This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 03:29:22 (UTC).

MARLENE GARCIA ET AL VS ROBERT J OWIECKI ET AL

Case Summary

On 10/11/2017 MARLENE GARCIA filed a Personal Injury - Other Personal Injury lawsuit against ROBERT J OWIECKI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9114

  • Filing Date:

    10/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

GARCIA MARLENE

Defendants

WHITTIER CITY SCHOOL DISTRICT

OWIECKI ROBERT J.

Attorney/Law Firm Details

Plaintiff Attorney

LI TERESA

Defendant Attorneys

RIBEIRO DAVID D. ESQ.

WADLINGTON MARLON C.

 

Court Documents

FIRST AMENDED COMPLAINT FOR DAMAGES

3/28/2018: FIRST AMENDED COMPLAINT FOR DAMAGES

DEFENDANT WHITTER CITY SCHOOL DISTRICTS ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT

5/1/2018: DEFENDANT WHITTER CITY SCHOOL DISTRICTS ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Notice of Change of Address or Other Contact Information

12/12/2018: Notice of Change of Address or Other Contact Information

Motion to Compel

1/15/2019: Motion to Compel

Declaration

1/15/2019: Declaration

Memorandum of Points & Authorities

1/15/2019: Memorandum of Points & Authorities

Opposition

2/8/2019: Opposition

Minute Order

2/20/2019: Minute Order

Declaration

3/1/2019: Declaration

Declaration

3/1/2019: Declaration

Ex Parte Application

3/1/2019: Ex Parte Application

Declaration

3/1/2019: Declaration

Memorandum of Points & Authorities

3/1/2019: Memorandum of Points & Authorities

Ex Parte Application

3/4/2019: Ex Parte Application

Application

3/4/2019: Application

Stipulation and Order

3/4/2019: Stipulation and Order

Ex Parte Application

3/4/2019: Ex Parte Application

Minute Order

3/4/2019: Minute Order

19 More Documents Available

 

Docket Entries

  • 05/02/2019
  • DocketSeparate Statement; Filed by Whittier City School District (Defendant)

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  • 05/02/2019
  • DocketMotion to Seal (Motion to Seal Exhibit "G" to District's Motion for Summary Adjudication and Proposed Order); Filed by Whittier City School District (Defendant)

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  • 05/02/2019
  • DocketDeclaration (Compendium of Evidence and Declarations); Filed by Whittier City School District (Defendant)

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  • 05/02/2019
  • DocketMotion for Summary Adjudication; Filed by Whittier City School District (Defendant)

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  • 05/02/2019
  • DocketNotice of Lodging (Notice of Lodging Exhibit "G" Under Seal); Filed by Whittier City School District (Defendant)

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  • 04/11/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 04/08/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion to Compel (Motion to Compel the Deposition of Plaintiff J.J.) - Not Held - Taken Off Calendar by Party

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  • 03/27/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 03/19/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application ( to Shortening Time to Hear the Motion for Protective Order) - Held

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  • 03/19/2019
  • DocketMinute Order ( (Hearing on Ex Parte Application to Shortening Time to Hear t...)); Filed by Clerk

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28 More Docket Entries
  • 12/12/2017
  • DocketProof-Service/Summons; Filed by Marlene Garcia (Plaintiff); J. J. (Plaintiff)

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  • 11/09/2017
  • DocketSummons Issued; Filed by Marlene Garcia (Plaintiff); J. J. (Plaintiff)

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  • 11/09/2017
  • DocketSummons Issued; Filed by Clerk

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  • 11/09/2017
  • DocketSummons; Filed by Clerk

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  • 11/09/2017
  • DocketSUMMONS

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  • 10/11/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 10/11/2017
  • DocketComplaint; Filed by Marlene Garcia (Plaintiff)

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  • 10/11/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 10/11/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 10/11/2017
  • DocketCOMPLAINT FOR DAMAGES

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Tentative Rulings

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Case Number: ****9114 Hearing Date: October 14, 2021 Dept: C

GARCIA v. OWIECKI

CASE NO.: ****9114

HEARING: 10/14/21

ADD-ON 2

TENTATIVE ORDER

Defendant ROBERT J. OWIECKI’s Motion for Summary Judgment is DENIED. Defendant OWIECKI’s alternative Motion for Summary Adjudication is DENIED in part and GRANTED in part.

Opposing Party to give Notice.

Plaintiffs’ Requests for Judicial Notice are GRANTED as to the existence of the documents. Cal. Ev. Code ;452.

This personal injury action was filed by MARLENE GARCIA, and J.J., a minor, by and through his guardian ad litem, MARLENE GARCIA on October 11, 2017 (“Plaintiff”). On March 28, 2018, the operative First Amended Complaint (“FAC”) was filed. The relevant facts, as alleged, are as follows: “J.J. has been diagnosed with Down Syndrome and has been eligible for special education at WHITTIER CITY SCHOOL DISTRICT since July 2007. J.J. has intellectual disability that requires increased staff to student ratio with intensive and direct supervision and instruction in the classroom and during specially planned participation in general education classes, as well as an alternate curriculum not taught in the general education program.” (FAC ¶11.) “In December 2015, Plaintiff J.J. was transferred to Katherine Edwards Middle School and Defendant OWIECKI became J.J.’s adapted physical education teacher. Since then, Defendant OWIECKI has subjected J.J to ongoing verbal, psychological, and physical abuse. He often intentionally triggered J.J. in order to having him to act out.” (FAC ¶14.) “On December 8, 2016 around noon, Plaintiff J.J. refused to attend Defendant OWIECKI’s physical education class. At the time, Mora Beatriz, an aide employed by Defendant WHITTIER CITY SCHOOL DISTRICT, was looking after J.J. Defendant OWIECKI asked Beatriz to leave so that he could be alone with Plaintiff J.J. After Beatriz left, Defendant OWIECKI started abusing J.J. In response, J.J. ran out the room and Defendant OWIECKI chased after him. Defendant OWIECKI then started physically abusing J.J. in the hallway by pushing J.J to the ground, stepping on J.J.’s face, and repeatedly twisting his foot on J.J.’s eye back and forth. J.J. screamed out for help.” (FAC ¶17.) “In addition to physically, verbally, and emotionally abusing J.J., J.J. was denied free appropriate public education (‘FAPE’).” (FAC ¶27.)

Plaintiff’s FAC asserts the following causes of action: (1) Violation of Constitutional Rights; (2) Discrimination in Violation of the Americans with Disability Act; (3) Violation of ;504 of the Rehabilitation Act of 1973; (4) Violation of California Civil Code ;52.1; (5) Battery; (6) Intentional Infliction of Emotional Distress; (7) Negligence; (8) Negligent Supervision; (9) Violation of Mandatory Duty; (10) Violation of the Unruh Civil Rights Act; and (11) Violation of Education Code ;220.

Defendant ROBERT J. OWIECKI (“Defendant”) moves for summary judgment, or alternatively, summary adjudication of the first, fourth, fifth, sixth, seventh, eighth, ninth, and tenth causes of action. Defendant also argues that he is entitled to summary judgment on all causes of action asserted against him because Plaintiff J.J. is incompetent to testify.

The Court will address the issues in the order that they appear in Defendant’s Moving Brief.

Competence

Defendant argues that Plaintiff J.J. lacks competency to testify, and therefore, because there is no Plaintiff who can testify, “there can be no action.” (Motion 17:3.) Specifically, Defendant argues that J.J. is incompetent to testify on two grounds: (1) J.J. is incapable of understanding the duty to testify truthfully; and (2) J.J is incapable of expressing himself in a manner so as to be understood.

In Opposition, Plaintiffs argue that J.J. is competent to discuss the subject alleged abuse.

Every person is presumed qualified to be a witness, until a court determines that a witness is not qualified. (Cal. Ev. Code ;;700, 701.) A witness’s competency to testify is “determined exclusively by the judge.” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1150.) Defendant’s Counsel’s unilateral determination that Plaintiff J.J. is incompetent to testify is improper and insufficient to establish lack of competency.

Whether the FAC Admits that there was no Battery

Defendant argues that summary judgment should be granted because “[t]he alleged battery is the lynchpin to all causes of action and to the entire case…. [¶] The FAC admits that there was no battery….” (Motion 18:1-6.)

This argument lacks merit. “On a motion for summary judgment, the issues are framed by the pleadings since it is those allegations to which the motion must respond.” (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 639.) Here, the FAC alleges that, “[o]n December 8, 2016…. Defendant OWIECKI…started physically abusing J.J. in the hallway by pushing J.J. to the ground, stepping on J.J.’s face, and repeatedly twisting his foot on J.J.’s eye back and forth. J.J. screamed out for help.” (FAC ¶17.) Consequently, the FAC does not admit that there was no battery.

Fifth Cause of Action – Battery

Defendant argues that he is entitled to summary adjudication of the fifth cause of action for battery because: (1) Plaintiff GARCIA consented to the reasonable “touching” of J.J. in the educational setting as he was a special needs child; and (2) because a teacher stands in loco parentis to his or her students, the teacher has the right to maintain order and safety.

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (Yun Hee So v. Sook Ja Shin (2013) 121 Cal.App.4th 652, 669.)

The motion for summary adjudication of the fifth cause of action is DENIED.

First, Plaintiffs have raised a triable issue of material fact as to whether Defendant’s “touching” of J.J. exceeded the scope of Plaintiff Garcia’s consent. Plaintiffs have proffered evidence to show that Defendant engaged in inappropriate physical behavior towards students. (See e.g., PUMF Nos. 164, 165, and 167.)

Second, Defendant’s reliance on the case Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860 (“Austin B.”) to support his argument that it was “entirely proper for OWIECKI to touch JJ and bring him back into the class after he ran out the door” is misplaced. (Motion 20:3.) Austin B. holds that “[b]ecause this state recognizes that, both under the common law and by statute, in a school setting a teacher stands in loco parentis to his or her students, the teacher may maintain that degree over a student that is ‘reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.’ [Cite.] This is particularly true where… the students are autistic children who admittedly need, and in some circumstances desire, touching to calm, guide and control them. If the reasonableness of the touching were eliminated as an element of battery in such circumstances, that could lead to a form of strict liability for battery as to special education teachers who engage in therapeutic touching of students.” (emphasis added.) (Austin B. at 874-875.) The Court finds that, at least for purposes of summary adjudication, the facts of this case are distinguishable from Austin B. because Plaintiffs have proffered evidence to show that Defendant utilized unreasonable force to discipline J.J./maintain order in the classroom. (See e.g., PUMF Nos. 6-12.)

First Cause of Action – Violation of Constitutional Rights

Defendant argues that he is entitled to summary adjudication of the first cause of action for the following reasons: (1) J.J. has no admissible evidence to support the first cause of action; (2) J.J. does not possess, and cannot reasonably obtain evidence to prove the first cause of action; (3) the alleged violation of constitutional rights is not authorized under 42 U.S.C ;1983 because Defendant is not a “person” as defined thereby; (4) Defendant is entitled to 11th Amendment immunity with respect to the first cause of action; and (4) Defendant’s actions were privileged pursuant to both statutory and common law.

In Opposition, Plaintiffs argue that Defendant has failed to meet his burden of proving that he was a state actor with immunity under the 11th Amendment, and that Plaintiffs have raised a triable issue as to whether Defendant’s actions were based upon J.J.’s disability.

Unlike local government entities, states are not subject to liability under 42 U.S.C. ;1983. Instead, state and state actors are immune from liability under ;1983 by virtue of the 11th Amendment of the United States Constitution and the doctrine of sovereign immunity: “the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under ;1983 om either federal court or state court.” (Howlett v. Rose (1990) 496 U.S. 356, 365.) “Neither states nor state officials acting in their official capacities are ‘person[s]’ within the meaning on section 1983 when sued for damages.” (Pitts v. County of Kern (1998) 17 Cal.4th 340, 348.)

Here, it is undisputed that Defendant Owiecki was “an Adapted Physical Education teacher at WHITTIER SCHOOL DISTRICT.” (DUMF No. 1; FAC ¶4.) It is unclear how Defendant Owiecki’s position as a P.E. teacher for the local school district qualifies him as a “state actor”. Therefore, Defendant fails to meet his burden to prove that he is immune from liability under ;1983, and the motion for summary adjudication is not granted on this basis.

“The Equal Protection Clause of the Fourteenth Amendment states: “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” (Navarro v. Block (9th Cir. 1995) 72 F.3d 712, 716.) “Nevertheless, a long line of Supreme Court cases make clear that the Equal Protection Clause requires proof of discriminatory intent or motive.” (Id.)

The motion for summary adjudication of the first cause of action is GRANTED. The Court finds that Plaintiffs have failed to raise a triable issue of material fact on the issue of whether Defendant’s purported actions were motivated by J.J.’s disability.

Coverdell Teacher Protection Act

Defendant argues that he is immune under the Coverdell Teacher Protection Act.

In Opposition, Plaintiffs argue that Defendants actions against J.J. constitute exceptions to the Coverdell Teachers Protection Act.

“Except as provided in subdivision (b), no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if—(1) the teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity; (2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations” in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school… (4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher….” (20 USCA ;7946(a).)

Plaintiffs have proffered evidence to show that Defendant acted within the course and scope of his employment with Defendant Whittier School District when he purportedly intentionally battered J.J., and that Defendant’s actions were willful. The Court cannot find that Defendant is immune pursuant to Coverdell Teacher Protection Act for purposes of summary adjudication.

Fourth Cause of Action – Violation of Cal. Civ. Code ;52.1

Defendant argues that he is entitled to summary adjudication of the fourth cause of action because Plaintiffs do not allege/evidence an independent threat, intimidation, or coercion under Bane.

In Opposition, Plaintiffs argue that the “threat, intimidation or coercion element of the claim [need not] be transactionally independent from the constitutional violation alleged.” (Reese v. City of Sacramento (9th Cir. 2018) 888 F.3d 1030, 1043.) Plaintiffs maintain that Defendant’s purported physical abuse of J.J. amounts to an actual deprivation of J.J.’s equal access to education.

The elements of a cause of action for violations of the Bane Civil Rights Act are: (1) Defendant’s actual, or attempted, threats, intimidation, or coercion; (2) interference with plaintiff’s exercise or enjoyment of a constitutional or statutory right; (3) by threatening, or committing violent acts; (4) plaintiff reasonably believed that defendant would commit violence against plaintiff or plaintiff’s property if plaintiff exercised a constitutional or statutory right; (5) defendant injured plaintiff or plaintiff’s property to prevent plaintiff from exercising a constitutional or statutory right, or to retaliate against plaintiff’s exercise of such rights; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing that harm. (Austin B. v. Escondido School Dist. (2007) 149 Cal.App.4th 860, 882.) “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) “The act of interference with a constitutional right must itself be deliberate or spiteful.” (Shoyoye v. City of L.A. (2012) 203 Cal.App.4th 947, 959.)

The Austin B. Court found that “[w]hile there was sufficient evidence to send the issue to the jury as to whether he committed a battery on plaintiffs, there is no evidence of acts that could be construed as threats, violence or intimidation that actually caused a loss of their right to an education or that attempted to do so.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) Moreover, while “the Bane Act does not require the threat, intimidation or coercion element of the claim to be transactionally independent from the constitutional violation alleged,” the Bane Act does still require “a specific intent” to violate a plaintiff’s rights. (Reese v. City of Sacramento (9th Cir. 2018) 888 F.3d 1030, 1043.)

Here, Plaintiffs proffer no evidence that the purported batter(ies) could be construed as threats, intimidation, or coercion, and Plaintiffs cite no legal authority for the proposition that an act of alleged battery can, in and of itself—absent any evidence of specific intent to violate a plaintiff’s rights—constitute an attempt to “interfere by threats, intimidation, or coercion, with the exercise or enjoyment by an individual” with equal access to an education.

The motion for summary adjudication of the fourth cause of action is GRANTED.

Sixth Cause of Action – Intentional Infliction of Emotional Distress

“A cause of action IIED requires proof of (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

As to Plaintiff J.J., Defendant argues that he is immune from liability, and that summary adjudication is proper because J.J. is incompetent to testify. For the reasons articulated above, the Motion is DENIED as to Plaintiff J.J.

The motion for summary adjudication of the sixth cause of action is GRANTED as to Plaintiff Garcia. In Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, a mother brought an action against a defendant school district for negligent and intentional infliction of emotional distress. The defendant school district demurred against the parent of a student who was sexually assaulted and raped at school. The Court of Appeal ordered that the plaintiff’s claims for negligent and intentional infliction of emotional distress be reinstated because a special relationship existed between the school district and the parents, and accordingly, the district had a duty to notify the parent upon learning of the first series of sexual assaults of the student. (Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, 1196.) Importantly, in Phyllis P., “there was warning of propensity on the part of the 13-year-old student who committed the rape. Before the rape giving rise to this litigation, he had ‘sexually molested’ the eight-year-old victim ‘a number of times’ both on the way to school and on school premises…. [¶] Second…there was clear knowledge of the danger on the part of the school, including its management. The victim reported the fact that she was being molested by the 13-year old to her teacher…. [¶] Third,… there was a conscious decision to preempt the parents from learning of the possibility of danger once it was known.” (Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 914-915.) The facts of Phyllis P. are not analogous to Garcia in this instance. Defendant Owiecki does not have the same duty to notify as a defendant school district. To be clear, Defendant Owiecki is alleged to be J.J.’s abuser. Therefore, it is unclear what the basis for any claim of IIED by Garcia against the Defendant would be here. It is undisputed that Garcia was not present at the time the December 8, 2016 Subject Incident occurred—Garcia did not witness the purported injuries incurred by J.J. Therefore, Garcia does not qualify as a “bystander”.

Seventh and Eighth Causes of Action – Negligence and Negligent Supervision

“Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.) “Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.) “[T]he special relationship between public school personnel and students imposes on the District’s administrative and supervisory employees a duty of reasonable care to protect a student from foreseeable dangers, including those from other school employees.”. (Id. at 869) “[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (Id. at 704-705.)

The motion for summary adjudication of the seventh and eighth causes of action is DENIED as to Plaintiff J.J. Plaintiffs have sufficiently raised triable issues of material fact as to whether the Defendant breached the duty of care owed to the student—J.J. Specifically, Plaintiffs have proffered evidence to show that Defendant failed to protect J.J. from foreseeable injuries because Defendant failed to implement the IEP, and intentionally physically harmed J.J. (See e.g., PUMF Nos. 3-15.)

The motion for summary adjudication of the seventh and eighth causes of action is GRANTED as to Plaintiff Garcia. It is unclear what duty Defendant Owiecki, as a teacher (not the school district) would owe to Garcia (the parent of a student). As indicated above, Defendant Owiecki, as the purported torfeasor, does not have the same duty to notify that a school district has.

Ninth Cause of Action – Violation of Mandatory Duty

Defendant argues that it is entitled to summary adjudication of this claim because Defendant is not a mandated reporter under Penal Code ;11165.7(a). Summary adjudication is DENIED. Teachers are expressly listed as mandatory reporters under Cal. Penal Code ;1165.7(a)(1).) The Court notes that this issue was not addressed and litigated in previous rulings and is not barred by res judicata.

Tenth Cause of Action – Unruh Civil Rights Act

Defendant argues that this cause of action is barred by res judicata. However, Defendant fails to identify a previous order indicating that this issue was previously adjudicated. The motion for summary adjudication of the tenth cause of action is DENIED.

Plaintiffs’ Evidentiary Objections:

Defendant’s Separate Statement:

Plaintiffs’ Objections to Defendant’s Separate Statement are OVERRULED. Objections to the Separate Statement are misplaced because the Statement itself is not evidence, nor is the Counsel’s characterization of the underlying evidence cited therein.

Declaration of Dr. Roger Light:

No. 1. Overruled

No. 2. Sustained

No. 3. Sustained

No. 4. Sustained

No. 5. Sustained

No. 6. Sustained

No. 7. Sustained

No. 8. Sustained

Declaration of Robert J. Owiecki:

No. 1. Overruled

No. 2. Overruled

No. 3. Overruled

No. 4. Overruled

No. 5. Overruled

Defendant’s Evidentiary Objections to Specific Testimony and Documentary Evidence:

Item 1. Overruled

Item 2. Overruled

Item 3. Overruled

Item 4. Sustained – “Nolo contendere, subject to the approval of the court…. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and the factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” (Cal. Penal Code ;1016.)

Item 5. Overruled

Defendant’s Evidentiary Objections to the Declaration of Diana Everstine, M.A., Ph.D.:

Item. 1. Overruled

Item 2. Overruled

Item 3. Overruled

Item 4. Overruled

Item 5. Overruled

Item 6. Overruled

Item 7. Overruled

Item 8. Overruled

Item 9. Overruled

Item 10. Overruled

Item 11. Overruled

Item 12. Overruled

Item 13. Overruled

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b'

Case Number: ****9114 Hearing Date: September 30, 2021 Dept: C

GARCIA v. OWIECKI

CASE NO.: ****9114

HEARING: 09/30/21

#4

TENTATIVE ORDER

Defendant ROBERT J. OWIECKI’s Motion for Summary Judgment or alternatively, Motion for Summary Adjudication is CONTINUED to Thursday, October 14, 2021 at 1:30 p.m. in Dept. SE-C.

Moving Party to give Notice.

Plaintiffs’ Response to Defendant OWIECKI’s Separate Statement is 5,519 pages long. In Reply, Defendant OWIECKI requests that this Court order Plaintiffs to “restructure the Separate Statement to comply with the Rules of Court…. Asking the Court (and defense counsel) to sort through that, along with the additional reams of improper documents and arguments filed with the Opposition, simply should not occur. Plaintiffs should focus the Separate Statement, something they do not do.” (Reply 2:11-14.) The Court agrees. Plaintiffs’ Separate Statement includes numerous irrelevant background facts, legal citations, factual arguments, and arguments directed against a different defendant (Defendant Whittier City School District), which violates CRC Rule 3.1350(d)(2).

“The burdens imposed upon the trial court will be eased considerably if the court insists, as it should, on strict compliance with the required separate statement, cause the court’s ability to focus on and articulate the evidentiary basis for its ruling will be found in the separate statement. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.) “That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties.” (Ibid.) “The purpose of the law of summary judgment 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. To that end, the rules dictating the content and format for separate statements submitted by moving and responding parties permit trial courts to expeditiously review complex motions for summary judgment to determine quickly and effectively whether material facts are disputed.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72.) “The goal is defeated where, as here, the trial court is forced to wade through stacks of documents… in an effort to cull through the arguments and determine what evidence is admitted and what remains at issue.” (Ibid.) Further, it is extremely time consuming and unduly burdensome on the Court as well as Defendant OWIECKI.

Consequently, due to the difficulties imposed by Plaintiffs/Opposing Party, forcing the Court to “wade through stacks of documents” in an effort to properly rule on this Motion, and in consideration of Defendant OWIECKI’s request that this Court order Plaintiffs to restructure their Separate Statement, the Court, in its discretion, CONTINUES the Motion as indicated above to allow Plaintiffs to file a procedurally compliant Separate Statement. The Court will also permit Defendant OWIECKI the opportunity to file a new Reply. “[T]he proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement rather than entering judgment…. An order based upon a curable procedural defect which effectively results in a judgment against a party, is an abuse of discretion.” (Parkview Villas Ass’n, Inc. v. State Farm Fire and Cas. Co. (2005) 133 Cal.App.4th 1197, 1214-1216.)

Plaintiffs’ Amended Separate Statement must be filed and served by no later than October 4, 2021. Defendant OWIECKI’s Supplemental Reply must be filed and served by no later than October 8, 2021. Importantly, the parties are not given leave to file any new evidence. New evidence filed without leave of Court, will not be considered.

The Court notes that Plaintiffs’ Separate Statement references a prior criminal action commenced against Defendant OWIECKI. The Court declines to rule on the admissibility of any references to the prior criminal action at this time. The Court will determine the admissibility of any references to/documents pertaining to the prior criminal action when it rules on the parties’ evidentiary objections.

The FSC is currently scheduled for October 8, 2021, and Trial is currently set for October 22, 2021. Given the Court’s ruling on the Motion herein, continuances of the FSC and Trial may be necessary.

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Case Number: ****9114    Hearing Date: May 19, 2021    Dept: SEF

GARCIA v. OWIECKI, et al.

CASE NO.:  ****9114

HEARING 5/19/21 @ 8:30 AM

[Remote appearances are encouraged and will be given priority.]

#1

TENTATIVE ORDER

Defendant Owiecki’s motion to continue trial is DENIED.

Moving Party to give NOTICE.

Defendant Owiecki moves to continue trial pursuant to CRC ; 3.1332. Defendant requests that the trial date be continued so that his MSJ (currently reserved for 12/23/21) may be heard.

A motion to continue trial is a disfavored motion. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332(a).)

"A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c… Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion." (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.)

Trial in this matter is set for 10/22/21. Defendant’s motion for summary judgment was “reserved” for 12/23/21, but it has not yet been “filed.” Therefore, Sentry Ins. Co. is inapplicable.

Further, Defendant already had an opportunity to seek summary adjudication by filing a joinder to the School District’s summary adjudication motion. Moreover, this case is over four years old, and Defendant had ample opportunity to file an MSJ prior to trial.

Accordingly, the motion is DENIED.

After Defendant timely files his MSJ, he may make an ex parte request to advance the hearing date of the MSJ to a date before trial.



Case Number: ****9114    Hearing Date: April 13, 2021    Dept: C

GARCIA v. OWIECKI, et al.

CASE NO.:  ****9114

HEARING 4/13/21 @ 2:30 PM

#8

TENTATIVE ORDER

Defendant Whittier City School District’s motion for judgment on the pleadings is GRANTED without leave to amend.

Moving Party to give NOTICE.

Defendant Whittier City School District (“District”) moves for judgment on the pleadings on the 10th cause of action for Violation of the Unruh Civil Rights Act.

Plaintiff, a special education minor, alleges that Defendants Owiecki and the District subjected Plaintiff to verbal, psychological, and physical abuse. The Complaint asserts causes of action for:

1. Violation of 42 USC ; 1983

2. ADA Discrimination

3. Violation of ; 504 of the Rehabilitation Act

4. Violation of CC ; 52.1

5. Battery

6. IIED

7. Negligence

8. Negligent Supervision

9. Violation of Mandatory Duty

10. Violation of CC ; 51

11. Violation of Educ. Code ; 220

Timeliness

Plaintiff contends the motion is untimely. However, “[a] motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) The court finds the motion is timely.

Merits

On 11/13/20, the California Court of Appeal held that public school districts are not subject to CC ; 51 because public school districts are not business establishments under the Unruh Act. (Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367.) Additionally, Brennon B. explicitly rejected the argument that CC ; 51(f) stands for the proposition that “any violation of the ADA by any person or entity is also a violation of the [Unruh] Act.” (Id. at 398.) To the contrary, it determined that CC 51(f) “makes explicit that any violation of the ADA by a business establishment is also a violation of the Unruh Act.” A school district is not a business establishment, and therefore, a school district’s violation of the ADA does not permit application of the Unruh Act.

Defendant filed its motion on 1/13/21, and at that time, Brennon B. was controlling precedent.

On 2/24/21, the California Supreme Court granted review, which altered Brennon B.’s precedential effect, allowing for citation “for potentially persuasive value only.” (CRC ; 8.1115(e)(1).)

The court finds Brennon B. is persuasive authority on this issue.

Plaintiff contends that Brennon B. is against the “great weight of authority,” however, Plaintiff does not cite a single California case holding that public schools are subject to the Unruh Act. Plaintiff relies primarily on federal authority, which is non-binding on this court. Mackey v. Bd of Trs. Of Cal. State Univ. (2019) 31 Cal.App.5th 640, on which Plaintiff also relies, did not address application of the Unruh Act to public schools, and therefore did not engage in a comprehensive analysis of this issue. By contrast, the Brennon B. Court thoroughly explained the legislative history and analyzed in depth the pertinent state and federal authorities on this issue.

Further, the Court of Appeals has determined that the Unruh Act does not apply to public entities when they are not performing a “function equivalent of a commercial enterprise.” (Carter v. City of Los Angeles (2014) 224 Cal. App. 4th 808, 825 - City is not subject to Unruh Act for act of maintaining access to public sidewalks – it performs this function “as a public servant, not a commercial enterprise.”; Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 176 - Unruh Act does not apply to a City’s decisions to change age restrictions in municipal code; Qualified Patients Ass'n v. City of Anaheim (2010) 187 Cal.App.4th 734, 764–765 - State prison is not a business establishment unless the offending behavior has “business like attributes.”)

Based on the foregoing authorities, this court finds that public school districts do not perform functions that are equivalent to a commercial enterprise, and therefore, the District is exempt from the Unruh Act.

Until the Supreme Court decides this issue, this court is persuaded by the reasoning in Brennon B. as well as the foregoing appellate authorities. Accordingly, the motion is GRANTED without leave to amend.

If the Supreme Court resolves this issue prior to trial in this action, Plaintiff may seek reconsideration based on a change in law.



Case Number: ****9114    Hearing Date: January 14, 2021    Dept: C

GARCIA v. OWIECKI

CASE NO.: ****9114

HEARING: 01/14/21

#2

TENTATIVE ORDER

On January 11, 2021, Plaintiffs filed a Supplemental Brief in support of their Opposition to the Motion for Summary Adjudication, directing the Court’s attention to the newly published appellate decision issued on December 31, 2020 in the case D.D. v. Los Angeles Unified School District. (See Supp. Brief, Ex. A.) On January 12, 2021, Defendant/Moving Party filed its Opposition to Plaintiffs’ Supplemental Brief.

Given the fact that both parties filed supplemental briefs on the eve of the hearing date, this Court has not yet had the opportunity to review either the D.D. v. Los Angeles Unified School District case, or the parties’ arguments with respect to such.

Therefore, there will be no Tentative Order issued on this matter. The Court will hear oral argument, and then issue its ruling on the merits.



Case Number: ****9114    Hearing Date: July 21, 2020    Dept: SEC

CALENDAR #7GARCIA v. OWIECKI, et al.

CASE NO.: ****9114

HEARING: 7/21/20

[Remote appearances are encouraged and will be given priority.]

CALENDAR MATTER #7

TENTATIVE ORDER

Defendant Whittier City School District’s motion to seal Exhibit “G” submitted in support of the District’s motion for summary adjudication is DENIED.

Plaintiffs to give NOTICE.

Defendant Whittier City School District (“District”) moves for an order sealing Exhibit “G” submitted in support of its motion for summary adjudication pursuant to CRC ; 2.551.

Plaintiff, a special education minor, complains that Defendants Owiecki and the District subjected Plaintiff to verbal, psychological, and physical abuse. The Complaint asserts causes of action for:

1. Violation of 42 USC ; 1983

2. ADA Discrimination

3. Violation of ; 504 of the Rehabilitation Act

4. Violation of CC ; 52.1

5. Battery

6. IIED

7. Negligence

8. Negligent Supervision

9. Violation of Mandatory Duty

10. Violation of CC ; 51

11. Violation of Educ. Code ; 220

Unless confidentiality is required by law, court records are presumed to be open to the public. (CRC ; 2.550(c).) Therefore, pleadings, motions, discovery documents, and other papers may not be filed under seal merely by stipulation of the parties. A prior court order must be obtained. (CRC ; 2.551(a); see H.B. Fuller Co. v. Doe (2007) 151 CA4th 879, 888.) At a minimum, a party seeking to seal documents must come forward with a specific list of facts sought to be

withheld and specific reasons for withholding them. (H.B. Fuller Co. v. Doe, supra, 151 CA4th at 894.) In determining whether to seal records, courts must weigh constitutional requirements for disclosure against such factors as privacy rights. (Winterthur Swiss Ins. Co. (2003) 112 CA4th 97, 104; People v. Jackson (2005) 128 CA4th 1009, 1026–1027.)

To grant such an order, the court must expressly find that: 1) an overriding interest exists that overcomes the right of public access to the record; 2) the overriding interest supports sealing the records; 3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) the proposed sealing is narrowly tailored; and 5) no less restrictive means exist to achieve the overriding interest. (CRC ; 2.550(d).)

Overriding interests include: the right to a fair trial (NBC Subsidiary (KNBC–TV), Inc. v. Sup.Ct. (Locke) (1999) 20 C4th 1178); protection of minor victims of sex crimes from further trauma and embarrassment (Globe, 457 US 596, 607); protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify (Rovinsky, 722 F.2d 197, 200); and protection of trade secrets, protection of information within the attorney-client privilege, and enforcement of binding contractual obligations not to disclose (Publicker, 733 F.2d 1059, 1073).

Defendant moves to seal Exhibit “G” submitted in support of its motion for summary adjudication. The court has reviewed “Exhibit G” and finds that it is not a matter subject to seal. The personnel record concerns a party Defendant who is accused of physical abuse. The party Defendant is not a minor.

The burden on Defendant is high. “Court records are presumed to be open,” to protect the public’s constitutional right of access. (CRC ; 2.550(c).)

Only in limited circumstances have the court sealed certain records. This is not the case. Defendant has not expressed any overriding interest, and failed to cite a single case that sealed personnel records of a party Defendant. The authorities cited by Defendant in reply concerns the “confidentiality” of certain personnel records during the course of discovery. The issues upon discovery and the issues and policy considerations that this court must balance upon a motion to seal are completely different.

The motion is DENIED.



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