Judge Audra Mori, Case 22STCV28726 2023-02-24 Tentative Ruling

Plaintiff Karson Nicholson (“Plaintiff”), a minor by and through his guardian ad litem, Elizabeth Nicholson, filed this action against Defendant Compton Unified School District (“Defendant”) and does 1 to 20 for injuries Plaintiff sustained while using a swing set at Defendant’s school. Plaintiff alleges, “Plaintiff was swinging on the swing when his lower body was suddenly and unexpectedly caught by the dangerous and defective mat beneath the swing. This proximately caused plaintiff serious bodily injuries. Plaintiff’s injuries include but are not limited to fractures in his right leg/ankle.” (Compl. at p. 6, ¶ 17.) The complaint alleges causes of action for (1) breach of statutory duty concerning pupils- violation of Education Code § 44807, (2) premises liability, and (3) general negligence. The premises liability cause of action includes counts for negligence and for dangerous condition of public property.

Defendant now demurs to the complaint arguing that the first cause of action for breach of statutory duty fails to state an underlying mandatory duty, and that the third cause of action for negligence fails to state sufficient facts to state a claim against Defendant. Additionally, Defendant moves to strike the request for property damages and request for loss of earning capacity in the complaint. Plaintiff opposes the demurrer and motion to strike, and Defendant filed a reply to the oppositions.

This matter was originally heard on January 19, 2023, where it was continued for the parties to brief the parties’ arguments raised over Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal.App.3d 431 (“Fall River”). Plaintiff filed a supplemental brief regarding Fall River on February 2, 2023, and on February 15, 2023, Defendant file a response to Plaintiff’s supplemental brief.

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). (CCP §§ 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Foster Decl. ¶¶ 2-4.)

Defendant requests judicial notice be taken of the government claim submitted and received by Defendant on or about July 19, 2022. (Dem. Request for Judicial Notice (“RJN”) Exh. 1.) Plaintiff does not dispute that the Exhibit is a true and correct copy of the government claim Plaintiff submitted to Defendant. The request is thus granted. (Evid. Code § 452(c).) The court takes judicial notice of the filing, but not of the truth of any matters asserted therein. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.)

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Government Code § 945.6 provides in relevant part:

(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:

(1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.)

“Where there has been an attempt to comply [with the claims statute] but the compliance is defective, the test of substantial compliance controls. Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and settle it without the expense of a lawsuit.’” (Wood v. Riverside Gen. Hosp. (1994) 25 Cal.App.4th 1113, 1118.) “City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 456-457 [115 Cal.Rptr. 797, 525 P.2d 701, 76 A.L.R.3d 1223] notes a twofold test for substantial compliance: ‘to gauge the sufficiency of a particular claim, two tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?’” (Id.)

A claim that fails to substantially comply with sections 910 and 910.2, may still be considered a "claim as presented" if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769.) “The doctrine of substantial compliance requires no more than that the governmental entity be apprised of the claim, have an opportunity to investigate and settle it and incur no prejudice as a result of plaintiff's failure to strictly comply with the claims act.” (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 75.) The Court, thus, must determine “Is there sufficient information disclosed on the face of the filed claim to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit?” (City of San Jose v. Superior Court (1974) 12 Cal. 3d 447, 456.)

“Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ ” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) “[S]ection 945.4 requires each cause of action to be presented by a claim complying with section 910, while section 910, subdivision (c) requires the claimant to state the ‘date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted.’ If the claim is rejected and the plaintiff ultimately files a complaint against the public entity, the facts underlying each cause of action in the complaint must have been fairly reflected in a timely claim.” (Id. at 447.) “The claim, however, need not specify each particular act or omission later proven to have caused the injury.” (Id.)

A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an “entirely different set of facts.” (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278, 29 Cal.Rptr.2d 398.) Only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,” have courts generally found the complaint barred. (Blair v. Superior Court, supra, at p. 226, 267 Cal.Rptr. 13.) Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.

(Id.) “In comparing claim and complaint, ‘we are mindful that ‘[s]o long as the policies of the claims statutes are effectuated, [the statutes] should be given a liberal construction to permit full adjudication on the merits.” ’ [Citation.]” (Id. at 449.)

“Furthermore, ‘If a plaintiff relies on more than one theory of recovery against the [governmental agency], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer [or motion for judgment on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the written claim.”

(Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434.)

In Fall River, the plaintiff was injured at school when a steel door struck his head. (Id. at 434.) His government claim stated that the door was in a dangerous and defective condition for several reasons, but his complaint additionally alleged the school had negligently failed to supervise students engaged in horseplay. (Id.) The failure to supervise theory “patently attempt[ed] to premise liability on an entirely different factual basis than what was set forth in the tort claim. Such a variance has been held fatal to a plaintiff's pleading in several analogous cases.” (Id. at 435.) Allegedly negligently maintaining a door was not the factual equivalent of failing to supervise students. (Id.) The defendant was given “no warning that it might be sued for its employee's failure to supervise plaintiff and his fellow students, and had no opportunity to consider the validity of such a claim until the filing of the amended complaint… plaintiff did not even rise to the level of minimal, much less substantial, compliance with the claim filing prerequisites.” (Id. at 436.)

In Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, the plaintiff employee was terminated from his employment at a public agency. (34 Cal.4th at 444.) The employee presented a notice of tort claim to the public agency alleging that he had been wrongfully terminated. (Id.)

The claim stated that Stockett was terminated for supporting a female employee's sexual harassment complaints against William G. Malone, [the agency’s] insurance broker, which harassment was in violation of the Fair Employment and Housing Act and the public policy of the State of California; that Stockett became aware that members of the committee and Malone had purchased insurance without determining that the insurer provided the lowest price or value to its members, and refused to select a provider through a competitive bidding process; and that Malone and some members of the committee, learning that Stockett was considering soliciting other bids, conspired to induce the committee to terminate Stockett by meeting secretly and making false charges against him.

Stockett's notice of claim stated he was wrongfully terminated on August 25, 1995, after the committee held a closed session meeting. It asserted that Buckner (the committee president), Wes Bannister (the vice-president), Malone ([the agency’s] insurance broker and consultant), Daniel Klaff (the assistant general manager) and other unknown parties caused his injury, and identified Malone as the instigator of the action through his close ties with Buckner, Bannister and Klaff.

(Id.) The employee filed a lawsuit against the agency denied his claim, and then filed an amended complaint alleging he had been terminated in violation of public policy on three grounds: “(1) opposing sexual harassment by Malone in the workplace; (2) objecting to a conflict of interest involving Malone's dual role as both [the agency’s] insurance consultant and a vendor of insurance products to [the agency]; and (3) exercising his First Amendment right of free speech by objecting to [the agency’s] practice of not having its insurance purchased on the open market through an open bid process …” (Id.)

After a jury verdict was entered in the employee’s favor, the Court of Appeal reversed “holding that ‘[b]y allowing the conflict of interest and free speech theories to be presented to the jury, the trial court allowed the [the employee] to present a very different case than one based solely on retaliation for objection to sexual harassment.’ ” (Id. at 445.) The Supreme Court, however, determined that the employee properly stated the date and place of his termination, named the agency’s officers he believed responsible, and generally stated the circumstances of his termination in his tort claim, and so while the employee’s claim “did not specifically assert his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, these theories do not represent additional causes of action and hence need not be separately presented under section 945.4.” (Id. at 447, fn omitted.) Unlike Fall River, “the additional theories pled in [the employee’s] amended complaint did not shift liability to other parties or premise liability on acts committed at different times or places.” (Id. at 448.) The employee’s complaint alleged liability on the same wrongful act- his termination- as was stated in his notice of claim. (Id.) “[T]he free speech and conflict of interest theories simply elaborated and added detail to his wrongful termination claim by alleging additional motivations and reasons for [the agency’s] single action of wrongful termination.” (Id.)

Here, concerning the first and third causes of action for breach of statutory duty and negligence, Defendant argues that Plaintiff failed to comply with the Government Tort Claims act and file a claim with Defendant for breach of mandatory duty or negligence. Defendant asserts that Plaintiff’s claim for damages only provides a factual basis for premises liability because the claim alleges that Plaintiff was swinging on a swing when his foot got caught in the hole that was created from wear and tear in the mat beneath the swing.

In opposition, Plaintiff asserts that he fully complied with the claim filing requirements, as the claim Plaintiff presented to Defendant contained sufficient information to enable Defendant to investigate the claims and settle them. Plaintiff contends that requiring persons to state all possible causes of action in a claim presented to a public entity would render future complaints against government agencies null. Plaintiff asserts that his claim for breach of a statutory duty is based on the same facts described in Plaintiff’s claim for damages form.

In reply, Defendant argues that Plaintiff’s government claim failed to provide a factual basis for breach of a mandatory duty to supervise children, so Plaintiff’s first cause of action is based on an entirely different set of facts. Defendant avers that the government claim does not provide any factual information to support a cause of action arising from a failure to supervise. Defendant asserts that while causes of action are not required in a government claim, no mention of employee negligence or failure to supervise was ever made. Defendant argues it was only given notice of the premises liability/dangerous condition cause of action against it.

In his supplemental brief, Plaintiff contends that this case is unlike Fall River because the complaint does not contain any new factual allegations not stated in Plaintiff’s government claim. Plaintiff contends that because inadequate supervision is a legal theory, rather than a factual allegation, based on the facts stated in the claim it was not required to be included in the claim for damages. Plaintiff asserts this case is thus more analogous to Stockett because the complaint does not allege a new set of facts, and Plaintiff contends that his government claim mentioned an “unknown class aide” as a possible witness such that Defendant could have investigated the class aide to determine if she was adequately supervising Plaintiff. Further, Plaintiff asserts that since Fall River was decided, it has been applied narrowly and its holding has been abrogated, and Plaintiff argues that public policy favors adjudication on the merits.

In response to the supplemental brief, Defendant contends that this matter is indistinguishable from Fall River, as Plaintiff’s government claim does not state that any other persons caused or contributed to Plaintiff’s injury and instead merely states Plaintiff’s foot got caught in the hole made from the wear and tear below the swing. Defendant argues that the government claim describes a dangerous condition of public property, and that there was no way for Defendant to surmise that the unnamed aide contributed to the injury. Additionally, Defendant argues that the first cause of action contains new facts not reflected in Plaintiff’s government claim because Plaintiff is now alleging that Defendant breached a statutory duty by failing to adequately supervise Plaintiff while he was using the swings, which was not reflected in the government claim. Lastly, Defendant asserts that Plaintiff is incorrect that the holding of Fall River has been abrogated as Plaintiff’s cited authority does not stand for a narrowing of Fall River.

As to the first cause of action for breach of statutory duty, the complaint alleges in pertinent part:

11. At all times relevant herein, prior to and on the date of the incident, defendant CUSD, and school and Does 1 to 20 undertook the acts and responsibility to supervise, protect and keep safe pupils, including plaintiff during school hours, including recess. Therefore defendants' had duty of due care to adequately and sufficiently supervise, protect and make safe toward plaintiff, KARSON NICHOLSON (“plaintiff”) and other pupils extended to defendants and each of them, while defendants and each of them undertook supervising, protecting and keeping safe plaintiff and other students during recess and other pupil recreation times at or near defendants’ school premises pursuant to Education Code § 44807.

14. On or about, March 31, 2022, plaintiff and other students were under the care, supervision and control of defendants and each of them, while at recess during CUSD school attendance at Robert F. Kennedy Elementary School, within the Compton Unified School District. Plaintiff is informed and believes that Defendants, and each of them including CUSD and their agents, employees, servants and contractors employee, staff member and/or teacher provided insufficient and inadequate teacher or staff member supervision of plaintiff and other students while all students were on the playground and premises area of the school and more specifically at and near the swing set and swing that plaintiff was using. Defendant failed to adequately supervise, protect and monitor plaintiff while plaintiff was using, operating and managing his use and other students’ use of the swing set and swing that plaintiff was sitting on.

17. Plaintiff was using the swing and swing set. Plaintiff was swinging on the swing when his lower body was suddenly and unexpectedly caught by the dangerous and defective mat beneath the swing. This proximately caused plaintiff serious bodily injuries. Plaintiff’s injuries include but are not limited to fractures in his right leg/ ankle.

20. Defendants knew or should have known that by providing inadequate school staff supervision and safety to supervise, protect, warn and make safe, all students on the playground, and plaintiff, prior to and while plaintiff used the swings, would be unreasonable, careless, reckless and negligent.

21. At all times relevant herein, prior to and on the date of plaintiff’s injury, there was either a total lack of supervision or ineffective supervision which constituted a lack and want of ordinary care toward plaintiff while he was on the defendants’ premises, playground and swingset/mat area.

22. Had defendant, defendants, and each of them provided adequate supervision, the incident and plaintiff’s injury could have been prevented. Defendants and each of them, by falling below the standard of care and engaging in negligent, careless, reckless and unreasonable acts and omissions in breaching their duty owed to student plaintiff, proximately caused or was a substantial factor in causing plaintiff to fall from the swing which in turn proximately caused plaintiff to suffer serious physical and emotional injury and damages.

29. Defendants and each of them are therefore liable for the actions of Defendants, and each of them, under Education Code § 44807 given Defendant CUSD’s lack of proper, adequate and sufficient supervision, protection and safety which was the proximate cause or substantial factor in causing Plaintiff’s injuries and damages

Plaintiff’s government claim provides the injury occurred as follows: “[Plaintiff] was swinging on a swing in the playground of Robert F. Kennedy Elementary School when his foot got caught in the hole that has been made from wear and tear in the mat beneath the swing, causing injury to his right leg/ankle.” (Dem RJN Exh. 1 at p. 1.) It is not clear whether Plaintiff’s government claim and the first cause of action of the complaint are predicated on the same fundamental facts. Plaintiff’s allegations in the first cause of action are stated in the most general of terms. They do not identify any person who was supposed to do the monitoring. They do not make clear whether such person or persons were supposed to be monitoring Plaintiff or the playground environment in which Plaintiff was present. They allege that there was a lack of supervision both “prior to and on the date of plaintiff’s injury.”

Plaintiff is correct that since Fall River, some cases have moved away from rigidly applying government claim requirements. However, Fall River remains citable authority, and this case as alleged presents facts similar to those in Fall River. As in Fall River, Plaintiff’s government claim mentions the alleged unsafe condition of Defendant’s property- the hole in which Plaintiff’s foot was caught - but there is no statement that Plaintiff’s injury was caused by Defendant’s staff’s negligent supervision of Plaintiff.

One difference between Fall River and this case is that Plaintiff’s government claim mentions that an “unknown class aide” was a witness to the incident, though the claim on its face does not state that the unknown class aide contributed to the incident. (Demurrer RJN Exh. 1.) However, the first cause of action in the complaint does not allege that this class aide was supposed to be supervising Plaintiff and/or the playground environment. From the allegations, it may be inferred that Plaintiff is alleging a systemic lack of supervision existed prior to the date of the incident. Thus, it is unclear whether the Complaint is attempting to impose liability beyond that identified in the claim.

Based upon the current allegations of the Complaint, Fall River is controlling. Therefore, Defendant’s demurrer is sustained as to the first cause of action. However, it is sustained with twenty (20) days leave to amend.

Plaintiff asserts that the third cause of action for negligence is not asserted against Defendant, but rather is made against Does 1 to 20. Accordingly, because this claim is not asserted against Defendant, Defendant’s demurrer to the third cause of action is overruled.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matters that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Here, Defendant moves to strike the request for property damages and request for loss of earning capacity included in the complaint. Defendant contends that the complaint fails to allege any facts concerning what property of Plaintiff’s was damaged as a result of the incident, and that there are no facts suggesting that Plaintiff’s injuries are permanent and will result in loss of earning capacity.

In opposition, Plaintiff contends the motion to strike the compensatory damages is improper. Plaintiff argues that he is not required to plead evidentiary facts, such as the nature and extent of Plaintiff’s property damage and loss of earning capacity.

The complaint as pled does not include any facts to support the prayer for property damages or for loss of earning capacity. The complaint includes allegations stating only that Defendant is liable for Plaintiff’s injuries suffered as a result of the incident involving the swing set. While Plaintiff asserts that “[p]erhaps the evidence will show that the sole of plaintiff’s show was torn off, or that he will have a permanent limp resulting in diminished earning capacity”, (Opp. at p. 3), no such facts are pled in the complaint to support the request for property damages or loss of earning capacity.[1] Therefore, neither request is supported by the facts, or any ultimate facts, pled in the complaint.[2]

Based on the foregoing, the motion to strike the request for property damages and loss of earning capacity is granted. Because Plaintiff indicates that additional facts can be pled regarding these damages, the motion to strike is granted with twenty (20) days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] At least some of this evidence should already be available to Plaintiff.

[2] To the extent that Defendant contends that Plaintiff’s claim for property damages is prohibited because there was no reference to property damages in Plaintiff’s government claim presented to Defendant, Defendant does not cite any authority holding that all types of damages a Plaintiff seeks must be specified in a government claim. Presumably, any property damages sought by Plaintiff are directly related to the same facts and incident concerning the swing set alleged in the government claim.