Srouy v. San Diego Unified Sch. Dist.

Decision Date24 February 2022
Docket NumberD078411
Parties Vanndrya Jason SROUY, Plaintiff and Appellant, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Law Office of Michael J. Kielty and Michael J. Kielty, San Diego, for Plaintiff and Appellant.

Higgs Fletcher & Mack, John Morris, Steven J. Cologne, Susan M. Hack, Jacob T. Spaid and Rachel M. Garrard, San Diego, for Defendant and Respondent.

DO, J.

INTRODUCTION

Vanndrya Jason Srouy is a graduate of Crawford High School (Crawford) in the San Diego Unified School District (the District). While a student at Crawford, he was a member of its varsity football team. After Srouy graduated, he found himself named as a co-defendant in a lawsuit filed by a football referee, John Herlich, who claimed to have been injured when Srouy blocked an opponent, who fell into Herlich, during a school football game. (John Herlich v. Jason Srouy, et al. , San Diego Superior Court Case No. 37-2016-00032867-CU-PO-CTL) (the Herlich lawsuit).) The other defendant, the District, rejected Srouy's tender of his defense in the Herlich lawsuit.

Srouy then filed the instant action against the District, claiming the District violated a mandatory duty to defend him in the Herlich lawsuit. Srouy alleges this duty arose under the free school guarantee and the equal protection clause of the California Constitution; title 5, section 350 of the California Code of Regulations ; and/or Education Code section 44808. The trial court granted the District's demurrer without leave to amend and dismissed Srouy's operative complaint. We are compelled to affirm.

FACTUAL AND PROCEDURAL BACKGROUND
I.Factual Background

The allegations of Srouy's operative second amended complaint (SAC) describe the Herlich lawsuit in detail. The SAC also attaches and incorporates by reference a number of exhibits.1 Because this appeal is taken from a ruling sustaining a demurrer, we assume the truth of these allegations to the extent they are properly pleaded. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58 ( Blank ).) "We also assume the numerous attachments to the [SAC] are true, and they take precedence over any conflicting allegations." ( Nede Mgmt. Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th 1121, 1127, 284 Cal.Rptr.3d 122.) The following factual summary is derived from the SAC.

A. The Injury to Herlich

Srouy graduated from Crawford in June 2016. Before graduating, he was a member of Crawford's varsity football team. He earned physical education class credit for attending and participating in football team practices and games, and was "given instruction, training and direction by the coaches," who were District employees, "as to what to do, and what his assignment was on each play."

At the time of the 2015 football season, Srouy was a high school senior and had not yet turned 18 years old. On October 16, 2015, Srouy played in a football game that pitted Crawford against Holtville High School (Holtville). Because the Crawford football field was unavailable, the game was held at Lincoln High School, which is also operated by the District. The Crawford football team was transported to and from Lincoln High School in District buses.

During the game, Crawford football coaches called a play in which Srouy was assigned to block an opposing player. Srouy alleges that during the play, he blocked the opposing player, "who then fell onto the back of [a referee's] legs," injuring the referee, Herlich. Srouy was flagged for a late hit by a different referee. However, during a team meeting the next day, "while reviewing the game film," Crawford's head coach "said that he did not think that it was a late hit, and that [Srouy] had done nothing wrong."

B. The Herlich Lawsuit

On March 11, 2016, Herlich filed a two-page claim form with the District. He stated he was an independent contractor for the San Diego County Football Officials Association, which provides officials for District sporting events. He claimed a Crawford player whom Crawford coaches knew to have a pattern of unsportsmanlike conduct had hit him intentionally during the October 16, 2015 game, and as a result of the hit, he had sustained "tibia/fibula fractures

requiring multiple surgeries" and "rotator cuff injuries" that also required surgery. He sought damages in excess of $25,000. On April 22, 2016, the District denied the claim.

On September 21, 2016, Herlich filed a complaint in superior court against Srouy and the District. The complaint contained two causes of action. In support of the first cause of action, which was asserted against Srouy,2 Herlich alleged that Srouy "had a custom and practice of unsportsmanlike conduct, including the practice of engaging in late and improper hits, defined as forceful bodily contact after the play has been called dead." He further alleged that during the October 16, 2015 game, after the end of a play, Srouy "intentionally, deliberately, negligently and/or carelessly hit an unidentified Holtville player pushing the Holtville player into the back of [Herlich's] legs, causing [Herlich] to fall and sustain serious injuries and damages."

In support of the second cause of action, asserted against the District, Herlich alleged the District "sponsored, organized, ran and otherwise controlled" the Crawford sports program, including its football team, and had agreed to be bound by the National Federation of State High School Associations (NFHS) football rules, "which prohibit illegal personal contact under Rule 9-4." He further alleged that Crawford coaches knew or should have known that Srouy "had a custom and practice of engaging in unsportsmanlike conduct" and "despite such knowledge, sanctioned, authorized and encouraged" Srouy to play in this manner, "including engaging in late and improper hits in violation of Rule 9-4." Herlich alleged that Crawford's coaches "should have benched" Srouy "or otherwise restricted his play," and that as a result of their failure to do so, Srouy "engaged in illegal personal contact with a Holtville player by charging or throwing the Holtville player into and on top of [Herlich] after the ball was dead," injuring Herlich. In his statement of damages, Herlich claimed his general damages totaled $750,000, and his special damages totaled $250,000.

By the time the Herlich lawsuit was filed, Srouy had graduated from Crawford. The Herlich complaint was served at Srouy's mother's house while Srouy was out of town. Srouy's mother is a refugee from Cambodia who "speaks and reads limited English" and, due to her experiences under the Pol Pot regime, is "cautious" when speaking to "anyone in authority." For his part, Srouy had "no experience with litigation or courts," spoke Khmer at home, and struggled with spoken English. When Srouy returned to San Diego and saw the legal papers, he saw that his "name was on a lawsuit" but otherwise did not understand what the papers meant.

Srouy and his mother went to see Crawford's athletic director, Kelcie Butcher, to ask what to do. According to Srouy, Butcher said Srouy "should try and talk to an attorney," but also told Srouy "not to worry because [Herlich] was not really after [Srouy,] he was after the school district because they had money" and that "the school district's attorneys will take care of it." From this conversation, Srouy believed the District's attorneys "would be representing [him]." He thus took no further action and waited for the next court date of April 21, 2017, which was a "date on the paperwork" he had received.

On April 11, 2017, the attorney representing Herlich filed a request for entry of default against Srouy seeking "an amount in excess of one million dollars." Srouy appeared in superior court with family members, but without an attorney, at the April 21 hearing, which was an initial case management conference. Although he stood alongside the attorneys representing Herlich and the District, the attorneys did not bother to tell Srouy that a default had been entered against him.

More than 10 months later, Srouy received a notice of deposition, served by the District, requiring him to appear for his videotaped deposition on February 12, 2018. Srouy complied. While the attorneys were making their introductions, Srouy stated that he believed he was being represented by counsel for the District. He learned for the first time that he was not. The deposition was then adjourned so Srouy could "find and hire his own counsel."

Srouy contacted the San Diego County Bar Association's Lawyer Referral and Information Service, and then reached out to attorney Michael J. Kielty, who "agreed to assist and represent [Srouy]." Kielty appeared with Srouy at his rescheduled deposition. Kielty also tendered Srouy's defense to the District. On March 19, 2018, the District, through its outside counsel, rejected the tender.

Kielty also pressed Herlich's attorney to agree to set aside the default entered against Srouy. On March 24, 2018, Herlich's counsel stated he "did not have his client's authority" to set aside the default. Kielty then filed a noticed motion seeking judicial relief from the default. Superior Court Judge John S. Meyer found the equities favored Srouy and set aside the default on the basis of extrinsic mistake. In doing so, Judge Meyer noted Srouy's difficulty with English and inexperience with courts, and observed that although Srouy "may have misunderstood Ms. Butcher" during their conversation about the Herlich lawsuit, "his reliance on what he understood is not unreasonable under these circumstances."

During the course of the Herlich lawsuit, the District moved for summary judgment, unsuccessfully. In support of this motion, the District filed a declaration from Butcher, which Srouy attached to the SAC in this case. In this declaration, Butcher averred that before the October 16, 2015 game, "Mr. Srouy had never been accused of unsportsmanlike...

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