Judge Holly J. Fujie, Case Number: 24STCV28374, Date: 2025-05-29 Tentative Ruling

MOVING PARTY: Defendants the City of Burbank, the Burbank Police Department and Aaron Funk (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiffs C.T., a minor, by and through her Guardian ad Litem, Amy Thomas (“C.T.”), Amy Thomas and Shawn Thomas (collectively, “Plaintiffs”)

This action involves allegations that a minor plaintiff was mistreated while a student at Thomas Edison Elementary School and improperly placed and held at a psychiatric hospital. Plaintiffs sue Defendants Burbank Unified School District, City of Burbank, Burbank Police Department, Del Amo Behavioral Health Systems, Rachel Zonshine, Laura Flosi, Jenna Fields, Aaron Funk, Xavier Lopez and Does 1 through 40 pursuant to an October 29, 2024, complaint. The operative first amended complaint (“FAC”) alleges causes of action for: (1) negligence; (2) negligence per se; 3. negligent infliction of emotional distress; (4) assault; (5) battery; (6) civil rights violation under 42 U.S.C. § 1983; (7) civil rights retaliation under 42 U.S.C. § 1983; (8) retaliation under Title II of the Americans with Disabilities Act of 1990 [42 U.S.C. § 12131–12134]; and (9) medical negligence.

On February 25, 2025, Moving Defendants filed the instant demurrer (“Demurrer”). On May 15, 2025, Plaintiffs filed an opposition (the “Opposition”) and on May 21, 2025, Moving Defendants filed a reply (the “Reply”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code of Civil Procedure (“CCP”) § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach 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.)

In 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, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer for uncertainty lies where the pleading is uncertain, ambiguous, or unintelligible. (CCP, § 430.10, subd. (f).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].)

Where a complaint is sufficient to state a cause of action and to apprise a defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

The necessary elements for negligence per se are: (1) that the defendant violated a statute, ordinance, or regulation; (2) that the violation caused an injury; (3) that the injury resulted from an occurrence which the law was designed to prevent; and (4) that the person suffering the injury was one of the class of persons for whose protection the law was adopted.¿(Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 267.)

The FAC alleges that Moving Defendants owed “C.T. a duty of care pursuant to California Education Code §§ 32261, 32280, 32281, and 32282, which mandate upon Defendants to investigate reports of bullying, provide adequate protection to students subject to bullying, and develop comprehensive safety plans to keep schools free of bullying” and that Moving Defendants “have breached this duty.” (FAC, ¶ 86.) The FAC alleges no facts, however, that Moving Defendants—the City of Burbank, the Burbank Police Department, or Officer Aaron Funk—failed to investigate a report of bullying, provide adequate protection to C.T. or develop a safety plan. In the Opposition, Plaintiffs argue that the FAC also cites Welfare and Institutions Code section 5585.50 as the basis for the negligence per se cause of action. (Opp., p. 5:23-24.) The FAC states only that “Defendants BUSD and its employees ZONSHINE, FLOSI, FIELDS, and DOES 1 through 10 owed C.T. a duty of care pursuant to Welfare and Institutions Code §§ 5150, 5150.05, and 5585.50.” (FAC, ¶ 88.) Moving Defendants are specifically omitted from this allegation. Thus, Plaintiffs fail to allege facts sufficient to state a negligence per se cause of action against Moving Defendants.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.)

Moving Defendants demur to the fourth and fifth causes of action on grounds that they are entitled to immunity under Welfare and Institutions Code section 5278 and Government Code (“Gov. Code”) section 856 subdivisions (a) and (b). (Demurrer, pp. 8:24-9:18.) Gov. Code section 856 immunizes public entities for injuries resulting from a determination, made with due care, regarding whether to confine a person for mental illness. (Gov. Code, § 856 subd. (b).) Welfare and Institutions Code section 5278 states that “[i]ndividuals authorized under this part to detain a person for 72-hour treatment and evaluation […] shall not be held either criminally or civilly liable for exercising this authority in accordance with the law.”

Moving Defendants assert that the FAC alleges facts that Moving Defendants had probable cause to detain C.T. (Demurrer, pp. 10:7-11:11.) The FAC alleges that another student reported that C.T. had expressed thoughts of suicide and that Burbank Unified School District and its employees “disclosed confidential information to the [Moving Defendants] and reported information that was inaccurate and misleading, causing C.T. to be taken into police custody.” (FAC, ¶¶ 42, 48, 89.) In the Opposition, Plaintiffs allege that Moving Defendants have not established an immunity defense as a matter of law because the facts alleged in the FAC are such that a reasonable person in Moving Defendants’ position “would have found C.T. was not a danger to herself or others, was not gravely disabled, and that voluntary treatment was both available and authorized.” (Opp., p. 6:16-18; FAC ¶¶ 51, 54-55.) On demurrer, the “reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Accordingly, Plaintiffs have sufficiently stated facts to allege that a reasonable officer in Moving Defendants’ position would not have detained C.T.

“Title 42 United States Code section 1983 provides in relevant part: ‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress… .’ [Citation] ‘To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.’ [Citation.] (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 384.)

Moving Defendants demur to the sixth cause of action on grounds that they are entitled to qualified immunity because a reasonable officer in a similar position, i.e. upon receiving information that C.T. expressed thoughts of suicide, would have concluded that she should be detained under Welfare and Institutions Code section 5585.50. (Demurrer, pp. 11:14-12:25.) In the Opposition, Plaintiffs argue that it was not reasonable for Moving Defendants to detain C.T. because C.T. expressly told Moving Defendants that “she does not have a plan” to harm herself and Moving Defendants told C.T.’s father that she “was not an immediate danger to herself or others.” (Opp., pp. 9:4-10:14; FAC ¶¶ 51, 55.) The FAC sufficiently alleges that Moving Defendants violated C.T.’s right to be free from involuntary detention without probable cause. Whether the facts alleged show that a reasonable officer would have believed that there was probable cause to detain C.T. involves factual determinations beyond the scope of a demurrer.

The Demurrer is OVERRULED as to the fourth, fifth and sixth causes of action and SUSTAINED, with 20 days leave to amend, as to the second cause of action.

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