Judge Gail Killefer, Case Number: 22STCV25903, Date: 2023-11-09 Tentative Ruling

CASE NAME: S.W, et al. v. Board of Education for the Los Angeles Unified School District, et al.

MOVING PARTY: Defendants, Board of Education for the Los Angeles Unified School District, Amy Diaz and Christian Villanueva

OPPOSING PARTY: Plaintiff, S.W., a minor, by and through her guardian ad litem, Rashunda Pitts

TENTATIVE: Defendants’ demurrer to the FAC is sustained without leave to amend. Defendants’ motion to strike is granted without leave to amend. This case is dismissed with prejudice. Defendants are to give notice.

S.W., a minor, by and through her guardian ad litem, Rashunda Pitts (“Plaintiff”), brings this civil rights action in connection with a “cotton picking” exercise that took place in the Laurel Span School, which is part of Defendant Los Angeles Unified School District (“LAUSD”). The original Complaint alleges that in September 2017 Defendant Christian Villanueva (“Villanueva”) required other students to “pick cotton” to experience what African American slaves had endured as they were reading the autobiography of Frederick Douglass. The Complaint alleges after this experience, Plaintiff’s mood changed, and she became very quiet and reserved. The Complaint further alleges Defendant Amy Diaz (“Diaz”) spoke to Plaintiff’s mother, Rashunda Pitts (“Pitts”), regarding her concerns over the project but did not confirm that the cotton field would be removed within 24 hours and failed to further commit to specific timeframes for removal of the cotton plants.

Plaintiff’s original Complaint alleged four causes of action: (1) violation of Article I, Section 7 of the California Constitution—violation of equal protection; (2) violation of the Unruh Act; (3) violation of the Bane Act; and (4) negligence against all Defendants.

On June 8, 2023, Defendants’ demurrer to the Complaint was sustained with leave to amend.

On July 6, 2023, Plaintiff filed the First Amended Complaint (“FAC”), alleging two causes of action: (1) Violation of the Bane Act (Civ. Code §§ 52 and 52.1); and (2) Negligence (Govt. Code §§ 815.2(a) and 820(a).)

On September 7, 2023, Defendants filed a demurrer to the FAC. Plaintiff filed opposing papers on October 30, 2023. Defendants filed a reply on November 2, 2023. The matter is now before the court.

demurrer to the first amended complaint[1]

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) The United States District Court, Central District of California (“Central District”), Civil Docket for Case No. 2:19-cv-01702-ODW-JC, S.W. v. Board of Education for Los Angeles Unified School District et al., a true and correct copy of which is attached hereto as Exhibit “A” and incorporated by reference; and

2) The Central District, Honorable Otis D. Wright’s, Order Dismissing Case for Lack of Prosecution, dated April 26, 2022, a true and correct copy of which is attached hereto as Exhibit “B” and incorporated by reference, and which is located at Entry No. 49 of the docket attached as Exhibit “A”; and

3) The Central District, Honorable Otis D. Wright’s, Order Denying Plaintiff’s Motion for Reconsideration, dated July 8, 2022, a true and correct copy of which is attached hereto as Exhibit “C” and incorporated by reference, and which is located at Entry No. 52 of the docket attached as Exhibit “A”; and

4) Plaintiff’s Complaint for Damages and Demand for Jury Trial, filed March 7, 2019, in Case No. 2:19-cv-01702-ODW-JC, S.W. v. Board of Education for Los Angeles Unified School District et al., a true and correct copy of which is attached hereto as Exhibit “D” and incorporated by reference, and which is located at Entry No. 1 of the docket attached as Exhibit “A”; and

5) This Court’s June 8, 2023 Ruling on Defendants’ Demurrer to and Motion to Strike the Complaint in the present action, a true and correct copy of which is attached hereto as Exhibit “E” and incorporated by reference; and

6) Plaintiff’s Complaint for Damages in the present action, filed with this Court on August 10, 2022, a true and correct copy of which is attached hereto as Exhibit “F” and incorporated by reference.

Defendants Object to the Declaration of Na’Shaun L. Neal on the basis that Lauren K. McRae signed the declaration, and it was not signed under penalty of perjury under the laws of the State of California as required by CCP § 2015.5. Where a declaration in support of a motion is not signed under penalty of perjury under the laws of the State of California as required by CCP § 2015.5, it has no evidentiary value, and a court must not consider it. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.App.4th 601, 610-611 [finding that nothing in the language of Section 2015.5 suggests that the language of “under the laws of the State of California” is pointless or optional].)

Prior to filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . .”¿ (Gov. Code, § 945.4)¿¿

The FAC states that Plaintiff submitted her government claim for damages to LAUSD on or about November 13, 2017, and that LAUSD did not respond to accept or reject the claim. (FAC ¶ 3.) Therefore, Plaintiff had two years from the accrual of the cause of action to file suit, with the cause of action accruing sometime from September 1, 2017, to October 24, 2017. (Gov. Code, § 945.6(a)(2).) Plaintiff had to bring this suit no later than October 24, 2019.

On March 7, 2019, Plaintiff brought suit in federal court in the Central District of California, asserting the same state law claims at issue in this action. (FAC ¶ 5; RJN Ex. A, D.) Three years later, on April 26, 2022, the Central District of California dismissed the action for lack of prosecution. (FAC ¶ 5; RJN Ex. A, B.) On August 10, 2022, Plaintiff refiled her state law claims with this court. (RJN Ex. F.)

Defendants assert that Plaintiff's claims are time-barred because they are asserted almost 5 years after the cause of action accrued. Plaintiff argues that the statute of limitations was tolled under Title 28 U.S.C. § 1367(d) during the pendency of the federal action. Since the federal action was dismissed on July 11, 2022, Plaintiff had 30 days, or until November 13, 2023, to file this action. (FAC ¶¶ 5, 6.) Since Plaintiff filed this action in state court on August 10, 2022, Plaintiff argues her action is not time-barred.

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

Defendants dispute that Plaintiff’s state law claims were tolled under section 1367(d) because Plaintiff’s dismissal was not a 1367(d) dismissal, but a dismissal due to failure to prosecute. (RJN Ex. B, C.) Therefore, the federal court did not decline to exercise supplemental jurisdiction over Plaintiff’s state law claims in the federal action under section 1367(c).)

“Section 1367(d) provides for tolling after dismissal in federal court of supplemental state law claims. Pursuant to section 1367(a), a federal court may exercise supplemental jurisdiction over state law claims which do not independently come within original federal jurisdiction but which form part of the same Article III ‘case or controversy.’” (Peters v. Board of Trustees of Vista Unified School Dist. (S.D. Cal., Aug. 11, 2009, No. CIV 08CV1657-L(NLS)) 2009 WL 2485753, at *3.) Because state law claims are asserted in a federal action does not mean that the federal district court must exercise supplemental jurisdiction over the state law claims. (See Jinks v. Richland County, S.C. (2003) 538 U.S. 456, 458 [explaining that under 28 U.S.C. § 1367, the federal district court may exercise supplemental jurisdiction, not that it must].)

Therefore, “28 U.S.C. § 1367(d) is a savings provision that tolls the statute of limitations on any state claim over which a federal court has exercised supplemental jurisdiction until 30 days after its dismissal, unless state law provides for a longer tolling period.” (Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Financial Corp. (C.D. Cal. 2011) 878 F.Supp.2d 1009, 1018. For the tolling provision of section 1367(d) to apply, the federal court must decline to exercise supplemental jurisdiction over state law claims, pursuant to section 1367(c). (Id. at p. 1019.)

[T]he statute's legislative history indicates § 1367(d) ‘provides a tolling of statutes of limitations for any supplemental claim that is dismissed under this section and for any other claims in the same action voluntarily dismissed at the same time or after the supplemental claim is dismissed.’ [Citations.] Thus, the court in [Parrish v. HBO & Co. (S.D. Ohio 1999) 85 F.Supp.2d 792] concluded that Congress did not intend the phrase ‘the dismissal’ to include dismissal of the supplemental state claim by any procedure but, rather, dismissal pursuant to § 1367(c) only.

The United States Supreme Cout explained that “§ 1367(d) occurs in the context of a statute that specifically contemplates only a few grounds for dismissal[.]” (Raygor v. Regents of University of Minnesota (2002) 534 U.S. 533, 534; see also Peters v. Board of Trustees of Vista Unified School Dist. (S.D. Cal., Aug. 11, 2009, No. CIV 08CV1657-L(NLS)) 2009 WL 2485753, at *3 [“Section 1367(d) tolling applies when supplemental state law claims are dismissed in federal court pursuant to section 1367(b) or (c) and then re-asserted in state court. No claims in the previous case were dismissed pursuant to section 1367.”].)

Defendants assert that because Plaintiff’s federal and state law claims were dismissed due to failure to prosecute, the dismissal was not pursuant to section 1367(b) or (c) such that the tolling provisions of section 1367(d) apply. Thus, Plaintiff’s claims are time-barred. Plaintiff does not allege that the district court declined to exercise supplemental jurisdiction over her state law claims such that the tolling provisions of section 1367(d) apply.

Plaintiff’s reliance on Okoro v. City of Oakland (2006) 142 Cal.App.4th 306 (Okoro) is misplaced because the dismissal in Okoro was “a section 1367 dismissal[.]” (Id. at p. 313.) In Okoro, the plaintiff filed suit in federal court but “the district court dismissed all defendants, except the City, for failure to properly serve (Fed. Rules Civ.Proc., rule 4) and failure to prosecute (Fed. Rules Civ. Proc., rule 41(b)).” (Okoro, at p. 308.) Subsequently, the district court granted “summary judgment in favor of the City” “as to the federal causes of action (42 U.S.C. §§ 1981, 1983). The court having dismissed the only causes of action over which it had original jurisdiction, it declined to exercise supplemental jurisdiction over the remaining causes of action, all of which arose under state law. The court's order read, in part: ‘Plaintiff is, of course, free to refile such claims in state court, subject to the tolling provisions of 28 USC § 1367(d).’” (Id. at p. 309 [italics added].)

The dismissal in Okoro was a section 1367 dismissal because the district court specifically declined to exercise supplemental jurisdiction over the plaintiff’s state law claims, which permitted Plaintiff to refile her claims in state court under the tolling provision of section 1367(d). Here, however, Plaintiff fails to show that the dismissal for failure to prosecute was a section 1367 dismissal because the district court declined to exercise supplemental jurisdiction over Plaintiff’s claims. Consequently, Plaintiff fails to show that her claims were subject to the tolling provision of section 1367(d) and are not time-barred.

The demurrer to Plaintiff’s FAC is sustained without leave to amend. Even if Plaintiff’s claims were tolled, they are subject to demurrer because they are insufficiently pled.

Civil Code, § 52.1 (the “Bane Act”) allows an individual to sue for damages if 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….”¿ (Civ. Code, § 52.1(a), (b).)¿¿“‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,¿‘threat[], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.”’¿ (King v. State of Cal. (2015) 242 Cal.App.4th 265, 294 citing Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)

Here, the FAC fails to allege that an employee of Defendant used threat, intimidation, or coercion to force Plaintiff to pick cotton. Instead, Plaintiff asserts that “Mr. Villanueva did not force her [to] ‘pick cotton’ but that she had to watch the other students “pick cotton” while she tended to other crops that were being grown.” (FAC ¶ 22.) There is no showing that Defendants used threat, intimidation, or coercion.

The Bane Act was “enacted with hate crimes in mind” and “was intended to address only egregious interferences with constitutional rights, not just any tort. The act of interference with a constitutional right must itself be deliberate or spiteful.” (County Inmate Telephone Service Cases (2020) 48 Cal.App.5th 354, 372 (County Inmate) [internal citations and quotations omitted].) Here, the fact that Plaintiff was offended by the Cotton-Picking project wherein Plaintiff had to watch other students pick cotton is not the type of egregious offense that the Bane Act seeks to address. Furthermore, for there to be a violation under the Bane Act, the plaintiff must make “a showing of coercion independent from the coercion inherent in the constitutional violation itself.” (County Inmate, at p. 369; Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947,958.) The FAC fails to make this showing.

Therefore, the demurrer to the first cause of action is sustained without leave to amend.

The Tort Claims Act draws a clear distinction between the liability of a public entity based on its own conduct, and the liability arising from the conduct of a public employee.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.) Although a public entity may be held vicariously liable under Gov. Code, § 815.2, “the Act contains no provision similarly providing that a public entity generally is liable for its own conduct or omission to the same extent as a private person or entity. Rather, the Act provides that a public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute....’ (Gov. Code, § 815.)” (Id. at p. 1127 [italics original].)

Defendants argue that Government Code §§ 815, 815.2, 818, 820.2, and 820.8 provide immunity from the second cause of action for negligence. Specifically, Defendants argue that individual Defendants Villanueva and Diaz are immune from tort liability under Government Code §§ 815.2 and 820.2.

(a) 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.

(b) 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.

Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

Defendants argue that the FAC alleges discretionary conduct by an LAUSD teacher and principal because Mr. Villanueva had the discretion to create a unique lesson plan that included cotton picking. In opposition, Plaintiff argues that section 820.2 immunity does not apply because Villanueva’s actions were for “‘the ministerial implementation of [a] basic policy.’ ” (Regents of University of California v. Superior Court (2018) 29 Cal.App.5th 890, 915 citing Johnson v. State of California (1968) 69 Cal.2d 782, 796.)

Plaintiff argues that the Cotton Picking project was not purely discretionary, but a “ministerial implementation” of standard curriculum planned at the District level, specifically Key Standard 8.9.1. (FAC ¶ 27.) Nothing in Standard 8.9.1, however, requires the implementation of the Cotton Picking Project, but instead provides an instructional guide which according to Plaintiffs, reads as follows:

Describe the leaders of the Abolition Movement (e.g. John Quincy Adams and his proposed constitutional amendment, John Brown and the armed resistance, Harriet Tubman and the Underground Railroad, Benjamin Franklin, Theodore Weld, Lloyd Garrison, Frederick Douglass.)

(FAC ¶ 27.) The “model lesson” also requires students to read the biography of Fredrick Douglass. (Id.) The “act or omission” of creating and implementing the Cotton Picking Project “was the result of the exercise of the discretion vested in” Defendant teacher and principal to implement a school curriculum. (Gov. Code, § 820.2)

Defendants cites Nicole M. By and Through Jacqueline M. v. Martinez Unified School Dist. (N.D. Cal. 1997) 964 F.Supp. 1369, for the proposition that a “[d]ecision by a school principal or superintendent to impose discipline on students and conduct investigations of complaints necessarily require the exercise of judgment or choice, and accordingly are discretionary, rather than ministerial, act.” (Id. at pp. 1389–1390.) Similarly, in Davison ex rel. Sims v. Santa Barbara High School Dist. (C.D. Cal. 1998) 48 F.Supp.2d 1225, the district court determined that how a teacher responded to a racist drawing targeting a specific student was a discretionary act, entitling the teacher to immunity. (Id. at p. 1232.) Lastly in Wormuth v. Lammersville Union School District (E.D. Cal. 2018) 305 F.Supp.3d 1108, the district court granted summary judgment in favor of the superintendent and assistant superintendent accused of negligently failing to implement school-wide policies finding that “[w]hether a specific policy is proper under the circumstances is precisely the kind of decision section 820.2 immunizes.” (Id. at p. 1130.)

How a teacher chooses to teach their curriculum or implement educational standards are discretionary acts “which require[] the exercise of judgment or choice.” (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1437 disapproved on other grounds by Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798 [citation omitted].) Moreover, Plaintiff fails to cite authority showing that how a lesson plan or school curriculum is implemented is a ministerial implementation of a basic policy not subject to governmental immunity.

Since Defendant Villanueva and Diaz appear immune from liability, Plaintiff fails to show that LAUSD can be held directly liable for negligence.

Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.

Defendants contend that punitive and exemplary damages are prohibited against a public entity and its employees. (Gov. Code, § 818.) While Plaintiff appears to concede punitive damages are not recoverable against LAUSD, Plaintiff asserts that because Defendants Villanueva and Diaz are being sued in both their individual and official capacities, Plaintiff’s claim for punitive damages survives as the individual defendants being sued in their individual capacity.

Since the demurrer to the FAC is sustained without leave to amend, the court grants Defendants’ motion to strike without leave to amend.

defendants’ demurrer to the FAC is sustained without leave to amend. Defendants’ motion to strike is granted without leave to amend. This case is dismissed with prejudice.

[1] Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).) Here Defense counsel attempted to meet and confer with Plaintiff’s counsel but was unsuccessful. (Hamor Decl. ¶¶ 4-7.) The court continues to consider the merits as the failure to meet and confer does not constitute grounds to overrule a demurrer.