Judge John J. Kralik, Case Number: 23BBCV00371, Date: 2023-10-20 Tentative Ruling

Plaintiff Angie S., by and through guardian ad litem, Ivonne S. (“Plaintiff”) alleges that she was the victim of repeated and continuous bullying, assault, battery, physical abuse, threats, and other misconduct during the 2021-2022 school year when she was 12 years old (a minor). Plaintiff alleges that Defendant Los Angeles Unified School District (“Defendant” or “LAUSD”) operated James Madison Middle School, where Plaintiff was a student when the harm occurred.

The first amended complaint (“FAC”), filed August 9, 2023, alleges causes of action for: (1) negligence (Gov’t Code, §§ 815.2, 815.4, 815.6, 820); (2) negligent supervision of a minor (Gov’t Code, §§ 815.2, 820); (3) breach of a mandatory duty (Edu. Code, §§ 44807, 49079; Gov’t Code, §§ 815.2, 815.6, 820); (4) negligent hiring (Gov’t Code, §§ 815.2, 815.4, 820); (5) negligent supervision (Gov’t Code, §§ 815.2, 815.4, 820); and (6) negligent retention (Gov’t Code, §§ 815.2, 815.4, 820).

Defendant demurs to each cause of action on the grounds that they fail to state sufficient facts to constitute causes of action against it and they are uncertain.

Under the statutory scheme in California, all government tort liability must be based on statute. (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653.) Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. (Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409.) Accordingly, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable. (Id.) In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute. (Id.) Further, in order to state a cause of action for government tort liability, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. (Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 96.) Since the duty of a public entity can only be created by statute, the statute claimed to establish the duty must be identified. (Id.)

Defendant demurs to the negligence causes of action alleged in the 1^st, 2^nd, 4^th, 5^th, and 6^th causes of action, arguing that any claim against Defendants must arise from a clearly pled statutory basis and with sufficient particularity. Defendant argues that Government Code, §§ 815.2, 815.4, 815.6, and 820 do not articulate a statutory duty on Defendant, but only identify circumstances in which breach of duty or other tortious action can be actionable against a public entity. (Dem. at p.5.)

In opposition, Plaintiff argues that there are 2 ways for a public entity like Defendant to be held liable for the negligent acts of its employees: (1) through a statutory violation under Government Code, §§ 815(a) and 815.6 or (2) through the theory of respondeat superior or vicarious liability under Government Code, §§ 815.2(a) and 820(a).

The Court has reviewed the Government Code sections cited by Plaintiff in support of her 1^st, 2^nd, 4^th, 5^th, and 6^th causes of action.[1] The FAC alleges sufficient facts to show that there is a statutory basis for liability against Defendant. For example, in the 1^st cause of action for negligence, Plaintiff alleges that Defendant is liability for the negligent acts/omissions of its employees/independent contractors committed in the course and scope of their employment. (FAC, ¶11.) Plaintiff alleges there is a special relationship between the school district (and its employees) and the students, so as to impose an affirmative duty on the district/employees to take reasonable steps to protect students from reasonably foreseeable risks of harm. (Id.) In the general allegations, Plaintiff alleges that she was bullied during recess throughout the 2021-2022 school year, by a group of middle school students and that she suffered physical and emotional injuries. (Id., ¶¶5-7.) Specifically, she alleges that a particular incident occurred on February 20, 2022 in the presence of one of Defendant’s employees, Norma Guerrero. (Id., ¶7.) Plaintiff alleges that Defendant’s administrators, teachers, and other employees (including Cheryl Bloom, Martin Tate, and Norma Guerrero) knew or should have known that students were continuously attacking Plaintiff, but they did not take care to foresee or avoid any situation that could be potentially dangerous to Plaintiff and failed to make Plaintiff’s parents aware of the abusive conduct. (Id., ¶¶8-9.)

Here, the allegations sufficiently allege negligence claims against Defendant for injury proximately caused by an act/omission of Defendant’s employee within the scope of his/her employment. (See Gov’t Code, § 815.2(a).) As pointed out by Plaintiff in her opposition brief, Plaintiff’s negligence claims are based on Defendant’s vicarious liability for its employee’s negligent actions/omissions. As this is the basis upon which Defendant demurred to the negligence causes of action, the Court overrules the demurrer to the 1^st, 2^nd, 4^th, 5^th, and 6^th causes of action.

Finally, in the reply brief, Defendant argues that it is immune from liability for disciplinary decisions of its employees under Government Code, § 820.2. (This argument was raised for the first time in the reply brief and was not addressed in the demurrer papers.) Section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” However, the allegations of the FAC do not allege that disciplinary decisions were made or should have been made by school personnel (such as expelling students). The facts currently alleged that Defendant knew or should have known that Plaintiff was being attacked and failed to take corrective and preventative action to protect Plaintiff. This may very well be a defense that Defendant can present in a later stage in the proceedings (such as a motion for summary judgment or at the trial), but the Court will not sustain the demurrer on this belated argument at this time.

Defendant demurs to the 3^rd cause of action, arguing that it is devoid of particular facts to establish the element of foreseeability for the 3^rd cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870 [“Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.”].)

“Students are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se. [Citation.] Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries. [Citations.] ‘It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities.... Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards.’ [Citations.] Further, ‘the issue of “foreseeability” does not depend upon the foreseeability of a particular third party's act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm.’” (M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519 [citations omitted].)

In the 3^rd cause of action, Plaintiff alleges that Defendant had an affirmative duty to take all reasonable steps to protect Plaintiff, including a mandatory duty to account for the health and safety of its students, as well as warn teachers and staff of known violent propensities of students, pursuant to Education Code, § 44807. (FAC, ¶21.) Plaintiff alleges that Defendant is liability to Plaintiff under the Government Code for the negligent actions/omissions of its employees/independent contractors. (Id.)

As currently alleged, the FAC lacks facts showing that Defendant was on notice of any violent propensities or threats of violence by the students who allegedly bullied, assaulted, battered, and/or physically abused Plaintiff. While Plaintiff alleges that there were several incidents prior to the specific February 20, 2022 event, Plaintiff has not alleged facts showing that Defendant was ever aware of threats of violence or actual violence against Plaintiff. At most, the allegations of the FAC are conclusory that Defendant knew or should have known about the students who continuously attacked Plaintiff and that they posed a danger to Plaintiff. (See FAC, ¶8.) While Defendant need not be on notice of prior events/injuries, Plaintiff should at least allege facts supporting the element of foreseeability.

Defendant’s demurrer to the First Amended Complaint is overruled as to the 1^st, 2^nd, 4^th, 5^th, and 6^th causes of action. The demurrer is sustained with 20 days leave to amend as to the 3^rd cause of action.

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[1] Government Code, § 815.2 states:

(a) 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.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

(Gov. Code, § 815.2.)

Government Code, § 815.4 states:

A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.

(Gov. Code, § 815.4.)

Government Code, § 815.6 states:

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.

(Gov. Code, § 815.6.)

Government Code, § 820 states:

(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.

(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.

(Gov. Code, § 820.)

Superior Court of California

County of Los Angeles

Department B