Judge: Ronald F. Frank, Case: BC686649, Date: 2022-09-02 Tentative Ruling

Case Number: BC686649    Hearing Date: September 2, 2022    Dept: 8

For 9/2/22 Hearings. Tentative: Deny MSJ; deny motion for sanctions, and sicuss whether the current trial date needs to be postponed. Deny most of District objections to Dr. Fraisse’s declaration.

The Court lists below the evidence which tentatively raises a triable issue of fact as to whether the District should have known there was a developing inappropriate relationship between Farr and the Plaintiff but the District failed to take steps to investigate or otherwise respond to behaviors observed by Ms. Doe’s fellow students on school grounds or during school-related after-school programs. The parties should be prepared to argue whether a reasonable jury could draw an inference of the District’s constructive knowledge of “grooming” behavior from the other students’ testimony combined with Farr’s and Plaintiff’s testimony, plus Dr. Fraisse’s opinion testimony as to the standard of care.

DISCUSSION Of TENTATIVE RULING:

1. The District’s Moving and Reply Papers Mistakenly Suggest the Issue of Breach Is Limited to What the District Actually Knew Rather than What It Should Have Known.

In the Second District’s published opinion in this case, Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, Justice Segal segregated the CANRA claim from the two negligence claims, applying different standards of duty to the different causes of action. Justice Segal’s decision determined that the evidence submitted by Plaintiff was not sufficient to overcome the standard of objective evidence of suspicion of wrongdoing required by the CANRA duty of care. However, the appellate decision does not say that the Plaintiff’s evidence submitted in opposition to the 1st MSJ was sufficient or was insufficient to overcome the announced constructive notice (knew or should have known) standard applicable to the negligence causes of action.1 Actual knowledge of

facts to raise a reasonable suspicion of abuse -- for purposes of the CANRA cause of action -- is not identical to the constructive notice standard for the negligence causes of action. The District’s moving and reply papers largely treat these distinct standards as though they are identical, but they are not.

There is nothing in the Second District’s opinion that relieves the District of responsibility for what a reasonable jury could determine it should have known. Breach follows from duty; the duty is predicated on either what the District knew or should have known, so breach of that duty flows from the scope of the duty to act on what should have been known, not just what was known.

Exemplary of the District’s conflating the CANRA ruling in the Court of Appeal with its sought ruling from this Court on the negligence causes of action is the discussion of the Federico case relied upon in the District’s Reply brief, and Section IV of the Reply brief which continues to argue an actual notice standard for evaluating breach of the duty owed in a special relationship case like the one at bar. Federico is distinguishable from the case at bar because there, the Court of Appeal stated that the evidence established that the school’s operators not only lacked actual knowledge, but also had no reason to know of the perpetrator’s propensity for sexual misconduct with minors. (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1211-13.) Further, as the Second District decision expressly notes, Federico “did not involve a duty to prevent abuse arising from a special relationship; thus, the case has little if any applicability here.” (Doe v. Lawndale, supra, 72 Cal.App.5th at 130 FN 6.) Yet the District continues to rely on it in support of its 2nd MSJ. That reliance is misplaced.

Over a dozen years after Federico was decided, the California Supreme Court decided C.A. vs. William S. Hart Union High School (Hart). Reliance on Hart is more properly attuned than Federico. Hart held, among other things, that “[s]chool principals and other supervisory employees, to the extent their duties include overseeing the educational environment and the performance of teachers and counselors, also have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such

abuse.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871 (emphases added).) That includes the foreseeable injury to a minor student resulting from a teacher’s or other school employee’s sexual assault. (Id. at p. 870.) That includes teachers or after-school program leaders with no prior misconduct history, but who by their conduct a reasonable District should have discovered were priming a minor in their charge for abuse. The Second District in this case made no great logical leap in applying Hart to the facts raised by the parties in the 1st MSJ, to potential District liability for shortfalls or oversights by District peersonnel responsible for Farr’s supervision and for Jane Doe’s protection. The District has properly conceded here that, based on Hart (53 Cal.4th at p. 869) and other precedents, it had a special relationship with Ms. Doe.

2. The Objections to Dr. Fraisse’s Declaration

Here, depending on whether the Court sustains the objections to Dr. Fraisse’s declaration, there could be a triable issues as to the standard of care, whether the District had reason to know that Farr was grooming2 Ms. Doe for sexual predation, and whether the District failed to take steps such as launching an investigation at some unknown point in the illicit relationship.

The Second District did not assess whether the expert declaration of Dr. Fraisse created a triable issue. It also did not address the correctness of Judge Hill’s granting the “boilerplate objections to essentially all of Dr. Fraisse’s opinions,” “including that his opinions ‘lack[ed] foundation,’ were i[i]nadmissible speculation, conclusions and opinions,’ ‘misstate[d] [the] evidence presented,’ ‘assumed facts not in evidence,’ were ‘vague and ambiguous,’ and were ‘irrelevant.’” (Doe v. Lawndale, supra, 72 Cal.App.5th at p. 122.) It appears that those same objections are being re-asserted in the reply to this 2nd MSJ. Counsel are encouraged to consider the manner in which objections to evidence are presented in the future, as the “shotgun” method, without identifying which facts are assumed or even which sentence in an objected-to paragraph are the facts being challenged by the objection, makes it much more difficult for the Court to rule.

As observed by the Second District, the objections are “boilerplate.” The District’s relevancy objection to every one of Dr. Fraisse’s opinions is a questionable practice. That objection is denied as to each one of the 11 quoted provisions of Dr. Fraisse’s declaration except as discussed below. The District’s series of bare objections, that a paragraph of opinions or multiple sentences from his declaration “misstates evidence” or “assumes facts not in evidence,” is not a model of clarity. Which fact or facts in a paragraph from Dr. Fraisse’s declaration are assumed? Which facts as to each of the 11 quoted paragraphs or other provisions are not in the collection of evidence in plaintiff’s voluminous excerpts for witness depositions? Without further detail, the objections on those two grounds are denied as lacking needed specificity.

As to Objection #1 to the entirety of paragraph 10 of the Fraisse Declaration, the Court sustains in part the objection that the witness is presenting improper conclusions of law, and as to those facts or sentences in paragraph 10 the foundation objectison are sustained. Even in a legal malpractice case and expert cannot opine on the law, or on the Legislature’s rationale for the law, or what the legal duty is or may be. Further, it is not clear that the standard to be applied in a negligence case where the CANRA claim has been summarily adjudicated is the CANRA standard of care. However, training employees on the CANRA standards can be part of a District’s duty and if Dr. Fraisse will opine that the District did not so train its teachers and other employees, there may be some marginal relevancy even in a case tried only on negligence claims.

Objections #2 and #3: objections are mostly overruled. Sustain the inadmissible opinion objection as to Dr. Fraisse’s assessment of student credibility; that is an issue for the jury. The broad opinion that every student deponent’s testimony was open and obvious will need to pared down at trial because some of that testimony was to feelings or beliefs or generalized rumor. The opinion in #3 as to “an appearance of impropriety” without tying that to the relevant standard of care is not relevant.

Objection #4: all overruled.

Objection #5: objection sustained. While Dr. Fraisse will be able to rely on student testimony to support his opinion, the parties with the Court’s assistance

will need to develop a method of allowing him to reference specific testimony without mis-characterizing it.

Objection #6: overruled.

Objection #7: overruled; see #1.

Objection #8 and #9 and #10: overruled.

Objection #11: overruled.

3. The Testimony Raised by the Opposition to the MSJ Bearing on Constructive Notice of Facts That Might Require the District To Have Acted Before Farr Was Arrested.

The Second District opinion devotes an entire paragraph to a discussion of deposition testimony from several students, classmates of Jane Doe’s. The Court invites oral argument from both sides as to whether the District “should have known” or whether an inference can be made by a jury that the District had constructive notice of things that Doe’s fellow students observed but the District’s managers and employees claim to have not. A spill of water on the supermarket floor might not be actually known to the market’s employees before a shopper slips and falls, but the market is deemed to have constructive notice of the spill depending on how and where the spill occurred or for how long it sat un-noticed on the floor. Here, is the District on constructive notice of things that occurred “a lot” or “frequently” or “all the time” on school premises, or only what was in plain view in the band room, lunchroom, at a sanctioned after-school program for students in the junior high band, or on a sanctioned off-site field trip supervised by District employees other than Farr?

The testimony from Doe’s classmates, Farr himself, and Doe in support of the Opposition notes that Farr would hug Ms. Doe when other people were around, but Farr would hug others too. (Doe depo. 65:1-19.) Farr sat next to Doe “all the time, and multiple people would be around.” (Id. 66:18-23.) She thought “Ms. Fetterhoff would see us hug.” (id. 69:20-23.) She wore a ring that Farr gave her. (Id. 79:6-16.) Whether this is “ambiguous” behaviro or whether, taken with

other evidence, it should not have been deemed ambiguous, are tentatively questions for the jury.

Mr. Farr testified that he asked permission from Ms. Fetterhoff which she granted to come to the band room (which was left open during lunchtime) to assist kids that needed help. (Farr Depo 52:17-53:1.) He conceded to crossing the line of a physical relationship with Ms. Doe on a summer field trip attended by program leaders but does not remember if there were chaperones (id. 66:13-67:8.) In response to a question as to whether “it was obvious to others around that something was going on” between him and Ms. Doe, Farr answered “people were always . . . saying like, “you and [Ms. Doe] are going out like as a joke, you know.” (Id. 71:6-14.) It was other students who teased Farr about his relationship with Ms. Doe “because of how [they] acted towards each other in front of others.” (Id. 77:24-78:7.) When he attended Ms. Fetterhoff’s class, Farr would always sit next to Ms. Doe. (Id. 72:6-10.) During RAP after school, Farr and Doe “would essentially always be together.” (Id. 72:16-19.) He would play with her hair or she would play with his on campus at Jane Addams school. (Id. 73:10-15.) Hugs and playing with hair and flirting were “a fairly common occurrence between [Farr and Ms. Doe] on campus at Jane Addams.” (Id. 73:22-74:7; 75:20-76:2.) He let her wear his letterman jacket on campus at Addams and she wore it there when Farr was around. (Id. 76:14-77:6.)

Dennis Perry testified that as a member of the Addams school staff, he has attended mandatory training for signs to look for including sexual abuse; that training changed after the 2016-2017 school year to include a new course called Ethics and Boundaries concerning appropriate relationships between adults and students including not being alone with students. (Perry Depo. 21:3-22:5.) This could create a triable issue as to whether the earlier training was within the standard of care.

Student CG testified to seeing Farr and Jane Doe in the band room during lunchtime, “interacting,” “hanging out” less than 10 times. (CG depo. 19:19-20:18.) When Farr came into the band class, he would just observe in the back of the class, not sitting next to students. (Id. 22:19-23:13.) Farr would lend Ms. Doe his sweater, which CG thought was a bit odd. (Id. 27:5-17.) She also observed “play fighting” between Farr and Ms. Doe such as pushing and tickling “pretty

frequently” that at the time she did not then understand as inappropriate (Id. 28: 2-25.) Also “pretty frequent” was seeing Farr and Ms. Doe tickling and playing with each other’s hair. (Id. 29:22-30:6.) Such friendly interactions also occurred in the band room during lunchtime, and per CG Ms. Fetterhoff had a view of the bandroom from her office within the band room. (Id. 30:24-31:6.) During the RAP afterschool program, Farr and Ms. Doe were always together, in close proximity. (Id. 31:19-25.) CG observed Farr and Ms. Doe hug and she would rest her head on his shoulder. (Id. 34:8-17.) She also saw the two of them together at a water park being flirtatious and splashing each other with water. (Id. 36:20-37:8.) CG’s drum line friends openly discussed a joke or teasing that Farr and Ms. Doe were boyfriend and girlfriend. (Id. 41:1-10.) By Thanksgiving, others in the RAP band besides the drum line were talking about how Farr and Ms. Doe were interacting. (Id. 44:1-12.) Others discussed how Farr and Ms. Doe sat next to each other in Ms. Fetterhoff’s band class. (Id. 46:18-47:3.)

Ms. Villareal testified that she knew and told her subordinate staff that hugging a student could be inappropriate grooming behavior by an adult towards a student. (Villareal 60-61.)

Student EP testified that In Ms. Fetterhoff’s band class, if Farr was not helping out with the class or musical instruments, he would typically be sitting next to Ms. Doe. (EP Depo 22:15-20.) It happened a lot, perhaps as many as 28 times, that EP would walk into a room to see Farr and Ms. Doe alone there and she had the feeling that she was intruding on a couple. (Id. 27:2-14.) EP also observed Ms. Doe attempt to sit on Farr’s lap and he would push her off, during 7th period band class, snack period, and during summer RAP. (Id. 28:1-25.) Her impression was that this was like a boyfriend/girlfriend fight sort of thing. (Id. 29:1-4.) EP discussed with other students how awkward the others felt when walking in on Farr and Ms. Doe, or they reported seeing Far tickling her or talking very close together. (Id. 30:22-31:16.) She saw them hug, and Farr would hug Ms. Doe differently than he would hug other students. (Id. 32:23-33:8.) Hugging, tickling, and talking closely happened “all the time.” (Id. 33:24-34:4.) It was rumored that the two were dating, making out, having sex. (Id. 34:12-25.) She saw the two of them playing with each other’s hair “a lot” and she saw tickling between Farr and Ms. Doe “a lot” including in Ms. Fetterhoff’s band class. (Id. 40:4-6, 45:4-17.) She saw and heard the two of them discuss her wearing his grey

zip up jacket. (Id. 46:11-22.) She saw Farr give Ms. Doe a piggy back ride at the lazy river on a water park trip, where Ms. Diana, Mr. Luis and Ms. Maria were there. (Id. 56:12-57:10.)

Student AF observed Farr and Ms. Doe sit next to each other during 7th period band class “all the time.” (AF Depo. 38:2-6.) People in the band RAP program would joke or tease Ms. Doe about her relationship with Farr. (Id. 54:23-55:6, 62:13-21.) Student CM observed Farr tickling Ms. Doe in the band room. (CM Depo. 44:12-45:2.) He heard others gossiping or rumoring that Farr and Ms. Doe were having a very close relationship. (Id. 69:18-70:10.) Student CIG wore Farr’s jacket during 7th period band class and during the RAP program. (CIG Depo. 23:13-18.) Student RG observed Ms. Doe to put her head on Farr’s shoulder “a lot.” (RG Depo. 30:5-11.)

Collectively, this compendium of deposition excerpts tentitively create a triable issue of fact as to what a reasonably observant District would also have seen, and whether these were signs that Farr and Ms. Doe had treaded into the danger zone of sexualizing, grooming, or priming for sexual abuse. A reasonable jury could well decide that some of this testimony is not credible, or that if credible the information the District should have known would not have enabled the District to have commenced a timely investigation before the abuse had already occurred. But in the Court’s tentative view, there is a sufficient quantum of cross-corroborated testimony to overcome the undisputed-material-facts standard on MSJ.

The Second District did note (id. at p. 137) the deposition testimony of the District’s principal and Farr’s RAP supervisor bearing on measures the District had taken to detect and prevent abuse. The sufficiency of those measures appears to this Court to raise triable issues of fact for a jury to decide whether that training fairly or reasonably protected minor students from “grooming” or “sexualizing” conduct by teachers or administrators who lacked actual knowledge of touching, kissing, hugging, or of arguably ambiguous behavior. Dr. Fraisse has opinions that the District’s measures or training did not comply with the standard of care. Dr. Fraisse’s opinions may not be believed, or may be overcome by more persuasive testimony of District employees. But exactly what is the standard of care and whether the District met the standard are tentatively for the jury to decide.

4. The Motion for Sanctions

On the motion for sanctions, the MSJ #2 was not frivolous in the Court’s view even though it is tentatively to be denied. As this Court noted in its tentative ruling on the motion for sanctions, the determination of duty is not the end of the analysis on a tort case MSJ.

The last paragraph of Section B of the Doe vs. Lawndale decision by the Second District states that the question of whether the District took reasonable measures -- to prevent sexual abuse of students and to supervise Farr and Doe -- is a “case-specific question of breach.” (Doe v. Lawndale, supra, 72 Cal.App.5th at p. 137-38.) The Second District then added the following sentence: “And it is a question for the jury, not the court on summary judgment.” (Id. at p. 138.) In the overall context of the Second District opinion, that concluding sentence does not preclude, as a matter of law, a decision on breach at the MSJ level if there were no material facts in dispute. It is case-specific as to whether the Court can decide a breach question as a matter of law on MSJ.

While the remaining tort question of breach and causation are usually questions of fact for the jury, there are occasions where there is no dispute as to the material facts and the Court can decide the issue of breach as a matter of law. Public agencies secure summary judgment rulings on breach issues in other types of cases subject to a constructive notice standard, e.g., premises liability cases where the uplift of a sidewalk is less than the threshold for a dangerous condition of public property. In addition, a non-frivolous reason to bring a summary judgment motion shortly before trial is to “smoke out” the evidence an adversary intends to present, including expert witness opinions and the grounds on which they rely.