Response ReplyCal. Super. - 6th Dist.December 14, 2020SPINELLI, DONALD A NOTT A Professional Corporation ROSS R. NOTT (State Bar No. 172235) 601 University Avenue, Suite 225 Sacramento, CA 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 12 13 14 15 16 17 18 JANE MC DOE, an individual, by and through her Guardian ad litem JANE MG DOE, Plaintiffs, vs. SANTA CLARA COUNTY OFFICE OF EDUCATION; a business entity of form unknown; MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT, business entity of for unknown; EDGAR COVARRUBIAS-PADILLA, an individual; and DOES 1 through 100, Defendant. Case No.: 20CV374714 MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT'S REPLY ON DEMURRER DATE: June 22, 2021 TIME: 9:00 a.m. DEPT: 7 [FEES EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103] Complaint Filed: December 14, 2020 19 20 21 22 23 24 25 26 28 SPINELLI, DONALD & NOTT TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant and demurring party, MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT ("MPESD"), hereby and herewith submits its Reply on Demurrer to Plaintiff s Complaint. INTRODUCTION Rather than address the factual shortcomings of the Complaint, Plaintiff s counsel attempts to justify their over pleading of the causes of action against MPESD by citation to causes of action in the abstract and without regard to the facts here. Notwithstanding Plaintiffs contentions, deductions or conclusions of fact or law which are insufficient to demonstrate any plausible claim, Reply on Demurrer 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/15/2021 3:39 PM Reviewed By: F. Miller Case #20CV374714 Envelope: 6654890 20CV374714 Santa Clara - Civil F. Miller Plaintiff makes no effort in the Complaint or Opposition to Demurrer to demonstrate factual allegations in the specific context of Plaintiff s attendance at an outdoor science camp where she was allegedly sexually abused by a man never employed by MPESD. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4'" 962, 966-967.) The effort should be rejected, and the Demurrer should be sustained without leave to amend as set forth in the Demurrer. II. PLAINTIFF'S OPPOSITION TO DEMURRER DEMONSTRATES THAT IT SHOULD BE SUSTAINED 10 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 A. Because Plaintiff Admits that MPESD Did Not Employ Padilla, the Demurrer to the Second and Third Cause of Action Should be Sustained Without Leave to Amend Plaintiff s Opposition to the Demurrer to the second and third causes of action requires tha MPESD employed Padilla. (See Compl. $90, "Defendants negligently failed to supervise Defendan Padilla in his position of trust and authority...".; $91; Defendants did not have in place a procedur to monitor teachers; /[94 Padilla was an unfit agent; and, /[102 "By virtue of Plaintiff s special relationship with Defendants, and Defendants'elationship to Padilla, Defendants owed Plaintiff duty to not hire or retain Padilla, given his dangerous, abusive and exploitive propensities...".) Th Second and Third Causes of Action are dependent upon an alleged employment relationship betwee Padilla and MPESD, yet throughout the pleading, Plaintiff makes specific allegations that SCCOE and Walden West were the sole employers of Padilla. (See Compl. $3, 6, 14.) Specific allegations control over inconsistent general allegations found within the same pleading. (Perez v. Golden Empire Transit District (2012) 209 Cal.App.4+ 1228, 1235-1236.) To this end, the specifi allegation that Padilla was employed by SCCOE and/or Walden West (and not MPESD) is fatal to any claim premised upon alleged negligent supervision of an employee (Second Cause of Action) o negligent hiring/retention (Third Cause of Action). As the necessary element of employmen between MPESD and Padilla is lacking, MPESD is not liable for negligent supervision of employee nor negligent hiring or retention as each of these causes of action require that MPESD employed Padilla. 28 SPINELLI, DONALD 8: NOTr Reply on Demurrer 2 As MPESD never employed Padilla, any claim for negligent supervision of this person or fo negligent hiring or retention cannot be properly stated against MPESD and the demurrer should b sustained without leave to amend as to the Second and Third Causes of Action. B. Plaintiff's Opposition does not Demonstrate any Statutory Basis as Required for the Fourth COA for Failure to Warn or Educate Claim Against MPESD 10 12 13 14 15 16 17 Plaintiff's Opposition offers no legal authority requiring any public school district to provid any type of anti-molestation education to students or parents. To be sure, the citation to the C.A. case or M K case found at 8:13-21 of the Opposition does not identify any duty on the part of school district to provide any specific anti-sexual molestation education to pupils. Instead, Plaintif argues that the duty to supervise, which is set forth in Education Code $44807 exists, "then MPESD is obligated to take other reasonable steps as well." Of course, there is no legal authority for th citation. For the reasons set forth in the moving papers, the demurrer to this cause of action should b sustained without leave to amend as the duty to inform, warn or educate children regarding th dangers of sexual molestation do not exist in the context of a public entity and are contrary to Pete 8'. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 824. C. Demurrer to the IIED Cause of Action Should Be Sustained without Leave to Amend as to MPESD 19 20 21 22 23 24 25 26 27 SPINELLI, DONALD & NOrr Plaintiff offers no authority for the proposition that a public entity like MPESD can be liabl for intentional infliction of emotional distress. It is a common law claim and is not applicable to public entity like MPESD. (Gov. Code $ 815(a); Guzman v. County ofMonterey (2009) 46 Cal.4 887, 897-898.) Even under a vicarious liability theory that Padilla was employed by the District (which h was not), the District would not be liable on a vicarious basis for his alleged criminal conduc because it arises from his own malicious sexual depravity and not the job duties associated with th camp. (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-453.) Whereas here, a public entity is liable only as specifically set forth by statute, and Plaintiff s IIED claim being a common law claim and offering no statute to support the conclusion that MPESD Reply on Demurrer 3 is liable either directly or vicariously for IIED, the demurrer to the IIED Cause of Action should no be sustained without leave to amend. D. The Demurrer to the Eighth Cause of Action for Sexual Harassment Should be Sustained Without Leave to Amend as to MPESD 10 12 13 14 15 16 17 18 19 For the same reasons that the demurrer should be sustained to the Second and Third Causes of Action (MPESD did not employ Padilla), the District cannot be liable for any alleged violation o Civil Code )51.9. First, to impose liability on MPESD for failing to sexual molestation committed by Padill where they did not employ the alleged child molester ignores the only basis for liability available vicarious liability for a third party's alleged conduct. Here, Plaintiff has not alleged that an employee of MPESD sexually harassed her; rather she is alleging that an employee of SCCOE molested her. There is vicarious liability under the scenario. Second, to apply vicarious liability to any public entity for the child molestation committe by Padilla ignores the California Supreme Court holding in John R. prohibiting vicarious liability fo acts of child molestation by an alleged employee. That conduct goes so far beyond the scope o employment duties that a public entity is not vicariously liable for that conduct even if there is a employment relationship between it and the child molester. The demurrer to the Civil Code $ 51.9 cause of action should be sustained without leave to amend.'0 21 E. Because there is no Fiduciary Duty Between the District and Plaintiff, The Demurrer to the Tenth and Eleventh Causes of Action Should be Sustained Without Leave to Amend 22 23 24 25 Plaintiff s Opposition to the Demurrer of the fiduciary duty and constructive fraud causes of action asserts that a fiduciary relationship exists between a school district and its pupils without any legal authority or analysis. Instead, Plaintiffs Opposition relies on a case involving a sexual relationship between a woman and her attorney which admittedly involved a "confidential and 26 27 28 'urthermore, to the extent that the Court determines that Civil Code section 51.9 is part of the Unruh Civil Rights Act pursuant to SCCOE's demurrer proceeding, MPESD as a public school district is not a business establishment subject to its provisions. SPINELLI, DONALD & NOTT Reply on Demurrer 4 10 12 13 14 fiduciary relationship." (See Opp., 14:9-17 citing Barbara A. v. John G. (1983) 145 Cal.App.3d 369). However, Plaintiffs Opposition papers nowhere offer any legal authority that a school district/pupil relationship is a fiduciary relationship, and thus, the confidential relationship between counsel and client has no impact on explaining the status between a school district and pupils. In fact, not even a in loco parentis argument helps Plaintiff as it has long been the law of the state of California that "consanguinity of itself does not create a fiduciary relationship." (In re Jamison 's Estate (1953) 41 Cal.2d 1, 10 - holding that father and son relationship in and of itself did not demonstrate a fiduciary relationship, but additional factors suggestive of fiduciary relationship finding including relationship between father and son, topic of discussions between the two, providing papers dealing with finances for examination and other critical evidence from which it could be inferred that "a confidential relationship existed.") Plaintiffs Opposition then considers the "special relationship" existing between school district and pupil due to the compulsory nature of school attendance. However, what is missing from Plaintiffs analysis is any case law (which does not exist) or analysis that the "special 15 relationship" is tantamount to a fiduciary relationship because they are not the same. Proof that 16 17 19 20 21 22 23 25 26 27 the fiduciary, confidential and/or special relationships asserted by Plaintiff are not synonymous is the point that a confidential relationship is not equal to a fiduciary relationship. (Richelle I.. v. Roman Catholic Bishop (2003) 106 Cal.App.4 257, 271-272 - fiduciary relationship arises from recognized legal positions whereas confidential relationships arise from moral personal relationships in conjunction to a legal relationship.) The special relationship that actually exists between a school district and pupils arises from the compulsory nature of school attendance analogous to the relationship between parents and their children. (C.A. v. William S. Hart Union School District (2012) 53 Cal.4'" 861, 869-870.) As stated in the legal authority above, a parent- child relationship is not a fiduciary relationship. Neither is a "special relationship." Last, Plaintiff cannot state a breach of fiduciary duty or constructive fraud claim against MPESD as there is no statute allowing for such claims against this public entity. (Gov. Code $ 815.6). 28 SPINELLI, DONALD 4 NOTT Reply on Demurrer 5 Finding any fiduciary relationship exists between a school district and each of its pupils is inconsistent with the operation of public education for the reasons set forth in the demurrer. These claims cannot be stated against a public entity, and the Tenth Cause of Action for Breach of Fiduciary Duty and Eleventh Cause of Action for Constructive Fraud which requires a fiduciary relationship should be sustained without leave to amend. G. The Demurrer to the Twelfth Cause of Action Should be Sustained Without Leave to Amend as to MPESD 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 As noted in the Demurrer at 12:17 - 13:8, a plaintiff alleging that a public entity breached a mandatory duty is obligated to specifically identify the statute that creates the mandatory duty. (I.ehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292.) Under Plaintiff s mandatory duty claim, they identify Civil Code )51.9, Education Code )$200 and 201, and Title IX20 USC $ 1681 as the basis for her mandatory duty claim. MPESD addressed the insufficiency of those statutory references in the demurrer noting that none gave rise to a mandatory duty applicable to MPESD which can be subject to an alleged breach of mandatory duty. Now, in opposition, Plaintiff expands her mandatory duty claim to include essentially any code section referenced in her Complaint to now include those identified in Paragraph 36, 44, 47 and 50 of her pleading. (Pl.'s Opp., 5:5-17.) However, expanding the scope of statute beyond the cause of action to essentially any statute alleged in the Complaint does not fulfill the mandatory duty obligation whether specified in the Twelfth Cause of Action or not. These new statutes now include: ~ tt36 of Complaint - reference to Government Code $ 820, 815.2, California Constitution, Article 1 $28(c) and Federal Civil Rights Act )1983 and 14~ Amendment of US Constitution - None of these references include a mandatory duty and Plaintiff fails to identify any such duty. ~ $36, reference to Civil Code )43 (general personal rights) and Civil Code )1708 (abstinence from injury) do not provide any mandatory duty applicable to MPESD. ~ $36, $44, $47, tt50 - Penal Code $ 11166 and 11167 - CANRA sections which do not provide any mandatory duty applicable to MPESD. SPINELLI, DONALD & NOIT Reply on Demurrer 6 10 12 13 14 15 16 17 19 20 21 22 23 24 ~ tt36 Education Code $32228, 32228.5 and 35294.10 - 35294.15 - These Education Code sections have been repealed and, when they were active, did not include any mandatory duty applicable to the MPESD. Penal Code $ 11166 obligates a "mandated reporter" to make a report of known or reasonably suspected child abuse or child sexual abuse. (Penal Code )11166(a).) As it existed in 2014, it defined "a mandated reporter" in various ways, all of which reference an individual. (See Penal Code $ 11165.7, eff. 1/1/14 to 12/31/14.) As it existed in 2014, public school districts were not obligated to train personnel regarding their duties as mandated reporters, nor is there any mandatory obligation set forth therein applicable to public school districts. (Id.) Plaintiffs reference to the California Constitution as well as Education Code )32228, 32228.5, 35294.10-35294.15 is lifted from footnote 3 of the C.A. v. William S. Hart Union High School Dist. case. However, that case did not offer these references to support any mandatory duty applicable to a public school district, but instead to determine that a school district held a special relationship with its pupils arising from the compulsory character of school attendance as well as to support a "duty of care owed by school personnel" including the duty to use reasonable measures to protect students from foreseeable injury at the hands of school staff acting negligently or intentionally. (C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4 861, 869-870.) Even more problematic for Plaintiff is that the Education Code sections identified in footnote 3 and incorporated into Plaintiff s pleading here including Education Code $32228-32228.5 and 35295.10-35294.15 not only did not include any mandatory duty or obligation on the part of a public school district like MPESD, but they have since been repealed. None of these now-repealed Education Code sections applied any mandatory duty upon MPESD or applicable to any of Plaintiff s bodily injury claims. Last, Plaintiff s reference to Donovan v. Poway Unified School District and Gebser v. I.ago 25 26 27 28 When active in the 2013-2015 time frame, these sections expressed legislative intent (Education Code )32228), required the California superintendent of schools to annually report the legislature regarding funds used pursuant to the Carl Washington School Safety and Violence Prevention Act (Ed. Code )32228.5), legislative intent (Ed. Code $35294.10) and required the state superintendent of schools to establish rules and regulations for public school districts to obtain funds made available through the School Safety Violence Protection Act. (Ed. Code $35294.15.) SPINELLI, DONALD A NOTT Reply on Demurrer 7 10 Vista Independent School District regarding Ed. Code $220 and Title IX claims respectively (See Opp. 5:18-28) are inapposite - those cases do not stand for the proposition that each contains a "mandatory" duty for which a public entity's breach will support a Breach of Mandatory Duty cause of action. These cases only stand for the proposition that a school district's personnel's failure to respond to or investigate known and identifiable harassment of a student plaintiff can subject the district to potential liability under those statutes if they act with deliberate indifference upon actual notice of the conduct - not for breaching a mandatory duty! That is not the allegation in Plaintiff s Complaint. Instead, Plaintiff here alleges that these statutes imposed a "mandatory duty" upon MPESD, however, review of these statutes fails to identify any such mandatory duty within the cited sections. (See Compl., $195.) 12 13 14 15 16 17 18 19 20 21 22 23 H. The Demurrer to the Thirteenth Cause of Action (Ed. Code $220) Should be Sustained Without Leave to Amend as MPESD Failure of a party to oppose an issue by reasoned legal analysis or citation to legal precedent demonstrates forfeiture of their claim under scrutiny. (Provost v. Regents of University of California (2011) 201 Cal.App.4'" 1289, 1300.) To be sure, Plaintiffs conclusory allegations (which are insufficiently factual to be considered on demurrer) that MPESD had "knowledge of sexual abuse occurring," does not comport with an Ed. Code )220 claim which requires actual knowledge of "harassment" by the key personnel in the district, and deliberate indifference to prevent it after notice. Furthermore, Plaintiff has not alleged exhaustion of administrative remedies required to present the claim now. Instead, here, Plaintiff offers no response to the demurrer to the 13'" Cause of Action for Ed. Code )220 and the demurrer should be sustained without leave to amend. 24 25 26 27 28 CONCLUSION Plaintiff s attempt to justify her Complaint which goes far beyond any reasonable factual allegations and into the almost exclusive territory of conclusions of law which are not sufficient, should be rejected by the Court. Plaintiff specifically alleges that the child molester was employed SPINELLI, DONALD Et NOTP Reply on Demurrer 8 10 12 by SCCOE and Walden West, then goes on to generally allege that MPESD stood in some type of employment relationship with the molester. Plaintiff knows full well that MPESD never employed Padilla. Furthermore, Plaintiff knows full well that there is no basis for IIED, sexual harassment, breach of fiduciary duty and constructive misrepresentation/fraud causes of action which are not appropriate claims against a public entity. Plaintiff's Twelfth Cause of Action for alleged breach of mandatory duty fails to identify a statute imposing a mandatory duty upon the MPESD which was allegedly breached here. Last, Plaintiff s Ed. Code $220 Cause of Action should be dismissed as the claim has not been supported in PlaintifFs Opposition and Plaintiff has not alleged exhaustion of administrative remedies required to present such a claim. The Demurrer should be sustained as set forth in the moving papers without leave to amend as Plaintiff cannot state such causes of action against MPESD. 13 14 15 Dated: June 15, 2021 SPINELLI D LD k, TT By: ROSS R. Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT 18 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD 8r. NOlT Reply on Demurrer 9 PROOF OF SERVICE COURT: CASE NO.: CASE NAME: Superior Court of California, County of Santa Clara 20CV374714 Mc Doe v. Santa Clara County Office ofEducation, et al. I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. 10 12 13 14 I am readily familiar with Spinelli, Donald & Nott's practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day's mail is collected and deposited in a U.S. mailbox at or before the close of each day's business. (Code Civ. Proc., ) 1013a(3) or Fed.R.Civ.P.5(a) and 4.1.) On June 15, 2021, I caused the within, Reply on Demurrer, the original of which was produced on recycled paper, to be served via MAIL- for Defendant Padilla only Placed in the United States Mail at Sacramento, California in an envelope with postage thereon fully prepaid addressed as follows: 15 16 17 19 20 Morgan A. Stewart mstewart mani stewart.com Saul E. Wolf swolf mani stewart.com Christina J. Nolan cnolan mani stewart.com Manly, Stewart 8 Finaldi 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 Counselfor Plaintiff 21 23 Mark E. Davis Eric J. Bengtson Davis & Young, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 Counselfor Santa Clara Co. Office of Education 24 25 669/245-4200 408/985-1814 eric davis oun law.corn 27 28 FAX AND MAIL- I personally sent to the addressee's telecopier number indicated below a true copy of the above-described document(s) before 5:00 p.m. I verified transmission without error by a SPINELLI, DONALD dr. NOTT transmission report issued by the facsimile machine upon which said transmission was made immediately following the transmission. Thereafter, I placed a true copy in a sealed envelope with the first class postage affixed and mailed as follows: PERSONAL SERVICE- By causing delivery by hand to the addressee addressed as follows: FEDERAL EXPRESS- By causing delivery by Federal Express of the document(s) listed above to the person(s) at the address(es) set forth below.' BY ELECTRONIC SERVICE- I caused such document to be electronically served to the above 10 I declare under penalty of perjury under the laws o State of California that the foregoing is true and correct. Executed on tune 15, 2021, at Sacr ent, California. 12 13 elleyL. Gr 'a 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT