This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 03:41:59 (UTC).

JANE DOE VS LAWNDALE ELEMENTARY SCHOOL DISTRICT ET AL

Case Summary

On 12/13/2017 JANE DOE filed a Personal Injury - Other Personal Injury lawsuit against LAWNDALE ELEMENTARY SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6649

  • Filing Date:

    12/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

ELAINE LU

 

Party Details

Defendants and Respondents

LAWNDALE ELEMENTARY SCHOOL DISTRICT

DOES 1 THROUGH 60

FARR JASON

Guardian Ad Litem

S.A.

Minor

JANE DOE

Other

TYSON & MENDES LLP

Attorney/Law Firm Details

Defendant Attorneys

BERMAN EMILY SACKS

OLIVER SUSAN

Minor Attorney

RING DAVID M. ESQ.

Other Attorneys

GILBERT BRENDAN PAUL ESQ.

 

Court Documents

PROOF OF SERVICE SUMMONS

2/23/2018: PROOF OF SERVICE SUMMONS

DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

4/2/2018: DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S DEMURRER TO PLAINTIFF'S COMPLAINT

4/2/2018: DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S DEMURRER TO PLAINTIFF'S COMPLAINT

DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JANE DOE'S COMPLAINT

4/2/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JANE DOE'S COMPLAINT

Minute Order

5/4/2018: Minute Order

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

5/4/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

Proof of Service

5/29/2018: Proof of Service

DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

5/29/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Unknown

6/18/2018: Unknown

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Case Management Conference

8/23/2018: Notice of Case Management Conference

Notice

8/23/2018: Notice

Memorandum of Points & Authorities

9/26/2018: Memorandum of Points & Authorities

Case Management Statement

11/19/2018: Case Management Statement

Case Management Statement

11/19/2018: Case Management Statement

Proof of Service (not Summons and Complaint)

12/12/2018: Proof of Service (not Summons and Complaint)

Notice

1/2/2019: Notice

Unknown

3/26/2019: Unknown

51 More Documents Available

 

Docket Entries

  • 05/01/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 03/26/2019
  • Plaintiff's Notice of Deposit of Jury Fees; Filed by JANE DOE (Legacy Party)

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  • 03/22/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Case Management Conference - Held

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  • 03/22/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 03/18/2019
  • at 10:00 AM in Department B, Deirdre Hill, Presiding; Informal Discovery Conference (IDC) - Held

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  • 03/18/2019
  • Minute Order ( (Informal Discovery Conference (IDC))); Filed by Clerk

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  • 03/05/2019
  • Case Management Statement; Filed by JANE DOE (Legacy Party)

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  • 02/28/2019
  • Case Management Statement; Filed by LAWNDALE ELEMENTARY SCHOOL DISTRICT (Defendant)

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  • 02/19/2019
  • at 11:00 AM in Department B, Deirdre Hill, Presiding; Informal Discovery Conference (IDC) - Not Held - Rescheduled by Party

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  • 01/15/2019
  • Answer; Filed by LAWNDALE ELEMENTARY SCHOOL DISTRICT (Defendant)

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143 More Docket Entries
  • 01/25/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 01/25/2018
  • Application ; Filed by S.A. (Legacy Party); JANE DOE (Legacy Party)

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  • 01/25/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 01/25/2018
  • Notice; Filed by Court

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  • 01/25/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 12/13/2017
  • Complaint

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  • 12/13/2017
  • COMPLAINT FOR PERSONAL INJURIES AND DAMAGES ARISING FROM CHILDHOOD SEXUAL ABUSE

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  • 12/13/2017
  • Summons; Filed by null

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  • 12/13/2017
  • Complaint; Filed by null

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  • 02/28/2017
  • Proof-Service/Summons; Filed by S.A. (Legacy Party); JANE DOE (Legacy Party)

    Read MoreRead Less

Tentative Rulings

Case Number: BC686649    Hearing Date: January 22, 2020    Dept: SWB

***UPDATED 1/22/20**Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

JANE DOE, a minor by and through her guardian ad litem S.A.,

Plaintiff,

Case No.:

BC686649

vs.

[Tentative] RULING

LAWNDALE ELEMENTARY SCHOOL DISTRICT, et al.,

Defendants.

Hearing Date: January 22, 2020

Moving Parties: Defendant Lawndale Elementary School District

Responding Party: Plaintiff Jane Doe

Motion for Summary Judgment or, the alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

BACKGROUND

On December 13, 2017, Jane Doe, a minor by and through her guardian ad litem, S.A., filed a complaint against Lawndale Elementary School and Jason Farr.

On April 23, 2018, plaintiff filed a FAC for (1) sexual abuse of a minor, (2) IIED, (3) sexual harassment, (4) negligent hiring, supervision, and retention of an unfit employee, (5) breach of mandatory duty (failure to report suspected child abuse), (6) negligent failure to warn, train, or educate student, (7) negligent supervision of a minor, and (8) negligence.

On December 7, 2018, the court sustained with leave to amend the 3rd and 6th causes of action. Plaintiff did not amend.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendant Lawndale Elementary School District (“LESD” or the “District”) requests summary judgment as to the FAC on the ground that it prevails as a matter of law on the FAC.

In the alternative, LESD requests summary adjudication that the 4th, 5th, and 7th causes of action have no merit as a matter of law.

In the FAC, plaintiff alleges that she was 13 years old when she entered 7th grade for the 2015-2016 school year at Jane Addams Middle School, and Justin Farr was a teacher and employee of the school. Farr would work with students on campus during school hours with band-related activities and participated and was an instructor in an after-school program called Realizing Amazing Potential (“RAP”) that took place on campus. RAP took place Monday through Friday from 3:00 p.m. to 5:30 p.m. In part, this program involved students receiving specialized instruction and lessons with respect to playing musical instruments, which plaintiff received with respect to the flute. FAC, ¶15. During the 2015-16 school year, Farr began “grooming” plaintiff with the intent to manipulate her emotions and to take advantage of her young age. Farr began giving special attention to plaintiff, and began trying to convince her to participate in RAP. Plaintiff convinced her parents to let her joint, and when her mother attempted to pay for the program, she was informed by the school that Farr had already paid what was owed. Id., ¶16. Farr continued to groom and manipulate plaintiff while she participated in RAP over the summer, which took place Monday through Friday from 8:30 a.m. to 1:00 p.m. Plaintiff’s mother paid the fees for the summer RAP program on behalf of plaintiff. Id., ¶17.

Plaintiff further alleges that during her 8th grade year, which was the 2016-17 school year, plaintiff again participated in RAP with Farr as her instructor. Plaintiff’s mother paid the fees. In addition to instructing during the RAP program, Farr would also be present at the middle school campus during school hours, including during lunch time and when plaintiff had band class where he would work with her and other students on band related activities. During school hours and during RAP, Farr would constantly show unusual attention towards plaintiff, like constantly sitting next to her, joking with her, and showing her physical attention. This included inappropriately hugging her every time he first saw her on campus and when she would be leaving campus. Farr also kissed plaintiff on campus on multiple occasions. Id., ¶18.

Plaintiff also alleges that Farr’s inappropriate conduct towards plaintiff was so open and obvious that fellow students would comment about them being in a dating relationship. Id., ¶19. Because defendant LESD failed to take any actions against Farr and to adequately supervise him or plaintiff, Farr was able to sexually abuse plaintiff. This abuse continued up until February 2017. It was shortly thereafter that, for the first time, plaintiff told her parents about the abuse perpetrated on her by Farr. Plaintiff’s parents contacted the police and reported Farr’s abuse of plaintiff. Id., ¶21. In March 2017, Farr was arrested and charged with criminal offenses stemming from his misconduct. In July 2017, Farr was convicted and sentenced to 16 months in state prison. Id., ¶23.

The parties do not dispute that plaintiff attended Jane Addams during her 6th, 7th, and 8th grade years. Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) 3. Defendant Farr was an employee of the District during this time and worked as a Program Leader for the after-school program RAP. DUMF 4. Far had worked for the District for approximately eight years, at Jane Addams Middle School and at William Green Elementary School prior thereto. DUMF 5. Plaintiff was a participant in RAP for several years during elementary school before taking a year off from the program in sixth grade. DUMF 7. Plaintiff took band as an elective in 7th and 8th grade. DUMF 8. Plaintiff met Farr in connection with this class and while during in the band room during her lunch period. DUMF 9. Plaintiff would often spend her lunch period in the band room to eat her lunch and practice her instrument, sometimes with other students. DUMF 10. Farr’s role with RAP was to oversee the band portion of the program, and Diana Villarreal was his supervisor. DUMF 11.

The parties also do not dispute that although Farr was employed with the after-school program, he regularly volunteered his time at the school as an assistant in the band class taught by employee Deborah Fetterhoff, and with Villarreal’s knowledge. He wore a badge, would check in and go on campus. DUMF 12. Farr would also help students during lunch with the knowledge of both Fetterhoff who would be there during lunch, and Villareal who had occasion to observe him. DUMF 13. Farr asked plaintiff and ultimately convinced her to participate in the RAP program because of her talent playing the flute and because they did not have many students who played the flute. DUMF 14. During the school year, plaintiff had occasion to interact with Farr on campus in the RAP program, in the band room during school hours, in the hallway around the band room. DUMF 15.

The parties also do not dispute that in summer 2016, plaintiff participated in the RAP program at Jane Addams. DUMF 16. During this summer, Farr told plaintiff that he had feelings for her, and plaintiff was happy because she had developed a crush on him. DUMF 17. A field trip that summer was the first time that anything crossed the line physically, according to Farr. Plaintiff also believes it was that summer when things became physical. DUMF 18. Plaintiff never talked to her friends, her mother, or any adults affiliated with the school about her crush or that Farr had developed feelings for her. DUMF 20. Plaintiff and Farr had begun to exchange instant messages and to have telephone conversations. Plaintiff never talked to any of her friends or other students about the fact she was exchanging messages with Farr. Some of those messages were sexual in nature and plaintiff never showed those messages to anyone during the relationship. DUMF 21. Farr talked to plaintiff about the relationship being inappropriate and she knew not to talk to anyone about it. DUMF 24.

The parties also do not dispute that plaintiff and Farr kissed in the band room when no one else was present. DUMF 29. No one ever saw plaintiff and Farr kiss, and plaintiff never told anyone that she kissed him. Plaintiff kissed him when no one else was around. DUMF 30. Although plaintiff claims that fellow students openly gossiped about her relationship with Farr, none of them ever reported any suspicious behavior or inappropriate conduct to anyone affiliated with the District. DUMF 32. Plaintiff never mentioned any inappropriate conduct to anyone affiliated with the District or anyone else for that matter. DUMF 33.

Evidentiary objections

Defendant’s objections to Robert Fraisse, Ph.D. decl. Nos. 1-11 are SUSTAINED.

4th cause of action for negligent hiring, supervision, and retention of an unfit employee

Under this cause of action, plaintiff alleges that LESD had the responsibility and duty to adequately and properly investigate, hire, train, and supervise its employees and to protect its students from harm caused by unfit and dangerous individuals hired by the district. FAC, ¶41. LESD knew or should have known that Farr was unfit to be an employee before it hired him. Had LESD conducted an appropriate and reasonable investigation into Farr’s background, it would have learned that Farr was unfit to be an employee and would not have hired him. Id., ¶42. LESD knew or should have known that Farr was engaging in sexual abuse and harassment of plaintiff, and yet still allowed him to remain employed, and did nothing to prevent the abuse, thus allowing Farr to gain access and ultimately to manipulate and sexually abuse plaintiff. Id., ¶43. LESD failed to exercise any reasonable care in supervising Farr while he was on school grounds. Id., ¶44. Farr’s inappropriate conduct towards plaintiff was so open and obvious that fellow students would comment about them being in a dating relationship. Despite this, no action was taken by LESD. Id., ¶46. LESD breached its duty to properly and adequately investigate, hire, train, and supervise Farr. Id., ¶47.

“A special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protects its students.” Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal. App. 3d 707, 717.

“[A] school district cannot be held vicariously liable for a teacher’s sexual misbehavior with a student. . . . The only way a school district may be held liable must be ‘premised on its own direct negligence in hiring and supervising the teacher.’” Steven F. v. Anaheim Union High School District (2003) 112 Cal. App. 4th 904, 908 (citation omitted). “[A] school district is liable ‘for the negligence of supervisory or administrative personnel who allegedly knew, or should have known,’ of the foreseeable risk to students of sexual abuse by an employee and nevertheless hired, retained, and/or inadequately supervised that employee.’” D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal. App. 5th 210, 223 (citation omitted). “[L]iability for negligent supervision against the district requires proof that the district knew or should have known facts which would warn a reasonable person that [the teacher] presented an undue risk of harm to third persons in light of the particular work to be performed.” Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1214-15.

“[T]he imposition of tort liability for a third party’s sexual misconduct requires that direct negligence be established.” Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App. 4th 377, 395. “’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.’ . . . ‘[l]iability under this rule is limited by basic principles of tort law, including requirements of causation and duty.’ 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.’” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th 1133, 1140 (citations omitted). “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” Id. at 1139. “Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” Delfino v. Agilent Technologies, Inc. (2006) 145 Cal. App. 4th 790, 815.

“[T]here can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’” Juarez, supra, at 395. “To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.” Z.V. v. County of Riverside (2015) 238 Cal. App. 4th 889, 902 (citation omitted). “[I]f Individual District employees responsible for hiring and/or supervising teachers knew or should have known of [the teacher’s] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision, including [the plaintiff], the employees owed a duty to protect the students from such harm.” Virginia G. v. ABC Unified School District (1993) 15 Cal. App. 4th 1848, 1855 (citation omitted).

“In California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.” Juarez, supra, at 395. In Roman Catholic Bishop v. Superior Court (1996) 42 Cal. App. 4th 1556, a victim of childhood sexual abuse sued the church for negligent hiring, supervision, and retention, claiming that the church should have known of the sexual propensities of a parish priest. Her action was dismissed on summary judgment because she could not prove that the church had any basis upon which to suspect that the priest had deviant tendencies. Id. at 1565-67. In Federico, supra, at 1213, a hairstyling school could not be found liable under a negligent hiring theory for an employee’s molestation of a minor where there was nothing that would have indicated the employee posed a threat of harm to minors he might encounter in the course of the work he was hired to perform.

“A defendant does not owe a legal duty to protect against third party conduct, unless there exists a special relationship between the defendant and the plaintiff. In that circumstance, ‘[i]n addition to the special relationship . . . , there must also be evidence showing facts from which the trier of fact could reasonably infer that the [defendant] had prior actual knowledge, and thus must have known, of the offender’s assaultive propensities.’ In short, the third party’s misconduct must be foreseeable to the defendant.” Doe v. Dept. of Family and Children Services (2019) 37 Cal. App. 5th 675, 682-83.

In Steven F., supra, the plaintiffs, a student and her parents, sued the school district seeking damages for injury sustained as a result of a district teacher’s molestation of the student. In that case, the court concluded that “[t]here was absolutely no evidence at all . . . that the school district was negligent in hiring the teacher or continuing to employ him. . . . The student here kept the relationship with the teacher secret from even her closest friends. She complained to no one, including her parents or any school officials. Nor this there any evidence that the district had knowledge of any prior pedophiliac or other tendency on the teacher’s part to try to have sex with his students.” Id. at 909.

Here, the court finds that defendant has met its burden of showing that plaintiff cannot establish that defendant had any knowledge that Farr had a propensity or tendency toward sexual misconduct with a minor when it hired Farr. Farr’s personnel records indicate that he was subject to and passed a thorough background check prior to being hired by the District. Farr submitted to FBI fingerprint clearance screening procedures, provided background references, and was required to complete a safety training program. Farr had no criminal history. See Dennis Perry (principal) decl., Diana Villarreal (program supervisor for RAP) amended decl. and decl., Emily Berman decl., Exh. 4 (Farr’s personnel file), Deborah Fetterhoff (music teacher) depo., Jason Farr depo. See also DUMF 63.

As to negligent supervision, “[k]nowledge of conduct which is innocuous or which is ambiguous is not by itself notice of ‘unlawful sexual conduct’ or of a tendency or propensity to engage in such conduct. Ambiguous conduct is conduct which is capable of being understood in two senses, where one sense might suggest a tendency of propensity to engage in ‘unlawful sexual conduct’ with a child, but where another sense might suggest innocent conduct or might suggest wrongful conduct that did not involve a tendency or propensity to engage in ‘unlawful sexual conduct’ with a child.” Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal. App. 4th 708, 720. “[I]n order to hold an employer liable for its employee’s sexual abuse of minors, the reason to know standard set forth in section 213 of the Restatement Second of Agency precludes liability based solely on knowledge of conduct by the employee which is ambiguous in regard to his commission of such offenses. . . .Therefore, the reason to know standard used in the negligent supervision liability context is identical to the reason to know standard approved in Doe.” Id. at 720-21. “As such, to support her negligent supervision claim, [the plaintiff] had to prove both that [the teacher] posed a risk of harm to students and that the risk of harm was reasonably foreseeable, i.e., that [the District] knew or should have known of the risk.” D.Z., supra, at 230 (citation omitted).

Defendant asserts that it did not have knowledge of plaintiff and Farr’s sexual relationship or of any improper sexual conduct by Farr prior to his arrest. In his entire eight-year history with the District, there was never a complaint made against him from any parent, student, teacher, or staff member regarding his job performance or his interactions with students. Plaintiff never reported her relationship with Farr to anyone within the District. Defendant agues that a “rumor is exactly the type of ambiguous situation that cannot be used in hindsight to find notice on the part of the District.” There is no evidence that anyone witnessed an overt sexual act. See also declarations and deposition testimony above. See also Susan Aceytuno (plaintiff’s mother) decl., Marco Garzona (stepfather) decl.; Christian M. decl., Adam F. decl., Simon P. decl., Richard G. decl., Christian G. decl., Alexandro E., Emily P. decl., Chris Swartzbaugh (RAP drum line program leader) decl.

In opposition, plaintiff does not present any evidence that defendant had actual knowledge of plaintiff and Farr’s relationship or of any improper sexual conduct. Rather, plaintiff argues, defendant should have known that Farr posed a foreseeable risk to plaintiff and that LESD failed to supervise Farr and to protect plaintiff.

Plaintiff contends that Farr would hug plaintiff, play with her hair, tickle her, flirt with her and even have her wear his jacket during school hours and during the RAP program, and that such conduct occurred in the presence of Fetterhoff. Plaintiff argues that if Villareal had reasonably supervised Farr, she would have spotted the inappropriate relationship and/or hugging so as to intervene and at least investigate if anything inappropriate was going on.

According to plaintiff, it was “frequent” that she would be the only student at lunch in the band room, along with Ms. Fetterhoff and defendant Farr. Sometimes Ms. Fetterhoff would step out “[f]or a short amount of period.” Plaintiff’s depo., 42, 44. She started communicating with Farr outside the school premises through Instagram messaging. Id., 52. She testified that during the times she had physical interactions with Farr, no one else was present. Id., 65. She also testified that people would be around when “he would come around and hug me,” but that he would hug other people, too, although “usually he would hug me more.” Id. She also stated that “we would kiss in the band room, but nobody else would be in there.” Id., 66. She never discussed any of her interactions with Farr with any of her teachers or administrators at the school. Id. When asked whether any of them were present during kissing or any type of physical interaction between her and Farr, she responded that “[s]ometimes it would be because he like would be sitting next to me all the time, and multiple people would be around.” Id.

Defendant Farr testified that “we were trying to keep it as low-key or – I don’t even want to use that word – as discreet as possible. [Students] were always . . . like saying like, ‘Oh,’ . . . ‘you and Ashley are going out’ like as a joke . . . . And, . . . I would try to, like, defer from that answer for that question with . . . something else, or whatever.” Farr depo., 71. When asked if it surprised him that a student testified that by Thanksgiving of 2016, “essentially all the kids in RAP/band thought something was going on between you and [plaintiff],” he responded “Yeah, that’s not surprising” because of “how you were acting.” Id., 79. He stated “yeah,” when asked “[w]ould there be times where either you’d be playing with her hair or she’d be playing with your hair.” Id., 73. He responded, “yes” when asked “though you were trying to be discreet, you would flirt with [plaintiff] on campus.” During a game inside the gym, “we were ticking each other.” Id., 75. He stated that “one time” he let her wear his high school letterman jacket. Id., 76. Students also testified that they observed “friendly physical interaction,” or “flirtatious behavior” such as tickling and playing with hair, between Farr and plaintiff.

Plaintiff does not provide sufficient evidence to raise a triable issue of material fact that defendant’s employees knew or reasonably should have known that Farr presented a threat of sexually abusing plaintiff. There is insufficient evidence to raise a triable issue of fact that Farr required a higher level of supervision.

5th cause of action for mandatory duty

Under this cause of action, plaintiff alleges that LESD and its employees were at all times “mandated reporters” pursuant to Penal Code §11166, et seq. As mandated reporters of suspected child abuse, defendant was legally obligated to personally report reasonably suspected incidents of child abuse to the police and/or child protective services within a very short period of time. FAC, ¶53. Defendant, acting through its employees, had or should have had a reasonable suspicion that Farr was engaged in sexual misconduct, yet failed to report the suspected abuse to the proper authorities. Id., ¶54. Defendant’s employees violated the Child Abuse and Neglect Reporting Act. They were acting within the course and scope of their employment when they violated the reporting requirements and therefore LESD is vicariously liable for that negligence. Id., ¶55.

Penal Code §11166 states: “A mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” “’Reasonable suspicion’ means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. . . .”

As defendant argues above, there is no evidence that defendant had knowledge of or observed a child whom defendant’s employees knew or reasonably suspected had been the victim of child abuse.

The court finds that defendant has met its burden.

In opposition, plaintiff argues that there are triable issues as to whether LESD’s employees should have formed a reasonable suspicion of child abuse and reported such suspicions.

As stated above, plaintiff does not present sufficient evidence to raise a triable issue of material fact. The undisputed evidence indicates that defendant did not have knowledge that plaintiff was being sexually abused or reasonably suspected that she was being sexually abused.

7th cause of action for negligent supervision of a minor

Plaintiff alleges that LESD was responsible for the care, custody, control, supervision, and protection of the minor students entrusted to them, like plaintiff. Thus, defendant had a duty to adequately and properly supervise, monitor, and protect plaintiff from known and knowable dangers, like Farr. FAC, ¶65. LESD breached its duty by ignoring clear and obvious signs that Farr was engaged in repeated inappropriate behavior and a harassing sexual relationship with plaintiff. Id., ¶66. Had defendant adequately and properly supervised, monitored, and protected its students, plaintiff would not have been harmed. Id., ¶67.

“School districts are subject to well-established statutory duties mandating adequate supervision for the protection of the students.” M.W. v. Panama Buena Vista Union School District (2003) 110 Cal. App. 4th 508, 524. “The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances. Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.” C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 869 (citations omitted). The question of what constitutes ordinary care “depends upon the circumstances of each particular case and is to be determined as a fact.” J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal. App. 4th 123, 140. “However, where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted.” Federico, supra, at 1214.

Defendant argues that plaintiff cannot show that Farr engaging in sexual conduct with a minor student was a foreseeable danger because there were no red flags in his background or in his conduct or interactions with students in his eight years with LESD. Defendant contends that there is no evidence that any of the supervision provided to plaintiff was less than reasonable. Defendant presents evidence that, with the exception of kisses, that no one witnessed on campus, every incident of sexual conduct occurred off campus, outside of school hours, and in Farr’s vehicle. Defendant had no duty or liability to supervise plaintiff at the times the alleged sexual acts occurred. See evidence under the 4th cause of action.

As stated above, plaintiff does not present sufficient evidence to raise a triable issue of material fact that she was not properly supervised.

The motion for summary judgment is therefore GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.