Re: ????? ??????????? ??????????? ??????????? A.U. v. Monson-Sultana Joint Union Elementary School???????????????????????????????????????????????? District?
Superior Court Case No. 15 CECG 02240
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Hearing Date: ?????????? ??????????? If Requested: December 21, 2017 @ 1:30 p.m. (Dept. 402)
Motion: ????????? ??????????? ??????????? By Defendant for summary judgment, or in the
alternative, summary adjudication
Tentative Ruling:
?To deny the motion for summary judgment.? A triable issue of material fact exists as to Blancas? mental state such that his conduct toward the Plaintiff may fall within the exception to the claims filing requirement of CCP ? 340.1.? See Facts Nos. 23, 24, 26-37, 41, 54 and 56 of the Defendant?s Separate Statement.
To deny the motion for summary adjudication of the fifth, sixth and seventh causes of action.? A triable issue of material fact exists as to whether the actions of the former principal, Giampietro regarding his failure to obtain a copy of the Sherriff?s Report dated September 14, 1995 and his acceptance of Blancas? explanation of the incident were negligent.? See Facts Nos. 66-71 of the Defendant?s Separate Statement.
Thus, the Defendant has not met its burden of proof pursuant to CCP ? 437c (p) (2).? ?There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor.?? See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.? Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply.? It is further unnecessary to rule on the evidentiary objections.
Explanation:
SUMMARY JUDGMENT
Purpose of Summary Judgment
Summary judgment law turns on issue finding rather than issue determination. [Diep v California Fair Plan Ass’n (1993) 15 Cal.App.4th 1205, 1207.] The court does not decide the merits of the issues, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. [Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.]? In short, the motion is not a substitute for a bench trial.
Claim Filing Exception for Childhood Sexual Abuse
As a matter of law, claims for childhood sexual abuse damages pursuant to CCP ? 340.1 arising from conduct occurring on or after January 1, 2009 are specifically excepted from the claim filing requirement. [Gov. Code ? 905(m); see A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1257-1264, fn. 4]
CCP ? 340.1 ?Childhood sexual abuse; certificates of merit executed by attorney; violations; failure to file; name designation of defendant; periods of limitation; legislative intent? states in relevant part:
(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:
- An action against any person for committing an act of childhood sexual abuse.
- An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
- An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
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- ?Childhood sexual abuse? as used in this section includes any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; Section 647.6 of the Penal Code; or any prior laws of this state of similar effect at the time the act was committed. Nothing in this subdivision limits the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.
- Nothing in this section shall be construed to alter the otherwise applicable burden of proof, as defined in Section 115 of the Evidence Code that a plaintiff has in a civil action subject to this section.
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Thus, CCP ? 340.1 creates a special set of statutes of limitations for childhood sexual abuse cases. For purposes of CCP ? 340.1, ?childhood sexual abuse? includes any act committed by a defendant against a plaintiff when the plaintiff was under age 18 and that is forbidden by various penal statutes?i.e., generally, incest (Penal. Code ? 285), sodomy (Penal Code ? 286(b)-(c)), lewd or lascivious acts (Penal Code ?? 266j, 288(a)-(b)), oral copulation (Penal Code ? 288a(b)-(c)), penetration of genital or anal openings with a foreign object (Penal Code ? 289(h)-(j)) or child molestation or annoyance (Penal Code ? 647.6). [CCP ? 340.1(e)]
Importantly, the prohibition against annoying or molesting a child is violated by conduct that a normal person unhesitatingly would be irritated by and is motivated by unnatural or abnormal sexual interest in the victim; touching is not a required element. (Ruelas v. Superior Court of Monterey County (2015) 233 Cal.App.4th 594.? As used in this prohibition, the words ?annoy? and ?molest? are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person.? (Id. )
In addition, for purposes of the offense of annoying or molesting a child, ordinarily, the annoyance or molestation which is forbidden is not concerned with the state of mind of the child but it is the objectionable acts of defendant which constitute the offense, and if the defendant’s conduct is so lewd or obscene that the normal person would unhesitatingly be irritated by it, such conduct would ?annoy? or ?molest? within the purview of the statute.? In Re D.G. (2012) 208 Cal.App.4th 1562.? As a result, the words ?annoy? and ?molest? are synonymous and refer to conduct designed to disturb or irritate, especially by continued or repeated acts, or to offend, and they ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation on the part of the offender.? Id.?
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MERITS?
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?????????????????? Here, the Defendant sets forth the various acts that Blancas committed upon
A.U. See Facts Nos. 23, 24, 26-37, 41, 54 and 56 of the Defendant?s Separate Statement.? In a ?nutshell?, Defendant submits that the acts consisted ?only? of butt smacks, face to face hugs in which Blancas lifted the Plaintiff up, Blancas rubbing A.U.?s inner thigh and stomach, tickling his stomach, and a ?single? kiss on the forehead.? See Fact No. 23.? Defendant submits that Blancas did not squeeze A.U.?s bottom, did not touch his penis, only tickled him over his clothing, and did not touch his genitals when he rubbed his inner thigh.? See Facts No. 25, 33 and 34.
When A.U. changed into his school uniform in the classroom of Blancas, the latter was present only half the time and A.U. left his underwear on.? See Fact Nos. 36 and 37.? Blancas purchased underwear for A.U. and six times asked him if he was wearing the underwear.? On these occasions, Blancas pulled up A.U.?s shirt and put his fingers on the underwear to see if they fit.? See No. 41.
Finally, during the trip to Long Beach to see the Queen Mary, Plaintiff took a nap in between the visit to the ship and a midnight tour he and Blancas had planned. While Plaintiff was partially asleep, and his eyes were closed, Blancas got onto Plaintiffs bed. He then rubbed Plaintiffs ear, Plaintiffs stomach and then his leg near his crotch area. At that point, Plaintiff woke up.? See Fact No. 56.
The problem lies in the fact that the Defendant assumes that the Court can examine this evidence and make a determination whether the conduct falls within the purview of CCP ? 340.1(e).? Yet, whether the conduct falls within Penal Code ? 288(a)? Lewd Act with a Child under 14 years of age or Penal Code ? 647.6?Annoying or molesting child under 18 years of age, there is a mental component that only the trier of fact can determine; i.e., specific intent to arouse, appeal to or gratify the lust or passions or sexual desires of the perpetrator or the minor.? See People v. Valenti (2016) 243 Cal.App.4th 1140 at 1160 citing inter alia People v. Lopez (1998) 19 Cal.4th 282 as Penal Code ? 288(a) and Ruelas v. Superior Court of Monterey County (2015) 233 Cal.App.4th 594 as to Penal Code ? 647.6.? A determination regarding Blancas? mental state must be made by the trier of fact.? See Molko v. Holy Spirit Ass?n (1988) 46 Cal.3d 1092, 1107.
Therefore, the motion for summary judgment brought on the grounds that the Plaintiff failed to timely file a claim pursuant to Gov. Code ? 810 et seq. will be denied.? A triable issue of material fact exists as to whether Plaintiff falls within the childhood sexual abuse exception to the claims filing requirement.? See CCP ? 340.1 and Gov. Code ? 905(m).
As a result, the Defendant has not met its burden of proof pursuant to CCP ? 437c(p)(2).? ?There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor.?? See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.? Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply.? It is not necessary to rule on the evidentiary objections.
SUMMARY ADJUDICATION
Negligent Hiring, Supervision and Training
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Judicial Council of California Civil Jury Instruction [CACI] No. 426 ?Negligent Hiring, Supervision or Retention of Employee? provides:
[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:
- [That [name of employer defendant] hired [name of employee];]
- That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she] was hired/[specify other particular risk]];
- That [name of employer defendant] knew or should have known that [name of employee] [[was/became] [unfit/ [or] incompetent]/[other particular risk]] and that this [unfitness [or] incompetence/ [other particular risk]] created a particular risk to others;
- That [name of employee]?s [unfitness [or] incompetence/ [other particular risk]] harmed [name of plaintiff]; and
- That [name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]?s harm.
As a matter of law, an employer can be held liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)? Thus, ?[n]egligence liability will be imposed on an employer if it ?knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.? ? (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)
?Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.? (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)? ?To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.? (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.)? ?[A] public school district may be vicariously liable under [Government Code] 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.? (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.)
MERITS
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?Here, the District acknowledges that its former Principal, Thomas Giampietro was made aware by Detective Robison of a Sherriff?s Report dated September 14, 1995 involving David Blancas.? See Fact No. 66.? Giampietro contacted Robison in an attempt to obtain a copy of the report.? Later, he filed a Petition seeking disclosure of juvenile court records.? It was denied without prejudice for various defects.? When Giampietro learned from Robison that the charges had been ?dropped because of insufficient evidence,? he sought an explanation from Blancas.? He accepted Blancas? explanation but cautioned him ?never be alone in a room with a child again.?? See Facts Nos. 67-71.
To reiterate, the Defendant ask the Court to examine these facts and make a determination that Giampietro was not negligent.? But, this is the function of the trier of fact.? See Diep v California Fair Plan Ass’n (1993) 15 Cal.App.4th 1205, 1207. Regarding Giampietro?s actions, a triable issue of material fact exists as to whether his actions were negligent.? The motion for summary adjudication of the fifth cause of action will be denied.
As a procedural matter, the inclusion of the identical 79 ?undisputed facts? in the Defendant?s Separate Statement as to its motion summary adjudication of the fifth, sixth and seventh causes of action means that Defendants concede that each of these facts are material as defined by CRC Rule 3.1350(a)(2).? Thus, each of these facts can be considered in ruling on the motion for summary adjudication of each cause of action.? If a triable issue is raised as to any of these facts, the motion may be denied. [Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252]? Specifically, Facts No. 6671 create a triable issue of material fact as to whether Mr. Giampietro was negligent in his decision to accept Blancas? explanation regarding the Sherriff?s Report and to not investigate further.? As a result, a triable issue of material fact exists as to the sixth and seventh causes of action as well.?? The motion for summary adjudication will be denied.
Accordingly, the Defendant has not met its burden of proof pursuant to CCP ? 437c(p)(2).? To reiterate, ?[t]here is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor.?? See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.? Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply.? Nor is it necessary to rule on the evidentiary objections.
Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ???????????????JYH?????????????????????????? on ???????12/20/17???????????????? .
(Judge?s initials) ?????? ??????????????(Date)