Judge Lynette Gridiron Winston, Case Number: 22PSCV00879, Date: 2023-10-26 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV00879, Date: 2023-10-26 Tentative Ruling

Defendant El Monte Union High School District’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of the Issues

The Court GRANTS Defendant El Monte Union High School District’s motion for summary judgment. The Court DENIES the alternative motion for summary adjudication as moot.

Defendant El Monte Union High School District is ordered to give notice of the Court’s ruling and file proof of service of same within five days of the Court’s order.

This is a childhood sexual assault case based on events that occurred between 1987 and 1988 and the recent enactment of AB 218 which revived a plaintiff’s right to pursue childhood sexual assault claims. On August 17, 2022, Plaintiff Hector Olavarria, Jr. (Plaintiff) filed this action. Plaintiff filed the operative Second Amended Complaint (SAC) on October 26, 2022, against Defendant El Monte Union High School District (Defendant) and Does 1 through 50, alleging causes of action for negligence, negligence per se, negligent hiring, retention, and supervision of an unfit employee, negligent supervision of a minor, and negligent failure to warn, train, or educate. On November 16, 2022, Defendant filed an answer to the SAC.

On September 19, 2023, Defendant filed the instant motion for summary judgment, or in the alternative, summary adjudication of the issues. On November 20, 2023, Plaintiff filed an opposition. On November 29, 2023, Defendant filed a reply.

On December 5, 2023, the Court granted Plaintiff’s request to continue the hearing on this motion to permit further discovery to be conducted. On February 20, 2024, Plaintiff filed an updated opposition. On February 29, 2024, Defendant filed a reply to the updated opposition.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Id.; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

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.)

The Court OVERRULES all of Plaintiff’s evidentiary objections to the Declaration of Robin Torres.

The Court SUSTAINS Defendant’s evidentiary objection to the Declaration of Hank Gonzales for lack of foundation.

Defendant had no information that would have precluded it from hiring Ms. Trina Cardona (Cardona) as a cheerleading coach during the 1987 – 1990 time frame. (UMF 1-2.) Cardona’s performance evaluations from 1994 to 2022 have been uniformly positive and contained no criticisms regarding her interactions with minor students, (UMF 3), and there were no complaints of sexual misconduct with a student before 2023, (UMF 4). Defendant also provides the background details surrounding Plaintiff’s and Cardona’s relationship, such as when the relationship began and where the sexual encounters would occur, i.e., primarily outside of school with two limited instances inside Cardona’s closed classroom which no one witnessed. (UMF 6-10.)

Plaintiff’s relationship with Cardona was kept a secret, and Plaintiff did not tell any school district personnel about his relationship with Cardona. (UMF 11.) Defendant then states that Plaintiff alleges his coach Frank Alonzo (Alonzo) believed something was going on and that Plaintiff does not recall telling Alonzo any details about the relationship. (UMF 13.) Defendant also contends that Plaintiff alleges that Gilbert Adame (Adame), a school district teacher, should have known about the relationship because Adame was Cardona’s boyfriend at the time and was present when Plaintiff and Cardona first spoke over the phone. (UMF 14.)

“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

“[A] public school district may be vicariously liable under [Government Code] 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 Sch. Dist. (2012) 53 Cal.4th 861, 879.)

Defendant argues that it cannot be found vicariously liable here because a school employee engaging in sexual misconduct is outside the scope of employment for such employees per John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, which held that, “the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher's employer. It is not a cost this particular enterprise should bear, and the consequences of imposing liability are unacceptable.” (Id. at p. 452.) The Court finds this argument unavailing.

The California Supreme Court stated clearly in C.A., which was decided in 2012 and addressed John R. in great detail, that a school district may be vicariously liable under Government Code section 815.2 for negligently hiring, supervising, or retaining a school employee who sexually abuses a student. (C.A., supra, 53 Cal.4th at p. 879, italics added.) The California Supreme Court in C.A. stated the following:

The lead opinion in John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at page 446, 256 Cal.Rptr. 766, 769 P.2d 948, it is true, referred to the school district's potential liability for negligent hiring and supervision of the molesting teacher as “direct.” In context, however, that label served merely to distinguish the negligent hiring and supervision theory from the theory that the district was vicariously liable for the teacher's molestation, a theory we rejected on the ground the molestation was beyond the scope of the teacher's employment. (Id. at pp. 447–452, 256 Cal.Rptr. 766, 769 P.2d 948.) To the same effect is Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815, 52 Cal.Rptr.3d 376, referring to a negligent supervision and retention theory as one of “direct liability,” where the plaintiff had also sought to hold the employer vicariously liable for the intentional torts of its employee. (See also Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1152, 126 Cal.Rptr.3d 443, 253 P.3d 535 [characterizing negligent entrustment as a theory making the employer “liable for its own negligence,” without considering an employer's possible vicarious liability for a manager's negligent entrustment of a vehicle to a subordinate].) As these decisions did not consider the theory of vicarious liability posited here—that the District is liable under section 815.2 for the negligence of its administrative and supervisory personnel—they cannot be taken as either endorsing or precluding this theory.

Additionally, while John R. held that the school district may not be vicariously liable under a theory of respondeat superior, it still held that a school district may be directly liable for negligently hiring and supervising the teacher. (John R., supra, 48 Cal.3d at pp. 452-453.) Plaintiff’s allegations here are based on Defendant’s allegedly negligent hiring, supervising, and retention of Cardona, not necessarily via respondeat superior. (Second Amended Complaint, ¶¶ 54-70.) Accordingly, the Court rejects this argument and finds that it does not establish the absence of a triable issue of material fact.

[T]he issue here is not whether it is foreseeable a particular adult will sexually abuse a student if left alone with the student… the issue is whether it is reasonably foreseeable that organizations or entities that provide services primarily or exclusively for children have employees who may sexually abuse a child if the organization fails to take reasonable measures to prevent the abuse. In any event, to the extent John R. suggests sexual abuse of students by school employees is not reasonably foreseeable, it is inconsistent with the Supreme Court's more recent holding in [C.A.] that school personnel owe students a duty to take reasonable measures to protect them from foreseeable injury, including “injuries to a student resulting from a teacher's sexual assault.” [Citation.]

With respect to the issue of foreseeability, Defendant argues that Plaintiff’s First Cause of Action for negligence has no merit. Defendant contends that Plaintiff cannot demonstrate Defendant had actual or constructive knowledge that Cardona posed a foreseeable risk of harm to students because it had no notice that Cardona had a propensity to engage in sexual misconduct.[1] Defendant also contends Plaintiff was required to identify an administrator or supervisor who was negligent, citing the case of Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, which held that, “[t]o establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” (Id. at p. 902.)

Defendant argues it had no information to put it on notice, as the majority of the sexual encounters between Plaintiff and Cardona occurred off-campus, their limited on-campus sexual encounters were not witnessed by anyone, and Plaintiff never reported the abuse to Defendant. (UMF 8-11.) Defendant also notes that it never received a complaint about Cardona engaging in sexual misconduct with students in her long career. (UMF 4.) Defendant then contends Plaintiff’s references to a conversation he purportedly had with Coach Alonzo is vague, (UMF 13), and that the claim Adame was aware of the relationship is based on speculative hearsay, as rumors and speculation are not actual evidence per C.A., (UMF 14). Defendant further argues there is no evidence that Defendant’s actions caused Plaintiff’s injuries.

The Court agrees with Defendant. There is no evidence in the record that Defendant had actual or constructive knowledge that Cardona posed a foreseeable risk of harm to students. There is no evidence in the record that Defendant had notice that Cardona had a propensity to engage in sexual misconduct. There is no evidence in the record that Plaintiff ever notified someone in a supervisory or administrative position over Cardona regarding the sexual misconduct. The closest evidence of Plaintiff ever having informed any other personnel of Defendant is his purported conversation with Coach Alonzo. (Compendium of Evidence[2], Ex. B, Olavarria Depo, 64:17-67:16.) However, there does not appear to be any evidence that Coach Alonzo was in a supervisory or administrative position over Cardona, so even if he was aware, that does not automatically impute such knowledge to Defendant. (See Id.) Additionally, Plaintiff admitted during his deposition that he never told Coach Alonzo he was dating Cardona or having sexual relations with Cardona, so it is unclear how Coach Alonzo would have known of or had reason to suspect the improper relationship. (See Id.; C.A., supra, 53 Cal.4th at p. 878, italics in original [“we emphasize that a district's liability must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation.”])

Moreover, similar problems exist with respect to Adame’s purported awareness of the relationship between Plaintiff and Cardona. Even assuming Adame was aware, there does not appear to be any evidence in the record demonstrating that Adame was in a supervisory or administrative position over Cardona. (See Compendium of Evidence, Ex. B, 103:4-21.) Plaintiff’s claim with respect to Adame appears to be based on assumption and speculation that Adame was aware of it, but that is not proper evidence. (See C.A., supra, 53 Cal.4th at p. 878.) Furthermore, Plaintiff admitted in his deposition to having never mentioned Cardona’s sexual misconduct to any other school staff members, or any teachers, administrators, or representatives of the school district. (Compendium of Evidence, Ex. B, Olavarria Depo., 74:21-75:8.) Given the foregoing, the Court finds Defendant has established the absence of a triable issue of material fact. The burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff contends in his separate statement that triable issues of material fact exist by virtue of Plaintiff having had sexual encounters with Plaintiff in her classroom, (UMF 1, 5), and that it is unknown if there were observers to Plaintiff’s entrance to the classroom or if others saw anything, (UMF 10). Plaintiff further contends he told Coach Alonzo about the relationship, who told Plaintiff to “just be an adult about it.” (UMF 11, 13.)

Plaintiff also contends disputed material facts exist because Cardona has been placed on administrative leave since January 24, 2023, due to the allegations in this lawsuit, and that persons such as Robin Torres, Coach Alonzo, and Adame all agreed in their depositions that the type of conduct Cardona engaged in with Plaintiff would be improper. (Drake Decl., Ex. A, Torres Depo., 15:23-16:16, 26:16-35:12; Drake Decl., Ex. B, Alonzo Depo., 7:20-12:3, 14:7-15:14; Drake Decl., Ex. C, Adame Depo., 9:3-12:23, 15:17-18:23, 20:3-24.) Plaintiff claims other disputed material facts exist by virtue of declarations from third-party witnesses such as Hector Gonzales and Jimmie Bowers, who were friends of Plaintiff during the relevant time period. Plaintiff also indicates that additional evidence may exist, but that he still has not been unable to depose Cardona. Additionally, Plaintiff argues that Defendant can be held vicariously liable for Cardona’s conduct, and that disputed material facts exist as to the foreseeability of Cardona’s risk of harm to students, including reasonable suspicion of child abuse.

The Court finds Plaintiff fails to establish the existence of a triable issue of material fact. As noted above, even assuming for the sake of argument that Coach Alonzo and Adame were on notice of Plaintiff’s relationship with Cardona, there is no evidence in the record indicating that Coach Alonzo or Adame were in supervisory or administrative positions over Cardona, which is necessary to impose liability against Defendant. (See Z.V., supra, 238 Cal.App.4th at p. 902.) Plaintiff also still has failed to overcome the fact that he admits he did not tell Coach Alonzo the details of his relationship with Cardona, (Compendium of Evidence, Ex. B, Olavarria Depo., 64:17-67:16), or that his claim regarding Adame having knowledge of their relationship is based on assumption and speculation, which is not permissible here, (see Id., 103:4-21; C.A., supra, 53 Cal.4th at p. 878). Additionally, it still does not overcome the fact the he admitted in his deposition that he did not talk to any supervisors or administrators about his relationship with Cardona. (Compendium of Evidence, Ex. B, Olavarria Depo., 74:21-75:8.)

Moreover, the fact that Robin Torres, Coach Alonzo, and Adame agree such conduct between Plaintiff and Cardona would be improper does not create a triable issue of material fact, as it does not show that they had notice of it at the time it was happening, were in a position to address it, and told any supervisors or administrators for Defendant about the relationship between Plaintiff and Cardona. (See C.A., supra, 53 Cal.4th at p. 870.) Furthermore, the declarations of Hector Gonzales and Jimmie Bowers are unavailing because they were students at the school with Plaintiff, not supervisors or administrators over Cardona, and do not indicate that they told any supervisors or administrators for Defendant about the relationship between Plaintiff and Cardona. (See generally, Gonzalez Decl.; Bowers Decl.; see Z.V., supra, 238 Cal.App.4th at p. 902.)

Finally, the fact that some of the sexual encounters occurred within Cardona’s classroom does not create a triable issue of material fact because there is no evidence anyone witnessed it. None of the evidence shows that anyone witnessed these encounters. (See Compendium of Evidence, Ex. B, Olavarria Depo., 45:18-47:2.) Plaintiff’s contention that someone could have witnessed him go into the classroom is speculative at best. (See C.A., supra, 53 Cal.4th at p. 878.) The mere fact they occurred in the classroom does not automatically impute notice to the school, especially when no one witnessed it. (C.f. Id. [“That an individual school employee has committed sexual misconduct with a student or students does not of itself establish, or raise any presumption, that the employing district should bear liability for the resulting injuries.”])

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment as to the First Cause of Action.

“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.’ [Citation.]” (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218.)

Defendant contends Plaintiff’s Second Cause of Action for Negligence Per Se has no merit because Defendant did not have the prerequisite notice. Defendant further contends there is no independent cause of action for negligence per se, and even if this cause of action were treated as one for negligence, it fails because it is based on the Child Abuse and Neglect Reporting Act. Defendant contends there is no admissible evidence indicating that any employees of Defendant knew or reasonably suspected Plaintiff was in a sexual relationship with Cardona. Plaintiff never told Coach Alonzo that he was dating Cardona or in a sexual relationship with her, and the claim that Adame was aware is speculative.

The Court finds Defendant has established the absence of a triable issue of material fact on this cause of action. Defendant correctly contends that negligence per se is not a separate cause of action. “’[T]he 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.’ [Citation.]” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534.) The Court also notes that, as Plaintiff is basing this claim off of Penal Code section 11164, et seq., there is no evidence of a police report or citation indicating that Defendant violated this statute. (See Spates, supra, 114 Cal.App.4th at p. 218 [need to prove violation of statute].) Therefore, Defendant has met its moving burden. The burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff did not provide any arguments or evidence to the contrary here. At most, Plaintiff argued that the risk of harm was foreseeable, but that argument fails for the same reasons set forth above under the First Cause of Action. Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to the Second Cause of Action.

Third Cause of Action – Negligent Hiring, Retention, and Supervision of an Unfit Employee

“[A]n employer may be liable to a third party for negligently hiring or retaining an unfit employee.” (J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 Cal.App.5th 1142, 1163.)

This cause of action is duplicative of the First Cause of Action for negligence. Accordingly, the Court incorporates by reference its analysis from above with respect to the First Cause of Action, and GRANTS Defendant’s motion for summary judgment on this cause of action.

The purpose of the law requiring supervision of students on school property is to regulate students' conduct “so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars ....” [Citation.] As noted by the California Supreme Court, “[s]uch regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.” [Citation.]

(M. W. v. Panama Buena Vista Union Sch. Dist. (2003) 110 Cal.App.4th 508, 517–518.)

Defendant contends Plaintiff’s Fourth Cause of Action for negligent supervision of a minor has no merit because Defendant did not have the prerequisite notice. Defendant also argues that this law is inapplicable because Plaintiff is not alleging any student caused harm. Defendant further contends there is no evidence Defendant could have foreseen Plaintiff placing himself in harm’s way, (UMF 7, 8), that most of the relationship and sexual encounters occurred off-campus, and that Plaintiff did not tell any school district staff about the relationship, (UMF 9-12).

The Court agrees that this law is inapplicable because there is no evidence that Plaintiff’s alleged harm was caused by another student. Clearly, the alleged harm was caused by Cardona, an employee of Defendant, not a student. (UMF 6-10.) To the extent the negligent supervision refers to the supervision of Cardona, the claim is duplicative of the Third Cause of Action and the same analysis applies here. Therefore, Defendant has met its moving burden. The burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

In opposition, Plaintiff does not present any evidence to refute Defendant’s arguments. Instead, Plaintiff argues that the alleged misconduct was foreseeable, which does not address Defendant’s argument regarding the lack of student caused harm. Further, the Court incorporates by reference its analysis from above with respect to the Third and First Causes of Action. Accordingly, the Court finds Plaintiff has not established the existence of a triable issue of material fact here.

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment as to the Fourth Cause of Action.

School boards do not owe a duty of care to be certain that students attain basic academic skills. (Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 825 [“To hold them [i.e., school boards] to an actionable ‘duty of care,’ in the discharge of their academic functions, would expose them to the tort claims—real or imagined—of disaffected students and parents in countless numbers. [Citations.]”])

Defendant contends Plaintiff’s Fifth Cause of Action for Failure to Warn, Train, or Educate has no merit because Defendant did not have the prerequisite notice. Defendant contends this cause of action fails as a matter of law because there is no duty of care owed to a student inadequately trained or educated per Peter W. Defendant then argues that even assuming Plaintiff can show Defendant owed such a duty regarding Cardona, Plaintiff cannot prove that such a breach occurred, as Defendant had no knowledge of the alleged risks. (UMF 1-5.)

The Court finds Defendant has established the absence of a triable issue of material fact here. The law is clear that a school cannot be held liable for failure to properly educate its students. (Peter W., supra, 60 Cal.App.3d at p. 825.) Plaintiff’s allegations are based on an alleged failure to educate Plaintiff on known and knowable dangers posed by Defendants’ employees and agents, and that Defendant owed a duty to train and educate minors regarding such matters. (Second Amended Complaint, ¶¶ 107-108.) Defendant has therefore met its moving burden. The burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

In opposition, Plaintiff again does not present any arguments or evidence to the contrary on this issue. While Plaintiff does argue about foreseeability, which has been addressed above, Plaintiff does not address Defendant’s arguments regarding the lack of an actionable duty of care to educate students per Peter W. Accordingly, the Court finds Plaintiff has failed to establish the existence of a triable issue of material fact.

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment as to the Fifth Cause of Action. The Court further DENIES the alternative motion for summary adjudication as moot.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Civ. Proc. Code § 437c, subd. (h).)

The Court declines to grant Plaintiff’s request for another continuance to conduct further discovery. Plaintiff provides little explanation as to why Cardona’s deposition has not been conducted after having been in litigation for over a year and half at this point. (See Drake Decl. (2/20/24), ¶ 8.) The Court already granted one continuance on this motion precisely to permit Plaintiff to conduct further discovery, which gave Plaintiff over two months to conduct the desired discovery. This action has been pending for over a year and a half now, which the Court finds to be sufficient time for Plaintiff to have deposed Cardona. Plaintiff’s failure to conduct that deposition lies with Plaintiff.

The Court GRANTS Defendant El Monte Union High School District’s motion for summary judgment. The Court DENIES the alternative motion for summary adjudication as moot.

Defendant El Monte Union High School District is ordered to give notice of the Court’s ruling and file proof of service of same within five days of the Court’s order.

[1] Defendant’s moving papers refer to a person named “Wallace” here, which appears to be a typo. (Motion, 12:12.)

[2] The Court refers to Defendant’s compilation of exhibits as a “Compendium of Evidence” instead of the lengthier title it provided, “Evidence in Support of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication of the Issues.”