2016-00204753-CU-PO

AV Doe vs. Joshua Rolando Vasquez

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Nott, Ross R.

Defendants Sacramento City Unified School District and Rosario Guillen-Jovel’s motion for summary judgment, or in the alternative, summary adjudication, is ruled upon as follows.

In this action Plaintiff A.V. Doe, a minor, alleges that she was the victim of sexual abuse perpetrated by Defendant Joshua Vasquez during her attendance at an after school program at a Sacramento City Unified School District elementary school. Plaintiff alleges causes of action against moving Defendants and others for Negligent Supervision, Investigation and Retention of an Employee, Negligent Supervision of Plaintiff, a minor, the 3rd for Negligence and Negligent Failure to Warn.

Both Plaintiff and the City of Sacramento have opposed the instant motion.

Any party may move for summary judgment in any action or proceeding if the party contends that (1) the action or proceeding has no merit or (2) there is no defense to the action or proceeding. CCP 437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or a defendant establishes an affirmative defense to that cause of action. CCP §437c(o).

The Court must grant a motion for summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35). Section 437c(c) imposes an affirmative duty on a Court to grant summary

judgment motion in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. ( Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 404).

Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. ( Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830). In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process.The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. ( Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) A party may not raise new issues in a declaration submitted in connection with a summary judgment motion. Lewinter v Genmar Indus., Inc. (1994) 26 Cal. App. 4th 1214, 1223.

Next, the Court is required to determine whether the moving party has met its burden. A plaintiff moving for summary judgment meets its burden of showing that there is no defense to its cause of action by proving each element of its cause of action. CCP §437c(p)(1). It is no longer required also to disprove any defense asserted by the defendant. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:235, p. 10-89 (rev. # 1, 2006) [when plaintiff moves for summary judgment “[u]nlike former law, it is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant”].) If the plaintiff does so, the burden shifts to the defendant to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the defendant cannot rely on the mere allegations or denial of its pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists … .” (Code Civ. Proc., § 437c, subd. (p)(1).) 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. [Fn. omitted.]” (Aguilar v. Atlantic Richfield Co., (2001) 25 Cal. 4th 826, 850.)

A defendant (or cross-defendant) moving for summary judgment meets its burden of showing that the plaintiff’s (or cross-complainant’s) cause of action has no merit by showing 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. CCP §437c(p) (2); Id. A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v. Advance, Group 400 (2001) 25 Cal 4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal 4th at 853-855).

Finally, the Court must determine whether the opposing party has met its burden. Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.) When the defendant has met its burden of production, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the plaintiff’ s cause of action or a defense to it. (CCP §437c(p) (2); Bowen v. Ziasun Technols., Inc.(2004) 116 Cal App 4th 777, 780.) In meeting this burden, a plaintiff may not rely on the mere allegations or denial of its pleadings to show that a triable issue of material fact exists but, instead, must set forth specific facts showing that a triable issue of material fact exists as to that cause of action or a defense to it. (CCP §437c(p)(2); Aguilar v. Atlantic Richfield, supra, 25 Cal. 4th at 849). The plaintiff or cross-complainant cannot simply point to an absence of evidence to avoid summary judgment. Borders Online LLC v State Bd. of Equalization (2005) 129 Cal. App. 4th 1179, 1192. The plaintiff must present concrete evidence of causation and damages. Wiz Tech, Inc. v. Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 14-15)

Defendants’ separate statement includes the following. The District is a public entity. Plaintiff was a student at Mark Twain Elementary School located within the District. At the time the complaint was filed she was 8 years old. The City of Sacramento operated an after school program called START which served Mark Twain and other elementary schools and was designed to provide tutoring and mentoring. Plaintiff was enrolled in START.

Defendant Joshua Vasquez was employed by the City as a START program leader. Mr. Vasquez did not engage in any sexual conduct with any student under his care until 2013-2014. Mr. Vasquez sexually abused Plaintiff on the Mark Twain campus starting in the 2013-2014 school year and continuing through November 2015. Mr. Vasquez was trained in mandated reporting of child abuse and knew what he was doing was wrong and that he would likely go to prison for life. He testified that he carefully planned and carried out the abuse so his victims nor anyone else would discover what he was doing. Plaintiff discovered that Mr. Vasquez was sexually abusing her on November 17, 2015.

Mr. Vasquez’s supervisor Lucia (“Jeanie”) Warren was the START site director at Mark Twain from 2007 until September 2015. She gave Mr. Vasquez positive job performance evaluations. In September 2014 Mr. Vasquez was assigned to room 27 at Mark Twain and was given a key. School policy required the door to remain closed and locked during school hours in case of an intruder situation. Ms. Warren had the master key. Ms. Warren regularly came to Mr. Vasquez’s classroom to observe him and the class. START coworkers visited the classroom daily to transfer or switch students between classes. Mr. Vasquez chose times he knew Ms. Warren was busy to abuse the students. Mr. Vasquez was also employed part-time by the District as a yard duty and to supervise children at lunch.

Defendant Guillen-Jovel was employed by the District as Mark Twain’s principal. She was Ms. Warren’s contact and Ms. Warren checked with Defendant Guillen-Jovel daily. Defendant Guillen-Jovel had no knowledge nor suspicion of Mr. Vasquez sexually abusing students before being contacted by the police on November 18, 2015.

Mr. Vasquez and the custodian occasionally gave children candy as a reward for helping clean the cafeteria after lunch. Defendant Guillen-Jovel observed Mr. Vasquez perform his yard duty role and noted that he was respectful and cordial and professional. Mr. Vasquez did not sexually abuse any of the students who volunteered at lunch to clean the cafeteria.

During the 2014-2015 year, Laura Russell, a parent of a Mark Twain student, met with Defendant Guillen-Jovel. Mrs. Rusell testified that she told Defendant Guillen-Jovel that her daughter said that Mr. Vasquez was giving some girls candy for helping on the playground and referred to them as his secret helpers. Mrs. Russell testified that she also told Defendant Guillen-Jovel that her daughter said that Mr. Vasquez also said he had a secret office and they could go there to get candy but it was to be kept secret. Defendant Guillen-Jovel met with Mr. Vasquez and he admitted he gave a female student candy but denied referring to a secret place. She asked Mr. Vasquez to discontinue the candy reward system and use another reward system instead.

Mr. Vasquez covered the windows in room 27 for a Halloween haunted house and left them covered. He used a video camera to videotape his sexual abuse. He also used the camera as part of class to help students make movies. Ms. Warren knew Mr.

Vasquez had a video camera but was not concerned because he told her he studied movie-making and she saw him filming a movie once in the library with START students. Program leaders were encouraged to incorporate their skills into the classroom curriculum and she considered the camera part of his skill set. Defendant Guillen-Jovel also knew of the camera and was not concerned.

Mr. Vasquez kept a refrigerator in room 27 in which he stored water bottles, whipped cream and blindfolds. He used these items in “games” in sexually abusing Plaintiff. Defendant Guillen-Jovel was unaware of the refrigerator or the use of the items in the refrigerator.

Mr. Vasquez occasionally took START students out of class to help with START events. It was a common practice and he always asked permission of the teacher and always asked for more than one student. Mr. Hartin a teacher at Mark Twain permitted his students on occasion to go with Mr. Vasquez to assist him during recess. Mr. Vasquez always asked for two or more students, both boys and girls. Mr. Hartin never saw Mr. Vasquez touch a student inappropriately and was not suspicious of him.

Mr. Vasquez had a sign on his door stating “Mr. Josh START room Knock hard!” Ms. Warren was aware of the sign. Defendant Guillen-Jovel does not recall seeing it but would not have been concerned because all classroom doors locked automatically.

Defendant Guillen-Jovel was up to date on her annual training including Mandated Reporter/Child Abuse Training. Each year Mr. Vasquez worked with the START program at Mark Twain he had to apply for the position, undergo fingerprinting/background check and mandated reporter/child abuse training. He was provided with the District’s notifications regarding Mandated Child Abuse Reporting obligations each year.

The District did not offer training to employees regarding identifying pedophile grooming behaviors including how to spot those behaviors, combat those behaviors or respond to them. Mandated Reporter training focuses on what to do once abuse has occurred, is suspected to have occurred and how to report the abuse to authorities.

Plaintiff first started attending Mark Twain in October 2014 as a second grader. In the 2015/2016 year she was a third grader.

First Cause of Action (Negligent Supervision, Investigation and Retention)

Defendants move for summary adjudication on the basis that Plaintiff cannot show that the District had actual knowledge of Mr. Vasquez’s propensity to engage in sexual molestation prior to the discovery of his abuse. Defendants essentially argue that they did not breach any duty owed to Plaintiff.

The Govt. Code expressly requires proximate causation for recovery against a public entity. (Govt. Code, § 815.2, subd. (a).) Pursuant to Government Code § 815.2, school districts may be vicariously liable for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually abused a student. ( C.A. v. William S. Hart Union School Dist. (2012) 53 Cal.4th 861.) “If a supervisory or administrative employee of the school district is proven to have breached [his or her] duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.” (Id. at 866.)

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.]” (Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600; Ed. Code, § 13557. In part because of the compulsory nature of education, there exists a special relationship between school districts and their students that results in the imposition of a mandatory duty on the district to take all reasonable steps to protect its students. ( M.W. v. Panama Buena Vista Union Sch. Dist. (2003) 110 Cal.App.4th 508, 517 [citing Cal. Const., art. I, sec. 28 and Cal. Educ. Code sec. 48200 [children between ages 6 and 18 are subject to compulsory, full-time education].) School districts are vicariously liable for the negligence of their employees responsible for student supervision. (See, e.g., Hoff v. Vacaville Unified Sch. Dist. (2008) 19 Cal. 4th 925, 932-33.) In J.H. v. Los Angeles Unified Sch. Dist. (2010) 183 Cal.App.4th 123, the Court of Appeal recited what it termed the “very, very well established” law with respect to public schools’ duty to supervise students on school premises:

“It is the duty of the school authorities 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.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect. [Citations.] What is ordinary care depends upon the circumstances of each particular case and is to be determined as a fact with reference to the situation and knowledge of the parties. [Citation] [Para.] 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.” (See J.H., 183 Cal.App.4th at 139-140, 143 [full citations omitted].)

“[W]here a school fails to provide supervision and an injury results from conduct that would not have occurred had supervision been provided, liability may be imposed. [Citations.] Where supervision is provided but the supervisor allows dangerous conduct to go on, liability may be imposed. [Citations.] [Para.] [T]he amount of care required of school personnel in supervising students is commensurate with the immaturity of their charges and the importance of their trust.” (Id. at 143, 146 fn. 10 [citations and additional quotation marks omitted].)

However, actual notice is not the standard despite Defendants’ arguments to the contrary. Indeed, the very case cited by the parties recognizing that a district may be vicariously liable specifically states that school supervisory employees “have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.” (C.A., supra, 53 Cal.4th at 871 [emphasis added].) Romero v. Superior Court (2001) 89 Cal.App.4th 1068, Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, and Chaney v. Superior Court (1995) 39 Cal.App.4th 152 cited by Defendants for the actual knowledge standard are inapplicable to this case as they dealt with criminal conduct by family members or guest that occurred in homes and not criminal conduct by a member of an organization that provided activities exclusively for children and in reality were analyzing the issue of whether a duty was owed in the first instance. The M.W. court declined to extend Chaney and Romero to school cases, saying that schools operate under public policies and statutes that are not applicable to private homeowners. (M.W., supra, 110 Cal.App.4th at pp. 524-525.)

Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1134-1135 rejected the actual knowledge standard in the context of analyzing whether a duty was owed by organizations providing activities exclusively for children.) That is not the issue on this motion as Defendants concede a duty was owed.

Defendants also cited Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 536 in support of their actual knowledge argument, but even their own citation to that case makes clear that the applicable standard here is knew or should have known the subject employee presented a risk of sexual abuse. (Id. at 548-549 [emphasis added].) Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, is not to the contrary and also sets forth a knew or had reason to know standard. As a result, the fact that Defendants may not have had actual notice of Mr. Vasquez’s sexual abuse does not demonstrate that Plaintiff cannot succeed on her claims.

Defendants ultimately appear to concede, as they must, that the appropriate standard is whether they knew or should have known that Mr. Vasquez posed a risk of sexual abuse as they specifically argue that any constructive notice standard must be strictly construed as set forth in Doe v. City of Los Angeles, supra, 42 Cal.4th 531.) It is true that the “reason to know” standard is a type of constructive notice which is not the same as inquiry notice and instead analyzes whether the “entity defendant has acquired actual knowledge of facts from which a reasonable person of ordinary intelligence, or one of the superior intelligence of the actor, would either infer, or consider highly probable, that the agent had previously committed an act of unlawful sexual conduct with the minor.” (Santillan, supra, 202 Cal.App.4th at 718 [citing Doe v. City of Los Angeles, supra, 42 Cal.4th at 545-549.) “[N]otice is measured by the facts known to the defendant-either knowledge of the fact of the prior unlawful conduct had occurred, or knowledge of facts from which such prior unlawful conduct should be inferred-not by facts which the defendant should have discovered or should have noticed.” (Deustch v. Masonic Homes of Calif., Inc. (2008) 164 Cal.App.4th 748, 775.) Contrary to Defendants’ arguments, however, this does not mean that the facts of which they must have been aware for purposes of this standard are facts of prior sexual misconduct, but rather facts from which such misconduct should or could be inferred. In fact the cited case rejected this very argument. (Doe v. City of Los Angeles, supra, 42 Cal.4th at 546-547.) There, the defendant argued that the “reason to know” standard was a form of “presumed actual knowledge” where “based on facts defendant actually knew, an inference can be drawn that he/she must have realized child abuse was occurring, because a reasonable person would have realized this under the circumstances. (Id. [emphasis in original].) The Court rejected that formulation and stated that the “reason to know” standard “does not require proof that a person must have inferred the existence of the ultimate fact but only, under the circumstances described above, that a person would have inferred the existence of the ultimate fact or would have regarded the existence of the ultimate fact as so highly probable as to have behaved in conformity with that belief.” (Id. at 547 [emphasis in original].)

Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, cited for the first time in reply is not to the contrary. It is true that the case states that “[t]o 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.” (Id. at 902.) But the case does not state that the “prior knowledge” means actual notice. Z.V. also cited to cases such as Romero v. Superior Court (2001) 89 Cal.App.4th 1068, Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, and Chaney v. Superior Court (1995) 39 Cal.App.4th 152 which were discussing whether a duty was owed in the first instance, not whether a duty was breached.

Here, assuming that Defendants’ evidence was sufficient to meet their burden, the Court finds that both Plaintiff and the City have demonstrated the existence of triable issues of material fact with respect to whether they had reason to know that Mr. Vasquez presented a risk of sexual abuse. To that end, as shown by the City in its opposition, Laura Russell, a parent of a Mark Twain student, testified that one night in 2015 she saw her daughter eating candy at the kitchen table and when she asked her daughter where she got the candy, the girl said “it’s a secret.” Mrs. Russell was able to find out that Mr. Vasquez had given her the candy. Mrs. Russell testified that her daughter told her that Mr. Vasquez had her and other girls doing certain tasks for which he would give them candy, referred to them as “secret helpers” and said that they could keep getting candy as long as they did not tell anyone. Mrs. Russell’s daughter also told her that Mr. Vasquez had a secret office and that she could go there to get candy from him and that she was told to keep it secret. (City’s AMF 1.) Mrs. Russell called the school the next day and asked to speak to Defendant Guillen-Jovel. (City’s AMF 3.) Mrs. Russell was told that Defendant Guillen-Jovel was not there and that she could come in to fill out a form if she wanted to speak with Defendant Guillen-Jovel. Mrs. Russell went to the school and filled out paperwork and received a call the same day to come back and meet with Defendant Guillen-Jovel. Mrs. Russell testified that she told Defendant Guillen-Jovel about the conversation with her daughter and how her daughter used the word “secret.” (Id.) Defendant Guillen-Jovel reportedly was annoyed that she would have to discuss this with Mr. Vasquez again. (Id.)

By contrast, Defendant Guillen-Jovel denied that Mrs. Russell used the word “secret” during her conversation. (City’s AMF 8.) Defendant Guillen-Jovel did acknowledge, however, that she knew the word “secret” is a red flag that would warrant further investigation. (Id.) She testified that if Mrs. Russell’s account was true, she would have been obligated to report these serious concerns to Human Resources, the START program and her supervisors.” (City’s AMF 10.) Defendant Guillen-Jovel did not report Mrs. Russell’s serious concerns to Ms. Warren, Human Resources of her own supervisors. (Id. 11.) Further, Defendant Guillen-Jovel shredded her notes from her meeting with Mrs. Russell. (Id. 12.) Plaintiff presents evidence that Defendant Guillen-Jovel also destroyed Mrs. Russell’s written complaint in August 2015. (Plf’s AMF 73.) Olga Sims, the District’s Instructional Assistant Superintendent testified that she would not have destroyed a parent complaint of a serious nature. (Plf’s AMF 75.) Defendant Guillen-Joval testified that Mrs. Russell’s concerns, if true, would have prompted an investigation and that she would not have destroyed any notes of that conversation because it was a serious allegation and agreed that the described conduct was “100 percent inappropriate.” (Plf’s AMF 71, 74.)

Plaintiff’s opposition presents similar evidence with respect to Mrs. Russell’s complaint to Defendant Guillen-Jovel. (Plf’s AMF 63-65.) Further, Plaintiff presents evidence in November 2015 that after the police began investigating Mr. Vasquez and the police asked Defendant Guillen-Jovel about Mrs. Russell’s complaint, she did not recall Mrs. Russell’s complaint. (Id. 68, 69.) Around the same time Mrs. Russell contacted Defendant Guillen-Jovel to discuss Mr. Vasquez and Mrs. Russell testified that Defendant Guillen-Jovel denied that their previous conversation regarding Mr. Vasquez took place, was not calm and slammed the phone down. (Id. 66.)

All parties’ evidence also demonstrates a prior complaint regarding Mr. Vasquez giving a child candy and taking the child to a secret place which resulted in Defendant Guillen -Jovel having a meeting with him in 2014 where he denied having a secret place.

(E.g., Plf’s AMF 59.) Defendant Guillen-Jovel testified that she did not inform Ms. Warren of this complaint. (Id. 60.)

In addition, Plaintiff presents evidence that Mr. Vasquez testified that he covered the windows in classroom 27 for “privacy” and so he could carry out his sexual abuse. (Plf’s AMF 76.) Defendant Guillen-Jovel testified that while she had been in the classroom, she denied having seen covered windows, but that if she had, it would have set off a red flag. (Id. 77.) She later testified that she did recall seeing the covered windows on one occasion and thought it was odd but never discussed the issue with Mr. Vasquez. (Id. 78, 79.) Olga Sims, testified that having all the windows covered “of course, it would raise a red flag.” (Id. 80.)

The above summary demonstrates the existence of triable issues of material fact as to whether Defendants should have known of the risk of sexual abuse posed by Mr. Vasquez and whether they were negligent in failing to take any action with respect to Mr. Vasquez other than simply telling him not to use the candy program anymore. Indeed, Mrs. Russell testified that she informed Defendant Guillen-Jovel that Mr. Vasquez was using candy as a reward, referred to a secret shed or secret place and asked her daughter to keep this secret. Defendant Guillen-Jovel denies that Mrs. Russell referred to any secrets but acknowledged that “secret” is a red flag. Further, the evidence shows that she denied even meeting with Mrs. Russell after Mr. Vasquez was being investigated and also that she destroyed her notes of her meeting and Mrs. Russell’s complaint. The evidence also reveals a previous complaint regarding Mr. Vasquez. Further, the evidence shows that in the midst of these complaints, Mr. Vasquez had also covered all of his windows and that Defendant Guillen-Jovel never mentioned anything to Mr. Vasquez even when she eventually noticed the windows and thought it was odd. There are material issues of fact as to what exactly Defendant Guillen-Jovel knew or should have known and the motion must be denied.

Plaintiff’s and the City have presented evidence from which a reasonable trier of fact could find that the District, through Defendant Guillen-Jovel, “has acquired actual knowledge of facts from which a reasonable person of ordinary intelligence, or one of the superior intelligence of the actor, would either infer, or consider highly probable, that the agent had previously committed an act of unlawful sexual conduct with the minor.” (Santillan, supra, 202 Cal.App.4th at 718 [citing Doe v. City of Los Angeles, supra, 42 Cal.4th at 545-549.)

The Court is aware of Defendants’ arguments that notice cannot be shown through conduct which is innocuous or ambiguous. (Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904.) “[D]oing nothing about ambiguous conduct which, in hindsight, confirms evil suspicions is not worthy of moral opprobrium. Some people think well of their colleagues and will assume the best if the evidence is ambiguous.” ( Id. at 917.) However, the cases cited by Defendants are inapplicable. Indeed, not one of the cases involved a teacher offering something to a child as a reward and referring to a secret shed where the child could go to get the reward and that the child had to keep this secret. For example, Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1216 found that evidence of a teacher’s prolonged handshake, an overly friendly pat on the shoulder or having a child sit on this lap was not sufficient because it was ambiguous at worst “and did not result in any complaints to defendant by the children involved or their parents.” (Id. at 1216.) Here, the evidence is qualitatively different, in that the Court finds that a reasonable trier of fact could find that a teacher telling a young child to keep a “secret” about going to a secret shed to get a reward, in addition to covering the windows in the classroom, is conduct that is not ambiguous or “innocuous”. Indeed, “innocuous” connotes “safe” or harmless conduct; the evidence addressed suggests a trier of fact could come to a different result. Further, and unlike Federico, the evidence here shows that the conduct did result in complaints by the defendant. Again, Defendant Guillen-Jovel herself testified that if the conduct referred to by Mrs. Russell was true, this would raise a “red flag.” Doe v. City of Los Angeles, supra, 42 Cal.4th at 552 is also not persuasive. That case involved evidence that police officers were aware that another police officer who was involved in a youth program and molested children had an open interest in boys, showed favoritism to certain boys, inappropriately fraternized with boys at the job and at his home, had an alleged association with a known pornographer and was seen in the company of a young boy in Thailand. Indeed, all of that evidence is ambiguous. Again, the evidence here is qualitatively different and involves young children being told to keep interactions and the presence of a secret shed secret.

In short, the Court finds that there are numerous triable issues of material fact as to whether Defendants were negligent. The motion for summary adjudication as to the first cause of action must be denied.

The Court need not consider Plaintiff’s additional arguments in opposition regarding evidence of Mr. Vasquez taking children out of other classes. Nor does the Court need to comment on Plaintiff’s assertion that Defendants previously made the arguments they are making in another case and that they were previously rejected.

Second Cause of Action (Negligent Supervision of Plaintiff)

Defendants’ motion is denied. Defendants simply argue that the same facts and arguments in support of the motion as to the first cause of action supports the motion as to the second cause of action. Given that the motion as to the first cause of action was denied, the motion as to the second cause of action is denied for the same

reasons.

Third Cause of Action (Negligent Failure to Warn, Train or Educate Plaintiff-District only)

The District’s motion for summary adjudication is moot. Plaintiff has filed a request for dismissal of her third cause of action against the District. (ROA 168)

The motion for summary adjudication is denied as to the first and second causes of action and is moot as to the third cause of action.

Having failed to obtain summary adjudication on all causes of action against them, Defendants’ motion for summary judgment is denied.

Defendants’ evidentiary objections are overruled. The Court notes that certain of the objections are based on hearsay. However, the statements offered were not offered for the truth of the matter asserted but rather to show that Defendants had notice of certain information which is a non-hearsay purpose.

Plaintiff’s counsel is directed to prepare an order for the Court’s signature pursuant to CCP § 437c(g) and CRC Rule 3.1312.