K.M. v. L.A. Unified School District CA2/5 ( 2021 )

Filed 11/24/21 K.M. v. L.A. Unified School District CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
K.M., a Minor, et al., B294851
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC505747)
LOS ANGELES UNIFIED
SCHOOL DISTRICT et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
Law Offices of Rebekah Ryan Main and Rebekah Ryan
Main; Walker Trial Lawyers and Barry M. Walker, for Plaintiff
and Appellant.
Liebman, Quigley & Sheppard and Joseph R. Zamora for
Defendants and Respondents.
I. INTRODUCTION
Minor K.M. (minor), through her guardian ad litem and
mother Ellen M. (mother), appeals from an order of dismissal.1
Minor sued the Los Angeles Unified School District (District) and
Maria De Mesa for general negligence, medical negligence,
battery, and civil rights violations. Following successful
demurrers and a motion for dismissal of several causes of action,
only two causes of action remained as to minor. Minor accepted
defendants’ offer of compromise pursuant to Code of Civil
Procedure section 998, but the parties disputed whether minor
had agreed to settle all her causes of action or only the two
remaining ones. The trial court ruled that minor had released all
her causes of action and ordered the action dismissed, with
prejudice.
Minor argues that the trial court erred by: finding the
release applied to all her causes of action; sustaining demurrers
without leave to amend as to the seventh through tenth causes of
action from the second amended complaint; dismissing the first
cause of action from the fourth amended complaint; striking an
expert witness’s testimony; and issuing an order of dismissal
rather than a judgment. We affirm.
1 Although mother is named as an appellant, she makes no
arguments on her own behalf.
2
II. BACKGROUND
A. Factual Background
“On demurrer review, we accept the truth of material facts
properly pleaded, but not contentions, deductions, or conclusions
of fact or law. We may also consider matters subject to judicial
notice.” (State Dept. of State Hospitals v. Superior Court (2015)
61 Cal.4th 339, 346.) We summarize the facts alleged by minor
in the fourth amended complaint as follows.
On September 7, 2011, minor, a seven-year-old with special
needs, began attending Mariposa-Nabi PC (school), a school in
the District. Mother participated in the creation of an
Individualized Education Plan (IEP) for minor.
On March 7, 2012, minor had a seizure at school and was
transported by ambulance to the hospital, where minor was
diagnosed with epilepsy. On March 8, 2012, mother drafted a
seizure plan for minor, which she provided to the school.
At an IEP meeting on March 9, 2012, mother met with De
Mesa, a nurse at the school, who had already written the medical
section of the IEP without having reviewed minor’s medical
records. De Mesa told mother that the school would be using the
District’s official policies. At the meeting, it was strongly
suggested to mother that minor be placed at another school. “[I]t
seemed to” mother that minor was considered a “‘problem’”
because of her epilepsy and mother’s criticism of De Mesa.
Mother chose to keep minor at the school. De Mesa became
hostile to mother over the course of several weeks. De Mesa
began making unfounded referrals to child protective services as
retaliation for mother’s complaints about De Mesa.
3
On April 11, 2012, mother provided the school with seizure
medication for minor, with a doctor’s order for emergency
administration. Specifically, the doctor’s order provided that the
seizure medication should be administered in the event minor
had a seizure lasting more than three minutes. Mother believed
school staff was trained regarding the administration of the
seizure medication.
On April 27, 2012, at about 10:30 a.m., minor had a seizure
(April 27, 2012, incident). De Mesa did not administer the
seizure medication per the doctor’s order, and instead attempted
to “‘rouse’” minor by slapping her repeatedly across the face.
De Mesa refused to administer the emergency medication.
At approximately 11:11 a.m. on April 27, 2012, mother
received a call from the school informing her that minor was
experiencing a seizure. Twenty-one minutes after that call,
mother arrived at the school. Mother was directed to the medical
office of the school, where she saw minor’s “‘precarious medical
condition—gurgling, barely breathing, bruised and battered,
soiled with urine and feces, slumped in a wheelchair [and]
unresponsive.’” Mother also saw “‘[minor’s] intubation and
placement on life support,’ as well as the ‘inexplicable bruises on
[minor’s] face.’” De Mesa had directed that no one do anything
for minor during the seizure. Emergency personnel were
eventually called and arrived over an hour after the seizure
began. While being transported to the hospital, minor was placed
on oxygen and remained “completely unresponsive.” At the
hospital, minor was placed on life support and admitted to the
intensive care unit because of respiratory depression. Minor
spent two days on a ventilator and life support. Minor suffered
from a serious infection caused by breathing her stomach
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contents during the seizure. Minor also suffered setbacks in her
developmental milestones.
B. Procedural History
1. Claim for Damages
On October 23, 2012, minor through her counsel filed with
the District a “CLAIM FOR DAMAGES TO PERSON OR
PROPERTY” (Claim). The Claim cited to a letter from plaintiffs’
counsel which recited the factual allegations above. Minor
named the District employees responsible for her injury as De
Mesa, the principal Salvador Rodriguez, and the principal’s
assistant Sandra Hernandez. In the letter attached to the Claim,
counsel asserted that she had been authorized to bring claims for
general negligence, medical negligence, battery, and intentional
infliction of emotional distress against the District, Rodriguez,
Hernandez, and De Mesa. The District did not act on the claim
within 45 days of presentation. (See Gov. Code, § 911.6, subd. (c)
[if governing body of local public entity does not act on claim
within 45 days, claim is deemed denied].)
2. Second Amended Complaint
On August 19, 2014, mother and minor filed their second
amended complaint against Hernandez, Rodriguez, De Mesa, and
the District.2 They alleged the following ten causes of action:
(1) minor against all defendants for negligence; (2) minor against
2 Hernandez and Rodriguez were subsequently dismissed
from the case. They are not parties to this appeal.
5
De Mesa and the District for medical negligence; (3) minor
against De Mesa, Rodriguez, and the District for battery;
(4) plaintiffs against all defendants for intentional infliction of
emotional distress; (5) mother against all defendants for
negligent infliction of emotional distress; (6) minor against
Hernandez, Rodriguez, and the District for aiding and abetting a
tort, namely, De Mesa’s battery and intentional infliction of
emotional distress against minor; (7) minor against the District
for harassment in an educational institution (Ed. Code, § 220);
(8) minor against all defendants for violation of federal civil
rights (42 U.S.C. § 1983); (9) minor against all defendants for
violation of the Unruh Civil Rights Act (Unruh Act; Civ. Code,
§ 51); and (10) minor against all defendants for violation of the
Ralph Civil Rights Act of 1976 (Ralph Act; Civ. Code, § 51.7).
On September 19, 2014, defendants demurred to the second
amended complaint. Defendants asserted, among other things,
that the fifth through tenth causes of action failed because
plaintiffs did not exhaust their administrative remedies and
failed to allege sufficient facts for the causes of action.
On December 2, 2014, the trial court issued its ruling,
sustaining Rodriguez’s, Hernandez’s, and the District’s demurrer.
The court sustained the demurrer, without leave to amend, as to
the fifth through tenth causes of action, finding that plaintiffs
had failed to exhaust their administrative remedies. The court
also sustained without leave to amend the demurrer to the third
cause of action, finding the three defendants could not be
vicariously liable for De Mesa’s conduct. For the fourth cause of
action, the court sustained the demurrer without leave to amend
for failure to state a claim.
6
As to defendant De Mesa, the trial court sustained her
demurrer as to the fifth, eighth, ninth, and tenth causes of action
for failure to exhaust administrative remedies. The court also
sustained without leave to amend her demurrer to the first cause
of action, finding plaintiffs had failed to allege a claim for general
negligence. The court sustained without leave to amend De
Mesa’s demurrer to the fourth cause of action for failure to state a
claim. The court overruled De Mesa’s demurrer to the second
cause of action.
3. Fourth Amended Complaint
On May 2, 2016, plaintiffs filed the operative fourth
amended complaint. Plaintiffs proceeded on four causes of action:
(1) minor against the District for negligence; (2) minor against
De Mesa and the District for medical negligence; (3) minor
against De Mesa for battery; and (4) mother against the District
for negligence under a bystander liability theory. The first cause
of action alleged that the District failed to adequately supervise
its agents and employees, which caused injury to minor. On
May 13, 2016, plaintiffs sought to dismiss their claims against
defendants Hernandez and Rodriguez, which dismissal was
entered on May 19, 2016.
On June 1, 2016, the District demurred to the fourth
amended complaint. On July 14, 2016, the trial court overruled
the demurrer.
7
4. Striking Expert Witness and First Cause of Action
On August 22, 2016, plaintiffs designated Marian B.
Stephens as an expert witness who would “offer opinions at trial
concerning the breach of the administrative policies, practices
and standard of care of [the District] and causation of [p]laintiffs’
physical, psychological, emotional, mental and related injuries
and damages resulting from the acts alleged in this matter.”
On September 9, 2016, the District filed an ex parte
application to strike Stephens as a witness.
On September 16, 2016, following argument, the trial court
granted the District’s motion.
On September 29, 2016, the District filed an ex parte
application for an order to dismiss or strike the first cause of
action, asserting that the trial court’s prior ruling indicated that
minor’s claim against the District was only under a vicarious
theory of liability, and therefore liability for negligence for failure
to supervise failed. On October 13, 2016, the trial court granted
the application and struck the first cause of action except to the
extent minor asserted a vicarious liability theory for De Mesa’s
conduct.
5. Code of Civil Procedure Section 998 Settlement
and Release of Claims
On August 31, 2017, defendants, pursuant to Code of Civil
Procedure section 998, offered to settle minor’s claims by paying
minor $350,000 in exchange for minor’s agreement to dismiss,
with prejudice, “those Claims . . . as set forth in the Fourth
Amendment Complaint ([s]econd and [t]hird [c]auses of
8
[a]ction)[.]” On September 14, 2017, minor filed notice of her
acceptance of defendants’ offer to compromise, stating that she
would file the requested dismissal upon receipt of the settlement
funds.3
On October 13, 2017, mother filed a petition seeking
approval of a compromise of claim, for a minor or a person with a
disability (Petition). In the Petition, mother stated that the
incident or accident at issue in the settlement occurred on
April 27, 2012, at 10:30 a.m. In the Petition, mother, as guardian
ad litem, stated that she “fully underst[ood] that if the
compromise proposed in this petition is approved by the court
and is consummated, the claimant will be forever barred from
seeking any further recovery of compensation from the settling
defendants named below even though the claimant’s injuries may
in the future appear to be more serious than they are now
thought to be.”
On November 17, 2017, the trial court issued an order
approving the Petition. The order provided that: “Upon receipt
of the full amount of the settlement sum approved by this order
and the deposit of funds, the petitioner is authorized and directed
to execute and deliver to the payer [defendants] a full, complete,
and final release and discharge of any and all claims and
demands of the claimant by reason of the accident or incident
described in the petition and the resultant injuries to the
claimant and a properly executed dismissal with prejudice.”
3 On September 6, 2017, defendants made an offer of
compromise pursuant to Code of Civil Procedure section 998 to
mother. Mother accepted; and, on September 15, 2017,
defendants and mother entered into a settlement for $15,000.
That settlement is not at issue on appeal.
9
In March 2018, defendants paid the settlement amounts.
On May 22, 2018, plaintiffs submitted a proposed
judgment, which stated that minor had settled the second and
third causes of action against defendants in the fourth amended
complaint and would “take nothing from defendants [the District
and De Mesa]” on their fourth through tenth causes of action in
the second amended complaint, and would also take nothing from
defendants the District and De Mesa on the first cause of action
in the fourth amended complaint.
The trial court requested clarification on the proposed
judgment; and, on July 2, 2018, plaintiffs filed a brief in support
of their request. Plaintiffs contended that they were entitled to
entry of their proposed judgment so that they could appeal from
the trial court’s prior dismissals of the causes of action that had
not been settled. Defendants objected to the proposed judgment
and requested a hearing.
On July 30, 2018, plaintiffs filed a motion for entry of
judgment, in which they raised the same arguments they raised
in their earlier brief. Defendants filed an opposition on
August 21, 2018.
On August 23, 2018, plaintiffs filed requests for dismissal
of the second, third, and fourth causes of action in the Fourth
Amended Complaint. On that same date, the clerk entered the
dismissals and plaintiffs again filed a proposed judgment.
On September 4, 2018, the trial court heard plaintiffs’
motion for entry of judgment. At the hearing, plaintiffs’ counsel
admitted that he had not filed or submitted a release of claims as
required by the court’s November 17, 2017, order, but stated that
he would do so.
10
On September 25, 2018, plaintiffs filed another proposed
judgment of dismissal. Defendants again objected, noting that
plaintiffs had still not provided them with the release required by
the November 17, 2017, order.
On October 4, 2018, plaintiffs filed a “Notice of Execution of
Release of All Claims” (Release). The Release provided: “[Minor]
hereby releases and forever discharges [the District] and De
Mesa from all injuries and harm suffered for the following events,
as alleged in paragraph 6 of the Petition. [¶] On 4/27/12 [minor]
had a seizure while at school at Mariposa Nabi PC. Despite
having both a prescription medication and a written physician’s
order to administer the medication to stop the seizure, [De Mesa]
refused to administer the medication and repeatedly slapped
[minor] across the face. [De Mesa] also forbade others to
administer the medication and refused to call for emergency
medical services.”4
6. Order of Dismissal
On October 30, 2018, the trial court issued an “Order of
Dismissal Re Settled Action.” The order stated: “This Court
finds that the claims and causes of action that were the subject of
earlier demurrers sustained without leave to amend, arise out of
the same facts, occurrence, and incident as the causes of action
that remained in this action as of the date of settlement, and all
of [p]laintiffs’ claims and causes of action, alleged at any time in
this action, have been settled and resolved by virtue of
[p]laintiffs’ filed dismissals with prejudice, and settlements.
4 This language is identical to the description of the incident
provided at paragraph 6 of the Petition.
11
Moreover, based in part on the maxim ‘That which ought to have
been done is to be regarded as done, in favor of him to whom, and
against him from whom, performance is due’ (Civil Code, § 3529)
this Court finds on the additional grounds of that release and
discharge that all of [minor’s] claims, and causes of action alleged
in this Action at any time have been released and discharged.
Accordingly, this Court hereby dismisses this action (to the
extent it has not been previously dismissed), in full with
prejudice, as fully and finally settled.”5
On December 28, 2018, plaintiffs timely filed their notice of
appeal.6
5 Minor argues that the trial court abused its discretion by
refusing to enter an appealable judgment, which prevented minor
from challenging the prior rulings on the demurrers. We reject
minor’s argument as the October 31, 2018, order of dismissal is
appealable. (Code Civ. Proc., § 581d; Estate of Redfield (2011)
193 Cal.App.4th 1526, 1533.) Thus, all the prior orders
sustaining demurrers without leave to amend are reviewable on
appeal. (Code Civ. Proc., § 906.)
6 Defendants contend that the appeal should be dismissed
under the appellate disentitlement doctrine. “Under the
disentitlement doctrine, a reviewing court has inherent power to
dismiss an appeal when the appealing party has refused to
comply with the orders of the trial court. [Citation.] ‘“Appellate
disentitlement ‘is not a jurisdictional doctrine, but a discretionary
tool that may be applied when the balance of the equitable
concerns make it a proper sanction.’ [Citation.]” [Citation.]’
[Citation.] The rule applies even if there is no formal
adjudication of contempt. [Citation.] The disentitlement doctrine
‘is particularly likely to be invoked where the appeal arises out of
the very order (or orders) the party has disobeyed.’ [Citation.]
Moreover, the merits of the appeal are irrelevant to the
12
III. DISCUSSION
A. Release
Minor contends that the trial court erred by finding that
the first cause of action in the fourth amended complaint (the
first cause of action) and the seventh through tenth causes of
action in the second amended complaint (seventh through tenth
causes of action) were discharged by the Release. In minor’s
view, her Release did not encompass these claims, which sought
redress for defendants’ conduct that predated the events at issue
in the Release.
1. Legal Authority
“A release is an instrument by which the signing party
(releasor) relinquishes claims or potential claims against one or
more persons (releasees) who might otherwise be subject to
liability to him. The existence of a valid release is a complete
defense to a tort action against the releasee.” (Rodriguez v. Oto
(2013) 212 Cal.App.4th 1020, 1026.) “Contract principles apply
when interpreting a release, and ‘normally the meaning of
contract language, including a release, is a legal question.’
[Citation.] ‘Where, as here, no conflicting parol evidence is
introduced concerning the interpretation of the document,
“construction of the instrument is a question of law, and the
application of the doctrine.” (Ironridge Global IV, Ltd. v.
ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265.)
Defendants assert minor, on numerous occasions, willfully
disobeyed the November 17, 2017, order by failing to submit a
release of claims. After balancing the equities, we decline to
dismiss the appeal on this ground.
13
appellate court will independently construe the writing.”’”
(Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351,
1356.)
2. Analysis
We conclude that the trial court did not err in dismissing
minor’s first and tenth causes of action. Minor’s first cause of
action alleged that the District had breached its duty to protect
her against personal injury or death. The fourth amended
complaint’s only allegations of personal injury to minor allegedly
occurred during the April 27, 2012, incident. Minor, in her
Release, agreed to release and discharge defendants from liability
for “all injuries and harm suffered for” the events on
April 27, 2012. Thus, the court, having taken judicial notice of
the Release, which served as a complete defense to the first cause
of action, did not err in dismissing this cause of action.7
We also conclude that the Release served as a complete
defense to minor’s tenth cause of action for violation of the Ralph
Act. “Under the Ralph Act, a plaintiff must establish the
defendant threatened or committed violent acts against the
plaintiff or their property, and a motivating reason for doing so
was a prohibited discriminatory motive, or that the defendant
aided, incited, or conspired in the denial of a protected right.”
7 The entire basis for minor’s challenge to the trial court’s
striking of her expert witness’s testimony is linked to her
argument that the court erred in dismissing her first cause of
action. Because we find the Release bars litigation of the first
cause of action, we need not further discuss minor’s arguments
concerning the court’s ruling on the expert witness.
14
(Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268,
1291.) Here, the only threatened or committed acts of violence
alleged by minor were the slaps that occurred during the
April 27, 2012, incident. Minor, however, released her claims for
this conduct and the court therefore correctly dismissed the cause
of action.
As to plaintiff’s seventh, eighth, and ninth causes of action,
we will assume for purposes of this appeal that the trial court
erred in concluding that the Release operated as a bar to these
causes of action. Nonetheless, even assuming the court’s
reasoning was incorrect, we conclude below that the court did not
err in dismissing these remaining causes of action on demurrer.
(Young v. Fish and Game Com. (2018) 24 Cal.App.5th 1178,
1192–1193 [“it is a settled appellate principle that if a judgment
is correct on any theory, the appellate court will affirm it
regardless of the trial court’s reasoning”].)
B. Review of Demurrer
1. Legal Principles
“In reviewing the sufficiency of a complaint against a
general demurrer, we are guided by long-settled rules. ‘We treat
the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially
noticed.’ (Serrano v. Priest (1971) 5 Cal.3d 584, 591 . . . .)
Further, we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context. (Speegle v.
Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 . . . .) When a
15
demurrer is sustained, we determine whether the complaint
states facts sufficient to constitute a cause of action. (See Hill v.
Miller (1966) 64 Cal.2d 757, 759 . . . .) 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. (Kilgore v.
Younger (1982) 30 Cal.3d 770, 781 . . . ; Cooper v. Leslie Salt Co.
(1969) 70 Cal.2d 627, 636 . . . .) The burden of proving such
reasonable possibility is squarely on the plaintiff. (Cooper v.
Leslie Salt Co., supra, [70 Cal.2d] at p. 636.)” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
2. Analysis
a. Seventh Cause of Action
Minor’s seventh cause of action alleged a violation of
Education Code section 220, harassment in an educational
institution. In order to prevail on such a claim, “a plaintiff must
show: (1) he or she suffered ‘severe, pervasive and offensive[’]
harassment that effectively deprived plaintiff of the right of equal
access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the
school district acted with ‘deliberate indifference’ in the face of
such knowledge. (Donovan v. Poway Unified School Dist. (2008)
167 Cal.App.4th 567, 579.)
Here, minor alleged that she “was subjected to harassment
at the school by . . . DE MESA because of her disability and
medical condition, as described more fully above.” But the only
16
“harassment” to which the second amended complaint referred
was De Mesa’s reporting of mother to child protective services as
retaliation for mother’s complaints. Mother does not allege how
she knew that De Mesa filed such a report. In any event, any
such harassment would have been suffered by mother, not minor.
Further, even if we were to assume that minor’s allegation that
the school considered her a “problem” was sufficient to allege
harassment, minor alleged that it was mother, not minor, to
whom “it seemed” defendants considered minor a problem. And,
as we discussed, mother does not assert any error on her own
behalf on appeal. Finally, minor did not allege that defendants’
harassment of mother was so severe that it deprived minor of
equal access to educational benefits. Indeed, there is no
allegation that minor was unable to access her educational
benefits before the April 27, 2012, incident, which was the subject
of the Release. Thus, minor’s seventh cause of action fails for
insufficiently stating a claim for relief.
b. Eighth Cause of Action
In her eighth cause of action, minor alleged a violation of
her federal civil rights. “[Title 42 United States Code] [s]ection
1983 can . . . be used to enforce federal statutes. [Citation.] For a
statutory provision to be privately enforceable, . . . it must create
an individual right.” (Henry A. v. Willden (9th Cir. 2012) 678
F.3d 991, 1005.) Minor alleged that defendants violated her
rights under the Individuals with Disabilities Education Act
(IDEA; 20 U.S.C. § 1400 et seq.). Specifically, minor alleged that
De Mesa, who was acting under color of authority of the District,
violated minor’s “right to access to educational services, ensured
17
to children with disabilities by the federal [IDEA]. [¶] [Minor]
was harmed by the battery, intentional infliction of emotional
distress and harassment alleged more fully above, and that
conduct was a substantial factor in causing [minor’s] harm.”
Minor, however, settled her claims for battery; does not raise any
argument on appeal regarding an intentional infliction of
emotional harm; and, as we discuss above, did not allege that
De Mesa harassed her.
Moreover, minor did not sufficiently allege that she was
denied a right to educational services. The IDEA provides
individuals with a disability the right to “‘a free appropriate
public education’” that includes “‘related services’” designed to
meet their needs. (Los Angeles Unified School Dist. v. Garcia
(2013) 58 Cal.4th 175, 183.) “‘Related services’ include social
work services, counseling services, rehabilitation counseling, and
medical services as may be required to assist a child with a
disability to benefit from special education.” (California School
Bds. Assn. v. Brown (2011) 192 Cal.App.4th 1507, 1514.) Minor
did not allege that she was denied an education. And, the only
“related services” minor alleged being denied were the medical
services she was denied during the April 27, 2012, incident. But,
as we discuss above, minor released her ability to recover for any
injuries sustained on that date. Minor’s eighth cause of action
fails for insufficiently stating a claim for relief.
c. Ninth Cause of Action
Minor’s ninth cause of action alleged a violation of the
Unruh Act, which proscribes discrimination by business
establishments based on protected status, including disability
18
and medical condition. (See Civ. Code, § 51, subd. (b); Koebke v.
Bernardo Heights Country Club (2005) 36 Cal.4th 824, 839.)8
Minor alleged: “Defendants denied [minor] full and equal
advantages/facilities/privileges/services because of her
disability/medical condition, as alleged more fully above. [¶] . . .
The motivating reason for defendants’ conduct was their/its
perception of [minor’s] medical condition/seizure disorder as
making her a difficult or problematic student and [minor’s]
medical condition/seizure disorder was a motivating reason for
defendants’ conduct, as alleged more fully above. [¶] [Minor] was
harmed and defendants’ conduct was a substantial factor in
causing [minor’s] harm in an amount according to proof at trial.
[¶] [The District] is vicariously liable for the acts and omissions
of its employees and authorized agents . . . .”
Here, the only incident of unequal treatment alleged in the
second amended complaint occurred during the April 27, 2012,
incident and liability for any injury from that incident was barred
by the Release. The trial court therefore did not err by
sustaining the demurrer to this cause of action.9
8 Our Supreme Court is currently reviewing whether a public
school district is a “business establishment” for purposes of the
Unruh Act. (See Brennon B. v. Superior Court (2020) 57
Cal.App.5th 367, 369, review granted Feb. 24, 2021, S266254.)
For purposes of this appeal, we assume without deciding that a
public school district is a business establishment.
9 On appeal, minor asserts that the court should have
granted leave to amend. But neither of the two brief paragraphs
she devotes to this argument explains how minor could amend
her complaint to state viable claims. Thus, she has waived that
19
IV. DISPOSITION
The order of dismissal is affirmed. Defendants the Los
Angeles Unified School District and Maria De Mesa are entitled
to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
issue on appeal. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.)
20