Demurrer in J.R. vs. Clovis Unified School District| Trellis.Law

On November 13, 2020 a Motion,Ex Parte was filed involving a dispute between J.R., R, J, and Castillo, Monica, Clovis Unified School District, Eisele, Ryan, for 08 Unlimited - Civil Rights in the District Court of Fresno County.

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DeMaria Law Firm, APC E-FILED
Anthony N. DeMaria, #177894 4/1/2021 2:38 PM
ademaria demarialawﬁrm.com Superior Court of California
S. Nicole Tuc er, #PL-508818
County of Fresno
ntucker@demarialawﬁrm. com
By: A. Ramos, Deputy
1690 W. Shaw Ave. Suite 220
Fresno, California 93711
Telephone: (559) 206-2410
Facsimile: (559) 570-0126
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Attorneys for Defendants, CLOVIS UNIFIED
SCHOOL DISTRICT and MONICA CASTILLO
[EXEMPT FROM FEES PURSUANT To
Gov. CODE § 6103]

SUPERIOR COURT OF THE STATE 0F CALIFORNIA

COUNTY OF FRESNO

J.R.,an individual, by and through her Case No. 20CECG03347
guardian ad litem, STEVEN RUGGIERO
DEFENDANTS’ CLOVIS UNIFIED
Plaintiff, SCHOOL DISTRICT AND MONICA
CASTILLO’S DEMURRER T0
v. PLAINTIFF’S FIRST, FIFTH, SIXTH,
SEVENTH, AND EIGHTH CAUSES OF
CLOVIS UNIFIED SCHOOL DISTRICT, a ACTION
California local educational agency, RYAN
EISELE, an individual, MONICA Date: October 20, 2021
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CASTILLO, an individual, and DOES 1 Time: 3:30 P.M.
through 20, inclusive Dept. 501
WQQM¥WNHO©WNGM#WNHO Hon. Judge Tharpe
Defendants.

DEFENDANTS’ DEMURRER T0 PLAINTIFFS’ COMPLAINT
TABLE OF AUTHORITIES
CASES PAGE

Alfaro v. Community Housing Improvement System & Planning Assn, Inc. .

(2009) 171 Cal.App.4th 1356, 1371 .................................................................... 3

Blank v. Kirwan
\OOOQQUI-bUJN
(1985) 39 Cal.3d311,318 ............................................................................... 4

Boyle v. City ofRedondo Beach
(1999) 70 Cal.App.4th 1109, 1114 n.2 ................................................................ 3

Brennan B. v. Superior Court (Contra Costa)
(2020) 57 Cal.App.5th 367, 271 Cal.Rptr.3d 320 ....................................... 2, 9, 10, 11

10 Burks v. Poppy Construction C0.
(1962) 57 Cal.2d. 463, 468-469 ..................................................................... 11
11

C.N., et al v. Wolf," et al,
12
(C.D. Cal. 2005) 410 F.Supp.2d.) ................................................................... 5, 6
13
Camfield v. Board ofTrustees ofRedondo Beach Unified School District
14 (9th Cir. 2020) 800 Fed.Appx. 491, 376 Ed. Law Rep. 153 ...................................... 7

15 Superior Court
Christensen v.

(1991) 54 Cal.3d 868, 903-904, 2 Ca1.Rptr.2d 79 .................................................. 12
16

17 Curran v. Mount Diablo Council ofthe Boy Scouts

21
Davidson

Doe v.
v. City 0f Westminster

(1982) 31 Cal.3d 197, 185 Ca1.Rptr.

Pasadena Hospital Association, Ltd.
25214
(1998) 17 Ca1.4th 670, 686-687 .................................................................. 10, 12

(C.D. Cal. 2020) 2020 EL 1244357 ..................................................................... 9

22 Donovan, et al v. Poway Unified School District, et al
(2008) 167 Cal.App.4th 567, 579, 602 84 Cal.Rptr.3d 285, 293, 310-311 ...................... 5
23

24 Evans v. City ofBerkeley
(2006) 38 Cal.4th 1, 6 ................................................................................... 4

25
Ex Parte Bell
26 (1942) 19 Ca1.2d 488, 526, 122 P.2d 22 ................................................................. 7

27
Gabrielle A. v. County ofOrange
28 (2017) 10, Cal.App.5th 1268, 1290, 217 Cal.Rptr.3d 275 ........................................ 6

DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
Greenwald v. Bohemian Club, Inc.,

(ND. Cal. June 4, 2008) No. C 07-05261 WHA, 2008 WL 2331947 ............................. 9

Hector F. El Centro Elementary School Dist.
v.

(App. 4 Dis. 2014) 173 Cal.Rptr.3d 413, 227 App.4th 331 ....................................... 6

\OOOﬂQUl-PUJNﬂ
Hendy v. Losse
(1991) 54 Cal.3d 723, 742 ............................................................................. 14

Herrera v. AllianceOne Receivable Management, Inc.

(S.D. Cal. 2016) 170 F.Supp.3d 1282 ................................................................ 7

Hughes v. Pair
(2009) 46 Cal.4th 1035, 1050-1051, 95 Ca1.Rptr.3d 636......................................... 12

’
Isbister Boys Club ofSanta Cruz
v.

(1985) 40 Ca1.3d 72,76 ................................................................................ 11

Jones v. Kmart Corp.
(1998) l7 Ca1.4th 329, 338, 70 Ca1.Rptr.2d 844 .................................................... 7

Monzon v. City ofMurrieta
(9th Cir. 2020) 978 F.3d 1150, 2020 D.A.R. 11,554 ............................................... 7

Ochoa, Superior Court ofSanta Clara, et al.
et al. v.

(1985) 39 Ca1.3d 159, 216 Ca1.Rptr. 661 ........................................................... 13

NNNNNNNNNr—Iv—nt—sp—nn—In—Ir—It—tH—t
O’Connor v. Green Owners Association
Village
(1983) 33 Ca1.3d 790, 796 ............................................................................. 11

Plotm’k v. Meihuas
OOQQM-bWNt—‘OOOOQGMcbWNﬂO
(2012) 208 Cal.App.4th 1590, 1614, 146 Ca1.Rptr.3d 585 ........................................ 13

Roe v. Rialto Uniﬁed School District
(C.D. Cal. 2020) 2020 WL 3978065 ................................................................. 6

Schonfeldt v. State ofCalif
(1998) 61 Cal.App.4th 1462, 1465 ................................................................... 14

Shoyoye v. County ofLos Angeles
(2021) 203 Cal.App.4th 947, 959, 137 Ca1.Rptr.3d 839 ........................................... 7

Simmons v. Superior Court
(2016) 7 Cal.App.5th,1 1 13, 1125, 212 Ca1.Rptr.3d 884 ............................................ 8

Store ofHappiness v. Carmona & Allen
(1957) 152 C.A.2d 266, 269, 312 P.2d 1104 ...................................................... 4, 9

iii

DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
Venegas County ofLos Angeles
v.

(2004) 32 Cal.4th 820, 11 Cal.Rptr.3d 692 .......................................................... 7

Warﬁeld v. Peninsula Golf& Country Club
(1995) 10 Cal.4th 594, 607-608 ................................................................ 10, 12

\DOOﬁQUI-hUJNH
Wood v. Elling Corp.
(1977) 20 Cal.3d 355, 365 n.8 ........................................................................... 3

Yurick v. Superior Court
(1989) 209 Cal.App.3d 1116, 1128, 257 Cal.Rptr. 665 ........................................... 12

STATUTES

California Civil Code
Section 51 ............................................................................................ 9, 10

California Civil Code
Section 5 1 (b) ........................................................................................... 10

California Civil Code
Section 52.1 ........................................................................................... 6, 7

California Civil Code
Section 52.1(b-c) ........................................................................................ 8

California Civil Code
NNNNNNNNNv—‘v—tv—nn—Ir—Au—ny—AF—aHp—A
Section 52.4 ............................................................................................. 9

California Civil Code
Section 52.4(a) .......................................................................................... 8

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California Civil Code
Section 1708.5 ..................................................................................... 4, 5, 6

California Civil Code
Section 2295 .......................................................................................... 4, 9

California Code of Civil Procedure
Section 430.10 ........................................................................................... 3

California Code of Civil Procedure
Section 430.10(e) ....................................................................................... 3

California Code of Civil Procedure
Section 430.50 ........................................................................................... 3

iv
DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
California Education Code
Section 201 ....................... ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 5,6

California Education Code
Section 201(a-b) ................. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 6

California Education Code
Section 220 ....................... oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 5

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California Education Code
Section 48200 et seq. ................................................................................... 4

OTHER AUTHORITY
CACI 1360 ................................. ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo I

11
CACI 1600 ................................. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 12

12 CACI 3066 ................................. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 6

13 Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute-A Problem in
Statutory Application
14
(1960) 33.So.Ca1.L.Rev. 260, 281 ................................................................... 10

15
Rest.3d, Torts: Liability for Physical and Emotional Harm § 46, Comment d ......................... 12
16
3 Witkin, Summary 11th Agency § 2 (2020) .............................................................. 4, 9
17
5 Witkin, Summary 11th Torts § 525 (2020) .............................................................. 12
18

5 Witkin, Cal. Proc. 5th Plead § 991 (2020) ............................................................... 14
19

v
DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
INTRODIiJCTION

DJN

Plaintiff J.R., an individual, by and through her guardian ad litem, STEVEN RUGGIERO,
(“Plaintiff”) fails to plead facts t0 support her contention that Defendants CLOVIS UNIFIED

SCHOOL DISTRICT and MONICA CASTILLO (“the District”, “Castillo”, or together,

“Defendants”) are liable for the alleged, intentional acts of a student, identiﬁed as “Josh” in
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Plaintiff’s Complaint. Plaintiff’s misguided assertions attempt to place the District and its

employees as the liable parties for her alleged sexual batteries; however, Plaintiff falls short ofbeing

able to craft a viable claim for relief against Defendants for Sexual Battery, as “Josh” was the alleged

10 batterer, not any named Defendant; violations of the Bane Act, as none of her Constitutional rights

11 were infringed and no coercion or threat of force was used against her by any Defendant; Gender

12 Violence, as neither Defendant is the “responsible party” for Plaintiff’s alleged sexual battery;

l3 and/or Intentional Inﬂiction of Emotional Distress, as the allegations against the Defendants rise no

14 higher than an action for negligence. Moreover, as a matter of law, Defendants are not liable for

15 damages under Califomia’s Unruh Act as ruled in Brennan B. v. Superior Court (Contra Costa)

16 (2020) 57 Cal.App.5th 367, 271 Cal.Rptr.3d 320. Therefore, Defendants request that this Court

17 dismiss the First, Fifth, Sixth, Seventh, and Eighth Causes of Action with prejudice without leave

18 to amend.

19 II.

FACTUAL BACKGROUND
20

21 Plaintiff was a special education student with Defendant CUSD in 2018 (Complaint, 5:17

22 attached as Exhibit A to the Declaration of S. Nicole Tucker, hereinafter “Complaint”.) During

23 November of 2018, Plaintiff alleges that she was sexually assaulted on while on campus by another

24 student, identiﬁed as “Josh”, when “Josh” led her to bushes on campus. (Complaint, 8:19-25.) After

25 ﬁnding the students leaving the bushes, Defendant Castillo conducted an investigation into the

26 incident and found that the acts which occurred in the bushes were mutually voluntary and Plaintiff

27 was suspended from school. (Complaint 13 :4-8.) Following this incident, some fourteen months later,

28 in January of2020, Plaintiff alleges that the was once against sexually molested by “Josh” on campus

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DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
during the school day. (Complaint, 1613-5.) Plaintiff reported both incidents to the District and both

were investigated. (Complaint, 13:4—8, 16:6-9.) Plaintiff then ﬁled this present lawsuit on or about

November 13, 2020, seeking damages related to the alleged incidents and the damages allegedly

ﬂowing from the actions of “Josh”.

Defendants’ counsel met and conferred with Plaintiff’s counsel regarding the claims in the

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First, Fifth, Sixth, Seventh, and Eighth Causes of Action, informing Counsel that none of the actions

alleged in the Complaint meet the high standard required under the law, that the parties named in the

suit were not the party that allegedly sexually battered Plaintiff, and that as a matter of law,

Defendants are not liable under the Unruh Act. Defendants’ counsel had a person to person meet and

confer over these issues with Plaintiff’s counsel and Plaintiff’s counsel disagreed with Defendants’

position, claiming that Plaintiff had plead sufﬁcient facts. Unable to reach an agreement, Defendants

ﬁled this present motion, for a demurrer as to Plaintiff’s First, Fifth, Sixth, Seventh, and Eighth

Causes of Action without leave to amend.

III.

LAW AND ARGUMENT
A. Legal Standard For Demurrer

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Code of Civil Procedure § 430. 1 O authorizes a party to object by way ofdemurrer to a pleading

when, among other things, the pleading “does not state facts sufﬁcient to constitute a cause of action.”

(C.C.P. § 430.10(e).) A party may demur to the whole complaint or any causes of action stated

A general
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therein. (Code Civ. Proc. §430.50.) demurrer tests the legal sufﬁciency of a plaintiff’s

factual allegations. (Boyle v. City ofRedondo Beach (1999) 70 Cal.App.4th 1109, 1114 n2.) As a

result, while a court must accept as true “all material facts properly pleaded,” the court need not

accept the truth of plaintiff’s “contentions, deductions, or conclusions of fact or law.” (1d.) Further,

when the speciﬁc factual allegations in a pleading are inconsistent with the general allegations or

factual conclusions in that same pleading — the speciﬁc allegations control. (See Wood v. Elling Corp.

(1 977) 20 Cal.3d 355, 365 n.8; Alfaro v. Community Housing Improvement System & Planning Assn,
Inc. (2009) 171 Cal.App.4th 1356, 1371.) When construing the factual allegations of a complaint,

the court is to “give the complaint a reasonable interpretation, reading it as a whole and its parts in

3
DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINT
their context.” (Evans v. City ofBerkeley (2006) 38 Ca1.4th 1, 6 [citing Blank v. Kirwan (1985) 39

Cal.3d 31 1, 318].)

B. Plaintiff Explicitly Identiﬁes “Josh” As Her Alleged Sexual Batterer, And
Therefore, This Court Should Grant Defendant’s Demurrer To Plaintiff’s First
Cause Of Action With Prejudice.

In her First Cause of Action, Plaintiff asserts that Defendants CUSD and Castillo are liable
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for sexual battery. The legal standard for a cause of action for sexual battery requires the plaintiff to

show 1) the defendant intended to cause or caused an imminent fear ofa harmful or offensive contact

with plaintiff’s sexual organ and a sexually offensive contact resulted, 2) plaintiff did not consent

to the contact; and 3) plaintiff was harmed or offended by the defendant’s conduct. (Cal. Civ. Code

§ 1708.5; CACI 1360.) In her Complaint, Plaintiff alleges that “Josh,” a student and not a named

party to this action, “committed the act of civil sexual battery in violation of Civil Code § 1708.5

when he willﬁllly, maliciously, intentionally, and without J.R.’s consent subjected her to the acts

mentioned above.” (Complaint, 8: 1 9, 19: 1 8-20.) Despite the fact that Plaintiff identiﬁes her alleged

perpetrator in her Complaint, she is attempting t0 recover damages from Defendant CUSD and

Defendant Castillo as batterers for the intentional actions of another person who Plaintiff admits is

individual who allegedly battered her.

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Plaintiff attempts to artfully craft an argument to create liability for Defendants for the

actions of a student on their campus; however, Plaintiff widely misses the margin. First, Plaintiff

makes the outlandish claim that when “Josh” alleged sexually battered Plaintiff, he was doing so as
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an agent of Defendant CUSD and Defendant Castillo. However, there is no agency relationship

created between a school district and its students. By deﬁnition, “an agent represents another,

called the principal, in dealings with third persons.” (Cal. Civ. Code §2295; Store ofHappiness v.

Carmona & Allen (1957) 152 C.A.2d 266, 269, 312 P.2d 1104; see also 3 Witkin, Summary 11th

Agency § 2 (2020).) As alleged, “Josh” was a student with Defendant CUSD the same as Plaintiff;
the same as Plaintiff, “Josh” was required to be on campus under Califomia’s compulsory education

laws. (Cal. Ed. Code §48200 et seq.) Clearly, “Josh’s” presence on campus was not for purposes of

representing Defendant CUSD or Defendant Castillo and the purpose of the alleged relationship

between Defendant CUSD and “Josh” was for his education as required by law and not for any

4
DEFENDANTS’ DEMURRER To PLAINTIFFS’ COMPLAINT
dealings with third parties. Therefore, no such agency relationship existed at the time of the alleged

incident between “Josh” and Defendants CUSD and/or Castillo. As “Josh” was not an agent of either
Defendant at the time of the alleged abuse, Defendants cannot ratify “Josh’s” conduct, as Plaintiff

has alleged. (Complaint 21 :22.) As such, Plaintiffs argument fails.

Plaintiff turns then to Education Code §220 to attempt to create liability against the District
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and its employee for the intentional tortious actions of a student on campus. Education Code § 220

states that no student shall be subjected to discrimination on campus on the basis of any protected

trait, including gender and disability. This section creates independent liability against a publicly

funded local educational agency (“LEA”) where the LEA, not one 0f its agents, commits

misconduct that is so “severe, pervasive, and offensive” that the student was “effectively

deprived. .of the right of equal access to educational beneﬁts and opportunities.” (Donovan, et al
. v.

Poway Uniﬁed School District, et al (2008) 167 Cal.App.4th 567, 579, 602 84 Cal.Rptr.3d 285, 293,

310-31 1.) Education Code § 220 is completely inapplicable to this student on student assault case

for two reasons: ﬁrst, Education Code § 220 is its own separate claim for damages, not a bridge for

Plaintiff to utilize in order to reach a completely separate cause of action, and second, Plaintiff

admits that the alleged sexual battery was committed by “Josh,” not the LEA, and attempts t0
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establish liability through the principal—agent relationship. (C.N., et a1 v. Wolf et al, (CD. Cal. 2005)

410 F.Supp.2d.) Even if “Josh” was acting as Defendants’ agent at the time of the alleged incident,

which as already discussed above “Josh” was not, it is well established that Education Code § 220
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cannot be established through an agency relationship. (Donovan, supra, 167 Cal.App.4th at 605,

“The Education Code's antidiscrimination provisions contain no similar reference to agency

principles. .”.) Furthermore, as previously stated, there is
. no agency relationship created between a

school district and its students. Therefore, Plaintiff’s use of Education Code § 220 to attempt to

establish liability against Defendants for a cause of action for sexual battery allegedly committed

by a student is inappropriate and misguided under the law.

Next, Plaintiff cites to Education Code § 201 in an attempt to ﬁnd valid footing to support

her claim that Defendants should be held liable under Civil Code § 1708.5, which is equally

inapplicable to this case. Education Code § 201 provides that “A11 pupils have the right to participate

5
DEFENDANTS’ DEMURRER TO PLATNTIFFS’ COMPLAINT
fully in the education process, free from discrimination” and states that “Califomia’s public schools

have an afﬁrmative obligation to combat” the various forms of harassment that could occur on public

school campuses across the State. (Cal. Ed. Code § 201(a-b).) However, like § 220 discussed above,

Education Code § 201 is an independent cause of action under California Law. (C.N., et al v. Wolf
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et a1, supra, (C.D. Cal. 2005) 41 0 F.Supp.2d.; Hector F. v. El Centro Elementary School Dist. (App.

4 Dis. 2014) 173 Cal.Rptr.3d 413, 227 App.4th 33 1; Roe v. Rialto Unified School District (C.D. Cal.

2020) 2020 WL 3978065.) Like Education Code § 220, § 201 applies when a school district fails to

implement the proper procedures to protect students from harassment; but it is limited to its own

cause of action. (Id.) Education code section cannot be used as a legal basis to enforce a battery by

a student as a basis for tort liability to the District on a separate battery theory.

Civil Code § 1708.5 imposes liability against aperson who commits a sexual battery against

another person. Plaintiff does not allege that Defendant Castillo sexually battered Plaintiff. Plaintiff

does not allege that Defendant CUSD, a government agency, sexually battered her. Plaintiff alleges

that “Josh” sexually battered her. As such, Plaintiff cannot assert a cause of cation under Civil Code

§1708.5 against either Defendant. As there can be no liable battery theory asserted against

Defendants, there should be no leave to amend.

C. T0 Show Any Threats, Intimidation or
Plaintiff Failed to Plead Facts Sufficient
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Coercion By Either Defendant CUSD or Defendant Castillo That Either Would
Commit Violence Against Her If She Exercised Her Civil Rights And Therefore,
This Court Should Grant Defendant’s Demurrer To The Fifth Cause Of Action
With Prejudice.
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In her Fifth Cause of Action, Plaintiff alleges that Defendants are liable under the Bane Act

for her alleged injuries. The Bane Act, provided at Civil Code § 52.1, is violated when 1) by use of

threats, intimidation, or coercion, a defendant caused a plaintiff to reasonably believe that if she

exercised her right, defendant would commit violence against her or her property and that defendant

had the apparent ability to carry out the threats; 2) defendant intended to deprive plaintiff of her

enj oyment of her rights and the interests therein protected; 3) that plaintiff was harmed; and that 4)

defendant’s conduct was a substantial factor in causing plaintiff’s harm. (Cal. Civ. Code § 52.1;

CACI 3066.) “[T]o state a cause of action under § 52.1 there must ﬁrst be violence or intimidation

by threat of violence.” (Gabrielle A. v. County 0f0range (2017) 10, Cal.App.5th 1268, 1290, 217

6
DEFENDANTS’ DEMURRER TO PLATNTIFFS’ COMPLAINT
Cal.Rptr.3d 275.) “The Legislature enacted section 52.1 t0 stem a tide of hate crimes.” (Jones

v. Kmart Corp. (1 998) 17 Cal.4th 329, 338, 70 Cal.Rptr.2d 844, internal citations omitted, emphasis

added.) “[S]ection 52.1 does require an attempted or complete act of interference with a completed

act of interference with a legal right, accompanies by a form of coercion.” (Jones, supra, 17 Cal.4th.

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at 334, 70 Cal.Rptr.2d 844.) “The statutory framework of section 52.1 indicates that the

Legislature meant the statute to address interference with constitutional rights involving more

egregious conduct than mere negligence.” (Shoyoye v. County 0f Los Angeles (2021) 203

Cal.App.4th 947, 959, 137 Cal.Rptr.3d 839, emphasis added.)

Plaintiff’s cause of action under the Bane Act fails for two reasons. First, Plaintiff fails to

assert a Constitutional right that was infringed upon. The Bane Act looks to protect a plaintiff’s

constitutional right when they have been infringed upon by use of force or coercion. (See Venegas

v. County of Los Angeles (2004) 32 Cal.4th 820, 11 Cal.Rptr.3d 692 [unreasonable detention,

unlawful search and seizure]; Monzon v. City 0f Murrieta (9th Cir. 2020) 978 F.3d 1150, 2020

D.A.R. 11,554 [violation of right to life by use of deadly force in a motor vehicle theft].) In her

Complaint, Plaintiff does not allege any such right was violated. Plaintiff provides a laundry list of

statutes to support her claim that Defendants owe her a duty under the law and place an obligation

on Defendants to provide Plaintiff with an education “free from physical violence or threats of
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violence and/or injury.” (Complaint 26:3-4.) However, nowhere therein does Plaintiff assert that

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Defendants have in any way curtailed her from asserting a constitutional right. As it is unclear what

constitutional right Plaintiff claims was ever infringed, she has failed to plea

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Motion,Ex Parte: J.R. vs. Clovis Unified School District

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