Judge: Jill Feeney, Case: 20STCV08727, Date: 2022-10-18 Tentative Ruling

 PLEASE NOTE:    

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.  

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Case Number: 20STCV08727    Hearing Date: October 18, 2022    Dept: 30

Dept. 30

Calendar No. 

Jane B.X. Doe, et. al. vs. Los Angeles Unified School District, et. al., Case No. 20STCV08727

Tentative Ruling re:  Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues

Defendant Los Angeles Unified School District (LAUSD) moves for summary judgment, or in the alternative, summary adjudication, as to the First Amended Master Complaint (FAC) of Plaintiffs Jane B.X. Doe, Jane Z.J. Doe, Jane D.V. Doe, Jane Doe CG, Jane Doe CR, Jane Doe CE, and Jane E.R. Doe (collectively, Plaintiffs).  The motion for summary judgment is denied.  The motion for summary adjudication is granted as to the second cause of action for sexual battery.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 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.)

            The Court’s “role on summary judgment is simply to decide whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496.) “The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.” (Orser v. George (1967) 252 Cal.App.2d 660, 668.)

            Plaintiffs are students who were sexually molested by former teacher’s aide Lino Cabrera at Oxnard Street Elementary School. Cabrera was hired by LAUSD as a teacher’s assistant on November 2, 2010. (UMF 1.) Cabrera also worked in the school computer laboratory as technical support. (UMF 2.)

            On May 15, 2019, several fifth-grade students told Patricia Morales that Cabrera touched them inappropriately. (UMF 3.) The complaints were conveyed to the school’s principal, Kenny Yau, who then reported the information to the police department. (UMF 6-10.) Cabrera did not report to the school the following day and has not returned to the school since. (UMF 14-15.) On January 17, 2020, Cabrera pled no contest to a felony count of continuous sexual abuse, a felony count of a lewd act upon a child under 14, and four misdemeanor counts of child molestation, and was later sentenced to 8 years in state prison. (UMF 16.)

First Cause of Action for Negligence

            All plaintiffs assert a cause of action for negligence against LAUSD. This cause of action is based on theories of negligence per se, negligent supervision, negligent hiring/retention, and negligent failure to warn. (FAC ¶¶ 48-102.)

            LAUSD moves for summary adjudication as to Plaintiffs’ first cause of action on the basis that there is no evidence that LAUSD personnel knew or should have known that Cabrera posed a foreseeable risk of sexual abuse to students.

            Under Civ. Code § 815, public entity tort liability is exclusively statutory. Plaintiffs seek to hold LAUSD liable pursuant to section 815.2, which provides that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

“[S]chool authorities, by the nature of their special relationship with their students, have ‘a duty 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,’ which ‘includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties.’ ” (D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 223.) This principle has been applied in cases of employees' alleged negligence resulting in injury to a student . . . resulting from a teacher's sexual assault. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870.) A school district and its employees owe a duty to protect students from a teacher’s sexual abuse when they knew or should have known that the teacher posed a reasonably foreseeable risk of harm to students under his supervision. (Id. at 870-71.)

“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.) “For example, a defendant's arguments ‘about specific measures it has already taken . . . concern[] whether defendant in fact took reasonable care, a question of breach usually for the jury.’ [Citations.] Similarly, 'argument[s] about specific foreseeability’—such as whether [a teacher’s] sexual abuse of [a student] was foreseeable under the circumstances—'would be relevant to whether plaintiff had established proximate cause, also usually a question for the jury.’ ” (Id. at 126-27.)

The parties agree that LAUSD had a duty to protect Plaintiffs from any foreseeable risk of sexual abuse posed by Cabrera. Plaintiffs have presented evidence showing a triable issue of material fact regarding whether LAUSD breached this duty.

There is testimony from a number of students that Cabrera frequently molested students in the presence of other teachers. (See e.g., PE Ex. 1, ¶ 5; Ex. 2 ¶ 6; Ex. 4 ¶ 5; Ex. 6 ¶ 10.) For instance, one student states that “[w]hen Mr. Cabrera was working in Mr. Torres’ class, I observed him touching students’ thighs when he would help them with their work. . . . [Cabrera] would put his hands in the students’ laps, in their inner thighs. . . I recall that Mr. Torres was almost always in the room when this would happen, but I never saw Mr. Torres react or say anything about the touching.” (PE Ex. 3, ¶ 13.) Torres also witnessed Cabrera hold hands with a female student while walking with the class across the school yard, give students “long ‘side’ hugs,” and tickle female students in class. (PE Ex. 3, ¶ 15, 18-19.)

Despite this, on one occasion Torres told Cabrera to take Plaintiff Jane Doe CG alone into a classroom with the door closed to take a test, and did not check on her for the next forty minutes; Cabrera molested the student during this period. (PE Ex. 8, ¶ 7.) Other students have similarly testified that they were molested by Cabrera while left alone with him in one-on-one situations. (Jimenez Decl., Ex. 16 ¶ 4; Ex. 20 ¶ 11; Ex. 29, ¶¶ 3, 7-8.) Multiple students also report that their teachers left classes alone with Cabrera on “many occasions,” and that Cabrera continued to molest students when this happened. (PE, Ex. 10, ¶ 11; see also Ex. 1, ¶ 9; Ex. 5, ¶ 9; Ex. 11, ¶ 11.)

Students testify that encounters with Cabrera left them clearly uncomfortable and caused them to become noticeably withdrawn in the following days, but that no teacher acknowledged these changes in demeanor. (PE Ex. 1 ¶ 10; Ex. 5 ¶ 10.)  One student, after being molested by Cabrera, returned to her classroom and teacher “noticeably trembling and upset,” but her teacher still did not ask what was wrong. (PE Ex. 11 ¶ 12.)

Plaintiffs also present evidence that a student complained about sexual abuse by Cabrera prior to May 2019. A student states that Cabrera rubbed his shoulder, back and thigh in the computer lab in Fall 2018. A few days later, the student told Kenny Yau, the principal of Oxnard, that Cabrera had touched him and made him feel uncomfortable; Yau told the student that he would look into it and get back to him, but he never did. (Plaintiffs’ Exhibits (PE) Ex. 17, ¶¶ 3-5.) The student also states that Gonzalez left the class alone with Cabrera in the computer lab “many times,” and that “[t]here were many times while in the computer lab that I saw Mr. Cabrera kneel down next to female students.” (Id. ¶¶ 6-7.) Additionally, one student testifies that when the group of students complained to Patricia Morales about Cabrera in May 2019, Morales said in response, “[w]e had an incident with Mr. Cabrera before.” (PE Ex. 2 ¶ 13.) Multiple plaintiffs state that they were abused by Cabrera during or after the time of the prior complaint.

Plaintiffs’ evidence is sufficient to show a dispute as to whether LAUSD knew or should have known of the risk of sexual abuse posed by Cabrera, and as to whether LAUSD took sufficient measures in response to this risk. Plaintiffs have thus presented a triable issue of material fact as to whether LAUSD breached its duty to protect them from the foreseeable risk of sexual abuse by Cabrera.

Accordingly, the motion is denied as to the first cause of action.

Second Cause of Action for Sexual Battery

            Plaintiffs Jane Doe CG, Jane Doe CR, and Jane Doe CE allege a second cause of action against LAUSD for Sexual Battery. (FAC ¶¶ 103-105.) Plaintiffs allege that LAUSD “did ratify and authorize [Cabrera’s] sexual abuse of Plaintiffs. Defendants did this by failing to discharge, dismiss, suspend, or investigate the complaint(s) made that [Cabrera] did sexually abuse Plaintiffs and other children.” (FAC ¶ 105.)

            LAUSD argues that there is no statutory basis for holding a public entity liable on a ratification or authorization theory. (See Gov. Code § 815.) Plaintiffs have not presented any argument in support of this cause of action. Accordingly, summary adjudication is granted as to the second cause of action in favor of LAUSD.