Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County No. GC041561, of Los Angeles, C. Edward Simpson, Judge.
DeWitt, Algorri & Algorri, Ernest P. Algorri and A. Lucy Mazloumian for Plaintiff and Appellant.
Gibeaut, Mahan & Briscoe, Gary R. Gibeaut and John W. Allen for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Plaintiff Jeffery Cortinez, an incompetent, by and through his Guardian ad Litem, Connie Cortinez (plaintiff), sued defendant South Pasadena Unified School District (defendant) arising out of an attack on him by a fellow high school student, Elijah Stinson (Stinson), leaving plaintiff severely injured. Defendant’s demurrer to plaintiff’s first amended complaint was sustained without leave to amend. We hold that plaintiff did not state facts sufficient to constitute a cause of action because the facts alleged and judicially noticed show that the injury took place off the school premises and after school hours, defendant did not undertake any responsibility for plaintiff after school, and neither plaintiff nor Stinson were under defendant’s supervision at the time of the incident. We therefore affirm the judgment of dismissal.
BACKGROUND
Plaintiff alleged in his first amended complaint that he and Stinson were students at South Pasadena High School, which is part of defendant school district; Stinson, with knowledge of the school resided outside the school district in violation of applicable rules; Stinson had a history of violence and had been disciplined by the school; on the day of the misconduct, Stinson carried around a baseball bat during school hours in view of teachers and administrators and threatened students with violence; Stinson attacked and actually hurt plaintiff; defendant was in violation of various statutes; and plaintiff had complied with the government claims statute. (Gov. Code, § 910.4.)
Defendant demurred to plaintiff’s first amended complaint. Defendant sought judicial notice of plaintiff’s government claims form (Govt. Code, § 910.4), in which plaintiff alleged that the injury took place after school hours in Garfield Park in the City of South Pasadena, which park was not on the school grounds. Defendant also asserted that defendant was immune from a lawsuit that involves the discretion of school officials in connection with expulsion or admission of students or discipline of students (Gov. Code, § 820.2) and from liability when pupils are not on school property. (Educ. Code, § 44808, ).
The trial court took judicial notice of the government claims form setting forth these facts. Any false allegations of fact inconsistent with facts judicially noticed may be disregarded. (See Williams v. Southern California Gas Co. (2009) 176 Cal.App.4th 591, 597-598.)
Education Code section 44808 provides: “Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. [¶] In the event of such a specific undertaking, the district board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.”
The trial court sustained the demurrer without leave to amend, and the action was dismissed. Plaintiff filed a timely notice of appeal.
DISCUSSION
A. Standard of Review
We review de novo an appeal from an order of dismissal after an order sustaining a demurrer. Thus, we independently review the complaint to determine if it states facts sufficient to constitute a cause of action. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.) After reasonably interpreting the allegations in the complaint and accepting all material facts as true and properly pleaded, including matters subject to judicial notice, we determine if the allegations in the complaint are sufficient to state a cause of action. (Ibid.; City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 [citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126]; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. General Principles
“‘School districts and their employees have never been considered insurers of the physical safety of their students, but rather are placed under a general duty to supervise the conduct of children on school grounds during school sessions, school activities, recesses, and lunch periods.’ (Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at p. 498; see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932–933 [80 Cal.Rptr.2d 811, 968 P.2d 522] [duty to supervise students].) Early California cases consistently held that a school district has no duty to safeguard students traveling, on their own, to and from school. (E.g., Gilbert v. Sacramento Unified School Dist. (1968) 258 Cal.App.2d 505, 506, 510 [65 Cal.Rptr. 913] [student killed by train while walking home from school]; Wright v. Arcade School Dist., supra, 230 Cal.App.2d at pp. 275, 277–280 [student injured by motorist while walking to school]; Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304, 306–309 [1 Cal.Rptr. 437] [student injured in fall from bicycle on way home from school]; Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 739, 741–743 [264 P.2d 115] [student killed by motorist while walking home from school].) [¶] In 1976, the Legislature enacted a law endorsing the common law principle that a school district is not legally responsible for accidents to students on their way to and from school. (Ed. Code, § 44808 [hereafter, section 44808]; Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 516–517 [150 Cal.Rptr. 1, 585 P.2d 851] (Hoyem).)” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1352-1353 (Cerna).)
Education Code section 44808 provides that neither the school district nor school employees are liable “for the conduct or safety of any pupil... when such pupil is not on school property” unless the district or person “has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.”
The plaintiff here, as the plaintiff in Cerna, supra, 161 Cal.App.4th at page 1353, has argued that “section 44808 does not endorse the early common law principle that a school district has no duty to safeguard students outside school premises and supervision but instead subjects school districts to general negligence liability whenever the school district fails to exercise reasonable care.” The court in Cerna stated, “Despite some early confusion on the point, the weight of authority holds that the ‘reasonable care’ phrase ‘does not create a common law form of general negligence; it refers to the failure to exercise reasonable care during one of the mentioned undertakings.’ (Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 871 [44 Cal.Rptr.3d 827].)” (Cerna, supra, 161 Cal.App.4th at p. 1354.)
In Hoyem, supra, 22 Cal.3d 508, the student and his mother sued the school district for injuries received when the student was struck by a motorcycle off the school premises but during school hours. The court held that the district could be liable as a result of negligent supervision of a student on school premises by allowing the student to leave the school grounds. The court said, “Contrary to defendant’s assertion, no California decision suggests that when a school district fails to properly supervise a student on school premises, the district can automatically escape liability simply because the student’s ultimate injury occurs off school property.” (Id. at p. 516.) The court said that Education Code section 44808 does not limit “a school district’s responsibility to supervise students during school hours on school premises.” (Id. at p. 518.)
The court in Hoyem, supra, 22 Cal.3d at page 517 (italics added), stated, “Although the initial portion of the statute provides that ‘no school district shall be responsible... for the conduct or safety of any pupil... at any time when such pupil is not on school property, ’ the section goes on explicitly to withdraw this grant of immunity whenever the school district, inter alia, ‘has failed to exercise reasonable care under the circumstances.’”
The court in Cerna, supra, 161 Cal.App.4th 1340, said the language in Hoyem was “problematic.” “On the one hand, we are told the Legislature intended section 44808 to free school districts from liability for accidents to students en route to school, consistent with the then existing common law. (Hoyem, supra, 22 Cal.3d at p. 518.) On the other hand, we are told the Legislature intended to hold school districts liable for every failure to exercise reasonable care. (Id. at p. 517.) Which of these apparently conflicting interpretations of section 44808 are we to follow? [¶] Litigants and jurists have grappled with this problem for 30 years. The consensus of decisions from the Court of Appeal is that ‘section 44808 limits the liability of schools for after-hours, off-campus activity, absent a specific undertaking.’ (Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 273 [7 Cal.Rptr.3d 509].) ‘The portion of section 44808 that refers to failing to exercise reasonable care does not create a common law form of general negligence; it refers to the failure to exercise reasonable care during one of the mentioned undertakings.’ (Bassett v. Lakeside Inn, Inc., supra, 140 Cal.App.4th at p. 871.) With a single exception (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 301 [1 Cal.Rptr.3d 712]), every court that has considered the matter since Hoyem, supra, 22 Cal.3d 508, has interpreted section 44808 to provide that school districts are not responsible for the safety of students outside school property absent a specific undertaking by the school district and direct supervision by a district employee. (Bassett, supra, 140 Cal.App.4th 863, 870–872; Mosley v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260, 1264–1265 [36 Cal.Rptr.3d 724]; Guerrero, supra, 114 Cal.App.4th 264, 269–272; Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 188–192 [129 Cal.Rptr.2d 128]; Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 129 [65 Cal.Rptr.2d 280]; Torsiello v. Oakland Unified School Dist. (1987) 197 Cal.App.3d 41, 47-49 [242 Cal.Rptr. 752] (Torsiello).)” (Id. at pp. 1356-1357.)
The court in Cerna, supra, 161 Cal.App.4th at page 1358, concluded as follows: “Overwhelmingly, the courts have held that section 44808 ‘“grants...immunity unless a student was (or should have been) directly supervised during a specified undertaking. The [statutory] language ‘failed to exercise reasonable care under the circumstances, ’ while set off by an ‘or’ as if meant to be a self-sufficient basis for liability, has correctly been construed as requiring such failure during one of the mentioned ‘undertakings.’ To construe it as an independent basis for liability would be to say, absurdly: A district is never liable in negligence unless it acts negligently. Also, the breach must be of a duty, a duty created through one of the undertakings. [Citation.] ‘The “reasonable care” phrase enunciates a standard of care and as such cannot exist in a vacuum; in the absence of a duty to which it applies, the phrase is meaningless.’”’ (Ramirez v. Long Beach Unified School Dist., supra, 105 Cal.App.4th at pp. 188–189, quoting Wolfe v. Dublin Unified School Dist., supra, 56 Cal.App.4th at p. 129, citing Torsiello, supra, 197 Cal.App.3d at pp. 47–48.) We believe the proper interpretation of section 44808 to be as stated in Torsiello and subsequent cases: school districts are not responsible for the safety of students outside school property absent a specific undertaking by the school district and direct supervision by a district employee. (Bassett v. Lakeside Inn, Inc., supra, 140 Cal.App.4th at pp. 870–872; Mosley v. San Bernardino City Unified School Dist., supra, 134 Cal.App.4th at pp. 1264–1265; Guerrero v. South Bay Union School Dist., supra, 114 Cal.App.4th at pp. 269–272; Ramirez, supra, 105 Cal.App.4th at pp. 188-192; Wolfe, supra, 56 Cal.App.4th at p. 129; Torsiello, supra, at pp. 47–49; see Hoff v. Vacaville Unified School Dist, supra, 19 Cal.4th at p. 940 [finding no liability under § 44808 where specific responsibility not assumed; made no mention of general negligence basis for liability].)” (See Hersh and Smith, Cal. Civ. Proc. Torts (2010) § 1112.)
We agree with the conclusion of the court in Cerna, supra, 161 Cal.App.4th 1340 regarding the application of section 44808. School districts are not subject to liability for injuries suffered by students outside of school property unless there is a specific undertaking by the school district vis-à-vis the student or the student is under the supervision of the school district employee.
C. Application of Principles
Plaintiff contends that he alleged it was the on-campus negligence during school hours that caused the attack after school and off school property. Plaintiff relies on Hoyem, supra, 22 Cal.3d 508, pointing to the court statements that “the off-campus situs of an injury does not ipso facto bar recovery from a school district” (id. at p. 515) and that the school district has liability if it “has failed to exercise reasonable care under the circumstances. (Id. at p. 517.)
Plaintiff argues that the baseball bat was a weapon (see Pen. Code, § 12020) and that under defendant’s regulations, defendant was obligated to confiscate it, notify law enforcement or otherwise take action. Plaintiff thus argues that defendant’s failure to take the appropriate action at the school was the proximate cause of his damage-proximate cause being a question of fact.
This case is different than others. In most of the cases cited, the plaintiff’s claim was for negligent supervision of the injured plaintiff. (Hoyem, supra, 22 Cal.3d 508 [failure to supervise student who left school and was hit by a motorcycle]; Perna v. Conejo Valley Unified School Dist. (1983) 143 Cal.App.3d 292 [students kept after school so forced to cross intersection when no crossing guard on duty]; Calandri v. Ione Unified School Dist. (1963) 219 Cal.App.2d 542 [plaintiff constructed toy cannon in school shop, teacher failed to warn of dangers, and had accident with the toy after school].) Here, there was no negligence in the supervision of the victim or in connection with acts or omissions directly affecting the victim. Rather, the allegation is that there was negligence in allowing the other child to be on the premises with a weapon and who posed a risk to the victim and others that materialized after school on nonschool premises.
The school authorities did not undertake any responsibility for plaintiff off the school premises after school, nor have they engaged in any supervision of the plaintiff’s activities after school and off the school property. Plaintiff’s argument is based on a broad reading of the phrase in Education Code section 44808-“has failed to exercise reasonable care under the circumstances”-which broad reading, as we have discussed, has been rejected by recent authorities. (Cerna, supra, 161 Cal.App.4th 1340.)
Thus, although school authorities have a duty to supervise the conduct of children on school grounds and are held to a duty of ordinary care in such student supervision (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747; see Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1361 [school district may be held liable for injuries proximately caused by failure to exercise reasonable care in supervising students, but exercise of authority to expel or readmit a pupil is a discretionary act that is immune from liability]), what occurs after school on nonschool property when the student is not under the supervision of the school does not result in the school’s liability. (Cf. 82 Ops. Cal. Atty. Gen. 20 (1999) [school board has no duty to disclose information about the presence of a sex offender in the community].) Accordingly, plaintiff has failed to plead facts sufficient to state a cause of action.
DISPOSITION
The judgment of dismissal following the order sustaining the demurrer to the first amended complaint without leave to amend is affirmed. Defendant is entitled to its costs on appeal.
We concur: TURNER, P. J., KRIEGLER, J.