Judge Kerry Bensinger, Case Number: 22STCV38760, Date: 2025-01-13 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

This is a childhood sexual abuse case. On December 13, 2022, Plaintiff, E.H., initiated this action for sexual assaults that occurred in 1958 and 1967.

On May 9, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants, Los Angeles Unified School District (as Doe 1), Compton Unified School District (as Doe 2), and Does 3 through 25, alleging causes of actions for (1) Negligence (Does 1 and 2), (2) Negligence (Does 3 through 25), (3) Negligent Hiring, Retention, and Supervision (Does 1 and 2), and (4) Negligent Hiring, Retention, and Supervision (against Does 3 through 25).

In relevant part, the SAC alleges that Plaintiff was sexually abused by Sterling George Dyer (“Dyer”) and Mr. McCalvary. Dyer was an employee of the Los Angeles Unified School District (“LAUSD”). Mr. McCalvary was an employee of the Compton Unified School District (“CUSD”). At the time of the alleged assaults, Plaintiff was seven years old and sixteen years old. The SAC further alleges that LAUSD had notice of Dyer’s misconduct and that CUSD had notice of Mr. McCalvary’s misconduct.

On November 22, 2023, LAUSD filed this Motion for Summary Judgment or in the Alternative Summary Adjudication as to the First and Third Causes of Action.

On July 1, 2024, Plaintiff filed an opposition. Plaintiff alternatively requested a continuance of the hearing to allow Plaintiff to obtain discovery relevant to oppose the motion.

The motion was heard on September 13, 2024. In advance of the hearing the court issued a tentative ruling indicating there were triable issues as to whether LAUSD knew or should have known about Dyer’s propensity to sexually assault a student and rejecting LAUSD’s due process challenge. Nonetheless, the court continued the hearing on the motion pursuant to Plaintiff’s request to complete discovery. The court set a schedule for supplemental briefing.

On December 17, 2024, Plaintiff filed a supplemental brief in support of her opposition. In the brief, Plaintiff indicates that she has no additional facts to supplement her opposition and further points out that LAUSD has not filed a supplemental brief, which was due on December 3, 2024.

Given LAUSD’s failure to submit supplemental briefing in support of its motion and the court’s previous inclination to deny LAUSD’s motion, the court now rules as follows.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿¿A motion for summary judgment must 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 Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).)¿ A defendant seeking 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿¿

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on 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 the cause of action.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?”¿ (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

LAUSD’s unopposed request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (c), (h).)

For purposes of this motion, LAUSD does not dispute that Dyer sexually assaulted Plaintiff. There are two issues to be decided: (1) whether LAUSD knew or should have known about Dyer’s propensity to sexually assault a student, and (2) whether AB 218, the statute authorizing Plaintiff’s causes of action, violates due process. For the reasons stated below, the court will continue the hearing to allow Plaintiff to complete discovery.

Based on the argument and evidence presented, Plaintiff argues LAUSD is vicariously liable for Dyer’s conduct because the school district knew Dyer was dangerous. Plaintiff rests this argument, in part, on the basis that another student—Carol Lanehart-King—was sexually assaulted then raped by Dyer in mid to late April of 1968, (Lanehart-King Depo., pp. 47:15-18, 51:10-22, 53:22-54:19.), and Ms. Lanehart-King reported the incident to then-principal William Settles on the same day. (Lanehart-King Depo., 59:1-2; 59:13-19; 60:14-16; 60:24-61:6; 62:16-25.)[i]

Plaintiff attended Jordan High School (Jordan H.S.) from January 30, 1968 to May 16, 1968. This three-and-a-half month time period is not in dispute. At her deposition, Plaintiff testified Dyer assaulted her “[p]robably a couple months” after starting at Jordan High School. (E.H. Depo., p. 74:5-8.) When asked how long she stayed at Jordan after Dyer attacked her, Plaintiff stated, “Maybe two or three months, maybe, until that semester. I don't know how close it was from the second, you know, semester that it stops. But -- I don't know how the quarters went, you -- you know.” (E.H. Depo., p. 96:5-11.)

LAUSD argues a fair reading of Plaintiff’s deposition answers places Dyer’s attack in mid-March of 1968. Based on this timeframe, LAUSD further argues LAUSD did not know of Dyer’s propensity to sexually assault students because Ms. Lanehart-King reported being raped by Dyer in mid to late April of 1968; after Plaintiff’s encounter with Dyer in mid-March.

In opposition, Plaintiff submits her declaration wherein she states that after considering her school records, which she did not have access to prior to her deposition, she places Dyer’s assault in early-to-mid May of 1968. (E.H. Decl., ¶ 8.) Plaintiff attributes this clarity to having recently reviewed her student record for the first time which refreshed her recollection. (E.H. Decl., ¶¶ 6-9.)

In reply, LAUSD invokes the rule set forth in D’Amico v. Board of Medical Examiners (1974) 1 Cal.3d 1 (D’Amico) which provides a declarant cannot establish a triable issue of fact by contradicting a clear and unequivocal admission made in discovery via a later declaration, absent a reasonable explanation for the discrepancy.

The court in Scalf v. D.B. log Homes, Inc., supra, 128 Cal.App.4th 1510, discussed D’Amico and its application. The Appellate Court wrote, “In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (D'Amico), the California Supreme Court noted that admissions of a party obtained through discovery receive an unusual deference in summary judgment proceedings, and, absent a credible explanation, prevail over that party's later inconsistent declarations. (Citation omitted.) However, later cases have cautioned that D'Amico should not be read “as saying that admissions should be shielded from careful examination in light of the entire record.” (Scalf, at p. 1514.) The Scalf Court went on to observe that “[w]hile the D'Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party's answers or otherwise demonstrates there are genuine issues of factual dispute.” (Scalf, supra, 128 Cal.App.4th at pp. 1524–1525.)

In Tiffany Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547–548, the Court of Appeal wrote:

“The sham declaration doctrine comes into play when a plaintiff makes a clear and unequivocal admission in a deposition but, in a later declaration, contradicts that admission. In this situation, the declaration's previously contradicted assertion alone cannot establish a triable issue of fact. (Citation omitted.) This conclusion, however, follows only if there is no credible explanation for the supposed inconsistency. (Citation omitted.) The doctrine does not apply when a reasonable explanation resolves the supposed discrepancy.

The doctrine against sham declarations requires courts to consider the directness of the asserted contradiction and the plausibility of harmonizing explanations. We look to the entire record when determining whether to disregard contradictory testimony. (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 144–146, 166 Cal.Rptr.3d 852 [the question is not whether a declaration is inconsistent with earlier responses but whether in light of all of the evidence a reasonable trier could conclude the earlier responses were a mistake and declaration statements were credible].) The relevant evidence can include a party's explanation for contradictory testimony. (Ibid.)”

The court has reviewed Plaintiff’s deposition testimony and later declaration. In this context, D’Amico does not apply to bar the admission of Plaintiff’s declaration. Plaintiff’s testimony was not clear and unequivocal. Plaintiff indicated Dyer’s attack occurred “[p]robably a couple months” or “some months” after starting at Jordan H.S. (E.H. Depo., p. 74:5-10.) After the attack, Plaintiff indicated staying “[m]aybe two or three months, maybe, until that semester. I don’t know how close it was from the second, you know, semester that it stops. But -- I don’t know how the quarters when, you -- you know.” (E.H. Depo., p. 96:6-11.)

Moreover, her explanation for the discrepancy is reasonable. Plaintiff states she wrote her declaration after she refreshed her recollection with her student records.[1] Plaintiff now recalls her attendance at Jordan H.S. spanned little more than three months. Accordingly, Plaintiff was mistaken about one of the following: (1) the incident occurring two months after starting Jordan H.S. or (2) leaving Jordan H.S. two or three months after the incident occurred. Given the fifty-plus years that have passed since the underlying event, the vagaries of her deposition testimony are understandable. In light of all the evidence, a trier of fact could conclude that her earlier responses (deposition responses) were a mistake and her declaration statements are credible.

The court briefly addresses LAUSD’s due process argument. To summarize, Plaintiff brings this action pursuant to Code of Civil Procedure section 340.1. Under that statutory provision, an action for childhood sexual assault must be filed within three years of the event. The incident here occurred in 1968. Normally, Plaintiff’s claim would be time-barred. However, in 2019, the California Legislature passed AB 218 which achieved at least two things: (1) retroactively eliminate the claim-presentation requirement for childhood sexual assault claims and (2) opening a three-year window extending the statute of limitations from the date AB 218 became effective.

The First District Court of Appeal recently issued an opinion which forecloses LAUSD’s argument. In West Contra Costa Unified School District v. Superior Court of Contra Costa County (2024) 103 Cal.App.5th 1243, 323 Cal. Rptr. 3d 904, 926, a childhood sexual abuse case, the defendant school district raised the same due process argument LAUSD advances here. In no uncertain terms, the Court of Appeal stated, “The District lacks standing to challenge AB 218 on [due process] grounds.” The same reasoning applies here.

Based on the foregoing, the Motion for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.

Kerry Bensinger

Judge of the Superior Court

[1] LAUSD disputes Plaintiff’s representation that LAUSD did not provide her student record until March of 2024. LAUSD provides proof of service of the student record in October of 2023. Nevertheless, it is undisputed Plaintiff did not review her student record until March of 2024.

[i] The court previously noted that the Declaration of Carol Lanehart-King referenced exhibits which were not attached to her declaration. The exhibits were yearbooks wherein Ms. Lanehart-King attested to her ability to accurately identify to whom she reported Dyer’s sexual assault against her. The court directed Plaintiff to submit an amended declaration which included the missing exhibits, or if submitted elsewhere, to apprise the court where the exhibits may be found. Plaintiff did neither. However, given that LAUSD does not challenge the accuracy of Ms. Lanehart-King’s identification, the court will deny LAUSD’s motion. The court cautions Plaintiff to comply with the court’s order. Failure to do so will result in sanctions.