Judge William A. Crowfoot, Case Number: 23AHCV00515, Date: 2023-10-09 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00515, Date: 2023-10-09 Tentative Ruling

On March 9, 2023, plaintiffs Quan Zheng and Aaron Zheng (collectively, “Plaintiffs”) filed this action against Yiliang Zha, San Marino Unified School District (“District”) and the City of San Marino (“Defendant”). On June 30, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”). Plaintiffs allege that on September 20, 2022, “[Zha], a 51-year old male, punched the minor Plaintiff [Aaron Zheng] in the head during afterschool pickup, sending the 12-year-old to the hospital.” (FAC, ¶ 1.) Quan Zheng has been appointed as Aaron Zheng’s guardian ad litem. Plaintiffs assert claims for general negligence (First Cause of Action) and negligent selection, retention and supervision (Second Cause of Action) against Defendant.

On July 25, 2023, Defendant filed a demurrer. On July 28, 2023, Defendant filed an amended notice of the demurrer.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Public entities cannot be liable for common law theories of general negligence. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section 815 abolishes common law tort liability for public entities”].) Therefore, liability against a public entity must be authorized by statute. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A public entity is not liable for an injury . . . except as otherwise provided by statute”].) “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. Citation]. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

Defendant argues that the First and Second Causes of Action fail to state sufficient facts because Plaintiffs do not allege a statutory basis for liability. Defendant also argues that a public entity is not liable for failing to protect individuals against crime and that it owes no duty to Plaintiffs because there was no dangerous condition of public property and or special relationship with Plaintiffs.

It is undisputed that Plaintiffs do not identify any statutory basis in the FAC for imposing liability on Defendant. A demurrer may be sustained where the plaintiff fails to allege a statutory basis for liability against a public entity. (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863-864 [affirming trial court’s sustaining a demurrer without leave to amend as to four tort causes of action where plaintiff failed to allege statutory basis—i.e., mandatory duty under Government Code section 815.6—for liability against public entity].) Therefore, Defendant’s demurrer is SUSTAINED.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs essentially argue for an opportunity to amend the complaint by arguing that Defendant owes a duty of care based on Government Code section 815.2, which addresses the vicarious liability of public entities, and Education Code sections 32280-32289, which requires school districts to develop a “comprehensive school safety plan that addresses the safety concerns identified through a systematic planning process.” (Opp., p. 3.) Although Plaintiffs acknowledge that the Education Code sections cited only apply to school districts, Plaintiffs claim that any duty owed by a district is extended to Defendant because the parking lot used for afterschool pickup is located between Crowell Library and Huntington Middle School; therefore, Plaintiffs argue that both the District and Defendant exert control over this area and equally owe duties of care to students like Aaron Zhang. Additionally, Plaintiffs claim that whether Defendant can be held liable for third-party criminal conduct is a factual issue because it depends on whether Zha’s attack was foreseeable; Plaintiffs add that school fights occur at a very common level, therefore violence on campus is foreseeable for all students. (Opp., pp. 5-6.)

Defendant reiterates in its reply brief that Plaintiffs cannot allege a claim for dangerous condition of public property (Govt. Code § 835, et seq.) or impose vicarious liability for the act or omission of a public employee (Govt. Code § 815.2) without a special relationship. However, given that these statutes and allegations have been raised for the first time in Plaintiffs’ opposition brief, the Court grants 20 days’ leave for Plaintiffs to amend their First and Second Causes of Action against Defendant.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.