Judge: Douglas W. Stern, Case: 23STCV13393, Date: 2023-09-11 Tentative Ruling
Case Number: 23STCV13393 Hearing Date: December 4, 2023 Dept: 68
Raymond L. Menefee vs. El
Camino Community College, et al.; 23STCV13393
MOVING PARTIES: Defendants El Camino
Community College District, Jason V. Davidson, Gary Greco, Walter Cox, and
Jaynie Ishikawa
Demurrer to Second Amended Complaint with
Motion to Strike
I.
BACKGROUND
Plaintiff Raymond L. Menefee’s Second
Amended Complaint (SAC) alleges that he was discriminated against by Defendant
El Camino Community College District and some of its employees. Plaintiff’s SAC
alleges that he is disabled, and that his disabilities are Autistic Spectrum
Disorder and non-epileptic seizures (PNES). (SAC, p. 7.) He claims that one of
the instructors, Jason A. Davidson, played loud music before an online class
and that this overstimulated Plaintiff. (SAC, pp. 3-4.) Though he was allowed
to leave the class when he felt overstimulated, Plaintiff alleges that his
request that Davidson stop playing the music was denied. (SAC, pp. 4-5.)
Plaintiff also alleges that he had a seizure because of the loud music (SAC, p.
7), though the medical record that he attached as Exhibit A to his SAC appears
to indicate that the seizure was caused by stress related to the situation.
(SAC, Ex. A, p. 1.)
Plaintiff also alleges that he was
removed from class on April 7, 2023, but he does not say why this happened. (SAC,
p. 5) He further alleges that he sought remedies but nothing was ever done. (SAC,
pp. 5-6.)
The SAC alleges two causes of action
for (1) Violation of Cal. Ed. Code § 66270; and (2) Violation of Cal. Gov. Code
§ 11135. Defendants demur to both of the causes of action and filed a motion to
strike.
No opposition has been filed.
II. ANALYSIS
A. The Demurrer
As a
general matter, in a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a
demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the
plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
1. First Cause of Action for Violation of Cal. Ed. Code §
66270
Defendants demur to Plaintiff’s
First Cause of Action on the basis that the cause of action fails to state
facts sufficient to allege any cause of action against Defendants.
California Education Code § 66270 provides, “No
person shall be subjected to discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or ethnicity, religion,
sexual orientation, or any characteristic listed or defined in Section 11135 of
the Government Code or any other characteristic that is contained in the
prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the
Penal Code, including immigration status, in any program or activity conducted
by any postsecondary educational institution that receives, or benefits from,
state financial assistance or enrolls students who receive state student
financial aid.”
Because all government tort liability flows from the
California Tort Claims Act, the plaintiff must plead facts sufficient to show
their cause of action falls outside the scope of any applicable statutory
immunity. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803,
809.) Thus, a plaintiff must plead with particularity every fact essential to
the existence of statutory liability (similar to the pleading requirements for
fraud). (Susman, supra, 269 Cal.App.2d 803, 809; Cochran v.
Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 410 (citing Peter W v.
San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819 [“To state a
cause of action against a public entity, every fact material to the existence
of its statutory liability must be pleaded with particularity.”].)
Defendants argue that this cause of action fails
because Plaintiff has not pled it with particularity. Plaintiff did not say specifically
when the alleged incidents involving the loud music took place, just that they
happened “On or About February 2023, During the Spring 2021 semester” (SAC, p. 4),
which does not make sense. It is also not clear how the alleged discriminatory
conduct harmed Plaintiff, because Plaintiff was able to attend the class after
the music stopped playing and was allowed to leave the class if he felt
overstimulated. (SAC, p. 4.)
Plaintiff’s SAC does not allege what specific
services he should have been entitled to that he did not receive. Without more
specific details regarding what accommodations should have been made that were
not already provided, and how he was discriminated against, Plaintiff cannot
proceed with this cause of action.
Defendants’ demurrer to Plaintiff’s First Cause of
Action is SUSTAINED with leave to amend.
2. Second Cause of Action for Violation
of Cal. Gov. Code § 11135
Defendants demur to Plaintiff’s
Second Cause of Action on the basis that the cause of action fails to state
facts sufficient to allege any cause of action against Defendants.
California
Government Code § 11135(a) provides in relevant part, “No person in the State
of California shall, on the basis of sex, race, color, religion, ancestry,
national origin, ethnic group identification, age, mental disability, physical
disability, medical condition, genetic information, marital status, or sexual
orientation, be unlawfully denied full and equal access to the benefits of, or
be unlawfully subjected to discrimination under any program or activity that is
conducted, operated, or administered by the state or by any state agency, is
funded directly by the state, or receives any financial assistance from the
state.”
Similar
to the previous cause of action, Plaintiff has failed to plead this cause of
action with particularity because he has not alleged how Defendants’ conduct
amounted to discrimination. He has also not pleaded with particularity the
specific incidents of discriminatory conduct. Without more specific
allegations, Plaintiff cannot maintain this cause of action.
Defendants’
demurrer to Plaintiff’s Second Cause of Action is SUSTAINED with leave to
amend.
B.
Motion to Strike
Defendants
move to strike Plaintiff’s statement that Plaintiff should be entitled to “accommodations
and services necessary for Plaintiff to benefit from a free and public higher education”
from Plaintiff’s prayer for relief. (SAC, p. 9, line 24.)
Where a defect in a pleading cannot be reached by
demurrer, a motion to strike can address the defect. (CCP §435(b)(2).) CCP §
436 provides:
“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.”
Plaintiff has not provided any authority or basis
for why he should be entitled to a “free” public higher education.
Plaintiff’s statement regarding a free higher
education on p. 9, lines 24 of the SAC is stricken from the SAC.
III. ORDER
1.
Defendants’ demurrer to Plaintiff’s First and
Second Causes of Action is SUSTAINED with leave to amend.
2.
Defendants’ motion to strike is GRANTED.
3.
Plaintiff is given 20 days to amend his Second
Amended Complaint.