P.G. v. VALLEJO CITY UNIFIED SCHOOL DISTRICT

Affidavits, declarations, admissions, answers to interrogatories, depositions, and matters judicially noticed may all support a motion for summary judgment, provided they contain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegations in a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., § 437c, subd. (p).) Allegations in an opposing party’s pleadings may be considered evidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant does not meet its burden of showing a plaintiff cannot establish an element merely by pointing out the absence of evidence; the defendant must show that the plaintiff both does not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1286-1287.)

Negligence. The elements of a cause of action for negligence are (1) duty, (2) breach, (3) causation, and (4) damages. (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 24-25 (Hesperia).) The elements of a negligent hiring, supervision, and/or retention claim are (1) the defendant hired an employee, (2) the employee was unfit for the work for which he was hired or posed a particular risk to others, (3) the employer knew or should have known the employee was unfit or posed some other particular risk to others, (4) the employee’s unfitness or particular risk caused harm to the plaintiff, and (5) the employer’s negligence in hiring, supervising, and/or retaining the employee was a substantial factor in causing the plaintiff’s harm. (CACI 426; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

A school district has a special relationship with the students in its charge that imposes a duty on the district to protect the students from foreseeable harm, including sexual abuse from district employees. (Hesperia, supra, 85 Cal.App.4th at p. 25.) The school district is not vicariously liable for an employee’s acts of sexual assault, as sexual assault is never within the scope of employment, but can be liable in negligence for such things as negligent hiring, supervision, and/or retention. (Ibid.)

As with other claims of negligent hiring, supervision, and/or retention, actual knowledge of dangerous propensities is not required; it is enough that the school district had constructive knowledge, meaning its supervisory personnel should have known of dangerous propensities. (Id. at pp. 25-26.) Constructive knowledge may be shown by circumstantial evidence that is nothing more than inferences reasonably drawn from a series of proven facts. (Id. at p. 26.) The simple fact that sexual misconduct occurred is not enough to establish negligent hiring, supervision, and/or retention, though. (C.A. v.

William S. Hart Union High School District (2012) 53 Cal.4th 861, 878.)

VCUSD fails to carry its initial burden on summary judgment of negation against Plaintiff’s ability to prove breach of VCUSD’s duty to protect him from sexual abuse or prove that VCUSD had constructive knowledge of the risk Hom posed to minors. This is because VCUSD’s own undisputed material facts establish that its supervisory personnel knew that Hom was engaged in unusual activity placing himself alone with Plaintiff. VCUSD’s undisputed material facts establish that Vallejo Junior High Principal Wes Matthews was informed that Hom exempted Plaintiff alone from exams and habitually left class early to take Plaintiff to the movies. (D UMF #27-28.)

The evidence of special treatment of Plaintiff, particularly involving abandonment of teaching duties to obtain private time with Plaintiff, raises a triable issue as to whether a reasonable person would have known that Hom was engaged in untoward activity with a minor. VCUSD offers no support for its argument that it would have been any more normal for a teacher to abandon the rest of the class to obtain private time with one of them in the 1980s than it would be today. Further, Plaintiff is as the opposing party to summary judgment entitled to have reasonable inferences drawn in his favor. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 324 [summary judgment not to be granted on inferences contradicted by other inferences].)

Though VCUSD does not meet its initial burden on summary judgment and Plaintiff does not need to carry a shifted burden to raise additional triable issues of material fact, he presents further evidence that school guidance counselor Robert Mansfield was also told of Hom’s particular attention to and time away from class with Plaintiff and that Hom purchased expensive gifts for Plaintiff. Plaintiff also presents evidence that Matthews was informed in 1983 that in 1963, while working at another school, Hom showed erotic material to a student and invited the student to Hom’s residence for sexual interaction. The state of the evidence before the court demonstrates that summary judgment is not appropriate here.

Discretionary Immunity. Government Code section 820.2 provides that a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of discretion vested in him. Where a public employee is immune to liability, his employing public agency is also immune. (Gov. Code, § 815.2, subd. (b).)

VCUSD cites K.C. v. County of Merced (2025) 109 Cal.App.5th 606 (K.C.) to argue that the lack of investigation of Hom was a protected discretionary decision. In K.C. the plaintiff alleged that due to the actions of the defendant county she was placed in foster care and while there she suffered sexual abuse from her foster cousin. The county placed her in a second foster home after that and there she experienced more sexual abuse from her new foster brother. (Id. at p. 611.) Despite being informed of the abuse, county workers did nothing. (Ibid.)

The county demurred on the basis that Government Code section 820.2 provided discretionary immunity to its workers’ decision not to investigate and correct the abuse. (Id. at p. 612.) The Fifth District Court of Appeal agreed. (Id. at p. 620.) The court first established that discretionary immunity is limited to policy or planning decisions and does not reach lower-level decisions that merely implement a policy already formed; this is because the purpose of discretionary immunity is to prevent courts from intruding on the proper provinces of other branches of government. (Id. at p. 617.)

Nonetheless, discretionary immunity applied to the case before the court because the investigation of child abuse and possible discontinuation of foster home placement involved both the exercise of judgment as to what was just and proper under the circumstances and sensitive policy decisions better left in the domain of another government entity. (Ibid.) Though much

of the maintenance of a child in a foster home comprises continued supervision that could reasonably be characterized as ministerial, not discretionary, the decision to respond or not respond to reports of child abuse is as discretionary as the decision to place a child in a home in the first place. (Id. at p. 619.)

D.G. v. Orange County Social Services Agency (2025) 108 Cal.App.5th 465 (D.G.) is also relevant to analysis here. In D.G. the plaintiff alleged, as in K.C., that he suffered sexual abuse while in a foster home and reported the abuse to social workers yet saw no investigation or corrective action. (D.G. at p. 468.) Determining the question of discretionary immunity, the Fourth District Court of Appeal stated that the decision whether to place a child in a foster home, determinations of abuse, and the decision whether to remove a child are discretionary decisions to which immunity could apply. (Id. at p. 473.)

However, the D.G. court then said that this was only the first part of analysis; next it was incumbent on the court to determine whether the employee exercising discretion “actually reached a considered decision knowingly and deliberately encountering the risks that gave rise to plaintiffs [sic] complaint.” (Ibid.) To be entitled to immunity the state had to show that such a reasoned analysis actually occurred. (Ibid.) This is an apparent disagreement with K.C.: in K.C. the court agreed that discretionary immunity requires an actual exercise of discretion but further held that a formal, careful, and/or thorough evaluation is not mandated. (K.C., supra, 109 Cal.App.5th at p. 619.)

The California Supreme Court has accepted K.C. for review and in the meantime has stated that courts may exercise their discretion to choose a side of the split in authority K.C. represents. (K.C. v. County of Merced (June 25, 2025) 569 P.3d 1139.) The court finds D.G. the more persuasive. Discretionary immunity only applies where there has been an actual considered decision knowingly and deliberately encountering the risks that give rise to the plaintiff’s complaint. Discretionary immunity does not apply to Principal Matthew’s acts or omissions on the facts before the court. VCUSD presents no evidence that its supervisors actually conducted a reasoned analysis and chose not to investigate Hom’s conduct after weighing risks and benefits.

Conclusion. VCUSD’s motion for summary judgment is denied without prejudice. The court may reconsider summary judgment in the event the California Supreme Court completes review of K.C. and issues an opinion on matters relevant to analysis of summary judgment here.

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