Judge William A. Crowfoot, Case Number: 21STCV41416, Date: 2023-08-21 Tentative Ruling

Judge: William A. Crowfoot, Case: 21STCV41416, Date: 2023-08-21 Tentative Ruling

On November 10, 2021, Marc Allen (“Allen”) filed an action (the “Allen Action”) against Defendants Doe 1, Doe 2, and Does 3 through 50 for negligence, negligent supervision and retention, sexual harassment, and sexual battery. On November 18, 2021, Allen filed an amended complaint naming Alhambra Unified School District (“District”) and Charles Leyba (“Leyba”) as Does 1 and 2, respectively. On March 14, 2022, John Doe 7027 and John Doe 7028 filed an action (“Doe Action”). On April 6, 2022, they filed the operative First Amended Complaint also naming District and Leyba as Does 1 and 2. On August 21, 2023, the Doe Action and Allen Action were consolidated, with the Allen Action designated as the lead case.

On August 31, 2023, District filed a motion for summary judgment/adjudication as to the Doe Action. District argues that John Doe 7027 and John Doe 7028 (collectively, “Plaintiffs”) cannot establish their causes of action for negligence or negligent supervision because there is no evidence that it had notice that Leyba posed a foreseeable danger. District also argues that it cannot be liable for sexual harassment as a public entity.

On September 1, 2023, Leyba filed a motion for summary adjudication of John Doe 7028’s Fourth Cause of Action for Sexual Battery.

On September 26, 2023, District filed another motion for summary judgment/adjudication. The Court disregards this second set of moving papers because they appear to be identical to the papers filed on August 31, 2023, and there is no notice of errata which alerts the Court to any changes.

On October 31, 2023, Allen, John Doe 7027, and John Doe 7028 jointly filed an opposition brief to District’s motion. They also filed a brief opposing Leyba’s motion.

On November 6, 2023, Leyba filed a reply brief. District did not file a reply brief in support of its summary judgment/summary adjudication motion.

On November 8, 2023, Allen filed a notice of partial settlement, leaving only the Doe Action at issue.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A defendant moving for summary judgment or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) A moving defendant need not conclusively negate an element of plaintiff’s cause of action, but it is insufficient for the defendant to merely point out the absence of evidence. (Id. at p. 854; Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2).)

A. John Doe 7027’s First and Second Causes of Action for Negligence and Negligent Hiring

“An employer may be vicariously liable for the negligence of administrators or supervisors in hiring and supervising an employee if the supervisor knew or should have known that the employee was unfit.” (C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 879 [“C.A.”]) In cases of sexual misconduct, “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.” (Id. at 879 (italics in original).) To succeed on a claim for negligent hiring, a plaintiff must show that a person in a supervisorial position over the actor (i.e., an administrator or supervisor who has the ability to make hiring and firing decisions) knew or should have known of the actor’s propensity to do the bad act. (Id. at p. 878; Z.V. v. Cty. of Riverside (2015) 238 Cal.App.4th 889 [“Z.V.”]; M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 520.)

As framed by the operative pleading, Plaintiffs allege District is liable for its employees’ conduct, actions, and omissions, which created an environment in which Leyba was afforded years of continuous secluded access to minor children, including Plaintiffs, who were sexually abused, molested, and assaulted by Leyba between the ages of approximately 12 and 13 years old. (FAC, ¶ 46.) Plaintiffs allege that District owed them a duty to provide adequate supervision and institute reasonable protective measures to protect them and other minor children in their charge from the risk of sexual assault, harassment, and molestation, and failed to properly warn, train, or educate its staff members how to spot red flags in other staff members’, specifically Leyba’s behavior with minor students. (FAC, ¶¶ 49-51.)

District argues that John Doe 7027 cannot prevail on his claims for negligence or negligent hiring, training, or supervision. As with the previous summary judgment motion filed by District against Allen’s FAC, the facts here are largely undisputed. John Doe 7027 alleges in the FAC that he was sexually assaulted by Leyba in a classroom at Park Elementary School. (Defendant’s Undisputed Material Fact (“UMF”) Nos.4-6.) Although John Doe 7027 was never in Leyba’s class, John Doe 7027 claims that Leyba would make him stay after class to measure his “development.” (UMF No. 6.) Leyba would “wait for the other students to leave, close/lock the classroom, cover the classroom windows, turn off the lights, and have [John Doe 7027] stand behind a closet door, make [John Doe 7027] take off his clothes, then measure different parts of [John Doe 7027]’s body.” (UMF No. 7.) John Doe 7027 stated in discovery responses that he would sometimes hear “other adult voices outside the classroom during these times” but could not identify these individuals. (UMF No. 8.) John Doe 7027 did not report any instance of abuse to anyone at the school, his parents, or his siblings, and kept it secret for almost over 50 years. (UMF No. 43.) He did not seek mental health treatment or speak with any police authorities about Leyba. (UMF No. 40.) He only confirmed the abuse in late 2022 when his younger brother, John Doe 7028, asked if he had ever been molested by Leyba. (UMF No. 39.)

John Doe 7027’s personal understanding of what District’s administrators or supervisors knew is not probative of whether District’s administrators or supervisors had actual or constructive notice of Leyba’s propensity for sexually assaulting young boys. Even though Leyba concealed his relationship with John Doe 7027 and John Doe 7027 never complained about Leyba to anybody with supervisory authority before the abuse ended, this is not evidence that John Doe 7027 does not have, and cannot reasonably obtain, evidence supporting a finding that District knew or should have known of Leyba’s propensity for molesting young boys. In fact, District even acknowledges that John Doe 7027 testified that on one occasion, a janitor named “Mr. Rake” allegedly opened the door of the classroom while John Doe 7027 was getting undressed in the classroom closet. Leyba ran over to the door and yelled at the janitor to get out. (UMF No. 30.) The janitor mumbled that he was “sorry, and did not know anyone was in there,” and immediately left. (UMF No. 31.) Although District argues that the janitor lacks supervisorial authority, the evidence shows that incidents of molestation occurred on school grounds and was likely known even by the janitor. This evidence, along with all reasonable inferences that may be drawn from such evidence in the light most favorable to John Doe 7027, shows that there are triable issues of fact about District’s actual of constructive knowledge of Leyba’s propensity to sexually abuse young students. (See Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Accordingly, the Court DENIES District’s motion for summary judgment and motion for summary adjudication as to the first and second causes of action.

B. John Doe 7027 and John Doe 7028’s Third Cause of Action for Sexual Harassment

District argues that it cannot be held liable for sexual harassment because it is a public entity. (K.M. v. Grossmont Union High Sch. Dist. (2022) 84 Cal. App. 5th 717.) The Court notes that in their opposition, Plaintiffs concede the point and agree to dismiss this cause of action against District.

Accordingly, the motion for summary adjudication of the Third Cause of Action is GRANTED

IV. LEYBA’S MOTION FOR SUMMARY ADJUDICATION OF JOHN DOE 7028’S FOURTH CAUSE OF ACTION FOR SEXUAL BATTERY

John Doe 7028 objects to Paragraph 2 of the Declaration of Charles Leyba on the grounds that it lacks foundation and relevance, asserts an improper legal conclusion, is speculative, as well as vague and ambiguous. John Doe 7028 further argues that Leyba’s declaration that he never “made physical contact with any part of John Doe 7028’s body, at any time” is a “sham” because Leyba previously asserted the privilege against self-incrimination while being deposed when he was asked whether he sexually assaulted John Doe 7028 and other young boys. The objections are overruled. The Court does not rule on Leyba’s objections to John Doe 7028’s evidence because it finds that Leyba did not meet his moving burden to demonstrate the absence of triable issues of fact. The objections are preserved for appellate review. (Code Civ. Proc., § 437c, subd. (q).)

A person commits a sexual battery when they act with the intent to cause or harmful or offensive contact with an intimate part of another, or acts to cause an imminent apprehension of such contact, and a sexually offensive contact directly or indirectly results. (Civ. Code § 1708.5, subd. (a).) An “intimate part” means the sexual organ, anus, groin, or buttocks of any person and “offensive contact” means contact that offends a reasonable sense of personal dignity. (Id., subd. (d)(1)-(2).)

In Leyba’s motion, the heading on page 6 argues that John Doe 7028’s claim for sexual battery fails because there is no evidence that he intended to cause a harmful or offensive contact with John Doe 7028’s intimate parts or that a sexually offensive contact with Plaintiff resulted, either directly or indirectly. (Motion, p. 6.) However, within the body of the motion, Leyba does not discuss the issue of intent, but only argues that sexual battery must involve actual physical contact with an intimate body part of either party.

Leyba fails to meet his moving burden to show that no triable issue of material fact exists. At his deposition on May 3, 2023, John Doe 7028 was asked whether Leyba ever “physically touched” him and he responded “No.” (Leyba Ex. 3, p. 117:1-8.) John Doe 7028 later changed his testimony and stated, “[Leyba] could’ve touched me when [Leyba] was measuring my – my leg.” This internally inconsistent testimony presents an inherent question of material fact and is a matter of credibility for the factfinder. An issue of fact is further introduced through Leyba’s declaration in which he states that he has “never made physical contact with any part of John Doe 7028’s body, at any time.” (Motion, p. 6; Leyba Decl., ¶ 2.)

Furthermore, although John Doe 7028 said that Leyba never touched him “sexually” or touched his penis, the determination of whether a sexually offensive contact occurred is based on a “reasonable sense of personal dignity,” not John Doe 7028’s individual perception. (Civ. Code, § 1708.5, subd. (d)(2); Ex. 3, 175:7-178:22.) Additionally, the statute for sexual battery does not require that an intimate part must be touched for conduct to be sexually offensive, but that sexually offensive contact with “that person” must occur. Therefore, that John Doe 7028 testified that his penis was not touched does not settle whether a sexually offensive contact occurred.

The Court also notes that defense counsel questioned John Doe 7028 about his inconsistent testimony about being “physically” touched. (Ex. 3, 175:15-176:10.) John Doe 7028 asked defense counsel to clarify what was meant by the term “physically” and defense counsel specifically defined that being physically touched meant there was skin-on-skin contact. (Ex. 3, 176:11-15.) After providing this definition, defense counsel asked if the only “physical contact” John Doe 7028 had with Leyba is when he was “patted …on the shoulder” or when his arm was touched, and asked if it was true that there was “nothing inappropriate about that.” John Doe 7028 agreed. (Ex. 3, 176:21-177:1.) But this agreement is qualified by defense counsel’s own limitation on what it means to be touched “physically”, and does not demonstrate that there is no evidence of a sexually offensive contact.

Overall, the cited excerpt from John Doe’s deposition transcript, along with the definition of “physical contact” as offered by defense counsel, shows that questions of material fact exist which preclude summary adjudication of John Doe 7028’s sexual battery claim.

District’s motion for summary adjudication is GRANTED in part only as to the third cause of action.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.