Judge: Stephen P. Pfahler, Case: 21STCV25336, Date: 2022-09-01 Tentative Ruling

Case Number: 21STCV25336    Hearing Date: September 1, 2022    Dept: F49

Dept. F-49

Date: 9-1-22

Case # 21STCV25336

Trial Date: Not Set

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendant, Los Angeles Unified School District, et al.

RESPONDING PARTY: Plaintiff, Evelyn Gallegos

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         1st Cause of Action: Intentional Infliction of Emotional Distress

·         2nd Cause of Action: Negligent Infliction of Emotional Distress

·         3rd Cause of Action: Negligence

·         4th Cause of Action: Negligent Supervision

 

SUMMARY OF ACTION

Plaintiff Evelyn Gallegos was a student at Germain Elementary School with the Los Angeles Unified School District (LAUSD). Plaintiff alleges bullying by fellow students and the failure of the school principal, defendant Luis Lopez, to address the bullying, even after a transfer of the student to a new classroom. Plaintiff alleges a particularly violent incident on March 5, 2020, which plaintiff alleges the final act in the course of conduct leading to the subject action.

 

On July 9, 2021, Plaintiff filed a complaint for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence, and Negligent Supervision. On November 3, 2021, the action was transferred from Department 31 to Department 49.

 

New counsel for Plaintiff substituted into the case on January 3, 2022. On May 18, 2022, the court sustained the demurrer of Los Angeles Unified School District and Luis Lopez with leave to amend. On June 13, 2022, Plaintiff filed a first amended complaint for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence, and Negligent Supervision.

 

RULING: Sustained with Leave to Amend.

Request for Judicial Notice: Granted. (Evid. Code, § 452.)

 

Defendants Los Angeles Unified School District and Luis Lopez bring the subject demurrer on grounds that the complaint is barred due to an untimely filed complaint after the six month period from the claim rejection date; Plaintiff failed to obtain leave for a late claim; and, the complaint fails to allege sufficient facts establishing statutory liability against Defendants.

 

Plaintiff in opposition contends LAUSD failed to comply with the notice requirements for the rejection, and the complaint was otherwise timely filed within the two year deadline. Plaintiff specifically contends that the notice from the third party administrator effectively only required correspondence from counsel with said administrator rather than both the administrator and LAUSD directly, as the administrator was the acknowledged agent. Plaintiff also challenges that the rejection letter was drafted in English rather than Spanish. Plaintiff maintains the complaint otherwise pleads the subject claims, or alternatively requests leave to amend.

 

Defendants in reply reiterates the propriety of the written rejection notice, and delivery to Plaintiff’s former address. Plaintiff’s subsequent failure of Plaintiff to timely file the complaint within six months of the rejection of the claim on December 22, 2020 renders the action barred. Plaintiff cannot rectify the late filing. Finally, the complaint lacks a basis of statutory liability.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

Given the demurrer standard, the court declines to consider the declaration of Toni Tosello and Veronica Bedolla offering any extrinsic information outside the scope of the operative complaint or subject to judicial notice.

 

“Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board...” (Gov. Code, § 945.4.) “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented … not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) As addressed above, the claim was timely filed, and the rejection issued on December 22, 2020.

 

“(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented … must be commenced: (1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

(2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. If the period within which the public entity is required to act is extended pursuant to subdivision (b) of Section 912.4, the period of such extension is not part of the time limited for the commencement of the action under this paragraph.” (Gov. Code, § 945.6.)

 

Unlike the prior complaint, the first amended complaint now references the submission of the claim and subsequent series of events leading to the filing of the complaint. According to the first amended complaint, Plaintiff submitted a “claim form” to LAUSD on October 8, 2020, which was file stamped October 27, 2020. [First Amend. Comp., Ex. C.] A November 5, 2020 dated letter informed Plaintiff that the claim was referred to a third party administrator. [Ex. D.] The letter was acknowledged received in a November 9, 2020, dated letter. [Ex. E.]

 

Plaintiff subsequently retained counsel and a signed designation of attorney form on December 3, 2020. [Ex. F.] On December 8, 2020, counsel notified the third party claim administrator via certified mail of legal representation and requested all communication inquiries be directed to the legal office. [Ex. G.] Notwithstanding the prior referral to the third party administrator, a December 22, 2020 dated letter from a LAUSD claims coordinator rejected the claim. [Ex. H.] The letter was sent to Plaintiff’s former address only, which Plaintiff alleges was therefore never received. On August 4, 2021, Plaintiff alleges former counsel received notice from the third party administrator that the claim remained open, and Plaintiff was allowed to file a complaint. The complaint was filed on July 9, 2021—six months and 17 days later. Plaintiff characterizes the entire process constituted a defective rejection, and the complaint was timely filed within two years.

 

Again, the claim, referral to the third party administrator, and acknowledgment of receipt of the claim, were submitted by, and returned to, Karen Gallegos on behalf of the minor at the San Fernando Road address. Unlike the prior demurrer, however, where the court declined to consider extrinsic information regarding the retention of counsel, the court now finds the allegations and exhibits regarding the substitution of counsel and service of notice to the claim administrator for LAUSD properly before the court for purposes of the subject demurrer.

 

The claim rejection letter indicates the same address listed on the claim, as well as a verification of mailing. The court assumes mailing to the listed address occurred on the same date. (Gov. Code, § 915.2, subd. (a).) Defendants maintain the return of the rejection letter to the claimant address was proper, regardless of the notification of counsel to the third party administrator under Government Code section 915.4. The section provides in relevant part: “(a) The notices provided for in Sections 910.8, 911.8, and 913 shall be given by any of the following methods: … (2) Mailing the notice to the address, if any, stated in the claim or application as the address to which the person presenting the claim or making the application desires notices to be sent or, if no such address is stated in the claim or application, by mailing the notice to the address, if any, of the claimant as stated in the claim or application.”

 

Defendants contend that nothing in the complaint supports the required finding that service of notice of representation constitutes a change in the statutory notice standards under Government Code section 915.4. Defendants maintain that service upon the third party administrator alone was not proper notice to LAUSD itself, thereby updating claimant notice requirements.

 

“An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Civ. Code, § 2295.) For purposes of the demurrer, the court finds the notice and designation of the third party claim administrator constitutes the designation of an agent for the principal, LAUSD. Service of the notice of substitution of counsel on the agent was therefore imputed to the principal. (Civ. Code, § 2332; O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 288; see Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 747 [“‘Liability of the principal for the acts of an ostensible agent rests on the doctrine of “estoppel,” the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury.’”] Upon service of the notice, LAUSD was obligated to communicate with counsel only. (Gov. Code, § 915.4, subd. (a)(2); CA ST RPC Rule 4.2 (formerly cited as CA ST RPC 2-100.)

 

The rejection was therefore not properly delivered to counsel, and therefore constitutes a non-response. (Gov. Code, § 945.6, subd. (a)(2).) Whatever the reason for the failure of the third party administrator to either forward the contact information, or LAUSD’s own failure to update its claim contact information, LAUSD may not rely on argument for a bar to the complaint, due to the six month lapse in time from the improperly sent rejection to the filing of the complaint. The complaint was properly filed within two years of the date of the incident. The demurrer is therefore overruled on grounds of the claim requirement.

 

The court considers the statutory liability allegations. Defendant contends the complaint lacks any statutory basis, and the cited sections, Education Code sections 32281, 32282, 44807, and 44808, in no way offer a basis of support for liability against a government entity. Plaintiff generally counters that the demurrer lacks sufficient specify, and the doctrine of respondeat superior liability applies.

 

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.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

 

The second, third, and fourth, cause of action seek relief under Education Code sections 22881, 22882, 44807, and 44808. The first cause of action lacks any statutory basis. The court additionally finds the plain language of certain statutory sections also lacking in support for the claim. The court therefore grants Plaintiff 20 days leave to amend to allege statutory bases of liability for ALL causes of action.

 

Plaintiff may not add any new claims or causes of action. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (Citation.) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

 

Because the court has now twice sustained demurrers with leave to amend, the second amended complaint will also be subject to new amendment limit guidelines. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).)

 

Failure to timely file the second amended complaint within 20 days of this order may invite an ex parte motion for dismissal of the entire action.

 

Defendants to give notice.