Clausing v. San Francisco Unified School Dist.

• Decision Date: 29 June 1990
• Docket Number: No. A043529,A043529
• Citation: 271 Cal.Rptr. 72,221 Cal.App.3d 1224
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 Ed. Law Rep. 173 Robert CLAUSING, an Incompetent Person, etc., et al., Plaintiffs and Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

Page 72

271 Cal.Rptr. 72

221 Cal.App.3d 1224, 61 Ed. Law Rep. 173

Robert CLAUSING, an Incompetent Person, etc., et al., Plaintiffs and Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

No. A043529.

Court of Appeal, First District, Division 3, California.

June 29, 1990.

Rehearing Denied July 30, 1990.

Review Denied Sept. 20, 1990.

Edna C. Espanol, San Francisco, for plaintiffs and appellants.

Louise H. Renne, City Atty., Kimberly A. Reiley, Chief Trial Deputy, Donna M. Vargas, Deputy City Atty., San Francisco, for defendants and respondents.

MERRILL, Associate Justice.

Robert Clausing, Brian Clausing as guardian ad litem for Robert Clausing, and Betty Simmerman (the mother of Robert) appeal from an order sustaining a demurrer without leave to amend to the class action allegations and to the cause of action for breach of mandatory duty under Government Code section 815.6 in their third amended complaint against respondents San Francisco Unified School District (the District), San Francisco Board of Education, Louise Lombard School, Joan Michaels, and Henry A. Caruso. Appellants also appeal from a discovery order denying their motion to compel production of documents and for monetary sanctions. We affirm the order.

I. Procedural Background

Appellants filed their initial complaint on September 17, 1987. The complaint alleged, inter alia, that from September through November 1986, appellant Robert Clausing was a 20-year-old physically handicapped and mentally retarded student at a special school for the handicapped in a class taught by respondent Joan Michaels at respondent Louise Lombard School; that during that time, respondent Michaels repeatedly subjected appellant Robert Clausing to physical, psychological, and verbal abuse, beatings, and public humiliation; that as a result appellant Robert Clausing suffered severe physical, mental, emotional, and psychological injury and damages; and that the respondent District authorized or failed to prevent the physical, mental, emotional, and psychological abuse inflicted by teachers and other employees on appellant Robert Clausing and other students similarly situated. The complaint sought damages and "such equitable, legal or injunctive relief as the court may deem appropriate" on behalf of appellants and of a purported class of "all persons similarly situated" under various causes of action for assault and battery, intentional and negligent infliction of emotional distress, and negligence.

On October 27, 1987, appellants filed a first amended complaint alleging the same causes of action as in the original complaint. Appellants filed a second amended complaint on November 24, 1987. This second amended complaint added a fifth cause of action alleging failure to discharge a mandatory duty under Government Code section 815.6, a sixth cause of action for bad faith breach of contract, and a seventh cause of action for breach of fiduciary duty.

Respondents demurred to the second amended complaint (the first demurrer), and a hearing on this demurrer was held on February 19, 1988. At the hearing, the trial court clearly indicated that it was not yet prepared to address the merits of the issue of class certification, but preferred to determine what causes of action in the complaint would withstand demurrer. On April 11, 1988, the trial court issued an order that, among other things, sustained the demurrer as to the fifth cause of action (mandatory duty) with leave to amend, and denied the demurrer as to the class action "without prejudice." ¹

On May 17, 1988, appellants filed a third amended complaint that expanded the allegations in their fifth cause of action (mandatory duty) with the inclusion of more alleged violations of statutory and constitutional provisions; added a new sixth cause of action alleging deprivation of civil rights under 42 United States Code section 1983; and deleted the former cause of action for breach of contract. On June 16, 1988, respondents filed a demurrer to the third amended complaint (the second demurrer). Respondents' second demurrer continued the same arguments regarding appellants' fifth cause of action that had been made in the first demurrer, and also repeated the same arguments challenging the class action allegations.

On July 18, the trial court heard oral argument on the second demurrer. Appellants objected that the trial court had previously overruled respondents' demurrer to the class action allegations. The trial court responded that the demurrer had been denied without prejudice because it had not been considered on the merits; and it went on to sustain the second demurrer as to all class action allegations and as to the fifth cause of action without leave to amend. ²

Paralleling the procedural history of the amended complaints and demurrers is that of the discovery proceedings. Appellants served a demand for production and inspection of documents on respondent District on December 11, 1987. Negotiations between the parties as to the time, place, and manner of document production were unsuccessful, and on January 25, 1988, appellants moved to compel production, and for sanctions. On February 8, 1988, respondents filed opposition to the motion to compel, together with a motion for a protective order alleging that immediate production of the documents sought was unduly burdensome and oppressive, and would violate the privacy rights of school students in the District.

Over the next few months, there were several hearings on the discovery disputes between the parties. On July 6, 1988, the discovery commissioner clarified the fact that the only documents which remained unproduced consisted of records of prior complaints of physical or emotional abuse of students by teachers within the previous 10 years. Because these documents were primarily relevant to the class action, the discovery commissioner granted respondents' motion to continue the discovery matters until after the trial court had ruled on respondents' demurrers.

After the trial court sustained respondents' demurrer to the class action without leave to amend, the discovery motions were again heard by the commissioner, who denied appellants' motions to compel and for sanctions on the grounds of the extreme sensitivity of the subject matter sought to be produced, the privacy concerns at issue, and the fact that the trial court's sustaining of the demurrer to the class action without leave to amend had largely mooted the need for the documents.

II. Demurrer to Class Action

Appellants' initial contention is that the trial court abused its discretion in sustaining respondents' second demurrer to the class action allegations. There is no merit to this contention.

A.

Contrary to appellants' position, respondents were not obliged to comply with Code of Civil Procedure section 1008, subdivision (b), in bringing their second demurrer. ³ That statute, which provides that any subsequent application for an order which was previously refused must be supported by an affidavit setting forth particulars concerning the initial motion and stating the new or different state of facts claimed to exist, is simply not relevant under the facts of this case. Respondents' second demurrer was an appropriate responsive pleading to a new complaint. (Billings v. Rexford Park Apts. (1966) 244 Cal.App.2d 317, 320, 52 Cal.Rptr. 914.)

Furthermore, even though the class action allegations in the complaint had not changed since respondents' first demurrer to them had been denied, that denial was expressly made "without prejudice" to its renewal. It is clear from the record that the trial court at the hearing on the first demurrer on February 19, 1988, was not considering the merits of the class certification issue. The trial court properly concluded at the time of the second demurrer that the denial "without prejudice" was intended to permit a subsequent renewal of the same demurrer. (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 717-718, 69 Cal.Rptr. 783.)

There is no support for appellants' contention that the trial court was without authority to consider the second demurrer. To the contrary, it is well within the discretionary power of a court hearing and denying a motion to grant leave for its renewal, whether or not there has been compliance with Code of Civil Procedure section 1008. (Josephson v. Superior Court (1963) 219 Cal.App.2d 354, 358, 33 Cal.Rptr. 196.)

B.

Although the general rule is that it is an abuse of discretion to sustain a demurrer without leave to amend unless the complaint shows that it is incapable of amendment, "it is also true that where the nature of plaintiff's claim is clear, but under substantive law no liability exists, leave to amend should be denied, for no amendment could change the result. [Citations.]" (Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942-943, 143 Cal.Rptr. 255; see La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113.) Here, the record supports the trial court's determination that there was no reasonable possibility that appellants would be able to allege facts sufficient to cure their defective class action allegations.

The authority for filing class actions is found in Code of Civil Procedure section 382, which provides that "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." In interpreting this provision, the courts have stated that there are two prerequisites for a valid class action: (1) an ascertainable class; and (2) a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. (Brown v. Regents of University of California (1984) 151 Cal.App.3d 982, 988, 198 Cal.Rptr. 916.) These two...