Erin O'Connor vs Board of Trustees of the SBCC Dist R et al

Case Number

24CV03489

Case Type

Hearing Date / Time

Fri, 02/28/2025 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

For the reasons set forth herein:

1. Defendants’ demurrer to plaintiff’s complaint is sustained in part and overruled in part as follows:

            a. Defendants’ general demurrers to the entire complaint are overruled.

            b. Defendants’ special demurrer to the second cause of action for fraudulent inducement is overruled.

            c. Defendants’ special demurrer to the third cause of action for tortious interference with contract is sustained without leave to amend.

            d. Defendants’ special demurrer to the fourth cause of action for intentional infliction of emotional distress is sustained with leave to amend.

            e. Defendants’ special demurrer to the fifth cause of action for negligent infliction of emotional distress is sustained with leave to amend.

            f. Defendants’ special demurrer to the sixth cause of action for invasion of privacy is overruled.

2. Defendants motion to strike portions of plaintiff’s complaint is denied, without prejudice, as moot.

3. Plaintiff shall file and serve his first amended complaint no later than March 21, 2025.

Background:

This action commenced on June 21, 2024, by the filing of the complaint by plaintiff Erin O’Connor (“plaintiff”) against defendants Board of Trustees of the Santa Barbara Community College District (“Board”), Santa Barbara Community College District (“District”), Maria L. Villagomez, Linda Dozer, Deneatrice Lewis, Jens-Uwe Kuhn, and Kindred Murillo (collectively “defendants”). The complaint sets forth causes of action for: (1) Breach of contract; (2) Fraudulent inducement; (3) Tortious interference; (4) Intentional infliction of emotional distress; (5) Negligent infliction of emotional distress; and (6) Invasion of privacy.

As alleged in the complaint:

Plaintiff began his employment with District in 1989 as an adjunct professor. (Compl., ¶ 7.) Plaintiff served in this role through 1998. (Ibid.) In 2005, plaintiff became a full-time faculty member and served as a Professor of Astronomy in the Earth and Planetary Sciences Department, giving astronomy lectures and labs, operating the planetarium and observatory, and teaching geology field courses to the Eastern Sierra and Death Valley. (Ibid.) Plaintiff’s evaluations over the past 20 years have been positive. (Ibid.)

Plaintiff’s claims are based on a settlement agreement (“agreement”) entered into by plaintiff and District on August 31, 2020, as the result of mediation before JAMS. (Compl., ¶¶ 1, 18.) Pursuant to the agreement, District agreed to seal and maintain the confidentiality of the file documenting its investigation related to the dispute. (Compl, ¶ 21.) Paragraph 9 of the agreement provided: “Any documents related to the District’s investigation, including any draft or final investigation report, any findings, any witness statements, the July 22, 2020 determination letter, and this Agreement, will be placed in a separate sealed investigation file[,] [which] will only be disclosed [in] accordance with a court order, valid subpoena, directive from state or federal agencies, or as otherwise required by law.” (Compl., ¶ 22.)

District also agreed not to prosecute plaintiff based on the matters that led to the agreement. (Compl., ¶ 23.) Paragraph 11 of the agreement provided: “The parties agree that they shall not, at any time hereafter, commence, maintain or prosecute any action, suit, proceeding, investigation, complaint, claim, grievance or charge with any court, administrative agency, arbitrator, or any other body or person . . . based in whole or in part upon, or arising out of or in any way connected with the District’s investigation, the underlying allegations within, or any of the matters referred to in this Agreement.” (Compl., ¶ 24.)

The agreement also included a non-retaliation clause and a non-disparagement clause. (Compl., ¶ 25.)

On January 24, 2023, “Individual Defendants directed District staff and agents to initiate an investigation against Plaintiff for alleged misconduct arising out of and related to those matters covered by the Agreement. Specifically, former Superintendent Kindred Murillo, Director Linda Dozer, former Vice President Deneatrice Lewis, Vice President Maria Villagomez, and Dean Jens-Uwe Kuhn, filed or solicited complaints against Plaintiff related to and arising out of matters covered by the Agreement, with Dr. Murillo, Ms. Lewis, and Ms. Dozer then directing and ordering agents and staff to conduct an investigation into those matters.” (Compl., ¶ 26.)

On September 6, 2023, Murillo recommended Plaintiff’s dismissal to the District’s Board of Trustees despite knowing the recommendation violated the agreement. (Compl., ¶ 27.) The District’s Board of Trustees approved plaintiff’s dismissal on September 14, 2023. (Ibid.)

The dismissal charges disclosed the confidential investigation documents that District was required to have sealed pursuant to the agreement. (Compl., ¶ 28.) Specifically, the dismissal charges attached the final investigation report dated April 13, 2020, and the July 22, 2020, determination letter. (Ibid.) The charges themselves also contained a nine-paragraph section entitled, “August 2020 Settlement Agreement,” in which District disclosed a “multitude of sensationalized details” related to the investigation into the conduct that led to the agreement. (Ibid.)

The charges were based almost exclusively on the matters arising out of and related to the agreement, in violation of the mutual promise to not prosecute. (Compl., ¶ 29.)

The dismissal charges were brought in retaliation for plaintiff’s participation in the events leading up to the agreement and because of plaintiff’s request to teach field courses at the District. (Compl., ¶ 30.) By distributing the dismissal charges, defendants disparaged plaintiff, in violation of the agreement, by accusing him of immorality, dishonesty, and of scheming against his colleagues, “all with respect to matters related to and arising out of the Agreement.” (Ibid.)

Defendants have now filed a demurrer and a motion to strike portions of plaintiff’s complaint.

The demurrer and the motion to strike are opposed.

Analysis:

As an initial observation: Defendants appear to misunderstand the basis for plaintiff’s claims throughout the demurrer, as well as the reply. Defendants repeatedly make claims that plaintiff’s action is a challenge to his termination and the termination procedures. It is not. The complaint is based on breach of the settlement agreement.

            1. Demurrer

Defendants demur to the complaint on several grounds:

(1) All claims are barred under Civil Code Section 47, subdivision (b); (2) All defendants are immunized from liability pursuant to Government Code sections 815.2, 821.6 and 820.2; (3) Plaintiff’s claims are subject to administrative mandamus, not a civil lawsuit; and (4) Causes of Action 2 through 6 all fail to state facts sufficient to constitute causes of action.

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

“What is important is that the complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)

                        a.         Official Proceedings - General Demurrer

Defendants argue that all of plaintiff’s claims are all barred by Civil Code section 47, subdivision (b), which includes as a “privileged publication or broadcast,” one made:

“In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . ..”

There are some statutory exceptions, but none of them are applicable here.

“ ‘The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘ “publication or broadcast” ’ made as part of a ‘ “judicial proceeding” ’ is privileged. This privilege is absolute in nature, applying ‘ “to all publications, irrespective of their maliciousness.” ’ [Citation.] ‘ “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’ [Citation.] The privilege ‘ “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” ’ [Citation.]” (Olsen v. Harbison (2010) 191 Cal.App.4th 325, 333.)

“ ‘The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]” ’ [Citation.] In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation.’ ” [Citation.]” (Ibid.)

“The breadth of the litigation privilege cannot be understated. It immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution. [Citation.]” (Ibid.)

Plaintiff argues that defendants have waived the protections of Civil Code section 47, subdivision (b) by signing the settlement agreement.

Importantly, defendants bring the demurrer on these grounds as to the entirety of the complaint rather than as to any specific cause of action. “The general well settled rule is that if any count of a multicount complaint states a cause of action, it is error to sustain a demurrer to the complaint as a whole.” (Western Title Ins. & Guaranty Co. v. Bartolacelli (1954) 124 Cal.App.2d 690, 694.)

Defendants cite two cases in support of their argument, which they claim are “directly on point” (Reply, p. 2, ll. 25-27): Laker v. Board of Trustees of California (2019) 32 Cal.App.5th 745 (Laker), and Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426 (Kemmerer).

Despite defendants’ arguments to the contrary, neither Laker nor Kemmerer are on point, as applied to defendants’ litigation privilege argument.

Laker involved a lawsuit “for defamation and retaliation arising from a series of internal investigations conducted by the University.” (Laker, at pp. 753-754.) Here, while the complaint does relate to actions taken during its later investigation of plaintiff, the underlying basis for the complaint is for breach of the settlement agreement from the earlier proceedings.

Kemmerer, likewise, involves a completely different set of allegations than the breach of a settlement agreement. The court there was also, as in Laker, analyzing the litigation privilege in the context of “oral statements and publications . . . reasonably related to the . . . proceedings and investigation.” (Kemmerer, at p. 1441.)

The single authority relied upon by plaintiff, in his opposition to the litigation privilege argument, is Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1494 (Wentland): “Just as one who validly contracts not to speak waives the protection of the anti-SLAPP statute . . . so too has he waived the protection of the litigation privilege.” (Opp., p. 3, ll. 14-20.) Plaintiff argues: “Here, the Complaint alleges that Defendants validly contracted not to prosecute him, not to investigate him, not to retaliate against him, and to seal his investigative file . . .. By signing the Settlement Agreement, Defendants waived the litigation privilege, and they cannot call upon it for protection from the instant lawsuit.” (Id. at p. 3, ll. 21-25.)

There can be no legitimate dispute that the action, and each cause of action contained in the complaint, are based on allegations that defendants committed “flagrant violations of a Settlement Agreement that the District entered with Plaintiff Erin O’Connor on or around August 31, 2020, . . . and resulting harm.” (Compl., ¶ 1.)

In Wentland, as acknowledged by defendants, the contract at issue was “based on a breach of a separate promise independent of the litigation.” (Wentland, supra, at p. 1494.) The same is true of the present case. The complaint is based on allegations that defendants breached their promises following the initial administrative proceedings.

Finally, it would simply lead to absurd results to apply Civil Code section 47, subdivision (b) to the present situation. If the rule were to be interpreted as defendants argue it should be, it would mean that it would be impossible for a plaintiff to bring an action based on any other party breaching a settlement agreement in any legal proceeding or other official proceeding.

The demurrer on these grounds will be overruled.

            b.         Immunity - General Demurrer

Defendants’ next argument is that “both the individual employees and the District and Board are immune from liability for the claims brought by Plaintiff pursuant to both [] Government Code [, sections] 821.6 and 815.2 respectively.” (Demurrer, p. 13, ll. 8-11.) Defendants further argue that Government Code, section 820.2, shields defendants from liability based on discretionary immunity.

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.)

“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code, § 821.6.)

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code, § 815.2.)

Defendants argue:

“Here, each of Plaintiff’s claims are based on alleged wrongdoing on the part of the Defendants for the initiation of the 2023 workplace investigation and the initiation and prosecution of dismissal charges. As College administrators . . . the individual Defendants’ initiation of proceedings such as the 2023 investigation and the dismissal are conduct and decisions made in the scope of the individual Defendants’ employment.” (Demurrer, p. 13, ll. 20-28.)

By way of their argument, defendants again misconstrue the basis for the complaint. The complaint is not simply based on alleged actions of any of the defendants for initiation of the investigation and prosecution of the dismissal charges. It is based on alleged breaches of the settlement agreement.

“Nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or public employee.” (Gov. Code, § 814.)

“ ‘The Legislative Committee Comment Senate on this section was: ‘ “The doctrine of sovereign immunity has not protected public entities in California from liability arising out of contract. This section makes clear that this statute has no effect on the contractual liabilities of public entities or public employees.” ’ ” [Citation.]  Thus, “ ‘ “[w]hen the state makes a contract . . . it is liable for a breach of its agreement . . . and the doctrine of governmental immunity does not apply. [Citations.]” ’ ” [Citation.] “ ‘Whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded. If based on breach of promise it is contractual; if based on breach of a noncontractual duty it is tortious. [Citation.] If unclear the action will be considered based on contract rather than tort. [Citation.]’ ” [Citation.]” (Roe v. State of California (2001) 94 Cal.App.4th 64, 69.)

The demurrer based on the immunity argument will be overruled.

            c.         Administrative Mandamus - General Demurrer

Defendants’ argument that plaintiff’s claims must be brought via administrative mandamus, also fails.

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” (Code Civ. Proc., § 1086.)

“Mandamus is not an action for damages, because it is an equitable, not a legal remedy. [Citation.] An action in ordinary mandamus is proper where . . . the claim is that an agency has failed to act as required by law. [Citation.]” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 705.)

“As a general proposition, mandamus is not an appropriate remedy for enforcing a contractual obligation against a public entity for at least two reasons.  The first is that contracts are ordinarily enforceable by civil actions, and the writ of mandamus is not available unless the remedy by civil action is inadequate. (Code Civ. Proc. § 1086; McPherson v. City of Los Angeles, 8 Cal.2d 748, 68 P.2d 707.) The other is that the duty which the writ of mandamus enforces is not the contractual duty of the entity, but the official duty of the respondent officer or board.” (Wenzler v. Municipal Court of Pasadena Judicial Dist. (1965) 235 Cal.App.2d 128, 132.)

Defendants cite Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, in support of their argument. The plaintiff in that case, was challenging the revocation of his tenure and termination of his employment as a tenured professor. The court determined that, “despite the tort labels, the substance of these claims is strictly confined to the employment relationship and the University’s dismissal proceedings: precisely the type of claims that administrative mandamus is designed to address.” (Id., at p. 980.)

Contrary to defendants’ arguments, plaintiff is not challenging the decision of the board, or any current dismissal proceedings, by way of this action. (Demurrer, p. 15, ll. 13-15.) Nor is he seeking an order compelling performance of any act by defendants. He is alleging that defendants breached a settlement agreement and is seeking solely monetary remedies. Plaintiff would not have been able to seek these remedies by way of mandamus.

The demurrer based on defendants’ administrative mandamus argument will be overruled.

            d.         Second Cause of Action for Fraudulent Inducement - Special Demurrer

Defendants argue that plaintiff has failed to plead sufficient facts to support a cause of action for fraudulent inducement.

“’The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; citing 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778.)

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. . .. This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.” (Id. at 645; see, e.g., Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 21.)

“Less specificity should be required of fraud claims “ ‘when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,’ ” [citation]; “ ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. . . .’ ” [Citation.] (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

A review of the entirety of the complaint, including the factual allegations contained in paragraphs 17 through 31, and the allegations contained under the specific cause of action in paragraphs 37 through 42, illustrate that plaintiff has sufficiently pled the “how, when, where, to whom, and by what means the representations [intended to induce plaintiff] were tendered.” Any more specificity will likely be possessed by defendants and will be the subject of discovery.

The special demurrer to the second cause of action will be overruled.

            e.         Third Cause of Action for Tortious Interference with Contract - Special Demurrer

Defendants argue that: (1) Plaintiff cannot recover on this cause of action because defendants are the other parties to the contract, (2) Agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation’s contract, and (3) Plaintiff has failed to plead sufficient facts to constitute a cause of action.

The cause of action for tortious interference with contract is alleged as to the individual defendants, and alleges that the contract (the settlement agreement) was between plaintiff and the District.

Plaintiff alleges that the individual defendants knew of the agreement (Compl., ¶ 45), and that the individual defendants’ conduct caused the district to violate the agreement. (Compl., ¶ 46.)

“Tortious interference with contractual relations requires “ ‘(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’ ” [Citations.] It is generally not necessary that the defendant’s conduct be wrongful apart from the interference with the contract itself.” (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1141.)

“One contracting party owes no general tort duty to another not to interfere with performance of the contract; its duty is simply to perform the contract according to its terms. The tort duty not to interfere with the contract falls only on strangers -interlopers who have no legitimate interest in the scope or course of the contract’s performance.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514; italics added.)

Agents of a party are not “strangers” to the contract. (Caliber Paving Company, Inc. v. Rexford Industrial Realty and Management, Inc. (2020) 54 Cal.App.5th 175, 187.)

Despite plaintiff’s arguments, regarding the structure and decision-making process of community college district, the individual defendants are all agents of the District, and are not considered strangers to the contract. Plaintiff even alleges in the complaint that: “At all times relevant to this Complaint, Defendants were acting under color of law and in their official capacities as officials of the District.”

The demurrer to the third cause of action for tortious interference with contract will be sustained. As there is no reasonable probability that the cause of action can be amended to state a valid cause of action against any of the defendants, there will be no leave to amend.

            f.          Fourth Cause of Action for Intentional Infliction of Emotional Distress - Special Demurrer

The fourth cause of action is alleged against all defendants, including the Board and the District.

Defendants argue that workers’ compensation is the exclusive remedy for plaintiff’s intentional infliction of emotional distress (“IIED”), and that plaintiff has failed to plead sufficient facts to constitute a cause of action.

Defendants rely on Shoemaker v. Myers (1990) 52 Cal.3d 1 (Shoemaker), to support their argument that plaintiff’s IIED claim properly falls under the purview of workers’ compensation.

Shoemaker actually supports plaintiff’s position:

“[T]he [workers’ compensation] provisions are intended to effectuate and implement the fundamental “ ‘compensation bargain’ ” said to underlie the workers’ compensation scheme. Where the injury is a result of conduct, whether in the form of discharge or otherwise, not seen as reasonably coming within the compensation bargain, a separate civil action may lie.” (Id., at p. 20.)

“ ‘[W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code . . ..’ ” [Citation.] The focus is on whether the conduct complained of was a normal risk of the employment relationship. [Citation.] Tort recovery for intentional misconduct is permitted where “ ‘conduct of an employer [has] a ‘ “questionable” ’ relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment, or conduct where the employer . . . stepped out of [its] proper role[].’ ” [Citations.]” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 971-972.)

Again, the basis’s of plaintiff’s claims are not the actual termination proceedings. It is the alleged breach of the settlement agreement. The facts upon which plaintiff bases his IIED claim do not fall within the workers’ compensation scheme. As such, the demurrer based on this argument will be overruled.

As for the pleading of sufficient facts to constitute a cause of action:

“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.)

“The complaint must plead specific facts that establish severe emotional distress resulting from defendant’s conduct.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.)

Plaintiff alleges:

“Defendants’ conduct in issuing Dismissal Charges in violation of the Agreement’s non-prosecution clause . . ., and publishing sensationalized, detailed allegations from Plaintiff’s sealed personnel file that Plaintiff never had an opportunity to challenge, in violation of the Agreement, was outrageous and intended to cause, or with reckless disregard of the probability that it would cause, Plaintiff to suffer emotional distress.” (Compl., ¶ 49.) “As a direct and proximate result of Defendants’ conduct, Plaintiff suffered severe emotional distress and incurred significant medical expenses.” (Compl., ¶ 50.)

“ ‘There is no bright line standard for judging outrageous conduct and “ ‘ “. . . its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. . . .’ ” [Citation.]’ [Citations.] Thus, whether conduct is “ ‘outrageous’ ” is usually a question of fact. [Citations.]” (So v. Shin (2013) 212 Cal.App.4th 652, 671-672.)

“Whether such alleged behavior is sufficiently extreme as to constitute ‘outrageous’ behavior is properly determined by the fact finder after trial or possibly after discovery upon a motion for summary judgment.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1226.)

While the question of whether conduct is extreme or outrageous is usually a question of fact, inappropriately decided by way of demurrer, when considered in conjunction with the factual allegations contained in paragraphs 17 through 31, the allegations are severely lacking. Plaintiff only uses broad, conclusory, language. Plaintiff must plead specific facts as to all the elements. He has failed to do so. As such, the demurrer to the fourth cause of action will be sustained with leave to amend.

A final argument made by defendants is that in order for plaintiff to state the cause of action for IIED, he must base it on a specific statute because: “Except as otherwise provided by statute:” “A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).)

In opposition, plaintiff argues that the cause of action is brought under Government Code section 815.3 as an intentional tort. In reply, defendants do not address plaintiff’s argument.

It appears that Government Code section 815.3 does apply to plaintiff’s cause of action for IIED. However, should plaintiff amend his complaint and still allege IIED, he should include language indicating what specific statute the claim is brought under.

            g.         Fifth Cause of Action for Negligent Infliction of Emotional Distress - Special Demurrer

The fifth cause of action is alleged against all defendants, including the Board and the District.

As with the IIED claim, defendants argue that workers’ compensation is the exclusive remedy for plaintiff’s negligent infliction of emotional distress (“NIED”), and that plaintiff has failed to plead sufficient facts to constitute a cause of action.

The demurrer based on the workers’ compensation argument will be overruled for the same reasons it was overruled as to the IIED claim.

“A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply. [Citations.]” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377.)

“In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, . . ., the Supreme Court made it clear that to recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was “ ‘serious.’ ” [Citations.]” (Ibid.)

“Moreover, the court explained, “ ‘ “serious emotional distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” ’ [Citation.]’ ” [Citations.]” (Id., at pp. 1377-1378

“In our view, this articulation of “ ‘serious emotional distress’ ” is functionally the same as the articulation of “ ‘severe emotional distress.’ ” Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury.” (Ibid.)

The court disagrees with defendants’ argument that the complaint does not state sufficient facts to establish the element of duty and a causal relationship between the alleged breach and resulting harm. However, the court does find that plaintiff has failed to allege sufficient facts regarding any alleged severe emotional distress, or the specific facts that resulted in the emotional distress. As was the case with the IIED claim, the allegations are overly broad and conclusory.

The demurrer to the fifth cause of action will be sustained with leave to amend.

            h.         Sixth Cause of Action for Invasion of Privacy - Special Demurrer

“The elements of a common law invasion of privacy claim are intrusion into a private place, conversation, or matter, in a manner highly offensive to a reasonable person. [Citation.] In determining the existence of “ ‘offensiveness,’ ” one must consider: “ ‘(1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder’s motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded.’ ” [Citation.]” (Mezger v. Bick (2021) 66 Cal.App.5th 76, 86-87.)

“ ‘Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.’ ” [Citation.] The impact on the plaintiff’s privacy rights must be more than “ ‘slight or trivial.’ ” [Citation.]” (Ibid.)

Plaintiff’s allegations include: “Defendants intentionally intruded into that privacy by attaching to their publicly filed Dismissal Charges the precise documents protected by the Agreement’s Paragraph 9, as well as disclosing a multitude of sensationalized details related to its investigation into the conduct that led to the Agreement, contrary to Paragraph 9.” (Compl., ¶ 56.)

At the pleading stage, this allegation, in conjunction with the factual allegations, are sufficient to overcome demurrer. The demurrer to the sixth cause of action will be overruled.

            Motion to Strike

As the demurrer is being partially granted with leave to amend, the motion to strike the prayer for punitive damages will be denied, without prejudice, as moot.