K.M. v. Grossmont Union High Sch. Dist.

• Decision Date: 25 October 2022
• Docket Number: D075957, D076833
• Citation: 84 Cal.App.5th 717,300 Cal.Rptr.3d 598
• Parties: K.M. et al., Plaintiffs and Appellants, v. GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent. K.M. et al., Plaintiffs and Respondents, v. Grossmont Union High School District, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

84 Cal.App.5th 717

300 Cal.Rptr.3d 598

K.M. et al., Plaintiffs and Appellants,

v.GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

K.M. et al., Plaintiffs and Respondents,

v.Grossmont Union High School District, Defendant and Appellant.

D075957, D076833

Court of Appeal, Fourth District, Division 1, California.

Filed October 25, 2022

The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey, for Plaintiffs and Appellants.

Artiano Shinoff, Paul V. Carelli IV, Gil Abed, and Daniel R. Shinoff, for Defendant and Appellant.

Leone & Alberts, Louis A. Leone and Seth L. Gordon for Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk as Amici Curiae on behalf of Defendant and Appellant.

INTRODUCTION

HUFFMAN, Acting P. J. Plaintiffs K.M., H.R., and M.L. (Plaintiffs) sued the Grossmont Union High School District (the District) for negligence based on alleged sexual abuse by their high school drama teacher, James Chatham.¹ They also asserted sexual harassment claims under Civil Code section 51.9, to which the District successfully demurred. The District made Code of Civil Procedure section 998 offers, which Plaintiffs did not accept.² The case proceeded to a jury trial, where the trial court excluded certain evidence and mistakenly included Plaintiffs in an oral jury instruction regarding apportionment of fault. Plaintiffs prevailed, and the jury assigned 60 percent of fault to Chatham, and 40 percent to the District, with resulting damage awards lower than the section 998 offers. The parties moved to tax each other's costs. The trial court ruled the offers were invalid, granted Plaintiffs’ motion, and denied the District's motion in pertinent part.

Both parties appealed. The Legislature later enacted Assembly Bill No. 218 (Assembly Bill 218 or Assem. Bill 218), which amended Code of Civil Procedure section 340.1, to reduce procedural barriers for childhood sexual abuse claims and to allow treble damages for a claim involving a prior cover-up of abuse.

Plaintiffs seek a new trial. They contend they are entitled to pursue treble damages, and that the trial court erred by sustaining the demurrers to their sexual harassment claims, excluding certain evidence, and giving the erroneous oral jury instruction. The District argues the trial court wrongly determined its Code of Civil Procedure section 998 offers were invalid. We conclude the treble damages provision in Code of Civil Procedure section 340.1 is neither retroactive, nor applicable to public school districts. We further conclude Plaintiffs do not establish they can pursue sexual harassment claims against the District under Civil Code section 51.9. The parties do not establish reversible error on the other asserted grounds, either. We affirm the judgment and postjudgment orders.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Events

Plaintiffs attended Granite Hills High School ("Granite Hills") between 2009 and 2015. Chatham was the drama teacher until 2014. Georgette Torres was the school principal until 2013, and passed away in 2016. Jake Gaier and Michael Fowler served as assistant principals, with Fowler leaving for another school in 2011 and returning as principal in 2013.

The District had a policy prohibiting sexual harassment. There was also an online training program titled, "Making Right Choices" for staff and students, which addressed inappropriate conduct and reporting.

Former head custodian Sonia Villa received reports from custodians who saw Chatham with male students, and told her supervisor, Janie Wright, and teachers about these reports. Around 2010, she attended a meeting with Wright, Torres, and Fowler, at which Torres questioned why Villa was talking to teachers about other teachers and (according to Villa) required her to sign something.

In November 2011, a student's parents emailed Gaier to report inappropriate conduct by Chatham, including telling the students, "get up on stage we are filming a porno" and having a male visitor who would sit on his lap and whom he would ask to "kiss him."³ Torres and Gaier held a meeting with Chatham, he agreed to stop, and they placed the email and meeting notes in his file as a written record. Gaier conducted a follow-up classroom visit, and did not hear further complaints or rumors about Chatham.

Between 2011 and 2014, Chatham engaged in sexual contact with each Plaintiff, which they described at trial and we address post.

In late January 2014, a female student and her mother told Granite Hill's resource officer, Robert Lesagonicz (Officer L.), that Chatham was sexually touching students. Fowler, who was now principal, placed Chatham on administrative leave. Officer L. conducted an investigation in which he interviewed the Plaintiffs and others. El Cajon Police Department detective David Vojtaskovic (Detective V.) also conducted an investigation. H.R. organized a meeting with K.M. and others in early February 2014 to discuss Chatham, at which they initially agreed to protect him; M.L. was not present. The District subsequently terminated Chatham's employment.

B. Litigation and Pretrial Proceedings

In 2015 and 2016, each Plaintiff sued the District. The operative complaints asserted claims for negligence; negligent supervision; negligent hiring or retention; negligent failure to warn, train, or educate students; intentional infliction of emotional distress; and sexual harassment under Civil Code section 51.9.⁴

The District demurred to the claims for sexual harassment under Civil Code section 51.9, arguing in part that it was not subject to liability. The trial court consolidated the cases, including for purposes of the demurrers. In June 2016, the court sustained the demurrers without leave to amend.

In May 2018, the District made the operative Civil Code section 998 offers, which Plaintiffs did not accept.

C. Trial

The matter proceeded to a jury trial in November 2018 on Plaintiffs’ negligence claims. The jury heard extensive witness testimony, which we now summarize.⁵

1. Plaintiffs’ Testimony

K.M. took Chatham's class his sophomore year. Chatham engaged in improper conduct with male visitors, like having them sit on his lap. K.M. then did a summer theater program, in which Chatham did similar things, along with a "game" that involved almost kissing the boys. He started touching K.M., including nibbling on his ear, massaging his head and shoulders, and touching his stomach and thigh. K.M. said "it was a constant thing ... so it became normal ...." During K.M.’s junior year, Chatham touched K.M.’s genitals over his pants and under his underwear, and kissed him. Chatham's behavior continued into his senior year, and K.M. eventually stopped interacting with him. During Officer L.’s investigation, K.M. initially denied doing anything with Chatham, stating he was worried if people would "think if [he] was gay" or "just a rat ...." He later described Chatham's conduct verbally for Officer L., but did not include in his written statement that Chatham touched his genitals. He also did not tell Detective V. about everything that happened, explaining he was "embarrassed" and "still struggling" with why he let it happen. K.M. was now serving in the military and married with a child.

H.R. took Chatham's class his junior year. H.R. first saw Chatham touch other boys, and Chatham then started touching him, including pulling him on his lap; nibbling his ears; rubbing his shoulders, chest, and legs; and doing the kissing game. H.R. said it felt "so normal," the students would mimic Chatham, and it was how they "joked around." Chatham later touched him under and over his underwear, and flicked his crotch. H.R. further testified his father had been difficult, his parents made him leave the home his senior year, and Chatham helped him get a job in community theater and work as his unpaid teaching assistant. H.R. said he avoided Officer L.’s calls and organized the meeting to help Chatham, because Chatham "meant a lot" to him. He told Detective V. only about "minor things," to protect Chatham.

M.L. played multiple sports in high school, and excelled at football. He took a class with Chatham the first semester of his junior year. Chatham became "like a ... close friend," started doing the kissing game, and one day groped his leg. M.L. said he was "weirded out," but thought it was a joke and did not report it. Chatham touched his legs repeatedly, felt "up [his] shirt," and groped and wrestled with him. Two weeks before Chatham was placed on leave, he touched M.L.’s genitals under his shorts. M.L. acknowledged he did not disclose the genital touching until early 2018, when he told Plaintiffs’ expert psychiatrist, Dr. Calvin Colarusso. He said he did not tell Detective V. everything because he was embarrassed and did not want this to take away from his athletic success. After high school, M.L. attended Grossmont Community College, where he played football for a period of time.

2. Testimony Regarding 2010 Villa Meeting

Former head custodian Sonia Villa testified about custodian reports about Chatham, and her meeting with school administration. She said she received multiple reports from a female custodian, including one time when Chatham and a male student were in his office with the lights off, and told her supervisor, Janie Wright, and a teacher. Villa said that another time, custodian William Kennedy reported a boy was laying on Chatham's leg on a sofa, and Chatham was touching the boy's hair. When Villa arrived, they were just sitting on the sofa. She told Wright, as well as another teacher, Joni Mah.

Mah told her to tell an assistant principal, but Villa was concerned about "jump[ing] her supervisor" and getting fired.

Villa stated she was called into a meeting with Wright, Fowler, and Torres. According to Villa, Torres said she heard Villa was talking about "Chatham doing inappropriate stuff" and asked, ...