Judge: Lee W. Tsao, Case: 19STCV32148, Date: 2023-09-28 Tentative Ruling
Case Number: 19STCV32148 Hearing Date: September 28, 2023 Dept: C
I.H. v. SALCEDO
CASE NO.: 19STCV32148
HEARING: 09/28/23
#9
Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT; LESLIE
SALCEDO; NANCY GARCIA; JOSE LUIS GONZALEZ; CHRISTINE BERNI-RAMOS; and SAUL
RIVERA’s Motion for Summary Judgment is DENIED. The Alternative Motion
for Summary Adjudication is DENIED in part and GRANTED in part.
Opposing Party to give notice.
This personal injury action was filed by Plaintiff I.H, a
minor, by and through his GAL, Nancy Castellanos (“Plaintiff”) on September 11,
2019. On June 10, 2021, the operative Second Amended Complaint (“SAC”) was
filed.
The SAC alleges that “[d]uring the fourth period gym class
on March 20, 2019, Plaintiff was seated on the middle row of the bleachers
inside of the gymnasium, observing other students participate in physical
activities. Minor students A.A. and I.C. were seated directly behind
Plaintiff.” (SAC ¶42.) “Minor students A.A. and I.C. sat behind Plaintiff for
the apparent purpose of bullying Plaintiff for their own amusement…. A.A. and
I.C. talked openly about egging Plaintiff’s home once they determined its location
with the intent of intimidating and harassing Plaintiff…. Plaintiff tried his
best to ignore them until gym class ended.’ (SAC ¶43.) “One of the minor
students began punching Plaintiff on the back of his head, neck, and shoulders
while the others grabbed Palintiff to prevent him from turning around or
otherwise leaving the area of the bleachers directly in front of the minor
students. This type of violent behavior should have been noticed by the
defendant instructors who were charged with the supervision of the gymnasium….”
(SAC ¶46.) “During the struggle, Plaintiff felt the other students pull his
pants down. [¶] Plaintiff then felt one of the students – who Plaintiff
understands to be A.A. – use their fingers to digitally penetrate Plaintiff’s
anus. Based on the physical sensation, Plaintiff understands and asserts… that
minor student A.A. repeatedly penetrated Plaintiff’s anus with approximately
2-3 fingers for several minutes, while Plaintiff struggled to no avail against
the students who held him and beat him during the assault.” (SAC ¶¶49-50.) “At no point did Defendants SALCEDO, GARCIA,
GONZALEZ, or BERNI-RAMOS approach the bleachers or otherwise take any steps to
intervene in the ongoing sexual assault of Plaintiff….” (SAC ¶51.) “The assault
ended only once the bell rang….” (SAC ¶54.)
The SAC asserts the following causes of action:
1.
Negligent Supervision/Failure to Protect; and
2.
Negligent Hiring, Retention, and Supervision
Defendants LOS ANGELES UNIFIED SCHOOL DISTRICT (“LAUSD”);
SALCEDO; GARCIA; GONZALEZ; BERNI-RAMOS; and RIVERA (collectively “Defendants”)
move for summary judgment, or alternatively summary adjudication.
First Cause of Action – Negligence Supervision/Failure to
Protect
LAUSD moves for summary
adjudication of the first cause of action for negligence on the following
grounds: (1) Defendants are entitled to summary adjudication because Plaintiff
cannot establish that Defendants breached any mandatory duty; (2) Defendants
are immune from liability under Gov. Code §820.2; and (3) Defendants cannot
establish causation.
Under the statutory scheme in
California, all government tort liability must be based on statute. (Gov. Code
§815.) Accordingly, public entities may be liable only if a statute declares
them to be liable. (Cochran v. Herzog Engraving Co. (1984) 155
Cal.App.3d 405, 409.)
Here, Plaintiff alleges that Defendants
owe a duty under Gov. Code §§815.2 and 820.
Gov. Code §815.2 states: “(a) A public entity is liable for
injury proximately caused by an act or omission of an employee of the public
entity within the scope of his employment if the act or omission would, apart
from this section, have given rise to a cause of action against that employee
or his personal representative. (b) Except as otherwise provided by statute, a
public entity is not liable for an injury resulting from an act or omission of
an employee of the public entity where the employee is immune from liability.” Gov. Code §820 states: “(a) Except as otherwise
provided by statute… a public employee is liable for injury caused by his act
or omission to the same extent as a private person. (b) The liability of a
public employee established by this part… is subject to any defenses that would
be available to the public employee if he were a private person.” §815.2
makes LAUSD vicariously liable for the act of an employee only if the employee,
while acting within the scope of employment would be liable for the injury to
Plaintiff. LAUSD’s liability, therefore, depends on its employees’ (Leslie
Salcedo, Nancy Garcia, Jose Gonzalez, Christine Berni-Ramos, and Saul Rivera)
allegedly negligent supervision of the minor defendants on the date of the
Subject Incident, and/or knowledge of any alleged bullying that occurred prior
to the date of the Subject Incident.
§820 does not impose any duty to
supervise. It makes a public employee liable for an injury to the same extent
as a private person.
“The law regarding the duty of
supervision on school premises is very, very well established. It is the duty
of the school authorities to supervise at all times the conduct of the children
on the school grounds and to enforce those rules and regulations necessary to
their protection. The school district is liable for injuries which result from
a failure of its officers and employees to use ordinary care in this respect.”
[Citations Omitted.] (J.H. v. Los
Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) “Ample case
authority establishes that school personnel owe students under their
supervision a protective duty of ordinary care, for breach of which the school
district may be held vicariously liable.” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 865.) “Students are not at risk
merely because they are at school, and schools, including school restrooms, are
not dangerous places per se. [Citation Omitted.] Foreseeability is determined
in light of all the circumstances and does not require prior identical events
or injuries. [Citation Omitted.] It is not necessary to prove that the very
injury which occurred must have been foreseeable by the school
authorities…Their negligence is established if a reasonably prudent person
would foresee that injuries of the same general type would be likely to happen
in the absence of [adequate] safeguards…... Further, the issue of
‘foreseeability’ does not depend upon the foreseeability of a particular third
party’s act, but instead focuses on whether the allegedly negligent conduct at
issue created a foreseeable risk of a particular
kind of harm.” [Citations Omitted] (M.W. v. Panama Buena Vista Union
School Dist. (2003) 110 Cal. App.4th 508, 518-519.)
LAUSD proffers evidence to show that the Elizbeth Learning
Center had a sufficient supervision plan in place for Plaintiff’s P.E. class
that consisted of all four P.E. teachers supervising the gym on the day of the
Subject Incident. (SSMF No. 3).
In Opposition, Plaintiff argues that there are triable
issues of material fact as to whether the supervision plan utilized by
Defendants—requiring four instructors to supervise over 200
students—constituted adequate supervision. Plaintiff proffers the following
evidence in Opposition:
·
LAUSD policies in effect for the 2018-2019
school year dictated that the optimum class size for P.E. classes is 42.5
students, but that the maximum class size should not exceed 52 +/- 3 (i.e. no
greater than 55) students. (PUMF No. 2.)
·
On the date of the incident, attendance records
confirm that there were 231 students in the indoor gymnasium at Elizabeth
Learning Center for the combined fourth period gym classes—65 students in
Defendant Berni-Ramos’ class, 58 students in Defendant Garcia’s P.E. class, 43
students in Defendant Gonzalez’s P.E. class, and 65 students in Defendant
Salcedo’s P.E. class. (PUM No. 3.)
·
In February of 2018, Plaintiff’s mother…
submitted a handwritten complaint that Plaintiff was being bullied by another
student in class but never received any response from the school. (PUMF No.
32.)
·
In the first half of the 2018-2019 school year,
Plaintiff was verbally bullied by classmates “a few times a week” in English
class.. the class teacher, Dr. Morris, observed and often intervened in
response to the bullying. (PUMF No. 34.)
·
During the 2018-2019 school year and prior to
the Subject Incident, student A.A. would regularly bully Plaintiff in their
shared sixth period algebra class—including calling Plaintiff “fatty,” making
perverted faces at Plaintiff, and engaging in inappropriate physical touching
such as slapping Plaintiff’s butt and trying to hug Plaintiff without consent.”
(PUMF No. 35.)
·
While attending Elizabeth Learning Center in the
7th grade during the 2016-2017 school year, Plaintiff complained to
school officials that J.C. punched Plaintiff in the nose so hard Plaintiff
developed a nosebleed, but no action as taken against J.C. as a result. (PUMF
No. 38.)
Summary adjudication of the first cause of action DENIED. Plaintiff
alleges A.A. hit his back and neck and then penetrated his anus with multiple
fingers three times. I.C. punched
Plaintiff on the back and covered Plaintiff’s mouth. J.C. pulled Plaintiff’s hoodie and punched
his back. (PUMF No. 1.) While Defendants characterize what occurred
as a “clandestine attack,” a trier of fact could reasonably conclude from the
evidence submitted by Plaintiff that his injuries were caused by Defendants’
negligent supervision. In ruling on a
summary judgment motion, the Court must draw all reasonable inferences in favor
of the non-moving party. (See Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.)
Second Cause of Action – Negligent Hiring, Supervision,
and Training
“An employer may be liable to a third person for the
employer’s negligence in hiring or retaining an employee who is incompetent or
unfit.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th
1207, 1213.) “[A]n employer’s duty…is breached only when the employer knows, or
should know, facts which would warn a reasonable person that the employee
presents an undue risk of harm to third persons in light of the particular work
to be performed.” (Id. at 1213.) “[A] public school district may be
vicariously liable under section 815.2 for the negligence of administrators or
supervisors in hiring, supervising and retaining a school employee who sexually
harasses and abuses a student.” (C.A. v. William S. Hart Union High School
Dist. (2012) 53 Cal.4th 861, 879.)
Plaintiff’s Opposition states that “Plaintiff declines to
oppose summary judgment as to the Second Cause of Action for Negligent Hiring,
Retention, and Supervision.” (Opp. 15:4-6.)
The unopposed Motion for Summary Adjudication is GRANTED as
to the second cause of action.
Defendants’ Evidentiary Objections
Nos. 1-10. Overruled