Case Name: John Doe v. Orchard School District, et al.
Case No.: 1-14-CV-264298
Demurrer to, and motion to strike portions of, the Complaint of Plaintiff John Doe, filed by Defendants Orchard School District and Larry Peoples
According to the allegations of the complaint, on April 9, 2013, Plaintiff, a minor and enrolled pupil at Orchard Elementary School (“the School”), was sexually assaulted and/or molested on the grass field at the School. (Complaint, ¶3.) Specifically, students held Plaintiff in place while a female student pulled his pants down and licked his penis area. (Id.) Plaintiff immediately reported the incident to a yard duty staff member. (Id.) Defendant Orchard School District (“the District”) is under a mandatory duty to protect students on school premises. (Complaint, ¶¶8, 11.) The District and/or its employees, including defendant Larry Peoples, Campus Safety/Activities Facilitator and Yard/Cafeteria Supervisor, had an obligation to properly act upon allegations of inappropriate behavior towards children and to report suspected child abuse to authorities. (Complaint, ¶¶4, 5, 10.)
All parties involved in the incident were interviewed and their parents notified on April 9, 2013. (Complaint, ¶12.) Police were not contacted by School and were only notified by Plaintiff’s mother on April 10, 2013. (Id.) School administration did not reprimand any of the children or supervisory personnel involved and did not take any measures to protect Plaintiff. (Complaint, ¶13.) Plaintiff’s parents removed him from School since the issue was not being addressed and Plaintiff suffered from further fear, distress, embarrassment, and emotional upset as a result. (Id.)
Prior to April 9, 2013, District, by and through its employees (including Peoples), knew or should have known that the female student who assaulted Plaintiff had been exposed to sexual behavior and/or exhibited sexual proclivities in the past. (Complaint, ¶14.) Specifically, Peoples knew the female assailant slept in a room at home where she observed her sister engaging in sexual activities. (Id.)
In February 2013, Peoples observed Plaintiff and another boy pushing each other. Peoples falsely reported Plaintiff as using a derogatory name/ slur when Peoples did not actually hear Plaintiff utter a derogatory name/ slur. (Id.)
On April 24, 2014, Plaintiff, through his guardian ad litem (father), filed a complaint against District and Peoples asserting claims for:
(1) Breach of Mandatory Duties [Duty to Supervise and Protect Students; Duty to Report Suspected Child Abuse; Duty to Train Staff in Preventing, Detecting, and Reporting Abuse]
(2) Negligence of Public Employees
On July 21, 2014, Defendants District and Peoples filed the two motions now before the court: a demurrer and motion to strike portions of Plaintiff’s complaint.
On August 8, 2014, Plaintiff filed opposition to both of Defendants’ motions.
- Demurrer
- Breach of Mandatory Duties
“Except as otherwise provided by statute[,] [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, §815, subd. (a).) “One of the provisions ‘otherwise’ creating an exception to the general rule of immunity is Government Code section 815.6, which provides: ‘Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.’” (State of California v. Superior Court (Perry) (1984) 150 Cal.App.3d 848, 854 (Perry).)
“Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Perry, supra, 150 Cal.App.3d at p. 854; citations omitted.)
In demurring, Defendants challenge Plaintiffs’ allegation that Education Code section 44087 and Penal Code sections 11164, et seq., set forth mandatory duties in this case. However, as Plaintiff points out in opposition, these are but two of the numerous enactments that Plaintiff relies upon in asserting his claim for breach of mandatory duties. A defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action.”)
Accordingly, the demurrer to the first cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of mandatory duties is OVERRULED.
- Negligence
“While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty 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. [Citations.]’ [Citations.] 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.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 869 (Hart).)
“[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 under Civil Code section 1714, 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. [Footnote.] This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 128–129, 141–148 [107 Cal. Rptr. 3d 182]; M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 514–515, 517–521)…” (Hart, supra, 53 Cal.4th at pp. 869 – 870.)
In demurring, Defendants contend the sexual assault on Plaintiff was not foreseeable because there are no allegations of any prior sexual assault or threats or complaints thereof. However, “[f]oreseeability is determined in light of all the circumstances and does not require prior identical events or injuries.” (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 146.) Defendants also contend the incident was not foreseeable in light of Plaintiff’s allegation that other students shielded the alleged assault form view. Defendants suggest the inference to be drawn from this allegation is that the alleged incident occurred too quickly for any District employee to observe or respond. Defendants rely on Thompson v. Sacramento City Unified School District (2003) 107 Cal.App.4th 1352, 1372 (Thompson), where the court wrote, “Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. [Citation.] When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery.” Defendants’ reliance on Thompson is misplaced as Thompson addressed this issue at the summary judgment stage, not the pleading stage.
Accordingly, the demurrer to the second cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is OVERRULED.
- Motion to Strike Portions of Plaintiff’s Complaint
- Paragraphs 5, 6, 7, 9, and 14 (p. 6, lines 3 – 6)
A motion to strike may be brought to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., §436.) Irrelevant includes “immaterial allegations.” (Code Civ. Proc., §431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., §431.10, subd. (b).)
Defendants contend the allegations found at paragraphs 5, 6, 7, 9, and a portion of paragraph 14 constitute irrelevant matter as they are not essential to the statement of either of the two claims asserted. In opposition, plaintiff contends the paragraphs are relevant to stating facts which give rise to a duty in his claim for negligence and sets forth the enactments which serve as the basis for his claim of breach of mandatory duty. Plaintiff’s position is well taken.
Accordingly, Defendants’ motion to strike paragraphs 5, 6, 7, 9, and 14 is DENIED.
- Attorney’s fees
The general rule of Code of Civil Procedure section 1021 is “that each party is to bear his or her own attorney fees unless a statute or the agreement of the parties provide otherwise.” (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504 (Gray).) In the complaint, Plaintiff alleges Code of Civil Procedure section 1021.5 as the statutory basis for recovery of attorney’s fees. “Code of Civil Procedure section 1021.5 ‘is a codification of the private attorney general doctrine adopted by the California Supreme Court.’ [Citation.] Section 1021.5 provides in relevant part: ‘Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.’” (Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 496, fn. 15.)
Defendants move to strike Plaintiff’s claim for attorney’s fees on the basis that there is only a minimal public benefit in contrast to plaintiff’s own pecuniary interest in the litigation. However, “ ‘[t]here is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a … judgment … .’ [Citation.] As there was no requirement they be pled at all, the trial court erred in striking Snatchko’s prayer for attorney fees based on a failure to adequately plead their basis… .” (Snatchko, supra, 187 Cal.App.4th at p. 497.)
Accrordingly, Defendants’ motion to strike paragraph 24 of the complaint and paragraph 4 of the prayer for relief is DENIED.
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