Judge Ralph C. Hofer, Case 20STCV30458 2022-10-28 Tentative Ruling

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 Professor Flores took plaintiff to a secluded room in the rear of his office, and while plaintiff began asking questions about her homework, Professor 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 Professor Flores’ math class, not realizing Professor Flores was the same man that had inappropriately touched plaintiff the year before. On August 30, 2018, plaintiff needed Professor Flores to provide her with an add-code to enroll in his class, so Professor Flores asked plaintiff to stay after class. Plaintiff alleges that during the course of obtaining the add-code from Professor 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, Professor Flores held on tighter, feeling plaintiff’s breasts and told plaintiff “I love you,” before finally letting plaintiff go.

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 Professor Flores.

Under CCP § 437c(p)(2) a defendant “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. 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.”

Issue 1: Plaintiffs Fourth Cause of Action for Public Entity Liability (Gov. Code § 815.2), Fifth Cause of Action for Title IX Violations (Education Amendments of 1972), and Sixth Cause of Action for 42 U.S.C. § 1983; Civil Rights Violations, all fail as a matter of law because Plaintiff failed to comply with the California Tort Claims Act in that she did not file a timely written claim in proper form with the proper officer or body given the fact that Defendants ELAC and LACCD are public entities.

The opposition relies on Williams v. Hovarth (1976) 16 Cal.3d 834, 842, in which the California Supreme Court reversed a trial court order dismissing an action grounded on the federal Civil Rights Act, 42 U.S.C. section 1983, after the trial court sustained a demurrer with leave to amend and plaintiffs declined to amend the complaint. The Court held that the trial court had improperly found the claim barred because the complaint failed to allege compliance with the California statutory provision concerning tort claims, because the claim provisions are inoperative in an action brought under 42 U.S.C. 1983, so that the failure to allege compliance with the statute was irrelevant. The Court reasoned:

Accordingly, we hold that the claim provision of section 911.2 is inoperative in an action brought under section 1983. Thus, the fact that plaintiffs in the case at bar did not allege compliance with this provision is irrelevant to their claim under the Civil Rights Act. As the trial court erroneously sustained defendants' demurrer because of its belief that a claim within 100 days was necessary, we conclude the judgment of dismissal must be reversed.”

This authority is not discussed by defendants in reply, and, in fact, defendants argue repeatedly in the reply and supplemental reply that the claim, which was received by defendants’ general counsel, Kevin Jeter, was viewed and treated as a claim for Title IX violations and to trigger the obligation to conduct a Title IX violation investigation, and for forwarding to the Office for Diversity, Equity and Inclusion. [UMF No. 32, and evidence cited; Jeter Decl., para. 12; Supp. Evidence, Ex. 22, Jeter Depo., pp. 16, 24-30]. This response suggests that the public entities received appropriate notice of the Title IX claim. Under Williams, defendants were not entitled to the statutory notice claimed with respect to the sixth cause of action for alleged civil rights violations.

This situation leaves the issue in a posture where the issue, since it is noticed jointly as to all three causes of action, cannot be appropriately summarily adjudicated in favor of moving defendants, as the court cannot find, even if the notice as to the fourth cause of action were to be determined to be insufficient, that the notice as to the fifth and sixth causes of action was insufficient. The motion accordingly is denied on the ground the issue as framed by the moving papers cannot be summarily adjudicated in favor of defendants due to the issue seeking summary adjudication jointly on causes of action against which summary adjudication is not proper.

Issue 2: Plaintiff's Fourth Cause of Action for Public Entity Liability (Gov. Code § 815.2), fails as a matter of law because Defendants are not vicariously liable for Wilfredo Flores' alleged wrongful conduct given the fact that Mr. Flores' alleged sexual battery is not a part of his "scope of employment” as a math professor for Defendants.

Defendants argue that as public entities, they cannot be held vicariously liable for the conduct of Professor Flores in engaging in alleged sexual misconduct toward plaintiff, as such conduct does not fall within the course and scope of his employment and was not foreseeable to defendants so as to fall within the range of risks allocable to an employer.

Defendants argue that this direct negligence cause of action also fails as a matter of law, and that the circumstances here are distinguishable from the case law plaintiff previously relied upon to defeat demurrer to this cause of action. Defendants argue that in this case a special relationship did not arise because plaintiff cannot show that students were engaged in activities that were part of the school’s curriculum, or closely related to the school’s delivery of educational services, and that any misconduct was not foreseeable, as, at best, one year prior to the alleged sexual assault giving rise to this case, Professor Flores was spoken to by ELAC staff about being too close to a student.

The special relationship argument does not appear to be supported by reference to any specific evidence. The separate statement submitted by defendants is not helpful, as it for the most part repeats for each issue the same facts which allegedly support every other issue, when the issues are distinct. In any case, it would appear that the circumstances here, as set forth in the moving papers themselves, that is, that plaintiff was being required to interact with a professor to obtain an add-code to enroll in a class, would be an activity closely related to the school’s delivery of educational services. [See UMF Nos., 20-22, and evidence cited].

“Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458–1461, 249 Cal.Rptr. 688.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability

Plaintiff also relies on Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607, in which the Court reversed a court of appeal decision on a motion for summary judgment, ordering the trial court to grant it, in a case in which plaintiff, a student at UCLA, alleged that the university and several of its employees had negligently failed to protect her from the foreseeable violent conduct of a classmate, who the university had become aware was experiencing delusions and required mental health treatment, and who one morning stabbed plaintiff during a chemistry lab.

“This case involves whether, and under what circumstances, a college or university owes a duty of care to protect students like Rosen from harm. Considering the unique features of the collegiate environment, we hold that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities.”

Defendants argue that plaintiffs must now submit a factual showing to support their theory of direct liability and not merely rely on the presumption that the allegations of their pleading are true, as was the case in connection with the demurrer. Defendants argue that the facts of this matter are that, at best, prior to plaintiff’s incident Flores was spoken to once by ELAC staff about being too close to a student, which would not make the incident with plaintiff foreseeable.

Defendants rely on the declaration of the Dean of Instructional Services at ELAC, Ming-Huei Lam, who indicates that the incident plaintiff recounts in 2017 having come to the attention of the Dean is untrue because Dean Lam never took a report and does not have knowledge that the student was plaintiff. [Lam Decl., para. 4]. Dean Lam goes on to indicate that in the fall of 2017, Dean Lam and Evelyn Escatiola, Dean of Academic, Liberal Arts and Sciences, met with Flores, “to counsel him on allegedly getting to [sic] close to students while tutoring.” [Lam Decl., para. 4]. Dean Lam downplays the meeting stating that she did not at that time observe sexual harassment or assault by Professor Flores but observed that “he was close to the student, and I felt he should keep a further distance.” [Lam Decl., para. 4]. Lam states that “The purpose of this meeting was for me to apologize to Wilfredo Flores for telling him that he was in the wrong office in front of students, instead of doing so in private.’ [Lam Decl., para. 4].

Dean Escatiola submits a declaration stating that this counseling meeting took place, did not involve acts of sexual harassment or assault, and that no further conversations took place with Flores prior to the alleged incident in the Fall of 2018 involving plaintiff. [Escatiola Decl., paras. 5, 6]. Dean Escatiola indicates that prior to the incident involving plaintiff, she was never made aware of any other incidents between Professor Flores and plaintiff. [Escatiola Decl., para. 7].

Plaintiff submits evidence that there was a student comment form submitted in January of 2016 by a female student Evelyn W., which reports an incident with Professor Flores where he suggested that he and the student meet after class to discuss her class standing, asked if they could meet outside because “There are cameras and ears around here,” and ultimately met the student at a Carl’s Jr., then asked if he could get into the student’s car, and when she refused whispered, “I was going to offer you something.” [Additional Facts Nos. 54-65, and evidence cited; Avila Decl., paras. 2-18; PMK, Rivera Depo., Ex. 17]. The report indicates that the student was uncomfortable, told Professor Flores that if he could not discuss the issue in public, help her with her course work, or advise her how to improve her standing, she would drop the class. The student indicated that she feared that other female students might not have the courage to say no to an authority figure. [Id].

That form also identifies another student who had waited for Evelyn W. during this encounter, because she had had a “similarly uncomfortable meeting with Flores,” and who wished to remain anonymous, but who agreed to allow her information to be given if she needed to be contacted for questions pertaining to the incident. Defendants’ PMK on the issue recognized having seen the form before and did not remember contacting Evelyn W. or the witness or know if they had been contacted. [Additional Facts Nos. 66, 70, and evidence cited; Avila Decl., paras. 2-18; PMK Rivera Depo. pp.42-50].

That form led to a meeting in February of 2016, which Professor Flores attended, and evidently conceded that he had suggested meeting a student off campus to discuss her standing in the class, had met her at the Carl’s Jr., and asked to talk inside her car, and stated in retrospect he should never have asked her to get into her car. [Additional Facts Nos. 67, 68, and evidence cited; PMK Depo., Rivera Depo, pp. 48-51, Ex. 18]. Evidently, the incident was not reported to Title IX representatives. [Id.]. The report indicates that the only action taken was that Professor Flores agreed to complete an on-line sexual harassment training, which was noted to be “completely voluntary.” [Id].

As noted above, defendants have already conceded in the moving papers that there was a meeting with Professor Flores concerning sitting too close to students prior to plaintiff’s incident. Plaintiff submits the deposition testimony of Dean Escatiola, in which she confirms the accuracy of a statement she made in February 2020, indicating that prior to the counseling meeting with Professor Flores, Dean Lam had reported to Dean Escatiola that Dean Lam, “had already heard rumors that Flores would bring students to his cubicle and he would be very close to them, touching them ‘knee to knee,’ but no one had ever complained.” [Additional Facts Nos. 72-75, and evidence cited; Escatiola Depo., p. 60: 16-23; 64]. Dean Escatiola indicates that in the fall of 2017, she looked into the files, and spoke to the previous Dean, but there were no complaints documented. [Additional Facts Nos. 75, 79, and evidence cited, Escatiola Depo., p. 62-64]. She did not report the counseling meeting or incident to the Vice President or Office of Diversity, or personally document it. [Escatiola Depo., pp. 77, 79].

Dean Lam in deposition also mentioned a prior complaint by a college student worker, Eunice. [Lam Depo., pp. 54-57, 59]. She also indicated after the session with Professor Flores in 2017, Lam spoke with the previous Dean of the Math Department, Dean Rivera (the PMK for the second PMK Deposition), who told her that Professor Flores had a prior incident of sexual harassment charges against him. [Lam Depo., Ex. 5].

The originally designated PMK of defendants testified in deposition that the only complaints that defendants had were the three student complaints in 2018, including plaintiff’s and two that came after plaintiff, and was unable to explain why there was no record located of the Evelyn W. complaint or other prior incidents. [PMK Grice Depo., pp. 26, 38-39].

Plaintiff also submits deposition testimony from Maribel Soriano, a professor at the ELCA at the time, who testified that she observed Professor Flores on maybe three occasions before plaintiff’s reported incident in a cubicle with female students in close proximity, and with students appearing uncomfortable. [Soriano Depo., pp. 14-25]. Professor Soriano reported the observation to Dean Rios and suggested that the better practice would be for Professor Flores to speak to students outside the cubicle, in a chair outside the cubicle in the hallway. [Additional Facts Nos. 89-90, and evidence cited; Soriano Depo., pp. 19, 20]. Dean Rios shared with Professor Soriano that he was aware of what was going on with Professor Flores and female students, and that they were already observing and taking care of the situation. [Additional Fact No. 91, and evidence cited; Soriano Depo., p. 24]. Professor Soriano also reported that student worker Eunice Valverde and students Nancy Borja shared with her that students were uncomfortable with Professor Flores, and his offers to meet with them outside of class, and that she asked both of them to talk to the Deans and went with them to talk to them. [Additional Facts Nos. 92-97, and evidence cited; Soriano Depo., pp. 28-30, 32-34].

Plaintiff also submits her own declaration in which she states that when she reported the assault to Dean Escatiola, the Dean asked her where the August 2017 incident occurred, plaintiff told her she did not remember but would recognize it if she saw it again, and that, although plaintiff did not tell the Dean the location, the Dean took plaintiff to the specific room, and plaintiff confirmed it was the room where the first incident took place. The Dean then stated that they had “had problems in the past with Professor Flores being in that very room with other students.” [Additional Facts Nos. 26-29, and evidence cited; Zaida R. Decl., para. 13].

Plaintiff also indicates that when she spoke to Professor Mayoryk after the second incident, and brought up what had occurred with Professor Flores, Professor Mayoryk told plaintiff she knew who plaintiff was talking about before plaintiff mentioned his name, and told plaintiff that Flores had “a history of harassing female students and nothing was ever done about it.” [Additional Facts Nos. 30-33, and evidence cited; Zaida R. Decl., paras. 14, 15]. Another student, Diana Palacios, was also involved in that conversation, and recounts it similarly. [Palacios Decl., para. 4, 5].

Student and student worker Eunice Chavez indicates in her declaration that Professor Flores told her he had gotten into trouble at a previous school for accidently kissing a female student, and that when she notified Dean Lam that a student had been in the back cubicle with Professor Flores for 30 minutes, Dean Lam alerted Professor Flores she was coming back there before approaching. [Additional Facts Nos. 99-101, and evidence cited; Chavez Decl., para. 5-8]. Chavez indicates that she informed Dean Escatiola of the concerns with Professor Flores, including the report about getting in trouble for accidently kissing a female student at a previous job. [Chavez Decl., paras. 9, 10].

The supplemental opposition includes a declaration of Evelyn Avila, who is formally known as Evelyn Walldez, so is the person who filed the complaint against Professor Flores in January of 2016 and reports the incident which was reported in the form discussed above. [Avila Decl., paras. 1-17]. Avila also indicates that after she dropped the complaint in the drop box, she received a phone call from a male ELAC employee two days later, who was “very dismissive” of the complaint, and asked if she was in any danger with Professor Flores, and that Avila was never contacted by defendants again about her complaint. [Avila Decl., para. 18].

This evidence, if credited by the trier of fact, is sufficient to support a reasonable inference that defendants had been notified of several previous incidents involving Professor Flores, failed to effectively train, discipline or otherwise address the issues with Professor Flores and female students, so that the incident at issue was foreseeable, and involved direct negligence on the part of defendants. Triable issues of fact remain, and the motion on this issue is denied.

Defendants argue that there can be no vicarious liability under Title IX but concede that an institution can be liable under Title IX where it had actual knowledge of harassment. Davis Next Friend LaShonda D v. Monroe County Bd. of Educ. (1999) 526 U.S. 629, 648-649. Accordingly, issue three does not dispose of an entire cause of action, as required under CCP 437c(f)(1), as there is an alternative theory under which liability may be imposed.

Defendants argue that in order to recover under this alternative theory, it must be shown that actual knowledge was on the party of an appropriate school official, who had exercises substantial control over the harasser and the context in which the known harassment occurred. Reese v. Jefferson School Dist. No. 14J (9th Cir. 2000) 208 F.3d 736, 739. Defendants argue that the official must respond to the conduct “in a manner that is not clearly unreasonable” in order for liability to attach. Davis, at 648-649.

Defendants argue that plaintiff cannot show actual prior knowledge by defendants, deliberate indifference, or failure to act, but that the facts show that once plaintiff reported the alleged sexual misconduct on or about September 10, 2018, a Title IX investigation was undertaken immediately by defendants through the retention of outside counsel to conduct an investigation. [UMF No. 39, and evidence cited]. Defendants submit evidence that Professor Flores was put on paid administrative leave immediately on September 11, 2018, and was never allowed to return to work. [UMF Nos. 37-38, and evidence cited]. Defendants argue that they were not aware of any alleged prior acts with plaintiff before fall of 2018. [UMF Nos. 18 and 24-25, and evidence cited]. The evidence submitted by defendants, as discussed above, primarily consists of declarations from Dean Lam and Dean Escatiola, in which they indicate they were aware only of the one incident of Professor Flores with respect to the improper use of an office, and being too close to students, and that Professor Flores was counseled. [Lam Decl., para. 4; Escatiola Decl., paras. 5-7].

As discussed in detail above, plaintiff in opposition to the motion has submitted evidence that suggests that officials within defendants, including the Deans, had been notified of the Evelyn W. complaint, and had been notified of various other complaints concerning Professor Flores’ treatment of female students, sufficient to support a reasonable inference that they had actual knowledge of alleged harassment prior to the subject incident, and failed to respond to the conduct in a manner that was not clearly unreasonable, particularly when the Evelyn W. incident was dealt with by no discipline or admonition, was not placed in a file concerning Professor Flores’ employment of which later officials could be aware, and that numerous subsequent concerns by staff and students reported directly to the Deans resulted in no action on the part of defendants.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

Plaintiff relies on Monell v. Department of Social Services (1978) 436 U.S. 658, 694, in which the United States Supreme Court reversed the decision of the U.S. Court of Appeals for the Second Circuit, which had affirmed a district court ruling finding that petitioners, female employees of the Department of Social Services and Board of Education of the City of New York, were not entitled to backpay for forced pregnancy leaves. The action had been brought under 42 U.S.C. 1983, alleging that the Department and Board had violated petitioners’ civil rights when as a matter of official policy they compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons.

“Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law."

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

“We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.”

The individual Defendants are not eligible for qualified immunity under California law because California denies qualified immunity to officers who use excessive force. See Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir.2002). We need not decide whether sufficient evidence supports municipal liability under California law because California has rejected the rule in Monell, and imposes respondeat superior liability on municipalities for the constitutional violations of their employees. See id. (citing Cal. Gov't Code § 815.2).

Plaintiff argues that defendants during the relevant time period, had a stated policy that the LACCD is to provide a safe educational, employment and business environment free from prohibited discrimination, unlawful harassment and sexual harassment, and requires that “Any Supervisor who becomes aware of a situation that could reasonably be perceived as a violation of this policy has a duty to report that information to the Director, Office for Diversity, Equity and Inclusion.” [Additional Fact No. 49, and evidence cited; Grice Depo. pp. 39, 54-60, 80; Ex. 9]. Plaintiff also submits Administrative regulations pursuant to which specific rules and procedures are in place for reporting allegations of sexual misconduct, and testimony of Dean Lam conceding that the safety of students to be free from sexual harassment is a priority for LACCD. [Additional Facts Nos. 50-53, and evidence cited; Grice Depo. pp. 57-60, Exs. 10, 11a, 11b; Lam Depo., pp. 20-21].

Plaintiff argues that defendants actually had a governmental custom, although not formally approved through defendants’ official decisionmaking channels, akin to that in Monell. Plaintiff argues that despite being notified first in 2016 by Evelyn W., and then on many occasions from many sources thereafter, defendants followed a policy to disregard the complaints about Professor Flores, to fail to investigate or discipline him, and to permit his sexual harassment of female students to continue.

Plaintiff relies on the evidence previously discussed above in support of that argument, including that the Evelyn W. complaint resulted in what was apparently no investigation beyond a dismissive phone call to the student, and no discipline being imposed, with nothing ever sent to the Office of Diversity. [See Additional Facts Nos. 54, 55, 65-70, and evidence cited]. The evidence supports a reasonable inference that this pattern continued throughout the period prior to plaintiff’s incident, including the meeting concerning the close physical proximity to students which defendants indicate was primarily conducted to apologize to Professor Flores and protect him from being placed in a vulnerable position. [Additional Facts Nos. 71- 75, 78, and evidence cited]. Prior to that meeting, Dean Lam had been informed by a student worker that Professor Flores would bring students to a cubicle and get close to them, but rather than investigate properly when advised by the student worker that the improper conduct was happening, Dean Lam alerted Professor Flores to her presence before she could observe what was happening in the cubicle. [Additional Facts Nos. 75, 99-101, and evidence cited]. There is no record of officials or Deans or other professors contacting the Office of Diversity about any known or perceived inappropriate behavior by Professor Flores prior to plaintiff’s incident. [Additional Fact No. 76, and evidence cited]. The 2018 investigators were not provided with the Evelyn W. statement, because the Office of Diversity never received it. [Additional Fact No. 81, and evidence cited].

As discussed above, the supplemental opposition submits evidence that there were reports to the Deans directly from students, a student worker, and Professor Soriano of concerns regarding Professor Flores, but nothing was apparently done, and Professor Soriano was not told to report Professor Flores to the Office of Diversity, and Professor Flores was not reported to the Office of Diversity or disciplined until the incident with plaintiff was reported. [Additional Facts Nos. 89- 102, and evidence cited].

This showing is sufficient evidence, if credited, to support a reasonable inference that defendants proceeded according to this unofficial policy in violation of the stated policy, to deprive plaintiff of her right to be free from sexual harassment in defendants’ educational environment. The motion accordingly is denied as to the sixth cause of action as well.

This issue is jointly stated with respect to all three causes of action, and it has been established that plaintiff was not required to comply with the claims requirements in connection with at least one of those causes of action, the sixth cause of action for Civil Rights violations. See Williams v. Hovarth (1976) 16 Cal.3d 834, 842. This authority has not been challenged by defendants. Defendants also appear to concede that the claim submitted was viewed and treated as sufficient to trigger an investigation of a claim based on alleged Title IX violations in connection with the fifth cause of action. [See UMF No. 32, and evidence cited; Jeter Decl., para. 12; Supp. Evidence, Ex. 22, Jeter Depo., pp. 16, 24-30].

Plaintiff has submitted evidence which would support a reasonable inference that defendants are directly liable to plaintiff based on their own negligent training, supervision and retention of Professor Flores, as there were several complaints about Professor Flores’ conduct in connection with female students of which defendants had notice and failed to act.

The evidence includes notice of a student comment submitted in January of 2016 by a female student which described an incident of sexual harassment, which was not properly reported, was subject to a meeting which resulted in no consequences to Professor Flores, as well as further counseling conceded to have been conducted by the Deans which also resulted in no consequences, as well as numerous complaints by students and Professor Soriano, but no action was taken. [Additional Facts Nos. 26-33, 54-68, 70, 72-75, 79, 89-97, 99-101, and evidence cited; Avila Decl., paras. 1-18; PMK, Rivera Depo., pp. 42-50, 48-51, Exs. 17, 18; Escatiola Depo., pp. 60, 62-64, 77, 79; Lam Depo., pp. 54-57, 59, Ex. 5; PMK Grice Depo., pp. 26, 38-39; Soriano Depo., pp. 14-25, 28-30, 32-34; Zaida R. Decl., paras. 13, 14, 15; Palacios Decl., paras. 4, 5; Chavez Decl., paras. 5-10].

This evidence, if credited by the trier of fact, is sufficient to support a reasonable inference that defendants had been notified of several previous incidents involving Professor Flores, failed to effectively train, supervise, discipline or otherwise address the issues with Professor Flores and female students, so that the incident at issue was foreseeable, and involved direct negligence on the part of defendants. Triable issues of fact have been raised.

Plaintiff has submitted evidence which, if credited, would support a reasonable inference that officials within defendants, including the Deans, had been notified of the Evelyn W. complaint, and had been notified of various other complaints concerning Professor Flores’ treatment of female students, and had actual knowledge of alleged harassment prior to the subject incident, and failed to respond to the conduct in a manner that was not clearly unreasonable, particularly when the Evelyn W. incident was dealt with by no discipline or admonition, was not placed in a file concerning Professor Flores’ employment which later officials could be aware of, and that numerous subsequent concerns by staff and students reported directly to the Deans resulted in no action on the part of defendants.

[Additional Facts Nos. 26-33, 54-68, 70, 72-75, 79, 89-97, 99-101, and evidence cited; Avila Decl., paras. 1-18; PMK, Rivera Depo., pp. 42-50, 48-51, Exs. 17, 18; Escatiola Depo., pp. 60, 62-64, 77, 79; Lam Depo., pp. 54-57, 59, Ex. 5; PMK Grice Depo., pp. 26, 38-39; Soriano Depo., pp. 14-25, 28-30, 32-34; Zaida R. Decl., paras. 13, 14, 15; Palacios Decl., paras. 4, 5; Chavez Decl., paras. 5-10].

As discussed in detail above, plaintiff has submitted evidence which shows that despite being notified first in 2016 by Evelyn W., and then on many occasions from many sources thereafter, defendants followed a policy to disregard the complaints about Professor Flores, to fail to investigate or discipline him, and to permit his sexual harassment of female students to continue.

This evidence specifically includes evidence that Evelyn W. complaint resulted in what was apparently no investigation beyond a dismissive phone call to the student, and no discipline being imposed, with nothing ever sent to the Office of Diversity. [See Additional Facts Nos. 54, 55, 65-70, and evidence cited]. The evidence supports a reasonable inference that this pattern continued throughout the period prior to plaintiff’s incident, including the meeting concerning the close physical proximity to students which defendants indicate was primarily conducted to apologize to Professor Flores and protect him from being placed in a vulnerable position. [Additional Facts Nos. 71- 75, 78, and evidence cited]. Prior to that meeting, Dean Lam had been informed by a student worker that Professor Flores would bring students to a cubicle and get close to them, but rather than investigate properly when advised by the student worker that the improper conduct was happening, Dean Lam alerted Professor Flores to her presence before she could observe what was happening in the cubicle. [Additional Facts Nos. 75, 99-101, and evidence cited]. There is no record of officials or Deans or other professors contacting the Office of Diversity about any known or perceived inappropriate behavior by Professor Flores prior to plaintiff’s incident, despite the numerous complaints. [Additional Fact No. 76, and evidence cited]. The 2018 investigators were not provided with the Evelyn W. statement, because the Office of Diversity never received it. [Additional Fact No. 81, and evidence cited].

The supplemental opposition submits evidence that there were reports to the Deans directly from female students, a student worker, and Professor Soriano of concerns regarding Professor Flores, but nothing was apparently done, and Professor Soriano was not told to report Professor Flores to the Office of Diversity, and Professor Flores was not reported to the Office of Diversity or disciplined until the incident with plaintiff was reported. [Additional Facts Nos. 89- 102, and evidence cited].

The Court notes that to the extent broad hearsay objections are raised, the Court has not considered evidence for the truth of hearsay evidence but for the non-hearsay issues in this matter, such as notice, or matters subject to hearsay exceptions. The characterization by counsel of certain testimony is considered only for purposes of the Court understanding why counsel believed a continuance of the hearing to conduct further discovery was warranted, which issue is now moot in light of the Court’s granting of the continuance requested.

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.