Almodovar v. Downey High School CA2/2

Filed 7/15/14 Almodovar v. Downey High School CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KRISLEN ALMODOVAR, a Minor, etc., B249458

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC495699) v.

DOWNEY HIGH SCHOOL et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. William F. Fahey, Judge. Reversed and remanded.

Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Plaintiff and Appellant.

Gibeaut, Mahan & Briscoe, Gary R. Gibeaut, Nancy Mahan-Lamb and John W. Allen for Defendants and Respondents.

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Daphne Almodovar (Almodovar), as guardian ad litem on behalf of Krislen Almodovar, appeals the dismissal of her complaint following an order sustaining the demurrer by Downey High School, Downey Unified School District,1 and Tom Houts (Houts) without leave to amend. We conclude that the trial court erred because it ruled without giving Almodovar notice and an opportunity to be heard in violation of due process, and it was required to accept the first amended complaint filed by Almodovar pursuant to Code of Civil Procedure section 472.2 The judgment of dismissal is reversed and remanded for further proceedings. FACTS Almodovar filed a form complaint against Downey and Houts seeking damages for negligence and intentional tort based on the following allegation: “On March 12, 2012, Krislen was assaulted by Mr. Tom Houts, the Principal of Downey High School[,] while at school. Krislen had been in a fight with another student who had been bullying Krislen. After the other student ran away, and as Krislen was getting ready to walk away from the location . . . , Mr. [Houts] approached Krislen[,] grabbed her by her braided hair and body slammed her to the ground. While Krislen was on the ground, Mr. Houts told her to get up. As Krislen proceeded to stand up, he told her, ‘If you want to act like an animal, I am going to treat you like an animal.’ Mr. Houts then body slammed Krislen to the ground a second time.” A Government Code claim served on Downey was attached as exhibit A to the complaint. The claim was dated May 18, 2012. Downey’s June 27, 2012, denial of the claim was also attached. Downey and Houts filed a demurrer and noticed the hearing for April 25, 2013. They argued that the complaint was deficient because it did not allege a statutory basis for liability, citing Government Code section 815 and Searcy v. Hemet Unified School