Response ReplyCal. Super. - 6th Dist.September 28, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/15/2022 2:53 PM Reviewed By: R. Nguyen Case #21CV388845 Envelope: 8514746 21CV388845 Santa Clara - Civil R. Nguyen ._A r-A-n-Aa-A-Ar-AHHHt-t cmNONM-RUJNH 20 21 23 24 25 26 27 28 OKDOOQQU‘I-bWN SPINELLI, DONALD & NOTT A Professional Corporation ROSS R. NOTT, SBN: 172235 THOMAS R. BOSWELL, SBN: 325656 601 University Avenue, Suite 225 Sacramento, California 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 Attorneys for Defendant LOS GATOS UNION SCHOOL DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA JOHN DOE, a minor by and through is Guardian Case No.2 21CV388845 ad Litem, MATTHEW DOE REPLY T0 PLAINTIFFS’ OPPOSITION TO Plaintiff, DEFENDANT Los GATOS UNION SCHOOL DISTRICTS DEMURRER T0 PLAINTIFFS’ v. FIRST AMENDED COMPLAINT Los GATOS UNION SCHOOL DISTRICT, DATE: March 22, 2022 JOSEPH BRIAN HOUG, an individual and ROES TIME= 9=00 a-m . . DEPT:20 1 through 25, Incluswe [FEES EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103] Action Filed: September 28, 2021 Trial Date: Not Set Defendants. I. INTRODUCTION Plaintiffs’ use Stamps as the basis for claiming that Civil Code section 52.1 is not a component 0f The Unruh Civil Rights Act. However, this case, by its terms, was concerned with and limited t0 employment cases. Plaintiffs’ do not address the lineage 0f case, nor the legislative history, which contradict this assertion. Nor does Article 1, section 28(f)(1) 0f the California Constitution does not provide the requisite constitutional right necessary t0 support a claim under Civil Code section 52.1. Plaintiffs” mistake this guidance with an individually held and actionable right. Not only does the California Constitution not support this, but their claim is contrary t0 the well-established precedent set forth by the California l REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT bWN \OOONQUI Supreme Court that public schools are not insurers 0f students’ safety 0n school campuses. Plaintiffs’ use of law enforcement caselaw t0 argue for imposing vicarious liability 0n the District for Defendant Houg’s alleged grooming attempts to draw a parallel that courts have expressly declined t0 adopt. Police officers are in a unique position with the public and the exception that applies to them does not apply t0 teachers and public-school districts. Case law has made clear that intentional torts that are personal in nature, such as sexual misconduct, are so inherently removed from school teacher’s employment that there can be n0 Vicarious liability 0n the employer. II. ARGUMENT A. Plaintiffs’ reliance 0n Stamps, which is limited t0 employment cases, for the proposition that Civil Code section 52.1 is not a component 0f The Unruh Civil Rights Act is misguided. Plaintiffs rely exclusively on Stamps v. Superior Court (2006) 136 Cal.App.4th 1441 to support the proposition that Civil Code section 52.1 (The Tom Bane Civil Rights Act) is not a component 0f The Unruh Civil Rights Act and, therefore, can be properly plead against a public school district. See Opposition, 2:24-28. But the issue before the court in Stamps was whether Civil Code sections 5 1 .7 and 52.1 “may be asserted as a separate cause of action in an action alleging wrongful termination and employment discrimination.” Id. at 1444. Indeed, what the Court overturned was “[t]he trial court ruling these sections were part of the Unruh Civil Rights Act (the Unruh Act) and, thus, were inapplicable in the employment context” [emphasis added]. Id. The Court went on to “conclude there is no bar t0 asserting Violations 0f sections 51.7 and 52.1 in employment cases [emphasis added]. Id. In fact, the Court in Stamps later conceded that “[n]either the words of the statutes nor their lineage reflects an explicit intent by the Legislature either t0 include 0r exclude sections 51.7 and 52.1 from the realm of the Unruh Act.” Id. at 1448. So, without Stamps, the list of cases that d0 include claims under Civil Code sections 51 and 52.1 as components of the Unruh Act are instructive. (See, e.g., Doe v. Petaluma City School Dist. (ND. Cal. 1993) 830 F. Supp. 1560, 1581 [describing Civil Code section 52.1 as a “component of the Unruh Civil Rights Act”]; West Shield Investigations & Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935 [treating sexual harassment Violation under Section 5 1 .9 as Unruh Act claim]; Brown v. 2 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT \OOOQONU‘IAUJNH Hr-d-a NHO H DJ l Smith (1997) 55 Cal.App.4th 767 [same]. If this Court finds Civil Code section 52.1 t0 be a “component” of the Unruh Act, then it necessarily follows under Brennan B. that this claim cannot be maintained against a public school district. 1n Brennan B, the Court 0f Appeal logically determined that public school districts are not business establishments for purposes 0f the Unruh Act. Brennan B. v. Superior Court (2020) 57 Cal.App.5th 367.‘ Thus, Plaintiffs’ claim against the District under CiViL Code section 52.1 fails as a matter of law. B. Plaintiffs’ assertion that they have a constitutionally guaranteed individual right t0 attend a safe school contradicts well-established precedent that public schools are not guarantors 0f students’ safety. Plaintiffs’ Opposition at 5219-621 now asserts that Defendant Houg’s “grooming” conduct was coercive and violated a constitutional right allegedly found in Article l, section 28(00). Notwithstanding that Plaintiff’s FAC alleged the District’s permission of a person with demonstrated child predatory tendencies t0 remain employed, allowing that teacher direct access to children without adequate supervision, making a teacher an authoritative figure over students Which allowed Defendant Houg “unfettered” control and access t0 the children as the sole basis 0f their Bane Act Complaint (FAC 184), Plaintiffs’ new assertion about Houg’s grooming conduct offered in opposition does not trigger any Bane Act right to relief. Plaintiffs cite to Article 1, section 28(f)(1) of the California Constitution to support the proposition that all students have a privately held and constitutionally guaranteed right to attend a safe school. This, Plaintiffs argue, provides the requisite constitutional “right” necessary t0 maintain a claim against the District under Civil Code section 52. 1, but concede that the right is not self-executing. Th6 position is far beyond the intent 0f the legislature, and contradicts well established precedent by this State’s Supreme Court that public school districts are not insurers 0f student’s safety. The asserted constitutional right under Article 1, section 28(f)(1) 0f the California Constitution 1 Brennan B. v. Superior Court (2020) 57 Cal.App.5th 367 (2020), rev. granted 275 Cal.Rptr.3d 232. Consistent with California Rules 0f Court 8.1 1 15(6), Brennan B. is offered here for its compelling persuasive value. In fact, it provides the best, most complete analysis explaining in detail why public school districts are not business establishments. 3 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT hb-IM OQOONGU‘I 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 reads as follows: In addition t0 the enumerated rights provided in subdivision (b) that are personally enforceable by Victims as provided in subdivision (c), victims of crime have additional rights that are shared With all 0f the People 0f the State 0f California. These collectively held rights include, but are not limited to, the following: (1) Right to Safe Schools. A11 students and staff 0f public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right t0 attend campuses which are safe, secure and peaceful. [emphasis added] . Not only was this section intended for and directed towards Victims of crime so that law enforcement could have jurisdictional access t0 school campuses, but it is a statement 0f principle, not provision 0f a “right.” The section itself explicitly states it is a collectively held right, rather than an individual right such as the right to free speech. To use this “right,” and ultimately Civil Code section 52.1, against a public school district is far beyond the intent 0f the legislature. This is made clear in the Assembly Committee 0n Public Safety’s analysis 0f Assembly Bill 63 (now codified as Civil Code section 52.1): The Attorney General’s office states that the number 0f crimes which are committed because 0f the Victim’s racial, ethnic, religious, or other minority status are increasing, that members 0f minority groups increasingly believe they are threatened by attack 0r harassment, and that existing law is inadequate to protect them. They also states that existing civil rights statutes do little to deter hate violence because there are n0 criminal penalties... The purpose 0f this bill is t0 give law enforcement officials clear effective authority t0 prevent acts 0f hate violence, and t0 deter such conduct by establishing serious criminal penalties. Assem. Comm. On Public Safety, Analysis 0f Assem. Bill N0. 63 (1987 - 1988). It is hard to imagine from this stated intent that the legislature intended Civil Code section 52.1 t0 be used as a civil cause of action against public school districts in the manner that Plaintiffs propose here. The case law set forth by the California Supreme Court further contradicts Plaintiffs’ assertion that Article 1, section 28(f)(1) of the California Constitution provides all students with an actionable right under Civil Code §52.1 to a safe school. The California Supreme Court has consistently held that - public school districts are not insurers of students’ safety. Dailey v. Los Angeles Unified School Dist, (1970) 2 Cal.3d 741, 747', Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932-933; 4 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Hoyem v. Manhatten Beach City School Dist. (1978) 22 Cal.3d 508, 513. This well-established principle is an inherent contradiction with Plaintiffs’ assertion that all students have a constitutional right t0 a “safe school,” and that alleged grooming behaviors violate that right. If this is so, then any injury producing incident 0n a school campus would be strict liability offenses for alleged Violation 0f Article 1, section 28(f)(1). Any “unsafe” incident would be a constitutional Violation 0f the “right” t0 a safe campus. Plaintiffs’ position is directly contrary to longstanding California Supreme Court pronouncement that public schools are not insurers 0f student safety. C. Plaintiffs’ attempt t0 Differentiate a Bane Act Claim for Equitable Relief From the Leger Case is not Well Supported. Plaintiff attempts t0 justify their use 0f the Bane Act here t0 give execution t0 a portion 0f the California Constitution that is not self-executing by claiming that it is their request for equitable relief that is the difference that enables them t0 do so. See Opposition, 754-8. However, seeking equitable relief for an alleged breach of Article 1, section 28(f)(1) 0f the California Constitution was rejected in Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3rd 1224, 1235-1238. In Clausing, a class action was filed on behalf 0f disabled students who alleged they had been abused by teaching staff and peers within the San Francisco Unified School District. The lawsuit asserted myriad claims seeking equitable, legal or injunctive relief on behalf of the named Plaintiff as well as a class 0f physically and mentally disabled students. Id. at 1230. A portion 0f the claim was filed under Article 1, Section 28, under the “Right t0 Safe Schools” provisions asserted by Plaintiffs. Id.. at 1235-1236. Clausz’ng determined that the Victims’ Bill 0f Rights and its reference t0 “Safe Schools” was intended t0 strengthen procedural and substantive safeguards for Victims in the criminal justice system. Id. at 1236. The provision presents only principles offering no rules for enforcement, n0 express duty 0n anyone t0 make schools safe, and is devoid of guidelines, mechanisms, 0r procedures from which a damages remedy could be inferred. Id. at 1237. The section does not impose an express affirmative duty 0n any government agency to guarantee the safety 0f school. Id. at 1237-1238. Plaintiffs’ attempt t0 use the Bane Act t0 circumvent this holding and argue that because the Bane Act provides equitable remedies, that they are allowed t0 proceed is contrary to Clausing which rejected a class action seeking equitable relief utilizing the same constitutional provisions as Plaintiffs 5 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT OOOONO‘xL/I-bbJNH p...‘ here. Seeking equitable relief does not alter the fact that n0 relief can be obtained under this constitutional statement of principle whether compensatory 0r equitable. D. Plaintiffs’ Improperly Attempt to Impose Teacher’s Vicarious Liability 0n the District by Erroneously Conflating Public School Districts with Police Officers. Plaintiffs allege that District is vicariously liable for Houg’s alleged sexual grooming conduct. See Opposition, 234-6. Plaintiffs? attempt t0 draw a parallel between the actions 0f police officers and the vicarious liability imposed on the City in D. V. v. City ofSunnyvale, 65 F. Supp. 3d 782, 787 (N.D. Cal., 2014) t0 a school-teacher and school district. Conduct by police officers has historically been the exception t0 vicarious liability for their wrongdoing in the course of their work, an exception that courts have expressly refused to apply to teachers and public school districts. The facts in D. V., which Plaintiffs claim are “analogous,” involved a fatal police shooting that the Court held was inherently “coercive.” Plaintiffs argue this is the same as their allegations here. However, historically, school districts have not been held vicariously liable for the sexual wrongdoing 0f their employees because that conduct does not arise out 0f the employment as it serves only prurient self-interest. See Farmers. Ins. Group v. County ofScmta Clara (1995) 11 Cal.4th 992, 1007; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 452. Plaintiffs’ attempt to draw a parallel between Vicarious liability for police officers and teachers has been expressly denied by the courts. Further, Plaintiffs’ make n0 attempt t0 address the lineage 0f cases holding that although sexual abuse is not per se beyond the scope of every employment, “a sexual tort will not be considered engendered by the employment unless the motivating emotions were fairly attributable to work-related events or conditions.” Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296. “If the injury is inflicted out of personal malice 0r compunction, not engendered t0 0r connected t0 the employment, in other words if the tort is personal in nature, there is no Vicarious liability.” John Y. v. Charparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 575. Per the facts alleged, Defendant Houg’s actions could not be more personally motivated. All of this, 0f course, assumes that Plaintiffs” allegations are sufficient t0 demonstrate threat, intimidation 0r coercion consistent with Civil Code section 52.1. Whereas in the First Amended 6 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT \OOONO‘xm-bww.‘ N N [\J [\J N N N N N I-I h-i >--‘ r-t .-a .--A H p-A >-A »-t 00 \i O\ 'Jl -b DJ N *-‘ O \O 0° N 13“ kl] 4> U9 N ’-‘ O Complaint at 1B4, Plaintiffs alleged that the District threatened, intimidated or coerced Plaintiffs with respect t0 their “right” t0 a safe and secure campus by permitting Houg t0 remain employed as a teacher, affording him direct access to children without adequate supervision and allowing him unfettered control, they now pivot to the current claim in the Opposition that the District is vicariously liable for Houg’s grooming conduct. See Opposition 234-6. Plaintiffs’ Bane Act claims assume that the alleged grooming conduct is coercive with respect t0 Article 1, section 28ml, but it is not. The allegation that the coercive conduct effected a right mistakenly assumes that they had an actionable right t0 a safe school t0 begin with. Unlike the Plaintiff in DV who was shot in direct violation of his Fourth Amendment rights, there is an insufficient allegation 0f conduct effecting actual constitutional rights here and n0 basis for District’s Vicarious liability for Houg’s alleged grooming. III. CONCLUSION For the reasons set forth above, Defendant Los Gatos Union School District respectfully requests that the Court grant this Demurrer without leave t0 amend. A Court is within its discretion t0 deny leave t0 amend where the facts are not in dispute and n0 liability exists under substantive law. Where, as here, a complaint cannot be cured through additional amendment, a demurrer should be sustained without leave t0 amend. Because Plaintiff cannot plausibly allege a claim under Civil Code section 52.1 against the District, the demurrer should be sustained Without leave t0 amend. Dated: March 15, 2022 SPINELLI, DONALD & NOTT ROS . TT THOMAS R. BOSWELL Attorneys for Defendant LOS GATOS UNION SCHOOL DISTRICT 7 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT .b Nam 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT PROOF OF SERVICE COURT: Superior Court of California, County 0f Santa Clara CASE NO.: 21CV388845 CASE NAME: Doe v. Los Galas Union School District I am a citizen of the United States, employed in the County 0f Sacramento, State 0f California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I am over the age 0f 18 and not a party t0 the above-entitled action. I am readily familiar with Spinelli, Donald & Nott’s practice for collection and processing 0f correspondence for mailing with the United States Postal Service. Pursuant t0 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 0r before the close of each day’s business. (Code Civ. Proc., § 1013a(3) 0r Fed.R.CiV.P.5(a) and 4.1.) On March 15, 2022, I caused the REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER T0 PLAINTIFFS’ FIRST AMENDED COMPLAINT the original 0f which was produced 0n recycled paper, t0 be served Via: E BY ELECTRONIC SERVICE- I caused such document t0 be electronically served by filing said document electronically in accordance with rules of electronically filing documents. See Local Rule 5-135(a); Fed. R. CiV. P. 5(b)(2)(D). B. Robert Allard Mark J. Boskovich Corsiglia McMahon & Allard LLP 96 North Third Street, Suite 620 San Jose, CA 951 12 408/289-14 1 7 Attorneysfor Plaintifir 408/289-8127 (fax) rallardecmalawnel mboskovich@cmalaw. net kimgcbcmalawnet Steven Clark Attorney at Law 96 N. 3rd Street, Suite 660 S J CA 951 12 . 4gg/2gsfi’33245 Attorneyfor Joseph Brzan Houg 408/289- 1 509 steveclarklaw@aol.com I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n March 15, 2022, at Sacramento, California. //// . W KateWW///f’
