Judge Lee W. Tsao, Case Number: 23NWCV00846, Date: 2023-09-21 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00846, Date: 2023-09-21 Tentative Ruling

Case Number: 23NWCV00846 Hearing Date: September 21, 2023 Dept: C

DOE v. MAHMOUD

CASE NO.: 23NWCV00846

HEARING: 09/21/23

I. Defendant ABC UNIFIED SCHOOL DISTRICT’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

II. Defendant ABC UNIFIED SCHOOL DISTRICT’s Motion to Strike Portions of Plaintiff’s Complaint is MOOT.

Moving Party to give notice.

This personal injury action was filed by Plaintiff JOHN DOE, a minor by and through his Guardian at litem, J.M.; J.M., an individual; and T.M. an individual (collectively “Plaintiffs”) against Defendants ABC UNIFIED SCHOOL DISTRICT; BOARD OF EDUCATION FOR ABC UNIFIED SCHOOL DISTRICT; ZAKARIYA MAHMOUND, an individual; J.D., a minor; J.P., a minor; and DOES 1-20 (collectively “Defendants”) on March 17, 2023.

Plaintiffs allege that “[o]n March 11, 2022, John Doe was sitting in his 4th period class at Cerritos High School (‘CHS’) when 3 fellow District students (not in this class’s enrollment)—Defendants JD, JM AND ZM – entered the classroom without permission, rushed over to his desk, and all three started punching John Doe repeatedly, in the head, face, and neck. John Doe got up to attempt to defend himself and ward off the attackers. One of the students also shoved John Doe onto a student desk. At least one of the attackers was on suspension from ABCUSD as a result of a different fight on the day before, and was allowed entry to the school by a classmate (believed to be one of the other attackers) through an inactive/non-alarmed and unattended emergency door at CHS that was not properly secured. Each student is believed to have a history of violence and/or serious behavioral problems.” (Complaint ¶16.) “The classroom teacher, school security and other adult personnel did not prevent or intervene in the attack.” (Complaint ¶17.) “John Doe suffered a concussion, multiple contusions to his head, ear, and eye, and injury in the lower back of his neck, injury in the arm/shoulder, pain in lower and middle back, cuts/scrapes on the inside cheek and swollen/cut lip. His clothes and prescription glasses were also damaged. As a result of the attack, John Doe was too fearful for his safety to return to school and had to complete his courses outside the regular curriculum and classes. He suffered and continues to suffer emotional distress and trauma from the incident.” (Complaint ¶18.)

Plaintiffs assert the following causes of action:

1. Negligence Per Se;

2. Negligence;

3. Negligent Hiring, Training, and Supervision;

4. Negligent Infliction of Emotional Distress;

5. Intentional Infliction of Emotional Distress;

6. Battery;

7. Parental Liability for Willful Misconduct by Minor Pursuant to Educ. Code §48904;

8. Parental Liability for Willful Misconduct by Minor Pursuant to Civil Code §1714.1

Defendant ABC UNIFIED SCHOOL DISTRICT (hereinafter “ABC”) specially demurs to the first and second causes of action, and generally demurs to the first, second, third, and fourth causes of action.

ABC argues that Plaintiffs’ first and second claims are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear from ABC’s other arguments that it understands what the first and second causes of action at least attempt to allege, and there is no true uncertainty. The demurrer is not sustained on the basis of uncertainty.

ABC also argues that it is immune from liability under Gov. Code §815.

California Govt. Code §815 provides that “[a] public entity is not liable for an injury, whether such injury arises out an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code §815(a).) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable or at lease creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Because the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Here, ABC is a public entity, and thus, the heightened pleading requirements for public entities apply. The Complaint does not identify any statutory grounds for the negligence causes of action. No statutes addressing the mandatory duties of the school district are identified. Plaintiffs must allege the statutory basis for each cause of action in order to establish liability against a public entity such as Defendant.

Accordingly, the Demurrer is SUSTAINED with 30 days leave to amend.

Motion to Strike

The Motion to Strike is rendered MOOT by the Court’s ruling on the Demurrer above.