Judge: Christian R. Gullon, Case: 24PSCV00811, Date: 2024-06-27 Tentative Ruling

Case Number: 24PSCV00811    Hearing Date: June 27, 2024    Dept: O

Tentative Ruling

(1)   DEFENDANT WEST COVINA UNIFIED SCHOOL DISTRICT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT is SUSTAINED with leave to amend; Education Code section 44807 does provide a mandatory duty but negligence per se is not a COA.  

(2)   DEFENDANT WEST COVINA UNIFIED SCHOOL DISTRICT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT is DENIED.

Background

This case arises from bullying plaintiff experienced in middle and high school. Plaintiff MALACHI SAUCEDO, a minor, by and through his Guardian Ad Litem, Jimmy Luera alleges the following against Defendant WEST COVINA UNIFIED SCHOOL DISTRICT (“Defendant” or “District”): While in middle school, beginning in 2017 and on over 30 occasions, Plaintiff was the target of bullying, threats, and assaults by male students at his middle school. (Complaint p. 4.) Plaintiff reported the assaults, but his complaints were ignored. In 2020, due to the repeated bullying, Plaintiff was removed from school, and home-schooled. In 2023, he returned to high school, but the harassment continued. On one occasion, on July 6, 2023, Plaintiff was severely beaten during lunch recess, resulting in traumatic brain injury, neck injuries, and other trauma. (Complaint p. 5.)

On March 15, 2024, Plaintiff filed suit for:

1.     Negligence (Gov. Code §§ 815.2 & 820)

2.     NEGLIGENCE PER SE / BREACH OF MANDATORY DUTY (Education Code §44807) (v. District and Does 1-20 wherein Does 1-10 are identified as those “who owed a duty of care to Plaintiff and breached that duty of care, as described in more detail herein, and/or had the duty to control the conduct of Plaintiff’s fellow students who bullied and assaulted Plaintiff”)

3.     ASSAULT (v. student(s))

4.     Battery (v. student(s))

5.     Negligence (Does 21-30 defined as “persons, entities or businesses who owed a duty of care to Plaintiff and/or his parents,or had a duty to control the conduct of the alleged perpetrators, DOES 31-40.”)

On May 31, 2024, Defendant filed the instant demurrer and motion to strike.

On June 13, 2024, Plaintiff filed an opposition to both.

On June 20, 2024, Defendant filed a reply.

Discussion

Defendant demurs to the 2^nd COA for Negligence Per Se/Breach of Mandatory Duty on the grounds that it fails to state facts sufficient to constitute a COA against the District.

The 2^nd COA, in pertinent part, provides the following:

Defendant[] had a special relationship with Plaintiff and an affirmative duty to take all reasonable steps to protect Plaintiff.  Additionally, under Education Code §44807, Defendants had a duty to account for the health and safety of their students during recess and on playgrounds. Consequently, Defendants breached such duty by failing to protect Plaintiff during the lunch recess on July 6, 2023. (Complaint ¶33, emphasis added.)

Specifically, the District argues the following:

i.                 Plaintiff’s reliance upon Education Code section 44807 is misplaced as it imposes a discretionary, not mandatory, duty on the District, and it was not designed to protect against the kinds of injuries suffered by Plaintiff (Motion p. 1, citing Clausing v. San Franciso Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239).

ii.               Negligence per se is not an appropriate cause of action under the law.

1.     Whether Education Code section 44807 Provides a Mandatory Duty

To impose liability against a public entity under Government Code section 815.6, liability must be based on a statute that imposes a mandatory duty, rather than a discretionary function of said public entity. (Demurrer p. 3, citing Nunn v. State of California (1984) 35 Ca1.3d 616, 625.) The term "mandatory duty" refers to an "obligatory duty which a government entity is required to perform, as opposed to a permissive power, which a government entity may exercise or not at it chooses." (Demurrer p. 4, citing Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1242. See also, Posey v. State of California (1986) 180 Cal.App.3d 836, 848.)

Education Code § 44807 states in pertinent part, that “[e]very teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess."

Defendant argues that this statute does not impose a mandatory duty. But Defendant’s authority and analysis does not support this proposition.

First, Defendant’s papers focus on the allegation that one of the tormentors antagonized Plaintiff over Facetime/speakerphone (Complaint ¶21) to seemingly argue that Plaintiff’s injuries did not arise on campus. (Demurrer p. 4:19-21 [“[Education Code section 44807] certainly does not establish a duty to supervise or otherwise monitor the cellular usage of its students let alone the behavior of its students outside of school., Reply p. 3:14-17.) But Defendant narrowly reads this allegation;[1] the complaint does not suggest that the Facetime calls happened off campus (i.e., one can make a call on campus). Even if the Facetime calls happened off campus, the 2^nd COA specifically focuses on the July 6, 2023 fight that happened during lunch recess, which Defendant does not squarely address.[2] Thus, as there was an incident that happened on campus during recess, Education Code section 44807 may apply.

Second, Defendant cites to Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 606 for its contention that the statute does not provide for a mandatory duty. (Demurrer p. 4.) However, Jimenez does not provide for such a rule. In fact, the cases cited by the Jimenez court support the finding of a mandatory duty afforded by Education Code section 44807. For example, the Jimenez court referenced Lucas v. Fresno Unified School Dist. (1993) 14 Cal.App.4th 866 wherein a student was injured during morning recess after numerous students threw dirt clods at one another. (Id. at p. 868.) In reversing the trial court’s decision granting the district’s motion for summary judgment, the appellate court observed that “[s]upervision during recess and lunch periods is required, in part, so that discipline may be maintained and student conduct regulated. Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.” (Id. at p 872, quoting Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747-748.) And as a student, the plaintiff Lucas was within the class of persons Education Code section 44807 who was designed to be protected. (Lucas, supra, 14 Cal.App.4th at p. 872.) Based thereon, the court held that Education Code section 44807 (and Code of regulations Title 5, Section 5552) “clearly defined legal duty on the part of the District to supervise plaintiff … to prevent precisely what occurred in the case at bar.” (Id, emphasis and underline added.) Similarly, here, consistent with the pronouncements of Dailey and Lucas, supervision during lunch was required to ensure “serious physical harm” does not happen and because of the alleged lack thereof, Plaintiff was seriously injured.

To the extent that Defendant cites to Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 939 to support its argument that the statute applies to teachers, not the district, that is not what Hoff proposes. In Hoff, the state Supreme Court concluded that neither the school district nor any of its employees owed a duty to Hoff, a nonstudent who was not on school property at the time of the accident. For that reason—that Hoff was a member of the general public and not on school property, the court concluded that Hoff may not state a negligence claim based on the duty of teachers under Education Code section 44807. (Id. at pp. 938-939.) Here, in contrast, Plaintiff’s injuries are the very kind that the Legislature intended to prevent.

Accordingly, absent authority that Education Code section 44807 does not provide a mandatory duty (as illustrated otherwise by various cases), the court OVERRULES the demurrer on said grounds.[3]

2.     Negligence Per Se

In opposition, Plaintiff contends that negligence per se action is a cause of action by citing to Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371. Though, not addressed in the Reply, Toste still supports the well-established understanding that negligence per is an evidentiary doctrine, not a separate cause of action. (See e.g., Beaver v. Tarsadia Hotels, 29 F. Supp. 3d 1294 (S.D. Cal. 2014), aff'd on other grounds, 816 F.3d 1170 (9th Cir. 2016) (applying California law).

Therefore, as negligence per se doctrine does not provide a duty of care but may establish a relevant standard when a duty already exists,[4] the court SUSTAINS the demurrer on this ground with leave to amend.

Conclusion

In sum, as Education Code section 44807 provides a mandatory duty that the District was to monitor the students during lunch recess and the allegation is that the District failed to do so resulting in injuries to Plaintiff, then the complaint does state a valid COA for breach of mandatory duty against the District. Consequently, the MTS references to the education code section 44807 is DENIED. That said, as negligence per se is not a COA (and Plaintiff has already pled negligence via the 1^st COA which requires a mandatory duty), the court SUSTAINS the demurrer with leave to amend.