Filed 6/26/20 Neeley v. San Mateo Union High School Dist. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHARLES JASON NEELEY et al.,

Plaintiffs and Appellants,

v.

SAN MATEO UNION HIGH SCHOOL DISTRICT et al.,

Defendants and Respondents.

A152043

(San Mateo County

Super. Ct. No. CIV 531154)

This appeal arises from the tragic suicide of a teenage boy, Tyler Neeley. His parents, appellants Charles and Frances Neeley, brought suit for personal injury and wrongful death against Tyler’s local school district, respondent San Mateo Union High School District, and Tyler’s high school, respondent Aragon High School (together referred to here as “the school”), alleging the school was negligent in ways that led Tyler to take his own life. The case proceeded to a jury trial and ended with a defense verdict and entry of judgment in the school’s favor. The trial court denied the Neeleys’ motion for a new trial, and this appeal followed.

On appeal, the Neeleys challenge a number of rulings made at trial. They contend (1) the trial court erroneously admitted expert opinions by defense witnesses that hadn’t been timely disclosed; (2) the court misinstructed the jury on the concept of suicide as a superseding cause, which was a central disputed issue concerning legal causation; (3) the court erroneously declined to grant a new trial based on juror misconduct; and (4) the trial court erroneously requested copies of Tyler’s juvenile court record and then introduced the substance of his file into evidence.

It is unnecessary to address these issues because they were not prejudicial. As the school has demonstrated in its respondent’s brief, the only legal claim to which these errors pertain, which was the principal focus of trial, is barred as a matter of law and thus should not have been presented to the jury, because the Neeleys did not assert it in a written government claim for damages pursuant to the Tort Claims Act which is a condition precedent to bringing suit against a public entity. (See Gov. Code, §§ 910, 911.2, 945.4; Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906; Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 420.) Since the trial court erred in denying the defendants’ motion in limine seeking to exclude evidence in support of this claim, any error in the trial court’s evidentiary and instructional rulings at the trial of the claim is harmless. Accordingly, we will affirm the judgment.

BACKGROUND

A. The Neeleys’ Government Claim

On January 13, 2014, during his senior year of high school, Tyler tragically took his own life. About four months later, in May, the Neeleys presented their written government claim to the school. The negligence theory it advanced was that a trainer for the high school football team had physically injured Tyler by massaging a muscle Tyler had strained during a football game a few days earlier, and the physical injury caused Tyler to become severely depressed which, in turn, ultimately caused him to commit suicide.

Because of its level of detail, we quote the Neeleys’ claim at some length:

“When did damage or injury occur? [¶] Decedent Tyler Jason Neeley suffered bodily injuries on November 19, 2013, which injuries caused him mental and emotional distress and severe major depression. This mental and emotional distress and severe major depression led Decedent Tyler Jason Neeley to take his own life on January 13, 2014. Claimants Charles Jason Neeley and Frances Elizabeth Neeley suffered harm, losses, and damages from the death of their son Decedent Tyler Jason Neeley on January 13, 2014.”

Next, it stated that “[t]he injury to Decedent Tyler Jason Neeley on November 19, 2013, which forms the basis of this claim occurred at Aragon High School.”

The next portion of the claim was captioned, “How and under what circumstances did damage or injury occur?” What followed (after a lengthy, lawyerly caveat that the information was based only on information the Neeleys presently had available), was a detailed description of Tyler’s arm injury and his interactions with the trainer and the football coaching staff, culminating with a description of the psychological impact the episode had on Tyler:

“The damages and injury claimed herein occurred due to the negligence of the San Mateo Union High School District and its administrators (hereinafter ‘the District’), Aragon High School and its administrators, including Joe Mahood[ ] (‘Aragon’), the Aragon High School football team’s coaching staff, including Steven Sell, Steven Henderson, and coaches Sanft and Wu (‘hereinafter Coaching Staff’), and the Aragon High School football team’s trainers (hereinafter ‘Trainers’) (all together hereinafter ‘Respondents’), as follows:

“Decedent Tyler Jason Neeley (‘Decedent’) played football for the Aragon High School Football team. On November 15, 2013 Decedent suffered a strain of a muscle in his triceps, during a football game. Over the next few days the strained muscle improved. On November 19, 2013, a trainer for the Aragon High School football team, whose name is not presently known to Claimants, negligently performed deep tissue massage on Decedent’s strained muscle causing Decedent to develop a grade 2 acute muscle strain and hematoma in his arm. During a team meeting and film session following the treatment by the trainer, Decedent was visibly in extreme pain, but rather then provide Decedent medical care, the football coaches, including Steven Sell, Steven Henderson and other members of the coaching staff, whose names are not known to Claimants, chastised Decedent and one coach hit him in his injured arm. Decedent left the room, angry as a result of the treatment by the coaches, and in severe pain as a result of the negligent care by the trainer. When the door leading out of the room malfunctioned, Decedent headbutted the door in frustration over the severe pain in his arm and the treatment by the coaches.

“Decedent’s mother, Claimant Frances Elizabeth Neeley, was then called and she took decedent to the Emergency Room at Peninsula Medical Center, 1501 Trousdale Dr., Burlingame, CA 84010. Decedent was kept over night for treatment of his arm. As a result of the injury to Decedent’s arm, Decedent’s football season was cut short, he was unable to participate on the wrestling team, and there was a possibility of him missing some or all of the track and field season. Being part of the football team and participating on the other school athletic teams was of great importance to Decedent, and Respondents, and each of them, knew this. Respondents, and each of them, knew that if Decedent would not be able to play football or participate in his other athletic activities that this would cause Decedent severe mental and emotional distress and severe major depression.

“As a result of the severe mental and emotional distress and severe major depression that Decedent suffered, on January 13, 2013, Decedent took his own life. Claimants Charles Jason Neeley and Frances Elizabeth Neeley suffered harm, losses, and damages from the death of their son. Then, although Decedent Tyler Jason Neeley’s last wish was that no one outside of his immediate family was to know that he took his own life, Respondents, and each of them, published this information to the public, in violation of Decedent’s and Claimants’ right to privacy.”

The next portion of the claim was captioned, “What particular action by the District or its employees caused the alleged damage or injury (Include names of employees, if known):” What followed was a series of general allegations, devoid of specificity but all tied to Tyler’s arm injury:

“Claimants are informed and believe, and thereon allege that the Respondents are legally responsible for: the injuries and death of Decedent Tyler Jason Neeley; the harm, losses, and damages suffered by Claimants Charles Jason Neeley and Frances Elizabeth Neeley; and all other damages alleged in this Claim. This Claim is based on the facts and reasons therefor set forth below, including, but not limited to, the following:

“The negligence of Respondents, and each of them, was the proximate, direct, and legal cause of the injuries and death of Tyler Jason Neeley, the harm and damages suffered by Claimants Charles Jason Neeley and Frances Elizabeth Neeley, and all other damages as alleged in this Claim. Said negligence caused and/or created a substantial and reasonably foreseeable risk of the kind of injuries, harm, losses, and death described in this Claim. Said negligent and/or wrongful acts and/or omissions were committed by employee and/or employees (hereinafter ‘employees’) of Respondent District, acting within the scope of their employment. That is, Respondents, and each of them, inter alia:

“A. Negligently, carelessly, and unreasonably treated Decedent Tyler Jason Neeley’s injured arm.

“B. Negligently, carelessly, and unreasonably failed to properly treat Decedent Tyler Jason Neeley’s injured arm.

“C. Negligently, carelessly, and unreasonably failed to assist Decedent Tyler Jason Neeley in obtaining medical care for his injured arm.

“D. Negligently, carelessly, and unreasonably chastised Decedent Tyler Jason Neeley, while he was suffering severe pain.

“E. Negligently, carelessly, and unreasonably failed to properly treat Decedent Tyler Jason Neeley’s head injury.

“F. Negligently, carelessly, and unreasonably failed to assist Decedent Tyler Jason Neeley in obtaining medical care for his injured head.

“G. Negligently, carelessly, and unreasonably failed to assist Decedent Tyler Jason Neeley in obtaining care for the emotional distress and major depression that he suffered.

“H. Negligently, carelessly, and unreasonably hired, contracted, trained, supervised and/or employed incompetent, unqualified, inexperienced and unskilled individuals as Coaching Staff and Trainers.

“I. Negligently, carelessly, and unreasonably failed to provide proper training, supervision, and guidance to the Coaching Staff and Trainers.

“J. Negligently, carelessly, and unreasonably failed to establish proper guidelines, policies and procedures.

“K. Negligently, carelessly, and unreasonably failed to follow the established guidelines, policies and procedures.

“L. Negligently, carelessly, and unreasonably failed to enforce the established guidelines, policies and procedures.

“M. Negligently, carelessly, unreasonably, recklessly, wilfully, and intentionally published information concerning Decedent Tyler Jason Neeley’s death[.]

“At all times mentioned herein, the Respondents knew and/or should have known that the foregoing negligent, careless and unreasonable acts and omissions described in paragraphs (A) through (M) would cause the injuries and damages suffered by Claimants. [¶] Further, at all times mentioned herein, said negligent, careless and unreasonable acts and omissions described in paragraphs (A) through (M), were proximate, direct and legal causes of Tyler Jason Neeley’s injuries and death; and the harm, losses, and damages suffered by claimants.”

The claim then estimated the damages the Neeleys said they sustained as a result “of the subject incident,” and listed the identity of witnesses, including doctors and hospitals.

B. This Litigation and the Jury’s Verdict

After the school rejected the Neeleys’ claim, they brought this suit for personal injury and wrongful death, asserting a cause of action for negligence that tracked their government claim almost verbatim, and the case proceeded to a jury trial. By that juncture, the plaintiffs’ theory underlying their negligence cause of action and the facts on which it was based differed significantly from the written claim’s assertion that Tyler “suffered bodily injuries on November 19, 2013, [that] caused him mental and emotional distress and severe major depression . . . [which] led Decedent Tyler Jason Neeley to take his own life on January 13, 2014.” In closing argument, the Neeleys’ counsel described the Neeleys’ litigation position at great length, and once again we quote extensively from that description of the Neeley’s claims.

Counsel began by disclaiming several liability theories. He told the jury, “We’re not claiming that Tyler’s football injury caused his suicide. We’re not saying, ‘Hey, he hurt his arm. He missed a football game, and that’s why he committed suicide, and therefore, it’s the school’s fault because they mistreated his arm.’ It’s not the claim we’re making.” (Italics added.) The Neeleys’ counsel also explained that “[t]he plaintiffs are not claiming that the School District is responsible for Tyler Neeley’s mental and emotional difficulties in the first instance.” (Italics added.)

Next, counsel explained, “we have two claims of negligence.” (Italics added.) And he proceeded to explain them.

One had to do with Tyler’s arm injury, and it was cast purely as a claim for personal injury (as it had been earlier, when the Neeleys opposed summary judgment). As counsel explained, “[T]he first [negligence claim] is that the Defendant School District was negligent in its treatment of Tyler Neeley’s football injury . . . [¶] when the trainer treated Tyler’s arm, that he negligently made the injury worse, and that’s what caused Tyler to go to the hospital.” Counsel argued that theory only very briefly, as follows: “[T]he first claim is whether or not the negligence of the trainer caused Tyler injury . . . . [¶] There wasn’t really anything serious until after the trainer massaged him, and Dan Walker himself admitted that it would be inappropriate to do massage on the injured arm because it would cause swelling and increased pain. That’s about all I’m going to tell you about the arm claim; that we contend it was negligent—Dan Walker, in the treatment on the arm, was negligent and caused Tyler’s injury as a result of that, and that’s why he had to go to the hospital, and that’s why the doctors told him he couldn’t play football.” (Italics added.) Counsel did not argue any link between the negligent arm treatment and Tyler’s suicide; the special verdict form submitted to the jury on this claim asked only whether the school’s negligence in this regard caused Tyler “to require medical treatment,” not whether it was a factor that caused his death; and on appeal, the Neeleys characterize it as a claim only “for the exacerbation of Tyler’s arm injury by the Aragon High School trainer,” distinct from the wrongful death claim.

The jury rejected this claim. It found, by special verdict, the school had not been negligent in its treatment of Tyler’s arm injury.

Only the “second” negligence claim concerned Tyler’s suicide, and it was by far the primary focus of the trial. The theory was that, from the beginning of Tyler’s junior year and continuing through the fall of his senior year, the school had been on notice that Tyler was experiencing mental and emotional difficulties, and so Tyler, as a special education student with an Individualized Education Plan (IEP), was entitled under federal law to a mental health assessment and psychological counseling, but the school failed to provide him those services, ultimately causing his suicide.

As the Neeleys’ counsel summarized in closing argument: “The second claim is that the Defendant School District was negligent in its management of Tyler’s IEP, and that’s the one we certainly heard a lot more about,” arguing that “Defendants’ mismanagement of the IEP was a substantial factor in causing Tyler’s death.” According to counsel, “We’ve talked a lot about special education. That is one of the cornerstones of the case.” (Italics added.) The theory was that “had the School District fulfilled its obligations to Tyler Neeley [as a special education student] . . . , it’s more likely than not that Tyler’s suicide would have been prevented.” Counsel argued that “[t]his is a unique situation based on Tyler’s status as a special ed student and the particular issues that Tyler was having relative to mental health. That’s why we’re here. That’s the claim we’re making.” (Italics added.) Specifically, “he was suffering from depression. He was suffering from anxiety. And it was just either missed by the School District, or they didn’t want to provide the services, or whatever it is. . . . [¶] They had a duty to provide those services under the circumstances, and they didn’t do it.” The duties that were owed to Tyler, counsel argued, arose because he was a student with special needs and an IEP and they included “providing mental health assessments and mental health services for students with [his] mental and emotional difficulties.” The duties to provide these services were triggered when the problems began interfering with his education.

The focus of this claim was not evidence of Tyler’s football injury or the trainer’s aggravation of it, but evidence of the school’s failure to procure any mental health counseling for Tyler as part of his IEP despite numerous warning signs the school had had for more than a year about emotional difficulties that were impacting his schooling, as far back as the beginning of his junior year of high school. Evidence bearing on this “second” claim is discussed by the Neeleys in their opening brief.

This second negligence claim was based upon wrongdoing the school engaged in before the November 19, 2013 bodily injury incident discussed in the Neeley’s written government claim, and the wrongdoers involved were not the members of the football coaching staff. As described by counsel in closing argument, the school’s negligent management of Tyler’s IEP “goes back to the beginning of Tyler’s junior year,” when “one of the first signs of something wrong” happened (Tyler stabbed another student during biology class). In response, a behavioral support plan was put into place. Then, in March of his junior year, his math teacher, Mr. Brooks, reported to the school psychologist, Jennifer Beasley, that Tyler’s behavioral problems had been escalating. At the end of the following month, in April, Tyler’s math teacher sent Tyler to speak with the school’s safety advocate, Liz Siliato, because Tyler had “been in a funk” for two weeks after the school prom. But Siliato thought Tyler seemed fine. A few weeks later, in May, one of Tyler’s teachers, Leigh-Anne Ecklund, reported to Tyler’s special education case manager, Julie Suess, that Tyler still seemed sad, withdrawn and angry but wouldn’t discuss his emotions. The same day, his football coach, Steven Sell, emailed Suess and Ecklund, copying Tyler’s parents, expressing concern that Tyler appeared to be feeling hopeless and was “get[ting] to a level of depression that will make him incapable of functioning.” And for the first time ever, Tyler failed two classes in the spring of his junior year. By this juncture, counsel argued, “[h]e’s already showing signs that he needs some sort of mental health treatment” because the problems were interfering with his schooling, and “[t]hat’s the threshold. He’s past the threshold. Now is the time [that] they have a duty to fulfill their obligation” under federal law. “[I]t’s time to start because now we see that Tyler is having these issues. It’s still before the end of the year, and now is the time to actually start [the] process” of at least getting him a mental health assessment. The school psychologist, Jennifer Beasley, “could have done that testing in April and May, but it didn’t happen.” At this point, counsel argued, Tyler’s mother was concerned that Tyler “wasn’t getting the types of services at school that he should be getting” and “sees there might be some issues” with his special education services, and so she enlisted the help of an outside advocate, Linda Hughes, who got Tyler’s records from the school at the end of the spring semester.

But it wasn’t until the fall of Tyler’s senior year, counsel argued, that the school “finally get[s] around” to doing the mental health assessment “that was necessary certainly that spring before.” The school psychologist Beasley did that test in September 2013, generating scores that indicated Tyler was in the top one percentile for depression among his age group and had extremely low self-esteem, and she recommended “therapeutic interventions.”

By this point, counsel argued, “[t]here’s no dispute that Tyler needs counseling,” but he never got it. After that assessment, there were at least two meetings among school personnel about Tyler’s IEP (one in September and a second one in October) but still no referral for mental health services. Finally, school personnel met with Tyler’s mother and Hughes on November 18 for an IEP meeting and still there was no recommendation for counseling.

Then, the following day, November 19, his arm injury was aggravated by the school trainer. After that, his depression only deepened, because his pre-existing mental and emotional difficulties caused an “overreaction” to his not being able to play football. (As the Neeleys put it in their opening brief, the football injury “exasperat[ed] [sic] Tyler’s emotional issues”.) In January of his senior year of high school, with his depression left untreated, he took his own life. What propelled Tyler to do so, counsel argued, were “the untreated psychological conditions that were present for some time that the [school] knew about back in September, at least, if not before that . . . and nothing was done.”

Both before and during trial, the school had objected to this second negligence claim on the ground the Neeleys had not asserted it in a government claim. They did so in two pretrial motions in limine, which were denied; and again in an unsuccessful motion for nonsuit.

Although this second negligence claim was allowed to proceed, ultimately the jury rejected it too. By special verdict, it found the school had engaged in wrongdoing—that it had been “negligent in its management of Tyler[’s] IEP,” that Tyler “require[d] mental health services that the [school] failed to provide,” and that Tyler “[s]hould have been referred for a mental health assessment”—but that the school’s breaches of those duties were not a substantial factor in causing his death.

DISCUSSION

I.

The Government Claims Act

The elements of a required claim are set forth in Government Code section 910. Among other mandatory elements, section 910 specifies that a claim “shall” include “[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted,” “[a] general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim,” and “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” (Id., subds. (c)-(e).)

In Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441 (Stockett), our Supreme Court addressed the standard that applies when there is a variance between the contents of a government claim and theories of liability pursued in litigation.

Stockett reaffirmed the principle that a claim is not held to the same standard as a pleading. According to Stockett, “[t]he purpose of these statutes is ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’ [Citation.] Consequently, a claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ [Citations.] As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions [citation], the claims statute ‘should not be applied to snare the unwary where its purpose has been satisfied.’ ” (Stockett, supra, 34 Cal.4th at p. 446.)

The court made clear, however, that a claim must fairly apprise the governmental entity of the factual basis for liability. Although the claim “need not specify each particular act or omission later proven to have caused the injury” (Stockett, supra, 34 Cal.4th at p. 447), it said that “the facts underlying each cause of action in the complaint must have been fairly reflected in a timely claim. [Citation.] ‘[E]ven if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ ” (Ibid.) “If the claim gives adequate information for the public entity to investigate, additional detail and elaboration in the complaint is permitted.” (Id. at p. 449.)

Distinguishing between new litigation theories that are permitted from those that are not, the court explained that “[a] complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ ” (Stockett, supra, 34 Cal.4th at p. 447.) A litigation theory that merely “elaborates” upon or “adds further detail” to the facts stated in a claim “but is predicated on the same fundamental actions or failures to act by the defendants” is permissible, whereas one that reflects a “ ‘complete shift in allegations’ ” from those stated in the claim is not. (Ibid.) The latter “ ‘usually involv[es] an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.’ ” (Ibid., italics added.)

Applying these principles, Stockett held the government claim in that case was sufficient to preserve several additional theories of liability the plaintiff asserted at trial, even though they were not expressly set forth in the written claim. Stockett was a wrongful termination case, in which the plaintiff presented to the jury multiple improper motives for his termination, including several that were not listed in his government claim. The court held this was permissible, because the claim “inform[ed] the public entity of the employment termination cause of action giving rise to the claim and provide[d] sufficient detail for investigation by the public entity.” (Stockett, supra, 34 Cal.4th at p. 443, italics added; see also id. at p. 450 [similar].)

On the first point, the court explained that the plaintiff had complied with the claims presentation statutes by notifying the defendant of his wrongful termination cause of action. (Stockett, supra, 34 Cal.4th at p. 447.) The claim stated the date and place of his termination, named those individuals he believed to be responsible, and generally described the circumstances of his wrongful termination. (Ibid.) The new theories of improper motives asserted at trial did not need to be separately presented in a government claim, it reasoned, because they did not “represent additional causes of action,” “did not shift liability to other parties” not named in the claim, and did not “premise liability on acts committed at different times or places” than those asserted in the claim. (Id. at pp. 447-448.) Rather, they “alleged liability on the same wrongful act, his termination, as was stated in his notice of claim.” (Id. at p. 448.) “Nor were the fundamental facts underlying [plaintiff’s] claim changed” once the matter proceeded to litigation. (Ibid.) Rather, the two new improper motive theories “simply elaborated and added detail to his wrongful termination claim by alleging additional motivations and reasons for defendant’s] single action of wrongful termination.” (Ibid.) The plaintiff’s written claim and litigation theory, the court said, were “based on the same factual foundation, viz., that certain . . . named agents [of defendant] wrongfully terminated him.” (Id. at pp. 448-449.)

Second, the court reasoned that the claim satisfied the purpose of the claim statutes by providing sufficient information to enable the public entity to investigate the merits of the plaintiff’s wrongful termination claim, including all of the defendant’s motives for the allegedly unlawful firing and not just the specific motives asserted in the claim. (See Stockett, supra, 34 Cal.4th at pp. 449-450.) The written claim did this by notifying the public entity “of its act (wrongful termination) that caused his injury (loss of earnings, mental and physical pain and suffering) and nam[ed] those . . . agents [of defendant] he believed responsible.” (Id. at p. 449.) The court reasoned that, on these facts, a “reasonable” investigation would encompass all of the defendant’s motives for the allegedly unlawful firing and would not be limited those asserted in the claim. (Ibid.) “[C]ertainly it would not be so limited where, as here, the employee at the time of termination asked for the reasons and was refused them.” (Ibid.) Rather, “[a] reasonable investigation by [defendant] would have included questioning members of the committee to discover their reasons for terminating [plaintiff] and an evaluation of whether any of the reasons proffered by the committee, including but not limited to the theories in [plaintiff’s] claim, constituted wrongful termination.” (Ibid.)

It thus concluded, plaintiff’s claim provided “sufficient information for the public entity to conduct an investigation into the merits of the wrongful termination claim, and the . . . theories of termination in violation of public policy [asserted at trial] were fairly reflected in the claim because the complaint did not change the fundamental facts of the claim.” (Stockett, supra, 34 Cal.4th at p. 450.)

By contrast, examples of situations in which courts have declined to permit suit on theories not encompassed by a plaintiff’s written claim were discussed at some length in a decision Stockett cited and quoted with approval, Blair v. Superior Court (1990) 218 Cal.App.3d 221 (Blair) (see Stockett, supra, 34 Cal.4th at pp. 447, 448). In one such case, “the claim asserted the plaintiff’s injury was the result of a defective door but the complaint added a count based on the failure of school personnel to supervise students.” (Blair, at p. 225.) In another, “the claim was premised on the theory that the Department of Motor Vehicles negligently permitted an uninsured driver to take a licensing test but the complaint alleged that the testing officer failed to use due care in directing the operation of the vehicle.” (Ibid.) In another, the medical malpractice claim “alleged negligence in the diagnosis and treatment but the complaint added an allegation charging defendants with wrongfully failing to seek assistance from medical professionals possessing needed expertise.” (Id. at pp. 225-226.) And in another case, the plaintiff “sought to recover for damage to his property caused by floodwaters. The claim alleged that state water agencies provided incorrect information about the expected river flows. However, the complaint alleged that the state was negligent in the operation of its dams.” (Id. at p. 226.) And in a final example where the litigation theory “fatal[ly] diverge[d]” from the claim, “the claim stated that the defendant agency was derelict in issuing a driver’s license to a person with epilepsy. But the complaint premised recovery on the ground the state should have revoked the driver’s license for failure of the licensee to comply with the financial responsibility laws.” (Ibid.) These are the kinds of cases, Blair said in language adopted by the Supreme Court in Stockett, in which “the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.” (Blair, at p. 226.; see also Stockett, at pp. 447, 448.)

The parties cite two subsequent decisions by the same appellate court that decided Blair (the Third District), which illustrate similar limitations and are particularly instructive here.

Crow v. State of California (1990) 222 Cal.App.3d 192, cited by the school, was a personal injury lawsuit against a university by a student who had been assaulted in his dormitory by another student. Crow affirmed summary adjudication for the university on two of the student’s causes of action on the ground they hadn’t been presented in his written government claim. The student’s claim described the circumstances as follows: “ ‘Student at California State University, known to the University to be dangerous to other students and known by California State University to have a history of assaulting other students in dorm[i]tories assaulted claimant [while] in the Dra[p]er Hall dorm[i]tory.’ ” (Crow, at p. 201.) When the student brought suit, he asserted a negligence claim against the university alleging the school failed to protect him despite its knowledge of the assailant’s dangerous propensities. (See id. at p. 197.) But he also asserted two contract claims based on the same assault and injuries: one alleging a breach of the warranty of habitability arising from the student’s dormitory agreement with the university, and another cause of action alleging negligent misrepresentations about the safety of the dormitory (see id. at pp. 197-198)).

Crow held plaintiff’s claim, even viewed liberally, could not support either cause of action based on the dormitory agreement (whether in contract or tort), because “there were no direct or inferential facts in the claim . . . [that] would support them.” (Crow, supra, 222 Cal.App.3d at pp. 198-199, 201.) “The claim . . . simply identified the plaintiff as having been assaulted in the Draper Hall dormitory. It takes an inferential leap to recognize from this allegation that the plaintiff was even a student at the university as opposed to a mere nonstudent visitor. But there is absolutely no fact in this description from which [the university] could determine if either (1) the plaintiff was an on-campus student seeking damages under his contract with the university, or (2) [the university] had a duty created by the contract or a landlord/tenant ‘special relationship’ with the plaintiff by reason of the contract, or (3) it had made a misrepresentation of safety to him in the contract, all of which require the contract as the necessary ‘occurrence or transaction [giving] rise to the claim asserted.’ ([Gov. Code,] § 910.) . . . . [The university] might well have concluded it had no liability for injuries in a fracas to one who was either an off-campus student or a mere visitor, while the new facts of a contractual guarantee of safety conceivably might have changed its position.” (Id. at pp. 201-202.)

To similar effect is Turner v. State of California (1991) 232 Cal.App.3d 883 (Turner), cited by the Neeleys, a personal injury lawsuit involving a shooting by an unidentified person in the parking lot of a public fairground. (Id. at p. 887.) The shooting victim’s government claim alleged “dangerous conditions of property,” a failure to warn of or protect against known gang-related violence, reckless conduct of security officers in possibly firing the shot, negligence, and other legal claims. (Id. at pp. 888-889.) It did not mention inadequate lighting as a basis for the dangerous condition of property or as a basis for the public entity’s negligent conduct. (Id. at p. 889.)

Distinguishing cases in which “the allegations in the claim were broad enough to encompass those in the complaint” (Turner, supra, 232 Cal.App.3d at p. 890), Turner upheld the trial court’s ruling that the lighting theory was barred. “Read in its entirety,” Turner reasoned, “the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff’s injuries. [¶] . . . The claim here alleged one factual scenario, i.e., the presence of criminal activity; plaintiff is attempting to introduce another, i.e., inadequate lighting. The trial court was therefore correct in refusing to consider inadequate lighting evidence to defeat summary judgment.” (Id. at pp. 890-891.) In other words, the claim’s very general reference to “dangerous conditions of property” had to be read in the context of the facts the claim discussed. (Accord, Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 40 (Connelly) [claim “should be viewed in its entirety” to determine if it is “susceptible to an interpretation that reasonably enables the public entity to make an adequate investigation and settle the claim”].) And unlike in Stockett, the inadequate lighting theory of liability did not involve “the same wrongful act” as was stated in the government claim. (Stockett, supra, 34 Cal.4th at p. 448.)

II.

Analysis

As in Crow and Turner, the Neeleys’ government claim was not sufficient to apprise the school the Neeleys sought to hold them liable for failing to provide Tyler with appropriate special education services, to which he was uniquely entitled under federal law. Their special education theory of liability was based on an entirely different set of facts and involved both different wrongdoers and different wrongful acts committed at different times than the incident their written claim describes. The only commonality is that their government claim and their theory of trial both assert the school contributed to Tyler’s descent into a tragically fatal depression. This is not enough.

The claims statute requires a plaintiff to specify the date of the occurrence that gives rise to the claim. (Gov. Code, § 910) The only date the Neeleys’ claim specifies (other than the date of Tyler’s death) is the date of Tyler’s football-related arm injury (Tyler “suffered bodily injuries on November 19, 2013, which injuries caused him mental and emotional distress and severe major depression [which] led [him] to take his own life”). The claim says nothing about anything that transpired earlier, including during the previous academic year which is when the Neeleys contended the school should have begun providing Tyler with federally required mental health services.

The claims statute also requires a plaintiff to describe the “circumstances” of the occurrence. (Gov. Code, § 910.) Their claim expressly says the injury to Tyler on November 19, 2013, “forms the basis of this claim.” That is not “the same wrongful act” (Stockett, supra, 34 Cal.4th at p. 448) as the school’s failures to provide him with required special education services. In addition, the only circumstances their claim goes on to describe is the football-related arm injury and its aftermath, including the known impact that such an injury would have on Tyler (i.e., “severe mental and emotional distress and severe major depression” as a result of being disabled from participating in athletic activities); and, contrary to the Neeleys’ closing argument to the jury that “[w]e’re not claiming that Tyler’s football injury caused his suicide” (italics added), the claim asserts the negligent arm injury caused the emotional distress and depression that led Tyler to take his own life. Despite the claim’s extremely detailed description of these circumstances (nearly two pages in length, single-spaced), it says nothing about Tyler having pre-existing mental or emotional difficulties that required mental health intervention; nothing about warning signs of emotional disturbance at school beginning in his junior year; nothing about whether these emotional difficulties were interfering with his schooling, which is what would trigger a duty under federal law to provide special education services. The claim did not even mention his status as a special education student, which was argued to be “one of the cornerstones of the case” by the time it reached the jury. As in Crow, “it takes an inferential leap” to recognize from the Neeleys’ claim that Tyler even was a special education student (Crow, supra, 222 Cal.App.3d at p. 201), much less that the Neeleys’ sought to charge the school with liability for his death because of that critical fact.

The statute also requires a plaintiff to identify the wrongdoers by “name or names,” if known. (Gov. Code, § 910.) The only people named in the Neeleys’ claim as “legally responsible” for Tyler’s death, and whose negligence allegedly caused it, are the school’s vice-principal (Mahood) and four members of the high school football coaching staff. Not the school psychologist, Jennifer Beasley. Not the school safety advocate, Liz Siliato, whom the Neeleys describe as the school official “who works with the students . . . at risk for hurting themselves or others.” And not Tyler’s special education manager and co-chair of the school’s Special Education Department, Julie Suess.

Ignoring most of the substance of the five-and-a-half page claim, the Neeleys zero in on a statement at page four alleging the school “[n]egligently, carelessly, and unreasonably failed to assist [Tyler] in obtaining care for the emotional distress and major depression that he suffered.” Even read in isolation, however, that vague allegation, which is buried deep in a list of 13 bullet points, does not give the school notice of the special education liability theory the Neeleys asserted at trial. As just discussed, the written claim is devoid of any actual facts relating to that theory; the allegation the Neeleys point to is little more than boilerplate. And while sometimes, depending on context, a claim’s general allegations can reasonably be understood to encompass a specific theory of liability or injury, no lawyer reading the Neeleys’ allegation concerning mental health care could reasonably understand it to embrace the special education theory of wrongful death pressed at trial. It was no garden-variety tort theory involving recognized, settled legal principles. On the contrary, the Neeley’s special education theory was quite unique, indeed unprecedented in some ways, raising thorny issues of federal preemption that consumed lengthy briefing below and resulted in a ruling and certification by the trial court attesting to its novelty, followed by a writ petition to this court.

Furthermore, even if theoretically this allegation could reasonably be interpreted in isolation to mean what the Neeleys now say it does, read in context of the entire five-and-a-half page-claim as it must be (see Turner, supra, 232 Cal.App.3d at pp. 890-891; Connelly, supra, 146 Cal.App.4th at p. 40), it simply cannot. Their claim alleges the football injury caused Tyler’s serious depression which is what caused him to commit suicide. The only duty to provide him mental health counseling that can be inferred from the facts stated in the claim arose from the school’s alleged knowledge that his inability to play football would cause him to become severely depressed, which is what the claim alleges did in fact cause his mental and emotional troubles. At most, that was a claim of general negligence, not one resting on special duties to Tyler arising from a unique set of statutory rights. It simply cannot be inferred from anything in the Neeley’s written claim that they were alleging Tyler had pre-existing mental health needs the school failed properly to address, much less that the school’s alleged obligation to provide him with assistance to care for his depression arose from his academic needs as a special education student. For this reason, unlike in Stockett, the Neeleys’ claim did not provide sufficient detail for the school to investigate their special education theory of wrongful death. (Stockett, supra, 34 Cal.4th at p. 443.) Rather, like the general allegation of a dangerous condition in the government claim in Turner, the general allegation the Neeleys point to here concerning mental health treatment does not put the school on notice of the liability theory they sought to press at trial. Their special education theory of wrongful death was, simply put, entirely different from the football injury theory of wrongful death asserted in their government claim.

We recognize, of course, that school officials would have known Tyler was a special education student with an IEP, which is a fact the trial court found significant. But that does not change the problem that the matters alleged in the written claim did not give the school any reason to think the Neeleys believed the school had been negligent in its administration of Tyler’s IEP, or even that there was a connection between Tyler’s special education status and his suicide. The school undoubtedly knew a great deal about Tyler beyond the details contained in the Neeleys’ written claim—who his teachers were, for example, what classes he was enrolled in, his grades, the extra-curricular activities he participated in, his disciplinary record, his attendance record and indeed his entire social and academic history as reflected in his high school records. The school could no more glean from the Neeleys’ written claim that they sought to hold the school responsible for Tyler’s suicide by having failed to provide him with federally mandated special education services beginning in his junior year, than it could guess whether the Neeleys believed Tyler’s suicide was precipitated by some other alleged wrongdoing on the school’s part distinct from the negligently inflicted football injury (such as ignoring complaints of mistreatment or abuse by a teacher or another student, for example, or causing another injury that impaired Tyler’s ability to participate in activities that were essential to his mental health and emotional wellness). The Neeleys’ special education theory of wrongful death was based on different wrongful acts, committed at different times and by different people than those described in their claim. (See Stockett, supra, 34 Cal.4th at p. 447.) It did not merely “elaborate[]” upon or “add[] further detail” to the claim’s allegation about mental health care but was a “ ‘complete shift’ ” in theory. (Ibid.; see also Turner, supra, 232 Cal.App.3d at p. 890.)

Indeed, unlike in Stockett, the Neeleys’ special education theory of wrongful death that they asserted at trial did not just shift liability to people not named in the claim and change the “fundamental facts” as alleged in their claim, it represented a complete about-face from the liability theory advanced in their written claim: that his negligently inflicted arm injury did ultimately cause his suicide.

The trial court regarded this as a close question. It recognized the Neeleys’ claim was “fairly scant on the issue of mental health services” and this was “not necessarily an easy issue to decide.” Despite the trial court’s thoughtful consideration of this legal issue, it erred in allowing the Neeleys’ special education-based claim of negligence to go to the jury.

Because all of the issues the Neeleys raise on appeal concern that wrongful death claim, not the personal injury claim which the jury rejected, it is unnecessary to address their appellate arguments. As sympathetic as we are to the tragedy that befell the Neeleys, there is no basis to disturb the judgment.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs.

 

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Neeley v. San Mateo Union High School District (A152043)