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This case was last updated from Los Angeles County Superior Courts on 06/20/2019 at 00:32:34 (UTC).

T ROE ET AL VS CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT

Case Summary

On 11/15/2017 T ROE filed a Personal Injury - Other Personal Injury lawsuit against CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3738

  • Filing Date:

    11/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff

THOMPSON TWYNLETTE

Defendants and Respondents

MEHTA ANDY

CENTINELA VALLEY UNION HIGH SCHOOL

DOES 1 TO 20

LEUZINGER HIGH SCHOOL

GUTIERREZ JOSE

Minor

ROE T.

Guardian Ad Litem

T.T.

Attorney/Law Firm Details

Plaintiff Attorney

MCMURRAY RANDY HUE

Defendant Attorneys

OLIVER SUSAN L.

SZETO KENNETH

Minor Attorney

MCMURRAY HENRIKS LLP

 

Court Documents

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

2/14/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

PROOF OF SERVICE BY MAIL

8/24/2018: PROOF OF SERVICE BY MAIL

DEFENDANTS CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT AND ANDY MEHTA'S NOTICE OF MOTION AND MOTION TO DEMURRER PLAINTIFF'S FIRST AMENDED COMPLAINT

10/2/2018: DEFENDANTS CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT AND ANDY MEHTA'S NOTICE OF MOTION AND MOTION TO DEMURRER PLAINTIFF'S FIRST AMENDED COMPLAINT

DECLARATION OF BRITNI M. HAGEMAN IN SUPPORT OF DEFENDANTS CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT AND ANDY MEHTA'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

10/2/2018: DECLARATION OF BRITNI M. HAGEMAN IN SUPPORT OF DEFENDANTS CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT AND ANDY MEHTA'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS CENTINELA VALLEY UNION RICH SCHOOL DISTRICT AND ANDY MEHTA'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

10/2/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS CENTINELA VALLEY UNION RICH SCHOOL DISTRICT AND ANDY MEHTA'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Proof of Service by Mail

11/30/2018: Proof of Service by Mail

Opposition

12/27/2018: Opposition

Case Management Statement

12/31/2018: Case Management Statement

Case Management Statement

2/4/2019: Case Management Statement

Substitution of Attorney

2/7/2019: Substitution of Attorney

Case Management Statement

2/15/2019: Case Management Statement

Demurrer

2/15/2019: Demurrer

Declaration

2/22/2019: Declaration

Notice

2/22/2019: Notice

Answer

5/2/2019: Answer

Motion for Protective Order

5/14/2019: Motion for Protective Order

Minute Order

5/29/2019: Minute Order

Reply

6/10/2019: Reply

113 More Documents Available

 

Docket Entries

  • 06/17/2019
  • at 08:30 AM in Department M; Hearing on Motion for Protective Order - Held - Taken under Submission

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  • 06/17/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 06/17/2019
  • Minute Order ( (Hearing on Motion for Protective Order)); Filed by Clerk

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  • 06/10/2019
  • Plaintiff's Reply Re Plaintiff's Motion for Protective Order; Filed by Twynlette Thompson (Plaintiff); T. Roe (Plaintiff)

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  • 06/07/2019
  • Defendant Juan Gutierrez's (Erroneously Sued as Jose Gutierrez) Answer to Plaintiff's third Amended Complaint; Filed by Juan Gutierrez Erroneously Sued As Jose Gutierrez (Defendant)

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  • 06/04/2019
  • Opposition (to opposition to Plaintiff's Motion for Protective Order); Filed by Centinela Valley Union High School (Defendant)

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  • 06/04/2019
  • Proof of Service (not Summons and Complaint); Filed by Centinela Valley Union High School (Defendant)

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  • 06/04/2019
  • Declaration (In Support of Opposition to Plaintiff's Motion for Protective Order); Filed by Centinela Valley Union High School (Defendant)

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  • 05/29/2019
  • at 10:30 AM in Department M; Ruling on Submitted Matter

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  • 05/29/2019
  • at 08:30 AM in Department M; Case Management Conference - Held

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148 More Docket Entries
  • 04/24/2018
  • First Amended Complaint; Filed by Twynlette Thompson (Plaintiff); T. Roe (Plaintiff)

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  • 02/14/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 02/14/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 02/14/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

    Read MoreRead Less
  • 02/14/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 12/13/2017
  • NOTICE OF REJECTION-APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 12/13/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 12/13/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 11/15/2017
  • COMPLAINT FOR DAMAGLS FOR: 1. ASSAULT AND BATTERY ;ETC

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  • 11/15/2017
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC683738    Hearing Date: March 22, 2021    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, March 22, 2021

Department B Calendar No. 2

PROCEEDINGS

T. Roe, et al. v. Centinela Valley Union High School Dist., et al.

BC683738

  1. T.T.’s Motion for New Trial

    TENTATIVE RULING

    T.T.’s Motion for New Trial is denied.

    Background

    Plaintiff filed his Complaint on November 15, 2017. Plaintiff’s operative Third Amended Complaint was filed on April 2, 2019. Plaintiff, a developmentally delayed student, alleges that he was sexually abused by Defendant Andy Mehta, a special education teacher, and Defendant Juan Gutierrez, a teacher’s aide, while Plaintiff was a student at Leuzinger High School which is controlled and operated by Defendant Centinela Valley Union High School District (“CVUHSD”). Plaintiff set forth causes of action for: 1. Assault and Battery; 2. IIED; 3. Negligence; 4. Negligent Hiring, Retention, and Supervision; 5. Gender Violence; 6. Dependent Adult Abuse. The third and fourth causes of action were alleged only against Defendant CVUHSD. The fifth cause of action was alleged only against Defendants Gutierrez and Mehta. The sixth cause of action was alleged only against Defendant Gutierrez. Defendants’ Motions for Summary Judgment were granted on January 11, 2021.

    Motion for New Trial

    The grounds for a motion for new trial are entirely statutory. Therefore, a motion for new trial must be based on the statutory grounds set forth in CCP § 657. Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166. CCP § 657 states that a motion for new trial may be granted based on the following causes:

    “1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

    2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

    3. Accident or surprise, which ordinary prudence could not have guarded against.

    4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

    5. Excessive or inadequate damages.

    6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

    7. Error in law, occurring at the trial and excepted to by the party making the application.”

    A motion for new trial can also be used to challenge judgments disposing of the action without a trial where an issue of law or fact has been decided. CCP § 656; Carney v. Simmonds (1957) 49 Cal.2d 84, 90. “A motion for a new trial is appropriate following an order granting summary judgment.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.

    Here, Plaintiff moves for a new trial following the order granting summary judgment in favor of Defendants. The motion is made on the following grounds:

    1. Improper orders of the Court (CCP § 657(1));

    2. Irregularity in the proceedings of the Court (CCP § 657(1));

    3. Abuse of discretion by the Court (CCP § 657(1)); and

    4. Error in law occurring at the trial and objected to by the moving party (CCP § 657(7)).

    Plaintiff’s motion is premised upon the contention that evidence to which the Court sustained Defendants’ objections should have been considered by the Court based on the existence of various hearsay exceptions. Plaintiff also argues that the Court erred by not making particularized rulings to Defendants’ objections. Evidentiary rulings by which evidence was erroneously excluded or admitted may be a ground for a new trial if prejudicial to the moving party's right to a fair trial. See, Townsend v. Gonzalez (1957) 150 Cal.App.2d 241, 249-250. A motion for new trial under CCP § 657(7), following a ruling granting a motion for summary judgment, is proper where there is evidence that the Court erred in the application of law. Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1.

    Plaintiff first argues that the “statement of declarant's then existing mental or physical state” hearsay exception set forth in Evid. Code § 1250 should be applied to Plaintiff’s own statements made to Los Angeles Sheriff’s Deputy Huynh, therapists, Dr. Yumi Tsutsumi and Dr. Rachel Liberman, expert witness Dr. Kimberely Lakes, and Plaintiff’s mother Twynlette Thompson.

Evid. Code, § 1250 states:

“(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant.

(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”

The declarant’s state of mind must be at issue in the case. People v. Ortiz (1995) 38 Cal.App.4th 377, 389. Here, importantly, Plaintiff’s state of mind is not at issue. Without underlying admissible evidence that harm occurred to Plaintiff, Plaintiff’s state of mind is irrelevant. Plaintiff argues that the evidence is admissible to prove Plaintiff’s state of mind of either being fearful of Defendants and/or this fear manifesting in his inability to fully articulate facts of the alleged abuse in other settings such as his deposition. However, as noted above, Plaintiff’s state of mind, or more particularly here, his fear, is not at issue in this case. While Plaintiff may be correct in his explanation as to why he may or may not have been able to articulate facts of abuse during his deposition, this does not make admissible the underlying statements of alleged abuse relayed to a third party since these statements are being presented directly for the truth of the matter asserted - the proposition that the abuse occurred, and not to explain or prove his state of mind.

Next, Plaintiff argues that the Los Angeles Sheriff’s Department (“LASD”) incident report is admissible pursuant to Evidence Code § 1280.

Evid. Code, § 1280 states:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:

(a) The writing was made by and within the scope of duty of a public employee.

(b) The writing was made at or near the time of the act, condition, or event.

(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

First, the LASD incident report cannot be said to have been created at or near the time of the act. Plaintiff alleges that the abuse occurred on various occasions during 2013 and during the 2015-2016 school year which ended in May 2016. The LASD incident report was not created until August 2016, a significant period of time after the first alleged incidents of abuse and several months after the ending of the last school year period. Second, to the extent Plaintiff argues that the incident report is not being offered for the truth of the statements contained within, but rather to show that Plaintiff reported the alleged abuse, Plaintiff is still not able to get past the multiple levels of hearsay. While the report itself may be admissible to demonstrate that the report was made, the notes contained therein relaying Plaintiff’s purported statements are still subject to the hearsay rule.

Next, Plaintiff further argues that the incident report is admissible pursuant to Evidence Code § 1237.

Evid. Code, § 1237 states:

“(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.”

The purpose of this hearsay exception is to first refresh the memory of a testifying witness. If a witness cannot recall an event and the witness’s memory must be refreshed, the writing may be introduced into evidence. See, Sherrell v. Kelso (1981) 116 Cal.App.3d Supp. 22, 32-34. Here, Deputy Huynh is not testifying in court and has not indicated he cannot remember what he wrote in the report. Further, the incident report still consists of double hearsay. To the extent that the writings contained in the report are attempting to be introduced on the ground that Plaintiff himself cannot recall, the hearsay exception is not proper because there is no underlying evidence that Plaintiff’s memory was required to be refreshed. Instead, during Plaintiff’s deposition, Plaintiff was simply not able to fully articulate any coherent facts of the alleged abuse.

Plaintiff next argues that the hearsay exception of Evidence Code § 1236 should be applied.

Evid. Code, § 1236 states:

“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.” Here, Plaintiff has not made any statements under oath at his deposition that are being challenged with impeachment evidence. The alleged prior statements made by Plaintiff are not, in fact, consistent with the hearsay statements that are sought to be introduced.

Dr. Lakes

Next, Plaintiff argues that the statements and conclusions of Dr. Lakes as to what Plaintiff purportedly told her should be admissible under an exception not specifically delineated in the Evidence Code. Plaintiff contends that expert testimony on “the common reactions of child molestation victims,” known as CSAAS theory evidence, “is admissible to rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident — e.g., a delay in reporting — is inconsistent with his or her testimony claiming molestation.” People v. Julian (2019) 34 Cal.App.5th 878, 885-86. Here, however, Defendants make no argument that the child’s conduct after the incident, such as a delay in reporting, is inconsistent with the claims of abuse.

People v. Julian (2019) 34 Cal.App.5th 878, 885–86 states: “[S]uch evidence is not admissible to prove that the complaining witness has in fact been sexually abused. The expert is not allowed to give an opinion on whether a witness is telling the truth[.] The expert providing CSAAS testimony may not give general testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused. Nor is it proper for an expert to present predictive conclusions, such as alleged child abuse victims should be believed or abused children give inconsistent accounts and are credible nonetheless. Such predictive conclusions go beyond the scope of CSAAS evidence and may confuse the jury.” Id. (internal citations and quotations omitted.)

Here, Plaintiff is offering this evidence precisely for the reasons upon which People v. Julian states is not allowed. Defendants are not arguing that Plaintiff should not be believed because of a delay in reporting. Defendants are not arguing Plaintiff’s credibility. Instead, Plaintiff is attempting to utilize this exception as a method to introduce facts of the underlying abuse. This is not a proper utilization of this exception.

Next, Plaintiff argues for the application of the exception articulated in Evidence Code § 1360.

Evid. Code, § 1360 states:

“(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:

(1) The statement is not otherwise admissible by statute or court rule.

(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(3) The child either:

(A) Testifies at the proceedings.

(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.

(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

(c) For purposes of this section, “child abuse” means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and “child neglect” means any of the acts described in Section 11165.2 of the Penal Code.”

This statutory exception is unavailable because it clearly provides that it is only applicable in criminal prosecutions where the victim is a minor under the age of 12. Such is not the case here.

Next, Plaintiff argues that the exception articulated in Evidence Code § 1253 should be applied.

Evid. Code, § 1253 states:

“Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. “Child abuse” and “child neglect,” for purposes of this section, have the meanings provided in subdivision (c) of Section 1360. In addition, “child abuse” means any act proscribed by Chapter 5 (commencing with Section 281) of Title 9 of Part 1 of the Penal Code committed against a minor.”

This hearsay exception is inapplicable because Plaintiff was not under the age of 12 when he allegedly made statements about the alleged abuse to his medical providers. Plaintiff argues that his mental state is equivalent to an individual under the age of 12. However, the legislature only set forth this exception to apply to actual age as opposed to mental state equivalency.

Court Evidentiary Rulings

Finally, Plaintiff argues that the Court acted improperly in not making individualized rulings to each of the objections. However, the rulings properly sustained the objections as to each of the evidence objected to by Defendants. The reasons for the objections were clearly set forth within the objections themselves, and the instant motion is an attempt to argue that the objections should not have been sustained based on the existence of purported hearsay exceptions. Plaintiff has not shown that she was prejudiced by the manner in which the Court ruled upon Defendants’ objections to Plaintiff’s evidence submitted in connection with the motion for summary judgment.

Defendants are ordered to give notice of this ruling.

Case Number: BC683738    Hearing Date: January 11, 2021    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, January 11, 2021

Department B Calendar No. 10

PROCEEDINGS

T. Roe, et al. v. Centinela Valley Union High School Dist., et al.

BC683738

  1. Juan Gutierrez’s Motion for Summary Judgment

  2. Centinela Valley Union High School District’s Motion for Summary Judgment

  3. Andy Mehta’s Motion for Summary Judgment

    TENTATIVE RULING

    Juan Gutierrez (“Gutierrez”), Centinela Valley Union High School District (“Centinela”), and Andy Mehta’s (“Mehta”) Motions for Summary Judgment are granted.

    Objections

    Plaintiff’s Objections in Connection with Each Defendants’ Respective Motions

    Plaintiff’s objections are overruled as Plaintiff did not properly object to actual evidence, but, instead, to statements made in Defendants’ separate statement of facts.

    Plaintiff’s Objections to Moving Party’s Reply Facts

    Plaintiff’s objections are sustained to the extent that there is no authority to support the presentation of such facts with a Reply. The Court notes that the objections are not material since Plaintiff did not meet his burden to provide specific facts to show the existence of a triable issue of material fact.

    Defendant Gutierrez’s Objections Dated 7/31/20

    Objections 1 to 20 are sustained.

    Defendant Mehta’s Objections Dated 8/19/20

    Objections 1 to 33 are sustained.

    Defendant Centinela’s Objections Dated 8/7/20

    Objections 1 to 43 are sustained.

    Defendant Mehta’s Objections Dated 1/4/21

    Objections 34 to 52 are sustained.

    Defendant Centinela’s Objections Dated 1/4/21

    Objections 44 to 62 are sustained.

    Background

    Plaintiff, a developmentally delayed student, alleges that he was sexually abused by Defendant Andy Mehta, a special education teacher, and Defendant Juan Gutierrez, a teacher’s aide, while Plaintiff was a student at Leuzinger High School which is controlled and operated by Defendant Centinela Valley Union High School District. Plaintiff filed his Complaint on November 15, 2017. Plaintiff’s operative Third Amended Complaint was filed on April 2, 2019. Plaintiff set forth causes of action for: 1. Assault and Battery; 2. IIED; 3. Negligence; 4. Negligent Hiring, Retention, and Supervision; 5. Gender Violence; 6. Dependent Adult Abuse. The third and fourth causes of action were only alleged against Centinela. The fifth cause of action was alleged only against Gutierrez and Mehta. The sixth cause of action was alleged only against Gutierrez.

    Motion for Summary Judgment

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

    “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

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

    Defendant Juan Gutierrez moves for summary judgment on the grounds that there is no triable issue of material fact with respect to Plaintiff's Third Amended Complaint in its entirety and that Defendant is entitled to judgment as a matter of law. Defendant Centinela moves for an order granting summary judgment on the grounds that there is no triable issue of fact as to Plaintiff’s causes of action pled against Centinela and that Centinela is entitled to judgment as a matter of law on these causes of action. Defendant, Andy Mehta moves for an order granting summary judgment on the grounds that there is no triable issue of fact as to any of Plaintiff’s causes of action pled against Mehta and that Mehta is entitled to judgment as a matter of law on these causes of action. While both Centinla and Mehta mentioned “summary adjudication” in the caption to the notices of their motions, both these Defendants failed to set forth the specific issues sought to be adjudicated within the notices of their motions. Thus, the Court will treat these motions solely as motions for summary judgment.

    Defendants have met their burden to show that Plaintiff’s causes of action have no merit by showing that one or more element of the causes of action cannot be established. Defendants have provided competent evidence refuting the allegations of Plaintiff. Plaintiff has not met his burden to provide specific facts to show that a triable issue of material fact exists as to his causes of action. CCP § 437c(p)(2).

    Gutierrez

    As against Defendant Gutierrez, Plaintiff alleged causes of action for Assault and Battery, IIED, Gender Violence, and Dependent Adult Abuse.

    “The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.” So v. Shin (2013) 212 Cal.App.4th 652, 668-69. The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching. Id. at 669.

    "A cause of action for 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." Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.

    “‘Gender violence’ is a form of sex discrimination and means either of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction." Civil Code § 52.4.

    Welfare & Institutions Code Section 15600, et seq. provides for the potential of civil liability of those who commits sexual battery upon a dependent adult. See, Welf. & Inst. Code § 15610.63(e)(1). Sexual battery is defined in Section 243.4 of the Penal Code, which reads in relevant part: "Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery." Penal Code § 243.4(e)(1).

    The factual predicate for these claims is based on Plaintiff’s contention that he was sexually abused by Gutierrez. However, Plaintiff has submitted no competent admissible evidence to show that he was abused by Gutierrez. Instead, the facts gleaned from Plaintiff’s deposition show that he did not speak to Gutierrez and does not remember Gutierrez. (Defendant’s Separate Statement of Facts and Supporting Evidence, 4, 15.) Plaintiff was unresponsive as to whether or not Gutierrez touched him, or whether they had been in a bathroom together, as alleged in the Third Amended Complaint. (Id. at 5-6.) Plaintiff does seem to indicate that Gutierrez was “mean to him” in some manner but is unresponsive with any other details that could document some type of sexual abuse. (Id. at 7-24.)

    Plaintiff attempts to rely on a completely separate accusation made against Defendant by a female student. However, “evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Evidence Code § 1101(a). Plaintiff also attempts to rely on inadmissible hearsay evidence from his mother as well as various health care providers, including Dr. Yuri Tsutsumi and Dr. Samantha Liberman, and law enforcement personnel regarding alleged statements made by Plaintiff to them allegedly outlining sexual abuse. However, such statements are hearsay, offered for the truth of the matters asserted, to which no hearsay exception exists.

    One of the health care providers, Dr. Lakes, opined that due to Plaintiff’s intellectual disability, it was not surprising that he had difficulty communicating the details of the abuse. (Plaintiff’s Separate Statement of Facts, 7, 8, 10, 11, 13, 19, 20.) While this may be the case, Plaintiff has provided no authority to establish that such difficulty to communicate on the part of Plaintiff would constitute a recognized exception to the hearsay rule. Plaintiff has not been able to demonstrate the existence of a hearsay exception that would allow for the introduction of hearsay testimony merely based on the party’s disability. A recognized exception to the hearsay rule does exist as to statements made to health care providers regarding sexual abuse allegations. However, the statement must have been made by an individual 12 or under. Evidence Code § 1253. Here, Plaintiff is over the age of 12.

    After Plaintiff’s request for a continuance was granted, Plaintiff conducted additional depositions and submitted additional evidence. None of the additional evidence includes competent admissible evidence that would show the existence of a triable issue of material fact. Nothing in the Sheriff’s report or the deposition testimony of Deputy Huynh or Detective Jimenez provides any admissible evidence to demonstrate that Gutierrez engaged in sexual assault. In addition, to the extent that Plaintiff attempts to rely upon this testimony to establish that Plaintiff told them that Gutierrez engaged in this conduct, such testimony would be hearsay.

    Likewise, Principal Ono’s characterization of Gutierrez’s deposition transcript provides no relevant admissible evidence that this Defendant engaged in the conduct complained of by Plaintiff. Finally, that Gutierrez invoked the 5th Amendment privilege as to certain discovery requests likewise does not establish that he committed sexual assault or constitutes as any type of admission.

    Thus, for the foregoing reasons, Defendant Gutierrez’s motion for summary judgment is granted.

    Mehta

    Similar to the allegations against Gutierrez, Plaintiff submits no competent admissible evidence to demonstrate that Mehta engaged in sexual assault against Plaintiff. Again, Plaintiff’s deposition testimony does not provide any specific facts as to the conduct of Mehta.

    At his deposition, Plaintiff could not state that any abuse by Mehta occurred. Plaintiff testified that he did not like Mehta and that he was mean to Plaintiff, but he was nonresponsive when asked why he did not like Mehta and why Mehta was mean. (Defendant’s Separate Statement of Facts and Supporting Evidence, 10-11.) Plaintiff was initially nonresponsive when asked did Mehta ever do anything Plaintiff did not like. (Id. at 12.) After a break, Plaintiff stated that Mehta did something to him in the bathroom but could not clarify other than it was “something bad.” (Id. at 13.) Conversely, Mehta met his burden by absolutely denying all allegations of inappropriate sexual conduct. Plaintiff provides no admissible evidence to controvert these facts. Again, all the evidence provided by Plaintiff to support these claims consist of hearsay comments as noted above in the analysis to Gutierrez’s motion. Further, for the same reasons noted in the analysis to Gutierrez’s motion, the additional evidence submitted by Plaintiff after the continuance was granted similarly provides no competent evidence to show the existence of a triable issue of material fact.

    Thus, for the foregoing reasons, Andy Mehta’s motion for summary judgment is granted.

    Centinela

    As to the first and second causes of action, these causes of action are premised upon vicarious liability based on the conduct of Gutierrez and Mehta. These causes of action fail to demonstrate the existence of a triable issue of material fact based on the same reasoning outlined in the analysis to the motions presented by these individual Defendants. Plaintiff has no competent first-hand evidence to demonstrate that the individual Defendants engaged in inappropriate sexual conduct.

    In addition, generally, sexual misconduct is outside of the course and scope of employment. John R. v. Oakland Unified School Dist.(1989) 48 Cal.3d 438, 452. The mere fact that Gutierrez or Mehta allegedly had an opportunity to engage in sexual misconduct with a student as a result of their employment does not render Centinela vicariously liable for their alleged intentional misconduct of Plaintiff. See, Lisa M. v. Mary Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299-300.

    “As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110. Here, there is no competent evidence that Defendant ratified the alleged conduct of the individual Defendants.

    Plaintiff’s third cause of action for Negligence and fourth cause of action for Negligent Hiring, Supervision, and Retention are alleged solely against Centinela. The third cause of action is based on the special relationship imposed between a school district and its students, and the duty to supervise such students. The fourth cause of action is premised upon Defendant’s conduct in hiring, supervising, and retaining the individual Defendants despite Centinela’s alleged actual or constructive knowledge of these individual Defendants’ propensity to commit sexual assault.

    “While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty 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 . . . . The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’. . . Either a total lack of supervision . . . or ineffective supervision . . . may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869. “School principals and other supervisory employees, to the extent their duties include overseeing the educational environment and the performance of teachers and counselors, also have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.” Id. at 871.

    Both Defendant and Plaintiff provide extensive briefing and argument regarding the standard of knowledge required on the part of Defendant to prove Plaintiff’s claims. Defendant states that it must have actually known of the individual Defendants’ proclivities. Plaintiff states that mere constructive knowledge is sufficient. The Court finds the following passage instructive: “In our case, while Ferguson's conduct in molesting Virginia G. will not be imputed to the District, if individual District employees responsible for hiring and/or supervising teachers knew or should have known of Ferguson's prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision, including Virginia G., the employees owed a duty to protect the students from such harm.” Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855. It does appear that constructive knowledge is the proper standard, at least, with respect to the special relationship imposed upon a school district to its students. The cases relied upon by Defendant did not specifically involve a school district. However, without any admissible evidence of the underlying offensive conduct, these causes of action must also fail as the essential element of causation of damages cannot be established.

    Thus, for the foregoing reasons, Defendant Centinela’s motion for summary judgment is granted.

    Defendants are ordered to give notice of this ruling.

Case Number: BC683738    Hearing Date: August 24, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, August 24, 2020

Department B Calendar No. 14

PROCEEDINGS

T. Roe, et al. v. Centinela Valley Union High School Dist., et al.

BC683738

  1. Juan Gutierrez’s Motion for Summary Judgment

  2. Centinela Valley Union High School District’s Motion for Summary Judgment

  3. Andy Mehta’s Motion for Summary Judgment

    TENTATIVE RULING

    Juan Gutierrez, Centinela Valley Union High School District, and Andy Mehta’s Motions for Summary Judgment are continued pursuant to Code of Civil Procedure § 437c(h).

    Code Civ. Proc., § 437c(h) states: “If 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. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

    Here, Plaintiff has submitted a request for continuance through the declarations of Lauren I. Friedenberg who states that facts essential to justify the opposition exist but cannot be presented, at this time, due to the discovery process being on-going and due to the fact that essential depositions have yet to be completed.

    Thus, Defendants’ motions are continued to November 19, 2020.

    Any supplemental oppositions are to be filed and served by November 5, 2020.

    Any supplemental replies are to be filed and served by November 13, 2020.

    Plaintiff is ordered to give notice of this ruling.

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