Judge: Lisa R. Jaskol, Case: 23STCV30468, Date: 2025-04-16 Tentative Ruling
Case Number: 23STCV30468 Hearing Date: April 16, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On December 13, 2023, Plaintiff Nehemiah Johnson (“Plaintiff”), a minor, by and through his guardian ad litem Jessica Jasmine Johnson (“Jessica Johnson”), filed this action against Defendants County of Los Angeles (“County”) and Does 1-50 for vicarious liability for the wrongful acts or omissions of public entity employees and/or retention of unfit employee (Gov. Code, § 815.2) and negligence.
On December 23, 2023, the Court appointed Jessica Johnson to serve as Plaintiff’s guardian ad litem.
On July 18, 2024, Plaintiff, a minor, by and through his guardian ad litem Jessica Johnson, filed a second amended complaint against the County and Does 1-50 for negligence per se (Gov. Code, § 815.6) and vicarious liability for the wrongful acts or omissions of public entity employees and/or retention of unfit employee (Gov. Code, § 815.2).
On September 26, 2024, the Court sustained the County’s demurrer to Plaintiff’s second amended complaint with leave to amend.
On November 14, 2024, Plaintiff, a minor, by and through his guardian ad litem Jessica Johnson, filed a third amended complaint against the County and Does 1-50 for negligence per se (Gov. Code, § 815.6) and vicarious liability for the wrongful acts or omissions of public entity employees and/or retention of unfit employee (Gov. Code, § 815.2).
On December 13, 2024, the County filed a demurrer to the third amended complaint. The demurrer was set for hearing on January 24, 2025. On January 16, 2025, the Court denied Plaintiff’s ex parte application to continue the hearing on the demurrer for 30 days. On January 24, 2025, the Court granted Plaintiffs’ unopposed ex parte application to continue the hearing on the demurrer and continued the hearing to February 28, 2025.
On February 18, 2025, Plaintiff filed a late opposition to the demurrer.
Also on February 18, 2025: (1) Plaintiff filed a motion for leave to file a fourth amended complaint and (2) the County filed a reply and notice of non-opposition to the demurrer.
On February 20, 2025, Plaintiff filed another motion for leave to file a fourth amended complaint.
Also on February 20, 2025, the County filed a sur-reply to Plaintiff’s opposition to the demurrer.
On February 27, 2025, the Court denied Plaintiff’s ex parte application to advance the hearing on Plaintiff’s motion for leave to file a fourth amended complaint or, in the alternative, to continue the hearing on the County’s demurrer to the third amended complaint.
On February 28, 2025, on its own motion, the Court continued the hearing on Defendant’s demurrer to April 16, 2025.
On March 3, 2025, the Court denied Plaintiff’s ex parte application to advance the hearing on his motion for leave to file a fourth amended complaint.
On April 2, 2025, the Court denied Plaintiff’s ex parte application to continue the hearing on the County’s demurrer.
Trial is currently scheduled for June 11, 2025.
PARTIES’ REQUESTS
The County asks the Court to sustain the demurrer to Plaintiff’s third amended complaint.
Plaintiff asks the Court to overrule the demurrer or grant leave to amend.
LEGAL STANDARDS
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. (See 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).)
The Court will sustain a demurrer for uncertainty only where the pleading is so deficient that the responding party cannot reasonably respond – that is, cannot reasonably determine which issues must be admitted or denied or which claims are directed against the responding party. (See Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is based on uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)
When the Court sustains a demurrer, the Court must grant leave to amend if there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The plaintiff has the burden of showing the Court that the plaintiff can amend the pleading successfully. (See id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
B. Claims against government entities
1. Generally
“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.)
2. Government Code section 815.2
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 820.2 provides:
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
(Gov. Code, § 820.2.)
“When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249 (de Villers).)
3. 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.)
“Three requirements must be met before governmental entity liability may be imposed under Government Code section 815.6: (1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.) Whether an enactment creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 (Haggis).)
“Courts have delineated what is necessary to establish a mandatory duty. ‘First and foremost, ... the enactment at issue [must] 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.’ [Citation.] ‘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.’ [Citation.] Moreover, ‘[c]ourts have ... [found] a mandatory duty only if the enactment “affirmatively imposes the duty and provides implementing guidelines.” ’ [Citation.] “ ‘ “ ‘[T]he mandatory nature of the duty must be phrased in explicit and forceful language.’ ” [Citation.] ‘It is not enough that some statute contains mandatory language. In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the [public entity].’ ” [Citations.]’ [Citation.]” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348-49 (State Dept. of State Hospitals).)
Courts strictly construe the statute’s first prong, “finding 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, 898.) The enactment’s language is the most important guide to determine 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.” (Haggis, supra, 22 Cal.4th at p. 499.) “In determining whether a mandatory duty actionable under section 815.6 had been imposed, the Legislature’s use of mandatory language (while necessary) is not the dispositive criteria. Instead, the courts have focused on the particular action required by the statute, and have found the enactment created a mandatory duty under section 815.6 only where the statutorily commanded act did not lend itself to a normative or qualitative debate over whether it was adequately fulfilled.” (De Villers, supra, 156 Cal.App.4th at p. 260, fn. omitted.)
“[S]ection 815.6 requires the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.’ [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” (Haggis, supra, 22 Cal.4th at p. 499.)
“If the first two elements set out in Government Code section 815.6 are satisfied, ‘the next question is whether the breach ... was a proximate cause of the plaintiff's injury.’ [Citations.] [The Supreme Court has] recognized that proximate cause has two aspects. ‘ “One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.” ’ [Citation.] This is sometimes referred to as ‘but-for’ causation. [Citation.].” (State Dept. of State Hospitals, supra, 61 Cal.4th at p. 352, fns. omitted.)
“The second aspect of proximate cause ‘focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional “limitations on liability other than simple causality.” [Citation.] “These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.” [Citation.] Thus, “proximate cause ‘is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct.’ ” [Citation.]” [Citation.] As Witkin puts it, ‘[t]he doctrine of proximate cause limits liability; i.e., in certain situations where the defendant's conduct is an actual cause of the harm, the defendant will nevertheless be absolved because of the manner in which the injury occurred.... Rules of legal cause ... operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.’ ” [Citation.]” (State Dept. of State Hospitals, supra, 61 Cal.4th at p. 353.)
“ ‘Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint.... Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.’ [Citations.]” (State Dept. of State Hospitals, supra, 61 Cal.4th at p. 353.)
DISCUSSION
A. The third amended complaint
The third amended complaint includes the following allegations:
Defendants placed Plaintiff under the care and supervision of a licensed foster parent.
On or about January 25, 2023, Plaintiff, then eight months old, was taken to the hospital to treat a diaper rash which had been present for approximately two days while Plaintiff was under a foster parent’s care and supervision. At the hospital, the foster parent stated that she attempted to treat the rash without success. At the request of Plaintiff’s mother, Jessica Johnson, a full body examination of Plaintiff was also performed. Jessica Johnson expressed concern to the treating doctors, law enforcement and the licensed social worker present about possible neglect, abuse and/or abandonment by the assigned foster parent.
Defendants allowed Plaintiff to remain under the foster parent’s care and supervision upon discharge from the hospital on January 25, 2023 even though Defendants knew about the foster parent’s inability to provide adequate care to the foster children in her custody.
On or about February 1, 2023, while Plaintiff was under the foster parent’s care and supervision, Plaintiff allegedly was involved in a motor vehicle accident resulting in bodily injuries to Plaintiff, including severe burns on Plaintiff’s face. Between February 1, 2023 and February 7, 2023, Plaintiff was admitted to the hospital where Plaintiff received treatment for severe injuries. Plaintiff believes and alleges that the foster parent was negligent, careless, and reckless in failing to properly and safely place Plaintiff in a rear-facing child safety seat in the rear seat of the vehicle involved in the collision.
Defendants failed to initiate an immediate investigation and respond appropriately to signs of endangerment, allowing Plaintiff to remain in a dangerous foster care environment. Defendants’ omissions and failure to act on Jessica Johnson’s concerns exposed Plaintiff to an unaddressed and foreseeable risk of injury, directly resulting in the injuries detailed in this complaint.
Defendants knew or should have known that the foster care parent was unsafe, unqualified, and unfit to properly and safely care for Plaintiff, and that the failure to take adequate safety precaution and/or use reasonable precaution would cause severe injuries and even deaths. Defendants knew or should have known that the foster care environment where Plaintiff was placed was dangerous, unsafe and unfit for Plaintiff, and that the failure to take adequate safety precaution and/or use reasonable precaution would cause severe injuries and even deaths.
Defendants failed to take reasonable and necessary steps that would have mitigated or eliminated the danger. Defendants’ failure to act within the prescribed guidelines and take reasonable steps ultimately subjected Plaintiff to unnecessary and preventable injury.
Defendants knew, or in the exercise of reasonable diligence should have known, that Defendants’ employees, agents, social workers and caseworkers were incompetent and unfit to perform the duties for which they were employed and that an undue risk to persons such as Plaintiff would exist because of their employment. Despite this advance knowledge, Defendants acted with deliberate indifference and retained the employee(s) in conscious disregard of the safety of others.
Defendants negligently hired, retained, managed, trained, and supervised their employees, agents, social workers, and caseworkers, who were not qualified, competent or fit to carry out the requisite actions to ensure that children placed in foster care, including Plaintiff, were protected from harm.
B. The demurrer
1. First cause of action for negligence per se under Government Code section 815.6
The County argues that the third amended complaint fails to plead facts sufficient to support a claim for negligence per se under Government Code section 815.6 because Plaintiff does not plead with particularity facts showing that the County’s alleged breach of its mandatory duty caused Plaintiff’s injury. The County asserts, “There are no allegations that County was ever on notice that the foster mother would be in an accident, that she was a bad driver, that she did not secure the infant, nor that the accident itself was the foster mother’s fault. There is no nexus between a diaper rash and a traffic accident.” (Demurrer p. 13.)
Plaintiff
alleges that if Defendants had “acted in accordance with [their] mandatory
duties—by investigating reports of neglect, ensuring compliance with safety
protocols, and removing Plaintiff from unsafe conditions—the harm Plaintiff
sustained, including physical injuries from improper supervision and neglect,
would likely have been prevented.” (TAC
¶ 35)
Plaintiff has sufficiently pleaded “but for” causation: but for Defendants’
failure to remove Plaintiff from the foster mother in response to the diaper
rash incident and Jessica Johnson’s complaints about the foster mother,
Plaintiff would not have been injured in the subsequent car accident.
Accordingly, the Court sustains the County’s demurrer to the first cause of action in the third amended complaint.
2. Second cause of action for vicarious liability for the wrongful acts or omissions of public entity employees and/or retention of unfit employee under Government Code section 815.2
In sustaining the County’s demurrer to Plaintiff’s claim in the second amended complaint for vicarious liability and/or retention of unfit employee, the Court found that Plaintiff failed to allege sufficient facts about which County employee owed a duty to Plaintiff, how that employee breached that duty, and how the breach caused damages. The Court also ruled that Plaintiff provided no statutory basis for a claim for negligent hiring, retention, and supervision. (See de Villers, supra, 156 Cal.App.4th at p. 256 [“[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.”].)
In the third amended complaint, Plaintiff allege that (1) Defendants knew, or in the exercise of reasonable diligence should have known, that Defendants’ employees, agents, social workers and caseworkers were incompetent and unfit to perform the duties for which they were employed and that an undue risk to persons such as Plaintiff would exist because of their employment, (2) despite this knowledge, Defendants acted with deliberate indifference and retained the employee(s) in conscious disregard of the safety of others, and (3) Defendants consciously disregarded this knowledge and failed to adequately investigate, discover or correct such practices, resulting in Plaintiff’s injuries. (TAC ¶¶ 50-52; see also TAC ¶¶ 53-63.)
The Court sustains the County’s demurrer to the second cause of action because Plaintiff has failed to allege with particularity facts showing that the County knew or should have known that its employees who worked on Plaintiff’s case were unfit to carry out their duties.
3. Mootness
Plaintiff contends the demurrer is moot because Plaintiff has moved for leave to amend the complaint. The Court has not yet ruled on Plaintiff's motion for leave to amend the complaint. The demurrer is not moot.
4. Leave to amend
CONCLUSION
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.