Case Number: BC634008??? Hearing Date: May 23, 2017??? Dept: S27
INTRODUCTION
Defendant Long Beach Unified School District (?LBUSD?) demurs to the First, Third, and Sixth Causes of Action in Plaintiff V.F.?s complaint alleging:
- Violation of Government Code section 815.2;
- Breach of Mandatory Duty (Government Code section 815.6);
- Dangerous Condition of Public Property;
- Assault and Battery;
- Negligence; and
- Violation of the Bane Act (Civil Code 52.1).
FACTUAL ALLEGATIONS
Plaintiff, who at relevant times (2014-2015) was a student at LBUSD?s Franklin Middle School, alleges she was the victim of bullying.
She alleges she was ?picked on, harassed, bullied, physically and emotionally abused by students at the school.? (Paragraph 12)? One particular antagonist was student V.M. who extended the bullying to on-line postings through social media websites such as Facebook.?V.M. sent Plaintiff messages calling her a ?slut? and ?hoe? and stating that no one liked Plaintiff and she should kill herself. (Paragraph 13)
The essential allegations of the complaint concern the events of February 25, 2015.? After regular school hours (approximately 4:15 p.m.), Plaintiff went to the school auditorium where she believed detention was being held.? Six students, including V.M., surrounded Plaintiff.? The crowd swelled to 20 students ?who appeared to be aware of the assault about to occur and excited by the violence unfolding before them.? (Paragraph 14)? V.M. is described as being ?much bigger, older and heavily built? than Plaintiff.? Without provocation V.M. ?proceeding to beat down, punch, drag, kick, and aggressively attack Plaintiff??? Several other students joined in beating Plaintiff.? The attack was recorded by someone?s cellphone and posted on social media.
The attack allegedly occurred outside the classroom of teacher ?Ms. Schaffer.?? A Safety Officer identified as ?Betty? was on campus.?Betty and Ms. Schaffer arrived at the scene of the beating after it was over.? The ?gang? had already dispersed.
Plaintiff alleges the incident was loud, boisterous, causing a very loud commotion, yet no school official ever came to investigate until it was over.
On February 26, 2015 a meeting was held between Plaintiff?s mother, an Assistant Vice-Principal, a counselor, and two other individuals who represented they had involvement with school safety.? The video of the attack was played.? The Assistant Vice-Principal told Plaintiff?s mother that because the events were after regular school hours, the school had no responsibility to supervise students.? Plaintiff?s mother was told that V.M. would be removed from Franklin, but V.M. continued to ?threaten and torment? Plaintiff.? (The complaint is silent about whether the continuing threats were in person or on-line.)
As a result of the bullying and continued harassment, Plaintiff became depressed and eventually attempted suicide by drinking bleach; fortunately, the attempt was unsuccessful.
Plaintiff alleges another incident on July 9, 2015, when an ?intimate male friend? posted a nude picture of Plaintiff on Facebook.
ANALYSIS
Violation of Government Code section 815.2
LBUSD is a government entity which is only subject to liability under express statutory provisions. (Government Code section 815)
Government Code section 815.2 imposes vicarious liability upon a public entity for the negligence of public employees:
?(a) 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.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.?
LBUSD appears to argue that is not enough to cite this statute and conclude that a public employee had a duty.? LBUSD argues that there must be an underlying statute imposing liability on the employee.? A ?Negligence Standard? is argued to be improper.
Plaintiff is correct that a ?Negligence Standard? is sufficient.
?The principles pertaining to a school district?s duty to supervise students are well established.? ?It is the duty of the school authorities to supervise at all times the conduct of the children on the school rounds and to enforce those rules and regulations necessary to their protection. [Citations.]? The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.??
(M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal. App. 4th 508, 517)
?The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties.? This uniform standard to which they are held is that degree of care ?which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.??
(Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal. 3d 741, 747)
There are sufficient facts to constitute negligent omissions by school personnel.
The demurrer to the First Cause of Action is overruled.
Dangerous Condition of Public Property
Government Code section 835:
?Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.?
LBUSD is correct that all statutory claims, and claims against public entities in particular, must be pled with factual specificity which satisfies each element necessary for statutory liability.? A Plaintiff may not generally plead a ?dangerous condition? but must clearly identify what constituted a dangerous condition at the time of the injury.
Plaintiff contends this standard has been satisfied, referencing paragraphs 48, 49, 51, and 52.
The Court disagrees.? For instance, Paragraph 49 alleges the area was unsupervised and ?lacked proper visibility.?? This begs the question of whether a school must supervise each area of a campus simultaneously and what ?proper visibility? means.? Visible to whom and for what purpose?? There is no allegation that that there have been prior similar incidents in the area where Plaintiff was attacked.? The allegations of notice are conclusory and do not describe with particularity how notice was imparted and to whom it was imparted.
The demurrer to the Third Cause of Action is sustained with 20 days leave to amend.
The Bane Act
The Bane Act is at Civil Code section 52.1:
?(a) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.? An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000).? If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.?
LBUSD correctly observes that there are no allegations that any LBUSD employee interfered with Plaintiff?s rights by threatening or committing violent acts.
Plaintiff argues her ?constitutional right to reasonable safety while at school? was interfered with.? Overlooking the fact that she offers no authority that such a right has constitutional dimensions, the allegation that LBUSD was aware of a ?culture of violence? does not equate to interference with that right by LBUSD through threats, intimidation or coercion.
The demurrer to the Sixth Cause of Action is sustained without leave to amend.
Moving party is to give notice.