Judge: Lisa R. Jaskol, Case: 22STCV18437, Date: 2024-10-24 Tentative Ruling
Case Number: 22STCV18437 Hearing Date: October 24, 2024 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On June 3, 2022, Plaintiff Tiffany Quintero (“Plaintiff”), a minor, by and through her mother and guardian ad litem Elizabeth Esparza, filed this action against Defendants West Covina Unified School District (“District”), West Covina High School, and Does 1-100 for negligence (Government Code section 820, subdivision (a)), negligence (Government Code section 815.2), negligent supervision (in violation of Education Code section 44807), negligent hiring, training, supervision, or retention (Government Code section 815.2), and dangerous condition on public property (Government Code section 835).
On July 18, 2022, the Court appointed Elizabeth Esparza to serve as Plaintiff’s guardian ad litem.
On September 13, 2022, the District filed an answer.
On August 17, 2023, the District filed a motion for summary judgment and/or summary adjudication of issues. The motion was set for hearing on October 31, 2023. On October 12, 2023, Plaintiff filed an opposition. The Court continued the hearing to October 24, 2024.
On August 6, 2024, the Court denied Plaintiff’s ex parte application for leave to file a supplemental opposition to the District’s motion for summary judgment and/or adjudication.
Trial is currently scheduled for April 3, 2025.
PARTIES’ REQUESTS
The District asks the Court to grant summary judgment and/or summary adjudication of issues.
Plaintiff asks the Court to deny the motion.
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.)
“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 addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
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. Government Code provisions
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 835 provides:
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
(Gov. Code, § 835.)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On or about October 12, 2021, West Covina High School authorized and sponsored a mandatory practice for a homecoming skit in which Plaintiff was instructed to participate. When the practice ended, the teachers instructed the approximately 100 students participating in the practice to gather for a group photograph. Plaintiff did not want to participate in the photograph. The teachers ordered her to participate. The teachers placed the students together unsafely in a cramped area to pose for the photograph. The teachers permitted students to get on each other’s shoulders so that all the students could fit in the photograph. Plaintiff was instructed to get on the shoulders of another student so she could be included in the photograph. Plaintiff did not want to do this but nonetheless complied. Plaintiff received no assistance and no safety precautions were taken. As a result, Plaintiff fell to the hardwood gymnasium surface, suffering injuries.
School personnel did not come to Plaintiff’s aid and did not call an ambulance. Plaintiff’s mother arrived on the scene and rushed Plaintiff to the emergency room, where Plaintiff was evaluated and underwent extensive testing for head injuries including but not limited to CT scans. Plaintiff was diagnosed with multiple injuries.
B. Undisputed facts
On October 12, 2021, West Covina High School held rehearsals for its annual homecoming rally. The activities director, Melanie Wong (“Wong”), was present at the rehearsals. At the rehearsals, students practiced skits for the rally. Every person present at the rehearsal was a volunteer. Approximately 100-150 students were present. Participation in the skits was voluntary.
Parents are required to sign off on their children’s participation in the homecoming rally skits.
October 12, 2021 was the first night of rehearsal. At the end of rehearsal, a few of the cheerleaders including Plaintiff climbed onto each other’s shoulders for the photo.
After the photo, a student informed Wong that a participant had fallen and injured her mouth and was in the bathroom. Wong and two others found Plaintiff in the bathroom and performed first aid. A student had already called Plaintiff’s mother.
Plaintiff’s mother arrived within 15 minutes after Plaintiff’s accident and drove Plaintiff to the hospital.
Prior to the accident, Plaintiff’s parents/guardians completed an online Competitive Sports Cheer-2021-22 Clearance form. Prior to the accident, Plaintiff’s parent/guardian signed a Participation Consent giving consent for her daughter to compete in sports at the high school in recognition of the risks to Plaintiff of injury and illness.
C. The District’s motion for summary judgment
1. “Waiver/release”
The District argues that Plaintiff’s action is barred by a “waiver/release” form her parent/guardian signed as a condition of Plaintiff’s participation in cheerleading. The District relies on Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003 (Brown) and Aaris v. Las Virgines Unified School Dist. (1998) 64 Cal.App.4th 1112 (Aaris).
“ ‘[C]ontract principles apply when interpreting a release, and ... normally the meaning of contract language, including a release, is a legal question, not a factual question. [Citation.]” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.)
“When an individual signs an express waiver of liability, he ‘promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoing.’ ” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 (Coates).) “Similarly, in signing an express assumption of risk, ‘the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing. Both agreements permit behavior that normally would be actionable as tortious, although an express assumption of risk goes further, more clearly authorizing this behavior.’” (Ibid., quoting Coates, supra, 191 Cal.App.3d at pp. 7-8.)
“ ‘ “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone .... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” (Prosser & Keeton on Torts [(5th ed. 1984)] § 68, pp. 480-481, fn. omitted, second italics added.)’ ” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Knight v. Jewett (1992) 3 Cal.4th 296, 338, fn. 4 (Knight).)
“ ‘California courts require a high degree of clarity and specificity in a Release in order to find that it relieves a party from liability for its own negligence. The release must “clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries and to indemnify the defendants from and against liability to others which might occur in the future as a proximate result of the negligence of [the] defendants ....” ’ ” [Citation omitted.]” (Brown, supra, 76 Cal.App.5th at p. 1024, quoting Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488-1489, italics omitted.) “ ‘To be effective, a release need not achieve perfection; ... It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence. [Citation.]’ ” (Ibid., quoting Nat'l & Internat. Bhd. of St. Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.)
“ ‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ’ [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. [Citations.] An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. [Citation.]” (Brown, supra, 76 Cal.App.5th at p. 1024.)
In Brown, the release stated in part:
“In consideration for EDUHSD, allowing the above-named students to participate in the school-related activity/ies specified above, I/we voluntarily agree to release, waive, discharge, and hold harmless the EDUHSD and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student’s participation in the school-related activity/ies. I/We also expressly agree to release and discharge EDUHSD, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services.”
(Brown, supra, 76 Cal.App.5th at p. 1010, emphasis added.)
The Court of Appeal affirmed the trial court’s order granting the defendant’s motion for summary judgment, observing that the release signed by the student’s father “covered all allegedly negligent acts by coaches, and any other employee or volunteer, while they were engaged in ‘coach[ing], train[ing], instruct[ing], or supervis[ing]’ in football” and “also applied to negligent acts by coaches, and any other employees or volunteers, involved in diagnosing and/or treating [the plaintiff] for potential injuries suffered while he was engaged in playing football.” (Brown, supra, 76 Cal.App.5th at p. 1024.)
In Aaris, the release provided:
“I hereby give my consent for the above named student to compete in the Las Virgenes High School approved activity program ... and travel with the school representative on authorized school trips. I, the undersigned, hereby release and discharge the Las Virgenes Unified School District, officers, employers, agents, servants and volunteers (herein collectively referred to as ‘District’) from all liability arising out of or in connection with the above described activity or all liabilities associated with any and all claims related to such activity that may be filed on behalf of or for the above named minor. For the purposes of this agreement, liability means all claims, demands, losses, causes of action, suits or judgments of any and every kind ... that occurs during the above described activity and that results from any cause other than the negligence of the District.”
(Aaris, supra, 64 Cal.App.4th at p. 1120, emphasis added.) The Court of Appeal in Aaris held the trial court correctly found the release barred recovery. (Ibid.)
The consent form at issue here provides:
“I hereby give my consent for the above named student to compete in sports at West Covina High School. I authorize the student to go with and be supervised by a representative of the school on any trips. I agree to assume the responsibility of seeing that my child cooperates and conforms to the fullest with school directions and instructions of the school officials in charge. In case this student becomes ill or is injured, you are authorized to have the student treated, and I authorize the medical agency to render treatment.
“Serious, catastrophic and perhaps fatal injury or
illness may result from athletic participation. By choosing to
participate, parent/guardian and student acknowledge that such risks exist.
Students will be instructed in proper techniques to be used in athletic
competition and in the proper utilization of all equipment worn or used in
practice and competition. Students must adhere to that instruction and
utilization and must refrain from improper uses and techniques. No amount of
instruction, precaution, and supervision will totally eliminate all risk of
serious, catastrophic, or even fatal injury or illness. I, as the parent or
legal guardian of the above named student have read this warning to students
and parents and understand its terms. I understand that all sports can
involve many risks of injury or illness, including, but not limited to, those
outlined above. In recognition of these risks, I give my consent to allow
my child to participate.”
(Exh. B, emphasis added.)
Unlike the releases in Brown and Aaris, the consent form here contains no language releasing the District from liability or waiving Plaintiff’s claim for liability.
Moreover, while the consent form acknowledges the risks inherent in athletic participation and provides consent for Plaintiff to participate in sports (including cheerleading), the District has not presented evidence showing that the consent applied to the homecoming skit rehearsal and the taking of a photograph afterward. Therefore, the District has not carried its initial burden on summary judgment of showing that “ ‘ “the act of negligence, which result[ed] in injury to [Plaintiff], [was] reasonably related to the object or purpose for which the [consent] [was] given.” ’ ” (See Brown, supra, 76 Cal.App.5th at p. 1024.)
2. Primary assumption of the risk
The District argues that, “[f]or the reasons set forth in [Aaris and Brown], the doctrine of primary assumption of the risk bars this plaintiff cheerleader’s lawsuit against the school district.” (Motion p. 4.)
Whether the doctrine of primary assumption of the risk applies to a negligence claim “is a legal question involving the duty of care . . . .” (Nigel B. v. Burbank Unified School Dist. (2023) 93 Cal.App.5th 64, 72 (Nigel B.).)
“ ‘ “Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.” [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.’ ” (Nigel B., supra, 93 Cal.App.5th at p. 72, quoting Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)
“ ‘[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities “involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.” [Citation.] [¶] The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty “would work a basic alteration—or cause abandonment” of the activity.’ ” (Nigel B., supra, 93 Cal.App.5th at p. 72, quoting Nalwa, supra, 55 Cal.4th at p. 1156.)
“Thus, courts have applied the primary assumption of risk doctrine to a range of school activities including extracurricular programs (see Cann v. Stefanec (2013) 217 Cal.App.4th 462, 470–471, 158 Cal.Rptr.3d 474 [mandatory weight lifting session for members of college swim team]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 945–946, 80 Cal.Rptr.2d 638 [after-school wrestling program]; [Aaris, supra, 64 Cal.App.4th at p. 1119] [cheerleading practice]) and elective classes (see Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 432–433, 440, 52 Cal.Rptr.2d 812 [plaintiff enrolled in advanced football class]). In each of these examples, a plaintiff, in the first instance, voluntarily participated in an activity (which may have required the undertaking of certain related tasks), such that application of the doctrine was appropriate. (See, e.g., Swigart v. Bruno (2017) 13 Cal.App.5th 529, 537, 220 Cal.Rptr.3d 556, italics added [“Primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the plaintiff is injured due to a risk that is inherent in an activity in which the plaintiff chose to participate”]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 600, 202 Cal.Rptr.3d 536, italics added [“ ‘Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks’ ”]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082, 122 Cal.Rptr.3d 22, italics added [“Primary assumption of the risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks, and therefore, the defendant is relieved of his or her duty to use due care to avoid the plaintiff suffering an injury as a result of those inherently risky aspects of the sport”].)” (Nigel B., supra, 93 Cal.App.5th at pp. 72-73.)
The District has not presented evidence showing that Plaintiff’s participation in the homecoming skit rehearsal and in the taking of a photograph afterward involved an inherent risk. The policy underpinnings of the primary assumption of the risk doctrine therefore do not come into play and the doctrine does not apply here.
The District has not carried its initial burden on summary judgment. The Court denies the District’s summary judgment motion.
D. The District’s motion for summary adjudication
1. Plaintiff’s claims for negligence under Government Code sections 815.2 and 820, subdivision (a)
The District contends that Plaintiff’s claims under Government Code sections 815.2 and 820, subdivision (a), are common law negligence claims which cannot be asserted against a public entity.
“When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor's employer, the injured party ordinarily must demonstrate either (1) the employer violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his or her employment (the vicarious liability theory). [Citation.] When the employer is a governmental agency, the statutory framework permits the injured party to pursue the vicarious liability theory in accordance with these general common law principles.” (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 943 (Koussaya), emphasis added.)
Under Government Code sections 815.2 and 820, “ ‘the general rule is that an employee of a public entity is liable for his [or her] torts to the same extent as a private person [citation] and the public entity is vicariously liable for any injury which its employee causes [citation] to the same extent as a private employer [citation].” ’ [Citation.]” (Koussaya, supra, 54 Cal.App.5th at p. 944, quoting C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.)
“Under these provisions, in order for vicarious public entity liability to attach, a public employee, either named as a defendant or at least ‘specifically identified’ by the plaintiff, must have engaged in an act or omission giving rise to that employee's tort liability.” (Koussaya, supra, 54 Cal.App.5th at p. 944.)
Plaintiff has pleaded a statutory claim for vicarious liability against the District “in accordance with the general common law principles” discussed in Koussaya. The Court denies the District’s motion for summary adjudication of Plaintiff’s claims under Government Code sections 815.2 and 820, subdivision (a).
2. Plaintiff’s claim for negligent supervision
The District argues the Court should grant summary adjudication of Plaintiff’s claim for negligent supervision because Plaintiff cannot establish a causal connection between any allegedly negligent supervision and Plaintiff’s accident. According to the District, Plaintiff’s injury did not result from unruly student behavior and would have occurred even if more teachers and adults had been present.
The District relies on Wong’s declaration stating that Plaintiff voluntarily climbed onto another student’s shoulders and there was no pushing, shoving, or chaos. However, the declaration shows that Wong noticed that students were climbing onto each others’ shoulders but did not stop them (and indeed did not notice when Plaintiff fell). A fact finder could find that Wong and the other District employees present failed to supervise the students and this failure was causally related to Plaintiff’s injury.
The District has not carried its initial summary adjudication burden on the negligent supervision claim. The Court denies the District’s motion for summary adjudication of the negligent supervision claim.
3. Plaintiff’s claim for negligent hiring, training, supervision,
or retention
4. Plaintiff’s claim for dangerous condition of public
property
A defendant moving for summary adjudication must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) Here, the District does not present evidence but simply argues that Plaintiff lacks evidence to support her dangerous condition of public property claim. Therefore, the District has not carried its initial burden on summary adjudication. The Court denies the District’s motion for summary adjudication of this claim.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendant West Covina Unified School District’s motion for summary judgment and/or summary adjudication of issues. The Court GRANTS Defendant West Covina Unified School District’s motion for summary adjudication of Plaintiff Tiffany Quintero’s claim for negligent hiring, training, supervision, or retention and summarily adjudicates that claim. In all other respects, the Court DENIES the motion.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file proof of service of this ruling with the Court within five days.