Judge: Lisa R. Jaskol, Case: 23STCV18176, Date: 2025-02-21 Tentative Ruling
Case Number: 23STCV18176 Hearing Date: February 21, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On August 1, 2023, Plaintiff Samuel Isai Escobar Moreno (“Plaintiff”), by and through his guardian ad litem Rosa Idalia Moreno Garcia (“Garcia”) filed this action against Defendants Los Angeles Unified School District (“Defendant”) and Does 1-50 for negligence (Gov. Code, §§ 815.2, 815.4, 815.6 & 820), negligent supervision of a minor (Gov. Code, §§ 815.2 & 820), breach of mandatory duty (Educ. Code, §§ 44807 & 49079; Gov. Code §§ 815.2, 815.6 & 820), negligent hiring (Gov. Code, §§ 815.2, 815.4 & 820), negligent supervision (Gov. Code, §§ 815.2, 815.4 & 820), and negligent retention (Gov. Code, §§ 815.2, 815.4 & 820).
On August 1, 2024, the Court appointed Garcia to serve as Plaintiff’s guardian ad litem.
On October 28, 2024, Defendant filed a demurrer. The demurrer was set for hearing on December 6, 2024. On November 21, 2024, Plaintiff filed an opposition. On November 26, 2024, Defendant filed a reply. The Court continued the hearing to February 21, 2025.
Trial is currently scheduled for February 17, 2026.
PARTIES’ REQUESTS
Defendant asks the Court to sustain the demurrer to Plaintiff’s complaint.
Plaintiff asks the Court to overrule the demurrer or, if the Court sustains the demurrer, grant leave to amend.
LEGAL STANDARD
A. Demurrer
“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:
* * *
“(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, emphasis omitted.)
B. Claims against government entities
“In California all governmental tort liability must be based on statute.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 802, citations and fn. omitted (Lopez).)
“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, supra, 40 Cal.3d at p. 795, quoting Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On September 7, 2022, Plaintiff was a 5-year-old transitional kindergarten student at Defendant’s Ascot Avenue Elementary School. During class, another student placed a pencil in Plaintiff’s ear, injuring him.
“Further, Plaintiff is informed and believes, and based thereon alleges, that administrators, teachers, as well as other employees of Defendant, knew, or should have known, of the propensity of preschool aged children to engage in dangerous play with pencils. Nevertheless, Defendant’s employees did not take care to foresee and avoid any situation that could be potentially dangerous to Plaintiff and other children, overall, failed to take corrective and preventative action to protect Plaintiff from injury. In short, Defendant provided Plaintiff with either a total lack of supervision or ineffective supervision such that Plaintiff was harmed.” (Complaint ¶ 8.)
B. The demurrer
Defendant asks the Court to sustain the demurrer because the complaint does not plead the facts material to the existence of statutory liability with particularity. (See Lopez, supra, 40 Cal.3d at p. 795 [“ ‘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’ ”].) In particular, Defendant argues that the complaint does not plead facts showing that Defendant or its employees acted negligently or showing that their negligence caused Plaintiff’s injuries.
C. Analysis
The Court has reviewed the complaint and finds that it does not plead with particularity the facts material to the existence of statutory liability. The complaint alleges negligence and causation only as conclusions. The Court therefore sustains the demurrer.
CONCLUSION
The Court SUSTAINS Defendant Los Angeles Unified School District’s demurrer to Plaintiff Samuel Isai Escobar Moreno’s complaint with 30 days leave to amend.
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.