Roe v. Hesperia Unified Sch. Dist.

• Decision Date: 12 October 2022
• Docket Number: E075092
• Citation: 85 Cal.App.5th 13,300 Cal.Rptr.3d 340
• Parties: Billy ROE, a Minor, etc., et al., Plaintiffs and Appellants, v. HESPERIA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 13

300 Cal.Rptr.3d 340

Billy ROE, a Minor, etc., et al., Plaintiffs and Appellants,

v.HESPERIA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

E075092

Court of Appeal, Fourth District, Division 2, California.

Filed October 12, 2022

The Matiasic Firm, Paul A. Matiasic, Hannah E. Mohr, San Francisco; Esner, Chang & Boyer, Holly N. Boyer and Kathleen J. Becket, Pasadena, for Plaintiffs and Appellants.

Cummings, McClorey, Davis, Acho & Associates and Ryan D. Miller, Riverside, for Defendant and Respondent.

OPINION

MENETREZ J.

Plaintiffs Billy Roe, David Roe, and Charlie Roe appeal from a judgment of dismissal following an order sustaining without leave to amend a demurrer filed by defendant Hesperia Unified School District (the District) to plaintiffs’ third amended complaint.¹ We affirm in part and reverse in part.

BACKGROUND

"This case comes to us at the demurrer stage, so for present purposes we assume the truth of the allegations in the" operative pleading. ( Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209, 276 Cal.Rptr.3d 434, 483 P.3d 159 ( Brown ).)

From August 2018 through January 2019, plaintiffs were six-year-old first grade students who attended Maple Elementary School (Maple) within the District. The District receives financial assistance from the federal government.

Pedro Martinez worked at Maple as a janitor and had worked there since 2005. Martinez's position as a janitor did not require him to have any one-on-one contact with the students.

Martinez engaged in a variety of activities with the students that plaintiffs characterize as " ‘grooming’ activities" that were "designed to lure minor students, including [p]laintiffs, into a false sense of security around him." Martinez befriended young boys, gave plaintiffs sweet treats, showed plaintiffs video games on YouTube, showed plaintiffs videos of Mickey Mouse, referred to his penis to plaintiffs as " ‘Mickey Mouse’ " and/or a " ‘taser,’ " had plaintiffs sit on his lap, and referred to himself to plaintiffs as their friend, " ‘grandpa,’ " and/or " ‘Mr. Quarters.’ " Plaintiffs allege that numerous employees of the District who were mandated reporters under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164 et seq., including a school "principal/school district director," another school principal, and an assistant principal, witnessed Martinez's behavior and did not report it to school officials or to law enforcement, in violation of the District's policies. Those witnesses did nothing to prevent the behavior from recurring.

Plaintiffs sat on Martinez's lap in and around the school cafeteria. Numerous employees of the District who worked in the cafeteria witnessed that conduct.

Every school day between August 2018 and January 2019, Martinez lured plaintiffs individually or in groups of boys into empty classrooms or bathrooms during recess, lunch break, and other times in the school day. He often lured plaintiffs from the cafeteria into empty classrooms or bathrooms by offering them sweet treats. Martinez's interactions with plaintiffs in the cafeteria were witnessed by numerous employees, including cafeteria workers, lunch break monitors, and teachers. Martinez would then lead the first-grade boys across campus individually or in groups into the empty rooms. Martinez escorted plaintiffs to those empty rooms in "plain view" of employees of the District, including a school principal and school district director, another school principal, an assistant principal, and two first grade teachers. No District employee intervened, investigated, or reported what they observed concerning Martinez's interactions with plaintiffs.

Several times in the fall of 2018 a specific food service worker saw Martinez escort "students from the cafeteria area to their classrooms under the guise of ‘helping the students retrieve their lunch money.’ " Another employee witnessed Martinez meeting with students at portable classrooms on campus. Charlie "was noted to be missing from the school cafeteria on at least four different occasions."

When in the empty rooms, Martinez forced plaintiffs to perform oral sex on him and then forced plaintiffs to remove their pants and to lie face down on the ground, where Martinez would sodomize them. Martinez showed plaintiffs video recordings of himself sodomizing and otherwise sexually assaulting other young boys. He told plaintiffs that these other young boys also were " ‘learning how’ to engage in this type of sexual behavior." Martinez often "concluded these abusive encounters by forcing the boys to physically fight each other, in an effort to shift any blame surrounding bruises or physical marks of abuse on [p]laintiffs away from himself, instead chalking it up to young boys roughhousing with each other." Martinez threatened to hurt plaintiffs if they told anybody about the abuse.

On numerous occasions, District employees, including two named first grade teachers, noticed that plaintiffs were missing from their classrooms "during class hours for inordinate amounts of time," sometimes for up to 20 or 30 minutes. During those periods, plaintiffs were being abused by Martinez elsewhere on campus. The teachers and other employees did not investigate or report plaintiffs’ absences from their classrooms. Instead, in September 2018, plaintiffs’ teachers reported the absences to plaintiffs’ parents and guardians and told them that the children's behavior needed to change.

The District's written policy forbids any form of sexual harassment of students by employees. Students are encouraged to notify staff immediately of any incidents of harassment. The policy further provides that any school staff who witness incidents of harassment are required to intervene to stop the harassment. The District has a training guide addressing the need for staff to maintain professional boundaries with students. The guide provides that "[m]aintaining personal, professional and protective boundaries is crucial for educational professionals working in [the] schools." The policy delineates that " ‘unacceptable behaviors’ " include " ‘[b]eing along [sic ] in a room with a student with the door closed’ " and " ‘engaging in any type of physical contact with a student in a private situation.’ " (Italics omitted.) The District has training guidelines that describe indicators of physical and sexual abuse and sexual exploitation. These indicators include " ‘questionable bruises on buttocks,’ ‘going missing for periods of time,’ ‘having mood swings and changes in temperament,’ ‘engaging in highly sexualized play that is different from age-appropriate form of exploration,’ [and] ‘bizarre or unusual sexual behavior or knowledge.’ " (Boldface & underlining omitted.)

As early as September 2018, plaintiffs’ parents began noticing "unusual behavior" and signs in their children, including engaging in sexually inappropriate conduct with classmates and at home, asking sexually provocative questions and making sexually provocative comments, urinating at inappropriate times and places including on each other, and displaying "[u]nusual interest and curiosity in" Mickey Mouse and tasers. In addition, in December 2018, Charlie's parents or guardians noticed bruising on his buttocks.

Beginning in September and October 2018 and then again in December 2018, plaintiffs’ parents or guardians "made multiple in-person and telephonic complaints/reports" to District employees in which they communicated to staff about the behavior they were witnessing in plaintiffs. One plaintiff's parent asked the student's teacher about tasers and Martinez's "unusual use of the term ‘Mickey Mouse.’ " That "teacher was dismissive of the young boy's questions." Charlie's grandmother reported the "troubling signs and behaviors" to numerous District employees, including Charlie's teacher. Billy's mother complained in person to Maple employees. Billy's mother was once instructed by an assistant to leave her contact number for the school psychologist, which Billy's mother did. The psychologist never contacted Billy's mother, and neither did anyone else from the school office. In December 2018, Billy's mother reported "her concerns and received an unconcerned, dismissive phone call" from Billy's teacher.

None of plaintiffs’ parents was informed of or provided with relevant complaint forms, including form E 5145.7, which is entitled " ‘Discrimination, Harassment, Bullying, or Intimidation Complaint Form.’ " According to the District's policy, that form should have been provided to parents "on precisely occasions such as the ones detailed" in the third amended complaint. According to the form, it obligates the District to investigate any allegations made and to take appropriate disciplinary action.

In June 2018, the San Bernardino County grand jury issued a report entitled " ‘Hesperia Unified School District Sexual Harassment Policy and Procedures,’ " which resulted from an investigation that ensued after several student-on-student incidents. The grand jury's findings were communicated directly to the District. Those findings included that employees of the District received no training on the elements of sexual battery, the District had "a narrower definition of sexual battery than law enforcement," the District's explanation of its complaint and grievance procedures differed from accounts given to the grand jury by parents, and the parents were not provided a copy of the investigative report as they should have been and were not advised of their right to appeal. The District's risk management director admitted that the District knew of those findings. The grand jury made other recommendations, which the District did not follow.

In January 2019, the People charged Martinez with numerous felonies involving his alleged sexual abuse of minors.

In February 2019, plaintiffs filed a lawsuit against the District and Martinez, alleging numerous claims arising from Martinez's alleged sexual abuse of plaint...