C.A. v. William S. Hart Union High Sch. Dist.

• Decision Date: 23 February 2011
• Docket Number: No. B217982.,B217982.
• Citation: 261 Ed. Law Rep. 688,117 Cal.Rptr.3d 283,10 Cal. Daily Op. Serv. 14, 086
• Court: California Court of Appeals Court of Appeals
• Parties: C.A., a Minor, etc., et al., Plaintiffs and Appellants, v. WILLIAM S. HART UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

117 Cal.Rptr.3d 283

261 Ed. Law Rep. 688

10 Cal. Daily Op. Serv. 14,086

2010 Daily Journal D.A.R. 16,964

C.A., a Minor, etc., et al., Plaintiffs and Appellants,

v.WILLIAM S. HART UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

No. B217982.

Court of Appeal, Second District, Division 1, California.

Nov. 5, 2010.

Review Granted Feb. 23, 2011.

Background: Student, through guardian ad litem, brought action against school district for negligence, negligent supervision, negligent hiring 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 Superior Court, Los Angeles County, No. PC044428, Melvin D. Sandvig, J., sustained demurrer without leave to amend. Student appealed.

Holdings: The Court of Appeal, Johnson, J., held that:

(1) alleged sexual misconduct with student was not within scope of guidance counselor's employment;

(2) public entity immunity precluded direct liability for district's alleged negligence; and

(3) statutes defining counselor's alleged torts did not authorize claims against public entities.

Affirmed.

Mallano, P.J., filed dissenting opinion.

*286 Manly & Stewart, John C. Manly and Vince W. Finaldi, Newport Beach, for Plaintiffs and Appellants.

McCune & Harber, Stephen M. Harber and Joseph W. Cheung, Los Angeles, for Defendants and Respondents.

JOHNSON, J.

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 *287 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 counselor ³ for negligence; negligent supervision; negligent hiring 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.

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, 13 Cal.Rptr.3d 766.) "When a demurrer is sustained, we determine whether *288 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, 216 Cal.Rptr. 718, 703 P.2d 58.)

I. The facts alleged in the complaint do not support the vicarious liability of the School District.

[1][2][3] "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." (§ 815, subd. (a).) Section 815.2, subdivision (a) sets forth an exception to the rule: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." This means that a public entity employer such as the School District "is vicariously liable for the torts of its employees committed within the scope of the employment." ( Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296, 48 Cal.Rptr.2d 510, 907 P.2d 358.) Conversely, a public entity employer is not vicariously liable for the torts of its employees when they act outside the scope of their employment; stated another way, respondeat superior "should apply only to the types of injuries that ' "as a practical matter are sure to occur in the conduct of the employer's enterprise." ' " ( Id. at pp. 298-299, 48 Cal.Rptr.2d 510, 907 P.2d 358.) "Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law." ( Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287.)

In John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948 ( John R.), the California Supreme Court faced a question similar to that in this case: "The question before us here is whether an employer (specifically, a school district) can be held liable for a sexual assault committed by an employee (here, a teacher) on another person (particularly, on a student committed to that teacher's supervision)." ( Id. at p. 447, 256 Cal.Rptr. 766, 769 P.2d 948.) The complaint filed against the school district alleged that the minor plaintiff was sexually molested by his mathematics teacher, while at the teacher's apartment participating in an officially sanctioned extracurricular program. ( Id. at p. 441, 256 Cal.Rptr. 766, 769 P.2d 948.) Concluding "[a] more personal escapade less related to an employer's interests is difficult to imagine," the court held that the respondeat superior doctrine should not be applied under those circumstances, and added: "[T]he prospect of such misconduct is conceivable, but that is a far cry from foreseeability, even under the broad meaning that concept is given in the respondeat superior context." ( Id. at pp. 447, 450 & fn. 9, 256 Cal.Rptr. 766, 769 P.2d 948.) The court reasoned that the policies underlying the doctrine were not served by imposing vicarious*289 liability, and saw "a significant and unacceptable risk that school districts would be dissuaded from permitting teachers to interact with their students on any but the most formal and supervised basis" if respondeat superior applied to hold the school district liable. ( Id. at p. 452, 256 Cal.Rptr. 766, 769 P.2d 948; see Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at pp. 139-140, 176 Cal.Rptr. 287 [school district not...