W.S., a minor, by and through his Guardian ad Litem Juana Tlatenchi, v. Los Angeles Unified School District 

DEMURRER TO COMPLAINT

 

MOVING PARTY: Defendant Los Angeles Unified School District

RESPONDING PARTY(S): Plaintiff W.S., a minor, by and through his Guardian ad Litem, Juana Tlatenchi

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff W.S., a minor, by and through his Guradian ad Litem, brings this action against LA Unified. While a fourth-grade student at Ford Boulevard Elementary School, Plaintiff alleges he was sexually, physically, emotionally, and verbally abused by a classmate, M.U. Plaintiff alleges Defendant LA Unified was negligent in failing to prevent his abuse, among other things. Plaintiff asserts causes of action for (1) negligence, (2) negligent hiring, retention, training, and supervision, (3) IIED, (4) violation of the Tom Bane Civil Rights Act, and (5) Discrimination in Education. 

Defendant now demurrers to the Complaint. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the Third and Fourth Causes of Action are SUSTAINED. Whether leave to amend is given will depend on whether Plaintiff can make a sufficient offer of proof on how he can successfully amend any of these causes of action consistent with this ruling.  

Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.

Defendant is ordered to give notice, unless waived.

DISCUSSION:

Demurrer

I. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of the Complaint (Exh. A.)

II. Meet and Confer

III. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

IV. Analysis

Defendant demurrers to the Third (IIED), Fourth (Violation of the Tom Bane Civil Rights Act), and Fifth (Discrimination in Education) Causes of Action. Each is addressed in turn.

A. Third Cause of Action for Intentional Infliction of Emotional Distress

Defendant first demurrers to the third cause of action for intentional infliction of emotional distress. As a governmental entity, Defendant argues it is immune from the tort. Plaintiff counters that Defendant is liable based on vicarious liability. 

“Except as otherwise provided by statute,” 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.” (Govt. Code § 815(a).) But section 815.2(a) provides a caveat to the rule: “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.” (Govt. Code § 815.2(a).) In other words, “section 815 establishes ‘the basic rule[ ] that public entities are immune from liability except as provided by statute.’ [Citation.] Thus, when it comes to common law tort injuries, [a public entity’s] liability can only be predicated on its vicarious liability, if any, for the wrongful acts of its employees, as authorized by section 815.2, subdivision (a).” (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal. App. 4th 1507, 1514.) 

“Vicarious liability ‘means that the act or omission of one person ... is imputed by operation of law to another,’ ” without regard to fault. [Citation]. For example, vicarious liability for torts is imposed by operation of law upon employers for acts of their employees within the course and scope of employment, or upon principals for the acts of their agents.” (Chee v. Amanda Goldt Prop. Mgmt. (2006) 143 Cal. App. 4th 1360, 1375.) “The very fact that a public entity can only act through its employees makes it critical to analyze the nature of the alleged conduct in determining whether acts of public employees in the scope of their employment provide a basis for vicarious liability.” (Yee v. Superior Ct. (2019) 31 Cal. App. 5th 26, 40.)

As alleged in the Complaint, Plaintiff W.S. was a fourth-grade student at Ford Boulevard Elementary School for the 2022-2023 school year. (Comp. ¶ 8.) Plaintiff is on the “autistic spectrum” and had been placed on an Individualized Education Program (“IEP”). (Id.) Plaintiff had daily contact with classmate M.U, a special education student with attention deficit hyperactivity disorder. (Id. ¶ 9.) M.U. had a “history of bullying his classmates, including throwing their backpacks, using curse words at his classmates, and encouraging the classmates to use such words.” (Id.) 

Because of Plaintiff’s good behavior, “he was frequently selected by school staff to serve as a ‘monitor’ for his special education classmates on a weekly basis, escorting them to the school office or bathroom.” (Id. ¶ 10.) On April 13, 2023, Plaintiff was asked to escort M.U. to the bathroom alone. (Id. ¶ 11.) After the boys “had been gone for a while,” a teacher went to the restroom to check on them. (Id. ¶ 12.) The teacher “walked in quietly, looked down at the bottom of the stalls and saw two feet and a pair of knees down in one stall.” (Id.) The teacher then asked the boys what they were doing and “observed the boys walking out of the stall buckling their pants.” (Id.) 

The school then detained the boys until the County Sheriff arrived. (Id. ¶ 13.) The boys confirmed “that oral sex had occurred” that day and the day prior. (Id.) The school informed Plaintiff’s mother of the incident the next day and said it would “separate the boys into different classrooms for the remainder of the school year.” (Id. ¶ 14.) The school also “advised Plaintiff’s mother that they would take no further action as they felt that the behavior was ‘mutual’ and that both boys were equally responsible.” (Id.) Plaintiff’s mother did not find this solution acceptable and enrolled Plaintiff in virtual school. (Id.) Plaintiff alleges he now “suffer[s] tremendous distress and discomfort, for which he has received and continues to receive treatment.” (Id. ¶ 15.) 

Here, based on governmental immunity, any viable claim against the District must be based on respondeat superior. (See Gov. Code 815(a) & 815.2(a).) However, Plaintiff has not alleged respondeat superior in the Complaint. Therefore, the cause of action fails.

Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Whether leave to amend is granted shall depend on whether can establish that there is such a possibility to plead a respondeat superior theory of liability in this case.. 

B. Fourth Cause of Action for Violation of the Tom Bane Act

Next, Defendant Demurrers to the Fourth Cause of Action. Under the Bane Act, if a person interferes “by threat, intimidation, or coercion,” or attempts to do so, with any individual’s exercise or enjoyment of rights secured by the Constitutions or laws of the United States or California, the individual may bring a civil action for damages and other relief. (CCP § 52.1, subds. (b) & (c).)  

Defendant argues that “the Complaint fails to allege any facts suggesting that the District engaged in conduct constituting threats, intimidation, or coercion, or that any such conduct interfered with a legal right of Plaintiff, and if so, what legal right.” (Dem. 6: 25-27.) 

Here, Plaintiff alleges he was “sexually, physically, emotionally, and verbally abused by M.U” and that “Defendants allowed this abuse to occur.” (Compl. ¶ 36.) Based on the allegations alone, the court agrees that Plaintiff has failed to allege any “threat, intimidation, or coercion” necessary to allege a claim under the Bane Act.

Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is SUSTAINED. To be given leave to amend, Plaintiff must make an “offer of proof” at the hearing that he can plead facts of threats, intimidation, or coercion. If he cannot, no leave to amend will be given on this cause of action. 

C. Fifth Cause of Action for Discrimination in Education (Cal. Educ. § Code 220)

Finally, Defendant demurrers to the fifth cause of action for discrimination in education. Defendant argues that “the Complaint does not contain any factual allegations that Plaintiff suffered any harassment based on his alleged disability—much less any harassment that was severe, pervasive, or offensive. Moreover, the Complaint does not contain any factual allegations that the District had actual knowledge of any harassment, or that the District acted with deliberate indifference in the face of that knowledge.” (Dem. 7: 23-27.)

Education Code section 220 provides:

No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid.

(Educ. Code § 220.)

To prevail on this claim, Plaintiff must show “(1) he or she suffered ‘severe, pervasive and offensive’ harassment, that effectively deprived plaintiff of the right of equal access to educational benefits and opportunities; (2) the school district had ‘actual knowledge’ of that harassment; and (3) the school district acted with ‘deliberate indifference’ in the face of such knowledge. (Donovan v. Poway Unified Sch. Dist. (2008) 167 Cal. App. 4th 567, 579.) 

Here, Plaintiff has alleged severe or offensive sexual harassment by a fellow student. And while there are no allegations that Defendant had knowledge of the alleged previous sexual incident, Plaintiff does allege that M.U. “had a history of bullying his classmates.” (Compl. ¶ 9.) Despite that knowledge, Defendant permitted the boys to enter the bathroom unsupervised. Considering these allegations, Plaintiff has stated a claim, for pleading purpose, for potential discrimination under section 220. 

Accordingly, Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.  

Defendant is ordered to give notice, unless waived.

IT IS SO ORDERED.

Dated:   December 2, 2024 ___________________________________