Marin vs County of SB

TENTATIVE RULING(S) FOR August 20, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Marin vs County of SB

__________________________________________________________________________

TENTATIVE RULING(S):

Before the Court is San Bernardino City Unified School District’s (District) demurrer to the Third

Amended Complaint‘s (TAC) first [negligent supervision], second [mandatory duty], and sixth

causes of action [duty to approve CSSP] under Code of Civil Procedure section 430.10,

subdivisions (e) [failure to state facts], and (f) [uncertainty]. Plaintiff opposes. The District replies.

Also set for hearing is ASA Charter School’s (School) motion to strike the TAC’s inclusion of the

School in the third cause of action [dangerous condition on public property] on the ground that

Plaintiff did not obtain leave to amend the complaint against the School. Plaintiff opposes. The

School replies.

The District’s Demurrer

Declarations of Neil J. Berry and Trevor D. DeBus

Both parties include declarations with their moving papers seeking to introduce extrinsic

evidence in support of their arguments. However, a demurrer challenges defects that appear on

the face of the pleading, which includes incorporated exhibits, or from matters outside the

pleading that are judicially noticeable. (Blank v. Kerwan (1985) 39 Cal.3d 311, 318 (Blank).) No

other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110

Cal.App.3d 868, 881.)

Plaintiff’s Objection to the District’s Notice

Plaintiff argues that the District’s notice of demurrer is defective under Code of Civil Procedure

section 1010 and California Rules of Court, rule 3.1320(a) because it states it is a “Demur to

First Cause of Action of Plaintiff’s Third Amended Complaint” and does not identify the second

and sixth causes of action in the notice.

The District does not address this procedural issue but the notice states that the TAC “fails to

state a cause of action and is uncertain as to claims made against the District. Further, the

Complaint does not state facts sufficient to support a claim for Negligent Supervision [first cause

of action], Breach of Mandatory Duty [second cause of action], or Failure to review and approve

the Facially Deficient Comprehensive School Safety Plans [sixth cause of action].”

“Section 1010’s requirement ‘is for the benefit of the party upon whom the notice is served,’ to

make him or her aware of the issues to be raised in the motion.” (Golf & Tennis Pro Shop, Inc. v.

Superior Court (2022) 84 Cal.App.5th 127, 137, quoting Hecq v. Conner (1928) 203 Cal. 504,

506.) Thus, the purpose of Section 1010’s notice requirements “is to cause the moving party to

‘sufficiently define the issues for the information and attention of the adverse party and the court.’

[Citation].” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277, quoting Luri v. Greenwald

(2003) 107 Cal.App.4th 1119.)

Here, Plaintiff has substantively responded to the District’s arguments regarding the sufficiency

of the TAC’s allegations with respect to the second and third causes of action. Further, Plaintiff

acknowledges his understanding that the demurrer is directed to these causes of action.

Therefore, the District’s notice is sufficient to include these causes and the Court will consider

the demurrer on the merits.

The District’s Request for Judicial Notice

With its moving papers, the District requests judicial notice, under Evidence Code section 452,

subdivisions (d) [court records], (g) [common knowledge], and (h) not reasonably subject to

dispute], of the following documents: (1) Declaration of Ernestine Hopwood (RJN, Exh. C); (2)

Plaintiff’s March 5, 2025, Tort Claim submittal (RJN, Exh. 1); and (3) the Court’s May 28, 2025,

November 12, 2025, and April 7, 2026, tentative decisions on the parties’ prior demurrers (RJN,

Exhs. 2-4).

The Court GRANTS the District’s request as to Plaintiff’s Government Tort Claim (RJN, Exh. 1),

because it was attached to each of Plaintiff’s prior complaints and cannot be reasonably

disputed.

The Court DENIES the request as to the Hopwood declaration (RJN, Exh. C), because there is

no basis for the Court to take judicial notice of a declaration for the truth of matters stated

therein.

Finally, the Court also DENIES the request as to the Court’s tentative decisions (RJN, Exhs. 2-

4), because there is no showing the Court adopted the tentatives in ruling on the respective

demurrers.

Analysis—Demurrer

The District demurs to Plaintiff’s first [negligent supervision], second [breach of mandatory duty],

and sixth [failure to review the School’s safety plan] causes of action arguing it is immune from

liability under Education Code section 44808. The District also argues that the second and sixth

causes of action are improper because they are impermissible variances from Plaintiff’s

government claim.

Plaintiff argues that the District is not immune from liability under the “specific assumption of

responsibility” and “failure to exercise reasonable care” exceptions in Education Code section

44808. Plaintiff also argues the District is liable under Government Code section 815.6, because

it had a duty to approve the School’s Comprehensive School Safety Plan (CSSP) which, in turn,

required ingress and egress safety measures be included in the plan.

1. Education Code Section 44808

Education Code section 44808 states: “Notwithstanding any other provision of this code, no

school district, city or county board of education, county superintendent of schools, or any officer

or employee of such district or board shall be responsible or in any way liable for the conduct or

safety of any pupil of the public schools at any time when such pupil is not on school property,

unless such district, board, or person has undertaken to provide transportation for such pupil to

and from the school premises, has undertaken a school-sponsored activity off the premises of

such school, has otherwise specifically assumed such responsibility or liability or has failed to

exercise reasonable care under the circumstances. [¶] In the event of such a specific

undertaking, the district, board, or person shall be liable or responsible for the conduct or safety

of any pupil only while such pupil is or should be under the immediate and direct supervision of

an employee of such district or board.”

“‘In essence, [section 44808] grants a district immunity unless a student was (or should have

been) directly supervised during a specified undertaking.’ [Citation.] The portion of section 44808

that refers to failing to exercise reasonable care does not create a common law form of general

negligence; it refers to the failure to exercise reasonable care during one of the mentioned

undertakings. [Citation.]” (Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 870-871

(Bassett).)

A school district is liable for a student’s off-campus injury only when “the student is involved in

activities supervised or undertaken by the school.” (Ramirez v. Long Beach Unified School Dist.

(2002) 105 Cal.App.4th 182, 190.) Indeed, the “consensus of decisions from the Court of Appeal

is that ‘section 44808 limits the liability of schools for after-hours, off-campus activity, absent a

specific undertaking’” by the school during which a student is injured. (Cerna v. City of Oakland

(2008) 161 Cal.App.4th 1340, 1356.) Thus, courts have “interpreted section 44808 to provide

that school districts are not responsible for the safety of students outside school property absent

a specific undertaking by the school district and direct supervision by a district employee.” (Id. at

pp. 1356-1357.)

Cases in which schools have been held to have a duty of care for the safety of students off

campus arise from circumstances where school personnel did something on campus or failed in

their supervisory duties of students on campus. For example, Hoyem v. Manhattan Beach City

School District (1978) 22 Cal.3d 508, involved the school’s failure to adequately address the

process of keeping students on school grounds during the school day. The Hoyem Court

explained, “defendant’s liability in this case is posited not on an alleged failure to supervise [the

student] when he was off the school premises, but rather on an alleged failure to exercise due

care in supervision on school premises.” (Hoyem v. Manhattan Beach City School District, supra,

22 Cal.3d at p. 523, original italics.) “Thus, Hoyem, consistent with the language of section

44808, withdraws immunity only when the student is or should be under the school’s direct

supervision.” (Bassett, supra, 140 Cal.App.4th at p. 872.) In Joyce v. Simi Valley Unified School

Dist. (2003) 110 Cal.App.4th 292 (Joyce), a student was injured when hit by a vehicle after

passing through an open school yard gate that enticed students to cross a dangerous

intersection. And in Perna v. Conejo Valley Unified School District (1983) 143 Cal.App.3d 292

(Perna), the matter involved a teacher who kept the children after school to grade papers

knowing that crossing guards would not be available and that the children would have to cross a

busy street.

2. Plaintiff’s Allegations of the Undertaking

Plaintiff asserts that the most critical and fundamentally new allegation in the TAC is the

allegation regarding Tickell’s email on February 11, 2015, asking the School to cease crossing

guard activities unless certain conditions were met. Plaintiff argues that by sending this email,

the District removed the only safety measures for the crosswalk, set conditions for reinstatement

that only the District could facilitate, and assumed control over whether the crossing guard

program could ever be resumed. Plaintiff argues this undertaking was continuing because the

conditions set for re-implementing the program by the District were never completed. (TAC ¶¶

41, 43.)

Plaintiff’s allegations do not establish an undertaking by the District to provide crossing guards at

the intersection on the date of Plaintiff’s accident. Although alleging that the District was initially

involved with providing crossing guards at the intersection for the 2014-2015 school year, the

TAC specifically alleges that the crossing guard program was “permanently discontinued” after

the school year. (TAC ¶ 18.) Further, the District told the School that it could resume the crossing

guard program in February of 2015, but the program was not later implemented for lack of City

approval. There are no allegations to establish that the continued provision of crossing guards

was required or mandated or that the previous undertaking for the 2014-2015 school year could

not be discontinued. Further, Plaintiff alleges that from September 2019 to the present, the

District “had no authority to order or prevent the school from posting a crossing guard at the

crosswalk.” (TAC ¶ 21.) Thus, there are no allegations that on the date of Plaintiff’s accident, the

District undertook to provide crossing guards at the intersection or otherwise undertook to

provide for Plaintiff’s safety off school property. The TAC alleges that any undertaking had been

completed when the crossing guard program was halted.

Because the TAC does not allege an undertaking by the District on the date of the accident, the

District is immune from liability under Education Code section 44808 for Plaintiff’s injury that

occurred off the school grounds. Therefore, the Court SUSTAINS the District’s demurrer to the

first cause of action for negligent supervision.

3. Government Code sections 815.6 and 830

The District asserts that it is not liable under Government Code section 815.6 because Education

Code section 47604.32 does not establish a mandatory duty requiring it to take action relating to

crosswalks near charter schools. The District argues Plaintiff cites no authority to establish that

the District has an express duty to check the School’s work relating to its CSSP or to correct or

modify a submitted plan.

In opposition, Plaintiff argues that the District had the non-discretionary mandatory duty to: (1)

ensure the School complied with all reports required by law, including the CSSP [Ed. Code §

47604.32, subd. (a)(3)]; (2) the CSSP was required to include “[p]rocedures for the safe ingress

and egress of pupils, parents, and school employees to and from the school” [Ed. Code § 32282,

subd (a)(2)(G)]; and (3) the District was required to approve the CSSP [Ed. Code § 32288, subd.

(a)(1)]. (TAC ¶¶ 23-24.) Plaintiff argues that because the District had a duty to approve the

CSSP, it also had a duty to review the CSSP to ensure the contents of the plan were adequate

and that the plan contained all mandatory content. The District failed its duty because the CSSP

was legally non-compliant by its failure to contain procedures for the “safe ingress and egress of

students who walk to school through the 35th Street crosswalk” which was “15 feet from the

school’s primary entrance.” (TAC ¶ 25.) Plaintiff alleges this school entrance is a dangerous

condition under Government Code section 830. (TAC ¶ 31.)

The TAC does not allege that the School failed to prepare the CSSP or that the CSSP did not

include any procedures for safe ingress and egress of pupils to and from school. The TAC

alleges only that the CSSP contained no specific procedures relating to the off-campus

crosswalk. Plaintiff provides no authority that the CSSP was required to address off-campus

crosswalks or that crossing guards would be mandated as part of the CSSP.

“Education Code sections 32280-32289 require districts to develop a ‘comprehensive school

safety plan that addresses the safety concerns identified through a systematic planning process,’

and that aims at preventing crime and violence on campus. (Ed. Code § 32280.) While

Education Code section 32280 imposes a duty to develop a school safety plan, it leaves

implementation to the public entity's discretion or judgment: ‘It is the intent of the Legislature that

all California public schools ... develop a comprehensive school safety plan ... . It is also the

intent of the Legislature that all school staff be trained on the comprehensive school safety

plan.’ (Ibid.) There is no mandatory requirement that a school's safety plan must include specific

action items. (Ed. Code, § 32282, subd. (a)(2)(J).) Rather, the “procedures to prepare for active

shooters or other armed assailants shall be based on the specific needs and context of each

school and community.’(Ibid.) [Emphasis added].” (C.I. v. San Bernardino City Unified School

Dist. (2022) 82 Cal.App.5th 974, fn. 3.)

Contrarty to Plaintiff’s assertions, there is no mandatory requirements regarding what must be

included in a CSSP. Further, the statute leaves implementation of the CSSP to the discretion of

the public entity. Thus, there is no requirement that the School’s CSSP include any procedures

for monitoring or assisting students at off campus crosswalk. Even if the CSSP provided for

crossing guards, implementation of the program would be within the School’s or District’s

discretion. Therefore, the TAC does not allege any breach of a mandatory duty with respect to

the District’s approval of the CSSP.

Plaintiff also argues that paragraph 29-32 of the TAC supports a claim against the District under

the reasoning of Joyce, supra, 110 Cal.App.4th 292. Plaintiff argues that by having the School’s

main entrance 15 feet from the crosswalk and limiting vehicle drop-offs to certain specific times,

the entrance was a dangerous condition that required Plaintiff to use the dangerous crosswalk.

(TAC ¶¶ 29-30.) Plaintiff argues the District is liable for this issue because it had supreme

regulatory authority of safety under its obligation to approve the CSSP. Plaintiff’s argument that

the FAC and Joyce provide a sufficient factual basis to state a claim against the District is

without merit.

In Joyce, the Court held that maintaining an open gate that invited students to cross a busy

street to enter the school grounds could constitute a “dangerous condition of public property”

under Government Code section 830, subdivision (a). Here, Plaintiff’s negligent supervision

claim is predicated on Education Code section 44808, the District’s undertaking, not on

Government Codes related to a dangerous condition of property. The District is not named as a

party in the TAC’s third cause of action [dangerous condition of public property].

The District asserts that Joyce is inapplicable because the gate at issue in Joyce was owned and

operated by the defendant in that case and that the TAC does not allege the District has control

over the entrance near the crosswalk.

Plaintiff argues that the District improperly seeks to introduce extrinsic evidence to show that it

did not own or control the school property and that Plaintiff was not one of its students.

Plaintiff is correct that this evidence is improper and should not be included in this analysis, but

the TAC does not allege that the District has any ownership or control over the crosswalk or

entrance to the School that would give rise to liability.

Thus, the TAC does not allege sufficient facts to establish that the District breached a mandatory

duty that resulted in Plaintiff’s injury. Therefore, the Court sustains the District’s demurrer as to

the second and sixth causes of action for breach of mandatory duties.

4. Plaintiff’s Government Claim

The District also argues that there is a fatal variance between Plaintiff’s Government Tort Claim

and the allegations of the second and sixth causes of action relating to its duty regarding the

CSSP. The District asserts the government claim only referenced its failure to provide crossing

guards at the crosswalk but makes no reference to any other District oversight failures in

connection with the School. As a result, the District argues that the alleged failure to review and

approve the deficient CSSP was not implicated by the government claim.

In opposition, Plaintiff argues he was only required to describe the circumstances which brought

about his injury and that all “theories in the TAC arise from the same conduct, the same location,

and the same absence of safety measures identified in the Tort Claim.”

The Government Claims Act requires a claim to identify “[t]he date, place and other

circumstances of the occurrence or transaction which gave rise to the claim asserted” and

provide a general description of the resulting injury or loss. (Gov. Code, § 910, subds. (c),

(d).) Its purpose is to provide the public entity with sufficient information to investigate the claim

and settle it, if appropriate, without litigation. (Stockett v. Association of California Water

Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).)

A government claim need not contain the detail or specificity required of a pleading, and a

subsequent complaint may elaborate on the facts or assert additional legal theories. (Stockett,

supra, 34 Cal.4th at pp. 446–447.) The claim-presentation requirement is not intended to operate

as a procedural trap. (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225 (Blair).) The

factual basis for each cause of action, however, must be “fairly reflected” in the claim. A

complaint may not premise liability on an entirely different set of facts or make a complete shift in

its allegations. (Stockett, supra, 34 Cal.4th at p. 447; Hernandez v. City of Stockton (2023) 90

Cal.App.5th 1222, 1231 (Hernandez).)

Here, Plaintiff asserts that the government claims and TAC identify the same conduct, the same

location, and the same absence of safety measures and that the TAC merely provides additional

facts to amplify the “exact safety vacuum identified in the initial claim.”

The relevant inquiry, however, is not limited to whether the claim and complaint share a date,

location, or hazardous instrumentality. The claims must also fairly describe what the public entity

allegedly did. (Stockett, supra, 34 Cal.4th at p. 446.) In response to the claim form’s request to

identify the “action or inaction” that caused his injury, Plaintiff identified the failure to have

crossing guards, failure to have proper street signage, failure to have a traffic safety officer, and

failure to comply with the requirements of the Manual of Uniform Traffic Control Safety Devices

for Streets and Highways. (RJN Exh. 1.)

The TAC’s second and sixth causes of action fairly attribute liability to the conduct identified

under the government claim. These causes of action are premised on the failure to provide

crossing guards which purportedly resulted from the Districts failure to take appropriate action in

connection with the CSSP and to address the purported dangerous conditions associated with

the designated primary school entrance.

Accordingly, the TAC premises liability under the second and sixth causes of action on facts

fairly reflected in the government claim.

Leave to Amend

Plaintiff claims that through discovery, he can now amend the complaint to show the undertaking

by pleading facts to explicitly show that the School stopped the crossing guard program because

of Tickell’s email and the School’s belief that it lacked authority to cross students at the

intersection. Plaintiff claims he can also amend the complaint to show the District abdicated its

mandatory duties to approve the CSSP.

Given the above analysis, it does not appear that Plaintiff’s proposed amendments will cure the

deficiencies of the TAC. Therefore, the Court sustains the District’s demurrer without leave to

amend.

Analysis—Motion to Strike

The School seeks to strike its inclusion in the TAC’s second cause of action [dangerous

condition] arguing that when the Court granted Plaintiff leave to amend following the District’s

demurrer to the SAC, it did not allow for an amendment as to the School. The School argues it

did not demurrer to the SAC and had answered, therefore there was no basis to amend as to the

School.

Plaintiff argues that the School’s motion is based on the premise that an amendment to

the dangerous condition cause of action was beyond the scope of leave given by the Court when

ruling on the demurrer to the SAC. Plaintiff argues that although the demurrer was to the SAC’s

first cause of action, leave to amend the dangerous condition claim was given based on the

Court’s reasoning that the allegations in the SAC reflected a dangerous condition cause of

action, rather than the negligent supervision claim under which the facts were pled. Plaintiff

argues he took the facts that the Court found did not support his negligent supervision claim and

re-pled them in a Government Code section 830 cause of action. Plaintiff argues that such

amendment falls within the scope of the leave granted following the prior demurrer.

Plaintiff further argues that even if the amendment goes beyond the scope of the leave

granted, a motion to strike is discretionary under Code of Civil Procedure section 436, and given

the law’s liberal policy regarding amendments, the Court should exercise its discretion and not

strike the matter because it will only lead to a motion to amend that will ultimately be granted.

On reply, the School asserts that Plaintiff misconstrues the basis for its motion as the

motion is based on Plaintiff’s failure to obtain leave to amend the complaint against the School,

not to the addition of the particular cause of action. The School argues that Plaintiff’s opposition

is nothing more than an improper motion for leave to amend that does not comply with the

pleading requirements for seeking such leave.

As to the SAC, in granting leave to amend the Court “g[ave] the pleader an opportunity to

cure the defects in the particular causes of action to which the demurrer was sustained, but that

is all.” (Community Water Coalition v. Santa Cruz County Local agency Formation commission

(2011) 200 Cal.App.4th 1317, 1329.) Therefore, it is improper to “amend the complaint to add a

new cause of action without having obtained permission to do so, unless the new cause of action

is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortg. FSB (2010)

185 Cal.App.4th 1018, 1023.) But a new cause of action is proper if it “directly responds to the

court’s reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp. (2008) 167 Cal. App.

4th 995, 1015.)

Here, Plaintiff was not granted leave to amend to bring a new cause of action against the

School; leave was granted as to the District. While an April 7, 2026 minute order exists for a

“demurrer” by the School and that purported to sustain the School’s demurrer with leave to

amend, that appears to have been in error because the School did not file a demurrer to the

SAC. At the November 13, 2025 hearing on the District’s demurrer to the FAC, the Court

provided the District and the School with an April 7, 2026 date for hearing demurrers to the

SAC. As stated, the School did not file a demurrer to the SAC. Thus, the amendment as to the

School is improper. Further, Plaintiff’s opposition does not provide the necessary information

required for a motion seeking leave to amend.

Therefore, the Court grants the School’s motion to strike without prejudice to Plaintiff’s bringing a

properly notice motion for leave to amend.

RULING

Based on the analysis provided above, the Court rules as follows:

(1) Sustains Defendant San Bernardino City Unified School District’s demurrer to the

TAC’s first, second and sixth causes of action without leave to amend. The District is

immune from liability under Education Code section 44808 or Plaintiff does not

sufficiently allege the District violation of a mandatory duty resulting in Plaintiff’s

injury.

(2) Grant ASA Charter School, Inc.’s motion to strike without prejudice to Plaintiff bringing

a proper notice motion for leave to amend.

(3) Grants the District’s request and take judicial notice of Plaintiff’s Government Tort Claim (RJN,

Exh. 1); Denies the District’ request for judicial notice of the Hopwood declaration (RJN, Exh. C),

and tentative rulings (RJN, Exhs. 2-4).