B B et al vs Tracie Simolon

Case Number

23CV03753

Case Type

Hearing Date / Time

Fri, 11/22/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

For the reasons set forth below:

1. Defendants demurrer to plaintiffs’ second cause of action for negligence in plaintiffs’ second amended complaint, as to plaintiff Julia E. Briscoe in her individual capacity, is sustained without leave to amend.

2. Defendants’ motion to strike paragraph 228, page 43, lines 18-22, of plaintiffs’ second amended complaint, is granted without leave to amend.

3. Defendants shall file their answers to plaintiffs’ second amended complaint, as modified by this order, no later than December 13, 2024.

Background:

On August 30, 2023, plaintiffs B.B. (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).

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, while reorganized, alleged facts identical to the allegations of the original complaint.

On April 25, 2024, defendants demurred to the second, third, and fourth causes of action of the FAC and moved to strike punitive damages allegations from the FAC.

On July 19, 2024, the court sustained the demurrer to the second cause of action for emotional distress without leave to amend, overruled the demurrer to the third cause of action for negligence as to B.B., sustained the demurrer to the third cause of action for negligence as to Briscoe with leave to amend, and sustained the demurrer to the fourth cause of action for premises liability without leave to amend. The motion to strike was taken off-calendar as moot.

On July 31, 2024, plaintiffs filed their operative second amended complaint (SAC) against the Archdiocese and Simolon containing causes of action for: (1) Breach of Contract, and (2) Negligence. The SAC contains 228 paragraphs, with lengthy subparts, along with over 100 pages of exhibits, and, while somewhat better organized than the original complaint and the FAC, the SAC essentially sets forth the same factual allegations.

To summarize the SAC:

Defendant Simolon is and was an “employee, volunteer, representative, or agent of” defendant the Archdiocese. (SAC, ¶ 3.)

Briscoe entered into a contract for enrolment of B.B. in a school owned and operated by the Archdiocese. (SAC, ¶ 11.)

Defendants’ staff “forced Plaintiff B.B. to take home a school-owned technological device, forced Plaintiff B.B. to sign a document before seeing the device that purported not only to impose liability on Plaintiff B.B. but also to permit Defendants to impose punishment on Plaintiff B.B. that Defendants were not entitled to impose under their contract with Plaintiff Briscoe, distributed an apparently damaged device to Plaintiff B.B., and attempted to establish grounds on which to impose such punishment on Plaintiff B.B.” (SAC, ¶ 15.)

Simolon and other staff evaded communication with Briscoe and when Briscoe asked for evidence of the device’s pre-distribution condition, defendants’ staff did not send it. (SAC, ¶ 16.) The device was never assigned to B.B. (SAC, ¶ 17.) If the device was assigned to anyone, it was assigned to Briscoe. (Ibid.)

During a phone call, despite Briscoe’s request not to have the conversation by phone, Simolon “embark[ed] on a rant about Plaintiff Briscoe’s email to the P.E. teacher.” (SAC, ¶ 18.) When Briscoe disconnected the call, Simolon called back and announced her termination of B.B.’s enrollment, which she had no independent authority to do. (Ibid.)

Although Briscoe was not allowed to gain access to the school without defendants’ permission, Briscoe picked up B.B. from the school. (SAC, ¶¶ 19, 20.)

Defendants kept plaintiffs’ enrollment payments, did not provide B.B.’s academic record, destroyed some of B.B.’s online accounts and work, and Simolon falsified B.B.’s attendance record. (SAC, ¶ 23.)

On February 28, 2020, Briscoe made a payment toward the 2020-2021 school registration fee, which was accepted by defendants as payment for the 2020-2021 school year. (SAC, ¶ 85.)

B.B. was assigned an iPad that was not new, and, on August 27, 2021, B.B. disclosed to Briscoe that there appeared to be a scratch or crack in the iPad’s screen or screen protector, but the device was operational. (SAC, ¶ 110.)

In an attempt to understand what B.B. had signed in connection with obtaining the iPad, and B.B.’s fear of punishment for the damage, on August 27, 2021, Briscoe emailed a school staff member to request a copy of the document. (SAC, ¶ 114.) The staff member responded three days later and did not include a copy or photograph of the document that B.B. had signed. (SAC, ¶ 115.)

“In sum, MCS [Our Lady of Mount Carmel School] staff had misrepresented to Plaintiff B.B., whether through the faux contract and/or other means, that Defendants had imposed on Plaintiff B.B. absolute liability for the school iPad while reserving to themselves discretion to take it, break it, and charge and punish her for

the damage—and, if she did not disclose damage [for which they would not be responsible] to MCS staff, to punish her for the nondisclosure as well. And then, it appeared, they had distributed to her a damaged iPad.” (SAC, ¶ 123.)

When B.B. showed the iPad to a school staff member on September 1, 2021, the staff member, with no other adults present, took the iPad and, in attempting to remove the case, caused the screen to crack, thereby eliminating evidence of prior damage or the lack thereof. (SAC, ¶ 126.) The staff member confiscated the iPad and interrogated B.B. about how the iPad was damaged, and refused to accept B.B. explanation that she did not know how any previous damage had occurred. (Ibid.)

On September 1, 2021, Briscoe sent an email to the staff member, without name-calling, profanity, or other discourtesy, chastising the staff member for the interrogation, and reminding the staff member that communication about the iPad should continue only with Briscoe. (SAC, ¶ 134.) The staff member never responded. (SAC, ¶ 135.) By a separate email, Briscoe requested an update and again requested a copy of the document that B.B. had signed from Simolon. (SAC, ¶ 136.) Simolon replied that she would only continue the discussion by phone. (SAC, ¶ 137.) Briscoe replied that the conversation would have to continue by email. (SAC, ¶ 139.)

Despite Briscoe’s insistence that the conversation continue by email, Simolon called Briscoe on September 2, 2021, and admitted at the outset of the call that B.B. had not done anything wrong or violated any rule and would not be disciplined. (SAC, ¶¶ 140, 141.) Simolon stated that, while she could have charged plaintiffs for the damage to the iPad, any repair or replacement would be covered by insurance. (SAC, ¶ 142.) Simolon then “began to rant” about the tone of Briscoe’s email to the staff member. (SAC, ¶ 143.) When Simolon “drowned out” Briscoe’s three refusals to continue with the phone call, Briscoe disconnected the call. (SAC, ¶ 146.)

Within one minute, Simolon called Briscoe back and announced, in a 29-second voicemail message, her personal summary termination of B.B.’ enrollment. (SAC, ¶ 148.) Briscoe immediately picked B.B. up from the school. (SAC, ¶ 155.)

Simolon did not give notice to B.B., who was asking students and teachers if they knew why she was leaving early. (SAC, ¶ 161.) B.B. learned that students who involuntarily left the school were publicly shamed by a schoolwide announcement of the expulsion. (SAC, ¶ 162.)

Defendants again demur. Specifically, defendants demur to the second cause of action for negligence as to Briscoe. Defendants also moves to strike paragraph 228 of the complaint.

Plaintiffs oppose the demurrer and the motion to strike.

Analysis:

            Demurrer to Second Cause of Action for Negligence

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

As noted above, defendants demur to the second cause of action for negligence, as to Briscoe, in the SAC. The demurrer is based on the same grounds that were sustained, with leave to amend, in ruling on the demurrers to the original complaint and the FAC, which is lack of duty. (Demurrer, p. 1, ll. 16-21.)

“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.)

“To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged ‘facts sufficient to establish every element of that cause of action.’ [Citation.]” (Williams v. Sacramento River Cats Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286.)

“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 SAC, alleges sufficient facts to state a cause of action for negligence as to B.B. However, the SAC does not add any additional facts that would support a cause of action for negligence as to Briscoe. The SAC sets forth no facts, directed at Briscoe, that would support a negligence cause of action.

Although still somewhat unclear, it appears that Briscoe’s claimed damage, for the alleged negligence, is emotional distress. No physical injury is alleged, and the purported actions of defendants were primarily directed at B.B.

To the extent the claimed damages are related to Briscoe’s interactions by Simolon or school staff: “ ‘There is virtually unanimous agreement that . . . ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liabilities of course cannot be extended to every trivial indignity. . . . [¶] Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings. [Fns. omitted.]’ ” [Citations.]” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.)

At most, Briscoe alleges unpleasant interactions with Simolon and school staff directed at her. Further, any negligent actions or omissions alleged to have been directed at B.B. does not support a cause of action, for negligence, by Briscoe. Briscoe has failed to allege sufficient elements of duty, causation, and harm.

As this is the third demurrer that is being sustained as to the negligence cause of action as to Briscoe, and Briscoe has not demonstrated how she would be able to amend the SAC to state facts sufficient to constitute a cause of action, the demurrer will be sustained without leave to amend.

            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).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

As noted above, defendants move to strike paragraph 228 of the complaint. That paragraph reads: “Defendant Simolon acted with fraud, malice, or oppression toward Plaintiff B.B., and displayed an intention and willingness to injure Plaintiff B.B. or a conscious disregard for Plaintiff B.B.’s rights and safety, for which Defendant Simolon should be punished and deterred from similar conduct in the future, thus entitling Plaintiff B.B. to recover exemplary damages as well as actual damages, which were proximately and foreseeably caused by Defendant Simolon’s conduct.” 

Of note is that plaintiffs do not pray for exemplary damages in their prayer for relief.

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).)

Despite the strong language and speculation as to intent, the SAC, like the original complaint and the FAC, fails to allege sufficient facts to support an award of punitive damages. As a matter of law, the alleged actions do not rise to the level of malice, oppression, or fraud. The paragraph will be stricken without leave to amend.