Judge: Frank M. Tavelman, Case: 19STCV38886, Date: 2023-02-10 Tentative Ruling

Case Number: 19STCV38886    Hearing Date: February 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS: 

Ze Yu Bei aka Kevin Bei, a minor, through his guardian ad litem, Tian Le Bei ("Plaintiff") filed suit against Arcadia Unified School District ("AUSD"), City of Arcadia ("Arcadia"), and James O'Brien ("O'Brien") (collectively, "Defendants"), alleging that O'Brien harassed and assaulted Plaintiff over the course of several weeks in 2019. Plaintiff filed a Third Amended Complaint ("3AC") on December 13, 2022, alleging six causes of action: (1) Negligence; (2) Battery (against O'Brien only); (3) Assault (against O'Brien only); (4) Intentional Infliction of Emotional Distress; (5) Negligent Infliction of Emotional Distress; and (6) Interference with Exercise of Civil Rights.

HISTORY: 

Defendants filed and served their Demurrer and Motion to Strike on January 12, 2023. Plaintiff thereafter attempted to file a Fourth Amended Complaint on January 26, 2023. Plaintiff’s Fourth Amended Complaint was rejected by the court as Plaintiff did not request leave to file. Plaintiff has issued no opposition to the Demurrer and Motion to strike.

RELIEF REQUESTED:

AUSD demurs to Plaintiff’s first, fourth, fifth and sixth cause of action.

O’Brien demurs to the first, fifth and sixth cause of action.

AUSD move to strike Plaintiff’s first, fourth, fifth and sixth cause of action.

O’Brien moves to strike the first, fifth and sixth cause of action.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and, or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], 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.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike 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.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

II.                 MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Upon review of the record the Court is satisfied the meet and confer requirements have been met. (Doumanian Decl.)

III.              MERITS

AUSD’s Demurrer to the First, Fourth, and Fifth Causes of Action

AUSD demurs to the first, fourth, and fifth causes of action claiming that they are common law negligence/tort claims not based in statute.

AUSD argues that they have no liability as a function of Government Code § 815, which reads “Except as otherwise provided by statute: (a) 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.” AUSD argues this section grants them immunity from claims arising from actions of their employees unless those claims are based in statute. However, this code section is not dispositive of all such actions against public entities.

Government Code § 815.2(a) provides that “ 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 [the employee’s] 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” Under this code section California law allows for claims of vicarious liability to be brought against School districts which claim negligence of a school’s employee and failure to protect (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.) Plaintiff’s claims in the first, fourth and fifth causes of action arise from the conduct of O’Brien, a district employee, and seek to hold AUSD vicariously liable for injuries that resulted.

AUSD also includes in their demurrer an argument regarding Gov. Code § 815(b). This section reads “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”  AUSD argues that O’Brien as an employee of the school district was acting within his discretion when he committed the alleged acts against Plaintiff. AUSD argues that O’Brien is therefore immune under the Gov. Code § 820.2 and AUSD can be subject to no vicarious liability.

The Court does not believe O’Brien alleged actions qualify as an act within his discretion as provided by Gov. Code § 820.2. The primary case interpreting whether an act of an employee is one within its discretion is Johnson v. State (1968) 69 Cal.2d 782. The California Supreme Court held that the mere existence of a discretionary choice in the act to be performed does not qualify an act under 820.2, as nearly every act by a public employee involves some amount of discretion. (Id. at 788.) Instead, it was held that immunity should only attached to those decisions which involve “basic policy” choice which constitute an exercise of discretion by a coordinate branch of government. (Id. at 793.)

The Court finds that the alleged acts of harassing Plaintiff and striking him on the head do not fall within the scope of basic policy choices. It cannot be said on demurrer that this code section renders O’Brien is immune from liability, and AUSD immune from vicarious liability. As such, the Court OVERRULES AUSD’s demurrer with respect to the first, fourth and fifth causes of action.

O’Brien’s Demurrer to the First and Fifth Causes of Action

O’Brien demurs to the first and fifth cause of action, arguing that they are vague and uncertain as they don’t allege any acts of negligence. Defendants do not brief this issue outside of their previously discussed claims of statutory immunity. Upon review of the pleadings, the Court determines that the cause of action for negligence is sufficiently pled. As such, O’Brien’s demurrer to the first and fifth cause of action is OVERRULED.

AUSD and O’Brien’s Demurrer to the Sixth Cause of Action

Plaintiff’s Sixth Cause of Action for Interference with Exercise of Civil Rights amalgamates several civil rights claims into one. Plaintiff claims violations of the Bane Act (Cal. Civ. Code §52.1), and the Ralph Act (Cal. Civ. Code § 51.7.) Presumably the rights interfered with are the right to be free of bodily harm and personal insult (Cal. Civ. Code §43), and the right to free education (Art. IX, Section 5 of the Cal. Constitution).

Defendants first argue that AUSD cannot be sued for damages under the Unruh Civil Rights Act pursuant to Brennon v Superior Court (2020) 57 Cal. App. 5th 367. The Court notes that Plaintiff does not advance any claims regarding the Unruh Civil Rights Act in the 3AC.

Defendants argue that Plaintiff fails to allege facts sufficient to sustain a cause of action for the Bane Act and the Ralph Act.

The elements of a Bane Act violation are: (1) Defendant acted violently against Plaintiff to prevent him from exercising his right or to retaliate against Plaintiff for having exercised his right, (2) that Defendant intended to deprive Plaintiff of his enjoyment of the interests protected by the right, (3) That Plaintiff was harmed; and (4) That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Cal. Civ. Jury Instructions No. 3066.)

Plaintiff alleges no facts which support that AUSD or O’Brien acted with intent to prevent him from exercising a civil right or to retaliate against him for having done so.

The elements of a Ralph Act violation are: (1) Defendant acted violently against Plaintiff, (2) that a substantial motivating reason for Defendant’s conduct was their perception of Plaintiff’s race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, citizenship, primary language, immigration status, or position in a labor dispute  (3) That Plaintiff was harmed; and (4) That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Cal. Civ. Jury Instructions No. 3063.)

Plaintiff alleges no facts which support that AUSD or O’Brien acted with motivation based on their perception of Plaintiff as any of the identifiable characteristics.

The Court finds that Plaintiff has not alleged fact sufficient to sustain its cause of action for interference with civil rights. The Court finds that Plaintiff may be able to allege such facts with respect to the intent of AUSD and O’Brien, but fails to do so here. As such, the Court SUSTAINS the demurrer with respect to the sixth cause of action with leave to amend.  

Motion to Strike

Motions to Strike are appropriate in instances when challenges by demurrer are inadequate to address deficiencies in a pleading. Defendants here move to strike all causes of action from Plaintiff’s 3AC which they demur to. The Court finds that Defendants’ motion to strike is a recitation of the arguments in its demurrer. As such, Defendants do not substantively brief their arguments specifically with respect to the motion strike. As Defendants have provided no independent grounds on which to these causes of action must be stricken, the Court DENIES the motion to strike the first, fourth, and fifth causes of action. The motion to strike the sixth cause of action is mooted by the Court sustaining the demurrer with leave to amend.

IV.              CONCLUSION

Defendants’ Demurrer as to the first, fourth, and fifth causes of action are overruled. Defendants’ Demurrer as to the sixth cause of action is sustained with leave to amend.

Defendants’ Motion to Strike is mott as to the sixth cause of action and denied as to causes of action one, four, and five.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Arcadia Unified School District & James O’Brien’s Demurrer and Motion to Strike came on regularly for hearing on February 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS OVERRULED AS TO THE FIRST, FOURTH, AND FIFTH CAUSES OF ACTION.

THE DEMURRER IS SUSTAINED AS TO THE SIXTH CAUSE OF ACTION WITH LEAVE TO AMEND.

THE MOTION TO STRIKE THE FIRST, FOURTH, AND FIFTH CAUSES OF ACTION IS DENIED. 

IT IS SO ORDERED. 

DATE:  February 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles