty. (Opposition, at pp. 6-7.) As discussed above, the court will sustain the District’s demurrer to the ninth cause of action based upon Title IX, among other statutes. There is therefore no basis for a claim for attorney fees under Title IX in the TAC. The motion to strike the allegations for attorney fees under Title IX will be granted without leave to amend. (2) Motions to Quash “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) (A) Motion to Quash Subpoena to Committee on Teacher Credentialing Defendant Harmachis moves to quash or to limit production of documents pursuant to the subpoena to CTC. Harmachis objects that the subpoena is made without a court order, that the subpoena calls for information which is confidential by law, that the subpoena is vague, ambiguous, and overbroad as apparently unlimited in time or subject, and invades Harmachis’s right to privacy. Harmachis’s first objection is that the documents sought are not permitted to be disclosed without a court order and the subpoena is insufficient based upon Education Code section 44230. “The commission shall maintain for public record, and may disclose, only the following information relating to the credentials, certificates, permits, or other documents that it issues: the document number, title, term of validity, subjects, authorizations, effective dates, renewal requirements, and restrictions. The commission may also disclose the last known busi