PHYLLIS P. v. Superior Court

Opinion

ASHBY, J.

Petitioner Phyllis P. seeks a writ of mandate directing the respondent court to reinstate her causes of action for negligent and intentional infliction of emotional distress, arising out of the sexual assault and rape of her daughter by a fellow student at the Sycamore School in Claremont.

1

We hold that the respondent court erred in sustaining real parties’ (hereinafter defendants) demurrer without leave to amend, and accordingly direct the issuance of a peremptory writ of mandate.

[1195]

Petitioner is the mother of Ciera P., who at the time of the incidents giving rise to this case was eight years old. Petitioner alleges that from March to June 1984 Ciera was sexually molested a number of times by a 13-year-old male student named Dario R. The acts were committed en route to school and on school premises. On or about April 25,1984, Ciera reported these incidents to her teacher (defendant Mary Mazmanian) as “playing games.” Mazmanian consulted with the school psychologist (defendant Jean Album) and together they decided not to notify petitioner of the incidents. Ciera was “counseled” by the school psychologist, Album, but petitioner was not notified of the counseling. During the same period of time, the school principal (defendant Charles Freitas) learned of the incidents. He called Dario into his office and told him to stop, and that if he continued to “bother” Ciera his parents would be notified. Freitas also failed to notify petitioner of the incidents.

Petitioner theorizes that had she been informed of the earlier sexual assaults she could have taken precautionary measures to prevent the rape which ultimately occurred. As a result of defendants’ failure to notify her of these assaults, she has suffered severe emotional distress, both because of the rape and because she has had to observe the “physiological and psychological deterioration of her daughter from a happy, well adjusted, above average student, to a morose, sullen, despondent and withdrawn, near failing student over a period of thirteen weeks.”

Defendants, as persons standing in loco parentis to Ciera, are alleged to have breached a number of duties owed to petitioner, including the duty to properly supervise Dario both on the school grounds and en route to and from school, the duty to notify petitioner of the repeated sexual assaults, the duty to report such assaults to a child protective agency (which presumably would have notified petitioner), and the duty to obtain petitioner’s written consent before placing Ciera “in a program of psychological treatment dealing with matters of a sensitive sexual nature.” These various duties are alleged to have arisen under numerous provisions of the Education Code, the Penal Code, and case law