Case Number: BC653650 Hearing Date: June 27, 2018 Dept: 4

MOVING PARTY: Defendant, Bellflower Unified School District

RESPONDING PARTY: Plaintiff, Henry Barragan (a minor, by and through his guardian ad litem, Liliana Rodriguez)

The court considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff Henry Barragan (“Plaintiff”), by and through his guardian ad litem Liliana Rodriguez, filed a Complaint on March 8, 2017 alleging causes of action for (1) premises liability and (2) negligence against several defendants including Bellflower Unified School District (“Defendant”). On December 19, 2017, Defendant demurred to the initial Complaint. On February 23, 2018, the Court sustained the demurrer with leave to amend. On March 15, 2018, Plaintiff filed a First Amended Complaint (“FAC”), alleging (1) general negligence and (2) premises liability. On April 19, 2018, Defendant filed a demurrer to the FAC. On June 6, 2018, Plaintiff filed his opposition. On June 12, 2018, Defendant filed its reply.

Plaintiff’s FAC arises from bullying that occurred at his school, Thomas Jefferson Elementary School (the “school”), which is operated by Defendant. (FAC ¶ 3.) Plaintiff alleges that throughout the 2015-2016 academic year, his classmates constantly bullied him. (FAC ¶ 11.) Plaintiff alleges that on March 8, 2016, this bullying culminated with a physical attack while he was walking to his next class at his school (the “incident”). (FAC ¶¶ 11-14.) This resulted in serious physical and mental injuries and hospitalization. (FAC ¶¶ 15-16.) Plaintiff alleges that Defendant was aware of the bullying, took no action to discourage further bullying, and failed to supervise Plaintiff’s classmates during the incident. (FAC ¶¶ 13, 18-25, 28-30.) Plaintiff also maintains that this failure constituted a dangerous condition of the property. (FAC ¶¶ 36-40.)

Defendant’s Demurrer to the FAC

Defendant demurs to the entire FAC. First, Defendant argues that the demurrer should be sustained because the new allegations alleged in the FAC are a sham. Defendant contends that the FAC includes substantively new allegations compared to Plaintiff’s Government Claim and initial complaint. Defendant moreover asserts that certain facts alleged in the FAC, including the foreseeability of the misconduct and pattern of harassment, were not present in the claim and are barred because the complaint must be factually consistent with the complaint. Defendant additionally argues that the FAC is deficient because Plaintiff has not alleged specific facts regarding Defendant’s acts or omissions, including, any individual at the school who was aware of the bullying and knowledge of the dangerous conditions. On this same point, Defendant sees Plaintiff’s allegations regarding Defendant’s alleged bullying policies as unsupported. Defendant also finds the complaint fatally uncertain. Finally, Defendant argues that the FAC fails to state a cause of action for premises liability because there is no dangerous condition identified or a statutory basis for the claim.

Plaintiff argues that the new allegations of the FAC are not subject to the sham pleadings doctrine. Plaintiff asserts that the FAC instead provides further details of the allegations of the complaint without altering the types of allegations or the parties that they are asserted against, as the allegations do not materially differ from the prior pleadings. The original complaint broadly alleged causes of action for negligence and premises liability against Defendant, and the FAC simply adds details, not to avoid defects but to add facts to the broad allegations. Plaintiff further argues that the FAC and Complaint are not limited to the exact words of the government claim. Plaintiff states that the purpose of the claim was to provide Defendant with sufficient information to investigate the claim without the expense of litigation, and the FAC simply expands on the same information regarding the nature of the negligence and premises liability. Plaintiff also contends that the FAC sufficiently states a cause of action against Defendant, and Defendant requires too much specificity for the foreseeability at the demurrer stage. Plaintiff declares that it is reasonably foreseeable that students attending a school could be subject to bullying without proper policies and supervision to minimize that risk. Plaintiff asserts that the lack of supervisors at the time of the incident coupled with the years of bulling create a foreseeable harm. Plaintiff concludes that disposing of the case at this early stage of litigation would be improper, and the issue of foreseeability is to be later argued later and determined by a jury.

Defendant replies and states that Plaintiff misstates the standard of demurrer for public entities, which require material facts to be plead with particularity. Defendant argues that the FAC fails to identify public entity personnel that failed to perform their duty, and thus the FAC is uncertain. Additionally, Defendant contends that the failure to allege when Plaintiff told Defendant personnel that Plaintiff was in danger and any facts showing the attack was foreseeable renders the FAC uncertain. Defendant reiterates its arguments regarding sham pleading and variance. Defendant also asserts that because the new allegations state that the bullying stated in 2015, that Plaintiff failed to bring his claim for that bullying and the complaint should be barred. Defendant also reiterates that Plaintiff’s new cause of action for premises liability is not a mere variation of negligence since liability is statutory. Additionally, Defendant asserts that the mere fact that elementary schools have bulling does not ipso facto lead to fights and thus are not foreseeable.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “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, supra, 147 Cal.App.4th at 747.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

DISCUSSION

Meet and Confer Requirement

Defense counsel’s declaration explains his meet and confer requests and attempts. (Roche Decl. ¶¶ 1-5.) This satisfies the alternative declaration requirement of CCP section 430.41(a)(3)(B) that “the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

Sham Pleading

Generally, the sham pleading doctrine prohibits a plaintiff from amending a complaint to omit harmful allegations from prior pleadings, without explanation. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) Under the sham pleading doctrine, “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) Where an amended complaint omits harmful allegations without explanation, the Court may take judicial notice of the prior pleadings and disregard any inconsistent allegations in the amended pleading. (Hahn, supra, 147 Cal.App.4th at 751.) The sham pleading doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent correction of ambiguous facts. (Ibid.) Instead, it is intended to enable courts “ ‘to prevent an abuse of process.’ ” (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1390–1391.)

The Court’s ruling on the previous demurrer made it clear that Plaintiff was to clarify the ambiguous facts regarding the tort claim act, how Plaintiff sustained his injuries, and how Defendant was responsible. In the decision, the Court noted that Plaintiff failed to allege whether he complied with the tort claims act, as the initial Complaint was silent on the issue. (2/23/2018 Order Re: Demurrer to Complaint and Motion to Strike p. 4; see Compl. p. 2 ¶ 9.) The Court additionally held that the Complaint was uncertain and did not particularly allege how Plaintiff was injured by Defendant’s maintenance of the premises where Plaintiff sustained his injuries. (2/23/2018 Order Re: Demurrer to Complaint and Motion to Strike p. 5.)

With the FAC, Plaintiff complied with the Court’s order. The FAC now establishes that throughout the 2015-2016 academic year, his classmates constantly bullied him that culminated with the incident which caused serious harm to Plaintiff. (FAC ¶¶ 11-16.) The FAC alleges that Defendant was aware of the bullying, took no action to discourage further bullying, failed to supervise Plaintiff’s classmates during the incident; which also constituted a dangerous condition. (FAC ¶¶ 18-25, 28-30, 36-40.) This expands on and provides additional, non-contradictory allegations of initial complaint’s facts regarding the incident. Moreover, the initial complaint also included a cause of action for premises liability, so Defendant’s contention to the opposite is unfounded. (Compl. p. 4.) While the merits of the allegations may be debatable, they are not “sham” allegations.1

For example, the sham pleading doctrine can be invoked when the newly alleged facts contradict or substantively alter the prior allegations. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379.) The pleadings in Owens were substantially altered when the plaintiff first alleged that the slip and fall occurred on a street adjacent to the supermarket, and then alleged that the slip and fall occurred on the defendant’s premises rather than on the street. (Id. at 384.) This was to avoid demurrer on a premises liability theory. (Ibid.) Absent a satisfactory explanation for the change, the court properly disregarded the sham pleadings. (Ibid.) Such a factual contradiction would clearly invoke the sham pleading rule. In the instant case, such a contradiction does not exist, as the new allegations are additional clarifications of ambiguous facts regarding the nature of the assault, damages, and Government Claim compliance. As such, the Court will not invoke the sham pleading doctrine to ignore the newly pled allegations that were responsive to order on demurrer. Defendant’s demurrer on this basis is OVERRULED.

Variance with Government Claim

Government Code section 945.41 provides that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with section 910 until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board. (Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445; Gov. Code § 945.41.) Government Code section 910, in turn, requires that the claim state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide a general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (Stockett, supra, 34 Cal.4th at 445; Gov. Code § 910.)

The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. (Sockett, supra, 34 Cal.4th at 446.) Consequently, a claim need not contain the detail and specificity required of a pleading, but need only fairly describe what the entity is alleged to have done. (Id.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute should not be applied to snare the unwary where its purpose has been satisfied. (Id.)

Here, Defendant argues that because there is a variance between Plaintiff’s government tort claim, Complaint and the FAC, Plaintiff’s causes of action based outside the Government Code claim should be barred. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431.) However, the claim filed need not be a model of precision legal drafting; it is only meant to provide a¿general description¿of the circumstances of the injury and the damages incurred so that the entity will have sufficient facts to investigate. (Id. at 446-447; see also Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38-42.) Thus,¿variances¿

between the claim’s “general description” and the underlying facts or causes of action pleaded in the complaint are not necessarily fatal. A pleading is in “substantial compliance” so long as the cause of action pleaded alleges a factual basis for recovery that is “fairly reflected” in the written claim. (Stockett, supra, 34 Cal.4th at 445;¿Castaneda v. Department of Corrections & Rehab.¿(2013) 212 Cal.App.4th 1051, 1062;¿Dixon v. City of Livermore¿(2005) 127 Cal.App.4th 32, 39-42.)

Plaintiff’s complaint was attached to the opposition to the demurrer to the initial Complaint. (See 2/13/2018 Opposition Ex. A.)2 The claim states Plaintiff’s name, address, legal representatives, address, date of occurrence, place, circumstances, and nature of the injury. (Id. at p. 1-2.) The claim explicitly states:

“[o]n or around March 8, 2016, [Plaintiff] was walking to class when he was confronted by two bullies. He was thrown to the floor and kicked in the head, stomach, and legs. As a result, [Plaintiff] was hospitalized at Lakewood Regional Medical Center for two days, and then transferred to Kedren Acute Psychiatric Hospital for three days due to an unspecified depressive disorder.”

(Id. at p. 2.)

The claim also stated that the government employees that caused the injury were “Employees of Thomas Jefferson elementary School and Does 1 to 100.” (Ibid.) This is not a significant variation from the facts alleged in either the Complaint or the FAC as to the first cause of action for negligence. (See FAC ¶¶ 11-16.) This claim and the first cause of action are both premised on the same facts that Plaintiff was assaulted at school and that Defendant was responsible based on the negligence of its employees. This provides a “fair basis” for Defendant’s investigation of the claim as to the first cause of action. However, Defendant correctly identifies that this is not a fair reflection of the premises liability claim.

Based on Plaintiff’s the facts of the initial government claim, the factual basis for any premises liability theory was not fairly reflected. Firstly, the claim does not state any recognized factual basis for premises liability against a public entity. (See Fall River, supra, 206 Cal.App.3d at 435.) The Court will note that the initial complaint and the FAC were unclear as to the exact theory of liability for the premises liability claim. Secondly, Plaintiff has not alleged a statutory basis for liability, and the Court is uncertain if one exists against Defendant in the case at hand, as will be discussed further below. Significantly different and additional facts would therefore need to be alleged in a future amended pleading to establish liability against Defendant under, for example, Government Code section 835. (See also Govt. Code § 830(a).) Thus, the Court cannot find a reasonable probability of successful amendment even if Plaintiff could allege additional facts as to that statute due to Plaintiff’s failure to allege those facts in the government claim.

Accordingly, Defendant’s demurrer is OVERRULED to the first cause of action, and SUSTAINED without leave to amend as to the second cause of action.

First Cause of Action – General Negligence

Defendant argues that the FAC’s claim for negligent supervision is deficient because Plaintiff did not specifically allege facts showing that Defendant’s acts or omission caused Plaintiff’s injuries under Government Code section 815.2(a).3 Particularly, Defendant argues that the allegations regarding foreseeability are not pled with particularity, as governmental statutory claims must be. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

California Government Code section 815 provides that “[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” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Government Code section 815.2 states:

“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.”

Under Gov. Code section 815.2, where a legal duty is not created by statute, the question of whether a legal duty exists is analyzed under general principles of tort law. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1093 [disapproved of on other grounds]; see Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607 [discussion of special relationship between public university and students]; see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264-265.) The well-known elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Although generally a defendant owes no duty to control the¿conduct of another person or warn those endangered by that conduct, nevertheless a duty to do so may arise if there is a special relationship between the defendant and a third person that gives the third person a right to protection. (J.H. v. Los Angeles Unified School Dist.¿(2010) 183 Cal.App.4th 123, 141–142 citing M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517.)

“ ‘It is the duty of the school authorities 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. The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect…’ ‘[w]hat is ordinary care depends upon the circumstances of each particular case and is to be determined as a fact with reference to the situation and knowledge of the parties.’ ”

(J.H., supra, 183 Cal.App.4th 123, 141 citing Taylor v. Oakland Scavenger Co.¿(1941) 17 Cal.2d 594, 600; Bellman v. San Francisco H.S. Dist.¿(1938) 11 Cal.2d 576, 582.)

Defendant’s primary contention regarding the sufficiency of this cause of action relates to the specificity of the allegations. The level of specificity insisted by Defendant does not comport with the law, even under the pleading standard for statutory claims. The absolute precise details of every corroborative or evidentiary fact need not be alleged, just the essential factual allegations of liability. For example, in Defendant’s cited case of Lopez, the Complaint alleges that a transit district was common carrier, that plaintiffs were passengers on board transit district bus, that transit district knew assaults regularly occurred on bus route, that bus driver was notified that violent argument erupted among other passengers, and that bus driver did nothing to maintain order or protect passengers from injury. (Lopez, supra, 40 Cal.3d at 795.) The Lopez court held that this sufficiently alleged cause of action based on negligence against a public entity in light of the specificity standard. (Id. at 796.)

The omitted information identified by Defendant pertaining to the previous bullying, policies, and precise public employees that failed to act need not be alleged as those are not essential elements to the negligence claim. (See Dem. pp. ii-iii; 8-10.) Here, Plaintiff alleges he was assaulted by students after a prolonged period of bullying at the school. (FAC ¶¶ 11-16.) The FAC alleges that unnamed employees, including school staff members, teachers and administrators, failed to respond to this pattern of bullying against their own policies, and failed to protect Plaintiff from bullying and the incident. (FAC ¶¶ 17-26.) The FAC further alleges that the incident was reasonably foreseeable based on the history of bullying and this failure to supervise resulted in Plaintiff’s damages. (FAC ¶¶ 28-34.)

Based on these allegations, Plaintiff has alleged a factual basis for the duty and foreseeability of the harm. Defendant comments that this case is based on Plaintiff’s subjective beliefs. However, this misses the point of the pleading stage. Plaintiff can allege facts and theories that support his position of Defendant’s liability, and Defendant can disagree and contest those facts and theories on the merits. The arguments offered by Defendant simply question the validity of the foreseeability, but that is generally a question of fact which should not be resolved on demurrer. Sufficient facts are alleged here to maintain a cause of action under Government Code section 815.2. Accordingly, Defendant’s demurrer as to the first cause of action is OVERRULED.

Second Cause of Action – Premises Liability

As discussed briefly above, there is no statutory duty alleged as to the premises liability claim. To repeat, Government Code section 815 requires that “[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” except as provided by statute. Plaintiff offers none in opposition, nor does Plaintiff explain how the alleged bullying amounts to a premises liability claim. (Opp. pp. 10-12.)

In common law, lack of security and protection can be construed as a premises liability claim. (E.g. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 234–35; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679.) However, the Court is unaware of any statutory basis for a premises liability claim against a school district beyond Government Code section 835. This section states that a public entity is liable for injury caused by a dangerous condition of its property if: 1) the property was in a dangerous condition at the time of the injury; ¿2) the dangerous condition caused the injury; ¿3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; ¿and 4) either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or the entity had actual or constructive notice of the condition in time to have taken measures to protect against it. (Govt. Code § 835; see Moncur v. City of Los Angeles, Dept. of Airports (1977) 68 Cal.App.3d 118.)

“ ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code § 830(a).) A claim alleging a dangerous condition, as required to support a public entity’s liability as a property owner for injuries sustained on the property, may not rely on generalized allegations, but must specify in what manner the condition constituted a dangerous condition. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434.)

Even if Plaintiff provided a statutory basis for premises liability, there is no dangerous condition alleged. Plaintiff alleges that the dangerous condition was “a situation in which students were able to attack Barragan, and he could not seek out assistance and/or aid from a teacher, staff member, or any other type of supervisor.” (FAC ¶ 37.) This is not a condition of the property, but an allegedly negligent omission by Defendant’s employees. Additionally, no claim on this basis was presented to Defendant as required by Government Code section 910. As such, there is no statutory basis alleged and none can be provided under these facts per Plaintiff’s government claim. Leave to amend will only be granted if Plaintiff provides sufficient statutory and factual basis for the premises liability theory that demonstrate a reasonable probability of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED without leave to amend.