Judge: Frank M. Tavelman, Case: 24NNCV03293, Date: 2024-12-27 Tentative Ruling

Case Number: 24NNCV03293    Hearing Date: December 27, 2024    Dept: A

DEMURRER & 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 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: 

Terri Milner (Plaintiff, in pro per) brings this action on behalf of her minor child Taya Lynn Jones (Taya) as against Los Angeles Unified School District (Defendant). It appears that Plaintiff alleges an employee of LAUSD followed Taya into the parking lot of Walter Reed Middle School, which Plaintiff alleges has racial connotations and is a form of harassment. Plaintiff states causes of action for (1) General Negligence and (2) Intentional Tort.

LAUSD now demurs to the entire Complaint on grounds of C.C.P. § 430.10(b), that Plaintiff lacks standing. LAUSD argues that Plaintiff may not proceed in pro per in her representation of her minor child. LAUSD also demurs on grounds Plaintiff’s claim is barred for failure to submit a Government Claim pursuant to Gov. Code § 911.2(a). LAUSD further demurs on grounds that the factual allegations of the Complaint are insufficient to support each cause of action. Lastly, LAUSD demurs on grounds that the entire Complaint is uncertain.

Plaintiff has rendered no opposition to this 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 

Pursuant to C.C.P. §430.10(b) a defendant may bring a demurrer if the plaintiff does not have capacity to sue.  In addition, pursuant to C.C.P. §§ 430.10(e) & (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.

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.)

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 here. (Shaheen Decl. Exh. B.)

General Discussion

The Court begins its analysis by addressing LAUSD’s argument that the party with standing to sue in this action is Taya, rather than Plaintiff. LAUSD attaches other three purportedly identical suits filed by Plaintiff in Glendale, Alhambra, Pasadena as Exhibit D to its demurrer. LAUSD argues that the allegations in these suits make clear that the claims in this action are properly asserted by Taya rather than Plaintiff. Relying on these other pleadings, LAUSD asserts (1) that Taya has no standing to sue without the appointment of a guardian ad litem and (2) that Plaintiff’s in pro per representation of Taya constitutes the unauthorized practice of law.

While the arguments of LAUSD may be meritorious, determining such would require the Court to rely on extrinsic evidence not properly considered on a demurrer. In reviewing a demurrer, the Court may only consider matters which appear on the face of the pleading and those matters which have been judicially noticed. The Complaints in the three other suits have not been judicially noticed and are thus not properly considered here. As such, the Court finds the demurrer may not be sustained on grounds that Plaintiff lacks capacity to sue or is impermissibly representing Taya without legal accreditation. The Complaint lacks the necessary information for the Court to make such determinations. Accordingly, the Court addresses the remaining grounds for demurrer below.

Special Demurrer for Uncertainty

A demurrer for uncertainty is a special demurrer that is disfavored and strictly construed because "ambiguities can reasonably be clarified under modern rules of discovery." (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.) Moreover, special demurrers will be overruled where "the facts alleged in the Complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures…" (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) To sustain a demurrer for uncertainty, the Complaint must be so vague or ambiguous that the defendant cannot reasonably respond. (Id. at 614.)

As previously noted, the Complaint alleges its events occurred at Walter Reed Middle School. Terri Milner is listed as the Plaintiff in the Complaint and none of the substantive allegations explicitly identify the Plaintiff as anyone else. Further, the allegations in the Complaint are all stated in the first person. For example, “Principal Robyn Friedman directed Ms. Langham to follow and watch me as I walked through the school to the parking lot.” (Compl. p. 4.)

Taken together, the above allegations indicate that the person who brought this Complaint is (1) employed by or visiting the middle school, (2) in middle school and lacks legal capacity to sue, or (3) is representing a minor without first obtaining leave to do so as guardian ad litem pursuant to C.C.P. § 372(a)(1), for which counsel may still be required.

In the Court’s view, none of the above possibilities result in the critical uncertainty of the allegations leveled at LAUSD. Plaintiff’s identity and capacity to sue are matters which could be properly clarified in discovery. Such clarifications may well result in future motions for lack of standing.  Regardless, the Court finds sustaining the demurrer for uncertainty would be improper given its review of the Complaint.

Government Claim

The Tort Claims Act, codified in Gov. Code §§ 900 et seq., establishes certain conditions precedent to filing a lawsuit against a public entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) In order to maintain a cause of action against a public entity, a plaintiff must file a claim with the public entity for money or damages pursuant to Gov. Code § 911.2. (Id.; see Gov. Code § 911.2(a) [“[a] claim relating to a cause of action for death or for injury to person or to personal property... shall be presented as provided in” Government Code section 915 et seq. “not later than six months after the accrual of the cause of action.”].)

A plaintiff must allege facts sufficient to demonstrate compliance or excuse from compliance of the Tort Claims Act. (State of California v. Superior Court, supra, 32 Cal.4th at 1243, quoting Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 447) [“...the language of the amended claim presentation statutes ‘make[s] it clear that ... a plaintiff must still allege in his complaint that he has complied with the claim statute in order to state a cause of action against a public employee.’”].)

The Court notes that Plaintiff has used a Form Complaint, of which Section 9 specifically prompts the filing party to list whether they are (1) required to comply with a claims statute and (2) whether they did so. Section 9 of Plaintiff’s Complaint indicates that she was required to comply with a claims statutes and did in fact do so. (Compl. p. 2.)  

LAUSD appears to argue that Plaintiff’s claims in this claim derive from three separate incidents, occurring in March 2023, June 2023, and January 2024. (Dem. p. 8.) LAUSD argues that Plaintiff never submitted a Government Claim pursuant to Gov. Code § 911.2(a) for the 2023 incidents. While LAUSD concedes that Plaintiff did submit a Government Claim for the January 2024 incident, they argue that Plaintiff did not bring this action within the time frame required after that claim was rejected.

The Court finds a determination as to either of the above arguments would be inappropriate at this time. The Complaint alleges that each precipitating incident occurred on June 7, 2023. The Complaint also alleges that Plaintiff complied with the Tort Claims Act prior to bringing this claim. Nothing on the face of the pleadings or in a judicially noticed document indicates the opposite. Even if the declaration of LAUSD’s counsel could be properly considered in this regard, the declaration is silent as to Plaintiff’s failure to file a claim for the June 2023 accident. It may well be that Plaintiff’s claims are barred for failure to adhere to various requirements of the Tort Claims Act, but that cannot be determined on the face of the pleading or judicially noticed facts.

First Cause of Action – General Negligence – Sustained with 20 Days’ Leave to Amend

LAUSD argues that the Complaint contains insufficient facts to state a cause of action sounding in negligence against a public entity. The Court finds this argument persuasive for reasons described below.

Government Code § 815 provides that “[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” except as provided by statute. (Gov. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

The Court finds Plaintiff’s cause of action for General Negligence pleads insufficient facts as to LAUSD’s liability. Plaintiff’s allegations are as follows:

Principal Robyn Friedman directed Ms. Langham to follow and watch me as I walked through the school to the parking lot. Ms. Friedman is aware the act of following has racial connotations and is a form of harassment. (Compl. p. 4.)

As stated, these facts are insufficient to plead a cause of action sounding in negligence against a public entity. Although Plaintiff has alleged compliance with the Government Claim requirements, her negligence cause of action contains no facts speaking to LAUSD’s liability under statute. In the absence of these allegations, Plaintiff’s claims of negligence rely on common law principles which do not apply to government entities. Accordingly, the demurrer to the first cause of action is SUSTAINED with 20 days’ leave to amend.

Second Cause of Action – Intentional Tort – Sustained with 20 Days’ Leave to Amend

As previously stated, Gov. Code § 815 requires that a tort action against a public entity be based on statutory liability. As with Plaintiff’s first cause of action, her cause of action for Intentional Tort contains no facts speaking to statutory liability. Given Plaintiff’s claims are clearly based on the intentional acts of two alleged LAUSD employees, she must allege facts establishing LAUSD’s liability for those actions under statute.

Accordingly, the demurrer to the first 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 December 27, 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 DEMURRER TO THE FIRST CAUSE OF ACTION FOR FAILURE TO ALLEGE SUFFICIENT FACTS IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE DEMURRER TO THE SECOND CAUSE OF ACTION FOR FAILURE TO ALLEGE SUFFICIENT FACTS IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

DEFENDANT LAUSD TO PROVIDE NOTICE.

IT IS SO ORDERED. 

DATE:  December 27, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles