B B et al vs Tracie Simolon et al

Case Number

23CV03752

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike; Motion for Leave

Tentative Ruling

For the reasons set forth below:

1. Plaintiffs’ motion for leave to file a second amended complaint is denied, without prejudice.

2. Defendants’ demurrer to plaintiffs first amended complaint is sustained in part and overruled in part as follows:

            a. The demurrer to the second cause of action for intentional infliction of emotional distress is sustained without leave to amend.

            b. The demurrer to the third cause of action for negligence is overruled as to plaintiff B.B., and sustained with leave to amend as to plaintiff Julia E. Briscoe.

            c. The demurrer to the fourth cause of action for premises liability is sustained without leave to amend.

3. Plaintiffs shall file and serve their second amended complaint, in accordance with this courts ruling, no later than August 2, 2024.

4. Defendants’ motion to strike portions of plaintiffs’ first amended complaint is taken off-calendar as moot.

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 was set forth in 320 paragraphs. The complaint did not connect specific material events, incidents, or facts to each cause of action asserted by plaintiffs. The manner in which plaintiffs set forth the allegations of the complaint 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. Simolon is the principal of the school.

On November 4, 2019, Briscoe contacted the school for enrollment information and joined a tour led by Simolon at the school’s campus. On November 12, 2019, Briscoe submitted to defendants an application for B.B.’s admission to the school (the application).

On December 5, 2019, Simolon agreed by phone call to Briscoe to admit B.B. into the school’s program. On December 7, 2019, Simolon’s administrative assistant Katherine Madlem confirmed B.B.’s enrollment at the school.

The terms of the contract were 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. (Original Compl., ¶ 41(a)-(f).)

On December 9, 2019, B.B. began attending fourth grade at the school. 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.

Additional allegations appeared in groupings of paragraphs under descriptive titles which purported 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.

In the paragraphs titled “September 2, 2021” of the original complaint, plaintiffs alleged 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. (Original Compl., ¶¶ 185; 187; 190; 191(a), 193.)

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

On March 15, 2024, the court sustained defendants’ demurrer in part with leave to amend as to the second, third, fourth, and fifth causes of action. The demurrer was overruled as to the first cause of action. The motion to strike plaintiffs’ claim for punitive damages was granted without leave to amend but without prejudice as to the Archdiocese, and with leave to amend as to Simolon.

Plaintiffs filed their first amended complaint (FAC) on March 25, 2024, asserting causes of action for: (1) Breach of Contract as against both defendants; (2) Intentional Infliction of Emotional Distress as against both defendants; (3) Negligence as against both defendants; and (4) Premises Liability as against the Archdiocese. The FAC is comprised of 190 paragraphs. While reorganized, the underlying facts alleged are essentially identical to the allegations of the original complaint.

Defendants now demur to the second, third, and fourth causes of action of the FAC. Defendants also seek to strike several paragraphs of the FAC on the grounds that there are insufficient facts pled to support a claim for punitive damages, and that the allegations are conclusory and without factual foundation and fail to demonstrate the type of ill will or evil motives necessary to support a claim for punitive damages.

Plaintiffs oppose the demurrer and motion to strike. Plaintiffs have also filed a motion for leave to file a second amended complaint to add the application as an exhibit and to request exemplary damages from the Archdiocese. Plaintiffs’ motion will be addressed first.

Defendants oppose plaintiffs’ motion.

Analysis:

A complaint shall contain: “A statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10; italics added.) Here, although not submitted in its entirety, plaintiffs’ proposed SAC, like the original complaint and the FAC, does not use ordinary and concise language. This makes understanding the allegations difficult and cumbersome. Once ferreted out, the allegations appear to be straight forward and could have been set forth much more efficiently and clearly.

            Plaintiffs’ Motion to File Second Amended Complaint

Pursuant to Code of Civil procedure section 473(a)(1), the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading. The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

“Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [Citation.]” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

“(a) Contents of motion

A motion to amend a pleading before trial must:

            “(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

            “(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

            “(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

“(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

            “(1) The effect of the amendment;

            “(2) Why the amendment is necessary and proper;

            “(3) When the facts giving rise to the amended allegations were discovered; and

            “(4) The reasons why the request for amendment was not made earlier.

“(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

“(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.” (Cal. Rules of Court, rule 3.1324.)

Plaintiffs’ proposed amendments are set forth on pages two and three of their motion, as well as the attachments. The amendments seek to including the application as an exhibit and include a prayer for exemplary, or punitive, damages against the Archdiocese.

Pursuant to Code of Civil Procedure section 1005, plaintiffs were required to file and serve their motion at least 16 court days before the hearing. Because the motion was served by electronic service, the 16 court days is extended by 2 additional days. Plaintiffs filed their motion on June 26, 2024, with a hearing date of July 19, 2024. There is no proof of service attached to the motion, nor have plaintiffs filed a proof of service subsequently. Although there is no proof of service for the motion, defendants acknowledge that they were served electronically on June 26, 2024, making the notice insufficient.

Plaintiffs acknowledge in their reply brief that they gave insufficient notice but ask the court to consider the motion even though untimely filed and served. “ ‘[A] trial court has broad discretion to accept or reject late-filed papers.’ ” [Citation.]” (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210.)

As defendants have filed an opposition, and the motion will be denied on substantive grounds, the court will exercise its discretion and consider the merits of the motion. Plaintiffs are again, as they were by the ruling of March 15, 2024, reminded of the obligation to comply with court rules. Also, proofs of service are required to be filed with the court. (see, Cal. Rules of Court, rule 1.21.)

Plaintiffs argument in support of the motion, as well as the reply to the motion, fails to substantively address Code of Civil Procedure section 425.14. The tentative ruling, of March 15, 2024, specifically addressed the applicability of that section when a plaintiff is seeking punitive damages against a religious corporation.

As previously explained: 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.)

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.)

Here, plaintiffs have failed to submit any admissible evidence, of anything, in support of their motion. Even the allegations, taken as true, fail to support an award of punitive damages.

Plaintiffs’ motion to file their SAC will be denied without prejudice. Should discovery provide admissible evidence that satisfies Code of Civil Procedure sections 425.14 and Civil Code section 3294, plaintiffs may seek leave to include a prayer for punitive damages as to the Archdiocese. Should plaintiffs do so, they are instructed to include a complete copy of the proposed amended complaint, rather than just portions of the pleading.

            Demurrer to First Amended Complaint

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 both defendants. (See FAC., p. 48, l. 5.) As they did in the demurrer to the original complaint, 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 argue that there “was a capricious, unauthorized enrollment termination, a denial of Plaintiffs’ right to the due process for that termination, and a traumatizing execution by Defendant Simolon of that termination.” (Opposition, p. 7, ll. 21-23.) Plaintiffs primarily argue standards for sustaining or overruling a demurrer, rules of evidence, and law regarding duty. Plaintiffs then argue: “Defendants, who held themselves out as educators, knew or had reason to know that an involuntary enrollment termination is one of the most isolating, stigmatic, frightening, destabilizing, and emotionally traumatic consequences that can be imposed on a child, which is why it is reserved for the most serious offenses. Defendant Simolon knew and had reason to know that Plaintiff B.B. was uniquely vulnerable by reason of her age and her father’s death, that for the majority (January 2020 through January 2021) of her tenure at MCS Plaintiff B.B. had been undergoing therapy to try to learn how to navigate that trauma, and that by reason of Plaintiff B.B.’s vulnerability the damaging effects of the wrongful termination would be amplified; in fact, Defendant Simolon did not know that Plaintiff B.B. had finished her therapy. With such tortious intent, Defendant Simolon phoned in the enrollment termination after spending all of three minutes and twenty-nine seconds thinking about it and, controverting any claim that such conduct was less than willful, continued with follow-up damage.” (Opposition, p. 14, l. 19 - p. 15, l. p. 6.)

“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 was the case with the original complaint, plaintiffs FAC asserts conclusory allegations that Simolon’s conduct constitutes intentional infliction of emotional distress because she “acted with fraud, malice, or oppression towards Plaintiffs and each of them, and displayed an intention and willingness to injure Plaintiffs or a conscious disregard for Plaintiffs’ and each of their rights and safety, for which Defendant Simolon should be punished and deterred from similar conduct in the future, thus entitling Plaintiffs and each of them to recover exemplary damages as well as action damages, which were proximately and foreseeably caused by Defendant Simolon’s conduct.” (FAC, ¶ 169.) The few factual allegations identified in the second cause of action and further discussed both above and below are not sufficient to plead the element of outrageous conduct, nor do plaintiffs identify any other particular events or conduct to support this element of the claim.

Other than rearranging the paragraphs, and adding in additional conclusory allegations, the FAC is substantially the same as the original complaint. As was true with the original complaint, the allegations of the FAC, along with the attachments, 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.

The allegations contained in the FAC are 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”].)

Regarding plaintiffs’ allegations that B.B. was particularly vulnerable and susceptible to emotional distress:  “ ‘ “[M]ajor outrage is still essential to the tort . . . .” ’ [Citations.].” (Cochran, supra, 65 Cal.App.4th at p. 496.) That “major outrage” is not present in the allegations of the FAC. Plaintiffs’ use of incendiary terminology in describing the events that took place do not change the facts or make any of the alleged actions more egregious.

The issue of bystander emotional distress was thoroughly addressed in the ruling on the demurrer to the original complaint, and that analysis is applicable to the FAC.

For all reasons discussed above, plaintiffs have failed to allege facts sufficient to state a claim against Simolon for intentional infliction of emotional distress.

Plaintiff has again failed to demonstrate how the FAC would be capable of amendment to state a valid cause of action for intentional infliction of emotional distress. 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.)

The demurrer to the second cause of action for intentional infliction of emotional distress will be sustained without leave to amend.

Demurrer to the third cause of action for negligence

“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

Defendants demur to the third cause of action for negligence based on lack of duty.

“School principals and other supervisory employees, to the extent their duties include overseeing the educational environment and the performance of teachers and counselors, also have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871.)

As it pertains to negligence, the FAC alleges:

Simolon implemented B.B.’s departure from school, before the end of the school day, in front of her friends on the playground without giving notice to B.B., causing public humiliation. (FAC, ¶ 110) Simolon and school staff read B.B.’s confidential journal. (FAC, ¶¶ 113, 114.) Simolon deleted B.B.’s online school accounts and schoolwork, “which represented hundreds of hours of work.” (FAC, ¶ 118.)

“Simolon has circulated and permitted unauthorized disclosure of information from Plaintiff B.B.’s student file to individuals with no right of access and has circulated, encouraged, and condoned misrepresentations of information purporting to be from Plaintiff B.B.’s student file, for purposes including to conceal Defendant Simolon’s breach and manipulate any public narrative arising from events described herein, and has emboldened MCS students to circulate such private or misrepresented information and harass Plaintiff B.B. through calls, texts, social media, and in person.” (FAC, ¶ 127.)

Plaintiffs have alleged all of the necessary elements of basic negligence as to B.B. and the court finds the allegations sufficient to determine that defendants did owe a duty to B.B. The court notes: A finding of duty is not a finding of liability. The court is not permitted to weigh the evidence when ruling on a demurrer.

However, there are insufficient facts alleged to show any duty owed to Briscoe based on the FAC. “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.)

As such, the demurrer to the third cause of action for negligence will be overruled as to B.B. and will be sustained as to Briscoe. Although unlikely, there is a possibility that the cause of action can be amended to state a cause of action as to Briscoe. Leave to amend will be granted.

“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so . . .” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Plaintiffs will be ordered to not add any new causes of action to the second amended complaint without following the proper legal procedure.

Demurrer to the fourth cause of action for premises liability

“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. [Citations.] Premises liability “ ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’ ”; accordingly, “ ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ ” [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Premises liability is predicated on a defendant owning or maintaining property, defendant’s negligent use or maintenance of the property, plaintiff being harmed, and the defendant’s negligence being a substantial factor in causing the harm. (See CACI 1000 and 1001.)

“Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema (1999) 72 Cal.App.4th 1403, 1406, fn. 1.)

As alleged in the FAC, there is no indication that any property owned, controlled, or maintained by defendants harmed either plaintiff, or that criminal activity harmed either plaintiff. The allegations are directed at conduct of employees of the Archdiocese rather than the condition of the property itself. A cause of action for premises liability simply does not fit with the facts alleged in the FAC.

Because it is clear, from the FAC as well as the original complaint, that this is not a proper case for a premises liability cause of action, the demurrer to the fourth cause of action for premises liability will be sustained without leave to amend.

            Defendants’ Motion To Strike

As plaintiffs are being given leave to file a SAC, the motion to strike will be taken off-calendar as moot. The court will, however, acknowledge that the allegations contained in the FAC do not support a claim for punitive damages based on the same analysis presented in the court’s prior ruling from March 15, 2024, and the above analysis. Any amended complaint should either remove the prayer for punitive damages or contain sufficient, factually detailed, allegations that would support a request for punitive damages as well as a basis for recovery of attorneys’ fees.