Judge: Walter P. Schwarm, Case: 30-2021-01215836, Date: 2022-07-26 Tentative Ruling
Motion No. 1:
Defendant’s (Santa Ana Unified School District) Demurrer to Plaintiff’s First Amended Complaint (Demurrer), filed on 4-15-22 under ROA No. 50, is OVERRULED in part and SUSTAINED in part.
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “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.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, explains, “Moreover, ‘[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’ [Citation.]”
The Demurrer challenges the first, second, third, fourth, seventh, and eighth causes of action contained in Plaintiff’s (Daniel Palacios) First Amended Complaint (FAC), filed on 1-20-22 under ROA No. 24, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).
First (Negligence), Second (Negligent Supervision), Third (Negligent Retention/Hiring), Fourth (Negligent Failure to Train, Warn or Educate), and Seventh (Negligence of District Employees)93 Causes of Action:
Doe v. Lawndale Elementary School District (2021) 72 Cal.App.5th 113, 125-126 (Doe), states, “ ‘ “To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that [it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ [Citation.] Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.” ’ [Citations.]” . . . [¶] ‘A duty exists only if “ ‘the plaintiff's interests are entitled to legal protection against the defendant's conduct.’ ” ’ [Citations.] As the California Supreme Court explained in Brown, ‘[g]enerally, the “person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another” from that peril.’ [Citations.] ‘But this ‘no-duty-to-protect rule’ is not absolute.’ [Citations.] ‘Under some circumstances, a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant's own making.’ [Citations.] In particular, ‘a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm.’ [Citations.] ‘ “[A] typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare.’ ” ’ [Citations.] [¶] The District properly concedes it had a special relationship with Doe. ‘[A] school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, “analogous in many ways to the relationship between parents and their children.” ’ [Citations.] ‘Because of this special relationship, imposing obligations beyond what each person generally owes others,’ the ‘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.’ [Citations.] Thus, the District's administrators had a duty to use reasonable measures to protect Doe from foreseeable injury caused by Farr's intentional conduct. [¶] Once a court determines a defendant owes a duty to a plaintiff, ‘the remaining liability questions—breach as well as factual and legal causation—are usually questions for the jury.’ [Citations.]” (Footnote 4 omitted.)
The Demurrer states, “. . . there is no respondeat superior liability for the conduct of HENRY. Instead, DISTRICT must be found liable, if at all, for its own conduct. Plaintiff never alleges one fact about prior notice as to HENRY and/or his alleged propensities.” (Demurrer; 7:4-7.) the Demurrer further states, “The demurrers to the First, Second, Third, Fourth and Seventh Causes of Action, all based in negligence should be sustained without leave to amend.” (Demurrer; 11:16-17.)
Here, the FAC adequately alleges a special relationship between Defendant and Plaintiff. (For example, see FAC at ¶¶ 7, 8, 9, 22, 24, 25, 26, 31, 37, 38, 39, and 40.) Pursuant to Doe, this special relationship placed a duty on Defendant to protect Plaintiff from the alleged harm. These allegations demonstrate that the FAC seeks to hold Defendant liable for its own conduct based on the duty created by the special relationship between Defendant and Plaintiff.
Further, the FAC specifically pleads, “Plaintiff is informed and believes, and on that basis alleges, that SANTA ANA UNIFIED SCHOOL DISTRICT and DOES 1-500, inclusive, were placed on actual or constructive notice that LEE DINNIE HENRY had assaulted children prior to, and/or during the time he was in contact with the Plaintiff. Plaintiff is informed, and thereon alleges, that SANTA ANA UNIFIED SCHOOL DISTRICT and DOES 1-500, inclusive, were informed of sexual assault, harassment and molestations committed by LEE DINNIE HENRY or of conduct that would put a reasonable person on notice of such propensity to assault, harassment, and molestation.” (FAC, ¶ 37.) At this stage of the proceedings, paragraph 37, when construed in context with the other allegations, adequately alleges notice.
The court finds that John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 441 (John R.), states, “The principal question before us is whether the school district that employed the teacher can be held vicariously liable for the teacher's acts under the doctrine of respondeat superior. We hold that the doctrine is not applicable in these circumstances and that while the school district may be liable if its own direct negligence is established, it cannot be held vicariously liable for its employee's torts.” John R. is not applicable because, as discussed above, the FAC seeks to hold Defendant liable for its own negligence.
Based on the above, the court finds that the FAC adequately pleads negligence and OVERRULES the Demurrer to the first, second, third, fourth, and seventh causes of action.
Eighth Cause of Action (Tom Bane Civil Rights Act Violation):
Plaintiff’s Opposition to Defendant’s Demurrer to First Amended Complaint (Opposition), filed on 7-13-22 under ROA No. 91, does not oppose the Demurrer to the eighth cause of action. (Opposition; 2:25-26.) Therefore, the court SUSTAINS the Demurrer to the eighth cause of action with leave to amend since the Opposition indicates Plaintiff will seek leave to amend to incorporate facts learned thorough investigation. (Opposition; 2:27-3:1.)
To the extent that the Demurrer relies on Code of Civil Procedure section 430.10, subdivision (f), the court OVERRULES the Demurrer because it is not so uncertain as to prevent Defendant from providing an informed response. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)
The court DENIES Plaintiff’s Request for Judicial Notice, filed on 7-13-22 under ROA No. 95, as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)
Based on the above, the court OVERRULES Defendant’s (Santa Ana Unified School District) Demurrer to Plaintiff’s First Amended Complaint, filed on 4-15-22 under ROA No. 50, to the first, second, third, fourth, and seventh causes of action. The court SUSTAINS the Demurrer to the eighth cause of action with 15 days leave to amend the eighth from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)
Motion No. 2:
Defendant’s (Santa Ana Unified School District) Motion to Strike Portions of Plaintiff’s First Amended Complaint for Damages (Motion), filed on 4-15-22 under ROA No. 51, is GRANTED in part and DENIED in part.
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
The Notice of the Motion seeks to strike Item Nos. 1-8. (Motion; 1:24-3:16.)
As to Items Nos. 1 and 2, the Motion relies on John R. v. Oakland Unified School District (1989) 48 Cal.3d 438 (John R.). (Motion, 4:18-5:3.) The court DENIES the Motion as to Item Nos. 1 and 2 because John R. is not applicable to this case for the same reasons as stated for Motion No. 1.
The court DENIES the Motion as to Item Nos. 3, 4, and 5 because these items are relevant to the adequacy of the Defendant’s policies and procedures to prevent alleged abuse.
Plaintiff’s (Daniel Palacios) Opposition to Defendant’s Motion to Strike Portions of Plaintiff’s First Amended Complaint (Opposition), filed on 7-13-22 under ROA No. 93, does not oppose the Motion as to Item Nos. 6, 7, and 8. (Opposition; 7:1-6).
Based on the above, the court DENIES Defendant’s (Santa Ana Unified School District) Motion to Strike Portions of Plaintiff’s First Amended Complaint for Damages, filed on 4-15-22 under ROA No. 51, as to Item Nos. 1, 2, 3, 4, and 5. The court GRANTS the Motion as to Item Nos. 6, 7, and 8 with 15 days leave to amend from the date of service of the notice of the court’s ruling. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)
Plaintiff is to give notice.