Judge: Elaine Lu, Case: 23STCV13950, Date: 2023-12-05 Tentative Ruling
Case Number: 23STCV13950 Hearing Date: December 5, 2023 Dept: 26
|
A.S.,
Plaintiff, v. los
angeles unified school district, et al. Defendants. |
Case No.: 23STCV13950 (Related to 21STCV40660) Hearing Date: December 5, 2023 [TENTATIVE] order RE: Defendant’s demurrer to the first
amended complaint |
Procedural
Background
On June 16, 2023, Plaintiff A.S.
(“Plaintiff”) filed the instant action arising from childhood sexual
abuse. On July 27, 2023, Plaintiff filed
the operative First Amended Complaint (“FAC”)
against Defendant Los Angeles Unified School District (“Defendant”). The FAC asserts two causes of action for (1)
Negligence against Defendant, (2) Negligence against Does 2-25, (3) Negligent
Hiring, Retention, and Supervision against Defendant, and (4) Negligent Hiring,
Retention, and Supervision against Does 2-25.
On August 16, 2023, the instant
action was deemed related to LASC Case No. 21STCV40660 and transferred to the
instant department. (Minute Order
8/16/23.)
On October 9, 2023, Defendant filed
the instant demurrer to the FAC. On
November 20, 2023, Plaintiff filed an opposition. On November 28, 2023, Defendant filed a
reply.
Allegations of the
Operative Complaint
The
FAC alleges that:
Plaintiff
was a student at Defendant. (FAC ¶
30.) “In approximately 1982 to 1983,
when Plaintiff was approximately thirteen (13) TO fourteen (14) years old and a
student at SCHOOL, Plaintiff was sexually abused and assaulted by Rodolphe
Charles Demordaigle, a science teacher at [Defendant] (hereinafter, “PERPETRATOR”),
on numerous occasions over the course of approximately eight (8) months. The
acts of sexual abuse and assault took place on [Defendant’s] premises. (FAC ¶ 32.)
“The
acts of sexual abuse and assault perpetrated against Plaintiff by PERPETRATOR
include, by way of example: PERPETRATOR fondled Plaintiff over and under the
clothes; PERPETRATOR forced Plaintiff to fondle PERPETRATOR’s bare penis;
PERPETRATOR digitally penetrated Plaintiff’s anus; PERPETRATOR forced Plaintiff
to perform oral copulation on PERPETRATOR; and PERPETRATOR performed oral
copulation on Plaintiff.” (FAC ¶
33.) “During the ongoing course of the
aforementioned sexual abuse, PERPETRATOR acted in inappropriate behavior
include, by way of example: PERPETRATOR openly touched other students in front
of one another; PERPETRATOR took students on trips outside of school hours;
PERPETRATOR purchased food for students on a regular basis; and PERPETRATOR was
alone with Plaintiff behind locked doors. PERPETRATOR’s inappropriate behavior
at SCHOOL which, observed by any reasonable person, would raise suspicion and
merit an investigation. Despite the foregoing, no action was taken, no
investigation was completed, and PERPETRATOR sexually abused and assaulted
Plaintiff.” (FAC ¶ 34.)
Request for
Judicial Notice
In
conjunction with the moving papers, Defendant requests that the Court take
judicial notice of:
1.
Notice of Entry
of Order in Jane Doe #1 et al. v. Acalanes Union High School District et al.,
Contra Costa County Superior Court, Case No. C22-02613 (“AUHSD Action”) on the
ruling by the Hon. Danielle K. Douglas dated June 13, 2023, on defendant’s
demurrer to plaintiffs’ complaint.
2.
Defendant
Acalanes Union High School District’s memorandum of points and authorities in
support of demurrer in the AUHSD Action filed February 23, 2023.
3.
Judge Douglas
tentative ruling in the AUHSD Action dated April 10, 2023.
4.
Judge Douglas
Order After Hearing requesting supplemental briefing in the AUHSD Action dated
May 3, 2023, filed on May 4, 2023
As the court may
take judicial notice of court and state records, (See Evid. Code, §
452(c),(d)), Defendant’s unopposed requests for judicial notice is granted.
However, the Court does not take judicial notice of the truth of assertions
within. (See Herrera v. Deutsche Bank
National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)
Oversized Reply
“Except in a
summary judgment or summary adjudication motion, no opening or responding
memorandum may exceed 15 pages.” (Cal.
Rules of Court, Rule 3.1113(d).)
Further, “[n]o reply or closing memorandum may exceed 10 pages.” (Ibid.) An oversized paper is considered the same as
a late-filed paper. (Id. at (g).) However, a party may apply for leave to file
a longer memorandum. (Id. at (e).) “A memorandum that exceeds 10 pages must
include a table of contents and a table of authorities. A memorandum that
exceeds 15 pages must also include an opening summary of argument.” (Id.
at (f).) The Court may refuse to
consider a late-filed paper. (Cal. Rules
of Court, Rule 3.1300(d).)
Here, the reply memorandum is 15
pages long and thus oversized. While the
Court – in its discretion – will consider the oversized reply, the Court will consider
only the first 10 pages.
Legal Standard
A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack; or from matters outside the pleading that are judicially
noticeable. (Blank v. Kirwan (1985)
39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.)
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 Dep’t of Water & Power (2006) 144 Cal. App. 4th
1216, 1228.) 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 pleadings
alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153
Cal. App. 3d 902, 905.) “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, supra, 147 Cal.App.4th at 747.)
Meet and Confer
Requirement
Code
of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a
demurrer pursuant to this chapter, the demurring party shall meet and confer¿in
person or by telephone¿with the party who filed the pleading that is subject to
demurrer for the purpose of determining whether an agreement can be reached
that would resolve the objections to be raised in the demurrer.” The parties
are to meet and confer at least five days before the date the responsive
pleading is due and if they are unable to meet the demurring party shall be
granted an automatic 30-day extension. (CCP § 430.41(a)(2).) The
demurring party must also file and serve a declaration detailing the meet and
confer efforts. (Id.¿at
(a)(3).)¿ If an amended pleading is filed, the parties must meet and confer
again before a demurrer may be filed to the amended pleading. (Id.¿at (a).)
Defendant has
fulfilled the meet and confer requirement.
(Quintana Decl. ¶¶ 2-4, Exh. A.)
Discussion
Entire
Action: Unconstitutionality
Defendant contends that the entire
action fails because AB 218, which amended Code of Civil Procedure section
340.1 and Government Code section 905(m) in 2019 to expand the statute of
limitations and revive otherwise time barred claims for childhood sexual abuse
cases, is unconstitutional. Defendant argues
that, as a matter of law, to permit this case to go forward based on the
legislature’s passage of AB 218 would constitute an unconstitutional gift of
public funds pursuant to Article XVI, section 6 of the California Constitution
(the “Gift Clause”). Defendant contends
that the legislature does not have the power to create a liability against the
state for any past act of negligence because the liability created would be a
gift of public funds. Defendant argues
that AB 218 violates the Gift Clause because it retroactively strips statutory
government immunity from public entities – such as Defendant – by eliminating
the claims presentation requirement (Gov. Code, § 905, subd. (m)) for childhood
sexual assault claims brought pursuant to Code of Civil Procedure section
340.1.
Defendant further asserts that
because the claims presentation requirement is, per case law, a substantive
element of Plaintiff’s claim, the revival in AB 218 is prohibited as a gift of
public funds. (Demurrer at pp.9-15.) Defendant
further contends that the public purpose exception to the gift of public funds
provision in the California Constitution does not apply here because when the
legislature created a liability for Defendant and other public entities where
one did not previously exist, the legislature created a private rather than
public purpose for the purposes of gifts of public funds. (Demurrer at pp. 10-13.)
In opposition, Plaintiff asserts
that AB 218 is not a gift under the California constitution pursuant to Coats
v. New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, 429 [“In
Assembly Bill 218, the Legislature has again attempted to balance the competing
concerns of protecting public entities from stale claims and allowing victims
of childhood sexual abuse to seek compensation. This time, the Legislature came
to a different conclusion, with an express revival provision for claims against
public entities as well as those against private defendants”].) Alternatively,
Plaintiff argues that even if AB 218 is a gift, there is a public purpose for
its enactment. (Opp. at pp. 4-9.)
The court finds that, even if AB 218
functions as an appropriation gifting public funds—a determination the Court
need not reach here—the public purpose exception applies. The test for “whether or not a proposed application
of public funds is to be deemed a gift within the meaning [of the gift clause],
… is … whether the money is to be used for a public or a private purpose.” (City
of Oakland v. Garrison (1924) 194 Cal. 298, 302.) “The determination of
what constitutes a public purpose is primarily a matter for the Legislature to
determine, and its discretion will not be disturbed by the courts so long as
that determination has a reasonable basis. [Citations.]” (County of Alameda
v. Carleson (1971) 5 Cal.3d 730, 746.) Legislative findings are to be
“given great weight and will be upheld unless they are found to be unreasonable
and arbitrary. [Citations.]” (California Hous. Fin. Agency v. Elliot
(1976) 17 Cal.3d 575, 583.)
Here, the challenged portions of AB
218 appear to be two different sections. First, the legislature removed a
portion of a 2008 amendment to Government Code section 905 (the claims
requirement statute) that eliminated the claims presentation requirement for
childhood sexual abuse cases for conduct arising on or after January 1, 2009.
Second, the legislature added a new subsection to Government Code section 905
making the changes to the statute retroactive.
Plaintiff points to various
expressly stated public purposes in passing these laws, such as legislative
comments that the law was passed, in part, to help prevent future assaults by
raising the cost for sexual assault of minors. Those same comments provide that
another purpose of the law is for the law to protect victims of sexual assault
rather than the perpetrators, who benefit from statutes of limitations. The
comments also provide “to help prevent future assaults by raising the costs for
this abuse, this bill [AB 218] extends the civil statute of limitations for
childhood sexual assault by 14 years, revives old claims for three years, and
eliminates existing limitations for claims against public institutions.” (Opp.
at p.7:1-4, Citing AB 218, Assembly
Floor Analysis Comments pp. 1-2 (August 30, 2019).)[1] The Court finds that this sufficiently states
a public purpose for the passage of AB 218 by the Legislature.
In reply, Defendant claims that
creating liability that did not previously exist and thus involves an invalid
claim serves no public purpose. Defendant argues that AB 218 creates invalid
claims by eliminating the substantive element of claim presentation for suits
involving personal injury against a local public entity.
However, the case law Defendant
cites in support of this proposition is distinguishable. For example, Conlin v. Board of Supervisors
of City and County and San Francisco (1893) 99 Cal. 17, involved
circumstances where the plaintiff was attempting to collect payment from the
city and county of San Francisco for contractual work performed pursuant to a
California law permitting that collection. The Supreme Court of California
found the law unconstitutional as violative of the gift clause because the law
created liability under circumstances where the plaintiff’s contract clearly
provided that the plaintiff proceeded with the contract with the “express
condition that in no case would the city and county of San Francisco be liable
for any portion of the expense of the said work or improvement, or for any delinquency
of persons or property assessed.” Thus,
the plaintiff in Conlin had no basis for expecting compensation from the
City or County of San Francisco from before the time of injury, and the
legislature simply created a liability that contradicted the terms of the
plaintiff’s contract. Here, by contrast,
any cause of action against the alleged perpetrator – Demordaigle – accrued at
the time the cause of action was complete with all of its elements. (Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal.4th 797, 806-807.) Those elements, viewed in the light most
favorable to the pleadings, accrued at the time of the alleged abuse in the 1980s.
Thus, the exposure to Defendant would
have been created at the same time under a negligence or negligent supervision
theory, such as here, subject to the claims presentation requirements at the
time. Moreover, in Shirk v. Vista
Unified School Dist. (2007) 42 Cal.4th 201, 213—a case cited by both
parties—the court noted that if the legislature “intended to … revive … the
claim representation requirement under the government claims statute, it could
have easily said so,” further implying the legislature’s ability and authority to
make the changes it did in AB 218 relating to subdivisions (m) and (p) in
Government Code section 905.
Accordingly, Defendant’s demurrer to
the FAC on the grounds that AB 218 is unconstitutional is OVERRULED.
Negligence
and Negligent Hiring, Supervision, and Retention: Sufficient Specificity
Defendant further contends that the
claim for negligence and negligent hiring, retention, and supervision is not
sufficiently alleged.
Pursuant to Government Code § 815,
“[a] public entity is not liable for an injury, whether such injury arises out
of an act or omission of the public entity or a public employee or any other
person.” (Gov. Code, § 815(a).) Thus, “[a]
public entity like the [County] is generally immune from liability, except as
provided by statute. (Gov. Code, § 815, subd. (a).)” (Doe v. Lawndale Elementary School Dist. (2021)
72 Cal.App.5th 113, 126, Fn. 4.)
One such statutory exception from the
general rule of government immunity arises from Government Code § 815.2. “A public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from
this section, have given rise to a cause of action against that employee or his
personal representative”, (Gov. Code, § 815.2(a)), except “where the employee
is immune from liability.” (Id. at (b)).) In sum, “notwithstanding the elimination of
common law tort liability for public entities, they remain liable under the
doctrine of respondeat superior for the actions of their employees.” (Lloyd v. County of Los Angeles (2009)
172 Cal.App.4th 320, 330.) “In other
words, ‘the general rule is that an employee of a public entity is liable for
his torts to the same extent as a private person (§ 820, subd. (a)) and the
public entity is vicariously liable for any injury which its employee causes (§
815.2, subd. (a)) to the same extent as a private employer (§ 815, subd.
(b)).’” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 868; see also Regents of
University of California v. Superior Court
(2018) 4 Cal.5th 607, 619.)
Thus, while the County is itself immune from liability, by statute, the
County is liable for injuries proximately caused by an act or omission of its
employee within the scope of employment
insofar as the employee would have been liable. (Gov. Code, § 815.2(a).) This liability extends to intentional and
negligent torts. (See e.g., Allison
v. County of Ventura (1977) 68 Cal.App.3d 689, 693.)
Here, the FAC
asserts two claims against Defendant for negligence and negligent hiring,
retention, and supervision through respondeat superior and specifically
identifies Government Code section 815.2, 815.4, and 815.6. (FAC ¶ 61.)
As claims for negligence, “[P]laintiff must allege (1) the defendant
owed the plaintiff a duty of care, (2) the defendant breached that duty, and
(3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP
(2013) 221 Cal.App.4th 49, 62.) However,
as these claims for negligence are based on statute, “the general rule that
statutory causes of action must be pleaded with particularity is
applicable.” (Lopez v. Southern Cal.
Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)
Here, the FAC alleges the elements of
negligence with sufficient specificity.
The FAC alleges that a duty arose because Plaintiff was a minor student
of Defendant, and the Perpetrator was an employee of Defendant. (FAC ¶¶ 12-15, 30-32.) This duty included exercising reasonable care
in hiring, retaining, and supervising the Perpetrator. (FAC ¶ 15.)
The duty owed to Plaintiff also included “a duty to establish and
implement policies and procedures in the exercise of reasonable care, for the
prevention of sexual abuse and/or assault, and protection of the safety of
students in [Defendant]’s care.” (FAC ¶
18.) This duty was breached when
Perpetrator sexually abused and assaulted Plaintiff. (FAC ¶ 33.)
Further, “[d]uring the ongoing course of the aforementioned sexual
abuse, PERPETRATOR acted in inappropriate behavior include, by way of example:
PERPETRATOR openly touched other students in front of one another; PERPETRATOR
took students on trips outside of school hours; PERPETRATOR purchased food for
students on a regular basis; and PERPETRATOR was alone with Plaintiff behind
locked doors. PERPETRATOR’s inappropriate behavior at [Defendant] which,
observed by any reasonable person, would raise suspicion and merit an
investigation. Despite the foregoing, no action was taken, no investigation was
completed, and PERPETRATOR sexually abused and assaulted Plaintiff.” (FAC ¶ 34.)
Thus, these factual allegations sufficiently state that Defendant – and
its agents – should have been aware of the misconduct by its employee
Perpetrator but negligently failed to take any action.
Accordingly, Defendant’s demurrer to the
FAC based on specificity is OVERRULED.
Compliance
with Code of Civil Procedure section 340.1
Defendant further contends that the
complaint fails because the FAC fails to allege compliance with Code of Civil
Procedure section 340.1. Defendant
claims that Plaintiff failed to file a certificate of merit. (See CCP § 340.1(k), [“The failure to file
certificates in accordance with this section shall be grounds for a demurrer
pursuant to Section 430.10 or a motion to strike pursuant to Section 435.”].)
Here, a certificate of merit has
been filed under seal as required by statute.
(CCP § 340.1(o), [“The court shall keep under seal and confidential from
the public and all parties to the litigation, other than the plaintiff, any and
all certificates of corroborative fact pursuant to subdivision (m).”].) As found by the Court – presided by the Honorable
Jon R. Takasugi – the certificate of merit was sufficient, and there was a
sufficient basis to seal the certificate of merit. (Minute Order 7/26/23.)
Accordingly, Defendant’s
demurrer to the FAC on the ground that no certificate of merit was filed and
that Plaintiff failed to comply with Code of Civil Procedure section 340.1 is
OVERRULED.
CONCLUSIONS AND
ORDER
Based on the foregoing, Defendant Los
Angeles Unified School District’s demurrer to the First Amended Complaint is
OVERRULED.
Defendant is to file an answer within
thirty (30) days of notice of this order.
The Court notes that Plaintiff has
reserved on the Court’s online Court Reservation System (CRS) a motion to
consolidate for hearing on April 19, 2024.
However, Plaintiff has not yet filed any moving papers. The related case 21STCV40660 is set for trial
on January 2, 2024. The parties are
ordered to meet and confer to discuss the possibility of stipulating to a consolidation
of the two actions for trial or for all purposes, and the parties must file a
joint statement no later than 12 noon on December 6, 2023. If Plaintiff ever intends to seek
consolidation of the two related matters, Plaintiff must file moving papers no
later than 10 am on December 8 and on the same day file and give notice of an ex
parte application to advance the hearing to a date before the current trial
date. In the absence of any stipulation
or noticed motion to consolidate being filed by 10 am on December 8, 2023, the
two matters shall be tried separately, and the related action will proceed to
trial as scheduled for January 2, 2024.
Moving Party is to give notice and file
proof of service of such.
DATED:
December ___, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court