Judge: Mark C. Kim, Case: 22STCV16136, Date: 2023-05-11 Tentative Ruling

Case Number: 22STCV16136    Hearing Date: May 11, 2023    Dept: S27

1.     Background Facts

Plaintiffs, Jane M.C. Doe, et al. are a group of eleven plaintiffs who have collectively filed suit against Defendants, LAUSD, Dennis Jenkins, and Jennifer Mak for damages arising out of Jenkins’s alleged sexual abuse of Plaintiffs while they were fifth grade students at 15th St. Elementary School during 2013 and 2014. 

 

Plaintiffs’ operative First Amended Complaint includes causes of action for:

·         Negligence (LAUSD);

·         Sexual Assault (Jenkins);

·         Sexual Battery (Jenkins);

·         NIED (all defendants);

·         False Imprisonment (Jenkins).

 

2.     Demurrer

  1. Relief Sought

Defendant, LAUSD demurs to the first cause of action for negligence.  Defendants. LAUSD and Mak demur to the fourth cause of action for NIED.

 

  1. Legal 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).)

 

  1. First Cause of Action, Negligence

Plaintiffs have broken their negligence cause of action for negligence against LAUSD into six sub-parts, including negligent supervision of a minor, negligence per se, negligent supervision, negligent hiring/retention, negligent failure to warn, and breach of mandatory duty (Gov Code §815.6).  Defendant, in its companion motion to strike, which will be discussed below, contend the claims for negligent supervision, negligent hiring/retention, and negligent failure to warn do not arise out of a statutory duty and therefore cannot be pled against a public entity defendant.  Defendant contends the remaining statutory claims, including negligent supervision of a minor, negligence per se, and breach of mandatory duty are not pled with sufficient specificity and therefore fail to state a cause of action.

 

Pursuant to Gov Code §815, all claims against a public entity must have a statutory basis.  Pursuant to Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802, all claims against a public entity must be pled with particularity.  LAUSD’s arguments are essentially twofold.  First, it contends the facts showing Jenkins committed sexual assault and/or battery against Plaintiffs are not pled with particularity.  Second, it contends any facts showing LAUSD knew or should have known of Jenkins’s illegal acts are not pled with particularity.

 

The facts concerning Jenkins’s abuse of Plaintiffs are set forth at ¶20(a), which alleges Jenkins touched them inappropriately during class, including but not limited to rubbing their backs, grabbing their thighs, rubbing their shoulders and breasts in a sexual manner, and kissing them.  ¶20(a) also alleges Jenkins kept pictures of multiple minor female students that he had taken without their permission. 

 

It is questionable whether the above is sufficiently particular or not in light of the fact that LAUSD is a public entity.  As noted above, there are eleven minor plaintiffs.  Some of the plaintiffs are john does and not jane does, and therefore they would not have breasts.  Did Jenkins kiss all of the eleven students?  Did he grab all of their breasts?  While it is not clear exactly how much specificity is required, and certainly each plaintiff cannot be expected to remember the exact date of each incident or the exact specifics of what happened, it does seem that something more need be pled.  Each plaintiff must set forth what happened to him or her at the hands of Jenkins.

 

With respect to the allegation that LAUSD knew or should have known of Jenkins’s behavior, the FAC is even more lacking in particularity.  It repeatedly asserts that LAUSD, by and through Mak and/or others, knew or should have known what was happening.  There are, however, absolutely no factual allegations concerning how LAUSD would have known.  There are no allegations concerning what staff saw, whether any student or parent reported Jenkins’s behavior, whether Jenkins ever committed these acts in front of other adults, whether the photos of students were visible to other faculty and appeared to be inappropriate, etc. 

 

Plaintiffs must amend their complaint to add the particular facts that show both what Jenkins did and also how and why LAUSD, through its staff, knew or should have known of Jenkins’s activity.  The Court notes that Plaintiffs include allegations in the FAC to the effect that Jenkins continues to teach at the elementary school.  The relevant inquiry is what the school knew or should have known in 2013 and 2014, not what it knows now or what is has done subsequent to these students’ time at the school.

 

When Plaintiffs amend their complaint, the Court asks that they plead each statutory theory of liability as a separate cause of action.  This will allow for simpler and more thorough evaluation of each cause of action in the event of a future pleading challenge and/or summary adjudication motion. 

 

  1. NIED

Plaintiffs plead their claim for NIED against LAUSD and Mak.  Defendants demur on three grounds. 

 

First, they correctly note that the claim is not pled with particularity, as discussed above.  The demurrer is sustained with leave to amend on this ground for the reasons discussed above. 

 

Second, they contend NIED is a common law cause of action and cannot be pled against a public entity.  Plaintiffs, in opposition, contend the same statutory grounds that form the basis of their negligence cause of action form the basis of the NIED cause of action.  This is not clear in the fourth cause of action, where no statutes are referenced.  This must be clarified by way of the Second Amended Complaint.   

 

Finally, Defendants note that NIED is not technically a separate cause of action, but is actually just a form of negligence.  This is true.  It is, however, commonly pleaded separately.  The Court will allow Plaintiffs to plead NIED separately from negligence, but they must clarify the statutory basis for the cause of action and they must plead the claim with specificity.  If there are multiple statutory bases for the claim, then again, they must plead multiple causes of action for purposes of simplicity. 

 

3.     Motion to Strike

a.     Allegations Subject to Motion

Defendants move to strike the non-statutory claims from the first cause of action, and move to strike the prayer for attorneys’ fees.

 

b.     Non-Statutory Claims

Defendants contend the claims for negligent supervision, negligent hiring/retention, and negligent failure to warn are non-statutory common law claims and therefore cannot be pled against it.  As indicated above in connection with the demurrer, Plaintiffs must plead each sub-part of the negligence cause of action separately, and must clarify the statutory basis for each of the causes of action. 

 

c.     Attorneys’ Fees

Plaintiffs seek to recover attorneys’ fees pursuant to CCP §1021.5.  Notably, Plaintiffs do not currently have a properly pled claim against Defendants, and therefore the motion to strike is moot.  The Court will, however, consider the substance of the arguments raised in an attempt to assist the parties in resolving any issues raised by way of the SAC.

 

Pursuant to Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1447, attorneys’ fees are appropriate under §1021.5 if (1) plaintiffs' action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.” 

 

Defendants argue §1021.5 does not apply because this case does not seek enforcement of an important right affecting the public interest or the conveyance of a significant benefit upon the general public or a large class of persons.  Plaintiffs, in opposition, contend Jenkins continues to teach at 15th St Elementary, and therefore this action, if successful, will confer a benefit on a large class of persons (themselves and future students of Jenkins).  Defendants, in reply, contend attorneys’ fees are not appropriate because the complaint is not brought on behalf of the general public or as a class action. 

 

Defendants fail to cite authority for the position that §1021.5 fees are only available in PAGA or class action suits, and the Court knows of no such authority.  By way of example, in Conservatorship of Whitley (2010) 50 Cal.4th 1206, the Supreme Court held that §1021.5 attorneys’ fees were appropriate whether the plaintiff successfully created a procedural precedent that conferred a benefit on persons with developmental disabilities.  The Supreme Court held that the fact that the litigant had a personal interest in the outcome of the litigation did not foreclose the ability to obtain fees.  Notably, the Court did specify that a litigant who has a financial interest in the litigation may be disqualified from obtaining such fees when expected or realized financial gains offset litigation costs.  In this case, the Court cannot determine, at the pleading stage, whether Plaintiffs’ expected financial gains outweigh their litigation costs; in light of the allegation that Jenkins continues to work for LAUSD, the Court finds it is possible, if Plaintiffs’ claims are proven, that they will meet the test under §1021.5.  At the pleading stage, to the extent the motion is not moot, the motion would be denied. 

 

4.     Case Management Conference

The parties are reminded that there is a CMC on calendar today concurrently with the hearing on the demurrer and motion to strike.  The Court asks the parties to make arrangements to appear remotely at the CMC and hearing.