Case Number: BC509181    Hearing Date: July 28, 2014    Dept: 91

Demurrer to Plaintiff’s First Amended Complaint by Defendant, Little Lake City School District, filed on 2/21/14, is SUSTAINED in part and OVERRULED in part, with 30 days leave to amend.

Demurrer is sustained as to the first cause of action for negligence on grounds of uncertainty as it appears to merge two separate claims into one claim for negligence. Plaintiff alleges a claim for negligent supervision and a claim for dangerous condition of public property under Gov Code § 835.

Plaintiff has to allege a statutory basis for the negligent supervision claim. She relies on Gov Code § 815.2(a), which makes the government entity vicariously liable for the conduct of the employee, but there is still no allegation supporting a statutory duty owed to the Plaintiff. Plaintiff has to allege with particularity, facts to support the existence of a statutory duty. Searcy v. Hemet Unified School Dist., 177 Cal. App. 3d 792, 802 (Cal. App. 4th Dist. 1986).

Defendant’s claim that Plaintiff must specifically identify the employee who failed to supervise is unavailing. The case on which Defendant relies did not state that the person must be identified at the pleading stage. That case concerned an appeal after a jury verdict, and whether vicarious liability could be imposed without evidence identifying the employee whose conduct was at issue.
Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1113 (Cal. App. 1st Dist. 2004)

Plaintiff has alleged ultimate facts necessary to support a claim for dangerous condition of public property under Gov Code § 835. Brenner v. City of El Cajon, 113 Cal. App. 4th 434, 439 (Cal. App. 4th Dist. 2003), FAC ¶ 27.

Demurrer to the 2nd cause of action for Negligent Interference with Prospective Economic Relations is SUSTAINED. The statute on which Plaintiff relies does not impose a duty on Defendant. Plaintiff cites Education Code § 49472, which authorizes the school to make insurance available. It does not allege any duty owed by the Defendant to Plaintiff to provide that insurance.
Cal Ed Code § 49472.

The claim requires the existence of an economic relationship between Plaintiff and the insurance company in which there was a reasonable expectation of economic benefits. Additionally, Defendant must have owed the Plaintiff a duty of care. Facts supporting that duty are not alleged.
North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 786; Stolz v. Wong Communications Limited Partnership (1994) 25 Cal. App. 4th 1811, 1825; Ales-Peratis Foods Internat. v. Am. Can Co., 164 Cal. App. 3d 277, 287 (Cal. App. 2d Dist. 1985).

The alleged facts do not establish that an economic relationship existed between Plaintiff and the insurance company, in which Defendant could interfere. Plaintiff alleges that Defendant did not turn in Plaintiff’s enrollment form. FAC ¶ 33. Plaintiff alleges that she had an insurer/insured relationship, which is contrary to the alleged facts stating her enrollment form was never forwarded. FAC ¶ 37. The facts do not support that Defendant owed a duty to Plaintiff. Education Code § 49472 authorizes, but does not require Defendant to make insurance available.

Defendant argues that Plaintiff has not shown proof she was actually damaged because she is liable for medical bills. Plaintiff does not have to show proof at this stage. A demurrer is based only on the allegations of the pleading, not Plaintiff’s ability to prove them. Saunders v. Superior Court, (1994) 27 Cal. App. 4th 832, 840.