Case Number: BC599968 Hearing Date: October 30, 2018 Dept: SEC

VAZQUEZ v. LOS ANGELES UNIFIED SCHOOL DISTRICT

CASE NO.: BC599968

HEARING: 10/30/18

#2

TENTATIVE ORDER

Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s Motion for Summary Judgment or in the alternative Summary Adjudication is DENIED in part, and MOOT in part. CCP §437c.

Opposing Party to give Notice.

The Court has ruled on Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT’s evidentiary objections. A copy of the signed Order will be kept in the Court’s file, and copies can be made available for retrieval at the hearing.

This personal injury case was filed by Plaintiff JESUS MARTIN VAZQUEZ by and through his Guardian ad Litem MARTIN VAZQUEZ on November 2, 2015. The relevant facts are as follows: Plaintiff is a 20-year old Special Education student who was allegedly involved in an ATV accident on March 9, 2015 during an automotive repair class at LAUSD’s Slawson Occupation Center. Plaintiff alleges that Plaintiff received no training whatsoever from his instructor, Sayed Hossein Saidi on how to operate an ATV, and that there was no safety or protective clothing available for him to use. While Plaintiff was test driving the ATV that he repaired, it failed to operate correctly, causing him to fall off. Plaintiff allegedly suffered serious personal injuries resulting from the fall, including a traumatic brain injury. Plaintiff’s Third Amended Complaint, filed September 21, 2017, asserts one sole cause of action for negligence.

In moving for summary judgment or alternatively summary adjudication, Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT (“LAUSD”) raises the following arguments: (1) LAUSD does not owe a duty to an adult student in an occupational center who rides an ATV without permission; (2) LAUSD, a public entity, is immune from liability pursuant to Gov. Code §831.7 because Plaintiff was performing a hazardous recreational activity; (3) Plaintiff assumed the risk of his actions by voluntarily participating in the inherently dangerous activity of riding an ATV on parking lot pavement without a helmet; (4) LAUSD did not owe a duty to provide Plaintiff with special education accommodations because Plaintiff graduated high school with a diploma and was an adult student who never requested accommodations or disclosed a learning disability; (5) Plaintiff’s cause of action for negligence fails as a matter of law to the extent Plaintiff seeks redress for LAUSD breaching a duty to provide Plaintiff with special education accommodations because those allegations were not reflected in his government claim; (6) Plaintiff’s cause of action for negligence fails as a matter of law to the extent Plaintiff seeks redress for LAUSD breaching a duty to preserve evidence after the Subject Accident because those allegations were not reflected in his government claim; (7) Plaintiff’s cause of action for negligence fails as a matter of law to the extent Plaintiff seeks redress for LAUSD breaching a duty to provide Plaintiff with Special Education Accommodations or to preserve evidence after the Subject Accident because Plaintiff is estopped from alleging such conduct as a basis for liability as he previously argued and took the position that these are mere background facts for context, not as conduct to impose liability; (8) Plaintiff’s cause of action for negligence fails as a matter of law to the extent Plaintiff seeks redress for LAUSD breaching a duty to preserve evidence after the Subject Accident because California Courts do not recognize spoliation of evidence as a basis for a tort cause of action and any such allegations are irrelevant because they would have occurred after the Subject Accident; (9) Plaintiff time-barred from asserting any allegations concerning conduct by LAUSD that occurred more than six months before the filing of Plaintiff’s Government Claim; (10) It is undisputed that Mr. Saidi was physically and mentally capable of teaching the Auto Course and was permitted by a doctor to return to work; and (11) Plaintiff cannot claim LAUSD failed to provide Plaintiff with a Free Appropriate Public Education without first exhausting his administrative remedies under the IDEA, which Plaintiff did not do.

Four elements are necessary to plead a negligence cause of action: Defendant’s legal duty of care toward Plaintiff, breach of that duty, injury proximately caused by such breach, and damages to the Plaintiff. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141.)

Issue No. 1 – Whether LAUSD owed a legal duty to Plaintiff

Here, LAUSD argues that it owed no duty to Plaintiff—an adult student enrolled in an automotive repair class at LAUSD’s Slawson Occupation Center.

“Duty, being a question of law, is particularly amenable to resolution by summary judgment. [Citation.]” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 663.) “As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ [Citations.]” (Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458.)

In determining whether post-secondary schools/universities owe a duty of care to adult students, this Court finds Regents of Univ. of California v. Superior Court (2018) 4 Cal.5th 607, and its progeny line of cases instructive. “While the university might owe a duty as a landowner to maintain a safe premises, courts typically resisted finding a broader duty based on a special relationship with students. [Citations.] …. [¶] California appellate decisions followed this trend.” (Id. at 666.) The Regents Court held: “we conclude postsecondary schools do have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” (Id. at 667.) However, Regents does not make the broad assertion that universities/post-secondary schools always owe a duty of care to adult students. The Regents Court specified its holding as follows: “we conclude universities do have a legal duty, under certain circumstances, to protect or warn their students from foreseeable violence in the classroom or during curricular activities.” (Id. at 663.) Similarly, there is no case law on point that holds that university and post-secondary schools never owe a duty of care to their adult students. (See Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 832.)

Here, the factors set forth in Rowland v. Christian support this Court’s tentative conclusion that a duty of care should be imposed on LAUSD given the factual background of this case. (Rowland v. Christian (1968) 443 P.2d 561.) Here, the Court finds that the harm to Plaintiff was foreseeable where: it is relatively undisputed that students did “test-drive” ATVs (either with or without permission), it is undisputed that no helmets were provided to students enrolled in the automotive repair class, and where it is undisputed that keys were left in the ignition(s) of the ATVs. The Court further finds that the harms suffered by Plaintiff could possibly be attributed to a lack of supervision by LAUSD under the circumstances.

The Court finds that LAUSD owed Plaintiff a duty of care. Thus, there remains a triable issue as to whether LAUSD breached that duty of care. Whether LAUSD breached its duty of care involves a factual determination reserved for a trial on the merits.

Issue No. 2 – Whether LAUSD is immune under Gov. Code §831.7

LAUSD also argues that it is immunized from liability pursuant to Gov. Code §831.7 because Plaintiff was performing a hazardous recreational activity. “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity. (b) As used in this section ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or spectator…… [¶] ‘Hazardous recreational activity’ also means… (3) … bicycle racing or jumping, bicycle motocross… motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind….” (Gov. Code. §831.7.) “In some cases the question whether the plaintiff was engaged in ‘recreational’ activity may be a question of fact for the jury. [Citations.].” (Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 475.) The Court in Acosta opined, “For immunity to apply under section 831.7, the injured party must have been engaged in an activity which was both ‘hazardous’ and ‘recreational.’…. [¶] If the term ‘hazardous recreational activity’ is interpreted to include school sponsored and supervised activities, schools would be immune from liability for the negligent supervision of students engaged in virtually every extracurricular sport…, as well as activities which are often party of a school’s physical education program such as archery and trampolining…. [¶] In California, it has been ‘long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.’ [Citations.]” (Id. at 476-477.)

Here, it is undisputed that an ATV is a four-wheel driving vehicle that may be used for off-road driving. (See LAUSD SSMF No. 21.) It is also undisputed that Plaintiff was injured while riding an ATV on March 9, 2015 during an automotive repair class at LAUSD’s Slawson Occupation Center. (See LAUSD SSMF No. 1.) However, the Court finds that there exists a triable issue of fact as to whether Plaintiff was engaged in a “recreational” activity at the time of the Subject Incident. Plaintiff was a student in an automotive repair class, and obtained access to the subject ATV as a part of that automotive repair class. Being a student in an automotive repair class does not equate to participation in a hazardous recreational activity. Moreover, both parties submit competing evidence related to whether Plaintiff was permitted to drive an ATV as a part of the LAUSD sanctioned automotive repair class. Therefore, based on the facts and evidence submitted, it cannot be adjudicated as a matter of law that Plaintiff was engaged in a purely recreational activity at the time of the Subject Incident.

Issue No. 3 – Assumption of the Risk

LAUSD argues that Plaintiff is barred from recovery where Plaintiff assumed the risk of his actions by voluntarily participating in an inherently dangerous activity of riding an ATV on parking lot pavement without a helmet.

“When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of the risk doctrine applies is a legal question to be decided by the court. [Citations Omitted.]” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 826.)

The facts of this case are analogous to Patterson— “Plaintiff James Patterson was injured while participating in a truck driver training course. Defendant Sacramento City Unified School District (District) offered the course as part of its adult education program…. The trial court granted the District’s motion for summary judgment, ruling that the doctrine of primary assumption of risk barred Patterson’s negligence claim.” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 824.) However, the Court of Appeal reversed the trial court’s judgment, finding that assumption of the risk did not apply under the circumstances of that case.

Here, and as argued by Plaintiff in Opposition, “the ‘activity’ in which Plaintiff was engaged was an Automotive Technician: Brakes class. This classroom activity is neither a sport nor an activity in which danger was an integral party of the activity.” (Opp. 20:26-28.) The Court agrees. Participation in an automotive repair class is not an inherently dangerous activity, and assumption of the risk does not trump LAUSD’s duty instruct and supervise its students. Moreover, there is competing evidence submitted as to whether Plaintiff was permitted to test drive the ATVs being repaired.

Based on the Court’s findings above, Defendant LAUSD’s motion for summary judgment or alternatively summary adjudication is DENIED in part.

LAUSD’s remaining arguments are rendered MOOT

As stated by Plaintiff in Opposition, “The Court can ignore all of these arguments because Vazquez’s negligence claim is not based on any of these theories. Although Vazquez intends to submit evidence regarding these matters at trial, they do not form the basis of his negligence claim. Rather, the facts pertaining to these allegations will only serve to provide the jury with important background information.” (Opp. 23:25-28.)

Following, Defendant LAUSD’s motion for summary judgment or alternatively summary adjudication is MOOT in part.