Judge: Richard Y. Lee, Case: 30-2022-01296345, Date: 2023-07-20 Tentative Ruling
Demurrer
Defendant Tustin Unified School District (“TUSD”) demurs to the fourth cause of action for negligence in the Complaint. This is the sole cause of action pending against TUSD.
Plaintiff alleges that TUSD is liable for negligence pursuant to Government Code §§815.2 and 820(a) for failure to supervise Plaintiff and ensure her well-being during school hours while she was on school property. (Compl. ¶48.) Plaintiff alleges that, as a result, she was sexually abused and harassed by defendant J.M., who was one of her teachers at Tustin High School. (Compl. ¶¶11, 27.)
TUSD contends that Plaintiff fails to allege facts sufficient to constitute a cause of action against TUSD because Plaintiff fails to allege any facts demonstrating that TUSD had prior notice of J.M.’s previous misconduct. (Dem. at 5:7-9.) Rather, according to TUSD, the Complaint lacks particularity and is instead based on boilerplate conclusions. (Dem. at 5:2-9.).)
Regarding notice, Plaintiff alleges that:
“Plaintiff is informed and believe[s] that school staff, teachers, and/or administrators were notified of or otherwise aware, before and during the time when C.U. was subjected to such misconduct, of similar misconduct of a violent, sexual, harassing, and/or intimidating nature, which had occurred and/or was occurring on campus, including during school hours. Yet TUSD failed to adequately and properly investigate and/or discipline the responsible parties or otherwise intervene to protect students from further harm. . .
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“. . . Defendants were in a position to know, and on information and belief did know, of J.M.’s inappropriate and injurious behavior, including his tendency to sexually touch and molest children. . .
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“. . . Upon information and belief, the negligent parties knew or in the exercise of reasonable diligence should have known that such misconduct was taking place on campus during school hours, because the acts occurred repeatedly and because, on information and belief, J.M. had engaged in other similar acts toward other students at school.”
(Compl. ¶¶10, 17, 53.)
As TUSD correctly points out, courts have held that a negligence cause of action brought against a public entity or public employee under the Government Claims Act must be pleaded with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)
However, the California Supreme Court, while acknowledging the heightened pleading standard applicable in this context, further elaborated:
[T]he District cites Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795, 221 Cal.Rptr. 840, 710 P.2d 907, in which we explained that because public entity liability is statutory in nature, facts material to the existence of such liability must be pleaded with particularity. We went on to hold, however, that the plaintiff had adequately pled a bus driver's negligence by alleging the driver, aware of a violent argument on his bus, “did absolutely nothing to maintain order or protect passengers from injury....” (Id. at pp. 795–796, 221 Cal.Rptr. 840, 710 P.2d 907.) Plaintiff similarly alleges the District's employees knew or should have known of the guidance counselor's dangerous propensities and ongoing misconduct, but did nothing to prevent or stop her harassment and abuse of plaintiff. Lopez does not stand for the proposition that a plaintiff must specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability under section 815.2, and we doubt such an impracticable rule would be consistent with the legislative intent in enacting that statute.
(C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 872 (“C.A.”).)
While the C.A. court acknowledged that the identities of the government employees upon whose acts the negligence claim is based need not be pled, the allegations in the Complaint at issue there were more particularized than the allegations pled in this case. The C.A. court described the allegations in that case as follows:
“On information and belief, plaintiff alleges “[d]efendants knew that Hubbell had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct.” Defendants “knew or should have known and/or were put on notice” of Hubbell's past sexual abuse of minors and her “propensity and disposition” to engage in such abuse; consequently, they “knew or should have known that Hubbell would commit wrongful sexual acts with minors, including Plaintiff.” Plaintiff bases this belief on “personnel and/or school records of Defendants [that] reflect numerous incidents of inappropriate sexual contact and conduct with minors by teachers, staff, coaches, counselors, advisors, mentors and others, including incidents involving Hubbell, both on and off the premises of such Defendants.””
(C.A at 866–67.)
In contrast to the pleading in C.A., in this case Plaintiff pleads numerous allegations on information and belief, but fails to plead any factual basis for the “information and belief.” Allegations made on “information and belief” are improper where a Complaint fails to allege “such information that lead[s] [the plaintiff] to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5).
While C.A. appears to indicate that some allowances can be made in pleading where discovery is required, it does not stand to reason that wholly conclusory allegations, such as those pleaded here, are sufficient to meet the heightened pleading standard. Indeed, in reviewing California case law in this area, this court was unable to find any case that involved notice-related allegations as conclusory as those pleaded here.
Accordingly, the demurrer is SUSTAINED pursuant to CCP §430.10(e) with 20 days leave to amend.
Motion to Strike
TUSD’s Motion to Strike is DENIED as MOOT in light of the courts’ ruling on the Demurrer.
The Case Management Conference is continued to August 31, 2023 at 1:30 p.m.
Moving party to give notice.