Judge Thomas D. Long, Case Number: 23STCV09475, Date: 2024-12-19 Tentative Ruling

On May 23, 2023, Plaintiff G.B. filed a first amended complaint (“FAC”) against Defendant Los Angeles Unified School District, alleging negligence and negligent hiring, retention, and supervision.

G.B. asks the Court to take judicial notice of the fact that Eric Clapton’s song “After Midnight” was released on October 9, 1970. The request is granted.

Norbert Volk, an employee of Defendant at George Washington Carver Junior High School (“Carver”), sexually abused and assaulted G.B. beginning in the fall of 1966 into 1968, but it stopped in 1969. (Undisputed Material Facts “UMF” 1-3; see Additional Material Facts “AMF” 1, 13, 18.) The abuse occurred at Volk’s home. (UMF 4; AMF 7-9, 11-16.)

No adults saw G.B. get into Volk’s car at school, and from 1966 to 1968, G.B. never told anyone about the abuse. (UMF 5-7.) In 1980, G.B. first told his then-girlfriend about the abuse. (UMF 8.)

The first time anyone told any District personnel about Volk’s abuse was in either 1968 or 1969, when non-party O.B. told his P.E. teacher in either his eighth grade year (1968-1969) or his ninth grade year (1969-1970). (UMF 9; see AMF 41-42.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163 (Sangster).)

Defendant moves for summary judgment on the grounds that it cannot be liable for common law negligence, it had no notice of Volk’s abuse, and it is immunized from liability for off-campus abuse.

A. There is No Triable Issue of Material Fact Regarding Defendant’s Lack of Knowledge of the Abuse.

A public entity is not liable for an injury arising out of an act or omission by the public entity or its employees, unless provided by statute. (Gov. Code, § 815, subd. (a).) There is “no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices,” and “a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252, 255-256.)

However, “claims against school districts premised on their own direct negligence in hiring and supervising teachers may be pursued.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1854-1855.) “[A] public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 (William S. Hart).)

“A defendant does not owe a legal duty to protect against third party conduct, unless there exists a special relationship between the defendant and the plaintiff. [Citation.] In that circumstance, “[i]n addition to the special relationship . . ., there must also be evidence showing facts from which the trier of fact could reasonably infer that the [defendant] had prior actual knowledge, and thus must have known, of the offender’s assaultive propensities. [Citation.]’ [Citation.] In short, the third party’s misconduct must be foreseeable to the defendant.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 682-683.)

“[A] district’s liability must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation. That an individual school employee has committed sexual misconduct with a student or students does not of itself establish, or raise any presumption, that the employing district should bear liability for the resulting injuries.” (William S. Hart, supra, 53 Cal.4th at p. 878.)

Defendant argues that Volk’s abuse was unforeseeable, so it cannot be liable for negligent hiring, retention, or supervision. (Motion at pp. 5-11.)

It is undisputed that Volk abused G.B. from the fall of 1966 to January 1968. (UMF 3.) Volk’s abuse of G.B. stopped in the first semester of his ninth grade year in 1968, and it had completely stopped by 1969. (G.B. Depo. at p. 56.) It is undisputed that G.B. did not tell anyone about the abuse until he told his then-girlfriend in 1980. (UMF 6-8.)

Non-party O.B. first met Volk for his eighth grade year in 1968 to 1969, and he was abused through eighth and ninth grade. (O.B. Depo. at pp. 36-37.) It is undisputed that the first time anyone told any District personnel about Volk’s abuse was O.B.’s report to Mr. Davis and Mr. Johnson. (UMF 9.) Johnson began working at the school in the fall of 1969. (Johnson Depo. at pp. 25, 28.) The only inference, then, is that O.B.’s report of the abuse to Mr. Davis and Mr. Johnson occurred no sooner than the fall semester of 1969—after G.B’s last possible date of fall 1968. (See G.B. Depo. at p. 56.)

Defendant has met its initial burden of showing that it had no prior knowledge of Volk’s abuse of G.B. and that Volk’s abuse was unforeseeable.

G.B. argues, without citations to evidence, that “Defendant had been on notice of Volk’s pedophilia and sexual abuse of students during the same time Plaintiff was a student.” (Opposition at p. 11.)

G.B.’s other argument is that the abuse continued into 1970, after Defendant’s knowledge from O.B. G.B. responded to some of Defendant’s UMFs with, “Disputed for the inference that Volk’s abuse of Plaintiff ceased in 1969 and did not continue as late as October 1970, when Eric Clapton’s ‘After Midnight’ was first released. During the evenings that Plaintiff spent the night at Volk’s house, Volk would usually play the Eric Clapton song ‘After Midnight,’ a song that was not released until October 1970.”

In fact, G.B. testified, “And then this song was playing, every night, every time I spent the night seemed like this song would play, ‘After Midnight.’” (G.B. Depo. at p. 53.) After describing the abuse, he was asked, “Did that conduct by Mr. Volk whereby he did this to you at his house, did that occur in the 1967, the second semester of your 7th grade year?” (Id. at pp. 55-56.) G.B. responded, “Yeah. And I was always going to his house. And it—and he would get a[n] urge, you know. It—it was never during the daytime. It was always at night. And—and it went on a few times in ‘67, ‘68. But ‘69, it stopped.” (Id. at p. 56.)

G.B. did not initially testify that it was a song by Eric Clapton, and G.B.’s own sources for its RJN of the song’s release date state that the song was first released by another musician in 1966. Only later in his deposition did G.B. say that he wanted to forget the abuse but remembered it when he heard “After Midnight,” and he only commented, “I think it was Eric Clapton who sung the song.” (G.B. Depo. at p. 78.) This speculation about which artist sang the song is not “substantial responsive evidence” that establishes a triable issue of material fact. (See Sangster, supra, 68 Cal.App.4th at pp. 162-163.) “[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Id. at p. 163.)

Moreover, abuse extending into October 1970 (after O.B.’s report of abuse) is contradicted by G.B.’s own direct testimony that the abuse stopped in the first semester of his ninth grade year in 1968, and it had stopped by 1969. (G.B. Depo. at p. 56.) He confirmed the timing as “[t]he first semester, because we were getting ready for graduation and programs.” (Ibid.) After G.B. graduated from Carver in 1969 at the end of ninth grade, he attended Thomas Jefferson High School. (See G.B. Depo. at pp. 19, 45, 56.) G.B. went back to Carver “a couple of times, you know, to see [Volk] at Carver. You know, see how he was doing and—you know, because I only lived about a 10-minute walk from there, you know. And I would stop by and say hello to him and—and that’s about it, you know.” (Id. at pp. 69-70.)

Based on G.B.’s unequivocal testimony about the abuse stopping in 1969 and having only limited interactions with Volk after graduating and attending a different school, there can be no inference that Volk’s abuse of G.B at his home continued until October 1970, and no triable issue about the abuse ending in 1969. (See Code Civ. Proc., § 437c, subd. (c).)

G.B. has not shown the existence of a triable issue of fact regarding the foreseeability of Volk’s abuse and Defendant’s prior knowledge of Volk’s abuse.

No school district is liable for the conduct or safety of any student when the student is off 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; see Motion at p. 11.) In other words, section 44808 provides that school districts are not responsible for the safety of students outside school property absent a specific undertaking by the school district and direct supervision by a district employee. (LeRoy v. Yarboi (2021) 71 Cal.App.5th 737, 743.)

It is undisputed that Volk abused G.B. at his home and not on campus. (UMF 4.) G.B’s opposition argument is based on Defendant’s “actual and constructive notice regarding Volk’s sexual abuse of students” and its breach of its duty to supervise its employees and its students while they were on campus. (Opposition at pp. 12-13.) For the reasons discussed above, there is no evidence to support this and no triable issue of fact.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court