Judge Steven A. Ellis, Case Number: 23STCV09503, Date: 2023-10-04 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV09503, Date: 2023-10-04 Tentative Ruling

Case Number: 23STCV09503 Hearing Date: February 1, 2024 Dept: 29

Demurrer with Motion to Strike filed by Defendant Los Angeles Unified School District.

Tentative

LAUSD’s Demurrer to the Fifth Cause of Action (for Gross Negligence) is SUSTAINED with LEAVE TO AMEND.

LAUSD’s Motion to Strike the Second Amended Complaint in its entirety is DENIED.

LAUSD’s Motion to Strike from the prayer for relief the request for punitive damages and interest under Civil Code section 3291 is GRANTED without leave to amend.

Background

Plaintiff Cailo Alburo (“Plaintiff”), a minor, alleges that he was injured on November 10, 2022, when a high school physics class experiment at the Edward R. Roybal Learning Center went awry, resulting in an explosion that caused severe injuries to Plaintiff.

Plaintiff, by and through his Guardian ad litem Dolores Alburo, filed the Complaint in this action on April 28, 2023, and a First Amended Complaint on July 14, 2023. On October 4, 2023, the Court sustained a demurrer to the First Amended Complaint and granted Plaintiff leave to amend.

On November 15, 2023, Plaintiff filed his Second Amended Complaint (“SAC”) against Defendants Los Angeles Unified School District (“LAUSD”) and Does 1 through 20. Plaintiff asserts the following causes of action: (1) Assault; (2) Battery; (3) Premises Liability; (4) Negligence; (5) Gross Negligence; (6) Respondeat Superior; and (7) Negligent Hiring, Retention, Training and Supervision.

On December 19, 2023, LAUSD filed a Demurrer challenging the Fifth Cause of Action (for Gross Negligence) and a Motion to Strike the claims for punitive damages and interest under Civil Code section 3291 in the Prayer for Relief.

No opposition has been filed.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Ibid.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

A motion to strike may challenge any “any irrelevant, false, or improper matter inserted in any pleading” or “any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc. § 437, subd. (a).) In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other challenged pleading. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

"Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” (Code Civ. Proc., § 435.5(a).)

Discussion

The demurrer and motion is accompanied by the declaration of Parin Nohroodi which satisfies the meet and confer requirement.

Defendant demurs to the fifth cause of action of the complaint for gross negligence, arguing that Plaintiff fails to allege a statutory basis for liability against a public entity, as is required. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) No statute authorizes such a claim against a public entity for gross negligence.

Accordingly, the Court SUSTAINS LAUSD’s demurrer to the cause of action, with leave to amend.

On LAUSD’s motion to strike, the Court declines to strike the entire SAC for the relatively brief delay in filing. The Court grants the motion to strike the prayer for punitive damages (which under Government Code section 818 cannot be recovered against a public entity) and interest under Civil Code section 3291 (which expressly states that it does not apply against public entities), without leave to amend.

Conclusion

LAUSD’s Demurrer to the Fifth Cause of Action (for Gross Negligence) is SUSTAINED with LEAVE TO AMEND.

Plaintiff is granted leave to amend within 21 days of notice of this order.

LAUSD’s Motion to Strike the Second Amended Complaint in its entirety is DENIED.

LAUSD’s Motion to Strike from the prayer for relief the request for punitive damages and interest under Civil Code section 3291 is GRANTED without leave to amend.

Moving party is ordered to give notice.¿¿¿¿