Case Number: BC657254 Hearing Date: February 07, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENIED

I. INTRODUCTION

This action arises out of injuries suffered by Plaintiff Victor Mejia (“Plaintiff”), a minor, while in physical education class. On October 12, 2017, Plaintiff filed his First Amended Complaint (FAC) against Defendants Lynwood Unified School District (“District”) and Dena Jackson (“Jackson”) (collectively, “Defendants”) for negligence and negligent hiring, supervision, and retention. Defendants move for summary judgment, or in the alternative, summary adjudication.

II. FACTUAL BACKGROUND

Jackson has worked in the District since 1990 (Undisputed Material Fact “UMF” No. 1) and has been a Physical Education (P.E.) teacher since 2005 (UMF No. 2). On April 7, 2016, Jackson was teaching a P.E. class at Cesar Chavez Middle School that included Plaintiff. (UMF No. 3.) Plaintiff’s class was playing a game called “Battlefield,” which is a version of the game “Tag” in the gymnasium. (UMF No. 5.) During the game, the students designated as taggers line up at one base line and the other students line up on the opposite end. When Jackson blew the whistle, the students ran from end to end trying to avoid a tag. If tagged, the student then sat on the gym floor and became a “landmine” and could reach out to tag students as they ran by. (UMF No. 6.) Plaintiff and his class had played the game Battlefield in Jackson’s P.E. class before. (UMF No. 10.)

The class played three games of Battlefield. (UMF No. 12.) During the third game, Plaintiff and another student, Le Diaz, were taggers. (UMF No. 13.) As Plaintiff was running and chasing another student to tag, he did not notice a student, Leo, had fallen in front of him. Leo was lying on his back with his knee sticking up in the air. (UMF No. 14.) Plaintiff tried to jump over Leo to avoid stomping on him, attempting to place his arm on Leo’s knee for balance. However, Plaintiff missed, fell forward, and his head struck Leo’s knee. (UMF No. 15.)

During the P.E. class, Jackson was seated in the same location during the entire class—on the bottom row of the bleachers towards the door at one end of the gym. (UMF No. 16.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections

Plaintiff’s Objection No. 4 is SUSTAINED as to misstates the testimony.

Plaintiff’s Objections Nos. 1, 2, 3, 5, 6, and 7 are OVERRULED.

V. DISCUSSION

Negligence

As framed by the FAC, Plaintiff alleges Defendants breached their duty of care to him by: (1) ordering Plaintiff and his classmates to participate in “Battlefield” in an inappropriate location; (2) ordering Plaintiff and his classmates to participate in “Battlefield” without providing adequate instruction; (3) ordering Plaintiff and his classmates to participate in “Battlefield” and failing to supervise them; (4) ordering Plaintiff and his classmates to participate in “Battlefield,” an inappropriate inherently dangerous activity for Plaintiff and his classmates. (FAC, ¶ 33.)

“‘While school districts and their employees have never been considered 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. [Citations.]” [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is idenitcal to that required in the performance of their other duties. 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.] 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. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 869.)

Further, a school district and its employees have a special relationship with the district’s pupils arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel. (C.A., supra, 53 Cal.4th at p. 869.) Based on this special relationship, school personnel must take reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. (J.H. v. Los Angeles Unified School District (2010) 183 Cal.App.4th 123, 128-129.)

Defendants argue Jackson was present during the P.E. class and was monitoring students. Therefore, this is not a case of “total lack of supervision.” (See e.g., Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741, 750.) Defendants also argue “Battlefield” is not a dangerous activity because: (1) it was played on multiple occasions prior to this incident, (2) it originated from the California Physical Education Recreational Deparatment Conference, (3) it satisfied the cardiovascular, muscular endurance, running, and hand/eye coordination standards set forth by the State, and (4) Plaintiff testified that he had never seen any type of injury that required an ambulance, broken or sprained arms or ankles, or anyone losing consciousness, despite having played “Battlefield” in Jackson’s class before. Defendants argue this shows the game is not inherently dangerous. Finally, Defendants argue Plaintiff cannot prove lack of supervision by Jackson caused his injuries.

Defendants have not met their initial burden of showing a triable issue of fact does not exist as to the negligence cause of action. First, as framed by the FAC, Plaintiff alleged the game was inherently dangerous, that it was played in an inappropriate location, that there was inadequate instruction given, and that Jackson failed to properly supervise the class. Defendants do not address all these allegations, only lack of supervision and inherent danger. Second, that the game was played on prior occassions and did not result in injury does not, as a matter of law, mean the game is not inherently dangerous. Third, Defendants do not submit competent evidence that the game originated from the California Physical Education Recreational Department Conference. Defendants contend Jackson received the rules and lesson plan for “Battlefield” from another teacher, Ms. Baker, who had attended the California Physical Education Recreational Department Conference. Defendants submit no declaration by Ms. Baker authenticating the lesson plan attached as Exhibit F. Even if they had authenticated the lesson plan, they submit no evidence that compliance with California Physical Education Recreational Department means, as a matter of law, that the activity is not dangerous. Similarly, that the activity may have cardiovascular, muscular, and other health benefits does not mean it is not a dangerous activity or that it was not played in a dangerous way in the gymnasium on the date of the incident.

It remains an issue for the trier of fact to determine whether “Battlefield,” where it was played, how it was instructed, and how it was supervised, was dangerous. If “Battlefield” is found to be a dangerous activity and that Jackson breached her duty of care by having the students play it, a reasonable trier of fact could also conclude that Jackson caused or contributed to Plaintiff’s injuries.

As Defendants have failed to meet their initial burden as to negligence, they are not entitled to summary adjudication as to the First Cause of Action.

Negligent Hiring, Supervision, and Retention

The District offered to admit vicarious liability in the event a jury finds Jackson was negligent. (UMF No. 4.) Therefore, Defendants argue, Plaintiff’s second cause of action for negligent hiring, supervision, and retention should be barred. In Diaz v. Carcamo (2011) 51 Cal.4th 1148, the California Supreme Court held that where a plaintiff asserts both a negligence claim against an employee and a negligent hiring and retention claim against the employer, and the employer admits vicarious liability, that admission bars plaintiff from further pursuing claims for negligent entrustment, hiring, and retention. (Diaz, supra, 51 Cal.4th at p. 1158.) The Court stated that if an employer offers to admit vicarious liability for its employee’s negligence, then claims against the demployer based on theories of negligent entrustment, hiring, or retention become superfluous. (Id. at p. 1160.) To hold otherwise would subject an employer to a share of fault in addition to the share of fault assigned to the employee, for which the employer has already accepted liability. (Ibid.)

Based on Diaz, Defendants have met their burden of showing they are entitled to summary adjudication as to the Second Cause of Action. Plaintiff does not contest the holding of Diaz or that District offered to admit vicarious liability. Instead, Plaintiff argues District’s concession should not be used as a premature motion in limine to exclude evidence of prior evaluations of dangeorus activies that Jackson required of her students. This argument does not address the viability of a negligent hiring and supervision claim in light of Diaz. Therefore, District is entitled to summary adjudication as to the Second Cause of Action.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED. Summary adjudication is DENIED as to the first cause of action for negligence and GRANTED as to the second cause of action for negligent hiring, supervision, and retention.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTIONS TO
COMPEL (1) PLAINTIFF’S AUTHORIZATION FOR RELEASE OF RECORDS, (2) A PHYSICAL
EXAMINATION, AND (3) A NEUROPSYCHOLOGY EVALUATION

This
action arises out of injuries suffered by Plaintiff Victor Mejia (“Plaintiff”),
a minor, while in physical education class.
On October 12, 2017, Plaintiff filed his First Amended Complaint (FAC)
against Defendants Lynwood Unified School District (“District”) and Dena
Jackson (“Jackson”) (collectively, “Defendants”) for negligence and negligent
hiring, supervision, and retention.
Defendants move to compel: (1) Plaintiff’s authorization for release of
therapist notes, production of documents, and a deposition of the therapist;
(2) a physical examination by Jerry Seabag, M.D., an ophthalmologist; and (3) a
neuropsychology examination by Hope E. Goldberg, Ph.D.; and monetary sanctions.

A. Authorization for Release of Records,
Production of Documents, and Deposition

In
responses to written discovery, Plaintiff stated he sought treatment at the Tessie
Cleveland clinic, and Taylor Henderson rendered psychological treatment. (Declaration of Terence J. Gallagher, ¶
4.) On July 10, 2018, Defendants served
a subpoena for business records on Tessie Cleveland for records pertaining to
Plaintiff’s emotional distress and depression.
(Gallagher Decl., ¶ 5.) Tessie
Cleveland did not serve responses or objections and did not seek a protective
order. (Gallagher Decl., ¶ 6.) After communicating both with Tessie Cleveland
and Plaintiff’s counsel, Plaintiff agreed to sign an authorization to release
records, which was sent directly to Tessie Cleveland. However, Defendants learned that Plaintiff
issued only a limited release, despite never having served an objection to the
subpoena for records. (Gallagher Decl.,
¶¶ 8-10.) Tessie Cleveland eventually
produced some documents to Plaintiff.
Plaintiff apparently reviewed the documents and sent some documents on to
Defendants. (Gallagher Decl., ¶¶
14-15.) It is unclear whether Plaintiff
forwarded all of the documents to Defendants.
Tessie Cleveland provided a privilege log listing one document. (Gallagher Decl., Ex. G.)

Later
Defendants served a subpoena for the deposition of the therapist. (Gallagher Decl., ¶¶ 5, 17.)

On
January 2, 2019, Defendants filed and served a motion for an order compelling
Plaintiff to sign authorization for the release of the records and the
deposition of Ms. Henderson. On January 15, 2019, Defendants served an amended
notice of motion and motion to compel Plaintiff to sign a release, compel Tessie
Cleveland to produce records, and compel the deposition of Taylor Henderson,
which was personally served on Plaintiff and Tessie Cleveland.

Release

Plaintiff
states he already signed a release prepared by Tessie Cleveland authorizing the
release of his records. Tessie Cleveland
decided to withhold some documents as privileged despite Plaintiff’s release. Plaintiff says he can do nothing to force
Tessie Cleveland to produce the withheld documents.

This Court does not have express
authority under the Discovery Act to compel a plaintiff to sign an
authorization for release of records.
Case law on this particular issue is limited and that which does exist
is not clear. For example, in Miranda v. 21st Century Ins. Co. (2004)
117 Cal.App.4th 913, the appellate court upheld the dismissal of an action
where the plaintiff failed to comply with the court’s order to sign an
authorization for release of records. (Id. at pp. 918-919.) However, in a footnote, the court stated it
was not clear why the defendant moved to compel an authorization rather than
compel compliance with a subpoena. (Id. at p. 918, fn. 2.) And, in any event, ordering Plaintiff to sign
another release would appear to be futile here because Plaintiff says he
already authorized the release of his records.
Accordingly, the motion to compel Plaintiff to sign a release is DENIED.

Deposition

Plaintiff does not oppose the request
that Ms. Henderson appear for a deposition.
To the contrary, he states she is available for a deposition and no
further authorization is necessary. However,
Tessie Cleveland submitted a statement in response to the motion stating Ms.
Henderson will not appear for a deposition without authorization from
Plaintiff.

Plaintiff’s express statement in the
motion papers that he did not object to the deposition notice and does not
oppose the deposition is sufficient authorization for Ms. Henderson to appear
for a deposition. Further, Tessie
Cleveland did not show that all potential deposition topics call for the
disclosure of privileged communications. According to Plaintiff and Tessie Cleveland,
the clinic has produced at least some documents, meaning that non-privileged
topics of inquiry exist. Whether
Defendants may pose questions to Ms. Henderson at her deposition that may call
for privileged information cannot be determined prospectively, and the Court
will not try to predict what may occur at the deposition. The Court is confident that counsel on all
sides will conduct the deposition professionally, including exercising
objections and instructions not to answer properly. Accordingly, the motion to compel the
deposition is GRANTED and Ms. Henderson is ordered to appear for a deposition
pursuant to the subpoena.

Documents

Plaintiff also does not oppose the
request that Tessie Cleveland be ordered to produced documents and states he
has already authorized the release of the documents. Tessie Cleveland states that it has produced
all documents subject to production pursuant to the subpoena, except for the
one document on its privilege log consisting of Ms. Henderson’s psychotherapy
session notes. Tessie Cleveland is
withholding the notes based on its determination that access to those records
by the minor’s representative would have a detrimental effect on Plaintiff’s
therapy, psychological well-being, and relationship with his therapist.

Defendants state Tessie Cleveland did
not produce all documents and suggest Plaintiff withheld documents. It is unclear whether Tessie Cleveland
produced all documents responsive to the subpoena except for the one document
on the privilege log.

Defendants also argue Tessie
Cleveland did not serve objections or file a motion for a protective order (or
a motion to quash) in response to the subpoena, and therefore waived any
objections. It appears Plaintiff did not
object either. To preserve objections to
a subpoena, a non-party may move to quash the subpoena or simply object. (Monarch
Healthcare v. Superior Court (200) 78 Cal.App.4th 1282, 1284.) “[B]y statute, ‘ “[t]he protection of
information from discovery on the ground that it is privileged . . . is waived
unless a specific objection to disclosure is timely made during the
deposition.” ’ [Citation.]” (Unzipped Apparel, LLC v. Bader 156
Cal.App.4th 123, 132.) The motion papers
do not reveal any specific objection to disclosure timely made by Tessie
Cleveland or Plaintiff by the date for production of documents pursuant to the
subpoena, or thereafter.

In addition, and regardless of potential
waiver, Defendants contend Plaintiff put his mental condition and treatment at
issue by claiming emotional distress and psychological injuries sustained as a
result of the incident. A claim for pain
and suffering does not automatically place a plaintiff’s mental condition at
issue. (Davis v. Superior Court 7 Cal.App.4th 1008, 1016.) However, when the pleadings or discovery
responses directly place the plaintiff’s mental condition at issue by seeking
damages for emotional injuries, the production of otherwise privileged or
private information about the plaintiff’s mental condition may be
appropriate. (Id. at p. 1017; In re
Lifschutz 2 Cal. 3d 415, 431.) In
discovery responses, Plaintiff stated he suffers from symptoms of depression
and emotional distress resulting from the incident, which are getting
worse. (Gallagher Decl., Ex. A at p. 4.) Plaintiff’s treatment with Ms. Henderson
started after and as a result of the incident.
Thus, this case does not present a situation of general pain and
suffering allegations arising from a physical injury. Here, the alleged mental injury is a direct
result of the incident and is itself the primary injury, along with vision problems. Notably, Plaintiff and Tessie Cleveland do
not contend that Plaintiff’s mental condition and psychological injuries are
not directly at issue.

Instead, Tessie Cleveland argues it
cannot produce the documents under Welfare and Institutions Code section
5328. That section allows the production
of documents when a parent or guardian ad litem designates in writing persons
to whom the records may be disclosed.
Plaintiff states the guardian ad litem already provided that
authorization to Tessie Cleveland.
Tessie Cleveland avoids this question, not mentioning anything about
already receiving an authorization for the release of records. Because Plaintiff contends Tessie Cleveland
already has the authorization, section 5328 is no barrier to the production of
documents.

Tessie Cleveland also argues that Jaffee v. Redmond (1996) 518 U.S. 1, 18, prohibits disclosure of
psychotherapy notes in all circumstances even pursuant to a court order. According to the clinic’s argument, the notes
are absolutely privileged and can never be produced. That case does not go that far. The case holds that confidential
communications between a psychotherapist and patient in the course of treatment
are protected under Federal Rule of Evidence 501. (Id.
at p. 15.) Rule 501 provides state law
governs privilege regarding a claim or defense for which state law supplies the
rule of decision. Thus, California state
law applies to this privilege question. And as discussed above, California law allows
the production of privileged psychotherapist communications in certain
circumstances, which are present here.

Tessie Cleveland and Defendants
suggest that at the heart of the clinic’s withholding of the therapy notes is a
determination by the therapist that release of the notes to Plaintiff’s mother
(his guardian ad litem) will be harmful.
Tessie Cleveland states it is withholding the notes under Health and
Safety Code section 123115, which allows a health care provider to determine
that access to the records by a minor’s representative would have a detrimental
effect. If that is the case, the notes
can be produced subject to a protective order limiting access to them.

The motion to compel the production
of documents by Tessie Cleveland is GRANTED as follows. Tessie Cleveland is to confirm that it has
produced to Defendants all documents responsive to the subpoena, except for the
document listed on the privilege log. If
other responsive documents exist and have not been produced to Defendants, they
are to be produced. As for the document
on the privilege log, Tessie Cleveland is to produce the document subject to a
protective order restricting the dissemination and use of the document and
allowing only the therapist who created the notes, the attorneys for the
parties, and the parties’ retained psychotherapy experts to access the
document.

The
request for sanctions on the motion to compel the release and documents and a
deposition from Tessie Cleveland is DENIED.
Defendants did not establish that Plaintiff prevented the third party’s
production of documents and the deposition.

B. Ophthalmology Examination

In
any case in which a plaintiff is seeking recovery for personal injuries, any
defendant may demand one physical examination of the plaintiff where: (1) the
examination does not include any diagnostic test or procedure that is painful,
protracted, or intrusive; and (2) the examination is conducted at a location
within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).)

Plaintiff
claims an eye injury that involves microscopic tissues and retinal scarring in
the back of his eye. Defendants seek an
IME with Dr. Jerry Seabag. Plaintiff
filed no opposition to this Motion. The
Court finds good cause for the ophthalmologic examination. The Motion to compel Plaintiff’s examination
with Dr. Seabag is GRANTED. Plaintiff is
ordered to appear on February 20, 2019 from 1:00 p.m. to 3:00 p.m. at the VMR
Institute located at 7677 Center Avenue, Suite 400, Huntington Beach, CA 92647.

C. Neuropsychology Examination

Where
any party seeks to obtain discovery by a physical examination other than that
described in Section 2032.220, or by a mental examination, the party shall
obtain leave of the court. (Code Civ.
Proc., § 2032.310, subd. (a).) A mental
examination shall be performed only by a licensed physician, or by a licensed
clinical psychologist who holds a doctoral degree in psychology and has had at
least five years of postgraduate experience in the diagnosis of emotional and
mental disorders. (Code Civ. Proc., §
2032.020, subd. (c)(1).) The Court shall
grant the motion only for good cause shown.
(Code Civ. Proc., § 2032.310, subd. (a).)

Plaintiff
alleges he has suffered traumatic brain injury with severe vision
limitation. Defendants seek a
neuropsychological examination to evaluate the traumatic brain injury and
ongoing behavioral and cognitive impacts.
Plaintiff filed no opposition to this Motion. The Court finds good cause for the
neuropsychology evaluation and Dr. Goldberg meets the necessary
qualifications.

The
Motion to compel Plaintiff’s neuropsychological examination with Dr. Goldberg
is GRANTED. Plaintiff is ordered to
appear on February 15, 2019 at 9:00 a.m. at Dr. Goldberg’s office located at
595 E. Colorado Blvd., Suite 334, Pasadena, CA 91101. The examination shall last no longer than
nine (9) hours, including breaks, and shall occur on one day only. The examination will be limited to the
following tests: Wechsler Intelligence Scales for Children-IV or V; California
Verbal Learning Test—II; Delis Kaplan Executive Function Scales; Controlled
Oral Word Association Test; Digit Symbol Modality; Trailmaking Test; Finger
Tapping; Grip Strength/Dynamometer; Peabody Picture Vocabulary Test-4’h
Edition; Finger Agnosia; Wechsler Individual Achievement Test; Wide Range
Achievement Test—IV; Word Memory Test; Rey Auditory Verbal Learning Test; Rey
Complex Figure Test; Child and Adolescent Memory Profile; Minnesota Multiphasic
Personality Inventory—A—RF; Millon Adolescent Clinical Inventory; Milton
Adolescent Personality Inventory; Stroop Color-Word Test; Warrington
Recognition Memory; Rey 15 Item Memory Test; Modified Somatic Perception
Questionnaire; Rey Word Recognition; Wisconsin Card Sorting Test.

Moving
party to give notice.