2014-00157357-CU-PA

Jane Doe 1 vs. Twin Rivers Unified School District

Nature of Proceeding: Hearing on Demurrer

Filed By: Anwyl, James T.

IF ORAL ARGUMENT IS REQUESTED, IT MUST BE REQUESTED BY NO LATER
THAN 4:00 P.M. ON MAY 15, 2014.

ORAL ARGUMENTS ARE CONTINUED TO THE WEEK OF MAY 19TH. THE
PARTIES MAY AGREE ON A DATE FOR ORAL ARGUMENT THE WEEK OF MAY
19 AND INFORM THE COURT CLERK OF THE DATE ON OR BEFORE 4:00 p.m.
on May 16, 2014.

Defendant Twin Rivers Unified School District’s, Lovina Robinson, Joe Schmidt,
Roxanne Mitchell and Ledelma Carter’s Demurrer to the Complaint is sustained as
follows:

Plaintiffs allege causes of action arising out of the sexual assault and molestation of
Jane Doe 1, a special needs student, by a fellow special needs student at her middle
school. Plaintiffs allege that Defendant Carter, the teacher’s assistant, allowed a
student (Defendant Colima) with a known history of sexual assault into a unisex locked
bathroom with multiple stalls at the school. Plaintiff had previously been let into the
bathroom by her teacher, defendant Robinson and was in the bathroom when Colima
entered. After Colima entered the bathroom, he sexually assaulted and molested
Plaintiff. The unisex bathroom was accessible only by key and was used by both
students and faculty.

Plaintiff Jane Doe 2 is the mother of Jane Doe 1. Jane Doe 2 had complained about
the bathroom a few months previously when she was changing her daughters’ clothes
for picture day. She complained that male faculty members would enter the bathroom
to use it while she was changing her daughters. Plaintiffs also sue the Vice Principal,
Defendant Schmidt, and the Principal, Defendant Mitchell.

Plaintiffs allege causes of action against the school district for Breach of Fiduciary Duty
(7th) Negligent Supervision, failure to warn (8th), Negligent Failure to Train, Warn,
Educate Plaintiffs (9th), Negligent Supervision of Employees (10th), Negligent
Supervision and Evaluation of Minor (11th), and Premises Liability (12th). Plaintiffs
allege each of these claims against both the District and the employees.

As a public entity, the district may only be held liable in tort either by way of
respondeat superior via its employees and independent contractors, or, in the case of
direct liability, upon a showing that it violated a statutory, mandatory duty. (See
Eastburn v. Regional Fire Prot. Auth. (2003) 31 Cal. 4th 1175, 1179-80; Zelig v.
County of Los Angeles (2002) 27 Cal. 4th 1112, 1128, 1131.)

Government Code, §815(a) abolishes common law liability of public entities except
when authorized by statute. [Rodriguez v. Inglewood Unified Sch. Dist. (1986) 186
Cal.App.3rd 707.] There are four ways a government entity can be found liable in tort.
Government Code, §815.2(a) makes a public entity, such as a school district, liable for
injuries caused by an act or omission of its employees when employees are within the scope of their employment. [Gov. Code, §815.2(a).] Government Code, §815.6
establishes the liability of a public entity when there is a breach of a mandatory duty
imposed by an enactment that is designed to protect against the risk of a specific kind
of injury, unless the public entity is able to establish that it exercised reasonable
diligence in the fulfillment or discharge of that duty. A public entity is also liable
pursuant to Government Code §835 for a dangerous condition on its property. Lastly, a
public entity can be held liable for injuries caused by the tortious act or omission of an
independent contractor.

7th cause of action Breach of Fiduciary Duty: Sustained without leave to amend
for failure to state facts sufficient to constitute a cause of action. Plaintiffs agree to
omit this cause of action from the Amended Complaint.

8th cause of action Negligent Supervision, failure to warn, 9th cause of action
Negligent Failure to Train, Warn, Educate Plaintiffs, 10th cause of action
Negligent Supervision of Employees, 11th cause of action Negligent Supervision
and Evaluation of Minor: Sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action. Overruled as to the individual employees.
The plaintiffs have not clearly alleged whether they are contending District is directly
liable, vicariously liable, or both. Government tort liability is based on statute. Direct
liability of the District requires statutory authority. A general tort statute such as Civil
Code 1714 cannot form a basis for the direct liability. In De Villiers v County of San
Diego (2007) the Court held that there is no direct liability for negligent hiring and
supervisory practices absent a statutory basis. See also, CEB California Government
Tort Liability Practice, 4th Ed., page 487, section § 9.6A. Vicarious liability of District
for acts of the employees can be imposed pursuant to Gov Code 815.2(a), which
provides “(a) A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his employment if the
act or omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative.” Gov Code 815.2(a).

Plaintiffs seek to allege both direct liability and vicarious liability against District.
Plaintiffs are given leave to amend to allege the statutory basis for direct liability in
addition to the claims for vicarious liability based on the alleged negligence of the
employees.

12th cause of action Premises Liability: Sustained with leave to amend as to
District. Sustained without leave to amend to the extent the individual employees are
named.

A dangerous condition is “a condition of property that creates a substantial (as
distinguished from a minor, trivial or insignificant) risk of injury when such property or
adjacent property is used with due care in a manner which it is reasonably foreseeable
that it will be used.” Gov’t Code §830. In order to sustain a cause of action for
dangerous condition of public property, the plaintiff must allege and prove knowledge,
either actual or constructive, of the dangerous condition, and failure to remedy said
condition. Hough v. Orleans Elementary School Dist. (1943) 62 Cal. App.2d 146; see
also Woodman v. Hemel Union High School Dist. (1935) 4 Cal.App.2d 65 (holding that
a school district must have sufficient notice of a dangerous condition to face liability).
Moreover, third party conduct, in and of itself, does not constitute a “dangerous
condition” for which a public entity may be liable. Mixon v. State (2012) 207
Cal.App.4th 124. There must be a defect in the physical condition of the property and
the physical defect must have some causal relationship to the third party conduct,
which causes injury to the plaintiff (Ibid.); see also Hayes v. Stale of California (1974)
11 Cal.3d 469, 472 (stating that harmful conduct on the part of a third party without
some concurrent contributing defect in the property itself is not a dangerous condition).

Paragraph 88 of the Complaint alleges that Defendants left students in the unisex
bathroom with no externally visible method of indicating that the bathroom was in use
or to ensure their privacy and safety. Defendants contend that the cause of action fails
because plaintiffs have not alleged that District knew or should have known of the
alleged dangerous condition nor have they alleged a physical defect in the property
that was the proximate cause of the third party conduct which caused plaintiff’s
injuries.

The Court finds that the allegations are sufficient to allege actual or constructive
knowledge of the condition of the unisex bathroom based on the earlier complaints of
Doe 2. However, the current alleged defect is insufficient to support the claim that a
substantial physical defect in the property, as opposed to third party conduct, caused
the plaintiff’s injuries. The absence of a visible method to determine whether the
bathroom was occupied is not a physical defect that was the proximate cause of the
third party conduct. Moreover, it is alleged that this was a multi-stall bathroom, so
presumably it was known and accepted that more than one person would occupy the
bathroom at one time. It is unclear what plaintiffs allege could have been done to the
condition of the property to solve the physical defect. For example, Plaintiff does not
allege that she was prevented from leaving the bathroom. The facts are not analogous
to the defective condition in Jennifer C. v. Los Angeles Unified School District (2008)
168 Cal.App.4th 1320 [hidden alcove that teachers could not see, foreseeable that
special needs students would be vulnerable to attacks of other students.]

The motion to strike is granted as to the claim for punitive damages and prejudgment
interest. The motion to strike causes of action based on the argument that the moving
defendants cannot be liable under these theories is granted as to the 7th cause of
action but is otherwise denied.

Plaintiffs shall file and serve their proposed Amended Complaint on or before May 27,
2014. Response to be filed and served within 15 days of service of the amended
complaint 15 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.