Judge: Lisa R. Jaskol, Case: 20STCV47744, Date: 2024-12-24 Tentative Ruling
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Case Number: 20STCV47744 Hearing Date: December 24, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On December 14, 2020, Plaintiff D. M. (“Plaintiff”), a minor by and through his guardian ad litem Lara Moss, filed this action against Defendants Los Angeles County Unified School District, Tamara Gullatt (“Gullatt”), Anne Lilly (“Lilly”), Shai De Los Reyes (“Reyes”), and Does 1-50 for negligence, negligent supervision, negligent hiring, training, retention, and supervision, negligent breach of mandatory public entity duties, negligence per se, negligent infliction of emotional distress, assault, battery, and intentional infliction of emotional distress.
On January 7, 2021, Plaintiff amended the complaint to change the incorrect name Los Angeles County Unified School District to Defendant’s true name Los Angeles Unified School District (“District”).
On February 16, 2021, the Court appointed Lara Moss to serve as Plaintiff’s guardian ad litem.
On June 1, 2021, the District filed an answer and a cross-complaint against Cross-Defendants Reyes and Roes 1-10 for total indemnity, partial indemnity, and declaratory relief.
On July 6, 2021, Gullatt and Lilly filed an answer to Plaintiff’s complaint.
On October 12, 2022, the clerk entered Reyes’s default on the District’s cross-complaint. On October 29, 2024, the Court set aside the default based on the parties’ stipulation.
On October 14, 2024, Reyes filed an answer to Plaintiff’s complaint. On November 4, 2024, Reyes filed an answer to the District’s cross-complaint.
Trial is currently scheduled for January 30, 2025.
A. Motion for summary judgment or summary adjudication
On May 2, 2024, the District, Gullatt, and Lilly (“Moving Defendants”) filed a motion for summary judgment and/or, in the alternative, summary adjudication. The motion was set for hearing on December 24, 2024. On December 10, 2024, Plaintiff filed an opposition. On December 19, 2024, Moving Defendants filed a reply. On December 23, 2024, Plaintiff filed a sur-reply, which the Court has not considered.
PARTIES’ REQUESTS
Moving Defendants ask the Court to grant summary judgment or, in the alternative, summary adjudication of Plaintiff's claims against them.
Plaintiff asks the Court to deny the motion.
MOVING DEFENDANTS’ EVIDENTIARY OBJECTIONS
Overruled.
LEGAL STANDARD
A. Summary judgment and summary adjudication
“‘[F]rom commencement to conclusion, the 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.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“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).)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Public entity liability
Government Code section 815 provides:
“Except as otherwise provided by statute:
“(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
“(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”
(Gov. Code, § 815.)
Government Code section 815.2 provides:
“(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, § 815.2.)
Government Code section 820 provides:
“(a) Except as otherwise provided by statute (including Section 820.2), 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 (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.”
(Gov. Code, § 820.)
Government Code section 820.2 provides:
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
(Gov. Code, § 820.2.)
Government Code section 815.6 provides:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
(Gov. Code, § 815.6.2.)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On September 17, 2019, Plaintiff was a kindergarten student at Canfield Elementary School, in Los Angeles, California. Plaintiff’s teacher, Lilly, left the classroom, leaving the students unsupervised. While Lilly was outside the classroom, Reyes, the parent of another student, entered the classroom. Reyes struck Plaintiff’s right shoulder and arm and screamed at him. As a result, Plaintiff suffered injuries.
Gullatt, the school’s principal, and Lilly were District employees and were acting in the course and scope of their employment with the District.
B. Undisputed facts
Reyes is a parent of one of Plaintiff’s classmates.
On September 16, 2019, Plaintiff was in kindergarten at Canfield Elementary School. During lunchtime, the lunch of Plaintiff’s friend and classmate fell to the ground. Plaintiff and a few students began playing with the food. After lunch, a supervising aide brought the students to Gullatt, the principal. Gullatt spoke with the students. Gullatt told Lilly about the incident, and Lilly spoke to the students about it.
The next day, September 17, 2019, Plaintiff came into the class and unpacked his belongings during the breakfast in the classroom program. Reyes came to drop off his son for school. Reyes entered the classroom and asked to speak to Lilly about the incident the day before involving his son’s lunch. Lilly explained that the school day was about to start but Reyes could go to the main office to leave a message for her.
Plaintiff testified that he did not cry after Reyes tapped him with one finger, he just continued working. Plaintiff testified that he was surprised by Reyes’s conduct.
The following day at school, Lilly asked Plaintiff clarifying questions related to an email about the incident which Plaintiff’s mother had sent Lilly the previous day.
Plaintiff’s mother reported Reyes’s alleged assault of Plaintiff to the police. Two police officers came to the school to investigate Plaintiff’s allegations. The alleged assault was also reported to the Department of Children and Family Services.
By October 17, 2019, Plaintiff had withdrawn from Canfield Elementary.
C. Moving Defendants’ motion for summary judgment or summary adjudication
1. First cause of action for negligence against District, Lillie, and Gullatt
a. Statutory basis
Moving Defendants argue that Plaintiff cannot prevail on his first cause of action for negligence against the District, Lillie, and Gullatt because Plaintiff has not alleged a statutory basis for the claim.
Government Code section 815 “ ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)
Under Government Code section 815.2, school authorities have a duty 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.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869 (C.A.).) “The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.)
“In addition, a school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’ [Citations.] Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” (C.A., supra, 53 Cal.4th at pp. 869-870.)
Here, Plaintiff alleges that Moving Defendants “owed a duty of care to Plaintiff to provide a safe and secure campus where Plaintiff could learn and attend school, including, but not limited to, not leaving students alone in a classroom unattended, and not leaving students alone in a classroom unattended with an angry adult not associated with LAUSD and/or not authorized to be present who would assault and batter Plaintiff.” (Complaint, ¶ 40.) Paragraph 37 of the complaint incorporates the foregoing paragraphs of the complaint into the negligence cause of action. Paragraph 35 of the complaint cites Government Code section 815.2.
The Court finds that Moving Defendants have not carried their initial burden of proving that Plaintiff failed to allege a statutory basis for his negligence claim.
b. Foreseeability
Moving Defendants also argue that Plaintiff cannot establish negligence because Reyes’ alleged actions were unforeseeable.
When (as here) a special relationship exists, the Court must balance the Rowland factors to determine whether a duty should be imposed. “The foreseeability-related factors are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant's conduct and the injury suffered. Of these three factors, whether the injury was foreseeable is the most important in determining whether an exception should exist to the duty to protect. Our task is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. We do, however, evaluate the kind of third party conduct involved in light of all the surrounding circumstances as probative in assessing generally whether the category of [defendant's] alleged negligent conduct is sufficiently likely to result in the kind of harm plaintiffs experienced. What is ‘sufficiently likely’ means what is ‘likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’” (C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974, 984, internal quotations and citations omitted.)
Moving Defendants argue it was unforeseeable that Reyes would touch Plaintiff. It is undisputed that, the day before the incident, Reyes’ son’s lunch fell to the floor during lunchtime. (UMF 8.) Plaintiff and other classmates began playing with the food. (UMF 9.) An aide informed Gullatt, who discussed the incident with the students and with Lilly. Lilly also spoke to the students. (UMF 11-12.) The next day, Reyes dropped off his son for school and asked to speak to Lilly about the incident with his son’s lunch. (UMF 16.) Lilly explained that Reyes could go to the main office and leave a message for her. (UMF 17.)
In addition to these undisputed facts, Moving Defendants have presented evidence that no one yelled or made loud noises in the classroom after Reyes walked in and that Reyes walked to the office and spoke with Gullatt. (UMF 19, 21.) In opposition, Plaintiff has presented evidence that Reyes was angry, appeared to be agitated, and was trying to talk to Lilly.
Because the evidence about Reyes’ demeanor and conduct is conflicting, the Court concludes that Moving Defendants have not carried their initial burden on summary judgment or summary adjudication of proving that it was not reasonably foreseeable that Reyes would tap or strike Plaintiff. Plaintiff has presented evidence showing that Reyes, a parent whose child may have been teased or bullied, entered the classroom of one of the students involved in the alleged teasing or bullying. It is reasonably foreseeable that Reyes, particularly if he was visibly agitated, might confront or even tap or strike Plaintiff under these circumstances. A triable issue of fact whether Lilly breached her duty by turning away from the students and letting Reyes pass through the classroom exists.
The Court denies Moving Defendants’ motion for summary adjudication of the negligence claim.
2. Second cause of action for negligent supervision of school premises against the District and Gullatt
On the second cause of action for negligent supervision, Moving Defendants argue that Plaintiff cannot establish causation. Viewing the evidence discussed above in the light most favorable to Plaintiff, the Court concludes that Moving Defendants have not carried their initial burden of proving that any negligent supervision of the classroom did not cause Plaintiff’s injuries. The Court therefore denies Moving Defendants’ motion for summary adjudication of the second cause of action for negligent supervision. (The Court addressed Moving Defendants’ foreseeability argument in Section C.1.b, above.)
3. Third cause of action for negligent hiring, training, retention, and/or supervision against the District and Gullatt
Incorporating by reference their previous arguments, Moving Defendants argue that Plaintiff cannot establish the elements of this claim. For the reasons stated above, the Court finds that Moving Defendants have not carried their initial burden on summary judgment or summary adjudication of proving that Plaintiff cannot present evidence supporting this claim. The Court therefore denies Moving Defendants’ motion for summary adjudication of the third cause of action for negligent hiring, training, retention and/or supervision.
4. Fourth cause of action against the District for negligent breach of mandatory public entity duties to Plaintiff (Gov. Code, §§ 815.2, 820)
“Three requirements must be met before governmental entity liability may be imposed under Government Code section 815.6: (1) an enactment must impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1215.)
Whether an enactment creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 (Haggis).) “[S]ection 815.6 requires the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.’ [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” (Ibid.)
The Court strictly construes the statute’s first prong, “finding a mandatory duty only if the enactment ‘affirmatively imposes the duty and provides implementing guidelines.’” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) The enactment’s language is the most important guide to determine legislative intent, but “there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.” (Haggis, supra, 22 Cal.4th at p. 499.)
“In every case, ‘[t]he controlling question is whether the enactment at issue was intended to impose an obligatory duty to take specified official action to prevent particular foreseeable injuries, thereby providing an appropriate basis for civil liability. [Citation.]’ [Citation.].” (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239.)
Moving Defendants argue that Plaintiff has failed to allege facts establishing the existence of a mandatory duty. In response, Plaintiff argues that he has identified the following statutory bases for the claim: Government Code sections 810, 815.2, 815.2, subdivision (a), 820, 820, subdivision (a), 905, and 910 and Penal Code section 11166. (Opposition p. 12.) According to Plaintiff, “these statutes create mandatory duties that the LAUSD Defendants were required to follow.” (Opposition p. 12.) However, Plaintiff does not explain how these statutes impose mandatory duties for purposes of Government Code section 815.6.
Even if Plaintiff had identified enactments that provide mandatory duties, Plaintiff has failed to show that (1) the enactments were meant to protect against the kind of injury Plaintiff allegedly suffered or that (2) breach of the mandatory duty caused Plaintiff’s injury.
The Court finds that Moving Defendants have carried their initial burden of showing that Plaintiff cannot prevail on his claim for breach of a mandatory duty, shifting the burden to Plaintiff. Plaintiff has not raised an issue of material fact regarding his claim for negligent breach of a mandatory public entity duty. The Court grants Moving Defendants’ motion for summary adjudication of this claim.
5. Fifth cause of action for negligence per se (Pen. Code, § 11166) against the District, Lillie, and Gullatt
“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)
Here, the complaint alleges that Moving Defendants violated Penal Code section 11166, which requires a mandated reporter to make a report “whenever the mandated reporter, in the mandated reporter's professional capacity or within the scope of the mandated reporter's employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” (Pen. Code, § 11166, subd. (a).) “[I]t is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person's training and experience, to suspect child abuse or neglect. ‘Reasonable suspicion’ does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any ‘reasonable suspicion’ is sufficient.” (Pen. Code, § 11166, subd. (a)(1).)
Moving Defendants argue they lacked a reasonable suspicion that Plaintiff was the victim of child abuse and therefore they had no duty to report. Moving Defendants base this argument on evidence that:
· Lilly and Chavez did not hear any yelling or see Reyes touch Plaintiff. (UMF 161-162.)
· Plaintiff stated that he did not cry when Reyes tapped him but instead continued working.
· Plaintiff’s mother sent Lilly an email saying Reyes had tapped Plaintiff on the shoulder. (UMF 178; Def. Exh. N.)
· The next day, when Lilly asked Plaintiff to demonstrate the tap, “[h]e used 1 finger and lightly tapped my left shoulder one time.” (Def. Exh. M, entry 9/18.)
· Plaintiff’s mother called the police, who investigated Plaintiff’s allegations and did not find child abuse. (See UMF 184-185.)
· Gullatt saw no visible marks on Plaintiff’s shoulder. (Gullatt Decl. ¶ 9.)
Moving Defendants have carried their initial burden on summary judgment or summary adjudication on the issue of whether they lacked a reasonable suspicion of child abuse, shifting the burden to Plaintiff.
In opposition, Plaintiff argues that it is undisputed that Reyes touched him. Plaintiff also contends that Gullatt testified that if a parent touches a student it would constitute child abuse. (Opposition p. 19.) In fact, Gullatt testified that if a parent struck a student it would constitute child abuse. (Exh. B, 46:14-15; 63:14-25; 64:1-3.)
Nonetheless, the Court finds that Plaintiff has raised a triable issue regarding whether Moving Defendants had a reasonable suspicion that Reyes had struck Plaintiff. Despite Plaintiff demonstrating only a tap on the shoulder to Lilly, Plaintiff’s mother communicated to Lilly her belief that Reyes had badly hurt Plaintiff. Construing this evidence in the light most favorable to Plaintiff, the Court denies summary adjudication of this claim.
6. Sixth cause of action for negligent infliction of emotional distress against the District, Lilly, and Gullatt
Plaintiff appears to be asserting a “direct victim” negligent infliction of emotional distress claim. “ ‘ “Direct victim” cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. “[T]he label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.] In these cases, the limits [on bystander cases ...] have no direct application. [Citations.] Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.” ’ ” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205-206, quoting Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038; see Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656 [“At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress”]; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element”].)
Moving Defendants again argue that the alleged incident was unforeseeable. However, as discussed in Section C.1.b, above, Moving Defendants have not carried their initial burden on summary judgment or summary adjudication of proving that it was not reasonably foreseeable that Reyes would tap or strike Plaintiff. The Court denies Moving Defendants’ motion for summary adjudication of this claim.
CONCLUSION
The Court GRANTS the motion filed by Defendants Los Angeles Unified School District, Tamara Gullatt, and Anne Lilly for summary adjudication of Plaintiff D.M.’s fourth cause of action for negligent breach of mandatory public entity duties against Defendant Los Angeles Unified School District.
In all other respects, the Court DENIES the motion for summary judgment and/or, in the alternative, summary adjudication filed by Defendants Los Angeles Unified School District, Tamara Gullatt and Anne Lilly.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.