Judge Elaine W. Mandel, Case Number: 22STCV20393, Date: 2024-05-23 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22STCV20393, Date: 2024-05-23 Tentative Ruling

Case Number: 22STCV20393 Hearing Date: May 23, 2024 Dept: P

Tentative Ruling

Veach, et al. v. Los Angeles Unified School District, et al., Case No. 22STCV20393

Hearing date: May 23, 2024

Defendants Parmer and First Student’s Demurrer to SAC/Motion to Strike Punitive Damages

Defendant Cage’s Motion to Strike Punitive Damages

Plaintiff, who is non-verbal and unable to walk, sustained a tibial fracture after she was allegedly dropped and/or mishandled by defendant Parmer, an employee of transportation company defendant First Student, and LAUSD special education aide defendant Cage while being transported to school. After a demurrer to the FAC was sustained with leave to amend on October 20, 2023, the matter was transferred to this department. Defendants Parmer and First Student demur to all causes of action in the SAC, except negligence, and move to strike punitive damages. Defendant Cage moves to strike punitive damages.

Defendants’ request for judicial notice of the minute order of October 20, 2023 by the Hon. Hobbs is granted.

Defendant Parmer/First Student’s Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law. Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358. The court must accept as true all material factual allegations and affords them a liberal construction, but does not consider conclusions of fact or law, opinions, speculation or allegations contrary to law or judicially noticed facts. Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254. A demurrer will be sustained without leave to amend if there exists no reasonable possibility the defect can be cured by amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

First Cause of Action/Assault (asserted against PARMER ONLY)

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” So v. Shin (2013) 212 Cal.App.4th 652, 668-669; CACI 1301.

Plaintiff alleged: Parmer acted with intent to cause harmful and offensive contact to plaintiff. SAC ¶¶41, 43. Plaintiff was placed in great apprehension of imminent harmful and offensive contact with her person. SAC ¶ 42. At no time did plaintiff consent to any of Parmer’s acts. SAC ¶ 44. Plaintiff suffered physical injury, severe emotional distress, humiliation, embarrassment, mental distress, anxiety, loss in her right to education, and other consequential damages. SAC ¶ 47. Parmer’s conduct caused plaintiff’s injuries. SAC ¶¶ 47.

The SAC alleges all the requisite elements of a claim for assault. Notice pleading is sufficient at the demurrer stage. OVERRULED.

Second Cause of Action/Battery (asserted against PARMER ONLY)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 668-669; CACI 1300.

Plaintiff alleged: Parmer touched plaintiff. SAC ¶ 50. Parmer intended to harm and offend plaintiff. SAC ¶ 51. Plaintiff did not consent to Parmer touching her. SAC ¶ 52. Plaintiff was harmed. SAC ¶¶53, 57. A reasonable person would have been offended by Parmer’s touching of plaintiff. SAC ¶ 55.

The SAC alleges all the requisite elements of a claim for battery. Notice pleading is sufficient at the demurrer stage. OVERRULED.

Fourth Cause of Action/Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;(2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051; CACI 1600.

Plaintiff alleged: Defendants’ conduct constituted outrageous, unprivileged conduct, going beyond bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community such as Los Angeles. SAC ¶ 78. Defendants acted with reckless disregard for the probability that the actions would cause plaintiff to suffer emotional distress. SAC ¶ 79. Plaintiff suffered severe emotional distress as the result of defendants’ actions. SAC ¶ 80.

The SAC alleges all the requisite elements of a claim for IIED. Notice pleading is sufficient at the demurrer stage. OVERRULED.

Fifth Cause of Action/Negligent Infliction of Emotional Distress

“The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” Spates v. Dameron Hosp. Ass’n. (2003) 114 Cal.App.4th 208, 213.

Plaintiff alleged: Defendants are agents of LAUSD acting within the scope of their employment and agency with LAUSD. SAC ¶ 83. Defendants owed plaintiff a duty of care arising from LAUSD’s special relationship with plaintiff, who was a student at LAUSD. SAC ¶ 84. Defendants breached their duty of care by failing to report plaintiff’s injuries. SAC ¶ 86. Plaintiff suffered severe emotional distress due to defendants’ failure to report her injuries. SAC ¶ 90.

The SAC alleges all the requisite elements of a claim for NIED and alleges the failure to report the injuries. OVERRULED.

Sixth Cause of Action/Negligent Supervision of Student (Gov. Code § 815.6) (asserted against FIRST STUDENT ONLY)

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Gov. Code § 815.6.

Education Code § 44807 provides 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.”

First Student is not a public entity. Plaintiff does not allege such, and the Education Code is not alleged to apply to First Student. SUSTAINED WITHOUT LEAVE TO AMEND.

Seventh Cause of Action/Negligent Hiring, Retention, or Supervision (asserted against FIRST STUDENT ONLY)

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837; CACI 426.

Plaintiff alleged: Parmer was an employee of First Student performing the duties of bus driver. SAC ¶ 20. Parmer was unfit or incompetent to be employed by First Student. SAC ¶ 115. First Student knew or should have known that the child abuse of plaintiff by Parmer was likely to occur absent reasonable and appropriate safeguards. SAC ¶ 116. Harm occurred. See, e.g., ¶ 123.

The SAC fails to allege any specific facts showing Parmer was incompetent or unfit. The allegations are conclusory, unsupported by any factual allegations. SUSTAINED.

Eighth Cause of Action/Violation of the Ralph Civil Rights Act (Civ. Code § 51.7)

“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that [defendant] aided, incited, or conspired in the denial of a protected right.” Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291; CACI 3063.

Plaintiff alleged Parmer subjected plaintiff to violence and/or intimidation by threats of violence against her person on account of her disability, medical condition, genetic abnormalities and inability to communicate. SAC ¶ 131. Parmer acted to aid, incite, and/or conspire with the other defendants to deny plaintiff her right to be free from any violence or intimidation. Id.

The SAC fails to allege facts showing plaintiff was subject to violence on account of her disability. Nor are factual allegations made as to how Parmer is alleged to have acted to conspire with other defendants to deny plaintiff’s right to be free from violence. The allegations are simply conclusory. SUSTAINED.

Ninth Cause of Action/Violation of the Unruh Civil Rights Act (Civ. Code §§ 51-52) (asserted against FIRST STUDENT ONLY)

“All persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability, medical condition, genetic information, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Civ. Code § 51(a); see also CACI 3060.

Plaintiff alleged: First Student denied plaintiff her full and equal accommodations, advantages, facilities, privileges, and services when they did not protect her from the threat and ultimately acts of physical violence that she was the victim of. SAC ¶ 140. A substantial motivating reason was that plaintiff was disabled, had a medical condition, had genetic abnormalities, and had an inability to communicate of the dangers around her. SAC ¶ 141. Plaintiff was harmed as a result.

The SAC fails to allege any facts to establish that the incident was motivated by plaintiff’s disability, nor that plaintiff was denied accommodation, facilities or services. SUSTAINED.

Tenth Cause of Action/Violation of the Bane Act (Civ. Code §52.1)

“Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute in their own name and on their own behalf a civil action for damages . . . to protect the peaceable exercise or enjoyment of the right or rights secured.” Civ. Code §52.1(c); see also CACI 3066.

Under Civ. Code §52.1(b), conduct is sanctionable “[i]f a person or persons . . . interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.”

Plaintiff alleged: School children have the right to be free from physical violence, threats of violence, and/or injury to either person or property. SAC ¶ 147. Defendants acted violently against plaintiff and interfered with her rights with threats of violent acts, intimidation, and coercion. SAC ¶ 149. Defendants intended to interfere with plaintiff’s rights and cause physical and emotional distress to plaintiff. SAC ¶ 151. First Student ratified Parmer’s conduct. SAC ¶ 152.

The SAC fails to allege any facts that defendants intended to interfere with plaintiff’s rights and/or cause harm. SUSTAINED without leave to amend.

The factual basis for all causes of action may be tested at a later time, such as via a motion for summary judgment or summary adjudication. For purposes of pleading, the allegations of the SAC are sufficient as to the first, second, fourth and fifth causes of action. The allegations made must be taken as true for purposes of demurrer. The demurrer is overruled as to these causes of action.

As to the sixth through tenth causes of action, the demurrer is sustained. The SAC fails to allege any facts, only bare assertions that mirror the required elements. Though pleading requirements are liberal, this is not enough to apprise defendant of the specific allegations made.

Parmer/First Student’s Motion to Strike Punitive Damages

Defendants move to strike punitive damages, as well as the fifth cause of action for NIED and the seventh cause of action for negligent hiring, retention and supervision in their entirety.

As discussed above, plaintiff alleged conduct, including mishandling of plaintiff and failure to report, that warrants punitive damages. DENIED.

Cage’s Motion to Strike Punitive Damages

Punitive damages are recoverable against a defendant who acts with fraud, malice, or oppression. Cal. Civ. Code §3294. Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civ. Code §3294(c)(1).

Defendant Cage was an employee of LAUSD, performing the duties of a Special Education Aide and responsible for, among other things, escorting and supervising students participating in the School’s special education program, including during their transportation to and from school. SAC ¶ 21. Cage was responsible for loading and unloading special education students, such as plaintiff, onto and off of the school bus and ensuring their safety while being transported by the Bus Service. SAC ¶ 22. On September 10, 2021, Cage loaded and unloaded plaintiff, and her wheelchair, onto and off of the school bus and did so with willful disregard, causing plaintiff to be physically abused, mishandled, dropped and/or forcibly pushed her in and out of the wheelchair, causing injury to plaintiff, including a tibia fracture. SAC ¶ 24. Cage had a duty to report this incident, but failed to do so. Id.

The allegations of mishandling and failure to report the incident are sufficient, at the pleading stage, to allege willful and conscious disregard of plaintiff’s safety, justifying the request for punitive damages. DENIED.