John Roe R M et al vs Santa Barbara Unified School District et al

Case Number

24CV06479

Case Type

Hearing Date / Time

Mon, 06/16/2025 - 10:00

Nature of Proceedings

CMC; Demurrer; Motion: Strike Portions of Complaint

Tentative Ruling

John Roe R. M. v. SBUSD

Case No. 24CV06479

           

Hearing Date:  June 16, 2025                                                 

HEARING:              (1)       Demurrer of Defendant to Complaint

                             (2)       Motion of Defendant to Strike Portions of Complaint          

ATTORNEYS:        For Plaintiffs John Roe R.M., John Roe B.J., John Roe H.H. and John Roe D.L.: Mackenzie L. Johnson and Michal W Carney, Slater Slater & Schulman LLP

                                    For Defendant Santa Barbara Unified School District: Harry W. Harrison, Matthew S. Gibbs, Tyson & Mendes

                                   

TENTATIVE RULING:

(1)       The demurrer of defendant Santa Barbara Unified School District (SBUSD) to the complaint of plaintiffs John Roe R.M., John Roe B.J., John Roe H.H. and John Roe D.L is overruled in its entirety.

(2)       The motion of defendant SBUSD to strike portions of the complaint is denied in its entirety.

Background:

In their complaint, filed on November 18, 2024, the four plaintiffs, John Roe R.M., John Roe B.J., John Roe H.H., and John Roe D.L., allege that at various times between 2007 and 2011 they were the victims of unlawful childhood sexual assault, abuse, and other misconduct committed by their high school football coach and school security guard, co-defendant Justin Sell (Sell).

The specific allegations made by each plaintiff are similar as they relate to Sell’s conduct. As to plaintiff John Roe R.M., the complaint alleges that during approximately 2007 and 2008, “Sell groomed, sexually harassed, and sexually assaulted John Roe R.M. while he was approximately sixteen years old,” and that “[s]uch grooming, sexual harassment, and sexual assault took place both on DPHS’ [Dos Pueblos High School] campus and elsewhere.” (Complaint, ¶ 35, capitalization altered.) With respect to plaintiff John Roe B.J. the complaint alleges that “[d]uring approximately 2007 and 2011, Sell groomed, sexually harassed, and sexually assaulted John Roe B.J. while he was approximately fourteen through eighteen years old,” and that “[s]uch grooming, sexual harassment, and sexual assault took place on DPHS’ campus.” (Complaint, ¶ 41, capitalization altered.)

Plaintiff John Roe H.H. alleges that “[d]uring approximately 2009 and 2011, Sell groomed, sexually harassed, and sexually assaulted [him] while he was approximately sixteen through eighteen years old,” and that “[s]uch grooming, sexual harassment, and sexual assault took place on DPHS’ campus.” (Complaint, ¶ 48, capitalization altered.)

With respect to plaintiff John Roe D.L. the complaint alleges that “[i]n or around approximately 2009, Sell groomed, sexually harassed, and sexually assaulted John Roe D.L. while he was approximately fourteen or fifteen years old,” and that “[s]uch grooming, sexual harassment, and sexual assault took place on DPHS’ campus.” (Complaint, ¶ 57, capitalization altered.)

Plaintiffs assert seven causes of action: (1) childhood sexual abuse as against defendant Sell; (2) intentional infliction of emotional distress as against Sell; (3) sexual harassment as against Sell; (4) negligent hiring, supervision, training and retention as against SBUSD; (5) failure to report suspected child abuse as against SBUSD; (6) negligent supervision of a minor as against SBUSD; and (7) negligence as against defendants Does 31-50.

On February 28, 2025, defendant SBUSD filed its demurrer, contending: (1) the complaint improperly joins four distinct, separate individual claims into one complaint; (2) plaintiffs’ fifth cause of action against SBUSD for failure to report suspected child abuse fails to state facts or authority to constitute a cause of action; and (3) plaintiffs’ fourth, fifth, sixth and seventh causes of action fail to state distinct claims against SBUSD. (Note: SBUSD’s notice of demurrer mistakenly states that “Defendant El Monte Union High School District hereby demurs” to the complaint on the above grounds.)

In its motion to strike, SBUSD argues that plaintiffs have improperly joined four separate plaintiffs as one, and that three of the four plaintiffs should be stricken. SBUSD further argues that plaintiffs’ fourth cause of action improperly alleges  that SBUSD had a duty to “train” the alleged abuser so every reference of a duty to train should be stricken. SBUSD further requests that the Court strike improper allegations and conclusory allegations not supported by law consisting of those references to what SBUSD “knew or should have known” in connection with Sell’s alleged conduct. In addition, SBUSD asserts that the fifth cause of action (Complaint, ¶¶ 86-96) must be stricken because there is no legal basis for a negligence per se claim based upon Penal Code section 11166. Finally, SBUSD contends that plaintiffs’ four separate negligence claims in the fourth through seventh causes of action are duplicative and that three of these causes of action should be stricken since plaintiffs can only recover damages for negligence once.

Plaintiffs have filed substantive oppositions to both the demurrer and motion to strike.

Analysis:

(1)       Demurrer

“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.)

1. Joinder

SBUSD argues that the complaint improperly joins four plaintiffs since they involve separate and distinct claims. (Demurrer, p. 5.)

Code of Civil Procedure section 378 states:

“(a)      All persons may join in one action as plaintiffs if:

“(1)      They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or

“(2)      They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.

“(b)      It is not necessary that each plaintiff be interested as to every cause of action or as to all relief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.”

SBUSD relies upon Moe v. Anderson (2012) 207 Cal.App.4th 826 in support of its argument. Moe actually demonstrates why the joinder of plaintiff’s claims as against SBUSD is proper. In Moe, two patients alleged they had been the victims of sexual assaults by their doctor (Dr. Anderson). The women and their husbands sued the doctor and his corporate employers in a single lawsuit under various tort theories. The Court of Appeal first addressed the claims against the doctor and affirmed the trial court's ruling that the two sets of plaintiffs were improperly joined under section 378 as to him because the events at issue did not constitute a single transaction and nothing was alleged to indicate a related series of transactions. As the court in Moe at p. 833 explained:

“[T]he events do not constitute a single transaction and nothing is alleged to indicate a related series of transactions.  Two separate and distinct sets of plaintiffs (i.e., (1) Paula and Robert, and (2) Edelmira and Richard) are suing Anderson for separate and distinct sexual assaults during separate and distinct time periods. Paula was assaulted in May 2009. She claims that Anderson made suggestive and sexual advances toward her without her consent and against her will, including touching her breasts and vaginal area. Edelmira was assaulted between July and September 2009. She also claims that Anderson made suggestive and sexual advances toward her without her consent and against her will, including touching her breasts, vaginal area, and buttocks . . . These sexual assaults, perpetrated against separate women at separate times, cannot be considered the same transaction or occurrence.”

However, and with respect to Dr. Anderson’s employer (Healthworks), the court found that the plaintiffs’ claims against it were predicated upon Healthworks’ direct negligence in hiring and supervising Dr. Anderson. Because these claims arose out of the same series of transactions or occurrences, i.e., the hiring and supervision of Dr. Anderson, the appellate court held that joinder of the claims against the employer was proper under section 378. (Moe, at pp. 835-836.)

Here, as in Moe, SBUSD is alleged to have engaged in a series of transactions, including the negligent hiring, retention, training and supervision of Sell, which exposed plaintiffs to Sell’s conduct. Thus, as was the case in Moe, plaintiffs have asserted a right to relief arising out of the same series of transactions. So too are there common issues of law or fact. The same evidence with respect to SBUSD’s hiring and supervision of Sell will likely need to be adduced in separate lawsuits if joinder is not allowed.

SBUSD also argues that it will suffer prejudice as a result of the joinder of four plaintiffs in this case. (Demurrer, pp. 7-8.) Assuming that its claims of prejudice are relevant in assessing the effects of joinder of the four plaintiffs here, any concerns of prejudice do not furnish grounds for finding on demurrer that the plaintiffs have been misjoined in this action. To the extent any such concerns are valid, they can be addressed by appropriate means either during or prior to trial.  

2. The Fifth Cause of Action for Failure to Report Suspected Child Abuse Pursuant to Government Code Sections 815.2 and 820

Plaintiffs allege that SBUSD was “at all times relevant herein subject to the provisions of the Child Assault and Neglect Reporting Act (Penal Code section 11165, et seq.),” that its agents and employees “knew or reasonably suspected that defendant Sell was acting inappropriately with plaintiffs and other minor male students, including grooming plaintiffs and other minor male students for sexual abuse, and was sexually assaulting plaintiffs,” and that SBUSD “failed to report the suspected assault of minor male students, including plaintiffs, to a law enforcement

agency or child protective services as required by the provisions of the Child Assault and Neglect Reporting Act (Penal Code section 11165, et seq.).” (Complaint, ¶¶ 87, 90-91, capitalizations altered.)

Citing Randi W. v Muroc Joint Unified School District (1997) 14 Cal.4th 1066, 1074, SBUSD argues that while Penal Code section 11166 creates a duty for teachers, administrators or other individuals to report known child sexual abuse, the statute does not create a legal duty for the SBUSD as an entity. (Demurrer, p. 9.) However, as an employer, SBUSD may be subject to liability for the failure of any of its employees to report suspected abuse. (Kassey S. v. City of Turlock (2013) 212 Cal.App.4th 1276, 1280.) Indeed, subdivision (a) of Government Code section 815.2 provides: “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.”

Plaintiffs here allege that SBUSD’s employees were at all times acting within the course and scope of their employment. (Complaint, ¶ 11.) Plaintiffs further allege specific facts in support of their allegation that SBUSD’s employees knew or should have known about the alleged abuse. (See Complaint, ¶¶ 20-27.) Plaintiffs are not required “to specify at the pleading stage which of the defendant’s employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

The Court notes that the doctrine of negligence per se is not a separate cause of action but rather creates an evidentiary presumption that affects the standard of care in a cause of action for negligence. (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2.) In any event, and as set forth below, plaintiffs may plead separate theories of liability, including liability based upon negligence per se, in their complaint.

3. The Fourth, Fifth, Sixth and Seventh Causes of Action

Plaintiffs’ fourth, fifth, sixth and seventh causes of action here are for negligent hiring, supervision, training and retention, failure to report suspected child abuse,  negligent supervision of a minor, and negligence. SBUSD argues that plaintiffs fourth, fifth, sixth and seventh causes of action “are all based in negligence,” and that the same alleged conduct that can give rise to negligence “does not entitle plaintiffs to four separate negligence recoveries.” (Demurrer, p. 10, capitalizations altered.)

Unfortunately, there is inconsistency in the law as to use of the term “cause of action.” “A single cause of action defined in terms of the plaintiff’s primary right may include more than one instance of alleged wrongdoing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394.) “Further, the primary right theory is notoriously uncertain in application. ‘Despite the flat acceptance of the ... theory ... by California decisions, the meaning of “cause of action” remains elusive and subject to frequent dispute and misconception.’ [Citation.]” (Id. at p. 395.)

As explained by Witkin, a plaintiff may plead alternative theories or counts in the complaint even if they do not constitute a separate cause of action:

“‘Inconsistent counts’ in a complaint usually constitute a pleading of the same cause of action according to different legal theories or different versions of ultimate facts. This was permissible at common law, and is also allowed under the codes. Because there is but one cause of action, no problem of joinder of causes is involved [citation], and because the individual ‘counts’ are internally consistent, there is no violation of the rule against pleading in the alternative. ‘[W]hen for any reason the pleader thinks it desirable so to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff’s right and defendant's liability depend on facts not well known to the plaintiff, his pleading may set forth the same cause of action in varied and inconsistent counts with strict legal propriety.’ [Citations.] [¶] The conventional description of this practice (‘pleading inconsistent causes of action’) is unfortunate. It implies that there is a joinder of causes although there may be only one cause. And it tends to suggest that the pleader is making inconsistent statements of fact, some of which must necessarily be false, or that the pleader is seeking mutually exclusive legal remedies. An examination of the cases, however, will reveal that few involve deliberately contradictory assertions. The ‘inconsistency’ lies only in the pleading of ultimate factual probabilities and possibilities, one or more of which may, if proved, support one or more legal theories of recovery. It would probably be more informative to speak of pleading alternative counts to support alternative legal theories.” (4 Witkin, Cal. Procedure (5th ed. 2020) Pleading, § 402; see also Crowley v. Katleman (1994) 8 Cal.4th 666, 691.)

“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.) The court does not need here to determine which sets of allegations identified as separate “counts” by plaintiffs constitute separate “causes of action” in the primary rights sense, but instead addresses each set of allegations as it most naturally may be considered within the context of a demurrer or motion to strike to a pleading. (See Code Civ. Proc., § 430.10, subd. (e); Cal. Rules of Court, rule 2.112.)

Accordingly, SBUSD’s demurrer to the fourth through seventh causes of action is overruled.

(2)       Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

SBUSD’s contention that the complaint improperly joins four separate plaintiffs as one, and that three of the four plaintiffs should therefore be stricken, is rejected for the reasons set forth above in connection with SBUSD’s demurrer.

The Court also finds that plaintiffs’ allegations concerning SBUSD’s failure to train its employees as set forth in the fourth cause of action for negligent hiring, retention and supervision should not be stricken. Subdivisions (c) and (d) of Penal Code section 11165.7 state that employers, such as SBUSD, have a duty to train their employees as follows:

“(c)(1)    Except as provided in subdivision (d) and paragraph (2), employers are strongly encouraged to provide their employees who are mandated reporters with training in the duties imposed by this article. This training shall include training in child abuse and neglect identification and training in child abuse and neglect reporting. Whether or not employers provide their employees with training in child abuse and neglect identification and reporting, the employers shall provide their employees who are mandated reporters with the statement required pursuant to subdivision (a) of Section 11166.5.

“(2)      Employers subject to paragraphs (48) and (49) of subdivision (a) shall provide their employees who are mandated reporters with training in the duties imposed by this article. This training shall include training in child abuse and neglect identification and training in child abuse and neglect reporting. The training requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.

“(d)      Pursuant to Section 44691 of the Education Code, school districts, county offices of education, state special schools and diagnostic centers operated by the State Department of Education, and charter schools shall annually train their employees and persons working on their behalf specified in subdivision (a) in the duties of mandated reporters under the child abuse reporting laws. The training shall include, but not necessarily be limited to, training in child abuse and neglect identification and child abuse and neglect reporting.”

Plaintiff’s allegations regarding SBUSD’s failure to train its employees may therefore be relevant with respect to the theories of liability asserted by plaintiffs.

SBUSD also seeks to have stricken from the complaint plaintiffs’ allegations concerning what SBUSD “knew or should have known” regarding Sell’s conduct, as well as plaintiffs’ allegations that SBUSD  acted “negligently.” Here, SBUSD asserts that plaintiffs plead no facts to support these “conclusion[s].” (Motion, p. 10.)  

Because the present case involves a claim against a public entity and is controlled by the Government Tort Claims Act (formerly, Tort Claims Act), the following rules apply:

 

“However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’ [Citations.] (Id. at p. 795.) It is a plaintiff’s responsibility to plead “ ‘facts sufficient to show [their] cause of action lies outside the breadth of any applicable statutory immunity.’ [Citation.]” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 584.)

Plaintiffs have sufficiently met this standard here. Plaintiffs’ complaint includes factual allegations which support their claims that SBUSD knew or should have known about Sell’s alleged conduct and negligently failed to take steps to protect its students. These factual allegations include: (a) the director of classified personnel meeting with Sell regarding him spending his lunches with minor male students instead of performing his employment duties (Complaint, ¶ 20); (b) Sell striking John Roe H.H. and John Roe B.J. in their genitals, witnessed by other coaches at minimum a dozen instances (Complaint, ¶ 44); (c) multiple employees of SBUSD knowing that Sell punched a student in the face, on the school campus (Complaint, ¶ 21; (d) the principal of DPHS speaking with Sell regarding his inappropriate conduct with minor students (Complaint, ¶ 20); and (e) the complaints made to SBUSD employees regarding Sell’s misconduct (Complaint, ¶ 27).

Finally, SBUSD’s motion to strike as it relates to the fifth cause of action for negligence per se, and SBUSD’s contention that plaintiffs’ four separate negligence claims are duplicative and that three of them should be stricken, is denied for the reasons set forth in connection with SBUSD’s demurrer to these causes of action.