Case Number: BC533897??? Hearing Date: May 11, 2016??? Dept: 98
JOCELYN DOE, by and through her
Guardian ad Litem, MIRNA ACEVES,
Plaintiff,
vs.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Defendant.
CASE NO: BC533897
[TENTATIVE] ORDER RE: DEFENDANT?S DEMURRER TO COMPLAINT AND MOTION TO STRIKEDept. 98
1:30 p.m.
May 11, 2016
On January 23, 2014, Plaintiff Jocelyn Doe, by and through her Guardian ad Litem, Mirna Aceves (?Plaintiff?) filed this action against Defendant Los Angeles Unified School District (?Defendant?) alleging causes of action for: 1) Negligent Hiring, Retention, and Supervision; 2) Negligence; and 3) Childhood Sexual Abuse. Defendant now demurs to Plaintiff?s second and third causes of action. Defendant also moves to strike certain portions of Plaintiff?s Complaint
Demurrer
When any ground for objection appears on the face of a complaint, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. ?? 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., ?? 430.10(e)-(f). A court ?must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff?s contentions nor conclusions of law or fact.? Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. A demurrer may be sustained as to a claim that duplicates another. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501.
Defendant demurs to Plaintiff?s second cause of action for negligence on the grounds that Plaintiff has not alleged a statutory basis for the claim and the cause of action is duplicative of Plaintiff?s first cause of action. Defendant demurs to Plaintiff?s third cause of action for childhood sexual abuse on the grounds that Plaintiff has not alleged a statutory basis for the claim and Defendant cannot be held vicariously liable for the alleged abuse of its employee.
All government tort liability must be based on statute. Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932. As to governmental liability, facts showing the existence of the claimed duty and liability must be alleged, and ?the statute or ?enactment? claimed to establish the duty must at the very least be identified.? Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.
?It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.? M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517. ?California courts have long recognized that a student may recover for injuries proximately caused by a breach of this duty to supervise.? Id., at 518. The standard of care imposed upon school personnel is that degree of care which an ordinary prudent person, charged with comparable duties, would exercise under the same circumstances. C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869. Though a school district may be held liable under a negligent hiring and supervision theory, it is not vicariously liable for the sexual misconduct of a teacher, as such conduct goes beyond the scope of the teacher?s employment. Id., at 875.
The Court finds that Plaintiff?s second and third causes of action fail to state sufficient facts. Plaintiff has not properly alleged a statutory basis for those claims. Further, Plaintiff?s second cause of action is duplicative of her first, and her third cause of action is improper, as Defendant cannot be held vicariously liable for the alleged sexual abuse of its employee.
The burden is on the complainant to show that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78. As Plaintiff has not opposed Defendant?s Demurrer, the Demurrer is SUSTAINED without leave to amend.
Motion to Strike
Plaintiff?s Complaint is based on the alleged misconduct of Martin Springer (?Springer?). Plaintiff includes several allegations related to other employees of Defendant and abuse of other students. Defendant moves to strike these allegations on the grounds that they are irrelevant, immaterial, and inflammatory. Defendant also moves to strike Plaintiff?s claims that Defendant is vicariously liable for and ratified the alleged misconduct of Springer, that Defendant owed a ?special duty? over and above the duty of reasonable care, that Defendant had a duty to report activity under Penal Code sections 11164, et seq., and Plaintiff?s prayer for prejudgment interest.
The Court agrees that Plaintiff?s allegations regarding other teachers, including Mark Berndt and Paul Chapel III, are irrelevant to Plaintiff?s Complaint for the alleged abuse of Springer. Plaintiff does not allege that these other teachers had any involvement with the alleged abuse against her. Therefore, these allegations should be stricken. Further, as discussed above, Defendant cannot be held vicariously liable for sexual misconduct of Springer and the duty owed by Defendant is that of an ordinary prudent person in similar circumstances. Lastly, the Penal Code sections cited by Plaintiff impose no duty upon Defendant, and Plaintiff?s damages are not certain or capable of being made certain. Therefore, Plaintiff?s allegations of vicarious liability, special duty, a duty to report, and prejudgment interest should also be stricken from the Complaint.
In light of the foregoing, Defendant?s unopposed Motion to Strike is GRANTED.
Dated this 11th day of May, 2016
Hon. Holly J. Fujie
Judge of the Superior Court