Motion-Secondary: Doe v. Santa Clara County Office of Education, et al.

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                                91979.

200374714
Santa Clara — Civil

Electronically Fil
MARK E. DAVIS—BAR NO. 79936 ectronically Filed

ERIC J. BENGTSON—BAR NO. 254167 by Superior Court of CA,

DAVIS & YOUNG, APLC County of Santa Clara,

1960 The Alameda, Suite 210 on 4/13/2021 3:35 PM

San Jose, CA 95126 No filingRevieweshBy: L. Quach-Marcellana
Phone: 669.245.4200 entity or Cage #20@V374714

Fax: 408.985.1814 (Gov. Cogavaupe: 6232665

Attorneys for Defendant
SANTA CLARA COUNTY OFFICE OF

EDUCATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA

JANE MC DOE, an individual, by and Case No. 20CV374714

through her Guardian ad Litem JANE MG [Complaint Filed: 12/14/20]

DOE,
AMENDED MEMORANDUM OF POINTS

Plaintiff, AND AUTHORITIES IN SUPPORT OF
DEFENDANT SANTA CLARA COUNTY
vs. OFFICE OF EDUCATION’S DEMURRER TO

PLAINTIFF’S COMPLAINT

SANTA CLARA COUNTY OFFICE OF

EDUCATION; a business entity of form DATE: June 10, 2021

unknown; MOUNT PLEASANT TIME: 9:00 a.m.

ELEMENTARY SCHOOL DISTRICT, DEPT: 7

business entity of form unknown; EDGAR | JUDGE: Honorable Christopher Rudy
COVARRUBIAS-PADILLA, an

individual; and DOES 1 through 100, Trial Date: Not Set

Defendants.

{91979/00534182-1} Case No. 20CV374714 AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT SANTA CLARA COUNTY OFFICE OF EDUCATION’S DEMURRER TO PLAINTIFF’S COMPLAINT91979

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TABLE OF CONTENTS
PAGE
I INTRODUCTION ......ccscssesescsesseeseeeeesessseseseeesesensssssseeseesseesssisasasesseseeeassasasesseastenes 1
I. STATEMENT OF FACTS qu... ..csccsssesesesesesesesesssessscseesnessensasssseesessnanensssisasesneaeeeseeies 1
IES STANDARD FORIDEMURRERG ts tctt ttt crest crest reece reser: 3
Ves ARGUMENT ites c cc eeteeerer er e rt 4

A. Each of Plaintiff's Causes of Action Alleged Against the SCCOE Attacked
Through This Demurrer Fails to Plead a Precise Statutory Basis for
Liability Against a Public Entirety ........ cee eeeeeseeeeeeeceeeeeeeeeeneeeseeetneneeeates 4

B. Plaintiffs Fourth Cause of Action for Negligent Failure to Warn, Train, or
Educate is Without Merit as the Duty Found in Juarez Does Not Extend
toja RUbIIC schoo) Disthictsr : sere ser en eee tee mene eee 5

C. Plaintiffs Fifth Cause of Action for Intentional Infliction of Emotional
Distress Fails to Plead Facts to Constitute a Cause of Action................00./ 6

i. SCCOE May Not Be Sued for Intentional Infliction of Emotional Distress
Because a Public Entity May Not Be Sued For a Common Law Tort ............ 6

ii. Even If A Public Entity Were Subject To Liability Under an IIED Theory,
Plaintiff Has Failed To Allege Facts Sufficient To Support A Prima
acia. Callselon ActioniAGaiNnst SCC Ob. 56 6

iii. SCCOE Is Not Subject To Liability, Direct or Vicarious, For the
Intentional Acts of Defendant PADILLA Pursuant To An Intentional
MOUS GONY te ee ee ee 8

D. Plaintiff's Eighth Cause of Action for Sexual Harassment (C.C. § 51.9) Is
Not Viable Against SCCOE And Is Therefore Subject To Demurrer........... 9

i. Civil Code Section 51.9 is Encompassed Within the Unruh Act,

Which Applies Only to Business Establishments and is Not

‘Applicableito ayRublic SCHOONDISWICt ttt ester er 9
ii. SCCOE Cannot Be Held Liable Under the Theory of Respondeat Superior ..9

iii. SCCOE Cannot Be Held Liable Under Any Theory of Aiding, Abiding or
Conspiring Damages provided for in Civil Code § 52.............. cece 10

iv. SCCOE Cannot Be Held Vicariously Liable Under Any Ratification Theory...11

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PAGE
E. Plaintiff's Tenth Cause of Action For Breach of Fiduciary Duty
Against SCCOE Fails to Plead Facts To Constitute a Cause
Of ACHION 000... cece eccececeeeeeeeeeeeeeneeeeeeeeaeeeaueeeseeeaeeeeseeeaeeeseeenaeeeaeeeagees 12
F. Plaintiff's Eleventh Cause of Action For Constructive Fraud Fails to
Plead Facts To Constitute a Cause of Action .............cccceseeeeeeeneeeeee eee 13

G. Plaintiffs Twelfth Cause of Action For Public Entity Liability for Failure
to Perform Mandatory Duty is Without Merit and Subject to Demurrer...... 13

H. Plaintiff's Thirteenth Cause of Action for Sexual Harassment and Abuse
In Educational Setting in Violation of Education Code § 220 Is Subject
To Demurrer Because the Complaint Contains No Specific Facts of
Actual Knowledge and Indifference. ................ceceeeeeeeeeeeeeeeeeeaeeteeeeee eee 14

VIS CONCRU S| OI rrcter torte rere teers fete sere fee never erent 15

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TABLE OF AUTHORITIES

PAGE
STATE CASES
Alma W. v. Oakland Unified School District (1981) 123 Cal. App.3d 133.........:cc0ccee 8
Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205..........::::eseeeeeeeeeeee eee 6
Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860.............2+ 10
Behniwal v. Mix (2005) 133 Cal.App.4th 1027........ccccccseceeeeeseteneneeeteeeeeeeteneneaeeee 11

Bock v. Hansen (2014) 225 Cal.App.4th 215....

Brennon B. v. Superior Court of Contra Costa County (2020) 57 Cal. App. 5th 367....... 9

C.A. v. William S. Hart Union High School Dist. (2010) 189 Cal.App.4th 1166......... 12

C.A. v. William S. Hart Union High School District (2012) 53 Cal. 4th 861............ 5,12
C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094.........:cccceceeteeeeeeeteeeees 9
Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224............ 14

Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405..

Cowing v. City of Torrance (1976) 60 Cal. App.3d 757...........:ccccceecceeeeneeeeeee neta eee! 4
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695..........cceccccceeeece sete eeeeeeeeeeeeeaeeeeeeneeee 3
Davidson Vv: Dallas (1027) 01 Cal 22 (pes attn neers ett ree eee ert 11
Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118.............. 5
Donabedian v. Mercury Insurance Company (2004) 116 Cal.App.4th 968...............+ 3
Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567..........:cccccceeeees 15
Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal 4th 1175............c0c0cceeeceee 4
Edwards v. Freeman (1949) 34 Cal.2d 589.........cccccccscseeecceseeeeeeeeeeeeeesaaeeeeeenaeeee 11
Estate of Stephens (2002) 28 Cal.4th 665..............:ccccccsssseeseeseeeeeeeeeeeseeeeeeeeeeneas 11
Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992...........::::::000 8
Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318...

Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376..........::0cc0cccceeeeee 7
Garcia v. Superior Court of Santa Clara County (1999) 50 Cal.3d 728............6004 3,4

Gates v. Bank of America Nat. Trust & Savings Ass’n (1953) 120 Cal.App.2d 571...11

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PAGE
Gebser v. Lago Vista Indep. Sch. Dist. (1998) 524 U.S. 274.00... .cccccceccceeeeeeeeeeeeeees 15
Green Valley Landowners Association v. City of Vallejo
(2015) 241 Cal. App.4th 425. .........cccccccecceececeee eee eeeeeeseeeeeeeeaeeea eee eeeeeeeeeeeeeeeeed 4,5

Grosz v. Lassen Community College Dist. (Cal. E.D. 2008) 572 F.Supp.2d 1199....... 6

Groundwater Cases (2007) 154 Cal.App.4th 659.000... ....cccccceeeeeeeneeeeeeenneeeeeenaeeeeeee 6
Harshbarger v. City of Colton (1988) 197 Cal. App. 3d 1335.20... ...:ccececeeeeneeeeeeeneeees 6
lodges vs County, ol rlacen(2019) 41 Cal ADP OulOS (6. 12
Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925 ...

Hughes v. Pair (2009) 46 Cal.4th 1035............0cc cece cee cece eee e eee ater eee teeeeeeeeee 7
In re Fletcher's Estate (1940) 36 Cal. App.2d 567 .u..0.0. cccccceeccece cece e eee eeeeeeeee seen neae 11
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55..........ccccceeseteeeeeeeeeeeee 10
Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d. 718...........cccccceeeeee enters 8
John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438.........00ccccceeeeeeeee eee 8
Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App.4th 377..........cccccceeseeeneees 5
Kisesky v. Carpenter's Trust for So. Ca. (1983) 144 Cal.App.3d 222........ccccccceeeeeeeee 3
Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.............:008 8
Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780............::c1eeeeeeee 5,15
Maria D. v. Westec Residential Sec., Inc. (2000) 85 Cal.App.4th 125...........:ccceeeeeeeee 8

Michel v. Moore & Associates, Inc. (2007) 156 Cal. App. 4th 756..

Miklosy v. Regents of University of California (2008) 44 Cal.4th 876...........0:ccccceeee 4

Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661.........cccccccccscseeeeseeeeeesseaeeeeeeean ees 10
Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403. .........cccccccsseeeeee ners 8

Nuffer v. Insurance Co. of North America (1965) 236 Cal.App.2d 349..........::ccccccce 11
Odello Bros. v. County of Monterey (1998) 63 Cal. App.4th 778..........:ccccecccenneeeeeees 4

Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814 ...

Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1007 ............cccccseeeeeeees 7
Rakestraw v. Rodrigues (1972) 8 Cal. 30 67.........ccccccseeeeeeeeneeeeeeeeeeeeeeaaeeeeenaneeeeee 11

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Rickel v. Schwinn Bicycle Co. (1983) 144 Cal. App.3d 648............ccccccceeeeeeeeeeeeeee 12
Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453....

Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792.0... 13
Trinkle v. California State Lottery, 71 Cal. App. 4th 1198............ccccceceneeeteeeeeeee es 6
STATUTES

California Civil Code § 51.9... eee cece cece essa een eeeeteeteeeeeeeeee 9, 10, 12, 14
California Civil Code § 52.0.0... eccccceceecece ee eeeeesaaeeeeeesaeeeeeeaeeesseaaeeseeanaeeees 1,10
Califomia Civil COUG|S OTS teeters ee eet ene eens 13
Caliiomia Givi Code S23) Ot ec es cnt ree eee eee eee 11
California Civil Code § 2314.0... i cccceeccecenseeceesaaeeeeeenaeeseeeanesesseaaeeseeanae reas 11

California Code of Civil Procedure § 340.1(b)(1) ....

‘Califomia Code ol Civil PlOCedUIC S430 Otte 3
California Code of Civil Procedure § 430.10(€) ............ccccceeeeceeeeeeseeeeeeeeeeeeesseeensees 3
California Code of Civil Procedure § 430.30.............ccccccsesssssseeeseeeeeeeseeeeeseeeeeeaeenes 3
Califomia Code or Civile lOCedUiC SG AS0:40 (a) 8 4
‘Califomia Coderoi CivillielOCedute AGO 'A le 4
California Rule of Court 3.1322(b) .... 0.0... c cc eeeeeeeneeeeeeeeeeeeeee eae eeeeeeeeeeseaaeeeenanaeeeees 1
Education| COU S:200 5 14
Education Code § 201...........cceecsceeeecenneeeeeeeeeeeeeeeeeeeeaaeeeeeeeaaeeeeenaneeeeeaneeeeenags 14
Education Code § 201(a) ..........ceeecceeeeeeeeeeeeeeeneeeeeeaaeeeeeeeeeeeeeuaeeeeeaaaeeeeeeaeeees 14
Education) Code $1201 (0) eee 14
Eduication; Code $:20)(C) its 14
Education Code § 201(d) .........cceeeecceeeeeeeeeeeeeeeeeeeeeeeaaeeeeeeeeeeeeeeeeeeesaaaeeeeeeeeeees 14
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Education; Ode $1201 (C) 506 14
Education Code § 201 (f)

Education Code § 220............cceecceececeeeeneeeeeeec seca eeeaeeeeaeeeaeeeeaeeeaeeeeneeeaeee
Government Code § 815.000... ccccccececeeeeeeeeeeaeeeeeeaaneeeeeeeeeeeseaaeeeeeegee ed! ae 5.67 13,
Government Code |S O)5(a) erect en terre eee 4,6, 13
Government Code § 815.6...........cceccee neces eeeeee eee eeeeneeeeaeeeaeeeeaeeeaeeeaeeenaeeeaee 4,5
Health and Safety Code § 51900.6...............ccccseeeseeeceeeeeeeeeeeeeeeeseeseseneeeeeeseesereee 6
OTHER

Title IX Of 20 U.S.C. § 1681... ec cece cece eenneeeeeeeeeeeeeeeeeeneeeeaeeeaaanaes 14,15
Califomia Civil JUnyIMSUUICHON G02. este Me

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L INTRODUCTION

According to Plaintiffs Complaint, this case arises out of alleged sexual harassment, sexual
molestation, and sexual abuse in the year 2013 of then-minor Plaintiff JANE MC DOE (“Plaintiff”),
by Defendant EDGAR COVARRUBIAS-PADILLA (“PADILLA”), who the Plaintiff alleges was
retained by, and worked for, defendant public school district SANTA CLARA COUNTY OFFICE
OF EDUCATION (“SCCOE”), at the time of the abuse. Plaintiff has named three separate
defendants in the Complaint: SCCOE, MOUNT PLEASANT ELEMENTARY SCHOOL
DISTRICT (“MPESD”), and PADILLA in his individual capacity.

Plaintiff attempts to hold defendant SCCOE, a public school district, liable for the alleged
sexual misconduct of its alleged employee, Defendant PADILLA, for claims and damages which
cannot be asserted against, or recovered from, such a public entity, as is addressed more fully herein.

Plaintiff, among other claims, improperly asserts the following causes of action against
SCCOE: Fourth Cause of Action: Negligent Failure to Warn Train or Educate; Fifth Cause of
Action: Intentional Infliction of Emotional Distress; Eighth Cause of Action: Sexual
Harassment; Tenth Cause of Action: Breach of Fiduciary Duty; Eleventh Cause of Action:
Constructive Fraud; Twelfth Cause of Action: Public Entity Liability for Failure to Perform
Mandatory Duty; Thirteenth Cause of Action: Sexual Harassment and Abuse in Educational
Setting: Education Code Section 220. The aforementioned causes of action are subject to
demurrer, either because they are not viable claims against SCCOE, or because they are based upon
conclusory allegations without the requisite supporting facts necessary to survive demurrer.

As part of Plaintiffs prayer for damages, from Defendant SCCOE she seeks treble damages
under Section 340.1(b)(1) as well as attorney fees under Civil Code Section 52.

Pursuant to California Rule of Court 3.1322(b), SCCOE has filed a concurrent Motion to
Strike to eliminate from the Complaint Plaintiffs prayer for treble damages and attorney fees
under Civil Code 52.

Il. STATEMENT OF FACTS

Plaintiff alleges that in or around 2013, when she was ten years old, she suffered from sexual

harassment, abuse and molestation by Defendant PADILLA while she attended Walden West

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Science Camp (“Walden West”). (Complaint 418, 30.) At the time, Plaintiff was a minor student
at Ida Jew Academy, a charter school within MPESD that contracted with SCCOE to provide an
outdoor education experience for students at Walden West. (Complaint 413.) Plaintiff contends
that SCCOE, among others, hired PADILLA to work at, Walden West, a public educational science
camp owned and operated by SCCOE, that provides outdoor school experiences including overnight
camp for Santa Clara County minors. (Complaint 44.)

Plaintiff alleges that, in the year 2013, PADILLA served as a night monitor, mentor, and
counselor at Walden West, and was charged with supervision, counseling, advisory, educational,
and meeting emotional needs of the students at Walden West, including the Plaintiff. (Complaint
16.) Plaintiff contends that, by hiring PADILLA to serve as an employee, night monitor, mentor,
and counselor to minor students, SCCOE and MPESD held PADILLA out to the public as a man of
high ethical and moral repute. (Complaint 415.) Plaintiff states that because she was under
PADILLA’s direct supervision, care and control, a special relationship, fiduciary relationship, and
confidential relationship was forged. (Complaint 419.)

Plaintiff additionally alleges that Defendants (unnamed and thus assumed Plaintiff intended
to mean each Defendant named apart from PADILLA) stood in loco parentis with respect to
Plaintiff while she was attending camp at Walden West, thus the Defendants were also in a special
relationship with the Plaintiff and owed her special duties. (/d.) Plaintiff contends that Defendants
knew or should have known that PADILLA had violated his role as night monitor, mentor, aide,
counselor, advisor, and faculty member, and that he used this position of authority and trust acting
on behalf of Defendants to gain access to children in order to commit sexual abuse, harassment, and
molestation. (Complaint 423.)

The Complaint alleges that PADILLA sexually harassed, molested, and abused Plaintiff for
sexual gratification without Plaintiffs free consent (Complaint 18), and that Defendants knew or
should have known that PADILLA had engaged in unlawful sexually-related conduct with minors in
the past, and/or was continuing to engage in such conduct. (Complaint 419). Upon information
and belief, the Plaintiff alleges that PADILLA was under investigation for possession and
distribution of child pornography at least six months prior to being arrested (no date is provided for

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the arrest) and that Defendants (not specified) ignored and concealed the sexual abuse of Plaintiff
and others. (Complaint 420.) The Complaint later states that once PADILLA was arrested (no date
is provided), he was removed from Walden West. (Complaint 4205.)

Subsequent to the sexual abuse at the hands of PADILLA, Plaintiff contends to have
experienced multiple mental, emotional and psychological problems as a result of the sexual
harassment, molestation, and abuse. (Complaint 930.)

Of note, Defendant PADILLA is believed to be currently incarcerated at the California
Correctional Institution in the County of Kern, State of California, serving an 18-year prison
sentence. (Complaint §[6.)

Ill. STANDARD FOR DEMURRER

Code of Civil Procedure (“CCP”) section 430.10 states in relevant part:

“That a party against whom a complaint ... has been filed may object, by demurrer or
answer, as provided in section 430.30 to the pleading on any one or more of the following grounds: .

(e) The pleading does not state facts sufficient to constitute a cause of action”

(Code of Civil Proc. 430.10(e).)

A demurrer tests the legal sufficiency of the pleading. Its function is to raise issues of law,
not fact, regarding the content of the pleading. (Donabedian v. Mercury Insurance Company (2004)
116 Cal.App.4th 968, 994.) A demurrer challenges the defects which appear on the face of the
pleading, or, alternatively, facts which are judicially noticeable. (/d.) In determining whether the
allegations of a pleading are sufficient to state a cause of action, "[a] demurrer admits all material and
issuable facts properly pleaded. However, it does not admit contentions, deductions, or conclusions
of fact or law alleged therein." (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) Thus, any
contentions, deductions, or conclusions of law or fact which are part of the plaintiff's Complaint may
not be considered in making a determination that this pleading is sufficient to withstand the District’s
demurrer. (See Kisesky v. Carpenter’s Trust for So. Ca. (1983) 144 Cal.App.3d 222, 228.) A court
should not be required by conjecture to supply a necessary but missing allegation, which, if it had
been made, would run counter to reasonable probability, even though it would have to be accepted as
true for the purpose of testing the sufficiency of the complaint. (Garcia v. Superior Court of Santa

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Clara County (1999) 50 Cal.3d 728, 737.)

SCCOE’s legal counsel has properly met and conferred with Plaintiff's counsel regarding
the deficiencies of Plaintiff's Complaint, pursuant to Cal. Code of Civ. Proc. sections 430.40(a) and
430.41. (Decl of Eric J. Bengtson, Esq. 992-4). However, the parties were unable to resolve the
issues concerning Plaintiff's Complaint. (Decl of Eric J. Bengtson, Esq. 5).

IV. ARGUMENT

A. Each of Plaintiff's Causes of Action Alleged Against SCCOE Attacked Through
This Demurrer Fails to Plead a Precise Statutory Basis for Liability Against a
Public Entity.

As a public entity, SCCOE can only be liable for duties specifically created by statute.
Common law tort liability is precluded against public entities. (Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876.) As the Legislative Committee Comments to Government Code §
815 explain, “the practical effect of this section is to eliminate any common law governmental
liability for damages arising out of torts.” (Odello Bros. v. County of Monterey (1998) 63
Cal.App.4th 778, 792, as modified (June 1, 1998).) Further “[tJhere is no common law
governmental tort liability in California; and except as provided by statute, there is no liability on
the part of a public entity for any act or omission of itself, a public employee, or any other person.”
(Green Valley Landowners Association v. City of Vallejo (2015) 241 Cal.App.4th 425, 441-442,
citing Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761.)

Public entities can only be held liable if a statute declares them to be liable. (Gov. Code §
815(a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) The statute must impose
amandatory duty. Gov. Code § 815.6 clarifies this point:

“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.” (Cal. Gov Code Section 815.6.)

A general tort statute is insufficient by itself to serve as a basis for direct public liability.
(Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal 4th 1175, 1184.) In Eastburn, the Court
held direct liability against a public agency could not be imposed based on a general duty of

ordinary care where the plaintiffs failed to identify an independent statutory basis for imposing

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liability, as required by Gov. Code § 815.6. In fact, the only viable causes of action against a school
district are for Negligence, Negligent Supervision and Negligent Retention. (C.A. v. William S. Hart
Union High School District (2012) 53 Cal. 4th 861, 877-79.)

B. Plaintiff’s Fourth Cause of Action for Negligent Failure to Warn, Train, or Educate
is Without Merit as the Duty Found in Juarez Does Not Extend to a Public School

District.

SCCOE is a public school district and is therefore undeniably a public entity. All liability
against public entities like the District must be based on statute. (See Gov. Code § 815; Lopez v. S.
Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) The duty to warn, educate, and train is
indisputably a duty created solely through common law by the Court’s ruling in Juarez v. Boy
Scouts of America, Inc. (2000) 81 Cal. App.4th 377. SCCOE is immune from this or any common
law duty. (Green Valley Landowners Association v. City of Vallejo, supra. 241 Cal.App.4th at p.
441-442.) Further, the Juarez opinion imposed a duty on the Boy Scouts of America (and that entity

only) to educate, train and warn Scouts about the dangers of childhood sexual abuse. The Juarez

court emphasized that “the reach of [its] opinion is only intended to extend as far as the records
before [it] today.” (Juarez, supra, at p. 409) (emphasis added.) The Juarez holding is narrow; in
fact, no subsequent California cases have expanded its decision beyond the Boy Scouts of America.
To the contrary, the Court of Appeal explicitly held in Peter W. v. San Francisco Unified School
District (1976) 60 Cal.App.3d 814 that public school districts cannot be liable under a “negligent
failure to educate” theory. (Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d
814, 825 [“The novel -- and troublesome -- question on this appeal is whether a person who claims
to have been inadequately educated, while a student in a public school system, may state a cause of
action in tort against the public authorities who operate and administer the system. We hold that he
may not.”].) Furthermore, other courts which have considered the issue have specifically declined
to impose a duty on any entity to educate, train and warn about the risks of sexual abuse. (See Doe v.
United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.Sth 1118, 1138-1139, as modified on
denial of reh'g (Mar. 16, 2017).)

Plaintiff failed to identify any statute imparting a duty on SCCOE to warn or educate.
Moreover, Plaintiff cannot do so as there is no statute mandating curriculum on either sexual abuse

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or sexual assault awareness and prevention currently, let alone in the year 2013. (See Health and
Safety Code § 51900.6.) Therefore, as a matter of law, Plaintiff cannot plead Negligent Failure to
Warn, Train, or Educate against SCCOE.

C. Plaintiff's Fifth Cause of A
Fails to Plead Facts to Con:

n for Intentional Infliction of Emotional Distress

ite a Cause of Action.

i. SCCOE May Not Be Sued for Intentional Infliction of Emotional Distress
Because a Public Entity May Not Be Sued For A Common Law Tort.

As discussed above, a general tort statute is insufficient by itself to serve as a basis for direct
public liability. Therefore, a public entity may not be sued for a common law tort, such as
Intentional Infliction of Emotional Distress (“IED”). (in re Groundwater Cases (2007) 154
Cal.App.4th 659, 688.) Sovereign immunity is the rule and a public entity may be held liable only if
there is a statute subjecting it to civil liability. (/d.) To hold otherwise would contradict the
Legislature's mandate that “[e]xcept as otherwise provided by statute: [§]] ... [a] public entity is not
liable for an injury, whether such injury arises out of an act or omission of the public entity ... .”
(Cal Gov Code § 815, subd. (a).) Cal Gov Code § 815 “amounts to a legislative declaration that
governmental immunity from suit is the rule and liability is the exception.” (Trinkle v. California
State Lottery, 71 Cal. App. 4th 1198, 1202 (1999).) As such, “public entities may be liable only if a
statute declares them to be liable.” (Harshbarger v. City of Colton (1988) 197 Cal. App. 3d 1335,
1339; Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409 (“governmental liability
is limited to exceptions specifically set forth by statute”).

Specifically, a claim for intentional infliction of emotional distress is a common law claim
barred by Section 815 as a matter of law. (Grosz v. Lassen Community College Dist. (Cal. E.D.
2008) 572 F.Supp.2d 1199, 1212, disapproved on other grounds [IIED is a common law claim,
unsupported by a constitutional requirement or statute, and thus, plaintiffs may not allege this claim
against defendants.”’]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1208 [county
was statutorily immune for claims of ITED arising from police officer statements.]) Plaintiff has no
grounds to challenge these principles, which prove fatal to Plaintiff's ITED claim.

ii. Even If A Public Entity Were Subject To Liability Under an IIED Theory,
Plaintiff Has Failed To Allege Facts Sufficient To Support A Prima Facie
Cause of Action Against SCCOE.

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To establish an intentional infliction of emotional distress claim, Plaintiff must prove: (1)
SCCOE’s conduct was outrageous; (2) SCCOE intended to cause Plaintiff emotional distress or
acted with reckless disregard of the probability that Plaintiff would suffer emotional distress; (3)
that Plaintiff suffered severe emotional distress; and (4) that SCCOE was a substantial factor in
causing Plaintiff's severe emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051
(emphases added); see also California Civil Jury Instruction 1600). “Severe emotional distress [is]
emotional distress of such substantial quantity or enduring quality that no reasonable [person] in a
civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970)

10 Cal.App.3d 376, 397.) The defendant's conduct must be “‘intended to inflict injury or engaged in

with the realization that injury will result.’”” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051,
quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

The “outrageous conduct” considered in the first element of intentional infliction of
emotional distress is conduct that is so extreme, it goes beyond all possible bounds of decency.
(California Civil Jury Instruction 1602.) “[W]hether conduct is outrageous is ‘usually a question of
fact’... . [However] many cases have dismissed intentional infliction of emotional distress cases on
demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.”
(Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.)

The conduct alleged against Defendant SCCOE does not fall into the category of conduct
which could be described as “outrageous” or that which “has gone beyond all reasonable bounds of

decency.” Instead, Plaintiffs theory of intentional infliction of emotional distress against SCCOE

relies entirely on an allegation of failure to supervise:

“A reasonable person would not expect or tolerate Defendants to be incapable of
supervising and preventing employees of Defendants, including PADILLA, from
committing wrongful sexual abuse of minor students . . . or to properly supervise
PADILLA to prevent such sexual exploitation from occurring, or to promptly notifv
parents or authorities.” (Complaint. 1133.)

In other words, Plaintiff contends that SCCOE is liable for ITED because of an alleged
failure to supervise. In conclusory fashion, Plaintiff claims that SCCOE knew of PADILLA’s

danger to Plaintiff and did nothing to prevent him from harming her. But Plaintiff's own Complaint
undermines this assertion where she alleges that once PADILLA was arrested, he was removed from

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Walden West. (Complaint, 4205). In addition, California caselaw holds that knowing something is
occurring and failure to prevent or stop it does not rise to intentional conduct. Such conduct is, at
most, negligent. (Fiol v. Doellstedt (1996) 50 Cal. App.4th 1318, 1326. As a matter of law, this
alleged conduct is insufficient to sustain an intentional infliction of emotional distress claim against
SCCOE.
iii, SCCOE Is Not Subject To Liability, Direct or Vicarious, For the Intentional
Acts of Defendant PADILLA Pursuant To An Intentional Tort Theory.
Finally, SCCOE cannot be held vicariously liable for the sexual torts of its employees as a
matter of law pursuant to a host of longstanding California case law. (See, e.g., Lisa M. v. Henry
Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301 [‘The [ultrasound] technician’s
decision to engage in conscious exploitation of the patient did not arise out of the performance of
the examination...”]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1007
[plaintiff could not “dispute that... repeated requests for sexual favors and his inappropriate
touchings were motivated for strictly personal reasons unrelated to... [any] duty of a deputy
sheriff...”]; John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438, 452 [abuse of teacher’s
position to “indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault
as falling within the range of risks allocable to a teacher’s employer”]; Myers v. Trendwest Resorts,
Inc. (2007) 148 Cal.App.4th 1403, 1432 [“Damlahki’s sexual conduct toward plaintiff was not
typical of or broadly incidental to Trendwest’s enterprise of selling timeshares ”/; Maria D. v.
Westec Residential Sec., Inc. (2000) 85 Cal.App.4th 125, 146 [the mere fact the security guard had
the opportunity to abuse the trappings of his profession does not render Westec vicariously liable for
the rape”); Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d. 718, 722 [“Certainly [a
Sunday school teacher] was not employed to molest young boys”); Rita M. v. Roman Catholic
Archbishop (1986) 187 Cal.App.3d 1453, 1461 [“Plaintiffs could not seriously contend that sexual
relations with parishioners are either required by or instant to a priest’s duties...”]; Alma W. v.
Oakland Unified School District (1981) 123 Cal.App.3d 133, 140 [Sexual molestation is in no way
related to mopping floors, cleaning rooms, or any of the other tasks that are required of a school
custodian.”].)

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D. Plaintiff's Eighth Cause of Action for Sexual Harassment (C.C. § 51.9) Is Not
Viable Against SCCOE And Is Therefore Subject To Demurrer.

Plaintiff's eighth cause of action for sexual harassment in violation of Cal. Civil Code § 51.9
is not viable against SCCOE because an entity is incapable of assaulting or harassing anyone and
because the statute does not apply to public school districts.

i. Civil Code Section 51.9 is Encompassed Within the Unruh Act, Which

Applies Only to Business Establishments and is Not Applicable to a Public
School District.

In a November 13, 2020 published opinion, the First District Court of Appeal addressed an
issue of first impression in the California courts by concluding, after an exhaustive analysis, that
public school districts are not business establishments for purposes of the Unruh Act. (Brennon B.
vy. Superior Court of Contra Costa County (2020) 57 Cal. App. 5th 367.) In reaching its conclusion,
the Court of Appeal of California, First Appellate District, reviewed the history of the Unruh Civil
Rights Act and surveyed other Court decisions interpreting the Act, noting the following:

Although the analyses in these cases was more limited than ours here and generally

focused on a government entity's legislative activity, the result they reached is the

same—government entities were held not to be business establishments under

the Unruh Civil Rights Act. Furthermore, public school districts can well be

described, in acting as the state's agent in delivering constitutionally mandated, free

primary and secondary education to the state's school age children, as a “public

servant, not [as] a commercial enterprise.” [Citations.] (Brennon B., supra, at 390,

emphasis added.)

ii. SCCOE Cannot Be Held Liable Under the Theory of Respondeat Superior.

Even if the Court finds that § 51.9 applies to public school districts, plaintiff must allege that
SCCOE was either responsible for PADILLA’s actions under the theory of respondeat superior, or
that SCCOE aided, abetted, conspired with, or ratified PADILLA’s conduct. (C.R. v. Tenet
Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1112.) Plaintiff cannot, as a matter of law, show
the former, and failed to plead facts with sufficient specificity to satisfy the latter.

California law makes a critical distinction between direct negligence and vicarious liability
claims. As an entity, SCCOE could not and did not sexually harass, abuse, or molest the Plaintiff.
As discussed supra, California law is clear that an employer cannot be held vicariously liable for

sexual assault committed by its employees. Therefore, plaintiff cannot maintain that SCCOE is

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liable under § 51.9 on a theory of respondeat superior.
iii. SCCOE Cannot Be Held Liable Under Any Theory of Aiding, Abiding or
Conspiring Damages provided for in Civil Code § 52.

Damages under Cal. Civ. Code Section 52 can only be recovered with proof of intentional
conduct on the part of the defendant, except in the narrow context of allegations of violations of the
Americans with Disabilities Act (“ADA”). (Munson y. Del Taco, Inc. (2009) 46 Cal.4th 661, 693.)
“Mere knowledge that a tort is being committed and the failure to prevent it does not constitute
aiding and abetting. [Citation.] ‘As a general rule, one owes no duty to control the conduct of
another...’ [Citations.] More specifically, a supervisor is not liable to third parties for the acts of his
or her subordinates.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879
[school district employees were not liable as “aiders and abettors” of a instructor’s alleged battery of
two students, even if they were aware of the alleged tortious conduct but failed to take action to
prevent it], citing Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326 [“mere failure to act does not
constitute the giving of ‘substantial assistance or encouragement’ to the tortfeasor.”])

Although the claims of aiding and abetting and a claim of conspiracy are similar, there is a
distinction. The concept of aiding and abetting involves two separate persons, one helping the other.
As described by the Court in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 77-78.
conspiracy is closely allied with aiding and abetting; it requires agreement plus an overt act causing
damage. Aiding and abetting requires not agreement, but simply assistance. The common basis for
liability for both conspiracy and aiding and abetting is concerted wrongful action.

Plaintiff did not and cannot point to any concerted wrongful actions by SCCOE in aiding,
inciting, or conspiring with PADILLA. Instead, Plaintiff at most pleads an alleged negligent failure
to act/omission. In so doing, Plaintiff fails to plead the requisite specific affirmative acts to show
aiding, inciting, or conspiring by SCCOE in PADILLA’s alleged acts of abuse. By alleging that
SCCOE committed various failures in the supervision of PADILLA, Plaintiff is attempting to
stretch a negligence theory into a tort of intention. This sleight of hand is an attempt to capture
attorney’s fees where, legally, none are available.

Ml

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iv. SCCOE Cannot be Vicariously Liable Under Any Ratification Theory.
According to the California Supreme Court in Estate of Stephens (2002) 28 Cal.4th 665, 673,
the definition of “ratification” is the “voluntary election by a person to adopt in some manner as his
own an act which was purportedly done on his behalf by another person, the effect of which...is to
treat the act as if originally authorized by him.” (See also Behniwal v. Mix (2005) 133 Cal.App.4th
1027, 1039.) Ratification requires the principal ratify with full knowledge of all of the material
facts. (Civ. Code § 2314; Edwards v. Freeman (1949) 34 Cal.2d 589, 592, emphasis added.) To be

binding, a ratification must be made with knowledge of all the facts necessary for an intelligent
exercise of judgment on the part of the principal. (Davidson v. Dallas (1857) 8 Cal. 227, 244.)
Ratification also requires that the principal have full knowledge of the legal effects and rights
concerning the act done by the agent. (Jn re Fletcher's Estate (1940) 36 Cal.App.2d 567, 573.) It is
essential that the act of adoption be truly voluntary in character. (Rakestraw v. Rodrigues (1972) 8
Cal.3d 67, 73.) Ratification is not valid unless the principal had the power to confer authority for the
performance of the act at the time the act was performed. (Civ. Code § 2310.) There is no
presumption that an agent had authority to commit a criminal act. (Nuffer v. Insurance Co. of North
America (1965) 236 Cal.App.2d 349.) Finally, it is presumed that the principal will not ratify an act
which was originally done without authority. (Davidson v. Dallas (1857) 8 Cal. 227; Gates v. Bank
of America Nat. Trust & Savings Ass’n (1953) 120 Cal.App.2d 571.)

Here, Plaintiff failed to plead any specific facts to show “ratification” beyond the vague
conclusion that despite SCCOE knowing or should have knowing of PADILLA’s current and
previous inappropriate and illegal conduct, SCCOE continued to employ PADILLA. Plaintiff
makes no factual allegation that indicates the nature, extent, and severity of previous conduct by
PADILLA allegedly known to SCCOE, who within SCCOE knew of the conduct, or, significantly,

when the alleged conduct was known to SCCOE. Instead, the Complaint simply states that once

PADILLA was arrested, SCCOE required his removal from Walden West.

Plaintiff likewise fails to allege how SCCOE adopted PADILLA’s wrongful and illegal acts
as its own, especially when PADILLA’s acts were undeniably carried out without SCCOE’s
authority. The standards of a demurrer do not permit the Court to draw conclusions or deductions of

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fact or law. Therefore, Plaintiff's allegations articulate, at most, theories of negligent conduct by
SCCOE, and do not contain facts demonstrating any affirmative intentional conduct on the part of
SCCOE or its employees. As a result, Plaintiff's eighth cause of action for Sexual Harassment in
Violation of Civil Code section 51.9 is not viable against SCCOE and cannot survive demurrer.
E. Plaintiff's Tenth Cause of Action For Breach of Fiduciary Duty Against SCCOE
Fails to Plead Facts To Constitute a Cause of Action.

The determination of the existence of a fiduciary relationship is generally a question of law.
(Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546.) “A ‘fiduciary relation’ in law is
ordinarily synonymous with a ‘confidential relation.’ It is ... founded upon the trust or confidence
reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of
profit or advantage resulting from the dealings of the parties and the person in whom the confidence
is reposed.” (Hodges v. County of Placer (2019) 41 Cal.App.Sth 537, 547, quoting from Rickel v.
Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654.) As the Court of Appeal noted in a prior
published decision in a case alleging a teacher's sexual abuse of a student, “[W]e have not found,
any authority stating that a fiduciary relationship exists between a school district and an individual
student.” (C.A. v. William S. Hart Union High School Dist. (2010) 189 Cal.App.4th 1166, 1176
(overruled on other grounds by C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861). The only duty owed by a school district to a student is one of due care. (/d.)

Plaintiff alleges there existed a fiduciary relationship between Plaintiff and SCCOE and that,
as a result, SCCOE owed Plaintiff a special duty of due care above and beyond a duty of ordinary
care. The only fact in support of this assertion is that Plaintiff was a minor student of MPESD when
she was sent to Walden West, a camp owned, operated, and controlled by SCCOE. (Complaint 43,
5, 165.) The assertion of a fiduciary relationship is hollow, and lodged without factual support.

There is no dispute that a relationship between school districts and students which can
support a theory of negligence. However, the special relationship that does exist does not give rise
to the extraordinary obligations found in a fiduciary relationship. Should such a fiduciary
relationship be determined, school districts would be met with an impossible task. After all, a
school district could not possibly owe each individual student undivided loyalty, when they already

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owe a duty of care to a variety of students, educators, administrators, and staff. Certainly, no cases
or statute consider the relationship between a school district and student to arise to the level of a
fiduciary. This would be unreasonable on a broad level, and it is similarly unavailing here.

F. Plaintiff’s Eleventh Cause of Action for Constructive Fraud Fails to Plead Facts to

Constitute a Cause of Action

Plaintiff's eleventh cause of action alleges a purported violation of Civil Code § 1573,
“constructive fraud,” a cause of action that consists of “any breach of duty which, without an
actually fraudulent intent, gains advantage to the person in fault...by misleading another to his
prejudice.” (Cal Civ Code § 1573.) Fatal to Plaintiff's claim, the statute does not authorize the
assertion of a constructive fraud claim against a school district, as required by Government Code §
815. On this basis alone, the demurrer to this cause of action should be sustained without leave to
amend. Second, constructive fraud is a unique species of fraud applicable only to a fiduciary or
confidential relationship. (Michel v. Moore & Associates, Inc. (2007) 156 Cal. App. 4th 756, 763.)
Although Plaintiff alleges the existence of a fiduciary or confidential relationship between herself
and SCCOE, the facts do not support such a conclusion, as discussed at length, supra. Certainly,
“duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion
of law, not an allegation of fact. The facts showing the existence of the claimed duty must be
alleged.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) As submitted
in the above section on breach of fiduciary duty, the facts alleged do not establish the existence of a
fiduciary relationship between Plaintiff, a student, and SCCOE, a public school district.

G. Plaintiff's Twelfth Cause of Action for Public Entity Liability for Failure to

Perform Mandatory Duty is Without Merit and Subject to Demurrer.

The interplay between public entities and its mandatory duties under statutes has been
discussed at length in this brief. Out of risk of repetition, it bears restating here that public entities
can only be held liable if a statute declares them to be liable. (Gov. Code § 815(a); Hoff'v. Vacaville
Unified School Dist. (1998) 19 Cal.4th 925, 932.) In order for a statutory duty to be applicable to
public entities, the enactment relied upon must impose a mandatory duty, not a discretionary duty,
“neither must the enactment simply set forth a prohibition or a right as opposed to an affirmative

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duty on the part of a government agency to perform some act.” (C/ausing v. San Francisco
Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239) (emphasis added.) “If rules and guidelines
for the implementation of an alleged mandatory duty are not set forth in an otherwise prohibitory
statute, it cannot create a mandatory duty.” (/d. at 1240.)

In support of its twelfth cause of action for public entity liability for failure to perform
mandatory duty, the Plaintiff alleges that SCCOE had a mandatory duty to prevent sexual
harassment, which it failed to do, in violation of Education Code §§ 200, 201(a)-(f), Civil Code §
51.9, and Title IX of 20 U.S.C. § 1681. (Complaint §9195, 196.) The viability of Plaintiff's Civil
Code § 51.9 allegation against SCCOE has been addressed at length, supra. Her allegations of
failure to perform the mandatory duties of Education Code §§ 200 and 201 meet the same fate.

In essence, through these statutes, the Legislature has imposed on public schools in
California an affirmative duty to protect public school students from discrimination and harassment
engendered by race, gender, sexual orientation or disability. Similarly, Title IX of 20 U.S.C. §1681
states that “no person in the United States shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education program. . .”

Plaintiff has not sufficiently pled facts that SCCOE committed, or failed to commit, any acts
to state a cause of action under Education Code Sections 200 and 201, or of Title IX. For example,
the Complaint includes no allegations that SCCOE engaged in acts of discrimination, or that it failed
to implement policies or practices to counter discriminatory incidents, hate violence, racism, or
harassment on the basis of personal characteristics.

Moreover, for the reasons expressed in Defendant’s argument concerning Plaintiff's Eighth
Cause of Action for Sexual Harassment under Civ. Code Section 51.9, with respect to which
Plaintiff relied on the same facts, Plaintiff has failed to plead facts sufficient to support a claim that

SCCOE should be vicariously liable, or that it ratified PADILLA’s actions of sexual abuse.

H. Plaintiff’s Thirteenth Cause of Action for