Kimberly M. by Cobbs v. Los Angeles Unified School Dist.

• Decision Date: 17 December 1987
• Docket Number: No. B024434,B024434
• Citation: 242 Cal.Rptr. 612,209 Cal.App.3d 1326
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 209 Cal.App.3d 1326 209 Cal.App.3d 1326, 43 Ed. Law Rep. 219 KIMBERLY M., by her guardian ad litem Debra COBBS, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

Page 612

242 Cal.Rptr. 612

Previously published at 209 Cal.App.3d 1326

209 Cal.App.3d 1326, 43 Ed. Law Rep. 219

KIMBERLY M., by her guardian ad litem Debra COBBS, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

No. B024434.

Court of Appeal, Second District, Division 7, California.

Dec. 17, 1987.

As Modified Dec. 23, 1987.

Review Granted March 17, 1988.

Lane and Friedman and Barry J. Lane, Los Angeles, for plaintiff and appellant.

La Follette, Johnson, De Haas & Fesler and Alfred W. Gerisch, Jr., Los Angeles, for defendant and respondent.

THOMPSON, Associate Justice.

In this opinion, we hold that Los Angeles Unified School District (district) was improperly dismissed as a defendant because we cannot say as a matter of law that plaintiff's injuries were inflicted by the district's employee teacher while acting outside the scope of employment.

Plaintiff through her guardian ad litem filed a tort action seeking damages from the district and Does 1-10 for an alleged sexual assault by Doe 1 (hereafter teacher), plaintiff's teacher. Plaintiff appeals from an order of dismissal entered against her which sustained the district's demurrer to the first amended complaint for failure to state a cause of action against it under the doctrine of respondeat superior. ¹

I FACTS

The allegations of the first cause of action of the first amended complaint (hereafter complaint) which we must accept as true show the following: On November 18, 1985, plaintiff, a five-year-old student at the district's Russell Elementary School, was molested by her teacher after plaintiff complied with the teacher's order to undress. Specifically, the complaint states teacher ordered plaintiff "to undress by either lowering or removing both her outer clothing and undergarment and did thereupon insert her finger into plaintiff's pubic area, tearing a portion of the child's anatomy and causing injury thereby." The complaint further alleges that teacher, in the course of her contractual duties with the district, maintained strict order in her classroom during classroom hours, and that her students were obligated to comply with her rules, directives and orders or risk being disciplined.

The district demurred to the complaint on the grounds of uncertainty and failure to state a cause of action. In response to the contention that her complaint was uncertain as to whether the district's liability was predicated upon the doctrine of respondeat superior or direct negligence, plaintiff contended her first cause of action stated a claim against the district under the doctrine of respondeat superior. Plaintiff argued the district was vicariously liable for her injuries under Government Code section 815.2, subdivision (a), ² because they were inflicted by an employee while acting in the scope of employment.

The court sustained the demurrer without leave to amend. This appeal followed.

II ISSUE

On appeal, plaintiff raises only the issue of whether the district may be vicariously liable for a sexual molestation perpetrated by its teacher in a classroom against a five-year-old student. ³ Plaintiff contends that the district is vicariously liable under Government Code section 815.2 because her injury was proximately caused by acts of its employee within the scope of employment.

III DISCUSSION

"It is well settled that '[i]n considering the sufficiency of a pleading, we are bound by the rule that on appeal from a judgment entered on demurrer, the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc., § 452.)' [Citation.] Obviously, the complaint must be read as a whole [citation], and each part must be given the meaning it derives from the total context wherein it appears. [Citations.]" (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719, 104 Cal.Rptr. 897.)

A plaintiff is required only to set forth the essential facts of his or her case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of her cause of action. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245, 74 Cal.Rptr. 398, 449 P.2d 462.) "The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff." (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 879, 31 Cal.Rptr. 606, 382 P.2d 878.) This seems particularly applicable to a sexual molestation action against a school district where the plaintiff is a five-year-old child and the alleged abuse occurred at the hands of a teacher in a classroom. (See Semole v. Sansoucie, supra, 28 Cal.App.3d at p. 719, 104 Cal.Rptr. 897.)

As set forth below, we conclude the amended complaint sets forth facts sufficient to state a cause of action.

A. The School District's and Teacher's Duty to Protect Students

The State, acting through the Legislature, has vested in school districts and teachers broad power and authority over children. In fact, attendance is compulsory between the ages of six and sixteen, unless exempted. (Educ.Code, § 48200.) Corresponding with this power is the duty owed by the school officials "to supervise at all times the conduct of children on the school grounds." (Ziegler v. Santa Cruz City High Sch. Dist. (1959) 168 Cal.App.2d 277, 284, 335 P.2d 709.) "The school officials, as a body and individually, have a responsibility for maintaining order upon the school premises so that the education, teaching and training of the students may be accomplished in an atmosphere of law and order." (In re Donaldson (1969) 269 Cal.App.2d 509, 512, 75 Cal.Rptr. 220, disapproved on other grounds in In re William G. (1985) 40 Cal.3d 550, 559, 221 Cal.Rptr. 118, 709 P.2d 1287.)

The schools are not merely empowered to maintain law and order so that learning can take place; they are required to maintain law and order so that children are kept safe. "... 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.]" (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360.)

Recently, the California voters approved Proposition 8, which amended the California Constitution to include the guaranteed right to safe schools. (Cal. Const. art. I, § 28, subd. (c).) That constitutional provision states: "Right to Safe Schools. All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful." (See Comment, The Right to Safe Schools: A Newly Recognized Inalienable Right (1985) 14 Pacific L.J. 1309.)

Obviously the implementation of this right to safe schools must be carried out in no small measure by teachers, who are required to enforce the course of study, rules and regulations prescribed for schools. (Educ.Code, § 44805.) Even without the constitutional amendment, every public school teacher is statutorily charged with the duty of holding students "to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess." ⁴ (Educ.Code, § 44807.) And teachers are mandated "to impress upon the minds of the pupils the principles of morality, truth, justice, patriotism, and a true comprehension of the rights, duties, and dignity of American citizenship, including kindness toward domestic pets and the humane treatment of living creatures, to teach them to avoid idleness, profanity, and falsehood, and to instruct them in manners and morals and the principles of a free government." (Educ.Code, § 44806.)

With respect to sexual molestation, school districts and teachers have been statutorily charged with the duty of reporting suspected instances of child abuse and neglect. (Pen.Code, §§ 11165-11174.5.) The child abuse reporting law, originally covering only physicians, was amended in 1966 to include school superintendents and principals (1966 Cal.Stat. 1st Ex.Sess., ch. 31, § 2, at 325, amending Pen.Code § 11161.5), and was again amended in 1971 to include school teachers (1971 Cal.Stat. ch. 1729, § 7, at 3680). Thus school teachers and administrative officers are designated "child care custodians" charged with mandatory reporting duties, the violation of which is a misdemeanor. (Pen.Code, §§ 11165, subd. (h), 11166.1. See Los Angeles Unified School Dist., Student Health Services Div., Bull. No. 16 (Feb. 11, 1985), Child Abuse--Reporting Nonaccidental Physical Injuries, Injurious Acts or Omissions, Sexual Assaults and/or Neglect of Children. See generally, Comment, Reporting Child Abuse: When Moral Obligations Fail (1983) 15 Pacific L.J. 189; Comment, Child Sexual Abuse in California: Legislative and Judicial Responses (1985) 15 Golden Gate L.Rev. 437.)

Additionally, the Legislature recently enacted The Maxine Waters Child Abuse Prevention Training Act of 1984 (Welf. & Inst.Code, §§ 18975-18979). The Legislature, recognizing child abuse and neglect to be a severe and increasing problem in California, found that school districts are able to provide an environment for training children, parents, and appropriate district staff on prevention of child abuse and neglect. (Welf. & Inst.Code, § 18975.1.) The...