Thomas v. The Regents of the University of Cal.

Filed 11/29/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

RENEE THOMAS,
Plaintiff and Appellant,
A164550
v.
THE REGENTS OF THE (Alameda County
UNIVERSITY OF CALIFORNIA et Super. Ct. No. RG20073375)
al.,
Defendants and Respondents.

Renee Thomas was recruited to play on the women’s soccer team at the
University of California, Berkeley (UCB), played on the team during her
freshman year and, in the spring of that year, was released from the team.
She sued UCB, the head coach of the women’s soccer team, and the Director
of Athletics (collectively, defendants), first in federal court and then in state
court. The present appeal is from the judgment in favor of the defendants
entered after the trial court sustained demurrers to all Thomas’s causes of
action without leave to amend. As we will explain, we conclude Thomas
sufficiently pleaded a cause of action for sexual harassment in violation of
Civil Code section 51.9 against the head coach and UCB and should have
been granted leave to amend her complaint to clarify the statutory basis of
this claim. In all other respects, we will affirm the trial court’s decision.

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 BACKGROUND
I.
Factual Background
The following is the factual background as alleged in Thomas’s first and
second amended complaints.
Thomas is a “well-regarded soccer player” who was recruited by head
coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the
time that Thomas had already committed to play for the University of
Colorado, which had offered her a scholarship. At a meeting with Thomas
and her mother in February 2018, McGuire “assured” Thomas that she would
be on UCB’s women’s soccer team for four years. McGuire told Thomas she
was “the missing piece that their staff had overlooked during recruitment
that year” and he “diagrammed for her and her mother the ways in which he
would utilize a player like her.” McGuire knew at the time that he had
“allowed women who were not qualified athletes to become part of the team,
which would put [Thomas’s] spot on the team in jeopardy,” and that factors
beyond her performance and compliance with the program’s expectations
“would impact her continued status as a team member.” He failed to disclose
that Thomas “could be removed from the team for reasons beyond her failure
to play competently and in accordance with his instructions and meet his
standards of behavior.” McGuire represented that he was “a coach who was
kind and encouraging and who valued his athletes for both their athletic and
their academic dedication,” and “intentionally” kept from Thomas that his
coaching style “included hostile berating of young women, inquiry into their
sex lives, and psychological abuse.” McGuire had become “enraged with

2
women athletes and behaved erratically and abusively towards his team in
documented incidents since at least 2009.”
Thomas turned down her scholarship to the University of Colorado to
accept a non-scholarship spot on UCB’s team based on McGuire’s “assurances
that she was joining a four-year soccer program, that she would play on the
team as long as she met the reasonable performance expectations of the
program, and that she would be coached in a caring and encouraging
manner.” She reasonably relied on McGuire’s representation that “nothing
outside of her performance and her compliance with the expectations of the
program would result in her dismissal,” and she had “every reason to trust”
McGuire would keep his commitment since “[p]layers are not commonly
released from University-level athletic teams” and “there is no external limit
on team size for the women’s soccer team, so even under-performing players
do not need to be released to create room for other, stronger performers.”
McGuire’s failure to disclose that factors beyond Thomas’s performance and
compliance with the program’s expectations “would impact her continued
status as a team member” induced her to join the team “at the expense of her
commitment to the University of Colorado or any other program in which she
could have participated.”
Thomas joined the team as one of six non-scholarship players,
performed well, complied with the expectations McGuire laid out for her and
“participated in every opportunity available to her to improve her
performance.”1 McGuire told her she was “promising enough to rival the

1 Thomas alleged that she played 304 minutes during the 2018-2019
season, which was “far more than any other non-scholarship freshman that
year” and “more than several of her upper classmen teammates,” and of 29
offensive players on the team, “ranked 20th in playing time and tied for
eighth in points for goals and assists.”

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best-performing forward on the team” and she was honored at the team’s
annual banquet as the most improved player. In the spring of 2019, McGuire
instructed Thomas to show potential recruits around campus and told her a
new recruit would be her teammate the next year, which reassured Thomas
“that she had performed well, was still a valued member of the team, and
could look forward to playing during the 2019-2020 season.”
During the 2018-2019 season, Thomas “experienced and witnessed”
abusive behavior by McGuire. McGuire lost his temper at the athletes “on
many occasions,” “[i]n fits of rage, he singled out athletes and berated them
in front of the team, sometimes nonsensically, to make an example of them
and strike fear in the witnessing athletes,” he “called young female athletes
names, cursed at them, and degraded them with personal insults both related
and unrelated to athletic performance,” and he “tormented them
psychologically and punished them with grueling workouts.” His “behavior
was described to [UCB’s] athletics administration as creating a culture of fear
and intimidation.”
Thomas was present for “tirades” in which McGuire “degraded the
entire team.” He “belittled the physique of one player in front of the team
and called her ‘weak’ despite her compliance with the training program,”
“made unwelcome and inappropriate comments about players’ bodies,” and
“berated a young woman for having what he perceived as a hickey on her
neck.” He “tormented the athletes psychologically” and on one occasion told
them they “needed to perform better or his children and the children of other
coaches would suffer.” Once, after a pre-season loss, “without provocation,”
McGuire stopped practice to yell at Thomas in front of the team, then kicked
her off the field and told her she did not belong in the program; on another
occasion, he “berated” her for not being disciplined “despite her commitment

4
at practices and her initiative to perform supervised drills after practice.”
His “outbursts” made Thomas feel she had to be “absolutely perfect” and “any
error would cause him to turn his back on her.” She and others would try to
“tread extremely lightly” around McGuire “to avoid drawing his anger or
retaliation,” which caused them “extreme stress and anxiety.”
Players and their parents complained about McGuire’s conduct to Jim
Knowlton, UCB’s Athletic Director, and other administrators. In
March 2018, McGuire’s assistant athletic trainer made a complaint about his
behavior in “physically and psychologically abus[ing] his team following what
he perceived as a moment of disrespect.” In 2019, the mother of a women’s
soccer team player documented “the abuses suffered by her daughter and
other female athletes” in a lengthy letter to Knowlton’s “second in command,”
Jennifer Simon-O’Neill, and subsequently attempted to meet with the UCB
Chancellor, but was ultimately told by Knowlton that the complaints were
“not validated.” In April 2019, three women’s soccer team players met with
Knowlton and Simon-O’Neill and were told “there was nothing they could say
that would result in [McGuire’s] termination.” In December 2019, the Office
for the Prevention of Harassment and Discrimination (OPHD) reported a
complaint by a UCB employee regarding McGuire’s “harassment of his
players,” which “confirmed that McGuire’s inappropriate comments about
young women’s bodies and about ‘hickeys’ on the young women’s necks had
been reported to them”; the subject player was offered support services, but
nothing was done to intervene with McGuire. Knowlton and other athletic
department administrators “disregarded and ignored” athletes’ complaints
and allowed McGuire to “continue his ill treatment,” causing Thomas and
other athletes “extreme despair.”

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 On April 29, 2019, “without warning or explanation,” McGuire released
Thomas and four others from the team. It was “rare” for McGuire to release
players from the team and “quite unusual that he released five players at
once.”
This occurred “just after the public exposure of the national admissions
scandal that was discovered to have exploited athletic teams at prestigious
universities to enroll students who lacked the athletic skills to achieve
enrollment to the universities as student athletes.” A player on the women’s
soccer team “recalled two young women from two years prior who were
recruited to the women’s soccer team, admitted to the university because of
their recruitment as student athletes, but who did not play,” and she reported
her suspicions that this related to the scandal to the Federal Bureau of
Investigation. In 2020, the State Auditor of California (Auditor) released a
report concluding that UCB had “wrongfully admitted students using athletic
teams as the point of entry.”
II.
Legal Proceedings
A. Federal Action
Thomas initially filed a complaint in federal court alleging disparate
treatment of the UCB men’s and women’s soccer teams in violation of United
States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California
Education Code section 66271.8, gender discrimination in violation of the
Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and
negligent infliction of emotional distress, all based on her unjustifiable
release from the team. The disparate treatment claims were based on
allegations that only one player was released from the men’s soccer team that
spring and Thomas and others on the women’s soccer team “were treated

6
unfairly when compared with their male counterparts”; it did not include any
allegations concerning McGuire’s abusive treatment.
After the district court dismissed the complaint with leave to amend
three of the causes of action,2 Thomas filed a first amended complaint again
alleging Title IX, Unruh Act and negligence claims and adding a new claim
against McGuire for breach of fiduciary duty. Thomas added factual
allegations describing abusive conduct by McGuire, complaints by players
and parents and failure to intervene by Knowlton and UCB as detailed in the
background facts above, as well as further allegations related to the Title IX
claim that are not relevant to the present case.
The district court dismissed the first amended complaint without leave
to amend, finding Thomas failed to state any of her claims and leave to
amend would be futile. The court subsequently amended its order to decline
supplemental jurisdiction over the state law claims after Thomas asked it to
reconsider the dismissal of her state claims with prejudice so as to allow her
to pursue the claims in state court.
B. The Present Case
1. Complaint and First Amended Complaint
Thomas filed her complaint in superior court on September 11, 2020,
alleging claims against McGuire and Knowlton for violation of the Unruh Act
and negligence, and against McGuire for breach of fiduciary duty and fraud.
She subsequently filed a first amended complaint adding that UCB was liable
pursuant to Government Code section 815.2. The defendants demurred.
The trial court sustained the demurrer with leave to amend only the
fraud claim against McGuire. The court held that Thomas failed to state

2Thomas conceded she could not state the claims for violation of
Education Code section 66271.8 and negligent infliction of emotional distress.

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causes of action for violation of the Unruh Act or Civil Code section 51.9
(which Thomas argued was actually the basis for her Unruh Act claim),
negligence or breach of fiduciary duty, and that the fraud claim against UCB
was barred by governmental immunity (Gov. Code, § 818.8 [public entity not
liable for employee’s misrepresentation]). Explaining its denial of leave to
amend these claims, the court stated, “Between this action and the prior
federal action, plaintiff has had four opportunities to attempt to allege any
specific facts in support of her claims. Although plaintiff’s opposition
requests further leave to amend, plaintiff has not identified any additional
facts she would allege if permitted to do so. The court infers that plaintiff
has pleaded her case to best advantage and that further leave to amend the
first through third causes of action would be futile.” The court found the
cause of action for fraud against McGuire uncertain and granted Thomas
leave to amend.3
Thomas’s second amended complaint, filed on July 6, 2021, added to
her fraud claim allegations that McGuire “knew that the statements he made
to induce [her] to join the team were false at the time that he made them,”
“had a duty to disclose this information to [her] because he was actively
concealing the information,” “made partial disclosures to induce her
attendance” and “had exclusive knowledge of the facts he was concealing.”
Thomas also added a new claim of negligent misrepresentation (Civ. Code,

3 The court noted that Thomas did not allege what McGuire said to
provide the alleged assurance that she would remain on the team if she
performed well, or when it was said; that later in the complaint she appeared
to base her claim on an “omission” theory; and that in her federal complaint
had alleged an “ ‘implicit’ promise” that she would remain on the team
throughout her undergraduate program.

8
§ 1710(2)) based on the same allegations (minus the allegation that McGuire
knew the statements were false at the time he made them).
McGuire demurred and moved to strike the misrepresentation claim as
well as certain “immaterial allegations” and the prayers for injunctive relief
(reinstatement), attorney fees and punitive damages.
2. The Court’s Ruling
On December 9, 2021, the trial court adopted its tentative ruling
sustaining the demurrer without leave to amend, finding that Thomas failed
to allege all the required elements of a cause of action for fraud and McGuire
was entitled to public employee misrepresentation immunity (Gov. Code,
§ 822.2). The court stated that it had not authorized Thomas to add a new
claim of negligent misrepresentation, and, in any case, Government Code
section 822.2 would apply to this claim as well. Accordingly, the court
sustained the demurrer to both claims without leave to amend and dropped
the motion to strike as moot.
The court filed its judgment on January 25, 2022. Thomas filed a
timely notice of appeal on February 16, 2022.
DISCUSSION
I.
Standard of Review
“A demurrer is properly sustained when ‘[t]he pleading does not state
facts sufficient to constitute a cause of action.’ (Code Civ. Proc., § 430.10,
subd. (e).) On appeal, a resulting judgment of dismissal is reviewed
independently. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
‘ “ ‘[W]e accept as true all the material allegations of the complaint’ ” ’ (Korea
Supply [Co. v. Lockheed Martin Corp. (2003)] 29 Cal.4th [1134,] 1141), but do
not ‘assume the truth of contentions, deductions or conclusions of law’ (Aubry

9
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967).” (Roy Allan Slurry Seal,
Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) “We liberally
construe the pleading with a view to substantial justice between the parties.”
(Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1203; Code Civ. Proc., § 452.)
“If the complaint states a cause of action under any theory, regardless of the
title under which the factual basis for relief is stated, that aspect of the
complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title
Guaranty Co. (1998) 19 Cal.4th 26, 38.)
“When a demurrer is sustained without leave to amend, it is the duty of
the reviewing court to decide whether there is a reasonable possibility that
the defect can be cured by amendment. If it can, the trial court has abused
its discretion and we must reverse. If it cannot be reasonably cured, there
has been no abuse of discretion. [Citation.] It is the plaintiff’s burden to
show the reviewing court how the complaint can be amended to state a cause
of action. [Citation.]” (Michaelian v. State Comp. Ins. Fund (1996)
50 Cal.App.4th 1093, 1105.)
II.
The First Amended Complaint Stated a Cause of Action for Sexual
Harassment.
A. Background

The first cause of action in Thomas’s first amended complaint alleged
violation of the Unruh Act. Civil Code section 51, provides: “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, medical
condition, genetic information, marital status, sexual orientation, citizenship,
primary language, or immigration status are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

10
Thomas alleged that McGuire and Knowlton “engaged in unreasonable,
arbitrary, and invidious discrimination” against her and “denied her full and
equal privileges as compared with male athletes”; her gender was a
“substantial motivating reason” for McGuire’s and Knowlton’s conduct; and
UCB was liable for unlawful actions of its employees under Government Code
section 815.2. The defendants’ demurrer argued Thomas could not establish
this claim because, among other reasons, UCB is not a “ ‘business
establishment’ covered by the Unruh Act.”
In her opposition, Thomas argued that “[t]he Unruh Act also prohibits
sexual harassment,” citing Civil Code section 51.9. As relevant here, Civil
Code section 51.9 provides: “(a) A person is liable in a cause of action for
sexual harassment under this section when the plaintiff proves all of the
following elements: [¶] (1) There is a business, service, or professional
relationship between the plaintiff and defendant . . . . [¶] (2) The defendant
has made sexual advances, solicitations, sexual requests, demands for sexual
compliance by the plaintiff, or engaged in other verbal, visual, or physical
conduct of a sexual nature or of a hostile nature based on gender, that were
unwelcome and pervasive or severe. [¶] (3) The plaintiff has suffered or will
suffer economic loss or disadvantage or personal injury, including, but not
limited to, emotional distress or the violation of a statutory or constitutional
right, as a result of the conduct described in paragraph (2).” The non-
exclusive list of “business, service, or professional” relationships to which the
statute applies includes “teacher” and “[a] relationship that is substantially
similar to any of the above.” (Civ. Code, § 51.9, subd. (a)(1)(E) & (a)(1)(I).)
Civil Code section 51.9 is not part of the Unruh Act; it is a separate
civil rights statute. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1044, fn. 1

11
(Hughes); Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1487, fn. 5.)4
Defendants challenged Thomas’s “attempt[] to plead an entirely new claim”
under a different statute than the one she actually pleaded as well as the
sufficiency of her allegations. The trial court’s ruling addressed both the
Unruh Act and Civil Code section 51.9, finding Thomas’s allegations
insufficient under both.5

4 Hughes explained that “Civil Code section 51.9 has sometimes been
described as being part of the Unruh Civil Rights Act, presumably because of
that statute’s close proximity in the Civil Code to the Unruh Civil Rights Act,
which appears in section 51 of the Civil Code. (See Brown v. Smith (1997)
55 Cal.App.4th 767, 774-775.) But Civil Code section 51 is the only statute
comprising the Unruh Civil Rights Act. As that statute states, ‘This section
shall be known, and may be cited, as the Unruh Civil Rights Act.’ (Civ. Code,
§ 51, italics added; see Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744,
757.)”
5 The trial court held Thomas could not establish a claim under the
Unruh Act because she alleged only conduct arising from the UCB athletics
program and UCB is not a business establishment under Civil Code
section 51, and because she did not allege “any specific facts showing
discrimination was the reason for her release from the team.” For the first
point, the court relied on Brennon B. v. Superior Court (2020)
57 Cal.App.5th 367, which held that a public school district is not a “business
establishment” under the Unruh Act and has since been affirmed by the
California Supreme Court. (Brennon B. v. Superior Court (2022)
13 Cal.5th 662.) As to the second point, the court explained that Thomas
provided no basis for comparing McGuire’s decision to release five players
from the women’s soccer team with the decision of the men’s team coach to
release only one player or for the allegation that Knowlton “discriminated on
the basis of gender because he did not terminate McGuire following
complaints by other players and parents and, on information and belief, ‘the
University would not have ignored and disregarded complaints of misconduct
made by male athletes.’ ”
The court then noted that Thomas did not specifically allege a claim
under Civil Code section 51.9 but, if she had, it would fail because she did not
sufficiently allege the necessary pervasive or severe conduct. The court
discussed the federal district court’s evaluation of the same allegations and

12
 As in the trial court, on this appeal Thomas does not argue she can
state a cause of action under Civil Code section 51. The question whether
UCB is a business establishment within the meaning of the Unruh Act is
therefore irrelevant to our consideration of the case.6 Neither the defendants
nor the trial court appear to have questioned the existence of the “business,
service or professional” relationship required for a Civil Code section 51.9
claim. Accordingly, the issues before us are whether Thomas alleged the type
of conduct described in Civil Code section 51.9 and, if not, would be able to
amend her complaint to cure the deficiencies.
B. Analysis
1. Governing Principles of Substantive Law
As noted, a plaintiff claiming sexual harassment in violation of Civil
Code section 51.9 must show that the defendant “made sexual advances,
solicitations, sexual requests, demands for sexual compliance by the plaintiff,
or engaged in other verbal, visual, or physical conduct of a sexual nature or of
a hostile nature based on gender, that were unwelcome and pervasive or
severe.” Hughes, supra, 46 Cal.4th at pages 1044 and 1048, explained that

agreed with its conclusion that certain allegations were conclusory while
others were “not sexual in nature” or “did not suggest an inference of sex
based harassment.” Contrary to Thomas’s assertion, the trial court did not
“improperly read into [Civil Code] section 51.9 a requirement that defendants
be a ‘business establishment’ as defined by [Civil Code] section 51.” The trial
court discussed the business establishment requirement only in its analysis
of Thomas’s claim as pleaded under Civil Code section 51 and addressed Civil
Code section 51.9 separately.
6 Thomas argues in her opening brief that she could plead and prove
UCB is a business establishment if required to do so, due to distinctions
between universities and public school districts. Her primary argument,
however, is that her claim is under Civil Code section 51.9, which does not
require that the defendant be a business establishment.

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when it was enacted in 1994, “the Legislature intended to conform Civil Code
section 51.9 to the California and federal laws pertaining to sexual
harassment in the workplace,” Title VII of the federal Civil Rights Act of
1964 (Title VII) and California’s Fair Employment and Housing Act. It is
therefore appropriate to find guidance in “the holdings and reasoning of court
decisions dealing with sexual harassment in the workplace” in determining
whether a plaintiff has “a viable cause of action under [Civil Code]
section 51.9, which applies to professional relationships outside the
workplace.” (Hughes, at p. 1048.)
As developed in the employment context, federal and state law
generally recognizes “ ‘two theories of liability for sexual harassment
claims . . . “ . . . quid pro quo harassment, where a term of employment is
conditioned upon submission to unwelcome sexual advances . . . [and] hostile
work environment, where the harassment is sufficiently pervasive so as to
alter the conditions of employment and create an abusive work
environment.” ’ ” (Hughes, supra, 46 Cal.4th at p. 1043.) The present case
involves the “hostile environment form of sexual harassment.” (Id. at
p. 1048.)
“[T]he existence of a hostile . . . environment depends upon ‘the totality
of the circumstances.’ ” (Hughes, supra, 46 Cal.4th at p. 1044, quoting Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 462.) “ ‘[T]o be
actionable, “a sexually objectionable environment must be both objectively
and subjectively offensive.” ’ ” (Hughes, supra, 46 Cal.4th at p. 1044, quoting
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284
(Lyle).) The sexually harassing conduct must be “ ‘pervasive or severe.’ ”
(Hughes, at p. 1044.) “To be pervasive, the sexually harassing conduct must
consist of ‘more than a few isolated incidents’ ”; it must be “so egregious as to

14
alter the conditions of the underlying professional relationship.” (Id. at
p. 1048.) “[A]n isolated incident of harassing conduct may qualify as ‘severe’
when it consists of ‘a physical assault or the threat thereof.’ ” (Id. at p. 1049.)
In the employment context, “ ‘[t]he plaintiff must prove that the
defendant’s conduct would have interfered with a reasonable employee's work
performance and would have seriously affected the psychological well-being of
a reasonable employee and that she was actually offended. [Citation.] [¶] The
factors that can be considered in evaluating the totality of the circumstances
are: (1) the nature of the unwelcome sexual acts or works (generally, physical
touching is more offensive than unwelcome verbal abuse); (2) the frequency of
the offensive encounters; (3) the total number of days over which all of the
offensive conduct occurs; and (4) the context in which the sexually harassing
conduct occurred.’ ” (Singleton v. United States Gypsum Co. (2006)
140 Cal.App.4th 1547, 1557, quoting Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 609-610 (Fisher).)
“The plaintiff must show that the harassing conduct took place because
of the plaintiff’s sex, but need not show that the conduct was motivated by
sexual desire. (Singleton v. United States Gypsum Co. [supra,]
140 Cal.App.4th [at p.] 1564; see also Oncale v. Sundowner Offshore Services,
Inc. (1998) 523 U.S. 75, 80 [same principle applies under title VII].)” (Pantoja
v. Anton (2011) 198 Cal.App.4th 87, 114 (Pantoja).) “Sexual harassment does
not necessarily involve sexual conduct. It need not have anything to do with
lewd acts, double entendres or sexual advances. Sexual harassment may
involve conduct, whether blatant or subtle, that discriminates against a
person solely because of that person’s sex.” (Accardi v. Superior Court (1993)
17 Cal.App.4th 341, 345 (Accardi).) “For example, a female plaintiff can
prevail by showing that the harassment was because of the defendant’s bias

15
against women” or that an employer created a hostile work environment
“because the employer feels important or powerful while humiliating women.”
(Pantoja, at pp. 114-115.) Harassment “because of sex” may be shown where
“an abusive bully takes advantage of a traditionally female workplace
because he is more comfortable when bullying women than when bullying
men.” (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840,
845 (E.E.O.C.).) To plead a cause of action for sexual harassment in the form
of a hostile environment, “it is ‘only necessary to show that gender is a
substantial factor in the discrimination, and that if the plaintiff “had been a
man she would not have been treated in the same manner.” ’ [Citation.]”
(Tomkins v. Public Serv. Elec. & Gas Co. (3d Cir.1977) 568 F.2d 1044, 1047,
fn. 4.)” (Accardi, at p. 348.)
In Accardi, for example, some allegations were overtly sexual, but
many were neither explicitly sexual nor explicitly gendered. The misconduct
plaintiff alleged included, among other things, “spreading untrue rumors
about her abilities, deliberately singling her out for unfavorable work
assignments and work shifts, making unsubstantiated complaints about her
performance, . . . stuffing her shotgun barrels with paper so that the weapon
would explode if fired, . . . and threatening to disrupt her wedding.” (Accardi,
supra, 17 Cal.App.4th at p. 346.) The court disagreed with an argument that
allegations concerning “a disputed workers’ compensation claim, job
assignments, and disability claims” did not relate to sexual harassment,
finding the argument “too narrowly define[s] the scope of Accardi’s sexual
harassment claim” as “[t]he gist of [the] complaint is that the [police
department] waged a decade-long campaign against her” due to the
department’s “unwritten policy that law enforcement has traditionally been
‘a man’s job’ and, hence, ‘no women need apply.’ ” (Id. at pp. 349-350.)

16
 Defendants attempt to distinguish Accardi on the basis that it is an
employment case and does not mention Civil Code section 51.9. Civil Code
section 51.9 was enacted in 1994, the year after Accardi was decided.
Further, while section 51.9 originally covered only sexual conduct (see
Stats. 1994, ch. 710 [§ 51.9, subd. (a)(2)] [“sexual advances, solicitations,
sexual requests, or demands for sexual compliance”]), it was amended in 1999
to expand the conduct covered to conform to the courts’ interpretation of
sexual harassment under the Fair Employment and Housing Act (FEHA).
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 519 (1999-2000 Reg. Sess.) as amended Sept. 9, 1999.) The
legislative history refers to “hostile environment sexual harassment.” (Id. at
p. 5.) The Accardi decision interpreting FEHA was emblematic of that type of
sexual harassment and was still recent when the legislation was amended.
Thus, the Legislature was presumptively aware of the Accardi definition
when it added the language “other verbal, visual, or physical conduct of a
sexual nature or of a hostile nature based upon gender” (italics added) to the
definition of sexual harassment in section 51.9. (Gaetani v. Goss-Golden West
Sheet Metal Profit Sharing Plan (2000) 84 Cal.App.4th 1118, 1127.)
2. Pleading Requirements and Demurrers
A complaint must contain “[a] statement of the facts constituting the
cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10,
subd. (a)(1).) “[T]he complaint ordinarily is sufficient if it alleges ultimate
rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th
531, 550 (Doe).) “However, distinguishing ‘ “[u]ltimate facts” ’ from
‘evidentiary’ facts and ‘ “legal conclusion[s]” ’ can be difficult. (Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial [(The Rutter Group, Edmon
& Karnow ed. 2022)] ¶ 6:124, p. 6-38 [Weil & Brown]; see Burks v. Poppy

17
Construction Co. (1962) 57 Cal.2d 463, 473 [‘distinction between conclusions
of law and ultimate facts is not at all clear’].) Generally, court and litigants
are guided in making these distinctions by the principle that a plaintiff is
required only to set forth the essential facts with ‘ “ ‘ “particularity sufficient
to acquaint a defendant with the nature, source and extent of [the plaintiff’s]
cause of action.” ’ ” ’ (Doe[,] at p. 550.)” (Foster v. Sexton (2021)
61 Cal.App.5th 998, 1027-1028 (Foster).)
“Under this doctrine of less particularity, less specificity is required in
pleading matters of which the defendant has superior knowledge.” (Foster,
supra, 61 Cal.App.5th at p. 1028.) “A plaintiff ‘need not particularize matters
“presumptively within the knowledge of the demurring” defendant.
[Citation.]’ [Citation.]” (Elder v. Pacific Bell Telephone Co. (2012)
205 Cal.App.4th 841, 858.) This includes matters such as a defendant’s
knowledge or notice or intent. (Doe, supra, 42 Cal.4th at pp. 549-550; Weil &
Brown, supra, ¶ 6:121.5, p. 6-37.) A complaint will be upheld “ ‘so long as the
pleading gives notice of the issues sufficient to enable preparation of a
defense.’ [Citation.]” (Doe, at pp. 549-550; Weil & Brown, supra, ¶ 6:121.5,
p. 6-37.)
“The scope of review for a general demurrer sustained without leave to
amend is governed by established principles: Our review is de novo. We
accept as true, and liberally construe, all properly pleaded allegations of
material fact, as well those facts which may be implied or reasonably inferred
from those allegations. [Citation.] Because such factual allegations ‘however
odd or improbable’ [citation], are to be accepted, ‘ “ ‘the question of plaintiff's
ability to prove these allegations, or the possible difficulty in making such
proof does not concern the reviewing court.’ ” ’ [Citation.] ‘[A]ny particular
count which is well pleaded will not be affected by defects in a separate cause

18
of action, so long as inconsistent or antagonistic facts are not pled.’
[Citation.]
“On the other hand, we do not accept contentions, deductions, or
conclusions of fact or law. [Citation.] Similarly, although we permit some
latitude to ‘ “the accuracy with which [the plaintiff] describes the defendant's
conduct” ’ [citation], we are not bound to respect a pleader’s ‘legal
characterization’ of events or transactions. [Citation.] Our sole consideration
is an issue of law—whether the plaintiff’s complaint is sufficient ‘to state a
cause of action under any legal theory.’ [Citations.] Stated another way, the
complaint ‘survives a general demurrer insofar as its states, however
inartfully, facts disclosing some right to relief.’ [Citations.]” (O’Grady v.
Merchant Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, 776-777.)
3. Thomas Sufficiently Pleaded Sexual Harassment by
McGuire.
The elements of a cause of action for sexual harassment under Civil
Code section 51.9 are 1) a “business, service, or professional relationship
between the plaintiff and defendant”; 2) the defendant “made sexual
advances, solicitations, sexual requests, demands for sexual compliance by
the plaintiff, or engaged in other verbal, visual, or physical conduct of a
sexual nature or of a hostile nature based on gender”; 3) the defendant’s
conduct was “unwelcome and pervasive or severe”; and 4) the plaintiff “has
suffered or will suffer economic loss or disadvantage or personal injury,
including, but not limited to, emotional distress or the violation of a statutory
or constitutional right, as a result of the [defendant’s] conduct.” (Civ. Code,
§ 51.9; CACI No. 3065.)
The parties dispute whether Thomas sufficiently alleged conduct of the
required nature and pervasiveness or severity. In our view, she did.

19
 As earlier explained, Thomas claims sexual harassment in the form of a
hostile environment—that McGuire, in the words of Civil Code section 51.9,
“engaged in . . . verbal, visual, or physical conduct . . . of a hostile nature
based on gender” that was “unwelcome and pervasive or severe.” She alleged
that McGuire “berated” the players in front of the team “to make an example
out of them and strike fear in the witnessing athletes”; called the players
names, cursed at them and “degraded them with personal insults”;
“tormented them psychologically”; “punished them with grueling workouts”;
and was described to the UCB athletic administration as “creating a culture
of fear and intimidation.” This included making “unwelcome and
inappropriate comments about players’ bodies,” “call[ing] out the physique of
one player in front of the team and call[ing] her weak” and “berat[ing] a
young woman for having what he perceived as a hickey on her neck.”
Thomas alleged that his conduct made her feel she had to be “absolutely
perfect” and caused her and her teammates to “tread extremely lightly
around [McGuire]” to “avoid drawing his aggression or being retaliated
against.” Team members and their parents complained to the athletics
department and to the UCB Chancellor about the “abuse.”
These allegations unquestionably describe pervasive bullying behavior
toward the young women on the soccer team that created a hostile
environment. The defendants argue (and the trial court concluded) that they
do not allege pervasive sexual harassment because the alleged conduct and
comments were not of a sexual or hostile gender-based nature. We disagree.
As we have explained, “there is no legal requirement that hostile acts be
overtly sex- or gender-specific in content, whether marked by language, by
sex or gender stereotypes, or by sexual overtures.” (E.E.O.C., supra, 422 F.3d
at p. 844.) Even with no express reference to sex or gender, harassment

20
creating a hostile environment may constitute sexual harassment if the
plaintiff can prove “ ‘ “she would not have been treated in the same
manner” ’ ” if she were a man. (Accardi, supra, 17 Cal.App.4th at p. 348.)7
The required showing—“that the harassing conduct took place because
of the plaintiff's sex” (Pantoja, supra, 198 Cal.App.4th at p. 114)—necessarily
means “the defendant’s discriminatory mental state is crucial.” (Id. at

7 Our colleague contends that Senate amendments to Assembly Bill
No. 519, which added the hostile environment form of sexual harassment to
section 51.9, “changed the language to require that the wrongful acts of a
hostile nature be explicitly ‘based on gender.’ ” (Conc. & dis. opn. at p. 3,
italics added.) The Senate amendment did no such thing. It added language
to indicate that acts, whether of a sexual nature or of a hostile nature, must
be “based on gender.” There is no indication this was intended as a departure
from the interpretation of sexual harassment under FEHA and other sexual
harassment laws as not requiring conduct or statements to explicitly
reference sex or gender. (See discussion, ante, pp. 15-16.) The legislation
was designed to conform the definition of sexual harassment in section 51.9
to the interpretation of sexual harassment in FEHA cases, not to change that
interpretation. (See discussion, ante, p. 17.)
Our colleague also sets up a straw man, implying that if the conduct is
not explicitly gender-based, then section 51.9 will be turned into a “general
civility code” or means of “polic[ing] workplace insensitivity.” Besides
trivializing the allegations of plaintiffs and other women athletes who have
been treated especially harshly by coaches in a manner perceived as based on
their gender, the argument misses the point. A plaintiff must ultimately
prove that the defendant’s conduct was rooted in gender-based hostility or
animus, for example, with evidence that the defendant exhibits a sense of
power and importance when humiliating women or has chosen to coach
females because he is more comfortable bullying women than men. (Accardi,
supra, 17 Cal.App.4th at p. 348.) The burden of proving motivation and
intent in a case like this one may ultimately be insurmountable. But
contrary to the dissent, it is not our position that conduct need not be sex- or
gender-based to amount to actionable sexual harassment. Rather, where we
differ is in recognizing that ultimately the question is one of intent, which
need not be alleged with particularity at the pleading stage.

21
p. 115.) “[T]he plaintiff must show a discriminatory intent or motivation
based on gender” (id. at p. 114), which often must be accomplished through
circumstantial evidence and inferences rather than direct evidence. (Id. at
pp. 113; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.) This
rule applies to sexual harassment cases. As our Division One colleagues
observed in Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525, “To
prove sexual harassment, a plaintiff must show he or she suffered
discrimination because of sex. . . . A FEHA plaintiff must show ‘ “ ‘that
gender is a substantial factor in the discrimination, and that if the plaintiff
“had been a man she would not have been treated in the same
manner.” ’ ” ’ . . . ‘Because proof of discriminatory intent often depends on
inferences rather than on direct evidence, very little evidence of such intent is
necessary to defeat summary judgment.’ ”
E.E.O.C., supra, 422 F.3d at page 844, provides one illustration. In
that case, the repeated “shouting, ‘screaming,’ foul language, invading
employees’ personal space . . . , and threatening physical gestures” on which
the plaintiffs’ sexual harassment claim was based “was not, on its face, sex-
or gender-related.” (Id. at p. 844, fn. omitted.) But there was evidence the
behavior was more severe, more frequent and more threatening toward
women than toward men and resulted in very different subjective effects—a
factor deemed relevant in determining whether women and men were treated
differently. (Id. at pp. 845-846.) E.E.O.C. held that “offensive conduct that is
not facially sex-specific nonetheless may violate Title VII if there is sufficient
circumstantial evidence of qualitative and quantitative differences in the
harassment suffered by female and male employees.” (Id. at p. 842.)
The present case is not directly analogous; because McGuire was the
coach of a women’s team, Thomas did not allege facts suggesting any

22
disparity between McGuire’s behavior toward women and his behavior
toward men. This kind of disparate treatment in the context of a single-
gender sport’s team is necessarily more difficult to prove than in a mixed-
gender workplace; McGuire was not the coach of the men’s soccer team (or, as
far as we know, any other men’s sports team). But inability to compare the
defendant’s behavior toward women with his behavior toward men does not
defeat a claim of sexual harassment. It simply requires that bias or
discriminatory intent be established by some other route.
At the demurrer stage, Thomas was not required to prove anything,
only to allege facts showing or supporting an inference of sexual harassment.
Because the intent and motivation behind McGuire’s boorish treatment of his
student soccer players are uniquely within his knowledge, Thomas was not
required to allege these matters with particularity. (Doe, supra, 42 Cal.4th at
pp. 549-551; Foster, supra, 61 Cal.App.5th at p. 1028; Elder v. Pacific Bell
Telephone Co., supra, 205 Cal.App.4th at p. 858.) At this stage, her
allegations of pervasive on-going harassment, combined with the general
allegation that gender was “[a] substantial motivating reason for [McGuire’s]
conduct” are sufficient.
Further, some of Thomas’s allegations do support a reasonable
inference that the harassment was based on gender, as they describe
McGuire referring to players’ sexual activity (berating a young woman for
having a hickey on her neck) or making comments that implicate gender-
based stereotypes and expectations (comments about young women’s bodies;
“calling out” a young woman’s physique and calling her “weak”).8 Defendants

8 It has been noted that “[a]thletics breed special opportunities for
sexual harassment” in part because “[a]thletics appropriately entail much
focus on athletes’ bodies[,]” which can become “excessive.” (Hogshead-Makar

23
(and the trial court), considering each of these allegations in isolation,
dismissed them as not “sexual in nature” and not pervasive or severe. The
conclusion that calling a player weak was not “of a sexual nature in the
context of athletic coaching” was a factual determination that should have
been made on the basis of whatever evidence Thomas eventually presented,
not decided as a matter of law on demurrer. The trial court’s description of
Thomas alleging that McGuire “commented on players’ bodies because he
called a player ‘weak’ ” inaccurately conflated an allegation of a single specific
example (“[h]e called out the physique of one player in front of the team and
called her weak”) with an allegation of on-going behavior (“[h]e made
unwelcome and inappropriate comments about players’ bodies”), thereby
minimizing the extent of the alleged conduct. The trial court dismissed
Thomas’s allegation that McGuire berated a player for having a hickey on her
neck because Thomas did not allege she was present for the incident or aware
of it while she was on the team, but Thomas addressed this point in her
second amended complaint, which expressly alleged she was “present for this
tirade.”
Although most of Thomas’s allegations describing harassment did not
expressly refer to sex or gender, even a small number of gender-based actions
or comments may cast light on unexpressed implications in or motives for
other more gender-neutral harassment. The defendants’ (and the trial
court’s) focus on specific allegations in isolation is contrary to the principle

& Steinbach, Intercollegiate Athletics’ Unique Environments for Sexual
Harassment Claims: Balancing the Realities of Athletics with Preventing
Potential Claims (2003) 13 Marq. Sports L. Rev. 173, 175, 178.) Coaches
inappropriately focusing on athletes’ bodies, including weight, and
“ ‘subject[ing] them to public ridicule about their diets and bodies’ ” have been
noted as among the behaviors that may give rise to claims of sexual
harassment. (Id. at pp. 178-179.)

24
that “the existence of a hostile . . . environment depends upon ‘the totality of
the circumstances.’ ” (Hughes, supra, 46 Cal.4th at p. 1044, quoting Miller v.
Department of Corrections, supra, 36 Cal.4th at p. 462.)
Defendants further argue the allegations are insufficient because
Thomas alleged only two incidents in which McGuire’s behavior was
specifically directed at her. But the fact that much of the harassment
Thomas alleged was not directed at her individually does not undermine her
hostile environment claim.
A plaintiff may be the victim of hostile environment sexual harassment
“ ‘even though no offensive remarks or touchings are directed to or
perpetrated upon’ ” her. (Lyle, supra, 38 Cal.4th at p. 284, quoting Fisher,
supra, 214 Cal.App.3d at p. 610 and fn. 8.) Lyle explained that because
“sexual conduct that involves or is aimed at persons other than the plaintiff is
considered less offensive and severe than conduct that is directed at the
plaintiff[,]” a hostile environment sexual harassment claim based on conduct
not directed at the plaintiff requires the “ ‘higher showing’ ” that “ ‘the
sexually harassing conduct permeated [her] direct work environment.’ ”
(Lyle, at pp. 284-285, quoting Fisher, at p. 610.)
The first amended complaint satisfied this standard. It describes an
environment permeated by McGuire’s bullying and abusive conduct, with
individual players berated in front of the whole team “to make an example of
them and strike fear in the witnessing athletes,” “creating a culture of fear
and intimidation” in which Thomas and her teammates tried to “tread
extremely lightly” to avoid “drawing [McGuire’s] anger or retaliation.”
Thomas alleged that she “experienced and witnessed” McGuire’s abusive
behavior and “sat through tirades” in which McGuire’s hostility was directed
at the entire team as well as at individual players. In effect, she alleged a

25
hostile environment in which sexual harassment of individual young women
on the team was intended to be, and was, perceived and experienced by all.9
The only reasonable inference to be drawn from the allegations is that the
behavior complained of was “a pattern of continuous, pervasive
harassment[,]” not just “isolated instances[,]” and that it occurred in
Thomas’s presence. (Fisher, supra, 214 Cal.App.3d at p. 611.)10
The context of the present case is entirely different from a case like
Fisher, in which the allegations of a hostile environment due to sexual
harassment of women other than the plaintiff were insufficient to establish

9 Thomas argues that the trial court erred in concluding her sexual
harassment claim failed because she could not link her sexual harassment
allegations with her release from the team. She maintains her release was
only one type of harm she suffered and for purposes of her sexual harassment
claim it was sufficient that she alleged suffering emotional distress. The trial
court’s ruling discussed Thomas’s failure to allege facts showing
discrimination was the reason for her release from the team in its analysis of
her claim under section 51; it did not refer to this point in its separate
analysis of sexual harassment under section 51.9.
10 Singling out Thomas’s allegation concerning McGuire’s comment
about a player having a hickey, defendants assert that Fisher “makes clear
that unless Thomas was present for this alleged isolated incident, it is
irrelevant.” As we have said, Thomas alleged in her second amended
complaint that she was present for the incident. In any event, as noted in
Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 520, Fisher was
addressing a situation where the plaintiff’s claim was based entirely on
conduct directed at others; Beyda disagreed with Fisher to the extent it could
be “understood to require that a plaintiff personally witness any act relied
upon to prove hostile environment.” As Beyda explained, “a person can
perceive, and be affected by, harassing conduct” in the relevant environment
“by knowledge of that harassment” as well as by “personal observation.”
(Beyda, at p. 521.) Further, even if not known to the plaintiff, a defendant’s
harassment of others may be relevant to prove the defendant’s intent or
motive for conduct alleged to have created a hostile environment. (Pantoja,
supra, 198 Cal.App.4th at pp. 114-116.)

26
“the nexus between the alleged acts and [the plaintiff’s] work environment.
(Fisher, supra, 214 Cal.App.3d at p. 614.) The plaintiff in Fisher, a surgical
nurse, alleged the defendant doctor created a hostile work environment at the
hospital where both worked by sexually harassing other women in her
presence. (Id. at p. 612.) Although the complaint described what occurred in
general terms, it did not indicate the “frequency or intensity” of the acts, such
as whether each act the complaint described occurred once during the four-
year period at issue or “on a daily or weekly basis” and whether, considering
the specific work environment, the plaintiff observed them in passing or in
circumstances where she was required to be present. (Id. at pp. 613-614.)
Here, Thomas alleged sexual harassment in a team setting, directed at the
entire team and at individual players in the presence of the team. While she
did not specifically allege the frequency of McGuire’s acts and remarks, the
level of detail Fisher required is not necessary because the circumstances
present no uncertainty as to the nexus between the behavior alleged and
Thomas’s immediate environment and experience.11

11 To the extent Fisher implies that a heightened pleading standard is
justified in hostile environment sexual harassment cases due to the “ease
with which these claims can be made despite their serious nature” (see
Fisher, supra, 214 Cal.App.3d at pp. 613-614), we disagree. The same logic
was long used to justify the requirement that juries in criminal sexual
assault cases be instructed to “ ‘ “examine the testimony of the female person
named in the information with caution” ’ ” because such charges are “ ‘ “easily
made and, once made, difficult to defend against, even if the person accused
is innocent.” ’ ” (People v. Gammage (1992) 2 Cal.4th 693, 695.) The
cautionary instruction was disapproved almost 50 years ago for reasons
including that the low rate of successful prosecutions for such offenses
showed defendants were not “subject to capricious conviction.” (People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 879-882.) We reject any implication
that sexual harassment victims’ claims are not to be trusted.

27
 We do not know whether Thomas will be able to prove that McGuire
harassed her “because of” her gender—that the behavior she alleged, if it
occurred, was not just a gender-neutral function of his coaching style. But
“[t]he question of [a] plaintiff’s ability to prove [the] allegations, or the
possible difficulty in making such proof does not concern the reviewing court”
in evaluating the sufficiency of a complaint to withstand demurrer. (Alcorn v.
Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Thomas alleged she was
subjected to an environment permeated by McGuire’s abusive behavior
toward her and the other members of the UCB women’s soccer team during
the season she played for the team. She alleged that her gender was a
“substantial motivating reason” for McGuire’s conduct and alleged ample
facts to inform McGuire of the basis for her claim and enable him to prepare
a defense. Liberally construing the complaint, as we must, her allegations
are sufficient to state a cause of action for sexual harassment under Civil
Code section 51.9, and her mistake in framing her claim as a violation of the
Unruh Act can be cured easily by amendment. The trial court erred in
sustaining McGuire’s demurrer without leave to amend.12

12 Defendants argue that between the federal court action and the
present one, Thomas has had five opportunities to state her sexual
harassment claim, and the superior court emphasized the opportunities
Thomas had had to plead her claim in federal court. Thomas complains that
the superior court gave her only one opportunity to do so. Thomas’s position
is based on the fact that the federal court ultimately refrained from
exercising jurisdiction over her state law claims. But it did so on
reconsideration, after initially issuing a decision finding Thomas failed to
state a claim for violation of the Unruh Act for the same reasons it found she
failed to state a claim for gender discrimination in violation of Title IX.
Defendants are not wrong in stating that Thomas had more chances to plead
her claims than she acknowledges.

28
 4. Thomas Sufficiently Pleaded Her Claim Against UCB But
Not Against Knowlton.
As to Knowlton and UCB, Thomas’s theory of liability is that Knowlton
was aware of and failed to act on complaints about McGuire’s misconduct; his
failure to act constituted ratification of the misconduct; and his ratification is
properly imputed to UCB as his employer. Defendants argue the demurrer
was properly sustained as to Knowlton because Thomas has provided no legal
authority for imposing liability on him under Civil Code section 51.9 and as
to UCB because Thomas did not allege UCB ratified McGuire’s conduct.
Defendants also argue that Thomas did not allege Knowlton and/or UCB
received complaints of sexual harassment by McGuire.
Ratification is a principle of agency law. (Civ. Code, § 2307 [“An agency
may be created, and an authority may be conferred, by a precedent
authorization or a subsequent ratification”]; Rakestraw v. Rodrigues (1972)

Nevertheless, Thomas is correct that she was afforded only one
opportunity to have her claims evaluated under state notice pleading
standards, which are not the same as federal standards governing motions to
dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure. (Morris v.
JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 304, fn. 14.) Even in
an area where substantive principles are transferable from federal
authorities to state cases, as Morris cautioned, “[i]t should not be assumed
that the standards governing motions to dismiss in federal court and
demurrers in state court are the same” and “trial courts should be cognizant
that federal district judges have more latitude to dismiss claims at the
pleading stage . . . than California trial judges have under our traditional
notice pleading standards.” (Ibid.) For example, when California trial courts
consider a demurrer, “ ‘the facts alleged in the pleading are deemed to be
true, however improbable they may be’ ” (Hacker v. Homeward Residential,
Inc. (2018) 26 Cal.App.5th 270, 280), while in federal court, “to survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
(Ashcroft v. Iqbal (2009) 556 U.S. 662, 678, quoting Bell Atlantic Corp. v.
Twombly (2007) 550 U.S. 544.)

29
8 Cal.3d 67, 72 [ratification as “traditional principle of agency law”]; C.R. v.
Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 (C.R.) [ratification
as alternative to respondeat superior for employer’s liability for employee’s
misconduct].) “ ‘The theory of ratification is generally applied where an
employer fails to investigate or respond to charges that an employee
committed an intentional tort, such as assault or battery. [Citations.]
Whether an employer has ratified an employee’s conduct is generally a
factual question. [Citation.]’ [Citations.]” (C.R., at pp. 1110-1111.)
“Principles of ratification apply to a section 51.9 cause of action.” (Id. at
p. 1111.)
According to Thomas’s allegations, there had been “documented
incidents” of McGuire behaving “erratically and abusively” toward the women
on his soccer team since “at least 2009”; McGuire’s “behavior was described to
the [UCB] athletics administration as creating a culture of fear and
intimidation”; and players and their parents complained about McGuire’s
conduct to Knowlton and “others in the [UCB] administration,” but Knowlton
and other administrators “disregarded and ignored” the complaints and
“allowed [McGuire] to continue his ill treatment of the women athletes on the
soccer team.” More specifically, as earlier described, the complaint alleged
that McGuire’s assistant athletic trainer reported that McGuire “physically
and psychologically abused his team”; a four-page letter from a team
member’s mother documented “the abuses suffered by her daughter and other
female athletes”; three team members, at a meeting with Knowlton and
Simon-O’Neill, “voice[d] their concerns” about McGuire’s “mistreatment”; and
a report by the OPHD confirmed it had received a report about McGuire’s
“inappropriate comments about young women’s bodies and about ‘hickeys’ on
the young women’s necks.” Thomas alleged that the players who voiced their

30
concerns were told “there was nothing they could say that would result in
[McGuire’s] termination,” the parent who wrote the letter and subsequently
attempted to meet with the Chancellor was told the complaints were “not
validated,” and the OPHD offered “support services to the player” but did not
“intervene” with McGuire.
An employer’s “failure to investigate or respond to charges that an
employee has committed an intentional tort” or “failure to discharge the
employee may be evidence of ratification” by the employer. (Samantha B. v.
Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109 (Samantha B.);
C.R., supra, 169 Cal.App.4th at p. 1110.) Thomas alleged that Knowlton
received multiple complaints that McGuire was mistreating the players on
the women’s soccer team. We are not persuaded by defendants’ arguments
that Thomas failed to allege the complaints were of sexual harassment.
Defendants emphasize that Thomas’s allegations do not describe the
complaints as expressly referencing sex or gender. But it is apparent the
“abuse” and “mistreatment” Thomas alleges Knowlton was informed of was
the conduct she alleged McGuire committed. For the reasons discussed in
Discussion part II.B.3 ante, the first amended complaint is fairly read as
alleging conduct amounting to sexual harassment in the form of a hostile
environment based on gender.
Thomas alleged that Knowlton ignored and disregarded the complaints
about McGuire’s conduct and that Knowlton, as head of the athletics
department, was acting as the agent of UCB. These allegations were
sufficient to state a claim for employer liability based on ratification.
(Samantha B., supra, 77 Cal.App.5th at p. 109 [sufficient evidence to avoid
nonsuit on claim that hospital ratified employee’s sexual abuse of patients;
hospital failed to investigate after supervisor informed of employee’s

31
reputation for this conduct]; C.R., supra, 169 Cal.App.4th at p. 1112
[allegations that managing agents and supervisors were aware employee was
sexually abusing patients but refused to take disciplinary or protective action
and hid or destroyed evidence sufficient for claim that employer ratified
employee’s sexual misconduct].)
Defendants argue Thomas failed to state this claim against UCB
because she did not allege that UCB ratified McGuire’s alleged misconduct.
By alleging that Knowlton ratified the misconduct while acting in the course
and scope of his employment and agency for UCB, however, Thomas did in
effect allege UCB ratified it. Moreover, an allegation that UCB ratified
McGuire’s conduct would be conclusory. What matters is whether Thomas
alleged the ultimate facts showing ratification, which she did through her
allegations that Knowlton, acting as UCB’s employee and agent in his
capacity as director of the athletics department, was informed of the
misconduct but disregarded it.
Defendants also assert that Thomas “concede[d]” in her opening brief
that “it is the person who is liable for their actions, because generally, an
employer is not liable for the sexual torts of its employees.” Read in context,
Thomas does not appear to have “conceded” anything more than that an
employer’s liability for sexual torts or sexual harassment is vicarious—based
on its employee’s misconduct. Samantha B., the case Thomas cites in support
of the quoted statement, explained that under respondeat superior principles,
while employers “generally” are not liable for sexual assaults committed by
their employees, the employers may be vicariously liable if—as in that case—
the sexual assault is deemed “within the scope of employment” because “ ‘its
motivating emotions were fairly attributable to work-related events or
conditions.’ ” (Samantha B., supra, 77 Cal.App.5th at pp. 107-108.)

32
Samantha B. went on to discuss ratification as an alternative theory of
liability and to find substantial evidence that the employer ratified the
employee’s misconduct—the theory of liability Thomas pursues here.
Thomas’s attempt to impose personal liability on Knowlton for ratifying
McGuire’s alleged misconduct is a different matter. There is no allegation
that McGuire was acting as Knowlton’s agent, only that McGuire and
Knowlton were each the employee and agent of UCB. Knowlton’s ratification
of misconduct by McGuire may be the basis of UCB’s liability as employer,
but Thomas did not allege that Knowlton was McGuire’s employer or had an
agency relationship with him, and the facts do not support any inference to
that effect.13
The cases Thomas cites support her theory that UCB may be liable due
to Knowlton’s ratification of McGuire’s conduct but do not support imposing
personal liability on Knowlton. (Mathieu v. Norrell Corp. (2004)
115 Cal.App.4th 1174, 1182-1183 [“[I]f sexual harassment is perpetrated by a
coworker, an employer is liable if it fails to take immediate and appropriate
corrective action when reasonably made aware of the conduct”]; Birschtein v.
New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1007 [“[A]
managerial failure to intervene effectively to prevent or end sexual
harassment in the workplace by a fellow employee can amount to a
ratification of the misconduct for which the employer may be held liable”].)

13 “An actual agency also may be created by ratification. (Civ. Code,
§ 2307; see 2 Witkin, Summary of Cal. Law [9th ed. 1987] Agency &
Employment, § 39, pp. 51-52.)” (van’t Rood v. County of Santa Clara (2003)
113 Cal.App.4th 549, 571.) “But ‘ratification is possible only when the person
whose unauthorized act is to be accepted purported to act as agent for the
ratifying party.’ (2 Witkin, Summary of Cal. Law, supra, Agency &
Employment, § 39, p. 52, italics omitted.)” (Ibid.)

33
 We conclude the trial court properly sustained Knowlton’s demurrer to
the Civil Code section 51.9 cause of action but erred in sustaining UCB’s
demurrer to this cause of action.
III.
Negligence
A. Background
Thomas’s cause of action for negligence alleged that McGuire and
Knowlton, as her coach and athletic director, had a “special duty of care” to
“avoid subjecting her to discrimination based upon her gender and the
injuries she would suffer as a result of such discrimination” and breached
that duty of care by releasing Thomas from the team “despite her high
quality performance.” Thomas alleged that UCB was liable for the “unlawful
actions of its employees” pursuant to Government Code section 815.2.
In sustaining the demurrer, the trial court found that there is no
common law cause of action for negligent gender discrimination; in any case,
Thomas did not adequately allege gender discrimination; and Thomas failed
to explain how any “special relationship” created a duty for McGuire to keep
her on the team, how the defendants breached any such duty or the decision
to release her from the team was negligent.
B. Analysis
1. Thomas Failed to State a Negligence Claim Against
McGuire.
As defendants point out, Thomas’s opening brief on appeal appears to
abandon her negligence claim against McGuire, arguing only that “[t]he
superior court’s dismissal of [her] negligence claim against Knowlton and
[UCB] was in error.” Thomas then argues in her reply brief that “[t]here is
no question that McGuire owed [her] a duty of care” which he
“violated . . . when he mistreated her while she was a freshman member of

34
the soccer team.” Her cursory argument advances a new theory that
McGuire’s sexual harassment violated his duty of care under Civil Code
section 1714 (“[e]veryone is responsible . . . for an injury occasioned to
another by his or her want of ordinary care or skill in the management of his
or her property or person”) and there is “no barrier for [her] to recover for
emotional distress resulting from his negligence.”14 She does not argue
McGuire breached a duty of care to her by releasing her from the team, which
is the theory she alleged in the first amended complaint.
Thomas offers no explanation for reversing her previously stated
limitation of the negligence claim to Knowlton and UCB, and “[r]aising a new
theory in a reply brief is improper and unfair to defendants.” (Simpson v.
The Kroger Corp. (2013) 219 Cal.App.4th 1352, 1370 [appellate court may
decline consideration of argument first raised in reply brief absent
demonstration of good cause for delay].) In any event, to the extent Thomas
has not abandoned a claim of negligence against McGuire predicated on
sexual harassment, she fails to explain how such a claim would be anything
other than a common law cause of action for sexual harassment, which does
not exist. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403,
1426-1427 [“There is no common law cause of action for sexual harassment,
but conduct constituting sexual harassment may be alleged in common law
claims such as battery and intentional infliction of emotional distress”];
Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109,

14 For this point, Thomas cites Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 985, a toxic exposure case that held a plaintiff may
recover damages for emotional distress “if the emotional distress arises out of
the defendant’s breach of some other legal duty and the emotional distress is
proximately caused by that breach of duty.” (Id. at p. 985 [damages for
emotional distress caused by fear of cancer].)

35
118-119 [“plaintiff cites no authority supporting a common law cause of
action for sexual harassment”; “cause of action for sexual harassment is a
creature of statute”].)
2. Thomas Failed to Sufficiently Plead a Negligence Claim
Against Knowlton and UCB.
Thomas argues that Knowlton and UCB owed her a special duty to
protect her from foreseeable injury by a third party. (Regents of Univ. of
California v. Superior Court (2018) 4 Cal.5th 607, 613 (Regents) [university
has special relationship with students imposing duty to protect them from
foreseeable violence during curricular activities]; C.A. v. William S. Hart
Union High Sch. Dist. (2012) 53 Cal.4th 861, 868 (C.A.) [school district may
be liable for negligence of administrators and supervisors in hiring,
supervising and retaining employee who sexually abuses student].) She
maintains that she adequately pled her claim by alleging that McGuire
sexually harassed her and other female student athletes, defendants had
known about his behavior since 2009, an athletic trainer, students and
parents reported his behavior immediately before and during the season
Thomas played for the team, and Knowlton and UCB did nothing to
intervene and protect her and others from McGuire’s misconduct.15

15 Thomas’s theory of liability as to Knowlton and UCB significantly
differs from the theory pleaded in her first amended complaint, that
Knowlton breached a special duty to avoid subjecting her to gender
discrimination by releasing her from the soccer team and that UCB was
liable for his action under Government Code section 815.2. On this appeal,
Thomas disavows reliance on release from the team as the harm she suffered
and argues her negligence claim against UCB is based on Knowlton’s
negligence in failing to take action in response to complaints that McGuire
was subjecting Thomas and her teammates to a gender-based hostile
environment, which caused her emotional distress. She had argued this
theory in her opposition to the demurrer; defendants challenged her attempt

36
 Defendants argue Regents and C.A. are distinguishable, largely based
on defendants’ view that Thomas failed to plead that the risk of McGuire
sexually harassing her was foreseeable to Knowlton or UCB. We have
rejected defendants’ arguments that Thomas failed to plead she was sexually
harassed by McGuire and failed to plead that Knowlton received complaints
informing him that McGuire was sexually harassing his team. Nevertheless,
we are not convinced that Regents and C.A. support finding the duty Thomas
seeks to impose on Knowlton and UCB in the circumstances here.
a. The “College-Student” Special Relationship
The “ ‘special relationship’ doctrine” is an exception to the rule that
“there is generally no duty to protect others from the conduct of third
parties.” (Regents, supra, 4 Cal.4th at p. 627.) Special relationships
generally have “an aspect of dependency in which one party relies to some
degree on the other for protection” and “the other has superior control over
the means of protection,” and they “create a duty of care owed to a limited
community, not the public at large.” (Id. at pp. 620-621.)
C.A. explained that “a school district and its employees have a special
relationship with the district’s pupils, a relationship arising from the
mandatory character of school attendance and the comprehensive control

to argue a claim she did not plead and did not address its substance, and the
trial court did not comment on the matter. But in determining the sufficiency
of a complaint against a demurrer, the question is whether
“ ‘the factual allegations of the complaint are adequate to state a cause of
action under any legal theory. The courts of this state have . . . long since
departed from holding a plaintiff strictly to the “form of action” he has
pleaded and instead have adopted the more flexible approach of examining
the facts alleged to determine if a demurrer should be sustained.’
[Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th
26, 38.)

37
over students exercised by school personnel, ‘analogous in many ways to the
relationship between parents and their children.’ [Citations.]” (C.A., supra,
53 Cal.4th at p. 869.) The special relationship imposes “obligations beyond
what each person generally owes others under Civil Code section 1714,”
including “the duty to use reasonable measures to protect students from
foreseeable injury at the hands of third parties acting negligently or
intentionally.” (Id. at p. 870.)
Regents recognized a “similar special relationship . . . in the college
setting,” concluding “postsecondary schools do have a special relationship
with students while they are engaged in activities that are part of the school’s
curriculum or closely related to its delivery of educational services. (Regents,
supra, 4 Cal.4th at pp. 624-625.) “Although college students may no longer
be minors under the law, they may still be learning how to navigate the world
as adults. They are dependent on their college communities to provide
structure, guidance, and a safe learning environment. [¶] . . . [¶] The college-
student relationship thus fits within the paradigm of a special relationship.
Students are comparatively vulnerable and dependent on their colleges for a
safe environment. Colleges have a superior ability to provide that safety with
respect to activities they sponsor or facilities they control. Moreover, this
relationship is bounded by the student’s enrollment status. Colleges do not
have a special relationship with the world at large, but only with their
enrolled students. The population is limited, as is the relationship’s
duration.” (Id. at pp. 625-626.)
The plaintiff in Regents was a student who was stabbed by another
student during class in a chemistry laboratory. (Regents, supra, 4 Cal.4th at
p. 617.) As the court stated, “[e]ducation is at the core of a college’s mission,
and the classroom is the quintessential setting for curricular activities.

38
Perhaps more than any other place on campus, colleges can be expected to
retain a measure of control over the classroom environment.” (Id. at p. 627.)
With respect to the existence of a college-student special relationship, the
athletic team setting is not meaningfully different. As Regents noted, one of
the “unique features of the college environment” is that “[a]long with
educational services, colleges provide students social, athletic, and cultural
opportunities.” (Id. at pp. 624-625.) “[A]thletic competition is often an
important part of the college environment, benefiting both the students who
participate and the schools they represent.” (Id. at p. 624.) Thomas alleged
that McGuire subjected her and her teammates to sexual harassment during
practices and training sessions.
Regents appears to compel a conclusion that the coach of a university
sports team has a special relationship with an undergraduate student athlete
on that team. It does not necessarily follow, however, that the existence of
this special relationship entails the particular protective duty Thomas seeks
to impose.
b. Scope of the Duty
As Regents explained, “[w]hether a new duty should be imposed in any
particular context is essentially a question of public policy. ‘The existence of
“ ‘ “[d]uty” is not an immutable fact of nature “ ‘but only an expression of the
sum total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection.’ ” ’ ” [Citation.]’ [Citation.]”
(Regents, supra, 4 Cal.5th at pp. 627-628.) Additionally, a number of factors
“may, on balance, justify excusing or limiting a defendant’s duty of care.
These include: ‘the foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the moral blame

39
attached to the defendant’s conduct, the policy of preventing future harm, the
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 the
availability, cost, and prevalence of insurance for the risk involved.’
(Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)” (Id. at p. 628.)
As defendants point out, unlike the present case, Regents and C.A.
involved schools’ failure to protect students from physical injury. C.A. held
that “a public school district may be vicariously liable under section 815.2 for
the negligence of administrators or supervisors in hiring, supervising and
retaining a school employee who sexually harasses and abuses a student.”
(C.A., supra, 53 Cal.4th at p. 879.) The facts make clear that the “sexual
harassment” was physical: Plaintiff alleged that when he was 14 to 15 years
old, his high school guidance counselor exploited her position of authority and
trust to require him to engage in sexual activities with her. (Id. at p. 866.)
Alleging that the defendants knew or should have known of the counselor’s
past sexual abuse of minors and propensity to engage in such abuse, the
plaintiff sought to hold the school district liable for the negligence of
supervisory and administrative personnel in hiring, retaining and
inadequately supervising the counselor. (Id. at pp. 865-867.)
The plaintiff in Regents was a student who was stabbed during a
chemistry lab by a fellow student who school administrators knew was
experiencing auditory delusions and believed other students, specifically
including the plaintiff, were harassing him. (Regents, supra, 4 Cal.5th at
pp. 613-617.) Regents held that “universities have a special relationship with
their students and a duty to protect them from foreseeable violence during
curricular activities.” (Id. at p. 613.)

40
 Thomas alleges she was harmed not physically but psychologically and
emotionally by being subjected to a hostile environment due to sexual
harassment. She argues that the absence of physical injury does not
distinguish her claim from those in Regents and C.A. but engages in none of
the analysis those cases employed to determine whether the institution owed
a duty to protect against the harm inflicted. Thomas asserts that “[a]lthough
[Regents] and [C.A.] dealt with shocking physical conduct as well as, in the
case of C.A., sexual harassing conduct, both cases support the conclusion that
a special relationship exists between a student and her University where she
in engaged in school activities,” then appears to assume this special
relationship necessarily supports a duty to take reasonable measures to
protect students against any foreseeable injury or harm inflicted by a third
party.
Regents and C.A. both analyzed the Rowland factors in determining the
scope of the duty arising from the school-student special relationship they
recognized, Regents in considerable depth. (Regents, supra, 4 Cal.5th at
pp. 628-634; C.A., supra, 53 Cal.4th at pp. 877-879.) The type of harm at
issue was an obvious factor in these analyses. Regents noted, for example,
that while “ ‘the degree of certainty that the plaintiff suffered injury’
(Rowland, supra, 69 Cal.2d at p. 113, italics added [in Regents]) may come
into play when the plaintiff’s claim involves intangible harm, such as
emotional distress[,]” Regents was “addressing claims for physical injuries
that are capable of identification.” (Regents, at p. 630.) The C.A. court
addressed the significance of physical injury with respect to the “moral blame
attached to the defendant’s conduct” regarding hiring or retention, explaining
that “unless the employee’s propensities posed a substantial risk of personal
injury to the plaintiff or others in the same circumstances, there is again

41
little moral blame to assign.” (C.A., at pp. 877, fn.8, 878.) C.A. noted a
previous case in which it held that school district staff had a duty not to
misrepresent in letters of recommendation the character and qualifications of
a previously employed teacher with a history of sexual misconduct, but
limited liability to “circumstances in which the misrepresentation
‘present[ed] a substantial, foreseeable risk of physical injury to the third
persons.’ ” (Id. at p. 877, quoting Randi W. v. Muroc Joint Unified School
Dist. (1997) 14 Cal.4th 1066, 1081.)
The cases concerning the school- or college-student relationship
discussed in Regents and C.A. similarly involved claims of physical violence
or sexual abuse. (E.g., J.H. v. Los Angeles Unified School District (2010)
183 Cal.App.4th 123, 127, 148 [physical and sexual assault and battery of
student by other students during after school program on grade school
campus; duty of ordinary care in supervision of children on school premises];
Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 152, 162-163
[college baseball player injured by pitch to head; duty of school hosting
intercollegiate athletic event to “not increase the risks inherent in the sport”];
M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508,
511 [special education student sodomized by another student in school
restroom before start of class; school district duty of care to protect from
foreseeable assault due to inadequate supervision]; Virginia G. v. ABC
Unified School Dist. (1993) 15 Cal.App.4th 1848, 1851, 1855 [student
sexually assaulted by teacher; school district employees’ duty to protect from
harm resulting from negligent hiring/supervision of teacher with history of
sexual misconduct]; Leger v. Stockton Unified School Dist. (1988)
202 Cal.App.3d 1448, 1458-1460 [student battered by nonstudent in high

42
school restroom while changing for wrestling practice; school authorities’
duty to protect from foreseeable assault in unsupervised location].)
Thomas cites no authority imposing on a university a duty to protect
students from harm of a non-physical nature. She asks us to extend existing
authority imposing a duty of care to protect against foreseeable physical
harm to the harm resulting from hostile environment sexual harassment
without in any way analyzing why this new duty should be imposed and what
parameters should define its scope. In failing to develop her argument,
Thomas fails to meet her burden on appeal. (Hernandez v. First Student, Inc.
(2019) 37 Cal.App.5th 270, 277 [appellate court “ ‘not bound to develop
appellants’ arguments for them’ ” and may “ ‘disregard conclusory arguments
that . . . fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt’ ”].) This is not to say sexual harassment in
the form alleged in this case does not cause significant harm, nor that a
university may never be held to have a duty to protect its students from non-
physical injuries. We simply are not prepared to take the step Thomas
suggests on the basis of the briefing she has provided.16

16 Thomas also asserts, without elaboration, that “[e]ven absent a

special duty imposed, liability may be imposed upon [UCB] under more
traditional employer liability, where the relationship between head coach and
player in the University setting can easily be seen as an employee-employer
relationship.” Thomas offers no argument or authority to support her
characterization of the college coach-player relationship (Hernandez v. First
Student, Inc., supra, 37 Cal.App.5th at p. 277 [appellate court may disregard
argument unsupported by legal analysis and authority]) and improperly
raises this new alternative theory of liability for the first time in her reply
brief (Simpson v. The Kroger Corp., supra, 219 Cal.App.4th at p. 1370
[raising new theory in reply brief improper and unfair to defendants]). We
will not consider it further.

43
 3. The Trial Court Did Not Abuse Its Discretion in Denying
Leave to Amend.
Thomas argues the trial court did not make a finding that there was no
reasonable possibility the defects in her negligence cause of action could be
cured by amendment and the court’s findings that Thomas failed to allege
certain elements of a negligence claim “demonstrate that denial of leave to
amend was in error.” Again, Thomas ignores the fact that it is her burden to
demonstrate how an amendment would cure the defect. (Chodosh v.
Commission on Judicial Performance (2022) 81 Cal.App.5th 248, 269.) She
did not suggest how she could amend her claim in the trial court, and she
does not do so in her briefs here; she merely asserts she should be allowed to
amend.
IV.
Breach of Fiduciary Duty
A. Background
Thomas’s cause of action for breach of fiduciary duty alleged that
McGuire “cultivated a special relationship of trust” with her and agreed to
act on her behalf “for the advancement of her athletic career”; he had “the
power to determine how [her] career as a collegiate soccer player would
proceed based upon his authority over the team”; she entrusted him to

Thomas asserts that defendants, in the trial court, acknowledged they
“may owe a duty” to her. She cites a portion of defendants’ demurrer stating,
“Cal. Civ. Code § 1714 states that persons have a duty to use due care to
avoid injury to others. With respect to athletics, courts have found the
existence of specific duties in a variety of scenarios, the scope of such duties
depending on the context at issue. See Knight v. Jewett, 3 Cal. 4th 296, 318
(1992). But Plaintiff will be unable to point to any authority recognizing the
existence of the specific duties allegedly breached in this case.” We do not see
how this passage amounts to an acknowledgment that defendants may owe a
duty to Thomas in the present case.

44
“utilize and exercise that power in her interest when she gave up a
scholarship at the University of Colorado and accepted his invitation to play
at [UCB]; he violated his fiduciary duty “by exercising his power in an
arbitrary and discriminatory way”; and he caused her harm by failing to “act
as a reasonably careful Coach would have acted under the same or similar
circumstances.” She alleged UCB was liable under Government Code
section 815.2 for “unlawful actions of its employees.” As described in
Thomas’s opposition to the demurrer, the alleged breach of fiduciary duty
was McGuire’s releasing her from the team despite her successful
performance and adherence to McGuire’s training demands.
The trial court found that Thomas’s allegations did not reflect a
decision by McGuire to voluntarily undertake a fiduciary obligation to her,
her allegation that she placed trust in him was insufficient to support finding
a fiduciary relationship, and the allegations did not reflect the existence of a
relationship imposing a fiduciary duty as a matter of law.
B. Governing Principles
A fiduciary duty is “a duty ‘to act with the utmost good faith for the
benefit of the other party.’ ” (Persson v. Smart Inventions, Inc. (2005)
125 Cal.App.4th 1141, 1160.) It can arise from “ ‘ “a recognized legal
relationship such as guardian and ward, trustee and beneficiary, principal
and agent, or attorney and client” or from a “ ‘ “ ‘confidential relationship’ . . .
founded on a moral, social, domestic, or merely personal relationship.’ ” ’ ”
(Ibid.) The “essential elements” of a confidential relationship have been
described as “ ‘1) The vulnerability of one party to the other which 2) results
in the empowerment of the stronger party by the weaker which 3)
empowerment has been solicited or accepted by the stronger party and 4)

45
prevents the weaker party from effectively protecting itself.’ ” (Richelle L. v.
Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272.)
“ ‘[B]efore a person can be charged with a fiduciary obligation, he must
either knowingly undertake to act on behalf and for the benefit of another, or
must enter into a relationship which imposes that undertaking as a matter of
law.’ ” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007)
158 Cal.App.4th 226, 246.) “The mere placing of a trust in another person
does not create a fiduciary relationship.” (Zumbrun v. University of Southern
California (1972) 25 Cal.App.3d 1, 13.) “Whether a fiduciary duty exists is
generally a question of law.” (Marzec v. California Public Employees
Retirement System (2015) 236 Cal.App.4th 889, 915 (Marzec).)
C. Analysis
1. Thomas Did Not State Claim for Breach of Fiduciary Duty.
Thomas uses the terms confidential relationship and fiduciary
relationship somewhat interchangeably. She maintains that a confidential
relationship exists between student athletes and their coaches based on the
hierarchical nature of the coach-athlete relationship and power a coach has
over student athletes. She contends she alleged facts sufficient to support the
existence of a fiduciary relationship in that she was a college freshman;
McGuire was the head coach and recruited her to play on the women’s soccer
team; McGuire demanded that his athletes trust his advice and direction;
Thomas trusted his representations to her and trusted that he had her
athletic career in mind when making decisions and giving her direction; that
she was successful in the program, trained as directed and was told by
McGuire that she was a promising player; and that despite her successful
freshman year, she was released from the team, which was uncommon and
“even more inexplicable” in light of her performance.

46
 Neither of the parties offer California cases on point, and we are aware
of none.17 Thomas cites no authority for finding a fiduciary relationship
between student-athletes and their coaches, attempts to distinguish
authority to the contrary, and likens her situation to cases involving other
relationships between students and university officials.
The trial court relied on Knelman v. Middlebury Coll. (D.Vt. 2012)
898 F.Supp.2d 697 (Knelman), in which a college student challenged his
dismissal from the varsity hockey team. Knelman noted that the Vermont
Supreme Court had never “recognized a fiduciary relationship between a
student and a school or school official,” and federal courts in the Second
Circuit had “held that a fiduciary relationship generally does not exist in the
school context.” (Id. at p. 717.) The court explained: “In rejecting a fiduciary
relationship between a school and one of its students, courts have reasoned
that schools and school officials owe duties to all students, and fiduciary
relationships typically involve a special relationship between the parties
which requires the fiduciary to exalt the interests of his or her dependent

17 Defendants cite a Court of Appeal opinion that was superseded when
the California Supreme Court granted review and subsequently issued its
opinion in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438,
indicating that the Supreme Court affirmed a portion of the uncitable opinion
commenting that although teachers are “not fiduciaries” of their students,
they occupy a position of trust. Aside from the impropriety of attempting to
rely on uncitable authority, there is no basis for defendants’ apparent
suggestion that the Supreme Court agreed with the “not fiduciaries”
comment. The Supreme Court’s opinion does not mention the term or discuss
the concept of fiduciaries or fiduciary relationships. It affirmed the Court of
Appeal’s judgment insofar as the Court of Appeal reversed a grant of nonsuit
based on untimeliness of the plaintiff’s claim but did so to permit litigation of
a different theory of timeliness than the delayed discovery rule relied on by
the Court of Appeal. (John R., at pp. 444, 452.) It was in the discussion of
the delayed discovery rule that the Court of Appeal made the “not fiduciaries”
comment.

47
over the competing interests of others, and to act exclusively on the
dependent’s behalf. Such a relationship would immediately prove
unworkable in the school context.” (Id. at p. 718.) Imposing a fiduciary duty
in the circumstances of that case, Knelman stated, would “create an
untenable situation in which a college simultaneously owed a fiduciary duty
to students with competing interests, whose interests were not only also
separate and distinct from one another’s, but also often in conflict with the
interests of the college itself.” (Id. at p. 719.)
Knelman also distinguished cases from other jurisdictions that had
“denied dispositive motions in the school context.” (Knelman, supra,
898 F.Supp.2d at p. 718.) In those cases, Knelman explained, the “alleged
fiduciary relationships were created by special circumstances” and the courts
“recognized that when school officials affirmatively exploit a position of trust
or authority over a student to the student’s detriment, the existence of a
limited fiduciary duty may be a question of fact for the jury.” (Id. at p. 719.)
No such special circumstances had been shown by the plaintiff in Knelman.
(Id. at p. 719.)
Thomas complains about defendants’ reliance on Knelman’s
explanation of the reasons courts have not found fiduciary relationships in
the school context, arguing that Knelman’s “dicta” addressed only
relationships between students and universities, not between student
athletes and their coaches. Thomas maintains the latter are “unquestionably
distinct” due to the power imbalance between student athletes and their
coaches.18 The alleged fiduciary relationship in Knelman was between a

18 Thomas cites National Collegiate Athletic Association v. Alston
(2021) 594 U.S. __ [141 S.Ct. 2141] (Alston), in support of her distinction
between the relationship of a student-athlete with her coach and university

48
student athlete and his coach; the court applied the reasoning of courts
addressing other student-university relationships to the case before it.
Knelman’s point—that imposition of a fiduciary duty would be untenable in
the school context because the school, or school employee, would
simultaneously owe the same duty to other students with competing
interests—is as true for a coach vis-à-vis student-athletes on his team as for
other university employees. Thomas fails to explain how McGuire could owe
her a fiduciary duty based on their relationship as coach and player that
would elevate her interests over those of her teammates, who have the same
coach-player relationship, and over the interests of the team as a whole and
the university.19

and the relationship of other students with the university. Alston involved
an antitrust challenge to National Collegiate Athletics Association (NCAA)
rules limiting the compensation available to student-athletes. (Alston, at
p. 2151.) Thomas cites portions of the opinion discussing the history of
American colleges and universities’ “complicated relationship with sports and
money” (id. at p. 2148) and the power of NCAA and its member colleges over
student-athletes’ compensation, which allows colleges and NCAA executives
to benefit from the massive revenue produced by student-athletes whose
compensation they suppress. (Id. at p. 2168, conc. opn. of Kavanaugh, J.)
Alston does not discuss student-athletes’ relationships with their
coaches. Whatever inferences may be drawn from the opinion’s discussion of
the high stakes competitive collegiate sports “market” about the imbalance of
power between student-athletes and their coaches as compared to that
between students and their teachers or universities generally, we fail to see
how Alston furthers Thomas’s argument that the nature of the relationship
between a student-athlete and coach supports finding a fiduciary relationship
with one player whose interests may diverge from those of her teammates or
the team as a whole.
19 Thomas also attempts to distinguish Knelman on the basis that
“unlike California, which recognizes a type of fiduciary relationship created
by the exploitation of a confidential relationship,” Vermont law makes the
existence of a fiduciary relationship a question of law. Knelman indeed

49
 Defendants cite several other cases declining to find fiduciary
relationships between athletes and coaches. Powell v. Seton Hall University
(D.N.J. Apr. 26, 2022) 2022 WL 1224959 dismissed the claims of student
athletes who were injured during university-sponsored athletic events and
alleged they were not properly informed of the extent of their injuries or
provide adequate medical care and advice. The district court stated,
“Plaintiffs have not cited, and the Court has been unable to find, any case
decided by either the New Jersey Supreme Court or any lower courts of that
state which have held that there exists a fiduciary relationship between a

stated that “[u]nder Vermont law, the existence or nonexistence of a fiduciary
relationship is a question of law for the court.” (Knelman, supra,
898 F.Supp.2d at p. 717.) But it appears from the discussion in Knelman and
the cases it cited that what it was referring to as a question of law was the
existence of a fiduciary duty—which is also a question of law under California
law. (Marzec, supra, 236 Cal.App.4th at p. 915.) And, as we have said,
Knelman found that case did not involve special circumstances that might
support finding a fiduciary relationship as a question of fact. (Knelman, at
p. 719.)
The cases Knelman cited for its statement that the existence of a
fiduciary relationship is a question of law referred to the existence of a
fiduciary duty. (Doe v. Newbury Bible Church (D.Vt. July 20, 2005)
2005 WL 1862118, at p. *6 [the “existence or non-existence of the [fiduciary]
relationship and corresponding duties is a question of law for the court to
decide”]; McGee v. Vermont Federal Bank (Vt. 1999) 726 A.2d 42, 44
[“existence or nonexistence of a duty is a question of law” and “[i]n order for
the Bank to have become a fiduciary, the relationship had to ripen into one in
which the [plaintiffs] were dependent on, and reposed trust and confidence in,
the Bank in the conduct of its affairs”].) Vermont, like California, appears to
recognize that a fiduciary relationship may exist “as a matter of law in
certain relationships” but also may arise from factual circumstances. (Miller
v. Rosenberry (Vt. 1958) 144 A.2d 836, 839-340 [complaint failed to establish
“any legal relationships which would constitute the defendants to be
fiduciaries as a matter of law” and was “equally deficient in pleading any
conduct or condition . . . capable of creating a fiduciary relationship as an
issue of fact”].)

50
university or coach and a student-athlete. ‘[I]t is not the role of a federal
court to expand state law in ways not foreshadowed by state precedent.’ ”
(Id. at p. *7.) Thomas points out that the court found the breach of fiduciary
duty claim duplicative of the plaintiffs’ gross negligence claim, which was
permitted to proceed for one of the plaintiffs, but the court’s comments on the
duplicative nature of the claim were expressly dicta, prefaced with “though
not necessary to resolve Defendants’ motion.” (Id. at p. *8.)
Cook v. Kudlacz (Ct.App.Ohio 2012) 974 N.E.2d 706 affirmed summary
judgment for the defendants in a suit by a high school varsity tennis player
who alleged she was intimidated, harassed, isolated, treated unfairly and
bullied by teammates and the coach of the girls’ tennis team. The court
explained that “[t]here is no case that provides that a coach would definitely
have a fiduciary relationship with the player”; it was “difficult, if not
impossible to find that a de facto relationship was created” because the
plaintiff did not tell anyone at the school that she felt she was being
intimidated and “said she did not trust them”; and the conduct she alleged
did not “rise to a level of intimidation.” (Id. at p. 724.) Thomas views Cook as
supporting her argument that the existence of a fiduciary relationship based
on a confidential relationship should not be evaluated at the pleading stage.
But the fact that allegations in a different case might have supported finding
a confidential relationship if proven does not undermine the propriety of
dismissing a claim at the pleading stage where the facts alleged, taken as
true, do not support finding a confidential relationship and there is no
reasonable prospect of further amendment curing the defects.20

20 The same is true of McGee v. Curry (S.D.Tex. Feb. 25, 2011)
2011 WL 13262005, which granted summary judgment in favor of a
professional football player’s claim for breach of fiduciary duty against his

51
 Thomas argues the trial court erred in concluding that the single
allegation that McGuire “cultivated a special relationship of trust and agreed
to act on her behalf for the advancement of her athletic career” was
conclusory and that her mere placement of trust in McGuire was insufficient
to create a fiduciary relationship, without considering her allegations about
“the typical relationship between coach and student-athlete and the
relationship with her that McGuire cultivated.” We do not agree. Thomas
does not, and cannot, dispute that a confidential relationship cannot be
imposed unilaterally. (Apollo Capital Fund, LLC v. Roth Capital Partners,
LLC, supra, 158 Cal.App.4th at p. 246; Zumbrun v. University of Southern
California, supra, 25 Cal.App.3d at p. 13.) Thomas’s allegation that McGuire
“cultivated a special relationship of trust by [her] in his good faith and agreed
to act on [her] behalf for the advancement of her athletic career” is
conclusory, as the trial court said: It does not offer facts in support of the
conclusion stated. The trial court explained what was missing in its further

coach based on the coach’s alleged complicity in another party’s fraudulent
financial transactions with the player.
Defendants quote the McGee court’s statement that “ ‘not every
relationship involving a high degree of trust and confidence rises to the
stature of a fiduciary relationship.’ ” (McGee v. Curry, supra,
2011 WL 13262005, at p. *6.) But the case is not particularly relevant here,
as the claimed breach of fiduciary duty did not involve the former coach’s
conduct toward the player in his role as coach. The player did not contest the
coach’s argument that state law did not recognize a formal fiduciary
relationship between coach and player; the question was whether there was a
triable issue of fact as to the existence of an informal fiduciary relationship
arising from “ ‘a moral, social, domestic or purely personal relationship of
trust and confidence.’ ” (Ibid.) The court found there was not, as the player
presented no evidence of a personal relationship and the only two instances
in which the coach allegedly provided advice and guidance were insufficient
to raise a genuine issue of fact. (Id. at p. *7.)

52
comment that the allegation “does not reflect a decision by McGuire to
voluntarily undertake a fiduciary obligation to plaintiff.” None of the
allegations Thomas claims the trial court failed to consider allege facts
demonstrating that McGuire cultivated a “special relationship of trust” with
her or agreed to act on her behalf to advance her career. The allegations that
McGuire recruited Thomas to the women’s soccer team, she followed his
training demands and performed well, he told her she was a promising
player, and it is uncommon for a player to be released despite successful
performance and adherence to training demands might support finding an
expectation on Thomas’s part that she would remain on the team. They do
not allege facts supporting a conclusion that McGuire agreed to keep Thomas
on the team or otherwise act to advance her career and interests above and
beyond the potentially conflicting interests of her teammates.
One of the allegations Thomas maintains the trial court failed to
consider—the only one expressly referring to McGuire seeking her trust—
illustrates this point. Thomas states that her complaint “identifies McGuire’s
demand for her trust and her acquiescence to that demand.” In the
paragraph Thomas cites, she alleged: “Success on a Division One college
athletics team like [UCB] creates opportunities for young women to play
professional and international soccer. Each player including [Thomas]
strives for athletic and academic success in order to advance her career in
athletics. It is part of a coach’s commitment to his or her athletes to foster
such opportunities and the success of individual athletes as well as the team
as a whole. [McGuire] as the coach of a prestigious women’s soccer program
demanded that his athletes trust in his advice and direction. [Thomas]
trusted [McGuire’s] representations to her and that he had her athletic career
in mind when making decisions and giving direction about her performance.”

53
Putting aside the fact that much of this paragraph is conclusory, it is clear
Thomas alleged that McGuire demanded trust from and assumed a
commitment to all of his players. At least with regard to the issue
underlying Thomas’s breach of fiduciary duty claim—release from the team—
it is evident that McGuire could not simultaneously owe each of his players a
fiduciary duty requiring him to put that player’s interests first and foremost.
Thomas’s attempt to liken her situation to that of the students in
Jumbo v. Alabama State Univ. (M.D.Ala. 2017) 229 F.Supp.3d 1266, 1273,
and Chou v. University of Chicago (Fed. Cir. 2001) 254 F.3d 1347, 1372, is not
persuasive. Citing those cases, Thomas argues that a student may have a
fiduciary relationship with a university or university officials where
something in the relationship gives the officials “ ‘overmastering influence’ ”
over the student. (Jumbo, at p. 1273.) The plaintiffs in Jumbo were students
attending an Alabama university under a sponsorship program from the
Nigerian government. (Id. at pp. 1269-1270.) They alleged the university
limited their access to and converted to its own use sponsorship funds that
Nigeria remitted to the university with the proviso that any money not used
for tuition and fees be disbursed to the students for personal expenses.
(Id. at p. 1270.) Although no Alabama case law had recognized “a general
fiduciary duty owed by universities to their students,” Jumbo held that “a
confidential relationship” may have arisen on the particular facts of that case
because the university’s alleged practice “places the [s]tudents’ purse strings
firmly in the grasp of the [u]niversity, giving it the sort of ‘overmastering
influence’ over the [s]tudents that is a hallmark of a fiduciary relationship.
[Citation.] The [u]niversity’s control over the [s]tudents’ sponsorship money
similarly puts the [s]tudents into a position of ‘weakness, dependence, or

54
trust,’ and opens the door for the [u]niversity to obtain ‘an unfair advantage’
by exercising ‘dominion’ over the [s]tudents.” (Jumbo, at pp. 1272-1273.)
Chou v. University of Chicago, supra, 254 F.3d at pages 1362-1363 held
a former graduate student stated a claim for breach of fiduciary duty against
her faculty advisor and department chairman, who she alleged named
himself as an inventor of her discoveries in patent applications. Chou
explained that under Illinois law, a fiduciary duty may arise from “special
circumstances of the parties’ relationship, such as when one party justifiably
places trust in another so that the latter gains superiority and influence over
the former.” (Id. at p. 1362.) Chou alleged that the advisor “held a position
of superiority over her as her department chairman, and that he had
specifically represented to her that he would protect and give her proper
credit for her research and inventions. Given the disparity of their
experience and roles, and [the advisor’s] responsibility to make patenting
decisions regarding Chou’s inventions, Chou has adequately pleaded the
existence of circumstances that place on [the advisor] a fiduciary duty with
respect to her inventions.” (Ibid.)
Thomas views her relationship with McGuire as similar to those at
issue in Jumbo and Chou due to the power and control a coach has over a
student-athlete. Those cases, however, involved special circumstances in
which “school officials affirmatively exploit[ed] a position of trust or authority
over a student to the student’s detriment.” (Knelman, supra, 898 F.Supp.2d
at p. 719 [distinguishing Chou].) Thomas’s allegations are not comparable.
Even accepting the inherent imbalance of power in the student-athlete and
coach relationship, Thomas has not alleged facts demonstrating that McGuire
assumed an obligation to protect her interest in continuing to play on the

55
women’s soccer team over and above the interests of other players or the
team as a whole.
2. The Trial Court Did Not Abuse Its Discretion in Denying
Leave to Amend.
As with her sexual harassment and negligence claims, Thomas
maintains the trial court erred in denying her an opportunity to allege
additional facts to demonstrate McGuire breached a fiduciary duty to her. As
with her other claims, she asserts her right to amend but, as in the trial
court, offers no suggestion how she would do so. Thus, as with her other
claims, she has failed to meet her burden to prove “how an amendment would
cure the defect.” (Chodosh v. Commission on Judicial Performance, supra,
81 Cal.App.5th at p. 269.)
V.
Fraud
A. Background
The second amended complaint alleged a cause of action for fraud
based on misrepresentation and failure to disclose material facts. According
to Thomas’s allegations, McGuire failed to disclose that Thomas “might be
removed from the team for other than justified reasons such as deficient play
or bad conduct” or that McGuire “would put the interests of unqualified
student athletes or himself above her interests”; McGuire “knew that the
statements he made to induce [Thomas] to join the team were false at the
time that he made them”; McGuire “had a duty to disclose this information to
[Thomas] because he was actively concealing the information,” “made partial
disclosures to induce her attendance” and “had exclusive knowledge of the
facts he was concealing”; and McGuire “intended to deceive [her] when he
advised her that she would remain a member of the women’s soccer team at
[UCB] as long as she played competently and in accordance with his

56
instructions and met his standards of behavior” and “failed to disclose that he
would allow unqualified players to become members of the team and thereby
jeopardize her own status as a team member.”
The trial court sustained the demurrer because it found both that
Thomas had not alleged all the required elements of her fraud claim21 and
that McGuire was entitled to immunity under Government Code
section 822.2 (misrepresentation). Thomas contends the court was wrong on
both points. McGuire defends the trial court’s decision and adds that he was
also entitled to immunity under Government Code section 820.2
(discretionary act). As we will explain, the immunity afforded by
Government Code section 822.2 applies. Because that issue is determinative,
we need not determine whether the second amended complaint sufficiently
stated the elements of a cause of action for fraud
or whether McGuire would also be immune under Government Code
section 820.2.22

21 The court found that Thomas did not allege McGuire knew at the
time he recruited her that “he would release her from the team for any
reason, and intentionally misrepresented or concealed that fact from her at
the time of recruitment,” that “McGuire himself was directly involved in
inappropriately recruiting any other players who were unqualified to play, or
that he knew that his involvement in such activities would cause her to later
lose her spot on the team.”
22 Defendants contend the fraud allegations in the second amended
complaint are barred by the sham pleading doctrine. “Under the sham
pleading doctrine, a plaintiff cannot avoid allegations that are determinative
to a cause of action simply by filing an amended complaint which omits the
problematic facts or pleads facts inconsistent with those alleged in the
original complaint.” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1248.)
As the trial court noted, Thomas’s original and amended complaints in
federal court alleged that she joined the UCB women’s soccer team with
McGuire’s “implicit promise” that she would continue to play as long as she

57
 B. Governing principles
“ ‘To establish a claim for fraudulent misrepresentation, the plaintiff
must prove: “(1) the defendant represented to the plaintiff that an important
fact was true; (2) that representation was false; (3) the defendant knew that
the representation was false when the defendant made it, or the defendant
made the representation recklessly and without regard for its truth; (4) the
defendant intended that the plaintiff rely on the representation; (5) the
plaintiff reasonably relied on the representation; (6) the plaintiff was
harmed; and (7) the plaintiff’s reliance on the defendant’s representation was
a substantial factor in causing that harm to the plaintiff.” ’ [Citation.]
“The required elements for fraudulent concealment are: (1)
concealment or suppression of a material fact; (2) by a defendant with a duty
to disclose the fact to the plaintiff; (3) the defendant intended to defraud the
plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff
was unaware of the fact and would not have acted as he or she did if he or she

performed well. Her initial complaint and first amended complaint in state
court alleged that she joined the team with McGuire’s “assurances” that she
would continue to play as long as she performed well. Her second amended
complaint for the first time described the “assurances,” alleging that McGuire
told her she would be on the team for four years, she was the “missing piece”
overlooked in that year’s recruitment, and she would be his “all-around
player for the next four years,” and diagramming how “he would utilize a
player like her.”
Defendants see the detailed allegations describing express statements
by McGuire that Thomas would be on the team for four years as inconsistent
with Thomas’s initial allegations of an “implicit promise.” Thomas maintains
she was simply clarifying “any ambiguity” in her pleadings in response to the
court’s order finding the fraud allegations in the first amended complaint
uncertain. It is not necessary for us to resolve the point, as our decision on
the fraud claim turns on immunity and not whether Thomas sufficiently
stated the elements of fraud.

58
had known of the concealed or suppressed fact; and (5) plaintiff sustained
damage as a result of the concealment or suppression of the fact. [Citation.]”
(Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605-606.)
Pursuant to Government Code section 822.2, “[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.”
“The Government Code does not define ‘misrepresentation.’ California law
recognizes several categories of fraud and deceit, including negligent and
intentional misrepresentation. (Civ. Code, §§ 1572, 1710.) The courts have
assumed that the immunity includes all types of fraud and deceit cases
including fraudulent concealment.” (Michael J. v. Los Angeles County Dept.
of Adoptions (1988) 201 Cal.App.3d 859, 867, fn. omitted (Michael J.).)
Section 822.2 immunity “is not absolute. Rather, it applies only when
the negligent or intentional wrongdoing involves interferences with financial
or commercial interests. [Citations.] It ‘does not apply to . . .
misrepresentations involving a risk of physical harm.’ (Garcia v. Superior
Court [(1990)] 50 Cal.3d [728,] 738, fn. 8.)” (Adkins v. State of California
(1996) 50 Cal.App.4th 1802, 1818, disapproved on other grounds in City of
Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156-1158.)23

23 Public entities are immune from liability for misrepresentation
pursuant to Government Code section 818.8: “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.” This
statute does not contain the exception for “actual fraud, corruption or actual
malice” stated for public employees’ immunity under Government Code
section 822.2.

59
 C. Analysis
1. Thomas’s Fraud Claim Is Subject to Government Code
Section 822.2 Immunity.
Thomas contends Government Code section 822.2 does not confer
immunity for McGuire’s alleged fraud because his conduct did not interfere
with her commercial or financial interests. She argues that “[c]ommercial
interests to which immunity might attach include ‘leasing and purchasing
property or contracting for a pension’” but not “financial loss.” Michael J.,
supra, 201 Cal.App.3d 859, which Thomas relies on for this point, was an
action against the county adoptions department by an adoptive parent and
adoptee seeking damages for emotional distress and medical expenses. Ten
years after the adoption, the adoptee was diagnosed with a congenital
degenerative nerve disorder; the suit alleged that, prior to placement, the
county failed to determine the adoptee’s medical condition and made
misrepresentations of complete health.” (Id. at p. 863.)
Michael J. reviewed the analysis of Johnson v. State (1968) 69 Cal.2d
782 (Johnson), which held that misrepresentation immunity did not apply in
an action for personal injuries by a foster parent who was assaulted by a
teenager placed in her care and had not been informed of the youth’s
dangerous propensities. (Michael J., supra, 201 Cal.App.3d at pp. 868-869;
Johnson, at pp. 784-785, 799-800.) Johnson discussed the history of the
immunity provision and determined that the Legislature “must have had in
mind those areas in which private defendants typically face liability for
‘misrepresentation.’ [¶] . . . [¶] ‘[M]isrepresentation,’ as a tort distinct from
the general milieu of negligent and intentional wrongs, applies to
interferences with financial or commercial interest.” (Johnson, at p. 800.)
After considering subsequent cases consistent with Johnson, the Michael J.
court concluded, “The adoption process is not a commercial transaction, such

60
as leasing and purchasing property or contracting for a pension. The
immunity provided governmental entities and public employees
by sections 818.8 and 822.2 does not shield the County from liability for
misrepresentation and deceit in this social service area, designed to serve the
interests of society by acting in the best interests of the child. . . . Although
appellants suffer a financial loss in the sense that they have incurred, and
will continue to incur, substantial medical expenses, their loss did not result
from a commercial transaction with the County nor from the County’s
interference with a commercial transaction.” (Michael J., at p. 872.)
Thomas likens her position to that of the plaintiffs in Michael J.,
arguing that like them, she alleged that she suffered financial losses due to
McGuire’s misrepresentations but did not allege the type of interference
required for application of Government Code section 822.2 immunity because
she was not involved in a commercial transaction with McGuire or UCB. But
Thomas’s claims are nothing like those in Michael J., where the alleged
misrepresentations concerned physical health and welfare. Thomas alleged
misrepresentations that induced her to forgo a scholarship at another
university and incur the cost of attending UCB in order to play soccer on a
team and for a coach that Thomas saw as enhancing her ability to pursue a
career in professional sports. Indeed, Thomas’s own arguments about the
nature of coaches’ influence on student athletes and their future prospects
imply a commercial aspect to collegiate athletics despite the educational
setting. According to Thomas’s allegations, both her present and future
financial interests were directly at stake when she agreed to play soccer for
UCB in reliance on McGuire’s representations.
The reference in Michael J. to a commercial transaction “such as
leasing and purchasing property or contracting for a pension” was

61
illustrative, serving to distinguish the risk of physical harm at issue in that
case from financial interests at issue in cases applying misrepresentation
immunity. (Michael J., supra, 201 Cal.App.3d at p. 872.) That distinction—
between misrepresentations concerning risk of physical harm, which are not
subject to immunity, and misrepresentations related to financial interests,
which may be—is clear. (Johnson, supra, 69 Cal.2d at pp. 799-800; Garcia v.
Superior Court, supra, 50 Cal.3d at p. 738, fn. 8 [“statutory immunity from
liability for misrepresentations (Gov. Code, §§ 818.8 and 822.2) does not
apply to negligent misrepresentations involving a risk of physical harm”];
Adkins v. State of California, supra, 50 Cal.App.4th at pp. 1818-1819
[misrepresentation immunity inapplicable to personal injury claims of
workers hired by the state who alleged state intentionally lied about the
safety of chemicals they handled].) It does not, however, resolve what types
of financial interests justify application of misrepresentation immunity.
Courts have applied misrepresentation immunity to cases involving a
variety of financial interests. (E.g., County of San Bernardino v. Superior
Court (2022) 77 Cal.App.5th 1100, 1112-1115 [registrar of voters
misrepresented number of signatures required for initiative petition to repeal
special tax, resulting in unnecessary costs for obtaining more signatures than
necessary]; Burden v. County of Santa Barbara (2000) 81 Cal.App.4th 244,
251-252 [misrepresentations concerning terms of employment alleged to have
damaged plaintiff’s financial interests by causing him to relocate, then upon
termination return to former position under less favorable conditions];
Masters v. San Bernardino County Employees Retirement Assn. (1995)
32 Cal.App.4th 30, 43 [misrepresentations relating to processing of
application for disability pension]; Harshbarger v. City of Colton (1988)
197 Cal.App.3d 1335, 1342 [misrepresentations by building inspectors

62
resulting in homeowners having to reconstruct home].) In a setting more
akin to the present case, Brown v. Compton Unified School District (1998)
68 Cal.App.4th 114, 117, held school district employees were immune from
liability for alleged misrepresentations that caused a student to lose a college
scholarship. Chevlin v. Los Angeles Community College Dist. (1989)
212 Cal.App.3d 382, 390, found misrepresentation immunity applicable to a
student’s claim that an instructor fraudulently concealed objectives required
for successful completion of the program.24
Here, Thomas alleged that McGuire’s misrepresentations caused her to
lose the value of the scholarship she had been offered by the University of
Colorado and incur the cost of attending UCB and harmed her ability to play
soccer at a professional level. These are financial interests sufficient to make
the claims subject to immunity under Government Code section 822.2.
2. Thomas Did Not Plead Facts Triggering the Corruption
Exception.
Thomas also argues Government Code section 822.2 immunity is not
available to McGuire because she pleaded facts showing he was motivated by

24 Defendants describe Peter W. v. San Francisco Unified School
District (1976) 60 Cal.App.3d 814, as holding that Government Code
section 822.2 immunized school district employees from liability for
misrepresentations that a student was performing at or near grade level, but
the case does not include such a holding. Peter W. held that the plaintiff, who
was attempting to impose tort liability on the school district for failing to
properly educate him, failed to state a claim for negligence or “negligence in
the form of the ‘misrepresentation’ alleged” because policy considerations
negated “an actionable ‘duty of care’ in persons and agencies who administer
the academic phases of the public educational process.” (Peter W., at pp. 825,
827.) The court then suggested a cause of action for intentional
misrepresentation might be more successful due to the “judicial limitations
placed upon the scope of the governmental immunity” under sections 818.8
and 822.2, but found the claim was not stated because no facts showing
reliance were alleged. (Peter W., at p. 827.)

63
corruption, thus triggering the statutory exception to immunity where the
public employee “is guilty of actual fraud, corruption or actual malice.” (Gov.
Code, § 822.2.)25 To come within this exception, “[i]n addition to facts
establishing the ordinary elements of common law deceit, the pleader also
must allege facts showing that the fraud was motivated by corruption or
actual malice.” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629,
649.) The plaintiff must connect the alleged corruption to the claimed harm;
“[t]he mere existence of corruption or wrongdoing, unconnected to the alleged
harm to [plaintiff], is insufficient. (Id. at p. 650.)
The corrupt motive Thomas attributes to McGuire relates to the
“Varsity Blues” admission scandal that came to light in 201926—as Thomas
described it, the “national admissions scandal that was discovered to have
exploited athletic teams at prestigious universities to enroll students who
lacked the athletic skills to achieve enrollment to the universities as student
athletes.” The allegations Thomas points to as showing corruption are that
McGuire knew at the time he recruited her that he had “allowed women who
were not qualified athletes to become part of the team, which would put
[Thomas’s] spot on the team in jeopardy”; that he failed to disclose Thomas
could be removed from the team “for reasons beyond her failure to play
competently and in accordance with his instructions and meet his standards
of behavior”; and that the Auditor had concluded UCB “wrongfully admitted
students using athletic teams as the point of entry” who “were not recruited

25 Thomas does not rely on the “actual fraud” or “actual malice” prongs
of the exception to Government Code section 822.2. immunity.
26See Taylor, College Admissions Scandal, New York Times (Oct. 8,
2021) (as of Nov. 28, 2023).

64
for their athletics ability and some [of whom] did not even play on the teams
for which they were purportedly recruited to play.” Thomas’s cause of action
for fraud alleged that McGuire failed to disclose that he “would put the
interests of unqualified student athletes or himself above her interests” and
that he “intended to deceive” her when he advised her that she would remain
on the team as long as she played competently, followed his instructions and
met his standards of behavior, and “further deceived” her when he “failed to
disclose that he would allow unqualified players to become members of the
team and thereby jeopardize her own status as a team member.”
The implication of these allegations is that McGuire was involved in
the Varsity Blues admissions scandal and released Thomas from the team to
make room for unqualified players admitted to UCB under the guise of
playing for his team. But Thomas alleged no facts connecting McGuire to the
scandal. The only such connection suggested by her allegations is based on
the suspicion of a team member that two women who had been recruited to
the team two years before but did not play were related to the scandal.
Thomas argues her claims that McGuire “acted corruptly in failing to disclose
to her how decisions regarding team membership would be made” were lent
credence by the Auditor’s 2020 report concluding that UCB had “wrongfully
admitted students using athletic teams as the point of entry.” But she did
not allege that the Auditor’s report implicated McGuire or the women’s soccer
team.
Nor did Thomas allege facts—as opposed to conclusory statements or
supposition—showing that McGuire knew at the time he recruited her that
she might be removed from the team for unjustified reasons or in order to
serve the interests of unqualified players. Thomas does not explain how any
involvement by McGuire in the improper admissions process related to his

65
recruitment of her or decision to release her from the team—that is, how such
involvement would cause him to falsely represent during recruitment that
Thomas would be able to play for UCB for four years. To the extent the
allegations support an inference that McGuire failed to disclose that he might
dismiss Thomas to make room on the team for an unqualified student
improperly admitted to UCB as a soccer player, the inference is contradicted
by Thomas’s allegation that “there is no external limit on team size for the
women’s soccer team, so even under-performing players do not need to be
released to create room for other, stronger performers.” Thomas does not
suggest any other way in which a connection to the admissions scandal might
relate to McGuire’s decision to release her from the team. In short, Thomas
failed to connect the allegations she sees as demonstrating a corrupt motive
to the harm she alleges—unjustified release from the team.
The trial court did not err in sustaining McGuire’s demurrer based on
his immunity under Government Code section 822.2.
VI.
Negligent Misrepresentation
Thomas contends the trial court erred in refusing to allow her to pursue
the claim for negligent misrepresentation she alleged in the second amended
complaint. She contends the claim should have been permitted because a
complaint that pleads fraud necessarily also pleads negligent
misrepresentation. (Tenet Healthsystem Desert, Inc. v. Blue Cross of
California (2016) 245 Cal.App.4th 821, 845 [complaint found to state cause of
action for fraud necessarily states cause of action for negligent
misrepresentation because both have same elements except that the latter
does not require intent to induce reliance].) Thomas urges that adding a new
claim against a defendant already party to the case should be permitted to

66
advance the “fundamental policy of our courts that cases should be decided on
their merits.” (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)
We need not address these issues. Since Government Code
section 822.2 applies to both intentional and negligent misrepresentation, our
conclusion that McGuire is entitled to immunity from liability for fraud
necessarily means he is entitled to immunity from liability for negligent
misrepresentation as well.
DISPOSITION
With respect to the first cause of action of the first amended complaint
against McGuire and UCB, the judgment is reversed, and the matter is
remanded for further proceedings consistent with this opinion.
In all other respects, the judgment is affirmed.
Each party shall bear its own costs.

67
 STEWART, P.J.

I concur.

RICHMAN, J.

Thomas v. Regents of the Univ. of California (A164550)

68
MARKMAN, J., Concurring and Dissenting.

I. Introduction
I respectfully dissent from part II.B.3 of the majority opinion regarding
the sufficiency of Renee Thomas’s pleading under Civil Code section 51.9 and
from the disposition of that claim.1 Under section 51.9, subdivision (a)(2),
Thomas must allege at least some factual basis that her soccer coach, Neil
McGuire, “engaged in other verbal, visual, or physical conduct of a sexual
nature or of a hostile nature based on gender, that were unwelcome and
pervasive or severe.” (§ 51.9, subd. (a)(2), italics added.) Thomas failed to do
so in her first amended complaint. She alleged bullying by McGuire, but
section 51.9 is not an anti-bullying law unless the bullying is factually linked
to gender. Thomas did not allege facts from which anyone could conclude
that the bullying she experienced was “based on gender.” (Ibid.)
The trial court was too quick to sustain the Regents’ demurrer without
leave to amend. Thomas did not get a meaningful opportunity to state a
section 51.9 claim. I would therefore reverse the judgment and grant Thomas
leave to amend that cause of action.
II. Analysis of Section 51.9
A. Statutory Construction
“ ‘In construing a statute, our task is to ascertain the intent of the
Legislature so as to effectuate the purpose of the enactment.’ ” (Adolph v.
Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1120.) “We look first to ‘the
words of the statute, which are the most reliable indications of the
Legislature’s intent.’ ” (Ibid.) “ ‘The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.’ ” (Imperial Merchant

1 Undesignated statutory references are to the Civil Code.

1
Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387–388.) “We decline to insert
any additional restrictions into an otherwise unambiguous provision.”
(Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 85.) We construe
the language of the statute “in its full statutory context, keeping in mind the
nature and purposes of the statutory scheme as a whole.” (California
Medical Assn. v. Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1087;
Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
1386–1387.)
The plain language, purpose, and legislative history relating to section
51.9 all support a construction that requires a link between the wrongful act
and the plaintiff’s gender. The plain language of section 51.9,
subdivision (a)(2) specifically requires that the verbal, visual, or physical
conduct be “of a hostile nature based on gender.”
As originally enacted in 1994, section 51.9 operated with a very limited
definition of sexual harassment. It covered only “sexual advances,
solicitations, sexual requests, or demands for sexual compliance by the
plaintiff that were unwelcome and persistent or severe, continuing after a
request by the plaintiff to stop.” (Stats. 1994, ch. 710, § 2.)
In 1999, the Legislature enacted Assembly Bill No. 519 to conform
section 51.9 to federal law. (See Governor’s letter to Assem. on Assem. Bill
No. 519 (Oct. 10, 1999) 3 Assem. J. (1999–2000 Reg. Sess.) p. 4578 [“I am
supporting this legislation as it will bring the sexual harassment laws into
conformity with other California sexual harassment prohibitions in the
Government Code. In addition, this will conform California law to federal
anti-sexual harassment laws”].) The Legislature expanded the definition of
sexual harassment to also cover “other verbal, visual, or physical conduct of a
sexual nature or of a hostile nature based on gender, that were welcome and

2
pervasive or severe.” (Stats. 1999, ch. 964, § 1.)2 The Legislature thus re-
grounded section 51.9 in the “conditions of the relationship and how the
improper conduct affects those conditions.” (Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 519 (1999–2000 Reg.
Sess.) as amended Sept. 9, 1999, p. 4.)
Importantly, the legislative history of Assembly Bill No. 519 confirms
that section 51.9 was not intended to become a generalized anti-bullying law.
The original draft of the bill would have done so, by covering “other verbal,
visual, or physical conduct of a sexual or hostile nature that were unwelcome
and pervasive or severe.” (Assem. Bill No. 519 (1999–2000 Reg. Sess.) as
amended May 10, 1999, p. 97.) Senate amendments changed the language to
require that the wrongful acts of a hostile nature be explicitly “based on
gender.” (Assem. Concurrence in Sen. Amends. to Assem. Bill No. 519 (1999–
2000 Reg. Sess.) as amended Sept. 9, 1999, p. 2.) That is the language in the
statute as it exists today.
B. Case Law
Cases repeatedly warn against the use of sexual harassment laws to
address other forms of misconduct without a nexus to gender. Based on
guidance from the United States Supreme Court, courts have warned that
sexual harassment claims are not intended to enforce a “ ‘general civility
code’ ” or to broadly police workplace sensitivity. (Jones v. Department of
Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377 (Jones),
quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81

2 The Legislature also eliminated the requirements that a victim ask
the perpetrator to stop and that a section 51.9 complaint be verified,
dispelling the traditional (but wrongful) higher burden on the sexual
harassment plaintiff as compared with plaintiffs in other cases. (Stats. 1999,
ch. 964, § 1; see maj. opn., ante, at p. 27, fn. 11.)

3
(Oncale).)3 Even in more traditional sexual harassment cases involving
hostile environment claims in the workplace (e.g., under Title VII and the
Federal Employment and Housing Act (FEHA)), “annoying or ‘merely
offensive’ comments in the workplace are not actionable.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 283, quoting Harris v.
Forklift Systems, Inc. (1993) 510 U.S. 17, 21.)
Cases also affirm the use of a demurrer as a back-stop against attempts
to expand section 51.9 beyond its intended purpose. In Ramirez v. Wong
(2010) 188 Cal.App.4th 1480 (Ramirez), for example, the appellate court
affirmed an order sustaining a demurrer to a section 51.9 claim where the
plaintiffs’ allegations were conclusory, identifying “only one instance of
allegedly harassing conduct” where their apartment resident manager “went
into [plaintiffs’] bedroom, opened plaintiffs’ dresser drawer and removed and

3 The majority argues that this quotation from the unanimous 1998
United States Supreme Court opinion in Oncale sets up a “straw man” that
“misses the point” and is “trivializing the allegations of plaintiffs and other
women athletes who have been treated especially harshly by coaches in a
manner perceived as based on their gender.” (See maj. opn., ante, at p. 21,
fn. 7.) The same quotation has appeared in over 2,100 cases in the
intervening years (including in at least 12 California appellate decisions,
three of which were precedential). Far from a straw man, Oncale cautions
against the expansion of sexual harassment laws (Title VII of the federal
Civil Rights Act of 1964 (Title VII) in that case) to include verbal and
physical harassment that is not based on gender. (Oncale, supra, 523 U.S. at
p. 80.) Speculative allegations regarding the coach’s possible intent cannot
simply be buttressed by adding similarly speculative allegations about the
players’ subjective perceptions of his conduct. Such an approach would both
ignore the concern expressed in Oncale and create new law that, as a
practical matter, would expose coaches of a different gender than their own
players to potential liability under section 51.9 based exclusively on a player’s
perception of the coach’s coaching. The bullying Thomas alleges in her
amended complaint is not in any way trivial—it simply is not yet sufficient to
state a section 51.9 claim.

4
sniffed plaintiffs’ underwear, all without plaintiffs’ permission or knowledge.”
(Ramirez, at pp. 1483, 1488.) Relying on Hughes v. Pair (2009) 46 Cal.4th
1035 (Hughes), the court explained that “To prevail on a hostile work
environment claim, the plaintiff must show that the harassing conduct was
‘ “severe enough or sufficiently pervasive to alter the conditions of
employment and create a work environment that qualifies as hostile or
abusive to employees because of their sex.” ’ ” (Ramirez, at p. 1487, quoting
Hughes, at pp. 1043, 1048.)
The residence manager’s “ ‘home invasion’ ” was profoundly troubling,
but the court in Ramirez concluded the plaintiffs were “miss[ing] the point.”
(Ramirez, supra, 188 Cal.App.4th at p. 1487.) While the misconduct “may
constitute burglary or other crimes, and may be a severe intrusion into
plaintiffs’ privacy . . . those facts cannot transform [the manager’s] conduct
into sexual harassment, which requires ‘ “a concerted pattern of harassment
of a repeated, routine or a generalized nature” ’ [citation] or, in the case of an
isolated incident, ‘ “a physical assault or the threat thereof.” ’ ” (Id. at
pp. 1487–1488.)
Other cases are in accord. In Hughes, the leading case on section 51.9,
the California Supreme Court concluded that the defendant’s ominous
statement to plaintiff—“ ‘I’ll get you on your knees eventually’ ”—was a
threat of financial retaliation, not physical violence, and therefore did not
support a claim under section 51.9. (Hughes, supra, 46 Cal.4th at p. 1049.)
In Jones, a correctional officer sued her employer and alleged sexual
harassment under FEHA. (Jones, supra, 152 Cal.App.4th at p. 1373.) The
appellate court affirmed summary judgment because the officer had not
presented evidence linking the alleged harassment to the officer’s gender.
(Id. at pp. 1377–1378.) It explained, “Specifically, Respondents, in their

5
moving papers, pointed to Jones’s deposition testimony in which several
times she was asked whether the comments and complaints her coworkers
made about her were prompted by her gender or race. Jones repeatedly
answered, ‘No’ and ‘I don’t know.’ The absence of the nexus between the
alleged harassment and Jones’s gender negates her FEHA claim.” (Id. at
p. 1378.)
Enforcing the requirement of a factual nexus between the harassment
and gender would not change the law or set an artificially high bar to filing
sexual harassment claims. The most expansive of the hostile environment
sexual harassment cases relied on by the majority include facts that link the
alleged misconduct to gender. For example, in Lewis v. City of Benicia (2014)
224 Cal.App.4th 1519, disputed evidence concerning a defendant’s
discriminatory intent barred summary judgment. (Id. at p. 1525.) But the
case also included plenty of facts linking gender to the harassment that the
plaintiff experienced. (Id. at p. 1527.) As the appellate court described the
facts in that case: “Some of Hickman’s alleged acts had sexual connotations.
Lewis testified Hickman showed Lewis images on Hickman’s office computer
that included a video of a penis in a rat trap and an image of a woman with
lopsided breasts. Hickman told Lewis ‘risqué’ jokes, including: ‘ “How do you
make your wife moan then scream? You fuck her in the ass and then you
wipe it on your drapes.” ’ ” (Ibid., fn. omitted.) The link between gender and
harassment could hardly be more evident.
Similarly, the police officer plaintiff in Accardi v. Superior Court (1993)
17 Cal.App.4th 341 (Accardi) unquestionably linked her harassment to her
gender. That court described: “Upon reporting for duty, she was advised
that male officers did not wish to have a female officer on patrol with them.
She claims that, in the ensuing years, she was the object of discrimination

6
that took the form of threats, rejection, mockery, application of double
standards, sexual advances, and intimidation.” (Id. at p. 350.) Later, “she
was excluded from certain light duty assignments that were given to injured
male officers.” (Ibid.)
In Birschtein v. New United Motor Manufacturing, Inc. (2001)
92 Cal.App.4th 994, Division Four of this court confirmed that, despite its
important contributions to the law concerning hostile workplace sexual
harassment, the Accardi decision maintained the requirement of a factual
link between the alleged harassment and gender. (Birschtein, at p. 1002.)
The defendant in Birschtein attempted to minimize concerns about his
persistent staring at the plaintiff in the workplace. (Id. at pp. 997–998.) The
appellate court identified evidence precluding summary judgment, including
evidence linking the defendant’s allegedly gender-neutral conduct—staring—
and plaintiff’s gender, because his “staring” had been preceded by gender-
based misconduct. (Id. at pp. 1002, 1008.) It explained: “What began as
[defendant’s] overt acts of sexual harassment (asking for dates, the ‘eat you’
remarks, his specifically sexual bathing fantasies) were later transmuted by
plaintiff’s reaction (her complaints to management about the offensive
conduct) into an allegedly daily series of retaliatory acts—the prolonged
campaign of staring at plaintiff—acts that were directly related to, indeed
assertedly grew out of, the antecedent unlawful harassment.” (Id. at p. 1002.)
The appellate court reasoned that the Accardi opinion had “put the matter
convincingly when it characterized such a skein of harassment and complaint
followed by retaliatory acts as a ‘continuous manifestation of a sex-based
animus.’ ” (Birschtein, at p. 1002, quoting Accardi, supra, 17 Cal.App.4th at
p. 351.)

7
 In short, even Accardi required that the alleged harassment be linked
to gender. While proof at the summary judgment or trial stage might well
depend on evidence concerning a defendant’s discriminatory intent, the link
between the hostile environment and gender at the pleading stage was
plainly evident in these cases. The link between harassment and gender is
crucial.
California’s pleading rules do not allow us to turn a blind eye to the
failure to allege facts showing a nexus between gender and the alleged
misconduct based merely on speculation that discovery might reveal a
defendant’s secret intent to harass based on gender. There is no denying that
the factual link between gender and misconduct is highly fact-specific. But
even at the pleading stage, courts play a critical role in “filter[ing] out”
complaints asserting harassment claims that allege only “ ‘ordinary
tribulations . . . such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing.’ ” (Faragher v. City of Boca Raton (1998) 524
U.S. 775, 788, quoting B. Lindemann & D. Kadue, Sexual Harassment in
Employment Law (1992) 175; Ramirez, supra, 188 Cal.App.4th at p. 1488;
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614
[affirming demurrer to FEHA sexual harassment and retaliation claims]; see
also Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at
p. 291 [affirming summary judgment on hostile work environment claim];
Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142,
145 [same].)
These cases focus not on a defendant’s possible intent, but rather on the
facts alleged concerning the defendant’s objective misconduct and the
subjective reactions of a plaintiff (and others) to that conduct under the
reasonable woman standard (in cases involving a female plaintiff). (Harris v.

8
Forklift Systems, Inc., supra, 510 U.S. at p. 23; see Fisher v. San Pedro
Peninsula Hospital, supra, 214 Cal.App.3d at p. 610.) Allegations of
harassment unsupported by such facts are legal conclusions, which we are
not to consider. (See Southern California Gas Leak Cases (2019) 7 Cal.5th
391, 395 [we “take as true all properly pleaded material facts—but not
conclusions of fact or law” when reviewing an order on demurrer]; see also
Ramirez, supra, 188 Cal.App.4th at p. 1488.)
III. Absence of Facts Linking Bullying to Gender in First Amended
Complaint

Thomas’s first amended complaint alleges bullying by McGuire. It
alleges McGuire “behaved erratically and abusively towards his team in
documented incidents since at least 2009.” He “lost his temper at the young
female athletes on many occasions.” “In fits of rage, he singled out his
athletes and berated them in front of the team, sometimes nonsensically, to
make an example out of them and strike fear in the witnessing athletes.”
Thomas also alleges that McGuire misled her, causing her to think she would
get more playing time and would be a central member of the team.
The first amended complaint, however, does not allege a nexus between
the bullying and Thomas’s gender. Thomas alleges that McGuire “called
young female athletes names, cursed at them, and degraded them with
personal insults both related and unrelated to athletic performance,”
“belittle[ed] and degrade[d]” Thomas, and “tormented the athletes
psychologically,” but the complaint fails to identify any name-calling or
cursing, belittling, degrading, or psychological tormenting directed in any
way at Thomas’s gender.
When the first amended complaint does provide specifics, the facts have
nothing to do with gender. For example, it alleges McGuire “berated
Ms. Thomas for not being disciplined, despite her commitment at practices

9
and her initiative,” and “tirades where [the coach] degraded the entire team.”
McGuire “tormented them psychologically and punished them with grueling
workouts,” but the first amended complaint does not link the torment or
punishment to gender.
Thomas focuses on two allegations: that McGuire “called out the
physique of one player in front of the team and called her weak despite her
compliance with the training regimen” and “berated a young woman for
having what he perceived as a hickey on her neck.” But these allegations
alone, without more, have no nexus with gender.
References in Thomas’s complaint indicate that it might be possible for
her to allege the necessary link. For example, the first amended complaint
refers to a letter that “documented the abuses suffered” by other team
members. In a different paragraph, the amended complaint indicates a
December 2019 report from the Office for the Prevention of Harassment and
Discrimination of a complaint by an employee about McGuire that
“confirmed” his “inappropriate comments about young women’s bodies and
about ‘hickeys’ on the young women’s necks.” Facts linking these comments
about bodies to gender, rather than to an athlete’s strength and athleticism
in the abstract, if pervasive, could supply the missing nexus between
McGuire’s alleged bullying and gender. It may also be possible for Thomas to
allege the coach’s use of gender-degrading names, comments directed at
embarrassing a female based on body type, or tirades about gender
orientation.
The majority suggests that the allegations in the first amended
complaint are sufficient and they “may cast light on unexpressed implications
in or motives for other more gender-neutral harassment.” But without any
allegations that the alleged hostile conduct was based on gender, we ought

10
not speculate about the intent behind McGuire’s alleged bullying. “[T]he
defendant’s discriminatory mental state is crucial” to establishing a claim
based on hostile environment harassment. (Pantoja v. Anton (2011)
198 Cal.App.4th 87, 115.) Here, however, the first amended complaint
contains no factual allegations regarding McGuire’s “discriminatory mental
state” (despite the representation at oral argument that Thomas had the
opportunity to take McGuire’s deposition while the Regents’ various motions
to dismiss and demurrers have been pending). The closest it comes is a pure
legal conclusion that reads simply: “A substantial motivating reason for
defendants’ . . . conduct was Ms. Thomas’s gender.”
In sum, mere speculation about a nexus between the hostile acts and
gender is not enough. (Cf. E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir.
2005) 422 F.3d 840, 842 [employees of a teachers’ union survived summary
judgment by presenting “sufficient circumstantial evidence of qualitative and
quantitative differences in the harassment suffered by female and male
employees”].) Establishing the nexus between bullying and gender requires
alleging more than that the bullying took place in the context of a gender-
specific sports team and so all bullying is necessarily linked to gender.
Based solely on existing California law, and without importing heightened
pleading requirements imposed by the federal courts, the trial court was
correct in sustaining the demurrer.
IV. Leave to Amend
Taken at face value, the first amended complaint did not attempt to
state a claim under section 51.9. It labeled Thomas’s claim as one under the
Unruh Act. Thomas should have been given a chance to articulate a theory
under section 51.9 rather than under the Unruh Act. Had Thomas focused on
stating a claim under section 51.9, there is at least “a reasonable possibility

11
that the defect can be cured by amendment,” and so “the trial court has
abused its discretion” and we should reverse with leave to amend. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
The trial court focused on the fact that Thomas had already filed
multiple complaints in two lawsuits alleging various theories of sexual
harassment relating to a gender-based hostile work environment, and sought
reconsideration of an order concerning one of the federal pleadings. Her only
attempt to articulate a theory under section 51.9, however, was in her
opposition to the Regents’ demurrer, where she told the trial court that she
thought she would have “a viable cause of action” based on that statute.
Rather than give her a chance to articulate a claim under section 51.9,
the trial court found that the federal court had “evaluated the same
allegations” and thus, if Thomas had attempted to “specifically allege a
section 51.9 claim,” the attempt “would fail.” But the federal court was
evaluating a slightly different set of claims under a different pleading
standard. (See maj. opn., ante, at p. 28, fn. 12.) The language of section 51.9
is similar to federal sexual harassment statutes and to provisions in the
FEHA, but it is not identical. The trial court should have granted Thomas
leave to amend her first amended complaint to attempt to state a claim under
section 51.9.
V. Conclusion
A sexual harassment claim under section 51.9 based on a hostile
environment theory requires that a plaintiff allege a factual nexus between
the acts creating a hostile environment and gender. Thomas’s need to amend
therefore goes beyond merely rearticulating that section 51.9 is the statutory
basis of her claim rather than the Unruh Act. I would conclude that Thomas

12
has not yet met the statute’s requirements but would give her the
opportunity to do so.

_________________________
MARKMAN, J.*

* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

13
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Richard Seabolt

Counsel:

Siegel, Yee, Brunner, & Mehta, Dan Siegel and EmilyRose Johns for Plaintiff
and Appellant.

Venable, Jean-Paul P. Cart and Amit Rana for Defendants and Respondents.

14