Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. 235523
Marchiano, P.J.
Windsor R/V Waterworks Park Co. (Windsor) appeals from the judgment for Santa Rosa City Schools et al. (the District) after the sustaining of the District’s demurrer to Windsor’s amended cross-complaint with leave to amend. Yang Ko Lim, a 12-year-old seventh grade student at the District’s Rincon Valley Middle School (Rincon), drowned in a pool at Windsor’s water park on June 8, 2004, at a school-sponsored class party. Mayany Sam, as special administrator of Lim’s estate, sued Windsor for damages for wrongful death, and Windsor cross-complained against the District for apportionment of fault and indemnification on Sam’s complaint. Judgment was entered for the District after its demurrer to the cross-complaint was sustained without leave to amend. On Windsor’s appeal, we reversed the judgment and directed the trial court to enter an order sustaining the demurrer to the cross-complaint with leave to amend. (Windsor R/V Waterworks Park Co. v. Santa Rosa City Schools et al. (July 25, 2006, A110944) [nonpub. opn.].)
When the case returned to the trial court, Windsor was granted leave to file an amended cross-complaint, to which the District once again demurred. The demurrer was sustained with leave to amend, Windsor elected not to amend, and a judgment of dismissal was entered.
We hold that the amended cross-complaint failed to state a cause of action because the District was shielded from liability for Lim’s death by Education Code section 35330, subdivision (d). Accordingly, we affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Education Code.
I. BACKGROUND
The amended cross-complaint attached Rincon’s flier for the Windsor event, which stated: “The Windsor Waterworks trip is our end-of-the-year 7th grade class party. We will board buses at 12:15 PM, and arrive at Windsor Waterworks at approximately 12:40 PM. Students will be able to swim until 4:45 PM, then will dress and begin boarding buses again at 5:00 PM. Buses will return to [Rincon] by 6 PM. [¶] This is a closed party; the public is not allowed in during our party hours. Members of the 7th grade teaching staff will supervise the party. Windsor Waterworks lifeguards will be present. [¶] Students not attending the party will remain at school and will participate in curricular activities. [¶] Only students who sign up for this trip can attend. Space is limited to 300 students. . . .”
Permission slips, with spaces provided for a “Parent/Guardian signature,” were due at sign up. The permission slips stated: “I understand that all students going on this trip will be responsible in conduct to teachers or adult sponsors. It is further understood that students will go to and return from the event on the transportation provided, unless the pre-release form (below) is filled out and pre-approved.”
The amended cross-complaint alleged that the flier erroneously implied that no one other than Rincon students would be allowed into Windsor during the party, and that the District knew or should have known that hundreds of children from other schools would also be present. Windsor alleged that Rincon failed to comply with District administrative policies and regulations by neglecting to: provide a minimum ratio of one adult chaperone for every 13 students on the trip; determine the specific supervisory responsibility of the chaperones provided; arrange a buddy system or other means of surveillance in advance of the trip; obtain written permission from a parent or legal guardian for Lim to participate in swimming activities; determine from a parent or guardian the extent of Lim’s swimming ability; and warn Lim of the risks inherent in swimming activities. It was further alleged that Rincon failed to watch Lim while he was swimming during the party, and that the negligence of Rincon and the District led to Lim’s fatal drowning.
II. DISCUSSION
We review the amended cross-complaint “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 . . . 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.]” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) “ ‘A general demurrer will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.” [Citation.] ’ [Citations.] Where a demurrer is sustained with leave to amend and the plaintiff elects not to amend the complaint, ‘it is presumed that the complaint states as strong a case as is possible [citation]; and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer.’ ” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421.)
Education Code section 35330, subdivision (a) empowers schools to “[c]onduct field trips or excursions in connection with courses of instruction or school-related social, educational, cultural, athletic, or school band activities to and from places in the state,” and section 35330, subdivision (d) provides that “[a]ll persons making the field trip or excursion shall be deemed to have waived all claims against the district, or charter school, or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.” “[C]ourts have agreed with the definitions of ‘field trip’ and ‘excursion’ set forth in Castro v. Los Angeles Bd. of Education [(1976) 54 Cal.App.3d 232, 236, fn. 1 (Castro)] . . . . ‘ “Field trip” is defined as a visit made by students and usually a teacher for purposes of first hand observation (as to a factory, farm, clinic, museum). “Excursion” means a journey chiefly for recreation, a usual brief pleasure trip, departure from a direct or proper course, or deviation from a definite path.’ ” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 186 (Casterson).)
The liability preclusion provided by section 35330 is commonly referred to as “field trip immunity.” (See, e.g., Casterson, supra, 101 Cal.App.4th at p. 186; Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2008) § 10.78, p. 692; see also Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 130 (Wolfe) [statute “creates broad immunity”]; Castro, supra, 54 Cal.App.3d at p. 237 [discussing statute’s “immunity provisions”].) The Casterson court “reviewed the available legislative history for section 35330 and its predecessor statute, former section 1081.5. Our review indicates that the Legislature was concerned that the financial costs of field trips not burden school districts. . . . [¶] From these legislative history materials, we discern that one aspect of the Legislature’s intent in enacting former section 1081.5 in 1967 was to authorize school field trips upon the condition that no public funds be expended for the trips. We further discern that the waiver provision was added in furtherance of this purpose, because it prevents school district exposure to personal injury claims arising from field trips. This intent is apparent throughout the amendments to field trip immunity provisions of former section 1081.5 and section 35330, since the waiver provision has been carried over in each amendment with only slight changes.” (Casterson, supra, at p. 188, fn. omitted.)
The District is entitled to section 35330 immunity under the facts alleged in the amended cross-complaint. Rincon’s seventh grade class party at the water park was a “journey chiefly for recreation, a . . . brief pleasure trip,” and thus an excursion within the meaning of Castro’s accepted definition. (Castro, supra, 54 Cal.App.3d at p. 236, fn. 1.) The excursion was a “school-related social . . . activit[y]” within the meaning of section 35330, subdivision (a). Therefore, pursuant to section 35330, subdivision (d), Lim was “deemed to have waived all claims against the [D]istrict . . . for . . . accident . . . or death . . . during . . . the . . . excursion.” Because the District was not liable for Lim’s death, there was no basis for apportionment of liability between the District and Windsor, or for indemnification of Windsor by the District, as sought in the amended cross-complaint. (See BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [equitable indemnity is unavailable absent “some basis for tort liability against the proposed indemnitor”].) This result is consistent with the statutory purpose of “prevent[ing] school district exposure to personal injury claims arising from field trips.” (Casterson, supra, 101 Cal.App.4th at p. 188.) We thus independently agree with the trial court that the amended cross-complaint failed to state a cause of action.
In sustaining the demurrer with leave to amend, the trial court apparently reasoned that Windsor could state a cause of action if it could allege that the class party “was a part of the school curriculum and mandatory.” It is unclear whether an excursion must be voluntary in order to qualify for section 35330 immunity. (Compare Castro, supra, 54 Cal.App.3d at p. 236 with Barnhart v. Cabrillo Community College (1999) 76 Cal.App.4th 818, 827 (Barnhart).) But the issue is immaterial here because the text of the flier showed that students were not required to attend the party.
Windsor contends that the applicable statute is not section 35330, but rather section 44808, which provides in full: “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.” The Legislature’s principal concern in enacting this statute was to “limit[] a school district’s liability for injuries to pupils either before or after school hours while children were either going to school or coming home after school.” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517.)
Windsor maintains that the District can be held liable under section 44808 because Rincon undertook to provide transportation to the party, and assumed responsibility for students’ safety at the party by representing in the flier that they would be supervised by members of Rincon’s teaching staff. Windsor urges us to treat section 44808 as the specific statute, and section 35330 as the general statute, such that section 44808 would govern if both statutes would be applicable. Case law, however, is to the contrary. “At present, the consensus of opinion appears to be that ‘[a] field trip is a special type of off-premises activity, making section 35330 the special statute, should both statutes apply.’ Wolfe, [supra, 56 Cal.App.4th at p. 135] [school district immune from liability for injury to first grader during field trip to family farm]; Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 239 [field trip immunity precluded school district’s liability for auto accident injuries to high school basketball players on tournament road trip]; Barnhart, supra, 76 Cal.App.4th at p. 829 [under analogous regulation (Cal. Code Regs., tit. 15, § 55450) soccer team travel to a match is a field trip to which immunity applies].)” (Casterson, supra, 101 Cal.App.4th at pp. 185-186.) We decline to depart from this established consensus, agree with its rationale, and hold that the District is immune under section 35330 even if it could be liable under section 44808.
Windsor contends that an excursion cannot be considered a school-related “social” activity under section 35330 unless it involves socializing with persons outside the school group; otherwise, Windsor submits, every excursion could be deemed to have a social purpose, and the other activities listed in the statute—educational, cultural, athletic, and school band—would be superfluous. This argument overlooks the fact that the Rincon students could have socialized with the hundreds of students from other schools who were allegedly at Windsor on the day of the party. In any event, an end of the year class party is clearly a “social” activity as that word is ordinarily understood. We are not stretching the meaning of the term “social” to hold that it applies here.
Windsor maintains that section 35330’s deemed waiver of claims is different from an immunity, and impliedly requires the consent of a parent or guardian in order to be operative. However, the authorities are correct to describe section 35330 as affording an immunity: that is precisely the effect of a deemed waiver of claims. (See Wolfe, supra, 56 Cal.App.4th at p. 137 [“blanket immunity” created by § 35330’s deemed waiver is equivalent to that provided by another statute stating that school districts “shall [not] be liable”].) Nor does the statute require parental consent for an excursion like the one taken here. To the contrary, the statute provides that “all parents or guardians of pupils taking out-of-state field trips or excursions shall sign a statement waiving all claims.” (§ 35330, subd. (d), italics added.) The District is the beneficiary of a legislatively conferred immunity for this type of field trip. Since the Rincon party was not an out-of-state excursion, it is irrelevant that Lim’s permission slip may have been signed by a relative other than his parent or guardian.
Like the plaintiff in Wolfe, Windsor “offers hypothetical facts which [it] claims could pose difficult questions . . . and perhaps some anomalous results, but . . . [t]he undisputed facts fall squarely within section 35330.” (Wolfe, supra, 56 Cal.App.4th at p. 136.)
In its cross-appeal, the District argues that the judgment should be affirmed because Windsor did not seek to file its amended cross-complaint within the time specified by Code of Civil Procedure section 472b following issuance of the remittitur in the prior appeal. We need not reach this issue in view of our conclusions on Windsor’s appeal.
III. DISPOSITION
The judgment is affirmed.
We concur: Swager, J., Margulies, J.