Judge: Robert S. Draper, Case: 21STCV01719, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV01719    Hearing Date: August 2, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 


RENEE LEMOS, et al., 





Case No.: 


Hearing Date: 

August 2, 2022 




Defendant Los Angeles Unified School District’s Demurrer to the Second Amended Complaint is OVERRULED.


This is an action for injuries to a minor allegedly caused by toxic levels of lead in school water fountains. The operative Second Amended Complaint alleges as follows.

Plaintiff Christopher Lopez Jr. (“Lopez”) is a minor that attends school at Defendant Knollwood Preparatory Academy (“Knollwood”). (SAC ¶ 21.) Knollwood is owned, operated, supervised, and controlled by Defendant Los Angeles Unified School District (“LAUSD”). (SAC ¶ 3.) In December 2019, LAUSD’s Office of Environmental Health and Safety sent notices stating that multiple samples of drinking water tested at Knollwood showed lead concentration of 15 parts per billion (“ppb”). (SAC ¶ 21.) The Environmental Protection Agency recommends that if lead concentrations in drinking water exceeds 15 ppb, corrective action must be taken. (Ibid.) Lopez frequently drank from one of the water fountains that was identified as having problematic lead concentrations. (SAC ¶ 24.)

On December 13, 2019, Lopez complained to his parents that his stomach was bothering him. (SAC ¶ 26.) On December 15, 2019, after the pain increased and Lopez began vomiting, paramedics transported Lopez to Defendant Olive View-UCLA Medical Center (“Olive View”). (SAC ¶ 27.) While at Olive View, Lopez began to foam from his mouth, turned blue, and lost his pulse. (SAC ¶ 32.) Olive View’s employees did not immediately render aid. (Ibid.)

Lopez was transported to LAC-USC Medical Center, where he remained in Pediatric ICU for 2.5 months. (SAC ¶ 34.) There, doctors discovered that Lopez had suffered from a ruptured appendicitis, which caused him to go into septic shock and cardiac arrest. (Ibid.) The Complaint alleges that Lopez’s severe injuries were a result of consuming contaminated water at Knollwood. (SAC ¶ 35.)


On January 15, 2021, Lopez filed the Complaint asserting six causes of action:

1.    Negligence;

2.    Premises Liability;

3.    Negligent Supervision;

4.    Negligent Infliction of Emotional Distress;

5.    Public Nuisance; and

6.    Professional Negligence.

On July 8, 2021, Defendant County of Los Angeles filed a Demurrer.

On July 20, 2021, Defendant State of California filed a Demurrer.

On July 21, 2021, Lopez dismissed Defendants State of California and County of Los Angeles.

On July 26, 2021, Lopez filed the First Amended Complaint asserting the same six causes of action.

On August 25, 2021, Olive View filed a Demurrer to the First Amended Complaint.

On September 27, 2021, LAUSD filed a Demurrer to the First Amended Complaint.

On October 26, 2021, Department 29 of this Court sustained LAUSD’s Demurrer, finding that the FAC failed to allege compliance with Government Code section 915(a).

On November 30, 2021, Lopez filed the operative Second Amended Complaint.

On January 3, 2022, LAUSD filed the instant Demurrer to the Second Amended Complaint.

On January 14, 2022, Lopez filed an Opposition.

On March 1, 2022, Lopez filed an Amended Opposition.

On March 7, 2022, LAUSD filed a Reply.

On March 15, 2022, the action was reassigned to Department 37 of this Court.

On April 13, 2022, the action was reassigned to the instant Department 78.

On June 3, 2022, this Court scheduled instant hearing for July 28, 2022.

On July 28, 2022, this Court continued the instant hearing until August 2, 2022.


                         I.     EVIDENTIARY OBJECTIONS

A.   Lopez Objections to the Declaration of Toni Tossello

Objection numbers 1, 2, 3, and 4 are SUSTAINED.

B.   LAUSD Objections to the Declarations of Grisell Gonzalez and Alex Valenzuela

LAUSD’s Objections to the Court’s consideration of the Declarations of Grisell Gonzalez and Alex Valenzuela are SUSTAINED, as both declarations include evidence that is not judicially noticeable, and that is not found on the face of the Second Amended Complaint.

However, the Court notes that many of the allegations contained in said declarations are alleged on the face of the Second Amended Complaint, and those allegations are properly considered.

                       II.          REQUEST FOR JUDICIAL NOTICE

In ruling upon demurrers, courts may consider matters that are proper for judicial notice.  (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)  

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[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,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)  

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)  However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.) 

A.   LAUSD’s Requests for Judicial Notice

1.    LAUSD is a public entity school district. See Chase v. Shasta Lake Union School District, 259 Cal.App.2nd 612, 615: “The school district is a public entity”.

2.    Plaintiff’s complaint filed January 15, 2021.

3.    Plaintiff’s Second Amended Complaint filed November 30, 2021.

4.    The records of the Los Angeles Unified School District, which do not contain a Claim for Money or damages form or any documents to suggest that a claim of Plaintiff Christopher Lopez Jr. was presented to the LAUSD at any time.

5.    The records of the Los Angeles Unified School District do not contain an Application for Leave to Present a Late Claim on behalf of Plaintiff Christopher Lopez Jr. presented to the LAUSD on or before December 15, 2020, or anytime thereafter.

LAUSD’s requests for judicial notice are GRANTED as to their existence, but not as to the accuracy of the matters contained.

                     III.          DEMURRER

LAUSD demurs to all causes of action in the Second Amended Complaint.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)  

“In determining whether the complaint is sufficient as against the demurrer … 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.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) 

Here, LAUSD argues that Lopez failed to comply with the Government Claims Presentation requirements contained in Government Code §§ 905-945.4, et seq.

A.   Government Claims Act

LAUSD demurs to the entire complaint on the grounds that Lopez’s complaint has failed to allege sufficient compliance with the claims presentation requirements of Government Code § 900, et seq, and therefore fails to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) 

Failure to allege facts in the complaint demonstrating compliance with the pre-litigation governmental claims presentation requirements subjects the complaint to a general demurrer. (State of Calif. v. Sup.Ct. (Bodde) (2004) 32 Cal.4th 1234, 1239; see also V.C. v. Los Angeles Unified School Dist.¿(2006) 139 Cal.App.4th 499, 509, affirming trial court decision to sustain demurrer without leave to amend on the ground that V.C.'s failure to timely comply with the requirements of the Tort Claims Act barred her action.)

Under the Government Tort Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit. (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an opportunity to evaluate the claim and make a determination as to whether it will pay on the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.)

Here, there is no dispute as to whether the Second Amended Complaint alleges compliance with the Government Claims Act. The SAC alleges that “a standard claim form for LAUSD entitled ‘LOS ANGELES UNIFIED SCHOOL DISTRICT CLAIM FOR DAMAGES TO PERSON OR PROPERTY’ was executed on behalf of [Lopez]” and properly mailed in accordance with the directions on the form. (SAC ¶ 13.) Accordingly, the SAC alleges that Lopez “complied with Government Code Section 915(a) by mailing the claim to the governing body and its principle office.” (SAC ¶ 14.)

However, LAUSD argues that, pursuant to California Government Code § 915(e), Lopez must show that LAUSD was in actual receipt of the claim. Section 915(e) states:

A claim, amendment, or application shall be deemed to have been presented in compliance with this section even though it is not delivered or mailed as provided in this section if, within the time prescribed for presentation thereof. . . it is actually received by the clerk, secretary, auditor, or board of the local public entity.

LAUSD argues that, as its judicially noticed records indicate no claim was received, Lopez’s claim fails as a matter of law.

In Opposition, Lopez argues that section 915(e) applies only when the claim “is not delivered or mailed as provided in this section.” As the Second Amended Complaint alleges that Lopez mailed the claim in accordance with LAUSD’s written demands, Lopez argues, Lopez need not show actual receipt.

However, the Court need not determine whether actual receipt is necessary to present a claim today. The Second Amended Complaint alleges not only full compliance with the Government Claims Act, but also alleges that “if LAUSD does not have record of receiving the claim form, it is presumed it was due to their staff’s or mail handler’s own negligence or malfeasance.” (SAC ¶ 17.)

In ruling on a demurrer, the Court must accept each allegation contained in the pleading as true. Here, the Second Amended Complaint alleges full compliance with the Government Claims Act and alleges that any failure to show receipt is the result of LAUSD’s negligence or fraud. Because the need for specificity in pleading is relaxed “where it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,” (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825 (disapproved of on separate grounds in Silberg v. Anderson (1990) 50 Cal.3d 205)), the Court accepts this allegation as true as well, as LAUSD is in full control of its records showing receipt of government act claims.

Finally, the Court notes that none of the cases LAUSD cites to support the contention that a demurrer is properly sustained when receipt of a Government Claims Act claim is in controversy.  

LAUSD cites to Del Real v. City of Riverside, et al. (2002) 95 Cal.App.4th 761 and DiCampli-Mintz v. County of Santa Clara, et al. (2012) 55 Cal.4th 983; however, both these decisions were based on motions for summary judgment and are therefore inapplicable to the evidentiary standards at the pleading stage.

LAUSD cites to Lineaweaver v. Southern California Rapid Transit District (1983) 139 Cal.App.3d 738. However, in Lineaweaver, the plaintiff admitted to not timely filing a claim, but argued that the Government Claims Act is not “properly to be understood as a statute of limitation” and therefore did not preclude his action. (Lineaweaver at p. 741.) As Lopez contends that he did, indeed, timely file a claim here, Lineaweaver is inapposite.

Finally, in Carr v. State of California, et al. (1976) 58 Cal.App.3d 139, to which LAUSD cites, plaintiffs “admit[ed] that they failed to file a timely claim within the statutory period required by section 911.2,” but argued that their failure to comply was excused as they were mentally incapacitated minors at the time. (Carr at p. 142.)

Simply put, the question here is not whether Lopez was excused from filing a claim in accordance with the Government Claims Act; the question is whether the allegations contained in the Second Amended Complaint fail to state, as a matter of law, that Lopez complied with the Government Claims Act. As the Second Amended Complaint contains specific factual allegations claiming that Lopez did comply and alleging that any failure to demonstrate receipt of the claim is due to Defendant’s negligence or malfeasance, the allegations are sufficient at the pleading stage.

Accordingly, LAUSD’s Demurrer to the Second Amended Complaint is OVERRULED.




DATED:  August 2, 2022                 ______________________________ 

Hon. Robert S. Draper 

Judge of the Superior Court