Tristan Riva v.

Templeton Unified School District, 14CVP-0292

Hearing:

Defendants (Amended) Demurrer and (Amended) Motion to Strike

Date:

June 21, 2016

Tristan Riva (Plaintiff) brings this action against Templeton Unified School District,
Joseph Koski, Andrew Cherry, Nancy Needham, and Paul Jones (Defendants) for
damages suffered when Plaintiff was allegedly required to participate in an Iron Man
workout as a form of punishment for riding in a District golf cart without permission, and
when Defendants conducted a residency investigation that resulted in Plaintiffs transfer
to another school district.
Plaintiffs First Amended Complaint includes causes of action for battery, assault,
intentional and negligent infliction of emotional distress, violations of the Education and
Penal Codes, invasion of privacy, and negligence. Defendants demur to each cause of
action and move to strike portions of the complaint.1
Background:
In October 2013, Plaintiff, who had previously injured his left foot during football
practice, was sitting in a school-owned golf cart with his friend watching a football game
when his friend drove off in the cart. The two friends were caught and reprimanded for
taking school property. (FAC, 13.)
According to Plaintiff, Defendant Jones, the athletic director for Templeton High School,
informed him that he would have to do an Iron Man workout as punishment. (FAC,
14.) Defendant Jones claims he gave Plaintiff the option of doing the Iron Man workout
or detention or missing a football game and he chose the Iron Man workout. (FAC, 18.)
On October 9, 2013, Defendant Jones asked Plaintiff why he had not done the Iron Man
workout. Plaintiff informed him that his father would not allow him to do it. Plaintiff
further informed Defendant Jones that he was uncomfortable speaking with him without
1

The demurrer was continued from March 22, 2016, for failure to comply with the meet-and-confer
requirements under Code of Civil Procedure 430.41. Defendants subsequently filed an amended
demurrer and motion to strike on April 18, 2016.
As a result of the meet-and-confer efforts, Plaintiff dismissed the battery cause of action against
Defendants Koski, Cherry, and Needham; dismissed the second cause of action for assault against
Defendant Cherry; and withdrew the punitive damages claims against Templeton Unified School
District. (Stipulation filed on April 26, 2016.)

one of his parents present. Later that day, Plaintiff and his father met with Defendant
Jones in his office where his father told Defendant Jones that Plaintiff could not do the
Iron Man workout as his left foot was injured. (FAC, 17.)
Plaintiff alleges that he was nonetheless required to participate in an Iron Man workout
while still recovering from his injuries to his left foot. (FAC, 19.)
In addition to the dispute over the Iron Man workout, an investigation was initiated to
determine whether Plaintiff was a resident of Templeton Unified School District
(District). (FAC, 31.) Plaintiff alleges that Defendant Koski (District Superintendent)
personally visited Plaintiff at his fathers residence in Templeton and was seen by a
neighbor staking out Plaintiffs home. (FAC, 29.)
Plaintiff further alleges that Defendants undertook a campaign to harass and intrude into
[Plaintiffs] right to privacy both at school, extracurricular activities and at home. (FAC,
26.) For example, Plaintiff states that he was no longer permitted to participate on the
football team; he was removed from one of the games; that Defendants engaged in a
pattern of making negative comments about Plaintiff to third parties; and that Defendant
Koski staked out his home. (FAC, 27 and 80.)
On December 18, 2013, Plaintiff filed a complaint with the District regarding imposition
of the Iron Man workout. (FAC, 31.) Plaintiff alleged that the Iron Man Workout
constituted corporal punishment in violation of Education Code 49000 and 49001.
(FAC, 61-61.) After an internal investigation, the District concluded that no violations
had occurred. (Dft.s RJN, Ex. B.)2
Plaintiff appealed the Districts decision to the Governing Board of Templeton Unified
School District (Board). The Board held a hearing on February 5, 2014, where Plaintiff
presented evidence and submitted statements of two other football players regarding Iron
Man workouts. (FAC, 31.) The Board found that there was no believable evidence of
any wrongdoing in connection with the Iron Man workout and further, that Plaintiff was
not a resident of the District. (Ibid.)
On February 13, 2014, the Board issued two written decisions. One dealt with Plaintiffs
allegation that the Iron Man workout constituted unlawful corporal punishment in
violation of Education Code 49001; and the other with Plaintiffs failure to establish
2

The Court takes judicial notice of Exhibits A through H proffered by Defendant, and overrules
Plaintiffs objections thereto. It is noted, however, that these items were not relied upon by the Court in
its ruling on Defendants demurrer or motion to strike.
The Court also takes judicial notice of the exhibits proffered by Plaintiff except for Exhibits 3 and 4
(printouts from Lozano Smith website); and Exhibits 5, 6, and 7 (deposition transcripts). Defendants
objections to these exhibits are sustained.

residency. (Dft.s RJN, Ex. E and F.) Both denied all of the remedies requested in the
complaint.
With respect to Plaintiffs claim that the Iron Man workout constituted corporal
punishment, the Board made the following findings:

[B]ased on the totality of the evidence, that [Plaintiff] was given choices
regarding his discipline for his role in the unauthorized taking and use of the
Districts golf cart .
The Board is not persuaded that [Plaintiff] actually did the iron man workout
because [o]n the day he said he did the workout, the evidence established that
Mr. Jones was not at the school but had gone to an away volleyball game in Santa
Ynez.
Even if [Plaintiff] had done the workout, it would not be corporal punishment as
defined in the Education Code because it would have been a voluntary workout
under the circumstances.
There was no believable evidence of wrongdoing by any of the employees
against whom the complaint was filed. There was no verbal or physical abuse, no
duty to report, and no persuasive evidence that [Plaintiff] was mistreated in any
way. (Dft.s RJN, Ex. E.)3

Plaintiff then appealed the Boards decision to the California Department of Education
(CDE). (FAC, 33.) According to Plaintiff, the CDE never responded to his appeal so
that the appeal to the CDE was fruitless, and was not pursued. (Ibid.)
Demurrer:
1. Failure to Exhaust Judicial Remedies
Defendants demur to all eight causes of action on the ground Plaintiff failed to exhaust
his judicial remedies. Specifically, Defendants argue that by failing to challenge the
Boards findings (e.g., that he never actually did the Iron Man workout), those findings
are binding and preclude the causes of action alleged in the First Amended Complaint.4

The Court does not take judicial notice of the truth of these findings merely the fact that they were
made. (See Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 [court may take judicial notice of
the existence of findings of fact but may not accept them as true on issues in dispute].)

Unless the administrative decision is challenged, it binds the parties on the issues litigated and if those
issues are fatal to a civil suit, the plaintiff cannot state a viable cause of action. (Knickerbocker v. City
of Stockton (1988) 199 Cal.App.3d 235, 243.)

The doctrine of judicial remedies is invoked where there has been a quasijudicial adjudication by an administrative tribunal . It requires a party
aggrieved by such a decision to petition for relief in mandate in order to
challenge the administrative action or findings before filing a legal action
so as to prevent the adverse action or findings on issues actually litigated
from taking preclusive effect. (Y.K.A. Industries, Inc. v. Redevelopment
Agency of City of San Jose (2009) 174 Cal.App.4th 339, 355.)5
Judicial exhaustion is a species of res judicata . (Knickerbocker, supra, 199
Cal.App.3d at p. 241.) Res judicata has a dual aspect.
In its primary aspect the doctrine operates as a bar to the maintenance of a
second suit between the same parties on the same cause of action. Its
secondary aspect comes into play in situations involving a suit, not
necessarily between the same parties, based upon a different cause of
action. There the prior judgment is not a complete bar but it operates
against the party against whom it was obtained as an estoppel or
conclusive adjudication as to those issues in the second action which were
actually litigated and determined in the first action. The secondary aspect
is commonly referred to as collateral estoppel and is called issue
preclusion by the Restatement Second of Judgments. The doctrine of
collateral estoppel bars the relitigating of issues which were previously
resolved in an administrative hearing by an agency acting in a judicial
capacity. (Knickerbocker, supra, 199 Cal.App.3d at p. 242 [internal
citations omitted].)
Here, the Court is dealing with the second aspect (i.e., collateral estoppel).
The traditional elements of collateral estoppel include the requirement that the prior
judgment be final. [Citation.] (Long Beach Unified School Dist. v. State of California
(1990) 225 Cal.App.3d 155, 168.) Finality for the purposes of administrative collateral
estoppel is a two-step process:
(1) The decision must be final with respect to action by the administrative agency
[exhaustion of administrative remedies]; and
(2) The decision must have conclusive effect [exhaustion of judicial remedies].
(Id. at pp. 168-169.)

The exhaustion of judicial remedies doctrine differs from the rule requiring exhaustion of
administrative remedies. The latter is a fundament rule of procedure and is jurisdictional.
(Knickerbocker, supra,199 Cal.App.3d at pp. 241-242 [The administrative tribunal is created by law
to adjudicate the issue sought to be presented to the court.])

First, [a] decision attains the requisite administrative finality when the agency has
exhausted its jurisdiction and possesses no further power to reconsider or rehear the
claim. [Fn. omitted.] (Long Beach Unified School Dist., supra, 225 Cal.App.3d at p.
169.) Defendants do not take issue with Plaintiffs allegations that he has exhausted his
administrative remedies. (FAC, 31-35.)
Second, a decision has conclusive effect when it is free from direct attack. [Citation.] A
direct attack on an administrative decision may be made by appeal to the superior court
for review by petition for administrative mandamus. (Code Civ. Proc., 1094.5.) A
decision will not be given collateral estoppel effect if such appeal has been taken or if the
time for such appeal has not lapsed. [Citations.] (Long Beach Unified School Dist.,
supra, 225 Cal.App.3d at p. 169.)
In the present case, Defendants have not set forth the applicable statute of limitations to
determine whether the Boards decisions are free from direct attack. Nor have they
addressed the impact of the fruitless appeal to the CDE (e.g., from when would the
statute of limitations start to run). Accordingly, it is unclear whether the Boards
decisions are final for purposes of applying collateral estoppel.
In addition, Defendants have failed to demonstrate the Board had authority to determine
the factual issues upon which Defendants rely for their collateral estoppel arguments.
(See City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400-401
[collateral estoppel inapplicable when agency acted outside its conferred powers;
agencys decisions subject to collateral attack in civil action rather than direct attack in
mandamus proceedings].) Other than identifying the corporal punishment statute,
Defendants do not set out the relevant Education Code sections, California Code of
Regulations (5 CCR 4600, et seq.), or local policies and regulations adopted by the
District, pursuant to which the Board acted.6
Finally, Defendants fail to set forth how the Boards determinations affect each of the
individual eight causes of action to which they seek a demurrer without leave to amend.
Defendants state only that [t]he Boards findings in the administrative action preclude
each and every one of the plaintiffs causes of action that are based on the imposition of
the Iron Man or the residency investigation as a matter of law. (Reply, p. 5, ll. 23-25.)
This is conclusory argument is insufficient considering the finality of the relief sought by
Defendants.7
6

There is a brief discussion in Defendants reply of the Districts uniform complaint procedure set out in
AR 1312.3 and whether that procedure provided for a formal hearing. The argument does not,
however, address the Boards powers to determine the substantive issues.

In essence, Defendants demur to the entire complaint. However, as discussed more fully below,
Plaintiff has stated a viable right to privacy claim. (See Shook v. Pearson (1950) 99 Cal.App.2d 348,
351 [a demurrer that attacks an entire pleading should be overruled if one of the counts therein is not
vulnerable to the objection.])

The demurrer for failure to exhaust judicial remedies is overruled. Defendants have failed
to lay a sufficient foundation supporting application of the collateral estoppel doctrine
and have failed to specify how that doctrine is fatal to each cause of action.8
2. Immunity of Individual Defendants
Defendants argue that Defendants Koski, Cherry (Principal of Templeton High School),
and Needham (Assistant Principal of Templeton High School) are immune from liability
for purposes of the second through eighth causes of action under Government Code
sections 820.2, 822.2, 821.6, and 820.8.
Although Defendants Notice of Demurrer sets forth the grounds for demurrer in separate
numbered paragraphs for each cause of action,9 their memorandum of points and
authorities supporting the demurrer fails to do the same. Instead, Defendants group all
causes of action under the general headings for failure to exhaust judicial remedies and
immunity.
This makes is particularly difficult to determine which arguments apply to which causes
of action and which immunities apply to which defendants. (See Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) 7:107-7:108, p.
7(l)-46 [Where there are several defendants, the demurrer should specify on which
defendants or defendants behalf each ground is asserted.])
a. Government Code Section 820.2
Government Code section 820.2 provides [e]xcept 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.

This ruling does not preclude Defendants from subsequently raising this issue through other procedural
mechanisms once these issues are addressed.

Defendants demur to the second through eighth causes of action on the same grounds: (1) failure to
exhaust judicial remedies; and (2) immunity claims. Each ground is set forth in the same manner. For
example:
Plaintiffs third cause of action for Intentional Infliction of Emotional Distress fails to state a cause of
action because it is barred as a result of plaintiffs failure to exhaust his judicial remedies.
Plaintiffs third cause of action for Intentional Infliction of Emotional Distress fails to state a cause of
action against defendants Koski, Cherry and Needham because defendants are immune from liability.

4.
5.

Defendants do not ever specify which immunity section applies to which cause of action.

Defendants argue that the imposition of discipline on students is discretionary entitling

Defendants to immunity under Government Code 820.2. Plaintiffs causes of action,
however, are based on the claim that the Iron Man workout constituted corporal
punishment, which is expressly prohibited by the Education Code.
Specifically, Education Code section 49001(b) provides in relevant part that [n]o person
employed by or engaged in a publish school shall inflict, or cause to be inflicted corporal
punishment upon a student. Thus, there is no discretion to impose as penalties, activities
that constitute corporal punishment.
Defendants, on the other hand, argue the Iron Man workout is not corporal punishment
because Plaintiff voluntarily engaged in the activity. (See. Educ. Code, 49001(a)
[Physical pain or discomfort caused by athletic competition or other such recreational
activity, voluntarily engaged in by the pupil, is not and shall not be construed to be
corporal punishment within the meaning and intent of this section.]) Whether Plaintiff
was given the option of performing the Iron Man workout or choosing another
punishment is a factual issue that cannot be determined on demurrer.
Defendants next argue there are no allegations that Defendants Koski, Cherry, or
Needham directly imposed the Iron Man workout on Plaintiff and as such they are
immune from liability for the first through sixth causes of action.10 (Demurrer, p. 10, ll.
12-13; Reply, p. 6, ll. 16-17.) However, Plaintiff alleges that he was forced to participate
in [the Iron Man workout] by defendants and that the punishment was authorized by
defendants. (FAC, 47 [second cause of action]; 61 [fifth cause of action]; and 68
[sixth cause of action].) For purposes of ruling on a demurrer, Plaintiffs allegations must
be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.App.3d 593, 604.)
As for the third and fourth causes of action for intentional and negligent infliction of
emotional distress, those claims are not solely based on imposition of the Iron Man
workout but also the allegation that engaged in a pattern of harassment by, among other
things, disparaging his character to third parties. Defendants do not address how
Government Code section 820.2 affects these allegations.
The demurrer on this ground is overruled.
b. Government Code Section 822.2
Government Code section 822.2 provides [a] public employee acting in the scope of his
employment is not liable for an injury caused by his misrepresentation, whether or not
10

As noted above, these individual Defendants were dismissed from the first cause of action and
Defendant Cherry has already been dismissed from the second cause of action.

such misrepresentation be negligent or intentional, unless he is guilty of actual fraud,

corruption or actual malice.
Statutory immunity for public employees based on misrepresentation is not absolute. It
applies only when the negligent or intentional wrongdoing involves interferences with
financial or commercial interests. (County of Kern v. Sparks (2007) 149 Cal.App.4th 11,
20.) Defendants fail to address this limitation and its application to the facts of this case.
The demurrer on this ground is overruled.
c. Government Code Section 821.6
Government Code 821.6 provides [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.
Defendants claim this section immunizes Defendant Koski from liability for any
wrongdoing (especially in regard to Plaintiffs claims for emotional distress and invasion
of privacy)11 in connection with his investigation into Plaintiffs residency. (RichardsonTunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056,
1062 [Investigations are considered part of judicial and administrative proceedings for
purposes of section 821.6 immunity.])
Although not cited by the parties, Richardson-Tunnell, supra, 157 Cal.App.4th 1056,
addressed an analogous situation. In that case, the plaintiff filed suit for invasion of
privacy and negligence against the school district and its workers compensation insurer
because they had directed an investigator to surreptitiously videotape plaintiff at her
wedding, wedding reception, and on her honeymoon. The court upheld the judgment on
the pleadings and subsequent dismissal finding the district and insurer were immune
under Government Code section 821.6.
Specifically, the court found that while the scope of employment inquiry is ordinarily a
question of fact, the court was able to decide the question as a matter of law, because
plaintiff had pleaded that the trespass and invasion of privacy was done in the course of
their investigatory surveillance. (Richardson-Tunnell, supra, 157 Cal.App.4th at p. 1062
[where only one reasonable inference can be drawn .])
Similarly, in the present case, Plaintiff alleges that Defendant Koski staked out his
home in connection with Superintendent Koskis residency investigation . (FAC,
74, 80(e).) Thus, there is some merit to Defendants section 821.6 immunity claim.

11

Reply, p. 7, ll. 24-25.

However, unlike Richardson-Tunnell, Plaintiffs causes of action are not based solely on
Defendant Koskis actions during his residency investigation. Plaintiff also alleges that
all of the Defendants, including Defendant Koski, engaged in a pattern of harassment by,
among other things, disparaging his character to third parties. Defendants do not address
how Government Code section 821.6 affects these allegations. (See Weil & Brown,
supra, at 7:42.2, pp. 7(l)-21 to 7(l)-23, citing PH II, Inc. v. Superior Court (1995) 33
Cal.App.4th 1680, 1682 [If there are sufficient allegations to entitle plaintiff to relief,
other allegations cannot be challenged by general demurrer.])
Accordingly, the demurrer on this ground is overruled.
d. Government Code Section 820.8
Government Code section 820.8 provides [e]xcept as otherwise provided by statute, a
public employee is not liable for an injury caused by the act or omission of another
person. Nothing in this section exonerates a public employee from liability for injury
proximately caused by his own negligent or wrongful act or omission.
Specifically, Defendants argue defendants Cherry, Needham and Koski cannot be held
liable for Mr. Jones imposing the Iron Man workout. Defendants Cherry, Jones and Koski
cannot be held liable for Ms. Needhams alleged act of removing plaintiff rom a
homecoming game, and defendants Cherry, Needham and Jones cannot be held liable for
any alleged improper acts undertaken by Dr. Koski in the course of his residency
investigation. (Demurrer, p. 12, ll. 5-9.)
However, as already discussed, Plaintiff also alleges that all of the Defendants engaged in
a pattern of harassment by, among other things, disparaging his character to third parties.
Defendants do not address how Government Code section 821.8 affects these allegations.
(See Weil & Brown, supra, at 7:42.2, pp. 7(l)-21 to 7(l)-23, citing PH II, supra, 33
Cal.App.4th at p. 1682 [If there are sufficient allegations to entitle plaintiff to relief,
other allegations cannot be challenged by general demurrer.])
At this stage of the proceedings, the sole issue is whether the pleaded facts state a valid
cause of action not whether they are true. (Del E. Webb Corp., supra, 123 Cal.App.3d
at p. 604.)
The demurrer on this ground is overruled.
3. Failure to State a Cause of Action for Invasion of Privacy
The common law right to privacy is generally analyzed under four categories of wrongs
or types of invasion. These include (1) intrusion into private affairs; (2) public disclosure
of private facts; (3) placing the plaintiff in a false light; and (4) appropriation of the
plaintiff's name or likeness. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 651,

p. 957.) More than one type of privacy tort may apply to a particular situation. (Ibid.,
citing Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 86
[false light and appropriation theories].)
In the present case, Plaintiff alleges his right to privacy was violated because Defendants
engaged in a pattern of making negative comments about [Plaintiff] to his friends in an
effort to isolate [him], and in connection with Superintendent Koskis residency
investigation following [Plaintiff] to his home and staking out his home . (FAC,
74.) These allegations appear to respectively support claims for (a) placing the plaintiff in
a false light;12 and (b) intrusion into private affairs.13
A plaintiff claiming a violation of the constitutional right of privacy must establish
(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the
circumstances, and (3) a serious invasion of the privacy interest. (International
Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007) 42 Cal.4th 319, 338, citing Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 39-40.)
Defendants appear to take issue with the second element arguing Plaintiff has not pleaded
facts sufficient to show an invasion of privacy where plaintiff was a high school student
and defendants were charged with the responsibility of running the school. (Demurrer,
p. 13, ll. 11-12.)
In support of this argument, Defendants cite to Hill, supra, 7 Cal.4th at pp. 26-27, and
Baughman v. State of California (1995) 38 Cal.App.4th 182, 190, for the proposition that
[a] plaintiffs expectation of privacy in a specific context must be objectively reasonable
under the circumstances, especially in light of the competing social interests involved.
In those cases, it was determined the plaintiffs had failed to state a cause of action for
invasion of privacy due to competing social interests. (Hill, supra, 7 Cal.4th at p. 44
[challenge to NCAAs drug testing program of student athletes; no invasion due in part to
countervailing interest of safeguarding the integrity of intercollegiate sports]; Baughman,
supra, 38 Cal.App.4th at p. 190 [invasion justified because made pursuant to a search
warrant issued in connection with an ongoing criminal investigation].)
12

False light is a species of invasion of privacy, based on publicity that places a plaintiff before the
public in a false light that would be highly offensive to a reasonable person, and where the defendant
knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which
the plaintiff would be placed. (Price v. Operating Engineers Local Union No. 3 (2011) 195
Cal.App.4th 962, 970.)

13

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or
his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion
would be highly offensive to a reasonable person. (5 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, 658, p. 963, quoting Rest.2d, Torts 652B.)

10

In the present case, Defendants fail to identify a competing policy which would diminish
Plaintiffs expectation of privacy. (See Sheehan v. San Francisco 49ers, Ltd. (2009) 45
Cal.4th 992, 998 [factual record does not establish competing social interests].)
Defendants also cite to Hill for the proposition that students have a diminished
expectation of privacy. However, in Hill, this conclusion was based on students
voluntary participation in athletic activity. (Hill, supra, 7 Cal.4th at p. 42 [athletic
participation carries with it social norms that effectively diminish the athletes reasonable
expectation of personal privacy in his or her bodily condition, both internal and
external.])
By contrast, Defendants here fail to develop their argument that Plaintiff, as a high school
student, has a diminished expectation of privacy under the circumstances. While there
may be some merit to that contention with respect to Defendant Koskis investigation of
Plaintiffs residential status, it is unclear how Plaintiffs status as a student affects his
false light claims (i.e., that Defendants engaged in a pattern of harassment by disparaging
his character to third parties).
The demurrer to the seventh cause of action for invasion of privacy is overruled.
Motion to Strike:
Defendants motion to strike seeks to strike specific allegations in paragraphs 74 and 80
of the First Amended Complaint, as well as Plaintiffs requests for punitive damages and
attorneys fees.
1. Failure to Exhaust Judicial Remedies and Immunity Claims
In support of the motion to strike specific allegations in paragraphs 74 [invasion of
privacy cause of action] and 80 [negligence cause of action], Defendants reiterate the
collateral estoppel and immunity arguments raised in their demurrer.14 Like their
demurrer, Defendants make no attempts to link their immunity arguments with the
specific allegations (identified in the Notice of Motion) that they seek to strike.
Except as specified below, Defendants collateral estoppel and immunity arguments fail
for the same reasons set forth above in the discussion of Defendants demurrer.
In light of Richardson-Tunnell, supra, 157 Cal.App.4th 1056, the Court tentatively grants
the motion to strike as to that portion of paragraphs 74 and 80 which states:
14

Except for a few non-substantive additions and alterations, the vast majority of Defendants arguments
are a cut-and-pasted copy of the arguments set forth in their demurrer.

11

and in connection with Superintendent Koskis residency investigation

following [Plaintiff] to his home and staking out his home in an effort to
make a determination on [Plaintiffs] residency in the Templeton Unified
School District, which resulted in the School Districts decision to transfer
[Plaintiff] to a neighboring school district in his last semester of his senior
year.
(See PH II, Inc., supra, 33 Cal.App.4th at pp. 1682-1638 when substantive defect is clear
a defendant may attack that portion of the cause of action by filing a motion to
strike.])
2. Punitive Damages15
Punitive damages are governed by Civil Code section 3294, which requires clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or malice
. (Civ. Code, 3294, subd. (a).) In the First Amended Complaint, Plaintiff alleges
Defendants acted knowingly, willfully, and with malicious intent with respect to the
first [battery], second [assault], third [intentional infliction of emotional distress], and
seventh [invasion of right to privacy] causes of actions.
Malice is defined as 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).)
Conscious disregard of rights is conduct by a defendant who is aware of the probable
dangerous consequences of such conduct to plaintiffs interests and willfully and
deliberately fails to avoid those consequences. [Citation.] (Smith v. Brown-Forman
Distillers Corp. (1987) 196 Cal.App.3d 503, 516.)
In the present case, Plaintiff alleges he was forced to do the Iron Man workout despite an
injured foot of which Defendant Jones was aware. (FAC, 17, 19.) As for the other
Defendants, Plaintiff alleges that he was forced to participate in [the Iron Man workout]
by defendants and that the punishment was authorized by defendants. (FAC, 47
[second cause of action]; 61 [fifth cause of action]; and 68 [sixth cause of action].)
Plaintiff also alleges that all of the Defendants engaged in a pattern of harassment
disparaging him to third parties in an attempt to isolate him. (See Clauson v. Superior
Court (1998) 67 Cal.App.4th 1253, 1255-1256.)
These allegations appear to be sufficient to plead malice for purposes of stating a claim
for punitive damages.

15

As noted above, Plaintiff has already dismissed his punitive damages claim against the District.

12

The motion to strike Plaintiffs claim for punitive damages is denied.

3. Attorneys Fees
Plaintiff seeks attorneys fees pursuant to Code of Civil Procedure section 1021.5.16
Defendants ask the Court to take judicial notice of the fact that before the Board hearing
on February 5, 2014, Plaintiff was informed that the practice of offering the Iron Man
workouts would cease. (Mtn. to Strike, p. 16, ll. 13-15.) While the Court may take
judicial notice of the document in which this statement was made, the Court will not take
judicial notice of the truth of this statement.
At this stage of the proceedings, it is unknown whether the District actually implemented
the policy and further, whether this action result in a significant public benefit.
Accordingly, a determination of the attorney fee issue is premature.
The motion to strike Plaintiffs request for attorneys fees is, therefore, denied.
Conclusion:
Defendants demurrer is overruled.
Defendants motion to strike is tentatively granted as to that portion of paragraphs 74 and
80 which states and in connection with Superintendent Koskis residency investigation
following [Plaintiff] to his home and staking out his home in an effort to make a
determination on [Plaintiffs] residency in the Templeton Unified School District, which
resulted in the School Districts decision to transfer [Plaintiff] to a neighboring school
district in his last semester of his senior year.
The motion is tentatively granted on this issue. However, in light of the fact that neither
party raised or addressed Richardson-Tunnell, supra, 157 Cal.App.4th 1056, due process
requires that Plaintiff be given an opportunity to respond. The motion to strike will be
continued for additional briefing on this one issue.
The remainder of Defendants motion to strike is otherwise denied.
16

Code of Civil Procedure section 1021.5 provides in relevant part:

Upon motion, a court may award attorneys fees to a successful party against one or more
opposing parties in any action which has resulted in the enforcement of an important right
affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons, (b) the necessity and financial
burden of private enforcement, or of enforcement by one public entity against another public
entity, are such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.

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