Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C06-01798
NEEDHAM, J.
Plaintiff Matthew Orterry appeals from a judgment of dismissal entered in favor of defendants Mt. Diablo Unified School District (District), Don Paulsen (Paulsen) and Ronald Miller (Miller) after the trial court sustained their general demurrers without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) He contends his first amended complaint adequately stated causes of action that arose when he was erroneously placed under a Welfare and Institutions Code section 5150 hold. We affirm in part and reverse in part.
Under Welfare and Institutions Code section 5150, a peace officer or specified mental health professional may take a person into custody when there is probable cause to believe that person, as a result of a mental disorder, is a danger to himself or others, or is gravely disabled. Custody must be in a designated mental health facility and may not exceed 72 hours. (City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933, 936.) We sometimes refer to this procedure as a “5150 hold” or a “5150.”
Background
After serving the requisite tort claims under Government Code section 910 et seq., plaintiff filed suit against the District, Paulsen, Miller, the City of Concord Police Department, and Concord Police Officer Nancy Vedder (Officer Vedder). The first amended complaint alleged the following facts:
The police department and Vedder are not parties to this appeal.
Plaintiff suffers from bipolar disorder and epilepsy. He was a student at Concord High School and received special education services from District pursuant to the federal Individuals with Disabilities in Education Improvement Act. (20 U.S.C. § 1400, et seq.) His individual education plan included a behavioral support plan under which he is allowed “cool down time” when he becomes angry or upset as a result of his disabilities. Plaintiff worked at the student store at the school.
On September 23, 2005, plaintiff was told while attending a special day class that he could not change his work schedule at the student store so he could join some friends for lunch. He reacted by touching things on another person’s desk, and was told by the teacher and a class assistant that this behavior was not acceptable. Plaintiff did not respond, and Paulsen, the vice-principal of the school, came to the classroom. Paulsen knew of plaintiff’s disabilities and had intervened in his behavioral problems on behalf of District.
Officer Vedder was the campus police officer assigned to the school. She entered the classroom and asked plaintiff why he was “acting up” and “being bad.” Miller, the principal of the school, came to the classroom and, along with Paulsen, asked plaintiff to go to the school office. Plaintiff did not respond, and everyone left the room except plaintiff and his two class assistants so that plaintiff could “cool down.”
Plaintiff then left the classroom and walked toward the school parking lot where students wait for their buses. He believed it was a break period and wished to calm down. Miller was informed that plaintiff had left his classroom, and he asked Officer Vedder to “go after” plaintiff. He told her that plaintiff had bipolar disorder and epilepsy, as well as a history of getting on buses without permission. Plaintiff, in fact, had never gotten on a bus without permission.
Officer Vedder approached plaintiff as he was walking and grabbed his wrist, twisting it behind his back. Two campus supervisors employed by District approached plaintiff, and one of them stepped on his shoe and ordered him to sit down. When plaintiff attempted to walk away, a campus supervisor grabbed his arm, twisted it behind his back and then pushed plaintiff face down onto a police car. Vedder and the supervisors attempted unsuccessfully to push plaintiff into the police car, at which point Vedder radioed for another officer and an ambulance, stating that there was a possible 5150 situation. Plaintiff became quiet and compliant after the ambulance arrived, but he was strapped into a gurney and taken to the Contra Costa Regional Medical Center. He was discharged by a psychiatrist there, who reported that there were “zero” 5150 issues.
Based on these factual allegations, the first amended complaint set forth causes of action against District for violations of the Unruh and Bane Acts (Civ. Code, §§ 51 et. seq., 52.1) (first claim for relief), violation of Welfare and Institutions Code section 5150 (second claim for relief), violation of Welfare and Institutions Code section 5150.05 (third claim for relief), false imprisonment (fourth claim for relief), battery (fifth claim for relief), negligence (sixth claim for relief), negligent infliction of emotional distress (seventh claim for relief) and intentional infliction of emotional distress (eighth claim for relief). Paulsen and Miller were named as individual defendants in all but the Unruh/Bane, false imprisonment and battery causes of action.
Welfare and Institutions Code section 5150.05, subdivision (a) requires the person instituting a 5150 hold to consider available information about the history of the detainee’s mental disorder when available. Section 5150.05, subdivision (c) provides, “If the probable cause in subdivision (a) is based on the statement of a person other than one authorized to take the person into custody pursuant to Section 5150 . . . the person making the statement shall be liable in a civil action for intentionally giving any statement that he or she knows to be false.”
District, Paulsen and Miller filed separate demurrers to the first amended complaint. The trial court sustained the demurrers without leave to amend, and judgment was entered in favor of the three demurring defendants.
Standard of Review
Two standards are employed to review an order sustaining a demurrer without leave to amend. First, we review the complaint de novo to determine whether it alleged sufficient facts to state a cause of action. (Heritage Oaks Partners v. First American Title Ins. Co. (2007) 155 Cal.App.4th 339, 344.) We then apply an abuse of discretion standard to determine whether there is a reasonable possibility that the defects in the complaint could be cured by amendment. (Ibid.)
Irrespective of the labels attached to the causes of action, we examine the factual allegations to determine whether they state a claim under any available legal theory. (Ellenberger v. Espinoza (1994) 30 Cal.App.4th 943, 947.) As with any challenge to the sufficiency of the pleadings, we review the trial court’s result, not its reasoning, and will affirm if the order is correct on any theory. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 22; Economic Empowerment Foundation v. Quackenbush (1997) 57 Cal.App.4th 677, 692, fn. 13.)
Discussion
I. Demurrer of Vice-Principal Paulsen
The first amended complaint states causes of action against vice-principal Paulsen for violation of Welfare and Institutions Code sections 5150 and 5150.05, negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. Each of these claims is based on the detention and allegedly unlawful 5150 hold that was placed on plaintiff by Officer Vedder. The trial court sustained Paulsen’s demurrer without leave to amend, citing the statutory duty of students to submit to the authority of their teachers (Ed. Code, § 48908 [“All pupils shall comply with the regulations, pursue the required course of study, and submit to the authority of the teachers of the schools”]) and the school’s right to supervise and discipline students (In re Randy G. (2001) 26 Cal.4th 556).
The trial court properly concluded that under the facts alleged in the first amended complaint, Paulsen did no more than exercise his statutory right to supervise plaintiff. His conduct was limited to coming to the classroom where plaintiff first acted out and trying to engage him. When this failed, Paulsen left the room. There is no assertion that Paulsen ever reinitiated contact with plaintiff on the day in question or committed any other act that would give rise to liability.
Although the first amended complaint attempts to impute liability to Paulsen based on the detention and 5150 hold placed on plaintiff by Officer Vedder, it describes no factual nexus between Paulsen and the allegedly illegal detention and hold. The first amended complaint did not allege that Paulsen was informed when plaintiff left the classroom, that he conferred with principal Miller before Miller called Vedder and instructed her to pursue plaintiff, that Paulsen himself spoke to Vedder about plaintiff, or that Paulsen did anything else arguably leading to Vedder’s institution of a 5150 hold against plaintiff. Nor do the alleged facts support the conclusion that Paulsen was somehow vicariously liable for the statements made to Vedder by Miller, who was Paulsen’s superior. (See Govt. Code, § 820.8 [“Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person”].) Paulsen’s demurrer was properly sustained.
II. Demurrer of Principal Miller
The first amended complaint asserted the same causes of action against principal Miller as it did against vice-principal Paulsen, each of which arose from the 5150 hold: violations of Welfare and Institutions Code sections 5150 and 5150.05, negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. The trial court sustained Miller’s demurrer without leave to amend, citing, as it did with Paulsen’s demurrer, a student’s duty to submit to the authority of a teacher and the school’s right to supervise and discipline students. (Ed. Code, § 48908; In re Randy G., supra, 26 Cal.4th 556.)
Miller argues that the trial court’s ruling was correct because school officials are immune from liability arising from discretionary acts of discipline. He relies on Government Code section 820.2, which provides, “Except 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.” Miller further contends that since it is not alleged that he personally instituted the 5150 hold, he is immune from liability under Government Code section 820.8: “Except 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.”
The first amended complaint alleged that plaintiff suffered from bipolar disorder and epilepsy, that Miller had contacted Officer Vedder and instructed her to “go after” plaintiff when plaintiff left the classroom, that Miller told Vedder about plaintiff’s bipolar disorder and epilepsy, and that he also told Vedder--falsely--that plaintiff had a history of getting on buses without permission. A principal’s decision to take steps to prevent a student from leaving campus without permission is a discretionary one for which a school official is immune. (See, Davison v. Santa Barbara High School Dist. (C.D. Cal. 1998) 48 F.Supp.2d 1225, 1232 [principal’s decision to discipline student was within his discretion and did not support state tort claims]; Doe v. Petaluma School Dist. (N.D. Cal. 1993) 830 F.Supp. 1560, 1582 [dismissal of claims for negligent and intentional infliction of emotional distress based on failure of school officials to stop harassment by student’s peers]; Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, 39 [decision to expel student “entails ‘the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.’ ”].) We agree with Miller that, as a matter of law, he is immune from the common law causes of action for negligence, negligent infliction of emotional distress and intentional infliction of emotional distress under Government Code section 820.2. This is true even if Miller’s actions amounted to an abuse of his discretion.
We reach a different conclusion with respect to plaintiff’s statutory claims against Miller under Welfare and Institutions Code sections 5150 and 5150.05, both of which are predicated on the allegation that Vedder relied on Miller’s false statement about plaintiff’s history of getting on buses without permission when she placed the 5150 hold. This allegation supports a statutory cause of action under section 5150, which provides in relevant part, “If the probable cause [necessary for a 5150 hold] is based on the statement of a person other than the officer, a member of the attending staff, or a professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.” It similarly states a cause of action under section 5150.05, subdivision (c), which provides that when the probable cause to take a person into custody on a 5150 hold “is based on the statement of a person other than the one authorized to take the person into custody pursuant to section 5150, the person making the statement shall be liable in a civil action for intentionally giving any statement that he or she knows to be false.” Although the first amended complaint did not allege that Miller placed the hold, directed Vedder to place the hold or knew that such a hold would be placed, it did allege that Vedder relied on Miller’s false statement when placing the hold. This is sufficient to state a cause of action under sections 5150 and 5150.05.
Because none of the parties has briefed the issue, we do not determine here whether liability for false statements under sections 5150 and 5150.05 requires that the person making the statements intend or know or reasonably foresee that they will lead to a 5150 hold. At this stage of the proceedings, it is enough for plaintiff to allege that the officer placing the hold relied on such false statements.
Though Government Code section 820.2 provides immunity for discretionary acts of school discipline, a 5150 hold goes beyond a school official’s customary supervisory and disciplinary duties. Miller argues that that the 5150 hold was placed by Officer Vedder alone, and that he cannot be responsible for the act of another under Government Code section 820.8. But that statute precludes only vicarious liability through the doctrine of respondeat superior, and by its own terms, it does not apply when the public employee seeking immunity has himself committed a wrongful act. (Weaver v. State of California (1998) 63 Cal.App.4th 188, 202-203; see also Martinez v. Cahill (1963) 215 Cal.App.2d 823, 824 [interpreting predecessor statute].) The first amended complaint alleged that Miller committed the wrongful act of making a false statement about plaintiff’s history of getting on buses without permission.
Miller argues that any false statement to Vedder was privileged under Civil Code section 47, subdivision (b), which bars any civil action, other than a claim for malicious prosecution, based on communications made ‘“[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law. . . .’” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) This privilege is absolute where applicable and has been judicially construed to extend to communications “intended to instigate official governmental investigation into wrongdoing, including police investigation.” (Id. at p. 370.)
Miller’s request that Officer Vedder go after plaintiff, and his related comments about plaintiff’s medical condition and history of getting on buses, were communications intended to instigate police action. As such, they would arguably fall under section 47, subdivision (b). However, Welfare and Institutions Code sections 5150 and 5150.05, subdivision (c) provide that when the probable cause required to take a person into custody on a 5150 hold is based on the statement of a third party, that party “shall be liable in a civil action for intentionally giving any statement that he or she knows to be false.” These provisions are more specific than Civil Code section 47, subdivision (b), and they allow plaintiff to seek compensation against Miller to the extent he made intentionally false statements leading to the 5150 hold. (See Shafer v. Berger, Kahn etc. (2003) 107 Cal.App.4th 54, 81.)
The court properly sustained Miller’s demurrer as to the causes of action for negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. The demurrer should have been overruled as to the causes of action for violating Welfare and Institutions Code sections 5150 and 5150.05.
III. District’s Demurrer
As to District, the first amended complaint alleged discriminatory conduct in violation of the Unruh and Bane Acts as well as those claims also brought against Paulsen and Miller: violation of Welfare and Institutions Code sections 5150 and 5150.05, negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. Each of these claims was based on the alleged misrepresentation by Miller and the 5150 detention by Officer Vedder. Additional claims against District for battery and false imprisonment were based on the conduct of the two unidentified District employees who helped Officer Vedder subdue plaintiff before she placed the 5150 hold. In its written order sustaining District’s demurrer as to all claims without leave to amend, the trial court stated, “[Government Code] section 818.8 provides an absolute immunity from liability for misrepresentation of any sort.”
Plaintiff argues that the order sustaining District’s demurrer must be reversed because the trial court erroneously relied on the immunity provision contained in Government Code section 818.8. That section provides, “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” The only misrepresentation described in the complaint was principal Miller’s allegedly false statement to Officer Vedder that plaintiff had a history of getting on buses without permission.
We agree with plaintiff that the trial court erred in determining that Government Code section 818.8 applies to this case. Section 818.8 creates immunity only for a misrepresentation that affects a commercial or financial interest. (Johnson v. State of California (1968) 69 Cal.2d 782, 800; Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 872; see also Kern v. Sparks (2007) 149 Cal.App.4th 11, 20 [§ 822.2, providing that “[a] public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice,” requires interference with commercial or financial interest].)
Here, the injury for which damages were sought was not to plaintiff’s financial interests, but to his person and personal liberty. Moreover, two causes of action against District—battery and false imprisonment—were based not on the alleged misrepresentation by Miller and resulting 5150 hold, but on the actions of two unidentified District employees (campus supervisors) who helped subdue plaintiff before he was taken into custody on the 5150 hold. Having concluded that the trial court’s rationale was erroneous, we consider whether the order sustaining District’s demurrer can be upheld based on some other ground. (See Home Ins. Co. v. Zurich Ins. Co., supra, 96 Cal.App.4th at p. 22.)
District argues that its demurrer was properly granted because a school district and its personnel are immune from state tort claims based on discretionary acts. We agree as to those causes of action for which Miller is immune—negligence, negligent infliction of emotional distress and intentional infliction of emotional distress (the sixth, seventh and eighth claims for relief). District’s liability under those causes of action is strictly vicarious, predicated solely on Miller’s conduct, and we have already concluded the first amended complaint did not state a cause of action against Miller due to the immunity attaching to a public employee’s discretionary acts. (Gov. Code, § 815.2, subd. (b) [“Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability”].) Conversely, we have already concluded that the immunity for discretionary acts does not bar the causes of action against Miller under Welfare and Institutions Code sections 5150 and 5150.05 (the second and third claims for relief). The first amended complaint adequately states causes of action against District for violations of those provisions under a vicarious liability theory. (Gov. Code, § 815.2, subd. (a) [“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”].)
As to the alleged violation of the Unruh and Bane Acts (Civ. Code, §§ 51 et seq. & 52.1) (the first claim for relief), we conclude that District’s demurrer was properly sustained. In relevant part, Civil Code section 51 (the Unruh Act) provides, “(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition, marital status or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. [¶] (c) This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation.” Section 52.1, subdivision (b) (the Bane Act) allows a civil action to be brought by “[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with. . . .”
The first amended complaint did not allege any facts that, if true, would support a finding under the Unruh Act that plaintiff was discriminated against due to his medical condition. Nor does it state a claim for a violation of his constitutional rights under the Bane Act when his government tort claim against District did not allege a Bane Act violation. (Gov. Code, § 910; see Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1807-1808 [plaintiff not entitled to pursue theory that hospital failed to employ sufficient personnel when tort claim alleged failure to restrain psychiatric patient]; Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1449-1451 [Bane Act not part of the Unruh Act].)
We turn finally to the battery and false imprisonment claims against District, which are based on the actions of the two unidentified campus supervisors who were employed by District, and who allegedly assisted Vedder in forcibly detaining plaintiff (the fourth and fifth claims for relief). We conclude the first amended complaint states facts adequate to support liability under these theories, and that the trial court erred in sustaining the demurrer as to these two causes of action.
School authorities may “exercise ‘the same degree of physical control over a pupil that a parent would be legally privileged to exercise . . . which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.’ ” (In re Randy G., supra, 26 Cal.4th at p. 563, quoting Ed. Code, § 44807.) A student may prevail on a battery claim based on a touching to which he or she has not consented when the touching was unreasonable and intended to harm or offend the student. (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at pp. 871-876.) The first amended complaint stated a claim for battery under this standard by alleging that two campus supervisors employed by District helped subdue plaintiff by stepping on his shoe, twisting his arm behind his back, and pushing him face down onto a police car.
The cause of action for false imprisonment was similarly based on the actions of the campus supervisors during the detention. False imprisonment requires proof that plaintiff was intentionally confined, without consent or lawful privilege, for an appreciable length of time. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372-373.) The facts alleged show that plaintiff was confined, and although school authorities are authorized to exercise a reasonable degree of physical control over students, it is a factual question as to whether the actions of District’s employees exceeded their lawful privilege to control students. We disagree with District that plaintiff somehow waived his false imprisonment claim by “admitting” that he was a student at Concord High, over whom the District had control.
The trial court properly sustained District’s demurrer as to the causes of action for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of the the Unruh and Bane Acts. It should have overruled the demurrer as to the causes of action for violating Welfare and Institutions Code sections 5150 and 5150.05, false imprisonment and battery.
IV. Leave to Amend
Having concluded that the trial court properly sustained the demurrer of Paulsen and the demurrers of Miller and District to the claims for negligence, negligent infliction of emotional distress and intentional infliction of emotional distress, we consider whether it abused its discretion in doing so without granting plaintiff leave to amend. (Heritage Oaks Partners v. First American Title Ins. Co., supra, 155 Cal.App.4th at p. 344.) Plaintiff had the burden of demonstrating a reasonable probability that the first amended complaint could be amended to cure the defects. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1701.) He did not seek leave to amend in the trial court and has offered no explanation on appeal as to how he could redraft his pleading to adequately state those causes of action as to which the demurrers were correctly sustained. Under the circumstances, leave to amend was properly denied. (See Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)
Disposition
The order sustaining the demurrer of defendant Paulsen without leave to amend, and the judgment of dismissal entered in his favor, are affirmed.
The order sustaining the demurrer of defendant Miller without leave to amend is affirmed as to the sixth, seventh and eighth claims for relief, for negligence, negligent infliction of emotional distress and intentional infliction of emotional distress. It is reversed as to the second and third claims for relief, based on Welfare and Institutions Code sections 5150 and 5150.05, as is the judgment of dismissal entered in Miller’s favor.
The order sustaining the demurrer of defendant District without leave to amend is affirmed as to the first, sixth, seventh and eighth claims for relief, for violations of the Unruh/Bane Acts, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. It is reversed as to the second and third claims for relief, based on Welfare and Institutions Code sections 5150 and 5150.05, and the fourth and fifth claims for relief, for false imprisonment and battery, as is the judgment of dismissal in District’s favor.
The parties shall bear their own costs.
We concur. JONES, P.J., SIMONS, J.