Doe v. Lawndale Elementary School Dist. ( 2021 )

Filed 11/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JANE DOE, a Minor, etc., B305551
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC686649)
v.
LAWNDALE ELEMENTARY
SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Deirdre Hill, Judge. Reversed with
directions.
Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy,
Kevin K. Nguyen; Taylor & Ring, David M. Ring and Brendan P.
Gilbert for Plaintiff and Appellant.
Tyson & Mendes, Susan L. Oliver, Raymond K. Wilson, Jr.,
and Emily S. Berman for Defendants and Respondents.
INTRODUCTION
When Jane Doe was 13 years old, 26-year-old Jason Farr,
an employee of Lawndale Elementary School District and a music
instructor at Doe’s school, sexually assaulted her. Doe sued the
District for negligence and for breach of the mandatory duty to
report suspected abuse under the Child Abuse and Neglect
Reporting Act (Pen. Code, § 11164 et seq.) (CANRA). The trial
court granted the District’s motion for summary judgment, ruling
the District did not have a duty to protect Doe from sexual abuse
unless it knew Farr had previously engaged in sexual misconduct
with minors or had a propensity to do so. The court also ruled
that, because Farr’s conduct was “ambiguous,” it did not give rise
to a duty of care and that there were no triable issues of material
fact regarding whether the District knew about Farr’s
misconduct. Finally, the court ruled Doe could not prevail on her
cause of action for violation of CANRA because none of the
District’s employees knew or reasonably suspected Farr had
abused her.
We conclude, consistent with California negligence law,
that school administrators have a duty to protect students from
sexual abuse by school employees, even if the school does not
have actual knowledge of a particular employee’s history of
committing, or propensity to commit, such abuse. Therefore, we
reverse the trial court’s order granting summary adjudication on
Doe’s negligence causes of action. But we also conclude, as a
matter of first impression, that a plaintiff bringing a cause of
action for breach of the mandatory duty to report suspected abuse
under CANRA must prove it was objectively reasonable for a
mandated reporter to suspect abuse based on the facts the
2
reporter actually knew, not based on facts the reporter
reasonably should have discovered. Because Doe did not create a
triable issue of material fact regarding whether any of the
District’s employees knew of facts from which a reasonable
person in a like position could suspect abuse, we affirm the trial
court’s order granting summary adjudication on Doe’s CANRA
cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
A. Farr Grooms Doe for Several Months, Then Sexually
Assaults Her
When Doe was a seventh-grade student in one of the
District’s schools, she participated in the school’s band program
during regular school hours. Farr, an employee of the District,
oversaw an afterschool program at the school called Realizing
Amazing Potential (RAP) that gave students the opportunity to
practice music in the band room and do homework in classrooms.
After meeting Doe, Farr convinced her to join RAP. At the end of
the academic year, Doe also joined the summer RAP program,
which met on weekdays. Farr was an instructor in the summer
RAP program.
After Doe joined RAP, Farr began to groom her for sexual
abuse.1 Farr found Doe’s profile on a social media application
1 “Sexual grooming consists of planning and deliberate
behaviors to befriend and establish an emotional connection with
a child to have the child lower and abandon whatever inhibitions
the child might have against inappropriate sexual activities.”
(Los Angeles County Dept. of Children & Family Services v.
3
and began to send her messages. After Farr told Doe he had
intimate feelings for her, they began to talk on the phone. Farr
also attended Doe’s band class during regular school hours to be
near her (even though he was not a teacher in the class). He
spent time with Doe on the school campus, including time alone
with her in the band room. He hugged her, played with her hair,
and tickled her.
Eventually Farr began kissing Doe when they were alone
together in the band room. In the fall of Doe’s eighth-grade
academic year, Farr had sexual contact with Doe, which included
genital touching and oral sex. Farr continued to sexually abuse
Doe until at least the spring of that academic year, when Doe’s
stepfather learned of the abuse. In March 2017 Farr was
arrested; he ultimately pleaded guilty to oral copulation of a
person under the age of 16.
B. Doe Files This Action Against the District, and the
District Moves for Summary Judgment
Doe filed this action against the District and Farr (who is
not a party to this appeal). Doe asserted two causes of action for
negligence—one based on negligent hiring, supervision, and
retention of Farr, and one based on negligent supervision of Doe.
Doe also asserted a cause of action for breach of the mandatory
Superior Court (2013) 222 Cal.App.4th 149, 158; see People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1330-1331 (conc. opn. of
Rubin, J.) [“Under a phenomenon . . . described as ‘grooming,’” a
child molester, by “sexualizing a child with sexual banter and
other conduct short of touching, . . . can prepare the child to be
receptive to more direct sexual contact down the road.”].)
4
duty to report suspected child abuse under Penal Code section
11166.
The District moved for summary adjudication on each of
Doe’s causes of action and for summary judgment. For the
negligence causes of action, the basis of the District’s motion was
not clear. Despite setting forth the applicable standard—that the
District was entitled to summary adjudication if it showed Doe
could not establish “one or more elements of [her] cause of
action”—the District did not state in its motion which element(s)
the District was claiming Doe could not establish. It appears,
however, the District was arguing it had no duty to protect Doe
from sexual abuse by Farr.2 The District argued that it could not
be liable for failing to supervise Doe and Farr unless and until it
had “actual knowledge” of Farr’s abuse of Doe or of “prior sexual
misconduct by [Farr]” and that it was undisputed none of the
District employees knew Farr sexually abused Doe or anyone else
until the police arrested Farr. The District also argued that
Farr’s conduct was “ambiguous” and that it could not be liable for
failing to protect Doe from sexual abuse if it knew only about
conduct by Farr the District claimed was “ambiguous.”
Therefore, according to the District, it “had no duty or ability to
supervise [Doe] at the time the[ ] alleged sexual acts occurred.”
For Doe’s cause of action for breach of the mandatory duty to
report suspected child abuse, the District contended Doe could
not show that any District employee knew or reasonably
suspected Farr had sexually abused Doe.
2 The District never used the word “causation” or “damages”
in its motion, and the only time the District used the word
“breach” was in connection with Doe’s cause of action for breach
of the mandatory duty to report suspected child abuse.
5
In opposition to the motion, Doe argued that, because
school districts have a special relationship with their students,
the District had an ongoing duty to protect Doe from foreseeable
harm, including sexual abuse, and that therefore the District’s
duty was not “triggered only upon actual knowledge of a sexual
relationship.” Regarding her cause of action for breach of the
mandatory duty to report suspected child abuse, Doe argued the
applicable standard was not whether District employees in fact
knew or suspected Farr had abused Doe, but whether they
“should have formed a suspicion of child abuse and reported such
suspicions.”
Doe also submitted evidence she asserted showed the
District failed to take reasonable steps to prevent Farr from
abusing her. She submitted deposition testimony from several of
her peers who had observed Farr’s behavior. Several students
stated that Farr was always with Doe at school and that he
always sat or stood next to her during band practice (the program
Farr did not teach). Several students said that Farr and Doe
regularly “flirted” with each other and that Farr frequently
tickled and hugged Doe and played with her hair. Multiple
students stated that Doe sometimes rested her head on Farr’s
shoulder when he hugged her and that Doe wore Farr’s jacket at
school. According to one student, Doe became upset when Farr
would not let her sit on his lap. The student also stated that she
walked in on Doe and Farr alone together in the band room at
least 20 times and that she felt as though she was “intruding on a
couple.” Another student witnessed disagreements between Doe
and Farr where Doe would cry—interactions the student
described as “girlfriend/boyfriend-type” behavior. By the late fall
of Doe’s eighth-grade year, most of the students in the RAP
6
program were talking about Farr’s unusual behavior. As one
student stated, it was “obvious” to the students something was
going on between Farr and Doe.
Doe also submitted a declaration from Dr. Robert Fraisse, a
school administrator and former superintendent of several school
districts, who stated that, during his 45-year career, he
supervised and trained school administrators in the supervision
of school staff. According to Dr. Fraisse, the various interactions
between Farr and Doe, as witnessed by Doe’s classmates, were
examples of “open and obvious” predatory behavior that “clearly
gave rise to an appearance of impropriety.” In Dr. Fraisse’s
opinion, given the seriousness and frequency of Farr’s behavior,
Farr’s supervisors failed “to spot[ ] and respond[ ] to red flags.”
Dr. Fraisse also reviewed the deposition testimony of Farr’s
direct supervisor, Diana Villareal, who stated she only checked in
on Farr’s interactions with students about once a week. In
Dr. Fraisse’s opinion, such supervision was insufficient,
“particularly . . . given that Farr would be the only adult present
with his students in enclosed structures, i.e., the band room.”
In its reply, the District asserted boilerplate objections to
essentially all of Dr. Fraisse’s opinions, including that his
opinions “lack[ed] foundation,” were “[i]nadmissible speculation,
conclusions and opinions,” “misstate[d] [the] evidence presented,”
“assumed facts not in evidence,” were “vague and ambiguous,”
and were “irrelevant.” The District did not provide any further
argument in support of its objections.
7
C. The Trial Court Grants the District’s Motion for
Summary Judgment
The trial court granted the District’s motion for summary
judgment. The court, without explanation, also sustained the
District’s objections to Dr. Fraisse’s declaration.3 Although the
record is not entirely clear, the court appears to have ruled the
District had a duty to protect Doe from sexual abuse only if it
knew Farr had sexually abused minors previously or had a
propensity to do so. Agreeing with the District’s argument and
quoting Santillan v. Roman Catholic Bishop of Fresno (2012)
202 Cal.App.4th 708, 719 (Santillan), the court ruled Farr’s
conduct, “‘where one sense might suggest a tendency or
propensity to engage in “unlawful sexual conduct” with a child,
but where another sense might suggest innocent conduct or . . .
wrongful conduct that did not involve a tendency or propensity to
engage in “unlawful sexual conduct” with a child,’” was
ambiguous and thus did not give rise to a duty to protect. The
court concluded the District met its burden to show there were no
triable issues of fact because no one complained about Farr before
3 Because it is not necessary to our decision, we do not
address the court’s rulings on the District’s boilerplate objections.
(See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532-533 [“[A]ll ‘too
often’ ‘litigants file blunderbuss objections to virtually every item
of evidence submitted.’ . . . [T]he parties—with the trial court’s
encouragement—should specify the evidentiary objections they
consider important, so that the court can focus its rulings on
evidentiary matters that are critical in resolving the summary
judgment motion.”]; Cohen v. Kabbalah Centre Internat., Inc.
(2019) 35 Cal.App.5th 13, 21 [“objecting to every single thing with
no display of professional judgment or restraint is an abusive
practice”].)
8
he was arrested and no one witnessed Farr commit any “overt
sexual act.” Finally, the court, discussing the evidence of Farr’s
conduct at the school in the presence of others, ruled that Doe
had failed to create a triable issue of material fact. The court
entered judgment in favor of the District, and Doe timely
appealed.
DISCUSSION
A. Standard of Review
“A court may grant a motion for summary judgment or
summary adjudication ‘only when “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.”’” (Doe
v. The Roman Catholic Archbishop of Los Angeles (2021)
70 Cal.App.5th 657, 668 (Archbishop); see Code Civ. Proc., § 437c,
subd. (c); Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 618 (Regents).) “A defendant moving for
summary adjudication of a cause of action must show that one or
more elements cannot be established or that there is a complete
defense.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289,
298; see Mattei v. Corporate Management Solutions, Inc. (2020)
52 Cal.App.5th 116, 122; Regents, at p. 618; Foroudi v. The
Aerospace Corp. (2020) 57 Cal.App.5th 992, 1005.)
Where, as here, “a defendant moves for summary
adjudication on a cause of action for which the plaintiff has the
burden of proof at trial, the defendant ‘must present evidence
that either “conclusively negate[s] an element of the plaintiff’s
cause of action” or “show[s] that the plaintiff does not possess,
and cannot reasonably obtain,” evidence necessary to establish at
9
least one element of the cause of action. [Citation.] Only after
the defendant carries that initial burden does the burden shift to
the plaintiff “to show that a triable issue of one or more material
facts exists as to the cause of action . . . .”’” (Archbishop, supra,
70 Cal.App.5th at p. 668; see Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.)
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar, at
p. 850; accord, Lares v. Los Angeles County Metropolitan
Transportation Authority (2020) 56 Cal.App.5th 318, 331-332.)
We review a ruling on a motion for summary adjudication
de novo (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248,
273; Regents of University of California v. Superior Court (2018)
29 Cal.App.5th 890, 908) and “decide independently whether the
facts not subject to triable dispute warrant judgment for the
moving party as a matter of law” (Mattei v. Corporate
Management Solutions, Inc., supra, 52 Cal.App.5th at p. 122; see
Regents, supra, 4 Cal.5th at p. 618).
B. The Trial Court Erred in Granting the District’s
Motion for Summary Adjudication on Doe’s
Negligence Causes of Action
Doe contends the District had a special relationship with
Doe and therefore a duty to take reasonable steps to protect her
from foreseeable harm, including sexual abuse. The District
concedes it had a special relationship with Doe, but argues that it
did not have a duty to protect Doe from sexual abuse unless it
had knowledge of “prior sexual misconduct by [Farr]” and that
10
the facts the District knew concerning Farr’s conduct were
“ambiguous at worst.” As we explain, Doe’s description of the
District’s duty—specifically, its administrators’ duty to take
reasonable measures to protect her—is correct. The District’s
proposed limitations on that duty, which the trial court appeared
to rely on in granting the District’s motion for summary
judgment, are unsupported by the applicable law.
1. School Administrators Have a Duty To Protect
Students from Sexual Abuse and Other
Intentional Tortious Conduct by School
Employees
“‘To establish a cause of action for negligence, the plaintiff
must show that the “defendant had a duty to use due care, that
[it] breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.” [Citation.] Recovery for
negligence depends as a threshold matter on the existence of a
legal duty of care.’” (Archbishop, supra, 70 Cal.App.5th at p. 669;
see Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213
(Brown); Nally v. Grace Community Church (1988) 47 Cal.3d 278,
292.) “The existence of a duty is a question of law, which we
review de novo.” (Vasilenko v. Grace Family Church (2017)
3 Cal.5th 1077, 1083; see Regents, supra, 4 Cal.5th at p. 620
[“The determination whether a particular relationship supports a
duty of care rests on policy and is a question of law.”].)
“A duty exists only if ‘“the plaintiff’s interests are entitled
to legal protection against the defendant’s conduct.”’” (Brown,
supra, 11 Cal.5th at p. 213; see Archbishop, supra,
70 Cal.App.5th at p. 669.) As the California Supreme Court
explained in Brown, “[g]enerally, the ‘person who has not created
11
a peril is not liable in tort merely for failure to take affirmative
action to assist or protect another’ from that peril.” (Brown, at
p. 214; see Regents, supra, 4 Cal.5th at p. 619.) “But this ‘no-
duty-to-protect rule’ is not absolute.” (Archbishop, at p. 670; see
Brown, at p. 215.) “Under some circumstances, a defendant may
have an affirmative duty to protect the plaintiff from harm at the
hands of a third party, even though the risk of harm is not of the
defendant’s own making.” (Brown, at p. 215; see Delgado v. Trax
Bar & Grill (2005) 36 Cal.4th 224, 235.) In particular, “a person
may have an affirmative duty to protect the victim of another’s
harm if that person is in what the law calls a ‘special
relationship’ with either the victim or the person who created the
harm.” (Brown, at p. 215; see Regents, at p. 619.) “‘[A] typical
setting for the recognition of a special relationship is where “the
plaintiff is particularly vulnerable and dependent upon the
defendant who, correspondingly, has some control over the
plaintiff’s welfare.”’” (Regents, at p. 621; accord, Dix v. Live
Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590, 606; see
Brown, at p. 220 [a special relationship “extends a right of
recovery to individuals in relationships involving dependence or
control, and who by virtue of those relationships have reason to
expect the defendant’s protection”].)
The District properly concedes it had a special relationship
with Doe. “[A] school district and its employees have a special
relationship with the district’s pupils, a relationship arising from
the mandatory character of school attendance and the
comprehensive control over students exercised by school
personnel, ‘analogous in many ways to the relationship between
parents and their children.’” (C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal.4th 861, 869 (Hart); see Regents, supra,
12
4 Cal.5th at p. 624; D.Z. v. Los Angeles Unified School Dist.
(2019) 35 Cal.App.5th 210, 223; M.N. v. Morgan Hill Unified
School Dist. (2018) 20 Cal.App.5th 607, 617.) “Because of this
special relationship, imposing obligations beyond what each
person generally owes others,” the “duty of care owed by school
personnel includes the duty to use reasonable measures to
protect students from foreseeable injury at the hands of third
parties acting negligently or intentionally,” including “injuries to
a student resulting from a teacher’s sexual assault.” (Hart, at
p. 870; see Regents, at p. 624; D.Z., at p. 223; M.N., at p. 617; see
also Doe v. United States Youth Soccer (2017) 8 Cal.App.5th 1118,
1129 (United States Youth Soccer) [“California courts have
frequently recognized special relationships between children and
their adult caregivers that give rise to a duty to prevent harms
caused by the intentional or criminal conduct of third parties”].)
Thus, the District’s administrators had a duty to use reasonable
measures to protect Doe from foreseeable injury caused by Farr’s
intentional conduct.4
4 A public entity like the District is generally immune from
liability, except as provided by statute. (Gov. Code, § 815,
subd. (a).) But “public employees are liable for their acts and
omissions ‘to the same extent as a private person’ [citation], and
public entity employers are vicariously liable for employees’
negligent acts within the scope of their employment to the same
extent as private employers.” (Regents, supra, 4 Cal.5th at
p. 619.) Therefore, a public entity like the District may be liable
“for the negligence of supervisory or administrative personnel
. . . .” (Hart, supra, 53 Cal.4th at p. 865.)
13
2. The Rowland Factors
Once a court determines a defendant owes a duty to a
plaintiff, “the remaining liability questions—breach as well as
factual and legal causation—are usually questions for the jury.”
(Brown, supra, 11 Cal.5th at p. 228 (conc. opn. of Cuéllar, J.); see
(Vasilenko v. Grace Family Church, supra, 3 Cal.5th at p. 1084
[“[b]reach, injury, and causation must be demonstrated on the
basis of facts adduced at trial, and a jury’s determination of each
must take into account the particular context in which any act or
injury occurred”].) For example, a defendant’s arguments “about
specific measures it has already taken”—such as whether the
District’s administrators did enough to prevent Farr’s sexual
abuse—“concern[ ] whether defendant in fact took reasonable
care, a question of breach usually for the jury.” (Brown, at
pp. 230-231 (conc. opn. of Cuéllar, J.); see Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral).) Similarly,
“argument[s] about specific foreseeability”—such as whether
Farr’s sexual abuse of Doe was foreseeable under the
circumstances—“would be relevant to whether plaintiff had
established proximate cause, also usually a question for the jury.”
(Brown, at p. 231 (conc. opn. of Cuéllar, J.); see T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 198.) “Most liability
questions are case-specific and so not amenable to analysis in
terms of duty—they do not allow a categorical determination
whether defendant had to exercise reasonable care at all.”
(Brown, at p. 228 (conc. opn. of Cuéllar, J.); see Cabral, at p. 773,
fn. 3 [“‘When no such categorical considerations apply and
reasonable minds could differ about the competing risks and
burdens or the foreseeability of the risks in a specific case, . . .
14
courts should not use duty and no-duty determinations to
substitute their evaluation for that of the factfinder.’”].)
Nevertheless, “‘[e]ven if an organization has a special
relationship with the tortfeasor or plaintiff, “[t]he court may
depart from the general rule of duty . . . if other policy
considerations clearly require an exception.”’” (Archbishop,
supra, 70 Cal.App.5th at p. 673; see Regents, supra, 4 Cal.5th at
p. 628; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077,
1095, affd. (2021) 11 Cal.5th 204.) As the Supreme Court
explained in Brown, “whether a defendant has a legal duty to
take action to protect the plaintiff from injuries caused by a third
party” involves a two step-inquiry: “First, the court must
determine whether there exists a special relationship between
the parties or some other set of circumstances giving rise to an
affirmative duty to protect. Second, if so, the court must consult
the factors described in [Rowland v. Christian (1968) 69 Cal.2d
108 (Rowland)] to determine whether relevant policy
considerations counsel limiting that duty.” (Brown, supra,
11 Cal.5th at p. 209.)
“The Rowland factors are “‘the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.”’” (Archbishop, supra,
70 Cal.App.5th at pp. 673-674; see Brown, supra, 11 Cal.5th at
p. 217; Regents, supra, 4 Cal.5th at p. 628.) “In considering [the
15
Rowland factors], we determine ‘not whether they support an
exception to the general duty of reasonable care on the facts of
the particular case before us, but whether carving out an entire
category of cases from that general duty rule is justified by clear
considerations of policy.’” (Regents, at p. 629; see Brown, at
p. 221.) Thus, a court considers the Rowland factors “‘at a
relatively broad level of factual generality.’” (Brown, at p. 221.)
3. The Trial Court Erred by Limiting the District’s
Duty Without Conducting an Analysis of the
Rowland Factors
As discussed, the trial court ruled that the District did not
have a duty to protect Doe from sexual abuse unless the District
had actual knowledge Farr previously engaged in, or had a
propensity to engage in, sexual misconduct with minors and that
the conduct the District did know about was too “ambiguous” to
give rise to a duty of care. The District, however, did not argue in
the trial court that the Rowland factors supported this limitation.
In fact, the District’s only mention of Rowland in the trial court
was in its reply brief, where the District stated, contrary to well-
established law, that the Rowland factors were inapplicable to
the court’s analysis of the District’s duty. The trial court
similarly did not analyze or even mention the Rowland factors.
The trial court erred.
Although the trial court’s ruling is not entirely clear, it
appears the court relied primarily on Doe v. Los Angeles County
Dept. of Children & Family Services (2019) 37 Cal.App.5th 675(Doe v. DCFS). In that case a woman who lived in a foster home
when she was a minor sued the child protective agency and the
private foster care agency who placed her with a foster parent
16
whose sons sexually abused her. (Id. at pp. 679-680.) The court
held that, notwithstanding the agency’s special relationship with
the plaintiff, the agency did not have a duty to protect her from
the sexual abuse because the agency did not know that the
plaintiff had contact with the sons (who were adults at the time
of the abuse) or that they had a propensity for sexual abuse. (Id.
at p. 686.) While discussing the foster care agency’s duty, the
court in Doe v. DCFS quoted a passage from Romero v. Superior
Court (2001) 89 Cal.App.4th 1068 (Romero)—also cited by the
District—where the court (in Romero) stated: “In addition to the
special relationship . . . there must also be evidence showing facts
from which the trier of fact could reasonably infer that the
[defendant] had prior actual knowledge, and thus must have
known, of the offender’s assaultive propensities.” (Romero, at
p. 1084; see Doe v. DCFS, at p. 682.)
But in the passage cited by the court in Doe v. DCFS, the
court in Romero was analyzing the scope of the duty created by
the special relationship in that case, namely, the relationship
between adults and the minors they host in their homes (such as
friends of their children). In Romero a 16-year-old boy sexually
assaulted a 13-year-old girl while they were both visiting the
home of another teenager. (See id. at p. 1072.) The girl sued the
host parents, contending they failed to protect her from sexual
abuse. (Id. at p. 1076.) After concluding the host parents had a
special relationship with the girl, the court in Romero held
“sound public policy requires that where one invitee minor
sexually assaults another in the defendant’s home, the question
of whether the defendant owed a duty of reasonable care to the
injured minor depends on whether the assailant minor’s conduct
was reasonably foreseeable, but that conduct will be deemed to
17
have been reasonably foreseeable only if the defendant had
actual knowledge of the assaultive propensities of the teenage
assailant.” (Id. at p. 1081.) The court in Romero stated that to
hold otherwise would “impose unwarranted burdens and an
unjustifiable risk of tort liability on families with teenage
children” so that “[p]arents possessing any information
suggesting that a teenager that they or their own children may
wish to invite into the home . . . would be required to conduct an
investigation in order to protect themselves against potential
liability” and “would be hampered in their investigative efforts by
legitimate and well-established rules of confidentiality regarding
juvenile matters.” (Id. at p. 1083.)
To the extent Doe v. DCFS suggests that, in all cases where
a defendant has a special relationship with a plaintiff, the
defendant has a duty to protect the plaintiff from third-party
assaults or abuse only if the defendant has actual knowledge of
the third party’s propensity for assault or abuse, California law
does not support such a proposition. As one court stated in
declining to extend the holding in Romero to the duty arising
from the special relationship between school districts and
students: “The public policy reasons surrounding the Romero[ ]
rule do not exist in the context of a school district’s supervisory
responsibilities. Simply put, the school grounds provide a
different setting than an adult’s home. And there are differing
public policy concerns related to the responsibilities of school
districts that provide mandatory education as compared to adults
who invite children into their home on a voluntary basis.” (M.W.
v. Panama Buena Vista Union School Dist. (2003)
110 Cal.App.4th 508, 524.)
18
To apply the holding of Romero to claims by students
against school districts would also be inconsistent with the two-
step inquiry confirmed by the Supreme Court in Brown: After
the court determines there is a special relationship, the court
must “consider whether the policy considerations set out in
Rowland warrant a departure from that duty in the relevant
category of cases.” (Brown, supra, 11 Cal.5th at p. 222, italics
added.) Moreover, Romero “was decided before the Supreme
Court’s more recent decisions making clear that, when
determining whether the defendant has a duty, such case-specific
questions are not the right ones to ask. As the Supreme Court
explained in Regents, ‘case-specific foreseeability questions are
relevant in determining the applicable standard of care or breach
in a particular case. They do not, however, inform our threshold
determination that a duty exists.’” (Archbishop, supra,
70 Cal.App.5th at p. 677; see Regents, supra, 4 Cal.5th at p. 630;
see also Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1143-1144 [“[b]ecause a judicial decision on the issue of duty
entails line drawing based on policy considerations,” we ask
“‘whether carving out an entire category of cases from that
general duty rule is justified by clear considerations of policy’”];
Cabral, supra, 51 Cal.4th at p. 772 [same].)
The trial court also relied on Santillan, supra,
202 Cal.App.4th 708 in ruling that Farr’s conduct was too
ambiguous to give rise to a duty on the part of the District to
protect Doe from sexual abuse. Santillan, however, was not a
duty case. Santillan involved Code of Civil Procedure section
340.1, subdivision (a), which “extends the statute of limitations
within which a victim of childhood sexual abuse may sue a person
or entity who did not perpetrate the abuse but was a legal cause
19
of it.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 536.)
Prior to 2020, Code of Civil Procedure section 340.1,
subdivision (b), “require[d] that such actions be brought before
the victim’s 26th birthday, unless the defendant ‘knew or had
reason to know, or was otherwise on notice, of any unlawful
sexual conduct by an employee, volunteer, representative, or
agent, and failed to take reasonable steps, and to implement
reasonable safeguards, to avoid acts of unlawful sexual conduct
in the future by that person . . . .” (Doe v. City of Los Angeles, at
p. 536; see Code Civ. Proc., § 340.1, former subd. (b)(2), added by
Stats. 2002, ch. 149, § 1, and amended by Stats. 2019, ch. 861,
§ 1, eff. Jan. 1, 2020.)5 The court in Santillan held Code of Civil
Procedure section 340.1 “preclude[d] a finding of notice . . . based
solely on an employer’s or principal’s knowledge of ambiguous
conduct by the perpetrator.” (Santillan, at p. 721.) But the
court’s holding was limited to a defendant’s notice for purposes of
extending the limitations period under the statute.6
5 The Legislature has since amended Code of Civil Procedure
section 340.1 to allow victims to bring actions before their 40th
birthday (see Code Civ. Proc., § 340.1, subds. (a) & (c)) and has
broadened the scope of the tolling provision so that it applies
where the defendant “knew or had reason to know, or was
otherwise on notice, of any misconduct that creates a risk of
childhood sexual assault by an employee” (id., § 340.1, subd. (c)).
6 Citing Federico v. Superior Court (1997) 59 Cal.App.4th
1207, the court in Santillan stated that an employer’s liability for
its “employee’s sexual abuse of minors” cannot be “based solely on
knowledge of conduct by the employee which is ambiguous in
regard to his commission of such offenses.” (Santillan, supra,
202 Cal.App.4th at p. 720.) Federico, however, did not involve a
20
4. The Rowland Factors Do Not Support Limiting
the District’s Duty To Protect Its Students from
Sexual Abuse
As with all defendants moving for summary adjudication or
summary judgment, the District had the burden to show Doe
could not establish the element of duty because the Rowland
factors supported an exception to the District’s general duty of
care. (Archbishop, supra, 70 Cal.App.5th at pp. 674-675; see
Morris v. De La Torre (2005) 36 Cal.4th 260, 277.) As stated, the
District did not address the Rowland factors or argue they
justified limiting the District’s duty of care, thus failing to meet
its moving burden. But even if the District had raised the issue,
the Rowland factors do not weigh in favor of limiting the
District’s duty to protect students from sexual abuse by teachers
and other school employees as the District proposes: to cases
where school administrators have actual knowledge of prior
sexual misconduct by the teacher or employee and where sexual
misconduct is not “ambiguous.”
a. Foreseeability Factors
“The Rowland factors fall into two categories. The first
group involves foreseeability and the related concepts of certainty
and the connection between plaintiff and defendant.” (Regents,
supra, 4 Cal.5th at p. 629; see Archbishop, supra, 70 Cal.App.5th
duty to prevent abuse arising from a special relationship; thus,
the case has little if any applicability here. (See Hart, supra,53 Cal.4th at p. 877 [“the potential legal responsibility of [school
district] administrators and supervisors for negligently hiring or
retaining [employees] arises from the special relationship they
had with plaintiff, a student under their supervision”].)
21
at p. 674.) “‘The most important factor to consider in determining
whether to create an exception to the general duty to exercise
ordinary care . . . is whether the injury in question was
foreseeable.’” (Regents, at p. 629; see Kesner v. Superior Court,
supra, 1 Cal.5th at p. 1145; Dix v. Live Nation Entertainment,
Inc., supra, 56 Cal.App.5th at p. 611.)
Foreseeability. The District argues Farr’s sexual abuse of
Doe was not foreseeable because there were “no red flags in his
background, or in his conduct and interactions with students
. . . .” Putting aside that the District’s argument ignores Farr’s
frequent physical interactions with Doe on campus in the
presence of others—which the other middle school students
described as “flirting”—the District’s analysis is legally incorrect.
“In examining foreseeability, ‘the court’s task . . . “is not to decide
whether a particular plaintiff’s injury was reasonably foreseeable
in light of a particular defendant’s conduct, but rather to
evaluate more generally whether the category of negligent
conduct at issue is sufficiently likely to result in the kind of harm
experienced that liability may appropriately be imposed.”’”
(Regents, supra, 4 Cal.5th at p. 629; see id. at p. 630 [“[w]hether a
university was, or should have been, on notice that a particular
student posed a foreseeable risk of violence is a case-specific
question, to be examined in light of all the surrounding
circumstances,” which does “not inform our threshold
determination that a duty exists”].) Thus, the issue is not
whether it was reasonably foreseeable Farr’s conduct would
injure Doe, but whether it is reasonably foreseeable the failure of
school administrators to take reasonable measures to prevent
22
sexual abuse will injure students. The District does not address
this issue.
The District also contends it is not foreseeable school
employees will sexually abuse students. According to the
District, “sexual abuse is so unforeseeable that it is outside the
course and scope of everyone’s employment as a matter of law.”
But a school district is not like every employer. As the court
recognized in United States Youth Soccer, supra, 8 Cal.App.5th
1118, sexual abuse by members “of an organization that
provide[s] activities exclusively for children”—like an elementary
school district—is reasonably foreseeable, even where the
organization “had no knowledge that [the employee] had
previously sexually or physically abused anyone or had a
propensity to do so.” (Id. at pp. 1132, 1135; see Archbishop,
supra, 70 Cal.App.5th at pp. 676-677; Brown v. USA Taekwondo,
supra, 40 Cal.App.5th at pp. 1097-1098; Juarez v. Boy Scouts of
America, Inc. (2000) 81 Cal.App.4th 377, 404 (Juarez),
disapproved on another ground in Brown, supra, 11 Cal.5th at
p. 222, fn. 9.)
The District relies primarily on John R. v. Oakland Unified
School Dist. (1989) 48 Cal.3d 438. In that case the Supreme
Court held a school district was not vicariously liable for a
teacher’s sexual molestation of a student under respondeat
superior. (Id. at p. 441.) The lead opinion, joined by one other
justice, included a footnote stating it was “unduly pessimistic . . .
to suggest that sexual misconduct is foreseeable any time a minor
and an adult are alone in a room together . . . .” (Id. at p. 450,
fn. 9.) But the issue here is not whether it is foreseeable a
particular adult will sexually abuse a student if left alone with
the student. As the court recognized in United States Youth
23
Soccer, and as subsequent cases confirmed, the issue is whether
it is reasonably foreseeable that organizations or entities that
provide services primarily or exclusively for children have
employees who may sexually abuse a child if the organization
fails to take reasonable measures to prevent the abuse. In any
event, to the extent John R. suggests sexual abuse of students by
school employees is not reasonably foreseeable, it is inconsistent
with the Supreme Court’s more recent holding in Hart that school
personnel owe students a duty to take reasonable measures to
protect them from foreseeable injury, including “injuries to a
student resulting from a teacher’s sexual assault.” (Hart, supra,
53 Cal.4th at p. 871.)
Certainty. “The second factor, ‘the degree of certainty that
the plaintiff suffered injury’ [citation], may come into play when
the plaintiff’s claim involves intangible harm, such as emotional
distress.” (Regents, supra, 4 Cal.5th at p. 630; accord,
Archbishop, supra, 70 Cal.App.5th at p. 678.) This factor does
not warrant limiting claims, like Doe’s, based on physical sexual
abuse and assault. In addition, even where a plaintiff seeks to
recover for emotional distress from such abuse, “courts have
recognized that the ‘“‘significant emotional trauma caused by
childhood sexual abuse . . . is well documented.”’” (Archbishop, at
p. 678; see Brown v. USA Taekwondo, supra, 40 Cal.App.5th at
p. 1098.)
Connection with defendant’s conduct. “The third factor is
‘the closeness of the connection between the defendant’s conduct
and the injury suffered.’ [Citation.] ‘Generally speaking, where
the injury suffered is connected only distantly and indirectly to
24
the defendant’s negligent act, the risk of that type of injury from
the category of negligent conduct at issue is likely to be deemed
unforeseeable. Conversely, a closely connected type of injury is
likely to be deemed foreseeable.’” (Regents, supra, 4 Cal.5th at
pp. 630-631; see Cabral, supra, 51 Cal.4th at p. 779.)
The question is whether, as Doe contends, school
administrators may be liable when they fail to take reasonable
measures to identify and respond to signs of potential sexual
abuse of students by employees or whether, as the District
contends, they may not be liable unless they know an employee
has already engaged in (unambiguous) sexual misconduct. While
the connection between an administrator’s actions—or here,
inaction—and subsequent sexual abuse is closer in the latter
situation, it is not distant or indirect in the former. A school
district that fails to reasonably supervise employees and students
increases the likelihood that an employee will sexually abuse a
student. (See, e.g., Archbishop, supra, 70 Cal.App.5th at p. 679
[“the failure to implement policies to prevent the sexual abuse of
minors . . . increased the likelihood priests would abuse children
attending afterschool classes”]; Brown v. USA Taekwondo, supra,
40 Cal.App.5th at p. 1099 [governing body’s “failure to take any
steps . . . to prevent taekwondo coaches from sexually abusing
female athletes is closely connected to the injury [athletes]
suffered” because the governing body “could have reduced the
risk of [athletes] being abused by limiting inappropriate contact
between coaches and youth athletes”]; Doe 1 v. City of Murrieta
(2002) 102 Cal.App.4th 899, 914, 916 [police department’s failure
to restrict contact between a program’s participants and officers
by, for example, prohibiting officers from “spending an unusual
amount of time” with participants and “going on frequent one-on-
25
one ride-alongs late at night” contributed to the likelihood that
officers and the plaintiffs would become sexually involved],
disapproved on another ground in Brown, supra, 11 Cal.5th at
p. 222, fn. 9; Juarez, supra, 81 Cal.App.4th at p. 406 [Boy Scouts’
failure to educate scouts, their parents, and adult volunteers to
protect scouts from sexual abuse created “a sufficient causal link
between the acts or omissions of the Scouts and the harm [the
plaintiff] suffered”].)
b. Policy Factors
“Even if the foreseeability factors under Rowland do not
support an exception to the duty of care, we must also consider
whether public policy considerations do.” (Archbishop, supra,
70 Cal.App.5th at p. 679; see Regents, supra, 4 Cal.5th at p. 631.)
“‘A duty of care will not be held to exist even as to foreseeable
injuries . . . where the social utility of the activity concerned is so
great, and avoidance of the injuries so burdensome to society, as
to outweigh the compensatory and cost-internalization values of
negligence liability.’” (Regents, at p. 631; see Vasilenko v. Grace
Family Church, supra, 3 Cal.5th at pp. 1086-1087.)
Moral blame. When considering whether school
administrators may be liable for sexual abuse of students by
employees, the Supreme Court in Hart stated: “Unless the
individual alleged to be negligent in a hiring or retention decision
knew or should have known of the dangerous propensities of the
employee who injured the plaintiff, there is little or no moral
blame attached to the person’s action or inaction. And unless the
employee’s propensities posed a substantial risk of personal
injury to the plaintiff or others in the same circumstances, there
26
is again little moral blame to assign . . . .” (Hart, supra,
53 Cal.4th at p. 877.)
Six years later, in Regents, the Supreme Court, considering
whether college administrators may be liable for on-campus
assaults by students on other students, explained that it had
“‘previously assigned moral blame, and . . . relied in part on that
blame in finding a duty, in instances where the plaintiffs are
particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control
over the risks at issue.’” (Regents, supra, 4 Cal.5th at p. 631; see
Kesner v. Superior Court, supra, 1 Cal.5th at p. 1151.) The
Supreme Court in Regents also acknowledged that, although
“adult students can no longer be considered particularly
powerless or unsophisticated,” “[s]ome measure of moral blame
does attach to a university’s negligent failure to prevent violence
against its students” because, “compared to students, colleges will
typically have access to more information about potential threats
and a superior ability to control the environment and prevent
harm.” (Regents, at pp. 631-632.)
Secondary school students, even more than college
students, are considerably more vulnerable and unsophisticated
than school administrators. (See Regents, supra, 4 Cal.5th at
p. 625 [college “[s]tudents are comparatively vulnerable and
dependent on their colleges for a safe environment”].) And school
districts certainly exercise a greater degree of control over the
risks posed by school employees than middle school students do.
(See Hart, supra, 53 Cal.4th at p. 869 [recognizing the
“comprehensive control over students exercised by school
personnel”]; J.H. v. Los Angeles Unified School Dist. (2010)
27
183 Cal.App.4th 123, 142 [“parents place trust in school to
supervise their children”].)
In light of the disparity between school administrators and
minor students in knowledge and control over the school
environment, and the trust parents place in schools to protect
their children, school administrators who fail to prevent sexual
abuse are not absolved of moral responsibility simply because
they did not have “actual knowledge” an employee previously
engaged in sexual misconduct. Nor should administrators ignore
signs of grooming or misconduct simply because someone
untrained in the signs of sexual abuse perceives the conduct as
“ambiguous.” Administrators who fail to notice, identify, and
respond to warning signs that suggest an employee is sexually
abusing or will sexually abuse a student bear some moral
responsibility for the abuse. (See Archbishop, supra,
70 Cal.App.5th at p. 680 [attributing “some moral blame” to a
church “because it took only minimal action to prevent sexual
abuse by priests, even after receiving dozens of reports of abuse”];
Jennifer C. v. Los Angeles Unified School Dist. (2008)
168 Cal.App.4th 1320, 1329 [attributing “some degree of moral
blame” to a school district that failed to prevent a special needs
student from sexually assaulting another special needs student
because the district “could have easily prevented . . . this
occurrence from happening in the area by simply blocking access
thereto”]; see also Brown v. USA Taekwondo, supra,
40 Cal.App.5th at p. 1100; Doe 1 v. City of Murrieta, supra,
102 Cal.App.4th at p. 916.)
28
The policy of preventing future harm. “‘The overall policy of
preventing future harm is ordinarily served, in tort law, by
imposing the costs of negligent conduct upon those responsible.
The policy question is whether that consideration is outweighed,
for a category of negligent conduct, by laws or mores indicating
approval of the conduct or by the undesirable consequences of
allowing potential liability.’” (Regents, supra, 4 Cal.5th at p. 632;
see Cabral, supra, 51 Cal.4th at pp. 781-782.) Safeguarding
children from sexual abuse—“[o]ne of society’s highest priorities”
(Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th
1066, 1078-1079)—weighs strongly in favor of imposing a duty on
school districts to take reasonable measures to identify and
respond to potential misconduct, even before a district knows a
specific employee has previously engaged in sexual misconduct.
(See Hart, supra, 53 Cal.4th at p. 878; Archbishop, supra,
70 Cal.App.5th at pp. 680-681; United States Youth Soccer, supra,
8 Cal.App.5th at p. 1137; Juarez, supra, 81 Cal.App.4th at
p. 407.)
On the other hand, in Hart the Supreme Court discussed
the “undesirable consequences that could flow from imposing . . .
liability on public school districts for sexual misconduct by
teachers . . . .” (Hart, supra, 53 Cal.4th at p. 878.) These
included “‘the diversion of needed funds from the classroom to
cover claims,’” the “likelihood districts would be deterred ‘from
encouraging, or even authorizing, extracurricular and/or one-on-
one contacts between teachers and students,’” and “the possibility
that unsubstantiated rumors of sexual misconduct might curtail
or destroy the careers of innocent teachers, counselors or other
employees.” (Ibid.) Yet, after acknowledging these concerns, the
Supreme Court in Hart held that “the value of negligence actions
29
in providing compensation to injured [students] and preventing
future harm of the same nature” outweighed the potential
undesirable consequences of imposing tort liability and that
“these remedial goals are best addressed ‘by holding school
districts to the exercise of due care’ in their administrators’ and
supervisors’ ‘selection of [instructional] employees and the close
monitoring of their conduct . . . .’” (Ibid.) In the school context,
such monitoring may include implementing reasonable measures
to keep track of employee-student interactions to identify
potentially problematic situations and inappropriate
relationships, even before school administrators know a specific
employee has engaged in sexual misconduct.
Citing Steven F. v. Anaheim Union High School Dist. (2003)
112 Cal.App.4th 904, the District raises the specter of additional
undesirable consequences that could result if the law required
school districts to take reasonable steps to prevent sexual abuse.
In Steven F. two parents sued a school district, seeking to recover
damages for their emotional distress after they discovered a
teacher had sexually abused their daughter. (Id. at p. 906.) The
court held the parents could not recover under a theory of
negligent infliction of emotional distress because the parents
were neither bystanders nor direct victims of the district’s alleged
negligence and because the other teachers’ failure to report their
colleague’s suspicious conduct was not sufficiently outrageous.
(Id. at pp. 911, 913.) Although not necessary to its decision, the
court in Steven F. stated: “[A] policy of prevention of this sort of
harm would require turning the culture at every high school in
the district into a virtual police state . . . [¶] . . . It would be a
reign of terror. . . . Teachers would be forced to be spies on their
fellow teachers, with pain of discipline if they didn’t. Mandatory
30
tattling. Student-teacher camaraderie would not only suffer, but
would have to be virtually outlawed. No hugging, ever. No being
in the same room alone, ever. No unchaperoned rides in a
teacher’s car, ever. No gifts, ever. Policies or guidelines
counseling teachers not to give rides to students would be made
absolute, without allowance for the possibility of human
compassion, sickness, or rain. From the point of view of students
and teachers the rule would be: Assume the worst. Any
possibility of student-teacher friendship would be sacrificed on
the altar of risk aversion.” (Id. at p. 918.)
This language from the 2003 Court of Appeal opinion in
Steven F. no longer reflects California law. Imposing liability on
school administrators who fail to take reasonable measures to
identify and respond to potential sexual abuse of students does
not lead to the parade of horribles conjured by the court in
Steven F. The language cited by the District is also inconsistent
with the Supreme Court’s 2012 decision in Hart, which weighed
the consequences of imposing liability on school districts and held
school administrators may be liable for their negligent
supervision of employees that results in sexual abuse. (Hart,
supra, 53 Cal.4th at p. 879.)
Burden. We also consider “the burden that recognizing a
tort duty would impose on the defendant and the community.”
(Regents, supra, 4 Cal.5th at p. 633.) Limiting the District’s duty
of care as the District proposes would be less burdensome on
school administrators than requiring administrators to take
measures to proactively prevent sexual abuse. But Doe
submitted evidence the District already has policies in place to
detect and prevent sexual abuse of students by teachers. The
31
principal of Doe’s school testified at his deposition that the school
trains staff to recognize the signs of sexual abuse, maintain
appropriate parameters in adult-student relationships, and
impose safeguards such as keeping classroom doors open when
students are present. And Farr’s RAP supervisor testified she
trained RAP program leaders on how to maintain professional
relationships with students and on what type of physical
interactions were appropriate. Imposing a duty to prevent sexual
abuse of minors is less burdensome where an organization has
already implemented policies to prevent such abuse. (See
Archbishop, supra, 70 Cal.App.5th at pp. 681-682; Brown v. USA
Taekwondo, supra, 40 Cal.App.5th at p. 1101; Juarez, supra,
81 Cal.App.4th at p. 408; see also Dix v. Live Nation
Entertainment, Inc., supra, 56 Cal.App.5th at p. 614 [there was
no reason to create an exception to a music festival operator’s
duty to attendees where the operator had “already recognized the
risks and undertaken the burden to provide security measures
and medical care”].)
Insurance. The final Rowland factor “is the availability of
insurance for the risk involved.” (Regents, supra, 4 Cal.5th at
p. 633; see Brown v. USA Taekwondo, supra, 40 Cal.App.5th at
p. 1101.) The District does not discuss whether it has obtained,
or whether school districts are able to obtain, insurance to cover
claims arising from sexual misconduct by teachers. This factor
does not weigh for or against the District’s proposed limitation.
(See United States Youth Soccer, supra, 8 Cal.App.5th at
pp. 1137-1138.)
***
32
Thus, the Rowland factors do not weigh in favor of limiting
school administrators’ duty to prevent sexual abuse to
circumstances where administrators know a specific instructor
previously engaged in sexual misconduct and where the
misconduct is not “ambiguous.” Whether the measures the
District took to prevent sexual abuse of students and to supervise
Farr and Doe were reasonable is a case-specific question of
breach. (See Regents, supra, 4 Cal.5th at p. 634 [“a duty of care is
not the equivalent of liability”].) And it is a question for the jury,
not the court on summary judgment. (See Vasilenko v. Grace
Family Church, supra, 3 Cal.5th at p. 1084.)7
C. The Trial Court Did Not Err in Granting Summary
Adjudication on Doe’s Cause of Action for Breach of
the Mandatory Duty To Report Suspected Child Abuse
CANRA requires a “mandated reporter,” which includes
teachers and certain other school employees, “to make a report to
a law enforcement agency or a county welfare department
‘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.’” (B.H. v. County of San Bernardino (2015) 62 Cal.4th
168, 186 (B.H.); see Pen. Code, § 11165.7.) Failure to make the
7 To the extent the trial court ruled there was no breach as a
matter of law because the District adequately supervised Farr
and Doe, the ruling appears to have been based on the same
mistaken conclusion that the District did not have a duty to
protect Doe from sexual abuse unless it had actual knowledge of
prior sexual misconduct by Farr.
33
required report is a misdemeanor. (Pen. Code, § 11166, subd. (c).)
In addition, an injured minor may bring a civil action where “‘a
breach of the mandated reporter’s duty to report child abuse’”
causes the minor’s injuries. (B.H., at p. 189, fn. 6; accord, All
Angels Preschool/Daycare v. County of Merced (2011)
197 Cal.App.4th 394, 405; see Alejo v. City of Alhambra (1999)
75 Cal.App.4th 1180, 1188 [“allegations [a] defendant failed to
make the report required by the statute support[ ]” a cause of
action “under the doctrine of negligence per se”], disapproved on
another ground in B.H., at p. 1289, fn. 6.)
The District employees who supervised Farr or observed
him with Doe all testified that they never saw any interactions
between Doe and Farr that caused them to suspect Farr was
behaving inappropriately and that they did not learn Farr had
sexually abused Doe until his arrest. The trial court ruled this
evidence met the District’s burden to show Doe could not prove
the District breached a mandatory duty to report. Doe contends
that, because CANRA provides for an objective, rather than a
subjective, standard for mandated reporters, there was a triable
issue of fact regarding whether District employees had a
reasonable suspicion of abuse.
Doe is correct that CANRA employs an objective standard
for evaluating the reasonableness of a mandated reporter’s
suspicion. Penal Code section 11166, subdivision (a)(1), states
“‘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 the person’s training and experience, to suspect
child abuse or neglect.” (See also B.H., supra, 62 Cal.4th at
p. 193 [“Mandated reporters have mandatory reporting duties
34
which are governed by an objective standard.”].) But that does
not answer the question here. The District contends that,
although the statute imposes an objective standard, whether
mandated reporters like teachers and school employees have a
reasonable suspicion of abuse still depends on the facts actually
known to them, not what they “should have known” had they
“been paying attention.” At oral argument counsel for Doe
argued the “facts that could cause a reasonable person in a like
position” to suspect abuse include not only the facts known to
teachers and employees, but facts reasonable teachers or
employees in a like position should have discovered. Thus,
according to Doe, a mandated reporter like a District teacher
breaches his or her mandatory duty to report suspected abuse if
(1) he or she fails to discover facts that a reasonable person in a
like position should have discovered and (2) those facts would
have caused that reasonable person in a like position to suspect
abuse.8 The dispute here is over (1).
8 Doe does not specifically make this argument in her
opening brief. She argues only that “the same evidence
implicating the District’s affirmative duty to supervise” Farr and
Doe under her negligence theory “provides the evidentiary basis
for finding triable questions” regarding whether District
employees “should have formed a reasonable suspicion of child
abuse . . . .” This type of conclusory argument does not meet her
burden on appeal to show error. (See Tubbs v. Berkowitz (2020)
47 Cal.App.5th 548, 554 [“Although we conduct a de novo review”
of an order granting summary judgment, we still “‘must presume
the judgment is correct, and the appellant bears the burden of
demonstrating error.’”].) But as we discuss, even considering
Doe’s new argument, Doe has not shown the trial court erred in
granting summary adjudication on her cause of action for
violation of Penal Code section 11166.
35
The District has the better argument. “‘“When we interpret
a statute, ‘[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and
commonsense meaning. . . . If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation
would result in absurd consequences the Legislature did not
intend. If the statutory language permits more than one
reasonable interpretation, courts may consider other aids, such
as the statute’s purpose, legislative history, and public policy.’”’”
(Hassell v. Bird (2018) 5 Cal.5th 522, 540.)
As discussed, under Penal Code section 11166,
subdivision (a)(1), “‘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,” to suspect abuse. Reading this definition in isolation, it
is not immediately clear whether the facts that could cause a
reasonable person to suspect abuse are limited to the facts known
to the person, or whether they include facts a reasonable person
should have discovered. But considered in the context of other
provisions of CANRA, the former interpretation is the correct
one. (See Hassell v. Bird, supra, 5 Cal.5th at p. 540 [“‘“‘We do not
examine [statutory] language in isolation, but in the context of
the statutory framework as a whole in order to determine its
scope and purpose and to harmonize the various parts of the
enactment.’”’”].)
First, CANRA requires mandated reporters “to report
known or suspected instances of child abuse within expedited
time frames” (B.H., supra, 62 Cal.4th at p. 190) that begin when
the mandated reporter “receiv[es] the information” (Pen. Code,
36
§ 11166, subd. (a)) suggesting a child has been the victim of
abuse. Penal Code section 11166, subdivision (a), provides that,
when a mandated reporter knows or reasonably suspects a child
has been the victim of abuse or neglect, the reporter “shall make
an initial report by telephone” to one of the agencies specified in
the statute “immediately or as soon as is practicably possible, and
shall prepare and send, fax, or electronically transmit a written
followup report within 36 hours of receiving the information
concerning the incident.” The report must include “the
information that gave rise to the reasonable suspicion of child
abuse or neglect and the source or sources of that information.”
(Id., § 11167, subd. (a); see Mathews v. Becerra (2019) 8 Cal.5th
756, 779.) That the mandated reporter’s duty to report begins to
run when the reporter receives the information concerning the
incident indicates the Legislature intended the phrase “facts that
could cause a reasonable person in a like position . . . to suspect
child abuse” (Pen. Code, § 11166, subd. (a)(1)) to refer to those
facts known (i.e., received) by the reporter, not facts the reporter
did not know but should have discovered. A contrary
interpretation would create difficulties in determining when the
36-hour deadline for the reporter to submit the written report
commenced.9
9 The initial version of the statute introduced in the Senate
required the mandated reporter to make a report of suspected
abuse “within 36 hours,” but it did not specify when the 36-hour
deadline began to run. (Sen. Bill No. 781 (1979-1980 Reg. Sess.)
§ 4, as introduced Mar. 23, 1979.) The Assembly added the
operative language clarifying that the 36 hours runs from when
the reporter “receiv[es] the information concerning the incident.”
(Assem. Amend. to Sen. Bill No. 781 (1979-1980 Reg. Sess.)
June 12, 1980; see Stats. 1980, ch. 1071, § 4.)
37
Second, CANRA differentiates between mandated reporters
like teachers, who report suspected abuse, and government
agencies, who investigate the reports of abuse. The statutory
framework “‘requires persons in positions where abuse is likely to
be detected to report promptly all suspected and known instances
of child abuse to authorities for follow-up investigation.’” (B.H.,
supra, 62 Cal.4th at p. 190; accord, Ferraro v. Chadwick (1990)
221 Cal.App.3d 86, 90; see Pen. Code, §§ 11165.7, subd. (a),
11166, subd. (a).) But “‘[o]nce a report is made, responsibilities
shift and governmental authorities take over.’” (B.H., at p. 190;
see James W. v. Superior Court (1993) 17 Cal.App.4th 246, 254.)
“The agency that receives the initial report must share the
information with various other agencies. For example, law
enforcement and county agencies are required to cross-report the
information to each other, to child welfare agencies, and to
district attorneys’ offices.” (Mathews v. Becerra, supra, 8 Cal.5th
at p. 779; see Pen. Code, § 11166, subds. (j) & (k).) The provisions
of CANRA also “encourage[ ] the agencies to continue to share
information with each other throughout the investigation.”
(Mathews, at p. 779; see Pen. Code, § 11166.3, subd. (a).) “In this
way, the statutory scheme sets up ‘a dichotomy between reporter
and reportee.’” (B.H., at p. 190; see James W., at p. 257.)
Doe’s proposed interpretation of Penal Code section 11166,
subdivision (a), would require mandated reporters to conduct an
investigation—i.e., an investigation that a reasonable person in a
like position would conduct (in the case of teachers, based on
their duty to protect students from harm caused by third parties).
This conflation of the duties of reporter and reportee, however, is
inconsistent with the statutory scheme, which treats the two
duties differently. (See B.H., supra, 62 Cal.4th at p. 189
38
[“In regard to investigating whether child abuse or neglect has
occurred, the assessments of mandated reporters and the
agencies receiving child abuse reports are not the same and are
governed by different standards.”].) Whereas a mandated
reporter’s duty to report is governed by an objective standard,
“the determinations of . . . investigators about how to follow up
on a report of a suspected incident of child abuse are governed by
a subjective standard . . . .” (Id. at p. 192.)10
Third, while neither side has cited any authority on point,
the Supreme Court has suggested that reasonable suspicion
under CANRA is based on the facts actually known to the
mandated reporter. For example, in B.H., supra, 62 Cal.4th 168the Supreme Court stated “‘the duty to report arises not on the
basis of the mandated reporter’s personal assessment of the facts
known to her, but on the basis of what a reasonable person would
suspect based on those facts.’” (Id. at p. 193.) “Those facts,” in
that line of the B.H. opinion, refers to “facts known to” the
reporter.11 (See People v. Davis (2005) 126 Cal.App.4th 1416,
10 For example, “[s]ection 11165.12 defines [an investigator’s]
reports as unfounded, substantiated, or inconclusive in terms of
the investigator’s subjective findings.” (B.H., supra, 62 Cal.4th at
pp. 192-193; see Pen. Code, § 11165.12, subds. (a)-(c).)
11 The Supreme Court in B.H. held CANRA “does not require
a law enforcement officer conducting an investigation of an initial
report of child abuse . . . to make additional reports about the
same incident.” (B.H., supra, 62 Cal.4th at p. 186.) The Supreme
Court’s comments about facts known by a mandated reporter
may be dicta, but they’re pretty good dicta. (See Southern
California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 829,
39
1427-1428 [“the history and interpretation of” CANRA “reflects
an intent to mandate reports of suspected abuse if the facts
known to the reporter would give rise to an objectively reasonable
suspicion that abuse occurred”]; People ex rel. Eichenberger v.
Stockton Pregnancy Control Medical Clinic, Inc. (1988)
203 Cal.App.3d 225, 239 [CANRA “makes clear that professionals
subject to [CANRA] must evaluate facts known to them in light of
their training and experience to determine whether they have an
objectively reasonable suspicion of child abuse.”].)
Finally, Penal Code section 11166 is a criminal statute that
makes it a misdemeanor, punishable by up to six months in jail,
for a mandated reporter to fail to make a required report. (Pen.
Code, § 11166, subd. (c); see B.H., supra, 62 Cal.4th at p. 188,
fn. 6 [“The Legislature has . . . imposed criminal sanctions
against mandated reporters for failing to report.”].) Where “two
reasonable interpretations of a penal statute stand in relative
equipoise,” courts “‘resolve doubts as to the meaning of a statute
in a criminal defendant’s favor.’” (People ex rel. Green v. Grewal
(2015) 61 Cal.4th 544, 565.) The competing interpretations of the
statute proposed by Doe and the District do not stand in relative
equipoise; the District’s is better. But even if they did (i.e., stand
in relative equipoise), the District’s interpretation is both
reasonable and more favorable to criminal defendants. Doe’s
interpretation would criminalize not only a mandated reporter’s
failure to make a required report when he or she obtains
fn. 4 [“‘generally speaking, [we] follow dicta from the California
Supreme Court’”]; Aviles-Rodriguez v. Los Angeles Community
College Dist. (2017) 14 Cal.App.5th 981, 990 [“‘To say that dicta
are not controlling [citation] does not mean that they are to be
ignored; on the contrary, dicta are often followed.’”].)
40
information indicating child abuse, but also the reporter’s failure
to take reasonable steps to discover the information that could
have caused the reporter to suspect such abuse. (See Williams v.
Garcetti (1993) 5 Cal.4th 561, 573 [“[i]n the criminal context,
‘ordinary negligence sufficient for recovery in a civil action will
not suffice; to constitute a criminal act the defendant’s conduct
must go beyond that required for civil liability and must amount
to a “gross” or “culpable” departure from the required standard of
care’”].)
In her reply brief, Doe argues that, even if reasonable
suspicion is based on facts known to District employees, “given
the open nature of the grooming and abuse [Doe] was subjected to
. . . it is hard [to] understand how a single District employee did
not ‘entertain a suspicion’ that [Farr’s] behaviors were
concerning.” The problem for Doe is that she did not present
admissible evidence that any District employees knew facts from
which a reasonable person in a like position would have
suspected Farr had sexually abused Doe. (See Prue v. Brady
Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375 [if the
party moving for summary judgment “meets [its] initial burden of
production, the burden then shifts to the opposing party to
produce admissible evidence showing a triable issue of material
fact exists”].)
Doe presented evidence that other students—not teachers
or other District employees—witnessed Farr’s conduct toward
Doe. But the employees who supervised or otherwise worked
with Farr on campus denied ever seeing Farr physically interact
with Doe, tickle her, hug her, play with her hair, or even spend
41
time alone with her.12 Nor was there evidence any school
employee ever saw Doe wear Farr’s jacket. And Doe did not
present any evidence suggesting that the District employees’
testimony was not credible or that other employees were present
when Farr was engaging in grooming behavior toward Doe on
campus. For example, no student testified Farr’s physical
interactions with Doe occurred in front of other teachers. Doe’s
assertion that a District employee must have entertained a
reasonable suspicion is too speculative to create a triable issue of
material fact on this cause of action. (See Griffin v. The Haunted
Hotel, Inc. (2015) 242 Cal.App.4th 490, 507 [“testimony about
what ‘could be’ is too speculative to create a triable issue”];
Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515,
1525 [“speculative inferences do not raise a triable issue of fact”];
Pacific Gas & Electric Co. v. City of Oakland (2002)
103 Cal.App.4th 364, 371 [“‘A party cannot avoid summary
judgment based on mere speculation and conjecture [citation],
but instead must produce admissible evidence raising a triable
issue of fact.’”].)
12 Farr’s direct supervisor denied seeing most of the behavior
the students observed, but she did recall Farr spent more time
socializing with a group of girls that included Doe than Farr did
with other students. Perhaps a prudent administrator would
have taken further steps to supervise Farr’s student interactions.
But witnessing Farr frequently interact with Doe and a handful
of other students, without more, did not give rise to a reasonable
suspicion of “sexual abuse,” as CANRA defines that term. (See
Pen. Code, § 11165.1, subds. (a) & (b).)
42
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting the District’s motion for summary
judgment. The trial court is directed to enter a new order
denying the District’s motion for summary judgment, denying the
District’s motion for summary adjudication on Doe’s causes of
action for negligence, and granting the District’s motion for
summary adjudication on Doe’s cause of action for breach of the
mandatory duty to report suspected child abuse. Doe is to
recover her costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
43