Judge: Anne Hwang, Case: 23STCV30468, Date: 2024-09-26 Tentative Ruling

Case Number: 23STCV30468    Hearing Date: September 26, 2024    Dept: 32

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.  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. 

TENTATIVE RULING

MOTION

On December 13, 2023, Plaintiff Nehemiah Johnson (“Plaintiff”), by and through her guardian ad litem Jessica Jasmine Johnson, filed a complaint against Defendants County of Los Angeles and Does 1 to 50.

On January 2, 2024, Plaintiff filed the first amended complaint.

On July 18, 2024, Plaintiff filed the operative second amended complaint (“SAC”) asserting two causes of action for negligence per se pursuant to Government Code section 815.6 and vicarious liability for wrongful acts or omissions by public entity employees under Government Code section 815.2.

Defendant County of Los Angeles (“Defendant”) now demurs to the entire SAC, arguing (1) the cause of action under section 815.6 fails to state sufficient facts and is uncertain; and (2) the cause of action under section 815.2 fails to state sufficient facts and is barred by the Tort Claims Act. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            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).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, 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.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

The Declaration of Danielle C. Foster, Defendant’s counsel, states that the parties met and conferred via telephone on July 1, 2024 about the issues in this demurrer. (Foster Decl. ¶ 4.) Therefore, the meet and confer requirement is met.

JUDICIAL NOTICE

The Court grants Defendant’s request for judicial notice.

ANALYSIS

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original).

Moreover, to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Id.)

Section 815.6

Government Code section 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Therefore, “[t]hree requirements must be met before governmental entity liability may be imposed under Government Code section 815.6:(1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.)

Whether an enactment creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) “Courts have delineated what is necessary to establish a mandatory duty. ‘First and foremost, … the enactment at issue [must] be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (State Department of State Hospitals, et al. v. Superior Court (2015) 61 Cal.4th 339 [alterations and emphasis in original, quotations and citation omitted].) “It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Id. [emphasis in original, citation omitted].)

Additionally, the first prong of the statute is construed strictly, “finding a mandatory duty only if the enactment ‘affirmatively imposes the duty and provides implementing guidelines.’” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) The enactment’s language is the most important guide to determine legislative intent, but “there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.” (Haggis, supra, 22 Cal.4th at 499.) “In determining whether a mandatory duty actionable under section 815.6 had been imposed, the Legislature's use of mandatory language (while necessary) is not the dispositive criteria. Instead, the courts have focused on the particular action required by the statute, and have found the enactment created a mandatory duty under section 815.6 only where the statutorily commanded act did not lend itself to a normative or qualitative debate over whether it was adequately fulfilled.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 260.)

“[S]ection 815.6 requires the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.’ [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” (Haggis, supra, 22 Cal.4th at 499.)

“If the first two elements set out in Government Code section 815.6 are satisfied, ‘the next question is whether the breach … was the proximate cause of the plaintiff’s injury. … [P]roximate cause has two aspects. ‘One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.’ This is sometimes referred to as ‘but-for’ causation. The second aspect of proximate cause ‘focuses on public policy considerations.’”  (State Dept. of State Hosp., 61 Cal.4th at 352-353 [citations and quotations omitted, emphasis in original].)  The cases relied on by the lower court in State Department of State Hospitals “[a]ll held that proximate cause was not established when a governmental defendant’s failure to act allegedly caused injury, but the chain of causation included discretionary determinations for which no liability could be imposed.”  (Id. at p. 353.)  Similarly, in a negligence action, when “the pleaded facts of negligence and injury do not naturally give rise to an inference of causation[,] the plaintiff must plead specific facts affording an inference the one caused the others. That is, the plaintiff must allege facts, albeit as succinctly as possible, explaining how the conduct caused or contributed to the injury.” (State Dept. of State Hosp., 61 Cal.4th at 358 (Werdegar, J., concurring) [citing Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 78].)

Analysis

Here, the SAC generally alleges that on January 25, 2023, Plaintiff was eight months old and placed under the care of a foster parent assigned by Defendant and a Doe Social Worker. (SAC ¶ 11-12.) On this same day, Plaintiff was taken to a hospital to treat a diaper rash which was present for two days despite the foster parent stating that she was attempting to treat the rash. (Id.) Plaintiff’s mother, Jessica Jasmine Johnson, expressed concern to the doctors, law enforcement, and licensed social worker of possible neglect and/or abandonment by the assigned foster parent. Plaintiff also alleges she was involved in a motor vehicle accident on February 1, 2023 while under the care of the foster parent, causing bodily injuries and severe burns to Plaintiff’s face. (Id. ¶ 13.)

A. Mandatory Duty

Defendant argues that the Welfare and Institutions Code sections cited in the SAC do not impose mandatory duties against the County and/or there are insufficient facts to establish that the County breached any mandatory duty. In opposition, Plaintiff does not attempt to justify the inclusion of any of the Welfare and Institutions Code sections cited in the SAC. Rather, Plaintiff relies on the Department of Social Services Manual of Policies and Procedures, promulgated pursuant to Welfare and Institutions Code section 16501. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 134.)

The SAC and Plaintiff’s opposition generally refer to “[t]he DSS Manual Division 31 Regulations,” and specifically refer to sections 31-001.1, 31-101.1, 31-100.3 through 31-100.511. (FAC ¶¶ 21-23.) However, Plaintiff does not describe what mandatory duties within those sections are alleged to have been breached. For example, section 31-101 provides that the county “shall respond to all referrals for service which allege that a child is endangered by abuse, neglect, or exploitation.” The SAC does not describe how the County failed to respond to a referral for service, and how such failure was the proximate cause of the injury suffered. As discussed above, Plaintiff must describe the elements of Government Code section 815.6, including specifically the alleged mandatory duty and the breach of the mandatory duty as the proximate cause of the injury suffered, with sufficient particularity.

B. Vicarious Liability

Government Code section 815.2 states in relevant part, “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) “When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249.)

To bring an action for negligence, the plaintiff must show the existence of a duty of care, a breach of that duty, and the proximate or legal cause of the resulting injury. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.)

In the second cause of action, which is for vicarious liability “and/or Retention of Unfit Employee”, Plaintiff alleges Defendant’s employees and social workers were incompetent and unfit. (SAC ¶ 41.) Additionally, Plaintiff alleges “Defendants had the duty to hire, retain, manage, train, instruct, and supervise their employees, agents, social workers and caseworkers to ensure that they did not jeopardize the health and safety of Plaintiff.” (Id. ¶ 44.)

The Court finds that the SAC fails to describe sufficient facts about which County employee owed a duty to Plaintiff, how that employee breached that duty, and caused damages.  

The SAC also contains some allegations suggesting a cause of action for negligent hiring, retention, and supervision. Plaintiff provides no statutory basis for this cause of action and fails to show how it can be asserted. (See de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 256 [“[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.”].)

C. Leave to Amend

“Where the complaint is defective, [i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint…However, if the plaintiff's causes of action is [sic] not viable, leave to amend should not be granted if there is no basis for the court to conclude further amendment would cure the defects.” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 211, internal quotations omitted.) If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).

Although the Court is concerned that many of the defects identified in the SAC are not curable by amendment, the Court will permit Plaintiffs leave to amend given the liberal policy of amendment in this state.

CONCLUSION AND ORDER

Therefore, the Court SUSTAINS Defendant’s demurrer to Plaintiff’s second amended complaint with leave to amend. Any amended complaint must be filed and served within 30 days.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.