Preview
C. Russell Georgeson (SBN 53589) E-FILED
Richard A. Belardinelli (SBN 065168) 6/13/2019 4:09 PM
2 Robert J. Willis (SBN 317327) Superior Court of California
GEORGESON AND BELARDINELLI County of Fresno
3
7060 N. Fresno Street, Suite 250 By: L Peterson, Deputy
4 Fresno, California 93 720
Telephone: (559) 447-8800
5 Facsimile: (559) 447-0747
6 Attorneys for Plaintiffs, TAMMI COOPER, an individual, LAURA BURKE, an individual
CINDY PROMNTTZ, an individual, MELODI COOPER, an individual, RACHEL BURKE, an
7 individual, and MADDIE PROMNTTZ, an individual
8
SUPERIOR COURT OF THE ST ATE OF CALIFORNIA
9
10 IN AND FOR THE COUNTY OF FRESNO
11
TAMMI COOPER, an individual; LAURA ) Case No.: 19CECG00439
12 BURKE, an individual; CINDY )
PROMNITZ, an individual; MELODI ) PLAINTIFFS' MEMORANDUM OF
13 COOPER; an individual; RACHEL ) POINTS AND AUTHORITIES IN
BURKE, an individual; and MADDIE ) OPPOSITION TO DEFENDANTS CLOVIS
14
PROMNITZ, an individual, ) UNIFIED SCHOOL DISTRICT AND
15 ) STACEY SCHIRO'S DEMURRER TO
Plaintiffs, ) PLAINTIFFS' COMPLAINT
16 )
v. ) Date: June 26, 2019
17 ) Time: 3:30 p.m.
CLOVIS UNIFIED SCHOOL DISTRICT, a ) Dept.: 403
18 public entity; ST ACEY SCHIRO, an )
individual; and DOES 1-50, inclusive, )
19
)
20 Defendants. )
______________ )
21
22 COMES NOW, Plaintiff TAMMI COOPER ("Cooper"), Plaintiff LAURA BURK
23 ("Burke"), Plaintiff CINDY PROMNITZ ("Promnitz"), Plaintiff MELODI COOPER ("Melodi"),
24
Plaintiff RACHEL BURKE ("Rachel"), and Plaintiff MADDIE PROMNITZ ("Maddie"
25
(collectively "Plaintiffs") In Opposition To Defendants Clovis Unified School District ("CUSD"
26
And Stacey Schiro's ("Schiro") Demurrer To Plaintiffs' Complaint ("Demurrer").
27
28
Page I
1 1.
INTRODUCTION
2
Defendants largely base this Demurrer and the order denying Plaintiffs Burke, Promnitz
3
4 Rachel, and Maddie's Petition to Present A Late Claim, Fresno County Superior Court Case No.
5 19CECG00473. Defendants counsel was advised that the Plaintiffs therein were going to file
6 appeal to the order denying the Petition. (Declaration of Robert .J. Willis ("Dec. RJW") if 2.)A
7 Appeal has been filed on the Order denying the Petition. (Dec. R.JW ,r 3; Plaintiffs Request fo
8
Judicial Notice ("RJN") ,r 1.)
9
2.
10 ARGUMENT
11 A. Demurrers Arc Generally Disfavored
12 Demuners are generally disfavored and Courts arc particularly reluctant to sustai
13 demmTers without leave to amend. (See, e.g., Beckstead v. Superior Court ( 1971) 21 Cal.App.3
14
780, 782.) A Court commits reversible enor if it sustains a demurrer when facts arc alleged tha
15
show "entitlement to relief' under any possible legal theory." (Roman v. County of Los Angele
16
(2000) 85 Cal.App.4th 316, 321-322.) Moreover, "[i]t is a tenet of California civil procedure tha
17
the sustaining of demurrers without leave lo amend is an extraordinary judicial procedure.'
18
(Beckstead, supra, 21 Cal.App.3d at 782.) In the event that the Court sustains any portion of
19
20 defendant's demurrer, plaintiff should be given leave to amend to cure any defect. (City oJStockto
21 v. Sup. Ct. (2007) 42 Cal.4th 730, 27 747 ["leave to amend is liberally allowed as a matter o
22 fairness"].) Tf'there is a reasonable possibility that a defect can be cured by amendment, the Cou
23 must grant leave to amend. (See, Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 1 Cal.App.4t
24 153, 156.) It is cnor lo sustain a demurrer if it appears that the plaintiff is entitled to any reliel
25
under the circumstances pleaded. (Dub ins v. Regents of Univ. of Cal. (1994) 25 Cal.App.4th 77
26
82; Jack Heskett Lincoln-Mercury, Inc. v. Metcalf(l 984) 158 Cal.App.3d 38, 41.) If there is
27
reasonable possibility that a pleading defect can be cured, leave to amend must be granted. (Plat
28
Page 2
v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal.App.3d 1439, 1444; Blank v.
2 Kirwan (1985) 39 Cal.3d 311, 318.)
3
CCP § 452 sets forth the legal standard for ruling on a demurrer - liberal construction wit
4
a view to substantial justice between the parties. (See, Stevens v. Sup Ct. (1999) 75 Cal.App.4t
5
594, 601.) As slated in Gressley v. Wiliams (1961) 193 Cal.App.2d 636, 639, "[t]he court must, i
6
every stage of an action, disregard any defect in the pleadings which does not affect the substantial
7
rights of the parties .... All that is necessary as against a general demurrer is to plead facts entitlin
8
the plaintiff to some relief."
9
10 Defendants bear a heavy burden on demuner. The Court is required to accept th
11 allegations of a Complaint as true when ruling on a demuner. (Witkin, Summary of Californi
12 Procedure (2nd Ed.) Pleadings,§ 800.) A plaintiff need only allege facts "in ordinary and concis
13 language." (CCP § 425.10.) A complaint states facts sufficient to constitute a cause of action ifi
14
appears the plaintiff is entitled to any relief. (Addiego v. Hill (1965) 238 Cal.App.2d 842.
15
Complaints must be liberally construed. (Buss v. J. 0 Martin Co. (1966) 241 Cal.App.2d 123, 133
16
134.) All facts are to be construed in the light least favorable to defendant. (Perdue v. Crocke
17
Nat 'l Bank (1985) 38 Cal.3d 913, 922.) Further, "a Plaintiff need not plead facts with specificit
18
where the facts are within the knowledge and control of the defendants and are unknown t
19
20 Plaintiff." (Credit Managers Assoc. of Southern California v. Superior Court (1975) 51
21 Cal.App.3d 352,361 [internal citations omitted].)
22 For the purpose of testing the sufficiency of the pleading on demurrer, the Court mus
23 accept as true all material facts properly pied. (Blatty v. New York Times Co. (1986) 42 Cal.3
24 1033, I 040; Stop Youth Addiction, Inc. v.Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558.) Whethe
25
the plaintiff will be able to prove the facts is irrelevant to ruling upon the demU1Ter. (Stevens v.
26
Sup. Ct., supra, 180 Cal.App.3d at 609-610.) To the extent that there are factual issues in dispute
27
the court must assume the truth not only of all facts pied, but also of those facts that may be implied
28
Page 3
or inferred from those expressly alleged in the complaint. (White v. Davis (1975) 13 Cal.3d 757
2 765; Marshall v. Gihson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; Rose v. Royal Ins.
3
Co. (1991) 2 Cal.App.4th 709, 716.) Tfupon a consideration of these facts it appears that th
4
plaintiff is entitled to any relief at the hands of the court against the defendants, the compliant will
5
be held acceptable, although the facts may not be clearly stated, or the plaintiff may demand relief
6
to which she is not entitled. (Matteson v. Wagenor (1905) 147 Cal. 739, 742.)
7
B. Plaintiffs Have Alleged That Their Complaint Was Timely Made
8
Plaintiffs, and each of them, alleged that their claims were timely made. (Complaint ,r 14.
9
10 "If a complaint does not allege facts showing that a claim was timely made, or that complianc
11 with the claims statutes is excused, itis subject to demurrer." (JM v. Huntington Beach Unio
12 High School Dist. (2017) 2 Cal.5th 648, 652.) Plaintiffs have alleged facts showing that a clai
13 was timely made. (Complaint 1124, 25, 26, and 30.) Further, Plaintiffs have pied facts showing tha
14
compliance with the claims statutes is excused. (Complaint ,r 24, 25, 26, and 30.) The Court mus
15
accept as true all material facts properly pied by Plaintiffs. (Blatty, supra, 42 Cal.3d at 1040; Sta
16
Youth Addiction, Inc., supra, 17 Cal.4th at 558.) Whether Plaintiffs will be able to prove the fact
17
is irrelevant to ruling upon the demurrer. (Stevens, supra, 180 Cal.App.3d at 609-610.)
18
To the extent that Defendants rely on the order denying the Petition, those factual finding
19
20 are in dispute and are currently being appealed. (RJN ,r 1.) "It is well established 'that the filing o
21 a claim-relief petition is [not] an election of remedies which precludes the petitioner from filin
22 and pursuing a separate complaint alleging timely compliance' with the claims presentatio
23 requirement." (Mandjikv. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1499.)
24 Plaintiffs Cooper And Mclodi's Claims Were Accepted Under The Fact
C.
Alleged In The Complaint
25
26 "A demurrer can be used only to challenge defects that appear on the face of the pleadin
27 under attack; or from matters outside the pleading that are judicially noticeable." (Weil & Brown
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Page 4
Cal. Prac. Guide: Civ. Pro. Before Trial,§ 7:8.) "Judicial notice of other court records and files i
2 limited to matters that are indisputably true. This generally means judicial notice is limited to th
3
orders and judgments in the other court file, as distinguished from the contents of documents file
4
therein." (Id. at§ 7:15.) "In ruling on a demurrer, a court may consider facts of which it has take
5
judicial notice. [Citation] This includes the existence ofa document. Whcnjudicial notice is take
6
of a document, however, the truthfulness and proper interpretation of the document ar
7
disputable." (Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660.
8
"[A] court ruling on a demurrer cannot decide a question that may depend on disputed facts b
9
JO means of judicial notice." (Id. at 660.) "[J]udicial notice of matters upon demurrer will b
11 dispositive only in those instances where there is not or cannot be a factual dispute concerning tha
12 which is sought to be judicially noticed."(Jbid.) The mailing of a return of late claim letter fo
13 Cooper and Melodi is disputed, and therefore, outside this demurrer.
14
Moreover, Plaintiffs inquired as to whether Cooper and Melodi's claim was time!
15
presented. (Defendants' RJN Exhibit 3, Exhibit G.) Plaintiffs stated to CUSD the following:
16
"The law firm of Georgeson and Belardinelli has been retained
17 by Laura Burke, Tammi Cooper, and Cindy Pro11111itz regarding
their and their daughters respective claims emanating from the
18 conduct of your employee Ms. Stacy Schiro directed at their
respective daughters-Rachel Burke, Melodi Cooper, and Maddie
19
Promnitz.
20
* • *
21
It is interesting CUSD has returned the claims of Rachel Burke and
22 Maddie Pro11111itz while accepting the claim of Melodi Cooper as
timely-all three of the girls' claims emanate from the same events
23 and occurrences and were presented on the same day to CUSD. How
can this be?
24
On the ground that Rachel Burke and Maddie Promnitz have
25
presented the same claims arising from the same events and
26 timeframe against CUSD and Ms. Schiro as Melodi Cooper-all
three simultaneously served on June 25, 2018-Rachel and
27 Maddie's claims are therefore timely too.
28
Page 5
* * *
2 If Rachel and Maddie's request to present a late claim is denied by
CUSD, even though Melodi Cooper's claim was accepted as timely,
3
Rachel and Maddie will be forced to file this matter in court where
4 the doctrine of equitable estoppel will be prohibit CUSD from
asserting late claim presentment as a bar to recovery."
5
(Ibid. [Emphasis added].)
6
CUSD was informed that Cooper and Melodi were represented by the undersigned counsel at tha
7
moment, and decided not to infmm their counsel that his assertions were incmTect, and the retu
8
9
oflate claim was returned to sender on or about August 15, 2018. (Defendants' RJN Ex. 3, Ex. F.
10 Lastly, the doctrines of equitable estoppel, equitable tolling, substantial compliance via th
11 November 1, 2017 claim letter, amendment to the claim, and an agreed upon extension to th
12 claim. Facts of all of which are pied in the Complaint. The documents evidencing these allegation
13 and legal defenses are mentioned in the Compliant, but not attached thereto, and are thus no
14
properly before the Com1 determination because the parties disagree as to what they mean. That i
15
if you review the Order denying the Petition for to Present a Late Claim, parties disagree as to th
16
meaning and effect of the words used therein. (Defendants' RJN Ex. 6.) The Arguments made b
17
Plaintiffs Burke, Promnitz, Rachel, and Maddie in the pleadings on the Petition to Present a Lat
18
Claim are all incorporated herein by this reference and through Defendants' RJN Exhibits 2 and
19
20 4, as to all Plaintiffs.
21 D. The Dual Filing Was Procedurally Proper
22 "Where there is any question concerning compliance with claim presentation requirements,
23 careful practitioners should go both ways: i.e.,if appropriate, file a lawsuit alleging complianc
24 with claim presentation requirements, while simultaneously petitioning for relief under Gov.C. §
25
946.6." (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial,§ 1 :824.)
26
E. The Sole Cause of Action Brought On Behalf Of the Mothers Cooper, Burke
27 and Promnitz is for An Accounting/Audit
28
Page 6
The Mothers, Tammi Cooper, Laura Burke, and Cindy Promnitz are only parties to th
2 Eighth Cause of Action for an Audit/Accounting.
3
F. Plaintiffs' Second Cause of Action For Breach Of A Mandatory Du
4 Government Code§ 815.6 States A Claim Against Defendants
5 California Constitution Article I Section 28 is a constitutional enactment which L
6 incorporated into California Education Code § 32261 (a) states, "The Legislature hereby recognize
7 that all pupils enrolled in the state public schools have the inalienable right to attend classes 01
8 school campuses that are safe, secure, and peaceful." California Code of Regulations title 5 § 559
9
and Education Code §§ 33031 and 35179. 7 requires school districts to implement the code o
10
ethical conduct alleged in the Complaint, ethical codes which Schiro has violated. "A special
11
relationship is formed between a school district and its students resulting in the imposition of a
12
afilrmative duty on the school district to take all reasonable steps to protect its students." (M W.
13
v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517.) "Based on prio
14
15 case law and the characteristics of public education along with recent statutory pronouncements,
16 we readily come to the conclusion that a special relationship is formed between a school distric
17 and its students so as to impose an affirmative duty on the district to take all reasonable steps t
18 protect its students." (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707
19
715 [Emphasis added].) "All pupils have the right to participate fully in the educational process,
20
free from discrimination and harassment." (Ed. Code, § 201.)
21
These are all mandatory duties which are clearly defined and which Schiro's breaches ar
22
clearly alleged.
23
Plaintiffs' Request Leave To Amend The Third Cause Of Action
24
Plaintiffs request leave to amend the Third Cause of Action to allege Gross Negligence and
25
26 Wanton, Willful and Reckless misconduct. Denial ofleave to amend at this stage of the proceed in
27 would be an abuse of discretion as it is an abuse of discretion for the Court to deny leave to amen
28
Page 7
where there is any reasonable possibility that Plaintiff can state a good cause of action. (Goodma
2 v. Kennedy (1976) 18 Cal.3d 335, 349.)
3
H. Plaintiffs' Fourth, Fifth, and Seventh Causes Of Action State Sufficient Fact
4 Upon Which relief Can Be Granted
5 As described above the Plaintiffs, each of them, are not barred form bring these Cause o
6 Action.
7 Also, Cooper and Melodi are not barred by the order denying the Petition to Present a Lat
8
claim because they were not parties thereto.
9
Moreover, if the Court does determine that the order denying the Petition to Present a Lat
10
Claim does bar these Causes of Action, Plaintiffs request a stay and/or continuance on thes
1l
demurrer proceedings until a final judgment has been rendered on the Appeal therefrom.
12
I. Plaintiffs' Eighth Cause Of Is Not Uncertain and Is Sufficient
13
The Eighth Cause of Action isfor the Court to use its equitable powers and order that a
14
15 audit be undertaken by CUSD for the alleged financial improprieties of Schiro and in accord wit!
16 CUSD's promise to Plaintiffs that one would be untaken and the results thereof shared wit
17 Plaintiffs. Denial ofleave to amend at this stage of the proceeding would be an abuse of discretio
18 as it is an abuse of discretion for the Court to deny leave to amend where there is any reasonabl
19 possibility that Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d
20
335, 349.)
21
3.
22 CONCLUSION
23 Plaintiffs Complaint is the first complaint filed in this action. Any deficiencies existing i
24 the current claim on any grounds asserted by Defendants can be rectified by additional and
25
corrective pleadings of additional facts that clarify uncertainties, if any, and perhaps support othe
26
causes of action not previously alleged that are consistent with the factual circumstances. Althoug
27
28
Page 8
1 clearly unnecessary, specific additional factual allegations pertaining to the malice and allegation
2 supporting punitive damages can be and will be alleged.
3
Therefore, leave to amend is requested including leave to add additional causes of action
4
if any. Denial of leave lo amend at this stage of the proceeding would be an abuse of discretion a
5
it is an abuse of discretion for the Court to deny leave lo amend where there is any reasonabl
6
possibility that Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d
7
335, 349.) To sustain the demurrer without leave to amend would result in substantial injustice and
8
irreparable harm to the Plaintiff and unjustly benefit Defendants and sanction Plaintiffs.
9
10 Alternatively, if the Court sustains Defendants' Demurrer on the ground that Plaintiff
11 cannot state a cause of action because of the denial of Plaintiffs' Petition lo Present A Late Claim
12 Plaintiffs, and each of them, request the Court to stay this Demurrer proceeding until there is
13 final ruling on Plaintiffs' Appeal to the order denying their Petition to Present A Late Claim.
14
15
DATED: June 13, 2019 GEORGESON AND BELARDTNELLI
16
17
18
19 By---/-__'::::~-1L.-t-.?--_/,L----"--L_""_-----"~~~I
obert J. Will ,
20 Attorneys for Plaintiffs, TAMMI COOPER,
LAURA BURKE, CINDY PROMNTTZ,
21 MELODI COOPER, RACHEL BURKE,
and MADDIE PROMNITZ
22
23
24
25
26
27
28
Page 9
PROOF OF SERVICE
[1013A(3) CCP]
STATE OF CALIFORNIA)
' ) ss.
COUNTY OF FRESNO )
4
I am employed in the County of Fresno, State of California. I am over the age of 18 and not
party to the within action; my business address is: 7060 N. Fresno Street, Suite 250, Fresno, California.
On June 13, 2019, I served the foregoing document described as PLAINTIFFS' MEMO-
RANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS CLO-
VIS UNIFIED SCHOOL DISTRICT AND STACEY SCHIRO'S DEMURRER TO PLAIN-
TIFFS' COMPLAINT on the party/parties named below in said action by placing D the original
a true copy thereof enclosed in a sealed envelope address as follows:
C><:]
10
VIA U.S. MAIL and EMAIL
II
Anthony N. DeMaria, Esq.
McCormick Barstow, LLP
12 7647 North Fresno Street
Fresno, California 93720
" D BY OVERNIGHT DELIVERY: I deposited the document in a box or other facility reg-
14
ularly maintained by UPS and in an envelope or package designated by the UPS with delivery fees
15 paid or provided for.
16
C><:] STATE: I declare under penalty of perjury under the laws of the State of California that th
above is true and correct.
25
26
27
28
Kellie Dundore
t/1,Pl,(JlcS'.>S,\){/)
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71160N. FkLSS<>SlaJSl'T
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Preview
C. Russell Georgeson (SBN 53589) E-FILED Richard A. Belardinelli (SBN 065168) 6/13/2019 4:09 PM 2 Robert J. Willis (SBN 317327) Superior Court of California GEORGESON AND BELARDINELLI County of Fresno 3 7060 N. Fresno Street, Suite 250 By: L Peterson, Deputy 4 Fresno, California 93 720 Telephone: (559) 447-8800 5 Facsimile: (559) 447-0747 6 Attorneys for Plaintiffs, TAMMI COOPER, an individual, LAURA BURKE, an individual CINDY PROMNTTZ, an individual, MELODI COOPER, an individual, RACHEL BURKE, an 7 individual, and MADDIE PROMNTTZ, an individual 8 SUPERIOR COURT OF THE ST ATE OF CALIFORNIA 9 10 IN AND FOR THE COUNTY OF FRESNO 11 TAMMI COOPER, an individual; LAURA ) Case No.: 19CECG00439 12 BURKE, an individual; CINDY ) PROMNITZ, an individual; MELODI ) PLAINTIFFS' MEMORANDUM OF 13 COOPER; an individual; RACHEL ) POINTS AND AUTHORITIES IN BURKE, an individual; and MADDIE ) OPPOSITION TO DEFENDANTS CLOVIS 14 PROMNITZ, an individual, ) UNIFIED SCHOOL DISTRICT AND 15 ) STACEY SCHIRO'S DEMURRER TO Plaintiffs, ) PLAINTIFFS' COMPLAINT 16 ) v. ) Date: June 26, 2019 17 ) Time: 3:30 p.m. CLOVIS UNIFIED SCHOOL DISTRICT, a ) Dept.: 403 18 public entity; ST ACEY SCHIRO, an ) individual; and DOES 1-50, inclusive, ) 19 ) 20 Defendants. ) ______________ ) 21 22 COMES NOW, Plaintiff TAMMI COOPER ("Cooper"), Plaintiff LAURA BURK 23 ("Burke"), Plaintiff CINDY PROMNITZ ("Promnitz"), Plaintiff MELODI COOPER ("Melodi"), 24 Plaintiff RACHEL BURKE ("Rachel"), and Plaintiff MADDIE PROMNITZ ("Maddie" 25 (collectively "Plaintiffs") In Opposition To Defendants Clovis Unified School District ("CUSD" 26 And Stacey Schiro's ("Schiro") Demurrer To Plaintiffs' Complaint ("Demurrer"). 27 28 Page I 1 1. INTRODUCTION 2 Defendants largely base this Demurrer and the order denying Plaintiffs Burke, Promnitz 3 4 Rachel, and Maddie's Petition to Present A Late Claim, Fresno County Superior Court Case No. 5 19CECG00473. Defendants counsel was advised that the Plaintiffs therein were going to file 6 appeal to the order denying the Petition. (Declaration of Robert .J. Willis ("Dec. RJW") if 2.)A 7 Appeal has been filed on the Order denying the Petition. (Dec. R.JW ,r 3; Plaintiffs Request fo 8 Judicial Notice ("RJN") ,r 1.) 9 2. 10 ARGUMENT 11 A. Demurrers Arc Generally Disfavored 12 Demuners are generally disfavored and Courts arc particularly reluctant to sustai 13 demmTers without leave to amend. (See, e.g., Beckstead v. Superior Court ( 1971) 21 Cal.App.3 14 780, 782.) A Court commits reversible enor if it sustains a demurrer when facts arc alleged tha 15 show "entitlement to relief' under any possible legal theory." (Roman v. County of Los Angele 16 (2000) 85 Cal.App.4th 316, 321-322.) Moreover, "[i]t is a tenet of California civil procedure tha 17 the sustaining of demurrers without leave lo amend is an extraordinary judicial procedure.' 18 (Beckstead, supra, 21 Cal.App.3d at 782.) In the event that the Court sustains any portion of 19 20 defendant's demurrer, plaintiff should be given leave to amend to cure any defect. (City oJStockto 21 v. Sup. Ct. (2007) 42 Cal.4th 730, 27 747 ["leave to amend is liberally allowed as a matter o 22 fairness"].) Tf'there is a reasonable possibility that a defect can be cured by amendment, the Cou 23 must grant leave to amend. (See, Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 1 Cal.App.4t 24 153, 156.) It is cnor lo sustain a demurrer if it appears that the plaintiff is entitled to any reliel 25 under the circumstances pleaded. (Dub ins v. Regents of Univ. of Cal. (1994) 25 Cal.App.4th 77 26 82; Jack Heskett Lincoln-Mercury, Inc. v. Metcalf(l 984) 158 Cal.App.3d 38, 41.) If there is 27 reasonable possibility that a pleading defect can be cured, leave to amend must be granted. (Plat 28 Page 2 v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal.App.3d 1439, 1444; Blank v. 2 Kirwan (1985) 39 Cal.3d 311, 318.) 3 CCP § 452 sets forth the legal standard for ruling on a demurrer - liberal construction wit 4 a view to substantial justice between the parties. (See, Stevens v. Sup Ct. (1999) 75 Cal.App.4t 5 594, 601.) As slated in Gressley v. Wiliams (1961) 193 Cal.App.2d 636, 639, "[t]he court must, i 6 every stage of an action, disregard any defect in the pleadings which does not affect the substantial 7 rights of the parties .... All that is necessary as against a general demurrer is to plead facts entitlin 8 the plaintiff to some relief." 9 10 Defendants bear a heavy burden on demuner. The Court is required to accept th 11 allegations of a Complaint as true when ruling on a demuner. (Witkin, Summary of Californi 12 Procedure (2nd Ed.) Pleadings,§ 800.) A plaintiff need only allege facts "in ordinary and concis 13 language." (CCP § 425.10.) A complaint states facts sufficient to constitute a cause of action ifi 14 appears the plaintiff is entitled to any relief. (Addiego v. Hill (1965) 238 Cal.App.2d 842. 15 Complaints must be liberally construed. (Buss v. J. 0 Martin Co. (1966) 241 Cal.App.2d 123, 133 16 134.) All facts are to be construed in the light least favorable to defendant. (Perdue v. Crocke 17 Nat 'l Bank (1985) 38 Cal.3d 913, 922.) Further, "a Plaintiff need not plead facts with specificit 18 where the facts are within the knowledge and control of the defendants and are unknown t 19 20 Plaintiff." (Credit Managers Assoc. of Southern California v. Superior Court (1975) 51 21 Cal.App.3d 352,361 [internal citations omitted].) 22 For the purpose of testing the sufficiency of the pleading on demurrer, the Court mus 23 accept as true all material facts properly pied. (Blatty v. New York Times Co. (1986) 42 Cal.3 24 1033, I 040; Stop Youth Addiction, Inc. v.Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558.) Whethe 25 the plaintiff will be able to prove the facts is irrelevant to ruling upon the demU1Ter. (Stevens v. 26 Sup. Ct., supra, 180 Cal.App.3d at 609-610.) To the extent that there are factual issues in dispute 27 the court must assume the truth not only of all facts pied, but also of those facts that may be implied 28 Page 3 or inferred from those expressly alleged in the complaint. (White v. Davis (1975) 13 Cal.3d 757 2 765; Marshall v. Gihson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; Rose v. Royal Ins. 3 Co. (1991) 2 Cal.App.4th 709, 716.) Tfupon a consideration of these facts it appears that th 4 plaintiff is entitled to any relief at the hands of the court against the defendants, the compliant will 5 be held acceptable, although the facts may not be clearly stated, or the plaintiff may demand relief 6 to which she is not entitled. (Matteson v. Wagenor (1905) 147 Cal. 739, 742.) 7 B. Plaintiffs Have Alleged That Their Complaint Was Timely Made 8 Plaintiffs, and each of them, alleged that their claims were timely made. (Complaint ,r 14. 9 10 "If a complaint does not allege facts showing that a claim was timely made, or that complianc 11 with the claims statutes is excused, itis subject to demurrer." (JM v. Huntington Beach Unio 12 High School Dist. (2017) 2 Cal.5th 648, 652.) Plaintiffs have alleged facts showing that a clai 13 was timely made. (Complaint 1124, 25, 26, and 30.) Further, Plaintiffs have pied facts showing tha 14 compliance with the claims statutes is excused. (Complaint ,r 24, 25, 26, and 30.) The Court mus 15 accept as true all material facts properly pied by Plaintiffs. (Blatty, supra, 42 Cal.3d at 1040; Sta 16 Youth Addiction, Inc., supra, 17 Cal.4th at 558.) Whether Plaintiffs will be able to prove the fact 17 is irrelevant to ruling upon the demurrer. (Stevens, supra, 180 Cal.App.3d at 609-610.) 18 To the extent that Defendants rely on the order denying the Petition, those factual finding 19 20 are in dispute and are currently being appealed. (RJN ,r 1.) "It is well established 'that the filing o 21 a claim-relief petition is [not] an election of remedies which precludes the petitioner from filin 22 and pursuing a separate complaint alleging timely compliance' with the claims presentatio 23 requirement." (Mandjikv. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1499.) 24 Plaintiffs Cooper And Mclodi's Claims Were Accepted Under The Fact C. Alleged In The Complaint 25 26 "A demurrer can be used only to challenge defects that appear on the face of the pleadin 27 under attack; or from matters outside the pleading that are judicially noticeable." (Weil & Brown 28 Page 4 Cal. Prac. Guide: Civ. Pro. Before Trial,§ 7:8.) "Judicial notice of other court records and files i 2 limited to matters that are indisputably true. This generally means judicial notice is limited to th 3 orders and judgments in the other court file, as distinguished from the contents of documents file 4 therein." (Id. at§ 7:15.) "In ruling on a demurrer, a court may consider facts of which it has take 5 judicial notice. [Citation] This includes the existence ofa document. Whcnjudicial notice is take 6 of a document, however, the truthfulness and proper interpretation of the document ar 7 disputable." (Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660. 8 "[A] court ruling on a demurrer cannot decide a question that may depend on disputed facts b 9 JO means of judicial notice." (Id. at 660.) "[J]udicial notice of matters upon demurrer will b 11 dispositive only in those instances where there is not or cannot be a factual dispute concerning tha 12 which is sought to be judicially noticed."(Jbid.) The mailing of a return of late claim letter fo 13 Cooper and Melodi is disputed, and therefore, outside this demurrer. 14 Moreover, Plaintiffs inquired as to whether Cooper and Melodi's claim was time! 15 presented. (Defendants' RJN Exhibit 3, Exhibit G.) Plaintiffs stated to CUSD the following: 16 "The law firm of Georgeson and Belardinelli has been retained 17 by Laura Burke, Tammi Cooper, and Cindy Pro11111itz regarding their and their daughters respective claims emanating from the 18 conduct of your employee Ms. Stacy Schiro directed at their respective daughters-Rachel Burke, Melodi Cooper, and Maddie 19 Promnitz. 20 * • * 21 It is interesting CUSD has returned the claims of Rachel Burke and 22 Maddie Pro11111itz while accepting the claim of Melodi Cooper as timely-all three of the girls' claims emanate from the same events 23 and occurrences and were presented on the same day to CUSD. How can this be? 24 On the ground that Rachel Burke and Maddie Promnitz have 25 presented the same claims arising from the same events and 26 timeframe against CUSD and Ms. Schiro as Melodi Cooper-all three simultaneously served on June 25, 2018-Rachel and 27 Maddie's claims are therefore timely too. 28 Page 5 * * * 2 If Rachel and Maddie's request to present a late claim is denied by CUSD, even though Melodi Cooper's claim was accepted as timely, 3 Rachel and Maddie will be forced to file this matter in court where 4 the doctrine of equitable estoppel will be prohibit CUSD from asserting late claim presentment as a bar to recovery." 5 (Ibid. [Emphasis added].) 6 CUSD was informed that Cooper and Melodi were represented by the undersigned counsel at tha 7 moment, and decided not to infmm their counsel that his assertions were incmTect, and the retu 8 9 oflate claim was returned to sender on or about August 15, 2018. (Defendants' RJN Ex. 3, Ex. F. 10 Lastly, the doctrines of equitable estoppel, equitable tolling, substantial compliance via th 11 November 1, 2017 claim letter, amendment to the claim, and an agreed upon extension to th 12 claim. Facts of all of which are pied in the Complaint. The documents evidencing these allegation 13 and legal defenses are mentioned in the Compliant, but not attached thereto, and are thus no 14 properly before the Com1 determination because the parties disagree as to what they mean. That i 15 if you review the Order denying the Petition for to Present a Late Claim, parties disagree as to th 16 meaning and effect of the words used therein. (Defendants' RJN Ex. 6.) The Arguments made b 17 Plaintiffs Burke, Promnitz, Rachel, and Maddie in the pleadings on the Petition to Present a Lat 18 Claim are all incorporated herein by this reference and through Defendants' RJN Exhibits 2 and 19 20 4, as to all Plaintiffs. 21 D. The Dual Filing Was Procedurally Proper 22 "Where there is any question concerning compliance with claim presentation requirements, 23 careful practitioners should go both ways: i.e.,if appropriate, file a lawsuit alleging complianc 24 with claim presentation requirements, while simultaneously petitioning for relief under Gov.C. § 25 946.6." (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial,§ 1 :824.) 26 E. The Sole Cause of Action Brought On Behalf Of the Mothers Cooper, Burke 27 and Promnitz is for An Accounting/Audit 28 Page 6 The Mothers, Tammi Cooper, Laura Burke, and Cindy Promnitz are only parties to th 2 Eighth Cause of Action for an Audit/Accounting. 3 F. Plaintiffs' Second Cause of Action For Breach Of A Mandatory Du 4 Government Code§ 815.6 States A Claim Against Defendants 5 California Constitution Article I Section 28 is a constitutional enactment which L 6 incorporated into California Education Code § 32261 (a) states, "The Legislature hereby recognize 7 that all pupils enrolled in the state public schools have the inalienable right to attend classes 01 8 school campuses that are safe, secure, and peaceful." California Code of Regulations title 5 § 559 9 and Education Code §§ 33031 and 35179. 7 requires school districts to implement the code o 10 ethical conduct alleged in the Complaint, ethical codes which Schiro has violated. "A special 11 relationship is formed between a school district and its students resulting in the imposition of a 12 afilrmative duty on the school district to take all reasonable steps to protect its students." (M W. 13 v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517.) "Based on prio 14 15 case law and the characteristics of public education along with recent statutory pronouncements, 16 we readily come to the conclusion that a special relationship is formed between a school distric 17 and its students so as to impose an affirmative duty on the district to take all reasonable steps t 18 protect its students." (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707 19 715 [Emphasis added].) "All pupils have the right to participate fully in the educational process, 20 free from discrimination and harassment." (Ed. Code, § 201.) 21 These are all mandatory duties which are clearly defined and which Schiro's breaches ar 22 clearly alleged. 23 Plaintiffs' Request Leave To Amend The Third Cause Of Action 24 Plaintiffs request leave to amend the Third Cause of Action to allege Gross Negligence and 25 26 Wanton, Willful and Reckless misconduct. Denial ofleave to amend at this stage of the proceed in 27 would be an abuse of discretion as it is an abuse of discretion for the Court to deny leave to amen 28 Page 7 where there is any reasonable possibility that Plaintiff can state a good cause of action. (Goodma 2 v. Kennedy (1976) 18 Cal.3d 335, 349.) 3 H. Plaintiffs' Fourth, Fifth, and Seventh Causes Of Action State Sufficient Fact 4 Upon Which relief Can Be Granted 5 As described above the Plaintiffs, each of them, are not barred form bring these Cause o 6 Action. 7 Also, Cooper and Melodi are not barred by the order denying the Petition to Present a Lat 8 claim because they were not parties thereto. 9 Moreover, if the Court does determine that the order denying the Petition to Present a Lat 10 Claim does bar these Causes of Action, Plaintiffs request a stay and/or continuance on thes 1l demurrer proceedings until a final judgment has been rendered on the Appeal therefrom. 12 I. Plaintiffs' Eighth Cause Of Is Not Uncertain and Is Sufficient 13 The Eighth Cause of Action isfor the Court to use its equitable powers and order that a 14 15 audit be undertaken by CUSD for the alleged financial improprieties of Schiro and in accord wit! 16 CUSD's promise to Plaintiffs that one would be untaken and the results thereof shared wit 17 Plaintiffs. Denial ofleave to amend at this stage of the proceeding would be an abuse of discretio 18 as it is an abuse of discretion for the Court to deny leave to amend where there is any reasonabl 19 possibility that Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 20 335, 349.) 21 3. 22 CONCLUSION 23 Plaintiffs Complaint is the first complaint filed in this action. Any deficiencies existing i 24 the current claim on any grounds asserted by Defendants can be rectified by additional and 25 corrective pleadings of additional facts that clarify uncertainties, if any, and perhaps support othe 26 causes of action not previously alleged that are consistent with the factual circumstances. Althoug 27 28 Page 8 1 clearly unnecessary, specific additional factual allegations pertaining to the malice and allegation 2 supporting punitive damages can be and will be alleged. 3 Therefore, leave to amend is requested including leave to add additional causes of action 4 if any. Denial of leave lo amend at this stage of the proceeding would be an abuse of discretion a 5 it is an abuse of discretion for the Court to deny leave lo amend where there is any reasonabl 6 possibility that Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 7 335, 349.) To sustain the demurrer without leave to amend would result in substantial injustice and 8 irreparable harm to the Plaintiff and unjustly benefit Defendants and sanction Plaintiffs. 9 10 Alternatively, if the Court sustains Defendants' Demurrer on the ground that Plaintiff 11 cannot state a cause of action because of the denial of Plaintiffs' Petition lo Present A Late Claim 12 Plaintiffs, and each of them, request the Court to stay this Demurrer proceeding until there is 13 final ruling on Plaintiffs' Appeal to the order denying their Petition to Present A Late Claim. 14 15 DATED: June 13, 2019 GEORGESON AND BELARDTNELLI 16 17 18 19 By---/-__'::::~-1L.-t-.?--_/,L----"--L_""_-----"~~~I obert J. Will , 20 Attorneys for Plaintiffs, TAMMI COOPER, LAURA BURKE, CINDY PROMNTTZ, 21 MELODI COOPER, RACHEL BURKE, and MADDIE PROMNITZ 22 23 24 25 26 27 28 Page 9 PROOF OF SERVICE [1013A(3) CCP] STATE OF CALIFORNIA) ' ) ss. COUNTY OF FRESNO ) 4 I am employed in the County of Fresno, State of California. I am over the age of 18 and not party to the within action; my business address is: 7060 N. Fresno Street, Suite 250, Fresno, California. On June 13, 2019, I served the foregoing document described as PLAINTIFFS' MEMO- RANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS CLO- VIS UNIFIED SCHOOL DISTRICT AND STACEY SCHIRO'S DEMURRER TO PLAIN- TIFFS' COMPLAINT on the party/parties named below in said action by placing D the original a true copy thereof enclosed in a sealed envelope address as follows: C><:] 10 VIA U.S. MAIL and EMAIL II Anthony N. DeMaria, Esq. McCormick Barstow, LLP 12 7647 North Fresno Street Fresno, California 93720 " D BY OVERNIGHT DELIVERY: I deposited the document in a box or other facility reg- 14 ularly maintained by UPS and in an envelope or package designated by the UPS with delivery fees 15 paid or provided for. 16 C><:] STATE: I declare under penalty of perjury under the laws of the State of California that th above is true and correct. 25 26 27 28 Kellie Dundore t/1,Pl,(JlcS'.>S,\){/) lll'L,\RDISFl.11 ,\1"]()RNl'\"S,\ll.,\',\ 71160N. FkLSS<>SlaJSl'T SlllllS1511 ]'1.C's •)J7lf) (5:\~)'147·~~111)