Judge Audra Mori, Case 22STCV29995 2023-03-09 Tentative Ruling

Plaintiff Fabian Sanchez, a minor individual by and through his guardian ad litem, Juliana Luevano, filed this action against defendant Los Angeles Unified School District (“LAUSD”), Olive Vista Middle School, Janelle Branning (“Branning”), Jona Than Ochoa (“Ochoa”), and Filiberto Alaniz (“Alaniz”) for damages relating to a dog attack that occurred at Olive Vista Middle School, which is within the Los Angeles Unified School District. Following the sustaining of LAUSD’s demurrer to Plaintiff’s complaint, Plaintiff filed the operative First Amended Complaint (“FAC”) purporting to alleges causes of action for (1) negligence, (2) premises liability, (3) negligent supervision, (4) negligent infliction of emotional distress, and punitive/exemplary damages.

Defendant LAUSD now demurs to the FAC arguing the first, second, third, and fourth causes of action fail to state a claim against it. Plaintiff opposes the demurrer, and LAUSD filed a reply.

LAUSD argues that the first, third, and fourth causes of action fail to state a statutory basis for holding LAUSD liable for the incident as required by Government Code § 815. Further, LAUSD argues that the second cause of action for premises liability fails to allege that a dangerous condition existed on LAUSD’s property.

In opposition, Plaintiff incorrectly argues that the demurrer is only directed at the second cause of action for premises liability. As to the second cause of action, Plaintiff contends that it sufficiently states a claim against LAUSD under a theory of dangerous condition of public property. Plaintiff contends that the FAC sufficiently alleges that a defect, including a locked gate, on LAUSD’s property caused or contributed to Plaintiff’s injuries.

In reply, LAUSD contends that Plaintiff fails to show that the locked gate could constitute a dangerous condition, and that Plaintiff’s attempt to plead negligent undertaking fails.

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).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Welden Decl. ¶¶ 2-5.)

Except as otherwise provided by statute, “[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.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; see also Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088.) It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) Consequently, “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.)

Here, the first, third, and fourth causes of action for negligence, negligent supervision, and negligent infliction of emotional distress allege in relevant part:

18. Plaintiff is informed and believes and based upon such information and belief alleges that Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT, OLIVE VISTA MIDDLE SCHOOL, JANELLE BRANNING, JONATHAN OCHOA, FILIBERTO ALANIZ, and DOES 1 to 50, inclusive, negligently owned, maintained, managed, and operated the premises where the dog attack occurred and negligently owned, maintained, managed, and operated the premises where CHOPPER the dog was housed, and all defendants were the legal (proximate) cause of damages to Plaintiff.

26. Plaintiff is informed and believes and based upon such information and belief alleges that Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT, OLIVE VISTA MIDDLE SCHOOL, and DOES 1 to 50, inclusive, negligently supervised the premises at OLIVE VISTA MIDDLE SCHOL, causing the injuries and damages to Plaintiff as alleged herein, by keeping the gates to the school premises locked so that students were at the mercy of a dog like Chopper.

29. Plaintiff is informed and believes and based upon such information and belief alleges that the acts, conduct, and statements of Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT, a government entity; […], were the cause of emotional distress negligently inflicted on Plaintiff by the acts, conduct, and statements of Defendants, and each of them.

These claims merely plead that LAUSD negligently owned, operated, maintained, and supervised the premises where the incident occurred and negligently caused Plaintiff emotional distress. The causes of action fail to allege any statutory basis for liability against LAUSD, which the complaint alleges is a government entity. (Searcy, 177 Cal.App.3d at 802.) There is no common law tort liability for public entities in California. (See Becerra, 68 Cal.App.4th at 1457; see also Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 [“in California, ‘all government tort liability must be based on statute [citation].’ [Citation.]”].) Plaintiff, in opposition, does not address these causes of action or otherwise dispute they fail to allege a statutory basis for liability against LAUSD.

Accordingly, the demurrer is sustained as to the first, third, and fourth causes of action against LAUSD.

“[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.) Government Code § 835 states:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

“To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) “The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Id. [internal citation omitted].)

Moreover, “[i]t is settled law that a public entity is not liable for a dangerous condition of public property based on third-party conduct alone, whether that conduct is criminal or merely negligent.” (State of California v. Superior Court (1995) 32 Cal.App.4th 325, 327.)

“A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act ... if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. [Citation.] … ‘ “[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.” ' [Citation.] There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.] ‘[P]ublic liability lies under [Government Code] section 835 only when a feature of the public property has “increased or intensified” the danger to users from third party conduct.’ [Citation.]” [Citation.]

(Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1187.)[1] Accordingly, “ ‘third party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.’ [Citation.]” (Id. at 1134.) “[C]ourts have consistently refused to characterize harmful third party conduct as a dangerous condition —absent some concurrent contributing defect in the property itself.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135.)

In Zelig, the children of a woman who was killed by her ex husband outside of a courthouse where they were waiting for a hearing in their divorce proceeding filed an action against the County of Los Angeles. Plaintiff’s first cause of action was treated as one based upon the dangerous condition of the courthouse. Plaintiffs alleged that a lack of safety measures such as failure to install barriers and metal detectors caused the death. The California Supreme Court affirmed a demurrer to the plaintiffs’ claim. The Court analyzed cases in which defects such as inadequate lighting or overgrown trees made property more dangerous to the known possibility of attacks. It emphasized, however, that liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury. It noted, for example, that a school district could not be held liable for failing to provide measures that would prevent persons from bringing weapons onto school grounds. “To summarize,” it said, “liability can arise only when third party conduct is coupled with a defective condition of property.” (Id. at 1137; see also Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 152 [“No shortage exists of cases recognizing a dangerous condition of public property in some characteristic of the property that exposed its users to increased danger from third party negligence or criminality.”].) Because plaintiffs could point to no physical defect in the property that caused the shooting, and there was no causation alleged, the demurrer was properly granted. Judgment was affirmed in favor of the defendants.

6. On or about February 14, 2022, at approximately 7:30 a.m. to 7:45 a.m., PLAINTIFF was patiently waiting outside of OLIVE VISTA to be admitted into the then locked school grounds (COVID-protocol) when he was viciously attacked by a fully grown German Shepard named “Chopper.” Chopper, who was roaming the school grounds unattended, rushed PLAINTIFF and knocked PLAINTIFF down to the ground. Chopper lunged at the vulnerable eleven (11) year old PLAINTIFF’s face and head relentlessly. From the ground, PLAINTIFF put his arms up in defense to protect his face against Chopper’s strikes.

7. While PLAINTIFF fended off the attack, an OLIVE VISTA staff member responded to the incident by closing a gate between herself and Chopper to prevent the dog from turning his attention to her.

11. The principal, Ms. Martinez, informed [Plaintiff’s mother] that the school was aware of the dog roaming OLIVE VISTA and had made several previous complaints to City of Los Angeles Animal Control Services regarding Chopper. Mrs. Martinez expressed frustration to [Plaintiff’s mother] about the animal’s ability to roam free around the school and on its property despite OLIVE VISTA’s complaints about the hazardous situation to Animal Control Services.

21. Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT and OLIVE VISTA MIDDLE SCHOOL, and Does 10 – 15, inclusive, violated Government Code § 835. The Defendants are liable for Plaintiff’s injuries because the Defendants owned and controlled property with a dangerous condition at the time of Plaintiff’s injury, the locked gate obstructing entrance was the proximate cause of Plaintiff’s injury, the Defendants should have reasonably foreseen the risk of the kind of injury sustained, and the public entity had actual notice of the dangerous condition of the property in sufficient time to prevent the injury to Plaintiff from occurring.

22. Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT and OLIVE VISTA MIDDLE SCHOOL, and Does 10 – 15, owned public property on which a dangerous condition existed, to wit, that the gate to the school entrance being locked created said dangerous condition pursuant to Government Code Section 835, and said defendant public entities had actual notice of the existence of the dangerous condition in sufficient time prior to plaintiff’s injury to have corrected it.

23. Defendants, controlling the premises, directed Plaintiff to remain outside the entrance of the property to wait to be admitted inside while knowing a large dog has been roaming the area and previously attacked another student the week before, in a similar location. It is undisputed Defendants had actual notice of the dangerous condition because school officials already filed complaints with the Los Angeles Department of Animal Control concerning the subject dog and its prior attack on a child. On the date of the incident, when the subject dog returned to the premises, agents for the Defendants closed and locked the gate (entrance to the premises) as Plaintiff was approached by the dog and subsequently attacked, causing Plaintiff’s injuries. Defendants had prior knowledge of the dog’s presence and propensity for violence and should have reasonably known it could attack another student. But for the Defendants directing Plaintiff to wait outside the entrance and locking the gate barring entrance, Plaintiff would have been safe in the confines of the premises and would not have been injured.

(FAC at ¶¶ 6-7, 11, 21-23.) The FAC, thus, alleges that Plaintiff was waiting outside LAUSD’s locked school grounds, waiting to be admitted when he was attacked by the dog, Chopper. The FAC alleges that the locked gate to the school’s entrance created a dangerous condition, and that LAUSD had Plaintiff remain outside the school’s entrance despite knowing that a large dog had been roaming the area and attacked another student the week before. Further, LAUSD’s agents allegedly closed and locked the gate as the attack on Plaintiff occurred.

While the FAC alleges that the locked gate created a dangerous condition, the FAC does not plead any facts showing that the locked gate itself constituted a dangerous condition of public property, nor does the FAC allege any facts suggesting that the gate was not functioning properly at the time of the incident. The FAC does not allege that the gate was defective, physically damaged, or deteriorated, or that its design or location made it dangerous. Rather, the FAC alleges that the problem was that LAUSD took the action of closing and locking the gate. (FAC ¶¶ 7 [“an OLIVE VISTA staff member responded to the incident by closing a gate between herself and Chopper to prevent the dog from turning his attention to her”] and 23 [“Defendants closed and locked the gate (entrance to the premises) as Plaintiff was approached by the dog”].) The FAC does not otherwise identify any other part of LAUSD’s property that was in an allegedly dangerous condition. Consequently, there are no facts in the FAC alleging that any physical characteristic or defect of LAUSD’s property caused or contributed to the dog attack on Plaintiff. (See Zelig, 27 Cal.4th at 1135 [Gov. Code § 835 requires “some defect in the property itself”].) Moreover, there are no allegations suggesting that the risk of a dog attack or injury was increased or intensified by the gate itself. (Sun, 166 Cal.App.4th at 1187.) In other words, the FAC does not allege any causal connection between the condition of LAUSD’s property and the dog attack. The claim that Plaintiff was attacked by the dog on LAUSD’s property is not sufficient alone to state a claim for dangerous condition of public property under Government Code § 835 against LAUSD.

The FAC, therefore, fails to state a claim for dangerous condition of public property against LAUSD. Plaintiff further argues that even if the second cause of action fails to state a claim for dangerous condition of public property, the allegations are sufficient to state a claim for negligent undertaking against LAUSD. However, the second cause of action fails to identify any statutory basis for liability under such a theory against LAUSD, and a negligent undertaking claim would be separate and distinct from a premises liability cause of action.[2] (Gov. Code § 815(a); Hoff, 19 Cal.4th at 932.)

Based on the foregoing, LAUSD’s demurrer to the second cause of action for premises liability is sustained.

The burden is on Plaintiff to show in what manner he can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiff requests leave to amend the FAC. However, the Court notes that LAUSD has now twice successfully demurred to claims that LAUSD is liable for a dangerous condition of public property. Plaintiff fails to provide any facts or reasoning as to how he can successfully state a claim for premises liability under a dangerous condition of public property theory. Thus, the demurrer will be sustained without leave to amend as to the second cause of action. As to the first, third, and fourth causes of action, this is the first challenge to these claims. The demurrer will be sustained with leave to amend to allow Plaintiff to plead any statutory basis for liability against LAUSD.

To the extent that Plaintiff is attempting to assert a claim for dangerous condition of public property against LAUSD, the demurrer is sustained as to the second cause of action for premises liability against LAUSD without leave to amend.

The demurrer is sustained to the first cause of action for negligence, third cause of action for negligent supervision, and fourth cause of action for negligent infliction of emotional distress against LAUSD with twenty (20) leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] In arguing that a dangerous condition existed, Plaintiff cites to only two cases, both of which are also cited by Defendant: Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124 and Sun v. City of Oakland (2008) 166 Cal.App.4th 1177. In Mixon, a motorist struck a boy in a marked crosswalk. He and his family sued the state alleging that the intersection was in a dangerous condition. The court found the intersection was not dangerous and granted summary judgment in favor of the state. Sun similarly involved a case in which the court granted summary judgment in favor of the City in a case in which the family of a pedestrian who was hit by a motorist claimed that the accident occurred due to a dangerous condition of the intersection.

[2] “To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant's failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 83-84.) Plaintiff’s premises liability cause of action does not allege facts showing that LAUSD meets these elements.