Judge: Christian R. Gullon, Case: 22PSCV01999, Date: 2023-06-29 Tentative Ruling

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Case Number: 22PSCV01999    Hearing Date: October 11, 2023    Dept: O

Tentative Ruling

(1)   DEFENDANT ROE SCHOOL DISTRICT’S NOTICE OF DEMURRER AND DEMURRER OF TO PLAINTIFF’S SECOND AMENDED COMPLAINT is SUSTAINED without leave to amend.

(2)   DEFENDANT ROE SCHOOL DISTRICT’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT is MOOT.

The action is dismissed.

Background

This case arises from a sexual assault. Plaintiff John Doe (“Plaintiff”) alleges the following against Defendant Roe School District:[1] In 1978, Plaintiff, when Plaintiff 14 years old, he was the victim of sexual abuse by his then- English high school teacher, Fred Contreras (hereinafter, “Perpetrator”), who is now deceased. Plaintiff alleges that Defendants knew or should have known that the Perpetrator engaged in unlawful conduct and that Defendants failed to take prevent such abuse.

On November 22, 2022, Plaintiff filed suit.

On December 30, 2022, Plaintiff filed his FAC asserting the following causes of action (“COA”):

On May 30, 2023, Defendants filed a demurrer with a motion to strike (MTS), which the court sustained with leave to amend on 6/30/2023.[2]

On July 31, 2023, Plaintiff filed a second amended complaint (SAC) asserting two causes of action for:

1.     Negligence

2.     Negligent Supervision/Training/Hiring/Retention[3]

On August 30, 2023, Defendant filed the instant demurrer with an MTS.

On September 28, 2023, Plaintiff filed its oppositions to the demurrer and MTS.

On October 4, 2023, Defendant filed its Reply.

Discussion

Defendant only demurrers on the constitutional defense. (See Notice of Demurrer p. 2:1-5.) Specifically, Defendant claims Plaintiff’s complaint must be dismissed as the revival provisions of the Code of Civil Procedure (“CCP”) section 340.1 does not also revive the Government Claim filing requirement, suggesting Government Code section 905 subdivision (m) is unconstitutional. Defendant argues “the Legislature’s subsequent effort to create liability where there previously was none by Assembly Bill (AB) 218) constitutes an improper gift of public funds and violates California Constitution, Article XVI, section 6.[4] Accordingly, unlike its previous demurrer, Defendant has not demurred on the grounds that the negligence-based causes of action fail to meet the heightened specificity requirements for action(s) asserted against a public entity. Had Defendant done so, the court would have sustained the demurrer without leave to amend because the SAC, despite previous leave to amend, fails to state any specifics as to how and why the school district knew or should have known about Contreras’ criminal conduct. In fact, the SAC, while it withdraws a majority of the COAs, is largely similar to the FAC in the nature of its substantive allegations.

However, Defendant has also filed a MTS, which reads akin to a demurrer because it references Plaintiff’s failure to abide by the heightened pleading standard and assertion of vague facts. See, for example, the following arguments:

-         “However, as to Plaintiff’s first two negligence claims, Plaintiff’s SAC continues to suffer from the same deficiencies that exist in the FAC.” See MTS p. 3:2-3

-         “[S]ome allegations reference ‘mandatory duties’ but do not identify a statute; and other allegations generally identify a statute but do not plead the allegation with particularity, showing every fact essential to the existence of statutory liability.”] p. 3:3:10-14

-         [“Causes of action against a public entity must be pleaded with particularity, showing every fact essential to the existence of statutory liability.” p. 4:4-5

-        “Portions of Plaintiff’s First and Second Causes of Action—claims for General Negligence and Negligent Supervision/Training/Hiring/Retention—are uncertain, ambiguous, unintelligible and fail to state a claim. It is difficult to decipher what claims are being made against District and what the issues are.” p. 4:16-19 (emphasis and underline added).

-        “Plaintiff’s SAC must allege the ultimate facts necessary to the statement of an actionable claim.” [internal citation omitted]. The essential elements to be pleaded to state a cause of action are determined by the substantive law. Portion of [the SAC] …simply reference a statute but fail to discuss the requisite elements, are subject to striking as these causes of action are ambiguous, uncertain, unintelligible, and fail to state a claim.” p. 5:18-23.

-        “Plaintiff’s Opposition not only falls short in responding to District’s arguments but also fails to address the Court’s order dated June 29, 2023. There, the Court dismissed Plaintiff’s FAC, emphasizing the need for particularity when pleading against public entities . . . . Yet, the SAC continues to provide no discussion as to the elements of these claims or how District allegedly violated these statutes. Instead, in a single sentence, Plaintiff continues, without any basis, to assert District breached these duties” (Reply p. 3:7-10)

“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [internal citation omitted].” While labeled a motion to strike, it attacks Plaintiff’s negligence COAs on the ground that the SAC fails to state facts sufficient to constitute a cause of action, effectively seeking a judgment on the pleadings.  Thus, the court construes the MTS as a demurrer. (See e.g., Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1283 [“We ignore erroneous or confusing labels in the pleading and look to its gravamen to determine what cause of action is stated.”]; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [“The gist of these objections is that the complaint failed to state facts sufficient to constitute a cause of action. This is ground not for a motion to strike, but for a general demurrer. (See Code Civ. Proc., § 430.10, subd. (e).) We will therefore view the order as one sustaining such a demurrer without leave to amend. “].)[5]

To the extent that Plaintiff files an opposition, similar to the opposition to the demurrer to the FAC, Plaintiff again claims that it has provided the necessary certainty at the pleading stage without any such showing.

Conclusion

Based on the foregoing, while the court acknowledges the sensitivity and severity of the factual allegations against Contreras, Plaintiff has not asserted how the District is liable. Therefore, the court SUSTAINS the demurrer without leave to amend, rendering the MTS moot.