Judge: Ronald F. Frank, Case: 22TRCV01219, Date: 2024-12-05 Tentative Ruling
Case Number: 22TRCV01219 Hearing Date: December 5, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: December 5, 2024¿
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CASE NUMBER: 22TRCV01219
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CASE NAME: Jane Doe #1, et al.
v. Defendant Doe School District, et al.
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MOVING PARTY: Defendant,
Palos Verdes Peninsula Unified School District
RESPONDING PARTY: Plaintiffs,
Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4, and Jane Doe 5.
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TRIAL DATE: January 27, 2025
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MOTION:¿ (1) Motion for Summary
Judgement, or in the alternative, Summary Adjudication
¿ Tentative Rulings: (1) Denied. Triable issues of
fact as to the claimed immunity defense are raised by Plaintiffs’ evidence
bearing on school promotion, participation, and implied undertaking of responsibility
or sponsorship for the relevant off-premises events where Poe may have too
closely “supervised” several of the Plaintiffs. Moreover, Dr. Licciardello’s testimony does not, in
the Court’s view, carry the moving party’s initial burden on an MSJ, in part because
actionable misconduct is alleged and asserted to have occurred on campus,
during school hours, and because payment for the European trip is not the only
way the District may have undertaken one or more of the three exceptions to the
off-campus immunity defense.
I. BACKGROUND¿¿
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A. Factual¿¿
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On November 14, 2022,
Plaintiffs, Jane Doe 1, Jane Doe 2,
Jane Doe 3, Jane Doe 4, and Jane Doe 5 (collectively “Plaintiffs”) filed a
complaint against Defendants, Defendant Doe School District (“Defendant”), and
Defendant DOES 2 through 100. On April 11, 2023, Plaintiffs filed a First Amended
Complaint (“FAC”). On July 18, 2023, Plaintiffs filed a Second Amended
Complaint (“SAC”) alleging causes of action for: (1) Negligence; (2) Negligent
Supervision/Failure to Warn; and (3) Negligent Retention/Hiring.
Now,
Defendant, Palos Verdes Peninsula Unified School District (“District”) files a
Motion for Summary Judgment or, in the alternative, Summary Adjudication,
arguing it is entitled to judgment as a matter of law on Plaintiffs’ First
Causes of Action for Negligence, Second Causes of Action for Negligent
Supervision/Failure to Warn, and Third Causes of Action for Negligent
Retention/Hiring. Specifically, District bases its motion on the argument that
it had no duty and is immune pursuant to Education Code section 44808 based on
the undisputed facts.
B. Procedural¿¿
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On October 3, 2024, District filed a Motion for
Summary Judgment, or in the alternative, Summary Adjudication. On November 21,
2024, Plaintiffs filed an opposition brief. On December 2, 2024, District filed
a reply brief.
II. EVIDENTIARY OBJECTIONS
Plaintiffs’ Evidentiary Objections to District’s Moving
Evidence:
Sustain: n/a.
However, the Court does sustain the District’s evidence contained in the
belated reply declaration of Mr. Poe, which cannot be used to meet the moving
party’s burden of presenting sufficient evidence in its motion papers, not in
its reply papers.
Overrule: 1-16
District’s Evidentiary Objections to Plaintiffs’ Opposition
Evidence:
Sustain: none.
Overrule: all.
III. ANALYSIS¿
Preliminarily,
the Court notes that per its July 18, 2024 minute order, the Court reset the
deadline to file a Motion for Summary Judgment to October 18, 2024 if the
reserved hearing date was on or before December 5, 2024. The reserved hearing
date is December 5, 2024, making the deadline for District to file its Motion
for Summary Judgment October 18, 2024, which was abided by District. The
Court’s order acted as a granting of a Motion to Shorten Time.
A. Legal Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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.)¿ “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.)¿
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520. ) 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.)¿
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 that cause of action or a defense thereto.¿¿¿ To
establish a triable issue of material fact, the party opposing the motion must
produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
B.
Discussion
i.
District’s Duty
District
relies on Education Code section 44808, which states,
“Notwithstanding
any other provision of this code, no school district, city
or county board of education, county superintendent of schools, or any
officer or employee of such district or board shall be responsible or in
any way liable for the conduct or safety of any pupil of the public schools at
any time when such pupil is not on school property, unless
such district, board, or person has undertaken to provide transportation for
such pupil to and from the school premises, has undertaken a
school-sponsored activity off the premises of such school, has
otherwise specifically assumed such responsibility or liability or has
failed to exercise reasonable care under the circumstances.
In the event of such a specific
undertaking, the district, board, or person shall be liable or responsible for
the conduct or safety of any pupil only while such pupil is or should be under
the immediate and direct supervision of an employee of such district or board.”
(Educ. Code, § 44808.)
District
argues that it is undisputed that it had not undertaken any role on the dates
of the alleged incidents, asserting the allegations of sexual assault occurred exclusively
off-campus, unrelated to any school activity or function. Specifically,
District argues that the alleged sexual assaults took place at Poe’s private
residence as well as the post-graduation Europe trip. To make this argument, District
relies heavily on LeRoy v. Yarboi (2021) 71 Cal.App.5th 737 (“LeRoy”).
In LeRoy, a student with a disability was physically and emotionally
bullied. The student entered a special schooling program and was referred to
the school psychologist. Two days after the term ended, the student committed
suicide at home. The Decedent Student’s parents sued for negligence, alleging
that the school knew of the boy’s difficulties, but did not adequately respond,
and their negligent failure to protect him from bullying on campus led to his
suicide. (Id. at 739-741.) The Court of Appeal in LeRoy, granted
summary judgment in favor of the district, principal, and assistant principal
on the grounds that the student “committed suicide off-campus during summer
break in the [family’s] home while he was not and should not have been
supervised by Respondents or any other [District] employee.” (Id. at 744.)
The
LeRoy Court agreed “with the great weight of authority that section
44808 “ ‘grants a district [and its employees] immunity [for a student’s
injuries] unless [the] student was (or should have been) directly supervised
during a specific undertaking.’” (LeRoy, supra, 71 Cal.App.5th at 743-744.)
The Court of Appeal further found that “[t]he portion of section 44808 that
refers to failing to exercise reasonable care” “does not create a common law
form of general negligence; it refers to the failure to exercise reasonable
care during one of the [three] mentioned undertakings” in section 44808. (Id.
at 744 citing Bassett v. Lakeside Inn, Inc. (2006) 140
Cal.App.4th 863, 871.) The LeRoy Court acknowledged that even if the
District breached a duty owed to the student for instances of bullying taking
place on campus, they would be immune from liability for the student’s death
under section 44808.
The Court
finds District’s reliance on LeRoy to be misplaced as to Jane Doe #1,
#2, and #4. Despite Code of Civil Procedure section 340.1, subdivision (c)
defining “childhood sexual assault” as numerous different actions committed
against plaintiffs that occurred when the plaintiff was under the age of 18
years, it appears that the District only reads section 340.1 as applying to the
act of rape. Other than Jane Doe #3 and #5, each Plaintiff alleges that, at
minimum, on campus, Poe committed acts that could qualify as violations of
California Penal Code section 647.6. Jane Doe #1 through Jane Doe #4 each
allege that Poe engaged in acts that could be defined as “molestation” or
“annoyance under Penal Code section 647.6. (SAC, ¶¶ 20, 26, 41.) Thus, at
minimum, District’s complete reliance on Education Code section 44808 and its
contested blanket statement that “[t]he sole actionable events alleged in this
matter occurred off school grounds unrelated to any school matter” render
District’s Motion DENIED at least to causes of action 1 through 3 as to Jane
Does #1, #2, and #4.
Moreover,
as to Jane Does #3 and #5, the Court acknowledges that the only on-campus
allegations linked to Poe was that Poe “groomed” and “cultivated [their] trust”.
(SAC, ¶¶ 33, 48.) However, the Court does not find LeRoy to be directly
relevant to the allegations alleged by Jane Doe #3 or Jane Doe #5. Education
Code section 44808 provides immunity to the District “unless
such district, board, or person has undertaken to provide transportation for
such pupil to and from the school premises, has undertaken a
school-sponsored activity off the premises of such school, has
otherwise specifically assumed such responsibility or liability or has
failed to exercise reasonable care under the circumstances.” (Educ.
Code, § 44808.) District submitted evidence via its PMK who stated that the
Europe trip was not a District-sponsored event because the District did not pay
for it. However, the Court does not find that this testimony is sufficient to
satisfy the moving party’s initial burden on an MSJ to establish the defense of
immunity under section 44808. The District’s proof is essentially that the
District did not pay for the trip, which the Court finds is insufficient to
establish as a matter of law that none of the “unless” provisos or undertakings
of Section 44808 apply.
Several
Courts of Appeal have interpreted the failure to exercise reasonable care under
the circumstances language in Section 44808 as referring to three preceding
undertakings: (1) undertaken to provide transportation for such pupil to and
from the school premises; (2) undertaken a school-sponsored activity off the
premises of such school; or (3) specifically assumed such responsibility or
liability. The Court finds that Defendant District fails to carry its burden of
proving that the District or Poe, a District employee, did not “specifically
assume such a responsibility or liability.” For, at minimum, the years of 1982,
1983, 1984, 1987, and 1989, Poe as well as other District employees chaperoned
the Europe trip with the actual or implied knowledge and consent of District
management. Plaintiffs’ evidence raises an inference or at least a triable
issue of fact for the inference that the District promoted, sponsored,
facilitated, and/or assumed responsibility because of proof, i.e., that “[m]eetings
for the Europe trip were held at various locations including Poe’s classroom on
the Rolling Hills High School campus, Poe’s home and the Silver Spur
Multipurpose Room. Meetings occurred bi-weekly and began as early as January of
the students’ senior year. Preparation involved Poe teaching the students about
European currency, cuisine, and culture. Students discussed the trip on campus,
flyers were passed out, and Poe hand-selected the students who were chosen to
attend.” (Liakos Decl. ¶ 12, Ex. 9, Poe Depo. Vol. I, 53:19-21; 54:7-55:20;
56:21-57:2; 57:11-25 Liakos Decl. ¶ 13, Ex. 10, Poe Depo. Vol. II, 134:1-5
Liakos Decl. ¶ 7, Ex. 4, Doe 1 Depo. 86:15-87:23 Liakos Decl. ¶ 8, Ex. 5, Doe 2
Depo. 57:8-19; 61:9-62:2 Liakos Decl. ¶ 9, Ex. 6, Doe 3 Depo. 45:14-25 Liakos
Decl. ¶ 10, Ex. 7, Doe 4 Depo. 89:16-91:2 Liakos Decl. ¶ 11, Ex. 8, Doe 5 Depo.
47:24- 48:10; 49:25-50:18; 50:25-51:24 Liakos Decl. ¶ 16, Ex. 14, Simon Depo.
25:5-24; 40:11-41:1 Liakos Decl. ¶ 17, Ex. 15, 1983 Europe Trip Itinerary, p.
JD2_0020 – JD2_0039.) The reasonable inference
is that Poe selected some of the students as being ones of which he could take
advantage on the trip after having “groomed” several under-age females during
on-campus, during school hours, activities.
Even if the
burden did shift to Plaintiffs, the Court finds that because Jane Does #1, #2, #3,
and #5 were each under the age of 18 at the time of the Europe trip, and that
District has not carried its burden in proving its immunity under Evidence Code
section 44808, that the Motion in its entirety, as to all Jane Doe Plaintiffs,
as to each cause of action is DENIED.
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