Judge Ralph C. Hofer, Case Number: 22GDCV01021, Date: 2024-01-26 Tentative Ruling

Plaintiffs Natasha Asatryan and Vartan Asatryan, the parents of decedent Liana Asatryan, allege that on December 2, 2021, defendants City of Glendale, Glendale Unified School District, and Balboa Elementary School negligently hired, retained, trained and supervised defendants’ employees, and negligently owned, operated, staffed, supervised and failed to provide the proper medical aid/attention to Liana Asatryan while she was a student under their care, when she was visibly exhibiting symptoms indicating she had a serious medical condition.

The FAC alleges that defendants caused to exist a dangerous condition of public property, including the playground at Balboa Elementary School, which was equipped with improper matting, which dangerous condition created a reasonably foreseeable risk of causing fatal injuries, including those suffered by decedent. Plaintiffs allege that the dangerous condition was created by the negligent or wrongful act or omission of defendants’ employees and/or that defendants had actual or constructive notice of the dangerous condition a sufficient time prior to December 2, 2021 to have taken measures to protect against it.

Moving defendant Glendale Unified School District filed a demurrer in response to the original complaint, which was heard on June 23, 2023. The court issued a tentative ruling via posting on LACourt.org website, which was to overrule the demurrer to the second cause of action for dangerous condition of public property, and to sustain the demurrer with leave to amend to the first cause of action for negligent act or omission of public entity or public employee.

The matter was called for hearing, the court indicated it had read and considered the moving papers, arguments of counsel, and the law, and counsel submitted on the court’s tentative ruling. The court adopted its tentative ruling as the final order of the court. The minute order was corrected nunc pro tunc later that date with the modification to allow plaintiff 20 days to amend.

On August 15, 2023, defendant Glendale Unified School District filed a demurer to the First Amended Complaint, arguing that the second cause of action for dangerous condition of public property failed to state facts sufficient to state a cause of action. The demurrer made no mention of the first cause of action. The demurrer was set to be heard on November 3, 2023, and was opposed by plaintiffs, with plaintiffs pointing out that the demurrer was improper as the court had previously overruled a previous demurrer to the second cause of action in the original complaint.

Defendant nevertheless permitted the previous demurrer to the FAC to remain on calendar until 3 pm on the afternoon November 2, 2023, the afternoon before the hearing, after plaintiff had been forced to file written opposition and the court had prepared a tentative ruling. On November 2, 2023, defendant filed a Notice of Taking Demurrer to First Amended Complaint Off Calendar, indicating that defendant Glendale Unified School District was taking the pending demurrer to plaintiff’s First Amended Complaint “OFF CALENDAR.” Eleven minutes later, on November 2, 2023, defendant filed its Amended Notice of Demurrer and Demurrer to First Amended Complaint, to be heard on this date, January 26, 2024. The amended demurrer does not mention the second cause of action of the FAC, but is solely directed to the first cause of action of the FAC.

On November 3, 2023, at the hearing on the demurrer to the FAC, the matter was called for hearing, and the court’s minute order noted, “Moving party has withdrawn their Hearing on Demurrer—Without Motion to Strike.” The court conducted a Case Management Conference. There is no mention of any pending “amended” demurrer in the court’s minute order.

Plaintiff in opposition argues that the demurrer should be overruled as untimely. The court notes that this is the second time defendant Glendale Unified School District has filed an untimely demurrer in this action, the demurrer to the original complaint being filed over five weeks late.

“(a) If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct…”

Here, the FAC was filed and served by electronic service on July 13, 2023. Thirty days from that date, plus an additional two days for service by electronic service, was August 14, 2023. The demurrer was filed and served on November 2, 2023, over eleven weeks, nearly three months, late. There is no statutory provision or court rule permitting an extension of time without advance permission of the court. The demurrer is overruled as extremely untimely.

Defendant characterizes the current motion as an “Amended” pleading, without pointing to any authority under which a party is permitted to amend a demurrer without advance leave of court, particularly after the time to demur has expired, and the previous demurrer to the same pleading has been opposed.

There is no indication in the file that defendant sought or obtained leave to file an amended demurrer. With respect to amendment of pleadings, CCP § 473 (a)(1) provides that “The court may..., in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...” There has been no notice to the adverse party seeking permission to file an amended demurrer, and it is not clear that justice would warrant such permission in these circumstances. Any “terms as may be just” in this matter could include the possibility of plaintiffs requesting reimbursement for their wasted expense in opposing the original demurrer. The demurrer is denied as presenting an unauthorized amended pleading without defendant seeking by noticed motion to obtain advance leave of court.

Moreover, as argued in the opposition and evident from the file, there was at the time the “amended” demurrer was filed no operative demurrer in this action, as prior to the filing of the “amended” demurrer, defendant had voluntarily filed a formal Notice of Taking Demurrer to First Amended Complaint off calendar. [See Notice, 11/02/2023]. The court on November 3, 2023 accordingly noted that the demurrer had been withdrawn by the moving party. There was no pleading left to amend, and no timely pleading pending before the court at the time of the filing of the amended pleading, and the amended pleading is also improper on this ground.

Plaintiffs in opposition also argue that the amended demurrer is improperly brought by defendant without first having met and conferred. The amended demurrer indicates that defendant is in compliance with meet and confer requirements, as there has been a meet and confer concerning “this demurrer.” The declaration in support of the motion states, “On August 3, 2023, at 3:15 pm, Defense counsel sent an email to plaintiff counsel, intended as a meet and confer as to the basis for this demurrer.” [Doumanian Decl., para. 3]. No copy of the subject email is attached to the moving papers.

It is clear that the referenced meet and confer took place before the original demurrer to the FAC was filed on August 15, 2023, which demurrer was directed only to the second cause of action. The declaration does not include any other dates for meet and confer efforts which would be directed to this demurrer, which challenges only the first cause of action.

As noted above, that email is referenced in the moving declaration to support compliance with the meet and confer requirements, but the email is not attached to the moving papers. The opposition submits a copy of the subject email, which states, in pertinent part:

“I have looked at the amended complaint, and while you allege improper matting you don't allege that the child fell off of any playground equipment so that the matting allegations would be sufficient to withstand demurrer. I would like to avoid filing a demurrer but will have to as to the second cause of action. Let me know if you will dismiss that cause of action.”

The opposition argues that this email sought to discuss only the second cause of action of the FAC, and that at no time after that did defendant ever take issue with or attempt to meet and confer about the sufficiency of the factual allegations in the first cause of action. Plaintiffs point out that consistent with defendant’s meet and confer of August 3, 2023, defendant filed its previous demurrer to the FAC to only the second cause of action on August 15, 2023. Plaintiffs argue that defendant has not filed a declaration with this demurrer stating that a meet and confer as to the first cause of action has taken place nor set forth what the results of that meet and confer, which did not occur, were.

“(a) Before 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. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”

Moreover, the court in its minute order concerning the demurrer to the original complaint expressly ordered, “The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed.” [Minute Order 06/23/2023, p. 19].

It appears under the circumstances that defendant did not appropriately meet and confer concerning this particular amended demurrer prior to filing it. The court recognizes that it cannot overrule the demurrer on this additional ground under CCP § 430.41(a) (4), but the court would ordinarily consider continuing the hearing on the motion and requiring the parties to meet and confer, and requiring defendant to submit a supplemental declaration reporting the results of those meet and confer efforts prior hearing the matter. However, given the current posture of this motion, this will be unnecessary. Defendant is reminded that in this litigation, defendant must fully comply with all meet and confer obligations and requirements before the court will consider any future matter with meet and confer requirements.

“Demurrer is SUSTAINED WITH LEAVE TO AMEND to the first cause of action for Negligent Act or Omission of Public Entity or Employee on the ground the complaint does not in the allegations in the paragraphs supporting the cause of action itself do not reference a statutory basis for the cause of action, and on the ground the cause of action does not allege sufficient facts supporting each element of a statutory cause of action, including Government Code section 815.2.”

Defendant Glendale Unified School District argues that plaintiffs have not cured the defect in the cause of action, have still not pled sufficient facts to support a negligence cause of action, and that negligence actions are not proper as against public entities.

This statute is recognized to have eliminated common law claims for negligence against a public entity; liability must be based on statute. See, e.g., Mikkelsen v. State of California (1976, 2nd Dist.) 59 Cal.App.3d 621, 626-628; Torres v. Department of Corrections & Rehabilitation (2013, 2nd Dist.) 217 Cal.App.4th 844, 850 (“Although the complaint sounds in negligence, there is no common law tort liability for public entities in California.”)

It is held that when pleading negligence against a public entity, even where the negligence is that of the public entity directly, plaintiff must allege and identify the statute establishing the duty owed by the public entity. Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.

The court had previously been concerned that although the complaint in the caption of the complaint and the title of the First Cause of Action referred to the cause of action as “Negligent Act or Omission of Public Entity or Public Employee [Cal. Gov’t Code section 815.2],” the statute, Government Code section 815.2, had not been referenced in a formal allegation within a paragraph of the pleading.

Defendant argues that plaintiffs have not identified any statutory basis altogether. Defendant does not indicate why the references in paragraph 20 are insufficient, but focuses on allegations it quotes from paragraph 16 of the FAC, which allegations do not in fact appear at that paragraph of the FAC. The quoted allegations do not appear in the original complaint, either. Defendant instead appears to be quoting allegations from another case altogether and goes on to argue that while plaintiff has pleaded a cause of action “against his assailant and the assailant’s parents under Civil Code section 1714,” plaintiff has not identified any statute that enables a civil cause of action against a public entity defendant. [Motion, p. 8]. This case does not involve allegations that decedent was harmed by an assailant, and defendant appears to have cut and pasted this language from a demurrer in another matter. In any case, the statutory basis for the first cause of action, which enables a civil cause of action against a public entity defendant, Government Code section 815.2, is now sufficiently alleged in the FAC and in the first cause of action itself. The demurrer on this ground is overruled.

Defendant also argues that there are insufficient facts to support the cause of action as the FAC does not contain any factual information about how the child died, how the child was hurt at school or any other information as to who, how, what, when, where, and why which are fundamental to the notice pleading requirements in California.

In Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, in which the Second District affirmed judgment for defendant City after its demurrer to plaintiff’s complaint was sustained without leave to amend, noting that factual specificity is required in pleading statutory causes of action against public entities:

“Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. ( Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 [75 Cal.Rptr. 240]; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659 [111 Cal.Rptr. 728]; County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1025 [144 Cal.Rptr. 296]; Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1980) § 3.72.)

“(a) A public entity is liable for injury 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.”

“properly supervise, care for, protect, rescue and provide and obtain prompt medical care, aid and attention, and/or provide the proper medical aid to Decedent while she was a student under the care, supervision, custody, and control of employees of Defendants …at Balboa Elementary School, and was visibly exhibiting symptoms indicating she had a serious medical condition, under circumstances giving rise to a cause of action against said employees.”

“are thus liable under Government Code 815.2 for the death of the Decedent and all injuries proximately caused by the acts and omissions of employees of said Defendants within the scope of their employment, because the acts and omissions described above would give rise to a cause of action against such employees, apart from section 815.2, and also the employees are not immune from liability for such acts and omissions given their duties and responsibilities to render aid to a student within their control exhibiting visible symptoms of a serious medical condition.”

Defendant argues that plaintiffs do not allege what any teacher or school district employee did nor did not do vis a vis plaintiff’s child, do not identify any employees, and do not allege that any employee struck or otherwise physically harmed their child, or any actionable act or omission.

The FAC alleges that the child was harmed when employees responsible for student safety did not respond appropriately to visible symptoms of a serious medical condition, so it is not correct that no act or omission is alleged in the FAC. There is no authority cited for any argument that plaintiffs are required to plead that an employee struck or affirmatively harmed their child, when defendant itself acknowledges that an omission may for the basis of a claim.

There is no authority cited under which details concerning the date or other facts concerning decedent’s death be alleged, when the facts concerning the harm caused by defendant’s employees, and their liability apart from Government Code section 815.2 is alleged. Defendant does not argue that there is no such separate liability. The opposition argues that it is held that under statutes including Government Code section 815.2, “‘a school district is vicariously liable for injuries caused by [the] negligence’ of school personnel ‘responsible for student supervision.’” Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, quoting Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747. This vicarious liability is what is alleged in the FAC.

There is no authority cited by defendant for the general argument that the pleading is insufficient because a specific employee is not identified, as the supervisory roles of the subject employees are alleged, and such details would not necessarily be known to plaintiffs until discovery is conducted. The cause of action is sufficiently stated. The demurrer on this ground is overruled.

Defendant also seems to make an argument that defendant enjoys some immunity from liability, but this argument is based on Government Code section 815, quoted above, which recognizes that claims against public entities may be based on statute, and as discussed above, a statutory basis has now been identified and alleged in the first cause of action. No other immunity is argued. The demurrer accordingly is overruled in its entirety.

Procedurally, the demurrer is untimely, and is fashioned an “Amended” Demurrer, when no leave to amend the original demurrer to the FAC has been sought or permitted by the Court, and defendant had taken the original demurrer to the FAC off calendar before the “Amended” demurrer was filed.

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