Case Number: BC674800 Hearing Date: June 24, 2019 Dept: 4A
Motion for Summary Judgment
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On September 6, 2017, Plaintiff Daniel Morales, by and through his guardian ad litem, Heidi Morales, (“Plaintiff”) filed a Complaint against Defendants South Pasadena Unified School District (“District”), Roland De La Rosa (“De La Rosa”), and Does 1 through 100. Plaintiff alleges that he was attacked on campus by another student and alleges causes of action for (1) negligent supervision of students based on Government Code §§ 815.6 and 815.2 and 5 CCR § 552 against District and Does 1 through 50, (2) negligent hiring, supervision, training, and retention based on Government Code §§ 815.6 and 815.2 against District and Does 1 through 50, (3) negligent infliction of emotional distress against all Defendants, (4) assault against De La Rosa, and (5) battery against De La Rosa.
On March 21, 2019, De La Rosa was dismissed.
On April 16, 2019, Defendant District filed the instant motion for summary judgment and served it on February 15, 2019. This motion is brought on the grounds that Plaintiff has not produced and cannot produce evidence to demonstrate the existence of a genuine issue of triable fact as to whether District breached any duty to Plaintiff or whether any alleged breach was the cause of Plaintiff’s injuries.
Trial is not set.
PARTY’S REQUEST
District requests that this Court enter summary judgment against Plaintiff pursuant to Code of Civil Procedure section 437c on the grounds that there are no triable issues of material fact regarding breach and causation and District is entitled to judgment as a matter of law.
LEGAL STANDARD
The purpose of a motion for summary judgment “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(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.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“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 inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
DISCUSSION
District’s request for judicial notice of Plaintiff’s Complaint is GRANTED. (Evid. Code § 452.)
Plaintiff’s causes of action against District sound in negligence. “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.” (Dailey v. Los Angeles Unified Sch. Dist.¿(1970) 2 Cal.3d 741, 743, quotations and citations omitted.) Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision. (Ibid.) “Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Ibid., footnote omitted.)¿
The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 934.)
District argues that Plaintiff has not produced and cannot produce evidence that District acted with less care than an ordinary person under the circumstances or that more supervisors were necessary or would have mattered. Defendant also argues that it cannot be liable for the other student’s action because their actions were not foreseeable.
Defendant heavily relies on three cases. In Reithardt v. Board of Ed. of Yuba County (1941) 43 Cal.App.2d 629, a school district was not held liable for the acts of a student who pulled the plaintiff’s legs and caused her to fall. (Reithardt, supra, 43 Cal.App.2d at 631, 636.) The appellate court stated that the school district cannot be held liable for the willful misconduct of a student when such conduct could not reasonably have been foreseen by a person of ordinary prudence. (Id. at 636.) In Woodsmall v. Mt. Diablo Unified School Dist. (1961) 188 Cal.App.2d 262, the court concluded that the school district could not he held liable when one student pushed another student into a pole during recess, even though the supervisor stayed back to lock the classroom and the supervisor’s vision of the recess area was blocked. (Woodsmall, supra, 188 Cal.App.2d at 263.) Additionally, in Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, the Court of Appeal rejected liability for failure to supervise when a student attacked another student in gym class. (Skinner, supra, 37 Cal.App.4th at 38.) The appellate court reasoned that the supervisor had placed herself in a central location 20 to 30 feet from the plaintiff’s court, there was no indication of the game developing into a violent confrontation, the attacker did not challenge or provoke any student during the first game of the period, then the confrontation erupted suddenly when the supervisory was collecting scores from other teams and she rushed to the victim’s side and effectively dealt with the situation. (Ibid.) The court stated, “[w]e do not think she can be faulted without imposing an unrealistically high standard of care on teachers that would in effect make them ‘insurers of the safety of children on the premises.’” (Ibid.)
District presents evidence that Plaintiff was not injured after the first attack on September 26, 2016 by De La Rosa at brunch break and Plaintiff did not call for help or report the attack to any employee of District. (Puyot Decl., Exh. 3, Morales Depo. at 25-26, 36.) Plaintiff was then attacked by De La Rosa a second time on campus during the lunch break that day. (UMF No. 11.) The lunch break attack escalated quickly and occurred fast. (UMF No. 15.) De La Rosa punched Plaintiff approximately 3 times in quick succession. (UMF No. 13.) Prior to punching Plaintiff, De La Rosa did not announce or yell that he intended to punch Plaintiff. (UMF No. 16.) It is believed that no employee of the district witnessed De La Rosa strike Plaintiff. (UMF No. 17.)
Based on a secondhand understanding, a campus supervisor noticed that a crowd of students was gathering where the altercation between De La Rosa and Plaintiff was taking place, went over to the crowd to investigate, intervened to ensure the parties stayed apart, and then directed students to the school office. (UMF No. 18.) The school employs two full-time campus supervisors as security personnel who monitor school areas during school hours. (UMF No. 22.) During lunch break, one of the campus supervisors is assigned to supervise the western part of campus, and the other is assigned to the eastern part of campus. (UMF No. 23.) South Pasadena High School’s principal has never received any complaints about lack of supervision during student lunch breaks. (UMF No. 27.) Prior to September 26, 2016, Plaintiff and De La Rosa had never met or spoke, and there had been no prior altercation between the two. (UMF Nos. 30-32.)
The Court finds District’s evidence to be insufficient to meet its burden. While it is undisputed that there were supervisors during the lunch break, the evidence that there was no supervisor who witnessed the incident and the description about the intervention by a campus supervisor is inadmissible hearsay to which Plaintiff properly objected in his response to the Separate Statement. District presented the deposition testimony of Janet Anderson, the principal of the subject high school, to support these important factual assertions. But Anderson’s testimony does not show she had any personal knowledge of these facts and is wholly speculative. She even qualifies her testimony stating that she “believes” no one witnessed the incident, and that she has only a “secondhand understanding” of the supervisor intervention. She further states that she does not know if an adult broke it up. (Puyot Decl., Exh. 2, Anderson Depo. at 43.) This evidence is inadmissible. As a result, the District failed to meet its burden of showing that it did not breach its duty of care in support of its motion for summary judgment.
Even if the principal’s surmise were considered, moreover, there is no question that Plaintiff’s evidence raises a genuine issue of material fact regarding the District’s negligence. In its evidence, District tries to create the impression that its employees knew nothing about the morning attack and, thus, had no notice of any potential problem that might arise during the lunch break. It did so by ignoring the deposition testimony of Defendant Roland de la Rosa that District’s campus supervisor, Megerdich Baghram-Gregor, intervened to stop the altercation during the brunch break and, instead of separating the students and sending them to the office, the supervisor just told everyone to go to class. (Plaintiff’s Response to Separate Statement, No. 44). This testimony raises triable issues about whether District acted negligently in failing to protect Plaintiff and whether that negligence caused Plaintiff’s injuries.
To the extent that the Court considered Plaintiff’s evidence submitted with his opposition, District’s evidentiary objections are OVERRULED.
For the reasons explained above, District’s motion for summary judgment is DENIED.
Moving Defendant is ordered to give notice of this ruling.