Judge Lisa R. Jaskol, Case Number: 22STCV11188, Date: 2025-01-06 Tentative Ruling

Having considered the moving, opposition, and reply papers, the Court rules as follows.

On April 5, 2022, the Court appointed Van Nguyen to act as Plaintiff’s guardian ad litem.

On December 2, 2022, Plaintiff amended the complaint to include Defendant Veronica Guinez (“Guinez”) as Doe 1. On December 5, 2022, Plaintiff amended the complaint to include Defendant Austyn Chade (“Chade”) as Doe 2.

On January 23, 2023, Guinez, representing herself, filed an answer in her individual capacity and purporting to act as guardian ad litem for Chade.

On November 14, 2023, Plaintiff, by and through her guardian ad litem Van Nguyen, filed a first amended complaint against the District, Guinez, Chade, and Does 3-50 for negligence (Gov. Code, §§ 815.2, subd. (a), 820, subd. (a)), negligent supervision of students (Gov. Code, § 815.2, subd. (a)), negligent hiring, training, supervision, or retention of employees (Gov. Code, §§ 815.2, subd. (a), 820, subd. (a)), intentional infliction of emotional distress, and assault and battery.

On December 18, 2023, the District filed an answer to the first amended complaint.

On May 17, 2024, the District filed a motion for summary judgment or, in the alternative, summary adjudication. The motion was set for hearing on December 12, 2024. On November 26, 2024, Plaintiff filed an opposition. On December 6, 2024, the District filed a reply. The Court continued the hearing to January 6, 2025.

The District asks the Court to grant summary judgment or, in the alternative, summary adjudication of Plaintiff's first amended complaint.

“‘[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.)

“(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.”

“(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.”

“To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 201, 213 (Brown).) “Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.” (Ibid.)

“In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another’s harm if that person is in what the law calls a ‘special relationship’ with either the victim or the person who created the harm.” (Brown, supra, 11 Cal.5th at p. 215.) “A special relationship between the defendant and the victim is one that ‘gives the victim a right to expect’ protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that ‘entails an ability to control [the third party’s] conduct.’ ” (Id. at p. 216, quoting Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) “Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect.” (Ibid.) “The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.” (Ibid.)

However, “even when two parties may be in a special relationship, the unforeseeability of the kind of harm suffered by the plaintiff or other policy factors may counsel against establishing an affirmative duty for one party to protect the other.” (Brown, supra, 11 Cal.5th at p. 219 (discussing Rowland ^{^[1]} factors).) For example, “a court might conclude that duty should not be imposed because . . . the type of harm the plaintiff suffered was unforeseeable, or because there was no moral blameworthiness associated with the defendant’s conduct, notwithstanding the defendant’s special relationship to the plaintiff. Put differently, even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.” (Id. at p. 222.)

Beginning on or about August of 2021, Austyn Chade, a student at Castelar Elementary School (“Castelar”), harassed, bullied, and brutalized Plaintiff, also a Castelar student, while they were on Castelar’s campus. Plaintiff complained about the harassment to a Castelar teacher on several occasions from August 2021 through October 7, 2021. Plaintiff and her father, Van Nguyen, sought the help of the school’s teachers and employees and demanded something be done to stop Chade’s bullying, harassing and violent behavior. The school’s administration took no action to prevent Chade from brutalizing Plaintiff and ignored Plaintiff’s pleas for help.

On or about October 7, 2021, Chade attacked Plaintiff, knocked Plaintiff to the ground, and stepped on her. Castelar’s health care personnel failed to appropriately respond to Plaintiff’s injuries. Plaintiff remained at school the remainder of the school day.

An ambulance later transported Plaintiff to the hospital where she received emergency medical treatments and was diagnosed with a broken arm.

Castelar staff failed to supervise Chade. Castelar employees knew about the ongoing bullying but failed to initiate a safety plan to stop Chade’s harassment and bullying.

Plaintiff asserts (1) a first cause of action for negligence against the District and Does 3-50, (2) a second cause of action for negligent supervision of students under Government Code section 815.2, subdivision (a), against the District and Does 1-50, and (3) a third cause of action for negligent hiring, training, retention, and supervision against the District and 1-50. (Plaintiff asserts separate claims against Chade and Guinez.)

Plaintiff’s mother, Van Nguyen (“Nguyen”), communicated with Plaintiff’s teacher Yong “Wendy” Huang (“Huang”), a District employee, about Chade on three occasions prior to October 7, 2021. Nguyen communicated two of those complaints by exchanging texts with Huang. On August 27, 2021, Nguyen sent a text communication to Huang complaining that a boy had splashed water on Plaintiff's shirt. On September 20, 2021, Nguyen sent a text communication to Huang stating that Plaintiff had complained that a boy had stepped on her feet, pulled her shirt, thrown a ball at her face, said a bad word about her, and splashed water on her body.

One day in September of 2021, Nguyen approached Huang and spoke to her for less than five minutes regarding her concerns about Chade. Nguyen told Huang that Plaintiff had a problem with Chade. Nguyen asked Huang to keep an eye on Plaintiff and separate Plaintiff from Chade to avoid bullying at school. Huang responded that she would monitor the students.

Nguyen did not address her concerns about Chade to any of the District’s other employees prior to October 7, 2021.

Nguyen did not see Chade attack Plaintiff. Nguyen is not aware of any witnesses, other than Plaintiff, who can testify that they saw Chade attack Plaintiff. Plaintiff is not aware of any individual who witnessed the alleged October 7, 2021 incident other than Chade and Plaintiff.

Chade and his mother Guinez are Spanish-speaking Chilean immigrants who moved to the United States in 2021. During his early years in Chile, Chade was exposed to violent events that deeply traumatized him. After arriving in the United States, Chade experienced a number of issues adjusting to his new country.

Guinez was aware that Chade hit other children at school due to impulse control issues but she did not know Chade harmed Plaintiff.

District employee Gabriela Ramirez (“Ramirez”) was assigned to shadow Chade during the school day to accommodate his needs and to ensure his safety and the safety of other students. Ramirez would escort Chade to the main office at the start of each lunch break and escort him back to his class at the end of each lunch break.

During the lunch break on October 7, 2021, Ramirez found Plaintiff on the school yard crying.

On October 8, 2021, Nguyen filed a police report alleging that Chade had attacked Plaintiff. On October 11, 2021, Plaintiff's counsel sent email correspondence to District employees contending that Chade had physically attacked Plaintiff on October 7, 2021 and demanding that they preserve any evidence relating to the alleged incident.

The District concedes that it had a special relationship with Plaintiff, giving rise to a duty to protect Plaintiff. The District contends, however, that this duty was limited because the District took measures to protect Plaintiff against the risk of foreseeable harm from other students. These measures included (1) Huang admonishing Chade or agreeing to more closely supervise the children and (2) the District assigning Ramirez to escort Chade to the main office at the start of each lunch break and escorting him back to his class at the end of each lunch break.

The District argues that these actions satisfied its duty to protect Plaintiff, even assuming Chade attacked Plaintiff on October 7, 2021. According to the District, “No additional measures were warranted because Defendant's employees had no reason to believe that on October 7, 2021 Austyn Chade posed an imminent risk of harm to Plaintiff.” (Motion p. 14.) The District asserts that Nguyen's communications to Huang about her concerns about Chade "cannot reasonably be interpreted as conveying a warning of imminent threat of serious bodily injury to Plaintiff." (Motion p. 14.)

Whether the concerns which Nguyen communicated to Huang about Chade's repeated instances of misconduct toward Plaintiff put the District on notice that Plaintiff was at risk of further mistreatment by Chade is a question of fact.

It is undisputed, however, that the District attempted to put a safety plan in place in which District employees supervised Chade during lunch in the school's main office. Plaintiff argues that the District did not adequately implement this plan. Plaintiff cites District employees' deposition testimony that Chade sometimes left the school’s office during lunch without permission. (See Exh. D., Gardella dec., pp. 21-23; exh. G to Gardella dec., p. 25; exh. H to Gardella dec., pp. 39-41.) At their depositions, the District’s employees could not say if Chade remained in the school’s office during the entire lunch period on October 7, 2021. The District therefore has not carried its initial burden on this issue for purposes of summary judgment and summary adjudication. Even assuming that the District's evidence that it attempted to implement a safety plan carried the District's initial burden on summary judgment and summary adjudication, Plaintiff's evidence raises a reasonable inference that the District's employees did not enforce the plan, creating a triable issue of fact on this issue.

The District also argues that “Plaintiff has produced no evidence that she was actually attacked by another student.” (Motion p. 16.) In response, Plaintiff cites her deposition testimony that "The boy did it" (exh. B, p. 10), referring to how she hurt her arm. She also testified: “He (unintelligible) me and first he step on my hand.” (Exh. B, pp. 10-11.) Asked if the boy hurt her arm, Plaintiff answer, “Yeah, he stepped on my arm.” (Exh. B, p. 11.) She testified that he followed her, pushed her to the ground, and then stepped on her. (Exh. B, p. 11.)

While Plaintiff, a young child, did not identify the "boy" at her deposition, the District has failed to show that Plaintiff will be unable to present evidence at trial that Chade was the student who attacked her on October 7, 2021.

Having reviewed the evidence and the inferences reasonably drawn from it in the light most favorable to Plaintiff (Aguilar, supra, 25 Cal.4th at p. 843,) the Court finds that the District has failed to carry its initial burden on summary judgment or summary adjudication. The District has not shown that, as a matter of law, it implemented adequate measures to protect Plaintiff from Chade or that its protective measures rendered Chade’s attack unforeseeable in light of Nguyen's communications to Huang about Chade. Even if the District's evidence that it attempted to implement a safety plan carried the District's initial burden on summary judgment and summary adjudication, Plaintiff's evidence raises a reasonable inference that the District's employees did not enforce the plan, creating a triable issue of fact on this issue. The District also has not shown that Plaintiff cannot present evidence supporting her claim that Chade physically attacked her on October 7, 2021.

The Court DENIES Defendant Los Angeles Unified School District’s motion for summary judgment or, in the alternative, summary adjudication of Plaintiff Angela Phung’s first amended complaint.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] “To depart from the general principle that all persons owe a duty of care to avoid injuring others, we explained, ‘involves the balancing of a number of considerations’: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Brown, supra, 11 Cal.5th at p. 217, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 112–113.)