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1 ERIC J. BENGTSON—BAR NO. 254167
MORGAN W. HANSEN—BAR NO. 257846 4/16/2024
2 DAVIS, BENGTSON & YOUNG, APLC
1960 The Alameda, Suite 210
3 San Jose, CA 95126
Phone: 669.245.4200
4 Fax: 408.985.1814 No Filing Fee for a Public Entity
Email: eric@dby-law.com or its Employees (Gov’t Code §6103)
5
Attorneys for Defendant
6 REDWOOD CITY SCHOOL DISTRICT
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
9
10 A.A., by and through his Guardian ad Litem, Case No. 24-CIV-01556
F.K., (Assigned for All Purposes to the
11 Hon. V. Raymond Swope, Dept. 23)
Plaintiff,
12 MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
13 DEFENDANT REDWOOD CITY SCHOOL
REDWOOD CITY SCHOOL DISTRICT; DISTRICT’S DEMURRER TO COMPLAINT
14 and DOES 1-50, inclusive 14
Date: October 7, 2024
15 Defendants. Time: 2:00 p.m.
Dept.: 23
16 Judge: Hon. V. Raymond Swope
17
Complaint Filed: 3/11/24
18 Trial Date: tbd
19
20 I. INTRODUCTION
21 Defendant REDWOOD CITY SCHOOL DISTRICT (“District), a public school district/public
22 entity, submits the following Memorandum of Points and Authorities in support of its Demurrer to
23 Plaintiff A.A.’s (“Plaintiff”) March 11, 2024, San Mateo County Superior Court (“Complaint”).
24 Specifically, the demurrer attacks the sufficiency of both causes of action asserted in the
25 Complaint: the first cause of action for “Violation of Mandatory Statutory Duties” and the second
26 cause of action, which includes “Negligent Training” and “Negligent Entrustment.”
27 ///
28 ///
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 II. STATEMENT OF FACTS
2 A. Allegations in Complaint
3 The Plaintiff alleges that on or about November 28, 2023, he was sent to his elementary
4 school’s “Chill Room” by his teacher. (Complaint, ¶10). He contends that another minor student,
5 Student X, came into the “Chill Room” while Plaintiff was there unsupervised. (Id., ¶12). Plaintiff
6 then contends that Student X chased him, tackled him, removed his pants, and sexually assaulted him.
7 (Id., ¶13).
8 B. The Causes of Action
9 The Complaint asserts two separate causes of action in total: (1) Violation of Mandatory
10 Statutory Duties and (2) Negligent Supervision, Training, Retention & Entrustment.
11 C. Meet and Confer Obligations Fulfilled
12 The parties have met and conferred pursuant to statutory requirements. (See Decl. of Counsel).
13 D. Concurrently Filed Motion to Strike
14 In the event that this Court does not consider Plaintiff’s causes of action for Negligent Training
15 and Negligent Entrustment as separate and distinctive causes of actions procedurally susceptible to a
16 demurrer, the District has concurrently filed a motion to strike seeking an order eliminating any
17 phrasing suggestive of such breaches.
18 III. STANDARD ON DEMURRER
19 A demurrer tests the legal sufficiency of the pleading. Its function is to raise issues of law, not
20 fact, regarding the content of the pleading. (Donabedian v. Mercury Insurance Company (2004)
21 116 Cal.App.4th 968, 994.) A demurrer is properly sustained where the pleading does not state facts
22 sufficient to constitute a cause of action. (CCP § 430.10(e).) Where a claim is based on a
23 constitutionally infirm statute, the constitutionality of the statute is properly raised in a demurrer.
24 (Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 175 [affirming order sustaining demurrer that challenged
25 the constitutionality of the 2003 amendment to CCP § 340.1].) When the moving party demonstrates
26 that a cause of action fails to state facts sufficient to constitute a cause of action, the court
27 must determine whether there is a reasonable possibility that the defect can be cured by amendment.
28 (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 squarely on the plaintiff.” (Id.) If the plaintiff does not carry that burden, the demurrer should be
2 sustained without leave to amend. (Id.)
3 Since all local agency liability is based on statute under the Government Claims Act, the
4 general rule that statutory causes of action must be pleaded with particularity applies, meaning every
5 fact material to the existence of statutory liability must be pleaded with particularity. (Lopez v.
6 Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) In cases where a claim must be
7 presented to the governmental entity prior to the filing of a lawsuit, compliance with those
8 requirements must be pleaded. (Bodde, 32 Cal.4th at 1239.)
9 IV. ARGUMENT
10 A. The First Cause of Action Is Subject to Demurrer Because The Complaint Fails
to Articulate Any Facts to Support A Claim For Breach of Mandatory Statutory
11 Duty.
12 In support of Plaintiff’s first cause of action for “Violation of Mandatory Statutory Duties”,
13 Plaintiff contends that the District had a duty to provide him a safe place to attend school and that
14 the District owed Plaintiff a” duty of care to provide safe care and supervision.” (Complaint, ¶21).
15 The Complaint then suggests that the District breached mandatory statutory duties found under
16 Education Code Sections 44807 and 44808 and California Code of Regulations, Title 5, Section
17 5552. (Id.)
18 As a public entity, the District can only be liable for duties specifically created by statute.
19 Common law tort liability is precluded against public entities. (Miklosy v. Regents of University of
20 California (2008) 44 Cal.4th 876.) As the Legislative Committee Comments to Government Code §
21 815 explain, “the practical effect of this section is to eliminate any common law governmental
22 liability for damages arising out of torts.” (Odello Bros. v. County of Monterey (1998) 63
23 Cal.App.4th 778, 792, as modified (June 1, 1998); Thompson v. City of Lake Elsinore (1993) 18
24 Cal.App.4th 49, 63.) Further “[t]here is no common law governmental tort liability in California;
25 and except as provided by statute, there is no liability on the part of a public entity for any act or
26 omission of itself, a public employee, or any other person.” (Green Valley Landowners Association
27 v. City of Vallejo (2015) 241 Cal.App.4th 425, 441-442.)
28 In other words, public entities can only be held liable if a statute declares them to be liable.
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 (Gov. Code § 815(a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) The statute
2 must impose a mandatory duty. Gov. Code § 815.6 clarifies:
3 “Where a public entity is under a mandatory duty imposed by an enactment that is
designed to protect against the risk of a particular kind of injury, the public entity is
4 liable for an injury of that kind proximately caused by its failure to discharge the duty
unless the public entity establishes that it exercised reasonable diligence to discharge
5
the duty.” (Cal. Gov Code Section 815.6.)
6
7 In support of his First Cause of Action for Violation of Mandatory Statutory Duties, the
8 Plaintiff broadly states that the District “had a duty to provide [him] a safe place to attend school and,
9 by reason of their special relationship with him, an additionally duty of care to provide [plaintiff]
10 proper safety care and supervision while she was at [school].” (Complaint, ¶21). More specifically,
11 the Plaintiff claims that the District violated Education Code Sections 44807 and 44808 and California
12 Code of Regulations, Title 5, Section 5552. (Id.) The inclusion of these statutes belies the facts
13 presented in the Complaint.
14 Education Code Sections 44807 states, in pertinent part, that “every teacher in the public
15 schools shall hold pupils to a strict account for their conduct on the way to and from school, on the
16 playgrounds, or during recess.” Despite this, the alleged incident did not take place on the way to or
17 from school nor did it occur on the playground or doing recess. Furthermore, Education Code section
18 44807 requires only "teacher[s]" to hold pupils to a strict account for their conduct; it does not purport
19 to impose a mandatory duty more broadly on any public entity. Hoff v. Vacaville Unified School Dist.,
20 19 Cal. 4th 925, 939. There is no independent cause of action for a breach of this statute.
21 Similarly, Education Code Section 44808 provides that no school district shall be responsible
22 for the safety of any pupil of the public schools at any time when the pupil is not on school property
23 unless the district has undertaken to provide transportation for the pupil to and from the school
24 premises, has undertaken a school sponsored activity off the premises of such school, or has otherwise
25 specifically assumed such responsibility or has failed to exercise reasonable care under the
26 circumstances.
27 The inclusion of Education Code Section 44808 in the Complaint is firstly odd because it is
28 often cited by public school districts – not students - to cloak public school districts with immunity
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 for off-campus injuries. Furthermore, the incident in question occurred on campus – not off campus.
2 Finally, it is not apparent what relevance the statute has in this matter. There are no facts to support a
3 breach of this statute. Nor is there any basis for an independent cause of action under this specific
4 statute.
5 Finally, California Code of Regulations, Title 5, Section 5552 governs playground
6 supervision. Specifically, it mandates that the principal provides supervision of pupils on school
7 grounds during recess where playground supervision is not otherwise available. Again, there are no
8 facts in the Complaint to support the inclusion of this statute: it says nothing of recess or playground
9 supervision.
10 In summary, the Complaint has not articulated a successful breach of mandatory duty cause
11 of action.
12 B. The Second Cause of Action Fails Because Negligent Training and Negligent
Entrustment Are Not Recognized Common Law Causes of Action Against
13 Public Entity Defendants.
14 1. Public school districts are public entities not liable for injury except as
otherwise provided by statute.
15
16 All liability against public entities must be based on statute. (See Gov. Code § 815; Lopez v.
17 S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) “Ordinarily, negligence may be pleaded
18 in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the
19 breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability
20 is based on statute, the general rule that statutory causes of action must be pleaded with particularity
21 is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the
22 existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid
23 Transit Dist. (1985) 40 Cal.3d 780, 795.)
24 2. There is no legally cognizable common law theory of “negligent training”
against a public school district.
25
26 Government Code section 815 requires a statutory basis for the imposition of direct liability
27 on a public entity. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1182.)
28 Plaintiff’s claim of negligent training is a direct liability claim in that it alleges negligence by the
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 District. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127 [distinguishing between direct
2 and vicarious liability of a public entity]; cf. C.A. v. William S. Hart Union High School Dist. (2012)
3 53 Cal.4th 861, 868, [addressing theory that public entity was vicariously liable for the actions of
4 administrative or supervisory personnel in hiring, supervising and retaining other employees].)
5 To the extent that other courts have discovered a duty to train, this was indisputably a duty
6 created solely through common law by the Court’s ruling in Juarez v. Boy Scouts of America, Inc.
7 (2000) 81 Cal. App.4th 377 (“Juarez”). Further, the Juarez opinion imposed a duty on the Boy Scouts
8 of America (and that entity only) to educate, train and warn Scouts about the dangers of childhood
9 sexual abuse. Even the Juarez court emphasized that “the reach of [its] opinion is only intended to
10 extend as far as the records before [it] today.” (Juarez, supra, at p. 409) (emphasis added.) The Juarez
11 holding is narrow; in fact, no subsequent California cases have expanded its decision beyond the Boy
12 Scouts of America. The District is immune from this or any common law duty. (Green Valley
13 Landowners Association v. City of Vallejo (2015) 241 Cal.App.4th 425, 442.) Consequently, to the
14 extent that the Complaint articulates an independent cause of action for “negligent training”, that cause
15 of action is subject to demurrer without leave to amend.
16 3. There is no legally cognizable common law theory of “negligent
entrustment” against a public school district.
17
18 With respect to “negligent entrustment,” the Complaint fails to identify any statutory basis
19 for the District’s liability for this common law cause of action. As noted above, Section 815, sub. (a)
20 and 815.6 require an authorizing statute or enactment before a governmental entity such as a public
21 school district can be liable in tort. There is simply no authority permitting a common law cause of
22 action for “negligent entrustment” against a public school district defendant. Consequently, to the
23 extent that the Complaint articulates an independent cause of action for “negligent entrustment”, that
24 cause of action is subject to demurrer without leave to amend.
25 C. This Demurrer Should Be Sustained Without Leave to Amend.
26 If there is a reasonable possibility the defect in a Complaint can be cured by amendment, the
27 court should allow the plaintiff leave to amend the complaint. (Association of Community
28 Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298,
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 302.) “The burden is on plaintiff, however, to demonstrate the manner in which the complaint might
2 be amended.” (Id.) Here, where these causes of action at issue could not survive even with an
3 opportunity to add supplemental facts, an order sustaining the demurrer without leave to amend is
4 appropriate.
5 V. CONCLUSION
6 Based upon the foregoing, the District respectfully requests that this Court sustain its demurrer
7 to the Complaint without leave to amend.
8 DATED: April 16, 2024
9 Respectfully submitted,
10 DAVIS, BENGTSON & YOUNG, APLC
11
12 By
Eric J. Bengtson
13 Attorneys for Defendant
REDWOOD CITY SCHOOL DISTRICT
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
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1 PROOF OF SERVICE
2 I, the undersigned, say:
3 I am a citizen of the United States. My business address is 1960 The Alameda, Suite 210,
San Jose, CA 95126. I am employed with Davis Bengtson & Young, APLC in the County of Santa
4 Clara, where this service occurs. I am over the age of 18 years, and not a party to the within matter.
On the date set forth below, I served the attached document(s) described as follows:
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
6 REDWOOD CITY SCHOOL DISTRICT’S DEMURRER TO COMPLAINT
7 on the following person(s) in this action by providing a true copy thereof, to the following:
8 Attorneys for Plaintiff
Ramin Kermani-Nejad
9 Mohamad Ahmad
Hani Ganji
10 Kermani LLP
2719 Wilshire Boulevard, Suite 250
11 Santa Monica, CA 90403
424-253-4254
12 rk@kermanillp.com
ma@kermanillp.com
13 hg@kermanillp.com
14 [ ] (BY MAIL) I am familiar with my firm’s practice for collecting and processing correspondence for
mailing with the United States Postal Service, to wit, that correspondence will be deposited with the United
15 States Postal Service this same day in the ordinary course of business. Following ordinary business practices,
I sealed said envelope and placed it for collection and mailing on April 16, 2024.
16
[ ] (BY OVERNIGHT MAIL) I enclosed the documents in an envelope or package provided by an overnight
17 delivery carrier and addressed to the person(s) at the address(es) listed above. I placed the envelope or
package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight
18 delivery carrier.
19 [XX] (BY EMAIL OR ELECTRONIC TRANSMISSION) I caused the documents to be sent to the person(s)
at the electronic service address(es) listed above.
20
I declare under penalty of perjury under the laws of the State of California that the foregoing
21
is true and correct and that this Declaration was executed on April 16, 2024.
22
23
24
Julie Heaton
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Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint
Preview
.92422 1 ERIC J. BENGTSON—BAR NO. 254167 MORGAN W. HANSEN—BAR NO. 257846 4/16/2024 2 DAVIS, BENGTSON & YOUNG, APLC 1960 The Alameda, Suite 210 3 San Jose, CA 95126 Phone: 669.245.4200 4 Fax: 408.985.1814 No Filing Fee for a Public Entity Email: eric@dby-law.com or its Employees (Gov’t Code §6103) 5 Attorneys for Defendant 6 REDWOOD CITY SCHOOL DISTRICT 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 9 10 A.A., by and through his Guardian ad Litem, Case No. 24-CIV-01556 F.K., (Assigned for All Purposes to the 11 Hon. V. Raymond Swope, Dept. 23) Plaintiff, 12 MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF 13 DEFENDANT REDWOOD CITY SCHOOL REDWOOD CITY SCHOOL DISTRICT; DISTRICT’S DEMURRER TO COMPLAINT 14 and DOES 1-50, inclusive 14 Date: October 7, 2024 15 Defendants. Time: 2:00 p.m. Dept.: 23 16 Judge: Hon. V. Raymond Swope 17 Complaint Filed: 3/11/24 18 Trial Date: tbd 19 20 I. INTRODUCTION 21 Defendant REDWOOD CITY SCHOOL DISTRICT (“District), a public school district/public 22 entity, submits the following Memorandum of Points and Authorities in support of its Demurrer to 23 Plaintiff A.A.’s (“Plaintiff”) March 11, 2024, San Mateo County Superior Court (“Complaint”). 24 Specifically, the demurrer attacks the sufficiency of both causes of action asserted in the 25 Complaint: the first cause of action for “Violation of Mandatory Statutory Duties” and the second 26 cause of action, which includes “Negligent Training” and “Negligent Entrustment.” 27 /// 28 /// -1- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 II. STATEMENT OF FACTS 2 A. Allegations in Complaint 3 The Plaintiff alleges that on or about November 28, 2023, he was sent to his elementary 4 school’s “Chill Room” by his teacher. (Complaint, ¶10). He contends that another minor student, 5 Student X, came into the “Chill Room” while Plaintiff was there unsupervised. (Id., ¶12). Plaintiff 6 then contends that Student X chased him, tackled him, removed his pants, and sexually assaulted him. 7 (Id., ¶13). 8 B. The Causes of Action 9 The Complaint asserts two separate causes of action in total: (1) Violation of Mandatory 10 Statutory Duties and (2) Negligent Supervision, Training, Retention & Entrustment. 11 C. Meet and Confer Obligations Fulfilled 12 The parties have met and conferred pursuant to statutory requirements. (See Decl. of Counsel). 13 D. Concurrently Filed Motion to Strike 14 In the event that this Court does not consider Plaintiff’s causes of action for Negligent Training 15 and Negligent Entrustment as separate and distinctive causes of actions procedurally susceptible to a 16 demurrer, the District has concurrently filed a motion to strike seeking an order eliminating any 17 phrasing suggestive of such breaches. 18 III. STANDARD ON DEMURRER 19 A demurrer tests the legal sufficiency of the pleading. Its function is to raise issues of law, not 20 fact, regarding the content of the pleading. (Donabedian v. Mercury Insurance Company (2004) 21 116 Cal.App.4th 968, 994.) A demurrer is properly sustained where the pleading does not state facts 22 sufficient to constitute a cause of action. (CCP § 430.10(e).) Where a claim is based on a 23 constitutionally infirm statute, the constitutionality of the statute is properly raised in a demurrer. 24 (Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 175 [affirming order sustaining demurrer that challenged 25 the constitutionality of the 2003 amendment to CCP § 340.1].) When the moving party demonstrates 26 that a cause of action fails to state facts sufficient to constitute a cause of action, the court 27 must determine whether there is a reasonable possibility that the defect can be cured by amendment. 28 (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is -2- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 squarely on the plaintiff.” (Id.) If the plaintiff does not carry that burden, the demurrer should be 2 sustained without leave to amend. (Id.) 3 Since all local agency liability is based on statute under the Government Claims Act, the 4 general rule that statutory causes of action must be pleaded with particularity applies, meaning every 5 fact material to the existence of statutory liability must be pleaded with particularity. (Lopez v. 6 Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) In cases where a claim must be 7 presented to the governmental entity prior to the filing of a lawsuit, compliance with those 8 requirements must be pleaded. (Bodde, 32 Cal.4th at 1239.) 9 IV. ARGUMENT 10 A. The First Cause of Action Is Subject to Demurrer Because The Complaint Fails to Articulate Any Facts to Support A Claim For Breach of Mandatory Statutory 11 Duty. 12 In support of Plaintiff’s first cause of action for “Violation of Mandatory Statutory Duties”, 13 Plaintiff contends that the District had a duty to provide him a safe place to attend school and that 14 the District owed Plaintiff a” duty of care to provide safe care and supervision.” (Complaint, ¶21). 15 The Complaint then suggests that the District breached mandatory statutory duties found under 16 Education Code Sections 44807 and 44808 and California Code of Regulations, Title 5, Section 17 5552. (Id.) 18 As a public entity, the District can only be liable for duties specifically created by statute. 19 Common law tort liability is precluded against public entities. (Miklosy v. Regents of University of 20 California (2008) 44 Cal.4th 876.) As the Legislative Committee Comments to Government Code § 21 815 explain, “the practical effect of this section is to eliminate any common law governmental 22 liability for damages arising out of torts.” (Odello Bros. v. County of Monterey (1998) 63 23 Cal.App.4th 778, 792, as modified (June 1, 1998); Thompson v. City of Lake Elsinore (1993) 18 24 Cal.App.4th 49, 63.) Further “[t]here is no common law governmental tort liability in California; 25 and except as provided by statute, there is no liability on the part of a public entity for any act or 26 omission of itself, a public employee, or any other person.” (Green Valley Landowners Association 27 v. City of Vallejo (2015) 241 Cal.App.4th 425, 441-442.) 28 In other words, public entities can only be held liable if a statute declares them to be liable. -3- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 (Gov. Code § 815(a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) The statute 2 must impose a mandatory duty. Gov. Code § 815.6 clarifies: 3 “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is 4 liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge 5 the duty.” (Cal. Gov Code Section 815.6.) 6 7 In support of his First Cause of Action for Violation of Mandatory Statutory Duties, the 8 Plaintiff broadly states that the District “had a duty to provide [him] a safe place to attend school and, 9 by reason of their special relationship with him, an additionally duty of care to provide [plaintiff] 10 proper safety care and supervision while she was at [school].” (Complaint, ¶21). More specifically, 11 the Plaintiff claims that the District violated Education Code Sections 44807 and 44808 and California 12 Code of Regulations, Title 5, Section 5552. (Id.) The inclusion of these statutes belies the facts 13 presented in the Complaint. 14 Education Code Sections 44807 states, in pertinent part, that “every teacher in the public 15 schools shall hold pupils to a strict account for their conduct on the way to and from school, on the 16 playgrounds, or during recess.” Despite this, the alleged incident did not take place on the way to or 17 from school nor did it occur on the playground or doing recess. Furthermore, Education Code section 18 44807 requires only "teacher[s]" to hold pupils to a strict account for their conduct; it does not purport 19 to impose a mandatory duty more broadly on any public entity. Hoff v. Vacaville Unified School Dist., 20 19 Cal. 4th 925, 939. There is no independent cause of action for a breach of this statute. 21 Similarly, Education Code Section 44808 provides that no school district shall be responsible 22 for the safety of any pupil of the public schools at any time when the pupil is not on school property 23 unless the district has undertaken to provide transportation for the pupil to and from the school 24 premises, has undertaken a school sponsored activity off the premises of such school, or has otherwise 25 specifically assumed such responsibility or has failed to exercise reasonable care under the 26 circumstances. 27 The inclusion of Education Code Section 44808 in the Complaint is firstly odd because it is 28 often cited by public school districts – not students - to cloak public school districts with immunity -4- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 for off-campus injuries. Furthermore, the incident in question occurred on campus – not off campus. 2 Finally, it is not apparent what relevance the statute has in this matter. There are no facts to support a 3 breach of this statute. Nor is there any basis for an independent cause of action under this specific 4 statute. 5 Finally, California Code of Regulations, Title 5, Section 5552 governs playground 6 supervision. Specifically, it mandates that the principal provides supervision of pupils on school 7 grounds during recess where playground supervision is not otherwise available. Again, there are no 8 facts in the Complaint to support the inclusion of this statute: it says nothing of recess or playground 9 supervision. 10 In summary, the Complaint has not articulated a successful breach of mandatory duty cause 11 of action. 12 B. The Second Cause of Action Fails Because Negligent Training and Negligent Entrustment Are Not Recognized Common Law Causes of Action Against 13 Public Entity Defendants. 14 1. Public school districts are public entities not liable for injury except as otherwise provided by statute. 15 16 All liability against public entities must be based on statute. (See Gov. Code § 815; Lopez v. 17 S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) “Ordinarily, negligence may be pleaded 18 in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the 19 breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability 20 is based on statute, the general rule that statutory causes of action must be pleaded with particularity 21 is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the 22 existence of its statutory liability must be pleaded with particularity.’” (Lopez v. Southern Cal. Rapid 23 Transit Dist. (1985) 40 Cal.3d 780, 795.) 24 2. There is no legally cognizable common law theory of “negligent training” against a public school district. 25 26 Government Code section 815 requires a statutory basis for the imposition of direct liability 27 on a public entity. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1182.) 28 Plaintiff’s claim of negligent training is a direct liability claim in that it alleges negligence by the -5- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 District. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127 [distinguishing between direct 2 and vicarious liability of a public entity]; cf. C.A. v. William S. Hart Union High School Dist. (2012) 3 53 Cal.4th 861, 868, [addressing theory that public entity was vicariously liable for the actions of 4 administrative or supervisory personnel in hiring, supervising and retaining other employees].) 5 To the extent that other courts have discovered a duty to train, this was indisputably a duty 6 created solely through common law by the Court’s ruling in Juarez v. Boy Scouts of America, Inc. 7 (2000) 81 Cal. App.4th 377 (“Juarez”). Further, the Juarez opinion imposed a duty on the Boy Scouts 8 of America (and that entity only) to educate, train and warn Scouts about the dangers of childhood 9 sexual abuse. Even the Juarez court emphasized that “the reach of [its] opinion is only intended to 10 extend as far as the records before [it] today.” (Juarez, supra, at p. 409) (emphasis added.) The Juarez 11 holding is narrow; in fact, no subsequent California cases have expanded its decision beyond the Boy 12 Scouts of America. The District is immune from this or any common law duty. (Green Valley 13 Landowners Association v. City of Vallejo (2015) 241 Cal.App.4th 425, 442.) Consequently, to the 14 extent that the Complaint articulates an independent cause of action for “negligent training”, that cause 15 of action is subject to demurrer without leave to amend. 16 3. There is no legally cognizable common law theory of “negligent entrustment” against a public school district. 17 18 With respect to “negligent entrustment,” the Complaint fails to identify any statutory basis 19 for the District’s liability for this common law cause of action. As noted above, Section 815, sub. (a) 20 and 815.6 require an authorizing statute or enactment before a governmental entity such as a public 21 school district can be liable in tort. There is simply no authority permitting a common law cause of 22 action for “negligent entrustment” against a public school district defendant. Consequently, to the 23 extent that the Complaint articulates an independent cause of action for “negligent entrustment”, that 24 cause of action is subject to demurrer without leave to amend. 25 C. This Demurrer Should Be Sustained Without Leave to Amend. 26 If there is a reasonable possibility the defect in a Complaint can be cured by amendment, the 27 court should allow the plaintiff leave to amend the complaint. (Association of Community 28 Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, -6- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 302.) “The burden is on plaintiff, however, to demonstrate the manner in which the complaint might 2 be amended.” (Id.) Here, where these causes of action at issue could not survive even with an 3 opportunity to add supplemental facts, an order sustaining the demurrer without leave to amend is 4 appropriate. 5 V. CONCLUSION 6 Based upon the foregoing, the District respectfully requests that this Court sustain its demurrer 7 to the Complaint without leave to amend. 8 DATED: April 16, 2024 9 Respectfully submitted, 10 DAVIS, BENGTSON & YOUNG, APLC 11 12 By Eric J. Bengtson 13 Attorneys for Defendant REDWOOD CITY SCHOOL DISTRICT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint .92422 1 PROOF OF SERVICE 2 I, the undersigned, say: 3 I am a citizen of the United States. My business address is 1960 The Alameda, Suite 210, San Jose, CA 95126. I am employed with Davis Bengtson & Young, APLC in the County of Santa 4 Clara, where this service occurs. I am over the age of 18 years, and not a party to the within matter. On the date set forth below, I served the attached document(s) described as follows: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT 6 REDWOOD CITY SCHOOL DISTRICT’S DEMURRER TO COMPLAINT 7 on the following person(s) in this action by providing a true copy thereof, to the following: 8 Attorneys for Plaintiff Ramin Kermani-Nejad 9 Mohamad Ahmad Hani Ganji 10 Kermani LLP 2719 Wilshire Boulevard, Suite 250 11 Santa Monica, CA 90403 424-253-4254 12 rk@kermanillp.com ma@kermanillp.com 13 hg@kermanillp.com 14 [ ] (BY MAIL) I am familiar with my firm’s practice for collecting and processing correspondence for mailing with the United States Postal Service, to wit, that correspondence will be deposited with the United 15 States Postal Service this same day in the ordinary course of business. Following ordinary business practices, I sealed said envelope and placed it for collection and mailing on April 16, 2024. 16 [ ] (BY OVERNIGHT MAIL) I enclosed the documents in an envelope or package provided by an overnight 17 delivery carrier and addressed to the person(s) at the address(es) listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight 18 delivery carrier. 19 [XX] (BY EMAIL OR ELECTRONIC TRANSMISSION) I caused the documents to be sent to the person(s) at the electronic service address(es) listed above. 20 I declare under penalty of perjury under the laws of the State of California that the foregoing 21 is true and correct and that this Declaration was executed on April 16, 2024. 22 23 24 Julie Heaton 25 26 27 28 -8- Memorandum of Points and Authorities in Support of Defendant Redwood City School District’s Demurrer to Complaint