Judge: Frank M. Tavelman, Case: 23BBCV02172, Date: 2024-04-12 Tentative Ruling

Case Number: 23BBCV02172    Hearing Date: April 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Marilyn R. Cortes Zapien (Marilyn) and Maria Zapien (Maria) (collectively Plaintiffs) bring this action against the Los Angeles Unified School District (LAUSD), the County of Los Angeles (the County), the City Of Los Angeles (the City), the State Of California (the State), Toluca Lake Elementary School (Toluca Lake Elementary), David Whaley (Whaley), and Jeffrey Daniel (Daniel). Plaintiffs allege that Marilyn was sexually abused by a Whaley while she was attending Toluca Lake Elementary. 

Plaintiffs’ Complaint contains eight causes of action: (1) Sexual Abuse of A Minor (2) Intentional Infliction of Emotional Distress (IIED), (3) Sexual Harassment, (4) General Negligence - Negligent Hiring, Supervision and Retention of an Unfit Employee, (5) General Negligence - Breach of Mandatory Duty, (6) Failure to Report suspected Child Abuse, (7) General Negligence - Negligent Failure to Warn, Train or Educate, (8) General Negligence - Negligent Supervision of a Minor. It appears that each of the causes of action are stated as to all Defendants.

The Court notes that Plaintiffs have dismissed the County from this action voluntarily.

The City now demurs to the entire Complaint arguing that it is an improperly joined party. LAUSD also demurs on grounds that each cause of action fails to allege sufficient facts establishing their liability. Lastly, Daniel demurs on grounds that the Complaint is uncertain as to his involvement such that he cannot adequately respond. LAUSD and Daniel also move to strike Plaintiffs’ request for punitive damages.

ANALYSIS: 

I.                    LEGAL STANDARD 

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. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at 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 318.)

Pursuant to Code of Civil Procedure (“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 without leave to amend 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.)

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).)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Lewis Decl.)

Request for Judicial Notice

The City requests judicial notice be taken of the following documents:

·         Exhibit A - Copy of a printout from Office of the City Administrative Officer of the City of Los Angeles’ website.

·         Exhibit B - Copy of an Organizational Chart printout from the official LAUSD website.

·         Exhibit C - Copy of an excerpt from a “Budget Summary” from the website of the Office of the City Administrative Officer.

·         Exhibit D - Copy of an excerpt from the LAUSD Final Budget.

·         Exhibit E - Copy of the LAUSD directory showing Toluca Lake Elementary School.

·         Exhibit F – Copy of screenshots from the Toluca Lake Elementary website.

The City requests notice of these documents pursuant to Evid. Code § 452(h), stating that these documents are “are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Further, the City argues that the Court is entitled to take judicial notice of facts which are within the common knowledge of the territorial jurisdiction of the Court. (Evid. Code § 453(g).) The Court agrees, the documents for which notice is requested appear to be official documents generated by the Office of the City Administrative Officer or other municipal authorities. The information presented in these documents is of such a type that is not reasonably subject to dispute. Accordingly, the Court GRANTS the City’s request. 

Failure to Oppose

The Court notes that Plaintiffs have provided no opposition to this demurrer. A plaintiff’s failure to oppose the demurrer can be treated as an implied concession to the merits of the same. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)

City of Los Angeles

The City argues that demurrer is appropriate on two fronts. First, the City argues there has been a misjoinder of parties because it is apparent from judicially noticeable facts that Toluca Lake Elementary School is not within the control of the City.

As per C.C.P. § 430.10(d) misjoinder of parties serves as valid grounds for demurrer. Misjoinder serves as a grounds for demurrer only where the defect appears on the face of the complaint or matters judicially noticed. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.) Generally, a demurrer on these grounds can only be successful where the demurring party has shown that it was an improper defendant to the action. (Id.) Additionally, a demurrer on these grounds is generally only successful where the demurring party can show some prejudice suffered or some interest adversely affected by the misjoinder. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, fn. 1.) A judge properly sustains a demurrer without leave to amend when the plaintiffs have not demonstrated a reasonable possibility that their misjoinder as plaintiffs can be cured by amendment. (Moe v. Anderson (2012) 207 CA4th 826, 834.)

Here, the City argues that they have been improperly joined in this action because they do not control Toluca Lake Elementary School or employee any of the individuals named in the Complaint. Plaintiff argues that the only basis for establishing tort liability against it is Gov. Code § 815.2(a) which provides “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.” The City argues that it does not employee David Whaley or Jeffrey Daniel, as shown by the judicially noticed facts.

The Court agrees that the judicially noticed facts support the City’s argument that they were improperly joined to this action. The Court first notes that it is common knowledge within the Court’s jurisdiction that public schools such as Toluca Lake Elementary legally operate under the LAUSD and not the City of Los Angeles. Further, judicial notice has been granted of several documents which evidence the organization of Toluca Lake Elementary under the LAUSD. No facts are pleaded in the Complaint which would indicate the City was otherwise properly joined. 

The Court also agrees that the City has been prejudiced by their improper joinder to this action. The City argues that is has been forced to expend legal resources in responding to this action which could have been alternatively allocated. While the Court does not view the preliminary engagement with the action to have resulted in severe prejudice to the City, the case law only requires “prejudice” without any further qualifier. The Court is satisfied that the City has been prejudiced by their misjoinder to the action such that their demurrer should be sustained.

Accordingly, the City’s demurrer to the entire Complaint is SUSTAINED. Further, the Court finds that it would be impossible for Plaintiffs to rectify the defect of misjoinder on subsequent amendment. Accordingly, the demurrer is sustained without leave to amend. As the Court has sustained the demurrer on grounds of misjoinder it need not consider the City’s arguments as to the sufficiency of facts in the Complaint.

LAUSD

LAUSD demurrers to the entire complaint as stated by Plaintiff Marilyn. LAUSD argues that Marilyn, as a minor child, lacks the capacity to sue and must instead be represented by a guardian ad litem.

A special demurrer lies on the ground that “[t]he person who filed the pleading does not have the legal capacity to sue.” (C.C.P. § 430.10(b).) Minors and persons without legal capacity to make decisions lack capacity to sue in their own names or to defend an action brought against them. Instead, litigation must be conducted through a guardian, conservator of the estate or guardian ad litem. (C.C.P. § 372(a).) If a guardian or conservator has not previously been appointed for the minor or person lacking decision-making capacity, a guardian ad litem must be appointed unless one of the limited statutory exceptions applies. (Id.)

Here, no guardian ad litem has been appointed for Marilyn. From the facts of the Complaint, it has been established that Marilyn is a five-year-old child and thus lacks the standing to sue by operation of statute. (Compl. p. 5.) Despite this oversight, the Court finds this defect could easily be cured upon amendment. Accordingly, the demurrer to the entire complaint as to Marilyn is SUSTAINED with 20 days’ leave to amend.

The Court will also address the LAUSD demurrer as to each cause of action brought by Plaintiff Maria for purposes of efficiency should the complaint be amended. LAUSD argues that each of the eight causes of action stated against it are subject to demurrer for failure to allege sufficient facts. LAUSD argues that because each cause of action is stated against a government entity, they must state statutory grounds for liability. LAUSD argues that Plaintiffs’ Complaint proceeds entirely on the logic of common law tort liability and references no statutory liability as to any cause of action.

Pursuant to Gov Code § 815, all claims against a public entity must have a statutory basis. Further, all claims against a public entity must be pled with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802).

Here, a review of each cause of action shows that Plaintiffs fail to state statutory grounds for liability against LAUSD. Despite naming LAUSD as a defendant to the causes of action for Sexual Abuse of a Minor, IIED, and Sexual Harassment, Plaintiffs have pled no facts as to their liability under these claims.  The remaining causes of action do contain allegations of LAUSD’s liability, albeit they are all based on common law tort lability. The relevant allegations are as follows:

·         LAUSD knew or should have known that Whaley was unfit to be a teacher before it hired him. (Compl. p. 7.)

·         LAUSD, Toluca Lake Elementary, and all defendants named knew or should have known that Whaley was engaging in sexual abuse and harassment of Plaintiff. (Compl. p. 7.)

·         LAUSD, Toluca Lake Elementary, and all named defendants failed to exercise any reasonable care in supervising Whaley while he was on school grounds. (Compl. p. 7.)

·         LAUSD, Toluca Lake Elementary, and all named defendants breached its duty to properly and adequately investigate, hire, train and supervise Whaley. (Compl. p. 7.)

·         LAUSD, had or should have had a reasonable suspicion that Whaley was engaged in sexual misconduct. (Compl. p. 8.)

·         LAUSD, Toluca Lake Elementary, and all defendants names, and DOES 1 to 50 breached their duty to Plaintiff by failing to warn her of known and knowable dangers posed by its faculty and staff. (Compl. p. 9.)

The only reference to statute in the Complaint is as follows:

“Defendants’ employeses [sic] violated the Child Abuse and Neglect Reporting Act, Penal Code section 11166, et seq. They were acting within the course and scope of their employment when they violated the reporting requirements, and therefore LAUSD, and all defendnats [sic] named is vicariously liable for that negligence.

(Compl. p. 8.)

The Court finds this allegation insufficient to allege civil liability for LAUSD. Penal Code § 11166 established the requirements for “mandatory reporters” of sexual abuse and established criminal liability for failure to report. On its face, this codes section does not create a private right of action or serve as the basis for liability in a civil action. In the absence of contrary authority, the Court finds this allegation insufficient.

In short, none of Plaintiffs allegations contain any aversion to statutory liability. As such, each cause of action is subject to demurrer for failure to allege sufficient facts as to LAUSD’s liability. Further, the Court finds that none of the causes of action are pled with specificity. Each cause of action contains only conclusory statements as to LAUSD’s foreknowledge of the sexual assault and of Whaley’s alleged behavior. It is not sufficient for Plaintiffs to simply conclude that LAUSD was liable, they must allege specific facts in support of that conclusion.

Daniel

Like LAUSD, Daniel demurrers to each cause of action as brought by Plaintiff Marilyn on grounds that she lacks standing as a minor. As previously discussed, the Court finds a special demurrer on these grounds to be appropriate. Accordingly, Daniel’s demurrer to the entire Complaint brought by Plaintiff Marilyn is SUSTAINED with 20 days’ leave to amend.

Daniel also demurs to the entire Complaint on grounds that it is fatally uncertain. Daniel argues that the Complaint contains no specific factual allegations concerning him. Daniel further argues that the nature of the Complaint is so ambiguous that he cannot ascertain which causes of action are leveled at him and which necessitate response.

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (C.C.P § 430.10 (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825.) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See Id.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Having reviewed the Complaint, the Court finds that there is no mention of Daniel outside of his being named a defendant. It is not clear from the formatting what causes of action apply to Daniel. Unlike the causes of action involving the LAUSD and Whaley, no context can be gleaned from the substance of the Complaint because Daniel is never mentioned. Daniel appears to be an employee of LAUSD by virtue of his representation by the same counsel. Regardless, this fact cannot be ascertained from the Complaint as it is completely silent as to who Daniel is or why he was included as a defendant. The Court finds that, in its current state, the Complaint is insufficient to apprise Daniel as to the allegations leveled against him such that he may respond.

Conclusion

·         The City’s demurrer to the entire Complaint is SUSTAINED without leave to amend.

·         LAUSD and Daniel’s demurrer to the entire Complaint as brought by Plaintiff Marilyn is SUSTAINED with 20 days’ leave to amend.

·         LAUSD’s demurrer to each cause of action in the Complaint as brought by Plaintiff Maria is moot as the Court has already sustained the demurrer with leave to amend for other reasons.

Motions to Strike

Given that the Court has sustained demurrers to the entire Complaint on various grounds, Plaintiffs currently have no valid cause of action against LAUSD and Daniel. As such, the motions to strike seeking the removal of punitive damages claims appear to be moot. Should LAUSD and Daniel believe that subsequent pleadings contain improper requests for damages, the Court welcomes renewed motions to strike.

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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 

The City of Los Angeles, Los Angeles Unified School District, and Jeffrey Daniel’s Demurrers came on regularly for hearing on April 12, 2024, 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 CITY OF LOS ANGELES’ DEMURRER TO THE ENTIRE COMPLAINT IS SUSTAINED WITHOUT LEAVE TO AMEND.

LAUSD AND DANIEL’S DEMURRER TO THE ENTIRE COMPLAINT AS BROUGHT BY PLAINTIFF MARILYN IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT.

UNLESS ALL PARTIES WAIVE NOTICE, LAUSD TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  April 12, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles