Judge: Peter A. Hernandez, Case: 19STCV15074, Date: 2022-10-05 Tentative Ruling
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Case Number: 19STCV15074 Hearing Date: October 5, 2022 Dept: O
1. Defendant Mountain View Unified School
District’s Motion for Summary Judgment is DENIED.
2. Plaintiff Emmanuel Felix’s Motion for
Sanctions is DENIED in full. District is awarded sanctions in the reduced
amount of $700.00 against Plaintiff’s counsel, which is payable within 30 days
from the date of the notice of ruling.
Background
Plaintiffs Emmanuel Felix (“Felix” or “Plaintiff”), a minor, by and through his Guardian Ad Litem, Evelyn Garcia, and Evelyn Garcia, individually (“Garcia”) (collectively, “Plaintiffs”) allege as follows:
1. Motion for Summary Judgment/Adjudication
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.) “[CCP] section 437(c), 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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis added].)
“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 . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437(c) subdiv. (p)(2).) “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.” (CCP § 437 subdiv. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437(c) subdiv. (c).)
Discussion
On May 1, 2019, Plaintiffs filed a complaint against District and School (together, “Defendants”); the first through third causes of action, for Negligence, Negligent Supervision and Inadequate Training [per Government Code § 815.2] and Vicarious Liability of Public Employees [Government Code § 815.2], respectively, were asserted by Felix only; the fourth cause of action, for Intentional and Negligent Infliction of Emotional Distress, was asserted by Garcia only.
The complaint alleges, in relevant part, that on March 23, 2018, Felix was a four-year-old student at Baker Elementary in El Monte, a school within District (Complaint, ¶¶ 10, 12 and 16); that at approximately 1:00 p.m. that day, Felix suffered serious injury when he was left unsupervised and alone in a bathroom with another child, known as “Brian,” who had been harassing him (Id., ¶ 19); that Brian, during this time, pushed Felix, causing Felix to fall and hit his face on a bathroom sink (Id.); that Defendants did not call 911 or summon medical assistance and instead called Felix’s mother, Garcia, at approximately 2:10 p.m. (Id., ¶¶ 1 and 19); that Garcia demanded that 911 be called but the principal denied her demand and told her to call “off campus” (Id.) and that Felix sustained injuries. (Id., ¶¶ 19 and 21.)
District moves the court for an order granting summary judgment in its favor and against Plaintiffs; in the alternative, District seeks summary adjudication as follows:
Issue
No. 1: Plaintiff
Felix’s first cause of action (i.e., for General Negligence) is without merit
as a matter of law;
Issue
No. 2: Plaintiff
Felix’s second cause of action (i.e., for Negligent Supervision and Inadequate
Training) is without merit as a matter of law;
Issue
No. 3: Plaintiff
Felix’s third cause of action (i.e., for Vicarious Liability of Public
Employees) is without merit as a matter of law; and
Issue
No. 4: Plaintiff
Evelyn Garcia’s Fourth Cause of Action for Intentional and Negligent Infliction
of Emotional Distress is Without Merit as a Matter of Law.
On October 28, 2021, subsequent to the filing of the instant motion, Garcia dismissed her claims, with prejudice. The motion, then, is moot with respect to the fourth cause of action.
Issue No. 1: Plaintiff Felix’s First Cause Of Action (General Negligence)
A public entity is not liable for any injury except as provided by statute. (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 171.) Common law or public policy considerations may not be used to create a non-statutory basis of liability against a public entity in contravention of Gov. Code § 815. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 942; Government Code Section 815 states: “(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.”.)
1. Public Entity
Government Code Section 815.6 states: “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.”
Here, it is undisputed that Defendant District is a public entity. As indicated above, public entity liability is statutory only. (Gov. Code §815(a).) Defendant claims Plaintiff’s First Cause of Action is not grounded in proper statutory authority and fails as a matter of law because general negligence cannot be asserted directly against a public entity. (Mot. pp. 6-7.) Defendants argued that Plaintiff has not alleged his First Cause of Action as a vicarious liability claim on the acts of District employees. (Mot. p. 7.) Plaintiff agrees in his Opposition that Defendant can only be vicariously liable for the negligence of its agents, but he claims the allegations in the Complaint make it clear that he is alleging vicarious liability in his negligence cause of action. (Oppo. p. 5.) The Court finds that Plaintiff’s negligence claim is sufficient to constitute a vicarious liability claim since the Complaint states, “the employees, agents, independent contractors, volunteers and aides of Defendant … failed to utilize ordinary care in properly supervising, monitoring, protecting, and overseeing its pupils and students, allowing the four (4) year-old to enter into an unsupervised area of a bathroom with another aggressive child that had been harassing Plaintiff Felix. Moreover, the bathroom [is] a dangerous condition.” (Compl. ¶ 28.)
2. Negligence
The elements of negligence are: (1) legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “Generally, whether a defendant [is] negligent constitutes a question of fact for the jury…. However, where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment granted.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214.)
a. Duty
“While school districts and their employees have never been considered insurers of the physical safety or students, California law has long imposed on school authorities 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. [Citations.]’ [Citation; Education Code, section 13557.]” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal. 3d 741, 747.)
California Education Code Section 44807 states: “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. A teacher, vice principal, principal, or any other certificated employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. The provisions of this section are in addition to and do not supersede the provisions of Section 49000.”
Defendants do not argue that Plaintiff failed to satisfy the duty element in his negligence claim. Plaintiffs argue Defendants owed Plaintiff a duty to exercise reasonable care to protect him from foreseeable injuries caused by another student pushing him, and once Plaintiff was injured, to use reasonable care to ensure that he received prompt and effective medical treatment to minimize the effect and pain of his injuries. (Oppo. p. 4.) The Court agrees and finds that Defendants had a duty to properly supervise Plaintiff and reasonably protect the health and safety of Plaintiff, including protection from foreseeable injuries caused by another student and the exercise of reasonable care following an injury.
Thus, Defendants fail to satisfy their burden in showing that there is no triable issue of material fact as to the duty they owed Plaintiff.
b. Breach
Defendants do not explicitly negate each element of Plaintiff’s negligence claim. They counter Plaintiff’s allegations with citations to their undisputed material facts. Defendants claim that Plaintiff was supervised at the time he tripped and fell by three adults (Defendant’s Undisputed Material Facts (“DUMF”) #10.), which Plaintiff contests with supporting evidence to show that Plaintiff was pushed and fell. (Plaintiff’s Undisputed Material Facts (“PUMF”) #10.) Defendants claim that students in Plaintiff’s class were asked to each wash their hands in groups of two (DUMF #4.), which Plaintiff contests by stating they were asked one at a time or in groups of two such that Plaintiff may have been using the bathroom by himself. (PUMF #4.) Defendant claims Plaintiff ran to the sink, against classroom rules (DUMF #7.), which Plaintiff contests by claiming Plaintiff was not running to the sink but was rather told by Ms. Palafox to “hurry” when Plaintiff told her that he had to go “pee pee,” although Plaintiff does not contest that running in general is against classroom rules. (PUMF #7.) Defendant claims Plaintiff was given timely medical attention by administering ice and contacting Plaintiff’s mother (DUMF #11.), which Plaintiff contests by claiming that the teachers, who did not have formal nursing training. applied a paper towel to Plaintiff’s face and eventually applied cold water or an ice pack and that Plaintiff was not sent to the nurses’ office. (PUMF #11.) Defendants claim Plaintiff was not pushed by anyone and that there was no student named “Brian” in the class with Plaintiff (DUMF #6, 8, 9.), which Plaintiff contests by claiming he was not running to the sink, he was told to “hurry” by Ms. Palafox, and that a male student named “Brian” or “Ryan” pushed him. (PUMF #6, 8, 9.)
The Court finds that while Defendants satisfy their initial burden in presenting facts to negate the element of breach in Plaintiff’s negligence claim, Plaintiff satisfies his burden in proving there is a triable issue of material fact as to Defendants’ breach of their duty of care to Plaintiff by providing supporting evidence that sufficiently contest Defendants’ Undisputed Material Facts.
c. Causation
Defendants claim that Plaintiff’s injuries were directly caused by Plaintiff’s tripping over his own feet and that there is no evidence of any inadequate supervision or any alleged inadequate supervision which led to Plaintiff’s injuries because the teachers were watching the students enter the bathroom and administered first aid when Plaintiff incurred his injuries. (Mot. p. 8.) Plaintiff claims that Defendants lacked supervision or their supervision was ineffective because the supervising adults testified. That they did not actually see Plaintiff fall and hit his head on the sink. (Oppo. p. 7.) Plaintiff also claims that Defendants had notice of “a dangerous, even violent dynamic between the boy who pushed Plaintiff and caused him to fall” because Plaintiff’s mother reported to Plaintiff’s teacher that the same boy bit Plaintiff in a prior incident, and that Defendants could have kept the two physically separated. Plaintiff claims Defendants administration of medical care violated their duty of care because they did not send him to the nurse’s office and did not call 911. (Oppo. p. 7.)
The Court finds that there is a triable issues of material fact as to the element of causation in Plaintiff’s negligence claim against Defendants.
d. Damages
Defendants do not contest that Plaintiff suffered injuries. Plaintiff claims that it is indisputable that by delaying the provision of proper treatment for Plaintiff’s bone fracture, Defendants at the very least caused Plaintiff some period of unnecessary pain and suffering until Plaintiff’s mother could pick him up and he could receive treatment at the hospital. (Oppo. p. 8.)
The Court finds that Plaintiff has sufficiently alleged that he suffered damages in his negligence claim.
Thus, the motion for summary adjudication as to the First Cause of Action is DENIED.
Issue No. 2: Plaintiff Felix’s Second Cause Of Action (Negligent Supervision And Inadequate Training)
The
Court finds that as analyzed above, Plaintiff has demonstrated there are
triable issues of material facts as to Plaintiff’s negligent supervision and
inadequate training claims against Defendants.
Issue No. 3: Plaintiff Felix’s Third Cause Of Action (Vicarious Liability Of Public Employees)
The Court finds that as analyzed above, Plaintiff has demonstrated there are triable issues of material facts as to Plaintiff’s vicarious liability of public employees claim against defendants.
The Court DENIES summary adjudication as to all causes of action and DENIES Defendants’ Motion for Summary Judgment.
2. Motion for Sanctions
Legal Standard
“Misuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. . . (g) Disobeying a court order to provide discovery.” (CCP § 2023.010, subds. (d), (e) and (g).)
CCP section 2023.030 provides, in relevant part, that, “[t]o the extent authorized by the chapter governing any particular discovery method. . ., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .”
Discussion
Plaintiffs move the court, per CCP sections 435-437, 2023.010, subdivisions (d), (e) and (g), 2023.030 and Evidence Code section 413, for an order (1) imposing evidence, issue, and monetary sanctions in the amount of $6,707.35 for lying under oath to the court in an opposition and declaration filed by District on November 30, 2021, forcing Plaintiffs to file several unnecessary motions to compel and (2) striking District’s answer to Plaintiffs’ complaint.
Procedural Deficiencies
Plaintiffs’ motion is not accompanied by a California Rules of Court (“CRC”) Rule 3.1345 separate statement (i.e., “[A]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: . . . (7) For issue or evidentiary sanctions” [emphasis added]).
Plaintiffs’ request for issue or evidentiary sanctions, then, is summarily denied.
Merits
The subject of Plaintiffs’ motion pertains to District’s representations regarding Cynthia Sohaili’s (“Sohaili”) employment status.
Plaintiffs’ counsel Regina Lotardo (“Lotardo”) represents as follows: Plaintiffs have been meeting and conferring with District regarding conducting District’s PMK and employee depositions since September 9, 2021 in order to obtain mutually available dates. (Lotardo Decl., ¶ 2.) On September 10, 2021, Plaintiffs’ counsel confirmed to District’s counsel that Plaintiffs wished to depose Sohaili. (Id., ¶ 3.) After not hearing back from District’s counsel about available dates for Sohaili’s deposition, Plaintiffs’ counsel unilaterally set Sohaili’s deposition for October 18, 2021. (Id., ¶ 14.) On October 8, 2021, Plaintiffs’ counsel served an objection to the deposition on the basis that it had been unilaterally set. (Id., ¶¶ 16 and 27.) On October 12, 2021, Plaintiffs’ counsel reached out to District’s counsel and asked for alternative Dates for Sohaili’s deposition. (Id., ¶ 17.) When no alternative dates were provided, Plaintiffs’ counsel proceeded to take a “Certificate of Non-Appearance” on October 18, 2021. (Id., ¶ 21.) On October 21, 2021, Plaintiffs filed a “Motion to Compel Deposition of Defendant Mountain View School District’s Employee Cynthia Sohaili.” (Id., ¶ 22, Exh. A.) District represents in its November 30, 2021 opposition that Sohaili was formerly a substitute teacher with District but ended her employment with District “well in advance” of Plaintiffs’ attempt to notice Sohaili’s deposition as a party-affiliated witness. (Id., ¶ 23, Exh. B.) District, however, had identified Sohaili as a witness to the incident in its responses to Plaintiffs’ form and special interrogatories served August 3, 2021 and indicated that she could be contacted through “Responding Party’s attorney of record.” (Id., ¶¶ 25 and 26.)
On December 13, 2021, the court denied the motion based on District’s representation that Sohaili was no longer an employee. (Id., ¶ 29, Exh. D.) Plaintiffs thereafter obtained an address for Sohaili in Washington and in California. (Id., ¶ 30.) Plaintiffs had a process server go to the California address several times to serve Sohaili but was advised by a man there that Sohaili no longer lived at that address. (Id.) Plaintiffs then had to open a case in Washington in order to obtain a proper subpoena to subpoena Sohaili there; however, after service in Washington, it was discovered that the address in Washington was also incorrect. (Id., ¶ 31.) District was subsequently able to get in touch with Sohaili and produced her for a deposition. (Id., ¶ 32.) Sohaili testified that she is, and has been, employed by District for the last 15 years. (Id., ¶ 33, Exh. E.)
In opposition, District acknowledges that Sohaili was identified as a potential witness. Assistant Superintendent John Lovato (“Lovato”) explains that Sohaili has worked as an on-and-off substitute teacher for District; that, from time-to-time, Sohaili is not available or has not engaged in substitute teaching; that, if Sohaili is actively available and engaged in providing substitute teaching services, then she is considered by the District to be an employee but that if she is not so available and engaged, she is not an employee of District; that, when the case was filed in 2019 and into 2020, District considered Sohaili to be an employee, as District believed that she was available for and was engaged in providing substitute teaching services for the District; that, in 2021, District was aware that Plaintiffs wished to depose Sohaili; that Sohaili had not been providing active substitute teaching services at that time for a specific District school and was not considered an employee; that, despite this, District employees unsuccessfully tried to contact Sohaili at her last telephone number to facilitate her deposition; that, based on Sohaili not providing recent active services to District and not being able to contact Sohaili at her last known number, District authorized counsel to represent hat Sohaili was no longer employed by District because District did not consider her an employee of District at that time; and that, when District later learned of Sohaili’s new contact information, District reached out to her to facilitate her deposition. (Lovato Decl., ¶¶ 1-5.)
Plaintiffs’ motion is denied. A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 disapproved of on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Plaintiffs have not identified any court order with which District has not complied. Further, Plaintiffs have not been denied Sohaili’s deposition; this has been taken. Plaintiffs claim that District’s counsel made misrepresentations regarding Sohaili’s employment status in his declaration and that District “lied” in its discovery responses; however, these contentions are not supported by the exhibits attached to Lotardo’s declaration. District’s counsel Bryan Aghakhani (“Aghakhani”) represented in his declaration concurrently filed with District’s opposition to Plaintiffs’ “Motion to Compel Deposition[, etc.]” that Sohaili was a former substitute teacher with the District, but was no longer so employed and ended her employment “well in advance” of Plaintiffs’ attempt to notice Sohaili’s deposition as a party-affiliated witness. (Lotardo Decl., ¶ 23, Exh. B.) Lovato’s declaration (in addition to Paragraph 3 of Aghakhani’s declaration dated September 21, 2022) contains information explaining why Aghakhani’s statement and District’s discovery responses were not erroneous. Monetary sanctions are likewise declined by the court on this basis.
Sanctions
The court declines Plaintiffs’ request for monetary sanctions based upon the ruling on the motion. District seeks sanctions against Plaintiffs and/or their counsel, jointly and severally, in the amount of $2,100.00 [calculated as follows: 10 hours preparing opposition at $175.00/hour, plus 2 hours reviewing reply and attending hearing at $175.00/hour].
Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $350.00 (i.e., 2 hours at $175.00/hour). Sanctions are imposed against Plaintiffs’ counsel only and are payable within 30 days of the date of the notice of ruling.