Roe v. Centinela Valley Union High etc. CA2/7 ( 2022 )

Filed 9/16/22 Roe v. Centinela Valley Union High etc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
T. ROE, an Incompetent Person, B311456
etc.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC683738)
v.
CENTINELA VALLEY UNION
HIGH SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary Y. Tanaka, Judge. Reversed with
directions.
McMurray Henriks and Yana G. Henriks for Plaintiff and
Appellant.
Tyson & Mendes, Susan L. Oliver, Emily S. Berman, and Ji
Eun Choi for Defendants and Respondents Centinela Valley
Union High School District and Andy Mehta.
Emergent and Kenneth H. Szeto for Defendant and
Respondent Juan Gutierrez.
____________________________________
INTRODUCTION
T. Roe, an intellectually disabled adult, by and through his
guardian ad litem, Twynlette Thompson, filed this action against
Juan Gutierrez, Andy Mehta, and the Centinela Valley Union
High School District. Roe alleged Mehta, who was a teacher, and
Gutierrez, who was an instructional aide, sexually molested Roe
in the bathroom of the high school Roe attended.
Roe appeals from the judgment entered in favor of
Gutierrez, Mehta, and the School District after the trial court
granted motions by each of them for summary judgment. Roe
argues the court erred in granting those motions because his
deposition testimony, as well as other evidence he argues the
court improperly excluded on hearsay grounds, raised triable
issues of material fact regarding whether Gutierrez and Mehta
sexually abused him as alleged. We agree with Roe about his
deposition testimony. Therefore, without reaching his argument
the trial court erred in excluding evidence on hearsay grounds,
we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Roe Files This Action
Roe was born in January 1995. Because of an intellectual
disability, his verbal comprehension and functional
communications skills are limited. His receptive vocabulary, for
2
example, is equivalent to that of an eight-year-old child, and his
expressive vocabulary equivalent to that of a seven-year-old
child.
From fall 2009 through spring 2013, Roe attended
Leuzinger High School, which is part of the School District.
During the 2012-2013 school year, Roe was enrolled in a special
education class in which Gutierrez, a School District employee,
served as an instructional aide. After high school, including for
the 2015-2016 school year, Roe was enrolled in an adult
transition program at Leuzinger High School, and Mehta was his
teacher.
In November 2017, by and through Thompson, who is his
mother and guardian ad litem, Roe filed this action against
Gutierrez, Mehta, and the School District. In the operative, third
amended complaint, Roe asserted causes of action for (1) assault
and battery, against all defendants; (2) intentional infliction of
emotional distress, against all defendants; (3) negligence, against
the School District; (4) negligent hiring/retention and
supervision, against the School District; (5) gender violence,
against Mehta and Gutierrez; and (6) dependent adult abuse,
against Gutierrez.
Roe alleged that, on various occasions during the 2012-2013
school year, Gutierrez “sexually molested and abused [him] in the
Leuzinger High School bathroom by physically touching [his]
genitals through and under his clothing.” Roe alleged that, on
various occasions during the 2015-2016 school year, Mehta also
sexually abused and molested him in a Leuzinger High School
bathroom in the same manner. Roe alleged that the School
District was vicariously liable for the sexual abuse by Gutierrez
and Mehta; that it knew, or through the exercise of reasonable
3
care should have known, Gutierrez and Mehta had a propensity
to sexually abuse students at Leuzinger; and that the School
District failed to take reasonable steps to avoid such abuse by
Gutierrez and Mehta.
B. Gutierrez, Mehta, and the School District File
Motions for Summary Judgment
Gutierrez, Mehta, and the School District each moved for
summary judgment,1 contending there was no triable issue of
material fact regarding any of Roe’s causes of action against
them. Their principal argument was that Roe could not—in the
words of the School District—“prove by admissible evidence that
the alleged sexual misconduct by either Gutierrez or Mehta
actually occurred.” They submitted deposition testimony by
Gutierrez and Mehta in which each stated he had never touched
Roe in a sexual manner.
C. Roe Opposes the Motions for Summary Judgment and
Presents His Evidence
Roe opposed the motions for summary judgment, relying on
the deposition testimony of several people, as well as an expert
declaration and report. Roe’s proffered evidence included the
following:
1 Mehta and the School District styled their motions as ones
seeking, in the alternative, summary adjudication. The trial
court concluded, however, that “these Defendants failed to set
forth the specific issues sought to be adjudicated within the
notices of their motions” and that therefore the court would “treat
these motions solely as motions for summary judgment.” None of
the parties challenges this ruling.
4
1. The Deposition Testimony of Thompson
Roe submitted the deposition testimony of his mother,
Thompson, who stated that in August 2016 Roe told her “Mr. G
and Mr. Mehta touched [his] pee pee . . . and his bootie-bootie.”2
Thompson testified Roe told her that Gutierrez touched him
under his clothes and that the incident occurred in the “classroom
bathroom and school bathroom.” Thompson said that she did not
know which man touched Roe in which bathroom or whether both
men touched Roe in both bathrooms, but that Roe told her the
touching occurred in both bathrooms. Roe also told her that
Gutierrez touched him multiple times. When Thompson asked
Roe why he had not previously told her about the touching, Roe
said he was scared. Thompson reported Roe’s statements to the
Los Angeles County Sheriff’s Department.
2. The Deposition Testimony of Los Angeles
County Sheriff’s Deputy Quang Huynh
Roe presented the deposition testimony of Los Angeles
County Sheriff’s Deputy Quang Huynh, who responded to the call
of sexual battery generated by Thompson’s report to the Sheriff’s
Department. Deputy Huynh testified that, on his arriving at Roe
and Thompson’s home, Thompson told him Roe suffered “from a
mild retardation,” had “a mental capacity of a seven-year-old”
child, and had told her he “was touched by his school teacher in a
bathroom” at Leuzinger High School. Deputy Huynh spoke with
Roe, who said that “he was touched by . . . Mehta on the outer
clothing of his penis area” and that “he felt scared when [Mehta]
touched him.” Roe, however, could not recall for the deputy when
2 Thompson explained these were Roe’s terms for “his private
part” and “his butt.” “Mr. G” refers to Gutierrez.
5
the incident happened. Deputy Huynh testified that Roe
appeared to be “mentally disabled,” but that Roe “was able to
communicate with [him] and pretty much told [him] what
happened.” It was Deputy Huynh’s assessment that Roe’s
inability to recall when the alleged touching happened, as well as
his difficulty communicating other details about the incident, was
a result of his “mental condition.” Deputy Huynh wrote up an
incident report that included the statements to him by Thompson
and Roe.
3. The Deposition Testimony of Dr. Samantha
Liberman and Dr. Yuri Tsutsumi
Roe submitted the deposition testimony of two psychiatrists
with whom he had therapy sessions. Dr. Samantha Liberman,
who met with Roe on February 13, 2017, confirmed that her notes
from that session reflected Roe “expressed that he does not want
to return back to school because of ‘mean teachers,’” but she did
not recall whether Roe elaborated on what he meant by “mean
teachers.” Dr. Yuri Tsutsumi, who met with Roe on January 11,
2019, confirmed that her notes from that session reflected Roe
“reported he becomes anxious at times when [he] is outside since
he fears . . . encountering his teachers that abused” him, but she
could not recall whether Roe “elaborated on the abuse by his
teachers.”
4. The Deposition Testimony of Roe
Roe presented testimony from his deposition. Although
many of his substantive responses to questions by counsel for
Gutierrez and counsel for the School District and Mehta were
sparse, Roe did testify that Gutierrez had been “a teacher’s aide”
6
in his class at Leuzinger High School, that in 2012 Gutierrez did
something at school Roe “didn’t like,” that Gutierrez “touch[ed]”
him, that he did not like Gutierrez because Gutierrez “was mean
to [him] in the bathroom” at Leuzinger, and that Roe told his
mother and grandmother about it. Similarly, Roe testified that
Mehta had been his teacher, that he did not like Mehta, that
Mehta was not nice to him, that Mehta did something Roe “didn’t
like,” that Mehta “did something bad to [him] in the bathroom,”
that this bathroom was at Leuzinger near his classroom, and that
Roe told his mother about it. Generally, whenever counsel
pressed Roe for more details about what Gutierrez and Mehta did
to him, Roe became nonresponsive. At one point, when counsel
asked where Gutierrez had touched him, Roe called out for his
mother and asked for a break. The transcript also reflects that,
at several points during his deposition, Roe began to laugh for
reasons that were not evident, prompting counsel to ask, multiple
times, what was making him laugh. Roe never answered.
5. The Declaration of Dr. Kimberley Lakes
Finally, Roe presented the declaration and expert report of
Dr. Kimberley Lakes, a licensed psychologist with specialized
training in “trauma, physical, and sexual abuse” and experience
evaluating more than 150 adults and children who were “sexual
and/or physical abuse survivors.” In addition to interviewing
Thompson and reviewing other relevant evidence, including Roe’s
medical, therapy, and education records and his video deposition,
Dr. Lakes spent more than four hours, over two days in May
2020, evaluating Roe face-to-face. During that time, Dr. Lakes
and Roe were alone, while Thompson waited nearby. Dr. Lakes
7
also administered tests to evaluate Roe’s cognitive and language
abilities.
Dr. Lakes determined that Roe “is intellectually disabled
and has limited verbal comprehension and functional
communications skills”; that he “exhibits substantial functional
impairment and limited coping skills”; that he “currently exhibits
emotional symptoms, including depression, somatic, and
posttraumatic stress symptoms”; that he “reports high levels of
Social Stress”; and that he “demonstrates psychological naivete
and below average insight into his behavior, thoughts, and
emotions, which is consistent with substantial intellectual
disability.” Dr. Lakes also reported that Roe’s “affect was at
times incongruent. For example, he lowered his eyes, turned his
head to the side, and laughed during the discussion of the alleged
abuse.” She further reported that Roe “was at times non-
responsive during testing, particularly when tasks in the tests
were very difficult for him or when he did not know an answer.”
Dr. Lakes commented on statements Roe made to her
regarding the alleged sexual abuse: “In response to the initial
question (What happened?), he lowered and turned his head to
the side, avoiding eye contact. He told me that he was a ‘little
scared’ to talk about it. I encouraged him to share what he could,
and he stated, they ‘touched this’ and indicated (pointed to) his
groin area. He then laughed (seemingly nervously) and avoided
eye contact (looking down and to one side). When I asked how he
felt about telling me, he said ‘embarrassed.’ I encouraged him to
talk about how he felt about what had happened, and he stated, ‘I
felt bad’ and ‘afraid.’ He stated, ‘I was afraid they would hurt
me.’ When asked to share further details, he indicated that it
had happened in the bathroom. When I asked who had touched
8
his private parts, he responded ‘Mr. Mehta and Mr. G.’ He
reported that it had happened more than one time and that other
students were present, but not all the time.”
She continued: “I asked [Roe] if he still thinks of this, and
he said he is ‘afraid a lot’ that someone else will touch him. He
stated that he thinks of it when he is in bed and is ‘very a lot’
afraid. He stated that he is afraid ‘if I see somebody who is like
my teacher.’ . . . [H]e stated that he is upset if he has to take the
bus route he took with the teachers, sees men like them, or goes
to the mall they visited.”
Dr. Lakes added: “[Roe’s] report to me did not appear
rehearsed, and his active avoidance of eye contact when
disclosing is consistent with behavior individuals often exhibit
when talking about abuse. . . . The level of detail provided is
consistent with what would be expected for someone with his
intellectual disabilities. It is not surprising that he could not
recall his age or grade at the time of the abuse; he did not know
his age at the time of his deposition, though he could state his
date of birth, a fact that he has memorized and is able to retrieve
relatively easily.” And: “Given his intellectual disability, [Roe] is
at high risk for abuse.”
Dr. Lakes concluded Roe “is exhibiting clinically significant
emotional symptoms consistent with those often expressed by
individuals who have experienced sexual abuse.” These included
exhibiting “a fear of men,” telling Dr. Lakes “he did not like men
like his teachers,” exhibiting “anxiety regarding separation from
his mother,”3 and “a number of other posttraumatic and
3 Dr. Lakes explained “children and adolescents who have
disclosed abuse often become more anxious after the disclosure
9
depressive symptoms.” Dr. Lakes further concluded that,
“because of [Roe’s] fear of men, his inability to answer questions
at his deposition, especially questions related to his sexual abuse,
may at least in part be due to the attorneys being male. In
addition, . . . individuals with his level of intellectual and
communicative impairment are able to disclose more about their
experiences when questioned using a supportive, structured
approach.” Dr. Lakes diagnosed Roe with “(1) Intellectual
Disability, Moderate, (2) Posttraumatic Stress Disorder, and
(3) Major Depressive Disorder, Moderate.”
D. The Trial Court Sustains Objections to Roe’s Evidence
and Grants the Motions for Summary Judgment
In ruling on the motions for summary judgment, the trial
court sustained 134 written objections by the defendants to the
evidence Roe submitted. These included hearsay objections to,
effectively, all statements about what Roe told the deponent or
declarant about what Gutierrez and Mehta did to him. The court
also sustained objections to other statements by Dr. Lakes,
including her statements that Roe feared being touched again
and seeing men who might remind him of his teachers; that,
given his impairments, it was not surprising Roe had difficulty
communicating details about the alleged abuse; that, despite his
impairments, Roe was capable of “accurately disclosing abuse”;
that, given Roe’s “fear of men,” his inability to answer questions
at his deposition may have been partly due to the fact the
questioning attorneys were male; that individuals with Roe’s
impairments “are able to disclose more about their experiences
because they fear they [may] get in trouble for telling on the
abuser.”
10
when questioned using a supportive, structured approach”; and
that, given his disability, Roe “is at a high risk for abuse.” The
defendants did not object to Dr. Lakes’s statements that Roe
exhibited symptoms consistent with someone who had
experienced sexual abuse.
The trial court granted Gutierrez’s motion for summary
judgment. Observing that the “factual predicate” for all Roe’s
causes of action against Gutierrez was Roe’s allegation “he was
sexually abused by Gutierrez,” the court ruled Roe “submitted no
competent admissible evidence to show that he was abused by
Gutierrez.” The court stated: “Instead, the facts gleaned from
Plaintiff’s deposition show that he did not speak to Gutierrez and
does not remember Gutierrez. . . . Plaintiff was unresponsive as
to whether or not Gutierrez touched him, or whether they had
been in a bathroom together, as alleged . . . . Plaintiff does seem
to indicate that Gutierrez was ‘mean to him’ in some manner but
is unresponsive with any other details that could document some
type of sexual abuse.”
The trial court also stated: “Plaintiff also attempts to rely
on inadmissible hearsay evidence from his mother as well as
various health care providers, including Dr. Yuri Tsutsumi and
Dr. Samantha Liberman, and law enforcement personnel
regarding alleged statements made by Plaintiff to them allegedly
outlining sexual abuse. However, such statements are hearsay,
offered for the truth of the matters asserted, to which no hearsay
exception exists.” The court stated Roe had provided no
authority establishing an “exception to the hearsay rule” based
on “the party’s disability.”
For the same reasons, the trial court granted Mehta’s
motion for summary judgment, ruling Roe submitted “no
11
competent admissible evidence to demonstrate that Mehta
engaged in sexual assault against [him].” The court stated:
“Plaintiff testified that he did not like Mehta and that he was
mean to Plaintiff, but he was nonresponsive when asked why he
did not like Mehta and why Mehta was mean. . . . Plaintiff stated
that Mehta did something to him in the bathroom but could not
clarify other than it was ‘something bad.’ . . . Again, all evidence
provided by Plaintiff to support these claims consist of hearsay
comments as noted above in the analysis to Gutierrez’s motion.”
The trial court also granted the School District’s motion for
summary judgment. Regarding the causes of action for assault
and battery and for intentional infliction of emotional distress,
which the court observed “are premised upon vicarious liability
based on the conduct of Gutierrez and Mehta,” the court ruled
there was no triable issue of material fact for the reasons
outlined in its rulings on the motions by Gutierrez and Mehta:
“Plaintiff has no competent first-hand evidence to demonstrate
that the individual Defendants engaged in inappropriate sexual
conduct.”
The trial court ruled the School District was also entitled to
judgment as a matter of law on Roe’s first two causes of action for
the additional reason that, as the court explained, “generally,
sexual misconduct is outside of the course and scope of
employment.” Quoting C.R. v. Tenet Healthcare Corp. (2009)
169 Cal.App.4th 1094, at page 1110, the court acknowledged that,
as “‘an alternate theory to respondeat superior, an employer may
be liable for an employee’s act where the employer either
authorized the tortious act or subsequently ratified an originally
unauthorized tort. [Citations.] The failure to discharge an
employee who has committed misconduct may be evidence of
12
ratification. [Citations.] The theory of ratification is generally
applied where an employer fails to investigate or respond to
charges that an employee committed an intentional tort, such as
assault or battery.’” The court concluded there was no evidence
the School District “ratified the alleged conduct of the individual
Defendants.”
The trial court also ruled the School District was entitled to
judgment as a matter of law on the causes of action for negligence
and for negligent hiring and supervision. The court ruled that,
“without any admissible evidence of the underlying offensive
conduct, these causes of action must also fail as the essential
element of causation of damages cannot be established.”
Roe filed a motion for new trial, which the trial court
denied. Roe timely appealed.4
4 The trial court granted the motions for summary judgment
on January 11, 2021 and entered judgment in favor of Gutierrez
on January 20, 2021 and in favor of the School District and
Mehta on February 3, 2021. The court denied Roe’s motion for a
new trial on March 22, 2021. Roe’s notice of appeal states he is
appealing from the orders granting the motions for summary
judgment and the order denying the motion for a new trial. None
of those orders is appealable. (See Hollister Convalescent Hosp.,
Inc. v. Rico (1975) 15 Cal.3d 660, 663 [order denying a motion for
a new trial is not appealable]; Dang v. Maruichi American Corp.
(2016) 3 Cal.App.5th 604, 608, fn. 1 [order granting a motion for
summary judgment is not appealable].) But because the court
entered judgments in favor of the three defendants after the
orders granting the motions for summary judgment, we construe
the notice of appeal as an appeal from the judgments. (See North
American Title Company, Inc. v. Gugasyan (2021) 73 Cal.App.5th
380, 388, fn. 4; Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th
266, 271, fn. 2; Mukthar v. Latin American Security Service
13
DISCUSSION
Roe argues the trial court erred in granting the motions for
summary judgment by Gutierrez, Mehta, and the School District
because his evidence raised triable issues of material fact
regarding whether Gutierrez and Mehta sexually abused him as
alleged. First, Roe cites statements by Thompson and others
describing what Roe told them Gutierrez and Mehta did to him,
which Roe argues the trial court erroneously excluded as hearsay.
As part of this argument, Roe urges us to recognize a new
hearsay exception “for developmentally disabled victims of
abuse.” Second, Roe cites his deposition testimony, from which,
he argues, the court failed “to draw reasonable inferences . . . in
the light most favorable to” him. Because we agree Roe’s
testimony, together with other admissible evidence, raised triable
issues of material fact precluding summary judgment in favor of
Gutierrez, Mehta, and the School District, we do not reach Roe’s
argument the trial court erred in excluding other evidence, nor do
we create a new hearsay exception.
A. Applicable Law and Standard of Review
A court may grant a motion for summary judgment “‘only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”’ [Citation.] ‘A defendant
seeking summary judgment must show that the plaintiff cannot
establish at least one element of the cause of action.’” (Doe v.
(2006) 139 Cal.App.4th 284, 288; Taylor v. Trimble (2017)
13 Cal.App.5th 934, 939.)
14
Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th
657, 668 (Doe); see Code Civ. Proc., § 437c, subd. (c).)
On a cause of action for which the plaintiff has the burden
of proof at trial, “the defendant ‘must present evidence that
either “conclusively negate[s] an element of the plaintiff’s cause
of action” or “show[s] that the plaintiff does not possess, and
cannot reasonably obtain,” evidence necessary to establish at
least one element of the cause of action. [Citation.] Only after
the defendant carries that initial burden does the burden shift to
the plaintiff “to show that a triable issue of one or more material
facts exists as to the cause of action . . . .”’ [Citations.] ‘There is a
triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the
applicable standard of proof.’” (Doe, supra, 70 Cal.App.5th at
pp. 668-669; see Code Civ. Proc., § 437c, subd. (p)(2).)
“‘We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.’” (Doe, supra, 70 Cal.App.5th at p. 669.) “We review the
entire record, ‘considering all the evidence set forth in the moving
and opposition papers except that to which objections have been
made and sustained.’ [Citation.] Evidence presented in
opposition to summary judgment is liberally construed, with any
doubts about the evidence resolved in favor of the party opposing
the motion.” (Regents of University of California v. Superior
Court (2018) 4 Cal.5th 607, 618; accord, Doe, at p. 669; see Kaney
v. Custance (2022) 74 Cal.App.5th 201, 213 [“‘we must draw from
the evidence all reasonable inferences in the light most favorable
to the party opposing summary judgment’”].)
15
B. The Trial Court Erred in Granting Gutierrez’s Motion
for Summary Judgment
1. Gutierrez Was Not Entitled to Judgment as a
Matter of Law on Roe’s Cause(s) of Action for
Assault and Battery
Roe’s first cause of action against Gutierrez was really two:
assault and battery. “The essential elements of a cause of action
for assault are: (1) defendant acted with intent to cause harmful
or offensive contact, or threatened to touch plaintiff in a harmful
or offensive manner; (2) plaintiff reasonably believed [he or she]
was about to be touched in a harmful or offensive manner or it
reasonably appeared to plaintiff that defendant was about to
carry out the threat; (3) plaintiff did not consent to defendant’s
conduct; (4) plaintiff was harmed; and (5) defendant’s conduct
was a substantial factor in causing plaintiff's harm.” (So v. Shin
(2013) 212 Cal.App.4th 652, 668-669.)
“The essential elements of a cause of action for battery are:
(1) defendant touched plaintiff, or caused plaintiff to be touched,
with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by
defendant’s conduct; and (4) a reasonable person in plaintiff’s
position would have been offended by the touching.” (So v. Shin,
supra, 212 Cal.App.4th at p. 669.) By definition, one cannot
commit a battery without also committing an assault, “which is
nothing more than an attempted battery.” (People v. Fuller
(1975) 53 Cal.App.3d 417, 421; see People v. Chance (2008)
44 Cal.4th 1164, 1170 [“‘“An assault is an incipient or inchoate
battery; a battery is a consummated assault.”’”]; People v. Cook
(2017) 8 Cal.App.5th 309, 313 [same]; 5 Witkin, Summary of Cal.
16
Law (11th ed. 2022) Torts, § 452 [“In tort actions for assault and
battery, the courts usually assume that these Penal Code
definitions [of ‘assault’ and ‘battery’] and related criminal cases
are applicable.”].)
Roe’s deposition testimony raised triable issues of material
fact on his cause of action for battery and, thus, also on his cause
of action for assault. Contrary to the trial court’s statement Roe
did not remember Gutierrez, Roe testified that Gutierrez was a
teacher’s aide in one of his classes at Leuzinger High School and
that in 2012 Gutierrez did something to him Roe did not like.
The court also incorrectly suggested Roe provided no response to
questions about whether Gutierrez touched him or was ever in
the bathroom with him. In fact, Roe’s testimony—liberally, but
reasonably, construed—was that Gutierrez “touch[ed]” him in the
bathroom in a way Roe did not consent to, considered “mean,”
and found upsetting enough that he reported it to his mother and
grandmother. Moreover, considering Roe’s allegations, a trier of
fact could reasonably interpret the word “touch” to mean
touching in a manner and in a place that evidenced a sexual
purpose.5 (See Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1027
[“testimony must be read in context”]; Silva v. Superior Court
(1981) 119 Cal.App.3d 301, 306 [court should interpret a
declarant’s statement in the context of the allegations to which it
pertained].) Being “touched for a sexual purpose without
consenting” is a battery. (People v. Robinson (2016) 63 Cal.4th
5 As stated, Roe alleged both Gutierrez and Mehta sexually
molested and abused him in the school bathroom by physically
touching his genitals through and under his clothing. At Roe’s
deposition, counsel for the School District asked Roe: “Did Mr. G
ever touch you?” Roe answered: “Yeah.”
17
200, 204; see Civ. Code, § 1708.5 [sexual battery includes acting
“with the intent to cause a harmful or offensive contact with an
intimate part of another, and a sexually offensive contact with
that person directly or indirectly results”]; Pen. Code, § 243.4,
subd. (e)(1) [sexual battery is touching “against the will of the
person touched . . . for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse”]; People v. Andrews (2015)
234 Cal.App.4th 590, 602 [a “defendant . . . commits a sexual
battery if he engages in an intimate non-consensual touching”].)
Dr. Lakes’s opinion that Roe’s emotional symptoms were
consistent with those exhibited by people who have experienced
sexual abuse, an opinion none of the defendants objected to or
disputed, supported Roe’s testimony on this point.
Gutierrez argues “nothing in [Roe’s] deposition testimony
evidences the element of intentional conduct common to each
claim” of assault and battery. But intent—including the specific
intent required to prove sexual battery—“may be proved from
inferences drawn from the facts and circumstances surrounding
the offense.” (M.N. v. Morgan Hill Unified School Dist. (2018)
20 Cal.App.5th 607, 622; see ibid. [“‘“Evidence of a defendant’s
state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to
support a conviction.”’”].) The actor’s purpose may also “be
inferred from the act itself.” (Ibid.)
Here, as discussed, a trier of fact could reasonably interpret
Roe’s testimony that Gutierrez touched him to mean Gutierrez
touched Roe in such a way that Gutierrez’s sexual purpose was
evident from the act itself. In addition, Roe testified Gutierrez
committed the offensive touching in the bathroom—a relatively
secluded, private place. A trier of fact could reasonably infer
18
Gutierrez chose that location because he intended to touch Roe
for the evident purpose of sexual arousal, gratification, or abuse
and did not want to be seen. This evidence was sufficient to
create a triable issue of material fact on the element of intent.
(See Pen. Code, § 243.4, subd. (e)(1); People v. King (2010)
183 Cal.App.4th 1281, 1319 [sexual battery requires “specific
intent to cause sexual arousal, gratification or abuse”].)
2. Gutierrez Was Not Entitled to Judgment as a
Matter of Law on Roe’s Cause of Action for
Intentional Infliction of Emotional Distress
“‘“The elements of the tort of intentional infliction of
emotional distress are: ‘“(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s
outrageous conduct . . . .” Conduct to be outrageous must be so
extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.] The defendant must have
engaged in ‘conduct intended to inflict injury or engaged in with
the realization that injury will result.’”’” (Colonial Van &
Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 506.)
Roe’s testimony raised triable issues of material fact on this
cause of action as well. As discussed, Roe’s testimony supported
a reasonable inference Gutierrez touched him in the bathroom,
without Roe’s consent, for a sexual purpose. This testimony is
sufficient to support a finding that Gutierrez’s conduct was
extreme and outrageous. (See McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 295 [“a claim of sexual harassment
19
may establish the outrageous conduct element for an intentional
infliction of emotional distress claim”]; In re Shannon T. (2006)
144 Cal.App.4th 618, 623 [“in a civilized society, mature people
ordinarily do not touch the intimate parts of other people without
consent”].) And Dr. Lakes’s assessment of Roe’s mental health
supported a reasonable inference Roe suffered extreme emotional
distress, “including depression, somatic, and posttraumatic stress
symptoms,” as a result of that sexual abuse. (See Kelley v. The
Conco Companies (2011) 196 Cal.App.4th 191, 216 [evidence of
severe emotional distress includes depression].)
3. Gutierrez Was Not Entitled to Judgment as a
Matter of Law on Roe’s Cause of Action for
Gender Violence
Roe’s deposition testimony also raised triable issues of
material fact on his cause of action against Gutierrez for gender
violence. “Civil Code section 52.4 authorizes an award of civil
damages to any person subjected to gender violence.”
(RN Solution, Inc. v. Catholic Healthcare West (2008)
165 Cal.App.4th 1511, 1517, fn. 6.) The statute defines “gender
violence” to include a “physical intrusion or physical invasion of a
sexual nature under coercive conditions . . . .” (Civ. Code, § 52.4,
subd. (c)(2).) The parties do not suggest any term in this
definition is ambiguous or has anything other than its plain,
commonsense meaning. (See Riverside County Sheriff’s Dept. v.
Stiglitz (2014) 60 Cal.4th 624, 630 [“we begin with the plain,
commonsense meaning of the language used by the Legislature,”
and if “the language is unambiguous, the plain meaning
controls”]; cf. County Inmate Telephone Service Cases (2020)
48 Cal.App.5th 354, 371-372 [rejecting “a dictionary definition” of
20
the term “coercion” in the Tom Bane Civil Rights Act (Civ. Code,
§ 52.1) because the Legislature intended the statute to address
only “egregious interference with constitutional rights”]; Julian v.
Mission Community Hospital (2017) 11 Cal.App.5th 360, 395
[same].)
Touching for a sexual purpose is a physical intrusion or
invasion of a sexual nature. (See Balding-Margolis v. Cleveland
Arcade (6th Cir. 2009) 352 Fed.Appx. 35, 43 [describing “physical
touching” as “invasive conduct”].) And the plain meaning of
“coercive conditions” includes those involving use of force, threat,
or some form of pressure. (See, e.g., Regents of University of
California v. Superior Court (2008) 165 Cal.App.4th 672, 679
[“[d]ictionaries define ‘coerce’ broadly as ‘[t]o force to act or think
in a given manner; to compel by pressure or threat’”]; Thomas v.
Harrington (1st Cir. 2018) 909 F.3d 483, 492 [“‘coercion’ means
‘the application to another of such force, either physical or moral,
as to constrain him to do against his will something he would not
otherwise have done’”]; United States v. Herrera (5th Cir. 2011)
647 F.3d 172, 178-179 [“numerous state statutes define ‘coerce’ or
a variation of the term to include both physical force and
threats”]; Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d
1114, 1129 [“To ‘coerce’ is ‘to compel to an act or choice by force,
threat, or other pressure.’”].) From Roe’s testimony that
Gutierrez’s touching was “mean” and (by reasonable implication)
nonconsensual and that it occurred in the enclosed, secluded
space of a school bathroom, a trier of fact could reasonably infer
Gutierrez accomplished it by use of force, threat, or pressure.
(See In re T.F. (2017) 16 Cal.App.5th 202, 220 [“‘[A] school is
where compliance with adult authority is required and where
such compliance is compelled almost exclusively by the force of
21
authority. Like it or not, that is the definition of coercion.’”]; Doe
v. Starbucks, Inc. (C.D. Cal., Dec. 18, 2009, No. SACV 08-0582)
2009 WL 5183773 at p. 17 [triable issue of fact regarding whether
a supervisor coerced the plaintiff into committing sexual acts
precluded summary judgment]; Goldscheid, et al., State Civil
Rights Remedies for Gender Violence: A Tool for Accountability
(2018) 87 U. Cin. L.Rev. 171, 180 [“courts have upheld claims
based on allegations of physical invasions of a sexual nature that
occurred under coercive conditions, regardless of a particular
showing of gender animus”].)
4. Gutierrez Was Not Entitled to Judgment as a
Matter of Law on Roe’s Cause of Action for
Dependent Adult Abuse
Finally, Roe asserted a cause of action against Gutierrez for
dependent adult abuse under the Elder Abuse and Dependent
Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.).
(See Mahan v. Charles W. Chan Ins. Agency, Inc. (2017)
14 Cal.App.5th 841, 858.) The Act renders a defendant liable for
“[a]buse of an elder or a dependent adult,” which includes
“[p]hysical abuse . . . with resulting physical harm or pain or
mental suffering.” (Welf. & Inst. Code, § 15610.07; see Stewart v.
Superior Court (2017) 16 Cal.App.5th 87, 102.) “Physical abuse”
includes various forms of assault and battery, including sexual
battery as defined in Penal Code section 243.4. (Welf. & Inst.
Code, § 15610.63, subd. (e)(1); see Sababin v. Superior Court
(2006) 144 Cal.App.4th 81, 88 [physical abuse under Welfare and
Institutions Code section 15610.63 includes assault and battery].)
A “dependent adult” under the Act is a person “between the ages
of 18 and 64 years who resides in this state and who has physical
22
or mental limitations that restrict his or her ability to carry out
normal activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental
disabilities . . . .” (Welf. & Inst. Code, § 15610.23, subd. (a); see
Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025, 1037, fn. 4.)
As he did in the trial court, Gutierrez contends on appeal
he is entitled to judgment as a matter of law on this cause of
action because there was no admissible evidence he sexually
abused Roe. As discussed, however, Roe’s deposition testimony
raised a triable issue of material fact regarding whether
Gutierrez committed sexual battery against him, as that offense
is defined in Penal Code section 243.4. The trial court erred in
ruling otherwise.
C. The Trial Court Erred in Granting Mehta’s Motion for
Summary Judgment
With the exception of the cause of action against Gutierrez
for dependent adult abuse, Roe asserted the same causes of
action against Mehta that he asserted against Gutierrez: assault
and battery, intentional infliction of emotional distress, and
gender violence. The analysis of those causes of action as
asserted against Mehta tracks the analysis of those asserted
against Gutierrez. In fact, Roe’s testimony concerning Mehta
was substantially the same as that concerning Gutierrez:
Without Roe’s consent Mehta “did something bad” to him in the
school bathroom, which upset Roe enough that he reported it to
his mother. Construed liberally and in the light most favorable
to Roe—and in particular taking into account that Roe’s ability to
express himself is that of a seven-year-old child—a reasonable
23
interpretation of his testimony is that Mehta sexually abused
him in the school bathroom as alleged.
From that testimony, together with Dr. Lakes’s opinion
that Roe’s emotional symptoms were consistent with someone
who had been sexually abused, a trier of fact could reasonably
find Mehta committed sexual battery against Roe, within the
meaning of Penal Code section 243.4, subdivision (e)(1). Roe
therefore raised triable issues of material fact on his cause(s) of
action for assault and battery. For the reasons stated in the
analysis of the causes of action against Gutierrez for intentional
infliction of emotional distress and gender violence, Roe raised
triable issues of material fact on those causes of action against
Mehta as well. Mehta therefore was not entitled to judgment as
a matter of law on any of Roe’s causes of action, and the trial
court erred in granting his motion for summary judgment.
D. The Trial Court Erred in Granting the School
District’s Motion for Summary Judgment
Against the School District, Roe asserted causes of action
for assault and battery, intentional infliction of emotional
distress, negligence, and negligent “hiring/retention and
supervision.” The trial court ruled the School District was
entitled to judgment as a matter of law on these causes of action
because there was no admissible evidence “of the underlying
offensive conduct” by Gutierrez or Mehta. That ruling was error:
As discussed, Roe raised triable issues of material fact regarding
whether Gutierrez and Mehta sexually abused him as alleged.
The trial court, however, ruled the School District was
entitled to judgment as a matter of law on the causes of action for
assault and battery and for intentional infliction of emotional
24
distress for an additional reason—namely, neither the law nor
the evidence supported finding the School District vicariously
liable for sexual misconduct by Gutierrez or Mehta. Roe has not
challenged that ruling. Therefore, he has failed to demonstrate
the court erred in ruling the School District was entitled to
judgment as a matter of law on his causes of action for assault
and battery and for intentional infliction of emotional distress.
But because he has shown the School District was not entitled to
judgment as a matter of law on his remaining causes of action,
Roe has demonstrated the trial court erred in granting summary
judgment in favor of the School District.
25
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its orders granting the motions for summary judgment by
Gutierrez, Mehta, and the School District and to enter new orders
denying those motions. Roe is to recover his costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
26