Judge: Michael E. Whitaker, Case: 23SMCV04421, Date: 2024-10-03 Tentative Ruling

Case Number: 23SMCV04421    Hearing Date: October 3, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from a dispute over injuries Plaintiff Angel Lomeli, a minor, by and through his guardian ad litem, Juana Meyer (“Plaintiff”), allegedly suffered at school on or about August 18, 2022, when he was assaulted by another student. 

The operative First Amended Complaint (“FAC”) filed by Plaintiff against Defendants Santa Monica High School; Santa Monica-Malibu Unified School District; and City of Santa Monica; alleges six causes of action for (1) negligence; (2) premises liability; (3) negligent hiring, supervision and retention; (4) negligent supervision of school premises; (5) negligent infliction of emotional distress; and (6) violation of mandatory duty.  Plaintiff subsequently dismissed the City of Santa Monica from the action.

Defendant Santa Monica-Malibu Unified School District (“Defendant” or “SMMUSD”) now demurs to the first five causes of action for failure to state facts sufficient to constitute a cause of action and for uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f) respectively.  Defendant also moves to strike the first two cause of action and various ancillary allegations on the grounds that Plaintiff may not allege common law general negligence or premises liability against a governmental entity.

Both motions are unopposed.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of the case Doe v. Petaluma City School District (N.D. Cal. 1993) 830 F.Supp. 1560.

Judicial notice may be taken of “[t]he decisional, constitutional, and statutory law of any state of the United States[;]” of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States[;]” and of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States” records of any court in this state.  (Evid. Code, § 452, subd. (a); (c); (d).) 

Thus, judicial notice of the Northern District of California’s decision in Doe v. Petaluma is proper under all three of these subdivisions. 

However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of the Northern District of California’s decision in Doe v. Petaluma and the truth of results reached, but not the truth of any hearsay allegations contained therein.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Defendant argues that the first five cause of action are uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f), Defendant does not identify any portions of the FAC are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. 

The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          Governmental Immunity

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute.  (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)  To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) 

Here, the first cause of action for negligence; second cause of action for premises liability; third cause of action for negligent hiring, supervision and retention; and fifth cause of action for negligent infliction of emotional distress do not include allegations regarding any statutory ground for relief.

As such, the Court sustains Defendant’s demurrer to the first, second, third, and fifth causes of action.

                                                       ii.          Negligent Supervision of School Premises

As to the fourth cause of action, the FAC alleges:

14. This incident took place on or about August 18, 2022 where Plaintiff ANGEL LOMELI sustained various severe injuries, including but not limited to lacerations to his head, as he was lawfully allowed on the school premises, after he was violently assaulted by another student on campus (hereinafter “SUBJECT PREMISES”).

15. Plaintiff is informed and believes, and thereon alleges that Defendants SANTA MONICA HIGH SCHOOL, a public school; SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT; a governmental entity; CITY OF SANTA MONICA, a governmental entity; and DOES 1 through 50, inclusive, and each of them, owned, possessed, leased, built, operated, occupied, inspected, supervised, maintained, repaired, operated, managed, designed, constructed, and/or controlled the aforementioned real property including but not limited to the SUBJECT PREMISES.

16. At all relevant times Plaintiff was lawfully present upon the SUBJECT PREMISES and used the SUBJECT PREMISES in a reasonable and normal way.

17. At all relevant times, Plaintiff was fault free and did not contribute in any way to his injuries.

18. At all relevant times, Defendants failed to adequately, and properly warn, and guard anyone present on the SUBJECT PREMISES, including the Plaintiff against the dangerous conditions on the SUBJECT PREMISES.

19. As a proximate and legal result of the negligent, reckless, and/or tortious acts and omissions of the Defendants, Plaintiff suffered serious injuries, including but not limited to lacerations to his head, general damages, and special damages.

[…]

47. At all times mentioned herein, Defendants and DOES 1 through 50, and each of them, had a special relationship with Plaintiff and had an affirmative duty to take all reasonable steps to protect him. Under Cal. Const. Article I, §§ 28(a)(7), (f)(1), students have the inalienable right to attend safe, secure, and peaceful campuses, which Defendants, and each of them, were required to provide. A special relationship is formed between a school and its students resulting in the imposition of an affirmative duty. The affirmative duty arises, in part, based on the compulsory nature of education for students between the ages of 6 and 18 years of age.

48. At all times mentioned herein, Defendants and DOES 1 through 50, and each of them, had heightened duties of care: (i) to supervise, at all times, the teachers, staff, and students of the school; (ii) to ensure that Defendants and DOES 1 through 50’s duties and responsibilities to students, including Plaintiff, to provide a safe, secure and peaceful campus, were being carried out and acted upon; and (iii) to enforce rules and regulations necessary to prevent disorderly and dangerous practices by students against other students, which are foreseeable and likely to result in injury to students.

49. Notwithstanding the aforementioned duties, Defendants, and its employees and agents, including but not limited to DOES 1 through 50, breached their duties to Plaintiff by failing to provide Plaintiff with a safe, secure and peaceful campus that was safe and fit for learning by committing acts and/or omissions, which include but are not limited to, the following: (i) failed to provide adequate and qualified supervision of their students, and (ii) failed to provide an environment where the school community upholds the standards of inclusion, respect, and civility and fosters an understanding that bullying, hazing, harassment, and discrimination are unacceptable, inappropriate, and harmful.

50. As a direct and proximate result of the careless and negligent acts and/or omissions of Defendants, and its employees and agents, including but not limited to DOES 1 through 50, Plaintiff has suffered physical assault, severe and pervasive bullying, and verbal and emotional assaults.

51. As a direct and proximate result of the careless and negligent acts and/or omissions of Defendants, and its employees and agents, including but not limited to DOES 1 through 50, Plaintiff was hurt and injured in his health, strength, and activity, sustaining serious injuries to his body and shock and injury to his nervous system and person. These injuries have caused and continue to cause Plaintiff great mental, physical, and nervous pain and suffering. Plaintiff continues to suffer from emotional distress, fear, worry, and insecurity associated with the verbal harassment and physical assault. As a result of such physical and emotional injuries, Plaintiff has suffered general damages.

52. As a further direct and proximate result of the careless and negligent acts and/or omissions of Defendant, and its employees and agents, including but not limited to DOES 1 through 50, Plaintiff has incurred medical and other bills, which Plaintiff will continue to require in the future.

(FAC ¶¶ 14-19, 47-52.)

            Thus, the FAC alleges the constitutional basis for the claim (Cal. Const. Article I, §§ 28(a)(7), (f)(1)), as well as specific facts about the what (violent assault by another student causing severe head lacerations) when (August 18, 2022), where (at Santa Monica High School), and how (Defendant’s inadequate supervision of the school.)  Although the FAC does not allege the specific identity of the individual(s) tasked with the responsibility for implementing supervision, that identity would be known to Defendant.

            As such, the Court overrules Defendant’s demurrer to the fourth cause of action.

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Here, Defendant moves to strike the following from the FAC:

1. “SANTA MONICA HIGH SCHOOL” (1:15; 1:23-24; 2:8-9; 4:4-5; 4:28-5:1; 5:18; 5:27; 6:18-19; 6:28-7:1; 7:14; 8:2; 8:10; 8:14-15; 8:24-25: 9:10; 9:25-26; 10:3-4; 15:22-23.)

2. “dangerous condition” (4:15-16; 5:17; 6:3; 6:6; 6:10; 6:12; 6:13; 6:15; 6:16.)

3. “dangerous conditions” (7:22.)

4. Plaintiff’s entire first cause of action for general negligence based on common law negligence. (4:20-7:8.)

5. Plaintiff’s entire second cause of action for premises liability based on common law negligence. (7:9-9:4.)

6. “3. Prejudgment and post-judgment interest according to law and proof, to the extent authorized by law;….” (16:4.)

Having sustained Defendant’s demurrer to the first and second causes of action, the Court denies as moot Defendant’s motion to strike the entire first and second causes of action.

With regard to references to “SANTA MONICA HIGH SCHOOL,” Defendant moves to strike all references to Santa Monica High School on the grounds that it “is not a separate legal entity apart from SMMUSD which can sue or be sued.”  (Motion to Strike at p. 13.)  In support, Defendant cites to Hovd v. Hayward Unified School District (1977) 74 Cal.App.3d 470, 472, where a vocational skills center was held not to be a public agency, and Doe v. Petaluma City School District (N.D. Cal. 1993) 830 F.Supp.1560, 1583, where the Northern District held, “Kenilworth Junior High School is not an entity capable of being sued” without any analysis or explanation. 

The Court does not find, at this juncture, a sufficient legal or factual basis to strike Santa Monica High School as a defendant from the FAC.  Further, to the extent the allegations indicate that the assault took place on Santa Monica High School’s campus, striking those allegations would be inappropriate, regardless of whether Santa Monica High School ultimately remains a named defendant.

With regard to references to a “dangerous condition” or “dangerous conditions,” Defendant argues that these allegations should be stricken, because “in order to invoke any liability for a dangerous condition, a plaintiff must demonstrate that some physical characteristic of a governmental entity’s property contributed to his/her injury.”  The Court need not make a finding that Plaintiff has adequately pleaded an allegation premised on a dangerous condition to some physical characteristic of Santa Monica High School to permit Plaintiff to factually allege that conditions at the high school were generally dangerous (and led to Plaintiff’s claimed head laceration injuries.)  Therefore, the Court denies Defendant’s motion to strike references to dangerous condition[s] from the FAC.

Finally, Defendant moves to strike from the FAC Plaintiff’s request for “Prejudgment and post-judgment interest according to law and proof, to the extent authorized by law” on the grounds that Civil Code 3291, which allows for the recovery of interest on damages recovered, expressly exempts public entities.  The Court does not find this a sufficient basis to strike from the FAC Plaintiff’s request for interest “to the extent authorized by law.” 

Therefore, the Court denies Defendant’s motion to strike in its entirety.

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet this burden as Plaintiff did not oppose the demurrer or motion to strike, and therefore did not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains without leave to amend Defendant’s demurrer to the first, second, third, and fifth causes of action, but overrules Defendant’s demurrer to the fourth cause of action.  Further, the Court denies Defendant’s motion to strike in its entirety. 

Defendant shall file and serve an Answer to the FAC on or before October 24, 2024.  Further, Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  October 3, 2024                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court