R.D. v. Los Angeles Unified School Dist. CA2/1 ( 2023 )

Filed 12/4/23 R.D. v. Los Angeles Unified School Dist. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
R.D., a Minor, etc., et al., B308957
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC644474,
v. BC715363)
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from judgments of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Reversed with
directions.
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo,
Laura M. Jimenez; Esner, Chang, Boyer & Murphy, Holly N.
Boyer and Kevin K. Nguyen for Plaintiffs and Appellants.
BDG Law Group and Michele M. Goldsmith for Defendant
and Respondent.
______________________
Plaintiffs, minors C.R.B., R.D., and C.B.J.,1 by and through
their guardians ad litem, sued the Los Angeles Unified School
District (LAUSD) for damages arising out of sexual abuse by an
after-school care program employee, alleging LAUSD was
negligent in hiring, retaining, and supervising the employee.
Given the special relationship between public schools and their
students, LAUSD supervisors and administrators have a duty of
care to use reasonable measures to protect students from
foreseeable injury at the hands of others.
This appeal requires deciding between two competing tests
for the foreseeable injury element of this duty of care. Does
foreseeability require as matter of law that school supervisory or
administrative personnel knew or should have known the deviant
propensities of the employee that commits the abuse and
nevertheless hired, retained, or inadequately supervised him or
her? Or does foreseeability not require such actual or imputed
knowledge about the specific employee, and instead address the
foreseeability of risk to students in general from sexual abuse by
persons at the school?
The trial court answered that it was the former and
granted LAUSD summary judgment, finding that LAUSD did not
know of the specific risk posed by the plaintiffs’ abuser until after
the abuse ended. We conclude well-established case law shows it
is the latter: that foreseeable injury includes the potential for
sexual abuse by school staff in general. We therefore reverse the
grant of summary judgment, and remand for further proceedings.
We do, however, direct the trial court to enter summary
1 Like the trial court and the parties, we use initials to
refer to the minor plaintiffs. (Cal. Rules of Court, rule 8.90(b).)
2
adjudication in favor of LAUSD on a narrower issue, namely that
LAUSD cannot be liable for a common law negligence cause of
action not authorized by the Government Claims Act (Gov. Code,2
§ 810 et seq.).
We first discuss the fundamental legal principles applicable
to this appeal, and then set forth the factual and procedural
history of the summary judgment motions before us. We
conclude with our analysis of why we reverse the grant of
summary judgment, but direct the grant of summary
adjudication on plaintiffs’ common law negligence claim against
LAUSD.
LEGAL BACKGROUND
The Government Claims Act delimits LAUSD’s potential
tort liability here. We thus begin by summarizing the applicable
statutory basis for holding LAUSD liable in tort. We also outline
the special relationship doctrine, which can impose a duty on an
individual to protect another from harm caused by a third party,
and the policy considerations set forth in Rowland v. Christian
(1968) 69 Cal.2d 108 (Rowland) that may potentially limit any
such duty.
A. The Government Claims Act
“Under the Government Claims Act [citation], there is no
common law tort liability for public entities in California; instead,
such liability must be based on statute.” (Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 897.) Section 815, subdivision
(a) provides that, “Except as otherwise provided by statute:
2 All undesignated statutory references are to the
Government Code.
3
[¶] . . . A public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a
public employee or any other person.” (Ibid.) Thus, “direct tort
liability of public entities must be based on a specific statute
declaring them to be liable, or at least creating some specific duty
of care.” (Eastburn v. Regional Fire Protection Authority (2003)
31 Cal.4th 1175, 1183.)
Plaintiffs premise their claims against LAUSD on section
815.2, which provides that a public entity can be held vicariously
liable for a tort committed by its employee. That section states:
“(a) A public entity is liable for injury proximately caused by an
act or omission of an employee of the public entity within the
scope of his employment if the act or omission would, apart from
this section, have given rise to a cause of action against that
employee or his personal representative. [¶] (b) Except as
otherwise provided by statute, a public entity is not liable for an
injury resulting from an act or omission of an employee of the
public entity where the employee is immune from liability.”
(Ibid.)
Section 820 addresses the scope of liability for public
employees, providing: “(a) Except as otherwise provided by
statute (including [s]ection 820.2), a public employee is liable for
injury caused by his act or omission to the same extent as a
private person. [¶] (b) The liability of a public employee
established by this part (commencing with [s]ection 814) is
subject to any defenses that would be available to the public
employee if he were a private person.” (Ibid.)
These statutes set forth “ ‘the general rule . . . that an
employee of a public entity is liable for his torts to the same
extent as a private person (§ 820, subd. (a)) and the public entity
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is vicariously liable for any injury which its employee causes
(§ 815.2, subd. (a)) to the same extent as a private employer
(§ 815, subd. (b)).’ [Citation.]” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 868 (William S. Hart).)
Plaintiffs do not seek to hold LAUSD vicariously liable
under respondeat superior based on the abuser’s acts while he
worked for LAUSD. “Because sexually abusing a student is not
within the course and scope of employment of a school district
employee, a school district is not vicariously liable for the abuse
itself but may be liable for such things as negligent hiring,
retention, or supervision.” (Roe v. Hesperia Unified School Dist.
(2022) 85 Cal.App.5th 13, 25.) Plaintiffs assert that LAUSD is
vicariously liable because the LAUSD personnel who hired,
supervised, and retained the employee who abused plaintiffs
failed to use due care to protect plaintiffs from abuse. This
theory relies on the special relationship between school
employees and schoolchildren, a doctrine to which we now turn.
B. The Special Relationship Doctrine
“Recovery for negligence depends as a threshold matter on
the existence of a legal duty of care. [Citation.]” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) “The ‘general
rule’ governing duty is set forth in Civil Code section 1714” which
“establishes the default rule that each person has a duty ‘to
exercise, in his or her activities, reasonable care for the safety of
others.’ [Citation.]” (Id. at pp. 213, 214.) However, “the law
imposes a general duty of care on a defendant only when it is the
defendant who has ‘ “created a risk” ’ of harm to the plaintiff,
including when ‘ “the defendant is responsible for making the
plaintiff’s position worse.” ’ [Citations.] The law does not impose
the same duty on a defendant who did not contribute to the risk
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that the plaintiff would suffer the harm alleged.” (Id. at p. 214.)
Thus, “As a general rule, one owes no duty to control the conduct
of another, nor to warn those endangered by such conduct.”
(Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203.)
This general rule would appear to nix plaintiffs’ claims.
But the “special relationship” doctrine provides an exception. As
our Supreme Court recently explained, “In a case involving harm
caused by a third party, a person may have an affirmative duty to
protect the victim of another’s harm if that person is in what the
law calls a ‘special relationship’ with either the victim or the
person who created the harm. [Citations.] [¶] A special
relationship between the defendant and the victim is one that
‘gives the victim a right to expect’ protection from the defendant,
while a special relationship between the defendant and the
dangerous third party is one that ‘entails an ability to control [the
third party’s] conduct.’ [Citation.]” (Brown, supra, 11 Cal.5th at
pp. 215-216, fn. omitted.)
Cases have long recognized such a special relationship
exists between school employees and students. (E.g., Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
613 [“universities have a special relationship with their students
and a duty to protect them from foreseeable violence during
curricular activities”]; William S. Hart, supra, 53 Cal.4th at
p. 877 [elementary school employees had a “special relationship
. . . with [the] plaintiff, a student under their supervision, which
relationship entailed the duty to take reasonable measures to
protect [the] plaintiff from injuries at the hands of others in the
school environment”]; M. W. v. Panama Buena Vista Union
School Dist. (2003) 110 Cal.App.4th 508, 517 [“A special
relationship is formed between a school district and its students
6
resulting in the imposition of an affirmative duty on the school
district to take all reasonable steps to protect its students”]
(M. W.).)
C. The Rowland Factors
When a special relationship exists “giving rise to an
affirmative duty to protect,” the court must also “consult the
factors described in Rowland to determine whether relevant
policy considerations counsel limiting that duty.” (Brown, supra,
11 Cal.5th at p. 209.) Those factors, which are considered at a
relatively broad level of factual generality and not by using the
facts and circumstances of a particular case, are “ ‘the
foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’ ” (Id. at p. 217, quoting Rowland, supra, 69 Cal.2d at
pp. 112-113.) “When public agencies are involved, additional
elements include ‘the extent of [the agency’s] powers, the role
imposed upon it by law and the limitations imposed upon it by
budget . . . .’ [Citations.]” (Thompson v. County of Alameda
(1980) 27 Cal.3d 741, 750.)
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Construed in the light most favorable to plaintiffs, the
evidence shows the following. During the 2014-2015 school year,
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plaintiffs attended Arminta Street Elementary School (Arminta)
and participated in the LA’s Best after-school program, which
took place on the Arminta campus. The LA’s Best program ran
Monday to Friday from approximately 2:30 p.m. to 5:45 p.m.,
except for Tuesdays, when it began at 1:30 p.m.
LAUSD hired John Salinas in April 2014 as a substitute
playground worker for the LA’s Best program. As a substitute,
Salinas was assigned to a cluster of six schools, including
Arminta. In December 2014, Salinas was assigned to Arminta as
a permanent program worker, also known as a program “coach.”
Emily Vasquez was the site coordinator for the LA’s Best
program at Arminta from 2013 through 2016. In that role she
was responsible for supervising the staff, taking care of students
being released to their parents, sending staff to trainings,
conducting staff meetings, and performing other administrative
functions. The coaches at Arminta were Salinas, Desiree Cornell,
Gabriela Donis, Vanessa Mendez, Jasmine Melara, and Jasmin
Avelar.
During 2014-2015, Connie Recart was a traveling
supervisor for the LA’s Best program responsible for a cluster of
six campuses including Arminta. Karen Solorzano was a
traveling program coach for LA’s Best during that time, and she
was responsible for the Arminta campus. During 2014-2015,
Rene Ramirez was the principal at Arminta.
When assigned to the Arminta campus, Salinas oversaw
about 30 students in a computer lab; plaintiffs were in his class
at least some days in January 2015. During that month, Salinas
sexually abused plaintiffs by (1) touching 11-year-old C.J.B.’s
stomach, back, leg, and part of her buttocks; (2) putting his hand
on 8-year-old C.B.R.’s hand, leg, back and underneath her
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waistband; and (3) putting his hand on 9-year-old R.D.’s lower
back and buttocks, poking her breast and genitals, and putting
his finger inside her pants and underwear.
In February 2015, R.D. told her father that Salinas
repeatedly touched her inappropriately. R.D.’s parents informed
the police, who interviewed other students. Salinas was arrested
on February 5, 2015. He was criminally prosecuted and
convicted for his actions.
B. Plaintiffs Sue LAUSD
R.D. sued LAUSD on December 20, 2016. C.B.R. and
C.J.B. jointly sued LAUSD on July 25, 2018. The two cases were
consolidated. The operative complaints were C.B.R.’s and
C.J.B.’s first amended complaint, filed on September 13, 2018,
and R.D.’s first amended complaint, filed on July 3, 2019.
In their operative complaints, plaintiffs set forth a single
negligence cause of action alleging that LAUSD, through
Vasquez, Recart, and Ramirez, negligently hired, retained and
supervised Salinas. Plaintiffs alleged, among other things, that
Ramirez, Recart, and Vasquez “failed to take reasonable steps
and/or implement reasonable safeguards to avoid” Salinas’s
abuse, “failed to properly supervise and/or monitor A[rminta] and
L.A.’s Best program coaches,” allowed Salinas “to operate in
isolated environments, incapable of monitoring from the outside,
wherein S[alinas] sexually molested [p]laintiffs,” and failed to
“have in place a system or procedure to reasonably investigate,
supervise and monitor coaches and/or teacher’s aides including
S[alinas], to prevent pre-sexual ‘grooming’ and sexual
harassment, molestation and abuse of children.” Plaintiffs also
alleged “that the employees and staff of A[rminta] and LAUSD
had suspected or had reason to suspect the abuse was occurring
9
at the time, and prior to the abuse of [plaintiffs], and failed to
further investigate into the matter.”
C. LAUSD’s Summary Judgment Motion
LAUSD moved for summary judgment against C.B.R. on
October 31, 2019, and against R.D. and C.B.J. on February 21,
2020. LAUSD contended that plaintiffs’ claims for negligent
supervision, hiring, and retention failed because no evidence
suggested that any LAUSD administrator or supervisor knew or
had reason to know of Salinas’s “dangerous propensities.”
LAUSD argued, “To prove liability [for negligent hiring,
supervision or retention], the plaintiff is required to demonstrate
that a supervisory or administrative employee of the school
district knew or had reason to know of the dangerous
propensities of the employee who injured the plaintiff and acted
negligently in hiring, supervising and retaining that employee.”
In support of its motions, LAUSD proffered evidence regarding
its employees’ lack of knowledge of Salinas’s dangerous
propensities. This included evidence regarding his hiring
(including a background check), other employees’ observations of
Salinas while at work, evidence that Salinas kept his door
propped open with a kickstand, testimony that Salinas’s students
were permitted to and did play outside the classroom, and
testimony from plaintiffs that they did not tell anyone affiliated
with LA’s Best about the abuse until R.D. told her father.
LAUSD also contended that plaintiffs could not sue it for
common law negligence because a public entity such as LAUSD
can only be sued if there is a statutory basis for liability, and
sought summary adjudication on that issue.
Plaintiffs opposed the summary judgment motions, arguing
that based on the special relationship between school personnel
10
and students, LAUSD supervisory employees had an “expansive”
duty to take reasonable measures to protect students from sexual
abuse by staff. According to plaintiffs, this duty arose not just in
cases where a specific staff member posed a risk of abuse, but
where the type of harm was generally foreseeable. Thus,
plaintiffs argued, the LAUSD supervisors could be held liable for
failing to take reasonable measures that would have precluded
Salinas from abusing plaintiffs. As to LAUSD’s knowledge of
Salinas’s propensities, plaintiffs adduced evidence that LA’s Best
employees were not asked for references before being hired; that
Salinas was “more interactive” with the girls in his class than
with the boys, which some coaches thought was “weird”; that
Salinas kept his classroom door closed and locked; that Salinas
kept his students inside the classroom instead of letting them
participate in required outdoor physical activity; and evidence to
suggest LAUSD personnel avoided taking steps to observe
Salinas’s classroom and become aware what was going on there.
D. The Trial Court Grants Summary Judgment
The trial court granted summary judgment against C.B.R.
on January 22, 2020, and against C.J.B. and R.D. on
September 24, 2020. The court concluded, “To prove liability, the
plaintiff is required to demonstrate that a supervisory or
administrative employee of the school district knew or had reason
to know of the dangerous propensities of the employee who
injured the plaintiff and acted negligently in hiring, supervising
and retaining that employee.” The court cited William S. Hart
for this proposition. The court then found that no evidence
suggested any supervisor had actual or constructive knowledge
that Salinas posed a threat to students. As to plaintiffs’
argument that Salinas’s behavior gave notice that he might be a
11
sexual predator, because he isolated his students by keeping the
classroom door closed and by opting out of outdoor physical
activity time, and was overly familiar with female students, the
court found that the evidence was not sufficient for a reasonable
trier of fact to conclude that LAUSD supervisory employees had
actual or constructive knowledge of Salinas’s dangerous
propensities.
The trial court also concluded that plaintiffs could not
assert a common law negligence claim against LAUSD because,
under California law, the liability of public entities “is wholly
statutory.”
On September 25 and November 12, 2020, the court
entered judgments in LAUSD’s favor. Plaintiffs timely appealed.
DISCUSSION
A. Summary Judgment Principles and Standard of
Review
“ ‘Because this case comes before us after the trial court
granted a motion for summary judgment, we take the facts from
the record that was before the trial court when it ruled on that
motion. [Citation.] “ ‘We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.’ ” [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party. [Citation.]’
[Citation.]” (Lonicki v. Sutter Health Central (2008) 43 Cal.4th
201, 206.)
A defendant who moves for summary judgment “bears the
burden of persuasion that ‘one or more elements of’ the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a
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complete defense’ thereto. [Citation.]” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850; see Code Civ. Proc.,
§ 437c, subds. (o) & (p)(2).) Such a defendant also “bears the
initial burden of production to make a prima facie showing that
no triable issue of material fact exists. Once the initial burden of
production is met, the burden shifts to the [plaintiff] to
demonstrate the existence of a triable issue of material fact.”
(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1250.)
A triable issue of material fact exists “ ‘ “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.” [Citation.]’
[Citations.]” (Janney v. CSAA Ins. Exchange (2021) 70
Cal.App.5th 374, 389-390.)
B. The Duty of Care Is Not Limited to Situations Where
LAUSD Employees Know or Have Reason to Know of
Specific Danger Posed by the Actual Abuser
Relying on William S. Hart, the trial court found the duty
owed by LAUSD’s supervisory employees to protect students from
negligent or intentional harm caused by a third person arose only
if those employees knew or had reason to know of Salinas’s
dangerous propensities. But neither William S. Hart nor any
other case involving the special relationship between a primary
or secondary school and its students sets forth such a test.
Instead, as stated in William S. Hart, as well as cases that
came before and after it, the special relationship between school
employees and students imposes on such employees “the duty to
use reasonable measures to protect students from foreseeable
injury at the hands of third parties acting negligently or
intentionally.” (William S. Hart, supra, 53 Cal.4th at p. 870, fn.
13
omitted.) Contrary to LAUSD’s argument, “ ‘the issue of
“foreseeability” does not depend upon the foreseeability of a
particular third party’s act, but instead focuses on whether the
allegedly negligent conduct at issue created a foreseeable risk of a
particular kind of harm.’ [Citation.]” (M. W., supra, 110
Cal.App.4th at p. 519, italics omitted.)
A long, lamentable history shows the reasonable
foreseeability of sexual abuse by employees of entities that
provide activities exclusively for children, even where the
organization has no advance knowledge that the particular
employee who committed the abuse had a propensity to do so.
Without cataloging here criminal prosecutions for such abuse,
numerous civil cases involving the school setting attest to the
existence of this potential risk. (E.g., William S. Hart, supra, 53
Cal.4th 861; Roe v. Hesperia Unified School Dist., supra, 85
Cal.App.5th 13; Doe v. Lawndale Elementary School Dist. (2021)
72 Cal.App.5th 113; M. W., supra, 110 Cal.App.4th 508.) As a
result, the “ ‘special relationship[ ] between children and their
adult caregivers . . . give[s] rise to a duty to prevent harms
caused by the intentional or criminal conduct of third parties’ ”
such as sexual abuse. (Doe v. United States Youth Soccer Assn.,
Inc. (2017) 8 Cal.App.5th 1118, 1129 (Youth Soccer).) LAUSD
and its employees thus had a duty to use reasonable measures to
protect students from such a foreseeable risk of harm even if they
did not know or have reason to know of the specific risk posed by
Salinas. The special relationship at issue here “puts the
defendant in a unique position to protect the plaintiff from injury.
The law requires the defendant to use this position accordingly.”
(Brown, supra, 11 Cal.5th at p. 216.)
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LAUSD appears to posit that William S. Hart defines
foreseeable risk via the facts described in that case, which
involved claims that school personnel knew or should have
known the employee at issue had abused minors in the past and
had a propensity to commit such abuse. William S. Hart came to
our Supreme Court after the defendant school district’s demurrer
was sustained, and thus the issue was whether the plaintiff
student had stated a viable cause of action. (William S. Hart,
supra, 53 Cal.4th at p. 865.) The plaintiff alleged a guidance
counselor had sexually abused him, and asserted that other
school employees had negligently hired, retained, and supervised
the guidance counselor. (Id. at pp. 866-867.) The plaintiff
alleged that these other district employees “ ‘knew or should have
known and/or were put on notice’ of [the guidance counselor]’s
past sexual abuse of minors and her ‘propensity and disposition’
to engage in such abuse; consequently, they ‘knew or should have
known that [the guidance counselor] would commit wrongful
sexual acts with minors, including [the p]laintiff.’ ” (Id. at
p. 866.)
Because William S. Hart reached the court following
demurrer, the court assumed the truth of these allegations.
(William S. Hart, supra, 53 Cal.4th at p. 866.) The question
presented in William S. Hart was whether school employees or
just the school district had a special relationship with students.
(Id. at p. 865.) The court did not address whether foreseeability
is limited to situations where an individual’s proclivities are
known or should be known; it simply recited that knowledge as
the plaintiff’s theory of the case. At no point did the court
indicate the legal duty it recognized was limited to situations
where school supervisors know or have reason to know that a
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specific school employee has a propensity to harm students. “A
case is not authority for a proposition not considered therein or
an issue not presented by its own particular facts.” (McConnell v.
Advantest America, Inc. (2023) 92 Cal.App.5th 596, 611.)
We further observe that, in support of its holding, William
S. Hart cited with approval three earlier cases in which courts
concluded that school personnel owed a duty to protect students
from harm by a third party without knowing or having reason to
know that a particular third-party individual posed a specific risk
of harm. (J.H. v. Los Angeles Unified School Dist. (2010) 183
Cal.App.4th 123, 148 [holding staff in charge of an after school
program could be held liable for failing to prevent a sexual
assault of the seven-year-old plaintiff by other students in the
program; “although one might argue that the instant case raises
the question whether it is foreseeable that first and second grade
students would sexually assault [the] plaintiff, the question is
accurately framed as whether it is foreseeable that one child may
be assaulted by another child during the [after school program] in
the absence of adequate protective safeguards”]; M. W., supra,110 Cal.App.4th at p. 520 [concluding school district could be held
liable for a sexual assault of a minor student by another student
in a school bathroom because the type of assault was foreseeable];
Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d
1448, 1459-1460 [concluding the plaintiff student’s allegations
that he was attacked by a non-student while in a school bathroom
stated a viable claim against school employees for failure to
protect where the employees knew or should have known “that
attacks were likely to occur there”].) Nothing in William S. Hart
indicates the high court disagreed with or disapproved of these
precedents and announced a new, more limited test for
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foreseeability. And cases following William S. Hart have
continued to hold that “school administrators have a duty to
protect students from sexual abuse by school employees, even if
the school does not have actual knowledge of a particular
employee’s history of committing, or propensity to commit, such
abuse.” (Doe v. Lawndale Elementary School Dist., supra, 72
Cal.App.5th at p. 119.)
In finding that plaintiffs had to prove either actual or
constructive knowledge of misconduct, the trial court also cited
Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141 and Chaney
v. Superior Court (1995) 39 Cal.App.4th 152.3 Both cases
involved the special relationship between a host parent and
children invited into the parent’s home, which differs
meaningfully from the special relationship between a school and
its students. (See M. W., supra, 110 Cal.App.4th at p. 524
[concluding different policy concerns are applicable to the
responsibilities of school districts towards their students as
opposed to the responsibilities of adults who invite children into
their home].) The issue of foreseeable harm also differs between
these two distinct types of relationships. As the court in Youth
Soccer, supra, 8 Cal.App.5th 1118 observed, Chaney and
Margaret W. “involved criminal conduct by family members or
guests that occurred in homes, and there was no evidence to
indicate that criminal conduct by these individuals was in any
way foreseeable.” (Youth Soccer, supra, at p. 1135.) It was
3 The court additionally cited Juarez v. Boy Scouts of
America, Inc. (2000) 81 Cal.App.4th 377, which our high court
later disapproved in Brown, supra, 11 Cal.5th at page 222,
footnote 9.
17
therefore appropriate in Chaney and Margaret W. to impose an
actual or constructive knowledge requirement about an
individual’s criminal propensities when weighing foreseeability.
Here, in contrast, there can be no serious dispute of the extant
risk that sexual predators will exploit children in the school
environment. Thus, “[i]n contrast to Chaney . . . [and] Margaret
W., . . . [there exists here] a reasonably foreseeable risk of sexual
abuse to children participating in defendant[’s] programs” (Youth
Soccer, supra, at p. 1135), regardless of any knowledge regarding
Salinas individually.
We accordingly reject the argument that the duty of a
public school’s supervisory and administrative employees to
protect students from sexual abuse is limited to situations where
those employees have reason to suspect that a specific individual
has a propensity to commit such abuse. Instead, school
administrative and supervisory employees have a “duty to use
reasonable measures to protect students from foreseeable injury,”
which includes the potential for sexual abuse by school staff.
(William S. Hart, supra, 53 Cal.4th at p. 870.)
Our dissenting colleague appears to agree with our
definition of LAUSD’s legal duty, but then cites William S. Hart
and other distinguishable cases discussed above to argue we
should nevertheless apply the narrower test advocated by
LAUSD: that plaintiffs had to show LAUSD knew or should have
known that Salinas was prone to sexually abuse students. The
dissent reads LAUSD’s summary judgment papers as
(1) agreeing it had a duty to use reasonable measures to protect
plaintiffs, (2) claiming LAUSD fulfilled that duty because it took
reasonable measures given that it had no actual or constructive
knowledge that Salinas was prone to abuse, and (3) thus
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concluding LAUSD could be liable only if it knew or should have
known Salinas posed an increased risk. In the dissent’s view,
LAUSD’s summary judgment motions “contested the extent of its
actual or imputed knowledge not as an issue of duty but of
breach, arguing its conduct was reasonable because it had no
actual or constructive knowledge that Salinas was dangerous.”
(Dis. opn. post, at p. 17.)
We are concerned that the dissent has not given full
measure to the actual contents of LAUSD’s motion papers or to
the case law we have analyzed above. First, for the reasons
explained above, we believe the dissent misreads William S. Hart
and relies on inapposite cases such as Margaret W. v. Kelley R.,
supra, 139 Cal.App.4th 141 and Chaney v. Superior Court, supra,39 Cal.App.4th 152 with regard to the scope of LAUSD’s duty of
care. For example, the dissent quotes a passage in William S.
Hart stating that school supervisory employees must guard
pupils against abuse from “foreseeable sources, including any
teachers or counselors they know or have reason to know are
prone to such abuse.” (William S. Hart, supra, 53 Cal.4th at
p. 871.) As explained above, the court’s holding was not so
limited, and the court’s use of the word “including” makes clear
that its definition of duty was not restricted to the alleged facts in
that case.
Second, in our view, the dissent does not accurately
describe what LAUSD and the plaintiffs argued to the trial court.
LAUSD did not admit that it had a duty to take reasonable
measures to protect plaintiffs absent knowledge of Salinas’s
proclivities. Instead, to quote its summary judgment motion
against C.B.R. and C.J.B., LAUSD argued it could be liable only
where “a supervisory or administrative employee of the school
19
district knew or had reason to know of the dangerous
propensities of the employee who injured the plaintiff and acted
negligently in hiring, supervising and retaining that employee.”4
In other words, LAUSD argued that if its administrators and
supervisors had no actual or constructive knowledge of Salinas’s
propensities, they had no duty to do anything.
Contrary to the dissent’s description of the plaintiffs’
allegations, plaintiffs’ claims were not limited to what LAUSD
knew or should have known about Salinas; as described above,
the allegations of plaintiffs’ complaints were broader than that.
Nor was plaintiffs’ opposition to summary judgment based solely
on what LAUSD knew or should have known about Salinas. To
quote its opposition, plaintiffs argued (in accord with the case law
cited above) that the court’s task was “ ‘ “not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of
a particular defendant’s conduct but rather to evaluate more
generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.” ’ ”
Finally, we respectfully disagree with our dissenting
colleague that LAUSD’s summary judgment motions contested
the issue of breach and/or causation such that we can reach those
issues now. LAUSD’s summary judgment motions were premised
on a narrow issue of duty, specifically that LAUSD’s supervisory
4 LAUSD’s motion for summary judgment against R.D.
argued the same thing slightly differently: that LAUSD could
only be liable if its “administrative and supervisory employees
knew or had reason to know that a particular employee posed a
risk of abuse to a particular minor, but nonetheless negligently
hired, supervised, or retained that employee.”
20
employees only owed a duty to protect plaintiffs from sexual
abuse by a third party if those supervisory employees knew or
had reason to know that the third party had a propensity to
abuse. Its motions were not premised on plaintiffs’ inability to
show breach or causation. LAUSD’s separate statements focused
on what LAUSD knew or should have known about Salinas; they
did not address what LAUSD does more generally in hiring,
retaining, and supervising employees such as Salinas to guard
against the potential for sexual abuse, which allegations were
part of plaintiffs’ negligence claim. Although we may affirm a
grant of summary judgment on any ground supported by the
record (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th
133, 140), it still must be a “ ‘ground that the parties had an
adequate opportunity to address in the trial court.’ ” (Thurston v.
Midvale Corp. (2019) 39 Cal.App.5th 634, 639.) Plaintiffs had no
such opportunity here with regard to breach and causation given
how LAUSD framed the issue below.
LAUSD therefore failed to carry its initial burden in
moving for summary judgment to show that an element of
plaintiffs’ cause of action (in this case, duty) could not be
established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Thus, the
burden never shifted to plaintiffs to demonstrate the existence of
a triable issue of material fact, and the trial court erred in
granting summary judgment to LAUSD. (Aguilar, at p. 850.)
Although we reject LAUSD’s framing of the applicable duty
of care, we also reject plaintiffs’ description of the duty as
“expansive.” Paraphrasing our Supreme Court, “[w]e emphasize
that a duty of care is not the equivalent of liability,” that our
holding should not “be read to create an impossible requirement”
21
that LAUSD prevent all foreseeable harm, and that LAUSD is
“not the ultimate insurer[ ] of all student safety.” (Regents of
University of California v. Superior Court, supra, 4 Cal.5th at
p. 634.) Further, the duty of care does not require “expansive”
measures; it requires reasonable measures. (See William S.
Hart, supra, 53 Cal.4th at p. 871.)
C. The Rowland Factors
As set forth in our opening summary of the legal principles
applicable to this matter, the Rowland factors may support
further limiting LAUSD’s duty of care. Although both the
plaintiffs and LAUSD discuss Rowland in their appellate
briefing, neither presented arguments or evidence on that
question to the trial court. We accordingly decline to undertake a
Rowland analysis in the first instance, as the record does not
include the evidence necessary to conduct a proper Rowland
analysis. Aspects of that analysis such as the potential burden
on LAUSD and the consequences to the community of imposing a
duty, and the availability, cost, and prevalence of insurance for
the negligence claims involved, are fact intensive and we do not
agree with cases such as Doe v. Lawndale Elementary School
Dist., supra, 72 Cal.App.5th at pages 128-137 that undertake
that analysis in the absence of what we believe are necessary
facts.
We further note that on remand LAUSD and/or plaintiffs
can, if they believe the evidence and law support it, bring a
further summary judgment or adjudication motion regarding the
Rowland factors, as well as other issues such as breach and
causation not previously addressed. (See Nieto v. Blue Shield of
California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73
[Code Civ. Proc. § 437c, subd. (f)(2) did not prohibit a subsequent
22
summary judgment motion which “targeted an issue . . . not
previously asserted”]; Patterson v. Sacramento City Unified
School Dist. (2007) 155 Cal.App.4th 821, 827 [Code Civ. Proc.
§ 437c, subd. (f)(2) did not prohibit a second motion for summary
judgment where “[the] two motions were not identical and
involved different legal theories” on duty].) This is particularly
true here given that the Supreme Court’s clarification of the
applicable law in Brown did not occur until after the summary
judgment proceedings below, such that neither the parties nor
the trial court had the benefit of its reasoning. We express no
opinion on the outcome of any Rowland analysis or motion
related to breach or causation.
D. LAUSD Is Entitled to Summary Adjudication on the
Issue that Its Liability Must Be Based on a Statute
In its motions, LAUSD sought summary adjudication on
the issue that it “cannot be liable for a common law cause of
action for [n]egligence because that cause of action is not
authorized by statute.” The trial court ruled in favor of LAUSD
on this issue, although it did not specifically grant summary
adjudication because it granted summary judgment.
As the trial court noted, it is unclear from plaintiffs’
complaints whether their negligence cause of action is based
solely on the applicable Government Claims Act provisions or
also includes a free-standing common law negligence claim. This
lack of clarity is presumably why LAUSD moved for summary
adjudication to confirm that any negligence liability it might have
was only pursuant to the Government Code. On appeal,
plaintiffs make no argument they can recover from LAUSD under
a theory that LAUSD itself was negligent; they instead
acknowledge that the applicable theory under which LAUSD can
23
be held liable is vicarious liability pursuant to section 815.2,
subdivision (a).
Because LAUSD can only be held liable if there is a
statutory basis for liability, LAUSD cannot be sued for common
law negligence independent of the Government Claims Act.
(Guzman v. County of Monterey, supra, 46 Cal.4th at p. 897; see
Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th
at p. 1183 [Civ. Code, § 1714 does not provide a statutory basis
for holding a public entity liable].) LAUSD was thus entitled to
summary adjudication on the “issue of duty” that it cannot be
liable for a common law negligence cause of action not authorized
by statute. (Code Civ. Proc., § 437c, subd. (f)(1).)
DISPOSITION
The judgments are reversed, the trial court is directed to
enter summary adjudication in favor of LAUSD on the issue that
LAUSD cannot be liable for a common law negligence cause of
action not authorized by statute, and the case is remanded for
further proceedings. Plaintiffs are awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
I concur:
BENDIX, Acting P. J.
24
CHANEY, J., Dissenting
A. Introduction
I agree with the majority’s holding that a school district has
an affirmative duty to use reasonable measures to protect its
students from foreseeable harm at the hands of others. I depart
from the majority, however, in their holding that the Los Angeles
Unified School District (LAUSD or the district) failed to establish
that no material triable issue exists as to whether it took
reasonable steps to protect its students in this case.
B. Background
For the most part, I accept the majority’s recitation of the
legal, factual, and procedural background.
1. Complaints
In their operative complaints, plaintiffs alleged in a single
negligence cause of action that through the actions of Rene
Ramirez (Principal at Arminta Street Elementary School), Emily
Vasquez (site coordinator for LA’s Best, an on-site after-school
program), and Connie Recart (LA’s Best’s traveling supervisor),
LAUSD negligently hired, supervised, and retained John Salinas,
a “coach” for the LA’s Best program who oversaw students in a
computer lab.
a. Negligent Hiring/Retention
Sprinkled throughout each complaint, plaintiffs alleged
Vasquez, Ramirez, and Recart were “put on notice” and “knew or
should have known” about Salinas’s harmful propensities and
activities before and during his employment.
In support of their claims for negligent hiring and
retention, for example, plaintiffs alleged that “[p]rior to and after
the first incident of sexual molestation and abuse of
[themselves], . . . LAUSD . . . knew or should [sic: would] have
known that SALINAS was sexually, physically, and mentally
abusing students, . . . if the LAUSD had conducted a reasonable
investigation into SALINAS’s background prior to hiring . . .
him.”
Plaintiffs alleged that “LAUSD owed Plaintiff a duty to not
hire and retain SALINAS, given his dangerous and exploitive
propensities, which Defendant LAUSD knew or should have
known had the LAUSD engaged in a meaningful and adequate
investigation of his background prior to his employment.”
Plaintiffs alleged that “LAUSD and its employees . . . were
put on notice, and had reason to know that SALINAS had
previously engaged in abusive and inappropriate conduct, and
that it was foreseeable that SALINAS was engaging, or would
engage in illicit sexual activities with [plaintiffs] under the cloak
of his authority, confidence, and trust, bestowed upon him by
[LAUSD].”
Plaintiffs alleged that “LAUSD and its employees . . . were
placed on notice that SALINAS had engaged in dangerous and
inappropriate conduct, both before his employment within
Defendants, and during that employment. . . . [O]ther third
parties, minors, students, law enforcement officials and parents
informed Defendant LAUSD of inappropriate conduct committed
by SALINAS . . . [and] other LAUSD staff knew about SALINAS’
inappropriate conduct with minor students but did nothing to
stop it. [¶] Even though Defendant LAUSD knew or should have
known of these activities by SALINAS, . . . its employees . . .
failed to use reasonable care in investigating SALINAS . . . .”
b. Negligent Supervision
In support of their claim for negligent supervision,
plaintiffs alleged that “employees and staff of L.A.’s Best . . . and
2
LAUSD had suspected or should have suspected the abuse was
occurring at the time, and failed to investigate into the matter
further” or “provide reasonable supervision.”
2. Summary Judgment
a. Motion
LAUSD moved for summary judgment on the grounds that
(1) it was not liable for negligent supervision, hiring, or retention
because no evidence suggested it had actual or constructive
knowledge of Salinas’s dangerous propensities, and (2) the
Government Claims Act did not authorize a cause of action
against a public entity for direct negligence.
As the majority notes, the district argued, “To prove
liability [for negligent hiring, supervision or retention], the
plaintiff is required to demonstrate that a supervisory or
administrative employee of the school district knew or had reason
to know of the dangerous propensities of the employee who
injured the plaintiff and acted negligently in hiring, supervising
and retaining that employee.” (Maj. opn. ante, at p. 10.)
i. Negligent Hiring
In its separate statement of undisputed material facts, the
district adduced plaintiffs’ discovery responses, in which
plaintiffs cited as facts supporting their negligent hiring claim
that the district “knew or should have known that Salinas
possessed [dangerous and exploitive] tendencies had they
properly and adequately investigated into Salinas’s background
prior to [hiring him].”
To counter the facts plaintiffs asserted as supporting their
claims, the district offered evidence that preemployment
background checks on Salinas performed by the California
Department of Justice and the Federal Bureau of Investigation
3
came back clear, the Los Angeles Police Department (LAPD)
reported that Salinas had no convictions or pending criminal
matters, and as part of the application process Salinas swore
under penalty of perjury that he had never been accused of or
investigated for misconduct involving a minor.
ii. Negligent Retention
With respect to plaintiffs’ negligent retention claim, the
district adduced evidence that immediately upon learning that
R.D. alleged inappropriate conduct by Salinas, Vasquez notified
the Department of Children and Family Services (DCFS) and the
LAPD and suspended Salinas.
iii. Negligent Supervision
With respect to plaintiffs’ negligent supervision claim the
district adduced discovery responses in which plaintiffs cited as
facts supporting their claim that the district “placed Salinas’
classroom in a secluded area of campus, so that his classroom
was not readily visible to staff. Moreover, Salinas was allowed to
keep his classroom door closed . . . .”
To counter the facts that plaintiffs asserted as supporting
their claims, the district adduced evidence that Salinas’s
classroom was not secluded, his door was not always closed, and
several supervisors and coworkers visited the classroom several
times.
As to whether Salinas’s classroom was secluded, several
witnesses testified that the classroom, which was next door to the
library, was visible from the LA’s Best office’s windows,
Vasquez’s office, the play yard, and the school’s main office.
As to whether the classroom door was always closed, the
district offered plaintiff C.B.R.’s deposition testimony, in which
she stated Salinas “always” kept his door propped open with a
4
kickstand far enough to allow entry without moving the door,
Vasquez would look in on the room about once a week “to make
sure everything was okay,” and LA’s Best coaches would
occasionally come into the room. The district also offered the
testimony of C.J.B., who stated that Salinas’s door would be
propped open at the beginning of class, but she did not remember
if it was kept open at other times. She testified that Salinas
generally kept the door closed as a policy, but her desk faced
away from it, and she would not watch it.
As to supervision, the district offered evidence that
Salinas’s classroom was supervised by three individuals:
Arminta’s principal, a site coordinator, and an LA’s Best program
coach, and was visited by several coworkers.
School principal Rene Ramirez testified that “he would
walk around when the kids were outside,” and visited Salinas’s
classroom two or three times a week, observing Salinas with his
students, and did not recall the door ever being closed.
Site coordinator Vasquez testified she would walk the
hallways and look into the classroom about once a week
randomly and “surprisingly” to make sure everything was okay
and the students were behaving.
Karen Solorzano, an LA’s Best program coach, testified she
met with Salinas twice, including observing and evaluating his
classroom in January 2015 for an hour, and discussed her
evaluation with Vasquez.
A variety of coworkers also came into the classroom during
the day. C.J.B. testified that Vasquez could see the classroom
from the hallway outside her office, and occasionally visited, as
did other LA’s Best coaches.
5
The district also offered evidence that before and during
Salinas’s employment it provided him with written district
policies regarding child abuse reporting, sexual harassment, and
codes of conduct and ethics.
b. Oppositions
In opposition to the motions, plaintiffs argued that
Salinas’s teaching style was ominous from the beginning, putting
the district on notice that he might be a sexual predator. He
isolated his students by keeping the classroom door closed and
opting out of recess, and was overly familiar with female
students, in particular by treating R.D. as his “teacher’s pet.”
Plaintiffs presented evidence that LAUSD (1) permitted
Salinas to violate an LA’s Best open-door policy by keeping his
classroom door closed; (2) permitted Salinas to keep his students
inside the classroom in violation of state regulations that they be
given 30 minutes of outside time; (3) failed to investigate when it
discovered Salinas was overly attentive to female students; and
(4) failed to supervise or train him.
i. Open-Door Policy
In support of plaintiffs’ argument that Salinas isolated
students by keeping the classroom door closed, several program
coaches, including Jasmine Melara, testified that LA’s Best
coaches were not allowed to leave classroom doors closed while
class was in session. (Melara testified the policy was in writing,
but no written LA’s Best policy exists in the record, and there
was no evidence that LAUSD had any kind of policy about
keeping doors open.)
Coach Jasmin Avelar testified she did not personally
observe Salinas’s door being always kept closed but would see it
closed when she was with her class on the playground. However,
6
no evidence established what time of day this was, or whether
Salinas’s class was in session at that time. (Other testimony
suggested that all LA’s Best students took recess at the same
time.) Program coach Desiree Cornell testified that she
remembered seeing Salinas’s door being closed but did not know
if he was in the classroom at the time. Avelar, Cornell, and
Melara testified they were aware that Salinas’s door was often
closed, but none testified as to how often the door was personally
observed to be closed, when or for how long, or for what purpose,
or whether the closures were at a time when Salinas and his
students were in class. Melara testified that Salinas would close
his classroom door because the nearby playground was too loud.
However, she also admitted that her classroom was not near
Salinas’s, and she never had occasion to walk by. She was told by
two other coaches that Salinas kept his door closed.
ii. Outdoor Activity
In support of plaintiffs’ argument that Salinas isolated
students by keeping them indoors, several coaches testified that
LA’s Best policy afforded students at least 30 minutes of outdoor
physical activity time. C.B.R. and C.J.B. testified that after the
school bell rang, students would go to the playground, where LA’s
Best coaches waited. After signing in, the students would play
for about an hour, unless it was raining. They would then go to
the cafeteria for supper for about 45 minutes, after which Salinas
would take them to the computer lab to start homework. After
their homework was done, they could play on the computers until
pick-up.
Melara testified that Vasquez knew Salinas often violated
the outside playtime policy. C.J.B. testified that Salinas
routinely violated the recess policy by keeping his students in the
7
computer lab almost the whole day. But Recart, LA’s Best
traveling supervisor, was never notified that Salinas failed to
take his class outside, and Salinas was never reprimanded.
iii. Overattentiveness to Female
Students
In support of plaintiffs’ argument that Salinas was overly
attentive to female students, Melara testified that R.D. was
“going to” Salinas’s class “on a regular basis, and Vasquez
thought it was “weird” that Salinas interacted more with female
students than with male students. Another coworker testified
that R.D. was a “teacher’s pet.”
iv. Supervision
In support of plaintiffs’ argument that the district failed to
supervise Salinas, several witnesses testified that Salinas’s
classroom was in a far corner of the Arminta campus,
unobservable from other classrooms or the LA’s Best office
doorway.
LA’s Best coaches Jasmine Avelar, Vanessa Mendez,
Jasmine Saggeth Melara, and Gabriella Donis each testified that
in 2015, one or another of the school site supervisory personnel—
Ramirez, Recart and Vasquez—failed to visit or observe their
classrooms, and no one recalled seeing anyone visit Salinas’s
classroom.
Connie Recart, LA’s Best traveling supervisor, testified she
could not recall ever observing Salinas’s classroom or asking
anyone else to observe it, and did not know if anyone conducted
an employee evaluation of Salinas.
Vasquez, the site coordinator at Arminta and Salinas’s
direct supervisor during the 2014/2015 school year, testified she
could not remember meeting with Salinas to review his activity
8
planning sheets, complete a QPAT for his classroom, or meet with
him to discuss his performance as a program coach.
c. Ruling
As the majority notes, the trial court, relying on C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
869 (William S. Hart), concluded that “[t]o prove liability, the
plaintiff is required to demonstrate that a supervisory or
administrative employee of the school district knew or had reason
to know of the dangerous propensities of the employee who
injured the plaintiff and acted negligently in hiring, supervising
and retaining that employee.” (Maj. opn. ante, at p. 11.)
As to the district’s vicarious liability under Government
Code section 815.2 for the negligence of administrators and
supervisors in hiring, retaining, and supervising a school
employee, the court found that no evidence suggested any
supervisor had actual or constructive knowledge that Salinas
posed a threat to students.
The court found that plaintiffs’ arguments about whether
Arminta administrators visited Salinas’s classroom with
sufficient frequency or provided sufficient monitoring, training,
and supervision were irrelevant to the only issue raised by the
district’s motion: that it had no warning that Salinas posed a
threat to students.
As to plaintiffs’ argument that Salinas’s teaching style was
ominous from the beginning, giving clear warning that he might
be a sexual predator because he isolated his students by keeping
the classroom door closed and opting out of recess, and was overly
familiar with female students, in particular making R.D. his
“teacher’s pet,” the court found that no evidence suggested
supervisory employees had actual or constructive knowledge of
9
Salinas’s dangerous propensities sufficient to satisfy a “knew or
should have known” requirement.
The court found that plaintiffs’ complaints and oppositions
to summary judgment left it ambiguous whether they intended to
assert a theory of common law negligence against the district, but
in any event no such theory was cognizable. (Hoff v. Vacaville
Unified School District (1998) 19 Cal.4th 925, 932.)
C. Discussion
The district moved for summary judgement on the ground
that the actions had no merit, arguing no triable issue existed as
to whether it may be held vicariously liable for the conduct of its
administrative and supervisory personnel in negligently hiring,
retaining or supervising Salinas because it had no actual or
constructive knowledge of his abusive propensities or conduct.
The issue on appeal is whether any triable issue exists as to
such knowledge.
1. Legal Principles
I agree with the majority’s discussion setting forth
summary judgment principles, the standard of review, and the
scope of a public school’s duty to take reasonable steps to protect
its students against foreseeable harm at the hands of its
employees. I also agree that summary adjudication should be
granted to the extent that plaintiffs allege common law
negligence.
“[A] school district and its employees have a special
relationship with the district’s pupils, a relationship arising from
the mandatory character of school attendance and the
comprehensive control over students exercised by school
personnel, ‘analogous in many ways to the relationship between
parents and their children.’ ” (William S. Hart, supra, 53 Cal.4th
10at p. 869.) Because of this special relationship, “a public school
district may be vicariously liable under section 815.2 for the
negligence of administrators or supervisors in hiring, supervising
and retaining a school employee who sexually harasses and
abuses a student.” (Id. at p. 879.)
School supervisors must guard pupils against abuse from
“foreseeable sources, including any teachers or counselors they
know or have reason to know are prone to such abuse.” (William
S. Hart, supra, 53 Cal.4th at p. 871.) “[I]f individual District
employees responsible for hiring and/or supervising teachers
knew or should have known of [a teacher’s] prior sexual
misconduct toward students, and thus, that he posed a
reasonably foreseeable risk of harm to students under his
supervision, . . . the employees owed a duty to protect the
students from such harm.” (Virginia G. v. ABC Unified School
Dist. (1993) 15 Cal.App.4th 1848, 1855.)
To show a district supervisor “knew or had reason to know”
that a teacher is prone to sexually abuse a student, a plaintiff
must prove either that the supervisor actually knew about the
teacher’s deviant propensities (see Chaney v. Superior Court
(1995) 39 Cal.App.4th 152, 157 [no duty to prevent an assault
absent “actual knowledge” of the perpetrator’s deviant sexual
inclinations]) or that circumstances put the supervisor on notice
about them (see Margaret W. v. Kelly R. (2006) 139 Cal.App.4th
141, 155 [sexual assault must be foreseeable, not just
conceivable]). For example, a supervisor is put on notice of a
teacher’s deviant propensities if something in a teacher’s
background may reasonably be deemed to be a specific warning
about them. (Cf. Juarez v. Boy Scouts of America, Inc. (2000) 81
11
Cal.App.4th 377, 386, 397, 403 [nothing in the molester’s
background was deemed to be a “specific warning”].)
2. Summary Judgment Was Proper
Here, LAUSD argued no triable issue existed as to whether
it took reasonable steps to protect its students, because no triable
issue existed as to whether it had notice about the danger Salinas
posed.
a. Negligent Hiring
For their negligent hiring claim, plaintiffs alleged that if
LAUSD had performed an adequate background check it would
have discovered that Salinas had molested students before.
To counter the claim, the district presented evidence that it
fingerprinted Salinas, commissioned background checks that
came back clear, and required that Salinas swear under penalty
of perjury that he was involved in no past or pending criminal
matters.
Plaintiffs admitted these facts, and offered no rebutting
evidence on this issue other than the testimony of some workers
that they had not been subjected to background checks or
required to provide references. Given plaintiffs’ admission that
Salinas himself was subjected to background checks, plaintiffs’
evidence about the district’s procedures in hiring other employees
failed to establish a triable issue as to whether adequate
background checks would have revealed that Salinas had
molested students before.
b. Negligent Retention
For their negligent retention claim, plaintiffs alleged that
LAUSD knew or should have known that Salinas was abusing
students but did nothing about it.
12
To counter the claim, LAUSD offered evidence that no one
ever lodged a complaint about Salinas, and the first time LAUSD
staff became aware of the abuse was when R.D.’s parents
reported it, upon which LAUSD immediately removed Salinas
from employment. This evidence shifted the burden to plaintiffs
to establish a triable issue as to negligent retention. They failed
to do so.
Plaintiffs admitted that the day Vasquez heard about
Salinas abusing R.D., she notified DCFS and the LAPD, and
Salinas never worked for LA’s Best again.
Plaintiffs disputed LAUSD’s knowledge of the abuse with
three facts: Melara thought R.D. “was going to Salinas’s class on
a regular basis”; Melara testified that Vasquez found it “weird”
that Salinas interacted more with female students than male
students; and another coworker thought R.D. was Salinas’s
“teacher’s pet.”
The trial court properly found that these facts failed to
raise a triable issue as to the actual or constructive knowledge of
any LAUSD administrator or supervisor. No evidence indicated
that the coworkers’ opinions that R.D. was “going to” Salinas’s
classroom and was his “teacher’s pet” were ever communicated to
any supervisor. And no evidence indicated that Vasquez’s
hearsay impression that Salinas acted “weirdly” rose to a
reasonable inference that he was abusing students.
c. Negligent Supervision
For their negligent supervision claim, plaintiffs alleged
that LAUSD knew or should have known that Salinas was
abusing students but failed to investigate or provide reasonable
supervision. When asked in interrogatories for the factual basis
of this claim, plaintiffs asserted that Salinas’s class was in a
13
secluded part of the campus, and he kept his classroom door
closed.
In seeking summary disposal of the claim, LAUSD argued
no evidence existed that the district negligently supervised
Salinas or had reason to know he posed a risk to students. This
is so, the district argued, because several witnesses testified that
his classroom was not isolated, he kept the classroom door
cracked open, and supervisors frequently visited. This evidence
shifted the burden to plaintiffs to establish a triable issue.
They failed to do so.
No evidence suggested that Salinas’s classroom was so
isolated as to prevent oversight or put supervisors on notice that
abuse was occurring within. The consensus was that the
classroom could be seen from several locations, including
Vasquez’s office.
No evidence indicated that Salinas kept his classroom door
closed while class was in session, much less that he did so to such
an extent as to prevent oversight or put supervisors on notice
that abuse was occurring within. In any event, a closed
classroom door is a ubiquitous and often necessary phenomenon,
suggesting only that teaching is occurring within, not abuse.
No evidence suggested that Salinas isolated students by
sequestering them. C.J.B. testified that students would check in
after school, stay in the play yard for an hour, have supper, and
then go into the classrooms. That Salinas thereafter prohibited
students from leaving the classroom suggested only that he was
supervising them, not that he was abusing them.
Even if Salinas interacted more with female than male
students, kept his classroom door closed, opted out of outdoor
playtime, and prevented students from leaving the room, these
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are matters of pedagogical discretion, and conveyed no specific
warning about Salinas’s deviant propensities. Absent hindsight,
a teacher’s solicitude to female students does not by itself suggest
abuse is occurring.
Although plaintiffs adduced evidence that one or another of
the school site supervisory personnel—Ramirez, Recart and
Vasquez—failed to visit or observe coworker classrooms, and no
one recalled seeing anyone visit Salinas’s classroom, these
scattershot omissions raised no triable issue even as to lack of
supervision, much less as to constructive knowledge that Salinas
was a sexual predator. That coworkers did not recall seeing
supervisors visit Salinas’s classroom did not establish that no
visits occurred. Plaintiffs themselves testified that Vasquez
visited their classroom.
Plaintiffs adduced evidence that Salinas was not given an
employee evaluation but failed to explain why an evaluation
would have been relevant. They adduced evidence that Vasquez
did not meet with Salinas to review his activity planning sheets
or discuss his performance as a program coach, but failed to
explain how these measures would have alerted her that Salinas
was a sexual predator.
In short, no evidence suggested that the district either
ignored or set itself up to miss suspicious behavior or potential
signs of abuse, and nothing the district observed or reasonably
failed to observe gave it constructive knowledge that Salinas was
a predator. Therefore, no triable issue exists as to whether the
district failed to reasonably supervise Salinas.
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3. LAUSD Thus Demonstrated the Actions Have
No Merit
The district’s burden on summary judgment was to
establish that the actions have no merit. As I argue above, it did
so by demonstrating no triable issue exists as to whether LAUSD
took reasonable measures in hiring, supervising, and retaining
Salinas.
The majority concludes that LAUSD failed even to raise the
issue of whether it took reasonable measures in hiring,
supervising, and retaining Salinas. (Maj. opn. ante, at p. 22 [“the
duty of care . . . requires reasonable measures”].)
On the contrary, the district’s entire motion was predicated
on the measures it took. LAUSD used a screening application
and conducted background checks before hiring Salinas,
supervised him and disseminated policy materials while he
worked for the district, and immediately and permanently
suspended him and notified authorities when it discovered he
was alleged to have molested R.D.
The district argued these measures were reasonable
because it had no reason to suspect Salinas posed any more of a
risk that is addressed by normal school policies regarding student
safety.
The majority observes that LAUSD’s separate statement
focused on what the district knew or should have known only
about Salinas, and did not address what LAUSD does more
generally in hiring, retaining, and supervising employees such as
Salinas. (Maj. opn. ante, at p. 21.) But the district was correct to
focus its motion on the actions it took specifically with respect to
Salinas because plaintiffs’ theory of liability was based on those
actions, not the district’s practices more generally.
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The majority holds that school district supervisors and
administrators have a duty of care to use reasonable measures to
protect students from foreseeable injury at the hands of others,
and whether injury is foreseeable does not require actual or
imputed knowledge about the specific employee, only about the
potential for sexual abuse by school staff in general.
None of this is disputed here. LAUSD did not argue it
owed no duty to use reasonable measures to protect plaintiffs
until given specific reason to suspect Salinas, it argued it fulfilled
its duty because the measures it took (even though it had no
reason to suspect him) were reasonable considering what it knew
at the time.
In other words, the district contested the extent of its
actual or imputed knowledge not as an issue of duty but of
breach, arguing its conduct was reasonable because it had no
actual or constructive knowledge that Salinas was dangerous.
Therefore, the majority’s holding that LAUSD owed
plaintiffs a duty does not answer the issue on appeal: Whether a
triable issue exists as to the reasonableness of the district’s
conduct in light of what it knew or should have known about
Salinas.
LAUSD presented this issue and answered it, and
summary judgment was properly granted. Therefore, I
respectfully dissent.
CHANEY, J.
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