APPEAL from a judgment of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed. (Los Angeles County Super. Ct. No. PC044428).
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
C.A., a minor,*fn1 filed a complaint through a guardian ad litem, naming as defendants a public high school, the school district, and an individual guidance counselor. The complaint alleged 11 causes of action, including negligence, negligent supervision, negligent hiring, sexual battery, assault, and sexual harassment. The trial court sustained a demurrer without leave to amend. C.A. appeals.
C.A. filed his complaint on January 8, 2009. The trial court earlier had granted C.A.'s petition for relief from the provisions of Government Code section 945.4,*fn2 permitting C.A. to file the complaint.
The complaint alleged that C.A. was a student at a public high school operated by the William S. Hart Union High School District (School District). The head guidance counselor and advisor at the high school (an employee of the School District) was assigned to "counsel, advise and mentor" C.A. The complaint alleged that the guidance counselor sexually harassed, abused and molested C.A. on a number of occasions from January 2007 to September 14, 2007. The guidance counselor drove C.A. home from school and spent long hours with C.A. on and off the high school premises. The guidance counselor performed a variety of sexual acts on C.A. and required him to perform a number of sexual acts on her. C.A. suffered "extensive physical, psychological and emotional damages" as a result. The School District "knew that [the guidance counselor] had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct," but failed to take reasonable steps to prevent further unlawful sexual conduct by the guidance counselor.
The complaint stated causes of action against the School District, the high school, and the guidance counselor*fn3 for negligence; negligent supervision; negligent hiring and/or retention; negligent failure to warn, train or educate; constructive fraud; intentional infliction of emotional distress; sexual battery; assault; sexual harassment; gender violence; and unfair business practices.
The School District filed a demurrer to the complaint on February 13, 2009. The School District argued that it could not be held liable in tort in the absence of an authorizing statute or enactment, that it could not be held vicariously liable for the guidance counselor's actions, and that allegations of negligent hiring, training, and supervision did not apply against a public entity defendant. The School District also demurred on behalf of the high school, which was not an independent public entity. The School District filed a motion to strike the portions of the complaint seeking punitive damages, attorney's fees, injunctive relief, and restitution from the School District.
C.A. filed an opposition to the demurrer and the motion to strike, requesting an opportunity to amend if the demurrer were sustained. The School District replied.
The court heard the demurrer on May 18, 2009. At the hearing, the court stated: "Government Code [section] 815.2[, subdivision] (a) . . . provided the public entity is liable for injuries proximately caused by an act or omission of employees but within the scope. Here the employee was outside the scope of their employment. And . . . the cases that were cited, they were unrelated to the duties of the counselor. And so the moving party can't be held vicariously liable for the misconduct under that government code." The court added: "[O]n the sexual harassment, Civil Code [sections] 51.9 and 52.4 don't provide a statutory basis for those kind [sic] of claims against a public entity." The court also ruled that the high school was a part of the School District and not a public entity. The court sustained the demurrer in its entirety without leave to amend. The court found moot the motion to strike.
Judgment was entered on June 4, 2009, sustaining the demurrer and dismissing the School District from the action with prejudice. The School District served notice of entry of judgment on June 10, 2009. C.A. appealed.
A demurrer tests the sufficiency of a pleading as a matter of law, and we review the trial court's sustaining of the demurrer de novo. (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) "When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
I. The Facts Alleged in the Complaint do not Support the Vicarious Liability of the School District
"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." (§ 815, subd. (a).) Section 815.2, subdivision (a) sets forth an exception to the rule: "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." This means that a public entity employer such as the School District "is vicariously liable for the torts of its employees committed within the scope of the employment." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) Conversely, a public entity employer is not vicariously liable for the torts of its employees when they act outside the scope of their employment; stated another way, respondeat superior "should apply only to the types of injuries that '"as a practical matter are sure to occur in the conduct of the employer's enterprise."'" (Id. at pp. 298-299.) "Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law." (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138.)
In John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 (John R.), the California Supreme Court faced a question similar to that in this case: "The question before us here is whether an employer (specifically, a school district) can be held liable for a sexual assault committed by an employee (here, a teacher) on another person (particularly, on a student committed to that teacher's supervision)." (Id. at p. 447.) The complaint filed against the school district alleged that the minor plaintiff was sexually molested by his mathematics teacher, while at the teacher's apartment participating in an officially sanctioned extracurricular program. (Id. at p. 441.) Concluding "[a] more personal escapade less related to an employer's interests is difficult to imagine," the court held that the respondeat superior doctrine should not be applied under those circumstances, and added: "[T]he prospect of such misconduct is conceivable, but that is a far cry from foreseeability, even under the broad meaning that concept is given in the respondeat superior context." (Id. at pp. 447, 450 & fn. 9.) The court reasoned that the policies underlying the doctrine were not served by imposing vicarious liability, and saw "a significant and unacceptable risk that school districts would be dissuaded from permitting teachers to interact with their students on any but the most formal and supervised basis" if respondeat superior applied to hold the school district liable. (Id. at p. 452; see Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at pp. 139-140 [school district not vicariously liable for sexual molestation by school custodian].)
As in John R., in this case the alleged sexual misconduct of the guidance counselor cannot be considered within the scope of her employment. C.A. argues that the guidance counselor was a counselor, not a teacher, with job duties that "may and may not apply to the position of teacher," but makes no effort to explain how sexual misconduct with a student could possibly fall within the scope of a guidance counselor's employment. We agree with the trial court that as a matter of law no vicarious liability could be imposed on the School District on the causes of action for constructive fraud, intentional infliction of emotional distress, sexual battery, assault, sexual harassment, and gender violence, all of which would hold the School District liable for the guidance counselor's actions.
II. No Statute Allows a Direct Action for Negligence Against the School District
The complaint stated causes of action against the School District for negligence, negligent supervision, negligent hiring and/or retention, and negligent failure to warn, train or educate. As the complaint does not allege any statutory basis for these negligence causes of action, the trial court was correct in sustaining the demurrer as to the allegations of direct, rather than vicarious, liability for negligence.
Sections 815, subdivision (a) and 815.6, require an authorizing statute or enactment before a governmental entity such as the School District can be liable in tort. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798.) C.A. does not identify any statute allowing a suit for direct negligence against the School District.
"We find no relevant case law approving a claim for direct liability based on a public entity's allegedly negligent hiring and supervision practices." (De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252 (De Villers).) Further, "there is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices . . . ." (Id. at p. 253.) C.A. does not point to any statute or enactment. Instead, he argues that language in John R., supra, 48 Cal.3d 438 and Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 (Grudt) supports the imposition of direct liability on the School District for negligent hiring and supervision.
In John R., the plaintiffs' complaint alleged that the school district was vicariously liable for the teacher's acts, and directly liable for its own negligence. The trial court sustained a demurrer on the causes of action seeking to hold the school district vicariously liable, and the case proceeded to trial against the teacher and the district on the causes of action based on direct liability for negligent hiring and supervision. The district's motion for non-suit as to the direct liability claims was granted on the ground that the plaintiffs had not complied with the requirement that they present an application for leave to file a late claim, and judgment was entered in favor of the district on all grounds. The court of appeal reversed the grant of non-suit and the order sustaining the demurrer to the causes of action seeking to impose vicarious liability. The California Supreme Court granted review on the "unsettled and significant question" of vicarious liability. (John R., supra, 48 Cal.3d at pp. 443-444.)
As an initial matter, the lead opinion, signed by two justices, addressed the timeliness issue because all the claims against the district would be barred if the plaintiffs did not present their claim to the district in a timely fashion. Affirming the court of appeal on the timeliness issue, the Supreme Court remanded for a determination of whether equitable estoppel applied, leaving "plaintiffs . . . the opportunity to pursue their claims against the district premised upon its direct liability for negligen[ce]" if they succeeded on the estoppel issue. (John R., supra, 48 Cal.3d at pp. 444, 446.) The court then proceeded to reverse the court of appeal's reversal of the trial court order sustaining the demurrer on the vicarious liability claims, "thus leaving plaintiffs free to pursue only their claims against the district premised on its own direct negligence in hiring and supervising the teacher." (Id. at pp. 452-453.)
In Grudt, the Supreme Court concluded that a complaint could be amended (after the running of the statute of limitations) in a case involving a shooting death by an officer, to add a claim asserting direct liability against the public entity for retaining officers it knew to be dangerous. (Grudt, supra, 2 Cal.3d at pp. 583-585.)
As the Fourth District explained, in both John R. and Grudt, the question was whether direct liability claims were timely, and the court did not reach the issue of the viability of a claim against a public entity for direct liability for negligent supervision. (De Villers, supra, 156 Cal.App.4th at p. 253.) The statements relied upon by C.A. are thus dicta. Further, as a concurring opinion in the California Supreme Court explained, "[T]he policy discussion in John R., supra, 48 Cal.3d 438, was in an opinion signed by only two justices of this court. (There were four separate opinions.) Even the other three justices who agreed there should be no vicarious liability declined to sign the portion of the lead opinion dealing with that issue. Instead, they chose to make clear that they concurred only 'in the majority's holding' of no vicarious liability. (Id. at p. 455 (conc. and dis. opn. of Eagleson, J.), italics added.) Except to its precise holding of no liability, the lead opinion stated a minority view and provides no authority for any proposition in a subsequent case. [Citations.] This is hornbook law. 'No opinion has any value as a precedent on points as to which there is no agreement of a majority of the court.' [Citation.]" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 233-234.)
We agree with the Fourth District's reasoning distinguishing those cases. (See De Villers, supra, 156 Cal.App.4th at pp. 252-255.) We also agree with its conclusion: "[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained." (Id. at pp. 255-256.) "As a public entity, . . . liability must be based on statutory not common law." (Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369.)
III. No Mandatory Duty Subjects the School District to Liability
C.A. cites a list in the complaint of what he characterizes as "mandatory duties" that required the School District to protect C.A. and allow a direct action against the School District. Section 815.6 provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." "'[T]here are three elements to a cause of action under Government Code section 815.6. First, the enactment at issue must be obligatory, not merely discretionary or permissive in its directions to the public entity. [Citation.] Typically, an enactment imposing a mandatory duty also includes specific rules and guidelines for implementation. Second, the duty imposed must be designed to protect against the particular kind of injury the plaintiff suffered. . . . The third and final requirement is that the breach of the duty must have been a proximate cause of the plaintiff's injury.'" (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 317.)
Most of the duties C.A. listed in the complaint are unaccompanied by any citation to a statute or enactment, and only a few cite general Civil Code sections. Section 815.6 requires that "the mandatory duty be 'designed' to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is '"one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty."' [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment 'confers some benefit' on the class to which plaintiff belongs is not enough; if the benefit is 'incidental' to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6." (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) The Civil Code statutes cited by C.A. do not "command specific acts designed to prevent an employee" from sexually molesting a student, and do not create a mandatory duty under Section 815.6. (See De Villers, supra, 156 Cal.App.4th at p. 257.) Because the complaint does not identify a statute specifically imposing a mandatory duty on a public entity such as the School District, the complaint did not state a cause of action for direct liability against the School District.
C.A. relies heavily on the "special relationship" between the School District and its minor students, implying that the relationship itself creates an affirmative duty. We acknowledge that a special relationship exists, but such a relationship does not eliminate the requirement of a statutory basis for tort liability against a public school district. "'A school district owes a duty of care to its students because a special relationship exists between the students and the district. [Citation.] The special relationship, by itself, does not create liability. Tort liability for governmental entities is based upon statute. [Citations.]' [Citation.]" (Mosley v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260, 1263.)
IV. C.A.'s Other Causes of Action Also Fail to State a Claim
C.A.'s cause of action for constructive fraud cites Civil Code section 1573, which provides: "Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud." "'"'Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.' [Citation.]"'" (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 763.) C.A.'s complaint states that the School District "entered into a fiduciary relationship and special confidential relationship" with C.A. when it held the guidance counselor out as an agent and allowed her to instruct C.A., and by holding itself out as an institution of learning. C.A. does not cite, and we have not found, any authority stating that a fiduciary relationship exists between a school district and an individual student. More importantly, however, this statutory language does not authorize the assertion of a claim of constructive fraud against a public entity, as required to find a mandatory duty under section 815.6.
C.A.'s cause of action for intentional infliction of emotional distress fails because, like the negligence causes of action, it is a common law tort claim unsupported by a statute imposing liability on a public entity. C.A.'s causes of action for sexual battery (citing Civil Code 1708.5) and assault (without a citation to any statute) are also unsupported by any statute holding a public entity liable for sexual battery or assault. C.A. cites Civil Code section 51.9 in support of his claim for sexual harassment, but that statute does not provide for a claim against a public entity rather than an individual teacher. Civil Code section 52.4, which C.A. cites in support of his claim for gender violence, also does not provide for a civil action against a public entity, and in subdivision (d) states: "[T]his section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence." (Civ. Code, § 524, subd. (d).)
C.A. does not argue on appeal that the court erred in sustaining the demurrer as to his last cause of action, which alleges a violation of Business and Professions Code section 17200 et seq. (the Unfair Practices Act). We note, however, that a government entity is not a "person" subject to suit under the Unfair Practices Act. (People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd. ...