Judge: Mel Red Recana, Case: 22STCV07880, Date: 2024-03-21 Tentative Ruling
Case Number: 22STCV07880 Hearing Date: March 21, 2024 Dept: 45
Hearing
date: March 21, 2024
Moving
Party: Los Angeles County
Responding
Party: Plaintiffs
Demurrer
The Court
considered the moving papers, opposition, and reply.
The
Demurrer is SUSTAINED with leave to
amend.
I.
BACKGROUND
a.
Factual
Plaintiffs
allege that Ericka Rosal enrolled her four children (A.B., C.D., E.F., and
G.H.) in the Pathways LA and Pathways Child Care Subsidy Programs. (SAC ¶ 18.) Plaintiffs
allege LA Pathways was marketed by Los Angeles County as an alternative means
of care for economically disadvantaged families. (Ibid.) Rosal
subsequently completed a Certificate of Enrollment which provided Rosal with
referrals to local childcare sites that Plaintiffs allege the County of Los
Angeles was responsible for licensing, funding, maintaining, and operating. (Ibid.)
Plaintiffs allege that while Rosal’s children were enrolled and present at such
childcare sites, the children were considered wards of the County and the
County served in loco parentis roles for the children. (SAC ¶¶ 18, 27, 28.) Plaintiffs
allege that one such childcare site was operated under the supervision of
Blanca Mejia and her brother, Defendant Eduardo Pena—the Mejia House. Plaintiffs
allege that from an unknown date through August of 2021, Defendant Pena
molested, assaulted, or inappropriately fondled A.B, C.D., E.F., and G.H. (SAC
¶ 19.) On or about January 5, 2022, child A.B. reported these acts to her
mother, Plaintiff Rosal. Subsequently, Plaintiff Rosal reported the incidents
and completed a police report. Since this date, Defendant Pena has no longer
been located at the Mejia House.
Plaintiff now
contends that due to LA County’s contract and arrangement with LA Pathways and
the Mejia House, Defendant County failed to properly supervise, retain, and
investigate Defendant Pena. Plaintiff alleges that by reimbursing Plaintiff for
the fees of such childcare and while also paying for the educational services,
recommending them, supervising them, and licensing them, the public entity
defendants should be strictly liable for the sexual misconduct that occurred
and are thus, are liable for negligence, along with Plaintiff’s other claims.
(SAC ¶¶18-29).
b.
Procedural
On June 05,
2023, Plaintiff filed this Second Amended Complaint (SAC) for (1)
Negligence—Liability of Employees; (2) Negligence—Liability of Public Entity;
(3) Negligent Hiring, Retention, and Supervision; (4) Negligence—Pathways LA;
(5) Intentional Infliction of Emotional Distress; (6) Assault; (7) Sexual
Battery; (8) Battery; (9) Breach of Duty to Warn, Educate, and Train; (10) Violations
of Cal. Civ. Code §1708.5; and (11) Violations of Cal. Civ. Code §52.4.
On August 7,
2023, Defendant County of Los Angeles filed this Demurrer to Plaintiffs’ Second
Amended Complaint.
On March 7,
2024, Plaintiffs filed their Opposition to County of Los Angeles’ Demurrer to
Second Amended Complaint.
Then, on March
13, 2024, Defendant County of Los Angeles filed their Reply to Plaintiffs’
Opposition to Defendant County of Los Angeles’ Demurrer to Second Amended
Complaint.
II.
MOVING PARTY’S GROUNDS FOR DEMURRER
On August 7,
2023, Defendant County of Los Angeles (“County” or “Defendant”) filed this
Demurrer to Plaintiff’s SAC, demurring to (1) all Plaintiffs’ causes of action
based on immunities set forth in Government Code sections 818.2, 818.8, 820.2,
820.4, and 820.8; (2) Plaintiffs’ second, third, and fifth causes of action for
negligence—liability public entity; negligent hiring, retention, and
supervision; and intentional infliction of emotional distress, respectively, as
to lacking statutory basis; (3) Plaintiffs’ first, second, and third causes of
action based on negligence for failure to show the County or any of its
employees owed or breached any duty of care or that there was proximate cause
between any conduct by the County or its employees and Plaintiffs’ injuries;
(4) the fifth cause of action for intentional infliction of emotional distress
for failure to state facts sufficient to establish the essential elements of
tort; (5) the tenth cause of action of sexual battery for failing to allege
facts sufficient to establish a violation; and (6) the eleventh cause of action
of gender violence for failing to allege facts sufficient to establish a
violation.
III.
ANALYSIS
As a general matter, in a
demurrer proceeding, the defects must be apparent on the face of the pleading
or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the
evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs.
(2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Id.) The
only issue a demurrer is concerned with is whether the complaint, as it stands,
states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
Where a demurrer is sustained,
leave to amend must be allowed where there is a reasonable possibility of
successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)
The burden is on the plaintiff to show the court that a pleading can be amended
successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118,
226.) However, “[i]f 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).
a. Statutory
Immunities
Defendant asserts that all causes of action asserted
against the County of Los
Angeles
are barred by the immunities provided by Government Code sections 818.2
(“[a] public
entity is not liable for an injury caused by adopting or failing to adopt an
enactment or by failing to enforce any law”); 818.8 ([a] public
entity is not liable for an injury caused by a misrepresentation by an employee
of the public entity, whether or not such misrepresentation be negligent or
intentional”); 820.2 (“[e]xcept 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 was abused”); 820.4 (“[a] public
employee is not liable for his act or omission, exercising due care, in the
execution or enforcement of any law”); and 820.8 (“[e]xcept as
otherwise provided by statute, a public employee is not liable for an injury
caused by act or omission of another person”). Specifically, Defendant asserts
that Plaintiff has not met their burden of pleading facts showing that their
claims against the County of Los Angeles lie outside the various statutory
immunities.
To address Defendant’s argument that sections 820.2,
820.4, and 820.8 serve to immunize the County from Plaintiff’s claims, the
Court must first address a preliminary issue concerning whether or not these three
sections even apply to the County, a public entity. As such, the Court must
first look to the specific language of each section. Significantly, each of
these three sections begins with the language, “a public employee is not
liable . . .” before then proceeding to specify which forms of liability such
public employees are immunized from. In addressing section 820.2, both parties
argue whether the County was vested with discretionary, as opposed to mandatory
or ministerial duties in providing childcare for Plaintiffs. However, despite
such arguments, Defendant fails to show that “County” constitutes “a public
employee” in the manner contemplated by the language of the law. Thus, because
the County is not a public employee, the Court finds these immunities
inapplicable.
On the other hand, sections 818.2 and 818.8 do
expressly apply to public entities. Regarding section 818.2, however, Defendant
fails to show that the injury and harm alleged by Plaintiffs has resulted from
the County “adopting or failing to adopt an enactment or failing to enforce a
law.” Although Plaintiffs allege that the County failed to properly supervise
and maintain the Mejia House, Plaintiffs do not allege that such failures resulted
from the County adopting or failing to adopt an enactment. Similarly, Plaintiffs
do not point to a specific law that the County failed to enforce.
Section
818.8 aims to immunize public entities in circumstances arising when a plaintiff
suffers harm due to an employee of the public entity making a false
misrepresentation. Plaintiffs do not appear to allege any causes of action
based on a public employee’s misrepresentation.
Accordingly, the Court finds that
Plaintiffs’ causes of action against the County are not barred by Government
Code section 818.2, 818.8, 820.2, 820.4, and 820.8.
b. Plaintiffs
Fail to Assert Statutory Basis For Liability of Public Entity;
Negligent
Hiring, Retention, and Supervision; and IIED That Precludes the Application of
the Government Claims Act
The Government
Claims Act was
enacted after the California Supreme Court had largely abrogated common law governmental immunity. “The intent of the Act is not to expand the rights of
plaintiffs in suits against governmental
entities or employees, but to confine potential governmental
liability to rigidly delineated circumstances: immunity is waived only if the
various requirements of the Act are
satisfied.” (Caldwell v. Montoya, (1995) 10 Cal.4th 972, 985 [internal quotation
marks and alterations omitted].)
“According to [Government
Code section 815(a)], the general rule provides for governmental immunity
unless a statute provides otherwise. According to [section 815(b)], even if
liability is established by statute, that liability is subject to the various
specific governmental immunities set forth in the Government Claims Act or
elsewhere.” (Nuveen Mun. High Income Opportunity
Fund v. City of Alameda, Cal. (9th
Cir. 2013) 730 F.3d 1111, 1126.)
Here, Defendant County asserts that
pursuant to the Government Claims Act, Plaintiffs must identify certain
statutory bases for establishing either public entity liability or creating a
specific duty of care. (Demurrer, 5:16-20). In the absence of such statutory
basis, Defendant argues that common law tort liability is inapplicable to the
County as a public entity. In response, Plaintiffs argue that pursuant to Government
Code section 815.2, a public entity is vicariously liable for an injury when an
act or omission of the public employee occurs in the scope of employment. In
asserting this argument, Plaintiff points to Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202 in which the California Supreme Court permitted vicarious
liability in connection with a sexual assault by a police officer. The court
emphasized that the question is ordinarily one of fact, finding the issue may
be determined as a question of law where the material facts are undisputed, and
no conflicting inferences are possible. (Id. at 213.) However, Mary M is readily
distinguishable because it concerned a police officer who committed sexual
assault while on duty. Here, Plaintiffs conclusory allege that “each of the
defendants are the agent and/or employee of each and every other defendant,”
but fail to specifically allege that Eduardo Pena was a County employee when he
committed the alleged acts.
In any event, according to subsequent
case law, “there is considerable doubt that Mary M. has any applicability
beyond the narrow context of an arrest performed by a uniformed, armed police
officer in the normal course of that officer's duties.” (Z.V. v. County of
Riverside (2015) 238 Cal.App.4th 889, 891.)
Thus, the Court SUSTAINS the County’s
demurrer to the First, Second, Third, and Fifth causes of action WITH LEAVE TO
AMEND.
c.
Sexual Battery
Under California
law, a person commits sexual battery when he “[a]cts with the intent to
cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that
person directly or indirectly results.” Cal.
Civ.Code § 1708.5(a)(1); see also Shanahan
v. State Farm General Ins. Co.,
193 Cal.App.4th 780, 788, 122 Cal.Rptr.3d 572 (2011) (“[T]he tort of sexual battery requires an intent to cause a
harmful or offensive contact.”) (internal quotation marks omitted; brackets in
original)
Bosworth v. United States, No. CV 14-0498 DMG SS, 2014 WL 2931164, at *4 (C.D. Cal. June 27,
2014).
Here, Defendant demurs as to Plaintiffs’ tenth
cause of action for sexual battery on the grounds that such liability applies
to natural persons only. (Demurrer 12: 5-23). Plaintiffs oppose Defendant’s
argument by stating Plaintiffs do not assert their sexual battery claim
directly against the County, but instead, assert their claim against the County
vicariously. In doing so, Plaintiffs again reference Mary M. in which
the California Supreme Court found the Defendant and public entity vicariously
liable for a police officer’s sexual assault committed while acting under the
scope of employment. However, as discussed above, the Court finds that Mary
M. is inapplicable and that Plaintiffs fail to specifically allege Pena was
a County employee when he committed the alleged acts. Given Plaintiffs have set
forth no other grounds to conclude the tort of sexual battery applies to public
entities as opposed to solely natural persons, the Court SUSTAINS Defendant’s
demurrer with respect to Plaintiffs’ tenth cause of action WITH LEAVE TO AMEND.
d.
Gender Violence
Civil Code section 52.4(a) provides that “[a]ny person who has
been subjected to gender violence may bring a civil action for
damages against any responsible party.” Section
52.4(e)
provides: “Notwithstanding any other laws that may establish the liability of
an employer for the acts of an employee, this section
does not establish any civil liability of a person because of his or her status
as an employer, unless the employer personally committed an act of gender violence.”
(See Jones v. Kern High Sch. Dist.,
No. CVF071628OWW/TAG, 2008 WL 3850802, at *29 (E.D. Cal. Aug. 14, 2008).)
Lastly,
Plaintiffs asserts that the County committed gender violence against
Plaintiffs. (SAC ¶¶190-95). Defendant
again demurs by asserting section 52.4 applies only to natural persons and not
public entities. (Demurrer at 9:1-11). Although the Court finds the language of
section 52.4 unambiguous, the Jones case provides further instruction
here by emphasizing that section 52.4 can only be imputed to a person who
“personally committed an act of gender violence,” regardless of their status as
employee or employer. Plaintiffs fail to allege facts showing that the County
personally committed an act of gender violence against Plaintiffs.
Thus,
the Court SUSTAINS Defendant’s demurrer to Plaintiffs’ eleventh cause of action
with LEAVE TO AMEND.
IV.
CONCLUSION
In sum, Defendant
County’s Demurrer to Plaintiffs’ Second Amended Complaint is SUSTAINED in its
entirety WITH LEAVE TO AMEND; Plaintiffs
have 30 days from the date of this order to file their amended complaint.
It
is so ordered.
Dated:
ROLF M TREU
Judge of the
Superior Court