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., Plaintiffs; vs. LOS ANGELES UNIFIED SCHOOL DISTRICT.,
et al., Defendants. |
Case
No.: |
21STCV01719 |
Hearing
Date: |
August
2, 2022 |
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|
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[TENTATIVE]
RULING RE: DEFENDANT LOS ANGELES UNIFIED
SCHOOL DISTRICT’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT. |
Defendant Los Angeles Unified School District’s Demurrer to
the Second Amended Complaint is OVERRULED.
FACTUAL BACKGROUND
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.)
PROCEDURAL
HISTORY
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.
DISCUSSION
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