Ortega v. Pajaro Valley Unified School Dist.

• Decision Date: 12 June 1998
• Docket Number: No. H015564,H015564
• Citation: 64 Cal.App.4th 1023,75 Cal.Rptr.2d 777
• Court: California Court of Appeals Court of Appeals
• Parties: , 125 Ed. Law Rep. 1300, 98 Cal. Daily Op. Serv. 4514, 98 Daily Journal D.A.R. 6175 Mona Lisa ORTEGA, et al., Plaintiffs and Respondents, v. PAJARO VALLEY UNIFIED SCHOOL DIST., Defendant and Appellant.

Page 777

75 Cal.Rptr.2d 777

64 Cal.App.4th 1023, 125 Ed. Law Rep. 1300,

98 Cal. Daily Op. Serv. 4514,

98 Daily Journal D.A.R. 6175

Mona Lisa ORTEGA, et al., Plaintiffs and Respondents, v. PAJARO VALLEY UNIFIED SCHOOL DIST., Defendant and Appellant.

No. H015564.

Court of Appeal, Sixth District, California.

June 12, 1998.

As Modified on Denial of Rehearing July 10, 1998.

Review Denied Sept. 2, 1998.

Gerald Z. Marer, Amy E. Margolin, San Francisco, Marily P. Lerner, San Jose, Jackson Tufts Cole & Black, LLP, Mark S. Collins, San Jose, Collins & Schlothauer, for Plaintiffs.

Thomas R. Fellows, San Jose, Weldon S. Wood, Atherton, Robinson & Wood, Inc., for Defendant.

COTTLE, Presiding Justice.

A teacher employed by defendant Pajaro Valley Unified School District (District) sexually molested a student, plaintiff Mona Lisa Ortega (Mona Lisa), in 1986. The same teacher molested another student, plaintiff Victoria Manley (Victoria), in 1988 and 1989. Neither student filed governmental claims with the District until 1993, the same year they filed the instant action. The trial court ruled in pretrial motions that the plaintiffs' ¹ action was time-barred unless the fact-finder found that the District was equitably estopped to assert its late claim, claim notice and statute of limitations defenses.

Following a three-week jury trial, the jury determined that the District was equitably estopped from claiming these defenses. It further found that the District was 100 percent responsible for plaintiffs' injuries and that the amount of plaintiffs' damages was $4,312,500. On appeal, the District argues that (1) the evidence was insufficient to support the application of equitable estoppel, (2) the allocation of 100 percent fault to the District and none to the molester was not supported by the evidence, and (3) the damages were excessive.

We agree that the evidence does not support the application of equitable estoppel as to plaintiff Victoria Manley and her parents. The record is devoid of evidence that the District or its agents engaged in affirmative acts which induced the Manley plaintiffs not to file a claim within six months, or not to file a late claim request within one year, or not to file an action within two years of the molestations. Hence, as to the Manley plaintiffs, we reverse the judgment with instructions to the trial court to enter judgment in favor of the District. With respect to the Ortega plaintiffs, we conclude that the evidence supports the application of equitable estoppel but does not support the finding that the District was 100 percent responsible for all the Ortegas' damages. Accordingly, we shall remand for a new trial on the issue of fault allocation.

I. FACTS

A. What the District Knew about the Molesting Teacher before the Molestations that Are the Subject of this Lawsuit.

1. Hiring of the Teacher

A month after Joseph Ancira received his bachelor's degree from the University of California, Santa Cruz, he was hired as a teaching intern by defendant District. He had applied for, and was awaiting, his teaching credential.

2. 1975 Incident

While Ancira was an intern at H.A. Hyde (elementary) School, he was apparently accused of fondling four young girls. ² One of the girls was the daughter of a sheriff's deputy, and criminal charges were brought against Ancira on four counts of felony child molestation (Pen.Code, § 288). Ancira was suspended from his teaching position on August 25, 1975, and placed on administrative leave while the criminal charges were being investigated.

Allegedly eight girls testified against Ancira at his trial, four on the charged offenses and four others on uncharged offenses. However, one or more of these girls recanted her testimony under cross-examination. Ancira was represented in these criminal proceedings by Attorney Peter Chang. At the conclusion of a lengthy trial, Ancira was acquitted on February 24, 1976, on all counts.

While the criminal charges were pending, the State Commission on Teacher Credentialing conducted an investigation of Ancira. Following his acquittal, Ancira returned to teaching on March 22, 1976, and the proceedings against his credential at the state level were dropped. Later, Ancira went on to become a fully credentialed, full-time teacher at Pajaro Middle School.

3. 1979 Incident

There were no further complaints or accusations concerning Ancira until 1979. At that time, one or more students and their parents complained to the administration, who met with and reprimanded Ancira. Exactly what the student complaints were was unclear. None of the students or parents involved testified. All three administrators who were involved testified and declared that the complaints had not involved any kind of sexual component or molestation, but had involved some sort of inappropriate familiarity by Ancira.

Robert Buzzone, the school principal, identified the student involved, and testified that the incident concerned Ancira pushing a girl to the ground during an after-school soccer practice. Another administrator, Director of Elementary Education Robert Bowman, recalled the incident somewhat differently. He believed it involved Ancira using inappropriate terms of endearment to female students (e.g., "honey") and touching them inappropriately on the shoulder during after-school athletic events. He stated that he warned Ancira and made a point of memorializing the warning in a memo to show that even "trivial matters" would be taken seriously. The memo stated, "I met today with Joe Ancira in presence of Bob Buzzone to discuss parent and student complaints re inappropriate remarks, patting girls, etc." A third administrator, superintendent James Baker, did not remember any meeting with Buzzone and Bowman.

Ancira, on the other hand, testified that the incident involved his touching a girl's breast, and the District "solved" the problem by transferring the girl to another classroom. He stated the District took no further action on the 1979 complaint.

4. Attorney Chang Removes Items from the District's Files

In approximately 1982, Ancira was considering applying for a teaching position in the San Diego area. He wanted to make sure his personnel files contained no derogatory information that would prevent him from securing a job, so he asked his criminal defense attorney, Peter Chang, to review his personnel file. ³ Chang went to the District office and was given free access to Ancira's file. Without any protestation from the District, Chang removed various items that contained derogatory references, including the Kovasevich letter (see section D, post ) and the Buzzone memo, from Ancira's file.

Ancira either did not get the teaching position in San Diego, or he abandoned his plans to move, because he was still teaching at the Pajaro Middle School in 1986. That is when the first allegation pertinent to this lawsuit occurred.

B. The Mona Lisa Ortega Incident

1. The Molestation; Ancira's Threat

In 1986, 12-year old Mona Lisa Ortega was a 7th grader in Ancira's English class. Sometime in the fall, Ancira challenged Mona Lisa in front of her entire class to eat a hot chili pepper. This was extremely embarrassing to her. Mona Lisa's parents complained, and the school administration reprimanded Ancira. Later in the fall, probably around December 1986, Ancira was selling pep-club T-shirts for a school fundraiser. Ortega went to his classroom between classes to buy one of the T-shirts. While they were talking, Ancira turned off the lights. He walked up beside Mona Lisa, slid his hand under her sweater, and touched her breast or bra. He kept his hand there for about 30 seconds, while he was panting in her ear. Mona Lisa finally broke away and ran out of the room. She was in shock, but when the bell rang signaling that it was time to go to Ancira's classroom, she went.

After that, Mona Lisa tried to stand up to Ancira in class, but he warned her that if she "disrespect[ed]" him, "he will suspend me so fast I won't know what hit me."

2. Events of February 5, 1987, the Date Mona Lisa Reported the Molestation

In early February 1987, Mona Lisa confided to friends that Ancira had molested her. Word spread around school quickly. The school principal, Carlos Garcia, heard about it as soon as he arrived on campus on February 5, 1987.

At approximately 7:30 a.m. that morning, Mona Lisa met with Garcia, who immediately asked the vice principal, Sesario Escoto, to come into the office and hear what Mona Lisa had to say. Garcia and Escoto allegedly asked Mona Lisa, "are you sure you just didn't misinterpret, are you sure it wasn't just a simple pat on the behind?" She said she was sure, but felt these questions indicated the administration did not believe her.

Whether they believed her or not, Garcia immediately reported the incident to Child Protective Services and the sheriff's office. He also called Mona Lisa's parents and asked them to come in, but he did not tell them the reason they were being called in. Mona Lisa's father worked an hour away at Soledad Prison, and Mona Lisa's mother decided to wait until he was available before she went in. As a consequence, they did not arrive at school until 11:30 or noon.

The sheriff's office responded immediately. However, Mona Lisa told the uniformed officer who was called in that she did not want to speak with him until her parents arrived. Accordingly, everyone, including Mona Lisa, waited until her parents arrived.

In the meantime, Garcia conferred with the District's legal counsel, who advised Garcia to remove Ancira from his classroom and place him on leave. The evidence is disputed as to whether Ancira continued to teach for the remainder of the day. In any event, he was clearly not teaching by the following day.

While Mona Lisa was waiting in the office with a couple of other students, Ancira stopped in to pick up his attendance sheets and asked, "what was going on?" She did not respond. The office...