Judge Stephen P. Pfahler, Case Number: 23STCV14354, Date: 2024-02-22 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV14354, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV14354 Hearing Date: February 22, 2024 Dept: 68

Dept. 68

Date: 2-22-24

Case # 23STCV14354

Trial Date: Not Set

DEMURRER TO THE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, Los Angeles Unified School District

RESPONDING PARTY: Plaintiff, D.M.

RELIEF REQUESTED

Demurrer to the First Amended Complaint

· 1^st Cause of Action: Negligence

· 2^nd Cause of Action: Negligent Hiring and/or Retention, Negligent Supervision

· 3^rd Cause of Action: Negligent Failure to Warn, Train, or Educate

· 4^th Cause of Action: Negligent Supervision of a Minor

· 5^th Cause of Action: Breach of Mandatory Duty

Motion to Strike

· Paragraph 42, line 24: "Section 285 of the penal code; paragraph (1) or (2) of subdivision {b)”

· Paragraph 79, lines 8, 9, and 10: "Education Code Section 44807, Education Code Section 8 212.5, Civil Code Section 51.9, Penal Code Section 11166."

SUMMARY OF ACTION

In 1971, plaintiff D.M., an eight year old, third grade student at a Los Angeles Unified School District (LAUSD) campus was sexually assaulted by a “school custodian” “Mr. Jones” on the premises. Following the second assault, Plaintiff reported the Vice Principal that the custodian “was bothering” Plaintiff in the school bathroom, and contends the custodian was known for “giving girls in School ‘the creeps.’” Plaintiff contends no further action was taken.

On June 20, 2023, and August 24, 2023, Plaintiff filed a complaint and first amended complaint for Negligence, Negligent Hiring and/or Retention, Negligent Supervision, Negligent Failure to Warn, Train, or Educate, Negligent Supervision of a Minor, Breach of Mandatory Duty, and Negligence. Defendant Los Angeles Unified School District is the only named defendant in the first five causes of action; Does 2-25 are named in the sixth cause of action.

RULING

Demurrer: Overruled

Requests for Judicial Notice: Granted.

· The court takes judicial notice of the California Assembly Bill 218 summary.

· The court takes judicial notice of the trial Court orders for the existence of the orders, but not any factual findings. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Defendant Los Angeles Unified School District (LAUSD) brings the subject to demurrer to the first through fifth causes of action for Negligence, Negligent Hiring and/or Retention, Negligent Supervision, Negligent Failure to Warn, Train, or Educate, Negligent Supervision of a Minor, Breach of Mandatory Duty. LAUSD contends all claims against it in the June 20, 2023, filed complaint are barred by the statute of limitations in that the complaint was not filed within the three year revival window from January 1, 2020 to January 1, 2023. LAUSD also maintains no preceding government claim was filed. Any and all claims also lack sufficient factual particularity, including a statutory basis of liability for certain claims. Plaintiff in opposition maintains the complaint was timely filed due to extensions of the filing date, an exemption from any claim filing requirements, and all claims are properly pled. LAUSD in reply challenges any claimed filing deadline extension, the claim exemption is unconstitutional, no basis of immunity from the claim requirement exists, Plaintiff lacks any statutory basis for relief, and any leave to amend would be futile.

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.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Statute of Limitations

The court begins with the governing statute, Code of Civil Procedure section 340.1. The most current iteration of the statute provides in relevant part:

“(a) There is no time limit for the commencement of any of the following actions for recovery of damages suffered as a result of childhood sexual assault:

(1) An action against any person for committing an act of childhood sexual assault.

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(b)(1) In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.

(2) For purposes of this subdivision, a “cover up” is a concerted effort to hide evidence relating to childhood sexual assault.

...

(e) Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (f).

...

(p) This section applies to any claim in which the childhood sexual assault occurred on and after January 1, 2024. Notwithstanding any other law, a claim for damages based on conduct described in paragraphs (1) through (3), inclusive, of subdivision (a), in which the childhood sexual assault occurred on or before December 31, 2023 may only be commenced pursuant to the applicable statute of limitations set forth in existing law as it read on December 31, 2023.

(Code Civ. Proc., § 340.1.)

The prior version referenced in subdivision (p) stated in relevant part:

“(a) In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later, for any of the following actions:

(1) An action against any person for committing an act of childhood sexual assault.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(2) For purposes of this subdivision, a “cover up” is a concerted effort to hide evidence relating to childhood sexual assault.

(c) An action described in paragraph (2) or (3) of subdivision (a) shall not be commenced on or after the plaintiff's 40th birthday unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.

...

(q) Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.

(r) The changes made to the time period under subdivision (a) as amended by the act that amended this subdivision in 2019 apply to and revive any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment, and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.”

The court relies on the current iterations of the statute for purposes of determining the sufficiency of the complaint. “‘[L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention’” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844 [“[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application”].) “[A] statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent “some constitutional objection” to retroactivity.” (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) “But it has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475.)

“‘[T]he interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.’ (Citation.) When this court ‘finally and definitively’ interprets a statute, the Legislature does not have the power to then state that a later amendment merely declared existing law.” (Citation).) [¶] “However, ‘if the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration. [Citation.] But even then, ‘a legislative declaration of an existing statute's meaning’ is but a factor for a court to consider and ‘is neither binding nor conclusive in construing the statute.’ [Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.)

The California Supreme Court previously interpreted legislative extensions of the statute of limitations for sex crimes applied to Code of Civil Procedure section 340.1. (Quarry v. Doe I (2012) 53 Cal.4th 945.) Consistent with the authority cited above, the court found that retroactive application of lapsed claims was allowable, when expressly authorized. (Id. at pp. 955, 957.) The court provides extensive discussion of the evolution of the amendments, including the revival of third party claims. The court found the revival of said lapsed third party claims valid based on express language in the 2002 amendments, rather than the 1998 and 1999 amendments. (Id. at pp. 967-971, 984.) The court also acknowledged the remedial purpose of the statute as indicated in the legislative comments in support of the extension. (Id. at pp. 988-990; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 546, 545 [Code Civil Procedure section 340.1 a remedial statute to hold entities responsible for injuries caused to victims].)

The plain language of subdivision (q) in the prior version and referenced in the current version of the statute, revived all claims previously barred as of January 1, 2020, for three years (e.g. January 1, 2023). LAUSD acknowledges as much with its indicated cutoff of January 1, 2023. LAUSD, however, fails to undercut the extension provided under Emergency Rule 9.

Emergency rule 9 extended the statute for an additional 178 days, thereby extending the revival of the statute of limitations to January 27, 2023. (Roe v. Doe (2023) 98 Cal.App.5th 965.) The complaint was timely filed on June 23, 2023. The demurrer is therefore overruled on the basis of the statute of limitations.

Claim Requirement

The next argument arises from the admitted lack of a pre-filing government claim, and failure to seek leave for the filing of a late claim. (Cal. Govt. Code §§ 910, 911.2.) LAUSD concedes to the exemption provided in Government Code section 905, subdivision (m) but maintains because no claims were ever filed, a “substantive element required” for the individual causes of action remains lacking.

Effective January 1, 2020, Government Code section 905, subdivision (m) exempts claim filing requirement on the state level for “Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual assault.” (Gov. Code, § 905, subd. (m).) The prior version from 2013 to 2019, relied upon by LAUSD, provided an exemption for “Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse. This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009.” (Gov. Code, § 905.)

LAUSD’s position fails to take into account that both the current version of Government Code section 905 was effective at the time of the 2023 filed complaint, and the language of subdivision (m) explicitly rendered the exemption requirement retroactive. “The changes made to this section by the act that added this subdivision are retroactive and apply to any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.” (Gov. Code, § 905, subd. (p).) The subject provision has been as unequivocally reviving any and all childhood abuse claims otherwise barred by the claim filing requirement. (Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 428-431.) The demurrer is overruled on this basis.

Gift Prohibition Provision

LAUSD next challenges the claim under Article XVI, section 6 of the California Constitution in that any revival of the claim violates the “gift prohibition section” of the California Constitution. The argument relies on an express link between a claim for money or damage against a public entity, and required government claim. The relied upon was in fact expressly overruled by the California Legislature in passing Government Code section 905, subdivision (m), including the very specific case relied upon by LAUSD in support of its argument.

“In direct response to Shirk, the Legislature enacted Government Code section 905, subdivision (m), which eliminates the claim presentation requirement for ‘[c]laims made pursuant to Section 340.1 ... for the recovery of damages suffered as a result of childhood sexual abuse.’ (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 640 (2007–2008 Reg. Sess.) as amended June 9, 2008, p. 3 [‘This bill is intended to address the Shirk decision by expressly providing that childhood sexual abuse actions against public entities are exempted from government tort claims requirements and the six-month notice requirement’].) This exemption applies to claims arising out of conduct occurring on or after January 1, 2009. (Gov. Code, § 905, subd. (m); J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 333, fn. 6, 181 Cal.Rptr.3d 286 [‘Effective January 1, 2009, the government claim presentation requirement no longer applies to claims for childhood sexual abuse’]; accord, S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 721, fn. 6, 109 Cal.Rptr.3d 270.) (A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1258.)

While the court appreciates the argument that the alleged incident occurred in the 1970s, the court declines to both find the revival of the statute of limitations applicable to the subject action only to find the claim requirement would otherwise bar said revived claim. Such a finding clearly contradicts the intention of the legislature notwithstanding the potential for confusion in the statute in considering revived claims. The court therefore declines to rely on the express, overruled authority strenuously relied upon by LAUSD, and finds the claim exemption applies in the instant section following extensive judicial and legislative review.

The court additionally finds no basis for a finding of an unconstitutional provision of this exact provision in the California Constitution. (Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241, 254 [“the question whether an expenditure has a public purpose is within the discretion of the Legislature”]; Atlantic Richfield Co. v. County of Los Angeles (1982) 129 Cal.App.3d 287, 298 [“‘it is well established that a relinquishment of rights by the state—if made for a public purpose—will not violate the constitutional prohibition’”]; see Heron v. Riley (1930) 209 Cal. 507, 517.) The demurrer is overruled on this basis.

1^st Cause of Action: Negligence

LAUSD challenges the lack of any statutory basis for the subject cause of action. Plaintiff counters that LAUSD remains vicariously liable for the acts of its employees and/or independent contractors. LAUSD in reply emphasizes immunity under Government Code section 815.6.

The operative complaint generally references Government Code sections 8.15.2, 815.4, and 815.6. [First Amend. Comp., ¶ 43.]

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.) “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, subd. (a).) The California Supreme Court allows for a finding of vicarious liability based on claims arising from negligence. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868–869.) “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.)

Nothing in the operative complaint in any way states the subject cause of action is brought under Government Code section 815.6. Even if the opposition generally presents this section as a basis of support, the body of the actual cause of action lacks any actual specific citation of underlying regarding a basis of mandatory duty, other than the general in loco parentis standard applicable to all school districts. “[S]ection 815.6 requires that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘“one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.”’ (Citation.) Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6. (Citation.)” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.)

While an argument can be made for liability under such an argument were it actually pled, the first amended complaint still alleges a general basis of duty that specifically applies to school districts due to mandatory attendance policies and established special relationship with the students. This “‘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,’” including “‘injuries to a student resulting from a teacher's sexual assault.”’” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 126 accord C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870.) Said duties expand to other personnel properly on the campus, such as a maintenance worker. The bases may share a common core, but the court distinguishes the specifics for purposes of the demurrer. Plaintiff sufficiently articulates a basis of negligence against LAUSD under the mandatory attendance established duty of care standard. The demurrer is overruled on this basis rather than requiring further amendment.

2^nd Cause of Action: Negligent Hiring and/or Retention, Negligent Supervision

4^th Cause of Action: Negligent Supervision of a Minor

LAUSD challenges the subject claims, again, on the lack of a basis of any mandatory statutory duty. Plaintiff counters that the operative complaint “explicitly identifies Government Code Section 815.6, 815.2, Education Code Section 44807, Education Code Section 212.5, Civil Code 51.9, and the California Code of Regulations Tite 5, Sections 5530, 5531, 5551 and 5552, and Penal Code Section 11166 as sources of duties and liability alleged in the operative complaint.” The subject sections provide a “direct” basis of liability.

As addressed in the negligence cause of action, the subject claims are also NOT brought under Government Code section 815.6, even if the section is generally referenced in the operative complaint. [First Amend. Comp., ¶ 43.] The court also finds no reference to Education Code Section 44807, Education Code Section 212.5, Civil Code 51.9, and the California Code of Regulations Tite 5, Sections 5530, 5531, 5551 and 5552, and Penal Code Section 11166 in the operative complaint.

Regardless, the challenged causes of action squarely arise in vicarious liability.

“Plaintiff alleges the District's administrators and employees knew or should have known of [maintenance worker’s] dangerous propensities, but nevertheless hired, retained and failed to properly supervise [him]. These allegations, if proven, could make the District liable under a vicarious liability theory encompassed by section 815.2.” “The lead opinion in John R. v. Oakland Unified School Dist. … it is true, referred to the school district's potential liability for negligent hiring and supervision of the molesting teacher as ‘direct.’ In context, however, that label served merely to distinguish the negligent hiring and supervision theory from the theory that the district was vicariously liable for the teacher's molestation, a theory we rejected on the ground the molestation was beyond the scope of the teacher's employment. (Citation.) To the same effect is Delfino v. Agilent Technologies, Inc. … referring to a negligent supervision and retention theory as one of ‘direct liability,’ where the plaintiff had also sought to hold the employer vicariously liable for the intentional torts of its employee. (Citation.) As these decisions did not consider the theory of vicarious liability posited here—that the District is liable under section 815.2 for the negligence of its administrative and supervisory personnel—they cannot be taken as either endorsing or precluding this theory.”

(C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 875.)

The court finds the subject claims are properly pled under a vicarious liability standard, as opposed to a direct theory without any actually incorporated statutory or regulatory authority. The court therefore overrules the demurrer on this basis rather than requiring amendment, especially given the unopposed motion to strike, which specifically addresses some of the cited authority.

3^rd Cause of Action: Negligent Failure to Warn, Train, or Educate

5^th Cause of Action: Breach of Mandatory Duty

LAUSD again challenges the lack of an identified statutory duty. For the reasons provided above, the court finds the negligence based cause of action falls within the purview of either general negligence or vicarious liability. The demurrer is overruled rather than requiring further amendment.

Motion to Strike: Granted.

LAUSD moves to strike Paragraph 42, line 24: “Section 285 of the penal code; paragraph (1) or (2) of subdivision {b),” and Paragraph 79, lines 8, 9, and 10: “Education Code Section 44807, Education Code Section 212.5, Civil Code Section 51.9, Penal Code Section 11166.”

Defendant maintains Penal Code section 285, which addresses incestuous marriages lacks any applicability to the subject claim in that nothing in the complaint alleges an incestuous act. As for Education Code Section 212.5, Civil Code Section 51.9, and Penal Code Section 11166, LAUSD contends that because the subject statutes were all enacted after the alleged dates of the incident, none apply for purposes of establishing a mandatory duty. Plaintiff submits NO opposition to the motion. The court grants the unopposed motion to strike with prejudice.

In summary, the demurrer is overruled and the motion to strike granted without prejudice/without leave to amend. LAUSD is ordered to answer the operative complaint within 10 days of this order.

Case Management Conference set for April 4, 2024.

Doe 1 to give notice.