Preview
Joseph H. Low IV (SBN 194897)
THE LAW FIRM OF JOSEPH H. LOW IV
100 Oceangate, 12 Floor
Long Beach, CA 90802
Telephone: (562) 901-0840
Facsimile: (562) 901-0841
joseph@jhllaw.com
Patricia Lewis, SBN 212728
LEWIS LAW, California Professional Corporation
755 West A Street, Suite 100
San Diego, CA 92101-0700
Telephone: (619) 225-0747
Facsimile: (619) 255-2452
palewis@lawfirmpal.com
-counsel for Plaintiff, GIRL DOE, a minor
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA, DOWNTOWN SUPERIOR COURT
GIRL DOE, a minor, Case No.: 17CV307094
by her Guardian ad Litem, FATHER DOE,
PLAINTIFF’S MEMORANDUM OF
Plaintiff, POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT’S MOTION
vs. FOR SUMMARY JUDGMENT OR
ALTERNATIVE MOTION FOR SUMMARY
LOS ALTOS SCHOOL DISTRICT ADJUDICATION
and DOES 1 to 50,
Filed: March 8, 2017
Defendants. Trial: October 15, 2018
Date: September 13, 2018
Time 9:00 a.m.
Department: 19
Judge: Hon. Peter H. Kirwan
[Separate Statement in Opposition to MSJ/MSA;
Declaration of Patricia Lewis (Exhibits A-G);
Declaration of Father Doe (Exhibit 1);
Declaration of Service]
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
TABLE OF CONTENTS
Page
I. INTRODUCTORY FACTS ………………………………………………………
II. PROCEDURAL FACTS …………………………………………………………
III. LEGAL ARGUMENT ……………………………………………………………
A. Legal Standard for MSJ …………………………………………………..
Triable Issues of Material Fact Preclude Summary Judgment ……………
First Cause of Action General Negligence Cannot be Adjudicated
As to Duty When it Identifies Statutory Mandates (Edu Code §§ 220,
233.5, 44807) ……………………………………………………………..
D. Public Entity Not Liable Except as Provided by Statute (Gov. Code §
815) ……………………………………………………………………….
The Mandatory Duty of a School District is to Protect from Harm
(Gov. Code § 815.6) ………………………………………………………
F. Second Cause of Action Negligence Per Se Authorized Under
Evidence Code section 669 ……………………………………………….
The District has a Duty to Prohibit Discrimination Based on Age under
Education Code § 220: The Boys Were Charged with Penal Code § 288,
Defined to Include “Childhood Sexual Abuse” Under CCP § 340.1 ……..
The District Has a Duty to Provide an Educational Environment Free
From Discriminatory Attitudesto Prevent Hate Violence (Edu Code §
The Duty to Supervise Children is Mandated in Part by Edu. Code §
The District Waives any Defects in Girl Doe’s Tort Claim by its Failure
to Give Notice of Deficiencies ……………………………………………
IV. CONCLUSION …………………………………………………………………..
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
TABLE OF AUTHORITIES
Cases Page
A.M. v. Ventura Unified School District (20160 3 Cal.App.5 …………………….
Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4 ……………………………
Allyson v. Department of Transportation (1997) 53 Cla.App.4 …………………..
Blair v. Superior Court (Department of Transportation) (1990) 218 Cal.App.3d 221
C.N. v. Wolfe, 410 F. Supp2d 894 (C.D. Cal. 2005)
Cerna v. City of Oakland (2008) 161 Cal.App.4
Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741
David v. Hernandez (2014) 226 Cal.App.4
DiCampli Mintz v. County of Santa Clara (2012) 55 Cal.4 ………………………..
Donovan v. Poway Unified School District (2008) 167 Cal. App.4 ………………..
Government Employees Insurance Company v. Superior Court (Sims) (2000)
79 Cal.Ap …………………………………………………………………………
Iverson v. Muroc Unified School District (2001) 26 Cal.4 …………………………
J.H. v. Los Angeles Unified School District (2010) 183 Cal.App.4 ………………..
Jacobs Farms/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4
Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4
Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.Ap.4 ………………….
M.W. v. Panama Buena Vista Union School District (2003) 110 Cal.Ap.4
Phillips v. Desert Hospital District (1989) 49 Cal.3d 699
Toste v. CalPortland Construction (2016) 245 Cal.App.4 …………………………
Yuzon v. Collins (2004) 116 Cal.A …………………………………………….
Statutes
Code of Civil Procedure section 340.1
Education Code section 220
Education Code section 233.5
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
Education Code section 44
Education Code section 49000
Evidence Code section 669 ……………………………………………………
Government Code section 815 ……………………………………………………
Government Code section 815.2
Government Code section 815.6
Government Code section 820 ……………………………………………………
Government Code section 910 ……………………………………………………
Government Code section 910.2 ………………………………………………….
Government Code section 910.8 ………………………………
Government Code section 911 ……………………………………………………
Penal Code section 236 …………………………………………………………...
Penal Code section 288 …………………………………………………………...
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
Plaintiff, Girl Doe, a minor, by her Guardian ad Litem, Father Doe (Girl Doe),
respectfully submits the following memorandum of points and authorities in opposition to the
motion for summary judgment(MSJ)or alternative summary adjudication (MSA) brought by
defendant, Los Altos School District (District):
INTRODUCTORY FACTS
Girl Doe alleges two causes of action against the District, for negligence and negligence
per sefor breach of the District’s affirmative duties to protect Girl Doe, negligent failure to train
staff, instruct and supervise students, violating Education Code sections 220, 233.5 and 44807,
resulting in injuries and damages to Girl Doe [Separate Statement (SS) 1, 2]
The facts underlying the action are that, on 01 2016 and 01 2016, Girl Doe, a
inor of 7 years, was sexually assaulted, attacked, bullied and harassed by two 8 year old boys
during the lunch hour behind the shed on the playground at Loyola Elementary School, within
the District’s jurisdiction. The boys were charged in Juvenile Court with felony violations of
Penal Code section288(b)(1) for lewd and lascivious acts and Penal Code section for false
imprisonment (SS 52).
Girl Doe participated in therapy with Cecilia Long, LMFT, after the sex assault where
Girl Doe acted out conflict in play therapy (SS 71). Ms. Long recommends continued therapy
with Girl Doe demonstrating inappropriate sexual behavior including being open about
nakedness (SS 75), showing underwear to her cousins (SS 76), making crutches for her
stuffed animalGoldenrod, who needed a wheelchair and crutches after the sex assault (SS 77),
kissing her cousin with their tongues (SS 78), groping her grandmother by putting a hand down
her shirt and a hand up her leg to her crotch (SS 67, 79). Ms. Long testified thaGirl Doe could
expect to demonstrate symptoms from the sex assault later in life (SS 72), at puberty, with first
relationships, in developmental stages, and the first encounter with a marital partner might
trigger feelings of shame and mistrust (SS 73, 74). The facts compel a jury to determine
compensation for the harm caused by the District’s failure to meet its duties to protect Girl Doe.
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
PROCEDURAL FACTS
Trial is set for 10 2018The parties have engaged in extensive written discovery a
taken multiple depositions. Designation of experts was set for 08 Girl Doe has filed a
motion for bifurcation of liability from damages. A mandatory settlement conference is
scheduled for 10 2018.
LEGAL ARGUMENT
The District moves for summary judgment Girl Doe’s complaint (MSJ) on the basis
that there are no triable issues of material fact, and summary adjudication (MSA) of the first
cause of action for negligence and MSA on the second cause of action for negligence per se
under Education Code section 220, 233.5 and 44807.
Legal Standard forMSJ
The MSJ must persuade the court that there are no triable issues of material fact of both
causes of action of the entire complaint. The moving party bears the burden of persuasionthat
the elements of a cause of action are not established. See, Aguilar v. Atlantic Richfield Company
(2001) 25 Cal.4 826, 850. Here, the District cannot meet its burden of persuasion. he
compulsory nature of public education gives rise to the District’s duties toprotect its students.
Girl Doe’s burden is to persuade the court that specific facts show a triable issue of
material fact. Law Offices of Dixon R. Howell v. Valley(2005) 129 Cal.App.4 An
issue of fact is created by conflict, notspeculation or possibilities. See, Yuzon v. Collins (2004)
116 Cal.A 149, 166. The opposing party does not need to prove its case. The court will
deny the motion if there is a triable issue of fact. See, Government EmployeesInsurance
Company v. Superior urt(Sims) (2000) 79 Cal.App.4 Where specific facts are
offered which demonstrate a triable issue of fact, the motion will be denied. See, Allyson v.
Department of Transportation (1997) 53 Cal.App.4 Girl Doe offers deposition
testimony as evidence of triable issues regarding the District’s failure to supervise (SS 54 64),
train (SS 8 10) and instruct (SS 44), causation (SS 12, 14 44) and damages (SS 65
79).
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
The moving party must also bear the burden of productionof evidence to make a prima
facie showing that there are iable issues of material fact. See, Aguilar v. Atlantic Richfield,
supra, 25 Cal.4 at 8 Here, the evidence shows triable issues of material facts (SS 8
64 and 65
Triable Issues of Material Fact Preclude Summary Judgment
The District moves for summary judgment on the basis that there are no triable issues of
material fact (Motion, 2:2 4). Girl Doe argues there are material facts for a jury to determine
including, but not limited to:
whether the shed was a safe place for children to be unsupervised (SS 54 64);
whether District train staff to supervise the area behind the shed (SS 8 10)
whether Districtinstruct students not to play behind the shed(SS
whether Girl Doe was sexually assaulted behind the shed during school
(SS 12, 14
whether District’s failures to train, instruct, supervise caused Girl Doe’s harm
(SS 32, 34 44);
the harm suffered by, andareexpected to be suffered by, Girl Doe (SS 6
The District cannot ignore these facts which are triable issues of fact for the jury’s determination
(SS 8 64).
C. First Cause of Action General Negligence Cannot Be Adjudicated as to Duty
When It Identifies Statutory Mandates (Edu. Code § 220, 233.5, 44807)
The District’s MSA on the first cause of action for negligence , seeks a summary
adjudication of its duty to Girl Doe (Motion, 2:10 11).
Public Entity Not Liable Except as Provided by Statute (Gov. Code §815)
School Districts in California are public entities, which are generally not liable for
injuries on its premises, except as provided by statute [Gov’t Code § 815(a)]. To maintain an
action for negligence against a school district, plaintiff must identify the underlying statutory
obligations.
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
Here, Girl Doe alleges the District failed to train its staff, instruct and supervise its
students (SS 1). To maintain the general negligence allegations of the first cause of action, Girl
Doe must identify the statutes which provide the duty. Here, Girl Doe, in the first cause of action
for general negligence, identified the District’s responsibilities as they arise out of Education
Code sections 220, 233.5 and 44807.
A private right of action is shown by legislative intent in Education Code section 220
which prohibits hate crime discrimination based on age and sexHere, Girl Doe is a female child
who is sexually assaulted by two male boys on the school grounds: a hate crime discriminating
against Girl Doe’s genderand age. The District has a duty to prohibitdiscrimination b ed on
ge under Education Code 220: the boys were charged with Penal Code 288, defined to include
hildhood sex a buse” nder CCP § 340.1
Education Code section 233.5 requires a teacher to instruct on morals, to avoid idleness,
profanity and falsehoods, and create an educational environment free from hate violence. Here,
the District maintained the shed on the playground where children could play without
supervision: not an educational environment free from violence.
A special relationship exists between a student and a school which creates the affirmative
duty to protect and supervise students underEducation Code section 44807. The duty does not
depend on foreseeability, butexists in part from the compulsory nature of education.
The Mandatory Duty of a School District is to Protect from Harm (Gov. Code §
Where a statutory duty is imposed on a school district which is designed to protect
against risk of injury, thepublic entity school district is liable for those injuries proximately
caused by the district’s failure to discharge its duty unless the entity establishes it exercised
reasonable diligence (Gov’t Code section 815.6).
Authorities at a school have a duty to supervise children at all timeswhile on school
grounds and to enforce the rules and regulations which protect them. See, Dailey v. Los Angeles
Unified School District(1970) 2 Cal.3d 741, 747. In Dailey, the plaintiff suffered a skull
fracture and died as a result of a slap boxing match at school. The slap boxing was a common
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
occurrence, but the instructor was in a room, seated with his back to the window where he
neither heard nor saw the slap boxing event at which 30 students had gathered.
The California Supreme Court outlined the duty owed to students on school grounds,
reaffirming case law:
While school districts and their employees have never been considered
The 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].
Ibid., at 747.
The standard of care owed by school personnel to supervise is the same as required by their other
duties. “This uniform standard to which they are held is that degree of care ‘which a person of
ordinary prudence, charged with [comparable] duties, would exercise under the same
circumstances.’(Citation).” Ibid. “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.” Ibid.
A school district is vicariously liable for injuries proximately caused by the negligence of
those responsible for student supervision [Gov’t Code §815.2(a)]. See, J.H. v. Los Angeles
Unified School District (2010) 183 Cal.App.4 123, 143 [citing Dailey v. Los Angeles Unified
School District (1970) 2 Cal.3d 741]. J.H. was sexually assaulted during the after school care
program. She appealed a grant of summary judgment, which was reversed. The trial court
granted summary judgment, finding no duty of care to children in a voluntary after school
program, which was reversed under the vicarious liability standard imposed by Government
Code sections 815.2 and 820. At the outset, the issues decided on de novoreview were whether
the school district and employees owe a duty of care to J.H.in operati ng an after school care
program, and, if so, whether the supervision was adequate enough to not fall below the standard
of care, as a matter of law. The court noted that the case law is “… very, very well established.”
Ibid, at 139.
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
‘It is theduty 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]’ (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).
Ibid., at 139
The appellate court in J.H.found that the school district and employees have a duty to
use ordinary care to supervise the after school program. Ibid., at 148. The court further held:
Plaintiff need not show that the very type of injury she sustained was
oreseeable in the absence of adequate supervision. Thus, although one
ight argue that the instant case raises the question whether it is foreseeable
hat first and second grade students would sexually assault plaintiff, the
uestion is accurately framed as whether it is foreseeable that one child
ay be assaulted by another child during the [after school program] in the
bsence of adequate protective safeguards, as plaintiff asserts occurred in
his case. Although a sexual assault on a young student by a child of similar
age is shocking, nevertheless playground supervisors are required to be on
the lookout for the safety of their charges, including assaults on children,
not just for specific forms of assault.
Ibid.
Here, the District maintained a shed on its premises near the playground, where children
were known to play without being seen [SS 8 10]. Girl Doe suffered a sex assault by two boys
on the premises of Loyola Elementary School (SS 65). Girl Doe demonstrated aberrant sexual
behavior following the sex assault after receiving therapy from Cecilia Long, LMFT (SS 71, 75
79). Ms. Long testified that Girl Doe could expect to demonstrate symptoms later in life from
the sex assault, at puberty, with first relationships, in developmental stages, and the first
encounter with a marital partner which might trigger feelings of shame and mistrust (SS 72 74).
The entity has a mandatory duty to protect against particular injuries, imposed by a
statute or regulation designed to protect against the harm, and isliable for the harm unless the
entity can establish that it took reasonable steps to discharge its duty (Gov’t Code §815.6).
Here, the District failed to take reasonable steps to discharge its mandatory duty to
reasonably supervise students playing behind the shed. Lisa Swarbrick, the second grade
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
teacher, testified that when she had yard duty she patrolled the area near the sheds because
hildren play there a lot and it’s not a safe place to play (SS 10). Yard duty personnel, Nimmi
Rao, had seen children behind the shed 3 or 4 times in the 2015/2016 school year before Girl
Doe’s attack in January 2016, and 3 or 4 times in the prior school year 2014/2015 (SS 8, 10).
While the space behindthe shed was small for an adult, it was just the kind of place for children
to play hide and seek. While principal Kimberly Attell would not testify whether someone might
get hurt playing around that chainlink fence behind the shed, and Attell could not testify whether
it was a safe place to play, Attell did not see it as a danger before the sex attack on Girl Doe in
January 2016 (SS 57).
SecondCause of Action Negligence Per Se Authorized under Evidence Code
section 669.
The District’s MSA on the second cause of action for per senegligence, seeks summary
adjudication of whether the action is cognizable, whether a standard of per senegligence exists,
and whether a legal duty exists (Motion, 2: 20). Girl Doe argues that the jury decides whether
theDistrict violated the law (Edu Code §§ 220, 233.5, 44807), causation and damages. It is for
the court to decide whether the statute is designed to prevent the harm and plaintiff’s status as a
person for whom the statute was intended to protect (Evid Code §669).
Evidence Code section 669 allows the presumption of negligence where plaintiff alleges
the defendant violated a statute. The Evidence Code section 669 presumption arises when
efend ant violated the statute;
plaintiff’s injury was proximately caused by defendant’s violation of the statute;
the statute was designed to prevent the kind of injury suffered by plaintiff;
plaintiff is in that class of persons the statute was intended to protect.
The jury, as trier of fact, determines the first two elements of negligence per se. The court
decides, as a matter of law, whether the statute was of a kind which would prevent the injuries,
and was enacted to protect those such as plaintiff. See, Jacobs Farm/Del Cabo, Inc. v. Western
Farm Service, Inc. (2010) 190 Cal. App.4 1502, 1526. While the plaintiff uses the statute to
prove duty and standard of care, plaintiff still must prove causation. See, David v. Hernandez
(2014) 226 Cal.App
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
In a negligence per se action, defendant’s burden of proof does not arise to prove the
statutory violation did not cause plaintiff’s injuries, until evidence is produced by plaintiff that a
violation of statute exists, and that there is a substantial probability that injury was caused bythe
violation of the statute. See,Toste v. CalPortland Construction(2016) 245 Cal.App.4
The District Has a Duty to ProhibitDiscrimination Bas ed on Ageunder Education
Code 220 The Boys Wer e Charged with Penal Code 288, Defined to Include
“Childhood Sex Abuse” Under CCP § 340.1
Education Code section 220 prohibits discrimination on the basis of age, gender, sex
harassment and other characteristics defined as hate crimes in a program receiving State funding.
Section 220 authorizes a private right of action to enforce the statute which provides for
educational equality. See, C.N. v. Wolf 410 F.Supp.2d 894 (C.D. Cal 2005). Money damages
are available under the State’s antidiscrimination education statute. See, Donovan v. Poway
Unified School District (2008) 167 Cal.App. 567, rehearing denied. The legislative intent of
Education Code section 220 indicates a remedy other than injunctive relief is available. Ibid.
Here, the two boys who sexually assaulted Girl Doe, were charged in Juvenile Court with
violations of Penal Code section 288(b)(1), being lewd and lascivious acts on a minor, a felony.
Childhood sexual abuse is defined as “an action for liability against any person or entity who
owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity
was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.”
[CCP § 340.1(a)(2)]. The statute further defines “childhood sexual abuse” to include acts against
children under age 18, proscribed by section 288 of the Penal Code [CCP § 340.1(e)].
The District’s failure to instruct and supervise the boys(SS 8, 10, 32, 34 44), allowed the
boys to commit lewd and lascivious acts on a minor, violations of Penal Code section 288(b)(1),
further included as “childhood sexual abuse.” (SS 52). Education Code 220 proscribes this
failure as discriminatory on the basis of age, gender, and sex harassment. Education Code 220
further defines the District’s duty to prevent this discriminatory sex abuse against Girl Doe.
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
The District has a Duty to Provide an Educational Environment Free From
Discriminatory Attitudes to Prevent Hate Violence (Edu. Code §233.5)
Education Code section 233.5(a) requires that each teachershall instruct on the meaning
of equality and human dignity including promotion of harmony and kindness, to avoid idleness,
profanity, and falsehood, and to instruct in manners and moralsSecond grade teacher,
Swarbrick, testified that she didn’t know much about the “Second Step” program for social
emotional instruction of students (SS 38).
Subsection (b) of Education Code 233.5, requires each teacher to create an environment
free from discriminatory attitudes to prevent hate violence.
Here, the Districtcreated an environment which endorsed the opportunity for children to
do whatever they wished while unsupervised behind the shed, including hate violence and sex
assault. The District failed to instruct its student to not pla y behind the Shed (SS 32, 44). Yard
Duty personnel was not instructed but had found students playing behind the Shed on 3 or 4
times in the 2015/2016 school year before Girl Doe was sexually assaulted, and on 3 or 4 times
in the 2014/2015 schoolyear, and had seen children approaching the rear of the s hed in prior
years (SS 8, 10). Second grade teacher, Swarbrick, testified she did not receive instruction as a
yard duty person about children and that shed (SS 32). All of this in the face of principal Attell’s
testimony that she believed the unsupervised area behind the shed was safe (SS 57, 58).
I. The Duty to Supervise Children is Mandated in Part by Edu Code 44807.
“Every teacher in the public schools shall hold pupils to a strict account for their conduct
on the way to and from school, on the playgrounds, or during recess.” (Educ. Code §44807).
This statute,Education Code section 44807, is titled, “Duty Concerning Conduct of Pupils.”
Education Code section 44807 does not supersede, but isin addition to the provisions of
Education Code section 49000, which is a declaration of legislative intent to protect “Children of
school age who are at the most vulnerable and impressionable period of their lives, and it is
wholly reasonable that the safeguards to the integrity and sanctity of their bodies should be, at
this tender age, at least equal to that afforded to other citizens.” (Edu. Code § 49000).
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
There is a special relationship between the school and its pupils, which imposes an
affirmative duty to reasonably protect the students. The duty arises in part from the compulsory
nature of education. M.W. v. Panama Buena Vista Union School District(2003) 110 Cal.App.4
508, review denied. The M.W.verdict of $2.3 million was affirmed against the school district for
its negligent failure to supervise and careless failure to guard, maintain, inspect and manage its
school premises. Plaintiff alleged a violation of the district’s mandatory duty to supervise under
Education Code section 44807. M.W.was an 8 grade special education student who was
sodomized in the school bathroom in the early morning hours before school started. The court
summarized:
The school district appeals, arguing that it owed no duty of care to the
tudent to prevent the sexual assault. We disagree. The assault occurred
n the school’s watch, wh le the student was entrusted to the school’s care.
It was substantially caused by the school’s indifference toward the dangers
posed by failing to adequately supervise its students, particularly special
education students. In the published portion of this opinion, we find the
school district owed the student a duty of care to protect him from this
foreseeable assault.
In the unpublished portion of this opinion, we determine the district
was not immune from liability and sufficient evidence supports the
jury’s findings of liability and damages. We affirm the judgment.
Ibid., at 511.
The duty depends partly on whether the harm is reasonably foreseeable, but foreseeability is not
requiredto determine whether the school owes a duty of care to a student who is sexually
assaulted. Ibid.Students are not at risk by being a t school. Ibid. The burden on the school to
provide supervision is minimal, but thepolicy of providing a safe learning environment is
paramount. Ibid.A student may recover for injuries caused by a breach of the school’s duty to
superviseIbid.
Either lack of supervision or ineffective supervision may constitute lack of ordinary car
by those responsible for students, and violate the standard of care imposed on those who
supervise children’s conduct at school. See, Jennifer C. v. Los Angeles Unified School District
(2008) 168 Cal.App.4 1320, review denied.Jennifer C. was a speci al education student who
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
was sexually assaulted during lunch period by another student in an alcove on the school
premises. The trial court granted summary judgment for the school district which was reversed
on appeal. The appellate court recited that,
[C]alifornia 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]
Ibid., at 1326
Maintaining a hiding place on campus where a child can be victimized satisfies
foreseeability in the analysis of duty to determine liability based on negligent supervision. Ibid.
A degree of moral blamefor negligent supervision will attach to a sch ool for maintaining a
hiding place for sexual assault. Ibid.
The standard of care is that which one of ordinary prudence, charged with comparable
duty, would exercise under the same circumstances. Ibid.
Schools and their employees are not insurers of thephysical safety of students, but are
placed under a general dutyto supervise the children’s conduct on school grounds, during school
session, school activities and lunch. See, Cerna v. City of Oakland(2008) 161 Cal.App.4
hearing denied, review denied. This general dutyextends to recesses, and the determination of
negligence based on supervision is a question of fact. See, Iverson v. Muroc Unified School
District (1995) 32 Cal.App.4
Teachers and school administrators must have broad supervisory and disciplinary powers
to take effective action to respond appropriately to the need for effective actionSee, In re Randy
G. (2001) 26 Cal.4
Here, the District failed in many ways: failed to teach the children not to play behind the
ed (SS 44), failed to train staff who had yard duty to ensure the children do not play behind the
shed (SS 32), failed to supervise the children at lunch behind the shed SS 8, 10, 54, 57 59).
he District Waives any Deficiencies in Girl Doe’s Tort Claim by Failure to Give
Notice
In the MSA as to the second cause of action District also contends Girl Doefailed
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
to comply with the Government Tort Claim requirements by failing to identify the specific
statutes to support negligence per se(Motion, 2:21 Girl Doe argues that she substantially
complied, there is no duty to provide information not required (Gov’t Code § 910, 910.2), the
District failed to give notice of deficiencies in her tort claim and therefore waives the defect
(Gov’t Code 0.8, 911), and childhood sex abuse claims are specifically excepted from the
tort claim filing requirement (CCP § 340.1). Failure to givenotice of insufficiencies in the tort
claim, is a waiver of the defect, if any.
By using the tort claims procedure,the District allows the plaintiff to proceed under a
waiver of governmental immunity against the public entity. The purpose is to provide the entity
with information to enable an investigation on the merits, to prevent public funds from being
consumed with litigation, and afford public entities the chance to correct any conditions giving
rise to the claim. See, DiCampli Mintz v. County of Santa Clara (2012) 55 Cal.4
Where the claim involves “childhood sexual abuse” Code of Civil Proceduresection
340.1 specifically excepts the plaintiff from the claim filing requirement. See, A.M. v. Ventura
Unified School District (2016) 3 Cal.App.5 1252, 1257
The claim must be written and signed, showing, the name, address, date, place and other
circumstance of the occurrence giving rise to the claim, a general description of the injury “so far
as it is known” at the time of claim presentation, names of public employees causing the harm if
known, and whether damages excess $10,000 as a limited civil jurisdictional matter. (Gov’t
Code §§910, 910.2). The entity may provide its own claim form. There is no duty to provide
any further information than that required by statute. See, Blair v. Superior Court (Dept of
Transportation) (1990) 218 Cal.App.3d 221, 225.
Technical defects in the claim will not invalidate it, but are tested by the doctrine of
substantial compliance. The test becomes whether there is sufficient information for the entity to
investigate and evaluate the claim for settlement purposes. See, Phillips v. Desert Hospital
District (1989) 49 Cal.3d 699 706. The substantial compliance doctrine will save insufficient
claims which literally do not satisfy the statutory requirements. Ibid. Here, Father Doe prepared
a claim on Girl Doe’s behalf which met the statutory requirements (SS 47, 48).
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
Claims which are not substantially compliant still mandate the public entity to give notice
to the claimant of the defects. Without notice to the claimant the entity waives the
noncompliance defense. Ibid, at 707 Father Doe did not receive a notice from the District
that Girl Doe’s claim was defective, insufficient, or invalid in any way (SS 49).
Here, Randall Kenyon has served as the District’s assistant superintendent of business
services, since 1987. Mr. Kenyon testified that the District’s Board of Education rejects all tort
claims which are placed on the consent calendar of the Board meetings, without any discussion
of the claims. Mr. Kenyon further testified that the Board never sends notices of defects on the
tort claims, and did not send Father Doe sucha notice on Girl Doe’s claim. Girl Doe’s claim was
summarily rejected 49).
IV.
CONCLUSION
Girl Doe respectfully requests the court deny the District’s motion for summaryjudgment
and/or summary adjudication of her first and second causes of action, for the reasons stated
herein.
DATED: August 28, 2018 Respectfully Submitted,
LEWIS LAW, A California Professional Corporation
By:
PATRICIA LEWIS,
counsel for Plaintiff, Girl Doe, a minor
MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA
Preview
Joseph H. Low IV (SBN 194897) THE LAW FIRM OF JOSEPH H. LOW IV 100 Oceangate, 12 Floor Long Beach, CA 90802 Telephone: (562) 901-0840 Facsimile: (562) 901-0841 joseph@jhllaw.com Patricia Lewis, SBN 212728 LEWIS LAW, California Professional Corporation 755 West A Street, Suite 100 San Diego, CA 92101-0700 Telephone: (619) 225-0747 Facsimile: (619) 255-2452 palewis@lawfirmpal.com -counsel for Plaintiff, GIRL DOE, a minor SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA, DOWNTOWN SUPERIOR COURT GIRL DOE, a minor, Case No.: 17CV307094 by her Guardian ad Litem, FATHER DOE, PLAINTIFF’S MEMORANDUM OF Plaintiff, POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION vs. FOR SUMMARY JUDGMENT OR ALTERNATIVE MOTION FOR SUMMARY LOS ALTOS SCHOOL DISTRICT ADJUDICATION and DOES 1 to 50, Filed: March 8, 2017 Defendants. Trial: October 15, 2018 Date: September 13, 2018 Time 9:00 a.m. Department: 19 Judge: Hon. Peter H. Kirwan [Separate Statement in Opposition to MSJ/MSA; Declaration of Patricia Lewis (Exhibits A-G); Declaration of Father Doe (Exhibit 1); Declaration of Service] MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA TABLE OF CONTENTS Page I. INTRODUCTORY FACTS ……………………………………………………… II. PROCEDURAL FACTS ………………………………………………………… III. LEGAL ARGUMENT …………………………………………………………… A. Legal Standard for MSJ ………………………………………………….. Triable Issues of Material Fact Preclude Summary Judgment …………… First Cause of Action General Negligence Cannot be Adjudicated As to Duty When it Identifies Statutory Mandates (Edu Code §§ 220, 233.5, 44807) …………………………………………………………….. D. Public Entity Not Liable Except as Provided by Statute (Gov. Code § 815) ………………………………………………………………………. The Mandatory Duty of a School District is to Protect from Harm (Gov. Code § 815.6) ……………………………………………………… F. Second Cause of Action Negligence Per Se Authorized Under Evidence Code section 669 ………………………………………………. The District has a Duty to Prohibit Discrimination Based on Age under Education Code § 220: The Boys Were Charged with Penal Code § 288, Defined to Include “Childhood Sexual Abuse” Under CCP § 340.1 …….. The District Has a Duty to Provide an Educational Environment Free From Discriminatory Attitudesto Prevent Hate Violence (Edu Code § The Duty to Supervise Children is Mandated in Part by Edu. Code § The District Waives any Defects in Girl Doe’s Tort Claim by its Failure to Give Notice of Deficiencies …………………………………………… IV. CONCLUSION ………………………………………………………………….. MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA TABLE OF AUTHORITIES Cases Page A.M. v. Ventura Unified School District (20160 3 Cal.App.5 ……………………. Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4 …………………………… Allyson v. Department of Transportation (1997) 53 Cla.App.4 ………………….. Blair v. Superior Court (Department of Transportation) (1990) 218 Cal.App.3d 221 C.N. v. Wolfe, 410 F. Supp2d 894 (C.D. Cal. 2005) Cerna v. City of Oakland (2008) 161 Cal.App.4 Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741 David v. Hernandez (2014) 226 Cal.App.4 DiCampli Mintz v. County of Santa Clara (2012) 55 Cal.4 ……………………….. Donovan v. Poway Unified School District (2008) 167 Cal. App.4 ……………….. Government Employees Insurance Company v. Superior Court (Sims) (2000) 79 Cal.Ap ………………………………………………………………………… Iverson v. Muroc Unified School District (2001) 26 Cal.4 ………………………… J.H. v. Los Angeles Unified School District (2010) 183 Cal.App.4 ……………….. Jacobs Farms/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4 Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4 Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.Ap.4 …………………. M.W. v. Panama Buena Vista Union School District (2003) 110 Cal.Ap.4 Phillips v. Desert Hospital District (1989) 49 Cal.3d 699 Toste v. CalPortland Construction (2016) 245 Cal.App.4 ………………………… Yuzon v. Collins (2004) 116 Cal.A ……………………………………………. Statutes Code of Civil Procedure section 340.1 Education Code section 220 Education Code section 233.5 MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA Education Code section 44 Education Code section 49000 Evidence Code section 669 …………………………………………………… Government Code section 815 …………………………………………………… Government Code section 815.2 Government Code section 815.6 Government Code section 820 …………………………………………………… Government Code section 910 …………………………………………………… Government Code section 910.2 …………………………………………………. Government Code section 910.8 ……………………………… Government Code section 911 …………………………………………………… Penal Code section 236 …………………………………………………………... Penal Code section 288 …………………………………………………………... MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA Plaintiff, Girl Doe, a minor, by her Guardian ad Litem, Father Doe (Girl Doe), respectfully submits the following memorandum of points and authorities in opposition to the motion for summary judgment(MSJ)or alternative summary adjudication (MSA) brought by defendant, Los Altos School District (District): INTRODUCTORY FACTS Girl Doe alleges two causes of action against the District, for negligence and negligence per sefor breach of the District’s affirmative duties to protect Girl Doe, negligent failure to train staff, instruct and supervise students, violating Education Code sections 220, 233.5 and 44807, resulting in injuries and damages to Girl Doe [Separate Statement (SS) 1, 2] The facts underlying the action are that, on 01 2016 and 01 2016, Girl Doe, a inor of 7 years, was sexually assaulted, attacked, bullied and harassed by two 8 year old boys during the lunch hour behind the shed on the playground at Loyola Elementary School, within the District’s jurisdiction. The boys were charged in Juvenile Court with felony violations of Penal Code section288(b)(1) for lewd and lascivious acts and Penal Code section for false imprisonment (SS 52). Girl Doe participated in therapy with Cecilia Long, LMFT, after the sex assault where Girl Doe acted out conflict in play therapy (SS 71). Ms. Long recommends continued therapy with Girl Doe demonstrating inappropriate sexual behavior including being open about nakedness (SS 75), showing underwear to her cousins (SS 76), making crutches for her stuffed animalGoldenrod, who needed a wheelchair and crutches after the sex assault (SS 77), kissing her cousin with their tongues (SS 78), groping her grandmother by putting a hand down her shirt and a hand up her leg to her crotch (SS 67, 79). Ms. Long testified thaGirl Doe could expect to demonstrate symptoms from the sex assault later in life (SS 72), at puberty, with first relationships, in developmental stages, and the first encounter with a marital partner might trigger feelings of shame and mistrust (SS 73, 74). The facts compel a jury to determine compensation for the harm caused by the District’s failure to meet its duties to protect Girl Doe. MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA PROCEDURAL FACTS Trial is set for 10 2018The parties have engaged in extensive written discovery a taken multiple depositions. Designation of experts was set for 08 Girl Doe has filed a motion for bifurcation of liability from damages. A mandatory settlement conference is scheduled for 10 2018. LEGAL ARGUMENT The District moves for summary judgment Girl Doe’s complaint (MSJ) on the basis that there are no triable issues of material fact, and summary adjudication (MSA) of the first cause of action for negligence and MSA on the second cause of action for negligence per se under Education Code section 220, 233.5 and 44807. Legal Standard forMSJ The MSJ must persuade the court that there are no triable issues of material fact of both causes of action of the entire complaint. The moving party bears the burden of persuasionthat the elements of a cause of action are not established. See, Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4 826, 850. Here, the District cannot meet its burden of persuasion. he compulsory nature of public education gives rise to the District’s duties toprotect its students. Girl Doe’s burden is to persuade the court that specific facts show a triable issue of material fact. Law Offices of Dixon R. Howell v. Valley(2005) 129 Cal.App.4 An issue of fact is created by conflict, notspeculation or possibilities. See, Yuzon v. Collins (2004) 116 Cal.A 149, 166. The opposing party does not need to prove its case. The court will deny the motion if there is a triable issue of fact. See, Government EmployeesInsurance Company v. Superior urt(Sims) (2000) 79 Cal.App.4 Where specific facts are offered which demonstrate a triable issue of fact, the motion will be denied. See, Allyson v. Department of Transportation (1997) 53 Cal.App.4 Girl Doe offers deposition testimony as evidence of triable issues regarding the District’s failure to supervise (SS 54 64), train (SS 8 10) and instruct (SS 44), causation (SS 12, 14 44) and damages (SS 65 79). MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA The moving party must also bear the burden of productionof evidence to make a prima facie showing that there are iable issues of material fact. See, Aguilar v. Atlantic Richfield, supra, 25 Cal.4 at 8 Here, the evidence shows triable issues of material facts (SS 8 64 and 65 Triable Issues of Material Fact Preclude Summary Judgment The District moves for summary judgment on the basis that there are no triable issues of material fact (Motion, 2:2 4). Girl Doe argues there are material facts for a jury to determine including, but not limited to: whether the shed was a safe place for children to be unsupervised (SS 54 64); whether District train staff to supervise the area behind the shed (SS 8 10) whether Districtinstruct students not to play behind the shed(SS whether Girl Doe was sexually assaulted behind the shed during school (SS 12, 14 whether District’s failures to train, instruct, supervise caused Girl Doe’s harm (SS 32, 34 44); the harm suffered by, andareexpected to be suffered by, Girl Doe (SS 6 The District cannot ignore these facts which are triable issues of fact for the jury’s determination (SS 8 64). C. First Cause of Action General Negligence Cannot Be Adjudicated as to Duty When It Identifies Statutory Mandates (Edu. Code § 220, 233.5, 44807) The District’s MSA on the first cause of action for negligence , seeks a summary adjudication of its duty to Girl Doe (Motion, 2:10 11). Public Entity Not Liable Except as Provided by Statute (Gov. Code §815) School Districts in California are public entities, which are generally not liable for injuries on its premises, except as provided by statute [Gov’t Code § 815(a)]. To maintain an action for negligence against a school district, plaintiff must identify the underlying statutory obligations. MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA Here, Girl Doe alleges the District failed to train its staff, instruct and supervise its students (SS 1). To maintain the general negligence allegations of the first cause of action, Girl Doe must identify the statutes which provide the duty. Here, Girl Doe, in the first cause of action for general negligence, identified the District’s responsibilities as they arise out of Education Code sections 220, 233.5 and 44807. A private right of action is shown by legislative intent in Education Code section 220 which prohibits hate crime discrimination based on age and sexHere, Girl Doe is a female child who is sexually assaulted by two male boys on the school grounds: a hate crime discriminating against Girl Doe’s genderand age. The District has a duty to prohibitdiscrimination b ed on ge under Education Code 220: the boys were charged with Penal Code 288, defined to include hildhood sex a buse” nder CCP § 340.1 Education Code section 233.5 requires a teacher to instruct on morals, to avoid idleness, profanity and falsehoods, and create an educational environment free from hate violence. Here, the District maintained the shed on the playground where children could play without supervision: not an educational environment free from violence. A special relationship exists between a student and a school which creates the affirmative duty to protect and supervise students underEducation Code section 44807. The duty does not depend on foreseeability, butexists in part from the compulsory nature of education. The Mandatory Duty of a School District is to Protect from Harm (Gov. Code § Where a statutory duty is imposed on a school district which is designed to protect against risk of injury, thepublic entity school district is liable for those injuries proximately caused by the district’s failure to discharge its duty unless the entity establishes it exercised reasonable diligence (Gov’t Code section 815.6). Authorities at a school have a duty to supervise children at all timeswhile on school grounds and to enforce the rules and regulations which protect them. See, Dailey v. Los Angeles Unified School District(1970) 2 Cal.3d 741, 747. In Dailey, the plaintiff suffered a skull fracture and died as a result of a slap boxing match at school. The slap boxing was a common MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA occurrence, but the instructor was in a room, seated with his back to the window where he neither heard nor saw the slap boxing event at which 30 students had gathered. The California Supreme Court outlined the duty owed to students on school grounds, reaffirming case law: While school districts and their employees have never been considered The 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]. Ibid., at 747. The standard of care owed by school personnel to supervise is the same as required by their other duties. “This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’(Citation).” Ibid. “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.” Ibid. A school district is vicariously liable for injuries proximately caused by the negligence of those responsible for student supervision [Gov’t Code §815.2(a)]. See, J.H. v. Los Angeles Unified School District (2010) 183 Cal.App.4 123, 143 [citing Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741]. J.H. was sexually assaulted during the after school care program. She appealed a grant of summary judgment, which was reversed. The trial court granted summary judgment, finding no duty of care to children in a voluntary after school program, which was reversed under the vicarious liability standard imposed by Government Code sections 815.2 and 820. At the outset, the issues decided on de novoreview were whether the school district and employees owe a duty of care to J.H.in operati ng an after school care program, and, if so, whether the supervision was adequate enough to not fall below the standard of care, as a matter of law. The court noted that the case law is “… very, very well established.” Ibid, at 139. MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA ‘It is theduty 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]’ (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). Ibid., at 139 The appellate court in J.H.found that the school district and employees have a duty to use ordinary care to supervise the after school program. Ibid., at 148. The court further held: Plaintiff need not show that the very type of injury she sustained was oreseeable in the absence of adequate supervision. Thus, although one ight argue that the instant case raises the question whether it is foreseeable hat first and second grade students would sexually assault plaintiff, the uestion is accurately framed as whether it is foreseeable that one child ay be assaulted by another child during the [after school program] in the bsence of adequate protective safeguards, as plaintiff asserts occurred in his case. Although a sexual assault on a young student by a child of similar age is shocking, nevertheless playground supervisors are required to be on the lookout for the safety of their charges, including assaults on children, not just for specific forms of assault. Ibid. Here, the District maintained a shed on its premises near the playground, where children were known to play without being seen [SS 8 10]. Girl Doe suffered a sex assault by two boys on the premises of Loyola Elementary School (SS 65). Girl Doe demonstrated aberrant sexual behavior following the sex assault after receiving therapy from Cecilia Long, LMFT (SS 71, 75 79). Ms. Long testified that Girl Doe could expect to demonstrate symptoms later in life from the sex assault, at puberty, with first relationships, in developmental stages, and the first encounter with a marital partner which might trigger feelings of shame and mistrust (SS 72 74). The entity has a mandatory duty to protect against particular injuries, imposed by a statute or regulation designed to protect against the harm, and isliable for the harm unless the entity can establish that it took reasonable steps to discharge its duty (Gov’t Code §815.6). Here, the District failed to take reasonable steps to discharge its mandatory duty to reasonably supervise students playing behind the shed. Lisa Swarbrick, the second grade MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA teacher, testified that when she had yard duty she patrolled the area near the sheds because hildren play there a lot and it’s not a safe place to play (SS 10). Yard duty personnel, Nimmi Rao, had seen children behind the shed 3 or 4 times in the 2015/2016 school year before Girl Doe’s attack in January 2016, and 3 or 4 times in the prior school year 2014/2015 (SS 8, 10). While the space behindthe shed was small for an adult, it was just the kind of place for children to play hide and seek. While principal Kimberly Attell would not testify whether someone might get hurt playing around that chainlink fence behind the shed, and Attell could not testify whether it was a safe place to play, Attell did not see it as a danger before the sex attack on Girl Doe in January 2016 (SS 57). SecondCause of Action Negligence Per Se Authorized under Evidence Code section 669. The District’s MSA on the second cause of action for per senegligence, seeks summary adjudication of whether the action is cognizable, whether a standard of per senegligence exists, and whether a legal duty exists (Motion, 2: 20). Girl Doe argues that the jury decides whether theDistrict violated the law (Edu Code §§ 220, 233.5, 44807), causation and damages. It is for the court to decide whether the statute is designed to prevent the harm and plaintiff’s status as a person for whom the statute was intended to protect (Evid Code §669). Evidence Code section 669 allows the presumption of negligence where plaintiff alleges the defendant violated a statute. The Evidence Code section 669 presumption arises when efend ant violated the statute; plaintiff’s injury was proximately caused by defendant’s violation of the statute; the statute was designed to prevent the kind of injury suffered by plaintiff; plaintiff is in that class of persons the statute was intended to protect. The jury, as trier of fact, determines the first two elements of negligence per se. The court decides, as a matter of law, whether the statute was of a kind which would prevent the injuries, and was enacted to protect those such as plaintiff. See, Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal. App.4 1502, 1526. While the plaintiff uses the statute to prove duty and standard of care, plaintiff still must prove causation. See, David v. Hernandez (2014) 226 Cal.App MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA In a negligence per se action, defendant’s burden of proof does not arise to prove the statutory violation did not cause plaintiff’s injuries, until evidence is produced by plaintiff that a violation of statute exists, and that there is a substantial probability that injury was caused bythe violation of the statute. See,Toste v. CalPortland Construction(2016) 245 Cal.App.4 The District Has a Duty to ProhibitDiscrimination Bas ed on Ageunder Education Code 220 The Boys Wer e Charged with Penal Code 288, Defined to Include “Childhood Sex Abuse” Under CCP § 340.1 Education Code section 220 prohibits discrimination on the basis of age, gender, sex harassment and other characteristics defined as hate crimes in a program receiving State funding. Section 220 authorizes a private right of action to enforce the statute which provides for educational equality. See, C.N. v. Wolf 410 F.Supp.2d 894 (C.D. Cal 2005). Money damages are available under the State’s antidiscrimination education statute. See, Donovan v. Poway Unified School District (2008) 167 Cal.App. 567, rehearing denied. The legislative intent of Education Code section 220 indicates a remedy other than injunctive relief is available. Ibid. Here, the two boys who sexually assaulted Girl Doe, were charged in Juvenile Court with violations of Penal Code section 288(b)(1), being lewd and lascivious acts on a minor, a felony. Childhood sexual abuse is defined as “an action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.” [CCP § 340.1(a)(2)]. The statute further defines “childhood sexual abuse” to include acts against children under age 18, proscribed by section 288 of the Penal Code [CCP § 340.1(e)]. The District’s failure to instruct and supervise the boys(SS 8, 10, 32, 34 44), allowed the boys to commit lewd and lascivious acts on a minor, violations of Penal Code section 288(b)(1), further included as “childhood sexual abuse.” (SS 52). Education Code 220 proscribes this failure as discriminatory on the basis of age, gender, and sex harassment. Education Code 220 further defines the District’s duty to prevent this discriminatory sex abuse against Girl Doe. MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA The District has a Duty to Provide an Educational Environment Free From Discriminatory Attitudes to Prevent Hate Violence (Edu. Code §233.5) Education Code section 233.5(a) requires that each teachershall instruct on the meaning of equality and human dignity including promotion of harmony and kindness, to avoid idleness, profanity, and falsehood, and to instruct in manners and moralsSecond grade teacher, Swarbrick, testified that she didn’t know much about the “Second Step” program for social emotional instruction of students (SS 38). Subsection (b) of Education Code 233.5, requires each teacher to create an environment free from discriminatory attitudes to prevent hate violence. Here, the Districtcreated an environment which endorsed the opportunity for children to do whatever they wished while unsupervised behind the shed, including hate violence and sex assault. The District failed to instruct its student to not pla y behind the Shed (SS 32, 44). Yard Duty personnel was not instructed but had found students playing behind the Shed on 3 or 4 times in the 2015/2016 school year before Girl Doe was sexually assaulted, and on 3 or 4 times in the 2014/2015 schoolyear, and had seen children approaching the rear of the s hed in prior years (SS 8, 10). Second grade teacher, Swarbrick, testified she did not receive instruction as a yard duty person about children and that shed (SS 32). All of this in the face of principal Attell’s testimony that she believed the unsupervised area behind the shed was safe (SS 57, 58). I. The Duty to Supervise Children is Mandated in Part by Edu Code 44807. “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.” (Educ. Code §44807). This statute,Education Code section 44807, is titled, “Duty Concerning Conduct of Pupils.” Education Code section 44807 does not supersede, but isin addition to the provisions of Education Code section 49000, which is a declaration of legislative intent to protect “Children of school age who are at the most vulnerable and impressionable period of their lives, and it is wholly reasonable that the safeguards to the integrity and sanctity of their bodies should be, at this tender age, at least equal to that afforded to other citizens.” (Edu. Code § 49000). MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA There is a special relationship between the school and its pupils, which imposes an affirmative duty to reasonably protect the students. The duty arises in part from the compulsory nature of education. M.W. v. Panama Buena Vista Union School District(2003) 110 Cal.App.4 508, review denied. The M.W.verdict of $2.3 million was affirmed against the school district for its negligent failure to supervise and careless failure to guard, maintain, inspect and manage its school premises. Plaintiff alleged a violation of the district’s mandatory duty to supervise under Education Code section 44807. M.W.was an 8 grade special education student who was sodomized in the school bathroom in the early morning hours before school started. The court summarized: The school district appeals, arguing that it owed no duty of care to the tudent to prevent the sexual assault. We disagree. The assault occurred n the school’s watch, wh le the student was entrusted to the school’s care. It was substantially caused by the school’s indifference toward the dangers posed by failing to adequately supervise its students, particularly special education students. In the published portion of this opinion, we find the school district owed the student a duty of care to protect him from this foreseeable assault. In the unpublished portion of this opinion, we determine the district was not immune from liability and sufficient evidence supports the jury’s findings of liability and damages. We affirm the judgment. Ibid., at 511. The duty depends partly on whether the harm is reasonably foreseeable, but foreseeability is not requiredto determine whether the school owes a duty of care to a student who is sexually assaulted. Ibid.Students are not at risk by being a t school. Ibid. The burden on the school to provide supervision is minimal, but thepolicy of providing a safe learning environment is paramount. Ibid.A student may recover for injuries caused by a breach of the school’s duty to superviseIbid. Either lack of supervision or ineffective supervision may constitute lack of ordinary car by those responsible for students, and violate the standard of care imposed on those who supervise children’s conduct at school. See, Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4 1320, review denied.Jennifer C. was a speci al education student who MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA was sexually assaulted during lunch period by another student in an alcove on the school premises. The trial court granted summary judgment for the school district which was reversed on appeal. The appellate court recited that, [C]alifornia 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] Ibid., at 1326 Maintaining a hiding place on campus where a child can be victimized satisfies foreseeability in the analysis of duty to determine liability based on negligent supervision. Ibid. A degree of moral blamefor negligent supervision will attach to a sch ool for maintaining a hiding place for sexual assault. Ibid. The standard of care is that which one of ordinary prudence, charged with comparable duty, would exercise under the same circumstances. Ibid. Schools and their employees are not insurers of thephysical safety of students, but are placed under a general dutyto supervise the children’s conduct on school grounds, during school session, school activities and lunch. See, Cerna v. City of Oakland(2008) 161 Cal.App.4 hearing denied, review denied. This general dutyextends to recesses, and the determination of negligence based on supervision is a question of fact. See, Iverson v. Muroc Unified School District (1995) 32 Cal.App.4 Teachers and school administrators must have broad supervisory and disciplinary powers to take effective action to respond appropriately to the need for effective actionSee, In re Randy G. (2001) 26 Cal.4 Here, the District failed in many ways: failed to teach the children not to play behind the ed (SS 44), failed to train staff who had yard duty to ensure the children do not play behind the shed (SS 32), failed to supervise the children at lunch behind the shed SS 8, 10, 54, 57 59). he District Waives any Deficiencies in Girl Doe’s Tort Claim by Failure to Give Notice In the MSA as to the second cause of action District also contends Girl Doefailed MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA to comply with the Government Tort Claim requirements by failing to identify the specific statutes to support negligence per se(Motion, 2:21 Girl Doe argues that she substantially complied, there is no duty to provide information not required (Gov’t Code § 910, 910.2), the District failed to give notice of deficiencies in her tort claim and therefore waives the defect (Gov’t Code 0.8, 911), and childhood sex abuse claims are specifically excepted from the tort claim filing requirement (CCP § 340.1). Failure to givenotice of insufficiencies in the tort claim, is a waiver of the defect, if any. By using the tort claims procedure,the District allows the plaintiff to proceed under a waiver of governmental immunity against the public entity. The purpose is to provide the entity with information to enable an investigation on the merits, to prevent public funds from being consumed with litigation, and afford public entities the chance to correct any conditions giving rise to the claim. See, DiCampli Mintz v. County of Santa Clara (2012) 55 Cal.4 Where the claim involves “childhood sexual abuse” Code of Civil Proceduresection 340.1 specifically excepts the plaintiff from the claim filing requirement. See, A.M. v. Ventura Unified School District (2016) 3 Cal.App.5 1252, 1257 The claim must be written and signed, showing, the name, address, date, place and other circumstance of the occurrence giving rise to the claim, a general description of the injury “so far as it is known” at the time of claim presentation, names of public employees causing the harm if known, and whether damages excess $10,000 as a limited civil jurisdictional matter. (Gov’t Code §§910, 910.2). The entity may provide its own claim form. There is no duty to provide any further information than that required by statute. See, Blair v. Superior Court (Dept of Transportation) (1990) 218 Cal.App.3d 221, 225. Technical defects in the claim will not invalidate it, but are tested by the doctrine of substantial compliance. The test becomes whether there is sufficient information for the entity to investigate and evaluate the claim for settlement purposes. See, Phillips v. Desert Hospital District (1989) 49 Cal.3d 699 706. The substantial compliance doctrine will save insufficient claims which literally do not satisfy the statutory requirements. Ibid. Here, Father Doe prepared a claim on Girl Doe’s behalf which met the statutory requirements (SS 47, 48). MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA Claims which are not substantially compliant still mandate the public entity to give notice to the claimant of the defects. Without notice to the claimant the entity waives the noncompliance defense. Ibid, at 707 Father Doe did not receive a notice from the District that Girl Doe’s claim was defective, insufficient, or invalid in any way (SS 49). Here, Randall Kenyon has served as the District’s assistant superintendent of business services, since 1987. Mr. Kenyon testified that the District’s Board of Education rejects all tort claims which are placed on the consent calendar of the Board meetings, without any discussion of the claims. Mr. Kenyon further testified that the Board never sends notices of defects on the tort claims, and did not send Father Doe sucha notice on Girl Doe’s claim. Girl Doe’s claim was summarily rejected 49). IV. CONCLUSION Girl Doe respectfully requests the court deny the District’s motion for summaryjudgment and/or summary adjudication of her first and second causes of action, for the reasons stated herein. DATED: August 28, 2018 Respectfully Submitted, LEWIS LAW, A California Professional Corporation By: PATRICIA LEWIS, counsel for Plaintiff, Girl Doe, a minor MEMORANDUM OF POINTS & AUTHORITIES IN OPP SITION TO DEFENDANT’S MSJ/MSA