Judge: Gary I. Micon, Case: 23CHCV00665, Date: 2024-04-18 Tentative Ruling


Case Number: 23CHCV00665    Hearing Date: April 18, 2024    Dept: F43

Dept. F43

Date: 4-18-24

Case #23CHCV00665, Arif Marwan Halaby, et al. vs. Los Angeles Unified School District, et al.

Trial Date: N/A

 

DEMURRER TO FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendant Los Angeles Unified School District

RESPONDING PARTIES: Plaintiff Arif Marwan Halaby, by and through his Guardian Ad Litem, Marwan Halaby

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint (FAC)

·         3rd Cause of Action for Negligence

·         4th Cause of Action for Negligent Hiring, Supervision, and Retention

·         5th Cause of Action for Breach of Mandatory Duty

 

RULING: Demurrer is sustained with leave to amend

 

SUMMARY OF ACTION

Plaintiff Arif Marwan Halaby (Plaintiff) alleges that on March 14, 2022, a teacher at a Defendant Los Angeles Unified School District (Defendant) middle school verbally assaulted Plaintiff and then physically assaulted him by grabbing Plaintiff by his neck. Plaintiff alleges, upon information and belief, that this teacher, Cornelius Redick, had previously verbally and physically assaulted students at the middle school, thus placing Defendant on notice that Redick posted a threat to students. Plaintiff alleges that Defendant is vicariously liable under Gov. Code §§ 815.2 and 815.4 for its employees’ breach of duty to protect students and breach of their duty to adequately hire, train, and supervise their staff. Plaintiff also alleges that Defendant breached its mandatory duty to report Redick pursuant to Penal Code § 11166.

 

Plaintiff’s original complaint was filed on March 7, 2023. Plaintiff filed a First Amended Complaint (FAC) on September 25, 2023. Plaintiff alleged five causes of action. Defendant filed its demurer to Plaintiff’s Third, Fourth, and Fifth Causes of Action on November 29, 2023. Plaintiff opposes Defendant’s demurrer.

 

ANALYSIS

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.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

Third Cause of Action

Defendant demurs to Plaintiff’s Third Cause of Action for Negligence on the basis that it fails to state facts sufficient to constitute a cause of action against Plaintiff and is uncertain.

 

Plaintiff has alleged that Defendant is negligent based on Gov. Code § 815.2. That sections states that “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.” (Gov. Code § 815.2(a).)

 

It is unclear from Plaintiff’s FAC if Plaintiff is alleging that just Redick’s act or omission is the basis for the cause of action or if it is other administrators, principals, and agents of the school. (FAC, ¶¶ 28-30.) In this manner, because it unclear exactly which employees Plaintiff is alleging acted with negligence pursuant to CCP § 815.2, Plaintiff’s FAC is uncertain.

 

Defendant argues that Plaintiff also failed to plead this cause of action with the required particularity. “To state a cause of action against a public entity, every fact material to the existence of the statutory liability must be pleaded with particularity.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 410, fn. 2.) Defendant argues this because the FAC is unclear as to who acted with negligence.

 

Defendant also argues that imposing liability for negligent supervision of a minor requires prior actual knowledge. The cases that Defendant cites, Romero v. Super. Ct. (2001) 89 Cal.App.4th 1068 and Margaret W. v. Kelly R. (2006) 139 Cal.App.4th 141, are not directly applicable to the current situation. Both cases involve parents inviting another person’s child into their home and more closely follow the duty a landowner owes to invitees of their home. Plaintiff argues that these cases are inapposite and not applicable to this case. The Court agrees that they are inapposite. Furthermore, the Court of Appeal has held that “The public policy reasons surrounding the Romero[ ] rule do not exist in the context of a school district’s supervisory responsibilities. (Doe v. Lawndale Elementary School District (2021) 72 Cal.App.5th 113, 129.)

 

Plaintiff also argues in opposition that prior actual knowledge is not necessary and either actual knowledge or notice of past unlawful conduct or constructive knowledge is sufficient. (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 717-718; see also Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549.)

 

“‘Thus, the statute does not directly impute knowledge to the nonperpetrator defendant based on what that defendant should have noticed, but requires an assessment of the facts that the defendant did know in order to determine whether a reasonable person would have inferred the unlawful conduct.’ (Citation.) ‘Under Doe, notice is measured by the facts known to the defendant—either knowledge of the fact that prior unlawful conduct had occurred, or knowledge of facts from which such prior unlawful conduct should be inferred—not by facts which the defendant should have discovered or should have noticed.’” (Santillan, 202 Cal.App.4th at 718.)

 

Plaintiff’s FAC alleges that “On information and belief, Redick had previously verbally and physically assaulted students at GKPMS, along with the use of profanity when speaking to students at GKPMS. As such, LAUSD and GKPMS knew, or should have known that Redick posed a threat of harm to their students, including Plaintiff.” (FAC, ¶ 29.)

 

Defendant argues that this is not sufficient to allege notice of past unlawful conduct because it does not allege when, where, how, or which of Defendant’s employees were involved. The Court agrees that some more information concerning these past incidents is needed to make the complaint less uncertain, and Plaintiff does not meet the standard set forth in Santillan. The current statement in Paragraph 29 is conclusory and vague. It does not indicate how Defendant allegedly came by this knowledge, and it does not give any indication of what facts Defendant might have known.

 

Finally, Defendant argues that Plaintiff alleged that Defendant had a mandatory duty, but Plaintiff does not specify what the mandatory duty was and thus it is insufficiently alleged. Mandatory duties are those imposed “by an enactment” that “requires a public agency to take a particular action.” (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 308.) Plaintiff’s FAC does not identify under this cause of action what statute would impose a mandatory duty. Therefore, Plaintiff has not sufficiently alleged that Defendant had a mandatory duty.

 

Plaintiff fails to allege facts sufficient to constitute a cause of action for negligence, and Plaintiff’s FAC is uncertain as to which employee or employees were negligent. Therefore, Defendant’s demurrer to Plaintiff’s Third Cause of Action is sustained with leave to amend.

 

Fourth Cause of Action

Defendant demurs to the Fourth Cause of Action for Negligent Hiring, Supervision and Retention on the basis that it fails to state facts sufficient to constitute a cause of action against Plaintiff and is uncertain.

 

Plaintiff has alleged that Defendant is liable for negligent hiring, supervision and retention based on Gov. Code § 815.2, 815.4, and 820. In California, an employer can be vicariously liable for negligent hiring, retention, and supervision only if the employer knows the particular employee is unfit for the job or has reason to believe the employee is unfit for the position for which he was hired. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.)

 

As with the previous cause of action, Plaintiff’s FAC alleges that “On information and belief, Redick had previously verbally and physically assaulted students at GKPMS, along with the use of profanity when speaking to students at GKPMS. As such, LAUSD and GKPMS knew, or should have known that Redick posed a threat of harm to their students, including Plaintiff.” (FAC, ¶ 38.)

 

Once again, Defendant argues that this is not sufficient to allege notice of past unlawful conduct because it does not allege when, where, how, or which of Defendant’s employees were involved. However, as was the case previously, Defendant does not cite any authority indicating that this information is necessary to allege notice of past conduct. The Court still finds that this statement is insufficient to allege that Defendant had any knowledge of Redick’s propensity for verbal and physical assault.

 

This cause of action is also vague and uncertain as to which employees Defendant failed to adequately hire, train, and supervise. (See FAC, ¶¶ 39-41.)

 

Accordingly, Defendant’s demurrer to Plaintiff’s Fourth Cause of Action is sustained with leave to amend on the basis that it is uncertain and fails to allege facts sufficient to constitute a cause of action against Defendant.

 

Fifth Cause of Action

Defendant demurs to Plaintiff’s Fifth Cause of Action for Breach of Mandatory Duty on the basis that it fails to state facts sufficient to constitute a cause of action against Plaintiff and is uncertain.

 

Gov. Code § 815.6 states that “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

 

Plaintiff’s Fifth Cause of Action alleges that Defendant had a mandatory duty to report the conduct of Redrick pursuant to Penal Code § 11166 (FAC, ¶ 46), which requires a mandatory reporter to report instances of abuse or neglect when they observe them. Defendant argues that because it is a school district, it is not one of the mandatory reporters contemplated by this section. Penal Code § 11165.7(a) defines “mandated reporter,” and all of the categories listed are individuals, not entities like Defendant. Defendant would not have a mandatory duty to report under Penal Code § 11166.

 

Next, Plaintiff alleges that Defendant had a mandatory duty of care under Education Code § 44807. (FAC, ¶ 47.) That section states “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. A teacher, vice principal, principal, or any other certificated employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. The provisions of this section are in addition to and do not supersede the provisions of Section 49000.”

 

While this imposes some form of supervisory duty on schoolteachers, Plaintiff does not allege how exactly Defendant breached this duty, or who breached this duty on Defendant’s behalf. It also only imposes this duty on individual employees, not on entities such as a school district.

 

Finally, Plaintiff alleges that Defendant had a mandatory duty of care under Cal. Code of Regulations, Title 5, § 5552. (FAC, ¶ 47.) However, Plaintiff once again failed to allege who breached this duty or how they breached it.

 

Because Plaintiff has failed to allege sufficient facts to maintain this cause of action, Defendant’s demurrer to Plaintiff’s Fifth Cause of Action is sustained with leave to amend.

 

Conclusion

Defendant’s demurrer is sustained with leave to amend for Plaintiff’s Third, Fourth, and Fifth Causes of Action.

 

Plaintiff is given 30 days to file an amended complaint.

 

Moving party to give notice.