Judge Andrew E. Cooper, Case Number: 22CHCV01334, Date: 2023-09-11 Tentative Ruling

Judge: Andrew E. Cooper, Case: 22CHCV01334, Date: 2023-09-11 Tentative Ruling

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Case Number: 22CHCV01334 Hearing Date: March 7, 2024 Dept: F51

Dept. F-51¿¿

Date: 3/7/24

Case #22CHCV01334

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MARCH 6, 2024

DEMURRER

Los Angeles Superior Court Case # 22CHCV01334

Demurrer Filed: 11/9/23

MOVING PARTY: Defendant Los Angeles Unified School District (“Defendant”)

RESPONDING PARTY: Plaintiff Kathrin Strain (“Plaintiff”)

NOTICE: OK¿

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire third amended complaint (“TAC”).

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend.

REQUEST FOR JUDICIAL NOTICE: Defendant’s request for judicial notice is granted as to Exhibit A and denied as to Exhibit B. Plaintiff’s request for judicial notice is denied.

BACKGROUND

On 11/9/23, Defendant filed the instant demurrer. On 2/23/24, Plaintiff filed her opposition. On 2/29/24, Defendant filed its reply.

ANALYSIS

Defendant demurs to each of Plaintiff’s causes of action on the basis that Plaintiff fails to allege facts sufficient to constitute any of those causes of action.

A. Meet and Confer

Defendant’s counsel declares that on 10/16/23, he sent Plaintiff’s counsel a meet and confer letter regarding the issues raised in the instant demurrer, but received no response. (Decl. of Jeffrey P. Wade, Jr., ¶¶ 4–6.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B. Knowledge or Notice Requirement

Plaintiff brings this action pursuant to Code of Civil Procedure section 340.1, which sets forth the procedural requirements that must be followed when a plaintiff seeks to pursue a claim for childhood sexual assault. As this Court previously noted in its ruling sustaining Defendant’s prior demurrer against Plaintiff’s SAC, an action brought under Section 340.1 must allege that “the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.” (Code Civ. Proc. § 340.1, subd. (c) [emphasis added].)

The knowledge or notice requirement “requires the victim to establish that the nonperpetrator defendant had actual knowledge, constructive knowledge (as measured by the reason to know standard), or was otherwise on notice that the perpetrator had engaged in past unlawful sexual conduct with a minor and, possessed of this knowledge or notice, failed to take reasonable preventative steps or implement reasonable safeguards to avoid acts of future unlawful sexual conduct by the perpetrator.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549.)

This Court previously ruled that Plaintiff “failed to allege facts sufficient to support an action brought pursuant to Code of Civil Procedure section 340.1” because she did not sufficiently allege that Defendant had actual or constructive notice of the perpetrator’s conduct in her SAC. (9/11/23 Min. Order, p. 4.) In her TAC, Plaintiff added an allegation that “Defendants were on notice of Perpetrator’s unlawful sexual conduct as there were rumors at the school about Perpetrator (and another teacher) engaging in inappropriate physical conduct with students and Defendants failing to investigate or stop the behavior.” (TAC ¶ 24.)

Here, Defendant argues that Plaintiff’s amendment is insufficient because “rumors are not facts. What is more, there are no allegations that any adults at the school heard these rumors. Nor are there any allegations as to when these alleged rumors were circulated and by whom.” (Dem. 8:17–22.) Plaintiff argues in opposition that she has “sufficiently plead facts that if true are demonstrative of notice to the district.” (Pl.’s Opp. 10:25–26.) “Information regarding the time at which the abuse was reported to law enforcement, whether the school district was notified of the report, and about the rumors regarding the Perpetrator can be addressed during the discovery process.” (Id. at 10:28–11:2.)

Defendant argues in reply that Plaintiff “was required to plead specific facts regarding employee knowledge or what the employees should have known of alleged perpetrator’s past incidents with minors that would trigger the duty on LAUSD's part to take preventive measure to avoid acts of unlawful sexual conduct by the alleged perpetrator in the future.” (Def.’s Reply 7:12–15.)

Here, as in Doe, Plaintiff alleges that Defendant failed to adequately supervise the perpetrator, that the perpetrator’s sexual abuse was ultimately reported to law enforcement, and that there were general rumors about the perpetrator’s sexual misconduct. (TAC ¶¶ 17–19, 23–24.) The Doe court held that despite allegations similar to these, the victim plaintiffs’

“complaints fail to allege that defendants had knowledge of [the perpetrator’s] past unlawful sexual conduct with minors, which is the prerequisite for imposing upon these defendants liability for his subsequent sexual abuse of plaintiffs. That defendants had knowledge or notice of misconduct by [the perpetrator] that created a risk of sexual exploitation is not enough under the express terms of the statute. In the absence of sufficient allegations of knowledge or notice on the part of these defendants, their demurrers were correctly sustained and the actions against them properly dismissed.” (42 Cal.4th at 552.)

Here, the Court finds that the added factual allegations, even if broadly construed, similarly fail to allege that Defendant had knowledge of the perpetrator’s past acts of unlawful sexual conduct with minors. Based on the foregoing, the Court finds that Plaintiff has again failed to allege facts sufficient to support an action brought pursuant to Code of Civil Procedure section 340.1. Accordingly, the demurrer is sustained on this basis.

C. Constitutionality of AB 218

Defendant further argues that “Plaintiff’s suit is barred by her failure to timely present a government claim, … because AB 218, which retroactively eliminated the requirement in 2020, is an unconstitutional gift of public funds.” (Dem. 9:4–6.) Defendant elaborates that it “is attacking the Legislature’s lifting of the claims-presentation requirement for incidents occurring before 2009, because the Legislature, through the passage of AB 218, retroactively stripped statutory government immunity from public entities, such as LAUSD, and therefore it violates Article XVI, section 6 of the California Constitution, which prohibits ‘gift of public funds.’” (Id. at 6:10–14.)

The Court notes the parties’ thorough arguments pertaining to this issue; however, the constitutionality of AB 218 is not properly before this Court at the demurrer stage. A demurrer tests the factual sufficiency of a pleading on its face. Here, the Court is satisfied that Code of Civil Procedure section 340.1 does not currently mandate a plaintiff to present a government claim as a prerequisite to bringing the instant action. Accordingly, the Court declines to address the parties’ arguments concerning the constitutionality of AB 218 as they are not relevant to the Court’s analysis of the factual sufficiency of Plaintiff’s TAC.

D. Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the second demurrer brought against Plaintiff’s operative complaint. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the TAC to cure the defects set forth above.

CONCLUSION¿

The demurrer is sustained with 30 days leave to amend.