Judge: Joel L. Lofton, Case: 22STCV16649, Date: 2023-05-23 Tentative Ruling

Case Number: 22STCV16649    Hearing Date: May 23, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      May 23, 2023                          TRIAL DATE: No date set.

CASE:                         T.C. v. PASADENA UNIFIED SCHOOL DISTRICT; and DOES 2 through 25, inclusive.

CASE NO.:                 22STCV16649

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant Pasadena Unified School District

RESPONDING PARTY:      Plaintiff T.C.

SERVICE:                              Filed April 20, 2023

OPPOSITION:                       Filed May 10, 2023

REPLY:                                   Filed May 16, 2023

RELIEF REQUESTED

            PUSD demurrers and moves to strike Plaintiff’s first amended complaint.

BACKGROUND

             This case arises out of Plaintiff T.C.’s (“Plaintiff”) claim he was sexually assaulted from approximately 1985 to 1986. Plaintiff’s claim is a revival claim pursuant to Code of Civil Procedure section 340.1. Plaintiff alleges he was sexually assaulted while he was a student at Pasadena Unified School District (“PUSD”). Plaintiff filed a first amended complaint on March 21, 2023, alleging four causes of action for (1) negligence, (2) negligence, (3) negligent hiring retention, and supervision, and (4) negligent hiring, retention, and supervision.

TENTATIVE RULING

            PUSD’s demurrer is OVERRULED.

            PUSD’s motion to strike Plaintiff’s prayer for treble damages is GRANTED. The remainder of PUSD’s motion to strike is DENIED. 

LEGAL STANDARD

 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.)

            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

            Demurrer

            PUSD demurrers to all four causes of actions alleged in Plaintiff’s complaint on the sole basis that the causes of action are duplicative. Plaintiff’s first and second causes of action seek to allege negligence, and Plaintiff’s third and fourth causes of action allege negligent hiring, retention, and supervision.

“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.)

            In Palm Springs Villas II Homeowners Assn., Inc v. Parth (2016) 248 Cal.App.4th 268, 290, the Court, citing Rodriguez v. Campbell Industries (1978) 87 Cal.App.3d 494, 501, stated that duplicative causes of action were grounds for sustaining a demurrer. In Rodriguez, the Court sustained a demurrer for a cause of action that “combine[d] all the preceding causes, alleging they are joint and concurrent causes of plaintiffs' damages.” (877 Cal.App.3d at p. 498.) The Rodriguez Court held that the deficient cause of action “contain[ed], by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery.” (Id. at p. 501.)

PUSD argues that because each of Plaintiff’s causes of action rely on the same underlying set of facts, they are necessarily duplicative. PUSD asserts that Plaintiff should be required to consolidate his causes of action but also argues that its demurrer should be sustained in its entirety without leave to amend. PUSD’s arguments are unavailing. Plaintiff’s causes of action, while similar, are not the same. Plaintiff’s first and third causes of action are specifically alleged as to PUSD, while Plaintiff’ second and fourth causes of actions are alleged against Does 2 through 25. Further, Plaintiff’s third and fourth causes of action allege a more specific type of negligence than his first and second causes of action. Plaintiff’s causes of action are not subject to demurrer simply because they are based on the same set of facts.

PUSD’s demurrer is overruled.  

            Motion to Strike

            PUSD first moves to strike Plaintiff’s prayer for treble damages under Code of Civil Procedure section 340.1, subdivision (b)(1).

            “In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.” (Code Civ. Proc. section 340.1, subdivision (b)(1).)

            “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.” (Gov. Code section 818.) “[U]nder the Tort Claims Act, a plaintiff who alleges injury caused by a public entity may be entitled to actual damages for that injury, but not punitive damages.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145.)

            In Los Angeles Unified School Dist. v. Superior Court (2021) 64 Cal.App.5th 549, 567, the Court of Appeal held that the treble damages provision of section 340.1 is primarily intended to punish coverups rather than compensate victims and is thus not allowed in claims against public entities. The California Supreme Court granted review of Los Angeles Unified School Dist. The case, however, may still be cited for its persuasive value and for the “for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion . . . to choose between sides of any such conflict.” (Los Angeles Unified School District v. S.C. (2021) 282 Cal.Rptr.3d 638.)

            In opposition to PUSD’s motion to strike Plaintiff argues that because the California Supreme Court’s decision may be published soon, this court should hold off on striking Plaintiff’s claim for treble damages. Plaintiff does not cite other authority that his claim for treble damages is proper against a public entity. Other appellate courts have also reached the same conclusion as the Court in Los Angeles Unified School Dist. (See K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 742.)

            At the current juncture, based on the fact that current persuasive authority laid out by the various appellate courts and because of the lack of any argument by Plaintiff that his treble damages claim is substantively proper, the court deems the prudent course of action would be to grant PUSD’s motion to strike. However, if there is a change in the law the Responding party is free to bring it to the courts attention and seek appropriate relief pursuant to Code Civ. Proc., § 1008(c).

            PUSD also moves to strike language used by Plaintiff in his complaint. Specifically, PUSD moves to strike references to Plaintiff’s alleged assailant as “PERPETRATOR” and “sexual predator”, in additional to references to PUSD as “SCHOOL” or “ELEMENTARY SCHOOL”. The pleadings, however, are not evidence. (See Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283.)

            PUSD’s motion to strike Plaintiff’s prayer for treble damages is granted. The remainder of PUSD’s motion to strike is denied. 

CONCLUSION

            PUSD’s demurrer is OVERRULED.

            PUSD’s motion to strike Plaintiff’s prayer for treble damages is GRANTED with no leave to amend. The remainder of PUSD’s motion to strike is DENIED. 

            Moving Party to give notice.

Dated:   May 23, 2023                                                ___________________________________

                                                                                    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