Judge: Ashfaq G. Chowdhury, Case: 24GDCV00159, Date: 2024-06-28 Tentative Ruling
Case Number: 24GDCV00159 Hearing Date: June 28, 2024 Dept: E
Case No: 24GDCV00159
Hearing Date: 06/28/2024 – 8:30am
Trial Date: UNSET
Case Name: A.D., a minor by and through his
guardian ad litem, MICHELLE KOOLAEE v. LA CAÑADA UNIFIED SCHOOL DISTRICT; CAROL
CRUZ; and DOES 1-10 inclusive
TENTATIVE RULING ON
DEMURRER
Moving Party: Defendant, La Canada Unified School District
Responding Party: Plaintiff,
A.D.
Moving Papers: Notice/Demurrer;
Proposed Order
Opposing Papers: Opposition
Reply Papers: Reply
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address: Ok
RELIEF REQUESTED
Defendant demurs to the Complaint for itself alone and no other defendant.
Defendant
demurs the seventh and eighth causes of action.
Defendant
demurs to the seventh cause of action on grounds that “Plaintiff’s Seventh
Cause of Action for Violation of Bane Act, as alleged against the District, is
subject to demurrer as it is uncertain and fails to state facts sufficient to
constitute a cause of action, in violation of California Code of Civil Procedure,
section 430.10 (e) and (f).” (Mot. p. 2.)
Defendant
demurs to the eighth cause of action on grounds that “Plaintiff’s Eighth Cause
of Action for Violation of Civil Rights – Ralph Act, as alleged against the
District, is subject to demurrer as it is uncertain and fails to state facts
sufficient to constitute a cause of action, in violation of California Code of
Civil Procedure, section 430.10 (e) and (f).” (Mot. p. 2.)
PROCEDURAL
Meet
and Confer
A party filing a
demurrer “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 shall meet and confer at least
five days before the date the responsive pleading is due. If the parties are
not able to meet and confer at least five days prior to the date the responsive
pleading is due, the demurring party shall be granted an automatic 30-day
extension of time within which to file a responsive pleading, by filing and
serving, on or before the date on which a demurrer would be due, a declaration
stating under penalty of perjury that a good faith attempt to meet and confer
was made and explaining the reasons why the parties could not meet and
confer.” (Code Civ. Proc., § 430.41,
subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to
overrule or sustain a demurrer. (Id., § 430.41(a)(4).)
Here,
Defendant’s counsel alleges that the meet and confer requirement was met. (See
Ovitz Decl. ¶ 4.)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water
and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
In a demurrer proceeding, the defects must be apparent on the face of
the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed. (Code Civ. Proc., §§ 430.30,
430.70.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147
Cal.App.4th at 747.)
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 … 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.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
Demurrer – Uncertainty
A special demurrer for uncertainty, CCP § 430.10(f), is disfavored and will
only be sustained where the pleading is so bad that defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her.
(Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612,
616.) Moreover, even if the pleading is somewhat vague, “ambiguities can
be clarified under modern discovery procedures.” (Ibid.)
ANALYSIS
On 1/26/2024, Plaintiff
filed the instant action. The Complaint alleges eleven causes of action.
The
seventh cause of action is for violations of the Bane Act, Civil Code § 52.1,
and the eighth cause of action is for violations of the Ralph Civil Rights Act,
Civil Code § 51.7.
In
part, Plaintiff alleges:
During the 2021-2022 school year, A.D. was a seven-year-old
second-grade student at Palm Crest Elementary School in the La Cañada Unified
School District. A.D. has autism and delays in communication development, so he
was unable to speak for himself when he was in second grade. His special
education teacher, Carol Cruz, physically abused A.D. repeatedly throughout the
school year. Ms. Cruz also denied A.D. food and did not let him take breaks as
punishment. Multiple district employees witnessed this abuse and acknowledged
that it was child abuse, but they failed to timely make a report to law
enforcement or child protective services, as required by California law, notify
A.D.’s parents, or take any action to protect A.D.
(Compl. ¶ 1.)
Defendant demurs to the seventh and eighth
causes of action.
Government Code
It is unclear if
Defendant is demurring to the seventh and eighth causes of action on grounds
that under Government Code § 815(a) 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.
To
the extent that Defendant is doing so, this argument is unavailing.
Plaintiff’s
Complaint alleges in the seventh and eighth causes of action that it brings
those causes of action pursuant to Government Code §§ 815.2(a) and 815.4.
Government
Code § 815.2(a) states, “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.” (Ibid.)
Government
Code § 815.4 states, “A public entity is liable for injury proximately caused
by a tortious act or omission of an independent contractor of the public entity
to the same extent that the public entity would be subject to such liability if
it were a private person. Nothing in this section subjects a public entity to
liability for the act or omission of an independent contractor if the public
entity would not have been liable for the injury had the act or omission been
that of an employee of the public entity.” (Ibid.)
Therefore,
whatever Defendant’s argument is with respect to Government Code § 815, it is
indecipherable and unavailing.
Vicarious Liability
Defendant argues that as
to both the seventh and eighth causes of action, the District cannot be
vicariously liable for the intentional torts of an employee.
Defendant
cites to Gov. Code § 815.2(a) which states, “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(a).)
Defendant
argues that the alleged conduct is outside the course and scope of employment
and therefore the District cannot be liable for Ms. Cruz’s actions.
Defendant
cites several cases that allegedly support its argument. For example, Defendant
cites John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d. 438 because in that case it was held that a school
employee’s sexual assault against a minor cannot be imputed upon the school
district employer.
However,
the Court does not find Defendant’s argument availing for several reasons.
First,
neither the case law, nor Defendant’s arguments make clear that the specific
allegations in this Complaint directly fall within the line of cases that the
District cannot be held liable as a matter of law at the pleading stage.
Second,
Plaintiff cites to Crouch v. Trinity Center of Santa Ana, Inc. which
states:
“These various terms have been condensed into a two-prong
disjunctive test. [Citation.] The conduct of an employee falls within the scope
of his or her employment if the conduct either (1) is required by or incidental
to the employee's duties, or (2) it is reasonably foreseeable in light of the
employer's business.” (Montague v. AMN Healthcare, Inc. (2014) 223
Cal.App.4th 1515, 1521, 168 Cal.Rptr.3d 123.)
(Crouch v. Trinity Christian Center of Santa
Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.)
Plaintiff argues that Defendant’s conduct falls
within the scope of employment because Ms. Cruz committed the tortious conduct
underpinning the violations at school while carrying out her duties as Plaintiff’s
special education teacher because she did these acts as “punishment” and “in
retaliation” for Plaintiff’s autism-caused behaviors. Plaintiff also argues it
is reasonably foreseeable that a teacher such as Ms. Cruz would use these
improper techniques in an effort to control and discipline such students.
Third, several cases seem to indicate that
whether the conduct occurred within the scope of employment is not
appropriately determined at the pleading stage.
“Whether a tort was committed within the scope
of employment is ordinarily a question of fact; it becomes a question of law,
however, where the undisputed facts would not support an inference that the
employee was acting within the scope of his employment.” (John R. v. Oakland
Unified School Dist. (1989) 48 Cal. 3d. 438 , 447 citing Alma W. v.
Oakland Unified School District. (1981) 123 Cal.App.3d 133, 138.)
Fourth, for purposes of background on vicarious
liability/agency, the Court explains the principle below.
The
general rule of respondeat superior is as follows, “an employer is
vicariously liable for the torts of its employees committed within the scope of
the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
12 Cal.4th 291, 298.) Further, to this Court, it appears as if respondeat
superior is codified by statute. Under Civil Code § 2338, “Unless required
by or under the authority of law to employ that particular agent, a principal
is responsible to third persons for the negligence of his agent in the
transaction of the business of the agency, including wrongful acts committed by
such agent in and as a part of the transaction of such business, and for his
willful omission to fulfill the obligations of the principal.” (Civil Code § 2338.)
Under Civil Code § 2330, “An agent represents his principal for all purposes
within the scope of his actual or ostensible authority, and all the rights and
liabilities which would accrue to the agent from transactions within such
limit, if they had been entered into on his own account, accrue to the
principal.” (Civil Code §2330.)
Further,
the case of Michelson v. Hamada helps explain the principal of agency:
Civil Code section 2295 states: “An agent
is one who represents another, called the principal, in dealings with third
persons. Such representation is called agency.” (3) Any person may be authorized to act as an
agent, including an adverse party to a transaction. (See Naify v.
Pacific Indemnity Co. (1938) 11 Cal.2d 5, 7 [76 P.2d 663, 115
A.L.R. 476]; Orfanos v. California Insurance Co. (1938) 29
Cal.App.2d 75, 78-81 [84 P.2d 233]; 2 Witkin, Summary of Cal. Law
(9th ed. 1987) Agency and Employment, § 33, p. 47.) “Whether a person
performing work for another is an agent ... depends primarily upon whether the
one for whom the work is done has the legal right to control the activities of
the alleged agent. [Citations.]” (Malloy v. Fong (1951) 37 Cal.2d
356, 370 [232 P.2d 241].) An agent is a fiduciary. (Kennard
v. Glick (1960) 183 Cal.App.2d 246, 250-251 [agent entrusted with
duty of receiving and disbursing moneys and keep- ing accurate records of the
transactions]; Estate of Arbuckle (1950) 98 Cal.App.2d 562,
569-570 [220 P.2d 950, 23 A.L.R.2d 372] [business manager unable to
produce will entrusted to him]; 2 Witkin, Summary of Cal. Law, supra,
Agency and Employment, §§ 41, 43 et seq., pp. 53, 55.) Agency may be implied
from the circumstances and conduct of the parties (see Bergtholdt v.
Porter Bros. Co. (1896) 114 Cal. 681, 685-688 [46 P. 738]; Brand
v. Mantor (1935) 6 Cal.App.2d 126, 130; Pollack v. Lytle (1981) 120 Cal.App.3d
931, 940; Brea v. McGlashan (1934) 3 Cal.App.2d 454,
464 [39 P.2d 877].) (4) When the principal in reliance on the agent
does not have the service performed by others, the agent is liable for failure
to perform. (See Lab. Code, § 2851; Poile v. Stockton Merchants
Assn. (1959) 176 Cal.App.2d 100, 104 [collection agency liable
for amount of check it failed to collect and was under duty to inform principal
of failure]; Rest.2d Agency, § 378; 2 Witkin, Summary of Cal. Law, supra,
Agency and Employment, § 62, p. 68.) (5) A contract between parties that includes the
rendering of services does not preclude recovery for breach of a confidential
relationship where property is misappropriated. (Agair Inc. v. Shaeffer (1965)
232 Cal.App.2d 513, 517 [42 Cal.Rptr. 883].)
(Michelson v. Hamada (1994) 29
Cal.App.4th 1556, 1579-80.)
As
to alleging agency at the pleading stage, “An allegation of agency is an
allegation of ultimate fact that must be accepted as true for purposes of
ruling on a demurrer.” (City of Industry v. City of Filmore (2011) 198
Cal.App.4th 191, 212-13.) “We have already noted, however, that an allegation
of agency as such is a statement of ultimate fact. Consequently further
allegations explaining how this fact of agency originated become unnecessary.”
(Skopp v. Weaver (1976) 16 Cal.3d 432, 439.)
Here,
the Complaint successfully alleges vicarious liability/agency/scope of
employment/ratification in ¶¶ 5-10 of the Complaint.
Therefore
Defendant’s arguments on vicarious liability are unavailing.
Seventh Cause of Action – Violation of the Bane Act, Civil Code §
52.1
Defendant argues that a
cause of action is not alleged for violation of Civil Code § 52.1(b).
Civil
Code § 52.1(b) states:
If a person or persons, whether or not acting under color of law,
interferes by threat, intimidation, or coercion, or attempts to interfere by
threat, intimidation, or coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this
state, the Attorney General, or any district attorney or city attorney may
bring a civil action for injunctive and other appropriate equitable relief in
the name of the people of the State of California, in order to protect the
peaceable exercise or enjoyment of the right or rights secured. An action
brought by the Attorney General, any district attorney, or any city attorney
may also seek a civil penalty of twenty-five thousand dollars ($25,000). If
this civil penalty is requested, it shall be assessed individually against each
person who is determined to have violated this section and the penalty shall be
awarded to each individual whose rights under this section are determined to
have been violated.
(Civil
Code § 52.1(b).)
Defendant
makes no availing arguments as to how Plaintiff did not successfully allege a
cause of action.
First,
Defendant quotes a case, Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334,
that mentions the evidence that
Plaintiffs in that case failed to produce. This is unavailing because the
instant case is at the pleading stage. Plaintiffs do not have to produce
evidence and prove their case at the pleading stage. Defendant cited a case
that did not deal with the pleadings for the instant cause of action.
Second,
Defendant cites B.B. v. County of Los Angeles (2020) 10 Cal. 5th 1,
31–32 to argue that the Bane Act was passed to stem a tide of hate crimes
against minorities in the 1980s and that there are no allegations of a hate
crime here.
This
argument is also unavailing because Defendant cited to the concurrence of B.B.
which does not in any clear manner explain what must be alleged and because
B.B. was not a pleading case.
Defendant
also argues that Plaintiff did not allege threats, intimidation, or coercion in
a manner protected by statute, but it appears that ¶¶ 118-137 in the Complaint
do in fact make those allegations.
Ultimately,
Defendant does not come forward with any legal authority to support its
argument that Plaintiff did not successfully allege a violation of the Bane
Act, Civil Code § 52.1.
TENTATIVE RULING – Seventh Cause of Action
Defendant’s demurrer to
the seventh cause of action for violation of the Bane Act, Civil Code § 52.1 is
OVERRULED.
Eighth Cause of Action – Violations of the Ralph Civil Rights Act
The eighth cause of
action is for violations of the Ralph Civil Rights Act, Civil Code § 51.7.
The
Ralph Act, codified in Civil Code section 51.7 provides:
All persons within the jurisdiction of this state have the right
to be free from any violence, or intimidation by threat of violence, committed
against their persons or property because of political affiliation, or on
account of any characteristic listed or defined in subdivision (b) or (e) of
Section 51, or position in a labor dispute, or because another person perceives
them to have one or more of those characteristics. The identification in this
subdivision of particular bases of discrimination is illustrative rather than
restrictive.
(Civil
Code § 51.7(b)(1).)
Civil
Code § 51(b) provides:
All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, genetic information, marital status,
sexual orientation, citizenship, primary language, or immigration status are
entitled to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.
(Civil
Code § 51(b).)
Defendant
cites to Austin B. v. Escondido Union School Dist. (2007) 149
Cal.App.4th 860, 880-881 which states:
CACI No. 3023 sets forth the elements of a Ralph Act claim:
“1. That [the defendant] threatened or committed violent acts
against [the plaintiff or his or *881 her property]; [¶] 2.
That a motivating reason for [the defendant's ] conduct
was [his/her] perception of [the plaintiff's age or disability ]];
[¶] 3. That [the plaintiff] was harmed; and [¶] 4. That [the defendant's]
conduct was a substantial factor in causing [the plaintiff] harm.” (Italics
added.)
(Austin
B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881.)
Defendant
argues that Plaintiff failed to allege that the District acted violently or
threatened Plaintiff due to a disability or sex or another protected
characteristic.
Defendant’s
argument is unavailing. Paragraph 144 of the Complaint makes the allegation
that Defendant argues is not in the Complaint.
Further,
it appears that Defendant is arguing that these allegations were not made
because the Complaint doesn’t make the allegations with respect to the
District, but rather makes them with respect to Ms. Cruz.
This
argument by Defendant is unavailing. As the Court previously discussed,
Plaintiff successfully alleged, agency/vicarious liability/ratification/scope
of employment.
TENTATIVE RULING – Eighth Cause of Action
Defendant’s demurrer to
the eighth cause of action for violation of the Ralph Civil Rights Act, Civil
Code § 51.7 is OVERRULED.