Judge Joel R Wohlfeil, Case 37-2021-00006011-CU-PO-CTL 2023-08-11 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2021-00006011-CU-PO-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00006011-CU-PO-CTL DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/26/2023

The Motion (ROA # 72) of Plaintiff JANE DOE ('Plaintiff') for an order for summary adjudication of Plaintiff's second cause of action in her complaint for negligent hiring against Defendant Coronado Unified School District ('Defendant'), is DENIED.

Defendant's evidentiary objections (ROA # 82) are OVERRULED.

'[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' Aguilar v. Atl. Richfield Co., (2001) 25 Cal. 4th 826, 850.

'[H]ow the parties moving for, and opposing, summary judgment may each carry their burden . . .

depends on which would bear what burden of proof at trial. Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not - otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.' Id. at 851.

In this action, Plaintiff is the moving party. Therefore, 'plaintiff bears the burden of persuasion that 'each element of' the 'cause of action' in question has been 'proved,' and hence that 'there is no defense' thereto.' (Code Civ. Proc., § 437c, subd. (o)(1).). Defendant [then] bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. (Id., § 437c, subd. (o)(2)).' Aguilar, 25 Cal. 4th at 850.

Plaintiff's second cause of action for negligent hiring, supervision and retention is a negligence claim and therefore Plaintiff must show 'that the defendant owed a duty to the plaintiff, that Defendant breached that duty, and that the breach proximately caused the plaintiff's injuries.' John B. v. Superior Court (2006) 38 Cal. 4th 1177, 1188.

'California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.' Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054.

'Negligence liability will be imposed on an employer if it 'knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.'' Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th 1133, 1139 (quoting Doe v. Capital Cities (1996) 50 Cal. Calendar No.: Event ID: TENTATIVE RULINGS

2978926 1 CASE NUMBER: CASE TITLE: DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED] 37-2021-00006011-CU-PO-CTL App.4th, 1038, 1054).

1. Duty 'As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if '(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.' [Citations.]' (Davidson v. City of Westminster (1982) 32 Cal. 3d 197, 203).

'[A] special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students.' (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal. App. 3d 707, 715).

It is undisputed that Defendant is a unified school district and Plaintiff was a student at the school when the incidents took place. Therefore, a special relationship existed between Defendant and Plaintiff. This relationship established an affirmative duty on Defendant to take all reasonable steps to protect Plaintiff.

2. Breach Satisfaction of the breach element in a claim of negligent hiring, supervision and retention rest on whether the employer knew or should have known of the assaultive properties of the offender and that conduct is foreseeable. (Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1081 and 1084).

The breach occurs when this knowledge is present, and the employer takes no steps to uphold their duty by allowing the foreseeable assault to occur. (Doe v. Department of Family and Children Services (2019) 37 Cal. App. 5th 675, 682-683). See Z.V. v. County of Riverside (2015) 238 Cal. App. 4th 889, 902 [county had no prior knowledge of the social worker's propensity to sexually assault children].

'An employer, whether a public agency or private individual or corporation, shall not ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.' Labor Code 432.7(a)(1).

'The governing board of any school district may use a noncertificated temporary athletic team coach as defined in Section 5590 to supervise and instruct in interscholastic athletic programs and activities subject to the following general conditions: (a)The district shall not use any noncertificated temporary athletic team coach who has been convicted of any offense referred to in Education Code Sections 44010, 44011, or 44424 or any offense involving moral turpitude or evidencing unfitness to associate with children . . .' 5 C C R section 5592.

Plaintiff argues that Bucklew was subject to section 5592, and that his petty theft crime is a crime of moral turpitude, meaning Bucklew should never have been hired. Plaintiff further argues that the expungement of the petty theft crime is irrelevant. However, Penal Code 1203.4(a)(1) provides that once the Court agrees to dismiss the crime of which Defendant was convicted, 'the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they had been convicted.' As such, the dismissal and expungement of the petty theft crime returns Mr. Bucklew to his previous status as though he did not have this conviction.

Bucklew's 'petty' theft conviction might arguably qualify as a crime of moral turpitude, however, the Court does not need to resolve this issue. The language of regulatory section 5592 does not mandate Defendant consider expunged criminal records, rather it is silent. Thus, section 432.7's prohibition on considering expunged criminal records applies, as none of the exceptions are specific to section 5592.

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2978926 1 CASE NUMBER: CASE TITLE: DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED] 37-2021-00006011-CU-PO-CTL Plaintiff alleges Defendant knew or should have known that Bucklew was unfit to perform the work of a girls high school basketball coach and that this unfitness created a particular risk to the Plaintiff and other students. (Compl. ¶ 53). Defendant argues it had no prior knowledge of Bucklew's sexually assaultive propensities, and therefore the incident with Plaintiff was not reasonably foreseeable.

Regardless of whether Defendant was negligent in hiring Bucklew, foreseeability is an element and a disputed material question of fact, not a question of law.

Furthermore, even if Bucklew's prior expunged crime had been considered by Defendant, it is a crime of petty theft, not of sexual assault. There is no undisputed fact presented to the Court that Defendant had any knowledge Bucklew would sexually assault anyone. Therefore, it is disputed whether the assault was not foreseeable and is not a breach of the duty of care.

3. Causation and 4. Damages 'If the first two elements . . . are satisfied, 'the next question is whether the breach ... was a proximate cause of the plaintiff's injury.' We have recognized that proximate cause has two aspects. 'One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.' This is sometimes referred to as 'but for' causation.' State Dep't of State Hosps. v. Superior Court (2015) 61 Cal. 4th 339, 352, 353.

The second aspect of proximate cause focuses on public policy considerations. 'Because the purported causes of an event may be traced back to the dawn of humanity, the law has imposed additional 'limitations on liability other than simple causality.' (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal. 4th 310, 315, 316).

'These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.' (Id. at p. 316) Thus, 'proximate cause 'is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct.' ' (Ibid., quoting Mosley v. Arden Farms Co. (1945) 26 Cal. 2d 213, 221, 157 P.2d 372 (conc. opn. of Traynor, J.).)' Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal. 4th 1037, 1045.

Assuming the first two elements are satisfied in order to analyze causation and damages, it is undisputed that Plaintiff suffered damages as a result of being sexually battered and assaulted by Bucklew.

As to the first aspect of causation, cause in fact, it seems that 'but for' Defendant hiring Bucklew as a basketball coach, Plaintiff would not have been sexually assaulted by him. However, it is disputed whether the second aspect of proximate cause requires a degree of connection not present in this action. Even if Defendant breached its duty by hiring Bucklew, nonetheless, it is disputed whether Defendant knew that Bucklew was a foreseeable risk to students. Petty theft and sexual assault are not closely related enough to render this incident foreseeable. Here, proximate causation is a materially disputed issue that raises a question of fact.

Conclusion There is a dispute as to whether the hiring of Bucklew complied with all applicable rules and whether hiring Bucklew was a breach of Defendant's special relationship duty to Plaintiff. Furthermore, the causation element in this action is disputed and therefore raises a question of fact for a jury to decide.

Thus, Plaintiff's Motion for summary adjudication as to the cause of action for negligent hiring, supervision, and retention against Defendant is denied.

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