Case Number: BC692011 Hearing Date: June 27, 2018 Dept: 34

SUBJECT: Demurrer to First Amended Complaint

Moving Party: Defendants Los Angeles Unified School District and Canfield Avenue Elementary School

Resp. Party: None

The demurrer is SUSTAINED.

PRELIMINARY COMMENTS:

The Court will treat the demurrer as unopposed. On 06/07/18, plaintiffs filed a document entitled “Plaintiff’s Roni Mimran and Benjamin Mimran Pitlock Amended Notice and Amended Demurrer to Defendants’ Amnded [sic] Complaint; Memorandum of Points an [sic] Auhoriies [sic]”

The Caption to this pleading is incomprehensible. The pleading itself does not contain a notice. It is not a demurrer or amended demurrer, nor could it be: Defendant has not filed either a complaint or an amended complaint.

The Court cannot determine whether this document is intended to act as an opposition to the demurrer or whether it is intended as an amended complaint. Either way, the document is defective.

If plaintiff intended to oppose the demurrer, their submission is too long. “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Court, rule 3.1113, subd. (d).) Plaintiff’s submission is 35 pages long and the first 33 pages appear to be a verbatim reproduction of the First Amended Complaint. Nothing in the first 15 pages of the document (or even the first 32 pages of the document) appears to address the contents of the demurrer in any way.

Starting at paragraph 83 on page 33 of the pleading, are eight numbered paragraphs (paragraphs number 83-90) which are captioned “Standard for Demurrer.” If this is intended as an opposition to the Demurrer, it is, at best, frivolous. It is a pastiche of gobbledygook – dressed-up to pass for legal argument.

Paragraph 83, the first paragraph under the section “Standard for Demurrer states: “Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.” An MPA in opposition to a Demurrer should not “incorporate” 82 paragraphs of a Complaint.

Paragraph 85 states in its entirety:

“The School and the School District are Immune From Common Law Liability. Numerous other related sections amended at the same time likewise provide for exclusions of immunity with respect to ministerial acts or omissions, fn. 3 [8 Cal. 3d 483] and it must be assumed that if the Legislature had intended that there be any such exclusion of immunity with respect to section 845.8, subdivision (b), it would have so provided.” (Amended Demurrer to Defendants’ Amnded [sic] Complaint, ¶ 85.)

First, it appears that plaintiff’s counsel is arguing that the defendant is immune from common law liability. If so, she is, of course, arguing against her own clients’ position, since the First Amended Complaint has five common-law causes of action.

This paragraph does not refer to the complaint in any way, and hence does not direct the Court to any part of defendant’s argument that is being opposed. Further, paragraph 85 states “fn. 3 [8 Cal. 3d 483]”; but there is no previous citation to any case with a citation of “8 Cal.3d 483”; the Court believes that the citation is probably to a case entitled County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, but if so, this is not discernable from the plaintiffs’ pleading.

Further indication that these paragraphs are a mere cut-and-paste job – and a bad one at that – is found in paragraph 86, where it states

“To Properly Plead Statutory Liability Against a Public Entity, the Statute Must be Plead with Particularity (Sherman v City of Los Angeles, 269 Cal. App 2d, 803, 809 (1967). Here every fact essential to the eist3ence of statutory liability has been plead with particularity, including the existence of a statutory duty.” Since the 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.” (Amended Demurrer to Defendants’ Amnded [sic] Complaint, ¶ 86 [errors in original].)

First, no one would type “eist3ence.” This is clearly a copy of a copy, in which an OCR program incorrectly wrote “eist3ence” for “existence.” Second, the paragraph ends “Id. At 802,” yet the case cited only starts on p. 803. Lastly, the case cited at 269 Cal. App 2d, 803 is not “Sherman v. City of Los Angeles,” as indicated in the pleading, but rather Susman v. City of Los Angeles. (The Court also notes that the second time the word “plead” is used in the opening sentence of this paragraph, counsel should have used the past participle “pled” instead of “plead”; further, it is not correct citation format to capitalize the word “at” in “Id. At 802.”)

Conversely, if plaintiff intended to file a Second Amended Complaint, the submission is also defective. “Each party has the right to amend its pleadings once — without leave of court — within a brief time after its original pleading is filed.” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 6:602.) All subsequent motions require a prior Court Order. (See Id. at ¶ 6:611.) Plaintiff’s First Amended Complaint is the subject of the instant demurrer. Plaintiff has not sought leave to file a Second Amended Complaint.

Accordingly, the Court will treat the demurrer as unopposed.

BACKGROUND:

Plaintiffs commenced this action on 01/29/18. On 02/26/18, plaintiffs filed a First Amended Complaint against defendants for: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; and (5) fraud and deceit.

ANALYSIS:

Defendants demur to each of plaintiffs’ causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and that they are uncertain. (See Demurrer, p. 2:6-3:2.) Defendants demur to the fifth cause of action on the additional ground that it is not pleaded with sufficient particularity. (See Id. at p. 3:1-2.)

The FAC alleges that defendants are liable to plaintiff Roni Mimran and her son, Benjamin Mimran, for both negligent and intentional infliction of emotiona distress, as well as fraud, as a result of certain interactions between plaintiffs and the school’s administrators. (See generally, FAC.) The allegations in the FAC are not particularly clear, but defendants’ summary appears to capture the scope of plaintiffs’ claims:

“Plaintiffs allege that certain school employees failed to cooperate with Ms. Mimran in her custody dispute with her husband and that as a result of that failure to cooperate, Ms. Mimran lost a percentage of her physical custody over Benjamin. She also alleges that a certain teacher filed a complaint with the Department of Child Services alleging that Ms. Mimran was coaching Benjamin to testify negatively against her ex-husband (Benjamin’s father) in the custody dispute. . . . She also claims that the school has failed to inform her [of] certain parent-teacher meetings (which her ex-husband attended, but she did not), or to keep her informed about all communications between the school and Benjamin’s father; or to timely hand over copies of Benjamin’s school records; or to conduct an Individual Educational Plan for him.”

(Demurrer, p. 4:26-5-10.)

Negligent and Intentional Infliction of Emotional Distress

Plaintiffs’ first, second, third, and fourth causes of action seek to hold defendants liable for negligent and intentional infliction of emotional distress. Plaintiff has alleged that both Los Angeles Unified School District and Canfield Elementary School are public entities. (See FAC ¶ 3.) “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(a).) Thus, “[i]n the absence of a constitutional requirement, public entities may be held liable only if a statute . . . is found declaring them to be liable.” (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932; See Demurrer, p. 6:24-25.) Here, plaintiffs have failed to allege any statutory basis for their claims of intentional and negligent infliction of emotional distress. (See generally, FAC ¶¶ 26-75.)

Accordingly, the demurrer to the first, second, third, and fourth causes of action is SUSTAINED.

Fraud

Plaintiffs’ claim for fraud is based on the vague allegation that “Defendants engaged in fraud and deceit by representing that the School did not discriminate against children that it educated children taking into account social, emotional and academic needs.” (FAC ¶ 77.)

A fraud claim must be specifically pleaded, such that: “‘(a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.]’ ” (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904.) The standard is even higher when pleading fraud against a corporate defendant: a plaintiff must allege what was said, by whom, in what manner, when, and, in the case of a corporate defendant, the speaker’s authority to bind the corporation. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendants correctly argue that the fraud claim must fail because “[n]owhere in this complaint have Plaintiffs set forth in any way the representations made to them by Defendants, the manner in which they were communicated to them, and by whom they were communicated or when. And, most importantly, they have not alleged that any of those representations were actually false.” (Demurrer, p. 9:1-4.)

Accordingly, the demurrer to the fifth cause of action is SUSTAINED.

The Court will hear from counsel as to whether the demurrer should be sustained with or without leave to amend.