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. 



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.



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.



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.)




Judicial Notice

The Court takes judicial notice of the requested documents, pursuant to Evidence Code §§ 452-453.



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.



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.



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.