Judge Lee S. Arian, Case Number: 20STCV22477, Date: 2023-11-22 Tentative Ruling

On June 15, 2020, Plaintiff Beverly Morimoto (“Beverly”), individually and as Guardian Ad Litem for Isabella Morimoto, (“Isabella” or “Plaintiff”), filed an action against Karla Pacheco, individually and as parent of Angelina Diodata (“Angelina”), Michael Silva, individually and as parent of Natalie Silva (“Natalie”), Covina-Valley Unified School District (“District”), Traweek Middle School, and Does 1-50. The complaint asserts causes of action for: (1) battery; (2) assault; (3) vicarious liability for personal injuries based on willful misconduct of a minor; (4) negligent supervision of a minor; (5) negligent supervision pursuant to Government Code section 815.2. Plaintiff alleges that she was attacked by other school students Angelina and Natalie off campus.

On November 14, 2022, District filed a motion for summary judgment. On December 23, 2022, District filed an Ex Parte Application to advance the hearing date on the District’s motion for summary judgment or in the alternative, to continue trial. On January 3, 2023, the Court granted District’s Ex Parte Application to Continue trial, but the District’s motion for summary judgment hearing date remained set for November 22, 2023. (Notice of ruling 01/03/2023.)

District requests the Court to take judicial notice that Traweek Middle School is a public school operated by Covina-Valley Unified School District, which is itself a public entity.

Defendant’s request for judicial notice of Traweek Middle School is granted pursuant to Evidence Code § 452.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party is able to 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.) CCP Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.

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 that cause of action or a defense. 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.) 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.)

District moves for summary judgment, or in the alternative summary adjudication, on the basis that Defendant is immune from liability pursuant to Education Code section 44808. Education Code section 44808 provides:

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.

In opposition, Plaintiff contends that there are triable issues of fact as to whether an exception to section 44808 applies. Specifically, while she agrees that the incident was not a school activity and occurred off the school property, she contends that the District failed to exercise reasonable care under the circumstances of this case.

District presents evidence that Plaintiff had been enrolled as a student at Traweek Middle School, a public school operated by the District. (Undisputed Material Facts “UMF”, No. 2-3, Defendant’s Compendium of Evidence “DCOE” Ex. 2.) On June 5, 2019, Isabella was released from school at approximately 12:18 p.m., walked across the street and left school grounds after being released from school. (Id. at 4-5.) Isabella was not engaged in any school-sponsored activity at the time of the assault. (Id. at 7.)

District has met its burden to show that it is immune under Education Code Section 44808. The burden now shifts to Plaintiff to demonstrate that there are triable issues of material fact.

Plaintiff asserts that a reasonable jury can find that the school failed to properly supervise Plaintiff while she was on campus due to the rumors of a fight planned throughout the day. Plaintiff provides the following evidence in support of her position: (1) the minors that attacked Isabella are Angelina and Natalie, who are also students at Traweek Middle School (Plaintiff’s Undisputed Material Facts “PUMF” No. 9, Ex. B, Morimoto Depo. at p. 144:8-12.); (2) Angelina fought someone on the last day of school the previous year when she was in sixth grade and attacked a classmate on the corner of Phillips and Rowland. (Id. at 13-14, Ex. B., Morimoto Depo. at p. 69:24-25; 70:1-4; 113:19-22.) (3) Isabella and Angelina were in the same physical education class on June 5, 2019. (Id. at No. 16, Ex. B, Morimoto Depo. at p. 74.) (4) the physical education teacher took roll, and Isabella saw him go into the boy’s locker room and did not see him come outside for the remainder of the class. (Id. at No. 18, Ex. B, Morimoto Depo. at p. 73:10-12.); (5) students were monitored by another PE teacher who was also looking over his own class at the time. (Id. at No. 19, Ex B. Morimoto Depo. at p. 73:13-21.); (6) Isabella did not see any staff members to tell them her fear that Angelina was going to assault her. (Id. at No. 28, Ex. B, Morimoto Depo. at p. 84-87.)

She further contends that the District failed to provide reasonable protection after school based on the following facts: (1) Isabella began to exit the school to walk towards the intersection of Phillips and Rowland because her grandfather was supposed to pick her up from there. (Id. at No. 30, Ex. B, Morimoto Depo. at p. 144-145.); (2) Isabella crossed the street and Angelina came from behind began insulting her and punched Isabella in the face. (Id. at. No. 31-32, Morimoto Depo. at pp. 145-146, 147:1-4.) (3) Isabella fell to the floor and Angelina kept hitting her and Natalie also started to hit her. (Id. at No. 33-34, Ex. B, Morimoto Depo at p. 147:1-8, 13-21.); (4) Other students also got into a fight outside of the campus on the same day. (Id. at No. 40, Ex. B, Morimoto Depo. at p. 120:11-15.) (5) after the incident, the school now has a staff member stand on the corner of the school at the intersection of Phillips and Rowland. (Id. at No. 36, Ex. B, Morimoto Depo at p. 1124:13-20.)): and (6) on prior occasions, school staff would intervene when they heard rumors of a fight and were able to stop the fight from happening. (Id. at No. 41, Ex. B, Morimoto Depo. at p. 126-127.)

The Court finds that the District has demonstrated that Section 44808 applies and that Plaintiff has failed to establish that there is a triable issue of fact regarding an exception to that section. As noted above, none of the obvious Section 44808 exceptions relating to a school-based activity apply. The only potential exception is that the District failed to exercise reasonable care under the circumstances.” But, the facts alleged to support this exception are insufficient. There is no evidence that the alleged rumors of a fight that day were shared with any school employee. Angelina’s fight with someone, not Plaintiff, the last day of school a year earlier is irrelevant and there is no evidence that the school even knew of that fight. And while the apparent failure of the P.E. teacher to provide oversight of his class is disturbing (and likely warrants investigation and potential disciplinary action against that teacher), it does not sufficiently establish a connection between that lack of supervision and the off-campus fight. Plaintiff has no evidence that she made any effort to tell any school employee that she had concerns for her safety after school. Certainly, the P.E. teacher was not the only school employee with whom Plaintiff could have spoken had she wanted to give the school an opportunity to act. Other facts to which Plaintiff points are generally not relevant (what does it matter that there was another fight that day?), but even if the Court considered the fact that the school had taken steps at other times to intervene when there were rumors of a fight, there is no evidence that the school knew of the rumors on this occasion, nor do we know specifically what the rumors were at those other times. The fact that the school took a remedial measure is not one the Court can consider under the Evidence Code for the purpose of establishing negligence. See Evidence Code § 1151.[1] All told, the facts alleged by Plaintiff would completely undermine the legislative purpose of Section 44808. Accordingly, Plaintiff has not met her burden of showing a triable issue of material fact as to whether the district breached its duty owed to the Plaintiff.

It is undisputed that Plaintiff’s mother Beverly is not a student at the school. District did not owe Beverly a duty of care. (Opposition at p. 11.) Accordingly, no triable issue of material fact exists as to Beverly.

Plaintiff fails to specify any alternative theory for which the District can be held liable. The Court is unaware of any viable theory for Plaintiff to hold the District liable in this case given the known facts

-- the incident occurred off school property, it was not school-sponsored; and Plaintiff did not make anyone aware of her safety concerns and thereby the school did not know of any threats to Plaintiff. Under these circumstances, the Court does not grant leave to amend.

Defendants’ motion for summary judgment is GRANTED as to both Plaintiff Beverly Morimoto and Plaintiff Isabella Morimoto.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that 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 matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Defendant’s objection to Plaintiff’s evidence filed in Opposition to the District’s Motion for Summary Judgment is granted on this basis.