Case Number: BC690786 Hearing Date: August 07, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT; DEMURRER OVERRULED

I. BACKGROUND

On January 18, 2018, plaintiff Leila Afshari (“Plaintiff”) filed a complaint against defendants City of Calabasas (“City”), Las Virgenes Unified School District (“LVUSD”), County of Los Angeles (“County”), Christopher D’Alonzo (“D’Alonzo”), Sam Doe and Does 1 to 100. On June 13, 2018, Plaintiff filed a first amended complaint (“FAC”) after the Court partially sustained LVUSD’s demurrer. The FAC alleges causes of action for (1) negligent entrustment of dangerous instrumentality, (2) negligent supervision and (3) negligent training. All three causes of action are based on Government Code section 815.2.

The FAC in relevant part alleges the following: 1) Plaintiff, a middle school student, was required to participate in a physical education class at school and she was injured when Sam Doe, a fellow student, purposefully threw a hard cricket ball at Plaintiff as they were learning how to play cricket. (FAC ¶ 19); 2) D’Alonzo, LVUSD’s employee, was supervising the students when this injury occurred. (Id.); 3) The defendants knew or should have known that the hard cricket ball that was used by the students was intended for use by cricket players of an advanced knowledge of the sport and that these hard cricket balls were unfit and unsafe for beginner participants such as Plaintiff and Sam Doe and thus the cricket balls constitute dangerous instrumentality. (Id. ¶ 22); 4) The defendants knew that D’Alonzo was incompetent or unfit to supervise the use of a hard cricket ball and that such a dangerous instrumentality would inflict serious bodily injury to students such as Plaintiff. (Id.); and 5) D’Alonzo was inadequately trained and lacked the requisite skill or competence to properly use a hard cricket ball and yet D’Alonzo negligently permitted middle school students to use such cricket balls. (Id.)

On June 28, 2018, LVUSD filed a demurrer to the FAC. On July 24, 2018, Plaintiff filed an opposition.

II. LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that LVUSD has complied with the meet and confer requirement. (See Decl. Cheung.)

b. First Cause of Action: Negligent Entrustment of Dangerous Instrumentality

LVUSD first contends that the first cause of action fails because no statute, including Government Code section 815.2 authorizes a claim for negligent entrustment of a dangerous instrumentality against a public entity. Plaintiff opposes on the ground that the FAC clearly states statutory authority by way of Government Code section 815.2.

The LVUSD is a public entity. Government Code § 811.2 broadly defines the term public entity to include the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.

Under the Government Claims Act, a public entity is not liable for an injury except as otherwise provided by statute. (Gov’t Code § 815; State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) Thus, all government tort liability must be based on statute. (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932.) In the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. (Id. at 932.)

Because all liability under the Government Claims Act is statutory, “the general rule that statutory causes of action must be pleaded with particularity is applicable.” (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Thus, “to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a government agency can only be created by statute . . ., the statute . . . claimed to establish the duty must at the very least be identified.” (Id. at 802.)

Here, the FAC cites to Government Code section 815.2 as the statutory basis for the first cause of action. (FAC ¶ 21.) The Court finds that Government Code section 815.2, which holds a public entity vicariously liable for any injury which its employee causes, is a proper basis for Plaintiff’s first cause of action. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; see also Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) Notably, Government Code section 815.2 by its very nature imposes liability based on the doctrine of respondeat superior. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Here, Plaintiff is alleging liability against LVUSD based on LVUSD’s employees entrusting hard cricket balls to D’Alonzo despite knowing that D’Alonzo was untrained and thus unfit to use such hard cricket balls. (FAC ¶¶ 21-23.) The FAC further alleges that based on this negligent entrustment, D’Alonzo provided Sam Doe with a hard cricket ball thereby proximately causing the injury to Plaintiff. (Id.) These allegations are sufficient to invoke liability based on Government Code section 815.2. Accordingly, the Court finds LVUSD’s first argument is misplaced.

Next, LVUSD contends that the first cause of action fails because there is no allegation that Sam Doe was a danger to others. The opposition seems to argue that the FAC sufficiently alleges a claim for negligent entrustment of a dangerous instrumentality because the FAC alleges that LVUSD negligently entrusted hard cricket balls to D’Alonzo who was incompetent and unfit to use such dangerous instrumentalities and that D’Alonzo then provided these dangerous instrumentalities to novice minor students.

One is liable for injuries arising out of the negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to himself or herself, or others. (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 115.)

Here, the Court finds that the allegations in the FAC sufficiently state a cause of action for negligent entrustment of a dangerous instrumentality. First, the Court points out that Plaintiff’s theory is not entirely based on the conduct of Sam Doe, rather it is based on LVUSD entrusting hard cricket balls to D’Alonzo for use in teaching beginner middle school students how to play cricket despite the fact that LVUSD knew (1) that D ’Alonzo was unfit to use and supervise the use of such cricket balls because he was untrained and (2) that the use of the cricket balls could and would inflict serious bodily injury to middle school students such as Plaintiff. (FAC ¶ 22.) The FAC further alleges that LVUSD’s act of entrusting hard cricket balls to D’Alonzo who then provided these cricket balls to beginner middle school students proximately caused the injury to Plaintiff. (Id. ¶¶ 22-23.) These allegations provide that LVUSD knew that D’Alonzo posed a danger to others because he was unfit to use these cricket balls and furthermore he was unfit to teach and supervise others to use these cricket balls. Based on the allegations in the FAC, the Court finds that the FAC sufficiently alleges that LVUSD through its employees negligently entrusted hard cricket balls to D’Alonzo whose actions then proximately caused Plaintiff’s injury.

With regard to Sam Doe, the FAC alleges that the hard cricket balls were intended to be used by advanced cricket players rather than beginners such as middle school students (e.g. Sam Doe and Plaintiff). (FAC ¶ 22.) A reasonable inference based on these allegations is that Sam Doe and the other students posed a threat to not only each other but themselves when provided with a hard cricket ball that was meant for advanced cricket players. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 [stating that in reviewing a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.].) Regardless, as analyzed above, the FAC states a claim based on the negligent entrustment of the cricket balls to D’Alonzo. Thus, the Court finds LVUSD’s second argument unconvincing.

Finally, LVUSD argues that the first cause of action fails because a hard cricket ball does not constitute a dangerous instrumentality. Plaintiff opposes on the ground that there is no evidence before the Court which establishes that a professional grade hard cricket ball is not considered a dangerous instrumentality when used by novice minor children cricket participants.

The Court agrees with Plaintiff in that LVUSD has failed to provide the Court with authority which provides that as a matter of law, the Court can determine at this stage that a hard cricket ball intended to be used by advanced cricket players does not constitute a dangerous instrumentality. The Court notes that in Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 116, the court of appeal stated that firearms, ammunition and automobiles are dangerous instrumentalities and that negligently entrusting these items to certain individuals may lead to liability for injuries to third persons. However, Jacoves does not hold that dangerous instrumentalities are exclusively limited to firearms, ammunition and vehicles and LVUSD has failed to provide authority which provides that that dangerous instrumentalities are exclusively limited to these three areas. Thus, it is improper for the Court to determine at the demurrer stage that the hard cricket ball that was used to injure Plaintiff does not constitute a dangerous instrumentality as a matter of law. Thus, the Court finds LVUSD’s third argument unconvincing.

Accordingly, the demurrer to the first cause of action is OVERRULED in entirety. LVUSD is ordered to file an answer within ten days of this order.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.