Tiffany Mcbryde vs. Riverside School, Inc.

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

Tentative Ruling

Defendant Riverside School, Inc. dba Brookfield School’s (“Defendant” or “Brookfield”) demurrer to Plaintiffs Tiffany McBryde (“McBryde”), Hanee Peterman (“Peterman”), and N.P., a minor by and through her Guardian ad litem, Tiffany McBryde’s (collectively, “Plaintiffs”) First Amended Complaint (“FAC”) is ruled upon as follows.

Allegations in FAC

McBryde and Peterman are the parents of N.P. In 2018, McBryde and Peterman enrolled N.P. in Brookfield while N.P. was in preschool. Brookfield is a private, secular, independent school operating in Sacramento and serving students from grades pre-kindergarten to 8th grade. Plaintiffs allege that Brookfield receives federal financial assistance as defined by Title VI of the Civil Rights Act of 1964 through its status as a 501(c)(3) tax-exempt nonprofit corporation, and thus Brookfield is obligated to comply with Title VI.

Additionally, Brookfield promotes itself as a diverse community with a zero-tolerance policy for foul language, hate speech, discrimination, and bullying. However, Plaintiffs allege that N.P experienced harassment, discrimination, and bullying while attending Brookfield on the basis of her race and religion. N.P. is African- American. McBryde and Peterman practice a Christian religion that prohibits pledging allegiance to national flags on the basis that such acts are blasphemous and idolatrous.

McBryde and Peterman have raised N.P. to adhere to this religious principle.

Defendant maintains a Handbook that sets forth the common understanding of Defendant’s rules. The Handbook also contains a “Zero Tolerance Policy” related to discrimination, hate speech, bullying, and other types of unwelcomed behavior. (FAC, ¶ 22.) The Zero Tolerance Policy states that individuals “who engage in such activities are subject to immediate suspension and/or expulsion

In June of 2018, McBryde was walking N.P. to school when they encountered an employee of Defendant loudly playing explicit music on school ground. The song includes multiple uses of the f-word and includes lyrics about “‘exploring’ a celebrity’s vagina. (FAC, ¶ 26.) Additionally, the song uses the n-word several times. Plaintiffs allege that the incident traumatized N.P. McBryde informed Defendant’s Pre-School Director, Janie Marquez, about the incident. Ms. Marquez stated that she would discuss the incident with the employee playing the music. Defendant did nothing further in relation to the incident.

In 2018-2019, N.P. was singled out and mistreated by her teacher, who refused to provide N.P. with educational materials or denied N.P. access to them, disparaged N.P.’s intellect, and baselessly mocked N.P. and other Black students in the class “as ‘bad kids who made poor choices.’” (FAC, ¶ 27.)

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

In September of 2020, N.P. told McBryde that a classmate had bullied her on the basis of her race on two occasions, calling N.P. a “‘stinky black’ or ‘an ugly black.’” (FAC, ¶ 28.) Plaintiffs informed Defendant of the incidents but no action was taken against the student. Specifically, McBryde informed Defendant’s principal, Jo Gonsalves, and director, Erik Boice, about the incident and expressed her concerns that N.P. was experiencing racial bias. Ms. Gonsalves stated that she would investigate the matter, but Defendant ultimately concluded that the student’s remarks towards N.P. were “‘innocent remarks’” and “that it would be unjust to punish the student who bullied N.P., because [the student] ‘comes from a good family and had half-Black cousins.’” (FAC, ¶ 29.)

Plaintiffs allege that N.P.’s teacher had informed parents that they were welcome to observe Zoom lessons. Following the incidents of racial bullying towards N.P., McBryde decided to observe N.P.’s Zoom lesson about diversity and inclusion. However, Defendant scheduled a conference “to complain about the frequency and impact of McBryde’s observations,” essentially directing McBryde not to communicate with N.P.’s teacher. (FAC, ¶ 30.) Plaintiffs are unaware of other parents who were told not to communicate with their child’s teachers.

Regarding Plaintiffs’ religious beliefs and practices, Plaintiffs allege that during the application and enrollment process, McBryde and Peterson informed Brookfield of their religious beliefs and their practice relating to the pledge of allegiance. Brookfield indicated that N.P. would be permitted sit quietly and pray or otherwise “center herself” during the pledge. (FAC, ¶ 24.) However, in December of 2020, Peterman learned that N.P.’s teacher was requiring her to stand and state the pledge. Further, N.P.’s teacher criticized N.P. for not wanting to stand and state the pledge and called the then five-year-old N.P. “disrespectful.” (FAC, ¶ 31.)

Plaintiffs allege, “By direct contrast to the way it handled racist taunts and bullying by N.P.’s schoolmates, Defendant Brookfield demonstrated racial and religious animus by applying its uniform policy in a way that singled out N.P. McBryde complained about the treatment of N.P. to Defendant Brookfield, but it responded with more unjustified disciplinary actions against N.P.” (FAC, ¶ 32.)

In April of 2021, Defendant rescinded N.P.’s enrollment for the following school year. This occurred after Plaintiffs had accepted Defendant’s offer of enrollment and paid re-enrollment fees.

Plaintiffs further allege, “On information and belief, 50% of Brookfield School enrollees leave the school between kindergarten and first grade. Eighty percent of those who are not welcomed back, or opt to leave, are children of color.” (FAC, ¶ 34.) Additionally, Plaintiffs allege, “On information and belief, Brookfield has terminated staff members as retaliation for whistleblowing, including the staff member who reported some of the bullying Plaintiff N.P. experienced to her parents.” (FAC, ¶ 35.)

The FAC includes 13 causes of action: (1) intentional discrimination under 42 U.S.C. § 1981; (2)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

intentional discrimination under 42 U.S.C. § 2000d; (3) hostile environment claim under 42 U.S.C. § 1981; (4) hostile environment claim under 42 U.S.C. § 2000d; (5) retaliation under 42 U.S.C. § 1981; (6) retaliation under 42 U.S.C. § 2000d; (7) violation of the Unruh Civil Rights Act; (8) negligence; (9) negligent hiring/retention/supervision; (10) intentional infliction of emotional distress (“IIED”); (11) negligent infliction of emotional distress (“NIED”); (12) breach of contract; and (13) breach of the covenant of good faith and fair dealing.

Defendant demurs to the first, second, third, fourth, fifth, sixth, seventh, ninth, tenth, twelfth, and thirteenth causes of action on various grounds discussed further below. Defendant does not challenge the eighth or eleventh causes of action.

Discussion

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616 n.2.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v.

Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) '[Courts] are required to construe the complaint liberally to determine whether a cause of action has been

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

stated, given the assumed truth of the facts pleaded.' (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

First Cause of Action – Intentional Discrimination Under 42 U.S.C. § 1981

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

(42 U.S.C. § 1981(a).)

Claims for discrimination under section 1981 are “limited to claims of intentional discrimination.” (Gay v. Waiters’ & Dairy Lunchmen’s Union (1982) 694 F.2d 531, 536.) A section 1981 claim “requires the plaintiff to establish: ‘(1) he or she is a member of a racial minority; (2) the defendant intended to discriminate against plaintiff on the basis of race . . .; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., the right to make and enforce contracts, sue and be sued, give evidence, etc.).’” (Blackshire v.

Cnty. of Yuba (E.D. Cal. 2023) 648 F.Supp.3d 1221, 1232.) Additionally, to establish a claim of intentional discrimination under section 1981, “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” (Comcast Corp. v. Nat’l Ass’n of African-American Owned Media (2020) 140 S.Ct. 1009, 1019.)

“[A] plaintiff may establish a § 1981 claim under three alternate theories of discrimination: disparate treatment, hostile work environment, or retaliation.” (Co v. Wal-Mart Stores, Inc. (C.D. Cal., Aug. 18, 2023) No. 2:23-cv-03822-AB-E, 2023 U.S. Dist. LEXIS 145550, at *12.)

Under this cause of action, Plaintiffs allege:

“Defendants, through the racially discriminatory policies and practices at Brookfield—to wit, the refusal to enforce its ‘Zero Tolerance Policy’ to prevent racial bullying against N.P., allowing the diffusion of music with racial slurs on campus grounds, and an unequal and overzealous application of uniform policies exclusively against N.P.—intentionally denied Plaintiffs the benefit of equal treatment with respect to their enrollment agreement, on the basis of N.P. and her parents’ race and religious belief.”

(FAC, ¶ 38.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

Defendant contends that Plaintiffs have failed to allege facts showing that N.P. would not have suffered the loss of some legally protected right in a contract but for her race. Defendant further contends that Plaintiffs fail to allege intentional discrimination.

The Court finds Plaintiffs’ allegations sufficient to state a claim for racial discrimination under section 1981. Among other things, Plaintiffs allege that N.P.’s teacher in 2018-2019 “refused to provide N.P. with educational materials, or denied her access to them, disparaged N.P.’s intellect, and baselessly mocked N.P. and the other Black students [in N.P.’s class] as ‘bad kids who made poor choices.’” (FAC, ¶ 27.) Plaintiffs also allege that Defendant did not follow its own policies when a classmate of N.P.’s referred to N.P. as “a ‘stinky black’ or ‘an ugly black,’” (FAC ¶ 28), but instead concluded that the student made “‘innocent remarks’” (FAC, ¶ 29). Plaintiffs then allege that Defendant intentionally discriminated against them by rescinding N.P.’s enrollment offer.

Accordingly, Defendant’s demurrer to Plaintiffs’ first cause of action is OVERRULED.

Third Cause of Action – Hostile Environment Under 42 U.S.C. § 1981

“The Ninth Circuit has applied the three-part framework set out by the U.S. Department of Education to analyze hostile environment claims under Title VI. [Citation.] According to the Department of Education, a school district violates Title VI when (1) there is a racially hostile environment; (2) the district had notice of the problem; and (3) the district ‘failed to respond adequately to redress the racially hostile environment.’” (T.V. v. Sacramento City Unified Sch. Dist. (E.D. Cal., Feb. 2, 2016) No. 2:15-cv-00889-KJM-AC, 2016 U.S.

Dist. LEXIS 12451, at *14-15, citing Monteiro v. Tempe Union High Sch. Dist. (9th Cir. 1998) 158 F.3d 1022, 1033.) Under this analysis, “a ‘racially hostile environment’ [is] one in which racial harassment is ‘severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileged provided by the recipient.’” (Monteiro, supra, 158 F.3d at p. 1033.) “Racial harassment creates a hostile environment if it is sufficiently severe that it would interfere with the educational program of a reasonable person of the same age and race as the victim.” (Ibid.)

Defendant contends that Plaintiffs fail to allege sufficient facts to show severe or pervasive harassment, fail to allege N.P. was mistreated because of her race, and fail to allege that any additional incidents occurred after Defendant investigated Plaintiffs’ complaints.

The Court finds Plaintiffs to have sufficiently alleged a cause of action for hostile environment. As noted above, Plaintiffs allege that N.P. and other Black students were singled out by their teacher due to their race and that N.P. was subject to racial taunts from a classmate but Defendant failed to enforce its policies in investigating the matter. Given N.P.’s age during this time (age 2 to age 5), these allegations are sufficient to establish a hostile environment that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

interfered with N.P.’s educational program.

Accordingly, Defendant’s demurrer to Plaintiffs’ third cause of action is OVERRULED.

Fifth Cause of Action – Retaliation Under 42 U.S.C. § 1981

“A section 1981 retaliation claim is analyzed under the framework used for a claim for retaliation under Title VII. [Citation.] A prima facie case of retaliation requires proof of the following elements: (1) plaintiff engaged in activity protected under Title VII, such as the filing of a complaint alleging racial discrimination, (2) he suffered adverse action; and (3) a causal link exists between the two events. [Citations.] In order to prevail on the claim, [a] plaintiff would additionally have to show facts allowing an inference that [the] defendant was aware [the] plaintiff engaged in protected activity.”

(Tapia v. Boeing Co. (E.D. Cal., Mar. 12, 2021) No. 2:20-cv-02218-TLN-CKD PS, 2020 U.S. Dist. LEXIS 47060, at *16-17.)

Making an informal complaint may be a protected activity. (Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1240, fn. 3.)

Defendant contends that Plaintiffs fail to allege a protected activity or an adverse action. Specifically, Defendant contends, “Plaintiffs have not and cannot allege that BROOKFIELD rescinded N.P.’s enrollments in retaliation for complaints of racial discrimination.” (Defendant’s MPA, pp. 11:28-12:1.) However, this is contradicted by the FAC, where Plaintiffs allege that Defendant retaliated against N.P. by, among other things, “rescinding her enrollment in school.” (FAC, ¶ 62.) Moreover, Defendant has not shown that Plaintiffs’ allegations of protected activity are insufficient.

Plaintiffs allege that they complained to Defendant multiple times about incidents of N.P. being mistreated due to her race. Plaintiffs also allege that McBryde sat in on N.P.’s Zoom lessons on diversity and inclusion following these incidents, and in response Defendant suggested that she should not sit in on the lessons.

Accordingly, Defendant’s demurrer to Plaintiffs’ fifth cause of action is OVERRULED.

Second, Fourth, and Sixth Causes of Action – Intentional Discrimination, Hostile Environment, and Retaliation Under 42 U.S.C. § 2000d

Section 2000d provides:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

Defendant contends that Plaintiffs have failed to allege that Defendant received federal financial assistance under section 2000d. In the FAC, Plaintiffs specifically allege the following related to federal financial assistance:

“Defendant Brookfield is the recipient of federal financial assistance as defined by Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d. Specifically, Defendant Brookfield is a 501(c)(3) tax-exempt nonprofit corporation, and that confers a federal financial benefit that obligates Brookfield to comply with Title VI.”

(FAC, ¶ 18.)

Plaintiffs follow this allegation with citations to various cases purported to hold that a tax exemption constitutes federal financial assistance.

“The Ninth Circuit has not yet addressed whether tax-exempt status confers ‘federal financial assistance’ under Title IX.” (E.H. v. Valley Christian Acad. (C.D. Cal. 2022) 616 F.Supp.3d 1040, 1050.) The court in E.H. was faced with conflicting case law from different circuits on this issue, and ultimately concluded:

“Absent any controlling precedent nor ‘strong legislative history to the contrary,’ the Court finds that ‘the plain purpose of the statute is controlling. Here that purpose is clearly to eliminate discrimination in programs or activities benefitting from federal financial assistance. Distinctions as to the method of distribution of federal funds or their equivalent seem beside the point, as the regulations issued by the various agencies make apparent.’ [Citation.] Accordingly, the Court holds that [the defendant’s] tax-exempt status confers a federal financial benefit that obligates compliance with Title IX.”

(Ibid.)

Defendant contends that the court in E.H. concluded that the plaintiff had alleged federal financial assistance because she alleged the defendants had received a federal paycheck protection program loan (“PPP loan”), not due to the defendant school’s tax-exempt status. While it is true that the E.H. court found the PPP loan constituted federal financial assistance, it is clear from the passage quoted above that the court also found the tax-exempt status to be sufficient. The court’s conclusion was not at all reliant on the allegations related to the PPP loan. Therefore, Plaintiffs’ allegations that Defendant received federal financial assistance based on its tax-exempt status are sufficient.

Defendant also argues that Plaintiffs’ allegations to support their second, fourth, and sixth causes of action are insufficient. Defendant’s arguments are substantively similar to the arguments

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

against Plaintiffs’ first, third, and fifth causes of action.

Accordingly, Defendant’s demurrer is OVERRULED as to Plaintiffs’ second, fourth, and sixth causes of action.

Seventh Cause of Action – Violation of Unruh Civil Rights Act

“The Unruh Civil Rights Act ‘prohibits intentional discrimination in access to public accommodations.’ [Citation.] The Unruh Civil Rights Act only applies to ‘business establishments’ that are ‘generally open to the public’ [citation], and mandates that those establishments ‘serve all persons without arbitrary discrimination.’ [Citation.]” (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149.) The California Supreme Court has held that the Unruh Civil Rights Act does not apply to public schools or public school districts. (Brennon B. v.

Superior Court (2022) 13 Cal.5th 662, 679.) Similarly, private religious schools are not covered under the Unruh Civil Rights Act. (Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828, 839.) However, a nonprofit entity may constitute a business establishment. (See O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 796 [nonprofit homeowners association]; see also Isbister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72, 82 [nonprofit recreational club]; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 621-622 [nonprofit golf and country club].)

The FAC alleges that Defendant “is a private, secular Prekindergarten-8 independent school operating in Sacramento, California.” (FAC, ¶ 17.) Defendant contends that under Brennon B. and Doe v. California Lutheran High School Assn., the Unruh Civil Rights Act does not apply to it because it is not a business establishment. However, Defendant acknowledges that “there is no case law on point with regard to private secular schools,” but urges the Court to follow the reasoning of cases involving public schools and private religious schools. (Defendant’s MPA, p. 18:4-9.) The Court declines to reach such a conclusion at the pleading stage. Whether Defendant is a business establishment, like the nonprofit entities in O’Connor, Isbister, and Warfield, will turn on the facts learned during discovery.

Accordingly, Defendant’s demurrer is OVERRULED as to Plaintiffs’ seventh cause of action.

Ninth Cause of Action – Negligent Hiring/Retention/Supervision

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring [or retaining] the employee created a particular risk or hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

Defendant contends that Plaintiffs fail to allege facts that Defendant’s employees were incompetent or unfit or that Defendant knew or should have known that the employees were incompetent or unfit. Plaintiffs contend that the FAC sufficiently identifies three employees who were aware of discriminatory and harassing behavior director towards N.P. but failed to take steps to protect N.P. The Court agrees that these allegations are sufficient, and Defendant’s demurrer fails to show otherwise.

Accordingly, Defendant’s demurrer is OVERRULED as to Plaintiffs’ ninth cause of action.

Tenth Cause of Action – IIED

Plaintiffs indicate in their opposition that they “do not oppose dismissal of their cause of action for intentional infliction of emotional distress.” (Plaintiffs’ MPA, p. 11:9, fn. 5.) Accordingly, Defendant’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Plaintiffs’ tenth cause of action.

Twelfth Cause of Action – Breach of Contract

“The elements of breach of contract are ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.’” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 70.)

Plaintiffs allege that they “entered into the Financial Aid Tuition Agreement with Defendant,” and that they “relied upon Defendant’s statements in the Handbook, which were incorporated into Plaintiff’s agreement with the school by the parties’ conduct.” (FAC, ¶¶ 106-107.) Plaintiffs further allege that Defendant breached the agreement “by not enforcing its Zero Tolerance Policy against hate speech or any discriminatory actions on the part of students, teacher, or parents regarding race or religion.” (FAC, ¶ 109.) Defendant contends that Plaintiffs fail to sufficiently allege the existence of an agreement not to discriminate against or harass students/parents.

Plaintiffs have also submitted the Tuition Agreement to the FAC and point to language contained therein to support their allegations that the Handbook was incorporated into the Tuition Agreement. Specifically, the Tuition Agreement states that the parents have “fully investigated the school’s curriculum, program, and environment, [and] accept the same.” (FAC, Exh. 3, p. 1.) The Tuition Agreement also refers to “the school’s rules of conduct” (id. at p. 2) and includes a promise by the parents that they will “abide by all of the school’s rules and regulations” (id. at p. 3).

The Court finds these allegations sufficient at the pleading stage to show the existence of an agreement. Plaintiffs allege that the Handbook sets forth Defendant’s rules, that the Handbook

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

contains the Zero Tolerance Policy, and that the Tuition Agreement refers to the Handbook. The Court declines to determine whether the Handbook was sufficiently incorporated into the Tuition Agreement at the pleading stage.

Accordingly, Defendant’s demurrer is OVERRULED as to Plaintiffs’ twelfth cause of action.

Thirteenth Cause of Action – Breach of Covenant of Good Faith and Fair Dealing

“The implied covenant of good faith and fair dealing is a contractual relationship and does not give rise to an independent duty of care. Rather, ‘“[t]he implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.”’ (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 206.)

“[A]llegations which assert such a claim [for breach of the implied covenant] must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.”

(Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

“If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” (Ibid.)

Plaintiffs contend that this cause of action is an alternative cause of action in the event the Handbook is not incorporated into the Tuition Agreement, as Plaintiffs contend that in that scenario, Defendant could be liable for refusing to act in good faith by refusing to comply with its own policies, thereby depriving Plaintiffs from receiving the benefit of their bargain obtained via the Tuition Agreement.

Similar to the breach of contract cause of action, the Court declines to make a factual determination at the pleading stage. Accordingly, Defendant’s demurrer is OVERRULED as to Plaintiffs’ thirteenth cause of action.

Disposition

As discussed above, Defendant’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

to Plaintiffs’ tenth cause of action. The remainder of Defendant’s demurrer is OVERRULED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336650-CU-NP-GDS: Tiffany Mcbryde vs. Riverside School, Inc. 05/30/2024 Hearing on Demurrer to Plaintiffs' First Amended Complaint in Department 54

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.