A.H. v. Simi Valley Unified School Dist. CA2/6 ( 2022 )

Filed 3/14/22 A.H. v. Simi Valley Unified School Dist. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
A.H. et al, 2d Civ. No. B304038
(Super. Ct. No. 56-2018-
Plaintiffs and Appellants, 00512587- CU-PO-VTA)
(Ventura County)
v.
SIMI VALLEY UNIFIED
SCHOOL DISTRICT et al.,
Defendants and Respondents.
Four seniors at Simi Valley High School (SVHS), including
the class valedictorian and salutatorian, were suspended from
school for three days and had their graduation privileges revoked
for drinking alcohol or using marijuana during Prom Night. The
students (collectively “plaintiffs”) brought this action for damages
against the Simi Valley Unified School District (District),
Principal Dean May and Assistant Principal Brian Cox for
violation of their Fourteenth Amendment due process rights. (42
U.S.C. § 1983 (section 1983).) They claim May and Cox violated
their procedural due process rights by providing inadequate
notice of the charges against them and depriving them of a
meaningful opportunity to be heard.
May and Cox moved for summary judgment. The trial
court granted the motions, concluding plaintiffs had failed to
raise a triable issue of material fact as to their liability for the
alleged due process violations or supervisory liability claims. The
court further determined May and Cox were qualifiedly immune
from suit. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2018, the four plaintiffs, A.H., D.S., A.B. and
S.P., attended Prom Night in Los Angeles. D.S. arranged for a
private party bus to transport 30 students, including plaintiffs, to
the event. After the students disembarked from the bus, May
and Cox observed one student who was visibly intoxicated and ill.
That student was with another student who admitted drinking
alcohol. The other students from the bus were then pulled from
the indoor Prom venue and questioned.
May and his three Assistant Principals, John Baxter, April
Jacobsen and Cox, attended the Prom as chaperones. On the
following Monday, May 7, 2018, they met to discuss what they
had discovered while questioning plaintiffs and the other
students. May and the assistant principals agreed that any
student who was under the influence of or in possession of alcohol
or marijuana on Prom Night would receive a three-day
suspension, instead of the typical five-day suspension, but would
be allowed take their AP tests. The administrators “did not make
any final decisions regarding specific students as they planned to
meet with [the] students individually before imposing any
discipline.”
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May was scheduled to meet with D.S. and his parents. Cox
was assigned to A.H.; Jacobsen and Baxter were assigned,
respectively, to A.B. and S.P. May had previously “given [the]
assistant principals . . . written authority to act as his designee
and impose suspensions pursuant to Education Code, section
48911.” (Underscoring omitted.)
A. A.H.’s Suspension
Cox met with A.H. in his office on May 7, 2018. Prior to
that meeting, while Cox was continuing his investigation, an
unnamed student “informed [him] that there was a group chat
going on called prom squat killas . . . in which A.H. and other
students were coming up with a story and telling everyone to
stick to it. [Cox] asked to see the chat and the student shared it
with [him]. There were two social media platforms for chatting
that were being used.”
Cox told A.H. to write a statement and indicated that if he
was honest, Cox would “let him off.” A.H.’s statement admitted
to bringing alcohol and marijuana on the bus, hiding the
marijuana in the bushes and using a fake ID to obtain alcohol.
A.H. never told Cox or anyone else that his statement was
untrue.
Cox referred A.H. for suspension and sent him home with
his 29-year-old sister. A.H.’s sister asked what had happened on
Prom Night and Cox told her what A.H. had admitted in his
statement. His sister responded, “I guess you’ll learn your lesson
now that you’re suspended.”
At least three other students also provided statements
indicating A.H. used or was in possession of alcohol or marijuana
on Prom Night, and another student was almost positive A.H.
consumed marijuana. May upheld A.H.’s suspension based on
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his admission and the other students’ statements. A.H. testified
during his deposition that he did not let anyone know about his
“false” written statement because he “was going to have [his]
parents try to help [him] with the situation.”
B. D.S.’s Suspension
May spoke briefly with D.S. on Prom Night. When Cox
approached D.S., he was yelling. Cox told D.S. he had heard that
D.S. was drinking alcohol and said that if D.S. did not admit it
now, he would be in more trouble. D.S., who knew he could be
suspended, admitted to Cox that he had been drinking. Cox
instructed D.S. to sit down and he then called D.S.’s mother.
Later that night, D.S.’s mother emailed May, Cox and
SVHS counselor Denise Johnson. She said that her son told her
he did not drink and that he felt pressured when questioned.
May responded that there were multiple reports of D.S.’s alcohol
consumption and that if he felt pressured, he should have
discussed it with May.
Following D.S.’s suspension, May met with his parents.
May went into the conference planning to “stay with the
suspension recommendation that [he] had mentioned to [D.S.’s]
parents,” but noted he is “always going to let a person explain
what their side was, write a statement, have a discussion.” At
the end of such a conference, May either reconfirms his
recommendation or makes a change. In this case, he reconfirmed
his recommendation.
May informed D.S.’s parents that at least five students,
including A.H., had provided statements indicating that their son
had consumed alcohol or marijuana on Prom Night. D.S.
provided May with a statement denying he was drinking. May’s
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decision to uphold the suspension was based on D.S.’s admission
at the Prom and the other students’ statements.
C. A.B.’s Suspension
A.B. did not see May speaking to anyone outside the Prom
venue and did not speak to May himself. A.B. did see Cox, who
yelled at him. Cox said that A.B. smelled like alcohol. Baxter
also smelled alcohol on A.B. Cox asked A.B. if he drank alcohol,
said he was an ex-cop, asked if A.B. wanted to be tested by police
and told him he could be suspended. Cox told other
administrators that A.B. had admitted to drinking.
The week after Prom Night, A.B. provided a written
statement to Jacobsen denying drinking. The determination to
suspend A.B. was made after Jacobsen consulted with other
adults who were present at the Prom, including May and Cox.
Jacobsen made the referral for suspension, but she “did not feel
comfortable [imposing the suspension] having not heard [A.B.’s]
statement on [Prom Night].”
A.B.’s parents met with May to appeal the suspension.
A.B.’s father showed May a photograph of A.B. with a
breathalyzer in which he appeared to blow a 0.00, but May
questioned the photo’s reliability. At least five students,
including A.H., provided statements stating that A.B. or someone
with his first name was either drinking or intoxicated on the bus.
May’s decision to uphold A.B.’s suspension was based on student
statements and Cox’s statement that he smelled alcohol on A.B.
D. S.P.’s Suspension
Chris Schurer, a SVHS counselor, approached S.P. at the
Prom and asked her to follow him. After S.P. complied, Cox came
over and started yelling at her. Cox asked S.P. if she had been
drinking and she said, “No.” Cox said he did not have time for
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her “bullshit” and told her not to lie. He mentioned that other
students thought she had been drinking. S.P. continued to deny
drinking, but eventually, when Cox asked her to say she was
drinking, she said, “Fine.” Cox then called her parents.
While S.P. waited for her parents to pick her up, she spoke
to Assistant Principal Baxter, who offered her a sweater. She
cannot remember if he asked her about drinking or about
anything that occurred on the bus. According to Baxter, S.P. told
him “she had taken a sip.”
S.P. spoke to May after her parents arrived. May told them
that S.P. may be suspended because Cox said she had admitted to
drinking alcohol. S.P. explained why she made the “[f]ine”
statement to Cox. Baxter also confirmed that S.P. had admitted
to drinking alcohol. At least two students, including A.H.,
provided statements saying S.P. drank alcohol on the bus.
S.P. learned of her suspension after she provided a written
statement to Baxter denying that she drank on Prom Night.
Baxter referred S.P. for suspension and attributes his decision to
her prior admission to him. At S.P.’s request, however, he spoke
to the friends she asked him to interview.
After S.P.’s suspension, she and her parents met with May.
Her father told May that his daughter was very upset by Cox’s
“interrogation methods.” May spoke with other adults who were
at the Prom, and they shared May’s opinion that Cox’s behavior
was normal for an administrator in that setting. May told S.P.
and her parents that he could not understand a student
admitting to doing something she did not do. May’s decision to
uphold her suspension was based on her admission and the
statements from other students.
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E. The Litigation
Following the suspensions, plaintiffs filed a complaint
against the District seeking mandamus relief for failure to
perform mandatory duties. They also sought a temporary
restraining order (TRO) allowing them to participate in the
graduation ceremony and to prevent disclosure of the suspension
records to third parties. The trial court granted the TRO as to
the suspension records and allowed S.P. to attend graduation.
The operative pleading before us is the third amended
complaint (TAC), which alleges causes of action against the
District for failure to perform mandatory duties and against May
and Cox for procedural and substantive due process violations
under section 1983. The trial court sustained the District’s
demurrer to the TAC, leaving only the second cause of action
against May and Cox for the Fourteenth Amendment violations.
1. May’s Motion for Summary Judgment
All four plaintiffs filed a collective opposition to each of the
summary judgment motions. A.H. did not specifically oppose
May’s motion. D.S. claimed he was never given notice of the
accusations made against him. He did not dispute, however, that
Cox told him on Prom Night that Cox had received reports he had
been drinking and that D.S. had admitted that fact when given
the opportunity to respond.
A.B. argued he was prematurely suspended before he could
provide a written statement and was given inadequate notice of
the reasons for his suspension. S.P. admitted she received notice
and a hearing prior to her suspension, but complained that the
hearing was conducted by Baxter, an “unauthorized and biased
disciplinarian,” and that May was liable for Baxter’s deficiencies
as a supervisor.
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2. Cox’s Motion for Summary Judgment
D.S. and S.P. did not oppose Cox’s motion. A.B. argued he
was not afforded the required notice and hearing because his
confession was obtained through coercion and lies perpetrated by
Cox. A.H. claimed Cox falsely told him the district attorney was
searching for the marijuana that was allegedly thrown in the
bushes at the Prom venue. A.H. also complained that he was
interrogated all day by Cox in his office, and that Cox used
maximization/minimization techniques until he broke down and
confessed to things he did not do.
3. The Trial Court’s Ruling
The trial court granted May’s and Cox’s motions in their
entirety, finding that all the asserted material facts were either
undisputed or established. It concluded that plaintiffs’ claims of
federal due process violations were unsubstantiated, that May
was not liable under a theory of supervisor liability and that both
May and Cox were qualifiedly immune from suit.
II. DISCUSSION
Plaintiffs were suspended pursuant to Education Code
section 48900, subdivision (c), which authorizes suspension if the
student “unlawfully possessed, used, sold, or otherwise furnished,
or been under the influence of, a controlled substance listed in
Chapter 2 (commencing with Section 11053) of Division 10 of the
Health and Safety Code, an alcoholic beverage, or an intoxicant of
any kind.” Plaintiffs contend they received inadequate notice of
the accusations against them and were deprived of a meaningful
opportunity to be heard. They further claim May is liable in his
supervisory capacity. May and Cox contest these claims and
argue that, in any event, they are qualifiedly immune from suit.
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A. Standard of Review
“A defendant’s motion for summary judgment should be
granted if no triable issue exists as to any material fact and the
defendant is entitled to a judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).)” (Kahn v. East Side Union High
School Dist. (2003) 31 Cal.4th 990, 1002-1003.) A defendant
meets “his or her burden of showing that a cause of action has no
merit if the party has shown 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. Once the defendant . . .
has met that burden, the burden shifts to the plaintiff . . . to show
that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(2); Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146,
162.) “On appeal . . . , we review the determination of the trial
court de novo.” (Szarowicz, at p. 162.)
B. The Trial Court Properly Granted the
Motions for Summary Judgment
Plaintiffs contend the trial court erred by granting
summary judgment on their second cause of action for
Fourteenth Amendment violations against May and Cox. They
assert that triable issues of material fact exist regarding their
procedural due process claims. We disagree.1
1 Although plaintiffs raised other issues and arguments in
opposition to the summary judgment motions, they address only
the procedural due process claims on appeal. It is well
established that issues not specifically and distinctly raised in an
appellant’s opening brief are deemed waived. (Julian v. Hartford
Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761 fn. 4.)
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1. Procedural Due Process
“When facing a temporary short-term suspension, a student
has minimal procedural due process rights, including the right to
a hearing. As described by the United States Supreme Court in
Goss v. Lopez [(1975) 419 U.S. 565, 581 [42 L.Ed.2d 725] (Goss)]:
[¶] ‘We do not believe that school authorities must be totally free
from notice and hearing requirements if their schools are to
operate with acceptable efficiency. Students facing temporary
suspension have interests qualifying for protection of the Due
Process Clause, and due process requires, in connection with a
suspension of 10 days or less, that the student be given oral or
written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an
opportunity to present his side of the story. The Clause requires
at least these rudimentary precautions against unfair or
mistaken findings of misconduct and arbitrary exclusion from
school.’” (Granowitz v. Redlands Unified School Dist. (2003) 105
Cal.App.4th 349, 354-355, fn. omitted (Granowitz).)
Citing a pre-Goss federal case, plaintiffs argue the notice
must be more specific than that contemplated by Goss. But both
“[b]efore and after Goss, courts have consistently refused to
impose stricter, adversarial, ‘trial-like procedures and proof’ on
public school suspension proceedings. Instead, an informal
meeting between the school official and a student or between the
official and a student and his parents has been held to comport
with due process.” (Granowitz, supra, 105 Cal.App.4th at pp.
355-356, fns. omitted; Nguon v. Wolf (C.D.Cal. 2007) 517
F.Supp.2d 1177, 1194.) “Briefly stated, once school
administrators tell a student what they heard or saw, ask why
they heard or saw it and allow a brief response, a student has
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received all the process that the Fourteenth Amendment
demands.” (C.B. by and Through Breeding v. Driscoll (11th Cir.
1996) 82 F.3d 383, 386 (Driscoll).) To establish a procedural due
process violation, the plaintiff also must show prejudice.
(Colindres-Aguilar v. INS (9th Cir. 1987) 819 F.2d 259, 261-262.)
Plaintiffs contend the notice to A.H., A.B. and D.S. was
inadequate. They concede S.P. received adequate notice.
May did not refer A.H., A.B. and S.P. for suspension, hold a
hearing on the accusations against them or impose the
suspensions. Those three students were suspended under the
authority of assistant principals. May is not liable, therefore, for
any procedural due process violation as to these students unless,
as we shall explain, he is liable in his supervisory capacity.
a. A.H.’s Notice and Hearing
A.H. contends he was not given an opportunity to be heard
prior to his suspension. The Prom was held on May 5, 2018.
A.H. incorrectly asserts the decision to suspend him was made
before Cox pulled him out of class on Monday, May 7. At that
time, Cox presented A.H. with evidence supporting his
suspension and allowed him to write a statement in response.
That statement admitted the charges against him.
It is undisputed that the four administrators met on May 7
without “mak[ing] any final decisions regarding specific students
as they planned to meet with students individually before
imposing any discipline.” (Italics added.) Indeed, there would
have been no reason for A.H.’s meeting with Cox if the
suspension had already occurred.
A.H. had an opportunity to be heard when he met with Cox
on May 7 and provided his written statement admitting the
charges. The determination to suspend A.H. was based, in part,
11
on his admissions. The letter to A.H.’s mother notifying her of
his suspension is dated May 8, 2018. While the suspension began
on May 7, there is no evidence it occurred prior to A.H.’s meeting
with Cox. A.H.’s presence in school that day confirms he did not
have notice of any suspension.
The notice and opportunity to be heard provided by Cox
more than satisfies the Goss procedural due process requirements
for suspensions of 10 days or less. A.H. received oral notice of the
charges against him on Prom Night and again at the meeting
with Cox. A.H. was given an explanation of the evidence against
him and was allowed to respond. Nothing more was required to
prevent “unfair or mistaken findings of misconduct and arbitrary
exclusion from school.” (Granowitz, supra, 105 Cal.App.4th at pp.
354-355, fn. omitted.) To the extent A.H. believed any of the
evidence against him was false, he was free to say so.
Moreover, “to establish a denial of due process, a student
must show substantial prejudice from the allegedly inadequate
procedure.” (Watson ex rel. Watson v. Beckel (10th Cir. 2001) 242
F.3d 1237, 1242 (Watson).) A.H. has failed to meet this burden.
In Keough v. Tate County Bd. of Educ. (5th Cir. 1984) 748
F.2d 1077 (Keough), the Fifth Circuit held that where a student
admitted the charges against him and was suspended, such an
admission of guilt and truth of the charges precluded a
procedural due process claim, even if a due process violation had
in fact occurred. (Id. at p. 1083.) The court reasoned that since
the student had admitted the charged conduct and had
knowledge that his conduct violated school rules, there was
substantial evidence to support a finding that the student
committed the charged conduct. (Ibid.)
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Here, it is undisputed that A.H. signed a statement
admitting not only the conduct with which he was charged, but
also other violations. Under these circumstances, no procedural
due process violation occurred. (See Keough, supra, 748 F.2d at
p. 1083.)
Finally, A.H. asserts his classification as a student under
Section 504 of the Rehabilitation Act of 1973 qualified him for
additional procedural safeguards, including an opportunity for
his parents to participate in his “pre-suspension conference.”2 As
Cox and May point out, however, “the burden of a defendant
moving for summary judgment only requires that he or she
negate plaintiff's theories of liability as alleged in the complaint;
that is, a moving party need not refute liability on some
theoretical possibility not included in the pleadings.” (Hutton v.
Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493;
accord Melican v. Regents of University of California (2007) 151
Cal.App.4th 168, 182.) Because A.H.’s alleged disability and
Section 504 rights were not raised in the TAC, we do not address
them here.
b. A.B.’s Notice and Hearing
A.B. contends he was not given an opportunity to be heard
prior to his suspension. The Prom was held on May 5, 2018. A.B.
testified his father received notice on Monday, May 7, that he
was “going to be suspended.” A.B. misinterprets this notice as a
final notice of suspension. It is undisputed the four
administrators met on May 7 without “mak[ing] any final
decisions regarding specific students as they planned to meet
2 A.H.’s reference to his “pre-suspension conference”
appears inconsistent with his claim that he was suspended prior
to that conference.
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with students individually before imposing any discipline.”
(Italics added.)
A.B. had an opportunity to be heard when he met with
Jacobsen and provided a written statement denying drinking on
Prom Night. The determination to suspend A.B. was made after
Jacobsen consulted with the adults who interacted with A.B. on
Prom Night, including May and Cox. The decision was based on
Cox’s statement that he smelled alcohol on A.B. at the Prom and
the fact that at least five students, including A.H., had provided
statements indicating A.B. was either drinking or intoxicated on
the bus. Contrary to his assertion, the decision was not based on
A.B.’s alleged Prom Night admission to Cox that he had been
drinking.
This notice and opportunity to be heard more than satisfies
the Goss procedural due process requirements for suspensions of
10 days or less. A.B. received oral notice of the charges against
him on Prom Night and again at the conference with Jacobsen.
He denied the charges at that meeting, and was given an
explanation of the evidence against him and allowed to respond.
Nothing more was required. (See Granowitz, supra, 105
Cal.App.4th at pp. 354-355.)
c. S.P.’s Notice and Hearing
S.P. concedes she was given adequate notice of the charges,
but claims she was deprived of procedural due process because
she was not afforded a meaningful opportunity to be heard by an
impartial decisionmaker. She specifically challenges Baxter’s
authority and fitness for handling a student disciplinary
proceeding. It is undisputed, however, that May had given all
three assistant principals, including Baxter, “written authority to
act as his designee and impose suspensions.” And Baxter’s
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familiarity with the facts of S.P.’s case also did not disqualify him
as a decision-maker. (Hortonville Joint School District No. 1 v.
Hortonville Education Assn (1976) 426 U.S. 482, 493 [49 L.Ed.2d
1].)
Baxter’s decision to suspend S.P. was based on her
“admitting to him that she drank on Prom [N]ight.” (Italics
added.) S.P. complains that Baxter refused to consider the
evidence of three witnesses who could confirm she was not
drinking that night. The record reflects, however, that Baxter
spoke with the students S.P. asked him to interview.
d. D.S.’s Notice and Hearing
May suspended D.S. based on his Prom Night conduct.
After D.S. arrived at the Prom venue, a school counselor brought
him to an outside gathering with May and other students. Cox
told D.S. he had reports he was drinking and said that if D.S. did
not admit to drinking now, he would be in more trouble. D.S.
admitted he had been drinking.
Once D.S. admitted to conduct punishable by suspension,
he was not entitled to a further explanation of the accusations or
a further opportunity to present his version of the events.
(Driscoll, supra, 82 F.3d at p. 386; Watson, supra, 242 F.3d at
p. 1242.) As previously discussed, once a student admits to the
charged conduct with knowledge that it violates school rules,
substantial evidence supports a finding that the conduct
occurred. (Keough, supra, 748 F.2d at p. 1083.) An admission of
such guilt, therefore, precludes a procedural due process claim
even if a due process violation did in fact occur. (Ibid.)
2. May’s Supervisory Liability
The doctrine of respondeat superior does not apply to
section 1983 claims. (Harbeck v. Smith (E.D.Va. 2011) 814
15
F.Supp.2d 608, 626.) “[S]upervisors can be held liable ‘in their
individual capacities only for their personal wrongdoing or
supervisory actions that violated constitutional norms.’” (Id. at
pp. 626-627.) Given our decision that May and Cox were entitled
to judgment on plaintiffs’ procedural due process claims, May
cannot be held liable for these claims in a supervisory capacity.
(Doe v. Rosa (4th Cir. 2016) 664 Fed.Appx. 301, 304 [“There can
be no supervisory liability when there is no underlying violation
of the Constitution”].)3
III. DISPOSITION
The judgments are affirmed. May and Cox shall recover
their costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J. TANGEMAN, J.
3Since we have decided plaintiffs’ constitutional claims in
May and Cox’s favor, we need not address their qualified
immunity defense. (Ruiz-Casillas v. Camacho-Morales (1st Cir.
2005) 415 F.3d 127, 134 [“[F]ailure of appellant’s constitutional
claims obviates our need to address the qualified immunity
defense”].)
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Kevin DeNoce, Judge
Superior Court County of Ventura
______________________________
SLC Law Group, Louis F. Teran, on behalf of Plaintiffs and
Appellants.
Woo Houska, Carol A. Woo; Garcia Hernandez Sawhney,
Nitasha Sawhney and Janet Ly, for Defendants and Respondents
May and Cox.
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