Roe v. Hacienda La Puente Unified School Dist. CA2/2

Filed 10/24/22 Roe v. Hacienda La Puente Unified School Dist. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
JANET ROE, B310850
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC615789)
v.
HACIENDA LA PUENTE
UNIFIED SCHOOL DISTRICT
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Peter A. Hernandez, Judge. Affirmed.
Singleton Schreiber, Benjamin I. Siminou, Harini P.
Raghupathi; Estey Bomberger, Stephen J. Estey and Mary Bajo
for Plaintiff and Appellant.
Winet Patrick Gayer Creighton & Hanes and Randall L.
Winet for Defendants and Respondents.
While appellant Janet Roe was in high school, a teacher at
respondent Hacienda La Puente Unified School District (District)
had sexual contact with her. Roe sued District and her school
principal for negligent supervision. The trial court entered
summary judgment against Roe. (Code Civ. Proc., § 437c.)
On de novo review, we find no triable issue of material fact.
District agrees it has a special relationship with students. It
showed that it adopted policies forbidding inappropriate staff
behavior, had its administrators patrol school hallways, and Roe
never reported any misbehavior. Roe did not show a triable issue
by presenting nonspeculative evidence that District knew or
should have known its teacher posed a risk of reasonably
foreseeable harm. We affirm.
FACTS
Roe attended Los Altos High School. In 2010, after ninth
grade, she sought to enroll in a summer school chemistry class, to
prepare for an advanced placement (AP) class in the fall. The
summer class was full but the teacher, David Park, told Roe she
could attend on a noncredit basis. She sat by Park’s desk because
there were no other available seats in the classroom.
Park never spoke inappropriately to Roe in class or in front
of others; however, he obtained her cell phone number and began
texting her outside of school, asking questions about her sex life.
Roe knew the texts were inappropriate but decided not to tell
anyone. She felt scared, did not want to be in the limelight, and
believed people would think she was at fault.
In 10th grade, Roe ate lunch with Park in his classroom,
almost daily, for the entire school year. Sometimes they were
joined by other students. Roe and Park talked about her home,
parents and school; they did not discuss sex. Roe’s AP chemistry
2
teacher, Mr. Ackerman, was in an adjoining classroom and,
according to Roe, was “aware” that Roe and Park lunched
together. No other school staff members knew of their lunches.
Park entered Ackerman’s classroom four or five times to chat
with Roe and ask if she understood the class material.
Park continued to “sext” Roe outside of school while she
attended 10th grade. He often said he loved and wanted to marry
her but told her “ ‘to keep it a secret because he could lose
everything.’ ” Despite Park’s misbehavior, Roe lunched with him
because “I was afraid that he would try to ruin my reputation or
try and hurt me in some way.”
One evening Roe’s father asked her to leave the family
home during a parental argument. When Roe texted Park about
her predicament, he picked her up and drove her to his home. He
suggested she sleep with him in his bed, and she agreed. Roe
awoke when she felt Park kissing her from her stomach up to her
breasts. He complied when she told him to stop and take her
home. Roe did not tell anyone about this incident.
A few months later, Park blocked his classroom door as Roe
prepared to leave, put his hands on her shoulders and kissed her,
saying he loved her. She replied that she loved him back, but not
in the same way, then left the room. Roe confided in a friend
about the kiss in the classroom. The friend was shocked and
disgusted but agreed to keep it a secret, at Roe’s insistence. Park
did not touch Roe after that.
It is undisputed that Roe did not report her interactions
with Park before she graduated from high school in 2013. She
“had a fear that if I came out and told anybody, nobody would
believe me.” Also, she was afraid he might hurt her or make her
a social outcast.
3
In 2015, after hearing that Park was arrested for an
improper relationship with a student, Roe reported Park’s
misbehavior with her to police. It is undisputed that until Roe’s
2015 disclosure, District was unaware that Park texted Roe,
touched her at his home, or kissed her on campus. Roe did not
report her relationship with Park to District, to respondent school
principal Cheli McReynolds, counselors, or her parents.
A parent called the school at some point to report that Park
gave her daughter a purse. Questioned by Principal McReynolds,
Park said he gave the student the purse for her birthday because
she wanted it and he thought she could not afford it. McReynolds
told Park it was inappropriate to give gifts to a student and
advised him to speak to a counselor if he really thinks a student
is in need.
Training materials say that grooming is accomplished
through a series of inappropriate boundary invasions, which
should be stopped before they escalate. Examples include gift
giving, being overly touchy, taking an undue interest in or
favoring a student, being alone with a student behind closed
doors at school, taking students on outings away from protective
adults, extending contact with students outside of school, using
e-mail or text messaging to discuss personal topics with students,
inviting students to the teacher’s home without a chaperone,
engaging in sexual innuendo or banter, or hugging, kissing or
having physical contact. Teachers are mandated reporters.
McReynolds is aware that teachers can be sexual predators.
District policy is that a teacher should not be alone with a
student behind closed doors; a teacher who sees a colleague alone
with a student should tell a supervisor. McReynolds and other
supervisors walk the halls during the lunch period. A teacher,
4
Mr. Hughes, told a District administrator that Park was
apathetic about teaching. Though bothered by Park’s disinterest
in male students, Hughes did not see Park act inappropriately
with female students.
PROCEDURAL HISTORY
In 2016, Roe filed a complaint against Park, District, and
McReynolds.1 Roe asserts a cause of action against respondents
for negligent supervision, causing personal injury.
Respondents requested summary judgment. They argued
that they are not liable because they had no actual knowledge of
Park’s improper conduct. Constructive notice that Park and Roe
lunched together does not prove that respondents should have
known of an untoward relationship.
In opposition, Roe argued it was reasonably foreseeable
that she would be harmed. Respondents are generally aware
that students can be sexually abused, even if they had no
knowledge that Park had ever previously done so. They knew or
should have known, given statistics on sexual assaults by
teachers, that Park’s focus on female students should have been
reported because he had the potential to abuse minors.
Respondents did not dispute the special relationship
between them and Roe but replied that “they were unaware of
sufficient facts to obligate them to take any particular action to
protect Plaintiff against Mr. Park, or that his sexual assault was
foreseeable.” Even if respondents knew that teachers may
commit sexual misconduct with students, they did not know
remedial measures were needed as they had no knowledge that
Park had a propensity to abuse Roe.
1 Defendant Park is not a party to this appeal.
5
THE COURT’S RULING
The court granted respondents’ motion. It identified the
issue as whether respondents “knew or should have known that
Defendant Park posed a risk of harm to students and the risk
was reasonably foreseeable” to respondents. The court expressly
rejected District’s claim that it need only show actual knowledge
of Park’s assaultive propensities. Respondents met their initial
burden by showing that no administrators or supervisors had
notice that Park was a danger. Roe admittedly never told school
staff or her parents about her relationship with Park, and he
never behaved inappropriately in front of others.
The court found Roe did not meet her burden of showing a
triable issue of material fact. School employees did not suspect
inappropriate behavior; further, Roe testified that they did not
speak about sex at lunch, discussing only family and school. No
evidence proves that teacher Ackerman observed Roe and Park
lunching alone behind closed doors. A 2015 parental report about
Park’s gift to a student does not prove that respondents knew or
suspected he posed a risk of harm to Roe years earlier. Though
teacher Hughes observed that Park seemed disinterested in male
students, he testified that he never saw Park interact with
female students in a way that suggested an improper
relationship. The court entered judgment for respondents.
DISCUSSION
1. Appeal and Review
The judgment is appealable. (Code Civ. Proc., § 904.1,
subd. (a)(1); Walker v. Stauffer Chemical Corp. (1971) 19
Cal.App.3d 669, 671 [plaintiff may appeal a summary judgment
in favor of one of several defendants].) Summary judgment is
appropriate where no triable issue of material fact exists and the
6
moving party is entitled to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).)
We independently examine the record to determine if
triable issues of fact exist. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 767.) “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.) Establishing a negligence claim requires proof
of a duty, breach, causation, and damages. (Ibid.)
2. District’s Duty To Protect Students
The special relationship between a school district and its
students imposes obligations requiring school personnel to “use
reasonable measures to protect students from foreseeable injury
at the hands of third parties acting negligently or intentionally.”
(C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 869–870 (C.A.) [special relationship arises from the
mandatory character of school attendance and the school’s
comprehensive control over students].) A school district may be
vicariously liable for negligently supervising and retaining a
school employee who sexually harasses and abuses a student.
(Id. at p. 879.)
Though school districts are not insurers of the physical
safety of students, “ ‘California law has long imposed on school
authorities a duty to “supervise at all times the conduct of the
children on the school grounds and to enforce those rules and
regulations necessary to their protection.” . . . This uniform
standard to which they are held is that degree of care “which a
person of ordinary prudence, charged with [comparable] duties,
would exercise under the same circumstances.” [Citations.]
7
Either a total lack of supervision [citation] or ineffective
supervision [citation] may constitute a lack of ordinary care on
the part of those responsible for student supervision.’ ” (C.A.,
supra, 53 Cal.4th at p. 869.)
“[E]ven when two parties may be in a special relationship,
the unforeseeability of the kind of harm suffered by the plaintiff
or other policy factors may counsel against establishing an
affirmative duty for one party to protect the other.” (Brown v.
USA Taekwondo (2021) 11 Cal.5th 204, 219 (Brown).) Numerous
policy considerations “may weigh against imposing a duty to
protect in a given case.” (Id. at p. 211.)2
There is no question that respondents have a duty to
protect Roe from predatory behavior by a teacher. The parties
have focused their arguments on whether any evidence shows
that respondents failed to exercise supervisory care to avoid a
foreseeable injury.
3. Roe’s Claims
As framed by her complaint (Nieto v. Blue Shield of
California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74),
Roe’s theory is that respondents failed “to enact policies and
2 These considerations include “ ‘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.’ ” (Brown, supra, 11 Cal.5th at
p. 217, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 112–
113.)
8
procedures that prevented students from being alone and
unsupervised with teachers in classrooms before, during and
after school hours,” and she “was negligently allowed to be alone
with defendant PARK in his classroom on multiple occasions.”
Respondent McReynolds testified that District policy
discourages teachers from being alone with students behind
closed doors. Roe did not dispute that District distributed a
“Employee/Student Interaction Notice” to its personnel, listing
policies designed to stop sexual abuse. Roe’s brief states that
District provided “annual training on ways to protect students
from sexual abuse,” which listed grooming behaviors such as
taking an undue interest in a student, inviting a student to the
classroom at non-class times, or being alone with a student
behind closed doors. School staff is required to report violations
of the no-closed-door policy.
Roe focuses on District’s failure to enforce its policies.
There are two components to her claim: She contends (1) there
was actual knowledge of her lunches with Park or (2) District
should have known Park was grooming Roe. As discussed below,
Roe did not show that District failed to take reasonable measures
to protect her from injury.
a. No Evidence of Actual Knowledge of Misbehavior
Roe concedes that respondents did not see Park’s
misbehavior: He did not say inappropriate things to her in front
of others and she did not report him. Instead, she asserts that
respondents knew Park was grooming her for abuse because
teacher Ackerman “knew about Park’s daily lunches with her.”
She argues, “[T]he evidence showed Ackerman was in an
adjoining classroom with a line of sight into Park’s classroom.”
Ackerman was required to report Park’s suspicious behavior.
9
The record does not support Roe’s claim. Without
testimony or a declaration from Ackerman, Roe invites us to
speculate and conjecture whether he knew about her lunches
with Park.3 Roe testified that she “would see [Ackerman] from
time to time,” without saying if it was before lunch, during lunch,
or in class. Assuming Roe saw Ackerman at lunch, the record
does not show Ackerman saw Roe. Roe’s testimony proves
nothing.
The pages Roe cites do not say there is “a line of sight”
between the classrooms. Roe testified that the classrooms have
“a storage area” between them, without explaining how this
affords a view from one room to another. If the sight line is
through a window or open door, we do not know if Ackerman, in
his classroom, looked through the window or door at Park and
Roe. Nor do we know if Ackerman could see if they were alone,
with the door closed, or with others.
Roe argues that “Ackerman also observed Park dropping in
on his AP Chemistry class to visit [Roe]” four or five times. Once
again, Roe speculates what Ackerman saw or heard. The page
Roe cites does not say Park “interrupted the class for no other
reason than to talk to [Roe].” No one, including Roe’s peers,
attested to any interruptions. Instead, Roe testified that Park
walked into the class. She did not specify whether this occurred
before or during instruction or after it ended, or whether Park
spoke to other AP chemistry students. The record does not show
he favored her in a manner that mandated a report.
3 Counsel told the trial court that Ackerman was deposed.
His testimony was not offered in support of or in opposition to the
summary judgment motion.
10
The facts here do not compare to those in Doe v. Lawndale
Elementary School Dist. (2021) 72 Cal.App.5th 113. In that case,
peers of a middle school victim testified that a teacher “always
sat or stood next to” the victim, in a class he did not teach; he
tickled, hugged and “ ‘flirted’ ” with her; had her sit on his lap
with her head on his shoulder; it was “ ‘obvious’ ” they were a
“ ‘couple’ ” or had a “ ‘girlfriend/boyfriend-type’ ” relationship.
(Id. at p. 122.) Roe’s case lacks these obvious red flags.
Roe asks us to infer that because she saw Ackerman “from
time to time” he presumably saw her with Park. On this record,
it is unreasonable to infer that Ackerman looked in Roe’s
direction. “[A] district’s liability must be based on evidence of
negligent hiring, supervision or retention, not on assumptions or
speculation.” (C.A., supra, 53 Cal.4th at p. 878.) We decline to
speculate or assume that Ackerman saw Roe lunching with Park.
The one certainty seems to be that Ackerman never reported any
suspicious behavior. The record does not allow a conclusion that
respondents had actual knowledge of grooming behavior.
b. No Evidence District Should Have Known of Misconduct
Roe contends that respondents should have known of
Park’s nefarious intent because school personnel “patrolled the
school at lunch to prevent teachers from spending time alone
with students [which] gave them numerous opportunities to
discover Park was grooming [Roe] by spending lunches alone
with her in his classroom.”4 Roe asserts that District failed to
4 Roe does not claim the abuse was foreseeable because
Park had a history of sexual abuse. (Virginia G. v. ABC Unified
School Dist. (1993) 15 Cal.App.4th 1848, 1855 [district may be
liable for sexual misconduct of a teacher who was previously fired
from another school for sexual misconduct with students].) Roe
11
“patrol the school grounds to disrupt teachers and students
spending time alone together in a classroom.”
Roe suggests that District should keep doors open if class is
not in session or have staff members check behind closed doors
while patrolling. However, the law does not require “round-the-
clock supervision or prison-tight security for school premises.”
(Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d
492, 500.) Roe cites no policy requiring open doors or checking
behind doors. McReynolds testified that administrators “walk
the campus” but do not check behind closed doors “because we’re
a big campus and I have students everywhere.”
Once respondents carried their initial burden of showing
they patrolled campus, Roe did not carry her burden of proving
the inadequacy of the patrols. She did not submit expert opinion
that respondents failed to take adequate measures. (See Jennifer
C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th
1320, 1330–1331 [safety expert opined that school patrols were
inadequate for a vulnerable special needs student who was
sexually assaulted in a stairwell alcove by another student]; Doe
v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at
p. 122 [expert declared that a teacher’s “ ‘open and obvious’ ”
predatory behavior “ ‘clearly gave rise to an appearance of
impropriety,’ ” and given the seriousness and frequency of that
behavior, supervisors failed respond to “ ‘red flags’ ”].)
Having lunch is not proof of misconduct. Sexual
misconduct is not “foreseeable any time a minor and an adult are
alone in a room together.” (John R. v. Oakland Unified School
conceded below that respondents “had no knowledge that Park
had previously sexually or physically abused anyone.”
12
Dist. (1989) 48 Cal.3d 438, 450, fn. 9.) It is undesirable to impose
liability on a school district for allowing “one-on-one contacts
between teachers and students.” (Id. at p. 451; C.A., supra, 53
Cal.4th at p. 878.) Though Park violated District policy against
meeting a student behind a closed door, there is no evidence that
respondents were aware of it or that it would have made a
difference if they knew. Roe testified that no sexual misconduct
occurred during lunch, when she and Park discussed school, her
parents and home life.5
4. Summary Judgment Was Properly Granted
It is undisputed that Roe never reported sexual texts Park
sent her after school hours, her visit to his home, or his classroom
kiss. Respondents first learned of these events in 2015, after
Roe’s graduation. She knew Park’s behavior was inappropriate
when it occurred in 2010–2011 but did not disclose it.
Respondents owed Roe a duty to use the degree of care
which a person of ordinary prudence, charged with comparable
duties, would exercise in the same circumstances. (C.A., supra,
53 Cal.4th at p. 869.) There is no evidence from which a trier of
fact could reasonably conclude that respondents could foresee a
likelihood of harm because they knew or should have known Park
was engaging in sexual misconduct. Roe did not show “ ‘a total
lack of supervision’ ” or “ ‘ineffective supervision’ ” amounting to
“ ‘a lack of ordinary care on the part of those responsible for
student supervision.’ ” (Ibid.)
5 Roe does not press her claim that respondents were
alerted to grooming when Park gave a student a birthday gift. It
appears that the gift was given after Roe graduated.
13
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
14