IC VS COMPTON UNIFIED SCHOOL DISTRICT ET AL

Tentative Rulings

Case Number: ****5118 Hearing Date: July 5, 2022 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C., a minor, by and through his Guardian ad Litem, Silvia Melendez, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT NOTWITSTANDING THE VERDICT, OR ALTERNATIVELY, FOR A NEW TRIAL [TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION TO SEAL Dept. A DATE: Tuesday, July 5, 2022 TIME: 8:30 A.M. COMPLAINT FILED: June 13, 2017 DISPOSED: May 11, 2022

I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

A. BACKGROUND

Plaintiff filed this action on June 13, 2017. The Second Amended Complaint (“SAC”) filed on August 17, 2021, alleges that on September 19, 2016, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The SAC alleges one cause of action for negligence.

On May 11, 2022, the court entered judgment for Defendant after a jury trial.

B. ARGUMENTS

1) Plaintiff’s Motion filed May 27, 2022, argues that Plaintiff was entitled to a finding of negligence as a matter of law, the evidence was legally insufficient to support the verdict, the jury failed to follow the law and considered improper matter and was not properly instructed, Defendants introduced improper evidence, and there were errors of law. Alternatively, the insufficiency of evidence justifies a new trial.

Defendants’ training manual did not cover the physical intervention part of the manual. The District’s policy was not to train on student fights, and instead was determined on a case-by-case basis. The evidence supported a finding that Godinez failed to supervise the classroom, and his intervention in the physical altercation resulted in increasing the risk of serious injury under the circumstances.

In the alternative, the court should grant a new trial based on jury misconduct, which results in a presumption of prejudice. The court instructed the jury not to consider whether either party has insurance, which is irrelevant. A new trial is also warranted given the court’s refusal to provide a special instruction which constituted prejudicial error. The court erred in precluding Plaintiff’s liability expert Doug Dickerson. The court erroneously permitted Tara Victor, M.D. to testify, denying Plaintiff’s motion in limine #8.

2) Opposition filed on June 8, 2022

Defendants argue that the comparative fault of both Plaintiff and Christopher Luna in connection with the fight was established by video footage. Plaintiff ignores the complete body of evidence presented to the jury. Plaintiff cherry-picks certain evidence while ignoring the rest. Dr. Victor’s expert testimony was properly permitted. Her opinion was grounded upon the sworn testimony of the parties and witnesses.

Defendants argue that special jury instructions do not replace California Civil Jury Instructions. Plaintiff’s proposed special instruction was repetitious. Doug Dickerson’s testimony was property excluded because he was unqualified on the issue of classroom safety. His expertise was purely in law enforcement. Plaintiff retained the wrong expert.

Plaintiff has not established juror misconduct since discussing insurance or financial factors does not constitute juror misconduct as a matter of law. Regardless, the Declaration of Juan Ramirez is inadmissible. Defendants submit declarations from jurors showing that the jury’s conduct was proper. Plaintiff did not suffer any prejudice.

3) Reply filed June 24, 2022

Plaintiff contends that Defendants do not provide a substantive argument that the defense verdict was supported. The introduction of inadmissible evidence and jury instructions on comparative fault requires a new trial.

C. LEGAL STANDARDS

A motion for judgment notwithstanding the verdict of a jury pursuant to Civil Procedure section 629 may properly be granted "only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1048. The court’s discretion in granting the motion is “severely limited.” Id. at 1047. The trial court cannot "reweigh the evidence [citation] or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. " Id. at 1047–1048.

There are limited statutory bases for granting a motion for new trial. Plaintiff argues there was irregularity in the proceedings, juror misconduct, insufficiency of the evidence to justify the verdict, and court error. Code Civ. Proc., 657. A motion for new trial may be granted if any of these causes materially affected the substantial rights of the moving party. Id.

A new trial is "a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” Code Civ. Proc., 656. The court can grant a new trial based on insufficiency of the evidence if it is convinced from the entire record, after weighing the evidence, that the jury “clearly should have reached a different verdict or decision.” Code Civ. Proc., 657.

D. DISCUSSION

1) Objections.

a) Defendants’ objection to the Declaration of Juan Ramirez is overruled. Evidence of the conditions or events occurring either within or without the jury room that is likely to have influenced the verdict improperly is admissible. Evid. Code, 1150. Mr. Ramirez attests to the certain topics discussed by the jury which Plaintiff believes were improper.

b) Plaintiff’s objections to the declarations of Juror #8, Crystal Aubert and Jorge Cabrera are overruled. Similarly, these jurors attest to the condition or events occurring either within or without the jury room to rebut Plaintiff’s evidence and is admissible.

2) Plaintiff has not established juror misconduct.

Plaintiff has the burden of proving juror misconduct. Donovan v. Poway Unified School Dist. (2008) 167 Cal.App. 4th 567, 625. However, it is only where jurors affirmatively agree to disregard instructions or agreed to base their verdict upon a discussion regarding insurance that juror misconduct arises. To establish misconduct requiring reversal, “juror declarations must establish an express agreement by the jurors to include such [consideration of insurance] in their verdict, or extensive discussion evidencing an implied agreement to that effect.” Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 147. Plaintiff has not provided evidence of this.

3) Plaintiff has not established that the evidence supports a finding of negligence as a matter of law.

The trial court cannot "reweigh the evidence [citation] or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. " Id. at 1047–1048. The weight of the evidence as a whole supported the juror’s finding of negligence. That Christopher Luna did not personally cause Plaintiff’s fractures does not require a finding that he was not comparatively negligent as a matter of law, given the video and all of the evidence considered by the jury as a whole.

4) Plaintiff has not established that the court’s failure to include Plaintiff’s Special Jury Instruction is a basis for a new trial.

Plaintiff did not establish that the denial of its Special Jury Instructions Nos. 2 and 4a concerning the “special relationship” between Plaintiff and the District was prejudicial error to warrant a new trial. As Defendants observe, the CACI Jury Instructions instructed the jury on the proper duty of care owed to children.

5) Plaintiff has not established court error in precluding expert Doug Dickerson from testifying.

The determination of whether an expert is qualified are within the discretion of the trial court and will not be disturbed without a showing of manifest abuse. People v. Hill (2011) 191 Cal.App.4^th 1104. The expert’s expertise was not specific to classroom safety, but rather juvenile delinquency. Plaintiff’s Ex. 17, 11:3-18.

6) Nor has Plaintiff persuasively established that the inclusion of Dr. Tara Victor’s testimony was improper or prejudicial.

Plaintiff contends that Dr. Victor should have been precluded from testifying about whether Plaintiff’s injury was “accidental in nature” although she was not a liability expert. Motion 15:23-28. Therefore, Plaintiff argues that the testimony was an opinion on the ultimate legal question of causation. Motion 15:7-9. However, the character of Plaintiff’s injury alone was not an issue of law.

E. CONCLUSION

Based on the foregoing, the Plaintiff’s Motion for Judgment Notwithstanding the Verdict, or Alternatively for New Trial is DENIED.

PART II. DEFENDANTS’ MOTION TO SEAL

A. Arguments

Defendants Motion to Seal, filed on June 14, 2022, seeks redaction of the name and signature of Juror #8, who communicated to defense counsel of his privacy concerns, and asked that the juror’s name not be released. Defendants argue that the juror’s privacy and confidentiality is an overriding interest. Defendants’ proposal to redact only the juror’s name and signature is narrowly tailored, and there are no other means for protecting the juror’s privacy.

Plaintiff did not file an opposition.

B. DISCUSSION

Court records are presumed to be open. CA ST CIVIL RULES Rule 2.550(d). The burden is on the moving party to show compelling reasons for sealing records. Mary R. v. B. & R. Corp. (1983) 149 Cal. App. 3d 308, 317. The order to seal must be narrowly tailored to achieve the overriding interest. Cal Rules of Court 2.550(e).

The right to privacy under article I, section 1 of the California Constitution is an interest that overrides the public’s interests in an open court. NBC Subsidiary (KNBC TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1223. The right to privacy extends to the details of one’s personal life. Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.

The court finds that Juror #8’s identity is subject to a right of privacy protected by the California Constitution and constitutes an overriding interest that overcomes the right of public access to the record; that interest supports redacting Juror #8’s name and signature; there is a substantial probability that Juror #8’s privacy interests will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored to redact only the juror’s name and signature; and no less restrictive means exist to achieve the overriding interest. Cal Rules of Court 2.550(d).

III. CONCLUSION

Based on the foregoing, the court GRANTS Defendant’s Motion to Seal by redacting the name and signature of Juror #8.

Dated: Tuesday, July 5, 2022

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: ****5118 Hearing Date: February 3, 2022 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C. a Minor, by and through his Guardian ad Litem, SILVIA MELENDEZ, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION Dept. A DATE: February 3, 2022 TIME: 8:30 A.M. COMPLAINT FILED: June 13, 2017 TRIAL DATE: March 23, 2022

I. BACKGROUND

Plaintiff filed this action on June 13, 2017. The Second Amended Complaint (“SAC”) filed on August 17, 2021, alleges that on September 19, 2016, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The SAC alleges one cause of action for negligence.

On December 9, 2022, the court GRANTED Plaintiff’s Motion to Strike Defendants’ Answer to the SAC in large part, specifically the affirmative defenses for comparative fault, and apportionment of liability.

II. DEFENDANTS’ MOTION FOR RECONSIDERATION

A. Motion filed January 6, 2022

Defendants move for reconsideration of the court’s order striking Defendants’ second affirmative defense for causation, the third affirmative defense for acts or omissions of third parties, and the seventh affirmative defense for apportionment of liability. Defendants contend that based on the court’s order granting the motion to strike, Plaintiff is now taking the position that Defendants are barred from raising comparative fault and apportionment of liability as defenses. Defendants contend that this is erroneous, as the court determined that since the defenses did not raise new matter, it need not be specially pleaded. Comparative fault and apportionment of liability have been at issue since the case’s inception.

Defendants argue that a defendant seeking a Proposition 51 offset for non-economic damages must allege comparative fault as an affirmative defense. Defendants ask only that the court reinstate the affirmative defenses relating to comparative fault and apportionment of liability. This will resolve the current impasse between the parties on the jury instructions.

B. Opposition filed January 21, 2022

Plaintiff argues that the motion is untimely brought more than 10 days after the court’s ruling striking Defendants’ answer. Plaintiff contends that Defendants have not shown new or different facts, circumstances, or law that warrant reconsideration. The court warned Defendants that they failed to properly allege facts supporting their affirmative defenses. Therefore, the court struck the affirmative defenses of comparative fault and apportionment of liability without leave to amend. Defendants are prohibited from raising these defenses at trial. Failure to assert affirmative defenses in the answer constitutes a waiver. Therefore, Defendants are not entitled to jury instructions on these defenses.

C. Reply filed on January 26, 2022

Plaintiff’s opposition confirms that Defendants’ motion should be granted. The court stated that it never intended to bar Defendants from their defenses. Plaintiff has willfully misled the court and breached their ethical obligations. The court specifically permitted Defendants to file this motion given the new circumstances brought by the Plaintiff. The court has inherent jurisdiction to consider the motion in absence of statutory requirements being met.

III. LEGAL STANDARDS

A statutory motion for reconsideration must be presented “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law,” to reconsider the matter and modify, amend, or revoke the prior order.” Code Civ. Proc., 1008(a). However, the court retains the inherent authority to amend its own orders on its own motion. Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1107. The court’s inherent authority to reconsider and correct its own orders is constitutionally derived. Walker v. Superior Court (1991) 53 Cal.3d 257, 267. Accordingly, the court can reconsider on its own motion or pursuant to a party’s request notwithstanding the statutory requirements governing motions for reconsideration. Id.

IV. DISCUSSION

Defendants specifically seek reinstatement of their second affirmative defense for causation, the third affirmative defense for acts of omissions of third parties, and the seventh affirmative defense for apportionment of liability. However, nothing in the court’s ruling of December 9, 2021, states that Defendants waived these affirmative defenses stricken by the court. The court specifically struck the defenses as they did not raise new matter. See M.O. of December 9, 2021, page 5-6.

As a consequence, defenses that do not constitute new matter need not be specially pleaded as they are asserted as a general denial or “traverse.” Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546 [wherein “the court explicated the difference between denials (also known as ‘traverses’) and affirmative defenses (also known as ‘new matters’).”]. Accordingly, “where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ [Citation.] Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse. [Citation.]” Walsh at 1546. The court’s ruling is not susceptible to Plaintiff’s interpretation that the stricken defenses were waived for failure to state facts.

Plaintiff cites Maxwell v. Powers (1994) 22 Cal.App.4th 1596 which is inapposite. Maxwell did not consider whether the defense of comparative negligence constituted new matter and was required to be specially pleaded. Maxwell confirmed the defendant’s “right to prove properly pleaded affirmative defenses such as plaintiff's comparative negligence or assumption of risk.” Maxwell at 1608.

The parties both cite F.P. v. Monier (2014) 166 Cal.Rptr.3d 551 for the proposition that “[a] defendant seeking apportionment of noneconomic damages under Proposition 51 must plead comparative fault as an affirmative defense, prove the comparative fault of others, and request that an allocation be made.” Id. at 563. However, F.P. was superseded by a grant of review. F.P relied on Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 which determined that the burden of proving apportionment of noneconomic damages among joint tortfeasors fell on defendant, who is required to establish fault of the nonparty tortfeasor.” Wilson at 369. The opinion did not address pleading affirmative defenses.

F.P. also relied on Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, which held that a defendant waives his right to assert allocation of non-economic damages by “failing to properly raise the issue below” which is accomplished by “proposing a special verdict requesting this allocation. The record fails to disclose Dr. Nordquist made this request with respect to Dr. Tarr." Kitzig at 1397.

F.P. finally cited Conrad v. Ball Corp (1994) 24 Cal.App.4th 439 which held that defendant “waived any right to an offset by failing to propose a special verdict which differentiated between economic and noneconomic damages. A defendant seeking an offset against a money judgment has the burden of proving the offset." Conrad at 444.

Accordingly, the cases on which F.P. relied do not conclusively require that Defendants allege apportionment of fault or offset as an affirmative defense.

Plaintiff argues that Defendants bear the burden of proving affirmative defenses and indemnity cross-claims. Since the burden falls on Defendants, Plaintiff contends that the facts establishing apportionment of fault on a nonparty tortfeasor must be raised as an affirmative defense.

Defendants’ seventh affirmative defense for apportionment of liability is based on the contention that another student, Christopher Luna, (non-party) bears a degree of fault for Plaintiff’s injuries. Defendants dispute that Plaintiff and C.L. were engaged in “playful slap boxing” as Plaintiff alleged. SAC 19. Defendants dispute the alleged facts describing the interaction between Plaintiff and C.L. However, in the interest of clarity and in light of the new circumstances presented by the Plaintiff’s contention of the effect of the court’s ruling, the court GRANTS the motion for reconsideration and amends its previous order.

V. CONCLUSION

Accordingly, the court reinstates the second affirmative defense for causation, the third affirmative defense for acts or omissions of third parties, and the seventh affirmative defense for apportionment of liability. All defenses rely on the issue of third-party liability, which Defendants previously asserted as affirmative defenses.

Moving party is ordered to give notice.

DATED: February 3, 2022

Hon. Thomas D. Long

Judge of the Superior Court

b'

Case Number: ****5118 Hearing Date: December 9, 2021 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, SILVIA MELENDEZ, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT Dept. A DATE: 12/9/21 TIME: 8:30 A.M. COMPLAINT FILED: 6/13/17 TRIAL DATE: 1/3/22

1. Background

Plaintiff filed this action on 6/13/17. The Second Amended Complaint (“SAC”) filed on 8/17/21 alleges that on 9/19/16, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The SAC alleges one cause of action for negligence.

2. Plaintiff’s Motion to Strike Defendant’s Answer to Plaintiff’s SAC.

a. Motion filed 11/12/21

Plaintiff moves to strike all 14 of Defendant’s Affirmative Defenses asserted in its Answer to Plaintiff’s SAC. Plaintiff argues that the defenses are irrelevant, false, or improper to the cause of action alleged in Plaintiff’s complaint. Defendant’s Answer does not allege any facts sufficient to constitute a defense, is conclusory, and consists of boilerplate allegations.

Plaintiff argues that on 8/16/21, the court notified Defendant regarding the pleading deficiencies alleged in Defendant’s affirmative defenses based on the court’s ruling on Plaintiff’s Motion in Limine No. 3. Defendant then filed an Amended Answer to the SAC on 11/18/21 for which the court should sanction Defendant pursuant to Code Civ. Proc., ; 128.5 as the Answer was made in bad faith.

b. Opposition filed on 11/24/21

In opposition, Defendant argues that this motion is rendered moot by the filing of Defendant’s Amended Answer on 11/18/21, after Plaintiff filed this motion to strike. Plaintiff failed to meet and confer as required by statute. Plaintiff’s motion for sanctions should be denied as Plaintiff did not comply with the “safe harbor” provisions by delaying the filing of the motion until 21 days after serving the motion on Defendant.

c. Reply filed on 11/24/21

Plaintiff argues that the court has discretion to grant a motion strike upon motion or at any time in its discretion. Plaintiff was not required to meet and confer because the motion was brought within 30 days of the trial date, then scheduled for 11/29/21. Plaintiff attempted to meet and confer, but Defendant was not available. While Defendant’s Amended Answer asserts 12 affirmative defenses instead of 14, the Amended Answer contains the same defects as Defendant’s initial answer and is contrary to the court’s order of 8/16/21.

Plaintiff argues that sanctions pursuant to Code Civ. Proc., ; 128.5 should still be imposed. While the court ordered Defendant to file an answer forthwith, Defendant did not file its answer until 47 days after the court’s 9/23/21 order.

3. Legal Standards

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. Code Civ. Proc., ; 435(b)(1); CA ST CIVIL RULES Rule, Rule 3.1322(b). The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. Code Civ. Proc., ; 436(a)-(b). Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. Code Civ. Proc., ; 437.

The answer to a complaint must include any statement of any matter constituting a defense. Code Civ. Proc., ; 431.430(b(2). “New matter” refers to “something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ [Citation.] Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse.” Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546. Stated another way, “new matter” is “any ground urged in avoidance of the complaint; i.e., some independent reason why plaintiff should be barred from recovery, even if everything alleged in the complaint was true.” Id. In other words, “all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defense independently of them, cannot be offered under the denial; they are new matter, and must be specially pleaded.” Id. “

The answer is liberally construed with a view to substantial justice between the parties. The answer should make clear what issues the adverse parties must meet such that when taken in connection with the complaint, “no reasonable person could be in any doubt about the issues to be met.” Hoelzle v. Fresno County (1958) 159 Cal.App.2d 478, 483. FPI, supra at 384.

A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However, unlike federal courts, California state courts are not a notice pleading jurisdiction, and notice alone is not a sufficient basis for any pleading. California is a fact pleading jurisdiction. Merely putting an opposing party on notice is not sufficient. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.

Although common, the practice of pleading affirmative defenses which have no basis in known facts is no more appropriate than pleading a Complaint without factual support. If facts are subsequently discovered that support the addition of affirmative defenses, the Defendants can bring a motion to amend the answer based on the new facts. See Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159 (liberality is displayed in allowing amendments to answers).

In general, Defendant bears the burden of proving the “new matter” alleged in affirmative defenses and, as such, those defenses must be specifically pleaded in the answer. California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442. The Amended Answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the Complaint. FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384. The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” Code of Civil Procedure ;431.30(g). A General Denial without more does not preserve affirmative defenses.

4. Discussion

On 8/16/21, the court ruled on the parties’ motions in limine (“MIL”). With respect to Plaintiff’s MIL #3 the court examined the affirmative defenses asserted by Defendant in its answer to the First Amended Complaint and determined that most of the defenses could and should be stricken under Code Civ. Proc., ; 436(b). The court observed that the affirmative defenses were not proper defenses, were not supported by fact pleading or both, or had been withdrawn.

On 9/23/21, the court heard Defendant’s Motion to Strike Plaintiff’s SAC and ordered Defendant to file an answer to the SAC forthwith. On 11/8/21, Defendant filed its answer to Plaintiff’s SAC. On 11/12/21, Plaintiff filed this motion to strike the answer. On 11/18/21, Defendant filed an Amended Answer to the SAC.

It is well established that an amended pleading supersedes the original one, “which ceases to perform any function as a pleading.” Fireman\'s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1144. While Defendant filed its amended Answer to the SAC on 11/18/21, which would render the Plaintiff’s motion moot, the court has discretion under Code Civ. Proc., ; 436(b) to consider a motion to strike at any time.

The requirement that the parties meet and confer prior to the filing of the Motion to Strike does not apply where the motion is brought less than 30 days before trial. Code Civ. Proc., ; 435.5(d)(4). At the time Plaintiff filed this motion on 11/12/21, the trial date had been previously advanced and continued to 11/29/21. As such, Plaintiff did not need to comply with the requirements to meet and confer pursuant to Code Civ. Proc., ;435.5(a).

The court has reviewed the operative Amended Answer to the SAC filed by Defendant on 11/18/21, which asserts 12 affirmative defenses. While Defendant added factual bases for some of the affirmative defense, the remaining defenses are conclusory and do not allege any specific facts on which the defense is based.

1^st Affirmative Defense for Mitigation of Damages

This defense rests on the principle that a “plaintiff cannot be compensated for damages which he could have avoided by reasonable effort or expenditures." Green v. Smith (1968) 261 Cal.App.2d 392, 396. This defense raises new matter as Defendant asserts that Plaintiff delayed seeking physical therapy and psychological treatment until only recently. Amended Answer 2:22-25. This defense is proper. The court does strike the words “for example” at page 2 line 23 of the Amended Answer from this affirmative defense. Defendant is presumably pleading all of the ultimate facts that support this defense such that the words the court is striking are superfluous.

2^nd Affirmative Defense for Causation – Plaintiff’s Own Acts

This defense merely denies Plaintiff’s assertion of causation. Since these assertions are matters that are responsive to essential allegations of the complaint, they do not constitute new matter. The court strikes the 2^nd affirmative defense.

Third Affirmative Defense for Acts of Omissions of Third Parties

This affirmative defense disputes Plaintiff’s assertion of causation as alleged in the complaint. As such it is not new matter and is stricken.

Fourth Affirmative Defense for Absence of Statutory Basis for Liability

This defense asserts that Plaintiff has not alleged a statutory basis for liability. It disputes Plaintiff’s case in chief, which requires a statutory basis for liability against a public entity. Gov Code ; 815. This is not new matter and is stricken.

Fifth Affirmative Defense for Vicarious Liability

The defense asserts that no employee breached any purported duty of supervision, retention or hiring. An essential element of Plaintiff’s case for negligence is the breach of duty. This defense is not new matter and is stricken.

Sixth Affirmative Defense for Discretionary Immunity

This defense generally asserts that a public entity is immune from any liability for injury arising from an act that was discretionary. This defense mimics the language of Gov Code ; 815.2 without asserting any specific act by any employee that was discretionary and therefore, precludes liability. Defendant also cites Gov Code ; 820.2 which states that a public employee is not liable for injury caused by a discretionary act. This defense does not allege specific facts supporting the application of the immunity. While it is new matter, it is not specifically alleged based on facts as opposed to conclusions. This defense is stricken.

Seventh Affirmative Defense for Apportionment of Liability

Defendant asserts that Plaintiff’s alleged damages were caused and contributed to by other persons. Defendant seeks apportionment based upon the degree of fault between Ismael Campos and Christopher Luna. Causation is an element of Plaintiff’s claim. Defendant’s denial of that allegation does not raise new matter. Therefore, this defense is stricken.

Eighth Affirmative Defense – No Rsponsibility for Non-economic Damages

This defense also disputes the issue of causation and does not allege new matter and is stricken.

Ninth Affirmative Defense for Offset

This defense is properly asserted as an affirmative defense. The principle is designed to “assure that a plaintiff will not be enriched unjustly by a double recovery, collecting part of his total claim from one tortfeasor and all of his claim from another.” Reed v. Wilson (1999) 73 Cal.App.4th 439, 444. The principle directs that claims against nonsettling Defendants be reduced by the amount of the other settlement. Id. As Plaintiff’s complaint is alleged against one tort-feasor only, the principle doesn’t apply. The court strikes this defense.

10^th Affirmative Defense for Unclean Hands

This defense does not allege specific facts describing conduct by plaintiff that was unconscionable, in bad faith, or inequitable. The facts must demonstrate the connection of the conduct with the matter in controversy and why it would be inequitable to provide Plaintiff relief. Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 56. The court strikes this defense.

11^th Affirmative Defense Assumption of the Risk

This principle rests on the assertion that defendant does not owe a duty to Plaintiff because of the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Priebe v. Nelson (2006) 39 Cal. 4th 1112, 1121. The doctrine continues to operate as a complete bar to the plaintiff\'s recovery. Knight v. Jewett (1992) 3 Cal.4th 296, 315-316. This is new matter supported by the allegation that Plaintiff voluntarily participated in the activity and knowingly placed himself in a position of danger, thereby assuming all risks of the activity. This defense is adequately pleaded.

12^th Affirmative Defense – No knowledge or susceptibility

This defense is applicable to a claim for intentional infliction of emotional distress, which requires proof that Defendant engaged in extreme or outrageous behavior (1) by abusing a relation or position which gives him power to damage the plaintiff\'s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress." Bogard v. Employers Casualty Company (1985) 164 Cal.App.3d 602, 616. Since Plaintiff did not allege a claim for intentional infliction of emotional distress, this defense is irrelevant and is stricken.

Sanctions Pursuant to Code Civ. Proc., ; 128.5

Plaintiff’s motion for imposition of sanctions pursuant to Code Civ. Proc., ; 128.5 is DENIED. Plaintiff has not shown any frivolous conduct on Defendant’s part. “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. Code Civ. Proc., ; 128.5(b)(2). Additionally, Plaintiff did not comply with the procedural requirements of the statute, which provides that the motion be “made separately” from other motions and that the motion not be filed until 21 days after service of the motion to allow the adverse party time to withdraw the offending pleading. Code Civ. Proc., ; 128.5 (f)(1)(A) and 128.5(f)(1)(B).

5. Conclusion

Accordingly, Plaintiff’s Motion to Strike is GRANTED in part as to the 2nd through 10^th and 12^th affirmative defenses. The motion is DENIED in part with respect to the 1^st and 11^th affirmative defenses. As this is Defendant’s second attempt to amend its answer, leave to amend is DENIED.

Moving party is ordered to give notice.

DATED: December 9, 2021

_______________________________

Hon. Thomas D. Long

Judge of the Superior Court

'

b'

Tentative Rulings - Main Menu Home

---

Case Number: ****5118 Hearing Date: September 23, 2021 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, SILVIA MELENDEZ, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT Dept. A DATE: 9/23/21 TIME: 9:00 A.M. COMPLAINT FILED: 6/13/17 TRIAL DATE: 10/26/21

I. Background

Plaintiff filed this action on 6/13/17. The Second Amended Complaint (“SAC”) filed on 8/17/21 alleges that on 9/19/16, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The SAC alleges one cause of action for negligence.

II. Defendants’ Motion to Strike

a. Motion filed 8/30/21

Defendants ask the court to strike allegations relating to “negligent training” as Plaintiff admits that the alleged negligent training of Godinez was not the cause of Plaintiff’s injury. Plaintiff alleges that Godinez acted in contravention of his training, not that the alleged training was insufficient or negligent.

Defendants argue they do not owe a special or heightened duty to train employees; Defendants stand in the place of the parents and owe only a duty of ordinary care. It is improper to establish a mandatory affirmative duty within the duty of ordinary care.

Additionally, Defendants argue that where an employer admits that the alleged misconduct occurred in the course and scope of employment and is therefore, vicariously liable for Godinez’s negligence, an ancillary claim against the District for direct liability in the form of negligent training (a different theory of liability) cannot be maintained.

Finally, Defendants argue that Plaintiff’s failure to name a Doe defendant after four years to support the claim for “negligent training” is grounds for dismissal. In order for the new claim to relate back, the Doe defendant must be named and served within three years after the complaint has been filed.

b. Opposition filed 9/10/21

Plaintiff argues that he has adequately alleged a theory of negligent training which raises an independent theory of liability against the District and its employees for failing to adequately train its teachers in responding to altercations between students. This is a separate and independent theory of liability apart from theory of vicarious liability arising from the negligence of Godinez. Plaintiff did not concede that the District’s negligent training was not the cause of his injuries. The SAC alleges otherwise.

Defendants have a duty to protect students from harm, which duty includes an obligation to exercise ordinary care in training and supervising school personnel. Plaintiff argues that Defendants failed to meet and confer prior to filing the motion to strike resulting in prejudice to Plaintiff, who has not been able to discuss and potentially resolve alleged defects. The court should sanction Defendants for this based on Code Civ. Proc., ; 128.5.

The SAC added ¶¶ 17 and 46. However, Defendants move to strike paragraphs that were originally alleged in both the Complaint and First Amended Complaint. It is now inappropriate for Defendants to strike those paragraphs. The paragraphs alleging that Godinez’s intervention caused Plaintiff’s injuries should not be stricken. This is an independent theory of liability against Godinez.

c. Reply filed 9/16/21.

Defendants reiterate that the SAC precludes causation, that it does not owe a legal duty to train on how to intervene in school fights, and is ultimately not viable given that the District admits vicarious liability for the harm caused by Godinez, if proven.

III. Legal Standards

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. Code Civ. Procedure ; 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. Code Civ. Procedure sec 436(a)-(b).

Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. Code Civ. Proc., ; 437. The court does not consider the Declaration of Plaintiff’s counsel, Alex Rodrigues, the deposition transcript of Defendant Godinez, and discovery responses to requests for admission, set two, and supplemental responses to form Interrogatories, set three. These documents go beyond the four corners of the pleading. Defendant’s objections to those documents are sustained for that reason.

While the court can take judicial notice of its own records, such as the court’s minute order and Plaintiff’s opposition to Defendant’s Motion for Summary Judgment, only the existence of a document may be judicially noticeable; the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113 114; ; 452(d). Ultimately, those court records are not germane to the court’s analysis.

Defense counsel has not established compliance with the statutory obligation to meet and confer prior to filing the motion to strike. Code Civ. Proc., ; 435.5. The parties are admonished to comply with their statutory obligations to meet and confer in the future. However, the court exercises its discretion to consider the motion. Code Civ. Proc., ; 436.

IV. Discussion

Defendants move to strike the following allegations that are relevant to Plaintiff’s contention that the District was negligent in failing to properly train Godinez on how to safely intervene in an altercation between students.

· Paragraph 17: “Defendant CUSD did not adequately train GODINEZ on how to safely intervene in student altercations.”

· Paragraph 36: “GODINEZ’s take down and restraint of I.C. was done with disproportionate force, and with the intent and purpose to use techniques that GODINEZ acquired in prior working and military training. The techniques GODINEZ used were dangerous if used on children and in direct contravention to the nonviolent crisis intervention training that he had received.”

· Paragraph 45: “…. The duty of care included CUSD’s duty to develop policies and procedures and adequately train its teachers in responding safely to student altercations.”

· Paragraph 46: “As described in paragraphs 14 through 17, inclusive, CUSD failed to adequately train GODINEZ in how to safely respond to student altercations.”

· Paragraph 50: “GONDINEZ [sic] failed to call another adult for assistance in safeguarding the student, as required by the training he received from CUSD.”

· Paragraph 51: “Instead, as described in paragraphs 25 through 29, inclusive, GODINEZ, acting contrary to his training, used disproportionate force and techniques that were risky for children, to take I.C. down to the floor in a manner that caused traumatic fractures to I.C.’s left leg.

· Paragraph 52: “As described in paragraphs 30 through 32, inclusive, and 35, GODINEZ then, also in contravention to his training, and using significant and disproportionate force, restrained I.C. to the floor for a significant amount of time by placing his entire body on top of I.C., causing aggravation to I.C.’s injury and pain.”

Defendants contend that the SAC alleges that the cause of Plaintiff’s injuries was Godinez’s failure to adhere to his training, not Defendant’s alleged failure to train Godinez properly. While Godinez’s alleged “take down” of the Plaintiff is alleged to be the cause of Plaintiff’s injuries, Plaintiff also alleges that Defendant “did not adequately train Godinez on how to safely intervene.” SAC ¶ 17, ¶ 32. Plaintiff alleges that part of Defendant’s duty to control its employees includes a duty to develop appropriate policies and procedures relevant to and adequately training its teachers in responding safely to student altercations. SAC ¶ 45-46.

Accordingly, these allegations relevant to negligent training are not improper; they are a separate alleged basis for liability on the part of the District. It is an additional factor alleged to be a cause of Plaintiff’s injuries. This is independent of Godinez’s alleged conduct in using techniques acquired in prior wrestling and military training that were dangerous when used on children. SAC ¶ 36.

A claim for negligent training or failing to train depends on the basic principles of tort law, including requirements of causation and duty. “Training” and “supervision” are part of an employer’s duty of “control.”

“’A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent\'s conduct if the harm was caused by the principal\'s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent....’ (Rest.3d Agency, ; 7.05, p. 177.)

‘Liability under this rule is limited by basic principles of tort law, including requirements of causation and duty.’ (Rest.3d Agency, ; 7.05, com. c, p. 180.) Furthermore, ‘[l]iability under this rule also requires some nexus or causal connection between the principal\'s negligence in selecting or controlling an actor, the actor\'s employment or work, and the harm suffered by the third party.’ (Rest.3d Agency, ; 7.05, com. c, illus. 5, p. 180.).” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.

Defendants’ contention that the District does not owe a “special duty” or a “heightened duty” to Plaintiff is unavailing. As set forth in Phillips, part of Defendant’s duty of control is to train and supervise. Id.. Plaintiff does not allege that Defendant owes a special duty. Rather, Plaintiff alleges that the duty arises from a special relationship. SAC, 6:2-4. This argument is based on mischaracterization of the SAC.

Regardless, Plaintiff has alleged a legal basis for a duty arising from the District’s special relationship with its students. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869–870. ["In addition, a school district and its employees have a special relationship with the district\'s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’”].

The District contends that once it admits it is vicariously liable for Godinez’s negligence if proven, Plaintiff may not assert any other claim for independent negligence against the District. Therefore, the District concludes that the claim based on negligent training is precluded. The District interprets its case authority too broadly.

Plaintiff is not alleging a theory of liability against Defendant for negligent entrustment, hiring, or retention which would require evidence that the employer knew or should have known of an employee’s unfitness “that created a particular risk or hazard, and that particular harm materializes.” Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054. Defendants’ case authority supports the contention that if the employer defendant makes a pre-trial admission of vicarious liability based on course and scope of employment, the negligent entrustment and negligent hiring claims are precluded at trial. This general principle is articulated in Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal. App. 4th 853, 869-870, which relies on Armenta v. Churchill (1954) 42 Cal.2d 448 and which the District misapplies.

Citing Armenta, the Jeld-Wen court stated that once an employer has admitted before trial to vicarious liability for its employee’s negligence, if proven, the exclusionary rule of Evidence Code section 1104 operates to protect the employer from being exposed to prejudicial evidence that would be used to show the employer’s prior knowledge of an employee’s prior accidents, for purposes of imposing direct and separate liability on the employer. The rule protects the employer from prejudicial evidence under the exclusionary rule.

The admission of vicarious liability for the employee’s negligence if proven, precludes “evidence of the employee’s prior accidents on any of the alternative forms of negligent entrustment liability, such as a defective truck or an incompetent or unlicensed driver.” Id. Introducing such evidence would run afoul of Evidence Code ; 1104 which bars evidence of a trait of a person’s character with respect to care or skill and is inadmissible to prove the quality of his conduct on a specific occasion. Plaintiff is alleging negligent supervision and control in failing to properly train the District’s agents and failing to create appropriate policies and procedures when dealing with student-on-student altercations. This issue is more properly raised at trial as it concerns the introduction of evidence, not whether the pleading is properly alleged.

Defendants also cite Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1152 which held that if a Plaintiff pursues two theories of recovery against an employer of direct negligence and vicarious liability, and the employer admits vicarious liability for the negligent driving of its employee, then the Plaintiff is barred from pursuing the claim for independent negligence based on negligent entrustment. It does not bar all claims for independent negligence as a whole.

Plaintiff’s claim for failure to train is independent of the employee’s negligence. It does not involve the District’s prior knowledge of the employee’s unfitness or incompetency. It does not involve the introduction of the employee’s unfitness that Defendants purportedly knew of to sustain a negligent retention claim.

Finally, Defendants contend that it is too late for Plaintiff to add Doe Defendants and therefore, the purported claim for negligent training should be dismissed. This is a motion to strike. Plaintiff has not filed a Doe Amendment. Whether such an amendment would be valid or appropriate at this point of the litigation is beyond the scope of Defendants’ motion.

V. Conclusion

Based on the foregoing, Defendants’ Motion to Strike is DENIED. Defendants are ordered to file an answer to the SAC forthwith.

Plaintiff is ordered to give notice.

DATED: September 23, 2021

_______________________________

Hon. Thomas D. Long

Judge of the Superior Court

'

b"

Case Number: ****5118 Hearing Date: August 17, 2021 Dept: A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, SILVIA MELENDEZ, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND PLAINTIFF’S FIRST AMENDED COMPLAINT Dept. A DATE: 8/17/21 TIME: 9:00 A.M.

I. Background

Plaintiff filed this action on 6/13/17. The First Amended Complaint (“FAC”) alleges that on 9/19/16, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The FAC alleges one cause of action for negligence based on Defendants’ breach of duty arising from a special relationship. The trial in this action is scheduled for 8/23/21.

II. Plaintiff’s Motion for Leave to Amend

a. Motion filed 7/22/21

Plaintiff seeks leave to clarify the existing negligence claim to assert the District’s failure to adequately train its teachers in responding safely to student altercations. Plaintiff argues that while the FAC alleges Defendants’ breach of duty to supervise, manage, control, and respond, the clarification is necessary given Defendants’ “surprise objection” on grounds the FAC does not allege a theory based on a failure to train. Plaintiff will also remove the claim for punitive damages. Plaintiff argues the clarification arises from the same facts, and Defendants will not suffer any prejudice.

b. Opposition filed 8/4/21

Defendants argue that Plaintiff amended the complaint two years ago and did not allege a claim for “failure to train.” Plaintiff’s delay in amending the pleading is grounds for denial. Defendants have relied on the only claim alleged for negligent supervision. If Plaintiff amends to add this claim, Defendants are entitled to file a motion for summary judgment as to the new cause of action. Plaintiff is not “clarifying;” Plaintiff never alleged a claim for “failure to train.”

Defendants contend they will suffer prejudice as they have not conducted discovery on this new cause of action.

c. Reply filed 8/10/21

Plaintiff argues that the amendment will clarify the existing negligence claim to assert that the failure to train theory is independent of theories raised against Godinez. This is not a new cause of action.

III. Legal Standards

Leave to amend is permitted at the court’s discretion upon any terms that may be just. Code Civ. Proc., ; 473(a)(1). The statute is liberally construed to permit amendment of the pleadings “unless an attempt is made to present an entirely different set of facts by way of the amendment.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is timely made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530. Where denial of the motion will result in a party being deprived of the right to assert a meritorious cause of action, “it is not only error but an abuse of discretion.” Id.

The types of prejudice that will support denial of the motion is failure to engage in discovery prior to the time of trial. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 487 [where appellant had not discovered or deposed many of the witnesses who would support the new allegations and had not marshaled evidence to oppose the contention that a system wide discriminatory policy existed].

Even if Plaintiff “unreasonably delayed” in seeking amendment, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564–565, 176 Cal.Rptr. 704.) Here, the record does not support Marker's claim it has been harmed by the delay. Moreover, it is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.’” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.

IV. Discussion

The allegations of the FAC for negligence that are material to the motion are as follows:

· The District employed a policy/and or practice to train its teachers in nonviolent crisis intervention for the safety of its students. FAC ¶ 14.

· Intervention training is to ensure the safety of students; nonviolent physical crisis intervention is to be used as a last resort. FAC ¶ 15.

· Between December 2014 and February 2016, Godinez participated in two, six-hour, non-violent crisis intervention training classes. FAC ¶ 16.

· Defendants owed a duty to “supervise, manage, control, and respond to incidents involving students at school with reasonable care as to avoid harm to students.” FAC ¶ 44.

· Godinez intervened by using disproportionate physical force. FAC ¶ 24.

· Godinez failed to call another adult for assistance in safeguarding the students, “as required by the training he received from CUSD.” FAC ¶ 48.

· Godinez acted in contravention to his training. FAC ¶¶ 48-50.

Read as a whole, the FAC fairly reflects that Plaintiff’s claim is not limited to Godinez’s failure to act according to his training; Plaintiff has also alleged Defendants’ direct negligence in failing to supervise, manage, control, and respond to the incident at issue. FAC 44. This allegation sufficiently raises the issue of the District’s direct negligence, which Plaintiff seeks to clarify.

Defendants have not cited any authority for the proposition that proper training of an employee is outside the scope of an employer’s duty to manage and control an employee such that it is a separate cause of action. Nor have Defendants established that Plaintiff was required to specifically allege “negligent training” in order to raise the issue.

A claim for negligent training or failing to train depends on the basic principles of tort law, including requirements of causation and duty. “Training” and “supervision” are part of an employer’s duty of “control.”

“’A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal's negligence in selecting, training, retaining, supervising, or otherwise controlling the agent....’ (Rest.3d Agency, ; 7.05, p. 177.)

‘Liability under this rule is limited by basic principles of tort law, including requirements of causation and duty.’ (Rest.3d Agency, ; 7.05, com. c, p. 180.) Furthermore, ‘[l]iability under this rule also requires some nexus or causal connection between the principal's negligence in selecting or controlling an actor, the actor's employment or work, and the harm suffered by the third party.’ (Rest.3d Agency, ; 7.05, com. c, illus. 5, p. 180.).” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.

Since the issue of the District’s direct negligence in its management and control of Plaintiff was expressly alleged, it was incumbent on Defendants to discover the particular bases for the negligence claim with contention interrogatories.

Defendants allege the amendment will cause prejudice since Defendants will have to conduct new discovery on a new cause of action. In the first instance, the claim is not new. It arises from the same incident and involves the District’s direct negligence in failing to manage and control its employee. Secondly, Defendants do not identify what additional discovery is required or why Plaintiff’s deposition needs to be taken again where the issue is Defendant’s direct negligence in training its employee.

Moreover, Defendants cannot claim it was not on notice of the failure to train issue, given their Motion for Summary Judgment (“MSJ”) filed on 11/15/18. Defendants there acknowledged that a public school district can be liable for failing to institute reasonable protective measures and/or failing to follow its practices. Defendants’ MSJ filed 11/15/18, 9:19-23. Defendants there cited Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741, which involved a plaintiff who died on campus while participating in a “slap boxing fight.” Id. Defendants acknowledged that in Dailey, the evidence revealed that the person responsible failed to develop a comprehensive safety plan and neglected to instruct his subordinates on supervision expectation. Id. 9:23-27. Defendants attempted to distinguish this case, but the salient issue is that “supervision” necessarily involves a duty to create safety plans and “instruct subordinates,” ie., proper training.

Defendants were adequately on notice given Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment. Ex C to the Declaration of Alex Rodriguez, filed 7/22/21. Plaintiff there argued that one of the controverted issues was whether the District “appropriately trained” Godinez in de-escalating and responding to student-on-student altercations. Id., 10:3-4. “Defendant Godinez was not provided training in responding to student-on-student fights … .” Id., 14:22-24.

Finally, Plaintiff raised the issue of the District’s alleged negligence in failing to train or providing inadequate training in Plaintiff’s written discovery. Plaintiff asked for documents memorializing Defendant’s policy on teacher intervention. Declaration of Rodriguez, ¶ 10. Plaintiff took the depositions of Felecia Fernandez and Jose Gomez on 9/19/19, the individuals who provided non-violent crisis intervention training to Defendant. Id., at ¶ 13, 14. Plaintiff designated an expert on the District’s policies and procedures regarding Crisis Prevention Intervention. Id., at ¶ 15. On 4/19/21, Plaintiff took the deposition of Defendants’ expert on and inquired about the District’s policy for training teachers on student altercation. Id., ¶ 17. Defendants have not established that Defendants will suffer prejudice as a result of Plaintiff’s clarification of the alleged negligence claim.

Contrary to Defendants’ claim, Defendants are not entitled to file another Motion for Summary Judgment. Plaintiff is not alleging a new cause of action, and Defendants have previously filed a motion for summary judgment. Further the case on which Defendants rely does not support its contention that in granting leave to amend, the court must give Defendants time to file a Motion for Summary Judgment. The court in Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920 only pointed out that “Polibrid was correct in its initial petition when it asserted that the fast track rules must give way to the statutory right to bring a summary judgment motion. When state rules conflict with statutes, it is the state rule that must give way.” Id. In that case, the trial court granted a motion to continue trial but not long enough for defendant there to file a motion for summary judgment, citing local fast track rules. That is not the issue here.

V. Conclusion

Given the clear allegations of the complaint, the arguments made in support of and response to Defendants’ Motion for Summary Judgment, and the record of written discovery completed in this action, Plaintiff’s Motion for Leave to Amend is GRANTED. Plaintiff is ordered to file the Second Amended Complaint forthwith.

Plaintiff is ordered to give notice.

DATED: 8/17/21

_______________________________

Hon. Thomas D. Long

Judge of the Superior Court

"

b"

Case Number: ****5118 Hearing Date: August 16, 2021 Dept: A

The court posts the following tentative on defendant's MIL No. 9 for discussion at the FSC on August 16th. The court will be prepared to discuss all other motions in liminie at that time but is not posting tentatives. The court notes that defendant's MIL No. 9 is related to plaintiff's motion to amend set to be heard August 17th for which the court has also posted a tentative.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.C. A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, SILVIA MELENDEZ, Plaintiff(s), vs. COMPTON UNIFIED SCHOOL DISTRICT, ET AL., Defendant(s).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO: ****5118 [TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION IN LIMINE #9 Dept. A DATE: 8/16/21 TIME: 9:00 A.M.

I. Background

Plaintiff filed this action on 6/13/17. The First Amended Complaint (“FAC”) alleges that on 9/19/16, Plaintiff was a ninth-grade student at Manuel Dominguez High School, which is within the jurisdiction of Defendant, Compton Unified School District (“District”). Plaintiff alleges that Defendant, Marco Godinez (“Godinez”), intervened in an altercation between Plaintiff and another student. Plaintiff alleges that in “taking down” Plaintiff, Godinez caused two fractures to Plaintiff’s left leg. The FAC alleges one cause of action for negligence based on Defendants’ breach of duty arising from a special relationship. The trial in this action is scheduled for 8/23/21.

II. Defendants’ Motion in Limine #9

a. Motion filed on 7/21/21

Defendants ask for an order to exclude any and all evidence, relating to a direct or independent basis for liability of the Comption Unified School District (“District”) as the only basis for liability at trial is vicarious in nature. The evidence is irrelevant and will create a substantial danger of undue prejudice. Defendants will admit at trial that Defendant Godinez was acting within the course and scope of employment, which moots any direct theory of liability against the District. The amendment to Plaintiff’s complaint does not alter the result.

b. Opposition filed

Plaintiff alleges that he is pursuing a theory of liability for direct negligence against the District for failure to train, which Plaintiff will clarify after further amendment. Plaintiff alleges that he has raised an independent theory of negligence against the district. The cases on which Defendants rely involve circumstances where the Plaintiff alleged alternative theories: employer’s vicarious liability for the negligence of its employee, and direct negligence for negligent entrustment/hiring.

c. Reply filed 8/9/21

Defendants argue that Plaintiff confirms that Plaintiff’s theory of liability is vicarious only. There is no direct liability against the District. Plaintiff cannot depend on future events (such as amending the complaint). The only other way to hold the District separately liable (apart from Godinez’s conduct) is if there is a direct theory of liability against it.

III. Discussion

Read as a whole, the First Amended Complaint fairly reflects that Plaintiff’s claim is not limited to Godinez’s failure to act according to his training and the District’s vicarious liability therefor; Plaintiff has also alleged Defendants’ direct negligence in failing to supervise, manage, control, and respond to the incident at issue. FAC 44. This allegation sufficiently raises the issue of the District’s direct negligence, which Plaintiff seeks to clarify in amending the First Amended Complaint.

Plaintiff is not alleging a theory of liability against Defendant for negligent entrustment, hiring, or retention which would require evidence that the employer knew or should have known of an employee’s unfitness “that created a particular risk or hazard, and that particular harm materializes.” Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054.

Defendants’ case authority supports the contention that if the employer defendant makes a pre-trial admission of vicarious liability based on course and scope of employment, the negligent entrustment and negligent hiring claims are precluded at trial. This principle is articulated in Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal. App. 4th 853, 869-870, which relies on Armenta v. Churchill (1954) 42 Cal.2d 448.

Citing Armenta, the Jeld-Wen court stated that once an employer has admitted before trial to vicarious liability for its employee’s negligence, if proven, the exclusionary rule of Evidence Code section 1104 operates to protect the employer from being exposed to prejudicial evidence that would be used to show the employer’s prior knowledge of an employee’s prior accidents, for purposes of imposing direct and separate liability on the employer. The rule protects the employer from prejudicial evidence under the exclusionary rule.

The admission of vicarious liability for the employee’s negligence if proven, precludes “evidence of the employee’s prior accidents on any of the alternative forms of negligent entrustment liability, such as a defective truck or an incompetent or unlicensed driver.” Id. Introducing such evidence would run afoul of Evidence Code ; 1104 which bars evidence of a trait of a person’s character with respect to care or skill is inadmissible to prove the quality of his conduct on a specific occasion.

Defendants also cite Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1152 which held that if a Plaintiff pursues two theories of recovery against an employer of direct negligence and vicarious liability, and the employer admits vicarious liability for the negligent driving of its employee, then the Plaintiff is barred from pursuing the claim for independent negligence based on negligent entrustment. It does not bar all claims for independent negligence as a whole. Defendants concede as such in its reply. Reply, 4:10-11 [“To be clear, the only other way to hold the District separately liable (from Marco Godinez’s conduct) is if there is a direct theory of liability against it.”].

Plaintiff’s claim for failure to train is independent of the employee’s negligence. It does not involve the District’s prior knowledge of the employee’s unfitness or incompetency.

IV. Conclusion

Based on the foregoing, Defendant’s Motion in Limine #9 is DENIED.

.

DATED: 8/17/21

_______________________________

Hon. Thomas D. Long

Judge of the Superior Court

"

Case Number: ****5118    Hearing Date: April 20, 2021    Dept: A

****5118 I.C. v. Compton, Unified School District, et al.

Plaintiff’s Motion for Termination of Guardianship is GRANTED.

This action arises from an incident that occurred on 9/19/16, when Plaintiff was a ninth-grade student at Manuel Dominguez High School. Plaintiff alleges that Defendant, Marco Godinez, intervened in an altercation between Plaintiff and another student. In “taking down” Plaintiff, Godinez allegedly fracturing Plaintiff’s left leg.

On 9/28/17, the Court appointed a Guardian ad Litem for Plaintiff, who was then a minor. A minor who is a party in an action shall appear by a guardian ad litem appointed by the court. Code Civ. Procedure ; 372(a). Plaintiff’s birthday is 9/29/2000 according to the Plaintiff’s Application for Appointment of Guardian Ad Litem. As such Plaintiff turned 18 on 9/29/18.

As Plaintiff no longer requires a guardian ad litem, the court grants the motion and terminates the guardianship.

Moving party is ordered to give notice.

Case Number: ****5118    Hearing Date: December 19, 2019    Dept: A

# 12. I.C. v. Compton Unified School District, et al.

Case No.: ****5118

Matter on calendar for: Motion to Compel Further

Tentative ruling:

1. Background

   This is a personal injury action. Plaintiff I.C., a minor through his Guardian ad Litem Silvia Melendez, was engaged in a physical altercation with another student at Plaintiff’s high school when Defendant Marco Godinez, Plaintiff’s art teacher, intervened to stop the fight. The intervention led to Plaintiff suffering fractures to his leg. Defendant Godinez was employed by Defendant Compton Unified School District (“CUSD”).

   The First Amended Complaint (“FAC”) alleges negligence.

   Plaintiff now moves to compel further responses to his request for production, set three, and responses to special interrogatories, set three. An opposition and reply have been filed and considered.

   For the reasons set forth below, the Court denies the motion.

2. Standard

California Code of Civil Procedure ; 2031.310 allows for a party demanding the production of document to move for an order to compel further responses if: (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, and (3) an objection in the response is without merit or too general. The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (C.C.P., ; 2031.310(b)(1).)

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

1. Analysis

   1. Timing

Defendant’s timing argument, that Plaintiff did not bring the motion within the statutory 45-day time frame, is unpersuasive because Plaintiff did file the motion, but the Court took it off-calendar to conduct an informal discovery conference.

1. Merits

   Plaintiff is seeking information about other fights in which teachers intervened at Dominguez High School. The requests for further production seek information on fights between September 1, 2013 and September 19, 2016, while the special interrogatories seek information between January 2015 and present. Plaintiff argues the related incidents are necessary to establish whether Defendant Godinez acted within the standard of care. Defendants argue the requested information is irrelevant, impermissible, and overly burdensome.

   The Court finds Plaintiff’s argument to be unpersuasive. The FAC’s allegations against Defendant CUSD are based on vicarious liability for Defendant Godinez’s actions. “The respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment. [Citation.]” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154.) Determining if Defendant Godinez used ordinary care “ ‘depends upon the circumstances of each particular case and is to be determined as a fact with refence to the situation and knowledge of the parties.’ [Citation.]” (Hemady v. Long Beach Unified Sch. Dist. (2006) 143 Cal.App.4th 566, 580.) Examining all other fights at the school is an overly broad effort at evaluating Defendant Godinez’s negligence; the case turns on the particular facts of the incident itself. The requested information does not aid in establishing a standard of care as to how a teacher is to intervene between students, and any potential probative value of introducing such additional unqualified or undefined “fighting” scenarios will unnecessarily distract the jury, confuse the issues, and lead to an undue consumption of time.

   Additionally, acquiring this information would be unduly burdensome. The high school usually has around 1,700 students during any given year and the school does not readily track information concerning all student fights. (Decl. Perez, ¶ 4–5.) Setting aside the vague description as to the definition of a fight, the school would be required to manually search each student file numbering in the thousands.

   The motion to compel further is denied. However, the Court finds that Plaintiff acted with substantial justification in bringing the motion to preserve their record and declines to issue a monetary sanction.

1. Ruling

   The motion to compel further discovery is denied.

   Next dates:

   Notice: