D.C. v. Harvard-Westlake School

Decision Date14 August 2009
Docket NumberNo. B204634.,B204634.
Citation176 Cal.App.4th 836,98 Cal. Rptr. 3d 300
CourtCalifornia Court of Appeals
PartiesD.C., a Minor, etc., et al., Plaintiffs and Appellants, v. HARVARD-WESTLAKE SCHOOL et al., Defendants and Respondents.

Robert S. Gerstein; and Jennifer L. Lynch for Plaintiffs and Appellants.

Musick, Peeler & Garrett, Stuart W. Rudnick and Kent A. Halkett for Defendants and Respondents.

OPINION

MALLANO, P. J.

A student and his parents filed this action against his school, alleging it was liable under the state's hate crimes laws (Civ. Code, §§ 51.7, 52.1) for death threats he received from classmates who misperceived his sexual orientation. The trial court ordered that all of the claims— the statutory hate crimes claim and several common law claims—be arbitrated in accordance with the school's enrollment contract, which contained not only an arbitration provision but also a provision entitling the "prevailing party" to attorney fees. The arbitrator found in favor of the school on all claims and awarded it over $521,000 in arbitral expenses and attorney fees.

The primary question on appeal is whether the arbitrator could impose a type of expense on plaintiffs they would not have been required to bear if the dispute had been heard in court. We conclude that because the hate crimes laws constitute unwaivable statutory rights comparable to antidiscrimination laws, such expenses are prohibited. Otherwise, the filing of hate crimes claims would be deterred. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 110-113 [99 Cal.Rptr.2d 745, 6 P.3d 669] (Armendariz).)

In postarbitration proceedings, plaintiffs argued they were not liable for any type of arbitral expense they would not have had to pay in a court case. They also asserted that because the hate crimes laws authorize an award of attorney fees only to a prevailing plaintiff (see Civ. Code, §§ 52, subd. (b)(3), 52.1, subd. (h)), the arbitrator could not award attorney fees against them. We determine that although the trial court should have decided whether the arbitrator awarded such expenses and fees, the court failed to do so and found only that plaintiffs' claims were properly submitted to arbitration. Thus, the judgment shall be reversed, and, on remand, the trial court shall take the necessary steps to ensure that plaintiffs do not pay any inappropriate expenses or fees.

I BACKGROUND

The following allegations and facts are taken from the pleadings and the papers submitted in the trial court concerning the arbitration of the case.

D.C. was a student at Harvard-Westlake School (Harvard-Westlake), a private educational institution with a middle and an upper school in Los Angeles. D.C. filed this action against Harvard-Westlake and others through a guardian ad litem, his father. D.C.'s father and mother also pleaded claims in their own right. (We will refer to D.C. and his parents collectively as plaintiffs.)

A. The Original Complaint

On April 25, 2005, plaintiffs filed this action against Harvard-Westlake, the board of directors, certain officers and administrators, and a faculty member (collectively School), alleging as follows.

While a student, D.C. was also a singer and an actor. He had a record album with a planned release date, had broadcast a song worldwide via satellite radio, and had played the leading role in a feature film presented at an internationally acclaimed film festival. He attended Harvard-Westlake's upper school.

D.C. maintained a Web site to promote his career in entertainment. The site allowed any member of the public to post comments in a "guestbook." Several students at Harvard-Westlake, using its computers, went to the Web site and posted death threats against D.C. and made derogatory comments about him. One post read, "I'm going to pound your head in with an ice pick." Another said, "Faggot, I'm going to kill you." A third stated, "You are an oversized faggot. . . . I just want to hit you in the neck—hard. . . . [G]o to the 405 [freeway] bridge and jump." A fourth read, "I hate fags. . . . You need to be stopped." One student wrote, "I am looking forward to your death." Another commented, "Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive." One post read, "I want to rip out your fucking heart and feed it to you." Several other posts couched threats with references to D.C.'s misperceived sexual orientation as a homosexual.

The students who posted the threats sought to destroy D.C.'s life, threatened to murder him, and wanted to drive him out of Harvard-Westlake and the community in which he lived. The Harvard-Westlake student newspaper, The Chronicle, ran more than one article on the matter.

When D.C.'s father read the threats at the Web site, he immediately informed Harvard-Westlake of the problem, believing that some of its students were responsible. The father also contacted the Los Angeles Police Department, which, in turn, notified the Federal Bureau of Investigation.

On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to another part of California, where he went to a different educational institution. The Chronicle ran an article disclosing D.C.'s new residential location and the name of the school he was attending. The article also disclosed that postings at the Web site had referred to D.C. as a "faggot." The faculty advisor to the staff of The Chronicle approved the article before publication. Harvard-Westlake did not suspend or expel any of the students who admitted posting the threats.

The original complaint contained 11 causes of action: negligence; assault upon another with death threats and hate crimes; conspiracy to assault another with death threats and hate crimes; invasion of privacy; conspiracy to invade the privacy of another; defamation; conspiracy to defame another; intentional infliction of emotional distress; conspiracy to inflict emotional distress on another; negligent infliction of emotional distress; and fraud in the inducement of a contract. A statutory hate crimes claim was not pleaded.

The cause of action for negligence alleged that the School had failed to provide a safe school environment (see Ed. Code, former §§ 35294.20-35294.21, added by Stats. 2002, ch. 506, § 3). The cause of action for assault upon another with death threats and hate crimes sought to impose liability on the School for permitting students to use its computers to make the threats. The related conspiracy claim accused the School of protecting the students who posted the threats in order to preserve their academic standings, to prevent colleges and universities from learning about their misconduct, and to protect the School's reputation; in addition, the School exposed plaintiffs to further harm by publishing an article in The Chronicle disclosing their new residential location and the name of D.C.'s new educational institution. The privacy and defamation claims alleged that defendants had published in a public forum false and derogatory comments about D.C.'s misperceived sexuality. The intentional and negligent infliction of emotional distress claims were premised on the preceding allegations. The last cause of action, for fraudulent inducement, alleged that D.C.'s parents enrolled him in Harvard-Westlake and paid a "substantial sum of money" in exchange for the school's promise to provide an environment free of verbal abuse and harassment. At the end of the complaint, plaintiffs prayed for an unspecified amount of general damages, special damages, and attorney fees on each cause of action. The complaint did not include as defendants either the students who had posted the death threats or their parents as guardians ad litem.

In the body of the complaint, the privacy and defamation claims each alleged that D.C.'s reputation had been damaged in an amount exceeding $10 million.

The case was assigned to Judge Victor H. Person.

B. The Petition to Compel Arbitration

On May 27, 2005, the School filed a petition to compel arbitration of all claims and to stay the civil action pending the outcome of arbitration. The petition was based on the contents of Harvard-Westlake's "Enrollment Contract," signed by D.C.'s father.

The Enrollment Contract consisted of five pages. The heading "PERMISSION TO ENROLL" appeared at the top of the first page, followed by the recitation, "I have read, initialed and agree to the enclosed Terms & Conditions . . . . I accept this offer of enrollment, certify that I am the legal custodial parent and hereby enroll my child at Harvard-Westlake." The fourth page was captioned "TERMS AND CONDITIONS." It stated at the top: "My signature on the Enrollment Agreement and initials below affirm that I have read this statement and have accepted all of its provisions." (Third italics added.)

Under "TERMS AND CONDITIONS," the contract contained an arbitration provision, stating: "I understand that any legal and actionable controversy or claim arising out of or relating to this Agreement (including but not limited to the determination of the scope and applicability of this Agreement to arbitrate), the student's enrollment in/departure from Harvard-Westlake or the student's educational experience at Harvard-Westlake (including, but not limited to academic matters and extracurricular activities and community service) shall be submitted to final and binding arbitration to be held in Los Angeles County, California, before a single, neutral arbitrator in accordance with [Judicial Arbitration and Mediation Services, Inc.'s (JAMS)] Comprehensive Arbitration Rules and Procedures. This arbitration agreement applies during the term of this enrollment agreement and survives after the termination of the enrollment agreement."

JAMS rules, though not set forth in the contract, provided: "Each Party shall pay its pro-rata share...

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