TENTATIVE RULING

Defendant Barry Smolin’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend.

Plaintiff Los Angeles Unified School District may amend its complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Barry Smolin to give notice. 

REASONING

Request for Judicial Notice

Defendant Barry Smolin (“Smolin”) requests judicial notice of the First Amended Complaint filed in Los Angeles Superior Court Case No. 21STCV15878 (Jane Doe v. Los Angeles Unified School District). Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Plaintiff Los Angeles Unified School District (“LAUSD”) requests judicial notice of the First Amended Complaint and the Request for Dismissal filed in the same action. LAUSD’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Analysis

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant demurs to all causes of action alleged in LAUSD’s complaint on the ground that the claims are only available among tortfeasors who are jointly and severally liable for Plaintiff Jane Doe (“Jane Doe”)’s indivisible injury, and the claims alleged by Jane Doe, specifically for negligent hiring and supervision, failure to report suspected child abuse, negligent failure to warn, train, or educate, and negligent supervision of a minor relate only to LAUSD’s conduct or the conduct of other employees, not Smolin’s conduct.

“[T]here can be no indemnity without liability,” and “[i]ndemnity does not invariably follow fault; it is premised on a joint legal obligation to another for damages.” (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114; see also Munoz v. Davis (1983) 141 Cal.App.3d 420, 425.) “The elements of a cause of action for equitable indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible.” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, quotation marks, brackets, and ellipses omitted.)

The claims against LAUSD in Case No. 21STCV15878 are for negligent hiring, supervision, and retention of an unfit employee; breach of mandatory duty: failure to report suspected child abuse; negligent failure to warn, train, or educate; and negligent supervision of a minor. The Court cannot conclude that Smolin has any shared liability for these causes of action. It is not enough that Jane Doe sustained damage as a result of Smolin’s conduct. For indemnity to be appropriate, LAUSD must allege that Smolin is a joint tortfeasor in its negligent hiring, supervision, and retention of an unfit employee; breach of mandatory duty: failure to report suspected child abuse; negligent failure to warn, train, or educate; and negligent supervision of a minor. LAUSD has not alleged any facts to that effect because these were duties exclusive to LAUSD. LAUSD argues that Jane Doe has sustained one injury, but this does not show that Smolin is responsible for the harm Jane Doe sustained due to LAUSD’s alleged failure to supervise its employee, failure to report abuse, and failure to properly supervise Jane Doe because this could only have been done by LAUSD. Accordingly, Defendant Barry Smolin’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend. While the Court is not convinced that amendment will cure the deficiencies of the complaint, the Court will allow LAUSD opportunity to amend given this is the first demurrer in this action. Plaintiff Los Angeles Unified School District may amend its complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)