Judge John J. Kralik, Case Number: 23BBCV02296, Date: 2024-02-02 Tentative Ruling

Plaintiff John Doe (“Plaintiff”) alleges that he was a minor attending John H. Francis Polytechnic High School (“Polytechnic High”), which is a part of Defendant Los Angeles Unified School District (“LAUSD”). Plaintiff alleges that Defendant Kirk Jeppson (“Jeppson”) is the Ninth Grade assistant principal, Defendant Gary Aragon (“Aragon”) was the Ninth Grade dean, and Defendant Lisa Donley-Jay (“Donley-Jay”) was the Ninth Grade counselor at Polytechnic High and they were employed by LAUSD.

Plaintiff alleges that he was enrolled at Polytechnic High for ninth grade during the 2022 to 2023 school year. He alleges that he had several problematic classmates who were bullying him, verbally harassed him, and made disparaging comments, which turned into physical harm. Plaintiff alleges he had 4 classes with the bullies and that at least 4 different teachers witnessed the bullying. Plaintiff alleges he was also cyberbullied. Plaintiff alleges he showed a video of him being punched in class by a bully to Jeppson, but Jeppson took no meaningful actions to stop the bullying. Plaintiff alleges that on January 31, 2023, he was jumped by the bullies during lunch, the assault was recorded, and school administrators witnessed the assault being recorded. He alleges that Jeppson downplayed the incident, but the video was posted on Instagram. Plaintiff alleges that the school officials took no meaningful actions though Plaintiff informed counselor Onley-Jay that he was threatened again. On February 7, 2023, Plaintiff was jumped again by the bullies in plain sight, the incident was recorded, and the video was again posted on Instagram. Plaintiff alleges that he and his family met with Jeppson and Aragon and that Jeppson blamed Plaintiff for the incident by claiming that the bullies said Plaintiff had sexually touched female students. After February 7, 2023, Plaintiff did not return to Polytechnic High and was transferred to another school.

The complaint, filed October 4, 2023, alleges causes of action for: (1) negligence; (2) negligent failure to warn; and (3) breach of mandatory duty.

On November 13, 2023, the dismissal without prejudice of Lisa Donley-Jay (only) was entered.

On November 15, 2023, LAUSD filed a demurrer and motion to strike portions of the complaint. On January 22, 2024, Plaintiff filed opposition briefs. On January 25, 2024, LAUSD filed a reply brief to the demurrer and a joint reply brief to the motion to strike with Jeppson.

On December 6, 2023, Jeppson filed a demurrer and motion to strike portions of the complaint. On January 22, 2024, Plaintiff filed opposition briefs. On January 25, 2024, Jeppson filed a reply brief to the demurrer and a joint reply brief to the motion to strike with LAUSD.

LAUSD and Jeppson demur to the 2^nd and 3^rd causes of action alleged in the complaint for negligent failure to warn (Gov’t Code, §§ 815.2(a) and 820) and breach of mandatory duty: failure to report suspected child abuse (Penal Code, § 11166 et seq.).[1] As the arguments are essentially the same in both demurrers brought by Defendants, the Court will consider the demurrers together.

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 § 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.) 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.)

In the 2^nd cause of action, Plaintiff alleges that LAUSD and Jeppson had a duty to warn students in their custody, care, and control like Plaintiff about known and knowable dangers posed by other students and they had knowledge that Plaintiff was being bullied and had been physically assaulted on campus. (Compl., ¶¶65-66.) Plaintiff alleges that LAUSD and Jeppson breached their duty to Plaintiff when they failed to warn him that the bullies would not be suspended from school, thereby posing a serious risk to Plaintiff. (Id., ¶67.) Plaintiff alleges that had LAUSD and Jeppson warned Plaintiff that no action would have been taken against the bullies, Plaintiff would have been kept home from school. (Id., ¶68.) Plaintiff alleges that he suffered as a result of LAUSD and Jeppson’s acts and omissions. (Id., ¶69.)

LAUSD and Jeppson argue that a public entity’s liability can only be derived by statute and there is no statute for a failure to warn cause of action.

“[A] school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) “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.[] This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by another student [citation], injury to a student by a nonstudent [citation] and—on facts remarkably close to the present case—injuries to a student resulting from a teacher's sexual assault [citation].” (Id. at 870 [internal quotation marks and footnote omitted]; see also Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 [“Similarly, a duty to warn or protect may be found if the defendant has a special relationship with the potential victim that gives the victim a right to expect protection.”].)
Here, the Court finds that Plaintiff has alleged sufficient facts showing that LAUSD and Jeppson had a duty to warn Plaintiff (and his parents) about the bullying and that LAUSD and Jeppson were not suspending the bullies, which allegedly posed a risk to Plaintiff. The complaint sufficiently alleges a special school/student relationship between Plaintiff and LAUSD/Jeppson and that LAUSD/Jeppson were previously aware that Plaintiff had been bullied and/or attacked on multiple occasions. At the demurrer stage, the allegations are sufficient to allege cause of action for negligence based on a failure to warn.

In their demurrer papers, LAUSD and Jeppson rely on Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4th 31, 41, wherein the Court of Appeal stated: “Although we have found no case involving a school district, the courts have upheld causes of action against other public entities based on failure to warn third persons of the violent tendencies of persons under their care.” LAUSD and Jeppson argue this case and the other cases relied upon by the Skinner court (i.e., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 and Johnson v. State of California (1968) 69 Cal.2d 782) are inapposite. However, the Court does not read the cases so narrowly as Defendants. Further, more recent cases show that a negligence cause of action based on failure to warn is a viable cause of action against a public entity like LAUSD and Jeppson. (The Court also notes that Defendants argue that they offered Plaintiff a “safety plan,” which was rejected by Plaintiff’s mother; however, the Court declines to consider extrinsic facts that are outside the allegations of the complaint.)

At this time, the Court finds that the allegations of the complaint are sufficient to allege a claim for negligence based on failure to warn against Defendants. The demurrer to the 2^nd cause of action is overruled.

Penal Code, § 11166(a) states: “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.” Section 11165.6 defines “child abuse or neglect” as follows:

[P]hysical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse as defined in Section 11165.1, neglect as defined in Section 11165.2, the willful harming or injuring of a child or the endangering of the person or health of a child, as defined in Section 11165.3, and unlawful corporal punishment or injury as defined in Section 11165.4. “Child abuse or neglect” does not include a mutual affray between minors. “Child abuse or neglect” does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.

In the 3^rd cause of action, Plaintiff alleges that LAUSD and Jeppson were subject to the provisions of the Child Abuse and Neglect Reporting Act (Penal Code, § 11166 et seq.) and were “mandated reporters” of suspected child abuse, such that they were required to report known or reasonably suspected incidents of child abuse to a child protective agency immediately upon learning of such incidents. (Compl., ¶¶72-74.) Plaintiff alleges that LAUSD and Jeppson were aware that he was being bullied and abused by other students, but they failed to report the abuse to a law enforcement agency or child protective services as required by the Act. (Id., ¶¶75-76.) Plaintiff alleges that when LAUSD and Jeppson violated the Act, they were acting within the course and scope of their employment with LAUSD and LAUSD is vicariously liable for injuries to Plaintiff caused by its employees. (Id., ¶77.)

LAUSD and Jeppson argue that the 3^rd cause of action fails because the Act cannot be invoked for failure to report students to DCFS or on a “bullying” theory, as bullying is not abuse, neglect, or sexual assault. In opposition, Plaintiff acknowledges that while child abuse/neglect does not include a “mutual affray” between minors, Plaintiff argues that the complaint alleges that the bullying and attacks were not “mutual.” The complaint alleges that Plaintiff was jumped by the bullies during lunch on January 31, 2023 and he was jumped against on February 7, 2023. (Compl., ¶¶36, 45.) Plaintiff argues that he did not make any allegations that he mutually engaged in the fights, such that this exception does not apply.

At the demurrer stage, the Court accepts the allegations of the complaint as true. As currently alleged, the 3^rd cause of action sufficiently alleges a claim against LAUSD and Jeppson. However, whether Plaintiff will be able to prove the elements of this cause of action will be determined upon the consideration of evidence (and perhaps the video recordings or screen captures) at the motion for summary judgment or trial stage. The demurrer to the 3^rd cause of action is overruled.

LAUSD and Jeppson move to strike paragraphs 16 to 21 of the complaint under the heading “History of Failing to Protect Minors” and paragraphs 25 to 27 about different incidents and reports.

In paragraphs 16 to 21, Plaintiff alleges that from 2013 to 2017, multiple sexual offenders were employed at Polytechnic High, including Terry Gillard, who was the wrestling coach. (Compl., ¶¶16-17.) Plaintiff alleges that in October 2019, Gillard was sentenced to 71 years in prison for sexually assaulting 14 young students. (Id., ¶18.) Plaintiff alleges that in October 2022, LAUSD settled multiple lawsuits related to Gillard for $52 million. (Id., ¶19.) Plaintiff alleges that LAUSD’s and its administrators’ failure to report Gillard and prevent his actions, this damning evidence shows failure by Polytechnic High’s administrators, and that principal Ari Bennett was transferred to an even larger school and assistant principal Elidia Vazquez was promoted to principal. (Id., ¶¶20-21.)

While paragraphs 16 to 21 provide some background facts about Polytechnic High, the allegations are irrelevant to this action. This action does not involve a sexual assault claim by a teacher, but instead incidents of bullying by other students. In addition, Plaintiff alleges that the principal during the Gillard events was transferred and the assistant principal at issue in the time of Plaintiff’s subject incident was Jeppson. Thus, the Court grants the motion to strike paragraphs 16 to 21 of the complaint.

Paragraphs 25 to 27 allege that: (25) in 2017, a female student in Yucaipa committed suicide after being bullied in school; (26) in 2019, a male student was sucker-punched by 2 older male students at school, which caused him to strike his head on a concrete pillar and die (no school district mentioned); and (27) in 2022, a USC analysis found that about 1 in 3 middle and high school students surveyed reported being bullied or harassed over a 5-year period. These paragraphs follow allegations regarding AB 746, AB 1156, and AB 9. (Compl., ¶¶22-24.) The Court grants the motion to strike paragraph 25 as it is irrelevant to the pleadings and Plaintiff’s causes of action. An incident that occurred in Yucaipa (which is not in the Los Angeles Unified School District) is irrelevant to the claims here. Further, the 2019 incident fails to mention any geographical location or district and does not appear to be relevant to the action. Finally, it is unclear what relevance the 2022 USC study has on this action, whether it was a study about LAUSD students, etc. Thus, the motion to strike paragraphs 25 to 27 is granted.

The Court notes that its rulings are not full and final as to what evidence may be permitted at trial. Nevertheless, based on the complaint itself, they appear to be unnecessary and relevant to the pleading of these causes of action.

Defendant Los Angeles Unified School District’s demurrer to the 2^nd and 3^rd causes of action in the complaint is overruled. The motion to strike paragraphs 16-21 and 25-27 is granted without leave to amend.

Defendant Kirk Jeppson’s demurrer to the 2^nd and 3^rd causes of action in the complaint is overruled. The motion to strike paragraphs 16-21 and 25-27 is granted without leave to amend.

Note: The Court will be handling hearings remotely on February 2, 2024. If you wish to be heard in person, please inform the clerk and your matter will be continued to allow you to appear personally.

[1] Government Code, § 815.2(a) states: “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.”

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.”

Superior Court of California

County of Los Angeles

Department B