Judge: Theresa M. Traber, Case: 22STCV39851, Date: 2024-09-09 Tentative Ruling

Case Number: 22STCV39851    Hearing Date: September 9, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 9, 2024                 TRIAL DATE: NOT SET

CASE:                         John Doe, et al. v. Los Angeles Unified School Dist., et al.

CASE NO.:                 22STCV39851           

DEMURRER TO SECOND AMENDED COMPLAINT

MOVING PARTY:               Defendant Los Angeles Unified School Dist.

RESPONDING PARTY(S): Plaintiff John Doe

CASE HISTORY:

·         12/21/22: Complaint filed.

·         12/29/22: First Amended Complaint filed.

·         10/17/23: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a child sexual abuse action. Plaintiff alleges that, as a minor, he was sexually harassed and abused by an elementary school janitor.

Defendant Los Angeles Unified School District demurs to the first cause of action for negligence and the second cause of action for negligent hiring, retention, and supervision.

TENTATIVE RULING:

Defendant’s Demurrer to the Second Amended Complaint is OVERRULED.

DISCUSSION:

Defendant Los Angeles Unified School District demurs to the first cause of action for negligence and the second cause of action for negligent hiring, retention, and supervision.

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Legal Standard

A demurrer 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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet-and-confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Ryan Miller, counsel for Defendant, states that counsel for the parties met and conferred telephonically on February 19, 2024. (Declaration of Ryan D. Miller ISO Demurrer ¶ 2.) Although the parties were able to reach an agreement regarding other causes of action asserted in the Second Amended Complaint, they were not able to resolve the disputes raised in this demurrer. (Id; see also Exhs. 1-2.) Defendant has therefore satisfied its statutory meet-and-confer obligations.

Defendant’s Withdrawn Argument

            Defendant’s moving papers asserted that Plaintiff’s claims for negligence and negligent supervision are deficient because Plaintiff failed to present a claim for damages pursuant to the Government Tort Claims Act. (See Gov. Code § 945.4.) The Legislature added a prospective exemption to this requirement for childhood sexual abuse claims arising on or after the effective date of that amendment, January 1, 2009. (See Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 913 [describing the amendment].) The 2019 amendments to the Government Tort Claims Act eliminated the temporal limitation to the exemption, thereby exempting all childhood sexual abuse claims from the claim presentation requirement. (See Stat. 2019 Ch. 861 § 1.) This amendment is retroactive and expressly revives claims that would have previously been barred. (Gov. Code § 905(p).) Defendant’s moving papers argued that this retroactive change is an unconstitutional gift of public funds in violation of Article XVI, section 6 of the California Constitution. However, during the time this demurrer was pending, the Court of Appeal published its opinion in West Contra Costa Unified School District v. Superior Court of Contra Costa County (Cal. Ct. App., July 31, 2024, No. A169314) 2024 WL 3593932. In that opinion, the Court of Appeal categorically rejects the argument raised in the moving papers, holding that (1) the claim presentation requirement is a condition imposed on the State’s consent to be sued and does not create substantive liability (Id. at *19-*20), and (2) the amendment was made for a public purpose and therefore is not a gift. (Id. at *32-*33.) Defendant acknowledged the controlling effect of this ruling in its reply papers and withdrew the argument.

            As Defendant has withdrawn this argument, the Court need not decide the matter here, and, even if it had not been withdrawn, the Court would be obligated to follow West Contra Costa Unified School District as the controlling authority on this issue. As matters stand, the Court simply notes that the above recitation reflects the current state of the law.

First Cause of Action: Negligence

            Defendant demurs to the first cause of action for negligence for failure to state facts sufficient to constitute a cause of action.

            The well-established elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) With respect to injuries caused by third parties, there ordinarily exists “no duty to protect others from the conduct of third parties.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 627; Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.) However, a duty to protect others from third parties exists where the person is in a “special relationship” with either the victim or the person who created the harm. (Brown, supra, 11 Cal.5th at 215.) School districts have a “special relationship” for the purpose of this analysis with both their employees and their students. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.)

            Defendant contends that it owes no duty to Plaintiff because he was a former student, rather than a current student. As Defendant concedes, a school district stands in loco parentis with respect to its students, and therefore is vested with similar powers and responsibilities. (In re Christopher W. (1973) 29 Cal.App.3d 777, 780-81.) However, a school district owes no special duty to non-students. (See Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 936 [plaintiff was not a student at the time of the injury]; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 874 [describing general principle that school owes duty to students, but not others, by standing in loco parentis].)

            Defendant contends that Plaintiff admits that he has no special relationship with Los Angeles Unified School District because he acknowledges that he was a “former student” at the time of the alleged conduct in paragraph 13 of the Second Amended Complaint. This characterization misstates the allegations in the pleadings. Plaintiff alleges that Plaintiff would periodically visit his elementary school, Saturn Street Elementary School, after his graduation from Saturn Street Elementary, but while still a minor. (See SAC ¶¶ 13, 16.) Plaintiff alleges that during these visits, beginning in 1982, when he was 12 years old, and continuing through 1988, he was sexually harassed and abused by a janitor employed at Saturn Street Elementary. (SAC ¶¶ 16-20.)

Although Defendant makes much of the allegation in paragraph 13 that “at all times . . . Plaintiff was a former student at LOS ANGELES UNIFIED SCHOOL DISTRICT and SATURN STREET ELEMENTARY SCHOOL,” that statement, taken in context, appears to refer to his status as a graduate of Saturn Street Elementary School, befitting Plaintiff’s age at the time, and does not state that he was no longer a student within the Los Angeles Unified School District. That said, Plaintiff concedes that the Second Amended Complaint does not expressly allege the reverse—i.e., that Plaintiff was a student attending another school within the District. While Plaintiff makes note of materials produced in discovery relating to that issue, those materials are extrinsic to the pleadings and may not be considered on demurrer. (See Hahn, supra, 147 Cal.App.4th at p. 747.) However, construing the allegations liberally, as required on a demurrer, the Court finds that the Second Amended Complaint adequately alleges a special relationship in that it supports the inference that Plaintiff was a then-current student within the District as a whole.

Accordingly, Defendant’s Demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Negligent Hiring, Retention, and Supervision

            Defendant also demurs to the second cause of action for negligent hiring, retention, and supervision.

“Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238Cal.App.4th 889, 902.)

Defendant contends that this cause of action is not adequately pled because Plaintiff has only alleged what it contends are “legal conclusions” that Defendant knew or should have known of the janitor’s propensity to harm minors. (See SAC ¶¶ 18, 20, 23, 41, 46, 48.) These allegations, however, are not legal conclusions, but allegations of ultimate facts, which are permissible at the pleading stage. (See, e.g., Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 473-74 [describing examples of ultimate facts].) Moreover, Defendant’s authorities proffered for the assertion that greater specificity is required are not on point for a childhood sexual abuse case. (See Thompson v. Sacramento City Unified Sch. Dist. (2003) 107 Cal.App.4th 1352, 1370-71 [violence between students]; Nola M. v. University of Southern California (1993) 16 Cal.App.4th, 421, 436-37 [sexual assault of adult college student].) The Court is not persuaded that these allegations are insufficient.  The details Defendant seeks can be explored in discovery.

Accordingly, Defendant’s Demurrer to the second cause of action is OVERRULED.

CONCLUSION:

            Accordingly, Defendant’s Demurrer to the Second Amended Complaint is OVERRULED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  September 9, 2024                             ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.