Judge: Armen Tamzarian, Case: 23STCV14304, Date: 2024-06-28 Tentative Ruling

Case Number: 23STCV14304    Hearing Date: June 28, 2024    Dept: 52

Defendant Los Angeles Unified School District’s Demurrer to First Amended Complaint

Defendant Los Angeles Unified School District (LAUSD) demurs to all causes of action alleged against it by plaintiff Jane M.R. Doe’s first amended complaint.

Summary of Allegations

            Plaintiff alleges she was abused by David Lee Scott, a counselor at her high school, CATCH Prep Charter High School.  (FAC, ¶¶ 21-25.)  She alleges Scott previously worked for LAUSD at Crenshaw Senior High School.  She alleges Scott “had inappropriate relationships with multiple female students, including inappropriate touching and sexual misconduct with at least one student” at that school.  (FAC, ¶ 14.)  LAUSD allegedly “gave Scott multiple warnings related to him having inappropriate relationships with students” (¶ 15) and soon “terminated” him “because he failed to maintain appropriate relationships with students and staff, and because he failed to fulfill his responsibilities as a counselor” (¶ 16).  LAUSD allegedly “allowed Scott to quietly resign from his position at Crenshaw Senior High School in exchange for LAUSD facilitating his move to another school and/or school district.”  (¶ 17.)

            Plaintiff further alleges Scott quickly applied to work at CATCH, which “required Scott to submit a background [check] to LAUSD, and … required Scott to work and/or train with LAUSD.”  (¶ 18.)  “CATCH contacted LAUSD to verify Scott’s fitness for employment and LAUSD failed to notify CATCH that Scott was unfit to work with children.”  (¶ 19.)  Plaintiff alleges, “[R]elying on LAUSD’s recommendation, CATCH employed Scott in August of 2005,” and LAUSD thereby “rid itself of Scott.”  (¶ 20.)

Education Code § 47604(d)

LAUSD argues it cannot be liable to plaintiff under Education Code section 47604(d), which provides: “A chartering authority that grants a charter to a charter school to be operated as or by a nonprofit public benefit corporation is not liable for the debts or obligations of the charter school or for claims arising from the performance of acts, errors, or omissions by the charter school if the chartering authority has complied with all oversight responsibilities required by law, including, but not limited to, those required by Section 47604.32 and subdivision (m) of Section 47605.” 

The first amended complaint, however, does not only allege LAUSD is vicariously liable “for claims arising from the performance of acts, errors, or omissions by the charter school.”  Several causes of action against LAUSD arise from its own alleged conduct with respect to Scott.  This is equivalent to an employer’s liability for negligent hiring or retention, which “is a theory of direct liability—not vicarious liability.  In a negligent hiring/retention cause of action, the neglect alleged is not that of the employee.  The neglect pleaded is that of the employer itself.”  (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1163.)  For some causes of action, plaintiff alleges LAUSD itself was negligent, not that it is liable for CATCH’s negligence.

2nd Cause of Action: Negligent Hiring, Supervision, and Retention of an Unfit Employee

Plaintiff does not allege sufficient facts for this cause of action.  Negligent hiring, retention, and supervision applies “where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.”  (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339–1340.)  “[A]n employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or other harm inflicted by a former employee on the plaintiff even” if the employee “initially met the plaintiff while employed by the employer.”  (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1141.) 

Plaintiff alleges LAUSD “terminated” Scott (FAC, ¶ 16) or “allowed Scott to quietly resign” (¶ 17) before he went to work at CATCH (¶¶ 18-20), where he assaulted plaintiff (¶¶ 21-25).  LAUSD cannot be liable for negligently supervising or retaining an employee whom it was not supervising and did not retain.  Though LAUSD initially hired Scott, that could only pose a foreseeable risk to LAUSD students during his employment at LAUSD.  Plaintiff does not even allege she met Scott while he worked for LAUSD.  She provides no authority supporting liability for negligent hiring, supervision, or retention of a former employee who harmed the plaintiff after leaving the defendant’s employment.

3rd Cause of Action: Breach of Mandatory Duty

            Plaintiff does not allege sufficient facts for this cause of action.  Government Code section 815.6 provides, “Where 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.”  The elements of this claim are: “(1) a mandatory duty is imposed by enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.”  (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.) 

            The first amended complaint does not allege facts constituting a breach of any mandatory duty as required for the third element.  Plaintiff concedes the relevant statutes and regulations (FAC, ¶ 44) apply to current employees and current pupils.  (Opp., p. 8.)  Plaintiff argues that those duties were “ ‘designed to protect against the kind of injury allegedly suffered.’ ”  (Ibid.)  That plaintiff suffered the relevant kind of injury is not enough.  Failing to supervise a non-employee or a non-student does not breach any of the mandatory duties alleged. 

By analogy, the government has a duty to protect people from dangerous conditions on public property.  (Gov. Code, § 835.)  That duty is designed to protect people against the kind of injuries (i.e., physical harm) that people can suffer because of dangerous conditions anywhere.  But it only applies on public property.  Someone who suffers the same kind of injury on private property has no claim against the government for breach of mandatory duty. 

4th Cause of Action: Failure to Report Suspected Child Abuse

Plaintiff does not allege sufficient facts for this cause of action.  The Child Abuse and Neglect Reporting Act (CANRA) “requires a mandated reporter to make a report to a law enforcement agency or a county welfare department ‘whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.’ ”  (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 186.) 

The California Supreme Court, however, has stated, “Reasonably construed, [CANRA] was intended to protect only those children in the custodial care of the person charged with reporting the abuse, and not all children who may at some future time be abused by the same offender.”  (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1087 (Randi W.).)  “To adopt plaintiff’s contrary argument would impose a broader reporting obligation than the Legislature intended.  Under plaintiff’s interpretation of the Reporting Act, a child care custodian that fails to report suspected child abuse affecting one child in its care or custody could be held liable, perhaps years later, to any other children abused by the same person, whether or not those children were within its custodial protection.  Neither legislative intent nor public policy would support such a broad extension of liability.”  (Ibid.)

The Court of Appeal later found an amendment to CANRA did not change that conclusion.  “Necessarily, the child intended to be protected is the child about whom the reporting party is in a position to observe or to know anything regarding known or suspected abuse or neglect.  For this reason, Randi W. was not intended to extend an open-ended liability to all future children who might conceivably be harmed, even years later, for the failure to report suspected injury to one child within the knowledge and observation of the reporter.”  (P.S. v. San Bernardino City Unified School Dist. (2009) 174 Cal.App.4th 953, 965.)

The first amended complaint alleges LAUSD employed Scott at Crenshaw Senior High School, where he committed sexual misconduct with at least one student.  (FAC, ¶ 14.)  Plaintiff, however, attended CATCH, a “public charter school[]” (¶ 2), where Scott worked after leaving LAUSD (¶ 20).  Though she makes a conclusory allegation that “LAUSD oversaw both the educational and operational components of CATCH” (¶ 4), she does not allege any LAUSD employee, within the scope of his or her employment, suspected she was a victim of sexual abuse.  As in Randi W., “plaintiff fails to allege that she was ever in [LAUSD’s] custodial care, or even that [LAUSD was] aware that [the alleged abuser] had molested her.”  (14 Cal.4th at p. 1087.)

5th Cause of Action: Negligent Supervision of a Minor

            Plaintiff does not allege sufficient facts for this cause of action.  “School districts are subject to well-established statutory duties mandating adequate supervision for the protection of the students. These affirmative duties arise from the compulsory nature of school attendance, the expectation and reliance of parents and students on schools for safe buildings and grounds, and the importance to society of the learning activity that takes place in schools.”  (M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 524–525.)

            This cause of action fails because plaintiff does not allege facts establishing LAUSD had any duty to supervise her.  LAUSD had no such duty because plaintiff (a) does not allege any injury on LAUSD property or during an LAUSD function and (b) does not allege she was an LAUSD student.  “[S]chool districts are not responsible for the safety of students outside school property absent a specific undertaking by the school district and direct supervision by a district employee.”  (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1357.)  Generally, neither a “school district nor any of its employees owe[] a duty to … a nonstudent who was not on school property.”  (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 930.)  

Even if plaintiff had attended an LAUSD school, a district owes students a duty of care “while [they are] on campus during ‘school-related or encouraged functions.’ ”  (Achay v. Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528, 536.)  It generally does not owe a duty of care to students who are not “on school grounds.”  (Id. at p. 537.)  Plaintiff alleges she was assaulted at CATCH (FAC, ¶ 23), not on an LAUSD campus or during a district function.  And even if the assault occurred on LAUSD’s property, the duty to supervise is limited to someone who “ ‘was a student at the school, or was on school grounds in connection with normal school attendance or in connection with a school function.’ ”  (Id. at p. 538; accord Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 633 [“the duty we recognize here is owed not to the public at large but is limited to enrolled students who are at foreseeable risk of being harmed in a violent attack while participating in curricular activities at the school”].)

Plaintiff alleges she was sexually assaulted while attending CATCH, a charter school.  “Charter schools are ‘public schools funded with public money but run by private individuals or entities rather than traditional public school districts.’ ”  (Anderson Union High School Dist. v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262, 267–268.)  “ ‘Once approved, charter schools are operated independently, but are subject to public oversight.’ ”  (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 266.)  Moreover, as discussed above, the chartering authority (i.e., LAUSD) cannot be liable “for claims arising from the performance of acts, errors, or omissions by the charter school if the chartering authority has complied with all oversight responsibilities required by law.”  (Ed. Code, § 47604, subd. (d).)  Plaintiff provides no authority finding a public school district liable for failing to supervise a student at a charter school. 

6th Cause of Action: Negligent Failure to Warn, Train, or Educate

            Plaintiff does not allege sufficient facts for this cause of action.  The first amended complaint alleges, “Defendants had a duty to warn, train, and educate the students in their custody, care, and control, like Plaintiff, on known and knowable dangers posed by its employees and/or agents.  Defendants also had a duty to warn, train, and educate its employees and/or agents on its sexual misconduct policy and on inappropriate boundary crossing with minor students.  [¶]  Defendants breached their duty to Plaintiff by failing to warn her of known and knowable dangers posed by their employees and/or agents … ; by failing to inform and educate Plaintiff on their sexual misconduct policies and methods to identify, report, and respond to inappropriate sexual misconduct by faculty and staff.”  (FAC, ¶¶ 74-75.)

            Plaintiff does not allege facts establishing LAUSD had any such duty.  This theory of liability arises from Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 409–410, where the Court of Appeal imposed “a duty of care on the Scouts to have taken reasonable protective measures to protect [plaintiff] from the risk of sexual abuse by adult volunteers involved in scouting programs, such as warning, training or educating him (either directly or through his parent or adult volunteers) about how to avoid such a risk.”  There, the plaintiff was abused by the scoutmaster “during officially sanctioned scouting events, such as overnight camping trips.”  (Id. at p. 385.)  The plaintiff was a member of the Boy Scouts.  Here, plaintiff was not a student of LAUSD.  She attended a charter school.  LAUSD had no duty to warn, train, or educate a child who was not a student in its district. 

Plaintiff’s reliance on C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 is misplaced.  There, the California Supreme Court stated, “[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.”  (Id. at p. 870.)  That duty exists because “a school district and its employees have a special relationship with the district’s pupils.”  (Id. at p. 869.)  Plaintiff provides no authority that a district has such a relationship with pupils at charter schools authorized by the district.

7th Cause of Action: Negligence

            Plaintiff does not allege sufficient facts for this cause of action for the same reasons as her other negligence claims.  The seventh cause of action primarily restates theories of negligence alleged in other claims.  The allegation that “[d]efendants failed to take any preventative action to control, curb, and/or prevent” Scott’s sexual abuse (FAC, ¶ 84) duplicates the second cause of action for negligent hiring, supervision, and retention.  The allegation that defendants “failed to warn Plaintiff or her parents” (ibid.) duplicates the sixth cause of action for failure to warn, train, or educate. 

Plaintiff also alleges “LAUSD failed to warn CATCH of Scott’s wrongful conduct, and his being unfit to work with minors.”  (FAC, ¶ 86.)  A former employer’s liability in this context requires either affirmative misrepresentations or “misleading half-truths” to “invoke an exception to the general rule excluding liability for mere nondisclosure or other failure to act.”  (Randi W., supra, 14 Cal.4th at p. 1084.)  That “LAUSD failed to warn CATCH” is nondisclosure or failure to act.   

9th Cause of Action: Sexual Harassment

            Plaintiff does not allege sufficient facts for this cause of action against LAUSD.  “[A] school district can be held liable for damages when a teacher sexually harasses a student.  [Citation.]  However, the district is not liable ‘unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the [employee’s] misconduct.’ ”  (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 33; accord Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 601.) 

            This cause of action relies on various conclusory allegations that do not distinguish between CATCH and LAUSD.  (FAC, ¶¶ 97-103.)  These allegations do not constitute a cause of action for sexual harassment against LAUSD.

Plaintiff’s opposition argues LAUSD had the “power to prevent the abuse of Plaintiff … by disclosing Scott’s sexual misconduct both to the charter school and to law enforcement.”  (Opp., pp. 12-13.)  Those would not be measures taken on the district’s behalf to correct sexual harassment.  Such measures include, for example, keeping the student away from her abuser and punishing the abuser.  (Oden v. Northern Marianas College (9th Cir. 2006) 440 F.3d 1085, 1089.)  Disclosing Scott’s sexual misconduct to third parties is not such a measure.  Plaintiff’s argument conflates this claim with the separate theory of liability alleged in the 10th and 11th causes of action.  Plaintiff provides no authority holding a public school district liable for sexual harassment that occurred at a charter school. 

10th & 11th Causes of Action: Intentional and Negligent Misrepresentation

            Plaintiff alleges sufficient facts for these causes of action.  LAUSD argues plaintiff did not allege it made any misrepresentation to her or that she relied on any misrepresentation.  Those are typically elements of fraud, but the California Supreme Court held they do not apply in circumstances equivalent to plaintiff’s allegations.  (Randi W., supra, 14 Cal.4th at p. 1085.)  In Randi W., as in this case, the plaintiff sued the school district that previously employed her alleged abuser for falsely recommending him to the employer where he abused her.  (Id. at pp. 1071-1073.)  The Court held, “[P]laintiff need only allege that her injury resulted from action that the recipient of defendants’ misrepresentations took in reliance on them.  In a case involving false or fraudulent letters of recommendation sent to prospective employers regarding a potentially dangerous employee, it would be unusual for the person ultimately injured by the employee actually to ‘rely’ on such letters, much less even be aware of them.”  (Ibid.) 

            LAUSD contends Randi W. does not apply because the California Supreme Court “limited potential liability for letters of recommendation to actual misrepresentations, as distinct from nondisclosures, and to circumstances in which the misrepresentation ‘present[ed] a substantial, foreseeable risk of physical injury to the third persons.’ ”  (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 877.) 

The first amended complaint adequately alleges actual misrepresentations or “misleading half-truths.”  (Randi W., supra, 14 Cal.4th at p. 1084.)  It alleges LAUSD gave Scott “positive reviews and recommendations,” which “either directly or implicitly indicated that Scott was fit to interact appropriately and safely with students.”  (FAC, ¶ 114.)  That amounts to a misleading half-truth because it occurred after LAUSD received a complaint by “[a]t least one student and her parents” that Scott “had behaved inappropriately with her” (¶ 14), gave him “multiple warnings” about “having inappropriate relationships with students” (¶ 15), and allowed him “to quietly resign” (¶ 17) instead of officially terminating him “because he failed to maintain appropriate relationships with students and staff, and because he failed to fulfill his responsibilities as a counselor” (¶ 16). 

LAUSD also argues plaintiff did not specifically allege the facts necessary for an entity to be liable for fraud.  When alleging fraud against an entity, the plaintiff generally “must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ ”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  But “the requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy.’ ”  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158; accord Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217 [“less particularity is required when the facts lie more in the knowledge of the opposite party”].)  Plaintiff alleges LAUSD made misrepresentations to CATCH, not to her.  LAUSD necessarily possesses far greater knowledge than her about these specifics.  Plaintiff alleges sufficient facts for LAUSD to identify the details. 

Unconstitutional Gift

LAUSD contends this action is barred because plaintiff’s claims all rely on AB 218, which amended Code of Civil Procedure section 340.1 and Government Code section 905 to revive formerly barred claims for childhood sexual abuse.  (Stats. 2019, ch. 861.)  LAUSD argues this statute violates the constitutional prohibition on gifts of public funds.  For the reasons stated in the order of today’s date in Jane C.R. Doe v. Los Angeles Unified School District, Case No. 22STCV13174, the court rejects this argument.

Disposition

            Defendant Los Angeles Unified School District’s demurrer to plaintiff’s 2nd through 7th and 9th causes of action is sustained with 20 days’ leave to amend.  Defendant’s demurrer to the 10th and 11th causes of action is overruled.