Judge: Frank M. Tavelman, Case: BC693260, Date: 2022-10-14 Tentative Ruling

Case Number: BC693260    Hearing Date: October 14, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

SUMMARY OF RULING:

The Motion for Summary Judgment is denied.

ALLEGATIONS:

On February 7, 2018, Plaintiff Jane A.C. Doe, by and through her Guardian Ad Litem Susan Aguirre, filed her complaint against Defendants Burbank Unified School District (“BUSD”), Emilio Urioste Jr., and Does 1-20, alleging one cause of action for negligence. On March 29, 2022, Defendant Emilio Urioste Jr. was dismissed, leaving BUSD as the sole identified Defendant.

Plaintiff suffers from severe autism and is nonverbal. From 2013-2017 Plaintiff was a student at the Foothill Area Community Transition Services Program (“FACTS Program”) which is a BUSD program that helps special needs young adults aged 18-22 prepare for adult life. Plaintiff was enrolled with another student—Jared Drucker—who sexually assaulted her by grabbing her buttocks while the two were attending a school-sanctioned trip to a local Subway restaurant. Plaintiff alleges BUSD knew Drucker had a history of sexual assault and BUSD was negligent in supervising Plaintiff and Drucker when Drucker assaulted her.

HISTORY:

The Court received the Motion for Summary Judgment filed by Defendant on July 29, 2022; the opposition filed by Plaintiffs on September 30, 2022; and the reply filed by Defendant on October 7, 2022.

RELIEF REQUESTED:

Defendant moves for summary judgment on the single cause of action for negligence brought by Plaintiff.

JUDICIAL NOTICE:

Defendant requests the Court take judicial notice of six court filings from various cases involving Jared Drucker. Defendant also offers the court filings as evidence exhibits.

Evidence Code § 452(d) permits judicial notice of “[r]ecords of (1) any court of this state… .” 

“While courts take judicial notice of public records, they do not take notice of matters stated therein.” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, however, the truthfulness and proper interpretations of the document are disputable.” (StorMedia Inc. Superior Court (1999) 20 Cal.4th 449, fn. 9 (citing Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374).) 

Accordingly, the Court GRANTS Defendant’s requests for judicial notice.

EVIDENTIARY OBJECTIONS:

Defendant raises 35 objections to evidence offered by Plaintiff.

Objections Nos, 3-21 are OVERRULED. The various police and psychiatric notes are admissible to the limited extent they are offered for a non-hearsay purpose, to show BUSD had notice of Jared Drucker’s history of sexual assault.

Objections No. 1, 2, 22, 25, 26, and 27 are SUSTAINED. Plaintiff has not established that Michelle Terrell is qualified to diagnose Jared Drucker or speak to how the FACTS Program should have treated him.

Objections Nos. 23 and 24 are OVERRULED.

Objections Nos 28-35 are OVERRULED. Marian Stephens is qualified to speak as an expert in education. Any statements she makes regarding Jared Drucker’s behavior that she didn’t witness firsthand are admissible only to provide context for her expert opinions.

ANALYSIS:

I.          LEGAL STANDARD

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant  … has met [their] 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 … 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 … 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).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)

III.       MERITS

1. Parties’ Arguments

    

   Defendant argues it was under a duty to exercise ordinary prudence and due care, but the it is not subject to strict liability and simply because an incident occurred does not establish that BUSD employees failed to provide adequate supervision.  Furthermore, Defendant argues they adequately supervised the special needs students in the FACTS Program at all relevant times. BUSD notes that Jared Drucker was Court ordered back into the FACTS Program. BUSD notes that, at the time of the incident, the ratio of aides to students was approximately two students per each aid.  Specifically, three aides accompanied only seven students to the Subway sandwich shop.  The three aides always watched the students—including Plaintiff and Drucker. As Drucker touched Plaintiff’s buttocks, the aides immediately stopped him and reported the incident to the police.

    

   Defendant argues that: (1) Plaintiff cannot prove that Defendant failed to adequately supervise Plaintiff and Drucker; and (2) Plaintiff cannot prove causation - specifically, Plaintiff cannot prove that the incident occurred because of Defendant’s employees’ inadequate supervision.

   In opposition, Plaintiff argues Defendant was on notice of Drucker's history of sexual assault. Consequently, the school had an affirmative duty to protect Plaintiff. The standard is not whether Defendant specifically knew Drucker would assault Plaintiff at the Subway restaurant—its whether Defendant should have known that a student with a known history of sexual assault could result in harm to other students.

    

   Defendant inadequately supervised both Plaintiff and Drucker. Defendant knew Drucker’s history of sexual assault and placed Plaintiff and Drucker in the same classroom. Defendant should have provided one-to-one supervision of Drucker. Regardless, breach and causation are not appropriately decided at summary judgment—the law is clear that breach and causation are issues for the jury.

    

   In reply, Defendant argues that it did not have reason to know Drucker would assault Plaintiff. Defendant reiterates its supervision was adequate and not the cause of the incident.

    

2. Analysis

    

   “To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.)

    

   “A duty exists only if the plaintiff's interests are entitled to legal protection against the defendant's conduct.” (Brown at 213.) As the California Supreme Court explained in Brown, “[g]enerally, the ‘person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another’ from that peril.” (Id., at 214.) “But this ‘no-duty-to-protect rule’ is not absolute.” (Doe v. The Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 670.) “Under some circumstances, a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant's own making.” (Brown, at 215.) In particular, “a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a ‘special relationship’ with either the victim or the person who created the harm.” (Ibid.) “[A] typical setting for the recognition of a special relationship is where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 621.)

    

   “[A] school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) Moreover, “[a] “special needs” child, i.e., a child suffering from mental and/or physical disability, cannot reasonably be expected to take care of himself or herself. Such a child at public school needs help and protection.”

   (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1323.)

    

   Put simply, school districts owe special needs students a duty of care. (See M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 521 [“Given the foreseeability of harm to special education students, the well-settled statutory duty of school districts to take all reasonable steps to protect them, the relatively minimal burden on school districts to ensure adequate supervision for any students they permit on their campuses…and the paramount policy concern of providing our children with safe learning environments, we find the District owed the minor a duty of care.”])

    

   Here, Defendant owed Plaintiff a duty of care. Defendant argues it had no notice that Drucker would touch Plaintiff on the buttocks. But this is not the standard, it is not whether Defendant knew, but whether Defendant knew or should have known. Defendant was on notice of Drucker’s history of sexual assault. As Defendant concedes, it was court ordered to enroll Drucker in the FACTS Program after Drucker was arrested and convicted for sexual assault.

    

   Furthermore, Plaintiff offers ample evidence indicating Defendant should have known about several other incidents where Drucker assaulted minors. (Boubion Decl., Exs. 11-23.) Defendant raises boilerplate hearsay and foundation objections to many of these exhibits, but the Court of Appeal for the Second District recently admonished a Los Angeles County trial court for sustaining similar objections. (See Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 123, footnote 3.) Even if the Court was to sustain these objects, there is still ample evidence Defendant was on notice.

    

   Indeed, Defendant concedes it had a duty to protect Plaintiff. (Reply. 8:16-17 [“Again, it is unknown why Plaintiff cites these cases when the BUSD is not arguing lack of duty.”].)

    

   “Once a court determines a defendant owes a duty to a plaintiff, ‘the remaining liability questions—breach as well as factual and legal causation—are usually questions for the jury.’” (Lawndale Elementary, supra, 72 Cal.App.5th at 126 [quoting Brown, supra, 11 Cal.5th at p. 228, 276].) “Breach, injury, and causation must be demonstrated on the basis of facts adduced at trial, and a jury's determination of each must take into account the particular context in which any act or injury occurred. ‘For example, a defendant's arguments about specific measures it has already taken—such as whether the District's administrators did enough to prevent [perpetrator’s] sexual abuse—concern whether defendant in fact took reasonable care, a question of breach usually for the jury.’” (Id. [quoting Brown, at pp. 230-231; internal quotations omitted].) “Whether the measures the District took to prevent sexual abuse of students and to supervise [perpetrator] and Doe were reasonable is a case-specific question of breach. [citation.] And it is a question for the jury, not the court on summary judgment.” (Id. at 137–138.)

    

   Defendant dedicates most of its motion memorandum and reply arguing that its supervision of Plaintiff was adequate and not the cause of Drucker’s assault. In other words, Defendant argues it did not breach its duty and Plaintiff cannot prove causation. However, absent unusual circumstances, which are not present in this, breach and causation are factual determinations for the jury.

    

   The Court acknowledges Defendant presents substantial evidence showing it provided adequate supervision of both Plaintiff and Drucker at the time of the incident. Nonetheless, Plaintiff offers evidence that Defendant knew of Drucker’s past sexual conduct and should have provided even greater supervision of Drucker given his history of sexual assault. (Stephens Decl. ¶¶ 24-26; Deft’s Undisputed Fact #15, 16, 18.) Furthermore, that same expert opines that Defendant’s choice to place Drucker and Plaintiff in the same classroom, as well as Defendant’s inadequate supervision of Drucker, contributed to Plaintiff’s assault. (Id. ¶ 27.)

    

   The Court does not weigh the credibility of evidence at summary judgment. It merely looks for whether Plaintiff has established an issue of triable fact, and with respect to breach and causation Plaintiff has done so here. Because Defendant concedes it had a duty, and because Plaintiff has offered evidence that Defendant breached that duty and its breach was the cause of Plaintiff’s injuries, the Court must deny summary judgment.

    

   IV.       CONCLUSION

    

   The Court thus denies the motion for summary judgment.

    

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Burbank Unified School District’s Motion for Summary Judgment came on regularly for hearing on October 14, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

IT IS SO ORDERED.

DATE:  October 14, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles