Judge Holly J. Fujie, Case Number: 24STCV01604, Date: 2024-05-13 Tentative Ruling

The Court has considered the moving, opposition., and reply papers. LAUSD’s Demurrer to Plaintiff’s Complaint (the “Demurrer”) is OVERRULED.

On January 19, 2024, Plaintiff John Doe filed a Complaint against LAUSD and Gabriela Cortez (“Cortez”) alleging eight causes of action arising from allegations of sexual abuse by Cortez while Plaintiff was a high-school student and Cortez was a Spanish teacher at his school. (Complaint, ¶ 10.) Plaintiff alleges that during his junior and senior year at Theodore Roosevelt High School (“Roosevelt High”) Cortez began grooming and conditioning Plaintiff with the intent of manipulating his emotions to take advantage of his young age in order to sexually abuse him. (Id.) Ultimately, Cortez was arrested in 2012 for sexual abuse against two other minors in a separate case, and pled guilty to six felony counts of unlawful sexual intercourse with minors. (Complaint, ¶ 13.)

5. Negligent Hiring, Supervision and Retention of an Unfit Employee (as against LAUSD)

6. Breach of Mandatory Duty: Failure to Report Suspected Child Abuse (Gov. Code §815.6) (as against LAUSD)

LAUSD demurs to the fifth, sixth and seventh causes of action. Plaintiff opposes the demurrer and LAUSD has filed a reply.

Concurrently filed with their moving papers, LAUSD files a request for judicial notice for the following:

1. Order on motion for judgment on the pleadings in Contra Costa County Superior Court case no. C22-02613, filed June 13, 2023;

2. Order on motion for judgment on the pleadings in Superior Court for the County of Monterey case no. 22CV003767, filed February 2, 2024;

3. Written order re: Demurrer in Los Angeles Superior Court, North Central District, case no. 22STCV23228;

Pursuant to Evid. Code §452(d), the request for judicial notice is granted as to items one, two, and three. Likewise, Plaintiff upon opposition files a request for judicial notice. Plaintiff requests that this Court judicially notice 59 exhibits, all of which are either (a) legislative documents, (b) orders issued by a court within this state, or (c) minute orders or rulings filed by a court within this state. Pursuant to Evid. Code §452(d), the request for judicial notice is granted as to all 59 exhibits, but not to the truth of the matters stated therein.

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. §430.41(a).) Defendant submits the Declaration of Ryan D. Miller (hereinafter, Miller Decl.) which states that the parties met and conferred but were unable to reach an agreement. (Miller Decl., ¶ 3.) The requirements of Code Civ. Proc. §430.41(a) have been met.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

In its moving papers, LAUSD presents 2 arguments: (1) as applied to public entities, the retroactive application of Assembly Bill 218 violates the California Constitution; and (2) the fifth, sixth and seventh causes of action fail to state facts sufficient to state a cause of action.

LAUSD’s first argument is that Plaintiff failed to comply with the claim presentation requirements outlined by the Government Claims Act (the “Act”). LAUSD acknowledges that Assembly Bill 218 (“AB 218”), which amends the law pertaining to civil suits for recovery of damages from alleged childhood sexual abuse, exempts sexual abuse allegations against public entities from this requirement.

LAUSD’s primary contention is that the California Legislature lacked the authority to allow for liability against a public entity for past acts of negligence. In making this contention, LAUSD argues that AB 218 violates a prohibition on gifting public funds contained in section six, article sixteen, of the California Constitution. This position ignores the longstanding presumption in favor of constitutionality of laws passed by the state’s legislature, which provides that invalidity of legislation must be clear before it can be declared unconstitutional. (Dittus v. Cranston (1959) 53 Cal.2d 284, 286.) With no authority to the contrary, LAUSD – and this Court – must heed the guidance of the Supreme Court of California in that “‘All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.’” With no clear and apparent unconstitutionality shown as to AB 218, this Court presumes the law to be valid, and OVERRULES LAUSD’s demurrer on that ground.

LAUSD next argues that the Complaint fails to put forth facts to support the fifth, sixth and seventh causes of action. LAUSD specifically contends in its Demurrer that “Nowhere in the Complaint does Plaintiff state any facts showing the nature and extent of any sexual abuse or harassment by perpetrator Cortez.” (Moving Papers, 13:19-21.)

First, LAUSD presents no authority requiring Plaintiff to detail each of every instance of sexual abuse by the perpetrator. “It has been consistently held that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action’” (Doe v. City of Los Angeles (2007) 42 Cal.4^th 531, 550. Internal quotations omitted.) By contrast, Plaintiff provides authority that the California Supreme Court has approved of lowering the factual specificity at the pleadings stage in circumstances similar to the one before the Court now. (Ibid.)

Second, as explained below, Plaintiff provides sufficient facts to enable LAUSD to prepare a defense.

The elements of a cause of action for negligent hiring, retention or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

There is no dispute between the parties with regard to the first element: Cortez was a teacher at Roosevelt High, hired by LAUSD. As to the second element, the allegations make clear that Cortez was incompetent, unfit and a danger to the students at Roosevelt High. Plaintiff alleged that Cortez groomed and conditioned Plaintiff with the specific intent of taking advantage of Plaintiff’s young age, ultimately to sexually abuse Plaintiff. (Complaint, ¶ 10.) The Complaint later alleges that Cortez was arrested in 2012 for unlawful sexual intercourse with minors. (Complaint, ¶ 13.)

The third element is satisfied because the Complaint alleges that Cortez “began engaging in openly flirtatious behavior towards Plaintiff, including physically touching him during school hours.” (Complaint, ¶ 11.) The Complaint makes clear that this was repeated behavior throughout the duration of the 2005-2006 school year that included Cortez sharing information about her personal life in her classroom during school hours and coercing Plaintiff to do the same. (Id.) Although no allegation recites actual notice to LAUSD, there are definitive allegations based on the facts that LAUSD should have known of the sexual abuse. (Also see Complaint, ¶ 35 & 61.) Finally, Plaintiff alleges the harm of the sexual abuse. With sufficient facts to maintain a cause of action for Negligent Hiring, Supervision and Retention, the Demurrer to the fifth cause of action is overruled.

2. Sixth Cause of Action: Breach of Mandatory Duty – Failure to Report Suspected Child Abuse under Gov. Code §815.6

Gov. Code §815.6 reads: “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.”

Here, the Complaint clearly alleges that even though LAUSD should have known or should have reasonably suspected the sexual abuse carried out by Cortez, it failed to comply with its duty as a mandated reporter. Plaintiff alleges that the abuse occurred throughout the 2005-2006 school year and that no employee of LAUSD complied with Gov. Code §815.6. The Demurrer to the sixth cause of action is overruled.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) The Complaint alleges that LAUSD was responsible for the care, custody, control, supervision and protection of minor students entrusted to them, and that LAUSD failed in its responsibility with regard to Plaintiff.

The Complaint alleges, and LAUSD does not deny, that a legal duty to Plaintiff existed. The Complaint then alleges a breach of that legal duty of care when Cortez sexually abused Plaintiff as described above. Finally, the Complaint alleges harm, and that LAUSD’s breach was a proximate cause of that harm, specifically by failing to act on constructive notice of Cortez’s misconduct. Therefore, the Demurrer as to the seventh cause of action is overruled.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court