TENTATIVE RULING

 

Calendar:    2

Date:               8/19/2022 

Case No:         20 STCV30458 Trial Date:  February 6, 2023 

Case Name:    Zaida R. v. East Los Angeles Community College, et al.

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party:            Defendants East Los Angeles Community College and Los Angeles Community College       

Responding Party: Plaintiff Zaida R.      

RELIEF REQUESTED:

Summary Judgment in favor of defendants as against plaintiff on her entire operative Second Amended Complaint 

In the alternative, summary adjudication of plaintiff’s fourth, fifth and/or sixth causes of action 

CAUSES OF ACTION: from Second Amended Complaint  

1) Sexual Battery v. Flores 

2) IIED v. Flores 

3) Assault v. Flores 

4) Public Entity Liability v. ELAC, LACCD 

5) Title IX Violations v. ELAC, LACCD

6) 42 USC section 1983; Civil Rights Violations v. ELAC, LACCD 

SUMMARY OF FACTS:

Plaintiff Zaida R. alleges that defendant Los Angeles Community College District (“LACCD”) manages and operates defendant East Los Angeles Community College (“ELAC”), a public community college with campuses located in Monterey Park and South Gate.   Plaintiff alleges that in the fall semester of 2017, while plaintiff was at the South Gate campus doing math homework, defendant Wilfredo Flores, a math professor at the South Gate campus, approached plaintiff and told her he was a math professor and could help plaintiff with her homework.  Plaintiff alleges that Flores took plaintiff to a secluded room in the rear of his office, and while plaintiff began asking questions about her homework, Flores began touching plaintiff’s arms, shoulders and hands, and that plaintiff felt most uncomfortable when he touched her bare thigh, as plaintiff was wearing shorts.  At that time, the Dean of the South Gate campus, who ultimately took a report, walked by and asked, “Don’t you have a class to get to,” and plaintiff left so she could attend class.

Plaintiff alleges that in the Fall of 2018, plaintiff enrolled in Flores’ math class, not realizing Flores was the same man that had inappropriately touched plaintiff the year before.  On August 30, 2018, plaintiff needed Flores to provide her with an add-code to enroll in his class, so Flores asked plaintiff to stay after class.  Plaintiff alleges that during the course of obtaining the add-code from Flores, Flores went to a part of his classroom that is not visible from the hallway windows and called plaintiff over, and then grabbed both of plaintiff’s hands, began whispering to plaintiff that she was going to pass his class, and that the matter had to stay between the two of them, and then when plaintiff tried to leave hugged plaintiff from the front, and kissed her on the ear.  As plaintiff tried to pull away, Flores held on tighter, feeling plaintiff’s breasts and told plaintiff “I love you,” before finally letting plaintiff go. 

Plaintiff alleges that she continued to attend the South Gate campus but felt fearful and uneasy that she would run into Flores, and would avoid Flores’ classroom at all costs, ultimately asking a friend to attend class with her, and remained uneasy and fearful for her safety.

Plaintiff alleges that at all relevant times employees, agents, officers and board members of ELAC and LACCD knew or should have known that Flores was unfit and incompetent, creating a particular risk to others, which harmed plaintiff.   Plaintiff alleges that she reported the incident to a counselor, and to ELAC Dean Destiny Duran and ELAC Campus Dean Sonia Lopez and ended up ultimately dropping out of ELAC for fear of running into Flores. 

ANALYSIS:

Request for Continuance 

Plaintiff in opposition argues that the motion should be denied or continued because defendants have failed to produce evidence of facts essential to justify opposition. 

Plaintiff argues that through no lack of diligence, plaintiff was unable to obtain important discovery, including the depositions of all of the persons most qualified designated by defendant, and specifically the deposition of Professor Mayoryk, a professor who reported to plaintiff that Flores had a history of harassing female students, and nothing was ever done about it, and another professor suspected of having knowledge of Flores’s dangerous propensities.  Plaintiff also indicates defendant has failed to produce in a timely manner information that would allow plaintiff to locate Genova R., a female student identified in a complaint to defendants by another student, Evelyn W., as having had an encounter with Flores, and being willing to be contacted, and Eunice, a student worker who had made a complaint about Flores.

CCP section 437c(h) provides, in pertinent part:

“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….” 

Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances.   The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that 

“A declaration in support of a request for a continuance under section 437c, subdivision (h) must show:

  (1) the facts to be obtained are essential to opposing the motion; 

(2) there is reason to believe such facts may exist; and

(3) the reasons why additional time is needed to obtain these facts.”

Cooksey, at 254, citations, internal quotations omitted.  

It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory.  Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.  

In Dee, the Second District found that the trial court’s failure to grant a continuance constituted reversible error, noting:

“ '[A] summary judgment is a drastic measure which deprives the losing party of trial on the merits.' ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [107 Cal.Rptr.2d 270].) “To mitigate summary judgment's harshness, the statute's drafters included a provision making continuances-which are normally a matter within the broad discretion of trial courts-virtually mandated ....” (Ibid.; Code Civ. Proc., § 437c, subd. (h).) Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 [115 Cal.Rptr.2d 780].)

Dee, at 34-35. 

In Dee, the court of appeal found that the declaration in support of the request for continuance had explained why a deposition transcript could not be filed within the deadline for opposition, as well as why the admissions in the deposition were essential to plaintiff’s case.   The court also found that defendant had acted promptly so that the transcript was available for the court before the summary judgment hearing.  Dee, at 35.  

Here, counsel’s declaration was timely filed, and requests that the court continue the hearing on the motion based on the circumstance that the contact information for Genova R. and Eunice, witnesses who have information about reporting inappropriate behavior by Flores which would have put defendants on notice, was requested in May by a production request attached to a PMQ deposition notice, to which LACCD objected.  [Valenzuela Decl., paras. 25-27].  Some contact information has since been produced, but less than a week before the opposition due date.  [Id.]. There has also been a delay in conducting depositions of the person who reported that Eunice had complained about Flores, witness Lam, and former employee Escatiola. [Valenzuala Decl., para. 33].  Some delay has been due to plaintiff’s counsel’s paternity leave, and the unavailability of witnesses before that leave occurred.   [Valenzuela Decl., paras. 33].  The declaration also indicates that at recent PMQ depositions, including one on August 2, 2022, it has become clear that the designated witnesses did not have information concerning Flores from earlier time periods, and a deponent produced, Rivera, indicated that Vice Chair Gabriel Castro “would be a more appropriate person to discuss the supervision of Flores,” and “handled the surveys and evaluations of Flores.”   [Valenzuela Depo., paras. 35, 36].  

It would appear that these witnesses may have information directly relevant to the issues raised by defendants in their motion, particularly issues pertaining to any notice to defendants of issues with their employee prior to plaintiff’s encounters.  Specifically, defendants seek summary adjudication of the following issue:

Issue 4: Plaintiff's Fifth Cause of Action for Title IX Violations (Education Amendments of 1972), fails as a matter of law because Plaintiff cannot show by way of specific facts that Defendants had actual knowledge of the alleged harassment prior to the subject incident.

The information at issue could provide essential information with respect to plaintiff’s ability to support plaintiff’s causes of action in response to defendant’s motion, and plaintiff has presented a timely and strong showing in support of the granting of a continuance.  Defendants in the reply argue that defendants are not responsible for the delays here, but do not suggest that any of the identified witnesses or information would not be relevant to defeat defendants’ positions in this matter.  The continuance is granted, and the matter will be continued to permit the discovery to be completed.   

RULING:

Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication to Plaintiff Zaida R.’s Second Amended Complaint is CONTINUED to a date to be determined at the hearing. 

The Court finds pursuant to CCP § 437c (h), based on the Declaration of Alex Valenzuela, Esq. submitted in opposition to the motion, that facts essential to justify the opposition may exist but cannot, for reasons stated therein, now be presented.   Plaintiff shall serve and file any supplemental opposition fourteen (14) days prior to the newly scheduled hearing.  Any reply thereto or other supplemental papers shall be filed within the statutory mandates.

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.