C.A. v. L.A. Unified Sch. Dist.

• Court: California Court of Appeals
• Writing for the Court: STONE, J.
• Decision Date: 17 April 2019
• Docket Number: B281333
• Citation: C.A. v. L.A. Unified Sch. Dist., B281333 (Cal. App. Apr 17, 2019)
• Parties: C.A., Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

C.A., Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

B281333

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

April 17, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC510666)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Reversed and remanded with directions.

Johnston & Hutchinson and Thomas J. Johnston; The Kneafsey Firm and Sean M. Kneafsey, for Plaintiff and Appellant.

Coleman & Associates Lawyers, John M. Coleman and Bruce McIntosh, for Defendant and Respondent.

____________________ C.A. appeals from the judgment entered after the trial court granted summary judgment in favor of the Los Angeles Unified School District (LAUSD) on C.A.'s claims for negligence and for negligent hiring, supervision and retention. C.A., who was sexually abused by Kip Arnold, a teacher at her middle school, seeks to hold LAUSD vicariously liable for alleged failures of its employees to protect her while she was a minor student under their supervision. C.A. contends triable issues of fact exist as to whether LAUSD negligently failed to discover that Arnold had been accused of sexual battery while working at a school in the Long Beach Unified School District. C.A. also argues triable issues remain on the question whether LAUSD employees were negligent in failing to properly supervise her and in failing to report Arnold's violations of LAUSD policies. We reverse, as we conclude there is a triable issue of material fact with respect to whether LAUSD employees acted negligently in supervising C.A.

FACTUAL AND PROCEDURAL BACKGROUND

1. C.A.'s Complaint

C.A. filed a complaint against LAUSD alleging a cause of action for negligence and a second cause of action for negligent hiring, supervision and retention. Her complaint alleges that, beginning in 2005, Arnold used his position as a teacher at C.A.'s LAUSD school, Nimitz Middle School (Nimitz), "to begin a determined effort to 'groom' her for future sexual abuse" and then subjected her to severe sexual abuse on an ongoing basis from 2005 to 2010. The complaint alleges that LAUSD employees knew or should have known of prior complaints at another school about Arnold engaging in unlawful sexual touching and indecent exposure, and they negligently ignored facts indicating Arnold"had the propensity to sexually abuse minors and was in fact likely sexually abusing Plaintiff." It further alleges that LAUSD employees owed C.A. a duty to protect her from sexual abuse by Arnold and to enforce policies designed to protect children from sexual abuse.

2. LAUSD's Motion for Summary Judgment/Summary Adjudication

LAUSD moved for summary judgment or, in the alternative, summary adjudication as to C.A.'s claims. First, LAUSD contended C.A. could not carry her burden to show LAUSD was negligent in hiring Arnold as a physical education (P.E.) teacher. LAUSD argued no reasonable factfinder could conclude LAUSD was on notice or should have been on notice of past sexual misconduct by Arnold, because LAUSD's thorough pre-employment screening of Arnold did not disclose any past record of sexual misconduct. As to the claim for negligent supervision, LAUSD contended there was no evidence that any LAUSD employee knew or had reason to know of sexually inappropriate behavior or propensities on the part of Arnold prior to C.A.'s disclosures to the police in 2012, years after the sexual abuse she endured as a minor. LAUSD offered the following evidence in support of its motion.

a. Arnold's sexual misconduct at Long Beach school

In 1993, Arnold was temporarily employed by Long Beach Unified School District as a supervisor of suspended students. A female aide in her mid-20's alleged Arnold touched her sexually without her consent while they were working, resulting in Arnold being arrested on suspicion of sexual battery in December 1993. The charges were later dropped.

b. LAUSD hires Arnold

Arnold applied for employment with LAUSD in June 2003. Arnold reported on his application that he had obtained an associate degree from Long Beach City College in June 1999 and a bachelor's degree in P.E. from California State University Long Beach (CSU) in January 2003. Arnold's application reported his prior employment history as consisting of work as a baseball umpire from 1980 to 1990 and as a self-employed cabinet maker from 1990 to 2003. Arnold also reported completing a student internship in P.E. at LAUSD's South Gate High School while he attended CSU. Arnold did not disclose his employment with Long Beach Unified School District in 1993, the position from which he had been discharged after being arrested for sexual battery.

At the time Arnold applied to LAUSD, its application asked applicants to report all prior criminal convictions or pending court cases. Labor Code section 432.7, subdivision (a), prohibited employers from asking applicants to disclose prior arrests that did not result in a conviction. Arnold's application identified a 2001 conviction for driving under the influence, which was not disqualifying under LAUSD policy. He did not disclose his arrest on suspicion of sexual battery in December 1993 or the underlying circumstances. In his application Arnold answered "No" in response to the question, "Have you ever been dismissed from, or not reemployed by, a public or private school while holding any teaching/non-teaching position(s), or while in any other type of employment?"

LAUSD staff reviewed Arnold's application, interviewed him in person, conducted reference checks, and confirmed Arnold qualified for California teaching credentials. LAUSD staffcontacted Arnold's listed character references by telephone. Arnold's three references were the Kinesiology and P.E. Coordinator at CSU, one of his professors at CSU, and Gary Cordray, the P.E. Department Chair at South Gate High School who supervised Arnold's student teaching in 2003. In Cordray's written evaluation, he rated Arnold as a "5" (the highest level) in overall teaching effectiveness and stated Arnold "demonstrated many outstanding qualities of a young teacher."

LAUSD subsequently placed Arnold on the teacher hire eligibility list, pending obtaining his background clearance. For Arnold's student-teaching job, LAUSD had previously fingerprinted him and submitted his fingerprints to the Federal Bureau of Investigation and the State Department of Justice (DOJ) to have these entities conduct nationwide searches for any prior criminal convictions or pending cases. LAUSD's Human Resources re-fingerprinted Arnold upon his application for permanent employment and again submitted his fingerprints to the DOJ. Arnold obtained a California Teaching Credential on August 22, 2003 and was cleared for employment.

Cordray contacted his friend, Nimitz Principal Frank Vasquez, and recommended that Vasquez consider Arnold for the open P.E. teacher position at Nimitz. Vasquez and P.E. Department Head Ricardo Valencia interviewed Arnold for the position, and Vasquez ultimately chose Arnold over another candidate. Arnold was hired on July 1, 2004.

c. Arnold's sexual abuse of C.A.

In 2005, when C.A. was in eighth grade at Nimitz, she became acquainted with Arnold. Over the summer vacation after her eighth grade year, Arnold made arrangements for C.A. to meet him at a motel. He told her to make sure no one knewwhere she was going, and she took steps to make sure their meeting was kept a secret. At the motel, Arnold kissed and touched C.A., performed oral sex on her, and digitally penetrated her. He attempted to have intercourse with her as well.

C.A. started high school at Bell High School in the fall of 2005, but her contact with Arnold did not cease. At another meeting between Arnold and C.A. in September 2005, Arnold tried to kiss and touch her. Arnold continued to telephone C.A. during her freshman and sophomore years. During C.A.'s junior year, the 2007-2008 schoolyear, she and Arnold met occasionally at a mall or to go out to eat. LAUSD proffered C.A.'s March 29, 2013 declaration filed in the superior court, in which she averred that "[o]ne night in 2007, Arnold took me to his boat. He told me 'I'm going to take what's mine' . . . and proceeded to rape me."

After an anonymous caller reported seeing Arnold drop C.A. off at Bell High School in May 2008, leading to an investigation of Arnold (discussed further below), C.A. and Arnold stopped seeing each other for a few months. C.A. stopped attending Bell High School during her senior year, the 2008-2009 school year. Arnold began stalking and harassing her in person and over the phone and demanding she have sex with him as payment for the gifts he had given her. In the spring of 2010, C.A. (now 18 years old) gave in and met with Arnold twice and had sex with him. C.A. became pregnant with her boyfriend Juan's baby and stopped having contact with Arnold.

C.A. came forward to the police in 2012 after learning that Arnold had asked out another student at Nimitz when she too was in eighth grade. The City of Bell Police Department conducted a sting operation with C.A.'s assistance and ultimately arrested Arnold. On November 26, 2012, Arnold was convicted oftwo counts of lewd and lascivious acts with a child and the court sentenced him to over four years in prison. (Pen. Code, § 288, subd. (c)(1).)

d. 2008 investigation of Arnold's relationship with C.A.

On May 23, 2008, an anonymous caller reported to Vasquez that she had observed Arnold picking up a female student in the morning and dropping her off at Bell High School. Vasquez was concerned that Arnold was violating LAUSD policy...