Judge: Stephen P. Pfahler, Case: 21STCV13351, Date: 2024-03-26 Tentative Ruling


Case Number: 21STCV13351    Hearing Date: March 26, 2024    Dept: 68

Dept. 68

Date: 3-26-24

Case # 21STCV13351

 

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant, San Marino Unified School District

RESPONDING PARTY: Plaintiff, John Doe

 

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication on the Complaint

·         4th Cause of Action: Negligent Hiring, Supervision, and Retention of Unfit Employee

·         5th Cause of Action: Breach of Mandatory Duty: Failure to Report Suspected Child Abuse

·         6th Cause of Action: Negligent Supervision of a Minor

·         7th Cause of Action: Negligent Failure to Warn, Train or Educate

 

SUMMARY OF ACTION

Plaintiff John Doe was a student Huntington Middle School and San Marino High School with defendant San Marino Unified School District (SMUSD). Defendant Howard Cheung was a teacher in SMUSD. Cheung was also an employee for defendant River Way Ranch Camp, an overnight camping facility in Sanger, California.

 

Beginning in sixth grade in 2000-2001, a friendly relationship between Plaintiff and Cheung began, which placed the two alone together in various location. The continued contact provided Cheung opportunities to sexually molest Plaintiff, including at River Way Ranch Camp. Plaintiff alleges SUMSD faculty and staff saw the inappropriate time together and failed to investigate or report.

 

On April 7, 2022, Plaintiff filed a complaint for Sexual Abuse of a Minor, Intentional Infliction of Emotional Distress, Sexual Harassment, Negligent Hiring, Supervision, and Retention of Unfit Employee, Breach of Mandatory Duty: Failure to Report Suspected Child Abuse, Negligent Supervision of a Minor, Negligent Failure to Warn, Train or Educate, and Negligence. On June 18, 2021, the court overruled the demurrer of SMUSD. SMUSD answered and filed a cross-complaint.

 

On June 28, 2022, the action was transferred from Department 32 (Personal Injury hub) to Department 68. On June 28, 2022, Plaintiff dismissed River Way Ranch Camp with Prejudice. On October 26, 2022, Plaintiff dismissed Howard Cheung without Prejudice. On may 17, 2023, the court granted the motion of Western Camps, Inc. dba River Way Ranch Camp for determination of a good faith settlement with Plaintiff.

 

RULING: Granted in Part/Denied in Part.

Defendant San Marino Unified School District (SMUSD) brings the subject motion for summary judgment or alternatively summary adjudication to all claims named against the entity, including Negligent Hiring, Supervision, and Retention of Unfit Employee, Breach of Mandatory Duty: Failure to Report Suspected Child Abuse, Negligent Supervision of a Minor, and Negligent Failure to Warn, Train or Educate. SMUSD moves on grounds that Plaintiff lacks any evidence that an administrator or supervisor of the district was actually or constructively aware of any sexually inappropriate conduct initiated by Cheung, and/or otherwise neither owed nor violated any potentially applicable duty/ies.

 

Plaintiff John Doe in opposition maintains certain employees at the school, TJ Harper, and other person, and Herlina Neo, were aware of the sexual relationship between Doe and Cheung, and failed to report said conduct to school authorities in violation of school policy. Plaintiff additionally relies on signs of purportedly inappropriate conduct between Plaintiff and Cheung amongst other staff and faculty as “warning signs” of potentially illegal conduct. Plaintiff denies any claim of immunity on the basis of off-campus abuse by Cheung, and contends SMUSD remains vicariously liabile for the negligence of its employees and administrators.

 

SMUSD in reply characterizes the opposition as only substantively challenging the fifth cause of action for Breach of Mandatory Duty: Failure to Report Suspected Child Abuse, and otherwise offering no evidence in challenge to the other three causes of action for the Negligent Hiring, Supervision, and Retention of Unfit Employee; Negligent Supervision of a Minor; and Negligent Failure to Warn, Train or Educate causes of action addressed in the subject motion. SMUSD reiterates the lack of evidence in support of the claims for breach of any applicable duty.

 

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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.) 

 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (Ibid.) 

 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

 

SMUSD initially challenges the complaint on grounds of a denial of any basis for vicarious liability based on the conduct of Howard Cheung. “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) The California Supreme Court allows for a finding of vicarious liability based on claims arising from negligence. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868–869.) A claim against a government entity must rely on a direct, statutory claim of liability. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 253-256.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

 

Plaintiff acknowledges the requirement of direct liability, and relies on a claim of a breach of the special relationship between the school district and students imposed by the doctrine of in loco parentis, as well mandatory reporter duties applicable to certain school district employees. Plaintiff maintains an umbrella of direct liability imposed on staff witnessing and interacting with Plaintiff and Cheung.

 

The collective authority imposes a duty of care to all personnel responsible for contributing to student welfare on campus. (Perna v. Conejo Valley Unified School Dist. (1983) 143 Cal.App.3d 292, 295 [“Case law in California has established that school districts have a duty to exercise ordinary care in supervising students on the school premises”].) California Education Code section 48200 requires children between the ages of six to 18 years of age attend a full time school subject to an exemption. (Ed. Code, § 48200.) “‘Because of this special relationship, imposing obligations beyond what each person generally owes others’ the ‘duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally,’ including ‘injuries to a student resulting from a teacher's sexual assault.’” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 126 accord C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th 861, 870 (internal quotation marks omitted).) Under the Child Abuse and Neglect Reporting Act (CANRA), a “mandatory reporter” must report suspected or known child abuse or neglect on or off campus. (Pen. Code, § 11166, subd. (a); Doe v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at p. 138 accord B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 186.)

 

Plaintiff cites to multiple witnesses, but specifically focuses on Herlina Neo and Todd J. Harper. Harper was employed by SMUSD as an assistant to choir director Cheung and piano accompanist to said choir, while Neo also purportedly provided piano accompaniment, though it remains disputed whether Neo was an “employee” or the equivalent of a “parent volunteer.” [See Declaration of Peter Reagan: Ex. 5, Deposition of Kellie Kido; Ex. 6, Deposition of Marilyn Endert; Ex. 7, Deposition of Claudia Brown; Ex. 8, Deposition of Linda De La Torre; Ex. 9, Deposition of Todd Jere Harper.]

 

For Neo, Plaintiff lacks any direct testimony or declaration from the witness, due presumably at least in part from a prior alleged deportation thereby making the witness unavailable. Plaintiff instead depends on self-stated testimony that Neo was aware of the existence of the relationship with Cheung, due to Plaintiff’s presence in the Cheung home “three to four night per week.” [Declaration of Peter Reagan: Ex. 1-2, Deposition of John Doe.]

 

The context for the identification of Harper and Neo arises from the representation that Harper, Neo and Cheung all shared a condominium in Arcadia, and the witnesses therefore specifically saw Plaintiff and Cheung sleep in the same bedroom. Plaintiff remains unsure as to whether he directly informed Harper of any relationship, but categorically attests to informing Neo. [John Doe Deposition, 22:17-23:11, 26:15-27:19, 29:18-30:7.] Neo also accompanied Cheung and Plaintiff to Las Vegas. [Id., 53:12-54:20, 58:4-18.] Plaintiff later attests to a comment about oral copulation in the course of a surprise birthday party at the Cheung residence with Neo and Harper present, as well as individuals Celia Hung and Nick Robertson, though it remains unclear if there was any association with SMUSD for the latter two persons. [Id., 152: 3-23.]

 

Harper confirms living in the condominium with Cheung, and John Doe in fact visiting with a group of students, but could not directly recall whether John Doe ever visited alone. [Harper Depo, 25:12-23, 33:9-34:15.] Harper maintains that off campus visits were common social practices for choir participants, and found nothing inappropriate about such group visits. [Id., 36:2-37:20.]

 

As for the other staff and faculty on campus, Plaintiff relies on inference based on appearances from ongoing campus activities. Plaintiff identifies time spent on campus with Kido, Cheung and Neo eating lunch together and Kido seeing Cheung driving in a car together, notwithstanding the denial of Kido regarding a basis of suspicion in the deposition filed on behalf of SMUSD. [Doe Depo., 50:17-51:16; Declaration of Danielle Foster, Index of Exhibits, Ex. B: Deposition of Kelly Kido, 41:24-42:8, 44:7-14, 53:3-11, 54:2-55:24, 72:14-21.] Other faculty saw Cheung favor Plaintiff with “special treatment,” which Plaintiff contends constituted a “red flag.” [Doe Depo., 251:9-253:22, 254:10-18.] Plaintiff also spoke with Kido about trips to Las Vegas with Cheung after the fact during said lunches. [Id., 260:4-262:14.] Fellow students Amy Chang and Ronni Louie confirms certain aspects of Plaintiff’s account. [Reagan Declaration: Ex. 4, Deposition of Amy Chang; Ex. 5, Deposition of Ronni Louie.]

 

The mandatory school attendance imposed scope of duty applies to administrators, faculty and other personnel directly responsible for the safety of students on the campus. The CNRA mandatory duty applies to on and off-campus conduct observed by the applicable person(s). [De La Torre Depo, 33:13-34:5.] Any person, employee or parent volunteer assistant was not allowed on campus with students unless and until they submitted an application, whereby they underwent finger printing and mandatory reporter training. [Id., 35:15-37:9; Declaration of Jason Peplinski, Ed.D.] Harper acknowledges mandatory reporter training and an understanding of the obligation. [Harper Depo., 17:25-19:15.] The court also finds for purposes of the instant motion triable issues of material fact that Neo was both lawfully present on campus, and therefore instructed on mandatory reporter obligations, even as a “volunteer” accompanist to the choir, notwithstanding the lack of recall by certain staff of Neo’s presence on the campus. [Correnti Decl.; Chang Depo; Louie Depo; Kido Depo., Endert Depo., Brown Depo.]

 

On the other hand, nothing in the motion or testimony of the fellow students or other unaffiliated persons, such as Celia Hung and Nick Robertson, establish any basis for a finding of the imposition of a scope of duty on said non-employees, non-campus visitors, non-campus volunteers. The court therefore finds no basis for the imposition of liability on SMUSD via said witnesses. The court therefore concentrates on the identified faculty and volunteer.

 

SMUSD carefully distinguishes the relied upon scope of the special duty of addressed in the opposition by specifically noting the legal standard requires presence on campus, a school sponsored activities off-campus, or some basis of proximate cause for actions on the campus causing injury off-campus. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 515-516; Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 795 [“under certain circumstances a school district may be held liable for injuries suffered by a student off school premises and after school hours where the injury resulted from the school's negligence while the student was on school premises”]; Perna v. Conejo Valley Unified School Dist., supra, 143 Cal.App.3d at p. 295.) Plaintiff admits that only one alleged sexual encounter between Plaintiff and Cheung occurred on campus following volleyball practice. [Doe Depo., 139:16-137:13; 156:10-15.]

 

Thus, other than a challenge to immunity in opposition, the court finds insufficient supporting legal argument or a factual nexus for a position establishing a logical extension of the in loco parentis imposed special of duty of care to any and all alleged off campus conduct between John Doe and Cheung, including the trips to Las Vegas and solo visits to the Cheung home. In other words, the court concurs with SMUSD that Plaintiff cannot conflate the two separate standards of duty into a single undistinguished challenge for purposes of opposing the motion for summary judgment. The differences present relevant distinctions when considering the individual negligence reliant causes of action under the guise of Education Code 44808, versus the mandatory CNRA imposed reporter requirements.

 

4th Cause of Action: Negligent Hiring, Supervision, and Retention of Unfit Employee: Granted.

A district may be imputed with liability for the actions of a teacher “if individual District employees responsible for hiring and/or supervising teachers knew or should have known of prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855; C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 875.) The subject cause of action falls under the Education Code 44808 imposed special duty standard.

 

SMUSD previously screened Cheung through a fingerprint search, which returned a report of no known pedophiliac predilections or other basis indicating a foreseeable danger. [De La Torre and Correnti Decl.] Plaintiff offers no dispute to the declaration of Marilyn Endert denying any inappropriate activity on campus or on school trips between John Doe and Cheung. It also remains undisputed that only sexual encounter occurred on campus, and Plaintiff offers no argument of any witness on campus at the time in any way becoming aware of the purported encounter.

 

Instead, John Doe relies on an argument of “red flags” based on circumstances. While John Doe maintains regular lunches with Kido, disclosure of the trips to Las Vegas, and seeing the two in the same car together, as cited above, Kido testified to a lack of any recollection of eating lunch with Neo and Harper, seeing John Doe and Cheung in a vehicle together, or ever speaking with John Doe about sexual relations with Cheung. [Kido Depo.] Claudia Brown and Marilyn Endert also deny any observed inappropriate behavior on campus, which John Doe also denies in deposition testimony. [Index of Evidence: Ex. G, Declaration of Marilyn Endert; Ex. K: Declaration of Claudia Brown; Doe Depo.]

 

The school supervisory power in no way limits the scope of duty to “actual knowledge,” but also requires observance of signs indicating potential “grooming,” even if ambiguous in the context of activities. (Doe v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at pp. 135-136.) Retroactive resolution of potentially ambiguous conduct however raises the improper specter of assuming the worst in a colleague. (Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 917-918 accord Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1216.) The California Supreme Court specifically addressed disallowing claims to proceed simply based on speculation, which would otherwise threaten the careers of teachers, counselors, administrators, etc., and potentially further undermined student teacher/counselor relationships, when based on management policies sufficiently demonstrating an exercise of sufficient due care. (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at pp. 878-879; Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 918-919.)

 

The subject testimony between Plaintiff and Kido constitutes a direct conflict of accounts. An argument can be made for triable issues of material fact on the basis of conflicting accounts. The court cannot weigh the credibility of evidence in a motion for summary judgment/summary adjudication. Still, even accepting the truthfulness of all deposition testimony from John Doe as absolutely truthful, SMUSD makes very clear in the reply that nothing in the communications to, or purported observations by Kido, Brown, Neo or Harper, in any way presents a legal basis of liability under the required elements for a negligent hiring, supervision, and retention of an unfit employee claim.

 

None of these witnesses are in any way alleged to hold responsibility for the hiring and/or supervision of their fellow instructors. The opposition lacks any evidence of information communicated to any administrator through other means. The court declines to rely on speculation that any communication may have occurred for purposes of thwarting summary adjudication. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855; C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 875.) The court therefore  finds no triable issues of material fact regarding a breach of any duty by any person(s) responsible in the hiring and supervision of Howard Cheung. The court therefore grants the motion for summary adjudication on the subject cause of action. 

 

5th Cause of Action, Breach of Mandatory Duty, Failure to Report Suspected Child Abuse: Denied.

SMUSD maintains that no employee of the school witnessed inappropriate conduct on or off campus thereby triggering a mandatory duty to report. [Declaration of Danielle Foster, Index of Exhibits: Kido Depo; Declaration of Marilyn Endert; Declaration of Todd Harper; Declaration of Claudia Brown.] (Doe v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at p. 143; Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 907-909.) Plaintiff relies on the conversations and activities with Neo and Harper, as well as other faculty and staff on campus witnessing the “special treatment” towards John Doe.

 

Under CANRA, “A mandated reporter has a ‘reasonable suspicion’ when ‘it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient.’” (B.H. v. County of San Bernardino, supra, 62 Cal.4th at p. 186.)

 

As addressed above, at a minimum, the court finds triable issues of material fact regarding the presence of Neo on the campus and therefore under mandatory reporter obligations. [De La Torre Depo.] The court finds a basis for Neo’s knowledge of the sexual relationship between staff and a minor. [John Doe Depo; Harper Depo.] Given the mandatory reporter obligations imposed on Neo at all relevant times, and the categorical testimony from John Doe regarding Neo’s presence during at least some of the prurient activities, the court finds triable issues of material fact regarding a breach of the reporter duty by Neo. For purposes of the subject motion, the court finds triable issues of material fact regarding the breach by Neo imputing vicarious liability to SMUSD. The motion for summary adjudication is therefore denied as to this cause of action.

 

6th Cause of Action, Negligent Supervision of a Minor: Granted.

Plaintiff again relies on allegations regarding the failure of school personnel to interpret the signs of circumstantial, improper conduct by Cheung towards John Doe. [Comp., ¶¶ 56-58.]

 

“California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.]’ (Citations.) The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ (citations) or ineffective supervision (citation) may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.) The court reiterates that the subject cause of scope of duty falls under the mandatory attenedance in loco parentis imposed standard, thereby restricting duty to on campus or potentially related off-campus events, where causation can be established. (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at pp. 515-516; Brownell v. Los Angeles Unified School Dist., supra, 4 Cal.App.4th at p. 795; Perna v. Conejo Valley Unified School Dist., supra, 143 Cal.App.3d at p. 295.)

 

The court again finds the single incident on campus lacks any evidence establishing a basis of actual or constructive notice. It remains undisputed that no other off-campus encounters were school affiliated. “Generally speaking, the absence of prior similar tortious conduct is one factor pointing to the absence of negligent supervision.” (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1328.) “When an injury occurs despite a defendant's efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1370.)

 

Again, the court accepts the deposition testimony of John Doe and in no way weighs the credibility of the parties or campus staff and faculty doubting, or minimally unable to recall, the accounts of John Doe. The court also reiterates the public policy against allowing speculative claims of whether other school staff should have interpreted the interactions between John Doe and Cheung as the existence of grooming behavior or treatment of John Doe as a catamite.

 

The court therefore finds no triable issues of material fact regarding a breach of any duty based on the negligent supervision of Howard Cheung due to retrospectively perceived warning signs, as compared to behavior viewed as normal social interaction encouraging student development and trust. Again, factual reliance on the breach of the CNRA mandatory reporter standard based on the disputed telling of John Doe about trips to Las Vegas to Kido, and Kido presumably witnessing Cheung and John Doe in a vehicle together, insufficiently addresses the legal distinctions from CNRA and the in loco parentis special duty of care governing the subject claim. [See Peplinski Decl. and John Doe Depo.] The court therefore grants the motion for summary adjudication on the subject cause of action. 

 

7th Cause of Action, Negligent Failure to Warn, Train or Educate: Denied.

SMUSD challenges the subject claim on the basis that it complied with all requirements necessary to protect students from potential teacher sexual abuse. The argument relies on compliance with CNRA requirements, though the operative complaint itself alleges a more general standard regarding sexual “harassment policies.” [Comp., ¶ 65.] The opposition and reply lack any specific response or follow-up on this particular item.

 

This portion of the motion relies on the declaration of Linda De La Torre, who maintains that annual training occurred, but again seemingly focused on CNRA requirements. [De La Torre Decl.] Given the well articulated special duty of care versus CNRA distinction relied upon by SMUSD, the court finds the same distinction applies to the subject cause of action.

 

The court finds the argument insufficiently presented and defined. The court declines to make the arguments for the parties regarding legal distinctions, and instead concludes SMUSD fails to establish the lack of a valid claim regarding the sufficiency of training separate and apart from CNRA requirements. (Code Civ. Proc., § 437c, subd. (p)(2).) Further, even if CNRA requirements overlap, triable issues of material fact exist given the conflicting account regarding insufficient training. [See Peplinski Decl.]

 

In summary, the court denies the motion for summary judgment. The court grants the motions for summary adjudication on the fourth and sixth causes of action for Negligent Hiring, Supervision, and Retention of Unfit Employee Negligent Supervision of a Minor. The court denies the motion for summary adjudication on the fifth and seventh causes of action for Breach of Mandatory Duty, Failure to Report Suspected Child Abuse, and Negligent Failure to Warn, Train or Educate.

 

Trial remains set for June 24, 2024.

 

San Marino School District to give notice.