Judge: Stephen I. Goorvitch, Case: 20STCV10698, Date: 2024-05-17 Tentative Ruling
Case Number: 20STCV10698 Hearing Date: May 17, 2024 Dept: 82
Mark Bu v. Los
Angeles Unified School District
Case No.
20STCV10698
Motion for
Judgment Notwithstanding the Verdict
BACKGROUND
Plaintiff
John Doe filed this action against the Los Angeles Unified School District
(“Defendant” or the “LAUSD”) alleging that he was sexually abused by an LAUSD
employee, Clara Moreno-Santos. Plaintiff
proceeded to trial on two causes of action: (1) The Fifth Cause of Action:
Breach of duty to report child abuse under Government Code section 815.6; and
(2) The Eighth Cause of Action: Negligence under Government Code section
815.2. The jury found in favor of
Defendant on the fifth cause of action, finding that the LAUSD did not violate
its mandatory reporting duty under Penal Code section 11166. Now, Defendant moves for a judgment
notwithstanding the verdict, arguing: (1) There is no claim for negligence
because the jury found that the LAUSD complied with its mandatory duty, and
there is immunity under Penal Code section 11172; (2) There is no causation
between any negligence and Plaintiff’s damages; and (3) Education Code section 44808
(even though the court rejected this argument on ruling on Defendant’s motion
for summary judgment). The motion is
granted because Plaintiff identifies almost no acts of negligence falling
outside the scope of the LAUSD’s immunity under Penal Code section 11172, and there
is insufficient evidence of causation between the LAUSD’s alleged negligence
and Plaintiff’s damages.
LEGAL STANDARD
A
motion for judgment notwithstanding the verdict must be granted when the
verdict is not supported by substantial evidence. (Alaniz v. Sun Pacific Shippers, L.P.
(2020) 48 Cal.App.5th 332, 343.) The
evidence must be viewed in the light most favorable to the prevailing
party. (Ibid.)
DISCUSSION
A. The LAUSD is immune for negligence relating
to the SCAR report
The
jury found that the LAUSD did not violate its duty to report child abuse under
Government Code section 815.6. In other
words, the jury found that the LAUSD made the required SCAR report. This presents an issue with Plaintiffs’
verdict on the eighth cause of action because the LAUSD is immune for alleged
negligence in connection with the SCAR report, per California Penal Code
section 11172. “In order to promote the
purpose of the act to protect abused children, section 11172 provides that
mandated reporters of child abuse are absolutely immune from liability.” (Robbins v. Hamburger Home for Girls
(1995) 32 Cal.App.4th 671, 769.) This
immunity is extremely broad:
“This absolute
immunity extends not only to the making of the initial report, but also to
conduct giving rise to the obligation to report, such as the collection of
data, or the observation, examination, or treatment of the suspected victim
performed in a professional capacity and to subsequent communications between
the reporter and the public authorities responsible for investigating and
prosecuting child abuse.”
(Arce v. Childrens Hospital
Los Angeles (2012) 211 Cal.App.4th 1455, 1484-1485, citing Robbins,
supra, 32 Cal.App.4th at 679.) “The
immunity extends even to negligent, knowingly false, or malicious reports of
abuse” by mandatory reporters. (Id.
at 1485, citing Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1215; Storch
v. Silverman (1986) 186 Cal.App.3d 671, 681.)
The
statute affords broad and total immunity to mandatory reporters (as
distinguished from “[a]ny other person reporting a known or suspected instance
of child abuse or neglect.”). (See,
e.g., Kirkorian, supra, 196 Cal.App.3d at 1218-1223; Storch,
supra, 186 Cal.App.3d at 677-682.) As
discussed, this immunity extends to the investigation of allegations of sexual
abuse. For example, in Krikorian v.
Barry (1987) 196 Cal.App.3d 1211, a group of parents hired Dr. Helena
Barry, a psychologist and mandatory reporter, to determine whether their children
had been sexually abused. Dr. Barry’s
evaluations formed the basis of the parents’ lawsuit against Claudia
Krikorian’s preschools, and she sued Dr. Barry.
Krikorian alleged that Dr. Barry had questioned the children and
performed the forensic examinations negligently. The Court of Appeal held that Dr. Barry had
absolute immunity:
“A law conferring ‘absolute’
immunity for the act of reporting suspected child abuse, but not for
professional activities contributing to its identification, would not likely
allay the fear of a prospective reporter that an angry parent might initiate
litigation for damages, following a report which is subsequently proven to be
mistaken. . . . Insofar as liability for
damages to a person falsely accused of child abuse is concerned, we conclude
that section 11172 was intended to provide absolute immunity to professionals
for conduct giving rise to the obligation to report, such as the collection of
data, or the observations, examination, or treatment of the suspected victim or
perpetrator of child abuse, performed in a professional capacity or within the
scope of employment, as well as for the act of reporting.”
(Id., pp. 1222-1223.)
Plaintiff
argues for a narrower scope of immunity: “[T]he cases cited by the Defendant
involve the reporting of immunity, wherein someone is sued for mandatorily
reporting abuse that ends up being proven to be false.” (Plaintiff’s Opposition, p. 3:25-26.) Neither the case law nor the plain language
of the statute nor the legislative history supports this interpretation of
section 11172. Indeed, the law makes
clear that mandatory reporters have absolute immunity in connection with “the
making of the initial report,” regardless of whether the report is true or
false. Plaintiff’s interpretation would eliminate
immunity in cases where true victims—as opposed to the falsely accused—sue
mandatory reporters for the quality of their investigations and reports,
thereby undermining the Legislature’s intent in enacting section 11172, which was
to “encourage . . . the reporting of suspected child abuse.” (Newton v. County of Napa (1990) 217
Cal.App.3d 1551, 1558.)
Plaintiff
argues: “There is no case in the history of California that does (and would
never) suggest that schools are immunized from neglect in handling the sexual
abuse of a minor at the expense of the minor’s safety as long as a ‘report’ was
made.” (Id., p. 3:28-4:1.) The court need not consider whether there is
an exception to section 11172—notwithstanding the broad and absolute immunity
it confers—for an undue delay in making the report. Those are not the facts of this case. The jury found that the school complied with
Penal Code section 11166, which requires a telephone report “immediately or as
soon as is practicably possible” and a written report “within 36 hours of
receiving the information concerning the incident.” (Penal Code § 11166.) Therefore, the LAUSD has immunity for the
investigation of the allegations, the contents of the SCAR report, and the
LAUSD’s communications with the LAPD.
B. Plaintiff identifies virtually no
conduct falling outside the LAUSD’s immunity
Plaintiff
argues that his “case consisted of negligent actions by the Defendant separate
and distinct from the reporting . . . .”
(Plaintiff’s Opposition, p. 5:23-24.) However, virtually all of the conduct
supporting his claim for negligence falls within the scope of the LAUSD’s
immunity under Penal Code section 11172.
Most
of Plaintiff’s evidence of negligence relates to the contents of the LAUSD’s
communications with the LAPD. Specifically,
Plaintiff argues: (1) The LAUSD did not report that “sex” was happening but
instead used “the vague term ‘dating;’” (2) The LASUD “did not attach any
documents to the SCAR report, including the statements by witnesses who
confirmed the sexual relationship between Plaintiff and Mrs. Santos;” (3) The
LAUSD “did not take note anywhere that Plaintiff knew Mrs. Santos had a purple
tattoo between her breasts;” (4) There were “numerous errors on the SCAR report
form, including typos, wrong dates, and incorrect addresses;” and (5) The LAUSD
did not include a photo of Plaintiff’s hickey to the SCAR report.” (Plaintiff’s Opposition, pp. 6-7.) All of these issues relate to the making of
the initial report, as well as the LAUSD’s communications with the LAPD and
therefore fall within the scope of Penal Code section 11172.
Plaintiff
also focuses on alleged negligence in the investigation of the allegations. Plaintiff argues that “[t]he interview of the
plaintiff was negligent in several respects, including not having a counselor
present, not conducting a forensic interview, the length of the interview, not
reviewing his IEP before the interview.”
(Id., p. 7:7-9.) Plaintiff also
argues that the LAUSD “did not ask to see the plaintiff’s phone at any point
during the investigation, which evidenced the sexual relationship between the
plaintiff and Mrs. Santos.” (Id., p.
7:14-16.) These issues relate to “the
collection of data, or the observation, examination, or treatment of the
suspected victim” and therefore fall within the scope of Penal Code section 11172.
In sum,
virtually all of the evidence of negligence cited by Plaintiff relates to the
LAUSD’s investigation of the allegations or their communications with the LAPD. As discussed, the jury found that the LAUSD
did, in fact, make the SCAR report within the required time period. Therefore, the LAUSD has immunity under Penal
Code section 11172.
C. The LAUSD’s failure to report
Plaintiff’s truancy did not cause his damages
There is no
causation between any negligence by the LAUSD on or after December 5, 2018, and
Plaintiff’s emotional distress damages. As
discussed, most of the LAUSD’s alleged negligence falls within the scope of its
immunity under Penal Code section 11172.
However, Plaintiff’s counsel also focuses on the LAUSD’s failure to
monitor his client’s school attendance and take appropriate action. Plaintiff’s counsel argues: “No one from the
school followed up with Plaintiff after he stopped attending school and went
missing for months soon after the interview and ‘investigation.’” (Plaintiff’s Opposition, p. 7:17-20.)
There are two
problems with Plaintiff’s argument. As
an initial matter, the court denied Plaintiff’s motion for leave to amend to add
a new claim based upon breach of Education Code section 48260—which imposes
requirements on the LAUSD concerning truant students—and the LAUSD’s “related
negligence.” (RT: 3/5/24: 87-94.) Specifically, a student is considered to be a
“truant” if he “is absent from school without a valid excuse [for] three full
days in one school year . . . .” (Ed.
Code § 48260(a).) The school is required
to report the truancy to “the attendance supervisor or to the superintendent of
the school district.” (Ibid.)
Regardless,
evidence that the LAUSD did not classify Plaintiff as a “truant” and report the
issue to the “attendance supervisor” or “superintendent” did not cause his
damages in this case. Interpreting the
evidence in the light most favorable to Plaintiff, the chronology was as
follows: (1) Parents reported the suspected child abuse to the LAUSD on Wednesday,
December 5, 2018; (2) The LAUSD interviewed Plaintiff on Thursday, December 6,
2018, and he denied any molestation; (3) The LAUSD submitted the SCAR report on
Friday, December 7, 2018; (4) Moreno-Santos was reassigned to the district
office on Friday, December 7, 2018; and (5) Moreno-Santos resigned shortly
thereafter, on Friday, December 7, 2018, or Monday, December 10, 2018. Plaintiff stopped attending school regularly after
Thursday, December 6, 2018. (RT: 2/29/24:
84-86.) Plaintiff testified that he
“still continued to come to school even after December 6, 2018,” but not “frequently.” (RT: 3/1/24: 20:2-6.) Plaintiff also testified that he continued to
attend school even after Moreno-Santos resigned. (RT: 3/1/24: 20:8-14.) Interpreting this evidence in the light most
favorable to Plaintiff, however, the court will assume he became a “truant”
three school days after Thursday, December 6, 2018, per section 48260, which
was Tuesday, December 11, 2018.
Based
upon the foregoing chronology, there is no causation between the LAUSD’s
failure to report Plaintiff’s truancy and the continued molestation, which
culminated in Plaintiff’s suicide attempt in March 2019. Had the LAUSD reported Plaintiff’s truancy to
the attendance supervisor or superintendent on or after December 11, 2018,
there is no evidence suggesting the abuse would have stopped. Plaintiff steadfastly denied the molestation
prior to that date. There is no clear
link between school absences and molestation; junior high school students are
truant for many reasons. Moreover,
Moreno-Santos no longer worked for the LAUSD at that point. Essentially, Plaintiff’s counsel argues that
if the LAUSD had reported Plaintiff’s truancy to the attendance supervisor or
superintendent on or after December 11, 2018, it would have instigated an investigation
that would have uncovered and stopped a non-employee from molesting a student
off-campus. This is too speculative to
support the jury’s verdict on negligence.
D. The LAUSD had no liability for molestation
occurring after December 10, 2024
The
LAUSD argues that it is entitled to immunity under Education Code section 44808
because the abuse occurred off-campus and outside school hours. Section 44808 states:
“[N]o school district . . . 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.”
(Ed. Code § 44808.) This provision
does not immunize a school district for negligence in hiring and supervising
employees just because the actual molestation occurred off-campus. To hold otherwise would mean that a school
district could negligently hire a child molester and fail to monitor his
on-campus interactions with students—thereby introducing the molester to the
victim and providing an opportunity for the molester to groom the victim—and
the school district would be immune from liability from its negligent hiring/supervision
merely because the final act of molestation occurred off-campus. That was not the intent of Education Code
section 44808, and the court denied summary judgment on this basis. The court incorporates by reference its order
of January 18, 2024, denying the LAUSD’s motion for summary judgment.
At trial, however,
Plaintiff’s counsel abandoned this theory.
The eighth cause of action was not predicated on any alleged negligence
in the hiring of Clara Moreno-Santos.
Nor was the claim predicated on any alleged negligence in supervising
Clara Moreno-Santos while she groomed Plaintiff. Rather, Plaintiff’s negligence claim was
based on alleged negligence after the parents reported the abuse on Wednesday,
December 5, 2018. This presents a
different immunity issue than the one raised in the LAUSD’s motion for summary
judgment. As discussed, the LAUSD
removed Clara Moreno-Santos from the school on Friday, December 7, 2018, and
she resigned that day or the next school day.
The molestation then continued, but there were no interactions between
Clara Moreno-Santos and Plaintiff that occurred on-campus or related to school
activities. Under these circumstances,
the LAUSD had no responsibility to safeguard Plaintiff from abuse from a
non-employee that occurred off-campus, per Education Code section 44808.
E. The alleged negligence in the
investigation did not cause Plaintiff’s damages
Finally, even if the
LAUSD did not have immunity under Penal Code section 11172, there is
insufficient evidence that the LAUSD’s allegedly negligent investigation caused
or contributed to Plaintiff’s damages. The
LAUSD learned of the allegations on Wednesday, December 5, 2018. The LAUSD interviewed Plaintiff the next day,
and he steadfastly denied that any abuse had occurred. Plaintiff admitted during trial that his
intention was to hide the molestation from the LAUSD. The LAUSD removed Clara Moreno-Santos from
the school on Friday, December 7, 2018; she resigned that day or the next
school day; and she continued to molest Plaintiff. Essentially, Plaintiff’s counsel argues that
had the LAUSD conducted a “proper” interview, Plaintiff would have admitted the
abuse; the SCAR report would have been written more definitively; and the LAUSD
would have responded more forcefully, leading to an immediate arrest of Clara
Moreno-Santos or at least enough pressure to force her to stop the
molestation. Similarly, Plaintiff’s
counsel speculates that had the molestation stopped in December 2018, his client would not have
attempted suicide (which he did in March 2019, when Clara Moreno-Santos stopped
the molestation). This is too
speculative to support the jury’s award of damages on the eighth cause of
action even assuming there is no immunity under Penal Code section 11172.
CONCLUSION AND ORDER
Based upon the
foregoing, the court orders as follows:
1. The court grants Defendant’s motion for
judgment notwithstanding the verdict on the eighth cause of action.
2. The court strikes the judgment entered
on April 15, 2024, and strikes Plaintiff’s memorandum of costs.
3. The court orders Defendant to prepare
and lodge a new judgment consistent with the court’s ruling on its motion.
4. Defendant’s counsel shall provide
notice and file proof of service with the court.