Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin, Judge. (Retired Judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Super.Ct.No. VCV 36970
Aviles & Associates and Moises A. Aviles for Plaintiff and Appellant.
Middlebrook, Kaiser, Popka & Hengesbach and Daniel C. Lough for Defendants and Respondents.
OPINION
Gaut, J.
Defendant Patricia Casey, a minor, cut the hair of a fifth grade classmate, plaintiff Ebony Banks, while in school. Banks’s mother, Patricia Riley, as guardian ad litem for Banks, sued the school district and its teachers and principal (district defendants), the county and the county sheriff (county defendants), the city, and Casey for civil rights violations, assault, and various other torts.
Banks appeals the judgments of dismissal entered following orders sustaining, without leave to amend, the demurrers of the district, county and city defendants to the third and fourth amended complaints.
Banks contends dismissal of her action against the county and city defendants is void because the trial court sustained the county and city’s demurrer without leave to amend to the third amended complaint, which was not the operative complaint at the time. Banks contends as to the district defendants that she alleged sufficient facts to support her claims and that the court should not have considered qualified immunity as a basis for sustaining Banks’s demurrer.
We assume that Banks’s argument in the appellant’s opening brief (table of contents), that “the ordinances does [sic] not spell out under which circumstances trucks can be parked when the land itself is rural, has been rural in nature for decades, and that everybody else in the neighborhood has trucks parked in [sic] their property for decades,” concerns some other case.
Banks’s appeal as to the county defendants is no longer before this court. This court previously dismissed Banks’s appeal to the judgment of dismissal of her claims against the county and city defendants due to Banks not providing an appealable judgment as to those defendants.
As to Banks’s appeal concerning dismissal of her claims against the district defendants, Banks failed to allege sufficient facts supporting a civil rights violation claim and, as to the tort claims, Banks failed to allege compliance with the tort claims act. Therefore, after allowing Banks to amend her complaint numerous times, the trial court appropriately sustained the district defendants’ demurrer without leave to amend and dismissed the action. The judgment is affirmed.
1. Facts and Procedural Background
On January 29, 2004, Patricia Casey cut Ebony Banks’s hair while the girls were at school.
On February 16, 2005, Casey, through her mother, Patricia Riley, in propria persona, filed a complaint against Victor Elementary School District (the district) and Patricia Casey. Plaintiff subsequently added four district employees as defendants and various county and city defendants.
In the original complaint, Riley erroneously named Victor Elementary School District as Victorville Unified School District. Riley also erroneously named herself as a plaintiff, rather than as Banks’s guardian ad litem, and named the city police department as a defendant, rather than naming the city. After Banks retained counsel, these pleading defects were corrected.
Defendants are Victor Elementary School District and its employees, Kent Berryman, Awilda Sturdivant, and Gregg Bragg, who were teachers, and Mel Crenshaw, who was the school principal.
The district demurred to plaintiff’s complaint and first, second, third, and fourth amended complaints. The district employees joined in the district’s demurrers to the second, third and fourth amended complaints.
Banks’s fourth and final amended complaint contained the following causes of action: (1) violation of civil rights, (2) conspiracy to violate civil rights, (3) assault, (4) intentional infliction of emotional distress, (5) negligence, and (6) civil conspiracy.
The trial court sustained the district defendants’ demurrers to each of the complaints. As to the demurrer to the fourth amended complaint, the court sustained the district defendants’ demurrer without leave to amend on the grounds Banks had failed to allege sufficient facts and had not alleged she had filed a governmental tort claim.
Meanwhile, the county and city defendants demurred to Banks’s third amended complaint. On April 18, 2006, the trial court sustained their demurrer without leave to amend. Banks filed a motion for reconsideration of the ruling, which was denied.
On May 19, 2006, the trial court entered a judgment of dismissal of the third amended complaint against the county and city defendants.
On July 13, 2006, the trial court entered a judgment of dismissal of the fourth amended complaint against the district defendants.
2. County and City Demurrer to Third Amended Complaint
Banks contends dismissal of her action against the county and city defendants is void because it is based on the trial court sustaining a demurrer to amend to the third amended complaint, which was not the operative complaint at the time. The operative complaint was the fourth amended complaint.
We need not consider Banks’s contention on the merits because this court previously dismissed her appeal as to the county and city defendants. On August 11, 2006, Banks filed a notice of appeal of judgments entered on June 12, and July 8, 2006, after an order sustaining a demurrer. There are no orders or judgments entered on these dates. It appears the June 12, 2006, order is a notice of entry of dismissal, dated on June 8, 2006, filed by the county and city defendants on June 12, 2006. The notice states that on May 3, 2006, the court entered judgment in favor of the county and city defendants.
This court notified Banks that her notice of appeal was defective for various reasons, including the failure to file a civil case information statement and attach a copy of the order or judgment from which Banks was appealing.
On September 28, 2006, Banks filed a civil case information statement, stating she was appealing a judgment or order entered on May 8, and July 13, 2006, after an order sustaining a demurrer. She attached a copy of the judgment she was appealing, which was a judgment of dismissal filed on July 13, 2006, stating that the court dismissed plaintiff’s fourth amended complaint against the district defendants. The record on appeal does not contain a May 8, 2006, order or judgment.
Upon filing Banks’s civil case information statement, this court ordered on September 28, 2006, that Banks’s appeal was dismissed as to the county and city defendants due to Banks failing to provide an appealable judgment as to the county and city defendants. This court, however, stated in its order that Banks could submit to the clerk of this court, within 15 days, a copy of an appealable order or judgment, along with a motion to vacate the dismissal and reinstate the appeal as to the county and city defendants.
On October 2, 2006, Banks filed a second notice of appeal stating Banks was appealing the order denying her motion for reconsideration.
This court notified Banks that her notice of appeal of the ruling on the motion for reconsideration was defective for various reasons, including the failure to file a civil case information statement and attach a copy of the order or judgment that Banks was appealing.
On November 16, 2006, Banks submitted a civil case information statement concerning her appeal of the ruling denying her motion for reconsideration. Attached was a copy of the August 2, 2006, minute order reflecting such ruling.
On December 11, 2006, this court entered a partial remittitur, certifying that this court’s order on September 28, 2006, dismissing Banks’s appeal as to the county and city defendants was entered as the final decision in this case.
On December 27, 2006, this court on its own motion dismissed without prejudice Banks’s appeal filed on October 2, 2006, in which Banks appealed the August 2, 2006, trial court ruling denying her motion for reconsideration. This court did so on the ground an order denying a motion for reconsideration is a nonappealable order. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 768, following Rojes v. Riverside General Hospital I (1988) 203 Cal.App.3d 1151; Reese v. Wal-Mart Stores (1999) 73 Cal.App.4th 1225, 1242; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459.)
This court further stated in its order that Banks could submit to the clerk of this court, within 15 days, a copy of an appealable judgment, along with a motion to vacate the dismissal and reinstate the appeal as to the county and city defendants.
On March 2, 2007, this court entered a partial remittitur, certifying that this court’s order on December 27, 2006, dismissing Banks’s appeal of the order denying her motion for reconsideration, was entered as the final decision in this case.
As a consequence of these procedural circumstances, Banks’s appeal as to the county and city defendants has been dismissed. Any challenges to the trial court’s dismissal of Banks’s claims against the county and city defendants are thus not properly before this court. The only issues before this court are Banks’s challenges to the trial court’s ruling sustaining the district defendants’ demurrer, without leave to amend, to the fourth amended complaint.
3. Civil Rights Causes of Action
Banks contends she adequately alleged the civil rights causes of action against the district defendants. She argues that she was not required to plead with specificity such claims and therefore her fourth amended complaint allegations are sufficient as to her civil rights claims.
“A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court’s discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory . [Citations] [¶] Second, where the demurrer is sustained without leave to amend, reviewing courts determine whether the trial court abused its discretion in doing so. [Citations.]” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) The burden is on the appellant to demonstrate the existence of reversible error. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.)
Banks’s first cause of action of the fourth amended complaint, entitled “violation of civil rights,” generally alleges the following: The district defendants conspired to violate Banks’s civil rights and either initiated or followed a racially discriminatory policy of taking little or no action regarding any complaint for civil rights violations initiated by African Americans. The district defendants also allegedly followed policies of stonewalling concerning constitutional rights violations; having no policy requiring constitutional training; not notifying parents when a student is assaulted; not taking corrective and preventative action concerning students assaulting each other when an African American is involved; not teaching racial and gender awareness; and carrying out a racially discriminatory policy that created conditions similar to those that led to the Columbine High School incident. Banks claimed the district defendants had a lack of training and guidance necessary to protect the constitutional and civil rights of African-American children.
Banks further alleges in the first cause of action, as concerns the district defendants, the following facts: On January 28, 2004, while Banks was in art class, Casey, who is White, used racial slurs, violated Banks’s liberty, and attacked Banks by cutting off some of Banks’s hair. Banks told defendants Berryman, Sturdivant, Bragg, and Crenshaw but they did not do anything about the incident. They did not discipline Casey or stop her behavior. When Banks’s mother, Riley, arrived at the school after the incident, she found Banks distraught, frightened, and horrified. Riley demanded the district defendants do something about the incident but the defendants acted with deliberate indifference and refused to protect Banks’s constitutional rights. Casey and her relatives subsequently made racist, obscene, and harassing telephone calls to plaintiff’s house.
Banks alleged these acts or omissions violated her civil rights because the district defendants committed “arbitrary and selective enforcements when dealing with the legal rights of African-American students. . . . [¶] The carrying out of any policy that advances racial discrimination is an incident of slavery. Any incident of slavery is not only a Constitutional violation, but exceeds the bounds of decency.”
Banks’s other causes of action allege and incorporate essentially the same allegations contained in the first cause of action.
Banks argues, and the district defendants do not dispute, that Banks is not required to plead her civil rights claims with heightened specificity. Even so, Banks has failed to allege adequately causes of action for violation of civil rights under 42 United States Code section 1983 and conspiracy to violate civil rights under 42 United Stated Code section 1985, subdivision (3).
The pleading requirements for a civil rights action are relatively simple: “In order to state a valid cause of action for damages under 42 United States Code section 1983, two elements must be present: (1) The conduct complained of must have deprived plaintiff of a right, privilege, or immunity secured to him by the federal Constitution and (2) defendant’s action must have been taken under color of state law.” (Kanarek v. Davidson (1978) 85 Cal.App.3d 341, 344.)
Here, the complaint does not allege any facts showing that the district defendants committed acts or omissions under color of state law, which deprived Banks of any right, privilege, or immunity secured to her by the federal Constitution. Banks’s conclusionary allegations are insufficient. Banks claims the district defendants violated her civil rights under the federal Constitution by committing racial discrimination against her, depriving her of her personal liberty, and failing to protect her from personal harm, but in asserting these claims, Banks uses little else than the constitutional “buzz words.” (Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1481.) “In order to state a cause of action under 42 United States Code sections 1983 [and] 1985(3), the pleader must show, in a specific and nonconclusory way, that the alleged acts deprived him of rights, privileges, or immunities secured by the federal Constitution and laws. [Citations.]” (Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1360.)
The factual allegations contained in the instant complaint merely stated that Casey cut Banks’s hair while the girls were in class, and the district defendants did not do anything about it. There simply are no factual allegations supporting a claim against the district defendants of racial discrimination, deprivation of Banks’s personal liberty, breach of a constitutional duty to protect Banks from harm, or violation of any other constitutional right.
The trial court properly sustained the demurrers to Banks’s first, second and sixth causes of action for violation of civil rights and conspiracy to commit such violations under 42 United States Code sections 1983 and 1985, subdivision (3).
4. Noncompliance With the Tort Claims Act
Banks’s remaining causes of action, which do not assert civil rights violations, are tort based and thus barred under Government Code section 911.2 due to Banks’s failure to allege compliance with the Tort Claims Act (Gov. Code, § 900 et seq.).
Banks’s fourth amended complaint contains the following tort causes of action: assault (third cause of action), intentional infliction of emotional distress (fourth cause of action), and negligence (fifth cause of action). The sixth cause of action for civil conspiracy merely repeats the allegations contained in the second cause of action for conspiracy to violate civil rights under 42 United Stated Code section 1985, subdivision (3) and thus is not adequately alleged for the same reasons the other civil rights causes of action fail.
Because the third, fourth and fifth causes of action sound in tort, they are subject to the claim presentation requirements of the Tort Claims Act. The Tort Claims Act provides that before a civil suit for damages may be maintained against a public entity, a written claim containing specific information must be made to and rejected by the governing board of the public entity. (Gov. Code, § 945.4.) Compliance with the claim presentation requirement must be affirmatively alleged in the complaint. (Dujardin v. Ventura County General Hospital (1977) 69 Cal.App.3d 350, 355.) Plaintiff failed to do so. The trial court thus appropriately sustained the district defendants’ demurrer to these causes of action without leave to amend.
5. Disposition
The judgment is affirmed. The district defendants are awarded their costs on appeal.
We concur: Richli Acting P. J., Miller, J.