Judge Ashfaq G. Chowdhury, Case Number: 21STCV11367, Date: 2024-03-15 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21STCV11367, Date: 2024-03-15 Tentative Ruling

Case Number: 21STCV11367 Hearing Date: March 15, 2024 Dept: E

Hearing Date: 03/15/2024 – 8:30am

Case No: 21STCV11367
Trial Date: 04/15/2024

Case Name:

FAC: JANE DOE v. GLENDALE UNIFIED SCHOOL DISTRICT, a public school district; and DOES 1-40

Cross-Complaint: GLENDALE UNIFIED SCHOOL DISTRICT, a public entity, v. MARTIN PAPPALARDO, ESTATE OF MARTIN PAPPALARDO, JANE DOES AS ADMINISTRATOR OF ESTATE OF MARTIN PAPPALARDO AND ROES 1-100 INCLUSIVE

[DEFENDANT’S MSJ/MSA]

RELIEF REQUESTED
Defendant, Glendale Unified School District, pursuant to the provisions of Code of Civil Procedure Section 437c, will and hereby does move the Court for an order granting Summary Judgment or, in the alternative, for an order granting summary adjudication of some or all of the causes of action that are found in the plaintiff’s First Amended Complaint on the following grounds:

The defendant moves for summary judgment as to the FAC on the following grounds:

1. There are no triable issues of material fact as to all of the causes of action in the First Amended Complaint given the plaintiff’s failure to present a government tort claim prior to the filing of this lawsuit, and she is beyond the statute of limitations in which to do so now.

2. That there are no triable issues of material fact as to the plaintiff’s FIRST CAUSE OF ACTION for negligent hiring, supervision, and retention of an unfit employee.

3. That there are no triable issues of material fact as to the plaintiff’s SECOND CAUSE OF ACTION for Breach of Mandatory duty, failure to report suspected child abuse.

4. That there are no triable issues of material fact as to the plaintiff’s THIRD CAUSE OF ACTION for negligent failure to warn, train or educate.

5. That there are no triable issues of material fact as to the plaintiff’s FOURTH CAUSE OF ACTION for negligent supervision of a minor.

6. That there are no triable issues of material fact as to the plaintiff’s FIFTH CAUSE OF ACTION for negligence.

The defendant moves for summary adjudication of issues as to the First Amended Complaint on the following grounds:

2. There are no triable issues of material fact as to all of the causes of action in the First Amended Complaint given the plaintiff’s failure to present a government tort claim prior to the filing of this lawsuit, and she is beyond the statute of limitations in which to do so now.

3. That there are no triable issues of material fact as to the plaintiff’s FIRST CAUSE OF ACTION for negligent hiring, supervision, and retention of an unfit employee.

4. That there are no triable issues of material fact as to the plaintiff’s SECOND CAUSE OF ACTION for Breach of Mandatory duty, failure to report suspected child abuse.

5. That there are no triable issues of material fact as to the plaintiff’s THIRD CAUSE OF ACTION for negligent failure to warn, train or educate.

6. That there are no triable issues of material fact as to the plaintiff’s FOURTH CAUSE OF ACTION for negligent supervision of a minor.

7. That there are no triable issues of material fact as to the plaintiff’s FIFTH CAUSE OF ACTION for negligence.

This motion is made and based on the accompanying memorandum of points and authorities, the pleadings on file with the court, the declaration of Nancy Doumanian, the request for judicial notice, and all other matters presented to the Court at the hearing of this motion.

PROCEDURAL

Moving Party: Defendant, Glendale Unified School District

Responding Party: Plaintiff, Jane Doe

Moving Papers: Notice/Motion; Separate Statement; Request for Judicial Notice; Doumanian Declaration;

Opposing Papers: Opposition; Separate Statement; Gilbert Declaration; Request for Judicial Notice;

Reply Papers: Reply; Evidentiary Objections to Separate Statement; Evidentiary Objections to Plaintiff’s Request for Judicial Notice

30 Days
“ The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.” (CCP §437c(a)(3).)

Here, neither party brings up the timeliness requirement. Therefore, the Court finds this motion timely.

75/80 Days
Under 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)

Neither party addresses the timeliness requirement. This motion appears to be timely.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

Code of Civil Procedure § 437c(a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted 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).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

ANALYSIS
Plaintiff Jane Doe (“Plaintiff”) sued Defendant Glendale Unified School District (“Defendant”) based on allegations of childhood sexual abuse. Plaintiff alleges that Defendant’s former employee, Martin Pappalardo (“Pappalardo”), abused Plaintiff when Plaintiff was a student in Defendant’s school district.

Defendant argues that summary judgment should be granted in its favor as to the entire FAC and that Plaintiff cannot bring this action.

Defendant argues that Plaintiff’s entire FAC fails for several reasons, centering on the argument that AB 218 is in some way unconstitutional.

The Court does not find Defendant’s arguments on these issues availing. (See, e.g., Tuffli v. Governing Board (1994) 30 Cal.App.4th 1398, 140.) The Court must indulge a strong presumption that AB 218 is constitutional; further, it appears clear that AB 218 was enacted for a valid public purpose. (See Conlin v. Bd. of Supervisors of City and County of San Francisco (1893) 99 Ca. 17, 22.)

On pages 14-20, Defendant attacks the pleadings by arguing that Plaintiff did not allege or identify a duty for each of the five causes of action in the FAC.

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules Court, rule 3.1350(b), emph. added.)

CRC, rule 3.1350(d)(1) states:

(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(CRC, rule 3.1350(d)(1), emph. added.)

Defendant’s arguments on pages 14-20 of its motion—pertaining to Plaintiff failing to allege a basis for duty for each of the five causes of action—are not identified in Defendant’s separate statement. “The Separate Statement…must separately identify…each issue of duty.” (See CRC, rules 3.1350(d)(1)(A) and 3.1350(b).)

To the extent that Defendant construes these arguments as being affirmative defenses to each cause of action, Defendant also did not separately identify these in the separate statement.

Therefore, Defendant did not comply with the separate statement requirements with respect to a motion for summary judgment/adjudication.

As explained in Schmidlin v. City of Palo Alto:

A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must “state[ ] specifically in the notice of motion and ... repeat[ ], verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546, 235 Cal.Rptr. 106 [“ ‘If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion....’ [Citation.] There is a sound reason for this rule: ‘... the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied’ ”].)

Here defendants' separate statement reflects no attempt to comply with this requirement. That alone precludes a holding that the trial court erred in denying the motion.

(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)

Further, the Court notes that Defendant includes a “Statement of Facts” section in its motion that consists of 33 undisputed material facts (UMF). These 33 UMF are all asserted in the separate statement as to the entire motion for summary judgment and for each cause of action with respect to summary adjudication. As to UMF 1-32, Defendant fails to explain what any of these alleged facts establish or how they are legally relevant to granting this motion. As to UMF 33, Defendant’s argument is not availing as a matter of law in light of Government Code § 905(m).

TENTATIVE RULING
Defendant’s motion for summary judgment, or in the alternative summary adjudication, as to the FAC and all causes of action in the FAC is DENIED. Defendant did not meet its initial burden. Defendant’s and Plaintiff’s requests for judicial notice are GRANTED.