Filed 12/17/14 Van Halen v. Berkeley Hall School Foundation CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KELLY VAN HALEN etc., et al.,
Plaintiffs and Appellants,

v.

BERKELEY HALL SCHOOL FOUNDATION, INC., et al.,
Defendants and Respondents. B252059
(Los Angeles County Super. Ct. No. BC490347)

APPEAL from an order of the Superior Court of Los Angeles County, Steven J. Kleifield, Judge. Reversed and remanded with directions. Mastroianni Law Firm and A. Douglas Ma stroianni for Plaintiffs and Appellants. Gibson, Dunn & Crutcher, Marj orie Ehrich Lewis, Daniel L. Weiss and Bradley J. Hamburger for Defendants and Respondents.

__________ ____________2 INTRODUCTION

Parents enrolled their daughter in a privat e school for preschool. Two years later, while still attending the school, the child develope d a severe allergy to nuts that can cause a serious and potentially lethal reaction. Th e school promised to create an educational
environment that would not ex pose the child to nuts or nut products and to train its teachers how to administer appropriate aid if the child suffered an a llergic reaction. The parents claim that the school ha d no intention of honoring its pr omises and in fact did not.
Concerned about their child’s sa fety, the parents, when they learned the truth, withdrew their daughter from the school and sued fo r return of their tuition, damages, and
emotional distress. The trial court dismis sed most of the parents’ complaint on the pleadings. We reverse most of the trial court’s rulings.

FACTUAL AND PROCED URAL BACKGROUND

A. The First Amended Complaint We assume these allegations are true: 1 Stella Rogers, the daughter of Kelly Van Halen and Baron Rogers, is “a minor school-age child with a severe nut allergy” who can “suffer anaphylaxis or anaphylactic shock if exposed to nuts.” Her parents “carry a portable dose of adrenaline (epinephrine) which can be injected in the event of an allergic re action. This portable dose of epinephrine — commonly known by the trademarks ‘EpiPen’ or ‘Twinject’— is now a
standard feature in American schools as th e incidence of severe nut allergies rises.”

1 See Century-National Ins. Co. v. Garcia (2011) 51 Cal.4th 56 4, 566, footnote 1 [“[a] demurrer must assume th e truth of a complaint’s pr operly pleaded allegations”]; Leyte-Vidal v. Semel (2013) 220 Cal.App.4th 1001, 10 07 [“‘“[i]t is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct”’”].3 Van Halen and Rogers enrolled Stella in the Berkeley Hall School, a private school in Los Angeles operate d by defendant Berkeley Hall Foundation, Inc. Defendant Natalie Miller was “a top administrator at the school” and defendant Winnie Needham was an employee of the school. Van Halen and Roge rs contacted Miller “to learn about procedures in place to protect children with severe nut allergies.” After Miller initially refused to meet with them, they met with Stella’s te acher and the director of the preschool, where they learned that school employees “would never administer a dose of adrena line to Stella,” even if it were “necessary to save her life in response to a severe allergic reaction,” and that the
school would not ask students to refrain fro m bringing nut products to school. The
teachers and staff made comments to the effe ct “Stella’s allergy had no physical cause and was merely ‘in her head’ an d she would grow out of it.” Van Halen and Rogers ev entually met with Mille r and Craig Barrows, the headmaster of the school, who informed them that “Berkeley Hall had adopted policies to ensure the safety of students with severe nut allergies.” 2 The school subsequently sent out two letters to parents asking them not to send nuts and nut products to school. In reliance on the “repeated assura nces that the school had ba nned nut products,” Van Halen and Rogers enrolled Stella for the fo llowing academic year, “paid tuition of approximately $13,000 under a program that allowed for a full tuition refund if the student withdrew from the school for any reas on,” and did not “take steps to enroll Stella
in another school.” Van Halen and Rogers s ubsequently “discovered that Berkeley Hall is an
institution founded and controlle d by Christian Scientists wh o are opposed on religious grounds to medical intervention to treat illne ss and advocate instead a spiritual or prayerbased ‘faith healing,’” which the school “fa ils to disclose to parents of prospective

2 Van Halen and Rogers subs equently learned that “shor tly after adopting the policy banning nut products at the sc hool, Barrows was terminated as Headmaster and forced to leave the school.”4 students . . . .” Thus, according to Van Hale n and Rogers, “children attending the school, who might suffer life threatening injuries while under the school’s supervision, are actually under the direct care of Christian Scientists who are likely, based on their religious beliefs, to forego medical intervention to aid an injure d or sick child.” Berkeley Hall’s “failure to acknowledge childhood nut a llergies and train its teachers and staff to respond to them, puts the school far outside the acceptable norm and standard of care long ago adopted by responsible a nd caring educational institutions.” With respect to Stella’s situation, Berk eley Hall “refused to enforce its own ban on nut products, refused to train its staff in the use of the ‘Epi-P en,’ (after agreeing to do so)
and even refused to hire a nurse to car e for students in the event of a medical emergency.” Despite the school’s “repeated assurances that a ban on nut products was being enforced, the school and its teachers and staff refused to do anything to prevent students with nut allergies from being exposed to nut products on cam pus. This reflected the religious belief of the teachers and staff at Berkeley Hall that St ella’s allergies, and the allergies of other students, were not actually caused by nuts and had no actual physical cause—but were instead ailments to be cured with ‘faith healing’ and prayer.” Thus, the school “had no intention of enfo rcing the nut ban expressly relied on by the plaintiffs in re-enrolling Stella at Berkel ey Hall.” Moreover, after assuring Van Halen and Rogers that Berkeley Hall staff “would be shown how to use a portable epinephrine injection device,” the school informed them “that it could do nothing to intervene medically to help Stella except to call 911 an d request paramedic assistance.” According to Van Halen and Rogers, “[t]hi s was consistent with the sta ff’s Christian Science beliefs which [Berkeley Hall] attempts to conceal from the public since deciding to expand its enrollment and revenue base among non-Christia n Scientist families who do not reject
modern medical science.” Van Halen and Rogers “su ffered severe emotional dist ress worrying about Stella’s health [upon] realizing that [Berkeley Hall] an d its teachers and sta ff lied to [them] about their intentions to avoid exposing Stella to nuts, and realizing that the purported nut ban was not in place . . . .” They also suffered severe emotional distress when they learned5 that Berkeley Hall “would do little or nothing to protect Stella in the event of a medical emergency and Berkeley Hall’s own teachers and staff would ignore the purported ban and would themselves repeatedly expose Stella to nut produc ts after promising not to do
so.” “Fearing for Stella’s safety” and fee ling “betrayed” by the school, and because Berkeley Hall “breached repeated promises th at it would enforce its nut ban,” Van Halen and Rogers “withdrew Stella from the school and were entitled to a full refund of their tuition payment.” Berkeley Hall, after ackno wledging that Van Ha len and Rogers had a “right to a return of the tuition payment,” refused to give them a refund unless they “signed a release of all claims and a confid entiality and non-dispar agement agreement.” In addition, because Van Hale n and Rogers had to withdraw Stella from Berkeley Hall “after the start of the school ye ar, they were unable to place their child in another school and educated her through the use of private tutors for a year at a significant cost exceeding $25,000.”
In their first cause of action for breach of contract Van Halen and Rogers alleged that Berkeley Hall breached a written agreement “by failing to create a nut-free environment, repeatedly expo sing Stella to nuts despite the purported ban, failing to
instruct its staff in the use of the Epi-Pen and refusing to re turn [their] tuition payment.”
In their second cause of acti on for fraud they alleged that Berkeley Hall misrepresented
that “it would institute a nut-free environment” at the school and woul d train “its staff in the use of the Epi-Pen.” They also alleged th at Berkeley Hall “failed to disclose the fact
that its staff adhered to Christian Science doc trine which, at best, discouraged the staff from seeking medical intervention for injured or ill students and encouraged a disbelief in the physical causes of allergies . . . .” Va n Halen and Rogers also asserted causes of
action for intentional infliction of emotiona l distress, negligent misrepresentation, negligent infliction of emotional distress, negligence, and unfair business practices.6 B. The Demurrer to the Fi rst Amended Complaint Berkeley Hall demurred to the first amended complaint, 3 arguing that the first
cause of action for breach of contract was un certain and “so imprecise and confusing that Berkeley Hall cannot ascertain the contract that it purportedly breached.” Berkeley Hall also argued that Van Halen and Rogers had not pleaded the second cause of action for fraud with sufficient specificity, nor had they adequately alleged that Berkeley Hall employees had made knowing and intentional false statements. Berkeley Hall demurred to the cause of action for intentional infliction of emotional distress on the grounds that Van Ha len and Rogers had not pleaded outrageous conduct, intent, or severe emotional distress . Berkeley Hall argued that the negligent misrepresentation cause of action did not state a claim because the alle ged statements that
the school would institute a nut-free environmen t and would instruct staff how to use the Epi-Pen were “nonactionable assertions re garding uncertain future events,” not statements about “‘past or existing material facts.’” Berkeley Hall argued that the negligent infliction of emotional distress fa iled because Van Hale n and Rogers did not state a claim as “‘bystanders’” or as “‘directvictims,’” and that their negligence claim failed because they did “not alle ge that they were harmed by [Berkeley Hall’s] conduct.” Finally, Berkeley Hall argued that Van Hale n and Rogers did not state a claim under
Business and Professions Code section 17200 because they did not allege an unfair business practice and th ey lacked standing. On March 29, 2013 the trial court overru led the demurrer to the first cause of action for breach of contract, sustained the demurrer to the second cause of action for fraud with leave to amend, and sustained the demurrer to all of the other causes of action
without leave to amend. The court’s order st ates: “Demurrer is overruled as to the 1st

3 Van Halen and Rogers amended once as a matter of right pursuant to Code of Civil Procedure section 472. (See People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505 [“Code of Civil Procedure s ection 472 grants a plaintiff the right to file an amended complaint in response to a demurrer at any time before the hearing on the demurrer”].)7 cause of action, sustained with 20 days leave to amend[] as to the 2nd cause of action as it is insufficient, and sustaine d without leave to amend as to the 3rd-7th causes of action as no harm proximately caused by the defendants[’] acts.”

C. The Second Amended Complaint Van Halen and Rogers filed a second amended complaint with two causes of action, breach of contract and fraud. To their fraud cause of ac tion, Van Halen and Rogers added specific examples of alleged misrepresentations. For example, they alleged that on December 1, 2009 Barrows and Barbari DeNisi, the Director of the Early Child Development Cente r, “made the following in tentional and knowing misrepresentations to [Van Halen and Rogers]: (A) that [Berkeley Hall] would do ‘all we can to protect children from expo sure to nuts at the school’; (B) that [Berkeley Hall’s] staff ‘was sensitive to nut allergy issues’; (C) that [Berkeley Hall] will check for nuts items [ sic ] provided by the school for snacks; and (D) ‘lunch tables are cleaned after use.’” Van Halen and Rogers attached a December 1, 2009 letter from Barrows and DeNisi to parents of the Early Child Developm ent Center containing these statements. In addition, “[o]n February 19 , 2010 De[N]isi and Barrows made additional knowingly and intentionally false representations,” incl uding that “(A) a ban was implemented for certain enumerated foods containing nuts; and [(B)] that [Berkeley Hall] would dispense [ sic ] of certain enumerated foods containing nuts if found on campus.” Van Halen and Rogers attached a February 19, 2010 email to parents of the school containing these statements. Barrows, DeNisi and other Berkel ey Hall representatives also made similar representations “in a face to face meeting wh ich occurred in November, 2009.” All of these representations “were kn owingly false and were intende d to defraud” or were made “recklessly and without regard for their truth.”

D. The Demurrer to the S econd Amended Complaint Berkeley Hall demurred again to th e fraud cause of action “on multiple, independent grounds.” Berkeley Hall argue d that the economic loss rule barred Van8 Halen and Rogers’ fraud claim because it was “ide ntical” to the their breach of contract
claim and “ based on the exact same statements that [they] allege constitute the
contractual terms . . . .” Berkeley Hall argued that “the same alleged broken promises at
issue in the breach of contract claim also constitute the false representations allegedly made by [Berkeley Hall] in support of [the] fraud claim”: Berkley Hall stated it would institute a nut-free environment, do everything it could to protect children from exposure to nuts, implement a ban on nut foods, di spose of foods containing nuts if found on campus, and train staff to use the Epi-Pen. Be rkeley Hall also argued that the allegations of knowing and intentional misrepresentations were too conclusory and did not allege anything other than mere nonperformance of contractual promises. Finally, Berkeley Hall argued that Van Halen and Rogers’ frau dulent concealment claim was disproved by their application for admission to the school, of which Berkeley Hall asked the court to take judicial notice, and which Berkeley Hall argued made a full disclosure of the Christian Scientist philosophy of the school. Van Halen a nd Rogers opposed both the demurrer and the request for judicial notice. The trial court held the hearing on the demurrer to the second amended complaint on July 19, 2013. Counsel for Van Halen and Rogers did not appear. The court sustained
the demurrer without leave to amend. The trial court’s orde r does not state any reasons for its ruling, and there was no cour t reporter present at the hearing. On August 6, 2013 Berk eley Hall filed its answer to the second amended complaint. On August 20, 2013 Van Halen a nd Rogers filed a request to dismiss with prejudice the only remaining cause of action, the first cause of action for breach of
contract. The clerk entered the dismissal as requested. On August 23, 2013 the court entered an order dismissing the complaint. Th e August 23, 2013 order states: “Any part of the complaint, including bu t not limited to doe defendants, not already dismissed by the plaintiff or via pleading motion is ordere d dismissed this date without prejudice.” On October 15, 2013 Van Ha len and Rogers filed a notic e of appeal stating that they were appealing from the March 29, 2013 a nd July 19, 2013 orders . They also filed a notice to proceed by appendix in lieu of a clerk’s transcript and a notice to proceed9 without a reporter’s transcript (presumably because the proceedings were not reported and there is no reporter’s transcript).

DISCUSSION

A. Standard of Review “On appeal from an order sustaining a demurrer, we review the order de novo, exercising our independent judg ment about whether the complaint states a cause of action as a matter of law. [Citation.] We treat the demurrer as admitting all material facts properly pleaded, but not conten tions, deductions, or conclusions of fact or law. We also consider matters which may be judicially noticed. Further we give the complaint a reasonable interpretation, reading it as a whole a nd its parts in their context. [Citation.]” ( Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 370.) “If the complaint states any possible legal theory, the trial court’s orde r sustaining the demurrer must be reversed. [Citation.] Also, ‘if there is a reasonable possi bility the defect in th e complaint could be cured by amendment, it is an abuse of disc retion to sustain a demu rrer without leave to amend.’ [Citation.] Whether a plaintiff will be able to prove its allegations is not relevant. [Citation.]” ( Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1057.)

B. This Court Has Jurisdiction To He ar the Appeal by Van Halen and Rogers. Citing Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967 ( Gutkin ), Berkeley Hall argues that this court lacks jurisdiction because Van Halen and Rogers filed a notice of appeal after volun tarily dismissing the action, and a voluntary dismissal is not appealable. Van Halen and Rogers, who did not file a reply brief, do not
address this issue. In some circumstances, “a voluntary dismissal under Code of Civil Procedure section 581 is not appealable.” ( Gutkin
, supra , 101 Cal.App.4th at p. 975, fn. omitted;10 see Sababria v. Embrey (2001) 92 Cal.App.4th 422, 426 [“[a] voluntary dismissal is not generally appealable”].) Van Halen and Ro gers, however, are not appealing from a voluntary dismissal. They are essentially appealing from the trial court’s August 23, 2013 order dismissing the comp laint after the March 29, 2013 and July 19, 2013 orders sustaining demurrers without leave to amend. Although counsel for Van Halen and Rogers checked the wrong box on the notice of appeal (“Other . . . : Orders sustaining demurrers without leave [to amend] after volunt ary dismissal with prejudice of remaining [causes of action]”), counsel checked the right box on the civil case information statement (“[j]udgment of dismissal after an order sustaining a demurrer”) and attached a copy of the August 23, 2013 order of dismis sal. We liberally construe the notice of appeal (Cal. Rules of Court, rule 8.100(a)(2); see Etheridge v. Reins Internat. California,
Inc. (2009) 172 Cal.App.4th 908, 913, fn. 7 [“‘ notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and wher e the respondent could not po ssibly have been misled or prejudiced’”]) to overlook the error in chec king the wrong box and to include an appeal from the August 23 , 2013 order of dismissal (see Topa Ins. Co. v. Fi reman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1336 [order dismissing complaint without prejudice is appealable if it disposes of all claims and issues in the action]). Moreover, even if the trial court ha d not dismissed the complaint after the demurrer orders, the decision in Gutkin stands for the opposite proposition from the one asserted by Berkeley Hall. In Gutkin the defendant demurred to five of the seven causes of action alleged against it. The trial court su stained the demurrer to all five of the causes of action without leave to amend, so that only two causes of action remained. The plaintiff then filed a voluntary dismissal of his complaint without prejudice, thus dismissing the remaining two causes of ac tion. Between the order sustaining the
demurrer to the five causes of action and th e voluntary dismissal of the remaining two causes of action, the trial court had issued some discovery orders, which the Gutkin court referred to as “interim orders.” The plaintiff then “twice sought entry of judgment of
dismissal on the basis of the trial court’s orde rs sustaining the demurrers to five of the11 seven causes of action . . . as well as hi s own voluntary dismissal of the action,” but “[t]he court clerk rejected [the plaintiff’s ] proposed judgment of dismissal because a dismissal of the complaint had been entered and notice of dismissal given.” ( Gutkin
, supra , 101 Cal.App.4t h at p. 973.)
The court in Gutkin held that the plaintiff could challenge on appeal the order sustaining the defendant’s demurre rs to the five causes of ac tion without leave to amend, but not any of the interim orders relating to the two voluntarily dismissed causes of action. The court explained: “[The plaintiff] correctly observes that after the trial court sustained [the defendants’] demurrer to five of his seven causes of action without leave to amend, ‘the plaintiff’s powe r to voluntarily dismiss those five causes of action was
terminated.’ Those counts had been effec tively ‘tried’ by the court, and a voluntary
dismissal cannot be taken after ‘trial’ commen ces. [Citation.] [The plaintiff] further contends that even though the trial cour t refused to enter ju dgment following his voluntary dismissal of the comp laint, the court’s order sust aining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment. We agree.” ( Gutkin
, supra , 101 Cal.App.4th at p. 974.) 4 The court held, however, that the pl aintiff could not appeal from th e interim orders relating to the voluntarily dismissed causes of action. The court explained that “the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal,” and therefore by dism issing the remaining claims without prejudice the plaintiff “lost his ability to challenge the trial court’s interim orders.” ( Id . at p. 975.)

4 The court noted that “‘many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial cour t, on the theory the dismissals were not really vol untary, but only done to expedite an appeal.’ [Citations.]” ( Gutkin
, supra , 101 Cal.App.4th at pp. 974-975; accord, Austin v. Valverde (2012) 211 Cal.App.4th 546, 551; Ashland Chemical Co. v. Provence (1982) 129 Ca l.App.3d 790, 793; see Denney v. Lawrence (1994) 22 Cal.App.4th 927, 9 30, fn. 1 [“when a dismissal was requested after an adverse trial court ruling so that an appeal could be taken promptly, and operates as a request for an en try of judgment based on the adverse ruling, an appeal will lie”].)12 Here, Van Halen and Rogers do not challenge on appeal any of the orders relating to the cause of action they vol untarily dismissed with prejudi ce, the first cause of action for breach of contract. Like the plaintiff in Gutkin , Van Halen and Rogers challenge only the trial court’s orders sustaining Berkeley Hall’s demurrer without leave to amend to their second through seventh causes of action. These are precisely the orders that under
Gutkin Van Halen and Rogers can ch allenge on appeal. (See Gutkin
, supra , 101 Cal.App.4th at pp. 974-975; cf. Goldbaum v. Regents of University of California (2011) 191 Cal.App.4th 703, 708 [trial court’s denial of the plai ntiff’s motion for statutory attorneys’ fees and costs after settle ment “and later dismissal of the action with prejudice have the legal effect of a final, appealable judgment, which encomp asses the ruling on his motion for fees”].) 5

C. The Trial Court Erred in Sustaini ng Berkeley Hall’s Demurrer to the Fraud Cause of Action Without Leave To Amend.
The trial court’s minute order sustaini ng Berkeley Hall’s demurrer to the fraud
cause of action in the second amended co mplaint does not give any reasons for the court’s ruling. The court’s order sustaining the demurrer to the fraud cause of action in the first amended complaint with leave to amend states only that the cause of action “is

5 It is true, as Berkeley Hall points out, th at there is no direct evidence in the record that Van Halen and Rogers were trying to expedite their appeal. For example, in Ashland Chemical Co. v. Provence
, supra , 129 Cal.App.3d 790 the plaintiff “asked the clerk to dismiss the complaint with prejudice ‘only for the purpose of expediting appeal and in no way [indicating] agreement or acquiesence [ sic ] with the Court’s ruling.’” ( Id. at p. 792, italics added.) The cases, however, do not requi re an express affirmative representation that the plaintiff is dismissing the remaining causes of action in order to expedite the appeal, and the plaintiff in Gutkin made no such representation. And, like Van Halen and Rogers, the plaintiff in Gutkin faced pending discovery mo tions and requests for sanctions when he voluntarily dismissed his remaining claims, and the court in Gutkin did not infer from the pendency of those motions , as Berkeley Hall argues here, that Van Halen and Rogers filed the request for di smissal to avoid imposition of monetary sanctions rather than to expedite the appeal.13 insufficient.” Berkeley Hall asserts that “the trial court elaborated on its reasons for granting [ sic ] [the] demurrers at the hearings, but [Van Halen and Roge rs] did not hire a court reporter to document those proceedings.” It does not seem fair to fault Van Halen and Rogers for the trial court’s decision to st ate its reasons orally in the absence of a
court reporter. 6 (See Maxwell v. Dolezal (2014) 231 Cal.App.4t h 93, 100 [noting “the due process implications of a proceeding in wh ich the court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court”].) In any event, the issues on appeal are whether the complaint states a cause of action under any possible le gal theory, and whether there is a reasonable possibility any defects in the complaint can be cu red by amendment. ( Chavez v. Indymac Mortgage Services , supra , 219 Cal.App.4th at p. 1057.) Van Halen and Rogers did a llege, with sufficient particul arity, all of the elements of a cause of action for fraudulent misrepresent ation. “The elements of fraud are: (1) a misrepresentation (false representation, conceal ment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e ., to induce reliance; (4 ) justifiable reliance; and (5) resulting damage.” ( Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990; see Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 259.) Van Halen and Rogers alleged that Berkeley Hall and its seni or staff intentionally and knowingly misrepresented that the school would create a nut-free environment and train its staff on how to use the Ep i-Pen. They specifically alleged the dates, speakers, recipients, methods, and means of the repres entation for each statement. They also alleged the concealment of material facts: that Berkeley Hall “adhered to Christian Science doctrine” and “discouraged the st aff from seeking medi cal intervention for injured or ill students and encouraged a disbelie f in the physical causes of allergies,” and that “providing emergency care to students dur ing the school day [is] something contrary to the religious beliefs of every teac her and staff member at the school.”

6 It is fair, however, to fa ult counsel for Van Halen and Rogers for not appearing at the hearing.14 Berkeley Hall acknowledges that Van Halen and Rogers alleged that the representations “were knowingl y false and were intended to defraud,” but argues that Van Halen and Rogers did not allege any “ specific factual allegations ” regarding Berkeley Hall’s knowledge and intent. Va n Halen and Rogers, however, did allege specifics. They alleged that Berkeley Hall knew that these repres entations were false because they were inconsistent with the school’s Christian Science beliefs, and that the misrepresentations were intentional because th ey were part of an effort “to expand its
enrollment and revenue base among non-Christian Science fa milies who do not reject
modern medical science.” More significantly, Berkeley Hall argues th at Van Halen and Rogers did not state a claim for fraudulent misrepre sentation because they did no t allege anything other than nonperformance of contractual promises. In order to state a cause of action for promissory fraud based on a failure to perform contractual obligations, “‘something more than nonperformance is required to prove th e defendant’s intent not to perform his promise.’ [Citations.]” ( Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) For example, fraudulent intent may be inferred “from such circumstances as defendant’s insolvency, his hasty repudiation of the promis e, his failure even to attempt performance,
or his continued assurances after it was clear he would not pe rform. [Citation.] However, if plaintiff adduces no further evid ence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.” ( Id. at pp. 30-31; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 [“the intent element of promissory fraud en tails more than proof of an unkept promise or mere failure of performance”].)
The second cause of action for fraud is base d in part on Berkel ey Hall’s failure to perform the promises Van Hale n and Rogers alleged were pa rt of their contract with Berkeley Hall. Van Halen and Rogers alleged in their breach of contract cause of action that the “salient terms” of their written ag reement with Berkeley Hall that the school breached were that they woul d pay tuition, Berkeley Hall would refund their tuition if Stella left the school, and th e school would ensure a nut-fre e environment and instruct the15 teachers and staff how to use the Epi-Pen. These are precisely the statements Van Halen and Rogers alleged were the fra udulent misrepresentations. Indeed, they alleged that the written communications to the parents on De cember 1, 2009 and February 19, 2010
contained these same contr actual promises and misrepre sentations. Van Halen and Rogers, however, alleged “something more.” They alleged that Berkeley Hall’s
fraudulent intent was evidenced not merely by its nonperforma nce of these promises, but by the undisclosed “religious belief of the teache rs and staff at Berkeley Hall that Stella’s allergies, and the allergies of the other studen ts, were not actually caused by nuts and had no actual physical cause—but were instead ailm ents to be cured with ‘faith healing’ and prayer.” It was these allegations, not the alle gations that Berkeley Hall failed to honor its promises to create a nut-free environment, th at showed Berkeley Hall “simply had no intention of enforcing the nut ban” when it promised to do so. Moreover, the Tenzer v. Superscope rule for promissory fraud does not a pply to fraudulent concealment claims like the one alleged here. Van Halen and Roge rs allege that Berkeley Hall concealed not only that “Christian Science doctrine” would prevent the school from implementing the changes it had promised, but also that, if Stella had a reaction to nuts and required medical attention, the school would not provid e it. Van Halen and Rogers stated a claim for promissory fraud. In a related argument Berkeley Hall cont ends that Van Hale n and Rogers’ “fraud
claim . . . must fail because it is based entirely on their brea ch of contract claim” and therefore is barred by the eco nomic loss rule, which “limits a plaintiff to contract damages ‘unless he can demonstrate harm above and beyond a broken contractual promise.’” “[T]he economic loss rule . . . in some circumstances bars a tort action in the absence of personal injury or physical damage to other property . . . .” ( Robinson Helicopter Co., Inc. v. Dana Corp.
, supra , 34 Cal.4th at p. 984.) The rule precludes recovery of economic loss, which the Suprem e Court has defined as “‘“‘“damages for inadequate value, costs of repair and replac ement of the defective product or consequent loss of profits[, where there is no] claim of personal injury or damages to other property. . . .”’” [Citation.]’ [Citation.]” ( Id. at p. 988.) The “rul e provides: ‘“‘[W]here16 a purchaser’s expectations in a sale are frust rated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only
“economic” losses.’” This doctrine hinges on a distinc tion drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts .’ [Citation.] The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate ha rm above and beyond a broken contractual promise. [Citation.]” ( Ibid .) “[A] party alleging fraud or deceit in connection with a contract must establish tortious conduct independ ent of a breach of the contract itself, that is, violation of ‘“some independent duty ar ising from tort law.”’ [Citation.]” ( Food Safety Net Services v. Ec o Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130, fn. omitted.) The economic loss rule does not apply he re. Van Halen and Rogers seek more than purely economic damages. They seek noneconomic damages arising from severe emotional distress and worry caused by the Berkeley Hall’s alleged placing of their daughter in a life-threatening situation and refu sing to treat her in an emergency. (See Robinson Helicopter Co., Inc. v. Dana Corp.
, supra , 34 Cal.4th at p. 988 [“[t]he economic loss rule requires a purchaser to rec over in contract for purely economic loss due to disappointed expectations”].) Beca use Van Halen and Rogers seek both economic damages and noneconomic damages, the econom ic loss rule cannot support the trial court’s order sustaining the demurrer without le ave to amend to the fraud cause of action. (See Ellena v. Department of Insurance (2014) 230 Cal.App.4th 198, 217 [“‘[a] demurrer does not lie to a portion of a cause of action’”]; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“[a] demurrer must dispose of an entire cause of action to be sustained”]; Kong v. City of Hawaii an Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained to part of a cause of action or to a pa rticular type of damage or remedy”].)17 Moreover, the economic loss ru le does not apply to a fraudulent inducement claim. (See Robinson Helicopter Co., Inc. v. Dana Corp.
, supra , 34 Cal.4th at p. 990; Erlich v.
Menezes (1999) 21 Cal.4th 543, 551-552; Benavides v. State Farm General Ins. Co. (2006) 136 Cal.App. 4th 1241, 1252; United Guar. Mortg. Inde m. Co. v. Countrywide Financial Corp. (C.D. Cal. 2009) 660 F.Supp.2d 1163, 1188.) Despite Berkeley Hall’s assertion to the contrary, Van Halen and Ro gers alleged that the misrepresentations
induced them to enter into a contract. They alleged th at in November 2009, when they met with Miller and Barrows, they “had no in tention of re-enrolling Stella at Berkeley Hall if the school had no plans to protect th e health of students with nut allergies and [they] would have to begin the arduous proce ss of finding, if possible, an alternate school for Stella to attend the next Fall.” They further allege that Be rkeley Hall “was well aware” that, due to the timing of applying to private schools, “Stella’s decision to reenroll at Berkeley Hall would likely eliminat e the possibility of enrolling in another private school.” Van Halen an d Rogers allege that neverthe less, in reliance on Berkeley Hall’s “repeated assurances that the school had banned nut product s,” they paid tuition for the following year and gave up the opportunity of enrolli ng their daughter in another
school. Giving “the complaint a reasonable interpretation” ( Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1436; Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1470), it is clear that Van Halen and Rogers are referring to the enrollment and tuition agreement, not the agreement alleged in the complaint that included promises of ensuring a nut-free environment and training th e teachers in Epi-Pen usage. Although the second amended complaint is not a model of cl arity, it is this contract into which Van Halen and Rogers alleged they were fraudulently induced to enter. Any uncertainty on this issue can easily be eliminated with basic written discovery, such as form interrogatory No. 50.1. 7 (See Lickiss v. Financial Indus try Regulatory Authority (2012)

7 Form interrogatory No. 50. 1 requests that, “‘[f]or each agreement alleged in the pleadings,’” the responding party “(a) identif y each document that was part of the18 208 Cal.App.4th 1125, 1135 [“ambiguities ca n reasonably be clar ified under modern rules of discovery”].) At a minimum, the trial court should have given Van Halen and Rogers leave to amend to clarify that the fra udulent misrepresentations induced them to
enter into the enrollment a nd tuition agreement. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100 [when a demurrer has been “‘sustained without leave to amend, we decide whether there is a reasonable possi bility that the defect can be cured by amendment: if it can be, the tr ial court has abused its di scretion and we reverse’”]; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971 [t rial court abuses its discretion in sustaining a demurrer with out leave to amend “‘“if there is a reasonable possibility that the defect can be cured by amendment,”’” and “[ t]his abuse of discretion is reviewable on appeal ‘even in the absence of a request fo r leave to amend’”].) Van Halen and Rogers
stated a fraudulent inducement claim on a “possible legal theory.” ( Chavez v. Indymac Mortgage Services , supra , 219 Cal.App.4th at p. 1057.) Finally, Berkeley Hall argues that Van Halen and Rogers’ fraudulent concealment
claim fails because it is “direc tly contradicted by the admi ssions application agreement that [they] received and signe d in April 2007.” This do cument, which Van Halen and Rogers appear to have signed on April 23 , 2007 (although Van Ha len and Rogers object to its authenticity, is entitled “Statement of Family Agreement” and, according to Berkeley Hall, was part of the applica tion for admission comple ted by Van Halen and Rogers. The document states: “1. I/We understand that it is the policy of Berkley Hall School that Christian Science is not taught at school as an academic subject or course of instruction. Its broad moral and spiritual values do guide the day to day life of the
agreement; (b) state each part of the agreement not in writi ng; (c) identify all documents that evidenced any part of th e agreement not in writing; (d ) identify all documents that were part of any modification to the agreem ent; (e) state each modification not in writing; and (f) identify all documents that evidence d any modification not in writing. Form interrogatory 50.1 also request[s] that [the responding party] provide the name, address and telephone number of each person who eith er possessed the docu ments identified in defendants’ response, or who had agreed to any of the oral agreements or oral modifications identified in [the] response.” ( Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 397.)19 campus. I/We also understand that the facult y, staff, and administration of Berkeley Hall are practicing Christian Scientists. If my/our child enrolls as a Berkeley Hall School student, I/we will encourage his/her participa tion in school character education activities, including weekly chap el, morning inspirational activitie s in the classroom, and other periodic activities designed to st rengthen the growth of sound mo ral and spiritual values.” The agreement further provides that in the case of a “ch ild’s injury or illness the following steps will be taken: [¶] a. If the s ituation is immediately life threatening, 911 Emergency Assistance will be ca lled for, and a parent . . . w ill be notified expeditiously. [¶] b. In other situations, First Aid w ill be administered by a Red Cross Multi-media Course trained faculty or sta ff member, if required, and the parent . . . will be called for guidance on follow-up actions desired. [¶] All families designate either a health care professional or Christian Scienc e practitioner to be contacted.” Berkeley Hall argues that by signing this document Va n Halen and Rogers “affir med in writing that they understood the specific facts they now claim Berkeley Ha ll failed to disclose.” Berkeley Hall filed a request for judici al notice of the Statement of Family Agreement in the trial court pu rsuant to Evidence Code se ction 452 on the ground that “its contents are not subject to reasonable dispute.” 8 Van Halen and Rogers opposed the request, arguing that the “document and its interpretation within the context of the defendants’ alleged fraud, is subject to dispute, continuing discovery, and the weighing of evidence by msj [ sic ] or at trial.” (Italics and unders coring omitted.) Th e trial court did not rule on the request. Berkeley Hall has filed a request for judicial notice in this court. This document, assuming it is admissible, may help defeat Va n Halen and Rogers’
fraudulent concealment claim. But it is not subject to judicial notice under Evidence
Code section 452. “Judicial notice under Evid ence Code section 452, subdivision (h) is

8 Evidence Code section 452, subdivision (h), provides that the court may take judicial notice of “[f]acts a nd propositions that are not reas onably subject to dispute and are capable of immediate and accurate determ ination by resort to sources of reasonably indisputable accuracy.”20 intended to cover facts which are not reas onably subject to dispute and are easily verified,” such as “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and th e like or by persons learned in the subject matter,” and for facts like “ownership, easem ents and control over land . . . .” ( Gould v Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) It is not appropriate for contracts and other evidentiary documents th at are reasonably subject to dispute. “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allo wing the parties an o pportunity to present extrinsic evidence of the meaning of the do cument, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. [Citations.] In short, a court cannot by means of judicial notice convert a demurrer in to an incomplete ev identiary hearing in which the demurring party can present documen tary evidence and th e opposing party is bound by what that eviden ce appears to show.” ( Fremont Indemnity Co. v. Fremont General Corp.
, supra , 148 Cal.App.4th at pp. 114-115; see Gould
, supra , at p. 1145 [“the existence of a contract between private par ties cannot be establis hed by judicial notice
under Evidence Code section 4 52, subdivision (h)”].) Th e meaning of the agreement attached to the application for admission, and whether it shows Va n Halen and Rogers had knowledge of the facts th ey allege Berkeley Hall concealed, is neither free from reasonable dispute nor “capable of immediate and accurate de termination by resort to sources of reasonably indisputable accuracy.” ( Gould
, supra , at p. 1145.) Neither the trial court nor this court can take judicial no tice of it to show what Van Halen and Rogers may have known or not known. Berkeley Hall argues that the court “can take judicial notice of this application agreement because it was refere nced in, but not attached to , [Van Halen and Rogers’] complaints.” Van Halen and Rogers’ alle gations, however, make no mention of their application for admission or the accompanyin g Statement of Family Agreement. The second amended complaint alleges a written ag reement (or agreements) governing tuition21 payment, tuition refund, a nut-free environmen t, and Epi-Pen training, but it does not mention or incorporate the application or the Statement of Fam ily Agreement. In Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, c ited by Berkeley Hall, the court found that a settlement agreem ent “was an appropriate matter of which the court could take judicial notice” because the plaintiff “r eferred to the Settleme nt Agreement in its complaint . . . .” ( Id. at p. 956, fn. 6.) In Ingram v. Flippo (1999) 74 Cal.App.4th 1280, also cited by Berkeley Hall, the court took judicial notice of a letter and press release because “the complaint excerp ted quotes from the letter and summarized parts of it in
some detail” and “the contents of the letter and media release form[ed] the basis of the allegations in the complaint



### . . . .” ( Id. at p. 1285, fn. 3.) He re, the complaint does not refer to the application for admission and the application doe s not form the basis of the complaint. Finally, even if the application for admi ssion were subject to judicial notice, it would not dispose of Van Halen and Rogers’ fraudulent concealment claim. The document states that Berkeley Hall’s facu lty, staff, and administration are practicing Christian Scientists, and that the school calls 911 in an emer gency and otherwise administers first aid by a trained faculty or st aff member. It does not state that Berkeley Hall “discouraged the staff fro m seeking medical interventio n for injured or ill students and encouraged a disbelief in the physical ca uses of allergies . . . .” The document may be evidence, on summary judgment or at trial, that Van Halen and Ro gers had actual or constructive knowledge of facts they allege they did not know, bu t it does not, without
evidence of how Van Halen an d Rogers understood it and wh at they discussed with Berkeley Hall representatives about it, def eat Van Halen and Rogers’ fraud claim on the pleadings.22 D. The Trial Court Erred in Sustaini ng Berkeley Hall’s Demurrer to the Intentional Infliction of Emotional Distress Cause of Action Without
Leave To Amend. The trial court sustained Berkeley Hall’s demurrer to the remaining five causes of
action because the court concluded there wa s “no harm proximately caused by the defendants[’] acts.” The tria l court’s ruling was erroneous because the first amended complaint alleged harm proximately caused by Berkeley Hall’s acts: severe emotional distress, loss of $13,000 in non-refunded tuition, and $25,00 0 in private tutoring costs. 9 Berkeley Hall essentially concedes this was er ror by asking this court to affirm based on the other arguments it raised in support of its demurrer. Berkeley Hall argues that Van Halen and Rogers did not state a claim for intentional in fliction of emotional distress because they did not allege th at Berkeley Hall’s conduct was outrageous, that Berkeley Hall intended to cause emotional distress, and that they suffere d severe emotional
distress. “‘The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotiona l distress; (2) suffering of severe or extreme emotional distress by the pl aintiff; and (3) the plaintiff’s emotional distress is actually and proximately the result of defendant’s outrageous conduct.’ [Citations.] Extreme and outrageous conduct is conduct that is ‘“‘so extreme as to
exceed all bounds of that us ually tolerated in a civilized community’”’ [citation] and

9 There may be, however, some duplicati on in the claims fo r the $13,000 tuition refund and the $25,000 spent on private tutors. Van Halen and Rogers presumably could have used the $13,000 refund to pay for some of the tutori ng expenses, so that if they recover the $13,000 from Berkeley Hall, they are made whole with an additional $12,000 (excluding interest calculations regarding both the money the school withheld and the money the parents spent on tutors over time). (See Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 417 [“the prim ary purpose of compensatory damages is . . . to make plaintiffs whole”]; Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1153 [“[t]he purpose of compensatory damages is to make plainti ffs whole for harm caused by defendants”].)23 must be ‘“of a nature which is especially calculated to cause, and does cause, mental distress.”’ [Citation.]” ( Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87.) “‘In order to avoid a demurrer, the plaintiff must allege with “great[] specificity” the acts
which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [C itation.]’ [Citation.]” ( Yau v. Allen (2014) 229 Cal.App.4th 144, 160-161.) In addition, “[ t]he complaint must plead sp ecific facts that establish severe emotional distress resulting from defendant’s conduct.” ( Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.) Allegations that a school lied to parents a bout its plans and intentions to eliminate a life-threatening hazard and co ncealed the continui ng existence of a condition that could threaten a child’s life do approa ch the limits of what a civ ilized society will tolerate. Assuming, as we must on demurrer, the truth of Van Halen and Roge rs’ allegations that the school placed Stella in a dangerous envi ronment that could ha ve killed her, falsely stated it was addressing the problem and making the environment safer, and then failed to take appropriate steps and commit the resour ces to be able to respond to a medical emergency in Stella’s case if one arose, Va n Halen and Rogers sati sfied the outrageous conduct requirement. (See Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 407 [“[o]ur greatest responsibility as me mbers of a civilized society is our common goal of safeguarding our children, our chief legacy, so they may grow to their full potential and can, in time, take our pl aces in the commun ity at large”]; Hulstedt v. City of
Scottsdale (D.Ariz. 2012) 884 F.Supp.2d 972, 1019 [conduct that “impedes medical treatment to an injured child is ‘utterl y intolerable in a civilized society’”]; RodriguezSanchez v. Acevedo-Vila (D.P.R. 2011) 763 F.Supp.2d 294, 303 [“the measure of a civilization is how it treats its weakest members”]; State ex rel. Gibbs v. Martens (Fla. 1940) 193 So. 835, 837 [“no fe ature of our civilization deserves more sincere thought, conscientious effort or enthusiastic sup port, than the protection of children”].) Van Halen and Rogers, howe ver, did not sufficiently a llege that they suffered
severe or extreme emotional distress. The Supreme Court “has set a high bar” for “the requirement that a plaintiff show severe em otional distress,” which means “‘“‘emotional24 distress of such substantial quality or endurin g quality that no reasonable [person] in [a] civilized society should be expected to endure it.’”’ [Citation.]” ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) The allegations in the first amended complaint did not come close to alleging such severe emotional distre ss. As Berkeley Hall correctly points out, Van Halen and Rogers allege d only that they “suffered severe emotional distress worrying about Stella’s health.” Th is allegation is insufficient. (See ibid. [“plaintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation” insufficient]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377 [allegation that the plaintiff suffered “‘severe emotional dama ge’” and declaration that the defendant’s conduct “‘was very emotionally upsetting to me , and has caused me to lose sleep, have stomach upset and generalized anxiety’” insufficient].) Nevertheless, this pleading defect is curable by amendment. (See AREI II Cases (2013) 216 Cal.App.4th 1004, 10 12 [“[w]hen a demurrer is sustained without leave to amend, we reverse if there is a reasonabl e possibility an amendm ent could cure the defect”]; Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App. 4th 556, 561 [“[i]f a
demurrer was sustained without leave to amend, but the defect was curable by amendment, we would find an abuse of disc retion in that ruling”].) Van Halen and Rogers’ entitlement to leave to amend is par ticularly strong here, where the trial court was hearing Berkeley Hall’s first challenge to the pleading, and the court’s ruling did not indicate that their allegations were deficien t in any way, other than the (incorrect) statement that they had not alleged damages. (See City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 [“[i]f the plain tiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its fa ce that it is incapable of amendment”]; Align Technology, Inc. v. Tran
, supra , 179 Cal.App.4th at p. 9 71 [“‘[l]iberality in permitting amendment is the rule, if a fa ir opportunity to correct any defect has not been given’”]; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1 227 [trial court abused its discretion in sustaining demurrer to intentiona l infliction of emotional distress cause of action where “[t]he deficiencies in pleading the nature and extent of [the plaintiff’s]25 emotional distress appear to be easily corr ected” and “the court did not specify any problems with [the plaintiff’s ] pleadings as to the sever ity of emotional distress”].) 10

E. The Trial Court Did Not Err in Sustaining the Demurrer to the Negligent Misrepresentation Cause of Action Without Leave
To Amend. “‘The elements of negligent misrepresenta tion are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce anot her’s reliance on the fa ct misrepresented, (4) justifiable reliance on the mi srepresentation, and (5) resu lting damage.’ [Citations.]” ( Bock v. Hansen (2014) 225 Cal.Ap p.4th 215, 231; see Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1 239.) In order to state a claim for negligent misrepresentation, the “‘actiona ble misrepresentation must be made about past or existing facts; statemen ts regarding future events ar e merely deemed opinions.’” ( Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal. App.4th 303, 309- 310.) A “promise to perform at some futu re time” does not “involve a past or existing
material fact” and therefore will not su pport a cause of action for negligent misrepresentation. ( Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) 11 Van Halen and Rogers allege in their negligent misrep resentation cause of action that Berkeley Hall “made a series of neglig ent misrepresentations to the plaintiffs

10 As noted, Van Halen and Rogers did allege that Berkeley Hall’s “conduct was intended to cause emotional distress or [it] act ed with reckless disreg ard that its conduct would cause emotional distress.”

11 A false promise to perform in the future may be actiona ble if made without intent to perform, but it is actionable as promissory fraud, not negligent misrepresentation. ( Tarmann v. State Farm Mut. Auto. Ins. Co. , supra , 2 Cal.App.4th at pp. 158-159.) Promissory fraud is “a type of intentional misrepresentation, i.e., actual fraud.” ( Id. at p. 159, fn. omitted.)26 including that: (1) it would institute a nut-free environment in the areas where Stella was
to receive instruction and ot herwise frequent; and (2) it woul d obtain instruction for its staff in the use of the Epi-Pen.” These are statements about what Berkeley Hall would do in the future, not statements about past or existing material facts. They may support a promissory fraud or fraudulent representation claim, but they do no t support a negligent misrepresentation claim. Because we can not envision how Van Ha len and Rogers can amend to allege misrepresentati ons about past or existing mate rial facts, and because they have not indicated how they could so amend, the trial court properly sustained Berkeley Hall’s demurrer to the neglig ent misrepresentation cause of action without leave to
amend.

F. The Trial Court Erred in Sustaini ng Berkeley Hall’s Demurrer to the Negligent Infliction of Emotional Distress Cause of Action Without
Leave To Amend. “[T]here is no independent tort of negligent inflicti on of emotional distress. [Citation.] The tort is negligen ce, a cause of action in which a duty to the pl aintiff is an essential element.” ( Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 984;

see Behr v. Redmond (2011) 193 Cal.App.4th 517, 5 32 [“[n]egligent infliction of emotional distress is not an independent tort; the tort is negligence”].) There are two theories of recovery for negligent infliction of emotional distress: bystander and direct victim. ( Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071- 1072; see Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205-206.) Bystander cases “‘all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant w ith whom the plainti ff had no preexisting relationship, and to whom th e defendant had not previous ly assumed a duty of care beyond that owed to the public in general.’” ( Burgess , supra , at pp. 1072-1073, italics omitted.) The “class of bysta nders” who can br ing such claims is “circumscribed.” ( Id. at p. 1073.) Bystander duty “is only recogniz ed when the bystander is closely related to the victim, is ‘present at the scene of the injury producing event at the time it occurs and27 is then aware that it is causi ng injury to the victim,’ and suffers emotional distress beyond what would be ‘anticipated in a disi nterested witness.’ [Citation.]” ( Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App. 4th 904, 911; see Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.) In contrast, direct victim claims for negligent infliction of emo tional distress arise “as a resu lt of a breach of duty owed the plaintiff that is ‘assumed by the defenda nt or imposed on the defendant as a matter of law, or that arises out of a relations hip between the two.’ [Citation.]” ( Burgess , supra , at p. 1073; see Steven F. , supra , at p. 912 [direct victim cases “involve[] negligence which
was ‘directed at’ the relative as well as the injured party”].) Van Halen and Rogers are asserting a direct victim claim. There is no dispute that Berkeley Ha ll owed a duty to Stella. “A special relationship is formed between a school district and its students resulting in the imposition of an affirmative duty on the school district to take all reasonable steps to protect its students.” ( M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517; see Hemady v. Long Beac h Unified School Dist. (2006) 143 Cal.App.4th 566, 570 [“the California Supr eme Court has applied the prudent person standard of care to determine liability of sch ool districts and their employees for injuries
to students which occurred duri ng school hours”].) Parents who enroll their children in school “‘may legitimately expect adeq uate supervision.’ [Citation.]” ( J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.Ap p.4th 123, 142; see C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869 [“‘California law has long imposed on school authorities a duty to “supervis e at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection”’” and the “‘uniform standard to wh ich they are held is that degree of care “which a person of ordinary prudence, charge d with [comparable] duties, would exercise under the same circumstances”’”].) The issue with respect to the ne gligent infliction of emotional distress claim is whether Berkeley Hall owed a duty to Stella’s parents, Van Halen and Rogers.28 The duty element for direct victim liability “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” ( Potter v. Firestone Tire &
Rubber Co.
, supra , 6 Cal.4th at p. 985; see Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130; Ragland v. U.S. Bank National Assn.
, supra , 209 Cal.App.4th at p. 205.) Va n Halen and Rogers argue that the pre-existing relationship “between the school and the plaintiffs” created a duty of care. Be rkeley Hall argues that Van Halen and Rogers did not a llege a duty, and that “courts have routinely held that schools do not owe parents a dut y not to cause them emotiona l distress.” It is not so clear, however, that courts have so routinely held.
In Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193 a 13-year-old boy repeatedly sexually molested an eight-year-old girl at school. The school learned of the incidents but decided not to notify the gi rl’s mother, and instead gave the girl psychological counseling and told the boy to st op or the school would notify his parents. ( Id. at p. 1195.) The mother sued for intentional and neg ligent infliction of emotional distress and alleged that “[a]s a result of defend ants’ failure to notify her of these assaults, she has suffered severe emotional distress, bot h because of the rape and because she has had to observe the ‘physiological and psycho logical deterioration of her daughter from a happy, well adjusted, above average student, to a morose, sullen, despondent and withdrawn, near failing student over a period of thirteen weeks.’” ( Ibid. ) The court held that a “special relationship exist[ed]” betw een the school and the mother, and that the school “owed a duty of care not only to [the girl], but under the circumstances of this case, to [the] mother as well.” ( Id. at p. 1196.) The court explained that “defendants engaged in a ‘cover-up’ which they should have foreseen would cause [the mother] more emotional distress than merely informing her of the incidents in the first place. [The mother’s] emotional distress was compounded when she lear ned of the rape, which she felt could have been prevented, and when she thereafter witnessed the physical and emotional deterioration of her child.” ( Id. at p. 1197.) The cour t held that the mother
could state a claim “as a direct victim of defendants’ negligent act, or failure to act, and not for injuries based upon he r direct observation of the injury to her daughter.” ( Ibid. )29 In Steven F. v. Anaheim Union High School Dist.
, supra , 112 Cal.App.4th 904 a high school student had a secret sexual relations hip with a teacher that she went “to ‘great lengths’ to conceal” and about which she told no one. ( Id. at p. 906.) None of the other teachers or school supervisors knew of the relationship. ( Id. at p. 907.) The court held that, assuming for purposes of the appeal th at the school had neglig ently supervised the teacher, the student’s parents could not reco ver for negligent infliction of emotional distress because the negligent supervision was not directed at the parents. ( Id. at pp. 910- 911, 912.) The court explained that “[a]ssum ing that there was any negligent supervision
of the teacher here . . . it was at the most directed at not noticing the rather too-close relationship between the student and the t eacher, not directed at the parents.” ( Id. at p. 912.) The court relied on Martin By and Through Martin v. United States (9th Cir. 1993) 984 F.2d 1033, where the Ninth Circuit, applying Califor nia law, held that parents of a child enrolled in a day care center operated by the federal government who was abducted and raped while lost on an outing c ould not recover for ne gligent infliction of emotional distress. ( Id. at pp. 1036-1037.) The court in Steven F. stated that “ Martin , in fact, would apply a fortiori in this situation because surely there is more of a direct duty to the parent of a six year old who specifica lly enrolled her in a day care center to keep her from getting lost on an outi ng than there is to the parent s of a teenager in a public high school to prevent a relationship that th e teenager herself was trying to hide.” ( Steven
F. , supra , at p. 912.) On the issue of duty, this case is more like Phyllis P. than Steven F. Berkeley Hall assumed a duty to Van Halen an d Rogers by promising that th e school would take certain actions, including removing nuts and nut products from Stella ’s educational environment and training school teachers and staff to use the Epi-Pen in the even t Stella encountered nuts and had a severe allergic re action. Like the school in Phyllis P. , and unlike the
school in Steven F. , Berkeley Hall had been wa rned of the danger. (See Steven F. v. Anaheim Union High School Dist.
, supra , 112 Cal.App.4th at p. 914 [distinguishing Phyllis P. because in Phyllis P. “there was a warning of the propensity on the part of the 13-year-old student who committed th e rape”].) Like the school in Phyllis P. , which30 knew of the danger the 13-year-old boy pose d to the girl, and unlike the school in Steven
F. , which did not know of the sexual relati onship between the teacher and the student, Berkeley Hall knew of the danger that nuts posed to Stella. (See Steven F. , supra , at p. 914 [distinguishing Phyllis P. because in Phyllis P. “there was clear knowledge of the danger on the part of the school”].) Like the school in Phyllis P. , which withheld information from the parent and “engaged in a ‘cover-up,’” ( Phyllis P. v. Superior Court
, supra , 183 Cal.App.3d at p. 1197) and unlike the school in Steven F. , which could not hide what it did not know, Berkeley Hall co ncealed that it was in fact continuing to expose Stella to nuts and doing nothing to pr epare for an allergenic emergency. (See
Steven F. , supra , at p. 914 [distinguishing Phyllis P. because in Phyllis P. “there was a conscious decision to preempt the parents fro m learning of the possibility of danger”].)
As in Phyllis P. , Berkeley Hall was “ deliberately usurping the parental prerogative to protect the child.” ( Steven F. , supra , at p. 915.) This alle ged conduct by Berkeley Hall satisfied the duty element for negligent in fliction of emotional distress by assuming a duty to Van Halen and Rogers. (See Potter v. Firestone Tire & Rubber Co.
, supra , 6 Cal.4th at pp. 984-985.) 12 Nevertheless, “the Supreme Court made it clear that to recover damages for emotional distress on a claim of negligence where there is no ac companying personal, physical injury, the plaintiff must show that the emotional distress was ‘serious.’” ( Wong v. Jing , supra , 189 Cal.App.4th at p. 1377; see Burgess v. Superior Court , supra , 2 Cal.4th at p. 1073, fn. 6 [“requirement that the emotional distress suffered must be ‘serious’ . . . applies to ‘direct victim’ ca ses”].) “‘“[S]erious mental distress may be found where a reasonable man, normally constitu ted, would be unable to adequately cope with the mental stress enge ndered by the circumstances of the case.” [Citation.]’

12 Berkeley Hall also had a contractual re lationship with Van Halen and Rogers, but “the simple existence of a contract” between them is not sufficient to impose a duty of care for negligent infliction of emotional distress. ( Huggins v. Longs Drug Stores California, Inc.
, supra , 6 Cal.4th at p. 131; Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1015.)31 [Citation.]” ( Wong , supra , at pp. 1377-1378.) As noted, Van Halen and Rogers have not alleged serious emotional distress, but they are entitled leave to amend to so allege.

G. The Trial Court Erred in Sust aining Berkeley Hall’s Demurrer to the Negligence Cause of Action Without Leave To Amend. Van Halen and Rogers’ neg ligence cause of action alleges that Berkeley Hall was negligent because it exposed Stella “to nuts— a known, established and potentially fatal pathogen to a child with Stella’s allergy—af ter both being informed of the allergy and repeatedly promising in writing th at it would take steps to avoi d exposing Stella to nuts.” They again allege that they “suffered severe emotional distress worrying about Stella’s health . . . .” As noted, negligent inflicti on of emotional distress and negligence are the same cause of action with the same elements, with the former a subset of the latter. ( Burgess v. Superior Court , supra , 2 Cal.4th at p. 1072.) It does not appear from the allegations in the first amended complaint that Van Halen and Rogers’ negligence cause of action is any different than their neglig ent infliction of emotional distress cause of action, and that their negligence cause of action is duplicative and unnecessary. (See Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [demurrer properly sustained to duplica tive negligence cause of acti on where such pleading “adds nothing to the complaint by way of fact or theory”].) Van Halen and Rogers gave no
indication in the trial court or in their briefs on appeal that they are alleging a different negligence claim, for exampl e that Berkeley Hall actuall y but negligently tried to
eliminate nuts from Stella’s e ducational environment and to train teachers how to respond to a nut-induced emergency, a lthough counsel for Van Halen and Rogers represented at oral argument that he can amend to state such a claim. Van Halen and Rogers also do not appear to allege a negligence cause of action that is different than their dismissed breach of contract cause of action. (See Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 95 [“‘[c]onduct amo unting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law’”]; Money Store Investment Corp. v. Southern Cal. Bank (2002) 98 Cal.App. 4th 722, 732 [plaintiff32 “does not state a negligence cause of action ap art from its contract cause of action” based
on a defendant’s breach of cont ractual duties, in the abse nce of a violation of an independent tort duty].) Van Halen and R ogers, however, should have an opportunity, particularly after the first pleadings challe nge, to allege a neglig ence claim that is different than their negligent infliction of em otional distress claim and that is based on a breach of duty other than failure to perform a contractual duty. (See City of Stockton v. Superior Court , supra , 42 Cal.4th at p. 747 [“leave to amend is properly granted where resolution of the legal issues does not fore close the possibility th at the plaintiff may supply necessary fact ual allegations”].)

H. The Trial Court Erred in Sustaini ng Berkeley Hall’s Demurrer to the Unfair Competitio n Cause of Action. Van Halen and Rogers allege that Berkeley Hall’s “failure to disclose to the public in it[s] advertising and promotional materi al that it is an in stitution which eschews
traditional medical care is an unfair busine ss practice in violation of Business and Professions Code section 17200. [¶] Although during school hours it is in loco parentis and charged with ensuring the well-being of the children who attend the school, [Berkeley Hall] has purp osefully downplays [ sic ] the fact that it is a Christian Science Institution which rejects me dical science and does an d will disregard medical intervention to” prospective students and thei r parents. Van Halen and Rogers allege, citing an attached excerpt from the school’s website, that when disseminating information about the school to the general public, “Berke ley Hall claims to be non-sectarian” and “hides its connection with Christian Science, fa ils to disclose that the school was founded by Christian Scientists and that its teachers, staff and Board of Trustees are comprised solely of Christian Scientists.” Van Halen and Rogers further alle ge, citing an attached excerpt from a Christian Science eNewsletter, that “when advertising for the school in Christian Science publications [Berkeley Hall ] discloses that the school is operated at every level by Christian Scien tists,” and that therefore “children attending the school, who might suffer life threatening injuries while under the school’s supervision, are33 actually under the direct care of Christian Scientists who are likely, based on their religious beliefs, to forgo medi cal intervention to aid an in jured or sick child.” Van Halen and Rogers allege this practice arose out of a decision in the late 1990s “to expand
the school and its facilities and recru it students outside the Christian Science community,” and that as “part of its strategy to expand its student (and revenue) base, the school began to advertise itself to non-Christian Scientists as a secular institution . . . .” Van Halen and Rogers argue that this practice “is ‘unfair,’ ‘fraudulent,’ ‘deceptive,’ ‘untrue’ and ‘mislead ing’—satisfying several of th e disjunctive prongs of . . .
section 17200” of the Busine ss and Professions Code, the un fair competition law (UCL). Berkeley Hall argues that Van Halen and Rogers “failed to allege both that any injury resulting from unfair business practices was subs tantial or that they suffered an injury
that could not have be en reasonably avoided.” “The UCL permits civil recovery for ‘a ny unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . .’ (Bus. & Prof. Code, § 17200.)” ( West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 805.) “A claim made under [Business a nd Professions Code] s ection 17200 ‘“is not confined to anticompetitive business practices, but is also directed toward the public’s right to protection from fraud, de ceit, and unlawful conduct. [Citation.] Thus, California courts have consistently interpreted the language of section 17200 broadly.”’” ( Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1007.) “T he UCL’s ‘scope is broad,’ and its coverage is ‘“sweeping.”’” ( People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 783.)
“‘Business and Professions Code section 17200 is written in the disjunctive [and] establishes three varieties of unfair competiti on—acts or practices wh ich are unlawful, or unfair, or fraudulent.’” ( Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1133.) “In consumer cases arising under the UCL, a business practice is ‘unfair’ if (1) the consumer injury is s ubstantial; (2) the injury is not outweighed by any countervailing benefits to consumers or competition; a nd (3) the injury could not reasonably have been avoided by consumers themselves.” ( Klein v. Chevron U.S.A., Inc.34 (2012) 202 Cal.App.4t h 1342, 1376, citing Camacho v. Automobile Club of Southern California (2006) 142 Cal.Ap p.4th 1394, 1403.) 13 A practice may be unfair even if it is not unlawful. ( Korea Supply Co. v. Lo ckheed Martin Corp. (2003) 29 Cal.4th 1134, 1143; see Arce v. Kaiser Foundat ion Health Plan, Inc. (2010) 181 Cal.App.4th 471, 486.) “Liberally construed” ( West v. JPMorgan Chase Bank, N.A.
, supra , 214 Cal.App.4th at p. 806), Van Halen and Rogers’ allegations that Berkeley Hall uses two sets of advertising, one of which is decep tive and designed to attract non-Christian Science families to the school who might othe rwise not pursue admission, satisfied the “unfair” prong of th e UCL. Although a $13,000 tuitio n refund claim may not be the largest amount in controversy in a civil case, it is a substantial amount of money, and Van Halen and Rogers do not allege any benefit to consumer s or to competition that might outweigh their injury. (See Stern, Cal. Pr actice Guide: Business & Professions Code Section 17200 Practice (The Rutter Group 2014 ) ¶ 3:126 [“[t]rivial or speculative harm is insufficient, and must arise to real mone tary harm or unwarranted health and safety risks”].) Van Halen and Rogers also allege that they and other consumers could not have avoided the injury themselves because they did not know the existe nce of the two kinds of advertising for the school, one allegedly tr ue and the other allege dly false, nor which one was the accurate one. Moreover, these are not issues that can be resolved at the pleading stage. (See Klein v. Chevron U.S.A., Inc.
, supra , 202 Cal.App.4th at p. 1376 [“‘[w]hether a practice is . . . unfair is ge nerally a question of fact which requires “consideration and weighing of evidence from both sides” a nd which usually cannot be made on demurrer’”].) With respect to the fraud ulent prong of the UCL, “[ a] business practice is ‘fraudulent’ within the meaning of [Business a nd Professions Code] se ction 17200 if it is

13 Although in consumer cases there is a split of authority on what constitutes an “‘unfair’” practice under the UCL, the divisi ons in this district have “consistently followed the definitio n enunciated in Camacho .” ( Klein v. Chevron U.S.A., Inc.
, supra , 202 Cal.App.4th at p. 1376, fn. 14.)35 ‘likely to deceive the public. [Citations.] It may be based on representations to the public which are untrue, and “‘also those whic h may be accurate on some level, but will
nonetheless tend to mislead or deceive. . . . A perfectly true statement couched in such a manner that it is likely to misl ead or deceive the consumer, su ch as by failure to disclose other relevant information, is actionabl e under’” the UCL. [Citations.] The determination as to whether a business practic e is deceptive is based on the likely effect such practice would have on a reasonable consumer. [Citation.]’ [Citation.]” ( Klein v. Chevron U.S.A., Inc.
, supra , 202 Cal.App.4th at pp. 1380-1381; see Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 907 [“ [a] ‘fraudulent’ ac tivity includes any act or practice likely to deceive the pub lic, even if no one is actually deceived”]; Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 772 [“‘[u]nlike common law fraud, a Business and Profe ssions Code section 17200 vi olation can be shown even without allegations of actual deception, reasonable reliance and damage”].) The allegations of the first amended co mplaint satisfied the “fraudulent” prong because Berkeley Hall’s alleged conduct is likely to deceive me mbers of the private education consuming public . Van Halen and Rogers alleged that the school’s promotional materials, website , and advertisements directed to families “outside the Christian Science community” mi srepresent, or at least down play in a deceptive way, the school’s approach to and practic e of providing medical care fo r its students, in a way that is likely to deceive the public. They further allege that Be rkeley Hall engaged in this deceptive promotion and adver tising in order to help co nvince non-Christian Science
families that the school is a “secular institu tion” with traditional approaches to student medical care, which, according to Van Halen and Rogers, was untrue. Although Berkeley Hall argues that it truthfully advertises and discloses its history, nature, policies, and procedures, whether in fact a practice is subject to the “fraudulent” prong of the UCL generally is also a question of fact th at cannot be decided on demurrer. (See Klein v. Chevron U.S.A., Inc.
, supra , 202 Cal.App.4th at p. 1380.) Because we cannot “‘“say as a matter of law that contrary to the complaint’s allegations , members of the public were not likely to be deceived or misled by”’ ” Berkeley Hall’s alleged conduct ( ibid. ), Van Halen36 and Rogers stated a UCL claim unde r the fraudulent prong. (See Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 226- 227 [“[t]he question whether consumers are likely to be deceived is a question of fact that can be decide d on a demurrer only if the facts alleged in the complaint, and facts judicially notic ed, compel the conclusi on as a matter of law that consumers are not likely to be deceived ”]; Stern, Cal. Practice Guide: Business and Professions Code Section 17200 Practice, supra , ¶ 7:167 [“[d]emurrers will rarely defeat an action brought under § 17200,” and the “complaint will usua lly be construed to uphold the action whenever possible”].) Berkeley Hall argues that Van Halen a nd Rogers’ “own alle gations demonstrate they already had knowledge of Berkeley Ha ll’s policy when they decided to re-enroll Stella” because they allege th at in the fall of 2009 Berkel ey Hall told them its staff
“would never administer a dos e of adrenaline to Stella even acknowledging that it might be necessary to save her life in response to a severe alle rgic reaction.” This argument misrepresents the chronology alleged in the complaint. Van Hale n and Rogers alleged that, after and in response to Berkeley Hall’s statement to them in the fall of 2009 that the
school would not treat Stella in an emer gency, the parents “demanded and received a meeting” with the headmaster, who told them (falsely, accord ing to the allegations) that the school would implement changes to ban nut products and train teachers how to use the Epi-Pen. It was in reliance on thes e misrepresentations, and Berkeley Hall’s “repeated assurances that the school had banned nut products,” that they decided to enroll Stella for the next year and pay the $13,000 tuition.

I. Stella and the Individual Defendants Van Halen and Rogers brought this action in dividually and on behalf of Stella as her guardians ad litem. Berkeley Hall correctly argues that Stella is not a proper plaintiff in this action because there are no allegations that she suffered any injuries. There are no allegations that Stella ever had an allergic reaction to nut products at Berkeley Hall or that she suffered any emotional distress. Ther efore, the trial court properly dismissed her
claims.37 In addition, the first and second amende d complaints name as defendants Winifred
Needham and Natalie Miller as “employees of Berkeley Ha ll who are individually liable for their torts committed agains t the plaintiffs as set fort h below.” There is nothing, however, “set forth below” about Needham, or any allegation describing who she is or
what she did or failed to do. Van Hale n and Rogers do identif y Miller as “a top administrator of the school” from whom they “demanded and received a meeting.” They allege that she attended the November 2009 me eting with Barrows, but they do not allege what it is personally she said, did, or failed to do that would give rise to liability on her part. The trial court properly sustained th e demurrers of Needham and Miller without
leave to amend and dismis sed the case against them.

DISPOSITION

The order of dismissal is reversed. The trial court is directed to vacate its March 29, 2013 order sustaining Berkeley Ha ll’s demurrer to the third through seventh causes of action of the first amended complain t without leave to am end, and to enter a new order sustaining the demurrer to the third cause of action for intentional infliction of emotional distress with leave to amend, sust aining the demurrer to the fourth cause of action for negligent misrepresentation without leave to amend, sustai ning the demurrer to the fifth cause of action for negligent inflicti on of emotional distress with leave to amend, sustaining the demurrer to the sixth cause of action for negligence w ith leave to amend, and overruling the demurrer to the seventh cause of action for unfair competition. The
trial court is also directed to vacate its Ju ly 19, 2013 order sust aining Berkeley Hall’s
demurrer to the second cause of action of the second amended complaint for fraud without leave to amend, and to enter a new or der overruling the demurrer to that cause of action. Finally, the court is directed to en ter an order sustaining the demurrers without leave to amend to all claims by Van Halen and Rogers brought on behalf of Stella as her guardians ad litem, and sustaining the demu rrers without leave to amend by defendants38 Needham and Miller to all claims against th em. Van Halen and Ro gers are to recover their costs on appeal. Berkeley Hall’s request for judicial notice is denied.

SEGAL, J. *

We concur:

WOODS, Acting P. J.

ZELON, J.

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