Opinion
A129128
09-29-2011
DYLAN MORRIS, Plaintiff and Appellant, v. VALLEJO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Superior Court No. FCS-31827)
Plaintiff has taken this appeal from the dismissal of his action against the Vallejo City Unified School District and its employees following an order that sustained the defendants' general demurrer without leave to amend. We conclude that the trial court erred by finding that plaintiff failed to state a cause of action against defendants, and reverse the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff was injured in a fight with a fellow student, defendant Jarach Price, while they both attended Hogan High School in the Vallejo City Unified School District (the District). The operative pleading before us is the third amended complaint, which includes causes of action for negligence and statutory violations (Gov. Code, §§ 815.2, 820) against the District, the principal of Hogan High School Michael Santos, and a classroom teacher at the school Kristina Jamias.
Defendant Price is not a party to this appeal.
The pleading alleges that defendants were aware of prior "ill conduct" on the part of Price, and "should have known" of both his "acrimony" toward plaintiff and his "dangerous propensities." Before the fight occurred, plaintiff and Price engaged in a series of "verbal exchanges" and "hostilities" that were "open and obvious" to school authorities. At least one student, a teacher's assistant who reported to Jamias, was specifically aware of the previous hostile interactions between plaintiff and Price. The pleading adds the allegation that Santos, Jamias, and the District "knew or should have known" of the "unusual risk of harm" of placing Price in the same classroom with plaintiff, and neither took "reasonable preventive measures" nor engaged in adequate supervision to prevent the altercation.
In 2007 defendant Santos "drafted a document known as 'Safety Protocol,' " which specified the response procedures to be followed during emergency situations, including fights: dial listed numbers and inform the office, send a "dependable student" to the nearest campus supervisor, blow a whistle, and facilitate the immediate dispatch of first responders to the scene. Santos intended the Safety Protocol to be distributed to all teachers at Hogan High School, but it apparently was not received by Jamias. The pleading alleges that the Safety Protocol is inadequate and "increases the danger to students who may be in distress," due to the failure of the administration to transmit or communicate the response procedures to classroom teachers, and the failure of the detailed procedures to provide for direct communication between teachers and campus supervisors.
On March 4, 2008, plaintiff entered his third period classroom and took his seat. Price entered the same classroom soon thereafter, and they began an intense argument over who was entitled to the seat. Heated words and gestures by plaintiff provoked Price to throw a book and engage in physical contact with plaintiff in a "negligent" belief that self-defense was justified.
The classroom teacher, defendant Jamias, became aware of the altercation when she heard the "thud" of a book thrown at plaintiff by Price. As Jamias walked toward plaintiff and Price, she observed a punch thrown by Price. Jamias attempted to place herself between the two students, but "another punch was thrown" by Price. Jamias realized that she "was unable to break up the fight," so she "ran toward the door of her classroom."
According to the third amended complaint, when the fight between plaintiff and Price erupted, Jamias failed to follow the mandated Safety Protocol practices: she did not use her classroom telephone to alert the administration; she did not send a dependable student to locate the closest campus supervisor; she did not "blow her whistle." Her actions were "unreasonable in their effort to limit the harm" to plaintiff. The ensuing "delayed response" to the fight resulted in "increased" harm to plaintiff.
Following a hearing the trial court sustained defendants' demurrer to the third amended complaint without leave to amend on the ground that plaintiff failed to plead "sufficient facts to state a cause of action for negligence against defendants, as provided for in Government Code Sections 820 and 815.2." The court found that the third amended complaint "fails to allege specific facts indicating that defendants knew or should have known of the violent propensities between plaintiff and defendant Price, and failed to take reasonable steps to prevent harm to plaintiff as a result of these propensities." The court further found that plaintiff did not allege that "defendant Jamias failed to respond to the altercation with due care, or that defendants had an inadequate safety plan and/or emergency communication system in place at the time." A judgment was subsequently entered in favor of defendants on the third amended complaint, and this appeal followed.
DISCUSSION
Plaintiff argues that the trial court erred by finding his pleading of negligence theories against defendants defective. He asserts that several errors were committed by the trial court in ruling on defendants' demurrer: First, the court failed to recognize that the "special relationship between students and their schools" imposed a duty of care on the District and its employees to protect plaintiff from an attack by another student; second, the court improperly demanded "specific factual allegations" to support the negligence causes of action; third, the allegations of breach of the duty of care were adequate without further allegations of knowledge of "prior acts of violence" by Price; and finally, defendants' failure to implement or follow "meaningful safety protocol" was a "proper basis for the liability" of the District and its employees.
I. The Demurrer Standards.
A crucial factor in the present case is the procedural posture of our review from an order sustaining a demurrer. "A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a question of law." (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316.) " 'On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]' [Citation.]" (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 352; see also Lee v. Blue Shield of California (2007) 154 Cal.App.4th 1369, 1377-1378.) The properly pleaded material allegations in the action filed by plaintiff "must be accepted as true. [Citations.] In addition, the Supreme Court has held: ' "[T]he allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties." [Citations.]' [Citations.]" (C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 382-383.) Our task as a "reviewing court, therefore, 'is to determine whether the pleaded facts state a cause of action on any available legal theory.' [Citation.]" (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 266.) "We may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court." (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) "On appeal from a judgment of dismissal after a demurrer has been sustained without leave to amend, the plaintiff has the burden of proving error. [Citation.] 'Because the trial court's determination is made as a matter of law, we review the ruling de novo.' [Citation.]" (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)
II. The Liability of Defendants as Public Entities.
Also significant to our analysis is the status of the District, Santos and Jamias as public entity defendants. " 'In order to determine whether a tort claim may be maintained against a public entity, the paradigm for analysis ordinarily requires we proceed by first identifying a duty on the part of the entity, then ascertain a statutory basis for liability, and then finally determine whether any statutory immunities are applicable. [Citation.]' [Citation.]" (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1029.) "A public entity is not liable for injury arising from an act or omission except as provided by statute. [Citations.] Government Code section 815.2, subdivision (a), provides a public entity is liable for injury proximately caused by an act or omission of its employee within the scope of employment if the conduct would have given rise to a cause of action against the employee. [Citation.] Under Government Code section 820, subdivision (a), a public employee is liable for injury caused by his act or omission to the same extent as a private person." (Ibid.)
This means that a public entity employer such as the District is vicariously liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) "Generally, each person has a duty to exercise reasonable care in the circumstances and is liable to those injured by the failure to do so. [Citation.] By statute, the Legislature has extended this common law standard of tort liability to public employees [citations] and has extended liability for public employees' negligent acts to public entity defendants [citations]." (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 160 (Avila).) "This '[v]icarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior.' [Citation.]" (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1382.)
III. The Duty of the District and its Employees to Plaintiff as a Student.
We thus examine plaintiff's pleading in light of settled principles that public employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law, and public entities are correspondingly liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 244-245 (Giraldo); Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 264-265.) "A proper pleading of negligence requires allegations of the traditional elements of that tort: duty, breach of duty, causation, and damages." (Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541; see also Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528.) Failure to properly allege and prove "any one of these elements is fatal to plaintiff's recovery." (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 754.)
Looking first at the duty element of plaintiff's negligence action, as defendants acknowledge school districts and employees have a well-established duty to supervise students while on school premises, and may be liable for failure to exercise reasonable care in that supervision. (Avila, supra, 38 Cal.4th 148, 158; Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513 (Hoyem); Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 871-872.) Although as a general matter there is no duty to act to protect others from the conduct of third parties, a defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a "special relationship" with the other person. (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1328; Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 268; see also Giraldo, supra, 168 Cal.App.4th 231, 245.) The "special relationship" that is formed between school authorities and their students results in the imposition of an "affirmative duty" on the school district and employees to take all reasonable steps to protect its students. (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 141-142 (J.H.); 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. [Citations.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect. [Citations]' [Citation.]" (J.H., supra, 183 Cal.App.4th 123, 139.) " ' "The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care 'which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.' [Citations.] . . .' " (Id. at pp. 140-141, quoting from Hoyem, supra, 22 Cal.3d 508, 513; see also Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.)
The present case brought by plaintiff is predicated on allegations that defendants failed to implement safety practices to protect him from the physically aggressive conduct of a fellow student, then failed to follow appropriate response procedures once a fight occurred that would have reduced the injuries he suffered. The essence of plaintiff's action is that the school district and authorities failed to adequately supervise and protect him from the acts of a third party on the school premises.
The California Supreme Court dealt with analogous allegations in Hoyem, supra, 22 Cal.3d 508, 512, where the plaintiff, a 10-year-old boy who was enrolled in summer school, left the school campus prior to the end of the summer school day and was struck and injured by a motorcycle at a public intersection. He alleged that the accident and his injuries were proximately caused by school authorities' negligent supervision of students. The court reversed a general demurrer sustained in favor of the defendants, with the explanation: "Although a school district is not an insurer of its pupils' safety [citation], our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care. [Citations.] [¶] We recently reaffirmed this rule in Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 [87 Cal.Rptr. 376, 470 P.2d 360], declaring that 'California law has long imposed on school authorities a duty to "supervise at all times the conduct of the children on school grounds and to enforce those rules and regulations necessary to their protection." [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care "which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances." [Citations.]' " (Id. at p. 513.) The court concluded: "The pleadings in the instant case are virtually identical to those which our court found sufficient to state a cause of action in Dailey. In both cases the complaint alleged that the school district failed to exercise ordinary care in supervising a student while the student was on school premises, and that such negligence proximately caused the student's resulting injury. Under well established principles, such general allegations of negligence, proximate causation and resulting injury and damages suffice to state a cause of action [citation]; the court therefore improperly sustained defendant's general demurrer." (Id. at pp. 513-514, citing Dailey, supra, at p. 747; see also Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, 37-38.)
In Dailey, supra, 2 Cal.3d 741, 747, two unsupervised high school students engaged in "slap-boxing" in the school gym during lunch hour, and as a result, one of the students fell, struck his head, and died shortly thereafter. "Slap-boxing" was an unauthorized activity at the school which was never undertaken when a teacher was nearby. In reversing a directed verdict in favor of defendant school district, the court in Dailey held that the issues whether or not the school acted negligently in failing to provide adequate supervision of the lunch hour recess and, if so, whether the student's injuries were proximately caused by such negligence, were for the jury to decide. (Id. at pp. 750-751.)
We similarly conclude that plaintiff has properly alleged with the requisite particularity a duty on the part of defendants to exercise ordinary care to protect him from an assault by another student. We turn to an examination of the remaining elements of plaintiff's negligence action: whether defendants breached their legal duty to plaintiff, and whether the breach was a proximate cause of plaintiff's injuries.
IV. The Allegations of Breach of Duty and Causation.
The pleading stage of the case becomes pivotal when resolving the breach and causation elements. While the existence of a "duty of care owing to the plaintiff is generally a question of law that may be addressed by demurrer," the other elements of a negligence cause of action are "generally factual and thus cannot be challenged on demurrer." (Osornio v. Weingarten, supra, 124 Cal.App.4th 304, 319; see also Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1033.) "[T]he issues of whether or not the school acted negligently in failing to provide adequate supervision," and "if so, whether the student's injuries were proximately caused by such negligence, [fall] within the province of the jury." (Hoyem, supra, 22 Cal.3d 508, 513, citing Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d 741, 747.) "Thus, a demurrer to a negligence claim will properly lie only where the allegations of the complaint fail to disclose the existence of any legal duty owed by the defendant to the plaintiff." (Osornio v. Weingarten, supra, at p. 316.)
The trial court erred by requiring specific factual allegations of negligence. (See Bro v. Glaser (1994) 22 Cal.App.4th 1398, 1406.) "Negligence may be alleged in general terms; that is, it is sufficient to allege an act was negligently done without stating the particular omission which rendered it negligent. [Citations.] '[T]here is no requirement that [the plaintiff] identify and allege the precise moment of the injury, or the exact nature of the wrongful act.' [Citation.]" (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747-748.) "[T]here are 'limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant's negligence has caused him injury.' [Citations.]" (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) In light of the factual nature of the breach and causation issues, at the demurrer stage we undertake a limited examination of the third amended complaint for allegations by plaintiff, in succinct form, of " ' "a causal connection between the negligence . . . and the injury he suffered. Ordinarily that is accomplished by implication from the juxtaposition of the allegations of wrongful conduct and harm. [Citation.] However, where the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specific facts affording an inference the one caused the others." [Citation.]' [Citation.]" (Id. at p. 528.)
Plaintiff has adequately alleged the essential components of a negligence action. Beyond identifying the duty of defendants to their students, he has described both the manner of his injuries and the asserted negligent cause. The fundamental claim in the negligence cause of action is that defendants should have recognized both the "violent tendencies" of Price, his acrimonious, hostile relationship with plaintiff, and the resulting foreseeable physical danger to plaintiff if they both remained in the "same classroom" without adequate supervision. In addition, plaintiff has alleged that once the altercation began the response measures were flawed in two respects: first, that the Safety Protocol developed by principal Santos was ineffective in design and not adequately communicated to staff; and second, that Jamias neither complied with the specified Safety Protocol measures nor exercised reasonable care and supervision in obtaining assistance to limit the harm to plaintiff. The pleading further alleges that in the absence of "reasonable preventative measures and adequate supervision" by defendants, plaintiff incurred enhanced "brain and neurological" injuries.
We tend to agree with defendants that the existence of Safety Protocol has only marginal or partial relevance, at least in light of the additional allegation that Jamias was "unaware of the procedures" and did not adhere to the stated Safety Protocol in her response to the fight. The relevant aspects of the allegations, however, are that Jamias should have been made aware of and followed the Safety Protocol measures, and that the District and Santos should have devised more protective procedures.
These allegations are not "bare conclusions," as claimed by the District, and are sufficient to plead the breach and causation elements of a negligence action against all defendants. (See Holmes v. Summer, supra, 188 Cal.App.4th 1510, 1528; Hahn v. Mirda, supra, 147 Cal.App.4th 740, 748; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-1459.) " 'Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.' [Citations.]" (J.H., supra, 183 Cal.App.4th 123, 143.) Further, " 'The fact that another student's misconduct was the immediate precipitating cause of the injury does not compel a conclusion that negligent supervision was not the proximate cause of [the student's] death. Neither the mere involvement of a third party nor that party's wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown. [Citations.]' [Citation.]" (Id. at p. 144.) We cannot find that as a matter of law defendants' alleged negligence was not the proximate cause of plaintiff's injuries, and thus the trial court erred by sustaining the general demurrer for failure to plead a cause of action. (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1191; Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 613.)
Whether plaintiff can prove the allegations that present factual issues to be determined by the trier of fact is not for us to decide at the pleading stage. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 939-940.)
V. The Immunity of Defendants Santos and Jamias.
Defendants also argue, for the first time in this appeal, that Santos and Jamias are immune from liability to plaintiff under the Paul D. Coverdell Teacher Protection Act of 2001, title 20 United States Code section 6731 et seq., which provides teachers with immunity from liability for acts within the scope of employment. (C.B. v. Sonora School Dist. (E.D.Cal. 2009) 691 F.Supp.2d 1123, 1148-1149.) Title 20 United States Code section 6736(a) (§ 6736(a)) provides that except as "provided in subsection (b) of this section," which specifies exceptions to teacher liability protection, "no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if
"(1) the teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity;
"(2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
"(3) if appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher's responsibilities.
"(4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher; and
"(5) the harm was not caused by the teacher operating a motor vehicle . . . ."
We reject defendants' immunity defense for several reasons. First, defendants failed to raise the immunity issue in the trial court, which denied plaintiff the opportunity to either contest the claim or amend the pleading to rebut the defense. The general demurrer did not suffice to raise the immunity defense. (See Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) Unlike some other government immunities, the particular immunity granted by section 6736(a), is not jurisdictional, but rather requires an affirmative showing by the defendant of an exception to liability, and thus is forfeited on appeal if not raised by demurrer or as an affirmative defense. (See McMahan's of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 689.)
More importantly, the statute sets forth numerous factors that must be present before the affirmative defense of immunity is granted. (See Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806.) The facts required to establish the section 6736(a) immunity are not stated on the face of the third amended complaint, but rather depend on pleading and proof by defendants. (See Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 651-652; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856; Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858-859.) " ' "[I]n governmental tort cases 'the rule is liability, immunity is the exception' . . . . Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail." [Citations.]' [Citation.]" (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855-1856.) Defendants Santos and Jamias have not established federal immunity as a matter of law. The factual dispute raised by the section 6736(a) immunity claim cannot be resolved by demurrer. (See Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224; Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1266, and fn. 4; Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 98-99.)
DISPOSITION
Accordingly, judgment entered in favor of defendants Vallejo Unified School District, Michael Santos, and Kristina Jamias is reversed. The case is remanded to the trial court for proceedings not inconsistent with the views expressed herein. The parties are to bear their own costs on appeal.
Defendants' motion for sanctions, or in the alternative, motion to strike, filed May 27, 2011, was denied on June 15, 2011, as to the motion to strike. On the same day, their motion for sanctions was deferred; it is now denied.
Dondero, J. We concur: Marchiano, P. J. Banke, J.