Judge Robert S. Draper, Case 22STCV06484 2022-10-17 Tentative Ruling

Defendant Los Angeles Unified School District’s Demurrer to the First Amended Complaint is OVERRULED. Defendant has thirty days to answer.

This is an action for the sexual assault of a minor. The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiff A.H. (“Plaintiff”) attended Wadsworth Ave. Elementary School (“Wadsworth”), which is managed by Defendant Los Angeles Unified School District (“LAUSD”). (FAC ¶¶ 17-18.) While attending Wadsworth, Plaintiff was repeatedly sexually assaulted by their[1] teacher, non-party William Alexander (“Alexander”). (FAC ¶ 21.) Plaintiff was approximately ten to eleven years old at the time of the assaults. (Ibid.) Other students were similarly assaulted by Alexander. (FAC ¶ 23.) This abuse was open and obvious. (Ibid.)

Plaintiff reported to LAUSD that Alexander was abusing them. (FAC ¶ 26.) Additionally, school employees knew or should have known of the abuse as Alexander would frequently ask Plaintiff to stay alone after class and would lock the door of the classroom. (FAC ¶ 30.) Nonetheless, Alexander maintained his position within LAUSD. (FAC ¶ 35.) In addition, LAUSD failed to warn students of Alexander’s propensity, or to otherwise implement policies and procedures to protect students. (FAC ¶ 37.)

On February 22, 2022, Plaintiff filed the Complaint asserting two causes of action:

On March 24, 2022, Plaintiff filed the operative First Amended Complaint, asserting the same two causes of action but naming LAUSD as Doe 1.

On July 22, 2022, LAUSD filed the instant Demurrer to the First Amended Complaint.

LAUSD demurs to both causes of action pursuant to Code of Civil Procedure section 430.10.

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.)

LAUSD makes several arguments for why Plaintiff fails to state a cause of action. The Court will address those arguments in the order they are made in LAUSD’s Demurrer.

First, LAUSD argues that Plaintiff fails to plead their causes of action with sufficient particularity to state a claim against a public entity as required by Government Code section 815.

California Government Code section 815 provides that “[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” except as provided by statute. (Govt. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Government Code section 815.2 provides that a public entity is vicariously liable for the torts of their employees committed within the scope of employment if the employee is liable. (See Govt. Code § 815.2(a); Chambi v. Regents of Univ. of Cal. (2002) 95 Cal.App.4th 822, 827; Hoff, supra, 19 Cal.4th at 932.) Thus, to establish vicarious liability against Defendant for negligence, Plaintiff must allege Defendant’s employees are liable for negligence — i.e., Defendant’s employees had a legal duty of care which they breached, thus causing injury to Plaintiff.

Government tort claims must be pled with particularity. (See Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) They must also be grounded in statute. (Gov C § 815; E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 512, fn. 9.) That is, government tort claims must be pled so that they state every fact essential to the existence of statutory liability, they identify the statute claimed to establish the liability, and they plead facts sufficient to show that the cause of action lies outside any applicable statutory immunity. (See Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; See also Keyes v. Santa Clarita Valley Water Dist. (1982) 128 Cal.App.3d 882, 885 – 886; See, in addition, Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896 (A plaintiff asserting liability under Gov C § 815.6 must specifically allege the applicable statute or regulation.); See further Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 (Allegations that “other unspecified enactments” created mandatory duty deemed insufficient; enactment that establishes duty must be identified.).)

Here, LAUSD argues that Plaintiff fails to support either cause of action with sufficient factual allegations to satisfy the particularity requirement. LAUSD notes that the First Amended Complaint fails to allege the frequency or duration of the assault, the name of the person or people to whom Plaintiff reported the assault, or any facts supporting Plaintiff’s contention that the assault was open and obvious. Plaintiff cites C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4^th 861 as supporting this proposition.

In C.A., plaintiff, as here, alleged that defendant school district negligently prevented plaintiff’s sexual assault at the hands of plaintiff’s teacher, and negligently hired, retained, and supervised said teacher despite asserted knowledge of that teacher’s propensity.

The trial court sustained defendant school district’s demurrer to the complaint, finding that plaintiff failed to state facts showing negligence on the part of district staff with particularity.

In reversing that decision, the C.A. Court, in rejecting the district’s argument regarding plaintiff’s failure to specifically name the district employees who were negligent rendered the complaint deficient, stated:

[T]he District cites no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant’s employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer the complaint need only allege facts sufficient to state a cause of action. Each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation] (C.A., 53 Cal.4^th at p. 872.)

Plaintiff alleges the District’s administrators and employees knew or should have known of [the abuser’s] dangerous propensities, but nevertheless hired, retained, and failed to properly supervise her. These allegations, if proven, could make the District liable under a vicarious liability theory encompassed by section 815.2. (Id. at p. 875.)

Here, as in C.A., Plaintiff alleges facts demonstrating LAUSD employees knew or should have known of Alexander’s propensity to sexual violence.

The First Amended Complaint states that Plaintiff reported their abuse to school administrators; that same administrators knew or should have known of the abuse because Plaintiff spent extended periods of time alone in Alexander’s classroom with the door locked; and that Plaintiff was not the only student that Alexander was abusing. (FAC ¶¶ 25, 26, 30.) The First Amended Complaint then alleges that LAUSD failed to warn Plaintiff or other students of the risk; allowed Alexander unsupervised access to minors; failed to investigate the matter; and failed to terminate Alexander upon discovering his abuse. (FAC ¶¶ 43-46.)

That the First Amended Complaint does not state the specific names of the administrators Plaintiff approached about Alexander, or the frequency or duration of the abuse is neither fatal to Plaintiff’s causes of action, nor particularly surprising, as the allegations took place nearly 50 years ago. These are precisely the sort of facts the discovery process is intended to uncover.

Accordingly, the Court finds that the First Amended Complaint alleges facts with sufficient particularity to allege LAUSD’s employees negligently failed to protect their students from foreseeable harm.[2] LAUSD’s Demurrer is OVERRULED on this ground.

Next, LAUSD argue that the First Cause of Action for Negligence and the Second Cause of Action for Negligent Hiring, Supervision, and Retention are duplicative.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

However, the First Amended Complaint alleges facts that demonstrate LAUSD’s employee negligence separate and apart from their negligent hiring, retention, or supervision of Alexander.

For instance, the First Amended Complaint alleges that LAUSD employees failed to warn Plaintiff and other families that Alexander was a threat; failed to establish policies that would have prevented such abuse; and failed to train teachers and staff on the prevention of sexual abuse. (FAC ¶ 47.)

These are facts separate and apart from those demonstrating LAUSD’s negligent hiring, retention, and supervision of Alexander, and therefore constitute a separate cause of action.

Accordingly, LAUSD’s Demurrer to the First Amended Complaint is OVERRULED. LAUSD has thirty days to answer.

[1] As Plaintiff files this Complaint anonymously, the Court will refer to Plaintiff using the gender nonspecific pronouns they/their.

[2] LAUSD also argues that it cannot be held vicariously liable for Alexander’s assault, as the assault did not occur within the course of Alexander’s employment. While this is true, the negligence alleged is the negligent failure to prevent the assault, not Alexander’s perpetration of the assault itself.

A.H., Plaintiff, vs. DOE 1, et al., Defendants.	Case No.:	22STCV06484
	Hearing Date:	October 17, 2022

	[TENTATIVE] RULING RE: DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT’S DEMURRER TO THE FIRST AMENDED COMPLAINT.