B B et al vs Tracie Simolon et al

Case Number

23CV03752

Case Type

Hearing Date / Time

Fri, 03/15/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

B.B., et al. v. Tracy Simolon, et al. 

Case No.  23CV03752       

Hearing Date: March 15, 2024                                            

MATTERS:             (1) Defendants’ Demurrer To Plaintiffs’ Complaint

                                    (2) Defendants’ Motion To Strike Claim For Punitive Damages From Complaint

                                   

ATTORNEYS:        For Plaintiffs B.B., a minor by and through her guardian ad litem Julia E. Briscoe and Julia E. Briscoe: Julia E. Briscoe

For Defendants Tracie Simolon and the Archdiocese of Los Angeles Education & Welfare Corporation: Fred Grannis

TENTATIVE RULING:

(1) For all reasons discussed herein, the demurrer of defendants to plaintiffs’ complaint is sustained, in part and with leave to amend as to the second, third, fourth, and fifth causes of action alleged in the complaint and titled as, respectively, counts II, III, IV, and V. Except as sustained herein, the demurrer is otherwise overruled.

(2) For all reasons discussed herein, the motion of defendants to strike plaintiffs’ claim for punitive damages is granted, without leave to amend and without prejudice as to defendant the Archdiocese of Los Angeles, and with leave to amend as to defendant Tracy Simolon. The following matters shall be stricken from plaintiffs’ complaint: paragraph 289 [beginning with the terms “or with willful” appearing at page 64, line 25, and ending with the terms “punitive damages” appearing at page 65, line 2]; paragraph 297 [beginning with the terms “and which” appearing at page 66, line 15, and ending with the terms “punitive damages” appearing at page 66, line 18]; paragraph 306 [beginning with the terms “or with willful” appearing at page 68, line 6, and ending with the terms “punitive damages” appearing at page 68, line 10]; paragraph 320 [beginning with the terms “or with willful” appearing at page 70, lines 14 through 15, and ending with the terms “punitive damages” appearing at page 70, lines 18 through 19]; and, prayer for relief paragraph C.

(3) Plaintiffs shall file and serve their first amended complaint on or before March 25, 2024.

(4) Plaintiff Julia E. Briscoe shall include a State Bar membership number on the first page of every paper filed on behalf of plaintiff B.B. in this matter.

Background:

On August 30, 2023, plaintiffs B.B., a minor by and through her guardian ad litem Julia E. Briscoe (Briscoe) and Briscoe, individually (collectively, plaintiffs), filed a complaint against defendants Tracy Simolon (Simolon) and the Archdiocese of Los Angeles (the Archdiocese), alleging five causes of action: (1) breach of contract; (2) intentional infliction of emotional distress (against Simolon only); (3) negligence; (4) negligent infliction of emotional distress; and (5) premises liability (against the Archdiocese only).

The text of the complaint is set forth in 320 paragraphs. Factual allegations which appear to be common to each cause of action are set forth in paragraphs 20 through 236, which also include numerous subparagraphs. (See, e.g., Compl., ¶¶ 41, 43, 44, 49, 55.) The complaint does not connect specific material events, incidents, or facts to each cause of action asserted by plaintiffs. The manner in which plaintiffs have set forth the allegations of the complaint has made it difficult for the court to summarize the material allegations as they relate to plaintiffs’ claims for relief and claimed damages. As alleged in the complaint:

The Archdiocese owns, operates, and manages Our Lady of Mt. Carmel which is a private parish school (the school) situated on property owned by the Archdiocese and located at 530 Hot Springs Road in Santa Barbara, California (the property). (Compl., ¶¶ 2, 12, 13.) Simolon is the principal of the school. (Id. at ¶ 3.)

On November 4, 2019, Briscoe contacted the school for enrollment information and joined a tour led by Simolon at the school’s campus. (Compl., ¶ 33.) On November 12, 2019, Briscoe submitted to defendants an application for B.B.’s admission to the school (the application). (Id. at ¶ 34.) (Note: The court notes that though plaintiffs allege that the application is attached as part of Exhibit 6 to the complaint, Exhibit 6 consists of two documents titled as payment summaries. The court is unable to locate among the exhibits attached to the complaint a copy of the application.)

On December 5, 2019, Simolon agreed by phone call to Briscoe to admit B.B. in to the school’s program. (Compl., ¶ 36.) On December 7, 2019, Simolon’s administrative assistant Katherine Madlem confirmed B.B.’s enrollment at the school. (Id. at ¶¶ 25, 38.)

The terms of the contract are established by documents created, produced, maintained, and provided by defendants and include: a “2019-20 Technology: Acceptable Use Policy (AUP) For iPads, Chromebooks, Laptops & Other Technological Devices”; an “Acknowledgment of Receipt of Guidelines for Adults Interacting with Minors At Parish/School Activities or Events”; the “ADLAH as the governing manual setting forth [Archdiocese] directives, policies, procedures, and guidelines for the operation of [the school] and incorporated by the AUP-2019, ARGA-2019, and MCS Parent-Student Handbook 2020-21”; an “Acceptable Use and Responsibility Policy for Electronic Communications”; and, a tuition agreement. (Compl., ¶ 41(a)-(f).)

On December 9, 2019, B.B. began attending fourth grade at the school. (Compl., ¶ 54.) Briscoe paid tuition due, provided test results as required by defendants, completed required volunteer hours, ensured that B.B. complied with punctuality and attendance requirements and was conscientious in her conduct and academic work. (Id. at ¶ 55.)

Additional allegations appear in groupings of paragraphs under descriptive titles which purport to set forth: plaintiffs’ interpretation of the purported contract including terms relating to the use of school-owned technology devices; school searches; guidelines for adults interacting with minors; provisions reserving to defendants a right to categorize student or parent conduct as religious; plaintiffs’ alleged compliance with contract terms and Briscoe’s renewal of the contract by enrolling B.B. during various school years; purported conduct by Simolon and other school staff which plaintiffs contend display a “pattern of preference in the implementation of school rules and a correlative practice of manipulating information and communications”; conduct giving rise to concerns by Briscoe regarding B.B.’s well-being at the school; the destruction of B.B.’s work at the school; and, a purported disclosure of private information regarding B.B. (See Compl., ¶¶ 43-108 & 207-230.)

In addition to the allegations summarily described above, plaintiffs include factual allegations titled “September 2, 2021”, which appear in paragraphs 111 through 200. Notwithstanding the manner in which plaintiffs have titled this group of paragraphs, plaintiffs include within this grouping facts relating to events which occurred before September 2, 2021. (See, e.g., Compl., ¶¶ 112, 114, 116-121.)

In the paragraphs titled “September 2, 2021”, plaintiffs allege that on September 2, 2021: Briscoe requested that B.B. be permitted to use a personal iPad for her schoolwork in 2021 and 2022; Briscoe alternatively requested that Briscoe be given opportunity to view any school owned iPad assigned to B.B.; Simolon witnessed a teacher damaging an iPad that was assigned to B.B.; Simolon telephoned Briscoe “in defiance of” Briscoe’s express request that the parties continue their discussion by email; Simolon acknowledged that B.B. was not at fault in connection with damage to the iPad and had not violated school rules; and Simolon terminated B.B.’s enrollment at the school. (Compl., ¶¶ 185; 187; 190; 191(a), 193.)

On December 27, 2023, defendants filed a demurrer each cause of action alleged in the complaint on the grounds that plaintiffs have failed to state facts sufficient to constitute a cause of action. Defendants also filed a motion to strike plaintiffs’ claim for punitive damages.

Plaintiffs oppose the demurrer and motion to strike.

Analysis:

(1) Procedural Matters

Identification of Briscoe’s State Bar membership number:

As an initial matter, the court notes that Briscoe appears in this matter “in pro per”, and is also representing B.B. A guardian ad litem may not appear in propria persona on behalf of minor in a representative capacity if the guardian ad litem is a non-lawyer. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965–967 [also discussing the prohibition against the unauthorized practice of law in the context of a non-lawyer guardian ad litem who appears in a representative capacity].) As Briscoe has appeared on behalf of B.B. in a representative capacity, Briscoe may not appear in this matter in propria persona to the extent Briscoe is a non-lawyer.

Court records reflect that in the application for appointment of a guardian ad litem (the guardian application) filed in this matter by Briscoe on September 5, 2023, Briscoe identified in the caption of the guardian application what appears to be Briscoe’s State Bar membership number. The State Bar membership number identified in the caption of the guardian application belongs to Briscoe and the court has verified that Briscoe is a lawyer whose license status is presently active. The court will require Briscoe to identify this fact by including Briscoe’s State Bar membership number on the first page of every paper filed by Briscoe on behalf of B.B. in this matter, as required by California Rules of Court, rule 2.111(1) [requiring that the first page of each paper include the “State Bar membership number of the attorney for the party in whose behalf the paper is presented].)
 

The papers submitted in opposition to the demurrer and motion to strike:

California Rules of Court, rules 2.104 and 2.108(1), require, respectively, that papers must be printed or typewritten “in type not smaller than 12 points” and that page spacing be one-half or double-spaced.

In their papers opposing the demurrer and motion to strike, plaintiffs cite factual and legal authority using footnotes. The footnotes are single-spaced and the court’s review of these footnotes demonstrates that they are written in 9-point type, which is smaller than 12 points. The use of 9-point type makes it difficult for the court to easily review the material included in footnotes. In addition, plaintiffs’ opposing papers each appear to be written in type that is smaller than 12 points. For these reasons, the opposing papers violate California Rules of Court, rules 2.104 and 2.108(1).

Furthermore, the use of single-spaced footnotes written in 9-point type causes the papers opposing the demurrer and motion to strike to exceed the 15-page limit applicable to a responding memorandum. (See Cal. Rules of Court, rule. 3.1113(d).) For example, in the memorandum opposing the demurrer, footnotes occupy approximately 66 lines of text. In page 11 of the memorandum opposing the motion to strike, footnotes occupy 30 lines of text notwithstanding that footnotes appearing in other pages of that memorandum occupy, collectively, at least 40 lines of additional single-spaced text using type smaller than permitted by court rules.

Applying rough calculations, the use of single-spaced footnotes written in a font size that is smaller than permitted by court rules results in memorandums which exceed the page limit by over 2 pages with respect to the papers opposing the demurrer, and over 3 pages with respect to the papers opposing the motion to strike. Though court rules permit a party to apply to the court for permission to file a longer memorandum, plaintiffs have not done so here. (See Cal. Rules of Court, rule 3.1113(e).) Moreover, under California Rules of Court, rule 3.1113(g), “[a] memorandum that exceeds the page limits of these rules shall be filed and considered in the same manner as a late-filed paper.” The court has discretion to refuse to consider a late-filed paper. (Cal. Rules of Court, rule 3.1300(d).)

In addition, while the use of footnotes can, in limited circumstances, be useful, plaintiffs’ unsparing use of footnotes is counterproductive because it interrupts the flow of the text and is distracting. The use of footnotes may also result in cited authority or significant stated points being overlooked or ignored. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419-420 [addressing the disfavored use of footnotes on appeal for stating contentions or substantive legal argument].) Furthermore, the use of footnotes to cite to relevant authority causes the court to expend more time reviewing the papers than would normally be required, resulting in a waste of scarce judicial resources.

Counsel is reminded of her obligation to comply with court rules. Future failures to comply with applicable court rules may result in the court exercising its discretion to refuse to consider the improper papers, or the issuance of sanctions. In addition, and for all reasons discussed above, the court prefers that citations to factual or legal authority be included in the body of the memorandum and not in footnotes. The court requests that counsel note the court’s preference in the future.

(2) Defendants’ Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) However, on demurrer, the court does not weigh facts or consider matters extrinsic to the complaint. (See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

Timeliness of the demurrer:

Plaintiffs contend that defendants did not make a good faith effort to meet and confer regarding any deficiencies in the complaint until November 27, 2023, or prior to filing a declaration on November 27, 2023, in which defendants claimed a 30-day extension to file the demurrer. For this reason, plaintiffs argue that the demurrer should be overruled as untimely.

Court records reflect that on November 27, 2023, counsel for defendants, Fred Grannis, filed a declaration asserting that he was “only recently retained to represent defendants in this action.” (Nov. 27, 2023, Grannis Decl., ¶ 3.) Due to the length of the complaint and the attached exhibits, which collectively exceed 170 pages, counsel asserts that it took some time to review the complaint and research the claims alleged by plaintiffs. (Ibid.)

Counsel further declares that on November 27, 2023, he attempted to contact Briscoe by telephone and transmitted email correspondence to Briscoe requesting an extension of time to respond to the complaint. (Nov. 27, 2023, Grannis Decl., ¶ 3.) In the email correspondence, counsel discussed defendants’ objections to the claims and damages alleged in the complaint. (Ibid.) At the time the declaration was filed, counsel had not heard back from Briscoe. (Ibid.)

Available information appears to demonstrate that, after counsel for defendants filed the declaration on November 27, 2023, Briscoe agreed to grant defendants a two-week extension of time to respond to the complaint. (See Opp. at p. 2, l. 27.) In addition, Briscoe does not dispute that defendants’ counsel’s declaration was filed before any communication between the parties had occurred. (Id. at p. 2, ll. 18-19.)

“If the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

The declaration filed by counsel for defendants on November 27, 2023, made under penalty of perjury, is sufficient to demonstrate circumstances under which the parties were not able to meet and confer at least 5 days before the date defendants were required to file a responsive pleading. Briscoe does not effectively dispute that the parties were unable to meet and confer within the time frames provided under Code of Civil Procedure section 430.41, subdivision (a)(2). Therefore, the declaration is sufficient to grant defendants the statutory automatic 30-day extension of time, commencing from the date defendants’ responsive pleading was previously due. In addition, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)

Briscoe offers no further information to demonstrate the demurrer is otherwise untimely. Therefore, and for all reasons discussed above, the court declines to overrule the demurrer on the grounds of an insufficient effort to meet and confer or untimeliness.

Demurrer to first cause of action for breach of contract:

As grounds for the demurrer to the first cause of action for breach of contract, defendants contend that plaintiffs cannot recover damages for emotional distress caused by any breach of contract by defendants. (Demurrer at pp. 1 & 15, ll. 4-7 & 14-16.) Therefore, defendants argue, plaintiffs have failed to state facts sufficient to constitute a cause of action for emotional distress damages. (Id. at p. 1, ll. 4-7.)

The economic loss rule requires recovery in contract for “purely economic loss due to disappointed expectations” unless a party can “demonstrate harm above and beyond a broken contractual promise. [Citation.] Quite simply, the economic loss rule ‘prevent[s] the law of contract and the law of tort from dissolving one into the other.’ [Citation.]” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.)

However, in some instances, tort damages are permitted in cases involving a breach of contract. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-554 [“[c]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law”].) For example, “when the express object of the contract is the mental and emotional well-being of one of the contracting parties, the breach of the contract may give rise to damages for mental suffering or emotional distress.” (Id. at p. 559.) To the extent that tort damages are recoverable based a breach of a contractual obligation that creates a legal duty independent of the contract, “recovery … may be limited by the rule against double recovery of tort and contract compensatory damages.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Even if the court were to assume without deciding that plaintiffs have failed to allege facts demonstrating that the parties entered into a contract involving a personal undertaking or emotional concern and which permits plaintiffs to recover damages for emotional distress (and the court, for present purposes, makes no findings in this regard), “a demurrer cannot rightfully be sustained to … a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) As the demurrer to the first cause of action is effectively directed to whether plaintiffs may recover emotional distress damages based on a breach of contract claim, the court cannot properly sustain the demurrer on this ground.

Defendants do not assert additional grounds for the demurrer to the first cause of action alleged in the complaint apart from the contentions further discussed above. For example, defendants offer no reasoned argument demonstrating that plaintiffs have failed to sufficiently plead each or any one of the elements of a cause of action for breach of contract. (See, e.g., McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 [also noting that a contract may be pleaded by its legal effect].)

For all reasons discussed above, as the demurrer to the first cause of action is directed to a type of damage alleged in the complaint, the court will overrule the demurrer to the first cause of action.

Demurrer to second cause of action for intentional infliction of emotional distress:

The second cause of action for intentional infliction of emotional distress is alleged against Simolon. (See Compl., p. 65, l. 5.) Defendants contend that plaintiffs have failed to allege facts sufficient to constitute extreme or outrageous conduct by Simolon or directed to plaintiffs, or any facts demonstrating that either B.B. or Briscoe suffered severe emotional distress.

In their opposition to the demurrer, plaintiffs assert that the allegations of the complaint demonstrate that Simolon knew or had reason to know that the involuntary termination of B.B.’s enrollment would carry emotionally traumatic consequences, that B.B. had entered the school’s program after years of home schooling from which a factfinder could infer that B.B. was especially attached to new friendship bonds and sensitive to her place among her peers, that B.B. had suffered severe trauma resulting from her father’s death, and that B.B. was a uniquely vulnerable child at the time defendants terminated B.B.’s enrollment at the school. (See Opp. at pp. 12, ll. 22 – p. 13, l. 5 [citing Compl., ¶¶ 30, 55(g)(vi), 63–66, & 111.) Plaintiffs further assert that, knowing the above purported facts, Simolon phoned in the termination of B.B.’s enrollment, destroyed B.B.’s work, emboldened students to shame B.B., and obstructed plaintiffs’ applications to other schools on B.B.’s behalf. (Id. at pp. 13, ll. 6-11.) Plaintiffs contend that the allegations described above are sufficient to allege a claim for intentional infliction of emotional distress. (Id. at pp. 13, ll. 6-11.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted (Hughes).)

As further discussed above, the complaint includes over 200 paragraphs of factual allegations common to all causes of action, including the second cause of action for intentional infliction of emotional distress alleged against Simolon. In the second cause of action, plaintiffs assert conclusory allegations that Simolon’s termination of B.B.’s enrollment, reading B.B.’s confidential journal, retaining B.B.’s personal property, misrepresenting “information” to unauthorized individuals, and allowing school students to taunt and shame B.B. was excessive, severe, unjust, abusive, malicious, and shocking. The remaining allegations set forth in the second cause of action assert conclusions of law and fact. The few factual allegations identified in the second cause of action and further discussed above are not sufficient to plead the element of outrageous conduct, nor do plaintiffs identify any other particular events or conduct to this element of the claim.

In addition, giving the complaint a reasonable interpretation, Briscoe and not B.B. was a party to the purported contract at issue. (See Compl., ¶¶ 36, 37.) At best, the allegations of the complaint demonstrate a business relationship between Briscoe and the Archdiocese with respect to B.B.’s enrollment at the school. “ ‘[T]he termination of a business relationship, is, as [a] matter of law, not the type of “outrageous” conduct that is required to support a cause of action for intentional infliction of emotional distress.’ ” (Unterberger v. Red Bull North America, Inc. (2008) 162 Cal.App.4th 414, 423.) Presumably, the termination of every business relationship involves an exercise of some power by the party effectuating the termination. (See also Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 (Cochran) [“[t]here is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion”].) For these reasons, these allegations do not sufficiently plead the element of outrageous conduct in connection with Simolon’s termination of the purported business relationship between the Archdiocese and Briscoe.

Moreover, it is unclear which allegations appearing in the over 200 paragraphs of facts alleged in the complaint demonstrate the manner in which Simolon read a confidential journal or retained the personal property of B.B. (See, e.g., Compl., ¶ 199 [alleging that Simolon withheld the confidential journal after the termination]; 369 [alleging that school staff read the confidential journal].) These allegations alone are also insufficient to plead the element of outrageous and extreme conduct. (See Hughes, supra, 46 Cal.4th at p. 1051 [“[l]iability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” [Citation.]”]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [“there can be no recovery for mere … abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances”].)

The same analysis applies to allegations that Simolon tolerated other students taunting and shaming B.B. Preliminarily, it is unclear to the court on what basis plaintiffs allege that Simolon permitted other students to taunt and shame B.B. For example, plaintiffs allege that on March 19, 2022, a former school classmate taunted and shamed B.B. by posting a video on social media. (Compl., ¶ 226.) Plaintiffs also allege that B.B. was harassed by other school students through text messages, cyber calls, and on a public street. (Id. at ¶¶ 222-226.)

Based on the dates of these events as alleged in the complaint, these incidents appear to have occurred after Simolon terminated B.B.’s enrollment at the school. The court is unable to locate specific allegations that would demonstrate that Simolon knew about or otherwise encouraged the harassment or shaming of B.B. Even if plaintiffs sufficiently alleged Simolon’s knowledge about these incidents, it can be inferred from the express allegations of the complaint that the incidents occurred off school premises, after B.B.’s enrollment was terminated, and without Simolon’s involvement. Therefore, it is unclear on what factual or legal basis plaintiffs seek to hold Simolon liable for intentional infliction of emotional distress.

Moreover, while taunting or shaming behavior may be distressing, these allegations by themselves do not set forth outrageous or extreme conduct sufficient to plead a cause of action for intentional infliction of emotional distress against Simolon, and plaintiffs have failed to clearly identify the specific behavior that plaintiffs contend constitutes extreme or outrageous behavior by Simolon in connection with these incidents. General allegations effectively asserting that school staff have failed to cooperate with requests from other schools for references for B.B. are too conclusory and general to demonstrate outrageous or extreme conduct by Simolon. (See Compl., ¶¶ 213-216; Cochran, supra, 65 Cal.App.4th at p. 496 [“ ‘ “major outrage is still essential to the tort . . . .” ’ ”].)

For all reasons discussed above, plaintiffs have failed to sufficiently allege facts sufficient to state a claim against Simolon for intentional infliction of emotional distress. To the extent plaintiffs contend that different facts, apart from those identified to in the second cause of action or discussed above, demonstrate outrageous or extreme conduct, plaintiffs have failed to connect these facts to the cause of action. Therefore, and for all reasons discussed above, the court will sustain the demurrer to the second cause of action.

Demurrers to the third cause of action for negligence, the fourth cause of action for negligent infliction of emotional distress, and the fifth cause of action for premises liability:

In the third cause of action for negligence, plaintiffs allege in a conclusory manner that defendants owed a duty of care to safeguard and refrain from causing damage to B.B.’s physical and emotional well-being which defendants breached by: failing to protect B.B. from verbal attacks and mistreatment by school personnel; allowing emotionally unfit staff to have unfettered and unsupervised access to B.B.; failing to supervise, investigate, halt, correct, or redress abusive behavior by school personnel against B.B. including the termination of B.B.’s enrollment; by concealing and failing to disclose to Briscoe that school personnel were engaging in harassing or bullying behavior toward B.B.; creating, maintaining, and tolerating circumstances wherein B.B. was incapable of accessing help; and creating, maintaining, and tolerating circumstances wherein B.B. was terrorized and coerced into not asking for help or disclosing that B.B. was in need of help. (Compl., ¶¶299, 300, 303.)

In the fourth cause of action for negligent infliction of emotional distress, plaintiffs allege that defendants disregarded an unspecified risk that defendants’ negligence would cause harm to B.B. (Compl., ¶ 308.)

In the fifth cause of action for premises liability alleged against the Archdiocese, plaintiffs allege the Archdiocese owed a duty of care to B.B. in connection with the property, including a duty to ensure B.B.’s well-being and protection from emotional and physical injury.(Compl., ¶¶ 312-313.)

Defendants assert that their demurrer “attacks the duty element of” plaintiffs’ causes of action for negligence, negligent infliction of emotional distress, and premises liability. (Demurrer at p. 11, ll. 22-24.) Defendants contend that it was not foreseeable that asking B.B. how her iPad was damaged or terminating B.B. from enrollment would cause emotional distress. Defendants also assert that they owe no duty to Briscoe with respect to the cause of action for negligent infliction of emotional distress.

In their opposition to the demurrer, plaintiffs assert that they have sufficiently alleged causes of action for negligence, negligent infliction of emotional distress, and premises liability because Briscoe entrusted defendants with a duty of care to safeguard and protect B.B.’s physical and emotional well-being which defendants breached through the “summary ejection” of B.B. from the school and the “public shaming” spectacle through which it was carried out, knowing that emotional anguish would result. (Opp. at pp. 14, ll. 20-21 & 15, ll. 4-7.)

“The law of negligent infliction of emotional distress in California is typically analyzed … by reference to two”‘theories” of recovery: the “bystander” theory and the “direct victim” theory.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071 (Burgess) [also noting that negligent infliction of emotional distress is not an independent tort].) “Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered as a result of an injury to a close family member. Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim.” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204 (Gu).)

The court is unable to determine which, if any, factual allegations show that Briscoe was present at the scene of any particular event that plaintiffs allege produced injury to B.B., or that Briscoe suffered emotional distress beyond that which would be anticipated under the circumstances alleged in the complaint. (See Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1037-1038; Burgess, supra, 2 Cal.4th at p. 1073.) To the extent Briscoe alleges she was present during a particular injury-producing event, for the same reasons discussed above, plaintiffs have failed to connect any specific event to the cause of action for negligent infliction of emotional distress.

With respect to a direct victim theory, “ ‘there is no duty to avoid negligently causing emotional distress to another, ...’ [Citation.] Thus, ‘unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.’ [Citations.]” (Gu, supra, 132 Cal.App.4th at p. 204.)

The allegations of the complaint are legally and factually conclusory and do not show, with specific factual allegations that correlate to the theory of liability alleged in the fourth cause of action, that defendants assumed a duty to Briscoe or B.B. on which the emotional condition of B.B. was the object. To the extent the fourth cause of action is premised on defendants’ termination of B.B.’s enrollment at the school, these allegations are insufficient to state a claim for negligent infliction of emotional distress. Therefore, and for all reasons further discussed above, the court will sustain the demurrer of defendants to the fourth cause of action.

Regarding the third cause of action for negligence alleged in the complaint, “the well-known elements of [a] negligence cause of action [are] duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) While negligence may be pleaded in general terms, “there are limits to the generality with which the plaintiff is allowed to state a cause of action. The complaint must indicate the acts or omissions which the plaintiff claims were negligently performed.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 157); Quelimane, supra, 19 Cal.4th at p. 60). “In ruling on general demurrers the dispositive issue ordinarily is that of duty, i.e., the existence of duty of care owed by the alleged wrongdoer to the person injured or to a class of which he is a member. If the plaintiff does not and cannot show a duty owed directly to him, the action is subject to dismissal.” (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 612.)

The same analysis applies. To the extent plaintiffs allege specific negligent acts or circumstances apart from the termination of B.B.’s enrollment with the school, these acts or circumstances are not connected to the cause of action for negligence. In addition, the termination of B.B.’s enrollment at the school alone is not sufficient to allege a breach of a tort duty owed to either Briscoe or B.B. by defendants. Further, plaintiffs’ allegations are conclusory and do not factually demonstrate the existence of a duty with respect to the termination of B.B.’s enrollment from the school. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 838 [the existence of a duty of care is essential to an action for negligence].) To the extent plaintiffs seek to assert a negligence theory of liability on a different factual basis, that basis is unclear for the same reasons further addressed above. Therefore, the court will sustain the demurrer to the fourth cause of action for negligence alleged in the complaint.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) A claim for premises liability is based on the concept that “that possession [of land] includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the management of the property….” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386.)

With respect to the fifth cause of action for premises liability, the same analysis applies. The allegations of the complaint are conclusory and insufficient to plead breach of a duty of care in connection with the termination of B.B.’s enrollment at the school. To the extent the fifth cause of action is premised on a different factual basis, that basis is also unclear. Therefore, and for the same or similar reasons further discussed above, the court will sustain the demurrer to the fifth cause of action alleged in the complaint.

Leave to amend:

It is plaintiffs’ burden to show a reasonable possibility that the defects addressed herein can be cured by amendment to the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In their opposition to the demurrer, plaintiffs request that the court grant leave to amend the complaint to the extent the court sustains the demurrer as to any cause of action. However, plaintiffs fail to offer any argument demonstrating in what manner the complaint may be amended to cure the deficiencies discussed herein.

Though plaintiffs have failed to show that the manner in which the defects discussed above can be cured, the complaint does not necessarily show on its face that it is incapable of amendment with respect to the second, third, and fifth causes of action alleged therein. However, based on the facts as presently alleged in the complaint, it does not appear that the complaint can be truthfully amended to state a cause of action for negligent infliction of emotional distress. Notwithstanding that plaintiffs have not met their burden to demonstrate that the defects can be cured by amendment, as this is plaintiffs’ original complaint, the court will grant plaintiffs leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) Plaintiffs may amend the second, third, fourth, and fifth causes of action only as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

(3) Defendants’ Motion To Strike

Defendants move for an order striking plaintiffs’ claims for punitive damages on the grounds that the Archdiocese is a religious corporation. Defendants also contend that there are insufficient facts pleaded in the complaint to support a claim for punitive damages against defendants.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Procedural deficiencies:

There exist procedural problems with the motion to strike. A notice of a motion “must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”].)

“The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Therefore, “[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [also stating that a trial court is not required to consider grounds for relief not raised or sought by the moving party].)

In the memorandum supporting the motion to strike, defendants identify the specific material that defendants contend should be stricken from the complaint, with citations to the location in which the specific material appears. However, this information is not stated in the notice of the motion to strike, which generally references nonspecific claims for punitive damages alleged in the complaint. For this reason, the notice of the motion to strike fails to state the specific order being sought by defendants and is procedurally deficient.

Timeliness of the motion to strike:

In their opposition to the motion to strike, plaintiffs offer the same arguments further discussed above regarding the purported failure of defendants to meet and confer with plaintiffs in good faith prior to filing the declaration of their counsel on November 27, 2023. The same analysis applies. The court declines to deny the motion to strike on this basis.

Plaintiffs’ claim for punitive damages against the Archdiocese:

Notwithstanding the procedural problems further discussed above, defendants contend that under Code of Civil Procedure section 425.14, plaintiffs are barred from including a claim for punitive damages against the Archdiocese because the Archdiocese is a religious corporation and the court has not entered an order allowing the filing of a pleading that includes a claim for punitive damages. For this reason, defendants argue, allegations asserting claims for punitive damages should be stricken from the complaint.

To support their argument, defendants request that the court take judicial notice of the Articles of Incorporation (the Articles) of the Archdiocese. (RFJN, pp. 1-2 & Exh. A.) The Articles are relevant to the issues to be decided in the motion to strike and demonstrate an official act of the executive department of the State of California. Therefore, the court will grant defendants’ request and take judicial notice of the Articles. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483-1484.)

Under Code of Civil Procedure section 425.14, “[n]o claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code.” (Code Civ. Proc., § 425.14.)

The Articles demonstrate that the Archdiocese is a religious corporation. (See Grannis Decl., Exh. A.) In their opposition, plaintiffs do not effectively dispute this fact, and request leave to amend the complaint to “include a claim for exemplary damages with respect to [the Archdiocese].” (Opp. at p. 14, ll. 6-8.) The court interprets plaintiffs’ request as a concession that the motion to strike claims for punitive damages against the Archdiocese has merit.

Plaintiffs request leave to amend the complaint. Code of Civil Procedure section 425.14 requires plaintiffs to “demonstrate the existence of sufficient evidence to establish a prima facie case for punitive damages, having in mind the higher clear and convincing standard of proof.” (Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1723.) To meet this burden, plaintiffs must “provide ‘a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted is credited.’ [Citation.]” (Ibid.) The court is not required to weigh facts to determine whether the required prima facie showing is made, but must render a decision which is “substantially the same as in the case of a summary judgment motion.” (Id. at pp. 1723-1724.) If the court concludes that a prima facie case for punitive damages exists, “it must permit the proposed amended pleading to be filed.” (Id. at p. 1723.)

For all reasons discussed above, the court will grant the motion with respect to the claims for punitive damages asserted against the Archdiocese, without leave to amend and without prejudice. Nothing in the court’s ruling herein shall be construed to prevent plaintiffs from filing a procedurally and substantively appropriate motion for leave to amend under Code of Civil Procedure 425.14.

Plaintiffs’ claim for punitive damages against Simolon:

Plaintiffs further contend that because they have named Simolon is an individual capacity, the punitive damages claimed against Simolon are not barred under Code of Civil Procedure section 425.14.

To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

Plaintiffs contend that the allegations of the complaint establish that Simolon: concealed and withheld information material to the contract and manipulated communications among the parties; obstructed the record of a continued conversation that took place on September 2, 2021; compelled B.B. to execute an agreement that Simolon misrepresented as enforceable; forced B.B. to accept possession and an assignment of an iPad; effectively prevented B.B. an opportunity to inspect the iPad at issue including its pre-distribution condition; concealed preexisting damage to the iPad; distributed to B.B. an iPad that Simolon represented was “new” but which had been previously opened, repackaged, or damaged by school staff or volunteers; broke and confiscated the iPad and subjected B.B. to interrogation in an attempt to squeeze out a confession; prevented B.B. from completing homework; called Briscoe for the purpose of preventing written evidence of the conversation despite Briscoe’s request that the conversation be continued by email; represented B.B. as enrolled after B.B. was terminated from enrollment; deleted B.B.’s school accounts and work. (See Opp. Motion To Strike at pp. 6-9.)

Though plaintiffs assert in a conclusory manner that the complaint alleges facts demonstrating the matters described above, the court has reviewed the portions of the complaint cited in plaintiffs’ opposition to the motion to strike and finds that the allegations cited by plaintiffs do not necessarily establish these matters as plaintiffs suggest.

Giving the complaint a liberal and reasonable interpretation, and notwithstanding the manner in which plaintiffs characterize the facts alleged in the complaint, the allegations do not state facts sufficient to support an allegation that Simolon intentionally broke the screen of the subject iPad, which, according to the allegations of the complaint, cracked when B.B.’s teacher tried to remove the device from its case. (See Compl., ¶ 163(a).) These allegations do not establish that Simolon intentionally broke the iPad and thereafter falsely accused B.B. as plaintiffs appear to suggest.

By way of further example, though plaintiffs contend that the facts alleged in the complaint establish that Simolon subjected B.B. to interrogation to attempt to effectively secure a false confession, the allegations of the complaint establish, at most, that B.B’s teacher did not believe B.B.’s explanation as to the manner in which the iPad broke and determined that consequences would be warranted. (See Compl., ¶ 163(c)-(d).) Even if the teacher’s belief was erroneous, these allegations are insufficient to demonstrate malice, fraud, or oppression demonstrating an entitlement to punitive damages in connection with these events, notwithstanding the manner in which plaintiffs conclusively characterize the teacher’s behavior. Furthermore, the facts expressly alleged in the complaint do not necessarily demonstrate as plaintiffs suggest that Simolon secured B.B.’s signature on any agreement relating to the iPad, nor are the facts sufficient to demonstrate that Simolon, in a malicious, oppressive, or fraudulent manner, forced B.B. to accept possession of the iPad. (Id. at ¶¶ 137, 149.)

In addition, and for reasons further discussed above, the remaining allegations of the complaint are, at best, general and conclusory and do not by themselves support a claim for punitive damages. The court is not required to accept plaintiffs’ conclusions that Simolon’s conduct as expressly alleged in the complaint constitutes malice or oppression. Further, plaintiffs do not plead facts demonstrating any fraud by Simolon with particularity sufficient to permit the court to determine whether there exists a foundation for a punitive damages claim against Simolon. Therefore, the court will grant the motion to strike as to Simolon, with leave to amend.

The court notes that defendants have requested that the court strike allegations from paragraphs 289, 297, 306, and 320 which are essential to the causes of action for intentional infliction of emotional distress and negligence alleged in the complaint notwithstanding that the court will sustain defendants’ demurrer these claims. The court will deny the motion to the extent it requests that the court strike these essential terms. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)