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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 03/29/2021 Time: 10:00 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Kary Swan Dept: SB Dept 5
Deputy Sheriff: David Allcott
Court Reporter: Shelley Cockrell Case No: 20CV03946
Jane Ob Doe vs Santa Barbara Unified School District et al
Parties Present:
Asnestad, Haley Attorney
Harrison, Harry Attorney
NATURE OF PROCEEDINGS: Motion: Strike, Demurrer, Demurrer to Complaint, Motion: Strike
Portions of the Complaint
Counsel appeared on Zoom.
Tentative is affirmed.
TENTATIVE RULING
(1) The demurrer of defendant Santa Barbara Unified School District is sustained, with leave to
amend, as to the fourth, fifth, sixth, ninth, eleventh, twelfth and thirteenth causes of action of plaintiff’s
complaint.
(2) The motion of defendant Santa Barbara Unified School District to strike portions of plaintiff’s
complaint is granted in part and denied in part. The motion is granted, with leave to amend, to strike from
the complaint: (1) the words “fiduciary relationship” from paragraph 27; (2) the word “fiduciary” from
paragraph 28; (3) the words “fiduciary relationship” from paragraph 56; and (4) paragraphs 4 and 7 of the
prayer of the complaint. The motion is in all other respects denied.
(3) Plaintiff Jane OB Doe shall file and serve her first amended complaint on or before April 30, 2021.
(4) The demurrer and motion to strike of defendant Matef Harmachis is continued to April 19, 2021.
The court orders defendant Harmachis to show cause why the demurrer and motion to strike should not
be stricken for nonpayment of fees. Harmachis shall either: (1) pay the first appearance fee and file
notice with the court of such payment, with proof of service of such notice on the parties, on or before
April 5, 2021; or (2) file and serve opposition to the order to show cause on or before April 5, 2021. If
opposition is filed, any other party may file and serve a response on or before April 12, 2021. If payment
is timely made, the court intends to hear the demurrer and motion to strike on April 19. If opposition to
the OSC is filed, the court will determine the OSC on April 19 and continue the hearing on the demurrer
and motion to strike, to the extent appropriate, to another date then determined.
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Background:
As alleged in plaintiff’s complaint: 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. (Complaint, ¶ 1.) Plaintiff was a
student attending Santa Barbara High School (SBHS) within defendant Santa Barbara Unified School
District (District). (Complaint, ¶ 12.)
Defendant Matef Harmachis was a teacher hired by the District to teach history, government, or
economics at SBSH. (Complaint, ¶ 14.) Harmachis was supervised by District administrators.
(Complaint, ¶ 15.)
Harmachis has an extensive history of disciplinary issues within the District related to inappropriate
conduct with students. (Complaint, ¶ 17.) District knew or should have known that Harmachis presented
a danger to students and needed to be removed from the classroom. (Complaint, ¶¶ 17-20.)
Beginning in 2016 and through 2017, Harmachis sexually abused, harassed, and molested plaintiff on
the school premises, including within his SBHS classroom. (Complaint, ¶ 34.) This sexual abuse
included, but is not limited to, sexual talk and innuendo, biting plaintiff’s ear, hugging plaintiff, and
groping plaintiff’s buttocks. (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. (Complaint, ¶ 36.) As a result, plaintiff has experienced multiple mental, emotional, and
psychological problems. (Complaint, ¶ 38.)
On November 30, 2020, plaintiff filed her 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. The first, second, third, and fourth causes of action
are asserted against the District only; the seventh, eighth, and tenth causes of action are asserted
against Harmachis only; the fifth, sixth, ninth, eleventh, and twelfth causes of action are asserted against
both the District and Harmachis.
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 January 26, 2021, Harmachis filed his demurrer to the sixth through twelfth causes of action and his
motion to strike portions of the complaint.
All demurrers and motions to strike are opposed by plaintiff.
Analysis:
(1) Demurrer of District
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“ ‘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.)
Plaintiff’s fourth cause of action is for negligent failure to warn, train, or educate. District argues that this
is a common law claim which is inapplicable to a public entity.
“[Government Code section] 815 establishes that public entity tort liability is exclusively statutory: ‘Except
as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or a public employee or any other person.’ Section
815.2, in turn, provides the statutory basis for liability relied on here: ‘(a) A public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative. [¶] (b) Except as otherwise provided by statute, a
public entity is not liable for an injury resulting from an act or omission of an employee of the public entity
where the employee is immune from liability.’ Finally, section 820 delineates the liability of public
employees themselves: ‘(a) Except as otherwise provided by statute (including Section 820.2), a public
employee is liable for injury caused by his act or omission to the same extent as a private person. [¶] (b)
The liability of a public employee established by this part (commencing with Section 814) is subject to
any defenses that would be available to the public employee if he were a private person.’ In other words,
‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private
person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee
causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).’ [Citation.]” (C.A.
v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 868.) “Within these limits, we
conclude a public school district may be vicariously liable under section 815.2 for the negligence of
administrators or supervisors in hiring, supervising and retaining a school employee who sexually
harasses and abuses a student.” (Id. at p. 879.)
District argues that the cause of action for failure to warn, train, or educate exists solely at common law
by virtue of Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 (Juarez). In Juarez, the
court applied the analysis of Rowland v. Christian (1968) 69 Cal.2d 108 and determined that the Boy
Scouts of America had a duty of care “to have taken reasonable protective measures to protect [the
minor plaintiff] from the risk of sexual abuse by adult volunteers involved in scouting programs, such as
warning, training or educating him (either directly or through his parent or adult volunteers) about how to
avoid such a risk.” (Juarez, at pp. 409–410.) In opposition, plaintiff argues that District had a duty to
protect students as set forth in C.A. v. William S. Hart Union High School District: “[T]he duty of care
owed by school personnel includes the duty to use reasonable measures to protect students from
foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been
applied in cases of employees’ alleged negligence resulting in injury to a student by another student
[citations], injury to a student by a nonstudent [citation] and—on facts remarkably close to the present
case—injuries to a student resulting from a teacher’s sexual assault [citation].” (C.A. v. William S. Hart
Union High School District, supra, 53 Cal.4th at p. 870, fn. omitted.)
On the one hand, the court agrees with District that, to the extent plaintiff seeks to tie negligence liability
solely to a specific duty to warn, train, or educate students separate from District’s broader negligence
liability (see Complaint, ¶ 109), plaintiff fails to state a cause of action based upon such a duty. There is
no statutory basis for a specific duty to warn, train, or educate students and the imposition of such a
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specific duty by application of Rowland factors would substantially interfere with the educational role of
schools as determined by the Legislature. The court will sustain the demurrer to the fourth cause of
action on that basis.
It is important to point out, however, that this resolution of the demurrer as to the fourth cause of action
does not dispose of the underlying issue raise by the fourth cause of action. As Juarez points out in the
above quotation, warning, training or educating scouts is merely an example of how the Boy Scouts of
America could discharge its broader duty to take reasonable protective measures to protect scouts from
the risk of sexual abuse by adult volunteers. Schools have a similarly broad duty of care “to use
reasonable measures to protect students from foreseeable injury at the hands of third parties acting
negligently or intentionally.” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p.
870.) Reasonable measures might include, in whole or in part, warnings, training, or education. The court
does not resolve on demurrer the extent to which the presence or absence of warnings, training, or
education of students may affect the issue of whether the District has or has not discharged its duty to
use reasonable measures to protect students.
Plaintiff’s fifth cause of action is for negligence per se. District argues that negligence per se is not a
cause of action but is merely the application of an evidentiary presumption in a negligence cause of
action. In opposition, plaintiff concedes that negligence per se is not a separate cause of action. Instead,
plaintiff requests leave to amend to include additional allegations asserted in the context of the
negligence per se claim as within the negligence cause of action. Based on this concession, the court will
sustain the demurrer to the fifth cause with leave to amend to assert these factual allegations within the
broader negligence cause of action.
Plaintiff’s sixth cause of action is for intentional infliction of emotional distress. “A cause of action for
intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant's outrageous conduct.’ [Citations.] A defendant’s
conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged
in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-
1051, internal quotation marks omitted.)
District argues that plaintiff has failed to allege either outrageous conduct or sufficient knowledge by the
District for vicarious liability. Plaintiff has alleged sexual harassment and abuse of a minor by a teacher
which constitutes a sufficient allegation of outrageous conduct. In John R. v. Oakland Unified School
Dist. (1989) 48 Cal.3d 438, 452, the California Supreme Court held that a school district was not
vicariously liable for a teacher’s intentional torts in molesting a student. In C.A. v. William S. Hart Union
High School District, supra, the court compared vicarious liability for intentional torts with vicarious
liability on a negligence theory in the same context:
“In John R. v. Oakland Unified School Dist., supra, … we noted with concern the undesirable
consequences that could flow from imposing vicarious liability on public school districts for sexual
misconduct by teachers, including ‘the diversion of needed funds from the classroom to cover claims’
and the likelihood districts would be deterred ‘from encouraging, or even authorizing, extracurricular
and/or one-on-one contacts between teachers and students.’ To these still valid concerns we should add
the possibility that unsubstantiated rumors of sexual misconduct might curtail or destroy the careers of
innocent teachers, counselors or other employees. Against these concerns, we have weighed in this
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case the value of negligence actions in providing compensation to injured parties and preventing future
harm of the same nature, and have followed John R.’s suggestion that these remedial goals are best
addressed ‘by holding school districts to the exercise of due care’ in their administrators’ and supervisors’
‘selection of [instructional] employees and the close monitoring of their conduct,’ rather than by making
districts vicariously liable for the intentional sexual misconduct of teachers and other employees.” (C.A. v.
William S. Hart Union High School District, supra, 53 Cal.4th at p. 878.)
Because as now alleged this cause of action seeks to hold District liable for the teacher’s alleged
intentional misconduct, the demurrer to the sixth cause of action will be sustained.
Plaintiff’s ninth cause of action is for sexual harassment in violation of 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:
“(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).)
District argues that plaintiff cannot state a cause of action under section 51.9 because the District is not a
business establishment, because there is no specific language applying section 51.9 to public schools so
as to cause section 51.9 to apply through the Tort Claims Act, because the District is not alleged to be
vicariously liable, and because the District cannot be held liable under a theory of respondeat superior.
In arguing that section 51.9 does not apply because the District is not a business establishment, the
District cites Brennon B. v. Superior Court of Contra Costa County (2020) 57 Cal.App.5th 367 [271
Cal.Rptr.3d 320], review granted February 24, 2021, S266254 (Brennon B.). In Brennon B., the court
address the issue of “whether a public school district is a business establishment for purposes of the
Unruh Civil Rights Act (Civ. Code, § 51) ….” (Id. at p. ___ [271 Cal.Rptr.3d at p. 321].) Civil Code section
51, subdivision (b) provides: “All persons within the jurisdiction of this state are free and equal, and no
matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic
information, marital status, sexual orientation, citizenship, primary language, or immigration status are
entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.” The Brennon B. court concluded: “[T]he decisions of
our Supreme Court confirm what seems apparent from the historical origins of the Unruh Act, its
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legislative history and the scholarly commentary—that California’s public school districts are not business
establishments under the Act.” (Id. at p. ___ [271 Cal.Rptr.3d at p. 338].)
District’s reliance on Brennon B. is misplaced. Despite its proximity in the Civil Code to section 51,
section 51.9 is not part of the Unruh Civil Rights Act, which is expressly limited by statutory definition to
section 51. (Civ. Code, § 51, subd. (a) [“This section shall be known, and may be cited, as the Unruh
Civil Rights Act.” (Italics added)].) Section 51, subdivision (b) expressly applies only to a “business
establishment.” Section 51.9 requires only a “business, service, or professional relationship,” which
relationship includes that of student-teacher. (Civ. Code, § 51.9, subd. (a)(1)(E).) The court does not
sustain the demurrer on this basis.
District’s other arguments depend upon determining the basis for liability plaintiff asserts under section
51.9. 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 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 [Plaintiff’s Request for Judicial Notice, exhibit 1].) (The court grants
judicial notice of the report set forth in exhibit 1 to plaintiff’s request.) It therefore does not appear that the
District, as a public entity, is intended as person to be directly liable under section 51.9.
Vicarious liability, however, is potentially available under the express terms of the statute. “In an action
pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.” (Civ.
Code, § 51.9, subd. (b).) Section 52, subdivision (b) provides:
“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:
“(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary
damages.
“(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person
denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the
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Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to
Section 51.7 shall be commenced within three years of the alleged practice.
“(3) Attorney’s fees as may be determined by the court.”
Thus, section 52, subdivision (b) provides for liability for damages suffered not just by the offending
defendant but also liability for aiding, inciting, or conspiring in the violation. District argues that the
complaint does not contain any sufficient allegations of this vicarious liability. In opposition to the
demurrer, plaintiff argues that District’s liability is based upon ratification. (See also Complaint, ¶¶ 151,
157.) Section 52, subdivision (b)’s identification of aiding, inciting, or conspiring as the statutory bases of
vicarious liability appears to limit such vicarious liability at least to those situations where the vicarious
liability is based upon knowledge of the wrongdoing. Here, plaintiff has ambiguously alleged that District
knew “or should have known” of the activities of Harmachis. (Complaint, ¶ 157.) Also, as discussed
above, respondeat superior liability is limited as discussed in C.A. v. William S. Hart Union High School
District, supra. Because specific pleading is required for statutory cause of action, absent clear
allegations within the statutory scope of vicarious liability set forth in section 52, subdivision (b), plaintiff
does not state a cause of action under section 51.9. The demurrer to the ninth cause of action will be
sustained on that ground.
The court notes that the ninth cause of action also includes a discussion of liability under Education Code
section 201 et seq. It is unclear whether plaintiff seeks to assert liability under these sections. Leave to
amend extends to assert a claim arising out of the factual circumstances alleged in the complaint under
the Education Code if plaintiff is able and wishes to assert such a claim.
Plaintiff’s eleventh cause of action is for breach of fiduciary duty. “In order to plead a cause of action for
breach of fiduciary duty, a plaintiff must show the existence of a fiduciary relationship, its breach, and
damage caused by the breach.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158
Cal.App.4th 226, 244.)
District argues that it owed no fiduciary duty to plaintiff. Plaintiff argues that the relationship between
teacher and student is a fiduciary relationship. “ ‘[F]iduciary’ and ‘confidential’ have been used
synonymously to describe ‘ “... any relation existing between parties to a transaction wherein one of the
parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation
ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a
relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to
accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other
party without the latter’s knowledge or consent ....” ’ [Citations.] Technically, a fiduciary relationship is a
recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or
attorney and client [citation], whereas a ‘confidential relationship’ may be founded on a moral, social,
domestic, or merely personal relationship as well as on a legal relationship. [Citations.] The essence of a
fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in
whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position
to exert unique influence over the dependent party.” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369,
382–383.)
In C.A. v. William S. Hart Union High School District, supra, the court describes the relationship as a
“special relationship”: “[A] school district and its employees have a special relationship with the district’s
pupils, a relationship arising from the mandatory character of school attendance and the comprehensive
control over students exercised by school personnel, ‘analogous in many ways to the relationship
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between parents and their children.’ [Citations.] Because of this special relationship, imposing obligations
beyond what each person generally owes others under Civil Code section 1714, the duty of care owed
by school personnel includes the duty to use reasonable measures to protect students from foreseeable
injury at the hands of third parties acting negligently or intentionally.” (C.A. v. William S. Hart Union High
School District, supra, 53 Cal.4th at pp. 869–870.) (Note: In its moving papers, District improperly cites to
the now-unpublished prior decision of the Court of Appeal in C.A. v. William S. Hart Union High School
District. (See Cal. Rules of Court, rules 8.1105(e)(1)(B) (effective July 1, 2016), 8.1115(a); former rule
8.1105(e)(1) (effective until July 1, 2016) [changing publication status to unpublished upon grant of
review by California Supreme Court].))
As the C.A. court explains, the special relationship is the basis for the expanded scope of duty owed by
the District to plaintiff and to other students to use reasonable measures to protect students. This special
relationship is not analogous to a trustee-beneficiary or other fiduciary relationship. So, this special
relationship is not a fiduciary relationship or a “confidential relationship” in the sense discussed in
Barbara A. v. John G., supra. The duty arising from the special relationship is the duty at issue in the
plaintiff’s negligence claim. Plaintiff does not allege a fiduciary relationship giving rise to separate
fiduciary duties. The demurrer to the eleventh cause of action will be sustained.
Plaintiff’s twelfth cause of action is for constructive fraud. “The elements of the cause of action for
constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to
deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d
498, 517.) “Unlike actual fraud, constructive fraud depends on the existence of a fiduciary relationship of
some kind, and this must be alleged.” (Id. at pp. 516–517, fn. omitted.) For the reasons discussed above,
plaintiff does not allege a fiduciary relationship and hence does not allege a cause of action for
constructive fraud. The demurrer to the twelfth cause of action will be sustained.
Plaintiff’s thirteenth cause of action is for failing to perform the duty required by Penal Code section
11166. (Complaint, ¶ 200.) “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.” (Pen. Code, § 11166, subd. (a).)
District argues that it is not a mandated reporter subject to the act. “Mandated reporter” is a defined term
which refers to a lengthy list of individuals, including a teacher, an instructional aide, a teacher’s aide or
teacher’s assistant employed by a public or private school, a classified employee of a public school, and
an administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel
employee of a public or private school. (Pen. Code, § 11165.7, subd. (a).) In opposition, plaintiff argues
that the inclusion of individuals such as a teacher in the statutory definition is sufficient to hold the District
liable when its employees fail to make a mandated report.
“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.)
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The reporting duties under section 11166 are individual. (Pen. Code, § 11166, subd. (i)(1).) Moreover,
while the statutorily-defined mandated reporters are all individuals, section 11166 includes separate
reporting obligations for particular public agencies, including county probation or welfare departments
(subd. (j)(1)) and law enforcement agencies (subd. (k)). The inclusion of agency duties as separate
obligations while not including a public agency such as a public school within the definition of “mandated
reporter” strongly indicates that the public school, as an agency separate from its employees, is not a
“mandated reporter” with a separate mandatory statutory duty. Consequently, District cannot be liable
under Government Code section 815.6 for failing to discharge a mandatory duty imposed on the District
itself. The demurrer to the thirteenth cause of action will be sustained.
While the court has reservations as to whether some of these causes of action can be stated at all, this is
a demurrer to plaintiff’s initial complaint and the court will grant leave to amend for plaintiff to correct the
deficiencies identified above and otherwise to plead her best case.
(2) Motion to Strike of District
“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).)
District moves to strike numerous items of text from the complaint. With respect to duties, District seeks
to strike statements that use the word “ensure” in describing duties plaintiff ascribes to the District: “Duty
to ensure that any direction given to faculty and students is lawful, and thatadults act fairly, responsibly
and respectfully towards faculty and students” (Complaint, ¶ 41); “Duty to ensure that personnel are
actually on hand and supervising students” (ibid.); “Defendants were required, and failed, to provide
adequate campus and off-site school eventsupervision, and failed to be properly vigilant in seeing that
supervision wassufficient to ensurethe safety of Plaintiff and others” (Complaint, ¶ 43); “Plaintiff is
informed that Defendants failed to use reasonable care in investigatingHARMACHIS and did nothing to
investigate, supervise or monitor HARMACHIS to ensure thesafety of the minor students” (Complaint, ¶
96); “Even though the Defendants knew or should have known of these activities by
DefendantHARMACHIS, Defendants did nothing to investigate, supervise or monitor
DefendantHARMACHIS to ensure the safety of the minor students, but instead ratified such conduct
byretaining HARMACHIS in employment and retaining the benefits of his employment” (Complaint, ¶
157).
Paragraph 157 is within the ninth cause of action to which the court sustains the demurrer of the District,
making the motion to strike moot as to that paragraph.
District argues that the use of the word “ensure” is improper because the District does not insure
students’ safety. “While school districts and their employees have never been considered insurers of the
physical safety or students, California law has long imposed on school authorities a duty to ‘supervise at
all times the conduct of the children on the school grounds and to enforce those rules and regulations
necessary to their protection. [Citations.]’ [Citations.] The standard of care imposed upon school
personnel in carrying out this duty to supervise is identical to that required in the performance of their
other duties. This uniform standard to which they are held is that degree of care ‘which a person of
SC-2411 (Revised July 1, 2013) MINUTE ORDER
ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.’
[Citations.]” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.)
The court generally agrees that the applicable standard is that stated in the cases previously cited and
that standard of care does not make the District an insurer of safety. However, as stated in the complaint,
this language is reasonably construed as descriptive without necessarily being literally exact. The
purpose of pleadings is to put defendants on notice of the nature of the claims made. “Even as against a
special demurrer a plaintiff is required only to set forth the essential facts of his case with reasonable
precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his
cause of action.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) A statement in the
complaint describing generally the duties that plaintiff asserts was breached is helpful in understanding
plaintiff’s claims. The motion to strike this language will be denied.
District next seeks to strike plaintiff’s fourth cause of action for negligence per se on the grounds that
negligence per se is not a cause of action. The court will sustain the demurrer to that cause of action as
discussed above. The motion is moot as to these allegations.
District seeks to strike the words “fiduciary” or “fiduciary relationship” in paragraphs 27, 28, 166, 172,
173, 174. Paragraph 166 is in the eleventh cause of action; paragraphs 172, 173, and 174 are the twelfth
cause of action. The court will sustain the demurrer to these causes of action making the motion moot as
these paragraphs. As discussed above, the relationship alleged is not a fiduciary relationship. The
description as such is therefore improper. The motion will be granted to strike those terms from
paragraphs 27, and 28. As discussed above, warning may potentially fall within the more general duty to
protect and so such language in paragraph 56, apart from the “fiduciary relationship” phrase, is not
improper. The motion will be granted to strike only the words “fiduciary relationship” from paragraph 56.
District seeks to strike the allegation in paragraph 160 regarding attorney fees and costs. Paragraph 160
is within the ninth cause of action to which the court will sustain the demurrer. The motion is moot as to
paragraph 160.
District seeks to strike the prayer for “any appropriate statutory damages.” In opposition to the motion,
plaintiff argues that she is not required to identify or plead any specific statutes by which she may be
entitled to statutory damages. To the extent that it is necessary to plead entitlement to obtain statutory
damages under a statute that has not been identified, plaintiff fails to provide any legal basis by which
such a claim would be proper on the facts as alleged. To the extent that no such pleading is necessary,
then the prayer is superfluous. In either case, the language is either unnecessary or improper as now
pleaded. The motion will be granted to strike this prayer.
District also seeks to strike the attorney fee language in prayer for relief. This prayer is based upon the
ninth cause of action. Because the court will sustain the demurrer to the ninth cause of action, there is no
present basis alleged for this claim for relief. The motion will be granted to strike this prayer.
For the same reasons discussed above with respect to the demurrer, the court will grant leave to amend.
(3) Demurrer and Motion to Strike of Harmachis
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There is a procedural problem with hearing the demurrer and motion to strike of defendant Harmachis at
this time. The demurrer and motion to strike were filed as part of Harmachis’s initial appearance in this
action at which time Harmachis claimed exemption from paying fees pursuant to Government Code
section 6103. In the demurrer and motion to strike Harmachis identifies himself as “a public employee.”
Government Code section 6103 does not generically exempt public employees from payment of fees.
“Neither the state nor any county, city, district, or other political subdivision, nor any public officer or
body, acting in his or her official capacity on behalf of the state, or any county, city, district, or other
political subdivision, shall pay or deposit any fee for the filing of any document or paper, for the
performance of any official service, or for the filing of any stipulation or agreement that may constitute an
appearance in any court by any other party to the stipulation or agreement.” (Gov. Code, § 6103, subd.
(a), italics added.) The exemption is for “any public officer” not for any public employee.
“[A] public officer (or a county officer) is one who, inter alia, is delegated a public duty to exercise a part
of the governmental functions of the political unit for which he, as agent, is acting.” (Dibb v. County of
San Diego (1994) 8 Cal.4th 1200, 1212, italics omitted.) “A teacher is a public employee and not a public
officer [citation].” (Beseman v. Remy (1958) 160 Cal.App.2d 437, 445.) It thus appears that Harmachis is
not entitled to claim an exemption from paying fees as a public officer.
The court will therefore set an order to show cause re striking the demurrer and motion to strike for
nonpayment of fees. Harmachis may either pay the fees disclaiming exemption under Government Code
section 6103 or oppose the order to show cause by citing appropriate authority justifying the exemption.
If the fees are paid by the date set in the court’s order with notice given, the court intends to hear the
demurrer and motion to strike on the continued hearing date. If Harmachis opposes the order to show
cause, the court will resolve the exemption issue at the continued hearing and set further dates as then
determined.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kary Swan , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 03/29/2021 Time: 10:00 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Kary Swan Dept: SB Dept 5 Deputy Sheriff: David Allcott Court Reporter: Shelley Cockrell Case No: 20CV03946 Jane Ob Doe vs Santa Barbara Unified School District et al Parties Present: Asnestad, Haley Attorney Harrison, Harry Attorney NATURE OF PROCEEDINGS: Motion: Strike, Demurrer, Demurrer to Complaint, Motion: Strike Portions of the Complaint Counsel appeared on Zoom. Tentative is affirmed. TENTATIVE RULING (1) The demurrer of defendant Santa Barbara Unified School District is sustained, with leave to amend, as to the fourth, fifth, sixth, ninth, eleventh, twelfth and thirteenth causes of action of plaintiff’s complaint. (2) The motion of defendant Santa Barbara Unified School District to strike portions of plaintiff’s complaint is granted in part and denied in part. The motion is granted, with leave to amend, to strike from the complaint: (1) the words “fiduciary relationship” from paragraph 27; (2) the word “fiduciary” from paragraph 28; (3) the words “fiduciary relationship” from paragraph 56; and (4) paragraphs 4 and 7 of the prayer of the complaint. The motion is in all other respects denied. (3) Plaintiff Jane OB Doe shall file and serve her first amended complaint on or before April 30, 2021. (4) The demurrer and motion to strike of defendant Matef Harmachis is continued to April 19, 2021. The court orders defendant Harmachis to show cause why the demurrer and motion to strike should not be stricken for nonpayment of fees. Harmachis shall either: (1) pay the first appearance fee and file notice with the court of such payment, with proof of service of such notice on the parties, on or before April 5, 2021; or (2) file and serve opposition to the order to show cause on or before April 5, 2021. If opposition is filed, any other party may file and serve a response on or before April 12, 2021. If payment is timely made, the court intends to hear the demurrer and motion to strike on April 19. If opposition to the OSC is filed, the court will determine the OSC on April 19 and continue the hearing on the demurrer and motion to strike, to the extent appropriate, to another date then determined. SC-2411 (Revised July 1, 2013) MINUTE ORDER Background: As alleged in plaintiff’s complaint: 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. (Complaint, ¶ 1.) Plaintiff was a student attending Santa Barbara High School (SBHS) within defendant Santa Barbara Unified School District (District). (Complaint, ¶ 12.) Defendant Matef Harmachis was a teacher hired by the District to teach history, government, or economics at SBSH. (Complaint, ¶ 14.) Harmachis was supervised by District administrators. (Complaint, ¶ 15.) Harmachis has an extensive history of disciplinary issues within the District related to inappropriate conduct with students. (Complaint, ¶ 17.) District knew or should have known that Harmachis presented a danger to students and needed to be removed from the classroom. (Complaint, ¶¶ 17-20.) Beginning in 2016 and through 2017, Harmachis sexually abused, harassed, and molested plaintiff on the school premises, including within his SBHS classroom. (Complaint, ¶ 34.) This sexual abuse included, but is not limited to, sexual talk and innuendo, biting plaintiff’s ear, hugging plaintiff, and groping plaintiff’s buttocks. (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. (Complaint, ¶ 36.) As a result, plaintiff has experienced multiple mental, emotional, and psychological problems. (Complaint, ¶ 38.) On November 30, 2020, plaintiff filed her 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. The first, second, third, and fourth causes of action are asserted against the District only; the seventh, eighth, and tenth causes of action are asserted against Harmachis only; the fifth, sixth, ninth, eleventh, and twelfth causes of action are asserted against both the District and Harmachis. 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 January 26, 2021, Harmachis filed his demurrer to the sixth through twelfth causes of action and his motion to strike portions of the complaint. All demurrers and motions to strike are opposed by plaintiff. Analysis: (1) Demurrer of District SC-2411 (Revised July 1, 2013) MINUTE ORDER “ ‘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.) Plaintiff’s fourth cause of action is for negligent failure to warn, train, or educate. District argues that this is a common law claim which is inapplicable to a public entity. “[Government Code section] 815 establishes that public entity tort liability is exclusively statutory: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ Section 815.2, in turn, provides the statutory basis for liability relied on here: ‘(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.’ Finally, section 820 delineates the liability of public employees themselves: ‘(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. [¶] (b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.’ In other words, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).’ [Citation.]” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 868.) “Within these limits, we conclude a public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (Id. at p. 879.) District argues that the cause of action for failure to warn, train, or educate exists solely at common law by virtue of Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 (Juarez). In Juarez, the court applied the analysis of Rowland v. Christian (1968) 69 Cal.2d 108 and determined that the Boy Scouts of America had a duty of care “to have taken reasonable protective measures to protect [the minor plaintiff] from the risk of sexual abuse by adult volunteers involved in scouting programs, such as warning, training or educating him (either directly or through his parent or adult volunteers) about how to avoid such a risk.” (Juarez, at pp. 409–410.) In opposition, plaintiff argues that District had a duty to protect students as set forth in C.A. v. William S. Hart Union High School District: “[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student [citations], injury to a student by a nonstudent [citation] and—on facts remarkably close to the present case—injuries to a student resulting from a teacher’s sexual assault [citation].” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p. 870, fn. omitted.) On the one hand, the court agrees with District that, to the extent plaintiff seeks to tie negligence liability solely to a specific duty to warn, train, or educate students separate from District’s broader negligence liability (see Complaint, ¶ 109), plaintiff fails to state a cause of action based upon such a duty. There is no statutory basis for a specific duty to warn, train, or educate students and the imposition of such a SC-2411 (Revised July 1, 2013) MINUTE ORDER specific duty by application of Rowland factors would substantially interfere with the educational role of schools as determined by the Legislature. The court will sustain the demurrer to the fourth cause of action on that basis. It is important to point out, however, that this resolution of the demurrer as to the fourth cause of action does not dispose of the underlying issue raise by the fourth cause of action. As Juarez points out in the above quotation, warning, training or educating scouts is merely an example of how the Boy Scouts of America could discharge its broader duty to take reasonable protective measures to protect scouts from the risk of sexual abuse by adult volunteers. Schools have a similarly broad duty of care “to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p. 870.) Reasonable measures might include, in whole or in part, warnings, training, or education. The court does not resolve on demurrer the extent to which the presence or absence of warnings, training, or education of students may affect the issue of whether the District has or has not discharged its duty to use reasonable measures to protect students. Plaintiff’s fifth cause of action is for negligence per se. District argues that negligence per se is not a cause of action but is merely the application of an evidentiary presumption in a negligence cause of action. In opposition, plaintiff concedes that negligence per se is not a separate cause of action. Instead, plaintiff requests leave to amend to include additional allegations asserted in the context of the negligence per se claim as within the negligence cause of action. Based on this concession, the court will sustain the demurrer to the fifth cause with leave to amend to assert these factual allegations within the broader negligence cause of action. Plaintiff’s sixth cause of action is for intentional infliction of emotional distress. “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050- 1051, internal quotation marks omitted.) District argues that plaintiff has failed to allege either outrageous conduct or sufficient knowledge by the District for vicarious liability. Plaintiff has alleged sexual harassment and abuse of a minor by a teacher which constitutes a sufficient allegation of outrageous conduct. In John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 452, the California Supreme Court held that a school district was not vicariously liable for a teacher’s intentional torts in molesting a student. In C.A. v. William S. Hart Union High School District, supra, the court compared vicarious liability for intentional torts with vicarious liability on a negligence theory in the same context: “In John R. v. Oakland Unified School Dist., supra, … we noted with concern the undesirable consequences that could flow from imposing vicarious liability on public school districts for sexual misconduct by teachers, including ‘the diversion of needed funds from the classroom to cover claims’ and the likelihood districts would be deterred ‘from encouraging, or even authorizing, extracurricular and/or one-on-one contacts between teachers and students.’ To these still valid concerns we should add the possibility that unsubstantiated rumors of sexual misconduct might curtail or destroy the careers of innocent teachers, counselors or other employees. Against these concerns, we have weighed in this SC-2411 (Revised July 1, 2013) MINUTE ORDER case the value of negligence actions in providing compensation to injured parties and preventing future harm of the same nature, and have followed John R.’s suggestion that these remedial goals are best addressed ‘by holding school districts to the exercise of due care’ in their administrators’ and supervisors’ ‘selection of [instructional] employees and the close monitoring of their conduct,’ rather than by making districts vicariously liable for the intentional sexual misconduct of teachers and other employees.” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p. 878.) Because as now alleged this cause of action seeks to hold District liable for the teacher’s alleged intentional misconduct, the demurrer to the sixth cause of action will be sustained. Plaintiff’s ninth cause of action is for sexual harassment in violation of 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: “(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).) District argues that plaintiff cannot state a cause of action under section 51.9 because the District is not a business establishment, because there is no specific language applying section 51.9 to public schools so as to cause section 51.9 to apply through the Tort Claims Act, because the District is not alleged to be vicariously liable, and because the District cannot be held liable under a theory of respondeat superior. In arguing that section 51.9 does not apply because the District is not a business establishment, the District cites Brennon B. v. Superior Court of Contra Costa County (2020) 57 Cal.App.5th 367 [271 Cal.Rptr.3d 320], review granted February 24, 2021, S266254 (Brennon B.). In Brennon B., the court address the issue of “whether a public school district is a business establishment for purposes of the Unruh Civil Rights Act (Civ. Code, § 51) ….” (Id. at p. ___ [271 Cal.Rptr.3d at p. 321].) Civil Code section 51, subdivision (b) provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” The Brennon B. court concluded: “[T]he decisions of our Supreme Court confirm what seems apparent from the historical origins of the Unruh Act, its SC-2411 (Revised July 1, 2013) MINUTE ORDER legislative history and the scholarly commentary—that California’s public school districts are not business establishments under the Act.” (Id. at p. ___ [271 Cal.Rptr.3d at p. 338].) District’s reliance on Brennon B. is misplaced. Despite its proximity in the Civil Code to section 51, section 51.9 is not part of the Unruh Civil Rights Act, which is expressly limited by statutory definition to section 51. (Civ. Code, § 51, subd. (a) [“This section shall be known, and may be cited, as the Unruh Civil Rights Act.” (Italics added)].) Section 51, subdivision (b) expressly applies only to a “business establishment.” Section 51.9 requires only a “business, service, or professional relationship,” which relationship includes that of student-teacher. (Civ. Code, § 51.9, subd. (a)(1)(E).) The court does not sustain the demurrer on this basis. District’s other arguments depend upon determining the basis for liability plaintiff asserts under section 51.9. 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 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 [Plaintiff’s Request for Judicial Notice, exhibit 1].) (The court grants judicial notice of the report set forth in exhibit 1 to plaintiff’s request.) It therefore does not appear that the District, as a public entity, is intended as person to be directly liable under section 51.9. Vicarious liability, however, is potentially available under the express terms of the statute. “In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.” (Civ. Code, § 51.9, subd. (b).) Section 52, subdivision (b) provides: “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: “(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. “(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the SC-2411 (Revised July 1, 2013) MINUTE ORDER Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice. “(3) Attorney’s fees as may be determined by the court.” Thus, section 52, subdivision (b) provides for liability for damages suffered not just by the offending defendant but also liability for aiding, inciting, or conspiring in the violation. District argues that the complaint does not contain any sufficient allegations of this vicarious liability. In opposition to the demurrer, plaintiff argues that District’s liability is based upon ratification. (See also Complaint, ¶¶ 151, 157.) Section 52, subdivision (b)’s identification of aiding, inciting, or conspiring as the statutory bases of vicarious liability appears to limit such vicarious liability at least to those situations where the vicarious liability is based upon knowledge of the wrongdoing. Here, plaintiff has ambiguously alleged that District knew “or should have known” of the activities of Harmachis. (Complaint, ¶ 157.) Also, as discussed above, respondeat superior liability is limited as discussed in C.A. v. William S. Hart Union High School District, supra. Because specific pleading is required for statutory cause of action, absent clear allegations within the statutory scope of vicarious liability set forth in section 52, subdivision (b), plaintiff does not state a cause of action under section 51.9. The demurrer to the ninth cause of action will be sustained on that ground. The court notes that the ninth cause of action also includes a discussion of liability under Education Code section 201 et seq. It is unclear whether plaintiff seeks to assert liability under these sections. Leave to amend extends to assert a claim arising out of the factual circumstances alleged in the complaint under the Education Code if plaintiff is able and wishes to assert such a claim. Plaintiff’s eleventh cause of action is for breach of fiduciary duty. “In order to plead a cause of action for breach of fiduciary duty, a plaintiff must show the existence of a fiduciary relationship, its breach, and damage caused by the breach.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 244.) District argues that it owed no fiduciary duty to plaintiff. Plaintiff argues that the relationship between teacher and student is a fiduciary relationship. “ ‘[F]iduciary’ and ‘confidential’ have been used synonymously to describe ‘ “... any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent ....” ’ [Citations.] Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client [citation], whereas a ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. [Citations.] The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382–383.) In C.A. v. William S. Hart Union High School District, supra, the court describes the relationship as a “special relationship”: “[A] school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship SC-2411 (Revised July 1, 2013) MINUTE ORDER between parents and their children.’ [Citations.] Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at pp. 869–870.) (Note: In its moving papers, District improperly cites to the now-unpublished prior decision of the Court of Appeal in C.A. v. William S. Hart Union High School District. (See Cal. Rules of Court, rules 8.1105(e)(1)(B) (effective July 1, 2016), 8.1115(a); former rule 8.1105(e)(1) (effective until July 1, 2016) [changing publication status to unpublished upon grant of review by California Supreme Court].)) As the C.A. court explains, the special relationship is the basis for the expanded scope of duty owed by the District to plaintiff and to other students to use reasonable measures to protect students. This special relationship is not analogous to a trustee-beneficiary or other fiduciary relationship. So, this special relationship is not a fiduciary relationship or a “confidential relationship” in the sense discussed in Barbara A. v. John G., supra. The duty arising from the special relationship is the duty at issue in the plaintiff’s negligence claim. Plaintiff does not allege a fiduciary relationship giving rise to separate fiduciary duties. The demurrer to the eleventh cause of action will be sustained. Plaintiff’s twelfth cause of action is for constructive fraud. “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517.) “Unlike actual fraud, constructive fraud depends on the existence of a fiduciary relationship of some kind, and this must be alleged.” (Id. at pp. 516–517, fn. omitted.) For the reasons discussed above, plaintiff does not allege a fiduciary relationship and hence does not allege a cause of action for constructive fraud. The demurrer to the twelfth cause of action will be sustained. Plaintiff’s thirteenth cause of action is for failing to perform the duty required by Penal Code section 11166. (Complaint, ¶ 200.) “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.” (Pen. Code, § 11166, subd. (a).) District argues that it is not a mandated reporter subject to the act. “Mandated reporter” is a defined term which refers to a lengthy list of individuals, including a teacher, an instructional aide, a teacher’s aide or teacher’s assistant employed by a public or private school, a classified employee of a public school, and an administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel employee of a public or private school. (Pen. Code, § 11165.7, subd. (a).) In opposition, plaintiff argues that the inclusion of individuals such as a teacher in the statutory definition is sufficient to hold the District liable when its employees fail to make a mandated report. “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.) SC-2411 (Revised July 1, 2013) MINUTE ORDER The reporting duties under section 11166 are individual. (Pen. Code, § 11166, subd. (i)(1).) Moreover, while the statutorily-defined mandated reporters are all individuals, section 11166 includes separate reporting obligations for particular public agencies, including county probation or welfare departments (subd. (j)(1)) and law enforcement agencies (subd. (k)). The inclusion of agency duties as separate obligations while not including a public agency such as a public school within the definition of “mandated reporter” strongly indicates that the public school, as an agency separate from its employees, is not a “mandated reporter” with a separate mandatory statutory duty. Consequently, District cannot be liable under Government Code section 815.6 for failing to discharge a mandatory duty imposed on the District itself. The demurrer to the thirteenth cause of action will be sustained. While the court has reservations as to whether some of these causes of action can be stated at all, this is a demurrer to plaintiff’s initial complaint and the court will grant leave to amend for plaintiff to correct the deficiencies identified above and otherwise to plead her best case. (2) Motion to Strike of District “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).) District moves to strike numerous items of text from the complaint. With respect to duties, District seeks to strike statements that use the word “ensure” in describing duties plaintiff ascribes to the District: “Duty to ensure that any direction given to faculty and students is lawful, and thatadults act fairly, responsibly and respectfully towards faculty and students” (Complaint, ¶ 41); “Duty to ensure that personnel are actually on hand and supervising students” (ibid.); “Defendants were required, and failed, to provide adequate campus and off-site school eventsupervision, and failed to be properly vigilant in seeing that supervision wassufficient to ensurethe safety of Plaintiff and others” (Complaint, ¶ 43); “Plaintiff is informed that Defendants failed to use reasonable care in investigatingHARMACHIS and did nothing to investigate, supervise or monitor HARMACHIS to ensure thesafety of the minor students” (Complaint, ¶ 96); “Even though the Defendants knew or should have known of these activities by DefendantHARMACHIS, Defendants did nothing to investigate, supervise or monitor DefendantHARMACHIS to ensure the safety of the minor students, but instead ratified such conduct byretaining HARMACHIS in employment and retaining the benefits of his employment” (Complaint, ¶ 157). Paragraph 157 is within the ninth cause of action to which the court sustains the demurrer of the District, making the motion to strike moot as to that paragraph. District argues that the use of the word “ensure” is improper because the District does not insure students’ safety. “While school districts and their employees have never been considered insurers of the physical safety or students, California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.]’ [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of SC-2411 (Revised July 1, 2013) MINUTE ORDER ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.’ [Citations.]” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.) The court generally agrees that the applicable standard is that stated in the cases previously cited and that standard of care does not make the District an insurer of safety. However, as stated in the complaint, this language is reasonably construed as descriptive without necessarily being literally exact. The purpose of pleadings is to put defendants on notice of the nature of the claims made. “Even as against a special demurrer a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) A statement in the complaint describing generally the duties that plaintiff asserts was breached is helpful in understanding plaintiff’s claims. The motion to strike this language will be denied. District next seeks to strike plaintiff’s fourth cause of action for negligence per se on the grounds that negligence per se is not a cause of action. The court will sustain the demurrer to that cause of action as discussed above. The motion is moot as to these allegations. District seeks to strike the words “fiduciary” or “fiduciary relationship” in paragraphs 27, 28, 166, 172, 173, 174. Paragraph 166 is in the eleventh cause of action; paragraphs 172, 173, and 174 are the twelfth cause of action. The court will sustain the demurrer to these causes of action making the motion moot as these paragraphs. As discussed above, the relationship alleged is not a fiduciary relationship. The description as such is therefore improper. The motion will be granted to strike those terms from paragraphs 27, and 28. As discussed above, warning may potentially fall within the more general duty to protect and so such language in paragraph 56, apart from the “fiduciary relationship” phrase, is not improper. The motion will be granted to strike only the words “fiduciary relationship” from paragraph 56. District seeks to strike the allegation in paragraph 160 regarding attorney fees and costs. Paragraph 160 is within the ninth cause of action to which the court will sustain the demurrer. The motion is moot as to paragraph 160. District seeks to strike the prayer for “any appropriate statutory damages.” In opposition to the motion, plaintiff argues that she is not required to identify or plead any specific statutes by which she may be entitled to statutory damages. To the extent that it is necessary to plead entitlement to obtain statutory damages under a statute that has not been identified, plaintiff fails to provide any legal basis by which such a claim would be proper on the facts as alleged. To the extent that no such pleading is necessary, then the prayer is superfluous. In either case, the language is either unnecessary or improper as now pleaded. The motion will be granted to strike this prayer. District also seeks to strike the attorney fee language in prayer for relief. This prayer is based upon the ninth cause of action. Because the court will sustain the demurrer to the ninth cause of action, there is no present basis alleged for this claim for relief. The motion will be granted to strike this prayer. For the same reasons discussed above with respect to the demurrer, the court will grant leave to amend. (3) Demurrer and Motion to Strike of Harmachis SC-2411 (Revised July 1, 2013) MINUTE ORDER There is a procedural problem with hearing the demurrer and motion to strike of defendant Harmachis at this time. The demurrer and motion to strike were filed as part of Harmachis’s initial appearance in this action at which time Harmachis claimed exemption from paying fees pursuant to Government Code section 6103. In the demurrer and motion to strike Harmachis identifies himself as “a public employee.” Government Code section 6103 does not generically exempt public employees from payment of fees. “Neither the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in his or her official capacity on behalf of the state, or any county, city, district, or other political subdivision, shall pay or deposit any fee for the filing of any document or paper, for the performance of any official service, or for the filing of any stipulation or agreement that may constitute an appearance in any court by any other party to the stipulation or agreement.” (Gov. Code, § 6103, subd. (a), italics added.) The exemption is for “any public officer” not for any public employee. “[A] public officer (or a county officer) is one who, inter alia, is delegated a public duty to exercise a part of the governmental functions of the political unit for which he, as agent, is acting.” (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1212, italics omitted.) “A teacher is a public employee and not a public officer [citation].” (Beseman v. Remy (1958) 160 Cal.App.2d 437, 445.) It thus appears that Harmachis is not entitled to claim an exemption from paying fees as a public officer. The court will therefore set an order to show cause re striking the demurrer and motion to strike for nonpayment of fees. Harmachis may either pay the fees disclaiming exemption under Government Code section 6103 or oppose the order to show cause by citing appropriate authority justifying the exemption. If the fees are paid by the date set in the court’s order with notice given, the court intends to hear the demurrer and motion to strike on the continued hearing date. If Harmachis opposes the order to show cause, the court will resolve the exemption issue at the continued hearing and set further dates as then determined. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kary Swan , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER