Judge: Joel L. Lofton, Case: 19GDCV00437, Date: 2022-07-28 Tentative Ruling

Case Number: 19GDCV00437    Hearing Date: July 28, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     July 28, 2022                                      TRIAL DATE:  October 18, 2022

CASE:                         LYNNEL DAVIS, an individual; REID DAVIS, an individual; PEYTON DAVIS, an individual and a minor, through his Guardian ad Litem, LYNELL DAVIS, v. MONROVIA UNIFIED SCHOOL DISTRICT, a California public entity; KIRK MCGINNIS, an individual; FELICIA LIMBRICK, an individual; CHARLES POOVAKAN, an individual; and DOES 1 through 50.

CASE NO.:                 19GDCV00437

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:              Monrovia Unified School District, a California public entity

RESPONDING PARTY:     No response filed

SERVICE:                            Filed May 11, 2022

RELIEF REQUESTED

            MUSD moves for summary judgment as to the entirety of the remainder of the First Amended Complaint.

BACKGROUND

            This case arises out of a threatened school shooting from a Google Classroom account assigned to Plaintiff Peyton Davis (“Peyton”). An expulsion proceeding was commenced where the Monrovia Unified School District Board ultimately voted not to expel Peyton.

            Plaintiffs Lynnel Davis (“Lynnel”), Reid Davis (“Reid”), and Peyton Davis  (“Peyton”) (collectively “Plaintiffs”) filed a first amended complaint (“FAC”) on July 27, 2020, alleging five causes of action for (1) failure to discharge mandatory duties, (2) negligent hiring and supervision, (3) deprivation of civil due process and equal protection rights, (4) negligence, and (5) negligence per se against Defendants Monrovia Unified School District (“MUSD”), Kirk McGinnis (“McGinnis”), Felicia Limbrick (“Limbrick”) and Charles Poovakan (“Poovakan”).

            MUSD provides that at a hearing on October 16, 2020, Plaintiffs’ counsel agreed to dismiss the first, second, and fifth cause of action on the record. The minute order for the hearing supports MUSD’s contention because Plaintiff’s counsel stated he was willing to strike the portions of the complaint related to the demurrer.

TENTATIVE RULING

            MUSD’s motion for summary judgment is GRANTED.

LEGAL STANDARD

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) 

“A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

DISCUSSION

            Factual Background

            On March 2, 2018, a message which read “im ganna shoot up the school” was posted on Peyton’s Google Classroom account. (SSUF No. 1.) Rebecca Rousseau (“Rousseau”), an English teacher at Monrovia High School, was informed about the post by a student at or shortly before 10:00 a.m. (SSUF No. 2.) Rousseau reported the post to Felicia Limbrick (“Limbrick”), an assistant principal at Monrovia High School, who reported a school-shooting threat to the Monrovia Police Department. (Limbrick Decl. ¶¶ 6-7.)

            At approximately 9:45 a.m., Peyton was attending a physical education class. (Hare Decl. ¶ 5.) At approximately 9:45 a.m., Randy Hare, Peyton’s physical education teacher, observed Peyton using his cell phone during class. (Id. ¶ 6.) After the post was reported, Peyton was brought to Kirk McGinnis’s, the Monrovia High School Principal, office where school security conducted a pat down search. (McGinnis Decl. ¶¶ 3 and 7.) No weapons were found. (Id. ¶ 7.) Peyton denied posting the threat. (Id. ¶ 8.) McGinnis directed Limbrick to prepare a Notice of Suspension for Peyton. McGinnis made a written recommendation to expel Peyton. (Id. ¶ 14.) Peyton’s suspension was extended pending the results of the expulsion proceedings. (Cheung Decl. ¶ 4, Exhibit 2, attached Exhibit C.)

            Lisa Minami-Lin (“Minami-Lin”), the Director of Student Support Services, provides that after MUSD receives a recommendation for expulsion, a pre-expulsion meeting is held between Minami-Lin, a school administrator, and the student and/or his or her parents to discuss the student’s due process rights and to determine whether the student’s presence at the school would create a dangerous or disruptive situation. (Minami-Lin Decl. ¶ 6.) After that, an administrative hearing is held where a panel of three administrators considers the evidence presented. (Ibid.) The panel can choose to not recommend expulsion, which would result in the student being reinstated. (Ibid.) The panel can also choose to recommend expulsion, which in turn sends the issue to the MUSD Board of Education (“Board”). (Ibid.) The Board makes the final decision on expulsion. (Ibid.)

            An administrative hearing was scheduled for March 22, 2018. (Minami-Lin Decl. ¶ 10.) Plaintiffs were provided an expulsion packet related to Peyton. (Id. ¶ 12.) After two continuances requested by Plaintiffs’ counsel, the hearing was held on May 16, 2018, where Peyton was represented by counsel and afforded the opportunity to present witness testimony and cross-examine MUSD’s witnesses. (Id. ¶ 15.) The administrative panel recommended expulsion for Peyton. (Id. ¶ 16.) On May 23, 2018, the Board conducted an expulsion hearing and voted to reject the panel’s recommendation. (Id. ¶ 17.) Peyton was granted immediate reinstatement. (Id. ¶ 17.)

            Third Cause of Action for Deprivation of Due Process and Equal Protection

            Plaintiffs’ third cause of action alleges a claim for the deprivation of civil due process and equal protection, brought under 42 U.S.C. § 1983. Plaintiffs allege that MUSD and its employees acted to deprive Peyton of his protections under article I, section 7 of the California Constitution. Specifically, Plaintiffs allege that Defendants failed to properly inform Plaintiffs of their rights and failed to allow Peyton to review declarations submitted by the students and confront them as witnesses. (FAC ¶¶ 134 and 135.) Plaintiffs allege that MUSD failed to set forth “substantial evidence”. Plaintiffs allege that Peyton did not receive a fair hearing and Defendants failed to investigate. (FAC ¶ 139.)

            During the events alleged in the FAC, Peyton faced two disciplinary actions, a suspension that was extended pending the Board’s decision on the recommendation to expel Peyton, and the procedures of the expulsion proceeding.

            Due Process Prior to Suspension

            In Granowitz v. Redlands Unified School Dist. (2003) 105 Cal.App.4th 349, 355-56, the Court noted that case law provides that “an informal meeting between the school official and a student or between the official and a student and his parents has been held to comport with due process.” Here, Plaintiffs met with Minami-Lin on March 8, 2018, where Minami-Lin informed Plaintiffs of their due process rights and discussed the underlying accusation. (Minami-Lin Decl. ¶ 9.) MUSD has established it did not violate Peyton’s due process rights prior to his suspension.

            The next issue complained of in the FAC is that the written notice of suspension sent to Plaintiff dated March 8, 2018, failed to provide the necessary information. (FAC ¶ 134.) However, on March 19, 2018, MUSD provided Plaintiffs with an expulsion packet. (SSUF No. 10.) Although the contents of the packet is not attached to the present motion, the contents are before the court as attached to MUSD’s evidence in support of its Anti-SLAPP motion. Attached to the motion is the expulsion packet, which contains the notices of the meetings, an incident report, statements from staff and students, Peyton’s due process rights, and other information related to Peyton. (Minami-Lin Anti-SLAPP Decl. ¶ 12, Exhibit D.) MUSD has therefore established it provided Plaintiffs with the necessary information to apprise Peyton of the charges against him and his rights prior to the expulsion hearings.

            Due Process at the Hearings

            Plaintiffs also allege that MUSD violated Education Code section 48918 by failing to permit Peyton to review all documents and to confront and question all witnesses. (FAC ¶ 135.) It appears that Plaintiffs’ primary assertion is that MUSD violated Peyton’s due process rights by failing to call the students who submitted a sworn declaration statement. MUSD provides that the students who provided sworn declarations did not testify because they did not want to participate. (Minami-Lin Decl. ¶ 15.)

            MUSD asserts that provisions of Education Code section 48918 (“section 48918”) support a finding that it did not violate Peyton’s due process rights.

            Section 48918, subdivision (f)(2), provides in pertinent part: “The governing board of the school district or the hearing officer or administrative panel may, upon a finding that good cause exists, determine that the disclosure of either the identity of a witness or the testimony of that witness at the hearing, or both, would subject the witness to an unreasonable risk of psychological or physical harm. Upon this determination, the testimony of the witness may be presented at the hearing in the form of sworn declarations that shall be examined only by the governing board of the school district or the hearing officer or administrative panel. Copies of these sworn declarations, edited to delete the name and identity of the witness, shall be made available to the pupil.”

            Additionally, section 48918, subdivision (i)(3), provides: “If the governing board of the school district, hearing officer, or administrative panel determines, in accordance with subdivision (f), that a percipient witness would be subject to an unreasonable risk of harm by testifying at the hearing, a subpoena shall not be issued to compel the personal attendance of that witness at the hearing. However, that witness may be compelled to testify by means of a sworn declaration as provided for in subdivision (f).”

            In Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 439, the Court held that section 48918 creates a governing board the discretionary, rather than mandatory, authority to issue subpoenas for percipient witnesses at the hearing.  

            Section 48918 lays out separate levels of protection for percipient witnesses who may testify at a hearing. Further, the decision in Woodbury establishes that a governing board is not necessarily mandated to subpoena all witnesses requested. Plaintiffs’ primary contention appears to be that the students who provided a sworn declaration did not testify at the hearing. However, that is not mandated by section 48918. Plaintiffs were provided all documents to be used at the hearing in the expulsion packet. (SSUF No. 10.) Further, Peyton was represented by counsel, was able to cross-examine MUSD’s witnesses, and was able to present witnesses, both lay and expert. (SSUF No. 15-16.)

            MUSD has established that it did not violate Peyton’s due process rights by not subpoenaing the students who provided a sworn declaration.

            Substantial Evidence

            Plaintiffs contend that MUSD violated Peyton’s due process rights by failing to set for “substantial evidence” in violation of section 48918. Section 48918 contains two references to “substantial evidence”. Section 48918, subdivision (f)(2), provides in relevant part that “[t]he decision of the governing board of the school district to expel a pupil shall be based upon substantial evidence relevant to the charges adduced at the expulsion hearing or hearings. Section 48918, subdivision (h)(1), provides that “[a] decision of the governing board of the school district to expel shall be supported by substantial evidence showing that the pupil committed any of the acts enumerated in Section 48900.”

            Both references to “substantial evidence” in section 48918 pertain to a governing board’s decision to expel a student. Here, the Board rejected the administrative panel’s recommendation to expel Peyton and reinstated Peyton. (SSUF No. 19.) Thus, MUSD has established that it did not violate Peyton’s due process rights by failing to provide “substantial evidence” because Peyton was not expelled.

            Fair Hearing and MUSD’s Investigation

            Plaintiffs’ lastly allege that Peyton was not provided a fair hearing and MUSD failed to investigate.

            As previously stated, Plaintiffs were able to review the documents to be used at the hearing prior to the hearing, were represented by counsel, were able present witnesses on Peyton’s behalf, and were able to cross-examine MUSD’s witnesses. MUSD has established Peyton was provided with a fair hearing.

            Although Plaintiffs allege that MUSD failed to investigate to incident, the declarations submitted by MUSD demonstrate otherwise. McGinnis investigated on the day of the incident. (McGinnis Decl. ¶¶ 8-12.) Limbrick investigated after the incident by obtaining sworn statements from other students. (Limbrick Decl. ¶¶ 14-19.) The information obtained was then sent to Minami-Lin, who shared the documents and information with Plaintiffs. (Minami-Lin Decl. ¶¶ 8-9.) Thus, MUSD has established that it did investigate, and therefore did not violate Peyton’s due process rights in that regard.

            MUSD has met its burden of showing that Plaintiffs cannot establish that it violated Peyton’s due process rights. Plaintiffs have submitted no opposition or evidence in opposition and have therefore failed to meet their burden of raising a triable issue of material fact.

            Fourth Cause of Action for Negligence

            MUSD also moves for summary judgment as to Plaintiffs’ claim for negligence.

            “The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)

            Duty of Care and Breach

            The FAC alleges that MUSD owed Peyton a duty of care because it provided Peyton with a Google Chromebook and Google software to be used for schoolwork. (FAC ¶ 155.) Plaintiffs assert that MUSD assigned Peyton a password that could not be changed. (Ibid.) MUSD argues that it owed Peyton no duty of care in protecting Peyton’s password and that it did not breach that duty.

“A duty of care exists when one person has a legal obligation to prevent harm to another person, such that breach of that obligation can give rise to liability.” (Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 924.) “Duty, being a question of law, is particularly amendable to resolution by summary judgment.” (Regents of University of Southern California v. Superior Court (2018) 4 Cal.5th 607, 618.)

Whether a duty of case exists is determined through the “balancing of various factors, including ‘ “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” ’ [citation.]” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272.) “The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.)

 “[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.’ [Citation.] Viewed in this light, the question of foreseeability in a ‘duty’ context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]” ’ ” (Laabs v. Southern California Edison Co., supra, 175 Cal.App.4th at p. 1273.)

            MUSD provided Peyton, as well as other students, a laptop with the associated program, Google Classroom, for teachers and students to share assignments and communicate online. (SSUF No. 22.) MUSD assigned students with a username and password. (SSUF No. 23.) The username consists of the student’s assigned e-mail based on the student’s first initial, last name, and last four digits of their I.D. number. (SSUF No. 24.) The student’s password was the student’s fill I.D. number followed by the student’s initials. (SSUF No. 25.)

            Here, the various factors militate in favor of finding that MUSD had a duty. In this case, the foreseeability of harm, when evaluated generally, illustrates the potential dangers of improper access to a student’s account. MUSD’s system of assigned usernames and passwords is, in part, set up to be able to identify each student with their unique account but also to allow MUSD students to be able to safely access their own accounts. Further, because MUSD is providing the physical hardware, software, and login credentials, there is foreseeability of harm for each student if MUSD fails to set up a system that adequately protects the students’ confidentiality and security. Thus, MUSD owed Peyton a duty to create a secure way of logging in to his school-provided laptop and account.

            The next issue, then, is whether MUSD breached that duty. Based on the facts before this Court, MUSD did not breach its duty. MUSD did not publicly display Peyton’s name and ID number together. (SSUF No. 27.) Additionally, students had the ability to change their passwords. (SSUF No. 26.) MUSD also created a basic system to allow students individual access to their accounts. (SSUF No. 24 and 25.) Lastly, the evidence shows that Peyton was seen using his phone at or near the time that the post was allegedly made (SSUF No. 4), supporting MUSD’s position that it did not breach its duty to protect Peyton’s account security. MUSD has thus met its burden of showing that Plaintiffs cannot establish it breached its duty.

            Further, because Plaintiffs have not submitted an opposition or evidence in opposition to MUSD’s motion, Plaintiffs have failed to raise a triable issue of material fact.

CONCLUSION

            MUSD’s motion for summary judgment is granted.  Moving party to give notice.

Dated:   July 28, 2022                                     ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.