Windsor R/V Waterworks Park v. Santa Rosa City Schools

Filed 7/25/06 Windsor R/V Waterworks Park v. Santa Rosa City Schools CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Windsor R/V Waterworks Park Co. (Windsor) appeals from the judgment for Santa Rosa City Schools et al. (District) after the District's demurrer to Windsor's cross-complaint was sustained without leave to amend. Leave to amend should have been granted because it was not apparent from the face of the cross-complaint that it could not be amended to state a cause of action, and therefore we reverse.

I. BACKGROUND

The underlying complaint was filed against Windsor for the wrongful death of Yang Ko Lim, a 12-year-old seventh grade student at the District's Rincon Valley Middle School (Rincon), who drowned in a pool at Windsor's water park on June 8, 2004, at a school-sponsored class party. Windsor filed its Judicial Council form cross-complaint against the District in December 2004, seeking apportionment of fault and indemnification for liability in the underlying action. The allegations of the cross-complaint were entirely general, and did not describe any of the circumstances of Lim's death or identify Lim's relationship with the District.

The District demurred to the cross-complaint in February 2005 on the ground that it failed to set forth facts sufficient to state a cause of action. In its points and authorities, the District argued that it was immune from liability under Education Code section 35330, subdivision (a), which empowers schools to â€