Judge: Joel L. Lofton, Case: 22STCV15003, Date: 2022-12-05 Tentative Ruling
Case Number: 22STCV15003 Hearing Date: December 5, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: December
5, 2022 TRIAL DATE: No date set.
CASE: MARI MIURA, a
minor by and through her guardian ad litem CALVIN JOHN BLASCO, v. SOUTH
PASADENA UNIFIED SCHOOL DISTRICT, a public entity, and DOES 1 through 50,
inclusive.
CASE NO.: 22STCV15003
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant South Pasadena
Unified School District
RESPONDING PARTY: Plaintiff
Mari Miura
SERVICE: Filed August 16, 2022
OPPOSITION: Filed October 19, 2022
REPLY: Filed October 27, 2022
RELIEF
REQUESTED
Defendant demurrers to each cause of action in Plaintiff’s complaint.
Defendant moves to
strike Plaintiff’s prayer for punitive damages, attorney’s fees, civil
penalties, and treble damages.
BACKGROUND
Plaintiff Mari Miura (“Plaintiff”) brings this
claim against Defendant South Pasadena Unified School District (“Defendant”) alleging
that Defendant failed to take reasonable steps or implement reasonable
safeguards to prevent Plaintiff from being sexually assaulted. Plaintiff
alleges that she was sexually molested, raped, assaulted, fondled, groped, and
battered by another student (“Assailant”) on October 2, 2021, while she was a
student at South Pasadena High School. Plaintiff alleges she informed
Defendant, but Defendant failed to prevent Plaintiff from being sexually
assaulted on multiple occasions.
Plaintiff filed this complaint on
May 5, 2022, alleging four causes of action for (1) negligence, negligent
hiring, training, retention, and/or supervision of unfit employees, (2)
intentional infliction of emotional distress, (3) breach of mandatory statutory
duties which proximately caused Plaintiff s sexual assault and battery, and (4)
breach of mandatory statutory duties which proximately caused Plaintiff
additional damages separate and distinct from her sexual assault and battery.
TENTATIVE RULING
Defendant’s
demurrer to Plaintiff’s first and second causes of action is SUSTAINED with
leave 20 days to amend.
Defendant’s
demurrer to Plaintiff’s third and fourth causes of action is OVERRULED.
Defendant’s
motion to strike Plaintiff’s prayer for punitive damages is GRANTED without leave
to amend.
Defendant’s
motion to strike Plaintiff’s prayer for attorney’s fees is DENIED.
Defendant’s
motion to strike Plaintiff’s prayer for civil penalties and treble damages is
GRANTED with 20 days leave to amend.
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably
respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
First Cause of Action
Defendant
demurrers to Plaintiff’s first cause of action for negligence, negligent
hiring, training, retention, and/or supervision of unfit employees.
Defendant
first argues that Plaintiff’s first cause of action is uncertain because it
combines two separate theories of liability. Plaintiff concedes that her first
cause of action should be separated into two separate causes of action and
agrees to do so in an amended pleading.
Additionally,
Defendant asserts that Plaintiff’s claim for negligent hiring, supervision, and
retention fails to allege sufficient facts to state a cause of action. Defendant
argues that Plaintiff broadly alleges that Defendant engaged in negligent
hiring, supervision, or retention without identifying any employee that
Defendant negligently hired, supervised, or retained. Defendant also argues
that Plaintiff fails to allege facts that support her claim that Defendant knew
or should have known its employees failed to act.
“The elements of a cause of action
for negligence are duty, breach, causation, and damages.” (Melton v.
Boustred (2010) 183 Cal.App.4th 521, 529.) “ ‘An employer may be liable to
a third person for the employer's negligence in hiring or retaining an employee
who is incompetent or unfit.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139.) “Negligence liability will be imposed on an employer
if it ‘knew or should have known that hiring the employee created a particular
risk or hazard and that particular harm materializes.’ ” (Ibid.) “To
establish negligent supervision, a plaintiff must show that a person in a
supervisorial position over the actor had prior knowledge of the actor's
propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902.)
In opposition, Plaintiff argues her complaint pleads sufficient
“ultimate facts”. However, “a demurrer accepts as true all well pleaded facts
and those facts of which the court can take judicial notice but not deductions,
contentions, or conclusions of law or fact.” (Fox v. JAMDAT Mobile, Inc. (2010)
185 Cal.App.4th 1068, 1078.) Here, Plaintiff’s claim for negligent hiring does
not identify any employee that is alleged to be unfit or incompetent. Further,
Plaintiff’s complaint does not allege how Defendant negligently hired,
supervised, or retained any unfit employee. Plaintiff’s claim here amounts to a
legal conclusion that Defendant negligently hired employees because Plaintiff
suffered harm. Plaintiff’s complaint fails to sufficiently state facts to
allege a claim for negligent hiring, training, retention, or supervision.
Defendant’s demurrer to Plaintiff’s first cause of action is
sustained with leave to amend.
Second Cause of Action
“ ‘ “[T]o state a cause of action for
intentional infliction of emotional distress a plaintiff must show: (1)
outrageous conduct by the defendant; (2) the defendant's intention of causing
or reckless disregard of the probability of causing emotional distress; (3) the
plaintiff's suffering severe or extreme emotional distress; and (4) actual and
proximate causation of the emotional distress by the defendant's outrageous
conduct.” ’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 832.) “ ‘Conduct, to be “ ‘outrageous’ ” must be so
extreme as to exceed all bounds of that usually tolerated in a civilized
society.’ ” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)
Defendant demurrers to Plaintiff’s second cause of action for
intentional infliction of emotional distress on the grounds that Plaintiff
fails to allege that any of Defendant’s employees acted outrageously or
intended to cause Plaintiff emotional distress. In opposition, Plaintiff agrees
to withdraw her claim for intentional infliction of emotional distress.
Defendant’s
demurrer to Plaintiff’s second cause of action is sustained.
Third
and Fourth Causes of Action
Defendant argues that Plaintiff failed to
identify the specific employee that failed to act as and cites statutes
inapplicable to the facts alleged.
Government Code section 815.6 provides: “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
alleges that Defendant was informed that Assailant had sexually abused other
students prior to October 2, 2021, including specific actions against
Plaintiff. (Complaint ¶ 74.) Plaintiff
alleges that she reported the abuse to Defendant, but Defendant’s employees
trivialized the incident, denied wrongdoing, and stated there was nothing to
investigate or report. (Id. ¶ 77.) Plaintiff alleges that Defendant
failed to comply with Penal Code section 11166, subdivision (a).
Penal Code section 11166, subdivision (a), provide: “Except as
provided in subdivision (d), and in Section 11166.05, a mandated reporter shall
make a report to an agency specified in Section 11165.9 whenever the mandated
reporter, in the mandated reporter’s professional capacity or within the scope
of the mandated reporter’s employment, has knowledge of or observes a child
whom the mandated reporter knows or reasonably suspects has been the victim of
child abuse or neglect. The mandated reporter shall make an initial report by
telephone to the agency immediately or as soon as is practicably possible, and
shall prepare and send, fax, or electronically transmit a written follow up
report within 36 hours of receiving the information concerning the incident.
The mandated reporter may include with the report any nonprivileged documentary
evidence the mandated reporter possesses relating to the incident.”
At this
stage of the proceedings, Plaintiff’s allegations are sufficient to allege that
Defendant failed to follow its statutory obligations under Government Code
section 815.6 and Penal Code section 11166, subdivision (a). Defendant’s
argument that Plaintiff’s claim fails because she fails to identify the
specific employees is rejected. This claim is distinct from Plaintiff’s first
cause of action for negligent hiring, supervision, and retention because
Plaintiff’s first cause of action was dependent on Plaintiff’s claim that
Defendant hired an employee that was incompetent and unfit, which Plaintiff
failed to support with factual allegations. Plaintiff’s first cause of action
relied almost entirely on legal conclusions. Plaintiff’s third cause of action,
however, alleges that Defendant and its employees had a statutory duty but failed
to follow that duty after Defendant learned of Assailant’s sexual abuse of
other students and Plaintiff.
Further,
Defendant similarly argues that Plaintiff fails to allege a claim for violation
of other statutes because Plaintiff does not identify which employee was
informed of Assailant’s actions. Defendant cites no authority for the
proposition that Plaintiff is required to plead the identity of the mandated
reported that failed to comply with his or her statutory duty. Defendant cites Doe
v. Los Angeles County Dept. of Children & Family Services (2019)
37 Cal.App.5th 675, but the language Defendant cites from pertained to the
plaintiff’s negligence claim rather than a claim for breach of statutory duty. At
the pleading stage, Plaintiff’s claims are sufficient.
Defendant’s
demurrer to Plaintiff’s third and fourth causes of action is overruled.
Motion
to Strike
Defendant
moves to strike language in Plaintiff’s complaint that pertains to Plaintiff’s
prayer for punitive damages, attorney’s fees, civil penalties, and treble
damages.
Punitive
Damages
Government
Code section 818 provides: “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.”
Defendant
asserts that Plaintiff’s prayer for punitive damages is improper. Plaintiff
concedes that point and agrees to withdraw her request for punitive damages in
an amended pleading.
Defendant’s
motion to strike Plaintiff’s prayer for punitive damages is granted.
Attorney’s
Fees
Defendant
asserts that Plaintiff’s prayer for attorney’s fees is improper under Code of
Civil Procedure section 1021.5.
Under Code
of Civil Procedure section 1021.5, “three requirements must be met in order for
a successful party to recover attorney fees: (1) the action has resulted in the
enforcement of an important right affecting the public interest, (2) a
significant benefit, whether pecuniary or nonpecuniary, has been conferred on
the general public or a large class of persons, and (3) the necessity and
financial burden of private enforcement make the award appropriate.” (Planned
Parenthood v. Aukhus (1993) 14 Cal.App.4th 162, 169-170.)
Defendant argues
that Plaintiff’s claims only benefit Plaintiff personally as opposed to
affecting the public interest and that Plaintiff has a significant stake in the
present litigation. Defendant’s arguments pertain to questions of fact not
determined at the pleading stage. Here, Plaintiff alleges that she is advancing
an important public interest right and that the public will receive a benefit.
(Complaint ¶¶ 81 and 91.) At this stage,
Plaintiff’s allegations are sufficient.
Defendant’s motion to strike Plaintiff’s prayer for
attorney’s fees is denied.
Civil Penalties and Treble Damages
Defendant also argues that
Plaintiff fails to indicate the basis for civil penalties and treble damages.
Plaintiff concedes this point and offers to provide further context in an
amended pleading.
Defendant’s
motion to strike Plaintiff’s prayer for civil penalties and treble damages is
granted.
CONCLUSION
Defendant’s
demurrer to Plaintiff’s first and second causes of action is SUSTAINED with 20
days leave to amend.
Defendant’s
demurrer to Plaintiff’s third and fourth causes of action is OVERRULED.
Defendant’s
motion to strike Plaintiff’s prayer for punitive damages is GRANTED without
leave to amend.
Defendant’s
motion to strike Plaintiff’s prayer for attorney’s fees is DENIED.
Defendant’s
motion to strike Plaintiff’s prayer for civil penalties and treble damages is
GRANTED with 20 days leave to amend.
Moving party
to give notice.
Dated: December 5, 2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org