Judge Bruce G. Iwasaki

Department 58

Hearing Date: December 11, 2024

Case Name: Doe v. Los Angeles Unified School District

Case No.: 24STCV20565

Matter: Demurrer and Motion to Strike

Moving Party: Defendant Los Angeles Unified School District

Responding Party: Plaintiff John DLTR Doe

Tentative Ruling: The Demurrer to the Complaint is sustained as to the sixth cause of action and overruled as to fourth cause of action. The Motion to Strike is granted.

Plaintiff was a minor when he was allegedly targeted and abused by Defendant Eduardo Antonio Colocho (Colocho) at Defendant LAUSD’s Sylmar High School. Assigned to be Plaintiffs’ teacher, coach, mentor, and advisor, Colocho regularly came into contact with Plaintiff. While on the campus of Sylmar High School, Colocho sexually harassed, exploited, molested, and abused Plaintiff.

The Complaint contains causes of action for (1.) negligence, (2.) negligent supervision, (3.) negligent hiring and retention, (4.) negligent failure to warn, train or educate, (5.) IIED, (6.) public entity liability for failure to perform a mandatory duty, (7.) assault, and (8.) sexual battery.

Defendant Los Angeles Unified School District (LAUSD) demurs to the entire Complaint for uncertainty and to the fourth and sixth causes of action. Plaintiff opposes the demurrer and the motion to strike.

The demurrer is sustained in part and overruled in part. The motion to strike is granted.

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

Demurrer to the Entire Complaint

Defendant LAUSD argues the entire complaint fails for uncertainty because Plaintiff fails to allege the month(s) and year(s) of the conduct alleged in his complaint. In support of this argument, Defendant relies on cases –the latest of which is almost 60 years old – to support this argument. However, these cases only apply a generalized rule that contains no specific applicability to claims brought here.

For instance, Defendant argues that the court in Williamson v. Joyce (1902) 137 Cal. 151 determined that failing to allege a material date was grounds for demurrer based on uncertainty. (Williamson v. Joyce (1902) 137 Cal. 151, 152-153 [“Time of occurrence of material facts must be alleged with certainty, especially where date is itself material.”].) Similarly, Defendant cites Corum v. Hartford Acci. & Indem. Co. (1945) 67 Cal App 2d 891 for the proposition that the “[f]ailure to allege a date, which appears to be material, and as to which it may be assumed plaintiff's knowledge is superior to that of defendant, is ground for special demurrer.” (Corum v. Hartford Acci. & Indem. Co. (1945) 67 Cal App 2d 891.)

Here, these cases merely reiterate the unremarkable proposition that all material facts to claim need to be alleged. In this regard, Defendant fails to identify any specific cause of action that requires Plaintiff to allege the exact timing of events as a material element of the cause of action.

Moreover, the Complaint is not completely devoid of timing allegations where Complaint alleges that “[b]eginning in or around May 2003, when Plaintiff JOHN DLTR DOE was in Sylmar High School, the perpetrator COLOCHO sexually abused, harassed and molested the Plaintiff on the school premises.” (Compl., ¶ 37(a).)

The demurrer on this ground is overruled.

Fourth Cause of Action for Negligent Failure to Warn, Train or Educate

LAUSD demurs to this cause of action on the grounds that it is duplicative of the general negligence cause of action in the first cause of action.

As a preliminary matter, Defendant acknowledges it can be liable to Plaintiff for failure to supervise employees or students, but notes that the thrust of Plaintiffs’ fourth cause of action for failure to warn, train, or educate is based upon LAUSD’s alleged failure to educate students to avoid risks against sexual harassment, molestation and abuse. (Complaint, ¶¶ 171-174.) Defendant argues that this claim is “redundant” to Plaintiffs’ first cause of action, and therefore redundant.

To the extent Plaintiff seeks to tie negligence liability solely to a specific duty to warn, train, or educate students separate from LAUSD's broader negligence liability, Defendant argues that there is no such statutory duty. Rather, LAUSD argues that the cause of action for failure to warn, train, or educate exists solely at common law by virtue of Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377.

In Juarez, the court applied the analysis of Rowland v. Christian (1968) 69 Cal.2d 108 and determined that the Boy Scouts of America had a duty of care “to have taken reasonable protective measures to protect [the minor 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.” (Juarez, at pp. 409–410.)

In opposition, Plaintiff argues that LAUSD had a duty to protect students as set forth in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861: “[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. This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by another student [citations], injury to a student by a nonstudent [citation] and—on facts remarkably close to the present case—injuries to a student resulting from a teacher's sexual assault [citation].’ (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p. 870, fn. omitted.)

C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 is instructive. There is a special relationship between a school district and its employees and students arising from the compulsory nature of education and the comprehensive control over students exercised by school personnel. (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at 869–870.) Because of that special relationship, school personnel have a duty to use reasonable measures to protect students from foreseeable injury arising from the acts of third parties, including sexual misconduct by a district employee. (Ibid.; see also Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 744–745, 747–751.)

Taken together, the language in paragraphs 20, 50, 95, 96 and 97 set forth the context of determining whether reasonable measures to protect students have been taken within the meaning of C.A. v. William S. Hart Union High School District, supra. Admittedly, absent a statute, there is no separate duty to warn, train, or educate apart from this general duty to protect students. Here, a demurrer is not proper where there is a cause of action stated and the label of the cause of action is not determinative to whether there is a duty under general direct negligence claim. Thus, the demurrer is not proper here and must be overruled. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [“Regardless of the label attached to the cause of action, [the court] examine[s] the complaint's factual allegations to determine whether they state a cause of action on any available legal theory.”].)

Sixth Cause of Action for Sexual Harassment Pursuant to Civil Code section 51.9

Defendant LAUSD argues this cause of action fails to state a claim for sexual harassment.

In opposition, Plaintiff first argues the demurrer is procedurally defective because it misidentifies the nature of the sixth cause of action. Plaintiff’s Sixth Cause of Action is for Public Entity Liability for Failure to Perform Mandatory Duty pursuant to Education Code sections 200, 201, Civil Code section 51.9, and Title IX, 20 U.S.C section 1681. This procedural argument is not well taken; there is no confusion as to the nature of Defendant’s challenge to this cause of action.

The demurrer also argues that the Complaint fails to allege a statutory basis for the mandatory duty to act.

Government Code section 815.6 provides a statutory basis for direct liability of a public entity (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180), and states as follows: “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.”

As is apparent from the statutory language, there are three elements necessary to establish the liability of a public entity under Government Code section 815.6: (1) A mandatory duty imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury that the plaintiff suffered; and (3) the plaintiff's injury was proximately caused by the public entity's failure to discharge its mandatory duty. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898; de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 256–257.)

Civil Code section 51.9 defines sexual harassment in a variety of relationships. Section 51.9 provides a cause of action for sexual harassment against a “person” who is in a “business, service, or professional relationship” with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1).) The statute also identifies a nonexclusive list of persons with whom a relationship may exist, including physicians, elected officials, and teachers. But Civil Code section 51.9 applies to “persons” and does not apply to a public entity such as a school district. (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 755 [public school district not a “person” under section 51.9].) Plaintiff fails to address this point.

Further, with regards to Title IX (20 U.S.C. § 1681) a school district cannot be 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; Gebser v. Lago Vista Indep. School Dist. (1998) 524 U.S. 274, 281, 290.) The same standard applies for an action to recover money damages under Education Code section 220. (Roe v. Hesperia Unified School District, supra, 85 Cal.App.5th at 33; Donovan v. Poway Unified School District (2008) 167 Cal.App.4th 567, 605.) The Complaint does not allege facts to support these statutory requirements and Plaintiff does not address these statutes.

The demurrer to the sixth cause of action is sustained.

Legal Standard for Motions to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿(Code Civ. Proc. § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10, subds. (b)(1)-(3).)

Attorney Fees Request

Defendant moves to strike the request for attorney fees on the grounds that there is no legal basis for attorney fees against LAUSD, a public entity.

Statutory fees are recoverable under Civil Code section 52, which is part of the Unruh Civil Rights Acts. In relevant part, Civil Code section 52 states:

“(b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:

. . .

(3) Attorney’s fees as may be determined by the court.”

Based on the Court’s ruling on the sixth cause of action, there no longer remains a statutory basis for attorney fees under this statute.

Plaintiff also seeks attorney fees pursuant to Code of Civil Procedure section 1021.5.[1] However, Plaintiff does not discuss any of the multiple requirements to satisfy Code of Civil Procedure section 1021.5.

Section 1021.5, “ ‘a codification of the “private attorney general” doctrine, recognizes that “privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.” ’ ” (McCormick v. Public Employees’ Retirement System (2023) 90 Cal.App.5th 996, 1003.) Thus, “ ‘ “ ‘the fundamental objective of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.’ ” ’ ” (Ibid.)

Moreover, from the face of the Complaint, this action does not appear suited for attorney fees pursuant to this statute. In particular, this lawsuit seeking personal damages from LAUSD does not appear likely to provide a significant benefit to the public or large number of people. Nor does the financial burden of private enforcement appear to be satisfied.

Conclusion

The demurrer is sustained as to the sixth cause of action. The motion to strike portions of the Complaint is granted. Plaintiff shall have leave to amend. An amended pleading shall be served and filed no later than January 10, 2025.

[1] Plaintiff concedes that the request for attorney fees pursuant to Code of Civil Procedure section 1021.4 may be struck.