Baker, et al, v. Chaffey Joint Union HSD., et al

The Court would GRANT Plaintiffs Baker, Doe, and ML’s motion as follows: (1) Baker/Doe’s 1st and 2nd causes and ML’s 2nd, 3rd, and 4th causes [re District negligence]; (2) Baker/Doe’s 3rd, 4th, and 6th causes and ML’s 1st cause [re invasion of privacy and intentional infliction of emotional distress].

The Court would CERTIFY the class of “All female students who attended Los Osos High School from August 1, 2016, to August 24, 2021, who were enrolled in female physical education classes and/or involved in female athletics programs.”

The Court would APPOINT Plaintiffs Baker, Doe, and ML as class representatives and attorneys Jason Hartley and Jason Linder of Hartley LLP; Daniel Karon of Karon LLC; and Kashif Haque, Samuel Wong, and Ali Carlsen of Aegis Law Firm, PC, as Class Counsel.

The Court would ORDER the parties to meet and confer by July 3, 2026, on class notice of the certification, with the Class Notice to be mailed/ emailed and provide the 30-day opt-out period no later than July 17, 2026.

The Court would ORDER Plaintiffs to submit an order on the class certification no later than July 2, 2026, with a physical courtesy copy provided to this department.

Case Summary

At essence, this is a putative class action for invasion of privacy. In this matter, Plaintiffs seek to represent female students who attended Los Osos High School, located within Defendant School District (District) during the time that Defendant Riden, who was a locker room attendant and assistant coach, placed at least one hidden camera in the girls’ bathroom.

The original Complaint was filed on October 8, 2021, but a First Amended Complaint (FAC) was filed as a matter of right on December 3, 2021. With the filing of her Second Amended Complaint (SAC) on August 26, 2023, Plaintiff Jane Roe was added, a minor through her guardian John Roe. The operative Third Amended Complaint (the “Baker TAC”) was filed on March 1, 2023, pleading (1) negligence (against the District); (2) negligent hiring, retention & supervision (against the District); (3) common law invasion of privacy (against Riden); (4) Constitutional invasion of privacy (against the Riden); (5) violation of Section 1708.85 of the Civil Code (against Riden); and (6) IIED (against Riden).

Another class action against the District and Riden was filed by Plaintiff G.S. on December 14, 2021. A First Amended Complaint was filed on December 21, 2022, and a Second Amended Complaint (the “ML SAC”), was filed on March 8, 2023. In the ML SAC, Plaintiff G.S. was replaced by M.L. Following a demurrer to the ML SAC, a Third Amended Complaint was filed on July 31, 2023 (the “ML TAC”). The District was successful on demurrer against the ML TAC on January 2, 2024. ML filed a Fourth Amended Complaint (the “ML 4AC”) on February 1, 2024.

As currently stated, the ML 4AC now asserts (1) IIED; (2) negligence; (3) negligent supervision; (4) negligent hiring and retention; and (5) violation of Section 1708.85 of the Civil Code (against Riden). The Court again sustained a demurrer, this time without leave, as to the IIED cause of action. The two complaints were consolidated on February 14, 2023.

Summary of the Law

A trial court has great discretion in certifying class actions. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1606.) In a motion for class certification, plaintiffs must demonstrate through substantial evidence that the proposed class is ascertainable; that its members are numerous; that the plaintiffs’ claims are typical of claims held by other class members; that plaintiffs and counsel can provide adequate representation for the class; and that common questions of law or fact predominate over the individual issues. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022.) Certifying a class action requires a demonstrated substantial benefit to litigants and court. (Caro v. Proctor & Gamble Co. (1993) 18 Cal.App.4th 644, 657.) The burden of this demonstration rests with plaintiff. (Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62.)

Analysis

Here, Plaintiffs Baker, Roe, and ML now move to certify the following class: “All female students who attended Los Osos High School from August 1, 2016, to August 24, 2021, who were enrolled in female physical education classes and/or involved in female athletics programs.” Defendant District opposes.

As a preliminary matter, the District largely challenges the merits of Plaintiffs’ claims of negligence. However, the question of certification is essentially a procedural one that does not ask whether the action is legally or factually meritorious. (Sav-On Drugs Store, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) Rather, “the focus in a certification dispute is on what type of questions – common or individual – are likely to arise in the action, rather than on the merits of the case [citation], in determining whether there is substantial evidence to support a . . . certification order . . . .” (Id. at p. 327.)

Numerosity & Ascertainability: As to the relevant standards, the Court will start by indicating that it appears that Plaintiffs have established numerosity and ascertainability: As to numerosity, substantial evidence establishes 3,300 female students who were sent Belaire West notices. While the Court considers the District’s assertion that this is a total number of female students, even if ten percent of the 3,300 individuals accessed the locker room and pool storage area, the class would consist of 330, which is still numerous. As to ascertainability, the ability to identify female students at Los Osos given the proposed time period exists, as was demonstrated by the Belaire West notice. (Pl. Exh. N.) As to those within the female student body who entered the locker room, certainly students can self-determine if they were enrolled in a PE class or an athletic program.

Typicality: The named plaintiff must be a member of the class. (Petherbridge v. Altadena Federal Savings and Loan Assc. (1974) 37 Cal.App.3d 193, 200.) The test of typicality is “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.) However, the class representative’s interests need not be identical to those of class members, only similarly situated. (Classen v. Weller (1983) 145 Cal.App.3d 27, 46.)

Here, Plaintiffs Baker, Roe, and ML attest that they were students at Los Osos between August 2014 and May 2018, August 2019 and May 2021, and August 2016 and August 2021, respectively. (Baker & Roe Decls., ¶2 [Exhs. 1-2 to Lander’s Decl.]; ML Decl., ¶3 [Exh. A to Carlsen’s Decl.].) Baker attests that she was on the dance team and played volleyball during her time at Los Osos, and took PE. She would enter the bathroom in the locker room off the pool a minimum of once every school day. She would also be present in the locker room once per day for the two years she took PE, and once per day for the three years she was on the dance team. (Baker Decl., ¶¶2-3 [Exh. 1 to Linder’s Decl.].)

Doe, for her part, attests that she participated in track and field during her freshman and sophomore years. She had PE in her sophomore year. She regularly used the locker room and bathroom a number of times during the swim portion of the PE class. (Doe Decl., ¶3 [Exh. 2 to Linder’s Decl.].) ML attests that she was enrolled in PE classes. During her freshman year, she participated in track and field. During her sophomore, junior, and senior years, she was on the cheer team. She was assigned a locker in the locker room for PE in her freshman and sophomore years.

She would use the locker room to change every day for practice and games when on the cheer team. She would use the restroom when taking PE or cheering at water polo games. (ML Decl., ¶¶3-4 [Exh. A to Carlsen’s Decl.].)

These declarations are sufficient to establish that Plaintiffs were students at Los Osos within the class period (August 2016-August 2021). They further sufficiently establish that Plaintiffs used the girls’ locker room and restroom associated with being enrolled in PE or engaging in athletic programs. Thus, they share with the class claims in that they had the reasonable expectation of privacy associated with the bathroom and locker room violated by the placement of a camera by Riden. (See, e.g., CACI 1800.) Further, the camera’s placement in the sensitive location that was used by the Plaintiffs – whether the camera captured their images or not - could be viewed as outrageous conduct to support the cause for IIED. (See CACI 1600.)

However, Civil Code section 1708.85 imposes liability on one who distributes images of intimate body parts. Civil Code section 1708.85(a), expressly states the liability arises from the distribution of material that exposes another’s intimate body parts when know or should know that the other person had a reasonable expectation that the material would remain private. In other words, Riden can only be liable under this statute if he distributed his locker room images that exposed an intimate body part of the named Plaintiffs and the putative class members.

Plaintiffs admit that they are unaware of any pictures or videos obtained by Riden that capture their images. (Def’s Exh. 2-4 [Baker & Roe’s RFA Responses #1, 5, & 9; ML’s RFA Responses #2, 4-5, & 13].) Therefore, Plaintiffs are typical with the putative class relating to the negligence claims against Defendant District and the privacy invasion and IIED claims against Riden [TAC’s 1st-4th and 6th and 4AC’s 1st-4th], but they lack typicality by their own admissions to a Civil Code section 1708.85 claim [TAC’s 5th and 4AC’s 5th].

Adequacy: Adequacy consists of two factors: (1) adequacy of the proposed class representative, and (2) adequacy of the proposed class counsel. Here, while counsel appears to have established adequate experience and skill. However, again, Plaintiffs Baker, Doe, and ML fail to submit a declaration attesting to their understanding of their role as class representatives and their lack of conflict. Thus, adequacy is not established.

Common Questions: Plaintiffs allege the District is liable for negligent failure to protect Los Osos female students and the negligent hiring, retention, and supervision of Riden. Plaintiffs present expert reports where an expert stated that voyeurism involving nonconsenting individuals, particularly minors, is recognized in literature as a form of sexual victimization. Thus, they expect that being exposed to image-based sexual abuse will result in a psychological impact on all affected adolescents. The common impact includes emotional and psychological effects (shame, humiliation, anxiety, fear, sadness, anger, betrayal, etc.), traumarelated symptoms (intrusive thoughts, avoidance, sleep disturbances, etc.), development and social effects (disruption in body images and bodily autonomy, social withdrawal, etc.), and academic and school functioning. (Pls. Exh. O.)

The failure to provide sufficient protection leading to voyeurism is a foreseeable harm. The harm arises even if no images are recovered of any particular person or are unable to identify those in the images, because it comes from the intrusion into one’s privacy and sense of safety. (Pls. Exh. P.) Plaintiffs further indicate the damages sought under the negligence claims against the District are limited to costs for crisis counseling and health services. Chou opines that when the camera was discovered, the District should have provided immediate psychological first aid, ongoing crisis support through private counseling and implemented a student protection department.

She further opines on the comparative cost for each of these. (Pls. Exh. P.) Similarly, an economic expert evaluates the cost for comparative services under a willingness-to-pay methodology. (Pls. Exh. Q.) By limiting the recoverable damages to economic factors that can be quantified and seeking to show that generalized harm can result in exposing females to voyeurism, the elements of causation and damages can be established on a common basis. Therefore, commonality is demonstrated predominating on the claims against the District. *** *** ***