Judge: Lisa R. Jaskol, Case: 22STCV26274, Date: 2024-01-05 Tentative Ruling

Case Number: 22STCV26274    Hearing Date: January 5, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND         

On August 12, 2022, Plaintiff John A.M. Doe (“Plaintiff”), by and through his guardian ad litem Grigor Margaryan, filed this action against the Los Angeles Unified School District (“District”), the County of Los Angeles (“County”), and Does 1-20 for negligence, negligent supervision, and dangerous condition of public property. 

On October 23, 2023, Plaintiff filed a first amended complaint. 

On November 17, 2023, the District filed a demurrer to the third cause of action for dangerous condition of public property.  The demurrer was set for hearing on January 5, 2024.  On December 28, 2023, Plaintiff filed an opposition.  On January 4, 2024, the District filed a reply. 

PARTIES’ REQUESTS 

The District requests that the Court sustain the demurrer to the third cause of action for dangerous condition of public property. 

Plaintiff requests that the Court overrule the demurrer. 

LEGAL STANDARD 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

* * * 

“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .”

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint alleges the following. 

On or about October 4, 2021, Plaintiff, a five year old student, was injured while playing without supervision during recess on playground equipment at Topeka Drive Elementary School in Northridge (the “premises”).  Plaintiff was climbing on the “monkey bars” without assistance or guidance and fell to the ground, sustaining multiple injuries including cervical fracture and neck injury. 

The monkey bars “were placed at a height above seven feet and beyond any permitted allowance for students of the age of five and younger.”  In addition, the monkey bars “maintained moisture which caused them to be highly dangerous.”  Similar incidents involving the monkey bars had occurred in the past and the District took no action to remedy the dangerous condition.  The monkey bars are inherently dangerous.  The District created a dangerous condition and failed to take precautions after notice of the dangerous condition. 

Defendants had actual or constructive notice of the dangerous conditions a sufficient time prior to Plaintiff’s injury to have taken measures to protect Plaintiff against the dangerous condition.  A negligent or wrongful act or omission of Defendants’ employee created the dangerous conditions. The dangerous conditions created a substantial and foreseeable risk of the kind of injury sustained by Plaintiff when the property was used with due care in a manner in which it is reasonably foreseeable that it would be used.  Because persons such as Plaintiff would be exposed to substantial risk of injury when using the classroom and playground areas, Defendants were required to take reasonable precautions to protect Plaintiff and others from that risk but failed to do so. As a result, the premises were in a dangerous condition at the time of Plaintiff's injuries, the dangerous condition was the proximate cause of Plaintiff's injuries, the dangerous condition created a reasonably foreseeable risk of the type of injury Plaintiff sustained, and Defendants had actual or constructive notice of the dangerous condition. 

B.   The District’s demurrer 

The District argues that the first amended complaint’s claim for dangerous condition of public property fails to state facts sufficient to constitute a cause of action because it makes conclusory contentions about the dangerous condition on the playground without providing sufficient supporting facts.  The District argues that Plaintiff “does not explain what constituted the dangerous condition. Plaintiff is essentially alleging that simply by having the monkey bars on the playground is itself a dangerous condition. In fact, the Plaintiff cites the definition of 'dangerous condition' but still fails to allege why and what the substantial risk of injury is when used with due care [citation]. There are no details about what part of the monkey bars make them dangerous. Thus, without more, the operative Complaint fails to state sufficient facts to constitute a cause of action for the dangerous condition of public property.”  (Demurrer p. 5.) 

C.   Plaintiff’s opposition 

The Court exercises its discretion to consider Plaintiff’s late-filed opposition.  Plaintiff asserts that the first amended complaint contains factual allegations that support the claim for dangerous condition of public property. 

D.   Analysis 

Plaintiff has alleged specific facts to support his claim for dangerous condition of public property.  Liberally construed, the first amended complaint alleges that the monkey bars were placed too high for young children like Plaintiff to use them safely and that the monkey bars retained moisture that made them dangerous.  The Court accepts these alleged facts as true for purposes of the demurrer.  The Court therefore overrules the demurrer and orders the District to file a responsive pleading within ten days. 

CONCLUSION 

The Court OVERRULES Defendant Los Angeles Unified School District’s demurrer to Plaintiff John A.M. Doe’s first amended complaint. 

Defendant Los Angeles Unified School District is ordered to file a responsive pleading within 10 days. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.