Judge: Stephen Morgan, Case: 22AVCV00813, Date: 2023-08-08 Tentative Ruling
Case Number: 22AVCV00813 Hearing Date: August 8, 2023 Dept: A14
Background
This is a sexual
assault action. Plaintiff Jane Doe (“Plaintiff”) by and through her guardian ad
litem A.M., alleges that on or about October 4, 2021, she was sexually
assaulted and abused by Defendant John Doe 1 (“John Doe”) and/or Does 2 through
10 repeatedly in a secluded bathroom on the Highland High School Campus. Plaintiff
was a 15-year-old student in ninth grade at the time and John Doe was a fellow
male student. John Doe 1 allegedly requested that a locked, non-student use
bathroom be unlocked by Defendants Antelope Valley Union High School District
(“AVUHSD”) and Does 11 through 60. After opening the bathroom door, AVUHSD and
Does 11 through 60 purportedly left the area, leaving John Doe 1 unsupervised,
whereby Does 2 through 10 and Plaintiff reportedly were able to enter, whereby
they allegedly sexually assaulted and abused the Plaintiff, including sexual
battery.
On October
14, 2022, Plaintiff filed her Complaint alleging a total of eight causes of
action: (1) Negligence against AVUHSD; (2) Negligent Failure to Warn, Train or
Educate against AVUHSD; (3) Negligent Hiring, Supervision, and Retention of
Employees against AVUHSD; (4) Dangerous Condition of Public Property against
AVUHSD; (5) Battery against John Doe 1; (6) False Imprisonment against John Doe
1; (7) Sexual Abuse of a Minor against John Doe 1; and (8) Negligence against
John Doe 1.
On May 10, 2023, AVUHSD filed its Demurrer
to the Complaint.
On May 30, 2023, Plaintiff filed her First
Amended Complaint (“FAC”). The FAC alleges six total causes of action: (1) Negligence against AVUHSD; (2) Negligent Failure to
Warn, Train or Educate against AVUHSD; (3) Negligent Hiring, Supervision, and
Retention of Employees against AVUHSD; (4) Battery against John Doe 1; (5) False
Imprisonment against John Doe 1; and (6) Sexual Abuse of a Minor against John
Doe 1.
On July 3, 2023, AVUHSD filed this Demurrer
to the FAC.
No Opposition has been filed. “All papers opposing
a motion so noticed shall be filed with the court and a copy served on each
party at least nine court days, and all reply papers at least five court days
before the hearing.” (Cal. Code
Civ. Proc. § 1005(b).) “Section 1013 which extends the time within which a
right may be exercised or an act may be done, does not apply to a notice of
motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.)
Should an Opposition be filed, it is now untimely.
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Legal Standard
Standard for 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.)¿ In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters.¿ (SKF Farms v.
Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed.¿¿(Ibid.)¿¿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.)¿¿¿¿¿¿¿
¿¿¿¿¿¿¿
A general demurrer admits the truth of all factual,
material allegations properly pled in the challenged pleading, regardless of
possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p.
318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must
be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb
Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿
Nevertheless, this rule does not apply to allegations expressing mere
conclusions of law, or allegations contradicted by the exhibits to the
complaint or by matters of which judicial notice may be taken.¿¿(Vance v.
Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general
demurrer does not admit contentions, deductions, or conclusions of fact or law
alleged in the complaint; facts impossible in law; or allegations contrary to
facts of which a court may take judicial notice.¿¿(Blank,¿supra,
39 Cal.3d at p. 318.)¿¿¿¿
¿¿¿¿¿¿¿¿
Pursuant to¿Cal. Code Civ. Proc.¿§430.10(e),
the party against whom a complaint has been filed may object by demurrer to the
pleading on the grounds that the pleading does not state facts sufficient to
constitute a cause of action.¿ It is an abuse of discretion to sustain a
demurrer without leave to amend if there is a reasonable probability that the
defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003)
31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿
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¿¿
Meet and Confer Requirement
– Before filing a demurrer or a
motion to strike, the demurring or moving party is required to meet and confer
with the party who filed the pleading demurred to or the pleading that is
subject to the motion to strike for the purposes of determining whether an
agreement can be reached through a filing of an amended pleading that would
resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. §§ 430.41 and
435.5.) The Court notes that the Moving
Party has attempted to meet and confer without response from Plaintiff. (See Decl. of Katrina Valencia ¶¶ 4-7.)
“A determination by the court that the meet and confer process was insufficient
shall not be grounds to overrule or sustain a demurrer.” (Cal. Code Civ. Proc.
§ 430.41(a)(4).) The Court addresses this Demurrer on its merits.
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Discussion
AVUHSD gives notice as to all causes of
actions but only demurs to the Second and Third Causes of Action.
a.
Second Cause of Action (Negligent Failure to Warn, Train or Educate)
AVUHSD states where a duty of care is owed
from a third party’s actions, those actions must have been foreseeable. (Dem.
2:24-25.) That is to say that AVUHSD must have known of John Doe 1’s
“propensity or history of behavior of assaulting or sexually assaulting other
students,” or of any similar conditions leading to students being assaulted or
sexually assaulted. (Id. at 3:5-10.) It states that Plaintiff has failed
to allege that AVUHSD knew of any history of such behavior by John Doe 1 or
that it had knowledge that such sexual assaults could occur in the bathroom (Id.
at 3:8-13.) Further, AVUHSD states that allowing John Doe 1 to enter then
leaving the area unsupervised for Plaintiff to make decision to enter bathroom
was unforeseeable.
Plaintiff brings this cause of action
under Gov. Code §§ 815 and 820. CA v. Williams S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 869 (“William Hart”), lays the foundation for
the framework for which this cause of action is based:
Section 815.2, in turn, provides the
statutory basis for liability relied on here: “(a) 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. (b) Except as otherwise provided by
statute, a public entity is not liable for an injury resulting from an act
or omission of an employee of the public entity where the employee is immune
from liability.” Finally, section 820 delineates the liability of public
employees themselves: “(a) Except as otherwise provided by statute
(including Section 820.2), a public employee is liable for injury caused by his
act or omission to the same extent as a private person. (b) The liability of a
public employee established by this part (commencing with Section 814)
is subject to any defenses that would be available to the public employee
if he were a private person.” In other words, “the general rule is that an
employee of a public entity is liable for his torts to the same extent as a
private person (§ 820, subd. (a)) and the public entity is vicariously liable
for any injury which its employee causes (§ 815.2, subd. (a)) to the same
extent as a private employer (§ 815, subd. (b)).” (citing, Societa per
Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446,
463.)
AVUHSD focuses on the standard
of duty of care based on foreseeability, as discussed ante. As such the
Court will address the duty of care owed.
Although generally a defendant
owes no duty to control the¿conduct of another person or warn those endangered
by that conduct, nevertheless a duty to do so “may arise if there is a special
relationship between the defendant and the person whose conduct needs to be
controlled which imposes a duty on the defendant to control the other’s
conduct, or there is a special relationship between the defendant and a third
person that gives the third person a right to protection.” (J.H. v. Los
Angeles Unified School Dist.¿(2010) 183 Cal.App.4th 123, 141–142 (“J.H.”),
[citing M.W. v. Panama Buena Vista Union School Dist. (2003) 110
Cal.App.4th 508, 517].)
In Regents of the University
of California v. Superior Court, the California Supreme Court held that
UCLA had a duty under common law to its students to protect students from
foreseeable violence. (Regents of the University of California v. Superior
Court (2018) 4 Cal. 5th 607.) The Supreme Court specifically examined the
features of the recognized special relationships between the public school and
its pupils. (Id.) Importantly for the instant discussion, the
Supreme Court stated:
Because UCLA is a public entity, its exposure to tort
liability is nominally defined by statute. (Gov. Code, § 815, subd. (a); C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868, 138
Cal.Rptr.3d 1, 270 P.3d 699 (William S. Hart).) However, the Tort Claims
Act provides that public employees are liable for their acts and omissions “to
the same extent as a private person” (Gov. Code, § 820, subd. (a)), and public
entity employers are vicariously liable for employees’ negligent acts within
the scope of their employment to the same extent as private employers (Gov.
Code, § 815.2, subd. (a); William S. Hart, at p. 868, 138 Cal.Rptr.3d 1,
270 P.3d 699). Because it is undisputed that all university employees here were
acting within the scope of their employment, UCLA’s potential liability
therefore “turns on ordinary and general principles of tort law.” (Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 716, 110 Cal.Rptr.2d 528,
28 P.3d 249.)
(Id. at 619.)
J.H., relied upon by
William Hart, also addresses foreseeability:
Because of this
special relationship, imposing obligations beyond what each person
generally owes others under Civil Code section 1714, the duty of care owed by
school personnel includes the duty to use reasonable measures to protect
students from foreseeable injury at the hands of third parties acting
negligently or intentionally. This principle has been applied in cases of
employees' alleged negligence resulting in injury to a student by another
student.
However, J.H. further
holds:
It
is not necessary to prove that the very injury which occurred must have been
foreseeable by the school authorities in order to establish that their failure
to provide additional safeguards constituted negligence. Their negligence is
established if a reasonably prudent person would foresee that injuries of the
same general type would be likely to happen in the absence of such safeguards.”
(Taylor, supra, 17 Cal.2d at p. 600; accord, Charonnat v. S. F. Unified Sch.
Dist. (1943) 56 Cal.App.2d 840, 844 [133 P.2d 643].) It is for the trier of
fact to determine whether an unreasonable risk of harm was foreseeable under
the facts of a case. (M.W., supra, 110 Cal.App.4th at p. 516.) “Foreseeability
is determined in light of all the circumstances and does not require prior
identical events or injuries. [Citations.]”
(Id. at 519.)
With regards to duty, J.H. quotes Dailey
v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747 “declaring
that California law has long imposed on school authorities a duty to ‘supervise
at all times the conduct of the children on school grounds and to enforce those
rules and regulations necessary to their protection.’” Case precedent in J.H.
holds that a school’s duty to supervise and prevent injury despite limited
visibility was still considered acceptable because the goal of school grounds
is for them to be safe for all children. (J.H., supra, 183
Cal.App.4th at 148 [J.H. Court ruled that the sexual assault of a
special needs student in a stairway alcove out of view of school authorities
did not absolve the district from liability.]) While AVUHSD reasonably states
that they did not supervise John Doe 1 in the bathroom, they do not contest
leaving the area of a non-student bathroom unsupervised, by which Does 2
through 10 and Plaintiff were able to enter, and the alleged sexual assault was
able to occur without personnel being alerted to the altercation.
As such, AVUHSD has not presented evidence
showing lack of sufficiency to the second cause of action presented in the
pleading.
b.
Third Cause of Action (Negligent Failure Hiring, Supervision, and
Retention of Employees)
AVUHSD states that Plaintiff fails to
identify which employees and job duties they were negligent in performing, and
how this negligence resulted in John Doe’s abuse of Plaintiff. (Dem. 4:17-21;
FAC 8:18-23.) They note that Plaintiff does not purport that AVUHSD permitted
John Doe and Plaintiff to enter the bathroom unattended and that there is a
failure to provide factual backing as to how the opening of the bathroom for
John Doe amounts to a failure to supervise Plaintiff. (Dem. 4:23-28.)
Additionally, Plaintiff does not proffer any facts that AVUHSD employees had
observed anything inappropriate between Plaintiff and John Doe, nor that any
complaint had been filed regarding John Doe or issues in the bathroom. (Id.
at 5:1-5.)
Plaintiff relies on the same statutory
framework, ante, as the basis for this claim. As to AVUHSD’s argument
that Plaintiff fails to identify which employees and job duties they were
negligent in performing, one of AVUHSD’s cited case addresses this directly:
The complaint, it is true, does not identify
by name or position the District's “employees, administrators and/or agents”
who allegedly failed to “properly hire, train and supervise [defendant
employee].” But the 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. (See Golceff
v. Sugarman (1950) 36 Cal.2d 152, 154 [222 P.2d 665] [complaint against
employer need not include allegation that negligent act was committed by
employee in order for plaintiff to pursue respondent superior liability].) We
cannot say from the face of the complaint that the District had no supervisory
or administrative personnel whose responsibilities included hiring, training,
supervising, disciplining or terminating a guidance counselor.
(William Hart, supra, 53
Cal.4th 861 at 872.)
Here, as in William Hart,
AVUHSD “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.”
Rather, AVUHSD cites to CACI, the Judicial Council of California Civil Jury
Instructions, directly. CACI, alone, is insufficient.
California case law recognizes
liability of an employer to a third person for “negligently hiring,
supervising, hiring, or retaining an unfit employee.” (Doe v. Capital Cities
(1996) 50 Cal.App.4th 1038, 1055.) Liability is established on the fact that
the employer knew or should have known hiring an employee created a particular
harm and that this harm materialized. (Ibid.)
“[A] negligent supervision claim depends, in part, on a showing that the risk of harm was reasonably foreseeable. [Citations.] ‘Foreseeability
is determined in light of all the circumstances and does not require prior identical events or injuries.’ [Citations.] ‘It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities . . .. Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards.’”
(D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 229 [internal citations omitted].)
Here, AVUHSD has shown that the pleadings do
not address whether it was foreseeable that such an act would have occurred as
no facts are alleged to show prior knowledge: (1) of the incident; (2) of any issues
with John Doe 1’s behavior; or (3) of incidents or issues in the bathrooms. The
FAC makes only conclusory statements as to foreseeability. A general demurrer does not admit contentions, deductions, or
conclusions of fact or law alleged in the complaint; facts impossible in law;
or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,
supra, 39 Cal.3d at p. 318.)¿¿¿
As such, AVUHSD has presented evidence
showing a lack of sufficiency to the third cause of action presented in the
pleading.
Leave to Amend
Leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under
California law leave to amend is liberally granted, “leave to amend should not
be granted where, in all
probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins.
Co. (1993), 18 Cal.App.4th 680, 685).¿ “A trial court does not abuse its
discretion when it sustains a demurrer without¿leave to amend¿if either (a) the
facts and the nature of the claims are clear and no liability exists, or (b) it
is probable from the nature of the defects and previous unsuccessful attempts
to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution
Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿
Here, the claim is such that the Third Cause
of Action for Negligent Failure Hiring, Supervision, and Retention of Employees
may be rectified by an amendment.
Accordingly, the Demurrer is OVERRULED as to
the Second Cause of Action and SUSTAINED as to the Third Cause of Action with
leave to amend.
Conclusion
Defendant
Antelope Valley Union High School District’s Demurrer is OVERRULED as to the Second Cause of Action and SUSTAINED as to the
Third Cause of Action with leave to amend.