Judge Lisa R. Jaskol, Case Number: 23STCV11174, Date: 2024-04-30 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

                            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.

        If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

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

On May 17, 2023, Plaintiff A.M. (“Plaintiff”), a minor, by and through his guardian ad litem, W.R., filed this action against Defendants Los Angeles Unified School District (“Defendant”) and Does 1-100 for negligence based on Government Code sections 815.2, 815.6 and 820 and negligent hiring, supervision, training and retention based on Government Code sections 815.2, 815.6 and 820.

On July 21, 2023, the Court appointed Wendy Rolgan to serve as A.M.’s guardian ad litem.

On March 7, 2024, Defendant filed a combined demurrer and a motion to strike, to be heard on April 4, 2024. (For future reference, Defendant should file separate motions.) On March 19, 2024, Plaintiff filed an opposition. On March 27, 2024, Defendant filed a reply. The Court continued the hearing on the demurrer to April 30, 2024.

Plaintiff asks the Court to overrule the demurrer and deny the motion to strike.

“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:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(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.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

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, emphasis omitted (Cal. Practice Guide).)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)

“ ‘Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation.] However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” ’ ” (Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795 (Lopez), quoting Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.)

"Lopez does not stand for the proposition that a plaintiff must specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability under [Government Code] section 815.2, and we doubt such an impracticable rule would be consistent with the legislative intent in enacting that statute." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 (C.A.)

On or around October 12, 2022, and October 19, 2022, another student assaulted, battered, and stabbed Plaintiff on the campus of John Marshall High School. Defendant had prior notice of the existence of inappropriate, harassing, violent conduct occurring at John Marshall High School or the dangerous propensities of the student assailant and was therefore aware of the potential danger and direct threat to John Marshall High School students including Plaintiff. Despite this knowledge, Defendant failed to take reasonable and appropriate measures to protect students, including Plaintiff, from foreseeable harm. (Complaint ¶¶ 6-7.)

Defendant argues that Plaintiff has failed to plead sufficient facts to show that Defendant breached a duty of care. According to Defendant, Plaintiff has not “specif[ied] what act or omission [Defendant] committed which fell below the standard of care and led to the harm alleged.” For example, the complaint’s first cause of action alleges that “Defendants failed to carefully supervise, monitor, and observe Plaintiff and the violent attackers in light of their age and their need for supervision in a school setting while on campus during school hours.” (Complaint ¶ 34.) These allegations are inadequate, Defendant asserts, because they provide no detail about the actions or omissions which resulted in the breach, such as who committed a breach, when the breach occurred, and how it led to Plaintiff’s injuries.

Similarly, Defendant contends that the second cause of action fails to allege facts showing “which employees were negligently hired, screened, selected, retained or supervised, how the negligence allegedly occurred, or how it led to Plaintiff’s injuries.”

On both claims, Defendant contends that Plaintiff has failed to plead facts showing causation.

Plaintiff responds that the complaint sufficiently alleges breach of duty and causation by alleging that Defendant’s employees failed to act reasonably in supervising staff and students and that students and staff were unsupervised and alone, leading to Plaintiff’s injuries. (Opposition p. 5, citing Complaint ¶¶ 7, 13–18, 22–26, 28, 34, 37, 39, 47, & 49–51.)

The complaint alleges facts showing that Defendant violated its duty to supervise students and staff and that, as a result, Plaintiff was attacked and injured. Plaintiff is not required to present, in the complaint, the evidence it will present to support these allegations at trial. (See C.A., supra, 53 Cal.4th at p. 872 [“the District cites no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant’s employees committed the negligent acts or omissions for which a public entity is allegedly liable under [Government Code] section 815.2” (original emphasis)]; ibid. [“to survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged”]; Cal. Practice Guide, supra, ¶ 6:1124, pp. 6-39 to 6-40 [“ ‘Ultimate facts’ are those that raise the issues on which the right to recover depends – i.e., the essential elements of the cause of action. All the facts that are material to the cause of action – i.e., the facts that make a difference to the outcome of the case – must be alleged [citation]. [Citations.] By contrast, allegations of unnecessary detail and generalized argument may be objectionable as ‘evidentiary’ pleading and ‘legal conclusion,’ respectively”].)

The Court concludes that the complaint pleads with sufficient particularity facts showing breach of duty and causation. The Court overrules the demurrer.

Defendant argues that the complaint fails to plead a mandatory duty that would support a claim under Government Code section 815.6. Government Code section 815.6 provides:

“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

(Gov. Code, § 815.6.) Courts will find a mandatory duty “only if the enactment ‘affirmatively imposes the duty and provides implementing guidelines.’ ” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 889, quoting O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510.)

Defendant argues that Plaintiff has failed to allege the existence of a mandatory duty because Plaintiff has not cited a statute that imposes a duty to keep students safe.

In response, Plaintiff argues that she has alleged that Defendant failed to discharge mandatory duties based on Education Code section 44662 and California Code of Regulations, Title 5, section 5531.

Although Plaintiff refers to Education Code section 44662, the statute on which Plaintiff appears to rely is Education Code section 44807, which provides in part that “[e]very teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.” (Educ. Code, § 44807.)

In Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925 (Hoff), the plaintiff asserted a negligence claim against a school district, alleging the school district breached its duty to supervise the student who injured the plaintiff. ^{^[1]} (Hoff, supra, 19 Cal.4th at p. 930.) The Supreme Court rejected the plaintiff’s argument that he could rely on Education Code section 44807 to state a claim directly against the district under Government Code section 815.6, reasoning: “By its terms, Education Code section 44807 requires only ‘teacher[s]’ to hold pupils to a strict account for their conduct; it does not purport to impose a mandatory duty more broadly on any public entity.” ^{^[2]} (Id. at p. 939.)

The parties have not provided a copy of California Code of Regulations, Title 5, section 5531, but they agree it provides that “[a]ll social activities of pupils, wherever held, if conducted under the name or auspices of a public school or of any class or organization thereof, shall be under the direct supervision of certificated employees of a district or an office of a county superintendent of schools.” The Court finds that this enactment does not impose a mandatory duty because it does not appear to provide implementing guidelines.

Because Plaintiff has not identified an enactment that imposes a mandatory duty and provides implementing guidelines, the Court grants Defendant’s motion to strike Plaintiff’s claims under Government Code section 815.6.

Defendant asks the Court to strike “conclusory” statements alleged in the complaint based on information and belief.

For the reasons discussed above in connection with Defendants’ demurrer, the Court denies Defendant’s motion to strike the “conclusory” statements in Plaintiff’s complaint.

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

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

[1] The trial court granted the district’s motion for nonsuit after opening statement and entered judgment. (Hoff, supra, 19 Cal.4th at p. 930.) The Court of Appeal reversed. (Id. at p. 931.) The Supreme Court granted review and reversed the Court of Appeal’s judgment. (Id. at p. 930.)

[2] The Court also observed that Government Code section 815.6 was not designed to protect against the risk of the injury which the plaintiff suffered because he was a member of the public, not a student. (Hoff, supra, 19 Cal.4th at p. 939.)