Pending - Other Pending
Personal Injury - Other Personal Injury
LAWNDALE ELEMENTARY SCHOOL DISTRICT
DOES 1 THROUGH 60
TYSON & MENDES LLP
BERMAN EMILY SACKS
RING DAVID M. ESQ.
GILBERT BRENDAN PAUL ESQ.
2/23/2018: PROOF OF SERVICE SUMMONS
2/28/2018: PROOF OF SERVICE SUMMONS
2/28/2018: AFFIDAVIT OF DUE DILIGENCE
4/2/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF 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
4/2/2018: DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S DEMURRER TO PLAINTIFF'S COMPLAINT
4/2/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT
4/2/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF 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
4/23/2018: FIRST AMENDED COMPLAINT
5/4/2018: Minute Order
5/4/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT
5/29/2018: Proof of Service
5/29/2018: DECLARATION OF EMILY S. BERMAN IN SUPPORT OF DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICTIS DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
5/29/2018: Proof of Service
5/29/2018: DEFENDANT LAWNDALE ELEMENTARY SCHOOL DISTRICT'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO 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
Docketat 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
DocketPlaintiff's Notice of Deposit of Jury Fees; Filed by JANE DOE (Legacy Party)[+] Read More [-] Read Less
Docketat 08:30 AM in Department B, Deirdre Hill, Presiding; Case Management Conference - Held[+] Read More [-] Read Less
DocketMinute Order ( (Case Management Conference)); Filed by Clerk[+] Read More [-] Read Less
Docketat 10:00 AM in Department B, Deirdre Hill, Presiding; Informal Discovery Conference (IDC) - Held[+] Read More [-] Read Less
DocketMinute Order ( (Informal Discovery Conference (IDC))); Filed by Clerk[+] Read More [-] Read Less
DocketCase Management Statement; Filed by JANE DOE (Legacy Party)[+] Read More [-] Read Less
DocketCase Management Statement; Filed by LAWNDALE ELEMENTARY SCHOOL DISTRICT (Defendant)[+] Read More [-] Read Less
Docketat 11:00 AM in Department B, Deirdre Hill, Presiding; Informal Discovery Conference (IDC) - Not Held - Rescheduled by Party[+] Read More [-] Read Less
DocketAnswer; Filed by LAWNDALE ELEMENTARY SCHOOL DISTRICT (Defendant)[+] Read More [-] Read Less
DocketApplication ; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketApplication ; Filed by S.A. (Legacy Party); JANE DOE (Legacy Party)[+] Read More [-] Read Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL[+] Read More [-] Read Less
DocketNotice; Filed by Court[+] Read More [-] Read Less
DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM[+] Read More [-] Read Less
DocketComplaint[+] Read More [-] Read Less
DocketCOMPLAINT FOR PERSONAL INJURIES AND DAMAGES ARISING FROM CHILDHOOD SEXUAL ABUSE[+] Read More [-] Read Less
DocketSummons; Filed by null[+] Read More [-] Read Less
DocketComplaint; Filed by null[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by S.A. (Legacy Party); JANE DOE (Legacy Party)[+] Read More [-] Read Less
Case Number: ****6649 Hearing Date: September 2, 2022 Dept: 8
For 9/2/22 Hearings. Tentative: Deny MSJ; deny motion for sanctions, and sicuss whether the current trial date needs to be postponed. Deny most of District objections to Dr. Fraisse’s declaration.
The Court lists below the evidence which tentatively raises a triable issue of fact as to whether the District should have known there was a developing inappropriate relationship between Farr and the Plaintiff but the District failed to take steps to investigate or otherwise respond to behaviors observed by Ms. Doe’s fellow students on school grounds or during school-related after-school programs. The parties should be prepared to argue whether a reasonable jury could draw an inference of the District’s constructive knowledge of “grooming” behavior from the other students’ testimony combined with Farr’s and Plaintiff’s testimony, plus Dr. Fraisse’s opinion testimony as to the standard of care.
DISCUSSION Of TENTATIVE RULING:
1. The District’s Moving and Reply Papers Mistakenly Suggest the Issue of Breach Is Limited to What the District Actually Knew Rather than What It Should Have Known.
In the Second District’s published opinion in this case, Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, Justice Segal segregated the CANRA claim from the two negligence claims, applying different standards of duty to the different causes of action. Justice Segal’s decision determined that the evidence submitted by Plaintiff was not sufficient to overcome the standard of objective evidence of suspicion of wrongdoing required by the CANRA duty of care. However, the appellate decision does not say that the Plaintiff’s evidence submitted in opposition to the 1st MSJ was sufficient or was insufficient to overcome the announced constructive notice (knew or should have known) standard applicable to the negligence causes of action.1 Actual knowledge of
facts to raise a reasonable suspicion of abuse -- for purposes of the CANRA cause of action -- is not identical to the constructive notice standard for the negligence causes of action. The District’s moving and reply papers largely treat these distinct standards as though they are identical, but they are not.
There is nothing in the Second District’s opinion that relieves the District of responsibility for what a reasonable jury could determine it should have known. Breach follows from duty; the duty is predicated on either what the District knew or should have known, so breach of that duty flows from the scope of the duty to act on what should have been known, not just what was known.
Exemplary of the District’s conflating the CANRA ruling in the Court of Appeal with its sought ruling from this Court on the negligence causes of action is the discussion of the Federico case relied upon in the District’s Reply brief, and Section IV of the Reply brief which continues to argue an actual notice standard for evaluating breach of the duty owed in a special relationship case like the one at bar. Federico is distinguishable from the case at bar because there, the Court of Appeal stated that the evidence established that the school’s operators not only lacked actual knowledge, but also had no reason to know of the perpetrator’s propensity for sexual misconduct with minors. (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1211-13.) Further, as the Second District decision expressly notes, Federico “did not involve a duty to prevent abuse arising from a special relationship; thus, the case has little if any applicability here.” (Doe v. Lawndale, supra, 72 Cal.App.5th at 130 FN 6.) Yet the District continues to rely on it in support of its 2nd MSJ. That reliance is misplaced.
Over a dozen years after Federico was decided, the California Supreme Court decided C.A. vs. William S. Hart Union High School (Hart). Reliance on Hart is more properly attuned than Federico. Hart held, among other things, that “[s]chool principals and other supervisory employees, to the extent their duties include overseeing the educational environment and the performance of teachers and counselors, also have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such
abuse.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871 (emphases added).) That includes the foreseeable injury to a minor student resulting from a teacher’s or other school employee’s sexual assault. (Id. at p. 870.) That includes teachers or after-school program leaders with no prior misconduct history, but who by their conduct a reasonable District should have discovered were priming a minor in their charge for abuse. The Second District in this case made no great logical leap in applying Hart to the facts raised by the parties in the 1st MSJ, to potential District liability for shortfalls or oversights by District peersonnel responsible for Farr’s supervision and for Jane Doe’s protection. The District has properly conceded here that, based on Hart (53 Cal.4th at p. 869) and other precedents, it had a special relationship with Ms. Doe.
2. The Objections to Dr. Fraisse’s Declaration
Here, depending on whether the Court sustains the objections to Dr. Fraisse’s declaration, there could be a triable issues as to the standard of care, whether the District had reason to know that Farr was grooming2 Ms. Doe for sexual predation, and whether the District failed to take steps such as launching an investigation at some unknown point in the illicit relationship.
The Second District did not assess whether the expert declaration of Dr. Fraisse created a triable issue. It also did not address the correctness of Judge Hill’s granting the “boilerplate objections to essentially all of Dr. Fraisse’s opinions,” “including that his opinions ‘lack[ed] foundation,’ were i[i]nadmissible speculation, conclusions and opinions,’ ‘misstate[d] [the] evidence presented,’ ‘assumed facts not in evidence,’ were ‘vague and ambiguous,’ and were ‘irrelevant.’” (Doe v. Lawndale, supra, 72 Cal.App.5th at p. 122.) It appears that those same objections are being re-asserted in the reply to this 2nd MSJ. Counsel are encouraged to consider the manner in which objections to evidence are presented in the future, as the “shotgun” method, without identifying which facts are assumed or even which sentence in an objected-to paragraph are the facts being challenged by the objection, makes it much more difficult for the Court to rule.
As observed by the Second District, the objections are “boilerplate.” The District’s relevancy objection to every one of Dr. Fraisse’s opinions is a questionable practice. That objection is denied as to each one of the 11 quoted provisions of Dr. Fraisse’s declaration except as discussed below. The District’s series of bare objections, that a paragraph of opinions or multiple sentences from his declaration “misstates evidence” or “assumes facts not in evidence,” is not a model of clarity. Which fact or facts in a paragraph from Dr. Fraisse’s declaration are assumed? Which facts as to each of the 11 quoted paragraphs or other provisions are not in the collection of evidence in plaintiff’s voluminous excerpts for witness depositions? Without further detail, the objections on those two grounds are denied as lacking needed specificity.
As to Objection #1 to the entirety of paragraph 10 of the Fraisse Declaration, the Court sustains in part the objection that the witness is presenting improper conclusions of law, and as to those facts or sentences in paragraph 10 the foundation objectison are sustained. Even in a legal malpractice case and expert cannot opine on the law, or on the Legislature’s rationale for the law, or what the legal duty is or may be. Further, it is not clear that the standard to be applied in a negligence case where the CANRA claim has been summarily adjudicated is the CANRA standard of care. However, training employees on the CANRA standards can be part of a District’s duty and if Dr. Fraisse will opine that the District did not so train its teachers and other employees, there may be some marginal relevancy even in a case tried only on negligence claims.
Objections #2 and #3: objections are mostly overruled. Sustain the inadmissible opinion objection as to Dr. Fraisse’s assessment of student credibility; that is an issue for the jury. The broad opinion that every student deponent’s testimony was open and obvious will need to pared down at trial because some of that testimony was to feelings or beliefs or generalized rumor. The opinion in #3 as to “an appearance of impropriety” without tying that to the relevant standard of care is not relevant.
Objection #4: all overruled.
Objection #5: objection sustained. While Dr. Fraisse will be able to rely on student testimony to support his opinion, the parties with the Court’s assistance
will need to develop a method of allowing him to reference specific testimony without mis-characterizing it.
Objection #6: overruled.
Objection #7: overruled; see #1.
Objection #8 and #9 and #10: overruled.
Objection #11: overruled.
3. The Testimony Raised by the Opposition to the MSJ Bearing on Constructive Notice of Facts That Might Require the District To Have Acted Before Farr Was Arrested.
The Second District opinion devotes an entire paragraph to a discussion of deposition testimony from several students, classmates of Jane Doe’s. The Court invites oral argument from both sides as to whether the District “should have known” or whether an inference can be made by a jury that the District had constructive notice of things that Doe’s fellow students observed but the District’s managers and employees claim to have not. A spill of water on the supermarket floor might not be actually known to the market’s employees before a shopper slips and falls, but the market is deemed to have constructive notice of the spill depending on how and where the spill occurred or for how long it sat un-noticed on the floor. Here, is the District on constructive notice of things that occurred “a lot” or “frequently” or “all the time” on school premises, or only what was in plain view in the band room, lunchroom, at a sanctioned after-school program for students in the junior high band, or on a sanctioned off-site field trip supervised by District employees other than Farr?
The testimony from Doe’s classmates, Farr himself, and Doe in support of the Opposition notes that Farr would hug Ms. Doe when other people were around, but Farr would hug others too. (Doe depo. 65:1-19.) Farr sat next to Doe “all the time, and multiple people would be around.” (Id. 66:18-23.) She thought “Ms. Fetterhoff would see us hug.” (id. 69:20-23.) She wore a ring that Farr gave her. (Id. 79:6-16.) Whether this is “ambiguous” behaviro or whether, taken with
other evidence, it should not have been deemed ambiguous, are tentatively questions for the jury.
Mr. Farr testified that he asked permission from Ms. Fetterhoff which she granted to come to the band room (which was left open during lunchtime) to assist kids that needed help. (Farr Depo 52:17-53:1.) He conceded to crossing the line of a physical relationship with Ms. Doe on a summer field trip attended by program leaders but does not remember if there were chaperones (id. 66:13-67:8.) In response to a question as to whether “it was obvious to others around that something was going on” between him and Ms. Doe, Farr answered “people were always . . . saying like, “you and [Ms. Doe] are going out like as a joke, you know.” (Id. 71:6-14.) It was other students who teased Farr about his relationship with Ms. Doe “because of how [they] acted towards each other in front of others.” (Id. 77:24-78:7.) When he attended Ms. Fetterhoff’s class, Farr would always sit next to Ms. Doe. (Id. 72:6-10.) During RAP after school, Farr and Doe “would essentially always be together.” (Id. 72:16-19.) He would play with her hair or she would play with his on campus at Jane Addams school. (Id. 73:10-15.) Hugs and playing with hair and flirting were “a fairly common occurrence between [Farr and Ms. Doe] on campus at Jane Addams.” (Id. 73:22-74:7; 75:20-76:2.) He let her wear his letterman jacket on campus at Addams and she wore it there when Farr was around. (Id. 76:14-77:6.)
Dennis Perry testified that as a member of the Addams school staff, he has attended mandatory training for signs to look for including sexual abuse; that training changed after the 2016-2017 school year to include a new course called Ethics and Boundaries concerning appropriate relationships between adults and students including not being alone with students. (Perry Depo. 21:3-22:5.) This could create a triable issue as to whether the earlier training was within the standard of care.
Student CG testified to seeing Farr and Jane Doe in the band room during lunchtime, “interacting,” “hanging out” less than 10 times. (CG depo. 19:19-20:18.) When Farr came into the band class, he would just observe in the back of the class, not sitting next to students. (Id. 22:19-23:13.) Farr would lend Ms. Doe his sweater, which CG thought was a bit odd. (Id. 27:5-17.) She also observed “play fighting” between Farr and Ms. Doe such as pushing and tickling “pretty
frequently” that at the time she did not then understand as inappropriate (Id. 28: 2-25.) Also “pretty frequent” was seeing Farr and Ms. Doe tickling and playing with each other’s hair. (Id. 29:22-30:6.) Such friendly interactions also occurred in the band room during lunchtime, and per CG Ms. Fetterhoff had a view of the bandroom from her office within the band room. (Id. 30:24-31:6.) During the RAP afterschool program, Farr and Ms. Doe were always together, in close proximity. (Id. 31:19-25.) CG observed Farr and Ms. Doe hug and she would rest her head on his shoulder. (Id. 34:8-17.) She also saw the two of them together at a water park being flirtatious and splashing each other with water. (Id. 36:20-37:8.) CG’s drum line friends openly discussed a joke or teasing that Farr and Ms. Doe were boyfriend and girlfriend. (Id. 41:1-10.) By Thanksgiving, others in the RAP band besides the drum line were talking about how Farr and Ms. Doe were interacting. (Id. 44:1-12.) Others discussed how Farr and Ms. Doe sat next to each other in Ms. Fetterhoff’s band class. (Id. 46:18-47:3.)
Ms. Villareal testified that she knew and told her subordinate staff that hugging a student could be inappropriate grooming behavior by an adult towards a student. (Villareal 60-61.)
Student EP testified that In Ms. Fetterhoff’s band class, if Farr was not helping out with the class or musical instruments, he would typically be sitting next to Ms. Doe. (EP Depo 22:15-20.) It happened a lot, perhaps as many as 28 times, that EP would walk into a room to see Farr and Ms. Doe alone there and she had the feeling that she was intruding on a couple. (Id. 27:2-14.) EP also observed Ms. Doe attempt to sit on Farr’s lap and he would push her off, during 7th period band class, snack period, and during summer RAP. (Id. 28:1-25.) Her impression was that this was like a boyfriend/girlfriend fight sort of thing. (Id. 29:1-4.) EP discussed with other students how awkward the others felt when walking in on Farr and Ms. Doe, or they reported seeing Far tickling her or talking very close together. (Id. 30:22-31:16.) She saw them hug, and Farr would hug Ms. Doe differently than he would hug other students. (Id. 32:23-33:8.) Hugging, tickling, and talking closely happened “all the time.” (Id. 33:24-34:4.) It was rumored that the two were dating, making out, having sex. (Id. 34:12-25.) She saw the two of them playing with each other’s hair “a lot” and she saw tickling between Farr and Ms. Doe “a lot” including in Ms. Fetterhoff’s band class. (Id. 40:4-6, 45:4-17.) She saw and heard the two of them discuss her wearing his grey
zip up jacket. (Id. 46:11-22.) She saw Farr give Ms. Doe a piggy back ride at the lazy river on a water park trip, where Ms. Diana, Mr. Luis and Ms. Maria were there. (Id. 56:12-57:10.)
Student AF observed Farr and Ms. Doe sit next to each other during 7th period band class “all the time.” (AF Depo. 38:2-6.) People in the band RAP program would joke or tease Ms. Doe about her relationship with Farr. (Id. 54:23-55:6, 62:13-21.) Student CM observed Farr tickling Ms. Doe in the band room. (CM Depo. 44:12-45:2.) He heard others gossiping or rumoring that Farr and Ms. Doe were having a very close relationship. (Id. 69:18-70:10.) Student CIG wore Farr’s jacket during 7th period band class and during the RAP program. (CIG Depo. 23:13-18.) Student RG observed Ms. Doe to put her head on Farr’s shoulder “a lot.” (RG Depo. 30:5-11.)
Collectively, this compendium of deposition excerpts tentitively create a triable issue of fact as to what a reasonably observant District would also have seen, and whether these were signs that Farr and Ms. Doe had treaded into the danger zone of sexualizing, grooming, or priming for sexual abuse. A reasonable jury could well decide that some of this testimony is not credible, or that if credible the information the District should have known would not have enabled the District to have commenced a timely investigation before the abuse had already occurred. But in the Court’s tentative view, there is a sufficient quantum of cross-corroborated testimony to overcome the undisputed-material-facts standard on MSJ.
The Second District did note (id. at p. 137) the deposition testimony of the District’s principal and Farr’s RAP supervisor bearing on measures the District had taken to detect and prevent abuse. The sufficiency of those measures appears to this Court to raise triable issues of fact for a jury to decide whether that training fairly or reasonably protected minor students from “grooming” or “sexualizing” conduct by teachers or administrators who lacked actual knowledge of touching, kissing, hugging, or of arguably ambiguous behavior. Dr. Fraisse has opinions that the District’s measures or training did not comply with the standard of care. Dr. Fraisse’s opinions may not be believed, or may be overcome by more persuasive testimony of District employees. But exactly what is the standard of care and whether the District met the standard are tentatively for the jury to decide.
4. The Motion for Sanctions
On the motion for sanctions, the MSJ #2 was not frivolous in the Court’s view even though it is tentatively to be denied. As this Court noted in its tentative ruling on the motion for sanctions, the determination of duty is not the end of the analysis on a tort case MSJ.
The last paragraph of Section B of the Doe vs. Lawndale decision by the Second District states that the question of whether the District took reasonable measures -- to prevent sexual abuse of students and to supervise Farr and Doe -- is a “case-specific question of breach.” (Doe v. Lawndale, supra, 72 Cal.App.5th at p. 137-38.) The Second District then added the following sentence: “And it is a question for the jury, not the court on summary judgment.” (Id. at p. 138.) In the overall context of the Second District opinion, that concluding sentence does not preclude, as a matter of law, a decision on breach at the MSJ level if there were no material facts in dispute. It is case-specific as to whether the Court can decide a breach question as a matter of law on MSJ.
While the remaining tort question of breach and causation are usually questions of fact for the jury, there are occasions where there is no dispute as to the material facts and the Court can decide the issue of breach as a matter of law. Public agencies secure summary judgment rulings on breach issues in other types of cases subject to a constructive notice standard, e.g., premises liability cases where the uplift of a sidewalk is less than the threshold for a dangerous condition of public property. In addition, a non-frivolous reason to bring a summary judgment motion shortly before trial is to “smoke out” the evidence an adversary intends to present, including expert witness opinions and the grounds on which they rely.
Case Number: ****6649 Hearing Date: August 24, 2022 Dept: 008
Tentative Ruling on Motion for Sanctions: DENY without prejudice to being further considered after full briefing (and oral argument) is completed on the pending 2nd MSJ.
This motion for sanctions is premature before the briefing is completed on the District’s 2nd MSJ. The published decision of the 2nd Appellate District, Doe vs Lawndale Elementary School District (2021) 72 CA5th 113, specifically notes that Judge Hill’s ruling on the 1st MSJ failed to conduct the second level of duty analysis1 for a claimed exception to the general rule of no-duty-to-protect against perils created by others. Thus, in the 1st MSJ, the District wrongly sought to rest its motion on an “actual notice” standard rather than a broader “knew or should have known” standard for the two negligence causes of action. Because the Rowland analysis was not presented in the 1st MSJ, the Court of Appeal did not determine that were triable of issues of fact under the proper constructive notice standard. Instead, the Court of Appeal ruled on the question of law presented as to the nature of the duty owed by the District in this rapidly developing area of the law. The law is developing so rapidly that one of the cases distinguished by the Doe v. Lawndale decision (Doe v. DCFS) was decided in 2019. And another was decided in 2012 (Santillon). But this Court can and will make the determination of the existence of triable issues, on the 2nd MSJ. The Court of Appeal decision noted, quoting Brown v. USA Taekwondo, that breach as well as factual and legal causation are “usually” questions for the jury. (Doe v. Lawndale, 72 CA5th at 127, quoting Brown, 11 Cal.5th at p. 228.) Further, the appellate decision stated that whether the District did enough to prevent Farr’s sexual abuse or took reasonable preventative measures raises “a question of breach usually for the jury.” (quoting Brown, supra, at pp. 230-31, emphasis added.)
The Court disagrees with Plaintiff’s characterization of the Doe v. Lawndale decision FN 7 as having purportedly ruled that there were triable issues of fact regarding the District’s breach of the standard of care. Footnote 7 states in full as follows: “To the extent the trial court ruled there was no breach as a matter of law because the District adequately supervised Farr and Doe, the ruling appears to have been based on the same mistaken conclusion that the District did not have a duty to protect Doe from sexual abuse unless it had actual knowledge of prior sexual misconduct by Farr.” (Doe v. Lawndale, supra, 72 Cal.App.5th at p. 138 fn. 7.) The language shows that the Court of Appeal never reached or considered whether there were or were not triable issues of fact on the negligence causes of action. Instead, the appellate court ruled that Judge Hill applied an incomplete analysis of the duty issue sans Rowlands, not that the appellate court reviewed the supporting evidence and found triable issues bearing on a standard that was not applied at the trial court level. See id. fn. 2, where the appellate court notes that the only time the District used the word “breach” in its 1st MSJ was in connection with the cause of action for breach of the mandatory CANRA duty, a cause of action on which the granting of summary judgment was affirmed. The 1st motion never used the word “causation” or “damages.” (Id.)
On the other hand, the Court of Appeal decision in Doe at pp. 137-38 states that the questions of whether the measures the District took were reasonable ones to prevent sexual abuse -- and to
supervise Farr and Doe -- are case-specific questions of breach for the jury, not for the Court on MSJ. Plaintiff relies on this language in support of the motion for sanctions, arguing that the appellate decision precludes the District from seeking summary judgment. In this Court’s view, it is still possible that the District could obtain summary judgment IF, AND ONLY IF, there were no material triable issues of fact bearing on the reasonableness of measures the District took under the standards articulated in the Court of Appeal’s decision. This case might not be the “usual” case referenced in Doe and Brown. Until the Court sees the full briefing of the MSJ by both sides, it cannot and should not pre-judge whether there is such a triable issue. Thus far in the briefing, plaintiff concedes that many of the Undisputed Materials Facts (“UMFs”) referenced in the District’s Separate Statement are in fact undisputed. But Plaintiff also raises disputes as to several other UMFs. The Court’s obligation is to await receipt of the reply papers and oral argument before ruling on the 2nd MSJ. Until that time, the Court believes it cannot determine whether the MSJ was or was not frivolous, “baseless,” or violated the dictates of the appellate decision that is law of the case.
Case Number: ****6649 Hearing Date: January 22, 2020 Dept: SWB
***UPDATED 1/22/20**Superior Court of
Torrance Dept. B
JANE DOE, a minor by and through her guardian ad litem S.A.,
LAWNDALE ELEMENTARY SCHOOL DISTRICT, et al.,
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.
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.
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.
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).
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.
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.
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