Judge: Gregory Keosian, Case: 20STCV18643, Date: 2022-08-25 Tentative Ruling
Case Number: 20STCV18643 Hearing Date: August 25, 2022 Dept: 61
Defendant Optimal Christian
Academy’s Motion for Summary Judgment or Adjudication is GRANTED as to the
fourth cause of action for sexual battery, and DENIED as to the first through
third and fifth causes of action.
I.
OBJECTIONS
Plaintiff submits
objections to the declaration of Caroyln Dowell, submitted in support of
Defendant’s motion, while Defendant submits objections to Plaintiff’s
declaration submitted in opposition. These objections are few in number and
concern evidence that is not material to resolution of the motion. As such, the
court need not rule upon them. (See Code
Civ. Proc. § 437c, subd. (q) [“In granting or denying a motion for summary
judgment or summary adjudication, the court need rule only on those objections
to evidence that it deems material to its disposition of the motion.”].)
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.)
Defendant Optimal
Christian Academy (Optimal) moves for summary judgment against Plaintiff’s
first through third causes of action for negligence on the grounds that Optimal
owed its student, Plaintiff, no duty of care to prevent its employee, Defendant
Mark Mosby, from sexually abusing him. (Motion at pp. 5–9.) Optimal also argues
that the fourth and fifth causes of action for sexual battery and harassment
fail because Optimal cannot be vicariously liable for Mosby’s assault, and
because it did not ratify this assault. (Motion at pp. 9–10.)
“The elements of a negligence cause of action are the existence of a
legal duty of care, breach of that duty, and proximate cause resulting in
injury.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th
664, 671.) Optimal argues that no duty of care existed here because, under the
factors set out in Rowland v. Christian (1968) 69 Cal.2d 108, Optimal
had no foreknowledge that Mosby would sexually assault Plaintiff, and Plaintiff
has little evidence of damage resulting from the alleged assault. (Motion at
pp. 7–8.)
Defendant has
fundamentally misunderstood the “duty” inquiry. The determination of the
existence of a legal duty is not a question to be decided on the facts of a
particular case, but must take place at a higher level of generality. “[T]he
court's task—in determining ‘duty’—is not to decide whether a particular
plaintiff's injury was reasonably foreseeable in light of a particular
defendant's conduct, but rather to evaluate more generally whether the category
of negligent conduct at issue is sufficiently likely to result in the kind of
harm experienced that liability may appropriately be imposed on the negligent
party.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510,
516.) The question before the court is thus not whether Plaintiff has raised
triable issues concerning causation or breach specific to Defendant, but
whether Defendant, by the position it occupied in relation to Plaintiff and
similarly situated persons, ought to be held liable to such persons for the
harm caused by the want of reasonable care. (See Laabs v. Southern
California Edison Co. (2009) 175 Cal.App.4th 1260, 1272–73 [“[I]n
analyzing duty, the court's task is not to decide whether a particular
plaintiff's injury was reasonably foreseeable in light of a particular
defendant's conduct, but rather to evaluate more generally whether the category
of negligent conduct at issue is sufficiently likely to result in the kind of
harm experienced that liability may appropriately be imposed on the negligent
party.”], internal quotation marks omitted;Cabral v. Ralph’s Grocery Co.
(2011) 51 Cal.4th 764, 772 [“[W]e have asked not whether [the ‘duty’
factors] support an exception to the general duty of reasonable care on the
facts of the particular case before us, but whether carving out an entire
category of cases from that general duty rule is justified by clear
considerations of policy.”].)
Defendant has failed
to present any evidence bearing upon this inquiry. It asks the court to
undertake a Rowland factorial analysis to determine that an exception
should be created to the duty of care in this instance, but presents no
evidence relevant to whether Optimal’s position in relation to its students is
such that it should have no legal duty to prevent their sexual abuse at the
hands of Optimal’s employees. This is likely because such an argument would
fail as a matter of law. (See Doe v. Lawndale Elementary School Dist.
(2021) 72 Cal.App.5th 113, 126 [discussing duty of schools to protect students
from sexual assault].) Instead of the broad policy analysis that Rowland requires,
Optimal simply insists that Mosby’s conduct was not foreseeable, that the harm
to Plaintiff was minimal, and that Optimal should therefore have had no duty to
protect Plaintiff from Mosby anyway. (Motion at pp. 7–8.) These facts have
little relevance to whether Optimal owed a duty of care to students in
Plaintiff’s position.
The motion is DENIED
as to the first through third causes of action.
Defendant next
argues that the fourth and fifth causes of action fail, because Optimal cannot
be vicariously liable for sexual assault, and because no evidence suggests that
Optimal directed or ratified the conduct. (Motion at pp. 9–10.)
Defendant is correct
on the first point. For vicarious liability for a tort to attach to an
employer, the tort must have been committed within the employee’s “scope of
employment.” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d
438, 447.) Teachers who sexually abuse their students generally do not do so
within the scope of their employment. (Id. at p. 452.)
What’s more,
Plaintiff concedes in opposition that the fourth cause of action for sexual
battery is erroneously brought against Optimal, and that this cause of action
should be dismissed. (Opposition at p. 17.) The motion is therefore GRANTED as
to the fourth cause of action.
But triable issues
of fact exist as to whether Optimal ratified the conduct at issue. (See C.R.
v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1112 [upholding
claim of sexual harassment against employer who ratified acts of employee].)
Failure to discharge an employee after notice of wrongdoing, and failure to
investigate allegations of wrongdoing, both constitute evidence of
ratification. (Ibid.)
Here, there is
evidence that creates triable issues of fact as to whether Optimal ratified the
alleged conduct. Although Optimal’s administrator Carolyn Dowell testified that
Optimal conducted an investigation into the incident (Dunn Decl. Exh. A at pp.
53–74), Mosby testified in his own deposition that Dowell’s conversations with
him concerning the allegations of the complaint consisted of her telling him
that she had read the complaint and did not believe it. (Dunn Dexl. Exh. B at
pp. 20–21) Additionally, Mosby has not been discharged, but has been placed on
what is nominally administrative leave, during which he continues to perform
work for Optimal. (Dunn Decl. Exh. A at pp. 63–64, 121.) Optimal’s employees
and parents have not been informed of the allegations, and have only been
informed that Mosby is working from home. (Dunn Decl. Exh. A at pp. 120–121.)
Thus triable issues exist as to whether Mosby’s alleged conduct has been
ratified by dint of lax investigation, continued employment, and failing to
disclose the allegations.
Accordingly, the
motion is DENIED as to the fifth cause of action.