Judge: Lee W. Tsao, Case: 22NWCV01156, Date: 2023-08-08 Tentative Ruling

Case Number: 22NWCV01156    Hearing Date: August 8, 2023    Dept: C

DOE v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.

CASE NO.:  22NWCV01156

HEARING:  8/8/23

 

#8

TENTATIVE RULING

 

I.             Defendant Los Angeles Unified School District’s demurrer to plaintiff’s complaint is SUSTAINED with 10 days leave to amend.

 

II.            Defendant Los Angeles Unified School District’s unopposed motion to strike is GRANTED without leave to amend.

 

Moving party to give NOTICE.

 

 

Complaint

 

Plaintiff Jane Doe alleges that “On or about November 5, 2021 Plaintiff JANE DOE was attending her science class at the subject premises when she was approached by her science teacher, Defendant JOHN DOE. Defendant JOHN DOE approached Plaintiff and made numerous sexual comments and/or sexual insinuations.”  (Complaint, ¶ 18.)  Based thereon, the Complaint asserts causes of action for:

 

1.    Assault (v. John Doe)

2.    Battery (v. John Doe)

3.    IIED (v. John Doe)

4.    Negligent Hiring, Supervision & Retention of an Unfit Employee (v. entity defendants)

5.    Breach of Mandatory Duty (v. entity defendants)

6.    Negligence (v. entity defendants)

 

I.        Demurrer

 

Defendant Los Angeles Unified School District (“LAUSD”) demurs to the 4th – 6th causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain.

 

4th and 6th CAUSES OF ACTION

 

NEGLIGENT HIRING, SUPERVISION & RETENTION OF AN UNFIT EMPLOYEE and NEGLIGENCE:

 

Government entities can only be liable where plaintiff pleads: (i) an authorizing statute for the government tort liability, and (ii) detailed as well as particularized facts concerning how the governmental defendant supposedly erred.  (Gov. Code § 815(a); Searcy v. Hemet Unified Sch. Dist. (1986) 177 Cal.App.3d 792, 802; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

 

The 4th and 6th causes of action do not allege any authorizing statute. 

 

Further, statutory causes of action must be pled with particularity. (Fischer v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 - "facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.")

 

The Complaint alleges that John Doe made “sexual comments and/or sexual insinuations.”  (Complaint, ¶ 18.)  Plaintiff failed to plead sufficient facts regarding the statements.

 

If a complaint fails to state a cause of action but there is a reasonable possibility the complaint can be amended to cure the deficiencies, then leave to amend must be granted. (Quelimane v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39.)  Plaintiff "has the burden of proving the possibility of cure by amendment." (Czaikowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)  

 

Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.

 

5th CAUSE OF ACTION

 

BREACH OF MANDATORY DUTY:  FAILURE TO REPORT SUSPECTED CHILD ABUSE:

 

Penal Code §§ 11165.7 and 11165.5 are mandatory reporting statutes.  The Child Abuse and Neglect Reporting Act (“CANRA”) requires mandated reporters, including teachers and other specified school employees, “to make a report to a law enforcement agency or a county welfare department ‘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.’”  (Roe v. Hesperia Unified Sch. Dist. (2022) 85 Cal. App. 5th 13, 31–32.)

 

¶ 46 alleges that LAUSD’s employees are “mandated reporters.”  ¶ 48 alleges that LAUSD’s employees violated Pen. Code § 11166 et seq.’s reporting requirements, and therefore, LAUSD is vicariously liable.

 

However, plaintiff failed to cite the statutory authority that allows plaintiff to maintain a claim for violation of Pen. Code § 11165 et seq. against LAUSD based on vicarious liability.

 

Demurrer to the 5th cause of action is SUSTAINED with 10 days leave to amend.

 

II.       Motion to Strike

 

The unopposed motion to strike treble damages is GRANTED without leave to amend.  CCP § 818 does not allow treble damages against a governmental entity.  (K.M. v. Grossmont High School Dist. (2022) 84 Cal.App.5th 717, 742 – “Government Code section 818 precludes application of this provision [treble damages] to public school districts.”)