Judge Kerry Bensinger, Case Number: 22STCV38285, Date: 2024-03-04 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. 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 motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On December 8, 2023, Plaintiff, John Doe 101, initiated this childhood sexual abuse action against Roe Defendants. On May 4, 2023, Plaintiff filed the operative First Amended Complaint (FAC) naming Los Angeles Unified School District (“LAUSD”) as Roe 1. The FAC alleges causes of action for (1) Battery, (2) Sexual Battery, (3) Intentional Infliction of Emotional Distress, (4) Negligence, Including General Negligence, Negligent Hiring, Supervision, and Retention, Premises Liability, and Negligence Per Se, (5) Negligence Per Se (Pen. Code, § 261), (6) Negligence Per Se (Pen. Code, § 261.5), (7) Negligence Per Se (Pen. Code, § 286), and (8) Negligence Per Se (Pen. Code, § 287).

According to the FAC, Plaintiff attended TJ High School in Los Angeles, California, from 1978 to 1980. In 1978, Plaintiff began a relationship with LAUSD employee Norman Morris. Morris was either a floating teacher, janitorial staff, and/or coaches assistant. Over the course of the relationship, Morris “groomed” Plaintiff by taking Plaintiff out to eat, engaging Plaintiff in conversation about Plaintiff’s and other students’ sexuality, and visiting Plaintiff at his workplace, among other things. The relationship eventually became sexual in nature and included sex parties with former students, current students, and faculty members. Some of the faculty members who attended the party included the Dean of TJ High School Charles Dumas and a Vice Principal named Hayes. Plaintiff was 15 years old when the abuse began.

On July 28, 2023, LAUSD filed this Demurrer to the First, Second, Fifth, Sixth, Seventh, and Eighth Causes of Action in the FAC.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”¿(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has not complied with the meet and confer requirement. (See Declaration of Amanda C. Lewis, ¶¶ 2-4.) However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) Accordingly, the court exercises its discretion to consider the merits of the demurrer.

LASUD advances three overarching arguments in support of its demurrer: (1) the battery and sexual battery claims fail because a school district cannot be held vicariously liable for sexual abuse committed by its employees, (2) LAUSD cannot be held directly liable for sexual battery based on Civil Code section 1807.5, and (3) the negligence per se causes of action fail because Penal Code sections 261, 261.5, 286, and 287 do not impose a mandatory duty. The court addresses each argument in turn.

The First Cause of Action is for battery and the Second Cause of Action is for sexual battery. As these causes of action are predicated on the same allegations of sexual misconduct, the court addresses the First and Second Cause of Action together.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669; CACI No. 1300.)

Civil Code section 1708.5 sets forth the elements of sexual battery. “A person commits a sexual battery who does any of the following:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

(4) Causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.

(5) Causes contact between an intimate part of the person and a sexual organ of another from which the person removed a condom without verbal consent.

LAUSD argues it cannot be held vicariously liable for the sexual misconduct of its employees. LAUSD is partly correct. As the Court of Appeal observed in Virginia G. v ABC Unified School Dist. (1993) 15 Cal.App.4th 1848:

“Our Supreme Court has held that the conduct of teachers who sexually molest students under their supervision will not be imputed to school districts to permit recovery by injured students from the employing districts under the doctrine of respondeat superior. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447–452, 256 Cal.Rptr. 766, 769 P.2d 948; Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545, 547–549, 263 Cal.Rptr. 612; compare Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213–221, 285 Cal.Rptr. 99, 814 P.2d 1341, holding the employer city liable under the doctrine of respondeat superior when a police officer on duty, by misusing his official authority, rapes a woman whom he has detained.) However, claims against school districts premised on their own direct negligence in hiring and supervising teachers may be pursued. (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 453, 256 Cal.Rptr. 766, 769 P.2d 948.)”

John R., the case quoted by the Court of Appeal in Virginia G., is on point. Plaintiff alleges here that Morris was either “a floating teacher, janitorial staff, and/or coaches [sic] assistant.” (FAC, ¶ 16.) John R. operates to bar imposition of vicarious liability to the school district for Morris’s sexual misconduct.

Plaintiff attempts to avoid this result by citing a number of cases for the general proposition that the doctrine of respondeat superior applies to public and private employers alike. (See Opp., p. 5.) Though broadly correct, Plaintiff does not provide any authority to show LAUSD may be held vicariously liable specifically for the sexual misconduct of its teachers. Plaintiff places particular emphasis on C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861 for the proposition that schools have a duty to supervise the conduct of children, including a duty of care to take reasonable measures to guard students against harassment and sexual abuse from foreseeable sources. C.A. does not help Plaintiff’s cause. In C.A., the Court of Appel confirmed that a school district could be held vicariously liable for negligent hiring, retention, and supervision. C.A. cannot be read to include vicarious liability for sexual battery committed by a school districts’ “instructional” employees. (See C.A., at pp. 878-79.) Plaintiff’s First and Second Causes of Action are susceptible to demurrer on this ground.^{^[1]}

The SAC attempts to impose direct liability against LAUSD on the Second Cause of Action based on Civil Code section 1708.5. (See SAC, ¶¶ 47-49.) As stated above, Section 1708.5 provides: “A person commits a sexual battery who does any of the following:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

LAUSD argues it cannot be held directly liable under Section 1708.5 because LAUSD is a public entity. By its very terms, Section 1708.5 defines a sexual battery as conduct committed by a person. Section 1708.5 does not apply to LAUSD. The court further observes that Section 1708.5 merely sets forth the elements of a sexual battery claim. “[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) There is nothing in Section 1708.5 that operates to impose a statutory duty upon LAUSD. Plaintiff’s opposition fails to address any of the foregoing.

The negligence per se causes of action (Fifth, Sixth, Seventh, and Eighth are based on violations of Penal Code sections 261, 261.5, 286, and 287. LAUSD attacks these causes of action on the grounds that negligence per se is not a separate cause of action, and the cited Penal Code sections do not impose a mandatory duty.

LAUSD is correct; negligence per se is not a separate cause of action. “Negligence per se is an evidentiary doctrine, rather than an independent cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210.) The doctrine of negligence per se “creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534.) “The doctrine does not provide a private right of action for violation of a statute.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.)

Moreover, common law causes of action cannot be asserted against a public entity.¿ “Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute.”¿ (Guzman v. County of Monterey¿(2009) 46 Cal.4th 887, 897; see also Searcy, supra, 177 Cal.App.3d at p. 802 [“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”].) Here, the SAC does not allege a statutory basis for liability to support the negligence per se causes of action.

The test for determining whether a statute imposes liability on a public entity is codified at Government Code section 815.6. “Government Code section 815.6 contains a three-pronged test to determine whether liability may be imposed on a public entity: (1) an enactment imposes a mandatory, not discretionary duty [citation]; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting this as a basis for liability [citation]; and (3) breach of the mandatory duty is proximate cause of the injury suffered. [Citation.]” (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854.)

Plaintiff points to Penal Code section 261, 261.5, 286, and 287 as the authorizing statutes for the negligence per se causes of action. But a review of the foregoing statutory provisions confirm they do not impose a mandatory duty. Section 261 defines rape. Section 261.5 defines unlawful sexual intercourse. Section 286 defines acts of sodomy. And Section 287 defines oral copulation. Absent from each of these statutes is any language imposing a mandatory duty. The opposition is silent on the lack of allegations surrounding LAUSD’s statutory liability.

Based on the foregoing, the demurrer is SUSTAINED. As LAUSD does not show how the pleading may be amended to cure the defects, leave to amend is DENIED.

Kerry Bensinger

Judge of the Superior Court

[1] The parties do not discuss whether John R. applies if Morris were employed as part of the janitorial staff. If Plaintiff learns through discovery that Morris was employed by LAUSD in a non-instructional role, Plaintiff may seek leave to amend.