Judge: Michael Shultz, Case: 23CMCV01645, Date: 2024-01-30 Tentative Ruling
Case Number: 23CMCV01645 Hearing Date: January 30, 2024 Dept: A
23CMCV01645
Jane Doe E.W. v. Lynwood Unified School District, Fred Tah
[TENTATIVE] ORDER OVERRULING DEMURRER TO
PLAINTIFF’S COMPLAINT
I.
BACKGROUND
The
complaint alleges that Plaintiff, now 31 years old, was approximately 17 years
old and attending Vista High School when she was subjected to sexual abuse
perpetrated by Defendant, Fred Tah, a teacher employed by Defendant, Lynwood
Unified School District (“District”). Plaintiff alleges claims for (1) childhood
sexual abuse, (2) intentional infliction of emotional distress, (3) negligent
hiring, supervision, and retention, (4) failure to report suspected child
abuse, (5) negligent supervision of a minor, (6) and negligence.
II.
ARGUMENTS
Defendant
District demurs to the fourth cause of action, which relies on a criminal
statute that does not require the District, a public entity, to report
suspected child abuse or neglect. Additionally, the statute at issue does not
provide for a private right of action. If this cause of action is the statutory
grounds for a negligence claim, it is duplicative of the claims for
negligent/hiring/supervision and retention and the sixth cause of action for
negligence.
In
opposition, Plaintiff argues that the negligence claims arise from Gov Code
815.2 which imposes liability against a public entity for employees’ breach of
duty occurring within the course and scope of employment. As such, the
negligence claims are not duplicative. Plaintiff is not required to
specifically identify witnesses and evidence.
In
reply, the District argues that Plaintiff has not demonstrated that she can
base a negligence claim for violation of a criminal statute. Plaintiff did not allege
that the District knew or had reason to suspect Fred Tah’s actions.
III.
LEGAL STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35
Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
The court may not consider contentions,
deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to
establish every element of each cause of action. (Rakestraw v. California Physicians
Service (2000) 81
Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to
constitute a cause of action, courts should sustain the demurrer. (Code Civ.
Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.)
Sufficient facts are the essential facts
of the case "with reasonable precision and with particularity that is
sufficiently specific to acquaint the defendant with the nature, source, and
extent of his cause of action.” (Gressley v. Williams (1961) 193
Cal.App.2d 636, 643-644.) Whether the
Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180
Cal.App.3d 605, 609–610.)
IV.
DISCUSSION
The Distrct contends that the claim is
based on alleged violations of the Child Assault and Neglect Reporting Act
(“CANRA”), codified at Penal Code Section 11165, et seq. (Complaint, ¶ 47.) To
the extent it is based on CANRA, Defendant argues it does not apply to public
entities, as “mandated reporters” are defined as “individuals” and the criminal
statute does not create a public right of action. (Pen. Code, § 11165.7.)
Contrary
to the District’s arguments, Plaintiff is not attempting to allege a private
right of action based on violation of CANRA. Plaintiff expressly alleges that
the claim is based on Gov Code sections 815.2, 815.6, and 820. Liability against
a public entity may be vicarious, for the negligent conduct of its employees. (Gov.
Code, § 815.2 [" 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."].)
Additionally, "[w]here 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.)
As
the District’s case authority holds that one way in which a criminal law can
result in a civil action is “perhaps most commonly, … to establish a breach of
the standard of care or other element of an ordinary tort cause of
action." (Animal
Legal Defense Fund v. Mendes
(2008) 160 Cal.App.4th 136, 141.) Here, the District’s liability is based on the employees’ negligence
not only in supervising or retaining the alleged unfit teacher for which the
District is vicariously liable, but also because CANRA supports the imposition
of mandatory reporting duties on individual employees for whom the District is
also vicariously liable. The District is alleged to have breached its duty
arising from the special relationship between the District and Plaintiff.
(C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 877.)
Given the numerous bases for a duty alleged to be owed, the District’s
contention that the Plaintiff is asserting a private right of action under
CANRA is not supported.
Moreover, Plaintiff’s
failure to identify specific names of witnesses, the date of the events, where,
or what was witnessed, does not render the complaint defective. Plaintiff is
not required to allege evidentiary facts. Identifying individuals by name is
not required and does not render the pleading uncertain. (Hart
at 872 [The claim that Plaintiff was required to identify employees at
the pleading stage was not supported by authority. “To survive a demurrer, the
complaint need only allege facts sufficient to state a cause of action; each
evidentiary fact that might eventually form part of the plaintiff's proof need
not be alleged.”].)
Finally,
this cause of action is not duplicative of the claim for negligent supervision
or the general negligence claim. The claim for negligent supervision is based
on the District’s duty owed to the minor to supervise and protect the minor
from unfit staff involving known or knowable dangers, failure to supervise such
staff and to adequately hire and train its staff (ie., to investigate the
teacher, supervise and train him, or remove him. (Complaint ¶¶ 42-43.) These
duties are imposed by the Education Code and Cal. Code Regs., tit. 5, § 5551. (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871 [“Responsibility for the safety of public school students is not borne
solely by instructional personnel. School principals and other supervisory
employees, to the extent their duties include overseeing the educational
environment and the performance of teachers and counselors, also have the
responsibility of taking reasonable measures to guard pupils against harassment
and abuse from foreseeable sources, including any teachers or counselors they
know or have reason to know are prone to such abuse."].)
The
negligence claim is asserted against Does 41 through 50 only and does not
implicate the District.
V.
CONCLUSION
Based
on the foregoing, the District’s demurrer is OVERRULED and is ordered to answer
within 10 days.