On October 17, 2022, the court issued its final ruling as to Defendant’s demurrer to the 4^th COA found in the FAC wherein the court overruled the namely because “employees of the school district other than Northrop—specifically teachers and the vice principal—observed Northrop’s inappropriate behavior and/or were aware of information regarding Northrop’s improper/criminal activities involving Plaintiff and other students. Yet, these employees who in the scope of their employment, have a duty to protect students from certain known/suspected abuses failed to take appropriate actions to safeguard Plaintiff.” (See 10/17/22 Final Ruling.)

 

On November 17, 2022, the District[1] filed a cross-complaint (CC) against Northrop for:

 

1. Total Equitable Indemnity

2. Partial Equitable Indemnity

3. Declaratory Relief

 

On November 17, 2022, the District filed its answer to Plaintiff’s FAC.

 

On December 19, 2023, Northrop filed her answer to the CC.

 

On January 22, 2024, Northrop filed a substitution of attorney indicating Counsel William Blasser is no longer serving as her counsel and she is representing herself.

 

On April 29, 2024, the District filed the a Motion to Stay the Trial, which the court denied on 6/25/24.

 

On May 16, 2024, the District filed the instant summary judgment motion.

 

On July 11, 2024, Plaintiff filed an EX PARTE APPLICATION TO CONTINUE HEARING ON MOTION FOR SUMMARY JUDGMENT / ADJUDICATION OF COVINA-VALLEY UNIFIED SCHOOL DISTRICT PURSUANT TO CCP §437c(h), which the court denied.

 

On September 12, 2024, Plaintiff filed his opposition to the MSJ.

 

On September 19, 2024, the District filed its reply.

On September 26, 2024, the court held its hearing on the MSJ. The court’s tentative was to continue the hearing for supplemental briefing as the motion did not address all theories of liability.

 

On October 16, 2024, Plaintiff filed his supplemental opposition.

 

On October 28, 2024, Defendant filed its supplemental reply.

 

Discussion

 

The District demurs to the 1^st COA for Negligence, 2^nd COA for Negligent Supervision and Retention, and 4^th COA for Sexual Harassment.[2]

 

1. Negligence COA

 

Pursuant to California Government Codes sections 815.21 and 815.62, Plaintiff alleges that the District neglected its duty to safeguard its students, including Plaintiff, by and through (1) the negligent failure to properly supervise and protect Plaintiff; (2) negligent failure to properly supervise Northrop; and (3) negligent failure to enact and implement adequate policies and procedures to protect students. (See Plaintiff’s Supp. Opp, p. 7:4-9, citing FAC ¶¶57-72.) As to this COA, both parties more heavily focus on the allegation that the District failed to “enact adequate policies and procedures or failing to ensure their policies and procedures were followed; and by failing to properly warn, train or educate CVUSD’s staff members about how to spot red flags in other staff members’, and specifically Northrop’s, behavior with minor students.” (¶69, emphasis added.)

 

The District argues that the allegation is (i) irrelevant to Plaintiff’s claims because the claims are based upon vicarious liability not direct liability and (ii) the District and its employees are immune from liability for enacting, enforcing, or failing to enact or enforce a specific policy based upon Government Code sections 818.2, 820.2, 821. (Reply p. 2.)

 

Here, the court need not address the issue of whether Defendant waived certain affirmative defenses because Plaintiff does not address the argument that evidence aimed at the District-employer and its policies, rather than on the acts or omissions of employee(s), is irrelevant to Plaintiff’s claims pursuant to Government Code section 815.2, which states that a public entity may be vicariously liable for an injury caused by an act or omission of its employee within the scope of employment.

 

To the extent that Plaintiff cites to A.H. v. Tamalpais Union High Sch. Dist. (2024) 325 Cal.Rptr.3d 800 for his proposition that “school districts may be liable for failure to implement reasonable policies to protect students,” (Supp. Opp. p. 6), that case did not involve an allegation for the failure to adopt a policy. Instead, the plaintiff filed a complaint against the school district asserting a single claim of negligence alleging that the school district’s employees “fail[ed] to take appropriate action against [the teacher] for the multiple sexual misconduct complaints, fail[ed] to so detect and deter [the teacher’s] sexual assaults, fail[ed] to properly supervise [the student/plaintiff] and [the teacher] so as to protect [the student] from being sexually assaulted.” (Id. at p. 804.) The same goes for Plaintiff’s citation to M.W. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508; in that case, the student “alleged one cause of action against the school district for negligent failure to supervise and careless failure to guard, maintain, inspect and manage the school premises.” (Id. at 515.)

 

To the extent that Plaintiff relies upon Charol Shakeshaft, who holds a Ph.D. in Educational Administration and have served for the past 45 years as a professor of educational administration working with school administrators and future school administrators, the court SUSTAINS Defendant’s evidentiary objection to Shakeshaft’s declaration in its entirety. (Phan Decl., Ex. 12 [Shakeshaft Decl.], ¶3.)[3] According to her declaration, “If employees are not trained to watch for, discern, and interpret warning signs - they will not report . . . As in the case of [the District], a systematic failure to adopt and enforce policies and procedures allowed Northrop’s misconduct, harassment, and abuse.” (Shakeshaft Decl., ¶11.)

 

For one, it is unclear whether expert testimony is necessary in this case as it is not a professional negligence cause of action, but ordinary negligence. Second, as noted in both the reply and supplemental reply, Dr. Shakeshaft’s declaration fails to provide any context for the Court to assess the proper versus violated standards in California. Additionally, Dr. Shakeshaft failed to indicate whether there were any California standards she relied on to form her opinions and whether they have been accepted as the proper standards in California. Therefore, the declaration lacks foundation and is excluded.

 

With that, the court finds that Plaintiff has failed to create triable issues of material fact that Defendant/District owed a duty to enact certain policies.

 

 

2. Negligent Supervision COA[4]

 

As Plaintiff heavily relies upon A.H, supra, in support of this COA, the court turns to that case.

 

In A.H., the plaintiff was a student at the high school from 2000 to 2004. According to the findings, the district had complaints about the teacher’s prior sexual assault of students. For example, in 2002, the principal received a complaint that the teacher inappropriately touched a student while measuring his body fat. (Id. at p. 804.) The principal “did not talk with any students about their experiences with Burgos; nor did he speak with anyone in the P.E. department about rules or policies regarding body fat testing,” but the principal did write an incident report/warning letter to the teacher. (Ibid.) The incident report/warning letter was “kept in a locked file cabinet” in the principal’s office. (Id. at p. 805.) Then, there were five more similar incidents from 1998 to 2001. (Ibid.) One of those students “testified the body fat test was an uncomfortable experience, but his ‘friends and classmates ... shared the experience and we discussed it amongst ourselves,’ which ‘normalized the experience.’” (Ibid.) Another also testified that he “talked with other students on ‘several occasions’ about ‘how [the teacher] gave those tests and how uncomfortable they made people feel.” (Id. at p. 806.) Though the case did not involve a summary judgment but a judgment from appeal, the case provides a helpful catalogue of the seminal cases discussing a District’s vicarious liability for a teacher’s sexual abuse of a student. Specifically, the opinion rests on the findings of C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 which, in relevant part, provided that a negligent hiring, supervision or retention COA requires more than “assumptions or speculation. That an individual school employee has committed sexual misconduct with a student or students does not of itself establish, or raise any presumption, that the employing district should bear liability for the resulting injuries.” (Id. at pp. 878-879, emphasis added.)[5] This negligence standard articulated by the C.A. court for negligent hiring, supervising, or retaining a dangerous employee “thus imposes liability on a school district on the basis of supervisory personnel's constructive knowledge that an employee is prone to harm students. Constructive knowledge is knowledge that ‘may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’” (A.H., supra, 325 Cal.Rptr.3d, 813, quoting Roe v. Hesperia Unified School Dist. (2022) 85 Cal.App.5th 13, 26.) As applied to the facts, the court provided the following analysis:

 

[T]he students’ experiences with invasive “body fat tests,” C.S.’s discussions with friends and classmates who had the same experience with Burgos, E.L.’s similar conversations with students about “how Burgos gave those tests and how uncomfortable they made people feel,” and E.L.’s description of wrestlers waiting outside Burgos's office for body fat tests all suggest Burgos's misconduct was pervasive or, at the very least, well-known among male students. As A.H. argues, this evidence was relevant to show what District supervisory employees should have known about Burgos; Principal Holleran would have discovered Burgos's propensity to abuse boys had he properly supervised him before the 2002 complaint, conducted an adequate investigation following the 2002 complaint, or reasonably supervised Burgos after the 2002 complaint. The trial court did not abuse its discretion in admitting this evidence. (Ibid, emphasis added.)

 

Here, there are certain distinctions between A.H. and the instant evidence. First, unlike A.H. wherein the principal knew exactly what was going on, here, there is no evidence that a supervisory employee or administrator at the District saw Plaintiff and Northrop together acting inappropriately. Second, unlike A.H. wherein the students told other students, here, Plaintiff did not tell school staff, his parents or friends or family about the situation with Northrop. Plaintiff testified that November 2, 2016, was the first time he ever reported any sexual activity he had with Ms. Northrop while he was a minor, to the police. (SS Nos. 17-18 [undisputed by Plaintiff in his SS].)

 

Notwithstanding the lack of actual notice, Plaintiff relies upon A.H. for the proposition that the District had constructive knowledge (i.e., should have known) of inappropriate grooming or sexual misconduct based upon (i) rumors circulating among staff and students regarding Northrop’s inappropriate relationship with Plaintiff (see e.g., Plaintiff’s AM No. 18) and (ii) Northrop’s conduct other students, J.S. and L.B.[6] The following is the relevant evidence[7]:

 

- There were rumors circulating among staff and students regarding Northrop’s inappropriate relationship with Plaintiff. L.B. also testified about hearing rumors concerning Northrop’s relationship with Plaintiff, which was circulating among the wrestling team, including in the presence of coaches David Ochoa, Bobby Bellamy, Vincent La Farge, Robert Dominguez, and Chris Lopez. (Plaintiffs AMF No. 17.)

- Northrop had a “sister-like” relationship with another student, L.B; they would interact on and off campus. (Plaintiff’s AMF No. 4.) “Northrop often asked L.B. to stay behind after class to discuss her personal life and relationship with boys. Thereafter, Northrop frequently invited L.B. to have lunch with her in her classroom and discussed inappropriate topics such as sex, which male students were ‘hot,’ and even made suggestions to L.B. about which students to date.

- “L.B. would have lunch in Northrop’s classroom with other teachers, such as Holly Higuera and Jenny Grise and discussed their sexual relationships and share their opinions on the attractiveness of certain male student-athletes. Northrop also shared and expressed her interests in student-athletes, such as Plaintiff, J.S., and W.D.” (Plaintiff’s AMF.)

 

Accordingly, as framed by Plaintiff, like A.H., the pervasive evidence of students’ rumors and observations by teachers of Northrop’s inappropriate behavior toward the Plaintiff are both relevant and admissible. This evidence demonstrates that at the very least, her behavior was widely known among the students and coaches, underscoring what CVUSD’s supervisory employees should have been aware of (Plaintiff’s Supp. Brief. p. 12.)

 

In its response to the AMF, the District’s main rebuttal is that Plaintiff’s misstate the testimony of the teacher, Jenny Grise. The court’s review of Grise’s deposition indicates that some points could be clarified.[8]

 

For one, Grise testified that she did not hear rumors that Northrop was having sexual affairs with students, just staff member(s).

 

Q.· Were there rumors about Ms. Northrop seeing or ·3· ·in a relationship with any of her students? ·· A.· No. ·· · Q.· Did you hear any rumors that she was in a relationship with Nicholas Inclan? ·· A.· No. ·· · Q.· Had you heard any rumors that she was in a · ·relationship with JS ? · · · A.· No. · · Q.· Did you hear that there were any rumors that 12· ·she was in a relationship with W D ? · · · A.· No.

Q.· Isn't it true, Ms. Grise, that you were aware ·that there were rumors that she was having sexual ··relations with her students? · · A.· Absolutely not.· No.· Absolutely not. (Plaintiff’s Evidence, Ex. 5, pp. 332-335 of 490 of PDF, emphasis added.)

 

Notwithstanding, L.B. testified that she had lunch with Northrop and other teachers where they talked about students.

 

Q.· ·Sorry.· Turning back to, you know, the gossip · about who Kim talked about, would the other teachers, · · Holly Higuera, Jenny Patton talk about any of the  · students as well in a similar way? · · A.· ·Yeah, Patton not so much.· Holly Higuera, yes. · Specifically they agreed on W D .· She had an · affinity for [another student]. . .  . · Q.· ·And when you say they agreed, in what sense did  · you understand that they agreed about [another student] ? · A.· ·They both said that he was really hot.· They · · both said that he had abs for days, and they both said · · that he had swagger. (Plaintiff’s Evidence, Ex. 3, pp. 97-98 of 490 of PDF.)

 

And L.B. testified that other staff were privy to rumors.

 

Q.· ·When did you -- when do you first recall hearing any rumors regarding Nicholas Inclan and  · Kimberly Northrop, or Kimberly Holman? · A.· ·I remember hearing rumors about that at school  · and amongst the wrestling team going all the way back to our sophomore year. · · Q.· ·And that's your sophomore year? · · A.· ·My sophomore year, yes.· And it was more just the guys, you know, teasing him, oh, yeah, you're dating Miss Holman, you know.· It was typically treated as ] · joking. · Q.· ·Whenever you heard the jokes around wrestling  · team, were there any adults around? · · A.· ·Yes. · · Q.· ·Who were they? · · A.· ·Coaches, parents. (p. 118 of 490 of PDF.)

 

Accordingly, the evidence goes beyond Plaintiff merely bringing Plaintiff and other students Starbucks drinks, but wide spreading and circulating rumors about sexual misconduct between Plaintiff and Northrop.

 

Therefore, as to the COA for negligent supervision, the motion is DENIED.

 

Conclusion

 

In sum, while the District’s arguments largely focus on the lack of actual knowledge, the evidence, when giving Plaintiff every reasonable inference, shows that there were many reasons for a school staff member, administrator or otherwise to have reasonably suspected Northrop was molesting Plaintiff (i.e., constructive knowledge). (Reply p. 10:8-10.)[9] Based on the foregoing, the motion is denied in part and granted in part.

 

 

 

 

 

 

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