Judge Lee W. Tsao, Case Number: 22NWCV01403, Date: 2023-11-08 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01403, Date: 2023-11-08 Tentative Ruling

Case Number: 22NWCV01403 Hearing Date: November 8, 2023 Dept: C

Trejo v. los angeles unified school district

CASE NO.: 22NWCV01403

HEARING: 11/8/23 @ 9:30 AM

I. Defendant’s Motion to Strike is GRANTED with leave to amend.

II. Defendant’s Demurrer is OVERRULED.

Moving Party to give NOTICE.

Defendant Los Angeles Unified School District (Defendant) demurs to Plaintiff’s only cause of action for Negligence and moves to strike portions of the First Amended Complaint (FAC) related to Defendant’s statutory duty.

Background

Plaintiff Danny Trejo (Plaintiff), a minor, through his Guardian Ad Litem, Laura Trejo, filed a Complaint against Defendant alleging that Plaintiff was injured while under the supervision of Defendant. Plaintiff asserts that he has disabilities which affect his ability to ambulate and he required constant supervision. (FAC ¶¶ 14-15.) Plaintiff alleges that Defendant knew of the need to constantly supervise Plaintiff and failed to do so which led to Plaintiff injuring his knee while using playground equipment. (FAC ¶¶ 15 and 19.)

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Motions to strike are used to reach defects or objections to pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (CCP §§ 435, 436 & 437.) A motion to strike lies only where the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (C.C.P. § 437.)

Discussion

Defendant moves to strike Plaintiff’s reference in ¶ 12 of the FAC to the California Constitution and the California Education Code in support of Plaintiff’s claim that Defendant owed him a statutory duty. Paragraph 12 of the FAC alleges Defendant LAUSD is liable to Plaintiff for the acts of defendants, its employees, agents and DOES 1 through 50 pursuant to California Government Code § 815.2 & 815.6; Cal. Cont. Art, Sec. 28(c); the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400 et seq.; the California Education Code, including but not limited to, § 32261(a); and other laws or regulations.” Defendant seeks to strike the bolded portion.

Plaintiff argues that the California Constitution “informs the nature of the duty that [Defendant] had in negligence.” (Opp., p. 3, lns. 27-28.) Plaintiff alleges that Defendant “is liable … pursuant to” the Constitution. However, Section 28(c) of the California Constitution “does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its political subdivisions, or any officer or employee of the court.” (California Const. Art. 1, § 28(c)(2).)

Additionally, Plaintiff argues that its reference to the California Education Code as a basis for liability is proper because Hector F. v. El Centro Elementary Sch. Dist. (2014) 227 Cal.App.4th 331, 333 ruled that § 32261(a) created "an affirmative duty to protect public school students from discrimination and harassment engendered by race, gender, sexual orientation or disability." However, Plaintiff has not pled facts to support a claim for discrimination or harassment. Therefore, Defendant’s Motion to Strike is granted as to references to the California Constitution and Education Code in ¶ 12 of the FAC.

Defendant argues that Plaintiff failed to plead facts to constitute a cause of action for governmental liability with particularity. Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Thus, “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.)

Plaintiff alleges that “California Government Code § 815.2 & 815.6” create a statutory duty by Defendant to Plaintiff and in particular that Defendant “owed a duty of reasonable care, custody, and supervision to Plaintiff, as a student with an Individualized Education Program” and “owed a duty to Plaintiff with constant supervision and assistance in ambulating.” (FAC ¶¶ 12 and 16.) On December 3, 2021, Defendant “failed to constantly supervise and assist Plaintiff in ambulating, and allowed Plaintiff to utilize playground equipment which posed a serious risk of injury to Plaintiff given his balance, ambulation and cognitive deficiencies. As a result, Plaintiff used the playground equipment and sustained significant injuries, including a dislocation/fracture to his right knee.” (FAC ¶ 19.) Thus, Plaintiff has plead sufficient facts to constitute a cause of action for negligence with particularity.

Plaintiff does not oppose Defendant’s motion to strike “the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400 et seq.” This portion of the FAC is again stricken without leave to amend. In all other respects, Plaintiffs’ request for leave to amend the stricken portions of the FAC is granted.

Accordingly, Defendant’s Motion to Strike is GRANTED with leave to amend. Plaintiff may file an amended complaint within 20 days of this Order. Defendant’s Demurrer is OVERRULED.