2018-00239281-CU-PO

Koltyn Lee vs. Barrett Ranch Elementary School

Nature of Proceeding: Hearing on Demurrer

Filed By: DeHoff, Kevin J.

If oral argument is requested, the matter will be heard at 2:00 p.m. in this department on Tuesday, January 22, 2019. If this date is not convenient, the

parties shall meet and confer and contact the court clerk with a new date by 4:00 p.m. on Thursday, January 17, 2019.

Defendant Dry Creek Joint Elementary School District generally demurs to the complaint on the basis that the first cause of action for negligence and the second cause of action for premises liability do not state facts sufficient to constitute a cause of action and on the basis that Barrett Ranch Elementary School is an improperly named Defendant and should be dismissed. Plaintiff failed to oppose the demurrer. The demurrer is sustained, with leave to amend.

The form complaint described the incident at issue as follows:

On August 30, 2017, Koltyn Lee was a Kindergarten student at Barrett Ranch Elementary School. He was participating in a classroom activity that required the use of scissors when he was cut by another student.

Defendants failed in their duty to Plaintiff to provide a safe learning environment and to enforce rules and regulations necessary to Plaintiff’s protection.

The first cause of action is for general negligence. The second cause of action is for premises liability on the basis of negligence, willful failure to warn, and dangerous condition of public property. Of note, liability of a public entity is strictly statutory, and plaintiff has alleged no statute imposing a mandatory duty or other source of liablity.

The demurrer is sustained for the reasons stated in Defendant’s memorandum of points & authorities. The lack of opposition is deemed a concession of the merits of the demurrer. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 (where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground).) The first cause of action is not sufficiently pled to provide a basis for a finding of negligence. The second cause of action fails to allege a cause of action because it does not appear to involve a condition of public property. Barrett Ranch Elementary School is a subsidiary of Dry Creek Joint Elementary School District and not properly named as a defendant. (See Hovd v. Hayward Unified. Sch. Dist. (1977) 74 Cal.App.3d 470, 472 (public agency “is clearly directed toward the governing body of a public agency, and not to its subdivisions”).)

As this is the first challenge to the pleading on which the Court has ruled, leave to amend is granted.

Plaintiff may file and serve and amended complaint no later than January 28, 2019. Defendant(s) shall file and serve their response within 30 days thereafter, 35 says if the amended complaint is served by mail as modified by the Code of Civil Procedure section 430.41 extension as necessary.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.