Barnes v. >Pittsburg> Unif.
School Dist.

























Filed 3/7/13 Barnes v. Pittsburg Unif. School Dist. CA1/4











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




>

WILLIE BARNES II et al., Plaintiffs and Appellants, v. PITTSBURG UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

A134679 (Contra Costa County Super. Ct. No. MSC08-01846)

This
case arose out of a sexual relationship that Ronald Polk, a vice principal at Pittsburg
High School, had with his
secretary, Jeannette Barnes, and the way in which Barnes’s children learned
about it. Although many of the events
surrounding the discovery of the relationship remain disputed, all of the
parties agree that two of the children found out about it from Polk. According to the plaintiffs, they found out
when Polk told them, “I’m having sex with your mother.”href="#_ftn1" name="_ftnref1" title="">[1]

Jeannette
Barnes, her husband Willie Barnes II, and their children sued Polk and the Pittsburg
Unified School District
and asserted causes of action for negligence,
intentional infliction of emotional distress, and public disclosure of
private facts. In granting defendants’
motion for summary adjudication, the trial court concluded that plaintiffs had
failed to establish that Polk or the school district owed the husband and the
children a duty of care or that there had been a public disclosure of private
facts. It then entered summary judgment
against the husband and the children on all claims, and granted href="http://www.mcmillanlaw.com/">summary adjudication against Jeannette
Barnes on the public-disclosure cause of action. The husband and the children appeal, and we
affirm.

I. FACTS

A. The Events of August 14, 2007>

Barnes
worked as Polk’s secretary at Pittsburg
High School. She and Polk had a sexual relationship, but
she did not consider it to be consensual because she believed her job was at
stake.

On
the morning of August 14, 2007,
Barnes told Polk she was going to report his misconduct to the school
district. According to Barnes, Polk
responded by threatening to kill her and her family. Meanwhile, Barnes’s husband learned of the
affair, threatened Polk, and told Polk he was on his way to the high school.

After
speaking to Polk and her husband, Barnes left her home to go to the school
district offices, which are near the high school. She took her 11-year old daughter Aliah with
her. On the way, she received a call
from her husband, who reported that he had been in an automobile accident near
the school district offices. When
Jeannette Barnes got to the scene of the accident, her husband approached her
car, got in the driver’s seat, and drove away with her and Aliah still in the
car. He began to scream at his wife and
hit her with a closed fist. Eventually
Jeanette Barnes was able to escape from the car and run to a nearby police
station.

One
of the couple’s two older children, 19-year old Alyssa or 16-year old Willie
III, overheard their mother on the telephone that morning and knew she was
upset. When their mother left the house,
Alyssa and Willie assumed she was going to the high school and decided to
follow her. They had a friend drive
them.

When
Alyssa and Willie III arrived at the high school, they saw Polk. Their sister Aliah was there also, apparently
having been driven to the school by their father. Polk asked them to come to his office. Alyssa, Willie, and their friend followed
Polk into his office, whereupon he told them that he had been having sex with
Jeannette Barnes. Aliah remained outside
Polk’s office and was not part of the conversation. The Barneses’ fourth child, Terrance, was not
present.

According
to the complaint, the entire family suffered severe emotional distress as a
result of defendants’ actions. When Polk
told the children of the affair, Willie III was shocked and cried. All of the children required “professional
treatment” to help them recover.

B. Motion for Summary Adjudication

Polk
and the school district moved for summary adjudication. On plaintiffs’ negligence and intentional
infliction of emotional distress causes of action, defendants moved for summary
adjudication only as to Willie Barnes II and the children. On plaintiffs’ public-disclosure cause of
action, defendants moved for summary adjudication as to all plaintiffs,
including Jeannette Barnes. The trial
court granted the motion. It rejected
the first two causes brought by the husband and the children by concluding that
defendants “did not have a special relationship” with them warranting a special
duty of care. And it rejected the
public-disclosure cause of action brought by all plaintiffs because the
evidence showed “the private fact was disclosed to only a few people, and not
to the public in general.”

Jeannette
Barnes did not appeal the trial court’s ruling, and her claims against
defendants for negligence and intentional infliction of emotional distress are
not at issue in this appeal.

II. DISCUSSION

A. Standard of Review

A
motion for summary adjudication is reviewed under the same standards as a
motion for summary judgment. (Code Civ.
Proc., § 437c, subds. (c), (f)(2); Certain
Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945,
972.) “On appeal after a motion for
summary judgment has been granted, we review the record de novo, considering
all the evidence set forth in the moving and opposition papers except that to which
objections have been made and sustained.
[Citation.] Under California’s
traditional rules, we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary
element of the plaintiff’s case, or has demonstrated that under no hypothesis
is there a material issue of fact that requires the process of trial, such that
the defendant is entitled to judgment as a matter of law.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

We
think it is worth pointing out, especially because plaintiffs devote several
pages of their brief to the standard of review, that defendants essentially
conceded plaintiffs’ allegations for purposes of the summary adjudication
motion. Accordingly, we are presented in
this appeal with purely legal questions.
(See American Airlines, Inc. v.
County of San Mateo (1996) 12 Cal.4th 1110, 1118 [defendant’s motion for
summary judgment or adjudication can test the sufficiency of the allegations,
and its legal effect is the same as a demurrer or motion for judgment on the
pleadings].)

B. Negligence

There
is no independent tort of negligent infliction of emotional distress. (Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) The tort is simply negligence, of which a
duty to the plaintiff is an essential element.
(Ibid.) A duty may be imposed by law or assumed by
the defendant, or may exist by virtue of a special relationship. (Id.
at p. 985.)

“ ‘Whether
a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability
of the risk and upon a weighing of policy considerations for and against
imposition of liability.’ ” (>Marlene F. v. Affiliated Psychiatric Medical
Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Plaintiffs
argue defendants had a duty “imposed by law and
created by Polk’s conduct” (original italics), which Polk breached by making
his “outrageous disclosure” of the sexual relationship.href="#_ftn2" name="_ftnref2" title="">[2] The only specific legal source plaintiffs
identify for imposing such a duty is the special relationship between school
officials and students. “[O]ur cases
have long established that a school district bears a legal duty to exercise
reasonable care in supervising students in its charge and may be held liable
for injuries proximately caused by the failure to exercise such care.” (Hoyem
v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513; see also >Hoff v. Vacaville Unified School Dist. (1998)
19 Cal.4th 925, 933-934; Dailey v.
Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747; Ed. Code,
§ 44807.)

During
oral argument, defense counsel admitted that Willie III was a student at the
high school in 2007, although school was in recess in August. Plaintiffs never established that any of the
other children were students at Pittsburg High School.

The
husband, Willie Barnes II, was obviously not a student, and he was not present
when the disclosure to the children was made.
Any claim that he was owed a duty therefore can be eliminated straight
away. (See Smith v. Pust (1993) 19 Cal.App.4th 263, 272-273 [therapist
having sex with patient owed no duty to patient’s husband]; Civ. Code,
§ 43.5 [no cause of action for alienation of affection].)

We
can also eliminate any claim that Aliah and Terrance were owed a duty. While both were minors, they do not appear to
have been Pittsburg High School students, as we have noted, and neither was
present when Polk made the disclosure.
Beyond castigating Polk for his behavior, plaintiffs fail to suggest any
grounds for imposing a duty on Polk for persons not present at the disclosure
or for any of the other alleged misdeeds.href="#_ftn3" name="_ftnref3" title="">[3] Plaintiffs cannot and do not argue that a
case for “ ‘bystander’ ” liability can be made here. (Burgess v.
Superior Court (1992) 2 Cal.4th 1064, 1072-1073.)

So
we reach the two plaintiffs, Alyssa and Willie III, who were in Polk’s office,
heard the statement, and could certainly have been distressed by it. We can nevertheless conclude that Polk had no
duty to Alyssa, who was an adult and not a Pittsburg High School student. While it is foreseeable that Alyssa would be
upset to be told by Polk that he was “having sex” with her mother, we do not
believe the law imposes liability for revealing to an adult child a parent’s
sexual relationship. Our conclusion does
not change simply because Polk could have declined to be the messenger or could
have been less blunt.

Willie
III presents a closer question, both because of his age and his status as a
student at the school where Polk worked.
We will accept, for purposes of this appeal, plaintiffs’ assertion that
Polk had a duty to supervise and protect Willie even though school was not in
session that day. (See >J.H. v. Los Angeles Unified School Dist.
(2010) 183 Cal.App.4th 123, 128 [school district and personnel owe a duty of
care to children in after-school program].)
We do not agree, however, that any such duty to supervise and protect
included an obligation on Polk’s part to refrain from telling Willie III, under
the stressful circumstances of that morning, that Polk was having a sexual
relationship with Willie’s mother.

The
law generally imposes a duty to use due care to avoid injury to others. (See Civ. Code, § 1714.) Before departing from the general rule,
courts will examine a number of factors, including foreseeability of harm, degree
of certainty that plaintiff suffered injury, closeness of the connection
between the defendant’s conduct and the injury suffered, moral blame attached
to the defendant’s conduct, policy of preventing future harm, extent of the
burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and availability, cost, and
prevalence of insurance for the risk involved.
(Christensen v. Superior Court
(1991) 54 Cal.3d 868, 885-886.)

Plaintiffs
offer no discussion of these factors beyond foreseeability. Further, they cite no cases imposing a duty
under circumstances even remotely similar to this case.

Mere
foreseeability is not determinative in emotional distress cases. (Marlene F. v.
Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at pp.
589-590.) No one questions whether
Willie III suffered emotional distress.
But it is incumbent upon a plaintiff to come forward with policy reasons
why a duty of care should be recognized. (Krupnick
v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185,
203.) As plaintiffs have provided none,
we are left to our own devices and conclude the policy factors weigh against
imposing a duty here. Polk’s statement,
while not one a son wants to hear, was true.
The statement itself was undoubtedly upsetting, but its meaning and the
consequences to the family were probably even more so. Polk’s underlying conduct in having a sexual
relationship with Jeannette Barnes may have been immoral, as Polk admitted, but
it is unclear how much moral blame can be attached to telling Willie III the
truth about the relationship when its secrecy was quickly unraveling and
emotions were running high. While we
need not and do not decide whether the law imposed on defendants some duty to
Jeannette Barnes, we can conclude that the law imposed no duty on Polk to
refrain from revealing the sexual relationship to Willie III under the
circumstances in this case.

C. Intentional Infliction of Emotional Distress

The
trial court granted summary adjudication on plaintiffs’ cause of action for
intentional infliction of emotional distress “on the same ground” as the cause
of action for negligence. Plaintiffs
assume the court meant they had failed to establish any duty of care with
respect to the intentional infliction of emotional distress cause of
action. If so, plaintiffs argue, the
court erred because duty is not an element of that cause of action.

The
elements of a cause of action for intentional infliction of emotional distress
are “ ‘ “ ‘ “(1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous
conduct.” ’ ” ’ ” (>Hughes v. Pair (2009) 46 Cal.4th
1035, 1050.)

Defendants
argued in the trial court that Polk’s conduct was neither outrageous nor done
with the intent to harm. Notwithstanding
its “on the same ground” statement, the trial court appears to have agreed with
defendants that the first element of plaintiffs’ intentional infliction of
emotional distress cause of action was missing.
In any event, we review the ruling, not the rationale. (Salazar
v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)

Although
they are different causes of action, there is an overlap in the legal reasoning
for rejecting both the negligence and intentional infliction of emotional
distress causes of action of the husband (Willie Barnes II), Aliah, and
Terrance. They cannot state a cause of
action for intentional infliction of emotional distress because Polk’s conduct
was not directed at them and did not occur in their presence. “It is not enough that the conduct be
intentional and outrageous. It must be
conduct directed at the plaintiff, or occur in the presence of a plaintiff of
whom the defendant is aware.” (>Christensen v. Superior Court, supra, 54
Cal.3d at p. 903; see also Shin v. Kong
(2000) 80 Cal.App.4th 498, 512 [husband could not state cause of action
when he was unaware wife was artificially inseminated with defendant’s sperm].)

Accordingly, we are once again left with the
claims of Alyssa and Willie III, to whom Polk revealed the sexual relationship.

To
state a cause of action for intentional infliction of emotional distress, the
conduct “must be so extreme as to exceed all bounds of that usually tolerated
in a civilized community.” (>Davidson v. City of Westminster (1982)
32 Cal.3d 197, 209.) “Intentional
infliction of emotional distress requires conduct which is especially
calculated to cause and does cause the claimant mental distress of a very
serious nature.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1273, italics
omitted.) The court should determine, in
the first instance, whether the defendant’s conduct reasonably may be regarded
as so extreme and outrageous as to permit recovery. (Chang
v. Lederman (2009) 172 Cal.App.4th 67, 87.)

We
cannot conclude that it is extreme and outrageous for a person truthfully to
reveal a sexual relationship to the teenage children of his married sexual
partner. Although plaintiffs cite cases
that set out the elements of a cause of action for intentional infliction of
emotional distress, they cite not a single case supporting their claim that
Polk’s statement to Alyssa and Willie III was outrageous and extreme. In fact, the case law suggests that it was
not. In Corales v. Bennett (9th Cir. 2009) 567 F.3d 554, the Ninth Circuit,
applying California law, concluded that a middle school vice principal who
issued a “perhaps unduly harsh” warning to a student did not engage in extreme
and outrageous conduct, even when the student committed suicide that same day. (Id.
at pp. 560-561, 571-572; see also Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 533-535 [medical personnel’s urgings
to husband to “pull the plug” on wife allegedly to reduce medical costs was not
extreme and outrageous conduct].)

Nothing
in this record suggests Polk sought out Alyssa and Willie III and then
subjected them to conduct calculated to cause serious mental distress. (See Smith
v. Pust, supra, 19 Cal.App.4th at p. 274 [therapist did not seek out
husband with intent of regaling him with description of the sexual conquest of
wife].) The type of outrageous and
extreme conduct required to submit to a jury Willie II’s and the children’s
cause of action for intentional infliction of emotional distress simply is not
present here.

D. Public Disclosure of Private Facts

The
trial court concluded that plaintiffs’ final cause of action, public disclosure
of private facts, also failed because an essential element—public
disclosure—was missing. Plaintiffs
contend, with no citation to authority, that Polk’s disclosure to the two
Barnes children and their friend was sufficient public disclosure.

The
elements of the tort of public disclosure of private facts are
“ ‘ “(1) public disclosure, (2) of a private fact, (3) which would be
offensive and objectionable to the reasonable person, and (4) which is not of
legitimate public concern.” ’ ”
(Taus v. Loftus (2007) 40
Cal.4th 683, 717.)

We
agree with the trial court that there was no public disclosure in this
case. “[T]he tort must be accompanied by
publicity in the sense of communication to the public in general or to a large
number of persons as distinguished from one individual or a few.” (Kinsey
v. Macur (1980) 107 Cal.App.3d 265, 270; accord Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th
856, 904; Porten v. University of San
Francisco (1976) 64 Cal.App.3d 825, 828; Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805.) “Thus it is not an invasion of the right of
privacy . . . to communicate a fact concerning the plaintiff’s private life to
a single person or even to a small group of persons.” (Rest.2d Torts, § 652D, com. a, p. 384.)

Plaintiffs’
public-disclosure claim also fails for another, even more fundamental,
reason. Polk’s disclosure was not about
them. It was about Polk and Jeannette
Barnes. The right of privacy is purely
personal, and it cannot be asserted by anyone other than the person whose
privacy has been invaded. (>Moreno v. Hanford Sentinel, Inc. (2009)
172 Cal.App.4th 1125, 1131.

Plaintiffs
cannot state a cause of action for public disclosure of private facts because
there was no public disclosure and the fact disclosed was not their private
fact.

III.
DISPOSITION

The
judgment is affirmed.







_________________________

Humes,
J.





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Rivera, J.