VALERIA SOLIS VS LOS ANGELES UNIFIED SCHOOL DISTRICT

Tentative Rulings

Case Number: *******2374 Hearing Date: January 13, 2022 Dept: SEC

SOLIS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.: *******2374

HEARING: 01/13/22

#8

TENTATIVE ORDER

Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Motion for Summary Judgment is DENIED. Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Alternate Motion for Summary Adjudication is DENIED.

Opposing Party to give notice.

“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.” (CCP 437c(h).) A party seeking continuance under CCP 437c(h) 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.)

The Court finds that the facts contained in Mr. Seber’s Declaration fail to provide sufficient information to invoke CCP 437c(h). Specifically, Mr. Seber’s Declaration fails to articulate any basis for a continuance. The request to continue the Motion is DENIED.

This action for negligence was filed by Plaintiff VALERIA SOLIS, a minor, by and through her GAL, Marcos Solis on June 25, 2019. On November 30, 2020, the operative First Amended Complaint (“FAC”) was filed.

Plaintiff alleges that “[o]n February 12, 2019, Plaintiff was in P.E. class on the P.E. field when another student (‘Student Assailant’) started harassing and/or assaulting and/or battering other students on the P.E. field. The Student Assailant’s misconduct…lasted for a lengthy period of time. But neither P.E. teachers nor staff attempted to stop the student assailant’s misconduct. Eventually, Plaintiff instructed the student assailant to stop. But instead the student assailant punched Plaintiff in the nose. Plaintiff was severely injured as a result of the punch.” (FAC 14.) “Based on the Student Assailant’s past misconduct it was foreseeable that if the Student Assailant was left unsupervised, or poorly supervised, for a lengthy period of time with other students on the P.E., field that the Student Assailant would physically harm other students. Specifically, this was foreseeable based on the following past misconduct on school campus by the Student Assailant: On December 3, 2018, the Student Assailant was disciplined because he ‘attempted to cause physical injury’ when the Student Assailant flipped off another student and then he ran up and pushed that student to the floor and then he punched that student four times; On October 30, 2018, the Student Assailant’s guardian was contacted, because he was involved in a fight that occurred after school; On March 15, 2018, the Student Assailant was disciplined because he ‘caused physical injury’ when the Student Assailant kicked and hit another student; On January 17y, 2017, the Student Assailant received counseling for ‘problems with peer relationships’ with another student; On May 26, 2017, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant kicked a school employee on the yard.; On March 27, 2017, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant punched another classmate in the face and ribs on the yard; On November 2, 2016, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant threw chairs and books in class.” (FAC 15.)

Plaintiff’s FAC asserts the following causes of action: (1) Negligence based on Government Code sections 815.2, 815.6, and 820; and (2) Negligent Hiring, Supervision, Training, and Retention based on Government Code sections 815.2, 815.6, and 820.

Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT (“LAUSD”) moves for summary judgment, or alternatively, summary adjudication of each cause of action.

First Cause of Action – Negligence

LAUSD moves for summary adjudication of the first cause of action for negligence on the following grounds: (1) LAUSD is entitled to summary adjudication pursuant to Gov. Code 815; (2) LAUSD is entitled to summary adjudication because Plaintiff cannot establish any breach of a “mandatory duty” of LAUSD because on June 30, 2021, this Court granted LAUSD’s Motion to Strike as to Ed. Code 44807 and 5 CCR 5531; and (3) LAUSD is entitled to summary adjudication because Plaintiff cannot establish that LAUSD breached any mandatory duty that was the proximate cause of Plaintiff’s injuries.

Gov. Code 815:

Under the statutory scheme in California, all government tort liability must be based on statute. (Gov. Code 815.) Accordingly, public entities may be liable only if a statute declares them to be liable. (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)

Here, Plaintiff alleges that LAUSD owes a duty under Gov. Code 815.2, 815.6, and 820.

Gov. Code 815.2 and 820:

Gov. Code 815.2 states: “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Gov. Code 820 states: “(a) Except as otherwise provided by statute… a public employee is liable for injury caused by his act or omission to the same extent as a private person. (b) The liability of a public employee established by this part… is subject to any defenses that would be available to the public employee if he were a private person.” 820 does not impose any duty to supervise. It makes a public employee liable for an injury to the same extent as a private person.

“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. 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 Omitted.] (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) “Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.) “Students are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se. [Citation Omitted.] Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries. [Citation Omitted.] It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities…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 [adequate] safeguards…... Further, the issue of ‘foreseeability’ does not depend upon the foreseeability of a particular third party’s act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm.” [Citations Omitted] (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal. App.4th 508, 518-519.)

815.2 makes LAUSD vicariously liable for the act of an employee only if the employee, while acting within the scope of employment would be liable for the injury to Plaintiff. LAUSD’s liability, therefore, depends on its employees’ (Sharon De La Rosa, Eduardo Melendez, and Debra Bonilla) allegedly negligent supervision of the “Student Assailant” on February 12, 2019.

LAUSD contends that during the 2018-2019 school year Gage Middle School had a supervision plan in place for Plaintiff’s P.E. class that consisted of three P.E. teachers supervising the P.E. filed on the day of the Subject Incident. (DUMF No. 5). However, the deposition testimony relied upon by Plaintiff in Opposition indicates that the P.E. instructors responsible for supervising Plaintiff on the date the Subject Incident may not have known what the actual policies were with respect to the supervision of the students, or whether a standard of practice concerning student altercations existed. (PRUMF No. 5-8.) Thus, it is unclear whether LAUSD’s employees enforced the rules and regulations necessary for Plaintiff’s/the other student’s protection.

Moreover, the state of the evidence is unclear as to whether the P.E. Instructors (De La Rosa and Bonilla) took adequate steps to supervise Plaintiff’s P.E. class on the date of the Subject Incident, and whether they took immediate action to break up the altercation resulting in Plaintiff’s purported injuries— neither teacher is able to clearly recount what led to the “Student Assailant’s” attack on Plaintiff. It is unclear as to whether the “Student Assailant” was within De La Rosa or Bonilla’s visual range when the Subject Incident occurred, and it does not appear as though either teacher interceded in the altercation between Plaintiff and the “Student Assailant” at all. (See e.g., De La Rosa Dep. 51:2-11.)

Summary adjudication of the first cause of action is DENIED.

Gov. Code 815.6:

Gov. Code 815.6 governs liability for breach of a public entity’s mandatory duties. A cause of action for breach of a mandatory duty must specifically allege the applicable statute or regulation that imposes the alleged mandatory duty. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.) Plaintiff did not identify a statute that imposed a mandatory duty on LAUSD. Accordingly, 815.6 is not grounds to deny summary judgment.

Second Cause of Action – Negligent Hiring, Supervision, and Training

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1213.) “[A]n employer’s duty…is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Id. at 1213.) “[A] public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)

The Court is unable to identify sufficient evidence in the Moving or Opposition papers that enables it to evaluate whether LAUSD’s employees’ training included instruction pertaining to student altercations. Summary adjudication of the second cause of action is DENIED.

LAUSD’s Evidentiary Objection to the Declaration of Jonathan Seber, Esq. Ex. E. is OVERRULED.

Case Number: *******2374 Hearing Date: January 12, 2022 Dept: C

SOLIS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.: *******2374

HEARING: 01/13/22

#8

TENTATIVE ORDER

Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Motion for Summary Judgment is DENIED. Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Alternate Motion for Summary Adjudication is DENIED.

Opposing Party to give notice.

“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.” (CCP 437c(h).) A party seeking continuance under CCP 437c(h) 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.)

The Court finds that the facts contained in Mr. Seber’s Declaration fail to provide sufficient information to invoke CCP 437c(h). Specifically, Mr. Seber’s Declaration fails to articulate any basis for a continuance. The request to continue the Motion is DENIED.

This action for negligence was filed by Plaintiff VALERIA SOLIS, a minor, by and through her GAL, Marcos Solis on June 25, 2019. On November 30, 2020, the operative First Amended Complaint (“FAC”) was filed.

Plaintiff alleges that “[o]n February 12, 2019, Plaintiff was in P.E. class on the P.E. field when another student (‘Student Assailant’) started harassing and/or assaulting and/or battering other students on the P.E. field. The Student Assailant’s misconduct…lasted for a lengthy period of time. But neither P.E. teachers nor staff attempted to stop the student assailant’s misconduct. Eventually, Plaintiff instructed the student assailant to stop. But instead the student assailant punched Plaintiff in the nose. Plaintiff was severely injured as a result of the punch.” (FAC 14.) “Based on the Student Assailant’s past misconduct it was foreseeable that if the Student Assailant was left unsupervised, or poorly supervised, for a lengthy period of time with other students on the P.E., field that the Student Assailant would physically harm other students. Specifically, this was foreseeable based on the following past misconduct on school campus by the Student Assailant: On December 3, 2018, the Student Assailant was disciplined because he ‘attempted to cause physical injury’ when the Student Assailant flipped off another student and then he ran up and pushed that student to the floor and then he punched that student four times; On October 30, 2018, the Student Assailant’s guardian was contacted, because he was involved in a fight that occurred after school; On March 15, 2018, the Student Assailant was disciplined because he ‘caused physical injury’ when the Student Assailant kicked and hit another student; On January 17y, 2017, the Student Assailant received counseling for ‘problems with peer relationships’ with another student; On May 26, 2017, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant kicked a school employee on the yard.; On March 27, 2017, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant punched another classmate in the face and ribs on the yard; On November 2, 2016, the Student Assailant was disciplined for ‘willful use of force/violence not self-defense’ when the Student Assailant threw chairs and books in class.” (FAC 15.)

Plaintiff’s FAC asserts the following causes of action: (1) Negligence based on Government Code sections 815.2, 815.6, and 820; and (2) Negligent Hiring, Supervision, Training, and Retention based on Government Code sections 815.2, 815.6, and 820.

Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT (“LAUSD”) moves for summary judgment, or alternatively, summary adjudication of each cause of action.

First Cause of Action – Negligence

LAUSD moves for summary adjudication of the first cause of action for negligence on the following grounds: (1) LAUSD is entitled to summary adjudication pursuant to Gov. Code 815; (2) LAUSD is entitled to summary adjudication because Plaintiff cannot establish any breach of a “mandatory duty” of LAUSD because on June 30, 2021, this Court granted LAUSD’s Motion to Strike as to Ed. Code 44807 and 5 CCR 5531; and (3) LAUSD is entitled to summary adjudication because Plaintiff cannot establish that LAUSD breached any mandatory duty that was the proximate cause of Plaintiff’s injuries.

Gov. Code 815:

Under the statutory scheme in California, all government tort liability must be based on statute. (Gov. Code 815.) Accordingly, public entities may be liable only if a statute declares them to be liable. (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)

Here, Plaintiff alleges that LAUSD owes a duty under Gov. Code 815.2, 815.6, and 820.

Gov. Code 815.2 and 820:

Gov. Code 815.2 states: “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Gov. Code 820 states: “(a) Except as otherwise provided by statute… a public employee is liable for injury caused by his act or omission to the same extent as a private person. (b) The liability of a public employee established by this part… is subject to any defenses that would be available to the public employee if he were a private person.” 820 does not impose any duty to supervise. It makes a public employee liable for an injury to the same extent as a private person.

“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. 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 Omitted.] (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) “Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.) “Students are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se. [Citation Omitted.] Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries. [Citation Omitted.] It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities…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 [adequate] safeguards…... Further, the issue of ‘foreseeability’ does not depend upon the foreseeability of a particular third party’s act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm.” [Citations Omitted] (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal. App.4th 508, 518-519.)

815.2 makes LAUSD vicariously liable for the act of an employee only if the employee, while acting within the scope of employment would be liable for the injury to Plaintiff. LAUSD’s liability, therefore, depends on its employees’ (Sharon De La Rosa, Eduardo Melendez, and Debra Bonilla) allegedly negligent supervision of the “Student Assailant” on February 12, 2019.

LAUSD contends that during the 2018-2019 school year Gage Middle School had a supervision plan in place for Plaintiff’s P.E. class that consisted of three P.E. teachers supervising the P.E. filed on the day of the Subject Incident. (DUMF No. 5). However, the deposition testimony relied upon by Plaintiff in Opposition indicates that the P.E. instructors responsible for supervising Plaintiff on the date the Subject Incident may not have known what the actual policies were with respect to the supervision of the students, or whether a standard of practice concerning student altercations existed. (PRUMF No. 5-8.) Thus, it is unclear whether LAUSD’s employees enforced the rules and regulations necessary for Plaintiff’s/the other student’s protection.

Moreover, the state of the evidence is unclear as to whether the P.E. Instructors (De La Rosa and Bonilla) took adequate steps to supervise Plaintiff’s P.E. class on the date of the Subject Incident, and whether they took immediate action to break up the altercation resulting in Plaintiff’s purported injuries— neither teacher is able to clearly recount what led to the “Student Assailant’s” attack on Plaintiff. It is unclear as to whether the “Student Assailant” was within De La Rosa or Bonilla’s visual range when the Subject Incident occurred, and it does not appear as though either teacher interceded in the altercation between Plaintiff and the “Student Assailant” at all. (See e.g., De La Rosa Dep. 51:2-11.)

Summary adjudication of the first cause of action is DENIED.

Gov. Code 815.6:

Gov. Code 815.6 governs liability for breach of a public entity’s mandatory duties. A cause of action for breach of a mandatory duty must specifically allege the applicable statute or regulation that imposes the alleged mandatory duty. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.) Plaintiff did not identify a statute that imposed a mandatory duty on LAUSD. Accordingly, 815.6 is not grounds to deny summary judgment.

Second Cause of Action – Negligent Hiring, Supervision, and Training

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1213.) “[A]n employer’s duty…is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Id. at 1213.) “[A] public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)

The Court is unable to identify sufficient evidence in the Moving or Opposition papers that enables it to evaluate whether LAUSD’s employees’ training included instruction pertaining to student altercations. Summary adjudication of the second cause of action is DENIED.

LAUSD’s Evidentiary Objection to the Declaration of Jonathan Seber, Esq. Ex. E. is OVERRULED.

Case Number: *******2374    Hearing Date: May 25, 2021    Dept: C

SOLIS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.:  *******2374

HEARING:  4/27/21

#6

TENTATIVE ORDER

Defendant Los Angeles Unified School District’s motion to strike is GRANTED as to Ed. Code ; 44807 and 5 CCR ; 5531, and DENIED as to Ed. Codes ;; 44660, 44662, 44664, 44830, 44870, 44932. Defendant is ordered to file and serve its Answer.

Moving Party to give NOTICE.

Defendant Los Angeles Unified School District move to strike irrelevant and improper allegations pursuant to CCP ; 435.

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP ; 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (CCP ; 437.)

The First Amended Complaint (“FAC”) alleges that minor Plaintiff Valeria Solis was a middle school student at Henry T. Gage Middle School in Huntington Park, California. On 2/12/19, Plaintiff was in P.E. class when another student started “harassing and/or assaulting and/or battering” other students. Neither the teachers nor staff attempted to stop the student. Plaintiff instructed the student to stop, but instead, the student assailant punched Plaintiff in the nose. The student assailant misconduct was foreseeable because he was disciplined for fighting in the past. The FAC asserts causes of action for:

1. Negligence based on Gov. Code ;; 815.2, 815.6, 820 (v. LAUSD)

2. Negligent Hiring, Supervision, Training, and Retention based on Gov. Code ;; 815.2, 815.6, and 820 (v. LAUSD)

A public entity can be held liable for injury when it fails to discharge a “mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury,” and the public entity’s failure proximately causes that injury. (Gov. Code ; 815.6.) An “enactment” includes a constitutional provision, statute, ordinance, or regulation. (Hines v. United States (1995) 60 F.3d 1442, 1448.) There are three elements to a cause of action under Government Code section 815.6. First, the enactment at issue must be obligatory, not merely discretionary or permissive in its directions to the public entity. Typically, an enactment imposing a mandatory duty also includes specific rules and guidelines for implementation. Second, the duty imposed must be designed to protect against the particular kind of injury the plaintiff suffered.... The third and final requirement is that the breach of the duty must have been a proximate cause of the plaintiff's injury. (Bowman v. Wyatt (2010) 186 Cal. App. 4th 286, 317.) “The use of ‘shall’ and like words will not alone support liability under the California Tort Claims Act.” (de Villers v. County of San Diego (2007) 156 Cal. App. 4th 238, 261.)

Plaintiff’s 1^st cause of action for Negligence is based on mandatory duties set forth in Ed. Code 44807 and CCR 5531. (FAC, ¶ 8.)

Plaintiff’s 2^nd cause of action for Negligent Hiring, Supervision, Training and Retention is based on Ed. Code ;; 44660, 44662, 44664, 44830, 44870, and 44932. (FAC, ¶ 9.)

Defendant contends that the Code sections alleged by Plaintiffs do not impose a mandatory duty.

Ed. Code ; 44807

Ed. Code ; 44807 provides in relevant part: “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.”

The FAC alleges that Plaintiff was injured during P.E. class. The FAC does not allege that Plaintiff was injured on the way to school, on the playgrounds, or during recess. Therefore, Ed. Code ; 44807 is irrelevant because it was not designed to protect against the risk of injury that Plaintiff has alleged in the FAC. Further, Ed. Code ; 44807 does not impose a non-discretionary mandatory duty. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal. 4^th 925, 939.) Plaintiffs failed to address Hoff v. Vacaville Unified School District. Accordingly, Ed. Code ; 44807 is stricken.

5 CCR ; 5531

5 CCR ; 5531 concerns “Supervision of Extracurricular Activities of Pupils.” This states in relevant part, “All social activities of pupils, wherever held, if conducted under the name or auspices of a public school or of any class or organization thereof, shall be under the direct supervision of certificated employees of a district or an office of a county superintendent of schools.” This section is irrelevant to Plaintiff’s alleged incident occurring during her P.E. class, which is not a social activity. Accordingly, 5 CCR ; 5531 is therefore stricken.

Ed. Code ;; 44660, 44662, 44664, 44830, 44870, 44932

Ed. Code ; 44660 provides, in relevant part, “It is the intent of the Legislature that governing boards establish a uniform system of evaluation and assessment of the performance of all certificated personnel within each school district of the state.... The system shall involve the development and adoption by each school district of objective evaluation and assessment guidelines which may, at the discretion of the governing board, be uniform throughout the district or, for compelling reasons, be individually developed for territories or schools within the district, provided that all certificated personnel of the district shall be subject to a system of evaluation and assessment adopted pursuant to this article.”

Ed. Code ; 44662 provides in relevant part: “The governing board of each school district shall establish and define job responsibilities for certificated noninstructional personnel, including, but not limited to, supervisory and administrative personnel...and shall evaluate and assess the performance of those noninstructional certificated employees as it reasonably relates to the fulfillment of those responsibilities.”

Ed. Code ; 44664 states in relevant part, “Evaluation and assessment of the performance of each certificated employee shall be made on a continuing basis as follows: (1) At least once each school year for probationary personnel. (2) At least every other year for personnel with permanent status.”

Ed. Code ; 44830 states in relevant part, “The governing board of a school district shall not initially hire on a permanent, temporary, or substitute basis a certificated person seeking employment in the capacity designated in his or her credential unless that person has demonstrated basic skills proficiency as provided in Section 44252.5 or is exempted from the requirement by subdivision (c)”.

Ed. Code ; 44870 states in relevant part, “No one shall be employed to supervise the work of teachers for more than half time during any school week unless he is the holder of a valid teacher's certificate authorizing him to teach in the schools and classes in which he is to supervise instruction and a valid supervision certificate.”

Ed. Code ; 44932 sets forth the grounds for dismissal of permanent employees and states in relevant part, “permanent employee shall not be dismissed except for one or more of the following causes:... (5) Unsatisfactory performance. (6) Evident unfitness for service...”

Defendant failed to cite any legal authority holding that Ed. Code ;; 44660, 44662, 44664, 44830, 44870, 44932 do not impose mandatory duties. At this pleading stage and based on the facts alleged, this court will allow the allegations to stand, and the parties may conduct further discovery to determine whether the duty is designed to protect against the particular kind of injury the plaintiff suffered, and whether the breach proximately caused Plaintiff’s injury as it relates to these facts.

Accordingly, motion to strike is GRANTED as to Ed. Code ; 44807 and 5 CCR ; 5531, and DENIED as to Ed. Codes ;; 44660, 44662, 44664, 44830, 44870, 44932.

Case Number: *******2374    Hearing Date: April 27, 2021    Dept: C

SOLIS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.:  *******2374

HEARING:  4/27/21

#8

TENTATIVE ORDER

Defendant Los Angeles Unified School District’s motion to strike is CONTINUED to Tuesday, May 25, 2021 at 2:30 p.m. in Dept. C.

Moving Party to give NOTICE.

Case Number: *******2374    Hearing Date: October 29, 2020    Dept: C

SOLIS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.:  *******2374

HEARING:  10/29/2020

#9

TENTATIVE ORDER

I. Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend. CCP ;430.10(e).

II. Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Motion to Strike Portions of Plaintiff’s Complaint is MOOT.

Moving Party to give notice.

This action for negligence was filed by Plaintiff VALERIA SOLIS, a minor, by and through her GAL, Marcos Solis on June 25, 2019. Plaintiff alleges that “[o]n February 12, 2019, Plaintiff was in P.E. class on the P.E. field when another student (‘student assailant’) started harassing and/or assaulting and/or battering other students on the P.E. field. The student assailant’s misconduct…lasted for a lengthy period of time. But neither P.E. teachers nor staff attempted to stop the student assailant’s misconduct. Eventually, Plaintiff instructed the student assailant to stop. But instead the student assailant punched Plaintiff in the nose. Plaintiff was severely injured as a result of the punch.” (Complaint ¶13.)

Plaintiff’s Complaint asserts the following causes of action: (1) Negligence based on Government Code sections 815.2, 815.6, and 820; and (2) Negligent Hiring, Supervision, Training, and Retention based on Government Code sections 815.2, 815.6, and 820.

Defendant demurs to the first and second causes of action pursuant to CCP ;430.10(e) and (f).

First Cause of Action – Negligence

“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. 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 Omitted.] (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) “Ample case authority establishes that school personnel owe students their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865.) “Students are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se. [Citation Omitted.] Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries. [Citation Omitted.] It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities…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 [adequate] safeguards…... Further, the issue of ‘foreseeability’ does not depend upon the foreseeability of a particular third party’s act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm.” [Citations Omitted] (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal. App.4th 508, 518-519.)

The demurrer is sustained with 30 days leave to amend. Claims against public entities must be alleged with particularity. Plaintiff does not allege facts illustrating that Defendant’s failure to adequately supervise its students created a foreseeable risk of the particular kind of harm purportedly endured by Plaintiff.

Second Cause of Action – Negligent Hiring, Supervision, and Training

Defendant argues that this claim is susceptible to demurrer because: (1) it is “duplicative” of Plaintiff’s first cause of action for Negligence; and (2) is not pleaded with particularity.

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1213.) “[A]n employer’s duty…is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Id. at 1213.) “[A] public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)

Plaintiff’s second cause of action is not duplicative of her claim for negligence. Plaintiff’s first cause of action for negligence is based on Defendant’s purported negligent supervision of its students. Plaintiff’s second cause of action for negligent hiring is based on Defendant’s hiring/retaining incompetent employees.

However, the demurrer to the second cause of action is properly sustained on the basis that Plaintiff has failed to allege this claim with the requisite amount of specificity necessary to maintain a statutory claim against a public entity. Plaintiff’s conclusory allegations are insufficient. Plaintiff does not allege that Defendant knew or should have known that hiring/retaining its employees would present an undue risk of harm to its students, or that Defendant knew or should have known that hiring or retaining its employees would cause Plaintiff’s injuries. There are also no facts alleged to show that Defendant had reason to know that its employees were incompetent or unfit at the time of hiring. The demurrer is SUSTAINED with 30 days leave to amend.

The Motion to Strike is rendered MOOT by the Court’s ruling on the Demurrer above.

Case Number: *******2374    Hearing Date: August 18, 2020    Dept: C

SOLIS, et al. v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.:  *******2374

HEARING:  8/18/20

JUDGE: OLIVIA ROSALES

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

#6

TENTATIVE ORDER

Plaintiffs Valeria and Marco Solis’s motion to compel further responses to Plaintiff’s special interrogatories and request for sanctions is DENIED. Reduced sanctions are imposed against Plaintiffs and counsel, jointly and severally, in the sum of $1,000.00 payable within 30 days.

Defendant to give NOTICE.

Plaintiffs Valeria and Marco Solis move to compel further responses to special interrogatories pursuant to CCP ; 2030.310.

CCP ; 2030.300 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP ; 2030.300(b).)

A valid meet and confer requires a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP ; 2016.040.)

The court finds that Plaintiff failed to make a reasonable effort to meet and confer regarding Defendant’s responses prior to filing the motion. The last correspondence prior to Plaintiff’s filing of the motion was from Defendant stating that it would provide further responses and was agreeable to a protective order to resolve its privacy concerns. The meet and confer process had not yet concluded.

The parties are ordered to further meet and confer regarding the outstanding discovery.

Motion is DENIED.

Sanctions: CCP ; 2030.300(d) authorizes the court to impose a sanction against any party/attorney who unsuccessfully makes or opposes a motion to compel further responses, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Here, sanctions are appropriate because Plaintiffs failed to meet and confer in good faith. The court finds Defendant’s total request of $2,497.50 is excessive. Instead, reduced sanctions are imposed against Plaintiffs and counsel, jointly and severally, in the sum of $1,000.00 payable within 30 days.

Case Number: *******2374    Hearing Date: November 13, 2019    Dept: 2

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 2 of the Personal Injury Court has determined that the above-entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in the Southeast District, Norwalk,  JUDGE M. BERNAL presiding in Department A for further assignment.  Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.  

The Order is signed and filed this date, and incorporated herein by reference.  Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.