Judge Thomas D. Long, Case Number: 23STCV11866, Date: 2024-12-19 Tentative Ruling

On June 20, 2023, Plaintiff J.A. filed a first amended complaint (“FAC”) against Defendant Los Angeles Unified School District, alleging negligence and negligent hiring, retention, and supervision.

J.A. 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 denied as irrelevant.

Norbert Volk, an employee of Defendant at George Washington Carver Junior High School (“Carver”), sexually abused and assaulted J.A. during the first semester of his eighth grade year in 1967. (Undisputed Material Facts “UMF” 1-3; see Additional Material Facts “AMF” 1, 10-16.) J.A. never told anyone about the abuse at any time. (UMF 4.)

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 5-6; see AMF 38-39.)

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.)

Defendant moves for summary judgment on the grounds that it cannot be liable for common law negligence and it had no notice of Volk’s 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. 4-10.)

It is undisputed that Volk abused J.A. during his first semester of his eighth grade year in 1967. (UMF 3.) It is undisputed that J.A. did not tell anyone about the abuse at any time. (UMF 4.) It is undisputed that the first time anyone told any District personnel about Volk’s abuse was non-party O.B.’s report no earlier than 1968. (UMF 5.) It is undisputed that there is no evidence prior to O.B.’s discussion of any notice or reports of misconduct by Volk. (UMF 6.)

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

J.A. 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.) Although “O.B. told at least three employees of Defendant about the on-stage fondling by Volk at the campus auditorium in the late 1960s” (Opposition at p. 10), it is undisputed that this was no earlier than 1968. (UMF 6.) When J.A. was abused only in the fall semester of 1967, it is not true that “[a] reasonable inference can be made that the report [by O.B.] occurred prior to the last incident in which Volk sexually abused Plaintiff.” (Opposition at pp. 10-11.)

J.A. 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.

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