Judge Anne Hwang, Case Number: 22STCV31739, Date: 2023-08-04 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff C.M., a Minor, by and through his Guardian Ad Litem, Cynthia Montoya (Plaintiff), sued defendants Burbank Unified School District, Matt Hill, John Paramo, Paulette Koss, Stacy Cashman, and Oscar Macias (collectively, Defendants) for negligence, negligent hiring and training and supervision, and intentional infliction of emotional distress in connection with a series of bullying incidents Plaintiff suffered while attending Luther Burbank Middle School.

On June 30, 2023, Defendants filed a demurrer and motion to strike portions of the complaint. On June 19, 2023, Plaintiff filed an opposition to the demurrer. On July 27, 2023, Plaintiff filed an opposition to the motion to strike. On July 28, 2023, Defendants filed their respective replies.

Plaintiff filed his opposition to the motion to strike on July 27, 2023, when the deadline for such opposition was July 24, 2023, per the August 4, 2023 hearing date. (Code Civ. Proc., § 1005(b).) This is untimely. However, Defendants did not object or raise this issue in their reply. Accordingly, the Court exercises its discretion to still consider Plaintiff’s opposition to the motion to strike. (Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

Plaintiff’s opposition to the motion to strike also fails to include a table of authorities and table of contents. (Cal. Rules of Court, rule 3.1113(f).) The Court will still consider the opposition, but admonishes Plaintiff to comply with the California Rules of Court going forward.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the Court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) A demurrer may only challenge defects that appear on the face of the pleading or from matters outside the pleading that are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Code Civ. Proc. § 430.41(a).) The Declaration of Rami B. Noeil establishes that this requirement has been met. Contrary to Plaintiff’s argument, Defendants need not accept Plaintiff’s offer to dismiss only a portion of the complaint.

The Court rejects Plaintiff’s contention that the demurrer suffered from procedural defects in violation of Code of Civil Procedure section 430.60 and Rule 3.1320(a) of the California Rules of Court. The notice sufficiently complied with the requirements stated therein, and Plaintiff’s argument here provides no explanation for how the notice in the demurrer fails to comply with those requirements.

Demurrer – Third Cause of Action – Intentional Infliction of Emotional Distress

Plaintiff has indicated that he will be dismissing this cause of action in its entirety. (Opposition to Demurrer, 2:15-20; Tytell Decl., Ex. B (Proposed First Amended Complaint).) Accordingly, the Court sustains the demurrer as to this cause of action.

“’[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn.3 (citation omitted).) A complaint need not “identify by name or position the [school] District’s ‘employees, administrators and/or agents’ who allegedly failed to ‘properly hire, train, and supervise’ [the plaintiff].” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[B]ecause under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 (citation omitted).)

The Court rejects Defendants’ argument that the second cause of action for negligent supervision, training, hiring, and retention is uncertain within the meaning of Code of Civil Procedure section 430.10(f), at least as to the District and Defendant Macias. (Demurrer at pgs. 5-7.) Plaintiff is not required to specify at the pleading stage which of the District’s employees committed the negligent supervision, training, hiring, or retention for which the District is allegedly liable. The complaint alleges facts sufficient to state a cause of action, and the demurrer does not appear to be arguing otherwise. At a minimum, the complaint alleges acts or omissions by Principal Oscar Macias, school security personnel, teachers, and administrators, and alleges that the District had personnel whose responsibilities included supervising them. Therefore, the Court overrules the demurrer as to this cause of action as to the District and Principal Macias.

Defendants demur to the remaining two causes of action for negligence and negligent hiring as they pertain to defendants Matt Hill, John Paramo (Paramo), Paulette Koss (Koss), and Stacy Cashman (Cashman). Given that Plaintiff has indicated he will be dismissing defendant Matt Hill from this action, (Opposition to Demurrer, 2:15-20; Tytell Decl., Ex. B (Proposed First Amended Complaint)), the Court sustains the demurrer as to Defendant Hill.

As for the remaining two causes of action for negligence and negligent hiring, the Court agrees with Defendant that the complaint fails to state sufficient facts to support causes of action against Koss. The complaint alleges very little as it pertains to Koss, only alleging Koss’ identity in paragraph 11 and then an allegation in paragraph 62 that the Defendant owed Plaintiff a duty to not hire or retain Koss and other employees. (Compl., ¶¶ 8, 62.) Paragraph 62 does not specify which employee Koss had a duty to not hire or retain, and to the extent the allegation is that Koss is liable for having negligently hired or supervised Koss, the complaint does not state a cause of action. As there are no allegations regarding acts or omissions by Koss specifically, or any of the other elements of the first two causes of action, the Court sustains the demurrer as to Defendant Koss.[1]

The Court agrees with Defendants that the allegations as to defendants Paramo and Cashman suffer the same deficiencies as with regard to defendant Koss, but disagrees that the allegations as to defendants Paramo and Cashman are insufficient as a matter of law specifically as alleged in paragraph 36. Paragraph 36 alleges that after the February 22, 2022 incident, Paramo failed to offer any solutions after having been copied on an email from defendant Oscar Macias (Macias), and that Cashman also failed to offer any solutions regarding Plaintiff’s safety at school. (Compl., ¶ 36.) Liberally construed, the complaint alleges that Cashman and Paramo failed to offer solutions or measures to ensure C.M.’s safety at school, and as a result C.M. continued to suffer injury, with regard to his emotional stability and negative comments by his peers at school. (Compl. ¶¶ 37, 58, 59, 71, 77.) Defendants cite no legal authority that those particular allegations, considering all of the allegations of the complaint, are insufficient to state a cause of action as to these defendants. Therefore, the Court will overrule the demurrer as to Paramo and Cashman.

The Court DENIES Defendants’ request for judicial notice since the Court does not rely on the information contained therein to reach its decision here.[2]

Motion to Strike – References to Claims Allegedly Barred by Government Tort Claims Act

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

“[I]n some cases a portion of a cause of action will be substantively defective on the face of the complaint. Although a defendant may not demur to that portion, in such cases, the defendant should not have to suffer discovery and navigate the often dense thicket of proceedings in summary adjudication. … [W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike. …We emphasize that such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83 (citations omitted).) Because at the demurrer stage the Court must assume the truth of the allegations in the complaint, a demurrer (or a motion to strike) should be sustained only if the Court can conclude that the limitations period necessarily bars the claim, without any development of facts. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232, 1240 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar … to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”] [internal citations and quotation marks omitted].).)

“As part of the California Tort Claims Act, Government Code section 900 et seq. establishes certain conditions precedent to the filing of a lawsuit against a public entity. …[A] plaintiff must timely file a claim for money or damages with the public entity. The failure to do so bars the plaintiff from bringing suit against that entity.” (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237.) “California courts consistently held that failure to allege compliance with these claim presentation requirements subjected a complaint to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (Id. at 1242.) “[A] plaintiff need not allege strict compliance with the statutory claim presentation requirement.”) (Id. at 1245.)

Defendants move to strike references to claims allegedly barred by the Government Tort Claims Act. Plaintiff advances a number of arguments that Plaintiff has satisfied all of the requirements of the Tort Claims Act and therefore the acts occurring between 2019 and 2021 are properly pled. The complaint alleges that “Plaintiffs filed a timely claim in accordance with the California Tort Claims Act on 5/26/2022. Said claim was rejected and a right to sue letter was issued on 6/10/2022. The claim is fully timely as to all allegations herein pursuant. This Complaint is thus filed in a timely manner affording each governmental entity sufficient notice of the pendency of this matter.” (Compl. ¶ 16.)

The Court cannot conclude as a matter of law that the limitations period in the Government Tort Claims Act bars incidents occurring between 2019 and 2021, without further development of the facts. For example, Defendants claim that the continuing violation doctrine does not apply because “the Complaint refers to four separate incidents of harassment perpetrated by different groups of students over a span of four years for which Plaintiff claims District staff did not properly address.” (Reply at pg. 7.) However, the Complaint alleges, among other things, Defendants’ continuous failure to act after having been apprised of the incidents. (See, e.g., Compl. ¶ 51, 64.) Although Defendant argues that the “Opposition does not even clarify how the alleged bullying incidents or staff responses to those incidents are connected in a manner that would justify their classification as a pattern,” the Court cannot find as a matter of law that there are no facts that could establish a continuing violation. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198 (“Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.”)[3]

Accordingly, the Court denies Defendants’ motion to strike references to claims allegedly barred by the Government Tort Claims Act.

Plaintiff concedes in the opposition that the allegations pertaining to Education Code sections 234.1 and 273(a) and Civil Code sections 43 and 1708 were improperly alleged, and has offered to amend those allegations with the proposed First Amended Complaint. (Opposition to Motion to Strike, 11:20-13:21; Tyett Decl., Ex. B.)

As to defendants Paramo, Cashman, and Macias, the Court agrees that Plaintiff has not established that Education Code section 44807 applies to them, and as to defendants Paramo and Cashman, Plaintiff has not established that California Code of Regulations Title 5, section 5552 applies to them.[4] (See Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 939 (“By its terms, Education Code section 44807 requires only ‘teacher[s]’ to hold pupils to a strict account for their conduct; it does not purport to impose a mandatory duty more broadly on any public entity.”)[5] Accordingly, the Court grants the motion to strike.

The Court SUSTAINS the demurrer as to the third cause of action in its entirety and as to defendants Matt Hill and Paulette Koss, with leave to amend. The Court OVERRULES the demurrer as to the second cause of action as to the remaining defendants. The Court OVERRULES the demurrer as to defendants John Paramo and Stacy Cashman. Plaintiff must file an amended pleading within 20 days of the Court’s order.

The Court DENIES IN PART AND GRANTS IN PART the motion to strike with leave to amend.

Defendants to provide notice of the Court’s order and file a proof of service of such.

[1] In opposition, Plaintiff cites to cases addressing the duty of the district. (See Opposition to Demurrer at pgs.6-7.) In contrast, the demurrer attacks the complaint’s allegations as to the individuals sued in their individual capacities. The Court overrules the demurrer as to the cause of action against the district, for the reasons discussed above. The Court agrees that as to the district, the complaint need not specify at the pleading stage which employee committed the negligent act or omission. However, when the complaint alleges acts or omissions by specific employees, it must state some facts regarding those acts or omissions. (Cf. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2 (“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.”).)

[2] The Court also notes that Defendants made this request with their reply papers, and generally new evidence is not permitted on reply unless it is responsive to issues raised in an opposing party’s opposition and does not otherwise raise new arguments. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

[3] The Court does not reach Plaintiff’s other arguments because they do not impact the Court’s denial of the motion to strike.

[4] The Court has sustained the demurrer regarding defendants Hill and Koss as discussed above, and therefore the motion to strike allegations pertaining to them is moot.

[5] Plaintiff cites to Lucas v. Fresno Unified School District (1993) 14 Cal.App.4th 866, in support of the argument that Education Code section 44807 and California Code of Regulations section 5552 impose a duty on school authorities. However, that case involved a school district, not individual employees sued in their individual capacity. Plaintiff cites to no authority in support of their position.

DEPARTMENT	32
HEARING DATE	August 4, 2023
CASE NUMBER	22STCV31739
MOTIONS	(1) Demurrer to Plaintiff’s Complaint; (2) Motion to Strike Portions of Plaintiff’s Complaint
MOVING PARTY	Defendants Burbank Unified School District, Matt Hill, John Paramo, Paulette Koss, Stacy Cashman, and Oscar Macias
OPPOSING PARTY	Plaintiff C.M.