Judge: Mark C. Kim, Case: 21LBCP00396, Date: 2023-01-12 Tentative Ruling



Case Number: 21LBCP00396    Hearing Date: January 12, 2023    Dept: S27

1.     Background Facts

Plaintiff, Venice J. Gamble aka Venice Jaymes Gamble, II filed this action against Defendants, Long Beach Unified School District, et al. on 12/30/21.  In the required civil case cover sheet, Plaintiff erroneously identified this case as “other petition,” which resulted in assignment of an LBCP, rather than LBCV, case number.  The case is actually an “other complaint,” not “other petition.”  The original complaint included causes of action for injunctive and declaratory relief. 

 

On 6/06/22, Plaintiff filed his operative First Amended Complaint.  It names as defendants LBUSD, Dr. Jill Baker, Jay Camerino, Edward Samuels, Mona Merlo, Sashya Tullo, Johnathan Hayes, and Eddie Cruz.  It includes causes of action (each of which is pled against all named defendants) for:

·         Negligence

·         Negligent Supervision

·         Tortious Interference with Prospective Advantage

·         Unlawful Possession of Child Pornography

·         IIED

·         NIED

·         Abuse of Process

·         Violation of California Education Code §§200, et seq.

·         Negligent Hiring, Supervision and Retention of Employer

·         Writ of Mandate

·         Declaratory Relief

 

2.     Demurrer to FAC

a.     Standard on Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

 

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP §430.41(a)(3).)

 

b.     Meet and Confer

Defense Counsel declares he and Plaintiff spoke on the phone, but were unable to resolve the issues presented by way of the demurrer.  The Court will therefore rule on the demurrer on its merits.

c.     First and Second Causes of Action

Defendants demur to the first and second causes of action, for negligence and negligent supervision, on the ground that Plaintiff lacks standing to bring these claims.  Defendants cite Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 930, wherein the Supreme Court held that a school district does not owe a duty of care to a non-student. 

 

Plaintiff opposes the demurrer on three grounds.  First, he contends the Court has already considered and rejected the standing argument.  Second, he contends he has standing because Defendants’ actions have affected his relationship with his daughter.  Third, he contends he has standing to assert claims on behalf of his daughter. 

 

To support his argument that the Court has already ruled on this issue, Plaintiff cites to the Court’s 1/27/22 order on his ex parte application for a TRO, which was granted in part.  At the time of the 1/27/22 hearing, there were no claims for negligence or negligent supervision in the operative complaint.  The Court cannot locate anywhere in the record that the issue of standing was raised or decided.  The Court therefore finds it has not previously ruled on this issue and the issue is ripe for determination at this time.

 

Plaintiff’s second argument is that, pursuant to In re S.A. No D058708 at *1, he has standing to raise issues that affect his interest in the parent-child relationship.  Notably, the In re: S.A. case is not published and noncitable.  Additionally, it deals with a termination of parental rights judgment.  Plaintiff also relies on In re: Patricia E. (1985) 174 Cal.App.3d 1, 6, which also concerned parental rights and foster placement.  Neither of these cases considers or distinguishes the issues raised in Hoff, which is directly on point and which specifically holds there is no duty running between Plaintiff and the District and its employees.  Absent any such duty, Plaintiff lacks standing to raise claims that sound in negligence, as the elements of negligence include duty, breach, causation, and damages. 

 

Plaintiff’s third argument is that, even if Defendants are correct, Plaintiff is permitted to represent his children’s interest as their guardian ad litem.  This is correct.  Plaintiff has not, however, filed a lawsuit on behalf of his children, nor has he taken the necessary procedural steps to be declared their guardian ad litem. 

 

The demurrer to the first and second causes of action is sustained.  Because this is a purely legal issue, leave to amend is denied.

 

d.     Third Cause of Action

i.              Allegations

Plaintiff’s third cause of action is for tortious interference with prospective advantage.  While the word “economic” is omitted from the FAC, it appears the claim intends to be pled as one for interference with prospective economic advantage.  Plaintiff’s third cause of action alleges, in a nutshell, that:

·         Plaintiff must maintain a certain level of security clearances and related professional requirements and there are certain elements Plaintiff is required to stay away from.

·         Defendants know the above.

·         Defendants accused Plaintiff’s son of misdemeanors and felonies, all of which Defendants knew were false, and did so by having a letter served on Plaintiff at his residence by two armed school safety officers.

·         Defendants also contacted the Long Beach Police Department and the DCFS and made unfounded allegations of abuse against Plaintiff, all of which were dismissed.

·         Plaintiff was under an ethical obligation to disclose the accusations to someone with whom he had business, was required to refund a retainer, and lost probable income in the amount of $400,000. 

 

ii.             Law Governing Interference Claims

For intentional interference, the plaintiff must plead and prove: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. Golden Eagle Land Inv., L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 429-430 (citations and quotations omitted). 

 

iii.            Analysis

Plaintiff’s allegations are vague and ambiguous.  It is not clear what the nature of his work was, why he was required to have security clearances, what he was required to disclose and to whom he was required to disclose it, what the subject business relationship was, why he disclosed the subject communications, or why the relationship ended. 

 

Even if the allegations were not vague and ambiguous, Plaintiff has not pled “intentional acts on the part of the defendant DESIGNED to disrupt the relationship.”  None of the allegations give rise to any reasonable conclusion that Defendants’ purpose in sending the letter or making the reports was to disrupt Plaintiff’s business relationships.  

 

The demurrer is sustained.  The Court is inclined to deny leave to amend, but will hear argument on the issue at the time of the hearing.

e.     Fourth Cause of Action

Plaintiff’s fourth cause of action is for unlawful possession of child pornography pursuant to Penal Code §311.11.  Defendants demur to the cause of action, contending (a) it is not a civil claim, and (b) it is barred by the doctrines of res judicata and/or collateral estoppel. 

 

§311.11 is clearly a criminal statute, using the word “felony” and providing for sex offense registration upon a finding of guilt.  §311.11(c) specifies the penalty for a violation of the section.  Nothing in the section suggests that a civil cause of action can be pled based on a violation of the section.  The Court has reviewed the Code Annotated, and there are no references to any civil actions.  While it is difficult to prove a negative, the Court finds, in the absence of any authority from Plaintiff or found in its own research, that there is no civil cause of action for violation of this section. 

 

Plaintiff, in his opposition to the demurrer, cites a variety of other code sections he contends may have been violated.  Plaintiff’s FAC does not plead a violation of any of those code sections, and therefore his discussion is not relevant to the analysis of the merits of the demurrer, which is sustained.  Because this is a purely legal issue, leave to amend is denied.

 

f.      Fifth Cause of Action

Plaintiff’s fifth cause of action is for intentional infliction of emotional distress.  Defendants demur to the cause of action, contending they are immune from liability for decisions relating to the exercise of their discretionary authority to discipline students, and the Education Code provides the proper administrative remedies if a parent believes the discipline rendered is not appropriate. 

 

The problem with Defendants’ argument is that Plaintiff’s fifth cause of action does not sound merely in claims relating to discipline.  By way of example, at ¶138, Plaintiff alleges Defendants harassed, bullied, conspired and colluded with known violent gang members in providing confidential information which resulting (sic) the solicitation of assault and battery of the Plaintiff’s Daughter, thereby resulting in even greater emotional distress watching a school administrator being part of the conspiracy ring to have his daughter harmed.”   At ¶141, Plaintiff alleges IIED as a result of Defendants’ distribution of unlawful and illicit exploitative materials of his daughter. 

 

The Court is not holding, expressly, that the above allegations are sufficient to state a claim for IIED.  The Court is holding that the above allegations do not implicate immunity based on disciplinary discretion, which is the only basis for Defendants’ demurrer.  Notably, Defendants very briefly argue that “none of the allegations” in the FAC arise to the level of outrageous or intending to cause emotional distress, but Defendants do not meaningfully address the allegations above, which, if proven, seem susceptible to this conclusion. 

 

The demurrer to the IIED cause of action is overruled.

 

g.     NIED

Defendants correctly note that the NIED claim rises and falls with the negligence claim.  Because there is no duty, the NIED cause of action is not well-pled.  The demurrer is sustained without leave to amend.

 

h.     Seventh Cause of Action, Abuse of Process

Defendants demur to the seventh cause of action for abuse of process, contending such a claim requires improper use of judicial authority, and nothing of or related to any court proceeding is alleged in the FAC.  Defendants rely on Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530 to support their position.  Plaintiff, in opposition, contends quasi-judicial activities of local agencies are an inherent part of the judicial process, and wrongful use of these activities can support a claim for abuse of process.  Plaintiff relies on Eastlick v. City of Los Angeles, 29 Cal.2d 661 and Baron v. City of Los Angeles, 2 Cal.App.3d 378, 381 to support his position.  Eastlick does not mention abuse of process.  Nor does Baron, which also has been expressly vacated. 

 

In Adams, the Court held, “Process is action taken pursuant to judicial authority. It is not action taken without reference to the power of the court. Thus, serving upon plaintiff a false notice that a bench warrant had been issued is not process, because in making the false statement defendant took no action pursuant to court authority.” 

 

Similarly, here, Plaintiff does not allege any acts that were taken in connection with judicial proceedings.  Plaintiff cites no applicable contrary authority.  The demurrer is therefore sustained.  Again, because this is a purely legal issue, leave to amend is denied.

 

i.      Eighth Cause of Action

Plaintiff’s eighth cause of action is for violation of Education Code §§200, et seq., which collectively prohibit discrimination in any school program or activity based on membership in a protected class.  Defendants contend Plaintiff has not alleged any facts showing discrimination based on membership in a protected class.  Defendants’ demurrer does not meaningfully address any of the allegations in the eighth cause of action. 

 

Plaintiff, in opposition to the demurrer, cites authority showing harassment by other students based on a known sexual assault is actionable under §200, et seq.  See Doe v. University of Tennessee, 186 F.Supp.3d at 811. 

 

Defendants fail to address the eighth cause of action in their reply papers.  In light of the failure to address the material allegations of the FAC in the demurrer and the failure to address the eighth cause of action at all in the reply, the demurrer is overruled.

 

j.      Ninth Cause of Action

Plaintiff’s ninth cause of action is for negligent hiring, supervision, and retention of employer.  It appears this cause of action is intended to be for negligent hiring, supervision, and retention of an employee or employees, not of an employer.

 

Pursuant to Phillips v TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139, this cause of action can only be stated if the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materialized.  Defendants correctly note that Plaintiff has pled no such facts here.  Plaintiff, in opposition, argues that the Phillips standard does not apply in the context of a school district, but cites no authority discussing the cause of action at issue in the context of a complaint against a school district.  In the absence of contrary authority, the demurrer is sustained.  The Court is inclined to deny leave to amend, but will hear argument on the issue at the hearing.

 

k.     Tenth Cause of Action  

Plaintiff’s tenth cause of action seeks a writ of mandate.  Defendants, in their demurrer, correctly note that it is not clear what specific relief Plaintiff seeks.  Plaintiff, in opposition to the demurrer, contends he seeks a writ of mandate requiring Defendants to enforce their own board policies and provisions of the Education Code.  Defendants correctly note, in reply, that this is vague and ambiguous, and that there is no known authority permitting such a broad order to be entered or enforced by the Court.  The demurrer is sustained without leave to amend.

 

l.          Eleventh Cause of Action

Plaintiff’s eleventh cause of action is for declaratory relief.  Defendants correctly note that the declaration sought is not clear.  Plaintiff, in opposition to the demurrer, fails to clarify.  The demurrer to the eleventh cause of action is therefore also sustained without leave to amend.

 

  1. Conclusion

The demurrer is sustained in part and overruled in part as set forth above.  If the parties submit on the tentative, leave to amend will be denied as to all causes of action for which the Court invited oral argument. 

 

Plaintiff is ordered to file a Second Amended Complaint in compliance with the Court’s order within twenty days.  Defendants are ordered to file a responsive pleading within the statutory time thereafter. 

 

Defendants are ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.