Judge: Gail Killefer, Case: 23STCV01862, Date: 2023-10-02 Tentative Ruling

Case Number: 23STCV01862 Hearing Date: October 2, 2023 Dept: 37

HEARING DATE: Monday, October 2, 2023

CASE NUMBER: 23STCV01862

CASE NAME: Y., et al. v. Los Angeles Unified School District, et al.

MOVING PARTY: Defendant Los Angeles Unified School District

OPPOSING PARTY: Plaintiffs Y and P

TRIAL DATE: Not Set

PROOF OF SERVICE: OK

PROCEEDING: Demurrer with Motion to Strike First Amended Complaint

OPPOSITION: 5 July 2023

REPLY: 11 July 2023

TENTATIVE: Defendant LAUSD’s demurrer to the second and seventh causes of action is sustained with leave to amend. Defendant’s motion to strike is denied.

Background

On January 30, 2023, Y and P (collectively “Plaintiffs”) filed a Complaint against the Los Angeles Unified School District (“LAUSD”), Jerome A. Lowe, and Does 1 to 50 for damages arising from childhood sexual abuse.

On May 15, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) allegingthe following seven causes of action: (1) negligent hiring, supervision, and retention of an unfit employee; (2) breach of mandatory duty: failure to report suspected child abuse; (3) negligent failure to warn, train, or educate; (4) negligent supervision of a minor; (5) negligence; (6) intentional infliction of emotional distress (“IIED”); and (7) sexual harassment under Ed. Code §§ 200 et seq.).

On June 16, 2023, Defendant LAUSD filed a demurrer with a motion to strike the FAC. Plaintiffs filed opposing papers on July 5, 2023. Defendant LAUSD filed a rely on July 11, 2023.

request for JUDICIAL notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Defendant LAUSD requests judicial notice of the following:

1) Plaintiffs’ First Amended Complaint, a true copy of which is attached as Exhibit “A” to the accompanying Declaration of Leslie Anne Burnet.

LAUSD’s request for judicial notice is granted.

Plaintiffs request judicial notice of the following:

1) The California Department of Education’s Uniform Complaint Procedures Pamphlet 2022-2023, a true and correct copy of which is attached as “Exhibit A”.

Plaintiffs request for judicial notice is granted.

Discussion

I. Legal Standard

A. Demurrer

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(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.)¿¿

B. Motion to Strike

¿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”].)¿¿¿¿

C. Leave to Amend

“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.)¿¿¿

II. Demurrer[1]

Defendant LAUSD demurs to the second and seventh causes of action alleged in Plaintiff’s First Amended Complaint (“FAC”).

A. Second Cause of Action - Breach of Mandatory Duty: Failure to Report Suspected Child Abuse

CCP § 340.1 allows:

[A]n action for recovery of damages suffered as a result of childhood sexual assault . . . for any of the following actions:

(1) An action against any person for committing an act of childhood sexual assault.

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

LAUSD asserts that Plaintiffs’ second cause action is not a claim for childhood sexual assault exempt from the claims presentation requirement under Gov. Code § 905(m). LAUSD argues that the second cause of action is based upon an alleged failure to report sexual abuse and is time-barred due to the Plaintiffs’ failure to comply with the California Tort Claims Act. In opposition, Plaintiffs assert that their second cause of action falls under CCP § 340.1 because the Child Abuse and Neglect Reporting Act (“CANRA”) was enacted to protect children from abuse and neglect, including sexual abuse. (Pen. Code, §§ 11164, 11165.1.)

CCP § 340.1(d) defines “Childhood sexual assault” to include:

[A]ny act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 287 or of former Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; any sexual conduct as defined in paragraph (1) of subdivision (d) of Section 311.4 of the Penal Code; Section 647.6 of the Penal Code; or any prior laws of this state of similar effect at the time the act was committed. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.

(Id. [italics added].) The court finds that section 340.1(d) “does not limit the availability of causes of action permitted under subdivision (a)” to mean that the causes of action that a plaintiff may bring relating to childhood sexual assault are not exhaustive. After all, CCP § 340.1(d) “is not a type of claim per se, it is a statute of limitations governing claims” to recover “damages suffered as a result of childhood sexual assault” against a minor plaintiff. (A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1262; CCP, § 340.1(a)(d).)

Therefore, CCP § 340.1 does not limit the causes of action that a plaintiff may bring but instead applies a special statute of limitations for causes of action designed to recover “damages suffered as a result of childhood sexual assault,” including against an “entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (CCP § 340.1(a) [italics added].) Here, LAUSD does not dispute that it is an entity that “owed a duty of care to Plaintiff.” (CCP § 340.1(a).) The FAC alleges that said duty was breached due to LAUSD's failure to comply with CANRA’s mandatory provision of reporting sexual abuse and the breach, whether it was “a wrongful or negligent act” or “an intentional act” by LAUSD was “a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (CCP § 340.1 (a).)

The argument that CCP § 340.1 applies to Plaintiff’s CANRA claim is supported by the fact that CANRA relies on the same Penal Code sections as CCP § 340.1(d) to define “Sexual assault”:

(a) “Sexual assault” means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), Section 264.1 (rape in concert), Section 285 (incest), Section 286 (sodomy), Section 287 or former Section 288a (oral copulation), subdivision (a) or (b) of, or paragraph (1) of subdivision (c) of, Section 288 (lewd or lascivious acts upon a child), Section 289 (sexual penetration), or Section 647.6 (child molestation). “Sexual assault” for the purposes of this article does not include voluntary conduct in violation of Section 286, 287, or 289, or former Section 288a, if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.

[. . .]

(1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).

(Penal Code, § 11165.1(a), (c).)

Accordingly, the court finds that the Plaintiffs’ claim for breach of mandatory duty for failure to report suspected child abuse falls under CCP § 340.1 because it is an “action for recovery of damages suffered as a result of childhood sexual assault” because it is against an “entity” whose wrongful, negligent, or intention violation of CANRA “was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.” (CCP § 340.1.)

Finally, the legislative history of Government Code section 905, subdivision (m) confirms that the purpose of that section was ‘to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible, whether those responsible are private or public entities....’ [Citation.] The author of the legislation explained this would be accomplished ‘by specifically exempting Section 340.1 civil actions for childhood sexual abuse from government tort claim requirements, thereby treating Section 340.1 actions against public entities the same as those against private entities.’ [Citation].

(A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1264.)

Therefore, under Gov. Code § 905(m), Plaintiffs’ second cause of action is exempt from the California Tort Claims Act.

LAUSD also argues that the second cause of action fails to articulate a statutory basis that allows Plaintiffs to bring a civil action against a public entity for failure to report suspected sexual abuse. Gov. Code § 815(a) “establishes the basic rules that public entities are immune from liability except as provided by statute.” (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1382.) “‘In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded.’” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App 4th 1056, 1061 citing Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.)

Although not specifically stated in statutory provisions of CANRA, private causes of action against a public entity are permitted for violating CANRA’s mandatory reporting requirements. Plaintiffs’ right to bring a private action for breach of the mandatory duty to report suspected child abuse stems from the mandatory provisions of Penal Code § 11166 and liability imposed on public entities pursuant to Gov. Code §§ 815.6, 815.2. (See B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179.) Under Penal Code § 11166, CANRA requires that mandated reporters, including teachers and certain other school employees, report known or suspected incidents of child abuse or neglect. (See Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 138. “In addition, an injured minor may bring a civil action where a breach of the mandated reporter's duty to report child abuse causes the minor's injuries.” (Id. [internal citations and quotations omitted].) Therefore, Plaintiffs are required to articulate if LAUSD’s liability is imposed due to a breach of a mandatory duty under Gov. Code § 815.6 and/or vicarious liability under Gov. Code § 815.2. The second cause of action is devoid of such information.

In Doe v. City of Los Angeles (2007) 42 Cal.4th 531, the California Supreme Court asserted that a plaintiff seeking shelter under CCP § 340.1(b)(2) need only plead “ultimate rather than evidentiary facts” and “‘may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’[Citation].”(Id. at p. 550.) The Court further noted that “the doctrine of less particularity may be especially appropriate in this setting” where the defendant has superior knowledge of the perpetrator's past acts of unlawful sexual conduct. (Id.)

Consequently, Plaintiffs are not required to specifically state when LAUSD allegedly received information regarding sexual abuse necessitating a report pursuant to CANRA because such information is more in the purview of LAUSD’s knowledge than that of Plaintiffs. Although to prevail on their claim for breach of the mandatory duty to report suspected abuse under CANRA, Plaintiffs “must prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew,” at the pleading stage Plaintiffs are not required to prove their allegations. (See Doe v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at p. 119; Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610 [“Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.”].) Thus, the second cause of action does not fail due to the Plaintiffs’ failure to state when LAUSD learned of the child abuse.

That Plaintiffs are not required to plead facts with specificity does not excuse Plaintiffs’ failure to state a statutory basis for LAUSD’s liability for the second cause of action because such information is not only required but necessary in order for LAUSD to adequately prepare a defense.

Therefore, the demurrer to the second cause of action is sustained with leave to amend.

B. Seventh Cause of Action – Sexual Harassment under Education Code §§ 200 et seq.

LAUSD asserts that Gov. Code § 905(m) does not exempt a claim for sexual harassment under Educ. Code §§ 200 et seq. from the claim submission requirements of the California Tort Claims Act. In other words, because the Plaintiffs’ seventh cause of action is for sexual harassment, rather than childhood sexual assault, the seventh cause of action is barred because the Plaintiffs failed to comply with the claims presentation requirement of the California Tort Claims Act.

Plaintiffs appear to acquiesce that their seventh cause of action is insufficiently pled and state they can add allegations that Defendant Jerome A. Lowe specifically violated Educ. Code § 212.5.

Educ. Code § 212.5 defines “Sexual harassment” as:

[U]nwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

(a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

(b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

(c) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

(d) Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

Plaintiffs fail to show that a violation of Educ. Code § 212.5 for sexual harassment qualifies as “an action for recovery of damages suffered as a result of childhood sexual assault[.]” (CCP § 340.1.) Specifically, Plaintiffs fail to show that sexual harassment as defined in Educ Code § 212.5 fits the definition of sexual assault under CCP § 340.1(d).

As LAUSD points out, in A.M. v. Ventura Unified School Dist., supra, 3 Cal.App.5th at p. 1264, fn. 4, the Court of Appeal found that the plaintiff’s “claims for harassment and other nonsexual abuse claims” were not exempt from the claim presentation requirement under Gov. Code § 905(m) and the plaintiff was barred from pursuing those claims. Similarly, here, Plaintiff’s seventh cause of action for sexual harassment under Ed. Code §§ 200 is not an action for recovery of damages for childhood sexual assault under CCP § 340.1 and is thus not exempt from the claims presentation requirement under Gov. Code § 905(m).

Therefore, the seventh cause of action is barred due to the Plaintiffs' failure to show that they complied with the claims presentation requirements of the California Tort Claims Act. Thus, the demurrer to the seventh cause of action is sustained with leave to amend.

III. Motion to Strike

Defendant LAUSD moves to strike Paragraph 2 in the Prayer for Damages requesting attorney’s fees’ pursuant to CCP § 1021.5 on the basis that the FAC lacks sufficient allegations to support recovery of fees under that statute.

CCP § 1021.5 stats, in the relevant part:

Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

(CCP § 1021.5.)

Defendants assert that the FAC fails to make the allegation that Plaintiffs are enforcing an important right affecting the public interest or any allegation suggesting that if Plaintiffs prevail in their lawsuit, a “significant benefit” would be conferred on either the general public or a large class of persons. (CCP § 1021.5.) Plaintiffs argue that though not explicitly stated, they are enforcing “an important right affecting the public interest” or conferring a “significant benefit” to the general public or a large group of people because they seek to enforce CANRA and Ed. Code § 200 et seq. and ensure a safe educational environment at LAUSD. The court finds that because LAUSD has not demurred to the other causes of action in the FAC and the FAC pertains to childhood sexual abuse, Plaintiffs are seeking to enforce an important public right affecting the public interest.

Secondly, LAUSD argues that Plaintiffs are required to attempt to settle their claims before seeking attorney’s fees under CCP § 1021.5. Attorney’s fees under CCP § 1021.5 may be appropriate under a catalyst theory where the plaintiff establishes that “‘(1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense ...; and, (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit.’” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 594.) Therefore, according to LAUSD, Plaintiffs are required to attempt to settle the litigation if they are seeking attorney’s fees pursuant to CCP § 1021.5 under a catalyst theory. However, if the Plaintiffs are not seeking fees under a catalyst theory, Plaintiffs are free to request fees under CCP § 1021.5 without proving that they attempted to settle this action. LAUSD fails to point to allegations in the FAC that suggest Plaintiffs are seeking to recover attorney’s fees under a catalyst theory.

In non-catalyst cases, the California Supreme Court declined to extend the requirement that the plaintiff attempt to settle the action before seeking attorney’s fees under CCP § 1021.5:

[The] language [of CCP § 1021.5] does not expressly or by necessary implication require that the plaintiff have attempted to settle the dispute; it requires, instead, only that the court determine that private enforcement was sufficiently necessary to justify the award.

(Vasquez v. State of California (2008) 45 Cal.4th 243, 251–252; see also Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc. (2010) 180 Cal.App.4th 1542, 1550 [explaining that the requirement of pre-suit settlement attempts was left intact for catalyst cases].) Thus, in awarding fees under CCP § 1021.5 for non-catalyst cases, the court may consider “whether the party seeking fees attempted to resolve the matter without litigation.” (Vasquez, at p. 251.)

To be sure, failed attempts to settle can help to demonstrate that litigation was necessary, but the absence of settlement attempts does not logically or necessarily demonstrate the contrary. Depending on the circumstances of the case, attempts to settle may have been futile, exigent circumstances may have required immediate resort to judicial process, or prior efforts to call the problem to the defendant's attention—perhaps by other parties or in other proceedings—may have been rebuffed.

(Id. at p. 252.)

The court finds that it would be premature to determine that the Plaintiffs are not entitled to attorney’s fees under CCP § 1021.5 when the Plaintiffs have yet to prevail in their suit and the merits of Plaintiffs' request for attorney’s fees is not yet before the court. Whether the parties attempted to settle this action, whether such attempts would have been futile, or if other circumstances suggest that private enforcement was necessary are issues of fact and LAUSD has failed to show that Plaintiff’s request for attorney’s fees under CCP § 1021.5 is irrelevant, false, or improper and that the defect appears on the face of the pleading. (CCP §§ 436(a), 437.)

Therefore, Defendant’s Motion to Strike is denied.

Conclusion

Defendant LAUSD’s demurrer to the second and seventh causes of action is sustained with leave to amend. Defendant’s motion to strike is denied.

Dated: October __, 2023 _______________________________

Gail Killefer

Judge, Los Angeles Superior Court

[1] Pursuant to CCP §§ 430.41, 435.5(a), the meet and confer requirement has been met. (Burnet Decl. ¶¶3-6, Ex. A, B.)