Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG04162000
Pollak, J.
Plaintiff Luis M. appeals from the entry of an adverse summary judgment on his personal injury claim against the Hayward Unified School District (the district). He claims the district was negligent in failing to provide adequate supervision of the hallway at his high school during the period between classes and that, as a result, he was injured when attacked in the hallway by a group of other students. The trial court held that the district’s evidence negated the elements of both negligence and causation, and that plaintiff’s evidence failed to create a triable issue of fact with respect to either. We conclude that the district’s evidence was not sufficient to shift the burden of presenting contrary evidence to plaintiff and, therefore, that the motion should have been denied.
Background
Plaintiff’s complaint alleges that on February 7, 2003, he was a new student at Hayward High School. Between first and second period he was “surrounded by ten to fifteen gang members and . . . viciously beaten. Some of the gang members were Hayward High School students, and others were adult gang members who came to Hayward High School as unauthorized visitors for the specific purpose of attacking [plaintiff]. The adult non-student gang members were not prevented from coming onto campus by Hayward High School personnel.” His cause of action for negligence alleged that the district failed to supervise and provided ineffective supervision of students, and failed to take steps necessary to protect the students at the high school.
The complaint was also filed on behalf of a second student, plaintiff’s cousin who was with him at the time of the altercation, but she has not joined in the appeal. The complaint also included two additional causes of action, but plaintiff has waived any right to assert them and advises that he “will proceed solely on the negligence cause of action if the case is remanded.”
The complaint also alleges a number of subsidiary facts that may have distracted the attention of the parties and the trial court from the issue presented by the summary judgment motion. It alleges that on the day before the attack, which was plaintiff’s first day at the new school, he “was assaulted by a student whom Hayward High School personnel knew was a member of a violent gang” and “had a violent propensity for attacking other students, and had been disciplined on prior occasions for incidents involving violence.” When attacked, plaintiff allegedly “fought back in self defense,” the attacker later reported the fight to a counselor and claimed that plaintiff had started the fight, and “[a]lthough the counselor knew that this student was an acknowledged violent gang member, and knew that violent retaliation by the student or his gang members was forseeable, the counselor failed to take any action to prevent further violence between the students or to protect [plaintiff]. Having never been involved in a gang at his other school, and having no familiarity with gangs or the extent of gang violence at Hayward High School, [plaintiff] could not have appreciated the danger he faced of retaliation by gang members.”
The assertedly undisputed material facts that the district cited to negate plaintiff’s cause of action focused in large part on plaintiff’s claim of innocence. The district cited evidence that there were two rival Hispanic gangs at the high school, signified by the blue or red color of their clothing, and that on both February 6 and 7 plaintiff wore red clothing, despite the fact that “[c]ampus supervisors discourage students from wearing gang colors,” that plaintiff knew from the rules at his prior high school that it was not appropriate to wear red clothing, and that he was told on February 6 that he should not do so again. The district cited evidence that on February 6 plaintiff initiated a fight with another group of students, that the individual who plaintiff claimed started the fight, O.M., reported it to school officials but that plaintiff did not, and that plaintiff was disciplined on February 6 for refusing to take his assigned seat in one class.
The district’s 53 assertedly undisputed facts also included the fact that the school campus is fenced and that signs are posted at all entrances warning non-students to check in with administration before entering the campus or risk criminal penalties, that students must carry photo ID cards, that three campus supervisors and all members of the faculty and administrative staff “are responsible for keeping unauthorized non-students off campus,” and that the campus supervisors were not aware that any non-students were involved in the February 7 incident. Students are instructed that “‘Hayward High School’s policy is that there will be no tolerance for gang related activities on campus.’ This includes refraining from wearing clothing that is gang related.” Offending students sign a contract to prevent further inappropriate behavior, such as engaging in gang-related behavior or fights.” Additional facts pertaining to security measures at the high school included the fact that the three campus supervisors “are also responsible for protecting students and property; for enforcing school rules and regulations; and to mediate conflicts among students,” that the campus is divided into zones which are monitored by the campus supervisors, that the Hayward Police Department assigns an officer to the high school “as a school resource officer,” that Juan Carmona, who had received training from the police and sheriff’s departments, “was employed by La Familia Counseling Services to be a full time Gang Risk Intervention Program (GRIP) counselor” at the school, and that campus supervisors “sought the assistance of . . . Carmona, who counseled, mediated and had student-family meetings in an effort to prevent fighting and violence.”
The district also cited evidence that O.M. “did not commit any serious offenses or have any major disciplinary problems before February, 2003” and evidence tending to show that the principal and campus supervisors were not aware that other students who assertedly participated in the attack on plaintiff were involved in a gang or had a propensity for serious violence. However, the undisputed facts acknowledged that Carmona “held counseling sessions with [two of the students allegedly involved in the altercation with plaintiff] for disciplinary reasons, before February 7, 2003,” and that one of them had been suspended for two days in September 2002 “for pushing another student.”
Few assertedly undisputed facts referring to the actual incident on February 7 were cited in support of the summary judgment motion. The incident lasted “about two to 2-1/2 minutes,” “[a]t the time the fight broke out where plaintiff was injured, campus security officers were in an office located in the same hallway . . . 50 to 100 feet from the area where the fight was occurring,” when a teacher learned from her students that a fight was taking place in the hallway outside her classroom, “[s]he walked into the hall and knocked on the door of the campus supervisors’ office . . . to notify security,” and the altercation ended “when at least one security person approached.”
The evidence cited to show the length of the fight and how it ended is the deposition testimony of the plaintiff himself. Based on plaintiff’s testimony, the district also asserts as an undisputed fact that “[s]ome staff actually witnessed the fight occurring.” There is no elaboration as to when in the course of the altercation other staff assertedly arrived on the scene. Plaintiff’s testimony seems to be at odds with the implication of the testimony of the teacher who reported the fight to the campus supervisor’s office, but in all events does not suggest that any school staff was monitoring the hallway when the fight began.
The trial court granted the district’s motion for summary judgment with the following explanation: “The facts submitted in support of the motion are sufficient to establish that the district did not breach any duty of care it may have owed to plaintiff, and plaintiff has not succeeded in identifying any breach by the district that might have caused injury to plaintiff. Moreover, there is no competent evidence establishing the required causal connection between various alleged omissions on the district’s part, and the alleged injury to plaintiff.” Plaintiff has timely appealed from the resulting judgment.
Analysis
“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[I]f a defendant moves for summary judgment . . ., he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Id. at p. 851.) That is, “a moving defendant must present evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) If the moving defendant fails to present such evidence, there is no burden on the plaintiff to present any opposing evidence, and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
There is no contention here that the district has established an affirmative defense to plaintiff’s claim.
“Although a school district is not an insurer of its pupils’ safety [citation], our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513; Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 795-796.) “[W]here a school fails to provide supervision and an injury results from conduct that would not have occurred had supervision been provided, liability may be imposed.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1372.)
The evidence presented by the district in support of its motion fails to carry the burden necessary to shift the burden to the plaintiff to come forward with evidence sufficient to establish his claim. The district’s evidence tends to negate some facts supportive of plaintiff’s claim. The district’s showing we may assume is sufficient to negate the contentions that it failed to take adequate measures to prevent non-students from entering the campus and that it should have known that O.M. was an active gang member who posed a particular threat to plaintiff’s safety. Its evidence also tends to show that plaintiff bears some responsibility for the altercation. Were this sufficient to establish that the district provided adequate supervision, the burden would have shifted to plaintiff to come forward with contrary evidence. However, the district’s evidence neither establishes that its security measures were reasonably adequate nor does it prove that plaintiff cannot establish their inadequacy.
Plaintiff was allegedly attacked in the high school hallway during the 10-minute period when students were moving between classes. The district presented no evidence to show what practices or policies it has established to monitor the hallways during these recess periods, nor what supervision, if any, was being provided when the altercation in question occurred. The implication of its evidence is that no campus supervisor, teacher, or other staff member was then present in the hallway to maintain orderly conduct among the students. The three campus supervisors were all in their offices at the time, and had to be summoned by a teacher, who in turn did not learn of the fight until told of it by other students. From these facts it is hardly possible to conclude that the school met its responsibility to provide adequate supervision. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 749-750; Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at pp. 513-514.) At trial the district may be able to show that its monitoring procedures were reasonable and observed in this instance, but its showing in support of the summary judgment motion was not sufficient to shift the burden to the plaintiff to produce evidence establishing his claim.
Nor is the summary judgment justified by the trial court’s additional conclusion that “there is no competent evidence establishing the required causal connection.” “Proximate cause . . . is generally a question of fact for the jury,” and, as in Hoyem, “on the basis of the allegations in the instant case the trial court could not properly hold as a matter of law that defendant’s alleged negligent supervision on the campus did not proximately cause plaintiff’s . . . injury.” (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at p. 520; see Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at pp. 750-751.) Based on the skimpy facts presented in support of the summary judgment motion, there is no basis to conclude that reasonable monitoring of the hallway during the class break would not have prevented the fight that ensued there. (See Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 291-293.)
The district places heavy reliance on Thompson v. Sacramento City Unified School Dist., supra, 107 Cal.App.4th 1352, but the facts of that case are markedly distinguishable. In Thompson summary judgment in favor of a school district was upheld against a student injured in a fight with other students during the lunch period. The Court of Appeal held that the school district did not owe or breach a duty to the plaintiff to suspend the assailant based on prior incidents involving the assailant, and that the uncontroverted facts established a lack of causation. The school district’s evidence established that the area where the fight occurred was patrolled by two monitors, one of whom had inspected the restroom where the incident began less than two minutes before the fight. Two students “formed a hasty plan to rob plaintiff of the marijuana that they believed he was carrying. To do so, they decided to lure plaintiff to a place where they would be out of the immediate view of campus supervisory personnel for at least a couple of minutes. Plaintiff was amenable to meeting them there. Once the participants were at that place, the events unfolded extremely quickly. Within one and a half minutes to two minutes of the time he had patrolled past the area, campus monitor Guzman returned and found plaintiff already injured.” (Id. at p. 1372.) In holding that these facts negated a finding of causation, the court observed, “[s]hort of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. [Citation.] When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery.” (Ibid.) In contrast, in the present case there was no evidence as to whether or when the hallway was patrolled during class recesses, nor was there any evidence from which to conclude that if the hallway had been reasonably supervised the fight in which plaintiff was injured would not have been prevented. The avoidance of student altercations is “precisely the kind of harm” that hallway monitors are “there to prevent.” (See Mukthar v. Latin American Security Service, supra, 139 Cal.App.4th at p. 291.) The district offered no evidence of the kind presented in Thompson showing that the assailants made special efforts to lure the plaintiff from the area where reasonable supervision was provided and that even with reasonable supervision the fight would not have been prevented.
Similarly, in Brownell v. Los Angeles Unified School Dist., supra, 4 Cal.App.4th 787, on which case the defendant placed emphasis during oral argument, the student was attacked after school hours on a public street adjacent to the school. The court held that, absent specific warnings or prior incidents, the school had no “duty to supervise to the extent of sending observers outside to scout the neighborhood for gang members off the campus and to wait until, so to speak, ‘all was clear’ before releasing the students.” (Id. at pp. 796-797.)
Since defendant’s evidence, even if uncontradicted, failed to show that the district provided reasonable supervision of the hallways during class breaks, or that reasonable supervision would not have prevented the incident, there is no need to consider the sufficiency of plaintiff’s evidence to create a triable issue of material fact.
Disposition
The judgment against plaintiff Luis M. is reversed, and the matter is remanded for further proceedings on his negligence cause of action. Plaintiff shall recover his costs on appeal.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.