Judge Gregory Keosian, Case Number: 19STCV47021, Date: 2023-12-14 Tentative Ruling

Judge: Gregory Keosian, Case: 19STCV47021, Date: 2023-12-14 Tentative Ruling

Case Number: 19STCV47021 Hearing Date: April 11, 2024 Dept: 61

Defendants Los Angeles Unified School District and Harold Boger’s Motion for Summary Judgment or Adjudication is DENIED.

I. OBJECTIONS

Defendants Los Angeles Unified School District (LAUSD) and Harold Boger submit objections to the materials submitted by Plaintiff in opposition to their motion for summary judgment. Objections No. 2 and 7 are SUSTAINED against sign-in logs and a social media policy that are otherwise unauthenticated. However, the ruling on this social media policy does not foreclose Boger’s own testimony concerning the existence of another policy during the relevant period. (See Contreras Decl. Exh. 2 at p. 114. The objections to the police report and criminal complaint against Young are SUSTAINED to the extent that they are introduced for the truth of any content contained within them, but are OVERRULED to the extent they demonstrate to the existence of the report and complaint. The objection to the Lesure deposition is OVERRULED.

II. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) 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.)

Defendants Los Angeles Unified School District (LAUSD) and Harold Boger (Boger) move for summary judgment or adjudication on Plaintiff Rashad Brooks’ (Plaintiff) remaining fourth cause of action for sexual harassment under Civil Code § 51.9, and the eighth, ninth and tenth causes of action for negligence, negligence per se, and negligent supervision, asserted in his Second Amended Complaint (SAC).

a. Sexual Harassment, Civil Code § 51.9

Defendants argue that Civil Code § 51.9 does not apply to either LAUSD or Boger, the principal at the school at which Plaintiff was abused by a substitute teacher, Defendant Simone Young (Young). (Motion at pp. 10–12.)

Liability under Civil Code § 51.9 may be had against “[a] person” who, in the context of a “business, service, or professional relationship” with the plaintiff, or a number of other prescribed relationships, including “Teacher,” engages in unwelcome, severe, and pervasive sexual harassment. (Civ. Code § 51.9, subd. (a)(1), (2).) Defendants argue that “Civil Code section 51.9 does not apply to public school districts.” (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 755.) They also argue that Boger cannot be liable under the statute as he was never Plaintiff’s teacher, nor Defendant Young’s employer or principal. (Motion at p. 11.)

Plaintiff in opposition concedes that LAUSD cannot be liable under Civil Code § 51.9, but argues that Boger may be liable under Civil Code § 51.9 for ratifying Young’s abuse. (Opposition at pp. 10–11.)

Plaintiff presents the following facts. Boger was the principal of Los Angeles Center for Enriched Studies (LACES) from 2012 to January 2017. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 2.) Plaintiff alleges assault by Defendant Young at LACES while he was an eighth grade student there during the 2016–2017 school year. (PUMF No. 3.) During this time, Young was a day-to-day substitute teacher who worked periodically at LACES. (PUMF No. 4.)

While Young was supervising Plaintiff’s Spanish class, she invited students to contact her privately on Snapchat, which Plaintiff did. (PUMF No. 6.) Young requested that Plaintiff “come hang with her” via Snapchat after school one day. (Uyeshima Decl. Exh. E at p. 36.) They talked for about 20 minutes in the classroom. (Id. at p. 37.) During that time the door was open and the windows uncovered, and people, such as janitors and students, passed by. (Id. at pp. 37–38.) Young and Plaintiff went into the hallway, where Young kissed Plaintiff on his lips for about one or two minutes, while grabbing him with her arms. (Id. at pp. 38–42.) They talked in the hallway for less than 15 minutes. (Id. at pp. 40–41.) Plaintiff does not recall if anyone was around when they kissed. (Id. at pp. 41–42.) Plaintiff thereafter walked with Young to her car in the parking lot, passing other people (janitors and students) on the way. (Id. at pp. 43–44.) At the parking lot they hugged and kissed, After Young left, he stayed at school until his mother came to pick him up. (Id. at p. 42.)

The next week Young and Plaintiff walked around the LACES campus at lunchtime, and exchanged a hug. (Uyeshima Decl. Exh. E at pp. 49–50.) Adults and students were around them when they hugged, including Plaintiff’s friend Jaylen. (Id. at p. 51.) Plaintiff described the hug occurring outside during lunch, “the whole school.” (Id. at pp. 51–52.) The hug lasted at least ten seconds. (Id. at p. 53.) They walked to a classroom and had lunch together inside, with the door was open and the windows uncovered. (Id. at pp. 54–55.) Several adults walked by. (Id. at pp. 55–56.) In the classroom, when Plaintiff left for his next class, he and Young hugged for five to ten seconds. (Id. at pp. 56–57.) No one else was in the classroom. (Id. at p. 57.)

Plaintiff next saw Young at school two weeks to a month later. (Uyeshima Decl. Exh. E at p. 58.) The “next couple times” they saw each other on campus, they met for a “quick hug and kiss” because “that was all the time we had.” (Id. at p. 58.) These interactions took place outside, not in a classroom. (Id. at pp. 58–59.) Plaintiff estimates he and Young kissed at LACES about four to five separate times. (Id. at pp. 59–60.) Plaintiff hugged Young every time he saw her, about 15 to 17 times. (Id. at pp. 63.) Every time they kissed, it was in the hallway and outside. (Id. at p. 66.)

It is unclear whether any school staff witnessed Young and Plaintiff kissing on campus. Plaintiff at one point stated that he did not recall if anyone walked by or was around when the kiss occurred. (Uyeshima Decl. Exh. E at pp. 41–42.) At another point he stated that he recalled janitors being in the vicinity. (Id. at pp. 68–72.) It also appears an art teacher may have been near when the kiss occurred. (Id. at pp. 68–69.) Plaintiff could not identify these individuals, however.

Plaintiff and Young did not have sex at school. They engaged in oral sex for the first time in Young’s car, outside his house. (Uyeshima Decl. Exh. E at pp. 92–94.) They engaged in oral sex over 20 times, and in sexual intercourse twice. (Id. at pp. 92–93.) Two or three times these acts occurred in Plaintiff’s home. (Id. at pp. 95–96.) The rest of the time, they occurred in Young’s car. (Ibid.) The last of these acts occurred in August 2017. (DAMF No. 8.) Young was arrested for lewd acts with a minor on September 22, 2017, and convicted on August 2, 2018. (DAMF No. 9, 11.)

Defendant Boger was responsible for conducting certifying that employees completed one of the two types of sexual abuse training offered by LAUSD. (Defendant’s Response to Plaintiff’s Separate Statement of Additional Material Facts (DAMF) No. 14.) Boger stated that day-to-day substitutes like Young had their own district supervisor, but he did not know who that was or who certified that they had completed child abuse training. (DAMF No. 17–18.) Boger did not oversee day-to-day substitute’s in-person abuse training unless they were assigned to the school on the day it occurred. (DAMF No. 19.) Boger had ultimate responsibility for supervising day-to-day substitutes, but delegated that task to assistant principals, whose specific identity he could not recall. (Contreras Decl. Exh. 2 at pp. 23–24.)

From the above, there are no triable issues as to whether Boger ratified Young’s harassment. Although “[p]rinciples of ratification apply to a section 51.9 cause of action” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111), “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.” (Id. at p. 1110.) But here, no charge, complaint, or evidence of Young’s abuse was ever presented to Boger, and there is no indication that Boger knew or had reason to know of Young’s actions such that any failure to investigate them could constitute ratification.

The motion is therefore GRANTED as to the fourth cause of action.

b. Negligence

“To establish a cause of action for negligence, the plaintiff must show that the “defendant had a duty to use due care, that [it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 125.) “[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.” (Id. at p. 125–126.) ““Because of this special relationship, imposing obligations beyond what each person generally owes others, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally,” including injuries to a student resulting from a teacher's sexual assault.” (Id. at p. 126, internal quotation marks omitted.)

Defendants present the declaration of Boger in support of their arguments on the negligence claim. Boger denies having any knowledge of Young’s relationship with Plaintiff or of any complaints or notices regarding the same. (Boger Decl. ¶¶ 8, 13–15.) Boger states that LAUSD had district-wide child abuse trainings required of all employees, and that as principal of LACES, he certified each teacher on his roster had completed the in-person phase of the training. (Boger Decl. ¶ 6.) Boger states that LACES’ after school safety program states that students are not allowed on campus after school lets out except for this after school tutoring programs or sports team practices. (Boger Decl. ¶ 10.) He states that either himself or another administrator conduct a “sweep” of the campus and hallways about 15 or 20 minutes after the school day ends, and that they require students not in designated programs to leave. (Boger Decl. ¶ 10.) Likewise, during lunchtime, LACES has a supervision plan in which students are supervised by eight to nine supervisors, including administrators, campus aides, a school safety officer, counselors, deans, and a magnet coordinator. (Boger Decl. ¶ 11.) Students are permitted to eat lunch in teachers’ classrooms with the door open, if allowed by the teacher. (Boger Decl. ¶ 11.) Boger also states that he observed classes taught by substitute teachers, including some by Young, during the 2016-2017 school year, during which he saw nothing inappropriate. (Boger Decl. ¶ 12.)

“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.” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 126.) f

Triable issues exist here as to whether Defendants breached their duty of care. First, triable issues exist as to the precise range and number of school staff witnessed Young’s on-campus conduct with Plaintiff. Plaintiff met with Young various times in an empty classroom with the door open and the windows clear, and was seen walking together with Young to her car and around the school’s lunchtime area. Boger testified that Young’s status as a day-to-day substitute, as opposed to a permanent teacher, could make such meetings suspect, as a day-to-day substitute would have fewer reasons to meet alone with a student than a permanent teacher. (Contreras Decl. Exh. 2 at pp. 79–81.) Plaintiff testified that during this lunchtime walk he hugged Young in front of “the whole school.” (Uyeshima Decl. Exh. E, at pp. 51–52.) While Plaintiff’s testimony concerning who saw him and Young kissing is ambiguous, it is susceptible to the interpretation that janitors and one art teacher — a district employee with mandatory reporting duties under Penal Code § 11166 — were in the vicinity. Plaintiff’s evidence is to be “liberally construed” on summary judgment. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

Moreover, while there is no evidence that Boger himself had any knowledge or received any report of behavior indicating abuse, his testimony concerning the policies and training applicable to day-to-day substitutes like Young amounts to little more than a disclaimer of knowledge of District practices. At his deposition, Boger did not know who at the district conducted trainings for day-to-day substitutes like Young. (Contreras Decl. Exh. 2 at pp. 24–25.) Boger did not know how the district managed day-to-day subs, the identity of the person charged with managing them, or what position that person would occupy. (Id. at pp. 22–27.) Boger testified that neither he nor anyone at LACES had informed Young of applicable social media policies, and vacillated between a denial that the district had provided her with that information and a contention that he had “no way of knowing” whether the district provided that information. (Contreras Decl. Exh. 2 at p. 114.) Strictly construing his testimony as the court must on summary judgment (Fernandez, supra, 31 Cal.App.5^th at p. 779), Defendants have not shown the absence of triable issues of fact as to the instruction and oversight of day-to-day substitutes with regard to the district’s social media and anti-abuse policies.

Defendants’ argument as to causation also furnishes no basis for dispositive relief. They argue that there are no additional security or supervision measures that could have been taken to supervise Plaintiff’s safety, and that Young would likely have evaded any measures that Defendants took. (Motion at pp. 20–21.) Defendants rely on Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4^th 1352, in which two student assailants formed a “hasty plan” to rob the plaintiff student by luring him into a bathroom “out of the immediate view of campus supervisory personnel for at least a couple of minutes,” and “[o]nce the parties were in place, events unfolded extremely quickly,” over the course of one to two minutes. (Id. at p. 1372.) The court held:

Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery.

(Id. at p. 1372, internal citations omitted.)

This case is distinguishable. Plaintiff does not present a hasty plan to be accomplished out of view of administrative supervision. Plaintiff presents evidence of several one-on-one classroom meetings (an odd circumstance for a day-to-day substitute) conducted in full view of passers-by. He presents evidence that he hugged Young at least once in front of multiple students and adults at a crowded lunchtime gathering. Plaintiff contends that Young kissed him outside, in the hallway, with other district staff nearby. And Defendant Boger has testified that he does not know whether Young was instructed in the very anti-abuse and social media policies she is alleged to have violated. Plaintiff has thus presented a “reasonable causal explanation” as to why the failure to report public intimate contacts between Plaintiff and Young, and the failure to instruct Young in applicable policies, contributed to his injury. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.)

Defendants’ remaining arguments against Education Code § 32280 and Penal Code § 11166 are not directed to disposing of any particular cause of action, but rather toward eliminating an alternative basis of liability upon which negligence can be asserted. (Motion at pp. 16–18.) Because neither of these arguments can “completely dispose[] of a cause of action,” they need not be addressed in light of the above. (Code Civ. Proc. § 437c, subd. f)(1).)

The motion is therefore DENIED.