Judge: Ronald F. Frank, Case: 23TRCV02781, Date: 2024-01-16 Tentative Ruling
Case Number: 23TRCV02781 Hearing Date: January 16, 2024 Dept: 8
¿¿
HEARING DATE: January 16, 2024¿¿
¿¿
CASE NUMBER: 23TRCV02781
¿¿
CASE NAME: Joseph
Escobar v. Centinela Valley Union High School District, et al.
¿¿
MOVING PARTY: Defendant, Centinela Valley Union High School
RESPONDING PARTY: Plaintiff, Joseph Escobar
¿¿
TRIAL DATE: Not
Set.
MOTION:¿ (1) Demurrer
(2)
Motion to Strike
Tentative Rulings: (1) Demurrer is SUSTAINED
(2)
Motion to Strike is MOOTED
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿¿
On August 23,
2023, Plaintiff, Joseph Escobar (“Plaintiff”) filed a Complaint against
Defendants, Centinela Valley Union High School District, Brandon Banales, and
DOES 1 through 100. The Complaint alleges causes of action (1) Statutory
Liability – Negligence/Negligent Supervision; (2) Statutory Liability –
Negligent Hiring/Retention/Supervision/Training; (3) Statutory Liability –
Breach of Mandatory Duties; (4) Statutory Liability – Dangerous Condition of
Public Property; (5) assault; (6) Battery; (7) Intentional Infliction of
Emotional Distress; (8) Negligence; (9) Negligent
Hiring/Retention/Supervision/Training; and (10) Negligence – Premises
Liability.
Defendant,
Centinela Vally Union High School District (“District”) now files a demurrer
and motion to strike portions of Plaintiff’s Complaint.
B. Procedural¿¿
¿
On November 13, 2023, District filed their
demurrer and motion to strike. On December 28, 2023, Plaintiff filed an
opposition. On January 8, 2024, District filed a reply brief.
II. GROUNDS FOR MOTIONS
Defendant
District demurs to the Complaint on the grounds that it argues the First,
Second, Third, and Fourth causes of action fail to state facts sufficient to
constitute a cause of action against District, and are uncertain, vague, ambiguous,
and unintelligible.
Further,
District seeks to strike allegations of alter ego and prayer for prejudgment
interest.
III. ANALYSIS
A.
Demurrer
Legal Standard
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) “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.” (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain if it is ambiguous or
unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
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.”
(Gov. Code § 815(a).) “[T]his section ‘abolished all common law or
judicially declared forms of liability for public entities, except for such
liability as may be required by the federal or state Constitution. Thus, in the
absence of some constitutional requirement, public entities may be liable only
if a statute declares them to be liable’ [Citation.]” (Becerra v.
County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Consequently,
“public entities may be liable only if a statute declares them to be
liable.” (Tuthill v. City of San Buenaventura (2014) 223
Cal.App.4th 1081, 1088 (emphasis in the original).) It has been
established that there is no liability for California governmental entities in
the absence of an express statute or constitutional provision creating or
accepting liability. (Tolan v. State of California (1979) 100
Cal.App.3rd 980, 986.) It has been recognized that it is impermissible to
sue a public entity for common law negligence. (Torres v. Department of
Corrections and Rehabilitation (2013) 217 Cal.App.4th 844,
850.)
Moreover, “to state a cause of action [for government tort
liability] every fact essential to the existence of statutory liability must be
pleaded with particularity, including the existence of a statutory duty.”
(Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792,
802.)
Pleading Requirements – Particularity
and Plaintiff’s First and Second Negligence Causes of Action
First,
Defendant District argues that Plaintiff has failed to plead with
particularity, facts essential to sustain a cause of action based on
negligence. Ordinarily, to state a cause of action for general negligence,
Plaintiff must allege: (1) existence of a duty; (2) breach of that duty; (3)
injury to Plaintiff caused by the breach; and (4) actual damages. (Romero v.
Los Angeles Rams (2023) 91 Cal.App.5th 562, 567.) “However, because under
the Tort Claims Act all governmental tort liability is based on statue…to state
a cause of action against a public entity, every fact material to the existence
of its statutory liability must be pleaded with particularity.” (Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)
Here,
Defendant District argues that Plaintiff’s causes of action based in negligence
do not plead facts with particularity. For example, District argues that
Plaintiff’s Complaint alleges: “Doe #1 knew or had reason to know, or was
otherwise reasonably on notice of Defendant Doe #2’s misconduct…” (Complaint, ¶
25.) Additionally, District cites to paragraph 26 where Plaintiff alleges: on
information and belief, that Doe #1 “received prior complaints and warnings”
regarding Doe #2, and the last sentence of this paragraph states “despite these
complaints made before and during the abuse of plaintiff…” (Complaint, ¶ 26.)
Lastly, District argues that paragraph 27 also adds the phrase: “or should have
suspected.” (Complaint ¶ 27.) However, District asserts that Plaintiff does not
include any supporting facts or allegations from which a reasonable person
would have inferred the existence of such behavior, or considered it highly
probable.
This court notes that school districts and
their employees have general duties to supervise the conduct of children on
school grounds during school sessions, school activities, recesses, and lunch
periods. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th
218.) Here, Plaintiff also alleges, as part of the Government Code requirement
of stating liability under statute, that District violated California Education
Code, sections 44807 and 44808. However, the issue this Court finds with the causes
of action based on negligence is whether it is pleaded with the requisite
particularity. The Court notes that neither party provided the Court with am
abundance of legal authority in their briefs, however, the main cases cited to
by Plaintiff were decided on the basis of a Motion for Summary Judgment. Instead,
this Court references the parties to two cases that were decided in the context
of a demurrer.
In Forgnone v. Salvadore Union
Elementary School Dist. (1940) 41 Cal.App.2d 423 (“Forgnone”), the
Third District decided an action that was brought after a student suffered
injuries sustained by a fellow student when the fellow student twisted her arm
during lunch recess. The plaintiff in Forgnone, filed a complaint that
sought to recover damages for negligence of the district for failing to provide
supervision of its pupils during an intermission of school while they were
eating their lunches in a school room, during which time a fellow student twisted
and broke plaintiff’s arm. The complaint further alleged that no teacher or
supervisor was present in the school room when the accident occurred –
something that was required by law. The complaint also alleged the adoption of
a uniform rule by the state board of education with respect to the supervision
of pupils, which provides in part that: “where special playground supervision
is not provided, teachers shall supervise the conduct…of the pupils of their
classes in the school, or on the school grounds during intermission and before
and after school. The Court determined that this was sufficient to allege a
cause of action for negligence because had the supervisor been present in the
school room where the students were eating their luncheons, it would be
expected that she would prevent the students from engaging in rough and
dangerous scuffling.
However, the Court in Forgnone also
distinguished the case of Weldy v. Oakland High School Dist. (1937) 19
Cal.App.2d 429 where the Court sustained a demurrer to the complaint for
failure to state facts sufficient to constitute a cause of action for
negligence against a football supervisor. In Weldy, an accident occurred
during the course of a game when a student threw a bottle and struck the
plaintiff. The Forgnone court noted that there, it is apparent that even
though the supervisor was present he could not have been expected to be all
over the field at once or to anticipate that some lawless student would
recklessly throw a bottle into the crowd of spectators. Here, the same can be
said about Plaintiff’s complaint. The Complaint only alleges that the stabbing
of Plaintiff occurred at the school/district premises and in an area within the
supervisory responsibility/management/control of the school/district. The Court
does not find this to be sufficient, because, for example, the Plaintiff does
not explain what time of day this was, whether classes were in session or
whether this was during a lunch or intermission session, whether the students
exited their classrooms during class session, etc.. These facts are exceedingly
important as they will instruct as to the level of supervision and security
required during those times. Like the supervisor in Weldy, the law does
not expect every inch of school grounds to be covered by supervisors at all
times, nor does Plaintiff provide any case law to suggest such. As such, the
demurrer as to the negligence causes of action is SUSTAINED with twenty (20)
days leave to amend.
Statutory Liability – Breach of Mandatory
Duties
“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.) When public entity liability is predicated on the
alleged failure to comply with a mandatory statutory duty, “[t]he gateway to
recovery is Government Code section 815.6, which provides: ‘Where a public entity is under a mandatory
duty imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that
kind proximately caused by its failure to discharge that duty....’ Before the
state will be required to confront a rebuttable presumption of negligence
[citations], plaintiff must demonstrate that: (1) the statute which was
violated imposes a mandatory duty, (2) the statute was intended to protect
against the type of harm suffered, and (3) breach of the statute's mandatory
duty was a proximate cause of the injury suffered.” (Braman v. State of
California (1994) 28 Cal.App.4th 344, 348–349.)
This court notes that school
districts and their employees have general duties to supervise the conduct of
children on school grounds during school sessions, school activities, recesses,
and lunch periods. (Iverson v. Muroc Unified School Dist. (1995)
Cal.App.4th 218.)
Here, for the same reasons above,
specifically, the lack of particularity, the Court sustains demurrer as to this
cause of action.
Statutory Liability – Dangerous Condition
of Public Property
Liability for “dangerous condition of public property” is
described in Government Code section 835:
Except as provided
by statute, a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the property was in
a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred,
and that either:
A negligent or
wrongful act or omission of an employee of the public entity within the scope
of his employment created the dangerous condition; or
The public entity
had actual or constructive notice of the dangerous condition under Section
835.2 a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.
(Gov. Code,
§ 835.) A “dangerous condition” is defined as “a
condition of property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is reasonably
foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “Whether
property is in a dangerous condition often presents a question of fact,” but
may be a matter of law if a court “determines that no reasonable person would
conclude the condition created a substantial risk of injury when such property
is used with due care in a manner which is reasonably foreseeable that it would
be used.” (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1382.) “Liability for
injury caused by a dangerous condition of property has been imposed when an
unreasonable risk of harm is created by a Combination of defect in the property
and acts of third parties. [Citations.] However, courts have consistently
refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.” (Hayes
v. State of California (1974) 11 Cal.3d 469, 472.) Our Supreme Court noted
that the basis for liability must include “some physical feature of the
property.” (Ibid.)
Here,
Plaintiff’s complaint is based on the alleged failure or Defendant District to
provide proper and adequate security and supervision of the premises and their
students. (Complaint, ¶ 55.) This Court
notes that a lack of human supervision and protection is not a deficiency in
the physical characteristic of public property capable of being a “dangerous
condition,” as required to support a public entity’s liability as a property
owner for injuries sustained on the property. (Cerna v. City of Oakland (2008)
161 Cal.App.4th 1340.) Because Plaintiff’s entire cause of action is based on
alleged lack of supervision and security, the cause of action fails to state
sufficient facts to state a cause of action for Dangerous Condition on Public
Property. As such, the demurrer is SUSTAINED.
B. Motion to Strike
Legal Standard
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may,
upon a motion, or at any time in its discretion, and upon terms it deems
proper, strike any irrelevant, false, or improper matter inserted in any
pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954)
42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim
is surplusage; probative facts are surplusage and may be stricken out or
disregarded”].) The court may also strike all or any part of any pleading not
drawn or filed in conformity with California law, a court rule, or an order of
the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant
allegation is one that is not essential to the statement of a claim or defense;
is neither pertinent to nor supported by an otherwise sufficient claim or
defense; or a demand for judgment requesting relief not supported by the allegations
of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)¿¿
Discussion
Here, the
Court SUSTAINED demurrer as to each cause of action. As such, the Motion to
Strike is Mooted as it is based on the causes of action that have been
sustained in the demurrer above. As such, the Motion to Strike is MOOTED.
¿¿¿