Judge Kerry Bensinger, Case Number: 23STCV20613, Date: 2025-05-09 Tentative Ruling

MOTION FOR SUMMARY ADJUDICATION ON THE AFFIRMATIVE DEFENSES OF IMMUNITY PURSUANT TO CAL. ED. CODE §§ 44808 AND 35330(d)

This is a childhood sexual abuse case. Plaintiff John M.E.L. Doe (“Plaintiff”) was a student at Hamilton High School (“Hamilton”) from 1998 to 2002. During that time, Plaintiff alleges that Vance Miller (“Miller”), Plaintiff’s teacher at Hamilton and employee of defendant Los Angeles Unified School District (“LAUSD”), groomed and sexually abused Plaintiff. The alleged abuse took place on the Hamilton campus, at a local gym, and in Miller’s home.

On August 28, 2023, Plaintiff commenced this action against LAUSD. On February 6, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of actions for (1) Negligence and (2) Negligent Failure to Warn, Train, or Educate.

On June 4, 2024, LAUSD filed its First Amended Answer to the FAC which included affirmative defenses for immunity under Evidence Code sections 44808 and 35330(d).

On February 14, 2025, LAUSD filed this Motion for Summary Adjudication on the Affirmative Defenses of Immunity Pursuant to Cal. Ed. Code §§ 44808 and 35330(d).

“[A] 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 Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing no triable material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party meets this burden, the burden shifts to the opposing party to make a converse prima facie showing that a triable issue of material fact exists. (Ibid.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., 437c, subd. (f)(1).) A motion for summary adjudication proceeds in all procedural aspects as a motion for summary judgment. (Ibid.)

LAUSD submits thirteen (13) objections to Plaintiff’s evidence. The court declines to rule on LAUSD’s objections as they are not relevant to the court’s disposition of the motion.

According to the FAC, Plaintiff was abused by Miller on and off school grounds. (FAC, ¶ 4.) Miller’s off campus abuse took place at Miller’s home and at a local gym. These allegations, among others, support Plaintiff’s causes of action against LAUSD for negligence and negligent failure to warn, train, or educate.[1] (FAC, ¶¶ 11, 16.)

LAUSD seeks summary adjudication of its affirmative defense of immunity. LAUSD argues it is immune from liability for Miller’s off campus conduct pursuant to Education Code sections 44808 and 35330(d).[2] Stated another way, LAUSD’s motion seeks summary adjudication of an issue of duty: whether LAUSD owed a duty to supervise or protect Plaintiff for injuries suffered off-campus and after hours. Section 44808 is dispositive of the motion.[3] Under Section 44808, the court finds LAUSD is entitled to immunity.

Section 44808 states in pertinent part, “…no school district…shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district… has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.”

Here, for purposes of this argument, LAUSD concedes that some of the underlying allegations of sexual abuse occurred off campus and after hours. Specifically, Plaintiff alleges the off-campus abuse occurred at a local gym and at Miller’s home. (LAUSD’s Undisputed Material Facts (UMF) 3, 6, 7.) The off campus conduct by Miller involved giving intimate, full body massages to Plaintiff at Miller’s home (UMF 15; Plaintiff’s Depo., p. 75:16-76:5) and showering nude with Plaintiff at the gym (UMF 16). There is likewise no dispute the trips to the gym and Miller’s residence were not school sponsored activities. LAUSD makes a prima facie showing that there are no triable issues of material fact with respect to the application of Section 44808.

The burden shifts. Plaintiff argues the immunity under Section 44808 does not apply for two reasons: (1) by its very terms, Section 44808 immunity does not apply for off-campus injuries where a school district “has failed to exercise reasonable care under the circumstances”; and (2) a district employee (Miller) transported plaintiff from campus when the abuse occurred off-campus.

These arguments are unavailing. Plaintiff relies principally on Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal. 3d 508, 517 (Hoyem) for the proposition that simply because sexual abuse culminated off campus does not immunize LAUSD from its failure to adequately supervise and protect Plaintiff while on the Hamilton campus. As alleged, Miller also abused Plaintiff on school grounds leading to the off-campus abuse. However, Hoyem is distinguishable. In Hoyem, the student and his mother sued the school district for injuries received when the student was struck by a motorcycle off the school premises but during school hours. The court held that the district could be liable because of negligent supervision of a student on school premises by allowing the student to leave the school grounds. The court said, “Contrary to defendant’s assertion, no California decision suggests that when a school district fails to properly supervise a student on school premises, the district can automatically escape liability simply because the student's ultimate injury occurs off school property.” (Id. at p. 516.) The court said that Education Code section 44808 does not limit “a school district's responsibility to supervise students during school hours on school premises.” (Id. at p. 518.)

Unlike Hoyem, Plaintiff complains of abuse that occurred off school premises and after school hours. LAUSD cites LeRoy v. Yarboi (2021) 71 Cal.App.5th 737 (LeRoy), which is on point. Rather than repeat the analysis, the court quotes extensively from LeRoy:

“Respondents contend that even if they breached a duty they owed to Kennedy and their breach proximately caused Kennedy's injuries, they are immune from liability under section 44808. We agree.

Section 44808 provides in full: Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. [¶] In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.

The LeRoys argue Respondents are not immune under section 44808 because they failed to exercise reasonable care under the circumstances. (§ 44808.) To support their argument, the LeRoys rely primarily on Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851 (Hoyem). There, our Supreme Court held that a school district was not immune from liability under section 44808 for the injuries a student sustained when he was hit by a motorcycle after leaving the school's premises without permission. (Hoyem, supra, at p. 512, 150 Cal.Rptr. 1, 585 P.2d 851.) The LeRoys argue that Respondents are liable for Kennedy's death under Hoyem because their negligent failure to protect him from bullying on campus led to his suicide.

We acknowledge that some language from Hoyem suggests that school districts and their employees may be liable for injuries a student suffers off-campus and after school. (See Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 872, 44 Cal.Rptr.3d 827.) But section 44808 has been interpreted as imposing liability on schools districts for a student's off-campus injury only when the student is involved in activities supervised or undertaken by the school. (Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 190, 129 Cal.Rptr.2d 128.)

We agree with the great weight of authority that section 44808 grants a district [and its employees] immunity [for a student's injuries] unless [the] student was (or should have been) directly supervised during a specified undertaking. [Citation.] (Mosley v. San Bernardino City Unified School Dist., supra, 134 Cal.App.4th at p. 1265, 36 Cal.Rptr.3d 724; accord, Guerrero v. South Bay Union School Dist., supra, 114 Cal.App.4th at pp. 271-272, 7 Cal.Rptr.3d 509.) We in turn agree that [t]he portion of section 44808 that refers to failing to exercise reasonable care’ that the LeRoys rely on does not create a common law form of general negligence; it refers to the failure to exercise reasonable care during one of the [three] mentioned undertakings in section 44808. (Bassett v. Lakeside Inn, Inc., supra, 140 Cal.App.4th at p. 871; see Cerna, supra, 161 Cal.App.4th at pp. 1356–1357.)

Kennedy committed suicide off-campus during summer break in the LeRoys' home while he was not and should not have been supervised by Respondents or any other Ayala employee. At the time, no one at Ayala had assumed responsibility for his well-being. Under these tragic circumstances, Respondents are immune from liability for Kennedy's death under section 44808, even if they breached a duty they owed him.”

Here, like in LeRoy, the abuse was committed off campus while Plaintiff was not and should not have been supervised by LAUSD. At no time did LAUSD assume responsibility for Plaintiff’s well-being. As the LeRoy court recognized, LAUSD is immune from liability for Plaintiff’s off-campus, unsupervised harm.

Nor can Plaintiff rely on Miller’s physical transportation of Plaintiff to invoke an exception to Section 44808 immunity. “[N]o school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises.” (§ 44808.) Plaintiff argues that being a passenger in Miller’s car constitutes a specific undertaking. But, as LeRoy noted, “the consensus of decisions from the Court of Appeal is that section 44808 limits the liability of schools for after-hours, off-campus activity, absent a specific undertaking by the school during which a student is injured.” (LeRoy, at p. 743, citing Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1356, 75 Cal.Rptr.3d 168 (Cerna).) More to the point, an exception to Section 44808 immunity requires “a specific undertaking by the school district and direct supervision by a district employee.” (Cerna, 161 Cal.App.4th at p. 1357, emphasis added.)

Here, LAUSD did not make a specific undertaking to supervise or otherwise provide transportation for Plaintiff off campus and after school hours. LAUSD is immune from liability for Miller’s off-campus and after hours conduct pursuant to Section 44808.[4] Therefore, LAUSD establishes it did not owe a duty to protect Plaintiff for injuries which occurred off campus and after school hours. (Code Civ. Proc., 437c, subd. (f)(1).)

Based on the foregoing, the motion for summary adjudication is GRANTED. LAUSD did not owe Plaintiff a duty to protect him from conduct that took place off-campus and after school hours.

Kerry Bensinger

Judge of the Superior Court

[1] As alleged, the statutory basis for liability against LAUSD is Government Code sections 815.2 and 815.6, Education Code section 44807, and California Code of Regulations Title 5, Section 5552. (FAC, ¶¶ 12, 15, 22.)

[2] All statutory references hereinafter are to the Education Code unless otherwise specified.

[3] LAUSD appears to abandon its immunity defense under Section 35330(d). To the extent LAUSD intends to press its immunity under Section 35330(d), the court rejects that argument for the reasons stated in Plaintiff’s opposition. (See Opp., pp. 13:1-14:3.)

[4] LeRoy sets forth the principle establishing LAUSD’s immunity under Section 44808. The court finds that principle, as applied in LeRoy, is on all fours with this case. LeRoy is binding on this court.