Filed
8/13/13 (unmodified version)

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

A.R., a minor, by and through her guardian ad litem, J.R.,               Plaintiff and Appellant,               v.   CLAREMONT UNIFIED SCHOOL DISTRICT,               Defendant and Respondent.

B240947         (Los Angeles County       Super. Ct. No. KC060255)

 

            APPEAL from
a judgment of the Superior Court
of Los Angeles County,
R. Bruce Minto, Judge.  Affirmed in part,
reversed in part, and remanded.

            Law Offices
of Martin N. Buchanan, Martin N. Buchanan; Girardi | Keese, David N. Bigelow
and Molly B. Weber for Plaintiff and Appellant.

            Lynberg
& Watkins, Ric C. Ottaiano, Courtney L. Hylton, and Patrick J. Kirby for
Defendant and Respondent.

 

>

>INTRODUCTION

            A.R., a former Claremont High School (CHS) student
brought an action against the Claremont Unified School District (CUSD), through
her guardian ad litem, J.R., for negligence, intentional infliction of
emotional distress, and negligent infliction of emotional distress alleging
that CUSD failed to protect her from sexual victimization and rape by a fellow
CHS student known by CUSD to have previously victimized another female
student.  The trial court granted CUSD’s
motion for summary judgment or summary adjudication (summary judgment motion)
and A.R. appeals.  We reverse on all
issues except as to the causes of action for intentional infliction of
emotional distress and negligent infliction of emotional distress.  As to the other claims, there are triable
issues of fact precluding summary adjudication.

 

BACKGROUND

            T.S., a
resident in the CUSD, first enrolled at CHS as a freshman in March 2007.  In the 2008-2009 school year, when he was a
junior, T.S. attended CHS pursuant to an Interdistrict Transfer Agreement with
the Pomona Unified
School District because he was no
longer a resident in the CUSD.  T.S.
played football for CHS. 

            In about
June 2008, T.S. and another male CHS student sexually assaulted R.R., a CHS
student, one evening after summer school. 
A few weeks after the assault occurred, R.R. called a Kaiser advice
nurse because she had “physical complications” from the assault.  Shortly thereafter, a Claremont Police
Department officer questioned R.R. and her mother, L.R., about the sexual
assault.  R.R. was afraid of T.S. and
unable to confront what had happened to her, so she lied to the officer,
telling him that the sexual encounter was consensual.  In about July 2008, R.R. told her parents
that T.S. had sexually assaulted her. 
Shortly thereafter, L.R. and R.R. told Coach Mike Lee, R.R.’s summer
school teacher, that a then current CHS football player had “physically
assaulted” R.R.  Coach Lee did not
question R.R. or take any official action in response to the information. 

            When R.R.
returned to school for the 2008 fall semester, she found it very difficult to
attend school with T.S.  T.S. sexually
harassed R.R. on a number of occasions. 
On one occasion, T.S. approached R.R. on campus and said that he needed
her to have sex with his friend.  In
about October 2008, R.R. told her CHS counselor, Patricia Maddox, that
“something bad of a sexual nature” had happened between R.R. and T.S. and
another male CHS student.  She cried and
said that she was scared and did not want to be in the same classes with
T.S.  After the meeting, Maddox called
L.R. and informed her that R.R. had told her what had happened.  L.R. used T.S.’s full name during her
conversation with Maddox, and it was apparent to L.R. that Maddox understood
that T.S. had sexually assaulted her daughter. 


            Maddox
contacted the school resource officer, Chris Bradley, a sworn peace officer who
was employed jointly by the City of Claremont
(City) and CUSD.  She related to Officer
Bradley what R.R. had reported to her. 
She gave him T.S.’s name, and asked him if he was aware of anything
about which CUSD should be concerned. 
Officer Bradley said he would look into R.R.’s report.  Less than a day later, Officer Bradley told
Maddox that he had determined that whatever had occurred was consensual.  According to Maddox, she and Officer Bradley
determined that they had done all they could do. 

            A few weeks
later, R.R. again met with Maddox.  She
said that she could not stand being at CHS with T.S. and needed to transfer to
another high school.  T.S., his sister,
and his friends on campus had threatened and harassed her.  R.R. often spent time in Maddox’s office
because she was too upset to attend class. 
In about December 2008, R.R.’s father, D.R., filled out an Interdistrict
Attendance Permit Application at the CUSD office to allow his daughter to
attend high school in another school district. 
As the reason for the transfer request, D.R. checked the “Special
Circumstances” box and wrote, “Victim of sexual assault and sexual
harassment.  P.D. notified.”  D.R. turned in the completed form to CUSD
personnel. 

            While he
was at the CUSD office, D.R. spoke to Superintendent of

Student Services Michael Bateman.  Bateman did not ask D.R. to identify the
facts or circumstances of the reported sexual assault or sexual harassment R.R.
had suffered.  Bateman signed the
Interdistrict Attendance Permit Application. 
After Bateman received R.R.’s Interdistrict Attendance Permit
Application, he asked Officer Bradley to look into the allegations of sexual
assault stated on the application.  A few
days later, Officer Bradley reported to Bateman that an investigation conducted
the previous summer had determined that the sex involved was consensual.  Officer Bradley identified T.S. as the
accused.  Bateman understood at that time
that a minor female was not legally capable of having consensual sex.  Bateman did not believe that CUSD had an
obligation to investigate the matter further. 
No administrator of the school district questioned R.R. or her parents
in relation to the events. 

            CHS
Principal Brett O’Connor and Bateman helped R.R. transfer to another high
school.  R.R. began classes at her new
high school in the spring 2009 semester. 
Before the 2009-2010 school year, D.R. filled out an Interdistrict
Transfer renewal form for his daughter. 
He listed the same reasons for the transfer that he had listed on the
Interdistrict Attendance Permit Application. 
CUSD approved the 2009-2010 renewal form. 

            During the
2009-2010 school year, A.R. was a 14-year-old ninth grade student at CHS.  CHS permitted students to choose one of two
class schedules—zero period through sixth period, or first period through
seventh period.  A.R. enrolled in the
zero period through sixth period schedule to participate more easily in CHS’s
extracurricular sports programs. 

            During the
first semester of the 2009-2010 school year, A.R. participated in CHS’s cross
country program which met for practice after seventh period classes ended.  Because her classes ended with sixth period,
A.R. was not required to remain on campus during seventh period to wait for
cross country practice to begin.  When
the cross country season ended, A.R. participated in CHS’s pre-season track
program, which had the same practice schedule as the cross country
program.  As during cross country season,
A.R. was not required to remain on campus during seventh period to wait for
track practice to begin. 

            January 25, 2010, was the first
official day of track practice.  That
day, A.R. remained on campus after her sixth period class ended to wait for
track practice to begin.  As she waited,
A.R. received a text message from T.S., a senior CHS student with whom she was
acquainted.  A.R. had met T.S. at the
football field one day; he told her she had “pretty eyes.”  Thereafter, although A.R. and T.S.
occasionally exchanged text messages, A.R. never saw T.S. outside of school
hours or school-sponsored activities. 
Like A.R., T.S. did not have a seventh period class.  T.S. asked A.R. to meet him at Cahuilla
Park. 

            Cahuilla Park, a public park contiguous
to the CHS campus, was owned by the City. 
The CHS campus was open to Cahuilla Park—although the campus and
park were separated by a chain link fence, there were no gates or other
barriers at the park’s entrances.  CUSD
had an agreement with the City pursuant to which CUSD was the primary manager/operator
of two softball fields and one baseball field at the park.  Under the agreement, CUSD was to “make
facility improvements, oversee routine maintenance, and allocate the community
fields for adult softball, field rentals, and pick-up games.”  It was responsible for the upkeep and
maintenance of the restrooms adjacent to the athletic fields.  CUSD was to administer scheduling, invoicing,
and collecting of fees for field use; to compensate the City for field lighting
and watering costs; and to reimburse the City for field use revenue.  It agreed to not to use or allow the athletic
fields to be used in any manner that violated any law and to “exercise
reasonable care in the use” of the athletic fields. 

            During the
2009-2010 school year, the CHS baseball, softball, track, and cross country
teams used Cahuilla Park.  A.R. believed the park was part of the CHS
campus—as part of freshman orientation, A.R. and other students were given a
tour of the school, which included Cahuilla
Park.  During the tour of the park, A.R. and the other
students were told they could use the Youth
Activity Center,
a park facility, before and after school and during seventh period.  No one at CHS told A.R. that the park was not
part of the campus. 

            A.R. met
T.S. on the bleachers near Cahuilla Park’s
baseball field.  A.R. did not see anyone
else in the park.  A.R. and T.S. spoke
for a short time before it started to rain. 
They walked toward nearby restrooms to get out of the rain.  Once they arrived at the restrooms, T.S.
proceeded as if he were going to enter the restrooms.  A.R. said she would not go into the restrooms
with T.S.  He told her not to worry,
saying, “It’s raining.  I promise I won’t
try anything.”  A.R. believed T.S. and
entered the women’s restroom with him. 
Once inside the women’s restroom, T.S. raped A.R. 

            After the
sexual assault, A.R. was bleeding from her vagina.  She returned to the CHS campus where she
changed out of her bloody pants into a friend’s sweat pants.  She changed into her own track shirt and
attended track practice at the CHS track. 
The track was on the CHS campus and not in Cahuilla
Park.  A.R. bled from the rape for about two to
three days and suffered severe emotional distress. 

            On February 4, 2010, A.R. was called out
of class to meet with CHS Assistant Principal, Student Services Sharon
Fera.  Fera was investigating a claim by
another student that she and A.R. had been raped by T.S.  A.R. told Fera about the sexual assault in Cahuilla
Park.  Fera immediately contacted the Claremont
Police Department and A.R.’s parents. 
T.S. was arrested on campus that day. 
At a meeting with A.R.’s parents, Fera described T.S. as a nice kid who
preyed on vulnerable girls like their daughter. 
A.R.’s parents immediately removed A.R. from CHS, and she transferred to
a school outside of the CUSD. 

            On February
5, 2010, CUSD suspended T.S. for the five-day period between February 5, 2010,
to February 11, 2010, based on the incident on January 25, 2010.  The grounds for the suspension were
committing or attempting to commit a sexual assault in violation of Education
Code section 48900, subdivision (k) and disrupting school activities in
violation of Education Code section 48915, subdivision (c)(4) while under the
jurisdiction of the school.  Effective
February 11, 2012, CUSD revoked T.S.’s interdistrict transfer and, ultimately,
expelled T.S. 

            A.R. filed
a Liability Claim Form with CUSD dated May 24, 2010, relating to her January
25, 2010, sexual assault.  The claim was
for “Physical and emotional injuries resulting from rape.”  A.R. stated that she was “raped in the
bathroom adjacent to the baseball field by another Claremont High School
student known to officials of the Claremont Unified School District to pose
such a danger.”  The location where the
injury occurred was identified as “Cuhuilla [sic] Park/Claremont High School.” 
The claim stated that CUSD caused the injury because “Claremont High
school negligently allowed the assailant to continue to attend Claremont High
School knowing that he posed a serious danger to female students.”  On June 24, 2010, the Board of Education met
and rejected A.R.’s claim without discussion. 


 

PROCEDURAL HISTORY

            CUSD filed
a summary judgment motion.  The trial
court granted the motion.  It ruled that
A.R. could not bring certain theories of liability not asserted in the
liability claim form she filed with CUSD. 
As to A.R.’s claim that CUSD was negligent in admitting T.S. to CHS
pursuant to an interdistrict transfer application and in its failure to discipline,
suspend, or expel him following his alleged sexual assault of R.R., the trial
court ruled that CUSD was entitled to discretionary immunity under Government
Code section 820.2 (section 820.2).  The
trial court ruled that CUSD was entitled to immunity under Education Code
section 44808 (section 44808) as to each of A.R.’s causes of action because
A.R.’s injuries occurred off school grounds, after she was released from class,
and while CUSD was not using Cahuilla Park for a school purpose.  Finally, the trial court ruled that there was
no triable issue of material fact as to A.R.’s claim that there was a dangerous
condition on CUSD’s property.href="#_ftn1"
name="_ftnref1" title="">^[1] 

 

DISCUSSION

            A.R. claims
that the trial court erred in granting summary judgment.  As set forth below, the trial court erred in
part.

 

I.          Standard of Review

            “We review
the grant of summary judgment de novo.  (>Szadolci v. Hollywood Park Operating Co.
(1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].)  We make ‘an independent assessment of the
correctness of the trial court’s ruling, applying the same legal standard as
the trial court in determining whether there are any genuine issues of material
fact or whether the moving party is entitled to judgment as a matter of
law.’  (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218,
222 [38 Cal.Rptr.2d 35].)  A defendant
moving for summary judgment meets its burden of showing that there is no merit
to a cause of action by showing that one or more elements of the cause of
action cannot be established or that there is a complete defense to that cause
of action.  (Code Civ. Proc., § 437c,
subd. (p)(2).)  Once the defendant has
made such a showing, the burden shifts back to the plaintiff to show that a
triable issue of one or more material facts exists as to that cause of action
or as to a defense to the cause of action. 
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)”  (Moser
v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216–1217.)  We must consider all of the evidence and all
of the inferences reasonably drawn therefrom, and must view such evidence and
such inferences in the light most favorable to the party opposing summary
judgment.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

 

II.        Liability Claim Form

            In its
summary judgment motion, CUSD argued that A.R.’s action was limited to the
theory of liability A.R. asserted in the liability claim form she filed with
CUSD—i.e., that CUSD was negligent in allowing T.S. to continue to attend CHS
knowing that he posed a serious danger to female students.  The trial court ruled that A.R.’s action was
limited to the single theory asserted in the liability claim form.  A.R. contends that the trial court erred
because the factual allegations in her liability claim form adequately gave
notice to CUSD of all theories of liability asserted in the second amended
complaint.  The trial court erred in
part.

 

            >A.         A.R.’s
Liability Claim Form and Second Amended Complaint

            A.R.’s
attorney filed a pre-printed CUSD liability claim form on A.R.’s behalf.  In the claim form, A.R. identified the
location where her injury occurred as “Cuhuilla [sic] Park/Claremont High School.” 
As to the circumstances under which she was injured, she stated, A.R., a
“freshman student at Claremont High School, was raped in the bathroom adjacent
to the baseball field by another Claremont High School student known to
officials of the Claremont Unified School District to pose such a danger.”  The form asked, “WHAT particular act or
omission on the part of the District’s officers or employees caused the alleged
injury or damage?”  A.R. responded,
“Claremont High School negligently allowed the assailant to continue to attend
Claremont High School, knowing that he posed a serious danger to female students.”  A.R. stated that her claimed damages were
“Physical and emotional injuries resulting from rape.” 

            In her
second amended complaint, A.R. asserted causes of action for negligence,
intentional infliction of emotional distress, and negligent infliction of
emotional distress.  A.R. alleged that
CUSD had a duty to supervise her while she was on campus, and to supervise T.S.
while he was on and around campus for her safety and the safety other female
students.  She further alleged that CUSD
failed adequately to fence its property or erect barriers to prevent easy
access to Cahuilla Park, and failed to prevent dangerous conditions on its
property and on property adjacent thereto—i.e., Cahuilla Park.  A.R. alleged that CUSD was negligent, among
other things, in permitting T.S. to remain enrolled at CHS despite its
knowledge that he previously sexually assaulted another 14-year-old CHS female
student; in failing to discipline T.S.; in failing to warn CHS administrators,
teachers, and staff about T.S. so that they could prevent him from sexually
pursuing and raping A.R.; and in failing to implement reasonable safeguards to
prevent T.S. from engaging in acts of unlawful sexual conduct. 

 

            >B.         Application
of Relevant Principles

            Government
Code section 945.4 (section 945.4)href="#_ftn2"
name="_ftnref2" title="">^[2] provides that “no suit for money or damages
may be brought against a public entity on a cause of action for which a claim
is required to be presented in accordance with . . . Section 910 . . . until a
written claim therefor has been presented to the public entity and has been acted
upon by the board, or has been deemed to have been rejected by the board . . .
.”  A claim under Government Code section
910 (section 910)href="#_ftn3" name="_ftnref3"
title="">^[3] must state the “date, place and other
circumstances of the occurrence or transaction which gave rise to the claim
asserted” and provide a “general description of the . . . injury . . . incurred
so far as it may be known at the time of presentation of the claim.”

            “The
purpose of these statutes is ‘to provide the public entity sufficient
information to enable it to adequately investigate claims and to settle them,
if appropriate, without the expense of litigation.’  [Citation.] 
Consequently, a claim need not contain the detail and specificity
required of a pleading, but need only ‘fairly describe what [the] entity is
alleged to have done.’  [Citations.]  As the purpose of the claim is to give the
government entity notice sufficient for it to investigate and evaluate the
claim, not to eliminate meritorious actions [citation], the claims statute
‘should not be applied to snare the unwary where its purpose has been
satisfied’ [citation].”  (>Stockett v. Association of Cal. Water
Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (>Stockett).)

            “If the
claim is rejected and the plaintiff ultimately files a complaint against the
public entity, the facts underlying each cause of action in the complaint must
have been fairly reflected in a timely claim. 
[Citation.]”  (>Stockett, supra, 34 Cal.4th at p.
447.)  “The claim, however, need not
specify each particular act or omission later proven to have caused the
injury.  [Citation.]  A complaint’s fuller exposition of the
factual basis beyond that given in the claim is not fatal, so long as the
complaint is not based on an ‘entirely different set of facts.’  [Citation.] 
Only where there has been a ‘complete shift in allegations, usually
involving an effort to premise civil liability on acts or omissions committed
at different times or by different persons than those described in the claim,’
have courts generally found the complaint barred.  [Citation.] 
Where the complaint merely elaborates or adds further detail to a claim,
but is predicated on the same fundamental actions or failures to act by the
defendants, courts have generally found the claim fairly reflects the facts
pled in the complaint.  [Citation.]”  (Ibid.)

            In >Stockett, supra, 34 Cal.4th 441, the
plaintiff filed a tort claim form alleging that his employer, a public agency
that provided insurance and risk management services to nearly 300 public water
agencies in California, had wrongfully terminated him for supporting a female
employee’s sexual harassment complaints. 
(Id. at p. 444.)  He then filed a civil action in which he
asserted that he was terminated in violation of public policy on three
grounds:  (1) he had opposed sexual
harassment in the workplace, (2) he had objected to a conflict of interest
concerning his employer’s purchase of insurance, and (3) he exercised his First
Amendment right of free speech by objecting to his employer’s practice of not purchasing
insurance in a manner that would have been in the best interests of its member
agencies.  (Ibid.)  At trial, the
plaintiff also alleged that he had been fired for exercising his free speech
right in statement he made to an insurance industry newsletter.  (Id.
at p. 445.)

            The
California Supreme Court held that the plaintiff’s tort claim form complied
with sections 910 and 945.4 because the claim stated the date and place of his
termination, his employer’s officers and agents who he believed were responsible
for his wrongful termination, and the general circumstances of his
termination.   (Stockett, supra, 34 Cal.4th at p. 447.)  The court stated that the plaintiff had not
changed the fundamental facts underlying his claim of wrongful termination—the
free speech and conflict of interest theories only added detail to his claim by
alleging additional motivations and reasons for his employer’s single action of
wrongful termination.  (>Id. at p. 448.)

            The court
held that by notifying his employer of his claim that he had been wrongfully
terminated and identifying those allegedly involved, the plaintiff had supplied
his employer with sufficient information to investigate and evaluate the merits
of the claim.  (Stockett, supra, 34 Cal.4th at p. 449.)  The court reasoned that “a reasonable
investigation of a wrongful termination claim would not be limited to the
motives for termination hypothesized in the fired employee’s claim form.”  (Ibid.)  “A reasonable investigation by the [employer]
would have included questioning members of the committee [that terminated the
plaintiff] to discover their reasons for terminating [him] and an evaluation of
whether any of the reasons proffered by the committee, including but not
limited to the theories in [the plaintiff’s] claim, constituted wrongful
termination.”  (Ibid.)  Thus, the court held,
the plaintiff’s “notice of claim satisfied the purposes of the claims statutes
by providing sufficient information for the public entity to conduct an
investigation into the merits of the wrongful termination claim, and the
complaint’s free speech and conflict of interest theories of termination in
violation of public policy were fairly reflected in the claim because the
complaint did not change the fundamental facts of the claim.”  (Id.
at p. 450.)

            Although
stated in a single cause of action, it appears that A.R.’s negligence cause of
action is based on the following theories of liabilityhref="#_ftn4" name="_ftnref4" title="">^[4]:  (1) CUSD allowed T.S. to continue to attend
CHS knowing that he posed a serious danger to female students, (2) CUSD failed
to supervise A.R. and T.S. properly, (3) CUSD failed to inform—i.e., to
warn—T.S.’s teachers about his sexual assault of R.R.href="#_ftn5" name="_ftnref5" title="">^[5],
and (4) CUSD permitted a dangerous condition to exist on its property.  CUSD contends that only the first theory was
raised in A.R.’s liability claim form and that A.R. thus was barred from
proceeding on the remaining theories. 
Because the trial court granted CUSD’s summary judgment motion as to
A.R.’s dangerous condition theory on other grounds that A.R. does not appeal,
we need not address the trial court’s liability claim form ruling as to the
dangerous condition theory.  As for
A.R.’s theories that CUSD was negligent in failing to supervise A.R. and T.S.
properly and in failing to inform or warn T.S.’s teachers about his sexual
assault of R.R., they were fairly reflected in A.R.’s liability claim
form.  (Stockett, supra, 34 Cal.4th at p. 447.)

            A.R.’s
liability claim form asserted that A.R. was raped by a CHS student known to
CUSD officials to pose a danger of rape. 
The specific charge of negligence in A.R.’s liability claim form was
that CUSD “negligently allowed the assailant to continue to attend Claremont
High School, knowing that he posed a serious danger to female students.”  The notice provided by that charge was that
CUSD failed to take steps to protect A.R. and other CHS female students from
sexual assault by a CHS student known to pose a risk of sexual assault.  A reasonable investigation of such a charge
would have addressed whether those steps should have included, and whether
A.R.’s rape could have been prevented by better supervision of A.R. and T.S.
and by informing T.S.’s teachers of his sexual assault of R.R. so they could
monitor his behavior.  (>Stockett, supra, 34 Cal.4th at p. 449.)  Accordingly, the trial court erred in
granting CUSD’s summary judgment motion as to A.R.’s alternative negligence
theories.  Section 910 requires only that
the claim form include the date, place, and other circumstances of the
occurrence; a general description of the injury, damage, or loss; and the names
of the public employee or employees causing the injury if known.  CUSD added an additional question.  The answer to that question cannot limit
liability to that asserted in the response to a question requiring more
information than required by the statute. 
(Blair v. Superior Court (1990)
218 Cal.App.3d 221, 225.)

            As for
A.R.’s intentional infliction of emotional distress cause of action, the trial
court did not err.  There is no
information in A.R.’s liability claim form that would have put CUSD on notice
that any of its employees had engaged in intentional conduct with respect to
A.R. designed to inflict emotional distress. 
Because such a cause of action represents a “‘complete shift in
allegations,’” the trial court properly ruled that the cause of action was
barred.  (Stockett, supra, 34 Cal.4th at p. 447.)  As to A.R.’s negligent infliction of
emotional distress cause of action, the trial court appears to have ruled that
A.R. could assert that claim as an element of damages for her negligence cause
of action but not as a separate cause of action.  A.R. has not appealed that ruling.

 

III.       Section 820.2 Immunity

            The trial
court granted CUSD’s summary judgment motion as to its argument that the discretionary
immunity in section 820.2href="#_ftn6"
name="_ftnref6" title="">^[6] shielded it from liability with respect to
A.R.’s claim that it was negligent in admitting T.S. to CHS pursuant to an
interdistrict transfer application and in its failure to discipline, suspend,
or expel T.S. following his alleged sexual assault of R.R.href="#_ftn7" name="_ftnref7" title="">^[7]  A.R. correctly argues that the trial court
erred because CUSD failed to show that any CHS employee actually exercised
discretion within the meaning of section 820.2 in admitting or failing to
discipline, suspend, or expel T.S. 

 

            >A.         The
Trial Court’s Ruling

            The trial
court ruled that there was no triable issue of material fact with respect to
the application of the discretionary immunity in section 820.2 to A.R.’s claim
that CUSD was negligent in admitting T.S. to CHS or in failing to discipline,
suspend, or expel him.  It also ruled,
however, that the immunity did not cover all potential theories of liability
that A.R. alleged in the second amended complaint, identifying specifically the
apparent theory that CUSD violated its mandatory duty, under Government Code
section 815.6 and Education Code section 49079, to report T.S.’s alleged sexual
assault of R.R. to his teachers. 

 

            B.         Application of Relevant Legal
Principles

            “Under the
California Tort Claims Act ([Gov. Code,] § 810 et seq.), public employees are
liable for their torts unless a statute provides otherwise.  ([Gov. Code,] § 820, subd. (a).)  One exception to this general rule of liability
is found in section 820.2, which codifies the common law immunity for the
discretionary acts of a government official performed within the scope of his
or her authority.  (Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980 [42 Cal.Rptr.2d
842, 897 P.2d 1320] (Caldwell).)”  (Barner
v. Leeds (2000) 24 Cal.4th 676, 682-683 (Barner).)

            However,
“not all acts requiring a public employee to choose among alternatives entail
the use of ‘discretion’ within the meaning of section 820.2.”  (Barner,
supra, 24 Cal.4th at pp. 684-685, citing Caldwell, supra, 10
Cal.4th at p. 981.)  “Immunity is
reserved for those ‘basic policy
decisions [which have] . . . been [expressly] committed to coordinate
branches of government,’ and as to which judicial interference would thus be
‘unseemly.’  [Citation.]  Such ‘areas of quasi-legislative policy-making
. . . are sufficiently sensitive’ [citation] to call for judicial abstention
from interference that ‘might even in the first instance affect the coordinate
body’s decision-making process’ [citation].’” 
(Caldwell, supra, 10 Cal.4th
at p. 981, citing Johnson v. State of
California (1968) 69 Cal.2d 782, 793-794 (Johnson).)

            “On the
other hand, . . . there is no basis for immunizing lower-level, or
‘ministerial,’ decisions that merely implement a basic policy already
formulated.  [Citation.]  Moreover, . . . immunity applies only to >deliberate and considered policy
decisions, in which a ‘[conscious] balancing [of] risks and advantages . . .
took place.  The fact that an employee
normally engages in “discretionary activity” is irrelevant if, in a given case,
the employee did not render a considered decision.  [Citations].’ 
[Citation.]”  (>Caldwell, supra, 10 Cal.4th at p. 981,
citing Johnson, supra, 69 Cal.2d
at  pp. 795, fn. 8 & 796.)  The burden of proof to show that section
820.2 discretionary immunity applies is on the public entity claiming the
immunity.  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780,
794 (Lopez) [“to avail itself of the
discretionary immunity provided by section 820.2, a public entity must prove
that the employee, in deciding to perform (or not to perform) the act which led
to plaintiff's injury, consciously
exercised discretion in the sense of assuming certain risks in order to
gain other policy objectives”].)

            Admissions
decisions and decisions about whether to expel a student may receive
discretionary immunity under section 820.2. 
(Thompson v. Sacramento City
Unified School Dist. (2003) 107 Cal.App.4th 1352, 1361 (>Thompson); Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31,
39 (Skinner).)  In Thompson,
a high school student was injured when he was punched by another student who
previously had been expelled from the school district’s middle school.  (Thompson,
supra, 107 Cal.App.4th at pp. 1358-1359.) 
The injured student argued that the school district should not have
readmitted the offending student to the district’s public schools following his
expulsion.  (Id. at p. 1361.)  The Court
of Appeal held that “[a] school district’s exercise of authority to expel
and/or readmit a pupil involves the type of decision that entails ‘“the
resolution of policy considerations, entrusted by statute to a coordinate
branch of government, that compels immunity from judicial reexamination.”’  [Citations.]” 
(Ibid.)

            In >Skinner, a male high school student
punched a female high school student in the face, breaking her jaw.  (Skinner,
supra, 37 Cal.App.4th at pp. 34-35.) 
Prior to the incident, the male student had been suspended on various
occasions for violent behavior.  (>Id. at p. 36.)  The Court of Appeal held that the jury’s
verdict in favor of the female student could not be supported by the school
district’s failure to expel the male student before the incident.  (Id.
at p. 39.)  The court reasoned, “The
power to expel students from public schools has been entrusted to the governing
board of the school district, which must exercise this power pursuant to
statutory guidelines (Ed. Code, §§ 48912-48915.5) and its own rules and
regulations.  (Ed. Code, § 48918.)  Accordingly, the decision falls squarely
within the discretionary immunity provision of Government Code section
820.2.  The decision to expel entails
‘the resolution of policy considerations, entrusted by statute to a coordinate
branch of government, that compels immunity from judicial reexamination.’  [Citation.]” 
(Ibid.)

            Although an
admission decision may involve discretion and thus be entitled to section 820.2
discretionary immunity when it involves the “resolution of policy
considerations” (see Thompson, supra,
107 Cal.App.4th at p. 1361), CUSD failed to establish that Bateman made a
“deliberate and considered” policy decision—i.e., that he actually exercised
discretion in determining whether T.S. satisfied the interdistrict transfer
requirements (Caldwell, supra, 10
Cal.4th at p. 981.)  At his deposition,
Bateman testified that he was responsible for verifying eligibility for
interdistrict transfer students, including T.S., for the 2008-2009 school
year.  Bateman believed that he received
T.S.’s interdistrict transfer application in September 2008.  In order to verify T.S.’s eligibility,
Bateman checked if T.S.’s grades, attendance, and behavior were
satisfactory.  T.S. had to have a minimum
2.0 grade point average.  “Good behavior”
meant that T.S. had not been recommended for expulsion and was not a constant disruption
at school.  Bateman relied on a student
database and a letter of recommendation from the school to determine if T.S.
met the eligibility requirements. 
Bateman’s deposition testimony makes clear that his role in verifying
T.S.’s eligibility status for an interdistrict transfer was at most a
“lower-level ‘or ministerial’” decision that did not involve the exercise of
discretion.  (Ibid.)  Indeed, in its
summary judgment motion, CUSD reached the same conclusion, arguing that it did
not have the “power”—i.e., the discretion—as a public high school to deny T.S.
admission because he “undisputedly” “met the criteria for attendance.”  Accordingly, the trial court erred in ruling
as a matter of law that section 820.2 discretionary immunity applied to the decision
to admit T.S. to CHS.  (>Ibid.; Lopez, supra, 40 Cal.3d at p. 794.) 
Moreover, even if the act of a public employee can be classified as
discretionary, that does not immunize him from liability for negligently
performing an act after having exercised a discretionary decision to do
so.  (McCorkle
v. City of Los Angeles (1969) 70 Cal.2d 252, 261.)  Here, even if the act of allowing T.S. to
remain in school were discretionary, there was a triable issue of fact as to
the negligence in the investigation. 

            Although
Bateman’s deposition testimony was at least some evidence about CUSD’s decision
to admit T.S. pursuant to an interdistrict transfer application, CUSD has not
cited any evidence about the decision, if any, of any CHS employee about
whether or not to discipline, suspend, or expel T.S. after R.R. and her parents
repeatedly informed CHS officials of T.S.’s alleged sexual assault of R.R.  Because CUSD failed to meet its burden of
proof on this issue, the trial court erred in determining discretionary
immunity under section 820.2 at the summary judgment stage (>Caldwell, supra, 10 Cal.4th at p. 981; >Lopez, supra, 40 Cal.3d at p. 794.)

 

IV.       Section 44808 Immunity

            A.R.
contends that the trial court erred in finding CUSD immune, under section
44808, from liability for her sexual assault because her injuries occurred off
school grounds, after she was released from class, and while CUSD was not using
Cahuilla Park for a school purpose.  We
agree.

            A.         The Trial Court’s Ruling

            The trial
court ruled that there was no triable issue of fact that CHS owned Cahuilla
Park or that the park was within the school’s boundaries.  It also ruled, however, that there was a
triable issue of fact concerning whether Cahuilla Park was at times de facto
school grounds because the park was adjacent to CHS and the school regularly
used the park for activities that are generally considered to be traditional
school or extracurricular activities such as football and baseball team
practices.  The trial court further ruled
there was a triable issue of fact about whether CHS’s actions with respect to
Cahuilla Park could at times fit within the “specific undertaking” exception to
the section 44808 immunity. 
Notwithstanding its conclusions concerning triable issues of fact, the
trial court ruled that CUSD was entitled to section 44808 immunity as to all of
A.R.’s claims.  The trial court reasoned
that even if Cahuilla Park was at times a de facto part of the school’s grounds
or used for a specific undertaking by the school, those exceptions to section
44808 immunity applied only while the park was being used as de facto school
grounds or for the specific undertaking. 
There was no triable issue of fact that Cahuilla Park was being used
during CHS’s seventh period, during which period T.S. sexually assaulted A.R.,
or immediately thereafter for any school activity.  Even though A.R. was going to attend track
practice immediately after seventh period, that activity took place on CHS’s
traditional school grounds and not in Cahuilla Park. 

 

            >B.         Application
of Relevant Legal Principles

            “It is well
settled that although a school district is not an insurer of its pupils’
safety, school authorities have a duty to supervise the conduct of students on
school grounds and to enforce rules and regulations necessary for their
protection.  [Citation.]  The standard of due care imposed on school
authorities in exercising their supervisorial responsibilities is that degree
of care which a person of ordinary prudence, charged with comparable duties,
would exercise under the same circumstances. 
[Citation.]”  (>Brownell v. Los Angeles Unified School Dist.
(1992) 4 Cal.App.4th 787, 795-796 (Brownell).)  Thus, a school district that is negligent in
the exercise of due care in supervising its students on school premises is
liable for injuries proximately caused by its negligence.  (Perna
v. Conejo Valley Unified School Dist. (1983) 143 Cal.App.3d 292, 295 (>Perna).) 
Proximate cause is a question of fact for the jury.  (Hoyem
v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520 (>Hoyem); Perna, supra, 143 Cal.App.3d at p. 296.)

            Section
44808 grants school districts immunity from liability for off-campus injuries
students suffer under certain circumstances. 
(Hoyem, supra, 22 Cal.3d at
pp. 516-517.)  Section 44808
provides:  “Notwithstanding any other
provision of this code, no school district, city or county board of education,
county superintendent of schools, or any officer or employee of such district
or board shall be responsible or in any way liable for the conduct or safety of
any pupil of the public schools at any time when such pupil is not on 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. 
[¶]  In the event of such a
specific undertaking, the district, board, or person shall be liable or
responsible for the conduct or safety of any pupil only while such pupil is or
should be under the immediate and direct supervision of an employee of such
district or board.”

            There is at
least a triable issue of fact about whether Cahuilla Park was part of the CHS
campus at the time T.S. raped A.R. in the park’s restroom.  The park was contiguous to the traditional
CHS campus.  There was easy access from
CHS into the park.  Under the agreement
with the City, CUSD managed and operated the athletic fields at the park.  That agreement required CUSD to undertake a
variety of duties with respect to the park including maintaining the athletic
fields, scheduling field use, and maintaining the restrooms adjacent to the
fields—i.e., the restrooms where T.S. raped A.R.  Among other things, CUSD agreed to “exercise
reasonable care in the use” of the athletic fields.  In CHS’s freshman orientation for the 2009-2010
school year, A.R. and other students were given a tour of the park as part of
their tour of CHS.  A.R. and other
students on the tour were told they could use the park’s Youth Activity Center before and after school> and during seventh period—i.e., the
school period during which T.S. raped A.R. 
No one at CHS told A.R. that the park was not part of the campus.  During the 2009-2010 school year, CHS used
the park’s athletic fields for its baseball, softball, track, and cross country
teams.  In its letter to T.S.’s parents
explaining T.S.’s suspension for disrupting school activities and committing or
attempting to commit a sexual assault, CUSD stated the incident occurred “while
under the jurisdiction of the school . . . .” 
CUSD determined that T.S. had disrupted school activities because
neither he nor A.R. had gone home prior to the incident. 

            Moreover,
even if Cahuilla Park was not part of the CHS campus at the time of the sexual
assault, a school district that has been negligent in the supervision of a
student on school premises “cannot automatically escape liability simply
because the injury occurred off the school property,” notwithstanding section
44808’s immunity for off-campus injuries. 
(Perna, supra, 143 Cal.App.3d,
295; Hoyem, supra, 22 Cal.3d at p.
517; Hoyem, supra, 22 Cal.3d at p.
515 [“the off-campus situs of an injury does not ipso facto bar recovery from a
school district”].)  Rather, the school
district may be held liable for injuries its student suffered off school
premises and after school hours when the injury resulted from the school
district’s negligence while the student was on school premises.  (Brownell,
supra, 4 Cal.App.4th at p. 795; Hoyem,
supra, 22 Cal.3d at pp. 515-516; Perna,
supra, 143 Cal.App.3d at p. 296.) 
The facts and the courts’ analyses in Hoyem, Perna, and >Brownell illustrate this principle.

            In >Hoyem, supra, 22 Cal.3d 508, a
10-year-old boy attending summer school left school grounds before the end of
scheduled classes and was hit by a motorcycle. 
(Id. at p. 512.)  The student claimed that the school district
was negligent in supervising him while on school premises—i.e., in failing to
prevent him from leaving—and that the school district’s negligence proximately
caused his injuries.  (>Id. at pp. 513-514.)  The Supreme Court held that section 44808 did
not immunize the school district from the boy’s claim that his off-campus
injuries resulted from the school district’s negligent on-campus
supervision.  (Id. at pp. 515-517.)

            In >Perna, supra, 143 Cal.App.3d 292, a
teacher asked a student to stay after school and help grade papers.  (Id.
at p. 294.)  When the student and her
sister left campus, the school crossing guard was no longer on duty.  (Ibid.)  The sisters were hit by a car as they crossed
the intersection.  (Ibid.)  They brought an
action for negligence against the school district alleging that the teacher
knew or reasonably should have known that the crossing guard would be gone from
the intersection where they would cross on their way home.  (Ibid.)  The school district argued that it was immune
from liability under 44808 because “the student was not on school property and
was injured during hours when school was not in session.”  (Perna,
supra, 143 Cal.App.3d at pp. 294-295.) 
Following Hoyem, the Court of
Appeal held that the student stated a cause of action for negligence based on
the school district’s on-campus conduct without regard to the situs of the
injury.  (Ibid.)

            In >Brownell, supra, 4 Cal.App.4th 787, a
student was shot by gang members on a public street adjacent to school property
immediately after school hours.  (>Id. at p. 790.)  The student sued the school district alleging
negligent supervision based on school personnel’s failure to determine if the
street in front of the school was free of gang members.  (Id.
at p. 790.)  In its defense, the school
district argued that under section 44808 it was not liable for the student’s
injuries as they occurred after school and off school property.  (Brownell,
supra, 4 Cal.App.4th at p. 794.) 
Citing Hoyem, supra, 22 Cal.3d
at pages 515 through 516, the court rejected the school district’s defense,
holding that “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.”  (Brownell, supra, 4 Cal.App.4th at p. 795.)

            In her
second amended complaint, A.R. alleged that CUSD was negligent, among other
things, in permitting T.S. to remain enrolled at CHS despite its knowledge that
he previously sexually assaulted another 14-year-old CHS female student and
presented an imminent and serious danger to all female students at CHS.  That is, A.R. alleged that CUSD personnel
engaged in negligent conduct on campus that resulted in injury to A.R. off
campus.  The undisputed facts in this
case support A.R.’s negligence theory of liability.  Because section 44808 does not immunize CUSD
from liability under such a theory, the trial court erred in granting summary
judgment.  (Hoyem, supra, 22 Cal.3d at pp. 515-516; Brownell, supra, 4 Cal.App.4th at p. 795; Perna, supra, 143 Cal.App.3d at pp. 295-296.)

            CUSD argues
that we should disregard Hoyem, supra,
22 Cal.3d 508 and Perna, supra, 143
Cal.App.3d 292, which follows Hoyem,
and, presumably, Brownell, supra, 4
Cal.App.4th 787, which also follows Hoyem,
contending that “[t]hese cases are not persuasive because they are premised on
an improper interpretation of section 44808 that has been rejected by a myriad
of courts since these cases were decided.” 
CUSD encourages us to “follow the ‘consensus’ of courts . . . which
properly interpret section 44808 to always bar off-campus injuries ‘absent a
specific undertaking.’”  We are bound to
follow the Supreme Court’s holding in Hoyem,
as are the courts that CUSD asserts “reject” that holding and “properly”
interpret section 44808.  (>Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)  There is at
least a triable issue of fact as to the applicability of section 44808.

 

>DISPOSITION

            The judgment is affirmed as to the trial court’s ruling
that A.R. improperly asserted a cause of action for intentional infliction of
emotional distress in her second amended complaint that was not fairly
reflected in the liability claim form she filed with CUSD and that A.R. could
not maintain a separate cause of action for negligent infliction of emotional
distress.  The judgment is otherwise
reversed and the matter is remanded to the trial court.  A.R. is awarded her costs on appeal. 

            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

 

                                                                                    MOSK,
J.

 

 

I concur:

 

 

 

 

                        KRIEGLER,
J.

I concur in the judgment.  I differ slightly from my colleagues as to
why the judgment must be reversed.  In my
view, the ultimate outcome of this case is controlled by our decision in >Brownell v. Los Angeles Unified School Dist.
(1992) 4 Cal.App.4th
787, 791-798.  In Brownell, a jury returned a verdict against the defendant school
district.  The basis of the suit in >Brownell was that the plaintiff, a
student, was shot by gang members while off campus.  (Id. at
p. 791.)  We held the defendant exercised
reasonable care in supervising students to protect them from gang
activity.  In Brownell, we held:  “[The
defendant] exercised reasonable and ordinary care and satisfied its duty to
supervise adequately students in view of (1) the general precautions the school
always took to minimize gang-related problems (e.g., prohibiting wearing gang
colors and confiscating weapons), and (2) the absence of any advance indication
to school personnel of potential gang violence pertinent to the incident
involving Brownell.  Although Johnson
High School is located in a gang neighborhood and rival gangs attended the
school with trouble ensuing on occasion in the school, it does not follow that
the school had any duty to supervise to the extent of sending observers outside
to scout the name="citeas((Cite_as:_4_Cal.App.4th_787,_*797">neighborhood for gang
members off the campus and to wait until, so to speak, ‘all was clear’ before
releasing the students.” 
(Id. at pp. 796-797, fn.
omitted.)  There was no evidence in >Brownell the defendant failed to comply
with internal policies.

By contrast, here, defendant had no
policies that expressly dealt with students who engaged in off-campus criminal
sexual conduct with their peers.  But
defendant’s general sexual harassment policies do apply to conduct which
interferes with the educational environment. 
The off-campus sexual assault of R.R., the first reported victim, is
conduct which can interfere with the educational environment.  This is particularly true given that R.R. was
required to attend the 2008 summer school class with her assailant.  But when informed after July 2008 of the
sexual assault of R.R., there is a triable issue as to whether any of
defendant’s employees complied with Claremont Unified School District
Administrative Regulation 5145.7.  Unlike
Brownell, in our case there is a
triable controversy as to whether defendant complied with its own
policies. 

            In this
sense, Hoyem v. Manhattan Beach City
School Dist. (1978) 22 Cal.3d 508, 513-522 is of limited relevance.  Hoyem is
a case involving an appeal from a demurrer dismissal.  (Id.
at pp. 512, 523.)  Hoyem does not evaluate factual showings presented at the summary
judgment stage.  Because it does not
address our procedural scenario, Hoyem
has limited precedential effect in the summary judgment context.  (People v. Banks (1993) 6 Cal.4th 926, 945; People v. Saunders
(1993) 5 Cal.4th 580, 592, fn. 8.)  Thus,
Brownell, which fully relies upon the
legal analysis in Hoyem as do
we, is the closest case to this one which arises after a summary judgment
motion is granted.

            Second, in
terms of discretionary immunity, there is a triable controversy as to whether a
policy or operational judgment was made when the assailant was not expelled in
2008.  The Government Code section 820.2
immunity applies only to policy, not operational, decisions.  (Caldwell
v. Montoya (1995) 10 Cal.4th 972, 981-982; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1051.)  Expulsion by a district administrator of a
student is in my view an operational decision. 
Thus, I respectfully disagree with the analysis in other Court of Appeal
decisions to the contrary.  (>Thompson v. Sacramento City Unified School
Dist. (2003) 107 Cal.App.4th
1352, 1361; Skinner v. Vacaville Unified
School Dist. (1995) 37 Cal.App.4th 31, 39.) 
I would resolve the immunity issue on this ground.  It bears emphasis that the trial court was
bound by the Thompson and >Skinner decisions which treat an
expulsion decision as a policy determination. 
I am, with respect, not. 

            Finally, at
oral argument, defense counsel argued there was no triable controversy as to
whether defendant’s conduct was a legal cause of A.R.’s injuries.  There is a substantial body of authority
concerning third-party criminality directed at a plaintiff which holds no liability
arises on legal cause grounds.  (>Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 491; Flores v. AutoZone
West, Inc. (2008) 161 Cal.App.4th 373, 385.)  However, this was not a ground asserted in
the summary judgment motion and thus has

 

been forfeited for purposes
of this appeal.  (>Saville v. Sierra College (2005) 133
Cal.App.4th 857, 873; North Coast
Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)

 

                                                                        TURNER,
P. J.