Kimberly M. v. Los Angeles Unified School District

I agree with my colleagues the broad holding in the majority opinion of the California Supreme Court in John R. 1 compels reversal of this court’s initial decision in the instant case. I separately concur, however, to urge the Supreme Court majority to reconsider its opinion in that case—at least the breadth of its holding—as applied to the facts of this case. •

At one point I was tempted to distinguish the facts of Kimberly M. from those of John R. There are very real differences. John R. was 14 years old, Kimberly M. only 5 years old at the time of molestation. Anyone who has been a parent knows an adult has vastly greater dominion over a five-year-old than over a fourteen-year-old. Most five-year-olds told to undress will comply without hesitation and would submit to most forms of sexual abuse without objection, indeed without even knowing at the time they were being abused. On the other hand, a teacher’s—or indeed a parent’s—ability to order or otherwise compel a 14-year-old to engage in activities he or she does not want to is problematical at best. Thus the authority the teacher exerted over the five-year-old victim in the instant case was at least equal to the authority…

WOODS (N.F.), J.

Plaintiff appeals from an order of dismissal [1] following the court's sustaining defendant's demurrer to the first amended complaint for failure to state a cause of action against defendant under the doctrine of respondeat superior for the sexual molestation of plaintiff, a student at a school within defendant school district (hereafter District), by an employee of defendant. We affirm.

The first amended complaint (complaint) alleges that on November 18, 1985, when appellant was a five-year-old student at the District's Russell Elementary School, she was molested by her teacher (identified in the complaint as Doe 1) after appellant complied with the teacher's order to undress.

The complaint specifically alleges that appellant's teacher ordered appellant "to undress by either lowering or removing both her outer clothing and undergarment and did thereupon insert her finger into plaintiff's pubic area, tearing a portion of the child's anatomy and causing injury thereby."

The complaint further alleges that appellant's teacher, in the course of her contractual duties with the District, maintained strict order in the classroom during classroom hours and…

Plaintiff appeals from an order of dismissal 1 following the court’s sustaining defendant’s demurrer to the first amended complaint for failure to state a cause of action against defendant under the doctrine of respondeat superior for the sexual molestation of plaintiff, a student at a school within defendant school district (hereafter District), by an employee of defendant. We affirm.

Factual and Procedural Synopsis

The first amended complaint (complaint) alleges that on November 18, 1985, when appellant was a five-year-old student at the District’s Russell *547 Elementary School, she was molested by her teacher (identified in the complaint as Doe 1) after appellant complied with the teacher’s order to undress.

The complaint specifically alleges that appellant’s teacher ordered appellant “to undress by either lowering or removing both her outer clothing and undergarment and did thereupon insert her finger into plaintiff’s pubic area, tearing a portion of the child’s anatomy and causing injury thereby.”

The complaint further alleges that appellant’s teacher, in the course of her contractual duties with the District, maintained strict order in the classroom during…