C.A. v. William S. Hart Union High Sch. Dist. 11/5/10 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B217982

Case Date: 02/24/2011

Preview:Filed 11/5/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

C.A., a Minor, etc., et al., Plaintiffs and Appellants, v. WILLIAM S. HART UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

B217982 (Los Angeles County Super. Ct. No. PC044428)

APPEAL from a judgment of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed. Manly & Stewart, John C. Manly and Vince W. Finaldi for Plaintiffs and Appellants. McCune & Harber, Stephen M. Harber and Joseph W. Cheung for Defendants and Respondents. --------------------

C.A., a minor,1 filed a complaint through a guardian ad litem, naming as defendants a public high school, the school district, and an individual guidance counselor. The complaint alleged 11 causes of action, including negligence, negligent supervision, negligent hiring, sexual battery, assault, and sexual harassment. The trial court sustained a demurrer without leave to amend. C.A. appeals. FACTS C.A. filed his complaint on January 8, 2009. The trial court earlier had granted C.A.`s petition for relief from the provisions of Government Code section 945.4, 2 permitting C.A. to file the complaint. The complaint alleged that C.A. was a student at a public high school operated by the William S. Hart Union High School District (School District). The head guidance counselor and advisor at the high school (an employee of the School District) was assigned to counsel, advise and mentor C.A. The complaint alleged that the guidance counselor sexually harassed, abused and molested C.A. on a number of occasions from January 2007 to September 14, 2007. The guidance counselor drove C.A. home from school and spent long hours with C.A. on and off the high school premises. The guidance counselor performed a variety of sexual acts on C.A. and required him to perform a number of sexual acts on her. C.A. suffered extensive physical, psychological and emotional damages as a result. The School District knew that [the guidance counselor] had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct, but failed to take reasonable steps to prevent further unlawful sexual conduct by the guidance counselor. The complaint stated causes of action against the School District, the high school, and the guidance counselor3 for negligence; negligent supervision; negligent hiring

C.A. was born July 13, 1992, and was a minor at the time of the alleged events and at the time the complaint was filed. All further statutory references are to the Government Code unless otherwise indicated. 2
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and/or retention; negligent failure to warn, train or educate; constructive fraud; intentional infliction of emotional distress; sexual battery; assault; sexual harassment; gender violence; and unfair business practices. The School District filed a demurrer to the complaint on February 13, 2009. The School District argued that it could not be held liable in tort in the absence of an authorizing statute or enactment, that it could not be held vicariously liable for the guidance counselor`s actions, and that allegations of negligent hiring, training, and supervision did not apply against a public entity defendant. The School District also demurred on behalf of the high school, which was not an independent public entity. The School District filed a motion to strike the portions of the complaint seeking punitive damages, attorney`s fees, injunctive relief, and restitution from the School District. C.A. filed an opposition to the demurrer and the motion to strike, requesting an opportunity to amend if the demurrer were sustained. The School District replied. The court heard the demurrer on May 18, 2009. At the hearing, the court stated: Government Code [section] 815.2[, subdivision] (a) . . . provided the public entity is liable for injuries proximately caused by an act or omission of employees but within the scope. Here the employee was outside the scope of their employment. And . . . the cases that were cited, they were unrelated to the duties of the counselor. And so the moving party can`t be held vicariously liable for the misconduct under that government code. The court added: [O]n the sexual harassment, Civil Code [sections] 51.9 and 52.4 don`t provide a statutory basis for those kind [sic] of claims against a public entity. The court also ruled that the high school was a part of the School District and not a public entity. The court sustained the demurrer in its entirety without leave to amend. The court found moot the motion to strike.

There is no indication in the record on appeal that the guidance counselor made an appearance in the trial court, and she is not a party to this appeal. 3

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Judgment was entered on June 4, 2009, sustaining the demurrer and dismissing the School District from the action with prejudice. The School District served notice of entry of judgment on June 10, 2009. C.A. appealed. DISCUSSION A demurrer tests the sufficiency of a pleading as a matter of law, and we review the trial court`s sustaining of the demurrer de novo. (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.] (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) I. The facts alleged in the complaint do not support the vicarious liability of the Except 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 or a public employee or any other person. (

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