Judge: Lisa R. Jaskol, Case: 23STCV18846, Date: 2024-09-23 Tentative Ruling
Case Number: 23STCV18846 Hearing Date: September 23, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On August 8, 2023, Plaintiff Kayden Vinovich, by and through his guardian ad litem Nicholas Vinovich (“Plaintiff”), filed this action against Defendants Thirty – First District PTSA – Creative Kids, Los Angeles Unified School District (“District”), and Does 1-50 for negligent supervision of students under Government Code sections 815.2, 815.6, and 820 and gross negligence.
On November 21, 2023, the Court appointed Nicholas Vinovich to serve as Plaintiff’s guardian ad litem.
On January 5, 2024, Defendant Creative Kids, Inc., erroneously sued and served as Thirty-First District PTSA – Creative Kids (“Creative Kids”), filed an answer.
On April 24, 2024, the Court sustained the District’s demurrer and granted the District’s motion to strike, both with leave to amend.
On June 12, 2024, Plaintiff filed a first amended complaint against Creative Kids, the District, and Does 1-50 for negligent supervision of students under Government Code sections 815.2, 815.6, and 820 and gross negligence.
On July 12, 2024, the District filed (1) a demurrer to Plaintiff’s claim for negligent supervision of students and (2) a motion to strike portions of the complaint. The motions were set for hearing on August 9, 2024. On July 26, 2024, Plaintiff filed oppositions. On August 2, 2024, the District filed replies. The Court continued the hearing to September 23, 2024.
PARTIES’ REQUESTS
The District asks the Court to sustain the demurrer to Plaintiff’s claim for negligent supervision of students and to grant the motion to strike portions of the complaint.
Plaintiff asks the Court to overrule the demurrer and deny the motion to strike.
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 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
B. Motion to strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“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.)
C. Government Code provisions
Government Code section 815.2 provides:
“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
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.)
Government Code section 820 provides:
“(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
“(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.”
D. California Code of Regulations
California Code of Regulations title 5, section 5531 provides:
“All 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.”
(Cal. Code Regs. tit. 5, § 5531.)
California Code of Regulations title 5, section 5552 provides:
“Where playground supervision is not otherwise provided, the principal of each school shall provide for the supervision by certificated employees of the conduct and safety, and for the direction of the play, of the pupils of the school who are on the school grounds during recess and other intermissions and before and after school.”
(Cal. Code Regs. tit. 5, § 5552.)
DISCUSSION
A. The first amended complaint
The first amended complaint alleges the following:
On or about November 23, 2022, Plaintiff was participating in a school sponsored after-school activity known as Creative Kids. Plaintiff was under Creative Kids’s care for the after-school activities. Plaintiff is informed and believes that that the District sponsors this after school activity on its school property known as Chatsworth Park Elementary UP/CD Magnet School, the elementary school Plaintiff attended. Plaintiff is informed and believes that the District provided an afterschool program through Creative Kids at the elementary school. Plaintiff is informed and believes that the District is responsible for the students participating in the after-school program until the student is picked up by a parent or guardian.
The District knew or should of have known that elementary children attending Chatsworth Park Elementary UP/CD Magnet School would use the playground equipment in this area of the school property.
Plaintiff is informed and believes that the District’s Chatsworth Park Elementary UP/CD Magnet School failed to assign any District employees to supervise the playground area during the afterschool activities.
Plaintiff wandered off alone to an area outside the perimeter of Creative Kids’s play area. Plaintiff fell from the area known as the “Silver Staircase,” breaking his arm in three places. No teacher, supervisor and/or Defendant employee was directly supervising the students, including Plaintiff, for safety and to prevent injuries.
“Plaintiff’s claim for negligent supervision of students against LAUSD is based upon Education Code §44807 and Code of Regulations §§5531 and 5552, which provide for supervision of students at school, during recess, before and after school, and at school-sponsored events and activities.” (FAC ¶ 14.)
“LAUSD mandatory duties pursuant to Education Code §44807 and Code of Regulations §§5531 and 5552, and LAUSD policies, procedures, and regulations are in place to prevent the type of injuries which occurred in this case.” (FAC ¶ 15.)
B. The District’s demurrer
The District argues the first amended complaint does not state a claim for negligent supervision of students because it does not allege that a District employee negligently supervised Plaintiff for purposes of Government Code section 815.2.
Plaintiff argues the District had a duty to supervise Plaintiff and Plaintiff was injured because the District failed to provide supervision.
The first amended complaint does not allege facts supporting a claim under Government Code section 815.2. While the first amended complaint also alleges that the District violated a mandatory duty to supervise students under Government Code section 815.6, the Court strikes the allegations supporting this claim in the next section.
The Court sustains the demurrer.
C. The District’s motion to strike
The District moves to strike the first amended complaint’s references to Government Code section 815.6, Education Code section 44807, Government Code section 815.6, and California Code of Regulations, title 5, sections 5552 and 5531. The District argues that these enactments do not support Plaintiff’s claim for violation of a mandatory duty under Government Code section 815.6.
The Court grants the request to strike the reference to Education Code section 44807 based on the Supreme Court’s statement in Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 939 (Hoff), that the statute does not impose a mandatory duty on public entities.
The District argues that California Code of Regulations, title 5, sections 5552 and 5531 ("sections 5552 and 5531"), do not support a claim for violation of a mandatory duty under Government Code section 815.6 because the regulations “do not impose a mandatory, non-discretionary duty . . . .” (Motion p. 10.)
“First and foremost, application of [Government Code] section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis).) “It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Ibid.)
“Whether an enactment creates a mandatory duty is a question of law: ‘Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.” (Haggis, supra, 22 Cal.4th at p. 499, quoting Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631.) “The enactment’s language ‘is, of course, a most important guide in determining legislative intent, [but] there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion.’ ” (Ibid., quoting Morris v. County of Marin (1977) 18 Cal.3d 901, 910-911, fn. 6.)
Whether sections 5552 and 5531 impose a mandatory duty for purposes of Government Code section 815.6 appears to be an issue of first impression. The District argues the provisions “provide the principal wide discretion as to how to implement his or her duty to supervise students in the school” and do not “mandate how students shall be supervised, which plans must be adhered to in administering the school, or which employees the principal may provide for student supervision.”
Plaintiff’s opposition to the motion to strike does not address the question whether sections 5552 and 5531 impose a mandatory duty for purposes of Government Code section 815.6.
The Court has reviewed the language of sections 5552 and 5531. Despite the provisions’ mandatory language, their lack of specific direction about how to implement the mandates suggests that, for each provision, “the function itself involves the exercise of discretion.” (Haggis, supra, 22 Cal.4th at p. 498.)
The Court therefore grants the motion to strike.
CONCLUSION
The Court SUSTAINS Defendant Los Angeles Unified School District’s demurrer to Plaintiff Kayden Vinovich first amended complaint with 30 days leave to amend.
The Court GRANTS Defendant Los Angeles Unified School District’s motion to strike references to Government Code section 815.6, Education Code section 44807, and California Code of Regulations, title 5, sections 5552 and 5531 in Plaintiff’s first amended complaint with 30 days leave to amend.
Moving party is ordered to give notice of the Court’s ruling.
Moving party is ordered to file proof of service of the Court’s ruling within five days.