Judge: H. Jay Ford, III, Case: BC682731, Date: 2023-02-02 Tentative Ruling

Case Number: BC682731    Hearing Date: February 2, 2023    Dept: O

  Case Name:  AJ Doe, et al. v. Los Angeles Unified School District, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Defendants Los Angeles Unified School District, Kathy Flores, Jeannie Miceli, Bernadette Duffy, Eduardo Merino and Patty Kranker

RESP. PARTY:         Plaintiff AJ DOE, a minor by her Guardian Ad Litem, JB Doe

TENTATIVE RULING

            Defendants LAUSD, Kathy Flores, Jeannie Micelli, Bernadette Duffy, Eduardo Merino and Patty Kranker’s Motion for Summary Judgment or in the alternative, Summary Adjudication is DENIED. 

Defendants’ Objections to Plaintiff’s Evidence

Objections to Dec. of JB Doe—SUSTAINED as to Objection No. 8 and OVERRULED as to Objections 1-7, 9-26.

Objections to Plaintiff’s Exhibits in Opposition—OVERRULE as to all objections

I.  Defendants’ fail to establish that Government Code §820.2 immunizes the individual employees from liability

            Defendants move for summary judgment or adjudication based on the affirmative defense set forth under Government Code §820.2.  Defendants argue they are completely immunized from any liability for their investigation of Plaintiffs’ complaints regarding the “bathroom incident” between AJ and Giorgia on 10-27-15 and their decision to respond to the outcome of the investigation with a “bathroom plan.” 

            A.  Government Code §820.2

            Section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  Government Code section 815.2, subdivision (b), extends that discretionary act immunity to the public entity whose employee's conduct is at issue: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

            In interpreting GC §820.2, a literal interpretation of “discretionary” does not apply.  See Johnson v. State (1968) 69 Cal.2d 782, 790.  The mere fact that a government employee faces alternatives “does not perforce lead to a holding that the governmental unit thereby attains the status of non-liability under section 820.2. These alternatives may well play a major part in the resolution of the substantive question of negligence; they do not, however, dispose of the threshold question of immunity.”  Johnson, supra, 69 Cal.2d at 790. 

            “The Supreme Court has interpreted section 820.2 to allow immunity for basic policy decisions by government officials, but not for the ministerial implementation of that basic policy. In Johnson, the Court characterized this distinction as being between the ‘planning’ and ‘operational’ levels of decision-making.  There is no basis for immunizing lower level decisions that merely implement a basic policy already formulated.  The scope of the discretionary act immunity should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.”  Regents of University of California v. Superior Court (2018) 29 Cal.App.5th 890, 915 (quoting Johnson v. State of California (1968) 69 Cal.2d 782, 796. 

            “Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Accordingly, to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.”  Johnson v. State (1968) 69 Cal.2d 782, 795.

            Thus, a “university's decision to create specific programs and protocols to identify and respond to threats of violence on campus would appear to qualify as a planning or policy determination, and thus ‘discretionary’ within the meaning of section 820.2.”  Regents, supra, 29 Cal.App.5^th at 915.  However, where a plaintiff “does not challenge the adequacy of the university’s safety programs or protocols,” but instead “challenges the manner in which the university and its employees executed those programs with respect to an individual student whom [plaintiff] alleges presented a foreseeable threat of harm,” these “alleged acts and omissions constitute ‘subsequent ministerial actions in the implementation of the basic decision’ to maintain a safe campus.”  Id.  Immunity under Government Code §820.2 would therefore not apply.  Id. (defendants failure to adopt reasonable measures to protect plaintiff from fellow student with known dangerous and violent propensities was not subject to immunity under GC §820.2; plaintiff was challenging university’s application of safety protocols and programs to her specific situation and specific threat posed by fellow student with known dangerous propensities). 

            Immunity is limited to the exercise of discretionary authority in planning, e.g. the Youth Authority’s decision on whether to place a youth on parole.  See Johnson, supra, 69 Cal.2d at 795.  The “decision to parole thus comprises the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.”  Id. 

            However, once that decision is made, GC §820.2 immunity does not immunize the employee or the public entity from liability for negligently carrying out or executing that decision, e.g. failing to inform foster parents of latent dangers facing them.  Id.  Thus, GC §820.2 immunity applies to an officer’s decision to investigate an accident, but it does “not clothe him with immunity from the consequences of his negligence in conducting it.”  See McCorkle v. City of Los Angeles (1969) 79 Cal.2d 252, 262.

            B.  Defendants fail to establish that GC §820.2 immunizes them from liability under Plaintiff’s complaint

            Defendants argue they are immunized from any liability under GC §820.2 arising from their investigation of the alleged 10-27-15 bathroom incident and their decision to respond to the allegation with the “bathroom plan.”  As the parties moving for summary judgment based on GC §820.2, Defendants have the burden of establishing each and every element of the immunity as an issue of law with admissible evidence.  Defendants fail to do so.

            Whether GC §820.2 applies is heavily dependent on who the decisionmaker is, the authority by which the decisionmaker is making the decision and the nature of the decision itself.  See Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1437-1438 (not possible to set forth “a definitive rule which resolve every case, and other factors must also be considered as for example, the importance to the public of the function involved”; decision of Director of Department of Social Services and Assistant Director to institute disciplinary proceedings against civil service employee was policy decision involving exercise of discretion subject to immunity under GC §820.2); Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4^th 31, 39 (decision not to expel student was subject to immunity under GC §820.2 because such decisions were entrusted to school boards and their discretionary powers pursuant to Ed. Code §§48912-48915.5 and their own statutory rules and regulations). 

            Thus, neither Kemmerer nor Skinner establish that Defendants’ decision to investigate a student’s complaint of physical violence or their decision to implement a bathroom plan qualify for GC §820.2.  Plaintiff is a student who claimed another student threatened, assaulted and battered here, not a disgruntled public employee suing over the decision to institute disciplinary proceedings, nor is Plaintiff claiming damages due specifically to Defendants’ failure expel Giorgia. 

            Defendants fail to present evidence that they had any discretion in deciding whether to investigate AJ’s initial allegation that Giorgia threatened to punch her in the face.  Defendants fail to present any statute, code or enactment indicating that they had discretion to decide whether to investigate such a complaint.  Moreover, the mere fact that they had options or had to weigh various considerations does not alone establish GC §820.2 immunity.  See Johnson, supra, 69 Cal.2d at 790. 

            In addition, even if the initial decision to investigate qualified as an immunized exercise of discretion, Plaintiffs’ complaint seeks to impose liability on Defendants for their failure to keep AJ safe on campus, including failure to properly investigate AJ’s complaints.  See Complaint, ¶¶19-24.  How Defendants conducted the investigation would not qualify as “planning” decisions subject to immunity under GC §820.2.  Defendants were required to conduct the investigation using reasonable care, and GC §820.2 does not immunize them from liability for injuries arising from negligent investigation.  See Johnson, supra¸ 69 Cal.2d at 795; McCorkle, supra, 79 Cal.2d at 262 (while officer was immune from liability for deciding to investigate accident under GC §820.2, immunity did not apply to liability arising from his negligence in conducting investigation).

            The same analysis applies to Defendants’ decision to respond to AJ’s complaints with a bathroom plan.  Defendants fail to present any evidence establishing that implementation of the bathroom plan qualifies as a planning decision on a policy matter, as opposed to an operational decision.  Defendants fail to cite to any statute, code or enactment regarding their duty, obligation or discretion in fashioning a response to complaints such as AJ’s. 

            In addition, if Plaintiffs are seeking to impose any liability based on the “bathroom plan,” it is liability based on Defendants’ negligent implementation of the bathroom plan, not the decision to implement the bathroom plan.  Defendants claim they implemented a bathroom plan on 10-28-15, the day after Giorgia allegedly threatened to punch AJ in the bathroom.  See Defendants’ SSUMF No. 10.  Defendants claim AJ did not go to the bathroom without an adult from the day she was assigned a TA to take her, as enacted for the bathroom plan.  Id.  at 11. 

            However, Plaintiffs raise a triable issue of fact as to whether the bathroom plan was ever implemented and if so, whether Defendants properly implemented the bathroom plan.  AJ testified to multiple encounters with Giorgia in the bathroom after 10-27-15.  See Plaintiffs’ Evidence, Ex. 2, 35:3-21 (testifying that Giorgia touched her in “private parts” in bathroom stall; 42:22-25-43:1 (testifying that Giorgia touched her “private parts” on a different day from 10-27-15); 43:24-25-44:1 (testifying that Giorgia threatened to kill AJ’s family); 48-50 (testifying that she saw Giorgia during lunch time, Giorgia ordered her to bring lunch in bathroom, she saw Giorgia in the bathroom other times after 10-27-15 incident but could not recall how many times, Giorgia touched her on “private parts” “a lot” and incidents of touching occurred in bathroom).  During those multiple encounters in the bathroom with Giorgia, Giorgia allegedly threatened her and sexually assaulted her multiple times.  Id. AJ’s testimony raises a triable issue of fact as to whether Defendants implemented the bathroom plan and whether they did so negligently. 

            Defendants fail to establish that the causes of action are barred based the immunity provided by GC §820.2.  Plaintiffs also raise a triable issue of material fact as to whether the immunity applies.  As such, Defendants’ motion for summary judgment based on GC §820.2 is DENIED and triable issues of fact remain as to whether Defendant LAUSD is liable for Employee Defendants’ conduct under GC §§815.2 (public entity vicariously liable) and 820 (“Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”) 

II. Triable issues of fact exist as to whether Employee Defendants were negligent, triggering their liability under GC §820 and LAUSD’s liability under GC §815.2

            “The law regarding the duty of supervision on school premises is very, very well established. It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.  The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.  What is ordinary care depends upon the circumstances of each particular case and is to be determined as a fact with reference to the situation and knowledge of the parties.”  J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139–140.

            “A special relationship is formed between a school district and its students resulting in the imposition of an affirmative duty on the school district to take all reasonable steps to protect its students. This affirmative duty arises, in part, based on the compulsory nature of education.  The right of all students to a school environment fit for learning cannot be questioned. Attendance is mandatory and the aim of all schools is to teach. Teaching and learning cannot take place without the physical and mental well-being of the students. The school premises, in short, must be safe and welcoming.”  M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517.

            “The principles pertaining to a school district's duty to supervise students are well established. It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.  The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.”  M. W., supra, 110 Cal.App.4th at 517. 

            “The standard of care imposed upon school personnel in carrying out the duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances.  Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.”  Id.

            Based on the evidence presented, triable issues of fact remain as to Employee Defendants’ alleged negligence.  As discussed in J.H. and M.W., it is well-established that school employees have a duty to supervise their students and to enforce the rules and regulations necessary for their protection and safety.  Disputed issues of fact remain as to whether AJ was repeatedly threatened and sexually assaulted in the school bathroom by Giorgia during AJ’s lunch hour.  See Plaintiffs’ Evidence, Ex. 2, 35:3-21 (testifying that Giorgia touched her in “private parts” in bathroom stall; 42:22-25-43:1 (testifying that Giorgia touched her “private parts” on a different day from 10-27-15); 43:24-25-44:1 (testifying that Giorgia threatened to kill AJ’s family); 48-50 (testifying that she saw Giorgia during lunch time, Giorgia ordered her to bring lunch in bathroom, she saw Giorgia in the bathroom other times after 10-27-15 incident but could not recall how many times, Giorgia touched her on “private parts” “a lot” and incidents of touching occurred in bathroom).  This was after (1) AJ’s initial complaint that Giorgia threatened to punch her in the face on 10-27-15, (2) AJ’s mother reported to Flores and Miceli that AJ was being bullied by Giorgia in November 2015 and (3) AJ’s mother voiced her concerns in December 2015 over the initial investigation of the 10-27-15 incident and AJ’s continued encounters with Giorgia.  See Defendants’ SSUMF Nos. 13 and 25. 

            A trier of fact must determine whether Defendants used ordinary care in responding to the situation and their supervision of AJ and Giorgia given the circumstances and disputed facts.  “What constitutes ordinary care is a matter for the trier of fact with reference to the facts of the case.”  J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4^th 123, 148 (summary judgment reversed)(where plaintiff presented evidence that she was sexually assaulted on school grounds during voluntary afterschool program, trier of fact had to determine whether school employees fulfilled their duty of ordinary care in supervising students in aftercare program located on grade school campus). 

            Defendants also argue that it was not foreseeable that Giorgia would sexually assault AJ during school in the bathroom. Defendants argue the complaints against Giorgia did not involve sexual abuse. 

            However, “[i]t is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities in order to establish that their failure to provide additional safeguards constituted negligence. Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of such safeguards.  It is for the trier of fact to determine whether an unreasonable risk of harm was foreseeable under the facts of a case.  Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries.”  Id. at 146; M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4^th 508, 516 (attack on disabled minor was reasonably foreseeable and school district had duty to use reasonable care to protect against such attack, particularly given jury’s finding of liability).

            “Plaintiff need not show that the very type of injury she sustained was foreseeable in the absence of adequate supervision. Thus, although one might argue that the instant case raises the question whether it is foreseeable that first and second grade students would sexually assault plaintiff, the question is accurately framed as whether it is foreseeable that one child may be assaulted by another child during the ASPP in the absence of adequate protective safeguards, as plaintiff asserts occurred in this case.”  J.H., supra, Cal.App.4^th at 148. 

            The Court cannot find as a matter of law on summary judgment that it was unforeseeable, given the circumstances, that AJ would be assaulted by Giorgia or “one child might be assaulted by another child.”  J.H., supra, Cal.App.4^th at 148; M.W., supra, 110 Cal.App.4^th at 520 (“It is not necessary for the District to have foreseen that an act of sodomy could have occurred. We find no distinction between a physical assault and a sexual assault for purposes of foreseeability in this case).  Defendants’ MSJ on grounds that they were not negligent and did not owe any duty of care is DENIED.

            Defendants also argue that Defendants Duffy and Merino are not liable as individuals, because they were not involved in the investigation into AJ’s 10-27-15 complaint, nor were they involved in formulating or executing the bathroom plan.  Defendants define the basis for liability too narrowly.  Plaintiffs are alleging that the Defendants did not properly supervise or protect the students, such that Giorgia was able to assault and batter AJ.  The mere fact that Duffy and Merino were not involved in investigating that 10-27-15 incident or formulating and implementing the bathroom plan does not negate Plaintiffs’ allegations of liability.  Neither Duffy nor Merino deny that they were school employees responsible for AJ’s supervision and welfare at the school.  Plaintiffs also dispute that Duffy was not involved at all in the formulation or implementation of the bathroom plan, or AJ’s welfare and supervision.  See Plaintiffs’ Response to Defendants’ SSUMF No. 39.  Defendants’ MSJ/A as to Duffy and Merino is DENIED. 

III.  Defendants fail to negate Plaintiffs’ allegations of direct liability under GC §815.6 for breach of a mandatory duty

            “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”  GC §815.6.

            “Govt. C. 815.6 contains a three-part test for determining whether liability may be imposed on a public entity: (1) An enactment must impose a mandatory, not discretionary, duty. (2) The enactment must intend to protect against the kind of risk of injury suffered by the party asserting the statute as a basis for liability. (3) Breach of the mandatory duty must be a proximate cause of the injury suffered.”  5 Witkin, Summary (11^th ed. 2020), Torts, §297.  The term “enactment” includes an ordinance or regulation.  Govt. C. §810.6. 

            “[A]pplication of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.  It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.”  Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (recordation statute imposed mandatory duty on government entity to record certificate of substandard condition; while government entity’s determination of property’s condition involved discretionary determinations, once it determined property was unstable and owner notified, it had mandatory duty to record certificate of substandard condition)(demurrer sustained without leave because enactment was not intended to protect against risk of injury suffered by plaintiff).  

            “Whether an enactment creates a mandatory duty is a question of law: ‘Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.’  The enactment’s language is, of course, a most important guide in determining legislative intent, there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.”  Id. at 499. 

            The use of the word “shall” ordinarily indicates a mandatory duty.  See Guzman v. County of Monterey (2009) 46 Cal.4th 887, 899.  “However…this term's inclusion in an enactment does not necessarily create a mandatory duty; there may be other factors that indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.”  Id.  “While a public entity's exercise of discretion may often mark the dividing line between a duty that is mandatory and one that is not, that line is sometimes difficult to draw.”  Id. 

            “An enactment creates a mandatory duty if it requires a public agency to take a particular action.  An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency's exercise of discretion.  Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment affirmatively imposes the duty and provides implementing guidelines.”  San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 429. 

            Even if Defendant LAUSD successfully negated Plaintiffs’ claim of direct liability under Gov. C. §815.6, the motion for summary judgment would still be denied based on LAUSD’s derivative liability based on the negligence of its employees.  As discussed above, there are triable issues of fact regarding whether Employee Defendants were negligent in supervising AJ and Giorgia.  Plaintiffs’ 1^st and 2^nd causes of action for negligent supervision and negligence therefore survive summary judgment regardless of whether direct liability can be established under GC §815.6. 

            Moreover, Defendants fail to negate Plaintiffs’ statutory grounds for imposition of a mandatory duty.  Plaintiff alleges direct liability against LAUSD based on California Constitution, Article 1, Section 28, subdivision (a)(7), California Constitution Article 1, Section 28, subdivision (f)(1), Government Code §44807, Education Code §8202, 5 CCR 5552.  See Complaint, ¶¶32-36. 

            Education Code §44807 does not create a mandatory duty supporting a claim under GC §815.6.  See Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4^th 925, 939.  Education Code §8202 does not create a mandatory duty as to Defendants. Education Code §8202 is merely an express of legislative intent, as indicated by its title and its express language.  See Educ. C. §8202 (“Legislative Intent”; “It is the intent of the Legislature that:…”).    

However, 5 CCR §5552 provides:  “Where playground supervision is not otherwise provided, the principal of each school shall provide for the supervision by certificated employees of the conduct and safety, and for the direction of the play, of the pupils of the school who are on the school grounds during recess and other intermissions and before and after school.”  Defendants concede the language of this regulation imposes a mandatory duty on school principals. 

Defendants argue, however, that Plaintiff is not making claims regarding “conduct, safety and direction of the play.”  Defendants fail to provide any evidence or argument to support this assertion.  Defendants do not affirmatively establish that Plaintiff AJ’s injuries were not the result of a violation of 5 CCR §5552.  In opposition, Plaintiff submits AJ’s deposition testimony and she testified that the bathroom attacks occurred during her lunch hour.  Defendants fail to address whether these circumstances would trigger the mandatory duty under 5 CCR §5552.