Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378866, Richard E. Rico, Judge.
Kiesel, Boucher & Larson, Raymond P. Boucher and Anthony M. DeMarco for Plaintiff and Appellant.
Fagen Friedman & Fulfrost, Howard A. Friedman, Kimberly A. Smith and Kerrie E. Taylor for Defendant and Respondent.
WOODS, Acting P. J.
INTRODUCTION
This is an appeal from the trial court’s grant of summary judgment. We reverse.
FACTUAL AND PROCEDURAL SUMMARY
Ali A. (by and through his father and guardian ad litem Ibrahim A., as Ali is a minor) filed a complaint against the Los Angeles Unified School District (the District) and Rodrigo Valladares, alleging causes of action for negligence, negligent supervision/failure to warn, negligent hiring and retention and ratification. According to the operative (second amended) complaint, Ali has severe Down’s Syndrome. On October 12, 2006, Ali (then 11) told his parents he had pain in his rectum that made it difficult for him to sit down. He told them Rodrigo Valladares, his teacher’s aide at El Sereno Middle School, had sodomized him. Ali was seen by several doctors who confirmed his rectal injury, and his parents reported Ali’s abuse to school officials and the police.
At least a year prior to Ali’s report of sexual abuse, Ali further alleged, he complained to his parents and his parents complained to school officials Valadares was physically assaulting him, including hurting his ribs and causing bruising to his body. School officials ignored their legal obligation to make a mandatory report of the abuse as required by Penal Code section 11164 et seq. and instead continued to employ Valladares at El Sereno Middle School and City Terrace Elementary School where his abuse of Ali was allowed to continue unchecked despite the concern his parents continued to vocalize.
For at least a year prior to the sexual abuse, Ali alleged, Valladares routinely violated school and district rules designed to safeguard children from such abuse. For example, Valladares routinely created opportunities to have access to Ali alone by missing school transportation, arriving to school late, and isolating Ali on school premises without any accountability instead of accompanying Ali on the bus that came to Ali’s home and following the strictly regimented schedule designed to safeguard children. Ali’s parents reported this conduct to school officials. School officials assured special attention would be paid to watch and protect Ali and the complaints would be investigated. Other student aides were also accused of abusing students at El Sereno Middle School, and all of this information is in the District’s possession such that it was on notice extra efforts and vigilance were needed to protect special education students. School officials failed to properly supervise Valladares by allowing him to have one on one contact with Ali outside the presence of others.
According to the allegations of Ali’s complaint, by virtue of his unique position and authority as a teacher’s aide for special needs children, Valladares was able to identify vulnerable victims and their families for sexual abuse and manipulated his authority to compel compliance, to allow the abuse to continue and to coerce his victim not to report the abuse. The District knew or should have known of Valladares’s exploitative and dangerous propensities and unfitness and it was foreseeable if it did not exercise its duty to protect the children in its care, they would be vulnerable to sexual abuse. The District breached its duty by allowing Valladares to come in contact with Ali without supervision, negligently hiring and retaining him, failing to investigate Ali’s parents’ complaints, failing to warn them and holding Valladares out as someone to be trusted. Further, by failing to discharge, suspend or investigate complaints of Valladares’s abuse despite having notice of such complaints, the District ratified Valadares’s conduct.
The District answered, and the parties conducted discovery. The District then moved for summary judgment, arguing (1) there was no evidence the alleged sexual assault was reasonably foreseeable, (2) the District had no duty to protect Ali from the alleged sexual assault as it was not reasonably foreseeable as a matter of law, and (3) Ali’s parents’ prior accusations of physical abuse, which proved to be unfounded, did not show the District knew or should have known Valladares might physically abuse Ali, much less sexually abuse him.
In its separate statement, the District identified the following “undisputed material facts” as grounds for summary judgment: (1) Ali contends he was sexually assaulted by Valladares on October 12, 2006, at El Sereno Middle School; (2) District personnel never observed Valladares harm Ali in any way; (3) District personnel never observed, or heard about, anything concerning Valladares that put them on notice that Valladares had the propensity to commit a sexual assault; (4) there were no prior incidents involving Valladares that could potentially cause suspicion that a sexual assault on Ali was impending or reasonably foreseeable; (5) the school nurse examined Ali’s toes upon a complaint they hurt and found they had not been injured, the pain was “most likely” caused by shoes that were too small and the discoloration of the toenails was “likely” due to a fungal infection caused by poor hygiene or shoes with inadequate ventilation; and (6) although Ali’s parents accused Valladares of causing bruises to Ali’s upper body, District personnel observed Ali’s mother on more than one occasion physically grab Ali around his upper body and struggle to carry him onto the bus.
In support of its motion, the District submitted the declarations of Xochitl Salazar, a special education aide at El Sereno Middle School and City Terrace Elementary School during the times of Ali’s attendance; Marc Shettleroe, the Bridge Coordinator at El Sereno during Ali’s attendance, whose duties included working closely with the special education teachers and school administration; and Ronald Scott, a special education teacher at City Terrace while Ali was a student there.
Salazar said her duties as a special education aide included accompanying her assigned student on the bus ride to and from school, monitoring and assisting her assigned student and other special education students during the day and accompanying students to the restroom and assisting them with toileting when necessary. According to Salazar, when the bus would come to pick Ali up at his home, she would already be on the bus, and, “on more than one occasion, ” “it appeared [Ali] did not want to get on the bus, so his mother physically grabbed him around his upper body and struggled to carry him onto the bus.” She said she had “daily contact” with Ali and Valladares and “d[id] not recall” seeing Mr. Valladares take Ali to the restroom alone.”
According to Scott’s declaration, he had “daily contact” with Ali and Valladares. “Generally, the aides took all of the children to the restroom together, approximately every two hours, a total of four hours a day.” According to Shettleroe, he had contact with Ali and Valladares on a “frequent, often daily basis” and “never saw” Valadares take Ali to the restroom alone.
According to the identical language in all three declarations, Salazar, Shettleroe and Scott “never saw Mr. Valladares harm Ali in any way, ” “never observed, or heard about, anything concerning Mr. Valladares that put [them], or any other [District] employee to [their] knowledge, on notice that Mr. Valladares had the propensity to commit a sexual assault;” and “[t]here were no prior incidents involving Mr. Valladares that could potentially cause suspicion that a sexual assault on Ali was impending or reasonably foreseeable.”
In addition, the District relied on the declaration of Margaret Tsay, the school nurse at City Terrace who saw Ali on March 6, 2006, after his teacher sent him to see her because Ali complained his toes were hurting. According to Tsay, she asked Ali to remove his shoe and sock so she could determine if there was any injury. She asked him to wiggle his toes and saw he had full range of motion, and there were no abrasions or cuts. She noticed the toenails were “discolored” which she opined “may have been caused by a fungal infection due to poor hygiene or shoes with inadequate ventilation.” In her opinion, “the pain in Ali’s toes was likely caused by shoes that were too small.”
The District also cited to several of Ali’s responses to its form and special interrogatories. Asked for facts in support of his contention the District knew or should have known of Valladares’s “dangerous and exploitative propensities” or “unfit[ness] to be a teacher’s aid[e], ” Ali said his parents made reports of their concerns of physical abuse and bruising at City Terrace during the 2005-2006 school year to “both Mr. Scott and the Vice Principal, as well as repeated reports about their concerns about [Valladares] being late and unaccounted for at all times with their son. Similarly, they made reports about lateness and concerns about where he was on the premises with their son at the El Sereno School to Mr. Delgado, during the Fall of 2006.”
Asked for the facts in existence prior to October 12, 2006, which would have divulged Valadares’s sexual assault of Ali or others had the District investigated (and for facts supporting the contention the District knew Valladares had a history of sexually assaulting children and any child was at risk of sexual assault), Ali reiterated his response about informing Mr. Scott and the Vice Principal at City Terrace and Mr. Delgado at El Sereno and said if these concerns and reports had been addressed and investigated the District would have had plenty of time to investigate and prevent Valladares’s ongoing conduct. In response to the District’s request for witness information, Ali said Mr. Scott and the Vice Principal were witnesses to Valladares’s conduct toward Ali as well as his parents’ complaints during the 2005-2006 school year, and Mr. Delgado was a witness to Valladares’s similar conduct toward Ali at El Sereno as well as Ali’s parents’ resulting ongoing complaints during the fall of 2006. They “expressed repeated concerns of physical abuse after Ali complained to them and showed them bruises. They also expressed repeated concerns regarding the school’s lack of responsibility for [Valladares] on the premises when he was repeatedly late and unaccounted for with their son on the premises at both schools.”
According to these discovery responses, after Ali told his parents, on the evening of October 12, 2006, Valladares had anally penetrated him, they went to the school the following day and reported what had happened to Mr. Delgado. That day, they also reported to their family doctor (Maged Faragalla) who referred them to Children’s Hospital. At the emergency room, Ali was examined by Dr. Maria Elena Rodriguez who then called the police. Thereafter, Ali’s parents spoke with Officers Bobo, Campos, Cid, Silva, Carbajal and Commanding Officer Carbajal. In addition, Ali responded, reports were filed with the City Attorney’s office, the County and the District.
Ali filed his opposition, supported by deposition testimony from Scott, Salazar, Delgado and Ali’s father, along with a portion of the Los Angeles Unified School District’s Policy Bulletin regarding “Child Abuse and Neglect Reporting Requirements.” In addition, Ali submitted the declaration of “A.A.” who wore leg braces and required assistance with walking and using the bathroom while attending ninth grade at Lincoln High School. According to A.A., while on a field trip during the 2004-2005 school year, Valladares had “touched [her] inappropriately on her breast.” She said she remembered the incident “vividly, ” and said Valladares had separated her from the other students, just out of sight of the other aides, “told her harshly to ‘relax, ’ and put his hand on [her] left breast.” He pulled his hand away when another aide approached. While she was “still shaky, ” with “watery” eyes and “very upset, ” she separately approached three other aides (identified by name) and said she did not want Valladares to be her aide anymore because of how he treated her. No one asked why she was so upset or what had happened. She would have explained if anyone had done so. Later, when he continued as her aide, she contacted Ruth Velasques and said she did not want to be around Valladares. Velasques and two other aides (Rachel Herrera and Norma Sanchez) “all told [her] that [Valladares] should not be [her] aid[e].”
At deposition, Scott acknowledged he knew Ali’s parents had complained Valladares was “stomping on Ali’s toes” and had caused bruising to Ali’s chest when Ali was in fifth grade. The nurse said Ali had a fungus “and that was the problem with Ali’s feet.” Regarding the bruising to Ali’s chest, he said he talked to the aides. “Blah, blah, blah. Then we-somebody, the aide or me or Ms. Cepeda, who was the assistant principal at the time, talked to the bus driver, and it came back to me that there was a consensus that this bruise had been caused by the mother when she put[] Ali on the bus. Because Ali didn’t want to go to school, didn’t want to get on the bus, and every day she had trouble with him. And I guess she must have picked him up or something, and that was the end.” “There was like a kind of a constant grumbling from them, ” Scott testified. “They would always... bring up Mr. Valladares doesn’t treat [Ali] right or something like that.” He said the assistant principal (Cepeda) was also aware of “all of these allegations and outcomes and discussions.” Although Scott prepared Ali’s I.E.P. report, he did not write any of this information in the report. He acknowledged that a report of an aide bruising a student’s chest would raise the issue of whether the student was being abused by the aide.
Delgado testified that if he knew Valladares had been accused of stomping on a student’s toes or bruising his chest, it would “raise a red flag” indicating “perhaps that student shouldn’t be with that assistant” “for the safety of the child.” If such information had been included in Ali’s I.E.P. report, Delgado would have investigated the “need or the possibility... of switching the assistant” before Ali came to his school.
The District filed its reply as well as comprehensive objections to Ali’s supporting evidence. The trial court granted the District’s motion for summary judgment.
Ali appeals.
DISCUSSION
The Trial Court Erred in Granting the District’s Summary Judgment Motion.
“When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff’s causes of action that is addressed in the motion, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) If a defendant’s presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that, contrary to the defendant’s presentation, a triable issue of material fact actually exists as to those elements or the defense. That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. (Ibid.) Thus, section 437c, subdivision (c), states that summary judgment is properly granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 138-139.)
The District moved for summary judgment on the ground prior accusations of physical abuse the District deemed unfounded did not show the District knew or should have known Valladares might physically abuse Ali, “much less sexually abuse him, ” and Ali’s alleged sexual abuse was not reasonably foreseeable as a matter of law so it had no duty to protect him.
“‘The issue of “foreseeability” does not depend upon the foreseeability of a particular third party’s act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm.’” (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519, original italics.) “‘Neither the mere involvement of a third party nor that party’s wrongful conduct is sufficient in itself to absolve the [District] of liability, once a negligent failure to provide adequate supervision is shown.’” (J.H. v. Los Angeles Unified Sch. Dist., supra, 183 Cal.App.4th at p. 144, quoting Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 750, fn. omitted.) Further, “‘It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities.... Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards.’” (M.W. v. Panama Buena Vista Union School Dist., supra, 110 Cal.App.4th at p. 519.)
For summary judgment purposes, Ali’s complaint frames the issues. Yet, the District ignores Ali’s allegations regarding notice to Scott, the assistant principal and Delgado of Valladares’s physical abuse and his citation to Penal Code section 11164 et seq. (as well as its own Policy Bulletin produced in discovery). “The appropriate local law enforcement agency shall investigate a child abuse complaint filed by a parent or guardian of a pupil with a school or an agency specified in Section 11165.9 against a school employee or other person that commits an act of child abuse, as defined in this article, against a pupil at a school site and shall transmit a substantiated report, as defined in Section 11165.12, of that investigation to the governing board of the appropriate school district or county office of education.” (Pen. Code, § 11165.14.)
As acknowledged in the District’s own Policy Bulletin for “Child Abuse and Neglect Reporting Requirements, ” “Pursuant to State Law and District policy, ALL District employees are mandated reporters of suspected child abuse/neglect.” “(a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report to the agency immediately or as soon as is practicably possible by telephone and the mandated reporter shall prepare and send, fax, or electronically transmit a written followup report thereof within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident. (1) For purposes of this article, ‘reasonable suspicion’ means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. ‘Reasonable suspicion’ does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any ‘reasonable suspicion’ is sufficient....” (Pen. Code, § 11166, subd. (1)(a).)
District Policy further specifies: “State law and District policy require that mandated reporters sign a statement acknowledging the responsibility to serve as a mandated reporter of abuse and neglect. This statement must be signed at the time of initial employment and again at each site to which the employee is assigned....” Pursuant to subdivisions (d) and (e) of Penal Code section 11165.7, “School districts that do not train their employees... in the duties of mandated reporters under the child abuse reporting laws shall report to the State Department of Education the reasons why this training is not provided, ” and “Unless otherwise specifically provided, the absence of training shall not excuse a mandated reporter from the duties imposed by this article.” (Italics added.)
Consistent with this statutory language, the District’s Policy Bulletin states: “‘Reasonable Suspicion’ means that it is objectively reasonable for a person to entertain a suspicion, based upon the facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. For example, child abuse is brought to the attention of the mandated reporter from any spoken or written source, including but not limited to: [¶] the alleged victim, [¶] a friend of the alleged victim, [¶] a colleague, [¶] or an anonymous individual. [¶] Reasonable suspicion does not require proof or investigation by the reporting party.” (Italics added.)
The Policy Bulletin further defines and emphasizes the distinction between “Investigation” and “Clarification” as follows:
“1. ‘Investigation’-for purposes of this bulletin, a formal process that consists of gathering information in order to determine the truth of the allegation. School personnel may not undertake an ‘investigation’ in response to an allegation of child abuse. District officials/administrators may conduct administrative investigations only subsequent to the conclusion of the child protective services agency’s investigation or when such agency advises District officials to ‘handle administratively.’
“2. ‘Clarification’-for purposes of this bulletin, an attempt to glean sufficient information from the disclosing person to determine whether reportable child abuse has occurred. An example may be asking a child, ‘what’s wrong?’ and receiving a response that may trigger reasonable suspicion.” (Italics added.)
The Policy Bulletin further provides: “The child protective services agencies that service [the District] include (but may not be limited to): [¶] Los Angeles County Department of Children and Family Services [and] Local law enforcement agencies (i.e., police and sheriffs’ departments). [¶] By law, the Los Angeles Unified School District Police Department is not a child protective services agency and is not authorized to take reports or to investigate allegations of child abuse/neglect.” (Original emphasis.)
While the District minimizes Ali’s parents’ repeated complaints regarding Valladares’s treatment and physical abuse (as well as repeated expressions of concern regarding Valladares’s time alone with their son contrary to District policy), it nevertheless acknowledges that it received many such complaints and purportedly conducted its own investigation and dismissed these complaints out of hand, instead of following the procedure mandated under the Penal Code as well as its own District policy. Moreover, the District’s efforts to suggest possible causes of Ali’s injuries other than physical abuse (including his mother’s efforts--over Ali’s protests--to get him to board the school bus and into Valladares’s continued one-on-one supervision) do not constitute proof as a matter of law Ali had not been abused. (See Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1323-1324 [“A ‘special needs’ child, i.e., a child suffering from mental and/or physical disability, cannot reasonably be expected to take care of himself or herself. Such a child needs help and protection. This case illustrates the unique vulnerability of such a child and the unique responsibilities of a school district to such a child.”].) As the court in M.W. concluded, “We find no distinction between a physical assault and a sexual assault for purposes of foreseeability in this case.” (M.W., supra, 110 Cal.App.4th at p. 520.) It follows the District was not entitled to summary judgment on this record.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with instructions to enter an order denying the District’s motion for summary judgment. Appellant is entitled to his costs of appeal.
We concur: ZELON, J., JACKSON, J.