Judge: Daniel M. Crowley, Case: 22STCV24335, Date: 2023-02-28 Tentative Ruling
Case Number: 22STCV24335 Hearing Date: February 28, 2023 Dept: 28
Defendants Montebello Unified School
District and David Hernandez’s Demurrer
Having
considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On July 28, 2022, Plaintiff Aiden
Zaeth Lopez (“Plaintiff”) filed this action against Defendants Montebello
Unified School District (“Montebello”), City of Bell Gardens (“City”), County
of Los Angeles (“County”), Los Angeles County Office of Education (“LACOE”),
California Department of Education (“CDE”) and David Hernandez (“Hernandez”)
for assault, battery, intentional infliction of emotional distress, negligence
and negligent hiring, supervision and retention.
On September 15, 2022, the Court
dismissed City, without prejudice, pursuant to Plaintiff's request. On October
3, 2022, the County filed an answer. On October 17, 2022, the Court dismissed
LACOE, without prejudice, pursuant to Plaintiff’s request. On November 2, 2022,
the Court dismissed CDE, with prejudice.
On
November 14, 2022, Plaintiff filed the FAC.
On
December 1, 2022, the County was dismissed, without prejudice.
On
January 13, 2023, Montebello and Hernandez (“Moving Defendants”) filed a
Demurrer to be heard on February 28, 2023. On February 14, 2023, Plaintiff
filed an opposition. On February 21, 2023, Moving Defendants filed a reply.
Trial is currently scheduled for January
25, 2024.
PARTY’S
REQUESTS
Moving
Defendants request the Court sustain the demurrer as to the causes of action
for negligence and negligent hiring, supervision and retention.
Plaintiff
requests the Court overrule the demurrer.
LEGAL STANDARD
CCP
§ 430.10 states: “The party against whom a complaint or cross-complaint has
been filed may object, by demurrer or answer as provided in Section 430.30, to
the pleading on any one or more of the following grounds: (a) The court has no
jurisdiction of the subject of the cause of action alleged in the pleading; (b)
The person who filed the pleading does not have the legal capacity to sue; (c)
There is another action pending between the same parties on the same cause of
action; (d) There is a defect or misjoinder of parties; (e) The pleading does
not state facts sufficient to constitute a cause of action; (f) The pleading is
uncertain. As used in this subdivision, “uncertain” includes ambiguous and
unintelligible; and (g) In an action founded upon a contract, it cannot be
ascertained from the pleading whether the contract is written, is oral, or is
implied by conduct.”
A
demurrer for sufficiency tests whether the complaint states a cause of
action. (Hahn v. Mirda (2007) 147
Cal. App. 4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be
apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters.
(SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902,
905.) Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Id.)
The only issue involved in a demurrer hearing is whether the complaint,
as it stands, unconnected with extraneous matters, states a cause of
action. (Hahn, 147 Cal.App.4th at
747.)
“The
elements of a negligence claim and a premises liability claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in
injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
“The
first element, duty, ‘may be imposed by law, be assumed by the defendant, or
exist by virtue of a special relationship.” (Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.)
“[A] school district and its
employees have a special relationship with the district's pupils, a
relationship arising from the mandatory character of school attendance and the
comprehensive control over students exercised by school personnel, ‘analogous
in many ways to the relationship between parents and their children.’ Because
of this special relationship, imposing obligations beyond what each person generally
owes others under Civil Code section 1714, the 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 injuries to a student
resulting from a teacher's sexual assault.” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 869-870, citations omitted).
“Negligence liability will be
imposed on an employer if it ‘knew or should have known that hiring the
employee created a particular risk or hazard and that particular harm
materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th
1133, 1139.)
DISCUSSION
Judicial
Notice
The
Court takes judicial notice of the requested documents, pursuant to Evidence
Code §§ 452-453.
Overview
Plaintiff
alleges that, while on Defendant’s playground, he was unexpectedly and
violently assaulted by other parties while in the presence of Defendants’
employees. Hernandez is identified as a “direct employee of Defendants.”
Plaintiff further alleges that Plaintiff had been bullied since the beginning
of the school year, and that Plaintiff’s mother informed Hernandez of the
bullying.
Negligence
Moving
Defendants argue that Plaintiff has not sufficiently pled a cause of action
against them, as the third-party's assault was not reasonably foreseeable. Due
to the nature of their special relationship as a school district and student, a
duty of care includes the duty to use reasonable means to protect students from
foreseeable injury at the hands of third parties acting negligently or
intentionally, in additional to a general duty of care. Moving Defendants specifically
note that the attack was “unexpected,” and thus not reasonably foreseeable. The
Court disagrees—in reading the complaint holistically, the Court finds that as
pled, Plaintiff could argue the attack was reasonably foreseeable. Plaintiff’s
mother put Moving Defendants on notice that Plaintiff was being bullied, and
Defendant acknowledged Plaintiff’s mother’s comment. It is potentially reasonably
foreseeable that a bullied child may become the victim of a violent attack by
the bullying party. Moving Defendants provided no case law with analogous
situations in support of their argument, instead relying on a single word used
to explain the fact the attack was unprovoked by Plaintiff.
Moving
Defendants also argue that the case was not pled with particularity, as it does
not provide the time of day, employees present, said employees’ duties, or what
specific part of the playground was at issue. Moving Defendants rely upon a
number of cases that hold that a Plaintiff must allege facts that support a
statutory basis of liability. Plaintiff has pled that here, in arguing that
Defendants were on notice that Plaintiff was being bullied and allowed
Plaintiff to be attacked while on school grounds, while being supervised by
Defendant’s employees. Moving Defendants cite to Leger v. Stockton Unified
School District (1988) 202 Cal.App.3d 1448, 1459, as a basis for the
particular elements they allege Plaintiff is missing. However, the questions
asked by the Leger court are not one-size-fits-all. They were
specifically tailored to the facts in that case, in which a plaintiff argued
that merely by being on school property in a school restroom, the school
district was responsible to protect the student from attacks. There were not
sufficient facts to give rise to negligence there, because there was no
indication that defendants were on notice as to any potential danger. Here,
Plaintiffs have provided sufficient facts to demonstrate notice, potential
foreseeability and also supervision of the injury that occurred on the
premises.
Negligent
Supervision, Training and Retention
Moving
Defendants argue that they are not liable for negligent supervision, training
and retention as Plaintiff has not alleged facts sufficient to show that MUSD
was aware that an employee was unfit at the time of hire or retention, and that
negligence resulted in harm to Plaintiff. The Court agrees. Plaintiff has made
conclusory statements that Defendants should have known their staff and
teachers were incompetent and unfit but fail to provide substantive facts in
support of these conclusions. Plaintiff’s entire allegation is based on the
premise that Defendants knew Plaintiff was being bullied, and failed to hire,
train, supervise and retain proper staff to prevent the bullying. However, there
are no facts provided to support this conclusion, such as previous issues with
bullying in said school or the length or severity of which Plaintiff was
bullied. A conclusory statement is not sufficient to establish the
foreseeability of an entire staff to act in response to a violent act. It is
unclear if staff or teachers specifically were on notice as to said bullying
and could have anticipated the attack. The Court sustains the demurrer.
CONCLUSION
Defendants
Montebello Unified School District and David Hernandez’s Demurrer is SUSTAINED,
with 30 days leave to amend, as to the fifth cause of action for negligent
supervision, training and retention. The demurrer is OVERRULED as to the fourth
cause of action.
Moving
party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this
ruling with the Court within five days.
The parties are directed to the header of this
tentative ruling for further instructions.