Judge: Mark C. Kim, Case: 21STCV26799, Date: 2023-01-12 Tentative Ruling

Case Number: 21STCV26799    Hearing Date: January 12, 2023    Dept: S27

1.     Background Facts

Plaintiffs, Jane Doe B.A. and Jane Doe V.E. filed this action against Defendant, Long Beach Unified School District (also erroneously sued as Jackie Robinson Academy) for damages arising out of an incident that occurred at the school. 

 

Plaintiff’s operative complaint is her FAC, filed on 6/10/22.  Only Plaintiff B.A. is bringing the FAC, which includes causes of action for childhood sexual assault, negligence, negligent retention/supervision/failure to warn, sexual battery, IIED, and false imprisonment.  All causes of action except the two negligence-based causes of action are brought on a ratification theory.  The crux of Plaintiff’s complaint is that a substitute teacher, Pietro Dalia, inappropriately touched her breasts and genitals during class. 

2.     Motion for Summary Judgment

a.     Relief Sought

Defendant seeks summary judgment on the FAC.  Alternatively, it seeks summary adjudication of each cause of action in the FAC. 

 

b.     Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.) 

 

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “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” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

 

c.     Negligence-Based Causes of Action

The parties agree that the District is liable for its supervisory employees’ failure to prevent sexual violation of a student if those employees “knew or should have known” that the incident was likely to occur.  See, for example, D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 223. 

 

LBUSD met its moving burden to show this was not the case.  See facts 11-13 in the moving separate statement. 

 

Plaintiff argues there are triable issues of material fact concerning LBUSD’s hiring of Dalia as a substitute teacher for essentially three reasons: first, she contends the superintendent and principal had a duty to train Dalia such that the conduct at issue would not occur; second, she contends the principal and superintendent had been in Dalia’s classroom prior to the incident and should have stopped the incident from occurring; third, she contends other students had reported inappropriate sexual behavior on the part of Dalia during the class period prior to her own, and thus Dalia should have been removed from the classroom, which would have prevented the subject incident from occurring.

The Court agrees with LBUSD that the first two arguments lack merit.  Plaintiff points to nothing showing that a principal or a superintendent has the obligation to train a substitute teacher concerning how to not engage in sexual misconduct with a minor student.  Notably, the Court is also swayed by LBUSD’s argument that any such training, even if it were required, would not have stopped the incident, as all adults know they are not supposed to engage in this behavior; if Dalia was going to do so, he was going to do so regardless of any training telling him not to.  There is, therefore, no causation component with respect to any failure to train.  The evidentiary objection concerning introduction of the sexual harassment policy is sustained, as the policy clearly relates to treatment of employees by other employees, not to treatment of students by teachers.

 

The Court also agrees that evidence that the principal and/or superintendent had been in the classroom prior to the incident does not, standing alone, raise triable issues about failure to prevent; absent knowledge of prior similar incidents, there would be nothing to prevent.

 

The Court is much more concerned about the evidence that Dalia had engaged in sexually inappropriate conduct during the class period prior to Plaintiff’s, and that multiple students had notified the administration of the conduct, but Dalia was not removed from the classroom.  The evidence consists entirely of (a) the incident report narrative created by LBUSD, (b) several victim or witness statements, which are unsigned and not under penalty of perjury, and (c) the LBPD report.  All of this evidence is hearsay without exception, and is therefore inadmissible.  Defendant’s evidentiary objections are sustained.

 

The Court, however, is very troubled by the existence of the evidence, and finds that admissible versions of the evidence could likely be submitted.  Because summary judgment is a drastic remedy, the Court is inclined to continue the hearing to permit Plaintiff to submit admissible evidence showing that Defendant’s administrator(s) knew of the prior incident.  If such evidence is submitted, the motion will be denied.

 

d.     Causes of Action Based on Vicarious Liability or Ratification

Defendant cites various causes of action holding that a public entity, including a school district, cannot be held vicariously liable for a teacher’s inappropriate behavior.  See, for example, C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.  Defendant also cites a federal district court case holding that public entities cannot be liable, as a matter of law, for ratification of a teacher’s inappropriate conduct.  Further, Defendant contends it did not ratify Dalia’s conduct, as it investigated and terminated Dalia’s employment with the District the same day the incident occurred.

 

Plaintiff, in opposition to the motion, essentially argues the District ratified Dalia’s PRIOR inappropriate conduct during the class period prior to her own, and is therefore liable for Dalia’s inappropriate conduct on a ratification theory. 

 

The threshold issue is whether ratification can ever be an appropriate theory against a school district.  The only case directly on point is a federal district court case, and is therefore not binding on this state court.  That said, the Court does find the analysis of Garcia ex rel. Marin v. Clovis Unified School Dist., 627 F.Supp.2d 1187, 1102-03 compelling in this regard, and is inclined to find that a ratification theory cannot be used against a school district under the circumstances. 

 

Even if the District could be held liable, as a legal matter, the issue is whether Defendant ratified the conduct that gives rise to this litigation – the assault on Plaintiff.  The evidence is that the District terminated Dalia’s employment the same day the incident occurred.  Plaintiff cites no authority for the position that the District can be held liable for ratification of PRIOR incidents that occurred before the subject incident.  The very nature of a ratification theory is that the employee does a bad thing, the bad thing injures the plaintiff, and the employer ratifies the bad thing.  The nature of the theory is not that the employee did PRIOR bad things, those prior bad things did NOT injure the plaintiff, the employer ratified those prior bad things, and then that led to the employee doing the bad thing that injures the plaintiff.  Indeed, that is exactly the theory upon which negligence, discussed above, is based. 

 

The Court therefore finds the causes of action for vicarious liability and/or ratification-based liability against the District based on Dalia’s bad acts all fail as a matter of law.  The motion for summary adjudication of those causes of action is granted.

 

e.     Conclusion

The motion for summary adjudication of the first, fourth, fifth, and sixth causes of action is granted.  The hearing on the motion for summary adjudication of the second and third causes of action is continued to Thursday, 2/23/23.  Supplemental opposition and reply to be filed per Code.  Supplemental opposition must consist solely of admissible evidence concerning what happened prior to the incident with Plaintiff and a brief not to exceed five pages, if necessary.  Supplemental reply must consist solely of any evidentiary objections and a brief not to exceed five pages, if necessary.  No additional separate statements need to be filed. 

 

Moving Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.