Case Number: BC523992 Hearing Date: October 16, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

gerardo bravo, et al.

Plaintiffs,

vs.

los angeles unified school district., et al.

Defendants.

Case No.:

BC 523992

Hearing Date:

October 16, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

MOTION BY DEFENDANT LA’S PROMISE FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Background

On October 9, 2013, Plaintiffs Gerardo Bravo (“Bravo”) and Teresa Pedraza (“Pedraza”) (jointly, “Plaintiffs”) filed this action against Defendants Los Angeles Unified School District (“LAUSD”), Napoleon Banks (“Banks”), and Does 1 through 110, inclusive. On March 29, 2016, Plaintiffs filed an amendment substituting Defendant LA’s Promise (“LA’s Promise”) for Doe 1 (collectively, with LAUSD and Banks, “Defendants”).

Plaintiffs allege that on or about August 31, 2012, and again on or about September 7, 2012, Defendants negligently instructed, trained, controlled, supervised, warned, notified, counseled and monitored the football players at West Adams Preparatory High School (“West Adams”). Plaintiffs allege that Defendants knew or should have known that Bravo had sustained head and neck injuries during football practices and games such that Defendants should not have commanded or allowed Bravo to play in any subsequent games or practices. Plaintiffs allege Defendants’ coercion of Bravo to play despite his injuries exacerbated Bravo’s head and neck injuries. Plaintiffs also allege that their actions in causing Bravo’s injuries subjected Pedraza, his mother, to emotional distress.

The only causes of action alleged against LA’s Promise are the negligence cause of action by Bravo and the negligent infliction of emotional distress cause of action by Pedraza. LA’s Promise now moves for summary judgment, or in the alternative, summary adjudication as to these causes of action. Plaintiffs oppose.

This motion was originally heard on May 3, 2018, and the Court ultimately issued an order continuing the hearing on this motion so that additional discovery could be conducted. The Court later set a briefing schedule for the filing of opposition and reply papers.

Evidence

The Court rules on LA’s Promise’s evidentiary objections as follows:

Objections to the Deposition Testimony of George Bartleson (attached as Exhibit 2 to the Declaration of Timothy Hobbs in support of Plaintiff’s [sic] Response to Defendant LA’s Promise’s Motion for Summary Judgment or Adjudication):

Objection No. 12[1]: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection No. 13: sustained

Objection No. 14: sustained

Objection No. 15: sustained

Objection No. 16: sustained

Objection No. 17: sustained

Objection No. 18: sustained

Objections to the Deposition Testimony of Erica Nava (attached as Exhibit 3 to the Declaration of Timothy Hobbs in support of Plaintiff’s [sic]Response to Defendant LA’s Promise’s Motion for Summary Judgment or Adjudication):

Objection 19: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 20: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 21: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 22: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 23: sustained

Objection 24: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 25: sustained

Objection 26: sustained

Objection 27: sustained

Objection 28: sustained

Objection 29: sustained

Objection 30: sustained

Objections to the Deposition Testimony of Steven Traylor (attached as Exhibit 4 to the Declaration of Timothy Hobbs in support of Plaintiff’s[sic] Response to Defendant LA’s Promise’s Motion for Summary Judgment or Adjudication):

Objection 31: sustained insofar as Plaintiffs have not attached any evidence at the cited page(s).

Objection 32: sustained

Legal Standard

“[A] motion for summary judgment shall be granted 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.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

Discussion

LA’s Promise premises its motion for summary judgment on the contention that it never owed a duty to Plaintiffs, as it was never in an employer-employee relationship with Bravo’s football coaches and because LA’s Promise was never in a joint venture or partnership with West Adams and/or LAUSD. (LA’s Promise’s Undisputed Material Fact (“UMF”) 24, 9, 10.) The duty element is a necessary element of both a negligence cause of action and a negligent infliction of emotional distress cause of action. ((See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318 [setting forth the elements of negligence, including duty]); (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 213 [recognizing that NIED is not an independent tort but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply].) “Whether a defendant owes a duty of care is a question of law.” ((Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)

“A joint venture exists when there is ‘an agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control.’” ((Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1053 [citation omitted].) “An essential element of a partnership or joint venture is the right of joint participation in the management and control of the business.” ((Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364 [citation omitted].) Where there is no evidence of joint control over an operation, summary judgment is proper on the grounds that the elements of a joint venture have not been established. (See Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666.)

It is undisputed that during the relevant time period (the 2012-2013 school year), a Memorandum of Understanding (“MOU”) existed between LA’s Promise and LAUSD for the improvement of education services at West Adams. (UMF 2.) It is further undisputed that the MOU does not reference operation of the West Adams football team or any athletic activities. (UMF 6.) The MOU sets forth that LAUSD employees shall not be considered employees of LA’s Promise for any purpose. (UMF 8.) What is disputed is whether, at the time of Bravo’s injuries during the 2012-2013 school year, LA’s Promise exercised any control over West Adams.

Plaintiffs contend that a joint venture existed between LA’s Promise and the West Adams coaching staff such that a duty was imposed on LA’s Promise to control the coaching staff’s conduct. ((Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 [“A duty to control the conduct of another or to warn persons endangered by such conduct may arise, however, out of what is called a ‘special relationship,’….”].) Plaintiffs submit evidence that purports to show that LA’s Promise exercised control over the West Adams football team and athletics program by setting the team budgets, deciding to switch the football team to a different division, canceling the 2012 football season, and hiring and firing the principal who controlled the athletic directors and coaches. Plaintiffs argue that this evidence suffices to raise a triable issue of fact that LA’s Promise was engaged in a joint venture with LAUSD. The Court assesses the evidence set forth by Plaintiffs as follows:

First, Plaintiffs assert that LA’s Promise set the athletics budget. (Plaintiffs’ Additional Undisputed Material Facts (“PMF”) 36, 43, 44, 45.) Plaintiffs rely on the deposition testimony of George Bartleson, purportedly LAUSD’s person most qualified, and the deposition testimony of Erica Nava, who was the principal at West Adams in the fall of 2013. (Halas Suppl. Reply Decl., Ex. AA, p. 14:12-18.) However, the Court has sustained LA’s Promise’s objections to the respective portions of Mr. Bartleson’s and Ms. Nava’s testimonies in support of this fact. For one, Plaintiffs have failed to lay the proper foundation for Mr. Bartleson’s testimony. Though Plaintiffs assert that Mr. Bartleson is the PMQ for LAUSD, that is not set forth in the evidence provided. There is no foundation for Mr. Bartleson’s personal knowledge of any of the information set forth in the portions of the deposition testimony submitted as evidence. Similarly, Plaintiffs have failed to lay the proper foundation for Ms. Nava’s testimony as it relates to the 2012-2013 school year. Insofar as Ms. Nava testifies that as principal, she made decisions regarding athletics expenditures, she also testifies she became principal in the fall of 2013. Plaintiffs offer no link between Ms. Nava’s decisions as principal and what happened to Bravo during the 2012-2013 school year.

Second, Plaintiffs assert that LA’s Promise made the decision to move the West Adams football team to a different, less competitive division. (PMF 46, 47, 48.) Again, all of the evidence offered in support of this fact is inadmissible because Plaintiffs failed to properly lay the foundation and personal knowledge for the testimonies by Mr. Bartleson and Ms. Nava. Even so, the weight of the evidence presented is minimal. Mr. Bartleson testified that he was contacted by the CEO of LA’s Promise about moving the football team to a less competitive division. That does not indicate that LA’s Promise made the decision to move the team to a different division, or that LA’s Promise could have made the decision to move the team. Ms. Nava testifies that she discussed with the West Adams athletic director whether there was “a way” to request a division transfer. Again, this does not suggest that LA’s Promise made the decision to transfer or that LA’s Promise had the authority to make such a decision.

Third, Plaintiffs assert that LA’s Promise canceled the remainder of the 2012 football season. (PMF 49.) Plaintiffs submit the testimony of West Adams’ athletic director Steven Traylor in support. Notwithstanding that the material portions of Mr. Traylor’s testimony is inadmissible per the Court’s evidentiary rulings, Mr. Traylor’s testimony itself does not support a finding that LA’s Promise canceled the remainder of the 2012 football season. It is entirely unclear that the discussion on p. 62 of Mr. Traylor’s deposition transcript is even about the canceling of the 2012 football season. (See Hobbs Suppl. Decl., Ex. 4.) No additional testimony is provided to clarify the context of Mr. Traylor’s testimony that he and “Mr. Cuevas” made “the decision” to “forfeit.”

Fourth, Plaintiffs assert that LA’s Promise hired and fired principals of West Adams, thereby exerting indirect control of West Adams’ athletics department because West Adams’ principals hired and fired the coaches. (PMF 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43.) Again, the Court sustained the evidentiary objections to most of the evidence proffered by Plaintiffs in support of this fact. The remaining “evidence” comprises excerpts from deposition testimonies that were not included in Plaintiffs’ papers. Ms. Nava testifies that she was selected by LA’s Promise to be principal. (PMF 32.) However, Ms. Nava does not testify that she was selected by LA’s Promise to be principal for the 2012-2013 school year. Mr. Traylor testified that staff and teachers at West Adams report to the principal or assistant principal (Hobbs Suppl. Decl., Ex. 4, p. 50: 10-16), but there is no testimony that this was so during the 2012-2013 school year. Plaintiffs also submit that LA’s Promise ousted the former principal of West Adams, Jose Iniguez, who was the principal during the 2012-2013 school year. (PMF 40.) However, that fact relies on the testimony of Mr. Bartleson, to which the Court has sustained objections on the basis of lack of foundation and lack of personal knowledge.

Based on the evidence presented, the Court finds that Plaintiffs have failed to raise a triable issue of material fact that LA’s Promise was engaged in a joint venture with LAUSD such that LA’s Promise owed a legal and actionable duty to Plaintiffs.

Conclusion

For the foregoing reasons, LA’s Promise’s motion for summary judgment is granted. The Court orders LA’s Promise to file and serve a proposed judgment within 10 days of this Order.

LA’s Promise is ordered to provide notice of this ruling.

DATED: October 16, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court