Judge: Frank M. Tavelman, Case: 24BBCV00259, Date: 2025-04-25 Tentative Ruling

Case Number: 24BBCV00259    Hearing Date: April 25, 2025    Dept: A

DEMURRER

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 required 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: 

Christian Sanchez, as guardian ad litem for N.S., a minor (Plaintiff) brings this action against Los Angeles Unified School District (Defendant), and John Doe (Doe).

Plaintiff alleges that, on October 10, 2023, she was a student at Walter Reed Middle School. (Compl. ¶ 9.) Plaintiff alleges that her class was taught that day by a substitute teacher, Doe. (Id.) During an assembly, Doe asked Plaintiff to put away a stress ball (given to her by a school counselor). (Compl. ¶ 10.) When Plaintiff instead placed the stress ball between her legs, Doe “… went up to her and roughly reached between her legs and grabbed the ball.” (Id,) Plaintiff thereafter fled to the vice principal’s office. (Compl. ¶ 11.)

The Complaint states causes of action for (1) Battery, (2) Intentional Infliction of Emotional Distress, (3) Negligence (as to LAUSD only), (4) Negligent Supervision and retention (as to LAUSD only).

Before the Court is LAUSD’s demurrer to the Complaint. LAUSD demurrers to each cause of action on grounds that Plaintiff has failed to allege sufficient facts in support of her claims. Plaintiff has not opposed the demurrer. A plaintiff’s failure to oppose the demurrer can be treated as an implied abandonment of the challenged claims. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)

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 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 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 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.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Harrison Decl. ¶¶ 3-7.)

General Discussion

Government entities can only be liable where plaintiff pleads: (i) an authorizing statute for the government tort liability, and (ii) detailed and particularized facts concerning how the governmental defendant supposedly erred. (Gov. Code § 815(a); Searcy v. Hemet Unified Sch. Dist. (1986) 177 Cal.App.3d 792, 802; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Here, Plaintiff alleges that LAUSD “…is liable for injuries proximately caused by the acts or omissions of its employees, agents, and/or servants, where such acts or omissions were within the course and scope of employment” pursuant to Gov. Code § 815.2. (Compl. ¶¶ 3, 25.) In demurring to each cause of action, LAUSD argues that Plaintiff has failed to allege sufficient facts to support a claim for vicarious liability under Gov. Code § 815.2.

Pleading requirements against a public entity, such as the district, are more stringent than pleading requirements against a private entity. “[B]ecause under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, '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.’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

First COA – Battery- Sustained with Leave to Amend  

The necessary elements for battery are: (1) that the defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff's body; (2) that the plaintiff did not consent to the contact; and (3) that the contact caused injury, damage, loss, or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526.)

An employer is vicariously liable for an employee's tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.) Generally, vicarious liability for the tortious act of an employee attaches where the employee’s conduct was authorized by the employer. (Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1382.) However, an employee's willful or malicious tort may fall within the scope of employment even without the employer's authorization. (Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 379.)

Whether an employee's wrongful acts were committed during the scope of employment is judged by a two-prong, alternative "test": (1) whether the act was either required by the employer or "incidental" to the employee's duties ("nexus" test), or (2) whether the employee's misconduct was reasonably foreseeable by the employer (even if not "required" or "incidental"). (Montague, supra, 223 Cal.App.4th at 1521.)

"The connection or causal nexus required for respondeat superior liability is the tort must have been engendered by or arise from the work. The required connection has been described as (1) 'the incident leading to injury must be an "outgrowth" of the employment'; (2) 'the risk of tortious injury is "inherent in the working environment” ’ (3) the risk of tortious injury is '"typical of or broadly incidental to the enterprise [the employer] has undertaken" ' or (4) 'the tort was, in a general way, foreseeable from the employee's duties.' (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298 [citations omitted].)

In the context of school employees, courts have held that a school may not be held vicariously liable for the intentional torts of its employees where conduct at issue falls outside the scope of employment. (See John R. v. Oakland (1989) 48 Cal.3d 438, 447 [emphasis added].) In John R., the California Supreme Court held that a school district is not vicariously liable for intentional sexual assault committed by a teacher. (Id.) The Supreme Court noted that plaintiffs could prosecute “their claims against the district premised on its own direct negligence in hiring and supervising the teacher.” (Id. at 453.)

Here, the Court finds that Plaintiff has pled insufficient facts with specificity to support a theory of vicarious liability. Plaintiff’s allegation that Substitute was “acting within the scope of his agency” is conclusory and unsupported by factual allegations. (Compl. ¶ 18.) As mentioned above, not all actions by an employee while on the jobsite can support a theory of vicarious liability. As such, Plaintiff must sufficiently identify which actions of the Substitute she alleges were within the scope of his employment and must do so under the more stringent pleading standard for actions against a public entity.

In addition, the Complaint is factually deficient in other regards. While the scope of employment is to be interpreted broadly, such interpretation does not permit Plaintiff to rely on inference in setting forth her claim. (See Farmers Ins. Grp. v. Cty. of Santa Clara (1995) 11 Cal. 4th 992, 1004-05.) Plaintiff’s allegation that Substitute “roughly reached between her legs and grabbed the ball” is unaccompanied by any allegation that his doing so was authorized by LAUSD, a natural outgrowth of his job duties, or any other specific facts establishing the casual nexus required to support vicarious liability. Plaintiff may be able to allege such facts upon amendment, but she has not done so here.

Further, Plaintiff has made no allegations as to whether any actions of Substitute were reasonably foreseeable. As mentioned above, intentional tortious conduct of an employee must be foreseeable to give rise to vicarious liability. Here, Plaintiff only generally alleges that LAUSD is charged with a duty to prevent foreseeable harm to its students. (Compl. ¶ 32.) This allegation is insufficient to allege that the actions of Substitute were foreseeable by LAUSD such that they may be held vicariously liable.  

Accordingly, the demurrer to the first cause of action is SUSTAINED with 20 days’ leave to amend.  

Second COA – Intentional Infliction of Emotional Distress – Sustained with Leave to Amend

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, [citation and ellipses omitted].)

As with the cause of action for Battery, this cause of action is leveled at LAUSD under a theory of vicarious liability for the actions of Substitute. Also like the Battery cause of action, the Court finds Plaintiff has alleged insufficient facts to support that theory. This cause of action suffers the same deficiencies, namely that Plaintiff has not alleged any facts indicating that Substitute’s actions were within the scope of his employment and were reasonably foreseeably by LAUSD.

Accordingly, the demurrer to the first cause of action is SUSTAINED with 20 days’ leave to amend. 

Third COA – Negligence – Sustained without Leave to Amend

As a function of the immunity conferred under Gov. Code, § 815 (a), public entities cannot be liable for common law theories of general negligence. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].)

Here, Plaintiff’s claim for negligence is premised on their allegation that:

LAUSD had a duty to protect students, including N.S., who were entrusted to LAUSD’s care. LAUSD owed N.S., as a child, a special duty of care, in addition to a duty of ordinary care, and owed N.S. the higher duty of care that adults dealing with children owe to protect them from harm. LAUSD was required, but failed, to provide adequate supervision of Defendant JOHN DOE and failed to be properly vigilant in ensuring that such supervision was sufficient to ensure the safety of N.S.

(Compl. ¶ 26.)

The Court finds these allegations speak to Plaintiff’s fourth cause of action for negligent supervision/retention, rather than a common law cause of action for negligence. The law is clear that Plaintiff cannot maintain a common law cause of action for negligence against LAUSD. It appears that any allegations speaking to negligence are necessarily encompassed in Plaintiff’s cause of action for negligent hiring/retention, to which the Court has sustained the demurrer with leave to amend.

Accordingly, the demurrer to the third cause of action is SUSTAINED without leave to amend. Leave to amend is denied as the law makes clear that Plaintiff cannot maintain a common law negligence claim against LAUSD. Thus, no amendment could cure the deficiencies in this cause of action.

Fourth COA – Negligent Supervision & Retention – Sustained with Leave to Amend

A school district may be vicariously liable under Government Code section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee whose negligence injures a student. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861879.) The district may be subject to such liability if the district "is proven to have breached that duty by negligently exposing [a] plaintiff to a foreseeable danger of molestation." (Id. at 865.) Because the district's liability is premised on the foreseeability of the abuse, appellant must include allegations that his harassment or abuse came from “foreseeable sources, including any teachers [the district] [knew] or [had reason to know were] prone to such abuse.” (Id. at p. 871.)

Here, the Court finds the Complaint contains insufficient factual allegations as to foreseeability by LAUSD. The Complaint contains no factual allegations as to LAUSD’s knowledge of Substitute’s propensity to commit the alleged battery. Plaintiff’s allegations that LAUSD knew or should have known of Substitute’s dangerous propensities are vague and conclusory.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED with 20 days’ leave to amend. 

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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 

Los Angeles Unified School District’s Demurrer came on regularly for hearing on April 25, 2025, 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 TO THE FIRST, SECOND, AND FOURTH CAUSES OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND LEAVE TO AMEND

THE DEMURRER TO THE THIRD CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE CASE MANAGEMENT CONFERENCE IS CONTINUED TO AUGUST 6, 2025 AT 9:00 AM.

DEFENDANT LAUSD TO GIVE NOTICE.

IT IS SO ORDERED.