Filed 12/12/18 M.S. v. The Regents of the University of Cal. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| M.S.,
Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents.
| D073500
(Super. Ct. No. 37-2016-0004683- CU-PO-CTL) |
APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.
Estey & Bomberger, Stephen J. Estey and Mary Bajo for Plaintiff and Appellant.
Reed Smith, Raymond A. Cardozo; McCune & Harber and Stephen M. Harber for Defendants and Respondents.
I.
INTRODUCTION
M.S. filed a first amended complaint against her former teacher, Walter Solomon; her former principal, Scott Barton; her former vice-principal, Pete Selleck; her former school, The Preuss School UCSD (The Preuss School); and The Regents of the University of California (Regents).[1] In the operative complaint, M.S. brought claims for negligence per se and battery against Solomon, both of which were premised on the allegation that Solomon sexually assaulted her.[2] Specifically, M.S. alleged that Solomon digitally penetrated her while the two were parked in his car one evening.[3] M.S. further alleged that Solomon knew, or should have known, that she was a minor and was thus legally incapable of consenting to inappropriate touching or sexual acts. M.S. also brought a claim for negligent supervision against respondents Regents, Barton and Selleck. M.S. contended that respondents' negligence had permitted Solomon to " 'groom' [M.S.] and take advantage of her youth and inexperience."
Respondents filed a motion for summary judgment in which they claimed that there was no evidence that any of their alleged negligence had caused M.S.'s injuries, among other arguments. The trial court granted the motion, reasoning in part, that "[M.S.] has not and cannot show that more closely monitoring [M.S.'s] and Solomon's activities at school would have prevented the sexual assault outside of school."
On appeal, M.S. contends that the trial court erred in granting respondents' motion for summary judgment. We conclude that the trial court properly determined that there is no evidence of a "nexus between the alleged failure to supervise and [M.S.'s] injuries," and that M.S. therefore cannot demonstrate the causation element of her negligent supervision cause of action. Accordingly, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative first amended complaint
M.S. filed the operative first amended complaint in July 2016. M.S. alleged that while she was a student at The Preuss School, she began spending an "inordinate" amount of time with Solomon in his classroom at the school. M.S. also alleged that she went out with Solomon one evening in May 2015. According to M.S., Solomon "digitally penetrat[ed] [her]" while the two were in his parked car that evening. M.S. claimed that Solomon knew or should have known that she was a minor and thus legally incapable of consenting to sexual acts at that time.[4]
M.S. brought a claim for negligent supervision against respondents in which she alleged that "[M.S.] was negligently allowed to be alone with defendant Solomon in his classroom on multiple occasions which allowed defendant Solomon the opportunity and means to 'groom' [M.S.] and take advantage of her youth and inexperience." (Some capitalization omitted.) M.S. also alleged that she was harmed as a "proximate result" of respondents' negligence.
B. Respondents' motion for summary judgment
Respondents filed a motion for summary judgment. In an accompanying brief, respondents claimed that they were entitled to summary judgment for several reasons, including that there was no evidence that any of their alleged negligence caused M.S.'s injuries. In support of this argument, respondents contended that the undisputed evidence demonstrated that the sexual incident that formed the basis of M.S.'s complaint occurred off campus at a time when respondents had no control over Solomon or M.S. Respondents further argued that any contention that "increased supervision and security would have prevented the alleged abuse . . . is pure speculation."
In an accompanying separate statement of facts, respondents presented evidence that The Preuss School has a policy entitled " 'Professional Boundaries: Staff/Student Interaction,' " which is described in the school's Staff Handbook. The policy specifically prohibits certain activities between staff and students including kissing, intentionally being alone with a student away from school, making sexual jokes, and exchanging e-mails and texts with students unrelated to school activities. The policy was in effect at the time of the incident involving M.S. All staff, including Solomon, were trained on the provisions of the Staff Handbook.
Respondents also presented evidence that, in 2008, The Preuss School received an e-mail from an individual named J.D. alleging that Solomon had molested a recent graduate of the school. A lawyer employed by the Regents conducted an investigation, which included interviewing the alleged victim and Solomon. Both Solomon and the alleged victim denied that any improper conduct had occurred. J.D. refused to speak with the investigator or to provide any additional information to the investigator. The alleged victim told the investigator that J.D. was her boyfriend, that she and J.D. had had an argument on the day that J.D. sent the e-mail, and that J.D. had threatened to send an e-mail to the school regarding Solomon. After conducting the investigation, the investigator informed the principal that the allegations were not substantiated. Other than the 2008 incident, the school never received any complaints that Solomon had engaged in sexually inappropriate conduct until the allegations giving rise to this action arose.
Respondents' separate statement of facts also referred to undisputed evidence pertaining to Solomon's alleged molestation of M.S., including the following: M.S. was never alone with Solomon from the time she was in sixth grade through tenth grade. M.S. and Solomon began talking to each other when she was in eleventh grade. M.S. began having feelings for Solomon.
In May 2015, a few weeks before M.S.'s graduation from high school, M.S. told her mother that she was going out with Solomon, his wife, and some other people from a robotics club. Solomon picked up M.S. a block away from her house.[5] The two went to a restaurant alone. After dinner, Solomon and M.S. drove together to a location that was a block from her house, and parked. Solomon allegedly touched M.S.'s vaginal area with his fingers while the two were in his car.
Respondents supported their summary judgment motion with various documents including evidence pertaining to the 2008 investigation, Barton's declaration, the "Professional Boundaries: Staff/Student Interaction" policy, evidence demonstrating that Solomon had been trained on the Staff Handbook, and excerpts from M.S.'s deposition concerning her interactions with Solomon.
C. M.S.'s opposition
M.S. filed an opposition to the motion for summary judgment. In her opposition, M.S. referred to evidence demonstrating that she had regularly spent time in Solomon's class at school even though Solomon was never her teacher. M.S. also noted that in 2015, M.S. invited Solomon and another teacher to watch her perform at "an 'open mi[c],' night," at a coffee shop. Although M.S. was unable to perform at the coffee shop,[6] she played two songs for the teachers on her guitar at a nearby fire station. M.S. dedicated the second song to Solomon. With respect to the 2008 incident, M.S. asserted that the principal should have conducted his own investigation and reported the allegations to the police and to CPS.
M.S. argued that respondents' summary judgment motion should be denied because there was a triable issue of material fact with respect to whether respondents had exercised reasonable care in the supervision of "[M.S.], Solomon and the school." (Some capitalization omitted.) In summarizing her argument, M.S. argued the following:
"[I]n a negligence action such as this, in order to be entitled to judgment as a matter of law, defendants must show that either 1. plaintiff was not molested by her teacher, or 2. That defendants acted reasonably in the manner in which they ran their school. Defendants have made no such showing."
M.S. did not discuss causation in her opposition to respondents' motion.
M.S. lodged various documents with her opposition, including the declaration of Dr. Charol Shakeshaft. Dr. Shakeshaft stated in her declaration that as a result of her "work experience, training and education, [she was] familiar with the standards of care regarding actions which should be taken by administrators and principals of elementary schools[[7]] . . . with respect to situations of potential child sexual abuse." (Italics added.) Dr. Shakeshaft stated that, in her opinion, the actions of the school administrators fell below the standard of care in failing to respond to "previous reports of allegations and red flags," "fail[ing] to supervise," and "fail[ing] to train all employees." (Capitalization omitted.)
D. The trial court's ruling
After further briefing and a hearing, the trial court granted respondents' motion for summary judgment. The trial court concluded that there was no evidence that respondents' alleged negligence had caused M.S.'s injuries. The court reasoned in relevant part:
"To establish causation, the plaintiff must demonstrate some substantial link or nexus between the omission and injury. [Citation.] Plaintiff must show it was more probable than not that better supervision would have prevented the assault. [Citation.] Proof of causation cannot be based on an expert's opinion based on inferences, speculation and conjecture. [Citation.]
"[¶] . . . [¶]
"[M.S.] provided an expert declaration that [respondents] should have had notice of what was happening between [M.S.] and Solomon and [respondents] were negligent because they failed to supervise [M.S.] and Solomon and/or [M.S.'s] ability to easily obtain hall passes to go to Solomon's class. [Citation]. However[,] no evidence is presented to show a substantial link or nexus between the alleged failure to supervise and [M.S.'s] injuries. [M.S.] instead argues in a conclusory fashion that that if [M.S.'s] classes had been more closely supervised and the hall passes more closely scrutinized, [M.S.] would not have been able to spend as much time with Solomon at school. However, [M.S.] has not and cannot show that more closely monitoring [M.S.'s] and Solomon's activities at school would have prevented the sexual assault outside of school. Merely concluding the speculative possibility that additional supervision and/or counseling might have prevented their interactions at school and prevent the sexual assault is insufficient. [Citation.]"
The trial court subsequently entered a judgment in favor of respondents.
E. The appeal
M.S. timely appeals from the judgment.
III.
DISCUSSION
The trial court properly granted respondents' motion for summary judgment
M.S. claims that the trial court erred in granting respondents' motion for summary judgment. Specifically, she contends that the trial court erred in concluding that respondents were entitled to summary judgment on the ground that they demonstrated that she would be unable to establish a required element of her negligence claim, namely that respondents' negligence caused her injuries.
A. Governing law
1. The law governing summary judgment and the applicable standard of review
A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may make this showing by demonstrating that the plaintiff cannot establish one or more elements of all of her causes of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466 (Towns).)
In reviewing a trial court's ruling on a motion for summary judgment, the reviewing court makes " '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.' " (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
2. Applicable substantive law
M.S. brought a claim for negligent supervision against respondents.
"In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation, and damages." (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250, italics added.)[8]
"Causation is established for purposes of California tort law if the defendant's conduct is a 'substantial factor' in bringing about the plaintiff's injury." (Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216, 223 (Liberty Surplus).)
"[N]egligent hiring, retention, or supervision may be a substantial factor in a sexual molestation perpetrated by an employee, depending on the facts presented." (Liberty Surplus, supra, 5 Cal.5th at p. 223.) However, among other elements, a plaintiff bringing such a claim must establish that the defendant's " 'negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]'s harm.' " (Id. at p. 224, fn. 5 [approving CACI No. 436 with respect to causation element on a claim of negligent supervision based on sexual molestation] (italics altered in Liberty Surplus).)
B. Application
In moving for summary judgment, respondents presented undisputed evidence that the molestation on which M.S.'s claim is based took place off campus, after a clandestine meeting, which occurred outside of school hours and was entirely unrelated to a school event.
In opposing respondents' motion for summary judgment in the trial court, M.S. did not address the causation element.
On appeal, in arguing that the record contains evidence of a triable issue of fact with respect to whether respondents' negligent supervision caused her harm, M.S. refers to evidence that she contends demonstrates that respondents failed to adequately supervise her and Solomon while the two were at school. M.S. notes that the record contains evidence tending to demonstrate that she was able to spend time with Solomon at school, notwithstanding that he was not her teacher or supervisor. For example, she argues:
"Despite the fact that Solomon was not her teacher or supervisor [M.S.] was regularly in his classroom while school was in session, when she was supposed to be somewhere else and . . . some of her teachers knew she was going there. [Citation.]
"On some of those occasions, [M.S.] gained access to Solomon by feigning illness on over 20 occasions. [Citation.] On other occasions, she was left completely unsupervised during art and/or choir class and simply left the area where she was and
went to Solomon's classroom. [Citation.]"
Even assuming, strictly for the sake of argument, that respondents were negligent in permitting M.S. to meet with Solomon at school, we agree with the trial court that there is no evidence in the record "to show a substantial link or nexus between the alleged failure to supervise and plaintiff's injuries." Further, there is no evidence tending to show that closer monitoring of M.S. and Solomon's actions at school would have prevented the sexual assault outside of school.
M.S. also contends, without elaboration, that causation was demonstrated by "the deficiencies set forth in the Shakeshaft Declaration."[9] Dr. Shakeshaft stated in her declaration that she was an expert with respect to the "standards of care regarding actions which should be taken by administrators and principals of elementary schools." (Italics added.) It is undisputed that M.S. was a high school student during the time that all of the relevant conduct occurred. (See part II.B, ante.) Under these circumstances, it is clear that Dr. Shakeshaft's declaration did not create a triable issue of material fact with respect to whether any of the respondents' alleged negligence caused M.S. harm.
Accordingly, we conclude that the trial court properly granted respondents' motion for summary judgment since they demonstrated that M.S. would be unable to establish that any of respondents' alleged negligence caused her harm, as would be required in order for her to prevail on her claim of negligent supervision.[10]
IV.
DISPOSITION
The judgment is affirmed. M.S. is to bear costs on appeal.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
[1] M.S. alleged that the University of California, San Diego owns and operates The Preuss School and that Regents owned and operated the university.
It appears to be undisputed that the Regents is the proper defendant for the school entity.
It is undisputed that The Preuss School serves students in grades 6 through 12.
[2] Solomon is not a party to this appeal.
[3] Although not referred to in the complaint, it is undisputed that the alleged incident occurred a few weeks before M.S.'s graduation from high school.
[4] As noted in footnote 3, ante, although not specifically mentioned in the complaint, it is undisputed that the alleged incident occurred shortly before M.S. was to graduate from high school.
[5] Although not specifically referenced in the separate statement of facts, M.S. stated in her deposition that Solomon picked her up at approximately 8 p.m.
[6] It appears from the record that M.S. decided not to play at the coffee shop because she learned that she would not be able to play until late at night.
[7] Respondents raised 18 separate objections to M.S.'s evidence offered in opposition to the motion for summary judgment. Fourteen of the objections pertained to Dr. Shakeshaft's declaration. Among the objections to the declaration was that Dr. Shakeshaft was unqualified to render an opinion in this case. Respondents noted that Dr. Shakeshaft stated that she was familiar with the standards of care regarding actions that should be taken by administrators and principals of elementary schools, and that this action involved a high school. Respondents argued that "[t]he type of supervision of teachers and students in elementary school versus high school . . . vary significantly."
In her order granting the motion for summary judgment, the trial court ruled, without elaboration, "Objections are overruled."
[8] While respondents in this case are a public entity and its employees, " 'the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person [citation] and the public entity is vicariously liable for any injury which its employee causes [citation] to the same extent as a private employer [citation].' " (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.)
[9] M.S. summarized the contents of the declaration elsewhere in her brief.
[10] M.S. also claims that there is a triable issue of material fact with respect to a separate element of her negligence claim, breach of duty. Specifically, M.S. contends that there is a triable issue of fact with respect to whether respondents exercised reasonable care in supervising "plaintiff, Solomon, and the school." We need not consider this contention in light of our conclusion that respondents demonstrated that M.S. cannot establish the causation element of her claim. (See Towns, supra, 147 Cal.App.4th at p. 466 [defendant is entitled to summary judgment upon "showing one or more elements of plaintiff's cause of action cannot be established"].)
