Judge: Kerry Bensinger, Case: 22STCV24966, Date: 2023-02-06 Tentative Ruling

Case Number: 22STCV24966    Hearing Date: February 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           Aaron Alonzo, through his mother and guardian ad litem, Gloria Alonzo (hereinafter, Plaintiff), filed this action on August 2, 2022, against the Los Angeles Unified School District (hereinafter, Defendant). This is a personal injury action arising from an incident on August 25, 2021 when plaintiff, who was five years-old at the time, climbed onto a jungle gym at one of defendant’s schools, the Martha Escutia Primary Center (See First Amended Complaint for Damages, ¶ 24) (hereinafter, FAC). After climbing onto the jungle gym to a height of six feet, the plaintiff then jumped off, and upon landing, broke his arm (Ibid.).

          Plaintiff sues based on two causes of action: (1) dangerous condition of public property, and (2) negligence (See FAC ¶ 7 and 11, respectively). Defendant filed the instant Demurrer to Plaintiff’s First Amended Complaint (hereinafter, Demurrer) on January 10, 2023, along with the Declaration of Alberto Vasquez (hereinafter, Decl. of Vasquez) and the Declaration of Sabryna Beckles (hereinafter, Decl. of Beckles). Plaintiff filed her Opposition to Defendant’s Demurrer to Plaintiff’s First Amended Complaint (hereinafter, Opposition) on January 24, 2023. Defendant’s Reply to Plaintiff’s Opposition to Demurrer to Plaintiff’s First Amended Complaint followed on January 30, 2021 (hereinafter, Reply).  

II.      LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747). When considering demurrers, 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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 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.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, 147 Cal.App.4th at 747).

III.     DISCUSSION

A) First Cause of Action: Dangerous Condition on Public Property

The primary issue regarding the first cause of action is whether it is barred because of Government Code § 945.4, which states in pertinent part that no suit for money or damages may be brought against a public entity on a cause of action unless a written claim has been presented to the public entity first (See CA GOVT § 945.4).

The plaintiff filed a “Claim for Damages” form against defendant pursuant to Government Code § 945.4 on December 29, 2021. (See Decl. of Vazquez, Exhibit A). The claim states in substance:

“While playing on the jungle gym during lunch time, he climbed on the jungle gym and proceeded to jump from up where he had climbed. When he landed he broke his left arm. The jungle gym that claimant was playing on was poorly supervised. He was not told to not climb or jump on said equipment. He mentioned that there was only one staff member supervising the children.” (See Exhibit A to Declaration of Alberto Vasquez; LAUSD’s Request for Judicial Notice)

Defendant argues the first cause of action cannot stand because it was not properly presented.  Defendant relies upon Fall River Joint Unified Sch. Dist. v. Superior Court (1988) 206 Cal. App. 3d 431 (Fall River).  But Fall River is distinguishable.  The Fall River case stands for the proposition that a complaint against a government entity must be based on the same facts as those stated in the claim for damages.  The test of whether the complaint is based on the same facts as the claim for damages is set forth by the California Supreme Court in Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447: “Only where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’ have courts generally found the complaint barred.” A plaintiff is not required to state all of his legal theories of recovery in a claim for damages. “The claim… need not specify each particular act or omission later proven to have caused the injury.” (Id.; See also Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225 [“While an allegation as to the legal cause of an accident may be an element of the tort which must be pled in a complaint, section 910 does not impose upon an injured claimant an obligation to include it in the claim.”]

Here, the factual basis – the jungle gym upon which he climbed, jumped off, and broke his arm – is presented in the claim.  The foregoing is sufficient to satisfy Government Code § 910. 

B) Second Cause of Action: Negligence

Plaintiff’s Second Cause of Action in the First Amended Complaint alleges a negligent supervision theory per Government Code § 815.6 and Education Code § 44807. Government Code § 815.6 provides a negligence per se type presumption 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.”  To assert a claim per Government Code § 815.6, the statute or regulation relied upon must impose a mandatory duty by an enactment that is designed to protect against the risk of a particular kind of injury.  

Defendant is correct that Plaintiff cannot rely on Education Code § 44807 to support a negligence per se cause of action because § 44807 does not impose a mandatory duty on the Defendant. The California Supreme Court stated in Hoff vs. Vacaville Unified School District (1998) 19 Cal. 4th 925, 938, that “[b]y its terms, Education Code section 44807 requires only “teacher[s]” to hold pupils to a strict account for their conduct; it does not purport to impose a mandatory duty more broadly on any public entity.”  The High Court went on to state, “[t]herefore, Hoff cannot base a direct claim against the District under section 815.6 on any duty that Education Code section 44807 imposes. (Citations omitted.)” (Id. at p. 939–940.)

Accordingly, Plaintiff will be given leave to amend.

IV.     CONCLUSION.

As to the First Cause of Action, the Demurrer is OVERRULED

As to the Second Cause of Action the Demurrer is SUSTAINED, with leave to amend.

Plaintiff is ordered to file and serve her Second Amended Complaint within 30 days of this ruling.

Defendant is ordered to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

DATED: February 6, 2023

                                                          ___________________________

                                                              Hon. Kerry Bensinger