This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:41:32 (UTC).

SOCORRO COBARRUVIAS VS LOS ANGELES COUNTY SCHOOL DISTRICT ET

Case Summary

On 06/23/2017 SOCORRO COBARRUVIAS filed a Personal Injury - Other Personal Injury lawsuit against LOS ANGELES COUNTY SCHOOL DISTRICT ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG, MARC D. GROSS and JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6357

  • Filing Date:

    06/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

MARC D. GROSS

JON R. TAKASUGI

 

Party Details

Petitioner and Plaintiff

COBARRRUVIAS SOCORRO

Defendants and Respondents

LOS ANGELES COUNTY SCHOOL DISTRICT

GANG FREE ORG

STEP UP

DOES 1 TO 25

ORG GANG FREE

CALIFORNIA CHARTER SCHOOLS JPA

UP STEP

GANG FREE.ORG STEP UP

Not Classified By Court

HARBOR AREA GANG ALTERNATIVE PROGRAM ERRONEOULY SUED HEREIN AS "GANG FREE.ORG STEP UP"

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

BALDWIN-KENNEDY RONDA

BALDWIN-KENNEDY RONDA NADINE ESQ.

Defendant Attorney

BEACH THOMAS E.

Not Classified By Court Attorney

HOTTINGER DARRYL

 

Court Documents

Minute Order

6/25/2019: Minute Order

Notice

7/8/2019: Notice

Minute Order

7/12/2019: Minute Order

Notice of Ruling

7/15/2019: Notice of Ruling

Answer

7/22/2019: Answer

SUMMONS

2/16/2018: SUMMONS

Minute Order

12/10/2018: Minute Order

Amended Complaint

4/9/2019: Amended Complaint

Proof of Personal Service

5/8/2019: Proof of Personal Service

Request for Dismissal

5/22/2019: Request for Dismissal

Motion to Strike (not anti-SLAPP) - without Demurrer

6/6/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Minute Order

12/27/2017: Minute Order

EXPLANATION PER GUARDIANSHIP AD LITEM

9/27/2017: EXPLANATION PER GUARDIANSHIP AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

9/27/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

Minute Order

11/2/2017: Minute Order

PLAINTIFF'S OPPOSITION TO THE COURT'S ORDER TO SHOW CAUSE FOR SANCTIONS

10/24/2017: PLAINTIFF'S OPPOSITION TO THE COURT'S ORDER TO SHOW CAUSE FOR SANCTIONS

CASE MANAGEMENT STATEMENT

10/24/2017: CASE MANAGEMENT STATEMENT

ORDER ON COURT FEE WAIVER

6/23/2017: ORDER ON COURT FEE WAIVER

10 More Documents Available

 

Docket Entries

  • 04/09/2020
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 03/25/2020
  • Hearingat 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/22/2019
  • DocketAnswer; Filed by Harbor Area Gang Alternatives Program erroneously sued herein as Gang Free.Org Step Up Erroneously Sued As Gang Free.Org Step Up (Defendant)

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  • 07/15/2019
  • DocketNotice of Ruling; Filed by Harbor Area Gang Alternatives Program erroneously sued herein as Gang Free.Org Step Up Erroneously Sued As Gang Free.Org Step Up (Defendant)

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  • 07/12/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: (Why This Action Should Not Be Dismissed for Delaying and Prosecuting the Action Pursuant to Code of Civil Procedure Section 583.410) - Held

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  • 07/12/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Trial Setting Conference - Held

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  • 07/12/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: (Why Plaintiffs and/or Plaintiffs' Counsel Should Not Be Sanctioned for Failure to Comply with California Rules of Court Section 3.110(b),) - Held

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  • 07/12/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - Held

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  • 07/12/2019
  • DocketMinute Order ( (Hearing on Motion to Strike (not anti-SLAPP) - without Demurr...)); Filed by Clerk

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  • 07/08/2019
  • DocketNotice (DEFENDANT HARBOR AREA GANG ALTERNATIVES PROGRAM NOTICE OF NON-OPPOSITION TO DEFENDANT MOTION TO STRIKE PORTIONS OF PLAINTIFF FIRST AMENDED COMPLAINT); Filed by Harbor Area Gang Alternatives Program erroneously sued herein as Gang Free.Org Step Up Erroneously Sued As Gang Free.Org Step Up (Defendant)

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26 More Docket Entries
  • 09/27/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 09/27/2017
  • DocketMiscellaneous-Other; Filed by Plaintiff/Petitioner

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  • 07/26/2017
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 07/19/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 07/19/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 06/29/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/29/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE

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  • 06/23/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 06/23/2017
  • DocketComplaint; Filed by Socorro Cobarrruvias (Plaintiff)

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  • 06/23/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: ****6357    Hearing Date: January 08, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTOPHER COBARRUBIAS,

Plaintiff(s),

vs.

LOS ANGELES COUNTY SCHOOL DISTRICT, ET AL.,

Defendant(s).

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CASE NO: ****6357

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

January 8, 2021

 

  1. Background

    Plaintiff, Christopher Cobarrubias (“Plaintiff”), a minor, through his Guardian Ad Litem (“GAL”), Socorro Cobarruvias, alleged in his first amended complaint that in or about September 2015, he was sexually assaulted at Los Angeles Unified School District’s (“LAUSD”) 232nd Place Elementary School while attending defendant Harbor Area Gang Alternative Program’s (“Defendant” or “HAGAP”) after-school program.

    Plaintiff alleges he was sexually assaulted by two boys in the LAUSD bathroom, and that the after-school program supervisor, “Sherrie,” who HAGAP identifies as Cherie Ellis (“Ellis”), was notified about the incident but did not contact authorities and kept the information to herself. Plaintiff alleges that Sherrie had a duty to protect Plaintiff from this type of assault, was negligent, and as a result Plaintiff was injured.

    Defendant HAGAP now moves for summary judgment.

  2. 7/28/20 and 9/25/20 Hearings

HAGAP filed this motion on 4/21/20, and this matter was originally heard on 7/28/20, where the court continued the motion to allow Plaintiff’s counsel to file an affidavit pursuant to CCP ; 437c(h). (Min. Order 7/28/20.) Plaintiff filed the affidavit on 8/17/20 asserting the motion for summary judgment should be continued because Plaintiff had not been able to depose HAGAP’s person most knowledgeable (“PMK”). The court agreed Plaintiff should be permitted to depose HAGAP’s PMK and continued the motion to 1/8/21. Plaintiff was ordered to file an opposition no later than 16 court days before the continued hearing date, and HAGAP was ordered to file any reply five court days before the hearing. (Min. Order 9/25/20.)

Plaintiff filed an untimely opposition on 12/22/20, and HAGAP timely filed a reply on 12/31/20. The court notes Plaintiff filed a Response to Defendant’s Reply on 1/5/21. However, CCP ; 437c does not provide for such a supplemental response, nor did Plaintiff seek leave to file the supplemental response. Therefore, the court will not consider Plaintiff’s response to HAGAP’s reply.

  1. Motion for Summary Judgment

  1. Moving Argument

HAGAP asserts that there was no duty to prevent the alleged assault because HAGAP had no notice or knowledge rendering it foreseeable to HAGAP that a third-party was likely to commit a sexual assault on a person under HAGAP’s supervision. HAGAP argues that there is no evidence that the program supervisor was told that Plaintiff was sexually assaulted, and that HAGAP did not learn of the alleged assault until March 2016. Further, HAGAP contends that it had no notice that Plaintiff’s alleged assailant, Noah, had a propensity to commit sexual assault, that neither Plaintiff nor Noah were HAGAP attendees at the time of the alleged sexual assault in August or September 2015, and that there had been no known prior sexual assaults at HAGAP. Moreover, HAGAP contends that nothing it or its employees did caused Plaintiff’s alleged harm, and that Plaintiff’s discovery responses do not support his negligence claim.

  1. Opposing Argument

Plaintiff argues the program supervisor, Ellis, was notified about the incident by a third party, and that Ellis ordered all three boys involved in the incident, including Plaintiff, out of the bathroom and had them seated on a bench to await being picked up. Plaintiff argues Ellis did not take the necessary steps of contacting the authorities or Plaintiff’s GAL, and that Ellis kept the information to herself and did nothing regarding the incident and failed to protect Plaintiff. Plaintiff asserts Ellis’s and all HAGAP’s employees’ omission contributed to Plaintiff’s harm. Moreover, Plaintiff argues HAGAP, as an afterschool program, had a duty to supervise children at all times and to report any child abuse. Plaintiff contends HAGAP had a special relationship with Plaintiff and the perpetrators because Plaintiff was enrolled at the school and on school property. In addition, Plaintiff avers that while it is not necessary to prove his harm was foreseeable, HAGAP stated the bathrooms are always monitored by staff when Kindergarteners and younger children are utilizing them, and thus, HAGAP had concerns that Kindergarteners and younger children could be at risk of harm. Plaintiff contends Plaintiff was clearly harmed, and HAGAP is not entitled to summary judgment.

  1. Reply Argument

HAGAP argues that a foreseeability versus burden test is required, and that HAGAP has submitted substantial evidence showing that it did not have a duty to engage in more burdensome security measures based on the information known to it when Plaintiff attended its afterschool program. HAGAP asserts all cases cited by Plaintiff that discuss foreseeability refer to evidence demonstrating the defendant had some knowledge of an assailant’s propensity to commit harmful acts or prior harmful acts on the premises that provided notice to the defendant.

  1. Request for Judicial Notice

HAGAP requests that the court take judicial notice of the Los Angeles Unified School District Claim for Damages filed by Plaintiff, through his GAL, signed 3/16/16. (Mot. Notice of Lodgment of Exhibits, Exh. I.) The unopposed request is granted. Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 n. 1 [“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”].)

  1. Evidentiary Objections

The court notes Plaintiff’s separate statement of facts submitted with his opposition contains purported objections to certain facts asserted by HAGAP. However, objections to a separate statement are improper; objections must directed at evidence, not facts. (Cal. Rules of Code, rule 3.1354(b).) Therefore, the court declines to rule on any objections contained solely in Plaintiff’s separate statement

HAGAP, in its reply, asserts 14 objections to Plaintiff’s opposition. Objection 1 is overruled, as the subject deposition transcript is the deposition transcript is accompanied by a certification by the court reporter pursuant to CCP ; 2025.540(a) and thus is authenticated. Objections 5-6 and 10 are sustained, as the statements asserted are improper legal conclusions.

The court declines to rule on Defendant’s objections 2-4, 7-9 and 11-14 as these objections are not material to the disposition of the motion. (CCP ; 437c(q).)

  1. Burdens on Summary Judgment

The Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  1. Moving Burden

“When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law.” Ericson v. Fed. Exp. Corp. (2008) 162 Cal.App.4th 1291, 1300. “If a court concludes that the injury was not foreseeable, then there is no duty.” N.N.V. v. Am. Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1376. “Foreseeability as to a duty supporting negligence liability is based on whether an event's nature might generally give rise to a foreseeable injury ....” Formet v. Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 602.) What is required to be foreseeable is the general character of the event or harm, not its precise nature or manner of occurrence. Nicole M. v. Sears, Roebuck & Co. (1999) 76 Cal.App.4th 1238, 1245 (quotations and citation omitted). The court does not apply a rigid test for measuring the degree of foreseeability necessary to impose a duty of care. Rather, the degree of foreseeability necessary to warrant the finding of a duty will vary from case to case. Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 66.

Here, HAGAP asserts that it had no knowledge that Plaintiff’s alleged assailant had a propensity to commit sexual assault, and that there is no evidence of any prior sexual assaults of any HAGAP attendees. (UMF 13-14.) HAGAP asserts that the alleged assault lasted five seconds, and that neither Plaintiff nor anyone else disclosed the assault to HAGAP on the day it occurred. (UMF 24, 26-27.) What is more, HAGAP asserts that its evidence shows that neither Plaintiff nor his alleged assailant were attendees in HAGAP’s program in August, September or October 2015, and thus, had no duty to protect non-attendees. (UMF 3, 7-8.) HAGAP contends, however, that while Plaintiff and his alleged assailant were attendees in its program- earlier in 2015- HAGAP maintained an approximate ratio of 1 to 20 staff to attendee ratio, and the program supervisor’s practice was to make multiple rounds of the premises daily, observe and talk with attendees, and to supervise staff. (UMF 11-12.) Further, Ellis states that when she saw Plaintiff and the other individuals accused of assaulting Plaintiff playing during the program, there was nothing about their behavior that caused her to suspect there was a propensity for sexual assault. (UMF 13.) HAGAP asserts that no assault was reported to it or Ellis, and that it first learned of the purported assault in March 2016. (UMF 15, 17, 26-29.)

This evidence is sufficient to shift the burden to Plaintiff to raise a triable issue of material fact on his claims against HAGAP.

  1. Shifted Burden

Plaintiff cites to J.H. v. Unified School Dist. (2010) 183 Cal.App.4th 123 (“J.H.”), in arguing that it is not necessary for Plaintiff to prove the injury suffered by Plaintiff was foreseeable by HAGAP, and that HAGAP had a duty to supervise the conduct of children on school ground at all times.

“The law regarding the duty of supervision on school premises is very, very well established. ‘It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect. [Citations]’” (Id. at 139.) “The duty of care imposed on a school district towards its pupils arises from their special relationship.” (Id. at 141.)

In Forgnone v. Salvadore U.E. School Dist. (1940) 41 Cal.App.2d 423, 426, 106 P.2d 932 (Forgnone ), the court observed that “the mere lack of supervision, or inadequate supervision may not necessarily create liability on the part of a school district to compensate for injuries sustained by a pupil. If it appears that a supervisor could not have reasonably anticipated or prevented the conduct of fellow students which resulted in injuries, it might not be material whether they were present at the time of the act complained of, or not. But when the omission to perform a duty, like that of being present to supervise the conduct of pupils during an intermission while they are eating their lunches in a school room, may reasonably be expected to result in rough and dangerous practices of wrestling and scuffling among the students, the wrongful absence of a supervisor may constitute negligence creating a liability on the part of the school district.

(Id. at 143.) Concerning foreseeability, the J.H. Court held: “’It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities in order to establish that their failure to provide additional safeguards constituted negligence. Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of such safeguards.’ … ‘Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries.’” (Id. at 146.)

Consequently, in this case, while Plaintiff does not need to show that the very type of injury he sustained was foreseeable, Plaintiff must show a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence adequate safeguards by HAGAP. “The existence of a duty of care of a school district toward a student depends, in part, on whether the particular harm to the student is reasonably foreseeable.” (M.W. v. Panama Vista Union School Dist. (2003) 110 Cal.App.4th 508, 518.) As HAGAP correctly asserts in reply, “[s]tudents are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se.” (Id. at 519.)

Plaintiff argues the harm to Plaintiff was foreseeable because Plaintiff’s assault took place in a bathroom stall at the subject school, and HAGAP has stated that bathrooms are always monitored by staff when Kindergarteners and younger children are utilizing them. Plaintiff cites to Ellis’s deposition testimony as evidence, which states in relevant part:

Q. And has your company adopted that policy?

A. I don't know at this time.

Q. And what is the policy on the number of students that are allowed in the restroom at one given time? A. It could be anywhere from five.

Q. Is there a policy as to the age of the students that can be in the restroom together at one given time?

A. Yes.

Q. And what is that policy?

A. Kinders are the only ones allowed in the restroom without -- they can't be with the upper grade students.· So there can only be -- if a kinder's in there, the kids that are older have to wait until the kinder is done, and then they're able to use the restroom. And what age that, a kinder?

A. What age is -- I believe kinder might be five, I believe.

Q. Is there is there a restroom monitor who stands by the door and ensures that kinders and younger students are not in the restroom together?

·MS. BROOKES: Objection. Compound.

[A.] THE DEPONENT: There's always a staff with the kinders.

(Opp. Pl.’s Notice of Lodgment of Exhibits, Exh. 1 at p. 77:2-20, 78:4-9.)

In making all reasonable inferences in Plaintiff’s favor, it can be inferred the restroom policy was in place to protect younger students from abuse by older students, which is the same general type of injury Plaintiff suffered. This evidence shows HAGAP had at least concerns with Kindergarteners or young children using the bathrooms with older students. Furthermore, Plaintiff alleges he was only seven years old when he was assaulted by an older student. Consequently, this evidence suggests HAPGAP had knowledge and it was foreseeable an older student would assault a younger student, such as Plaintiff, in a bathroom if left unattended.

HAGAP cites to Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, in arguing Plaintiff fails to show any causation. In Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, an injured student sued the school for improperly readmitting a student who had previously been expelled from school and subsequently attacked the plaintiff. (107 Cal.App.4th at 1357-58.) As to the student plaintiff’s negligence claims, the plaintiff failed to establish that the allegedly negligent supervision caused his injuries. (Id. at 1372-73.) Although “[a] special duty of care may arise where a person makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim,” the danger to the plaintiff arose suddenly during the lunch period in which the plaintiff’s injuries occurred. (Id. at 1369.)

However, the Thompson Court explicitly noted there was no evidence the bathroom area where the incident occurred was the scene of previous fights or was in a dangerous condition. (Id. at 1370.) Unlike in Thompson, and in making all reasonable inferences in Plaintiff’s favor, Plaintiff’s evidence shows HAGAP knew younger students were in danger of being assaulted by older students in the bathrooms. In light of the known danger, HAGAP had a duty to take reasonable steps to protect Plaintiff, as there was a foreseeable danger to Plaintiff. (Id. at 1369-70.)

Based on the foregoing, HAGAP’s motion for summary judgment is denied.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 8th day of January, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6357    Hearing Date: September 25, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTOPHER COBARRUBIAS,

Plaintiff(s),

vs.

LOS ANGELES COUNTY SCHOOL DIST., ET AL.,

Defendant(s).

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CASE NO: ****6357

[TENTATIVE] (1) ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION IN PART AND DENYING MOTION FOR RECONSIDERATION IN PART

(2) ORDER CONTINUING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION FOR SUMMARY JUDGMENT

(3) ORDER CONTINUING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND SPECIAL INTERROGATORIES, SET ONE, MOOT

(4) ORDER CONTINUING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, MOOT

Dept. 31

1:30 p.m.

September 25, 2020

Plaintiff Christopher Cobarrubias (“Christopher”), a minor, through his Guardian Ad Litem (“GAL”), Socorro Cobarrubias (“Socorro”), alleged in his first amended complaint that in or about September 2015, he was sexually assaulted at Los Angeles Unified School District’s (“LAUSD”) 232nd Place Elementary School while attending defendant Harbor Area Gang Alternative Program’s (“Defendant” or “HAGAP”) after-school program.

The instant matters were originally heard on 7/28/20. At the hearing, the court continued these motions for the limited reason of allowing Plaintiff’s counsel to submit an affidavit pursuant to CCP ; 473c(h). (Minute Order 7/28/20.) Plaintiff filed the declaration on 8/17/20, and Defendant Harbor Area Gang Alternatives filed a response. The request for a continuance is addressed below in Section II.

I. PLAINTIFF’S MOTION FOR RECONSIDERATION

  1. 1/13/20 Ruling on Motions to Compel

    Plaintiff seeks reconsideration of the Court’s 1/13/20 Rulings concerning motions to compel discovery directed at Plaintiff.

    The Court was scheduled to hear Defendant’s motions to compel on 1/13/20. Prior to the hearing, the Court issued a tentative ruling. There were no appearances at the hearing, and the Court adopted its tentative ruling. The ruling was as follows:

    Defendant, Harbor Area Gang Alternatives Program propounded form interrogatories, special interrogatories, RPDs and RFAs on Plaintiff on 8/26/19. To date, despite multiple attempts to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

    Notably, on 1/06/20, Defendant filed notices of non-opposition to the motions, but the same day it also filed notices of withdrawal of its notices of non-opposition. Opposition to the motions was due on or before 12/30/19. To date, the Court has not received opposition to the motions; it is not clear why Defendant withdrew the notices. If Plaintiff filed opposition to the motions, the parties must appear and explain the status of the discovery at issue.

    Assuming there is no opposition to the motions, Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP ;;2030.290(a),(b), 2031.300(a),(b). Defendant’s motion to deem RFAs admitted is also granted. CCP ;2033.280(b).

    Sanctions are mandatory. ;;2030.290(c), 2031.300(c), 2033.280(c). Defendant seeks sanctions in varying amounts in connection with each motion. The Court awards one hour to prepare each form discovery motion and three hours to appear at the hearing (Counsel is in Oxnard and seeks 4.2 hours to appear, but the Court finds it unreasonable to require Plaintiff to pay for Defendant’s choice to retain an attorney outside of Los Angeles County); the Court therefore awards a total of six hours of attorney time at the requested rate of $215/hour, or $1290 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

    Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1470, within twenty days.

  2. Motion for Reconsideration

    On 1/31/20, Plaintiff filed this motion for reconsideration, setting it for hearing on 3/17/20. Plaintiff moves for reconsideration of the 1/13/20 order. Plaintiff moves for reconsideration claiming (a) Defendant noticed the motion for 2/13/20, not 1/13/20, and (b) Plaintiff provided responses on 1/09/20.

    The Court has reviewed the previously filed motions. There were three motions on calendar on 1/13/20 directed at Plaintiff (there was a fourth motion on calendar directed at a non-party, but Plaintiff is not seeking reconsideration of the order on that fourth motion). Two of the three bore the date “1/13/19” on the caption, and the third bore the date “2/13/19” on the caption. Because the motions were served in December of 2019, it was obvious that “19” was an inadvertent cut and paste error. Defendant also provides evidence, in opposition to the motion, that the correct hearing date was indicated in both the reservation receipts and an e-mail between Counsel. To date, the Court has not received a reply. The motion for reconsideration on the ground that the motions were not properly noticed is therefore denied.

    More importantly, Plaintiff’s showing that he served responses on 1/09/20, more than four months after Defendant served the subject discovery, would not support a different ruling. Even if Plaintiff had filed timely and substantive opposition to the motions, the Court would have imposed sanctions. Plaintiff’s failure to timely respond necessitated the filing of the motions, which necessitated incurring attorneys’ fees and costs. Thus, there are no new or different facts, laws, or circumstances that support reconsideration, as required by CCP ;1008.

    The Court notes that RFAs were deemed admitted. It is not clear whether Plaintiff seeks an order reconsidering the deemed admissions. The notice of motion indicates Plaintiff seeks reconsideration of the 1/13/20 order but does not indicate which portion or the order Plaintiff seeks to have reconsidered. Plaintiff only substantively discusses the sanctions order in his points and authorities. The Court is concerned about a “deemed admitted” order under the circumstances. CCP ;2033.280 precludes the Court from deeming RFAs admitted if responses are served prior to the hearing. It appears Plaintiff, in good faith, believed the motions were on calendar 2/13/20, not 1/13/20. Plaintiff served responses on 1/09/20. If the Court had been aware of the 1/09/20 responses when it ruled on the motions on 1/13/20, it would not have granted the motion to deem RFAs admitted. Again, Plaintiff’s motion for reconsideration is not express in this regard. However, because Plaintiff seeks reconsideration of the entire 1/13/20 order, the Court is inclined to grant reconsideration of the portion of its ruling deeming the RFAs admitted, and to vacate that portion of its order.

    Plaintiff is ordered to give notice.

    II. DEFENDANT HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION FOR SUMMARY JUDGMENT

  1. Background

    Plaintiff Christopher Cobarrubias (“Christopher”), a minor, through his Guardian Ad Litem (“GAL”), Socorro Cobarruvias (“Socorro”), alleged in his first amended complaint that in or about September 2015, he was sexually assaulted at Los Angeles Unified School District’s (“LAUSD”) 232nd Place Elementary School while attending defendant Harbor Area Gang Alternative Program’s (“Defendant” or “HAGAP”) after-school program.

    Plaintiff alleges he was sexually assaulted by two boys in the LAUSD bathroom, and that the after-school program supervisor, “Sherrie,” who HAGAP identifies as Cherie Ellis (“Ellis”), was notified about the incident but did not contact authorities and kept the information to herself. Plaintiff alleges that Sherrie had a duty to protect Plaintiff from this type of assault, was negligent, and as a result Plaintiff was injured.

    Defendant HAGAP now moves for summary judgment.

  2. Motion for Summary Judgment

  1. Moving Argument

    HAGAP asserts that there was no duty to prevent the alleged assault because HAGAP had no notice or knowledge rendering it foreseeable to HAGAP that a third-party was likely to commit a sexual assault on a person under HAGAP’s supervision. HAGAP argues that there is no evidence that the program supervisor was told that Plaintiff was sexually assaulted, and that HAGAP did not learn of the alleged assault until March 2016. Further, HAGAP contends that it had no notice that Plaintiff’s alleged assailant, Noah, had a propensity to commit sexual assault, that neither Plaintiff nor Noah were HAGAP attendees at the time of the alleged sexual assault in August or September 2015, and that there had been no known prior sexual assaults at HAGAP. Moreover, HAGAP contends that nothing it or its employees did caused Plaintiff’s alleged harm, and that Plaintiff’s discovery responses do not support his negligence claim.

  2. Request for Continuance

    Plaintiff, in opposition, requests the court continue the motion for summary judgment for further discovery to be completed.

    CCP ; 437c(h) provides, “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just…” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].)

    In this case, Plaintiff asserts Defendant HAGAP’s motion for summary judgment should be continued in part because Plaintiff has not been able to depose HAGAP’s PMK. Plaintiff states that on 6/17/20, Plaintiff emailed a Notice of PMK Deposition to Defendant’s attorney of record, Daniel Ryan, who seemingly responded that he was the wrong person to communicate with concerning the deposition. Thereafter, Plaintiff states that Defendant’s attorney, Jose Saldana, objected to the PMK deposition on the basis of the COVID-19 pandemic and not properly serving the deposition notice electronically. However, Plaintiff contends that HAGAP did not propose alternative dates or agree to appear by remote means. Plaintiff further contends HAGAP has not responded to Plaintiff’s discovery requests served on HAGAP. In particular, Plaintiff contends the facts he is disputing include a lack of evidence that Defendant’s bathrooms were safe during the time Plaintiff was sexually assaulted, and any evidence Plaintiff was not actually assaulted.

    In opposition, HAGAP argues Plaintiff’s counsel’s declaration is insufficient to warrant a continuance of its motion for summary judgment. HAGAP argues that Plaintiff fails to describe specific facts to be obtained to oppose the motion, that Plaintiff does not provide any reason to believe such facts exist, and that Plaintiff failed to explain why appropriate discovery tools were not used at an earlier date. HAGAP contends that Plaintiff fails to identify any outstanding discovery that would dispute material facts raised in the motion for summary judgment. Furthermore, HAGAP contends Plaintiff has failed to do anything to gather evidence since the summary judgment motion was served.

    The finds Plaintiff should be permitted to take Defendant’s HAGAP’s PMK’s deposition to oppose HAGAP’s motion for summary judgment. Presumably, HAGAP’s PMK would provide any evidence concerning knowledge of Plaintiff’s purported assault, or any information concerning the safety of the bathrooms were Plaintiff was assaulted.

    Defendant’s motion for summary judgment is CONTINUED to ____{{TBD}}____________, 2020. Plaintiff must file an opposition no later than 16 court days before the hearing. Defendant must file any reply five court days before the continued hearing.

    Moving Defendant is ordered to give notice.

    III. DEFENDANT HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTIONS TO COMPEL FURTHER RESPONSES

    On 2/26/20, Defendant Harbor Area Gang Alternatives Program filed a motion to compel Plaintiff’s further responses to form interrogatories, set one, and special interrogatories, set one, and a motion to compel Plaintiff’s further responses to request for production of documents, set one.

    Defendant’s Motions to Compel Further Responses is premature and will be continued to a new date as set forth below. The parties are ordered to participate in an Informal Discovery Conference (“IDC”) as required by the Court’s Standing Order Re: PI Court Procedures (9/26/19), which is available on the LA Superior Court’s website, under the Personal Injury section.

    The hearing on the MTCF is continued to ____{{TBD))______________ 10:00 a.m. in Department 31 of the Spring Street Courthouse. Moving Party is ordered to use the online reservation management system to schedule an IDC, which must go forward per the terms set forth in the 9/26/19 Standing Order. The Court’s most recent standing general order, at ¶13, makes clear that parties must participate in an IDC before the Court will hear a motion to compel further responses. The IDC must be scheduled at least two weeks prior to the continued hearing date on the MTCF.

    If the above date is not convenient for the parties and/or an IDC cannot be scheduled, for whatever reason, within the necessary time period, Moving Party must use the online reservation system to promptly continue the hearing on the motion to a date at least two weeks after the IDC.

    Moving Defendant is ordered to give notice.

    The parties may not submit on the tentative. Instead, they should arrange to appear remotely.

    Dated this 25th day of September, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6357    Hearing Date: July 28, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTOPHER COBARRUBIAS,

Plaintiff(s),

vs.

LOS ANGELES COUNTY SCHOOL DIST., ET AL.,

Defendant(s).

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CASE NO: ****6357

[TENTATIVE] (1) ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION IN PART AND DENYING MOTION FOR RECONSIDERATION IN PART

(2) ORDER GRANTING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION FOR SUMMARY JUDGMENT

(3) ORDER FINDING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND SPECIAL INTERROGATORIES, SET ONE, MOOT

(4) ORDER FINDING HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, MOOT

Dept. 31

1:30 p.m.

July 28, 2020

I. PLAINTIFF’S MOTION FOR RECONSIDERATION

  1. 1/13/20 Ruling on Motions to Compel

    Plaintiff seeks reconsideration of the Court’s 1/13/20 Rulings concerning motions to compel discovery directed at Plaintiff.

    The Court was scheduled to hear Defendant’s motions to compel on 1/13/20. Prior to the hearing, the Court issued a tentative ruling. There were no appearances at the hearing, and the Court adopted its tentative ruling. The ruling was as follows:

    Defendant, Harbor Area Gang Alternatives Program propounded form interrogatories, special interrogatories, RPDs and RFAs on Plaintiff on 8/26/19. To date, despite multiple attempts to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

    Notably, on 1/06/20, Defendant filed notices of non-opposition to the motions, but the same day it also filed notices of withdrawal of its notices of non-opposition. Opposition to the motions was due on or before 12/30/19. To date, the Court has not received opposition to the motions; it is not clear why Defendant withdrew the notices. If Plaintiff filed opposition to the motions, the parties must appear and explain the status of the discovery at issue.

    Assuming there is no opposition to the motions, Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP ;;2030.290(a),(b), 2031.300(a),(b). Defendant’s motion to deem RFAs admitted is also granted. CCP ;2033.280(b).

    Sanctions are mandatory. ;;2030.290(c), 2031.300(c), 2033.280(c). Defendant seeks sanctions in varying amounts in connection with each motion. The Court awards one hour to prepare each form discovery motion and three hours to appear at the hearing (Counsel is located in Oxnard and seeks 4.2 hours to appear, but the Court finds it unreasonable to require Plaintiff to pay for Defendant’s choice to retain an attorney outside of Los Angeles County); the Court therefore awards a total of six hours of attorney time at the requested rate of $215/hour, or $1290 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

    Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1470, within twenty days.

  2. Motion for Reconsideration

    On 1/31/20, Plaintiff filed this motion for reconsideration, setting it for hearing on 3/17/20. Plaintiff moves for reconsideration of the 1/13/20 order. Plaintiff moves for reconsideration on the ground that (a) Defendant noticed the motion for 2/13/20, not 1/13/20, and (b) Plaintiff provided responses on 1/09/20.

    The Court has reviewed the previously filed motions. There were three motions on calendar on 1/13/20 directed at Plaintiff (there was a fourth motion on calendar directed at a non-party, but Plaintiff is not seeking reconsideration of the order on that fourth motion). Two of the three bore the date “1/13/19” on the caption, and the third bore the date “2/13/19” on the caption. Because the motions were served in December of 2019, it was obvious that “19” was an inadvertent cut and paste error. Defendant also provides evidence, in opposition to the motion, that the correct hearing date was indicated in both the reservation receipts and an e-mail between Counsel. To date, the Court has not received a reply. The motion for reconsideration on the ground that the motions were not properly noticed is therefore denied.

    More importantly, Plaintiff’s showing that he served responses on 1/09/20, more than four months after Defendant served the subject discovery, would not support a different ruling. Even if Plaintiff had filed timely and substantive opposition to the motions, the Court would have imposed sanctions. Plaintiff’s failure to timely respond necessitated the filing of the motions, which necessitated incurring attorneys’ fees and costs. Thus, there are no new or different facts, laws, or circumstances that support reconsideration, as required by CCP ;1008.

    The Court notes that RFAs were deemed admitted. It is not clear whether or not Plaintiff seeks an order reconsidering the deemed admissions. The notice of motion indicates Plaintiff seeks reconsideration of the 1/13/20 order, but does not indicate which portion or the order Plaintiff seeks to have reconsidered. Plaintiff only substantively discusses the sanctions order in his points and authorities. The Court is concerned about a “deemed admitted” order under the circumstances. CCP ;2033.280 precludes the Court from deeming RFAs admitted if responses are served prior to the hearing. It appears Plaintiff, in good faith, believed the motions were on calendar 2/13/20, not 1/13/20. Plaintiff served responses on 1/09/20. If the Court had been aware of the 1/09/20 responses when it ruled on the motions on 1/13/20, it would not have granted the motion to deem RFAs admitted. Again, Plaintiff’s motion for reconsideration is not express in this regard. However, because Plaintiff seeks reconsideration of the entire 1/13/20 order, the Court is inclined to grant reconsideration of the portion of its ruling deeming the RFAs admitted, and to vacate that portion of its order.

    Plaintiff is ordered to give notice.

    II. DEFENDANT HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTION FOR SUMMARY JUDGMENT

  1. Background

    Plaintiff Christopher Cobarrubias (“Christopher”), a minor, through his Guardian Ad Litem (“GAL”), Socorro Cobarruvias (“Socorro”), alleged in his first amended complaint that in or about September 2015, he was sexually assaulted at Los Angeles Unified School District’s (“LAUSD”) 232nd Place Elementary School while attending defendant Harbor Area Gang Alternative Program’s (“Defendant” or “HAGAP”) after-school program.

    Plaintiff alleges he was sexually assaulted by two boys in the LAUSD bathroom, and that the after-school program supervisor, “Sherrie,” who HAGAP identifies as Cherie Ellis (“Ellis”), was notified about the incident but did not contact authorities and kept the information to herself. Plaintiff alleges that Sherrie had a duty to protect Plaintiff from this type of assault, was negligent, and as a result Plaintiff was injured.

    Defendant HAGAP now moves for summary judgment.

  2. Motion for Summary Judgment

  1. Moving Argument

    HAGAP asserts that there was no duty to prevent the alleged assault because HAGAP had no notice or knowledge rendering it foreseeable to HAGAP that a third-party was likely to commit a sexual assault on a person under HAGAP’s supervision. HAGAP argues that there is no evidence that the program supervisor was told that Plaintiff was sexually assaulted, and that HAGAP did not learn of the alleged assault until March 2016. Further, HAGAP contends that it had no notice that Plaintiff’s alleged assailant, Noah, had a propensity to commit sexual assault, that neither Plaintiff nor Noah were HAGAP attendees at the time of the alleged sexual assault in August or September 2015, and that there had been no known prior sexual assaults at HAGAP. Moreover, HAGAP contends that nothing it or its employees did caused Plaintiff’s alleged harm, and that Plaintiff’s discovery responses do not support his negligence claim.

  2. Opposing Argument

    As of 7/23/20, Plaintiff has not filed an opposition to HAGAPS’s motion for summary judgment.

  3. Request for Judicial Notice

    HAGAP requests that the court take judicial notice of the Los Angeles Unified School District Claim for Damages filed by Plaintiff, through his GAL, signed 3/16/16. (Mot. Notice of Lodgment of Exhibits, Exh. I.) The unopposed request is granted. Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 n. 1 (“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”).

  4. Burdens on Summary Judgment

    The Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

    The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

    [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

    Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

    Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

    Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  5. Moving Burden

    “When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law.” Ericson v. Fed. Exp. Corp. (2008) 162 Cal.App.4th 1291, 1300. “If a court concludes that the injury was not foreseeable, then there is no duty.” N.N.V. v. Am. Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1376. “Foreseeability as to a duty supporting negligence liability is based on whether an event's nature might generally give rise to a foreseeable injury ....” Formet v. Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 602.) What is required to be foreseeable is the general character of the event or harm, not its precise nature or manner of occurrence. Nicole M. v. Sears, Roebuck & Co. (1999) 76 Cal.App.4th 1238, 1245 (quotations and citation omitted). The court does not apply a rigid test for measuring the degree of foreseeability necessary to impose a duty of care. Rather, the degree of foreseeability necessary to warrant the finding of a duty will vary from case to case. Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 66.

    HAGAP asserts that it had no knowledge that Plaintiff’s alleged assailant had a propensity to commit sexual assault, and that there is no evidence of any prior sexual assaults of any HAGAP attendees. (UMF 13-14.) HAGAP asserts that the alleged assault lasted five seconds, and that neither Plaintiff nor anyone else disclosed the assault to HAGAP on the day it occurred. (UMF 24, 26-27.) What is more, HAGAP asserts that its evidence shows that neither Plaintiff nor his alleged assailant were attendees in HAGAP’s program in August, September or October 2015, and thus, had no duty to protect non-attendees. (UMF 3, 7-8.) HAGAP contends, however, that while Plaintiff and his alleged assailant were attendees in its program- earlier in 2015- HAGAP maintained an approximate ratio of 1 to 20 staff to attendee ratio, and the program supervisor’s practice was to make multiple rounds of the premises daily, observe and talk with attendees, and to supervise staff. (UMF 11-12.) Further, Ellis states that when she saw Plaintiff and the other individuals accused of assaulting Plaintiff playing during the program, there was nothing about their behavior that caused her to suspect there was a propensity for sexual assault. (UMF 13.) HAGAP asserts that no assault was reported to it or Ellis, and that it first learned of the purported assault in March 2016. (UMF 15, 17, 26-29.)

    This evidence is sufficient to shift the burden to Plaintiff to raise a triable issue of material fact on his claims against HAGAP. However, as Plaintiff does not oppose the summary judgment motion, Plaintiff does not meet his burden.

    Defendant HAGAP’s motion for summary judgment is GRANTED.

    Moving Defendant is ordered to give notice.

    III. DEFENDANT HARBOR AREA GANG ALTERNATIVES PROGRAM’S MOTIONS TO COMPEL FURTHER RESPONSES

    On 2/26/20, Defendant Harbor Area Gang Alternatives Program filed a motion to compel Plaintiff’s further responses to form interrogatories, set one, and special interrogatories, set one, and a motion to compel Plaintiff’s further responses to request for production of documents, set one.

    In light of the above ruling on Defendant HAGAP’s motion for summary judgment, HAGAP’s motions to compel further discovery responses are moot.

    Moreover, the Court notes Defendant’s Motions to Compel Further Responses are premature as the parties had not participated in an Informal Discovery Conference (“IDC”) as required by the Court’s Standing Order Re: PI Court Procedures (4/16/18), which is available on the LA Superior Court’s website, under the Personal Injury section, prior to the hearing.

    Moving Defendant is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

    Dated this 28th day of July, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6357    Hearing Date: March 17, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTOPHER COBARRUBIAS,

Plaintiff(s),

vs.

LOS ANGELES COUNTY SCHOOL DIST., ET AL.,

Defendant(s).

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CASE NO: ****6357

[TENTATIVE] ORDER GRANTING MOTION FOR RECONSIDERATION IN PART AND DENYING MOTION FOR RECONSIDERATION IN PART

Dept. 31

1:30 p.m.

March 17, 2020

  1. 1/13/20 Ruling on Motions to Compel

    The Court was scheduled to hear Defendant’s motions to compel on 1/13/20. Prior to the hearing, the Court issued a tentative ruling. There were no appearances at the hearing, and the Court adopted its tentative ruling. The ruling was as follows:

    Defendant, Harbor Area Gang Alternatives Program propounded form interrogatories, special interrogatories, RPDs and RFAs on Plaintiff on 8/26/19. To date, despite multiple attempts to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

    Notably, on 1/06/20, Defendant filed notices of non-opposition to the motions, but the same day it also filed notices of withdrawal of its notices of non-opposition. Opposition to the motions was due on or before 12/30/19. To date, the Court has not received opposition to the motions; it is not clear why Defendant withdrew the notices. If Plaintiff filed opposition to the motions, the parties must appear and explain the status of the discovery at issue.

    Assuming there is no opposition to the motions, Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP ;;2030.290(a),(b), 2031.300(a),(b). Defendant’s motion to deem RFAs admitted is also granted. CCP ;2033.280(b).

    Sanctions are mandatory. ;;2030.290(c), 2031.300(c), 2033.280(c). Defendant seeks sanctions in varying amounts in connection with each motion. The Court awards one hour to prepare each form discovery motion and three hours to appear at the hearing (Counsel is located in Oxnard and seeks 4.2 hours to appear, but the Court finds it unreasonable to require Plaintiff to pay for Defendant’s choice to retain an attorney outside of Los Angeles County); the Court therefore awards a total of six hours of attorney time at the requested rate of $215/hour, or $1290 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

    Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1470, within twenty days.

  2. Motion for Reconsideration

    On 1/31/20, Plaintiff filed this motion for reconsideration, setting it for hearing on 3/17/20. Plaintiff moves for reconsideration of the 1/13/20 order. Plaintiff moves for reconsideration on the ground that (a) Defendant noticed the motion for 2/13/20, not 1/13/20, and (b) Plaintiff provided responses on 1/09/20.

    The Court has reviewed the previously filed motions. There were three motions on calendar on 1/13/20 directed at Plaintiff (there was a fourth motion on calendar directed at a non-party, but Plaintiff is not seeking reconsideration of the order on that fourth motion). Two of the three bore the date “1/13/19” on the caption, and the third bore the date “2/13/19” on the caption. Because the motions were served in December of 2019, it was obvious that “19” was an inadvertent cut and paste error. Defendant also provides evidence, in opposition to the motion, that the correct hearing date was indicated in both the reservation receipts and an e-mail between Counsel. Any reply to the opposition was due on or before 3/10/20; to date, the Court has not received a reply. The motion for reconsideration on the ground that the motions were not properly noticed is therefore denied.

    More importantly, Plaintiff’s showing that he served responses on 1/09/20, more than four months after Defendant served the subject discovery, would not support a different ruling. Even if Plaintiff had filed timely and substantive opposition to the motions, the Court would have imposed sanctions. Plaintiff’s failure to timely respond necessitated the filing of the motions, which necessitated incurring attorneys’ fees and costs. Thus, there are no new or different facts, laws, or circumstances that support reconsideration, as required by CCP ;1008.

    The Court notes that RFAs were deemed admitted. It is not clear whether or not Plaintiff seeks an order reconsidering the deemed admissions. The notice of motion indicates Plaintiff seeks reconsideration of the 1/13/20 order, but does not indicate which portion or the order Plaintiff seeks to have reconsidered. Plaintiff only substantively discusses the sanctions order in his points and authorities. The Court is concerned about a “deemed admitted” order under the circumstances. CCP ;2033.280 precludes the Court from deeming RFAs admitted if responses are served prior to the hearing. It appears Plaintiff, in good faith, believed the motions were on calendar 2/13/20, not 1/13/20. Plaintiff served responses on 1/09/20. If the Court had been aware of the 1/09/20 responses when it ruled on the motions on 1/13/20, it would not have granted the motion to deem RFAs admitted. Again, Plaintiff’s motion for reconsideration is not express in this regard. However, because Plaintiff seeks reconsideration of the entire 1/13/20 order, the Court is inclined to grant reconsideration of the portion of its ruling deeming the RFAs admitted, and to vacate that portion of its order.

    Plaintiff is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

    Dated this 17th day of March, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6357    Hearing Date: January 13, 2020    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CHRISTOPHER COBARRUBIAS,

Plaintiff(s),

vs.

LOS ANGELES COUNTY SCHOOL DIST., ET AL.,

Defendant(s).

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CASE NO: ****6357

[TENTATIVE] ORDER GRANTING DEFENDANT’S UNOPPOSED MOTIONS TO COMPEL RESPONSES FROM PLAINTIFF; DENYING DEFENDANT’S MOTION TO COMPEL COMPLIANCE FROM LOS ANGELES COUNTY SCHOOL DISTRICT

Dept. 3

1:30 p.m.

January 13, 2019

1. Motions to Compel Directed at Plaintiff

Defendant, Harbor Area Gang Alternatives Program propounded form interrogatories, special interrogatories, RPDs and RFAs on Plaintiff on 8/26/19. To date, despite multiple attempts to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

Notably, on 1/06/20, Defendant filed notices of non-opposition to the motions, but the same day it also filed notices of withdrawal of its notices of non-opposition. Opposition to the motions was due on or before 12/30/19. To date, the Court has not received opposition to the motions; it is not clear why Defendant withdrew the notices. If Plaintiff filed opposition to the motions, the parties must appear and explain the status of the discovery at issue.

Assuming there is no opposition to the motions, Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP ;;2030.290(a),(b), 2031.300(a),(b). Defendant’s motion to deem RFAs admitted is also granted. CCP ;2033.280(b).

Sanctions are mandatory. ;;2030.290(c), 2031.300(c), 2033.280(c). Defendant seeks sanctions in varying amounts in connection with each motion. The Court awards one hour to prepare each form discovery motion and three hours to appear at the hearing (Counsel is located in Oxnard and seeks 4.2 hours to appear, but the Court finds it unreasonable to require Plaintiff to pay for Defendant’s choice to retain an attorney outside of Los Angeles County); the Court therefore awards a total of six hours of attorney time at the requested rate of $215/hour, or $1290 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $1470, within twenty days.

2. Motion to Compel Directed at Los Angeles County School District

Defendant, Harbor Area Gang Alternatives Program propounded a deposition subpoena for production of business records on non-party, LACSD, which has information about the incident that forms the basis of this complaint. LACSD asserted a privilege not to comply, and Defendant moves to compel compliance at this time.

The motion is denied without prejudice due to failure to file proof of personal service of the moving papers on LACSD. See CRC 3.1346, which provides that all moving papers must be personally served on a non-party deponent. Defendant filed proof of service of the moving papers on Plaintiff only, and did not file proof of service of the moving papers on LACSD by personal service.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.



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