Judge Thomas Falls, Case 22STCV23098 2023-02-15 Tentative Ruling

(2) DEFENDANT MOUNTAIN VIEW SCHOOL DISTRICT’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT

(1) DEFENDANT MOUNTAIN VIEW SCHOOL DISTRICT’S DEMURRER is SUSTAINED, with leave to amend.

(2) DEFENDANT MOUNTAIN VIEW SCHOOL DISTRICT’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT is MOOT.

This case arises from sexual assault in a school setting. Plaintiffs A.A. and B.A (collectively, “Plaintiffs”) allege the following against Defendant MOUNTAIN VIEW SCHOOL DISTRICT (“School District”): In 2015, Marcos Bowers (“Bowers”), a teacher at Kranz Intermediate School, sexually assaulted and harassed Plaintiffs.

On October 24, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) for (1) NEGLIGENT HIRING, SUPERVISION & RETENTION OF AN UNFIT EMPLOYEE; (2) BREACH OF MANDATORY DUTY: FAILURE TO REPORT SUSPECTED CHILD ABUSE (GOVERNMENT CODE SECTION 815.6); (3) NEGLIGENT SUPERVISION OF A MINOR; and (4) Negligence (against Doe Defendants only).

On November 28, 2022, the School District filed the instant Demurrer and Motion to Strike.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914. Moreover, “facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.” (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.)

The School District only demurs to the 2^nd cause of action for the Breach of Mandatory Duty: Failure to Report Suspected Child Abuse. (Demurrer p. 2:24-26.)

The crux of the School District’s demurrer is that it cannot be liable for violations under the Child Abuse and Neglect Reporting Act (“CANRA”) because (1) CANRA applies to individuals, not entities and (2) alternatively, Plaintiff fails to plead any facts to support a factual basis that any School District representative knew of Bower’s alleged misconduct.

The CANRA requires mandated reporters, including physicians and psychiatrists, to report known or reasonably suspected instances of child abuse or neglect to the authorities.¿ (Pen. Code, §§ 11165.7, subd. (a)(21); 11166.) In turn, Penal Code section 11165.7 defines a “mandated reporter” as teachers and other school employees, but none of which are identified as “entities.” This mandated reporter shall make a report when the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the subject of child abuse. As defined pursuant to Penal Code section 11165.6, “child abuse” includes “physical injury or death inflicted by other than accidental means upon a child by another person . . . .” Civil liability can be imposed for failure to report abuse. (B.H. v. County of San Bernardino (2015), 62 Cal.4th 168, 198, n.6 (B.H.).) CANRA defines “reasonable suspicion” as “that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person’s training and experience, to suspect child abuse or neglect . . .[it does] does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient. (Pen. Code, § 11166, subd. (a)(1).)

Plaintiffs concede that CANRA only applies to individuals and not entities,[2] but argue that “Government Code 815.2(a) is the nexus that imposes liability on Defendant Mountain View School District for its employees’ failure to make a mandated report of child abuse under Penal Code section 11165.7.” (Opp. p. 4.) In turn, Government Code section 815.2 (a) states that “[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.” More specifically, Government Code section 815.2(a) creates vicarious liability, not direct liability. (See C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869 [Under Government Code section 815.2(a), “ a school district is vicariously liable for injuries proximately caused by such negligence.”], see also p. 875 [“These allegations, if proven, could make the District liable under a vicarious liability theory encompassed by section 815.2.”]) (emphasis added).

Here, however, as noted by the School District in its Reply, fatal to Plaintiffs’ theory of recovery is that they do not seek recovery via vicarious liability but direct liability, which is not within the purview of section 815.2. (See Opp. p. 2 [“Penal Code section 11165.7, in addition to Government Code section 815.2, creates direct liability.”], see also p. 3 [“Plaintiffs’ Complaint does not allege that Penal Code section 11165.7 alone imposes direct liability on Defendant Mountain View School District. Instead, Penal Code section 11165.7, combined with Government Code sections 815.2 & 815.6, imposes direct liability on Defendant Mountain View School District.”]) (emphasis added). Accordingly, considering that direct liability is incongruous with CANRA, Plaintiffs have not pled an action for CANRA. With that, the court need not address whether the allegation that “Marcos Bowers frequently touched Plaintiffs in clear view of others” and that “[d]espite this abuse occurring on a regular basis in front of other MVSD employees, no action was taken” provide the ultimate facts necessary to assess whether a mandatory report was warranted. (FAC ¶12)

As for leave to amend, considering the facts of the case, the court finds it in the interest of justice to grant it.

Based on the foregoing, the demurrer is sustained and leave to amend is GRANTED. The motion to strike is MOOT.

[1] Their names have been concealed.

[2] (Opp. p. 2 [“While it is acknowledged that public entities are not identified under Penal Code section 11165.7. . . .”]) (emphasis added).