Judge: Stephen P. Pfahler, Case: 21STCV25336, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV25336    Hearing Date: March 2, 2023    Dept: F49

Dept. F-49

Date: 3-2-23

Case # 21STCV25336

Trial Date: Not Set

 

DEMURRER TO THE SECOND AMENDED COMPLAINT

 

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

RESPONDING PARTY: Plaintiff, Evelyn Gallegos

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

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

·         2nd Cause of Action: Negligence

·         3rd Cause of Action: Negligent Supervision

 

Motion to Strike Claim for Punitive Damages against Luis Lopez

 

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. On September 1, 2022, the court sustained the demurrer with leave to amend.

 

On September 20, 2022, Plaintiff filed the second amended complaint for Negligent Infliction of Emotional Distress, Negligence, and Negligent Supervision.

 

RULING

Demurrer: Overruled in Part/Sustained without Leave in Part.

Defendants Los Angeles Unified School District and Luis Lopez bring the subject demurrer on grounds that the complaint fails to allege sufficient facts establishing statutory liability against Defendants, and negligent infliction of emotional distress is not an independent cause of action. Plaintiff in opposition agrees to dismiss the first cause of action for emotional distress, and contends the operative complaint sufficiently alleges negligence. Plaintiff otherwise maintains the actions for negligence and negligent supervision are well pled. Defendants in reply contends the withdrawal of the first cause of action constitutes a discontinuance of any reliance on Government Code section 835, Education ode section 201, and California Code of Regulations, Title 5, setion 5552. Defendants then reiterate the lack of a basis of statutory liability argument based on the “remaining” statutory sections under Government Code section 815.2 and 815.6, and additionally argues the remaining two causes are “redundant.”

 

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.)

 

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.)

 

 

Given the agreed upon dismissal of the negligent infliction of emotional distress cause of action, the court considers the negligence and negligent supervision claims. Plaintiff seeks relief under Education Code sections 201 (second and third causes of action only) and 44807, Government Code sections 815.6 and 835, and California Code of Regulations, Title 5 section 5552. Contrary to the argument in reply, the court finds no withdrawal of the subject statutes and regulations with the agreement to dismiss the first cause of action, and the punitive damages. The sections remain incorporated into the allegations of the operative complaint.

 

The foundation for the basis of liability begins with Government Code section 815.6. “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 the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code, § 815.6.)

 

“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) 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

(b) 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

 

Defendants challenge the statutory foundation in that reliance upon Government Code section 835 lacks a specific basis of relief under the applicable facts. The court agrees that Government Code section 835 fails to align with the presented claims arising from alleged school bullying.

 

Nevertheless, the demurrer lacks any address of the alternative regulatory allegation. “Where playground supervision is not otherwise provided, the principal of each school shall provide for the supervision by certificated employees of the conduct and safety, and for the direction of the play, of the pupils of the school who are on the school grounds during recess and other intermissions and before and after school.” (Cal. Code Regs., tit. 5, § 5552.)

 

The court also considers the other arguments challenging support.

 

a) All pupils have the right to participate fully in the educational process, free from discrimination and harassment.

(b) California's public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.

(c) Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution.

(d) There is an urgent need to prevent and respond to acts of hate violence and bias-related incidents that are occurring at an increasing rate in California's public schools.

(e) There is an urgent need to teach and inform pupils in the public schools about their rights, as guaranteed by the federal and state constitutions, in order to increase pupils' awareness and understanding of their rights and the rights of others, with the intention of promoting tolerance and sensitivity in public schools and in society as a means of responding to potential harassment and hate violence.

(f) It is the intent of the Legislature that each public school undertake educational activities to counter discriminatory incidents on school grounds and, within constitutional bounds, to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.

(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 1981, et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)), the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), the federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.), the Unruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), and the Fair Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900), Div. 3, Gov. C.), except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes.

 

Ed. Code, § 201

 

The court agrees with the argument that Education Code section 201 only applies to the school itself and not to defendant Lopez. Nevertheless, Defendants lack address of Education Code section 44807, which provides:

 

“Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. A teacher, vice principal, principal, or any other certificated employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. The provisions of this section are in addition to and do not supersede the provisions of Section 49000.”

Ed. Code, § 44807

 

The court finds the regulatory section provides a sufficient statutory foundation for the operative complaint. The court therefore finds the two remaining claims of liability sufficiently pled for purposes of ruling on this demurrer. The demurrer is overruled as to the negligence and negligent supervision claims.

 

 

Motion to Strike: Granted with Prejudice.

Defendants move to strike the punitive damages claim related to the intentional infliction of emotional distress cause of action. The operative complaint lacks any intentional infliction of emotional distress cause of action. The court otherwise finds the operative complaint insufficiently alleges facts supporting a claim for punitive damages. (Civ. Code § 3294, subd. (c).) Plaintiff agrees to the motion to strike.

 

The motion to strike is granted with prejudice.

 

 

In summary, the demurrer is sustained without leave to amend as to the first cause of action for negligent infliction of emotional distress, and overruled as to the remainder. The motion to strike is granted with prejudice. Defendants are ordered to answer the complaint within 10 days of this order.

 

 

Motion for Summary Judgment currently reserved for June 1, 2023.

 

Defendants to give notice.