Preview
1 SPINELLI, DONALD & NOTT
A Professional Corporation
2 ROSS R. NOTT (State Bar No. 172235)
601 University Avenue, Suite 225
3 Sacramento, CA 95825
Telephone: (916) 448-7888
4 Facsimile: (916) 448-6888
5 Attorneys for Defendant
BERKELEY UNIFIED SCHOOL DISTRICT
6
7 IN THE SUPERIOR COURT OF CALIFORNIA
8 IN AND FOR THE COUNTY OF ALAMEDA
9
10 JANE BWN DOE, an individual, Case No.: 22CV006012
11 Plaintiffs,
vs. [FEES EXEMPT PURSUANT TO
12 GOVERNMENT CODE SECTION 6103]
DOE 1, a California local public entity; DOE
13 2, an individual; and DOES 3-100, inclusive. DEFENDANT BERKELEY UNIFIED
SCHOOL DISTRICT’S MEMORANDUM
14 Defendant. OF POINTS AND AUTHORITINES IN
SUPPORT OF DEMURRER TO
15 PLAINTIFF’S COMPLAINT
16 DATE: June 17, 2022
TIME: 2:00 p.m.
17 DEPT: 520
18 Reservation No. A-06012-002
19
Complaint Filed: January 25, 2022
20 Assigned for All Purposes: Hon. Julia Spain
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 I. INTRODUCTION
2 Plaintiff’s Complaint includes very few actual fact-based allegations. Instead, Plaintiff opts
3 to use conclusions of law which are insufficient to meet her obligation of appropriate pleading on
4 demurrer.
5 In addition, Plaintiff includes several causes of action that are not appropriate to a public
6 entity defendant such as Doe 1 aka Berkeley Unified School District (“BUSD”). For example,
7 Plaintiff relies upon general duties to apply to public entities, but the Government Code makes clear
8 that a public entity is liable only as provided by statute. Plaintiff’s claims of negligence, “failure to
9 educate,” intentional infliction of emotional distress, fiduciary duty or constructive fraud are not
10 claims that can be properly stated against a California public school district.
11 Moreover, Plaintiff attempts to charge BUSD with vicarious liability of a teacher who
12 allegedly sexually harassed and/or abused Plaintiff. Such a position flies in the face of longstanding
13 precedent that a California public school district is not vicariously liable for the sexual misconduct
14 of a teacher.
15 II. SUMMARY OF COMPLAINT FOR DAMAGES1
16 Plaintiff’s Complaint was filed on January 25, 2022. Plaintiff alleges that she attended
17 Berkeley High School beginning in 1997. (Compl., ¶6.) She alleges generally that while she
18 attended BHS, a teacher sexually harassed, assaulted and abused her. (Ibid.) She alleges on
19 “information and belief” that BUSD “knew or had reason to know” of the teacher’s sexual
20 misconduct with minors at school. (Compl., ¶30.) She alleges that in the classroom, the male
21 teacher would press his genitals against her, that he would be close to her during class time, that he
22 would place himself behind female students to grope them, that he would focus on females such as
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25 1
The Complaint is rife with boilerplate, conclusory allegations that cannot be accepted as factual
allegations on demurrer – “For the purpose of testing the sufficiency of the cause of action, the
26 demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but
not contentions, deductions or conclusions of fact or law).” (Weil & Brown, Cal. Prac. Guide Civ.
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Pro. Before Trial (TRG 2021) §7.43.) Here, only Plaintiff’s properly alleged “facts” are
28 summarized.
SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 Plaintiff, communicate one-on-one with minors, rub her back, hug or touch Plaintiff inappropriately
2 in “open and obvious locations on campus.” (Compl. ¶25, 28.)
3 To demonstrate the conclusory, implausible and unsupported allegations, it is notable that
4 Plaintiff alleges in conclusory fashion and on information and belief that the teacher was a known
5 risk for acting sexually inappropriately with minor females to the district and administrators at the
6 high school. (Compl. ¶33.) This is conclusory, unsupported pleading. Plaintiff even goes as far as
7 to allege in a bizarre fashion that the high school was a sexual abuse breeding ground for teachers
8 and staff. (Compl., ¶35.) Of course, Plaintiff cannot name any such perpetrator, if they exist, nor
9 can she connect any such person to her allegations. (Compl. ¶37.) Last, Plaintiff alleges that the
10 teacher was moved to different schools throughout the District describing the conduct as “passing
11 the trash.” (See Compl., ¶4, 34.) Not only is this allegation patently untrue, but Plaintiff knows
12 that it is untrue – note her contrary allegation that Bissell taught at one campus – Berkeley High
13 School – from 1997 to 2021. (Compl., ¶26.)
14 III. BUSD HAS SUFFICIENTLY MET AND CONFERRED WITH PLAINTIFF
15 REGARDING THIS DEMURRER
Pursuant to Code of Civil Procedure §430.41, counsel for BUSD and Plaintiff sufficiently
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met and conferred regarding the issues set forth in this motion. (Decl. of Austin Turner, ¶2-6;
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Exhibit A thereto.) This included sharing of written correspondence as well as a teleconference
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between counsel. No resolution was achieved.
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20 IV. DEMURRER SHOULD BE SUSTAINED TO SEVERAL CAUSES OF
ACTION AGAINST BUSD
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A demurrer may be utilized where a complaint is either incomplete or fails to allege facts
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sufficient to support a cause of action. (Donabedian v. Mercury Insurance Company (2004) 116
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Cal.App.4th 968, 994.) A general demurrer is appropriate where facts have not been alleged
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sufficient to constitute a cause of action. (Code Civ. Proc. §430.10(e).) For purposes of testing the
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sufficiency of a cause of action as alleged in a pleading, a demurrer admits the truth of all material
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facts properly pled, but does not consider contentions, deductions or conclusions of fact or law
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stated in the pleading. (Aubrey v. Tri-City Hospital District (1992) 2 Cal.4th 962, 966-967.)
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 With these limits in mind, Defendant BUSD hereby offers the following general demurrer to
2 Plaintiff's Complaint and the specific cause of action set forth herein.
3 A. The First COA for Negligence Fails Because There is No Statutory basis for
4 This Claim Against BUSD
Under the Government Claims Act, there is no common law tort liability on the part of
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public entities such as BUSD. Rather, public entity liability must be based on a mandatory duty set
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forth in statute. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897; Gov. Code §815(a).)2
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Here, Plaintiff’s First Cause of Action for Negligence is a common law claim that is not
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applicable to BUSD. The demurrer should be sustained on that basis.
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Moreover, BUSD is not vicariously liable for the teacher’s alleged sexual abuse of Plaintiff.
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(John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-453.)
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This cause of action does not identify either an employee of BUSD acting in the course and
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scope of their employment whose negligence can be vicariously transferred to the District for
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purposes of plaintiff's sexual abuse allegations. (Gov. Code §820, §815.2.) Plaintiff's first cause of
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action for negligence is fatally deficient due to a lack of any factual allegations through which
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BUSD may be liable and negligence for any of its personnel and the Demurrer should be sustained.
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17 B. The Fourth COA for Failure to Warn/Educate Claim Fails Because There
is No Statutory Basis for this Claim Against BUSD
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Plaintiff cannot bring a private cause of action against a public school district for failure to
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educate. (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 825.) School
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districts do not have any duty to teach any safety-related curricula and there is no basis for liability
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for a district’s failure to do so. (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d
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792, 804-805.) Further, all liability against public entities must be based on statute. (Gov. Code
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§815; Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.)
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Here, Plaintiff has failed to identify any statute imparting a mandatory duty to educate or
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train on BUSD. In fact, Plaintiff cannot do so as there is not currently a statute mandating
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Plaintiff obliquely alleges a CANRA violation in this COA, but BUSD is not a mandated reporter
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subject to that statute. (See Penal Code §11165.7 – only individuals in specified occupations are
28 potential mandated reporters.)
SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 curriculum on either sexual abuse or sexual assault awareness and prevention, much less any such
2 obligation during the 1997 time period when Plaintiff claims to have been injured. Thus, the
3 demurrer to this claim should be sustained without leave to amend.
4 Plaintiff’s Complaint attributes a duty of BUSD to educate minors and/or their parents
5 regarding sexual abuse that exists exclusively in the private sector and then only in limited
6 circumstances not pled or present here. (See Compl., ¶133-134; Juarez v. Boy Scouts of America,
7 Inc. (2000) 81 Cal.App.4th 377.) Juarez involved a Boy Scout troop that failed to implement a
8 national "Youth Protection Program" which was designed to educate adult volunteers, parents and
9 scouts how to detect and prevent sexual molestation by volunteers associated with scouting. (Juarez
10 v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 398.) The appellate court held that the
11 failure of the local troop to use information, documentation and educational materials developed at
12 the national level demonstrated a potential breach of a general duty that the troop owed to plaintiff
13 to keep him safe. (Id. at 406.) Further, Juarez emphasized: “[T]he reach of this opinion is only
14 intended to extend as far as the record before us today.” (Id. at 409) California court since Juarez
15 has extended the duty to educate, train or warn about sexual abuse to any person or entity other than
16 the Boy Scouts of America, and certainly not a public school district which is subject to liability
17 only as the Government Code permits. The extension of that duty is contrary to law.
18 Even cases involving private entities have distinguished the Juarez holding regarding
19 educating participants on the potential risks associated with sexual abuse. (Doe v. United States
20 Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1139.) In Doe, plaintiff argued that US Soccer
21 and a local entity had a duty to adopt and implemented a "sexual abuse education program" for
22 players, parents, adult employees and team volunteers. (Id. at 1138-1139.) The appellate court
23 rejected any duty to develop let alone implement a "sexual abuse education program" distinguishing
24 the Juarez opinion noting that an already developed comprehensive program that was simply not
25 used could demonstrate existence of a duty, but there was no duty to develop and implement a
26 sexual abuse program from the beginning even by a private entity. (Id. at 1139.)
27 The general duty analysis used in the Juarez case in the context of a private entity is
28 applicable only in the Juarez case, is not applicable to other private entities, and is inapposite here
SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 because, unlike a local scout troop, a public-school district’s liability is defined by legislative
2 enactment rather than any general duty analysis. As there is no legislative enactment requiring the
3 training that Plaintiff seeks to impose on BUSD in this case, the demurrer should be sustained
4 without leave to amend.
5 C. The Fifth COA for IIED Should be Dismissed as to BUSD
6 Under the Government Claims Act, there is no common law tort liability on the part of
7 public entities in California. Rather, public entity liability must be based on statute. (Guzman v.
8 County of Monterey (2009) 46 Cal.4th 887, 897; Gov. Code §815(a).) Furthermore, even assuming
9 there is some connection between the teacher and BUSD, the school district cannot be held
10 vicariously liable for alleged criminal conduct of the teacher. (John R. v. Oakland Unified School
11 District (1989) 48 Cal.3d 438, 447-453.) Governmental or public entity liability is limited to
12 exceptions specifically set forth by statute. (Wright v. State of California (2004) 122 Cal.App.4th
13 659, 671-672.) There is no statute allowing an intentional infliction of emotional distress cause of
14 action to exist against a public entity.
15 Here, Plaintiff alleges that Defendant is liable for intentional infliction of emotional distress
16 for outrageous and extreme conduct by “tolerating” the teacher to groom students, allowing the
17 teacher to remain in his position in spite of dangerous propensities for sexual misconduct, and
18 “moving him to other school locations.” Notwithstanding that fact that none of this actually
19 occurred, all of these allegations are conclusory at best. (See Compl., ¶¶147 – 148, 150, 153.)
20 Nowhere in any of the allegations under the IIED cause of action is there anything factual. Instead,
21 there are only conclusory allegations, most of which do not apply to the circumstances of this
22 matter.
23 Moreover, and more importantly, IIED is not a statutorily mandated claim that can be made
24 against a public entity.
25 The demurrer to the Fifth Cause of Action for IIED should be sustained without leave to
26 amend as to BUSD.
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 D. The Sixth COA for Sexual Harassment (Civil Code §51.9) Should be
2 Dismissed as to BUSD
Civ. Code §51.9 provides that a person is liable for sexual harassment where plaintiff proves
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there is a business, service or professional relationship between the plaintiff and defendant,
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including where the defendant is a “teacher.” (Civ. Code §51.9(a)(1)(e).) A defendant is liable for
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sexual advancements, solicitations, sexual requests, demands for sexual compliance or engaging in
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verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender which is
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unwelcome and pervasive or severe. (Civ. Code §51.9(a)(2).)
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Here, Plaintiff’s Sixth COA for sexual harassment is invalid for several reasons. First, she
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has not alleged compliance with the Government Claims Act requirements. (Compl., ¶10; Gov.
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Code §905.) A claim seeking damages under Civ. Code §52, including Civ. Code §51.9 requires a
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Government Claim to be timely filed. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 763-
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764.) To this end, Plaintiff’s Sixth COA for Civ. Code §51.9 is prohibited for failure to file
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Government Claim form with BUSD.
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Here, given her allegation that she was sexually harassed by BISSELL, no public entity
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employing him, including BUSD, would be vicariously liable for that conduct. (John R. v. Oakland
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Unified School District (1989) 48 Cal.3d 438, 447-449 – School district cannot be vicariously liable
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for conduct of teacher who allegedly sexually molested a student.) Even where the “teacher” is
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engaged in conduct that is similar to normal job duties, if they are committing sexual abuse, that
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does not arise out of the employment duties. (Id. at 447-448.) In short, BUSD is not vicariously
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liable for his alleged sexual harassment of Plaintiff.
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Last, Civil Code section 51.9 (as it existed at the time of BISSELL’s alleged conduct)
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required a verified pleading. (Civ. Code §51.9(d) (1996).) Plaintiff’s Complaint is not verified.
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This presents a defect in Plaintiff’s pleading subject to demurrer. (People v. Birch Securities Co.
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(1948) 86 Cal.App.2d 703, 707-708.)
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For these reasons, demurrer to this claim should be sustained as to BUSD without leave to
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amend.
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 E. The Seventh COA for Sexual Abuse and Harassment in the Educational
2 Environment does not apply to BUSD
In this claim, Plaintiff alleges that BUSD violated Ed. Code §220 because she was sexually
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harassed to the point that she was deprived of equal access to educational benefits and
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opportunities. (Compl., ¶173.) This cause of action fails for several reasons.
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First, the claim, as offered, does not set forth any valid causes of action against BUSD
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because there is no mandatory duty set forth in Ed. Code §220 and Plaintiff has not complied with
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the Government Claims Act to present such a claim.
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Education Code §220 states:
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10 “No person shall be subjected to discrimination on the basis of . . . gender
. . . or any other characteristic as contained in the definition of hate crimes
11 set forth in section 422.55 of the Penal Code . . . and any program or
activity conducted by an educational institution that receives, or benefits
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from, state financial assistance, or enrolls pupils who receive state student
13 financial aid.”
The elements of an Education Code §220 claim include that Plaintiff suffered severe, pervasive and
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offensive harassment which effectively deprived them of the right of equal access to educational
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benefits, that the school district had actual knowledge of that harassment, and that the school
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district acted with deliberate indifference in the face of such knowledge. (Donovan v. Poway
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Unified School District (2008) 167 Cal.App.4th 567, 601-604.)
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Here, and as a second reason to sustain the demurrer, Plaintiff does not factually allege that
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she was deprived of any educational opportunity. (See Compl., ¶¶172-176.)
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Third, an Education Code §220 cause of action requires demonstration of exhaustion of
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administrative remedies requiring a report to a Local Educational Agency be submitted,
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investigated and decided prior to resorting to the courts for intervention or money damages. (Id.
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603-604.) That complaint of discrimination must be filed with the Local Education Agency no later
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than six months from the date of the alleged discrimination or the date that the complainant first
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obtained knowledge of the facts of the alleged discrimination. (Id. at 604, citing Cal. Code. Regs.5,
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§4630(b).) Plaintiff has not pled exhaustion of administrative remedies to pursue a claim under
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 Education Code §220. She never initiated, let alone exhausted, any administrative process
2 necessary to support this cause of action.
3 Last, BUSD is not liable for the conduct of BISSELL because the conduct alleged, sexual
4 abuse, would not be subject to vicarious liability if he were alleged to be an employee of the BUSD.
5 (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-449.)
6 For these reasons, demurrer to this claim should be sustained as to BUSD without leave to
7 amend.
8 F. The Eighth COA for Fiduciary Duty and Ninth COA for Constructive Fraud
9 Require a Fiduciary Relationship that did not Exist Between Plaintiff and
BUSD
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These claims are barred by Government Code §815(a). (Lopez v. So. Cal. Rapid Transit
11
Distr. (1985) 40 Cal.3d 780, 795.) They are not based on any statute allowing such recovery from
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a public entity.
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Furthermore, if the Government Code permitted these claims against a public entity, each
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claim requires the existence of a fiduciary relationship between Plaintiff, a former student of BUSD
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and the district.
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Under California law, the elements of a claim for breach of fiduciary duty are: (1) the
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existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that
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breach. (Amtower v. Photon Dynamics, Inc., (2008) 158 Cal.App.4th 1582, 1599.) Likewise, a
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constructive fraud claim on Civil Code section 1573 also requires a fiduciary relationship.
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(Crocker-Anglo National Bank v. Kuchman (1964) 224 Cal.App.2d 490, 494).
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In order to be charged with a fiduciary obligation, a person must either knowingly undertake
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to act on behalf and for the benefit of another, or enter into a relationship which imposes that
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undertaking as a matter of law. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal.
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App. 4th 226, 246 (Ct. App. 2007).) Fiduciary relationships arise only in limited technical or legal
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relationships. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631-
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632.) “Traditional examples of fiduciary relationships in the commercial context include
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trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 adventurers, and agent/principal.” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 30.)
2 Inherent in a fiduciary relationship is the “duty of undivided loyalty the fiduciary owes to its
3 beneficiary.” (Id.) Where circumstances exist between two parties that are inconsistent with the
4 existence of a fiduciary duty, none will be found. (Oakland Raiders v. National Football League,
5 supra, 131 Cal.App.4th at 632-633.)
6 Here, the legal relationship between BUSD and Plaintiff was that of public school district
7 and student attending the public school district. That relationship is inconsistent with fiduciary
8 obligations – if a school district had fiduciary obligation owing to students, it would have a duty of
9 undivided loyalty to each student. Any time a student needed to be disciplined, received a bad
10 grade from a teacher resulting in a challenge, or had some conflict with another student within the
11 district, the district would breach its duty of undivided loyalty by investigating or questioning the
12 student’s claim or not supporting the claim. The relationship between Plaintiff and BUSD does not
13 fit the criteria of fiduciary duty.
14 As there is no fiduciary relationship between Plaintiff and BUSD, the Breach of Fiduciary
15 Duty and Constructive Fraud causes of action cannot exist. The demurrer to those causes of action
16 should sustained without leave to amend.
17 V. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO
18 AMEND
A trial court has discretion to grant leave to amend after sustaining a demurrer. However,
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that is only the case where a plaintiff can articulate a reasonable possibility that a defect can be
20
cured by amendment. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) The
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"onus" is on the plaintiff to articulate the specific ways that a cure in a pleading can be corrected,
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and absent the plaintiff meeting that burden, the trial court can provide leave to amend "only if a
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potentially effective amendment is both apparent and consistent with the plaintiff's theory of the
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case." (Id. quoting CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) A
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trial court does not abuse its discretion in denying a plaintiff leave to amend their complaint
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following demurrer where the plaintiff cannot identify a logical, cogent way in which it can be
27
amended and where the ability to amend is not apparent on the face the pleading. (Id. at 1145.)
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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1 Here, each of the grounds for demurrer should be sustained. Those grounds pose legal,
2 rather than factual, hurdles to recovery - legal duty, whether BUSD is a proper defendant to such
3 claims and whether Plaintiff complied with administrative requirements. For these reasons, each
4 cause of action subject to demurrer here, and to which the demurrer is sustained, should be without
5 leave to amend. It is Defendant's intent to pare the claims down to those that are legally viable so
6 that the parties can focus their discovery efforts appropriately. The remaining causes of action will
7 be dealt with via dispositive motion. Sustaining the demurrer without leave to amend will provide
8 efficiency to the parties and to the Court.
9 VI. CONCLUSION
10 Berkeley Unified School District respectfully requests that the Court sustain its demurrer
11 without leave to amend. For the reasons set forth herein, the bulk of Plaintiff’s claims against the
12 District attempts to apply general duties against a public entity despite the government code’s clear
13 mandate that only statutorily based claims can be made against Berkeley Unified School District.
14 Moreover, Plaintiff’s causes of action also attempt to assert vicarious liability on the part of the
15 District for the alleged misconduct of its former teacher. This violates the John R. holding that
16 public school districts are not vicariously responsible for sexual misconduct of teachers. Last,
17 Plaintiff’s Complaint contains boilerplate allegations which are not factual. The conclusory nature
18 of the allegations prohibits any reasonable finding of an appropriately pled cause of action against
19 Berkeley Unified School District. The Demurrer should be sustained without leave to amend.
20
Dated: April 20, 2022 SPINELLI, DONALD & NOTT
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22 By:
ROSS R. NOTT
23 Attorneys for Defendant
BERKELEY UNIFIED SCHOOL
24 DISTRICT
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SPINELLI, DONALD
& NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint
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Preview
1 SPINELLI, DONALD & NOTT A Professional Corporation 2 ROSS R. NOTT (State Bar No. 172235) 601 University Avenue, Suite 225 3 Sacramento, CA 95825 Telephone: (916) 448-7888 4 Facsimile: (916) 448-6888 5 Attorneys for Defendant BERKELEY UNIFIED SCHOOL DISTRICT 6 7 IN THE SUPERIOR COURT OF CALIFORNIA 8 IN AND FOR THE COUNTY OF ALAMEDA 9 10 JANE BWN DOE, an individual, Case No.: 22CV006012 11 Plaintiffs, vs. [FEES EXEMPT PURSUANT TO 12 GOVERNMENT CODE SECTION 6103] DOE 1, a California local public entity; DOE 13 2, an individual; and DOES 3-100, inclusive. DEFENDANT BERKELEY UNIFIED SCHOOL DISTRICT’S MEMORANDUM 14 Defendant. OF POINTS AND AUTHORITINES IN SUPPORT OF DEMURRER TO 15 PLAINTIFF’S COMPLAINT 16 DATE: June 17, 2022 TIME: 2:00 p.m. 17 DEPT: 520 18 Reservation No. A-06012-002 19 Complaint Filed: January 25, 2022 20 Assigned for All Purposes: Hon. Julia Spain 21 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 0 1 I. INTRODUCTION 2 Plaintiff’s Complaint includes very few actual fact-based allegations. Instead, Plaintiff opts 3 to use conclusions of law which are insufficient to meet her obligation of appropriate pleading on 4 demurrer. 5 In addition, Plaintiff includes several causes of action that are not appropriate to a public 6 entity defendant such as Doe 1 aka Berkeley Unified School District (“BUSD”). For example, 7 Plaintiff relies upon general duties to apply to public entities, but the Government Code makes clear 8 that a public entity is liable only as provided by statute. Plaintiff’s claims of negligence, “failure to 9 educate,” intentional infliction of emotional distress, fiduciary duty or constructive fraud are not 10 claims that can be properly stated against a California public school district. 11 Moreover, Plaintiff attempts to charge BUSD with vicarious liability of a teacher who 12 allegedly sexually harassed and/or abused Plaintiff. Such a position flies in the face of longstanding 13 precedent that a California public school district is not vicariously liable for the sexual misconduct 14 of a teacher. 15 II. SUMMARY OF COMPLAINT FOR DAMAGES1 16 Plaintiff’s Complaint was filed on January 25, 2022. Plaintiff alleges that she attended 17 Berkeley High School beginning in 1997. (Compl., ¶6.) She alleges generally that while she 18 attended BHS, a teacher sexually harassed, assaulted and abused her. (Ibid.) She alleges on 19 “information and belief” that BUSD “knew or had reason to know” of the teacher’s sexual 20 misconduct with minors at school. (Compl., ¶30.) She alleges that in the classroom, the male 21 teacher would press his genitals against her, that he would be close to her during class time, that he 22 would place himself behind female students to grope them, that he would focus on females such as 23 /// 24 25 1 The Complaint is rife with boilerplate, conclusory allegations that cannot be accepted as factual allegations on demurrer – “For the purpose of testing the sufficiency of the cause of action, the 26 demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law).” (Weil & Brown, Cal. Prac. Guide Civ. 27 Pro. Before Trial (TRG 2021) §7.43.) Here, only Plaintiff’s properly alleged “facts” are 28 summarized. SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 1 1 Plaintiff, communicate one-on-one with minors, rub her back, hug or touch Plaintiff inappropriately 2 in “open and obvious locations on campus.” (Compl. ¶25, 28.) 3 To demonstrate the conclusory, implausible and unsupported allegations, it is notable that 4 Plaintiff alleges in conclusory fashion and on information and belief that the teacher was a known 5 risk for acting sexually inappropriately with minor females to the district and administrators at the 6 high school. (Compl. ¶33.) This is conclusory, unsupported pleading. Plaintiff even goes as far as 7 to allege in a bizarre fashion that the high school was a sexual abuse breeding ground for teachers 8 and staff. (Compl., ¶35.) Of course, Plaintiff cannot name any such perpetrator, if they exist, nor 9 can she connect any such person to her allegations. (Compl. ¶37.) Last, Plaintiff alleges that the 10 teacher was moved to different schools throughout the District describing the conduct as “passing 11 the trash.” (See Compl., ¶4, 34.) Not only is this allegation patently untrue, but Plaintiff knows 12 that it is untrue – note her contrary allegation that Bissell taught at one campus – Berkeley High 13 School – from 1997 to 2021. (Compl., ¶26.) 14 III. BUSD HAS SUFFICIENTLY MET AND CONFERRED WITH PLAINTIFF 15 REGARDING THIS DEMURRER Pursuant to Code of Civil Procedure §430.41, counsel for BUSD and Plaintiff sufficiently 16 met and conferred regarding the issues set forth in this motion. (Decl. of Austin Turner, ¶2-6; 17 Exhibit A thereto.) This included sharing of written correspondence as well as a teleconference 18 between counsel. No resolution was achieved. 19 20 IV. DEMURRER SHOULD BE SUSTAINED TO SEVERAL CAUSES OF ACTION AGAINST BUSD 21 A demurrer may be utilized where a complaint is either incomplete or fails to allege facts 22 sufficient to support a cause of action. (Donabedian v. Mercury Insurance Company (2004) 116 23 Cal.App.4th 968, 994.) A general demurrer is appropriate where facts have not been alleged 24 sufficient to constitute a cause of action. (Code Civ. Proc. §430.10(e).) For purposes of testing the 25 sufficiency of a cause of action as alleged in a pleading, a demurrer admits the truth of all material 26 facts properly pled, but does not consider contentions, deductions or conclusions of fact or law 27 stated in the pleading. (Aubrey v. Tri-City Hospital District (1992) 2 Cal.4th 962, 966-967.) 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 2 1 With these limits in mind, Defendant BUSD hereby offers the following general demurrer to 2 Plaintiff's Complaint and the specific cause of action set forth herein. 3 A. The First COA for Negligence Fails Because There is No Statutory basis for 4 This Claim Against BUSD Under the Government Claims Act, there is no common law tort liability on the part of 5 public entities such as BUSD. Rather, public entity liability must be based on a mandatory duty set 6 forth in statute. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897; Gov. Code §815(a).)2 7 Here, Plaintiff’s First Cause of Action for Negligence is a common law claim that is not 8 applicable to BUSD. The demurrer should be sustained on that basis. 9 Moreover, BUSD is not vicariously liable for the teacher’s alleged sexual abuse of Plaintiff. 10 (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-453.) 11 This cause of action does not identify either an employee of BUSD acting in the course and 12 scope of their employment whose negligence can be vicariously transferred to the District for 13 purposes of plaintiff's sexual abuse allegations. (Gov. Code §820, §815.2.) Plaintiff's first cause of 14 action for negligence is fatally deficient due to a lack of any factual allegations through which 15 BUSD may be liable and negligence for any of its personnel and the Demurrer should be sustained. 16 17 B. The Fourth COA for Failure to Warn/Educate Claim Fails Because There is No Statutory Basis for this Claim Against BUSD 18 Plaintiff cannot bring a private cause of action against a public school district for failure to 19 educate. (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 825.) School 20 districts do not have any duty to teach any safety-related curricula and there is no basis for liability 21 for a district’s failure to do so. (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 22 792, 804-805.) Further, all liability against public entities must be based on statute. (Gov. Code 23 §815; Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) 24 Here, Plaintiff has failed to identify any statute imparting a mandatory duty to educate or 25 train on BUSD. In fact, Plaintiff cannot do so as there is not currently a statute mandating 26 2 Plaintiff obliquely alleges a CANRA violation in this COA, but BUSD is not a mandated reporter 27 subject to that statute. (See Penal Code §11165.7 – only individuals in specified occupations are 28 potential mandated reporters.) SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 3 1 curriculum on either sexual abuse or sexual assault awareness and prevention, much less any such 2 obligation during the 1997 time period when Plaintiff claims to have been injured. Thus, the 3 demurrer to this claim should be sustained without leave to amend. 4 Plaintiff’s Complaint attributes a duty of BUSD to educate minors and/or their parents 5 regarding sexual abuse that exists exclusively in the private sector and then only in limited 6 circumstances not pled or present here. (See Compl., ¶133-134; Juarez v. Boy Scouts of America, 7 Inc. (2000) 81 Cal.App.4th 377.) Juarez involved a Boy Scout troop that failed to implement a 8 national "Youth Protection Program" which was designed to educate adult volunteers, parents and 9 scouts how to detect and prevent sexual molestation by volunteers associated with scouting. (Juarez 10 v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 398.) The appellate court held that the 11 failure of the local troop to use information, documentation and educational materials developed at 12 the national level demonstrated a potential breach of a general duty that the troop owed to plaintiff 13 to keep him safe. (Id. at 406.) Further, Juarez emphasized: “[T]he reach of this opinion is only 14 intended to extend as far as the record before us today.” (Id. at 409) California court since Juarez 15 has extended the duty to educate, train or warn about sexual abuse to any person or entity other than 16 the Boy Scouts of America, and certainly not a public school district which is subject to liability 17 only as the Government Code permits. The extension of that duty is contrary to law. 18 Even cases involving private entities have distinguished the Juarez holding regarding 19 educating participants on the potential risks associated with sexual abuse. (Doe v. United States 20 Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1139.) In Doe, plaintiff argued that US Soccer 21 and a local entity had a duty to adopt and implemented a "sexual abuse education program" for 22 players, parents, adult employees and team volunteers. (Id. at 1138-1139.) The appellate court 23 rejected any duty to develop let alone implement a "sexual abuse education program" distinguishing 24 the Juarez opinion noting that an already developed comprehensive program that was simply not 25 used could demonstrate existence of a duty, but there was no duty to develop and implement a 26 sexual abuse program from the beginning even by a private entity. (Id. at 1139.) 27 The general duty analysis used in the Juarez case in the context of a private entity is 28 applicable only in the Juarez case, is not applicable to other private entities, and is inapposite here SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 4 1 because, unlike a local scout troop, a public-school district’s liability is defined by legislative 2 enactment rather than any general duty analysis. As there is no legislative enactment requiring the 3 training that Plaintiff seeks to impose on BUSD in this case, the demurrer should be sustained 4 without leave to amend. 5 C. The Fifth COA for IIED Should be Dismissed as to BUSD 6 Under the Government Claims Act, there is no common law tort liability on the part of 7 public entities in California. Rather, public entity liability must be based on statute. (Guzman v. 8 County of Monterey (2009) 46 Cal.4th 887, 897; Gov. Code §815(a).) Furthermore, even assuming 9 there is some connection between the teacher and BUSD, the school district cannot be held 10 vicariously liable for alleged criminal conduct of the teacher. (John R. v. Oakland Unified School 11 District (1989) 48 Cal.3d 438, 447-453.) Governmental or public entity liability is limited to 12 exceptions specifically set forth by statute. (Wright v. State of California (2004) 122 Cal.App.4th 13 659, 671-672.) There is no statute allowing an intentional infliction of emotional distress cause of 14 action to exist against a public entity. 15 Here, Plaintiff alleges that Defendant is liable for intentional infliction of emotional distress 16 for outrageous and extreme conduct by “tolerating” the teacher to groom students, allowing the 17 teacher to remain in his position in spite of dangerous propensities for sexual misconduct, and 18 “moving him to other school locations.” Notwithstanding that fact that none of this actually 19 occurred, all of these allegations are conclusory at best. (See Compl., ¶¶147 – 148, 150, 153.) 20 Nowhere in any of the allegations under the IIED cause of action is there anything factual. Instead, 21 there are only conclusory allegations, most of which do not apply to the circumstances of this 22 matter. 23 Moreover, and more importantly, IIED is not a statutorily mandated claim that can be made 24 against a public entity. 25 The demurrer to the Fifth Cause of Action for IIED should be sustained without leave to 26 amend as to BUSD. 27 /// 28 /// SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 5 1 D. The Sixth COA for Sexual Harassment (Civil Code §51.9) Should be 2 Dismissed as to BUSD Civ. Code §51.9 provides that a person is liable for sexual harassment where plaintiff proves 3 there is a business, service or professional relationship between the plaintiff and defendant, 4 including where the defendant is a “teacher.” (Civ. Code §51.9(a)(1)(e).) A defendant is liable for 5 sexual advancements, solicitations, sexual requests, demands for sexual compliance or engaging in 6 verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender which is 7 unwelcome and pervasive or severe. (Civ. Code §51.9(a)(2).) 8 Here, Plaintiff’s Sixth COA for sexual harassment is invalid for several reasons. First, she 9 has not alleged compliance with the Government Claims Act requirements. (Compl., ¶10; Gov. 10 Code §905.) A claim seeking damages under Civ. Code §52, including Civ. Code §51.9 requires a 11 Government Claim to be timely filed. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 763- 12 764.) To this end, Plaintiff’s Sixth COA for Civ. Code §51.9 is prohibited for failure to file 13 Government Claim form with BUSD. 14 Here, given her allegation that she was sexually harassed by BISSELL, no public entity 15 employing him, including BUSD, would be vicariously liable for that conduct. (John R. v. Oakland 16 Unified School District (1989) 48 Cal.3d 438, 447-449 – School district cannot be vicariously liable 17 for conduct of teacher who allegedly sexually molested a student.) Even where the “teacher” is 18 engaged in conduct that is similar to normal job duties, if they are committing sexual abuse, that 19 does not arise out of the employment duties. (Id. at 447-448.) In short, BUSD is not vicariously 20 liable for his alleged sexual harassment of Plaintiff. 21 Last, Civil Code section 51.9 (as it existed at the time of BISSELL’s alleged conduct) 22 required a verified pleading. (Civ. Code §51.9(d) (1996).) Plaintiff’s Complaint is not verified. 23 This presents a defect in Plaintiff’s pleading subject to demurrer. (People v. Birch Securities Co. 24 (1948) 86 Cal.App.2d 703, 707-708.) 25 For these reasons, demurrer to this claim should be sustained as to BUSD without leave to 26 amend. 27 /// 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 6 1 E. The Seventh COA for Sexual Abuse and Harassment in the Educational 2 Environment does not apply to BUSD In this claim, Plaintiff alleges that BUSD violated Ed. Code §220 because she was sexually 3 harassed to the point that she was deprived of equal access to educational benefits and 4 opportunities. (Compl., ¶173.) This cause of action fails for several reasons. 5 First, the claim, as offered, does not set forth any valid causes of action against BUSD 6 because there is no mandatory duty set forth in Ed. Code §220 and Plaintiff has not complied with 7 the Government Claims Act to present such a claim. 8 Education Code §220 states: 9 10 “No person shall be subjected to discrimination on the basis of . . . gender . . . or any other characteristic as contained in the definition of hate crimes 11 set forth in section 422.55 of the Penal Code . . . and any program or activity conducted by an educational institution that receives, or benefits 12 from, state financial assistance, or enrolls pupils who receive state student 13 financial aid.” The elements of an Education Code §220 claim include that Plaintiff suffered severe, pervasive and 14 offensive harassment which effectively deprived them of the right of equal access to educational 15 benefits, that the school district had actual knowledge of that harassment, and that the school 16 district acted with deliberate indifference in the face of such knowledge. (Donovan v. Poway 17 Unified School District (2008) 167 Cal.App.4th 567, 601-604.) 18 Here, and as a second reason to sustain the demurrer, Plaintiff does not factually allege that 19 she was deprived of any educational opportunity. (See Compl., ¶¶172-176.) 20 Third, an Education Code §220 cause of action requires demonstration of exhaustion of 21 administrative remedies requiring a report to a Local Educational Agency be submitted, 22 investigated and decided prior to resorting to the courts for intervention or money damages. (Id. 23 603-604.) That complaint of discrimination must be filed with the Local Education Agency no later 24 than six months from the date of the alleged discrimination or the date that the complainant first 25 obtained knowledge of the facts of the alleged discrimination. (Id. at 604, citing Cal. Code. Regs.5, 26 §4630(b).) Plaintiff has not pled exhaustion of administrative remedies to pursue a claim under 27 /// 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 7 1 Education Code §220. She never initiated, let alone exhausted, any administrative process 2 necessary to support this cause of action. 3 Last, BUSD is not liable for the conduct of BISSELL because the conduct alleged, sexual 4 abuse, would not be subject to vicarious liability if he were alleged to be an employee of the BUSD. 5 (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-449.) 6 For these reasons, demurrer to this claim should be sustained as to BUSD without leave to 7 amend. 8 F. The Eighth COA for Fiduciary Duty and Ninth COA for Constructive Fraud 9 Require a Fiduciary Relationship that did not Exist Between Plaintiff and BUSD 10 These claims are barred by Government Code §815(a). (Lopez v. So. Cal. Rapid Transit 11 Distr. (1985) 40 Cal.3d 780, 795.) They are not based on any statute allowing such recovery from 12 a public entity. 13 Furthermore, if the Government Code permitted these claims against a public entity, each 14 claim requires the existence of a fiduciary relationship between Plaintiff, a former student of BUSD 15 and the district. 16 Under California law, the elements of a claim for breach of fiduciary duty are: (1) the 17 existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that 18 breach. (Amtower v. Photon Dynamics, Inc., (2008) 158 Cal.App.4th 1582, 1599.) Likewise, a 19 constructive fraud claim on Civil Code section 1573 also requires a fiduciary relationship. 20 (Crocker-Anglo National Bank v. Kuchman (1964) 224 Cal.App.2d 490, 494). 21 In order to be charged with a fiduciary obligation, a person must either knowingly undertake 22 to act on behalf and for the benefit of another, or enter into a relationship which imposes that 23 undertaking as a matter of law. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. 24 App. 4th 226, 246 (Ct. App. 2007).) Fiduciary relationships arise only in limited technical or legal 25 relationships. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631- 26 632.) “Traditional examples of fiduciary relationships in the commercial context include 27 trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 8 1 adventurers, and agent/principal.” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 30.) 2 Inherent in a fiduciary relationship is the “duty of undivided loyalty the fiduciary owes to its 3 beneficiary.” (Id.) Where circumstances exist between two parties that are inconsistent with the 4 existence of a fiduciary duty, none will be found. (Oakland Raiders v. National Football League, 5 supra, 131 Cal.App.4th at 632-633.) 6 Here, the legal relationship between BUSD and Plaintiff was that of public school district 7 and student attending the public school district. That relationship is inconsistent with fiduciary 8 obligations – if a school district had fiduciary obligation owing to students, it would have a duty of 9 undivided loyalty to each student. Any time a student needed to be disciplined, received a bad 10 grade from a teacher resulting in a challenge, or had some conflict with another student within the 11 district, the district would breach its duty of undivided loyalty by investigating or questioning the 12 student’s claim or not supporting the claim. The relationship between Plaintiff and BUSD does not 13 fit the criteria of fiduciary duty. 14 As there is no fiduciary relationship between Plaintiff and BUSD, the Breach of Fiduciary 15 Duty and Constructive Fraud causes of action cannot exist. The demurrer to those causes of action 16 should sustained without leave to amend. 17 V. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO 18 AMEND A trial court has discretion to grant leave to amend after sustaining a demurrer. However, 19 that is only the case where a plaintiff can articulate a reasonable possibility that a defect can be 20 cured by amendment. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) The 21 "onus" is on the plaintiff to articulate the specific ways that a cure in a pleading can be corrected, 22 and absent the plaintiff meeting that burden, the trial court can provide leave to amend "only if a 23 potentially effective amendment is both apparent and consistent with the plaintiff's theory of the 24 case." (Id. quoting CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) A 25 trial court does not abuse its discretion in denying a plaintiff leave to amend their complaint 26 following demurrer where the plaintiff cannot identify a logical, cogent way in which it can be 27 amended and where the ability to amend is not apparent on the face the pleading. (Id. at 1145.) 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 9 1 Here, each of the grounds for demurrer should be sustained. Those grounds pose legal, 2 rather than factual, hurdles to recovery - legal duty, whether BUSD is a proper defendant to such 3 claims and whether Plaintiff complied with administrative requirements. For these reasons, each 4 cause of action subject to demurrer here, and to which the demurrer is sustained, should be without 5 leave to amend. It is Defendant's intent to pare the claims down to those that are legally viable so 6 that the parties can focus their discovery efforts appropriately. The remaining causes of action will 7 be dealt with via dispositive motion. Sustaining the demurrer without leave to amend will provide 8 efficiency to the parties and to the Court. 9 VI. CONCLUSION 10 Berkeley Unified School District respectfully requests that the Court sustain its demurrer 11 without leave to amend. For the reasons set forth herein, the bulk of Plaintiff’s claims against the 12 District attempts to apply general duties against a public entity despite the government code’s clear 13 mandate that only statutorily based claims can be made against Berkeley Unified School District. 14 Moreover, Plaintiff’s causes of action also attempt to assert vicarious liability on the part of the 15 District for the alleged misconduct of its former teacher. This violates the John R. holding that 16 public school districts are not vicariously responsible for sexual misconduct of teachers. Last, 17 Plaintiff’s Complaint contains boilerplate allegations which are not factual. The conclusory nature 18 of the allegations prohibits any reasonable finding of an appropriately pled cause of action against 19 Berkeley Unified School District. The Demurrer should be sustained without leave to amend. 20 Dated: April 20, 2022 SPINELLI, DONALD & NOTT 21 22 By: ROSS R. NOTT 23 Attorneys for Defendant BERKELEY UNIFIED SCHOOL 24 DISTRICT 25 26 27 28 SPINELLI, DONALD & NOTT Defendant’s Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint 10