Judge: Serena R. Murillo, Case: 22STCV27541, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV27541    Hearing Date: February 8, 2023    Dept: 29

TENTATIVE

Defendants Los Angeles Unified School District, Alvin Walker and Daryl Davis demurrer, joined by Defendants Inclusive Education and Community Partnership, Inc. and Wendy De La O is OVERRULED in part and SUSTAINED in part. The demurrer is overruled as to the negligence cause of action but sustained with 30 days leave to amend as to the negligent hiring, supervision and retention and intentional infliction of emotional distress causes of action. The demurrer is sustained without leave to amend as to the negligent infliction of emotional distress cause of action. Defendants LAUSD, Walker and Davis’ motion to strike is GRANTED with 30 days leave to amend.

Meet and Confer 
 
The demurrer and motion to strike are accompanied by the declaration of Diana Cho which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41, 435.5.)  
 
Legal Standard 
Demurrer
 
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

Motion to Strike 

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. (CCP § 435(b)(1).) (CRC 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §436(a)-(b).) (See also 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. [Citations]”).)  

Discussion

A. Demurrer
Defendants LAUSD, Walker and Davis, joined by Defendants IECP and Wendy De La O, demur to the entire complaint, arguing first, that Plaintiffs failed to identify a proper statutory basis for liability.
Government Code § 815 provides, in pertinent part, that, 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.” (Government Code § 815(a).) (See Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 341 (“A public entity…is subject to direct liability only as provided by statute or required by the state or federal Constitution. [Citations]”).) (See also San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427-428.) In order to properly assert a claim in tort against a California governmental entity, a plaintiff must demonstrate that a statute provides a basis for liability.  (Williams v. Horvath (1976) 16 Cal.3d 834, 832-838 [“Government Code section 815 restores sovereign immunity in California except as provided in the Tort Claims Act or other statute.  Thus the intent of the [A]ct is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability rigidly delineated circumstances: immunity is waived only if the various requirements of the [A]ct are satisfied”].)

Negligence 
 
The complaint cites to Government Code section 815.2 as a statutory basis for Defendant’s liability. “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code § 815.2(a).) 
 
As such, the complaint adequately alleges a cause of action against Defendant for negligent supervision pursuant to Government Code section 815.2. As stated by the Court in Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741: 
 
While school districts and their employees have never been considered insurers of the physical safety or students, California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances. [Citation] Either a total lack of supervision [Citation] or ineffective supervision [Citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence. 
 
(Dailey, supra 2 Cal.3d at 747–749.) “California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 927.)
 
No statutory basis is required for a vicarious claim, such as this one. Rather, a statutory basis is required only for a direct claim. When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury. (§ 815.2, subd. (a).) Here, the Complaint alleges that Lara Ruby evidenced a total lack of supervision when she was responsible for attending to Plaintiff at all times throughout the school day. While under her and IECP’s care, Plaintiff wandered off campus and was not stopped until he was five miles away. (Complaint, 4:24-25.) Nothing further is needed to state a cause of action here.  
 
The demurrer is OVERRULED as to the negligence claim pursuant to Government Code section 815.2.  

Negligent Hiring, Supervision, or Retention  

A cause of action for negligent hiring, supervision, or retention of an employee requires the following elements: (1) the employer hired employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence in hiring/supervising/ retaining the employee was a substantial factor in causing plaintiff’s harm.  (CACI No. 426; see also Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.)  To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm occurs.  (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.)  Negligent hiring, retention, or supervision is a form of direct negligence.  (Ibid.) 

Plaintiff’s second cause of action is for negligent hiring, training, and supervision of employees.  In support of the second cause of action, Plaintiff cites Government Code section 815.2.  A school district is “vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee . . .” who is unfit for his or her job.  (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)  Thus, there is a proper statutory basis identified in the complaint.

Defendants also argue that Plaintiff has failed to state sufficient facts to constitute a cause of action for negligent hiring, and retention. The Court agrees. Plaintiff’s Complaint fails to state sufficient facts to constitute a cause of action for negligent hiring and retention. Namely, Plaintiff has failed to allege sufficient facts supporting the third element of the cause of action—Defendant knew or should have known that the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk of harm to others.  (Z.V., supra, 238 Cal.App.4th at p. 902 [holding to establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm occurs”].)  Plaintiff fails to allege any facts demonstrating that Defendant knew or should have known that Ruby was unfit or incompetent.  As relevant here, the complaint alleges that “IECP knew or should have known of Plaintiff’s potential triggers and/or warning signs for possible eloping.” (Complaint, 8:8-17.) While this allegation shows Defendants knew of the particular risk of harm, there are no facts to show why Defendants knew of Ruby’s alleged unfitness or incompetence.

Based on the foregoing, Defendants’ demurrer to Plaintiff’s cause of action for negligent hiring, supervision or retention is SUSTAINED with leave to amend. 

Negligent Infliction of Emotional Distress 

Defendants argue the third cause of action for NIED fails because it is not an independent tort and is otherwise subsumed in the second cause of action for negligence.  The Court agrees. 

California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) 

Here, Plaintiff has already alleged a cause of action for negligence based on the same facts as Plaintiff’s claim for NIED.  To this extent, the negligence and NIED causes of action are duplicative and the demurrer to the NIED cause of action may be sustained on such grounds.  (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (stating that 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”; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)  

Accordingly, the demurrer to the third cause of action is SUSTAINED without leave to amend.  

Intentional Infliction of Emotional Distress
“The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal quotations omitted.) For conduct to be outrageous it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Severe emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Nat. Life Ins. Co. (1970) 10 Cal.App.3d 376.) 
“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.)
The complaint alleges that Defendants, from their position of authority as caretakers of Plaintiff, engaged in outrageous and offensive conduct that they know or should have known would result in severe emotional distress in Plaintiff when they left a helpless autistic thirteen- year-old child alone and unattended on school grounds. Defendants engaged in such extreme and outrageous conduct with the intention of causing, or with reckless disregard of the probability of causing, emotional distress in Plaintiff. Plaintiff has suffered loss of peace of mind while at school, and suffered shock, mental and emotional pain, distress and discomfort, all to his detriment and damage. (Complaint, 13:12-17.) The complaint generally alleges that Plaintiff suffered severe emotional distress. (Complaint, 9:14.)
The Court agrees with Defendants that the allegations do not rise to extreme and outrageous conduct. “[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) At most, Plaintiff’s conduct as alleged can be said to be tortious. Moreover, Plaintiff’s allegation that Defendants knew or should have known their conduct would result in emotional distress is not the same as reckless disregard of the probability that it will result in emotional distress. Further, the allegation that “Defendants engaged in such extreme and outrageous conduct with the intention of causing, or with reckless disregard of the probability of causing, emotional distress in Plaintiff” is conclusory. Additionally, Plaintiff has not pled any facts that she suffered severe emotional distress, and merely alleges she suffered severe emotional distress, without any factual basis. The Court finds that Plaintiff failed to set forth sufficient facts that he suffered severe emotional distress of such a quality that no reasonable person in a civilized society should be expected to endure. Tracking the language of the IIED law is insufficient. Plaintiff fails to allege any specific facts to show that he in fact did suffer severe emotional distress.

As a result, Defendants’ demurrer as to the cause of action for IIED is SUSTAINED with leave to amend.

Lastly, the Court notes that Defendants argue that the complaint is defective and uncertain because Plaintiffs have failed to attach certain documents and thus, it cannot be established whether the claims in the Tort Claim are the same as those within the complaint. Defendants have provided no authority for this proposition, and thus, the Court will not consider it. Moreover, a special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)  Here, the complaint is well-pled and not uncertain.

B. Motion to Strike

Prejudgment Interest 
 
Defendants LAUSD, Walker and Davis move to strike the request for pre-judgment interest. Civil Code § 3287(a) states: "A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt."  
Here, Plaintiff’s damages are uncertain. Plaintiff alleges that because of Defendants’ alleged negligence, Plaintiff has suffered physical, mental, and emotional damages. 
Accordingly, Defendants’ motion to strike Plaintiff’s prejudgment interest request is GRANTED.  

Punitive Damages

Defendants also move to strike the allegations regarding punitive damages, arguing Plaintiff failed to allege any acts of oppression, fraud, or malice on the part of Walker or Davis. 
To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.) 
“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) 
To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)
As discussed above, the complaint alleges that Defendants, from their position of authority as caretakers of Plaintiff, engaged in outrageous and offensive conduct that they know or should have known would result in severe emotional distress in Plaintiff when they left a helpless autistic thirteen- year-old child alone and unattended on school grounds. Defendants engaged in such extreme and outrageous conduct with the intention of causing, or with reckless disregard of the probability of causing, emotional distress in Plaintiff. (Complaint, 13:12-16.)
There are no facts pled which would show any conduct intended by Defendants to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. At most, the complaint alleges negligence in failing to properly supervise the minor. However, it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court, supra, 111 Cal. App. 3d 87.)
The motion to strike punitive damages is GRANTED with leave to amend.
Attorney Fees
Defendants lastly move to strike Plaintiff’s prayer for attorney fees, arguing the causes of action alleged do not allow for attorney fees and Plaintiff has not provided any legal authority to support its prayer for attorney fees. 

Code of Civil Procedure section 1021 states that, “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.”  (Code Civ. Proc. § 1021.) Attorney’s fees are allowable as items of costs only when authorized by contract, statute, or law.  (Code Civ. Proc. § 1033.5, subd. (a)(10).) 

Plaintiff does not allege any agreement of the parties or cite any statutory basis that would provide for attorney’s fees. As Plaintiff has not opposed the motion to strike, Plaintiff does not direct the Court’s attention towards any source based upon which Plaintiff may seek attorney’s fees. Thus, the motion to strike the prayer for attorney’s fees is GRANTED with leave to amend.

Conclusion

Accordingly, Defendants Los Angeles Unified School District, Alvin Walker and Daryl Davis demurrer, joined by Defendants Inclusive Education and Community Partnership, Inc. and Wendy De La O is OVERRULED in part and SUSTAINED in part. The demurrer is overruled as to the negligence cause of action, but sustained with 30 days leave to amend as to the negligent hiring, supervision and retention and intentional infliction of emotional distress causes of action. The demurrer is sustained without leave to amend as to the negligent infliction of emotional distress cause of action. Defendants LAUSD, Walker and Davis’ motion to strike is GRANTED with 30 days leave to amend.