Steinhardt vs. Capistrano Unified School District

SUSTAINED; however, leave to amend is GRANTED as requested, to permit Plaintiffs to state a claim for fraudulent misrepresentation.

The Case Management Conference is continued to October 08, 2026 at 09:00 am in Department C10. 3 Steinhardt vs. Defendant Capistrano Unified School District (CUSD)’s motion for Capistrano Unified summary judgment is GRANTED. School District Plaintiff’s Objections

The court OVERRULES objections nos. 1-3 (Decl. of Presby at ¶¶ 4-6 and Exhibits A and B), and nos. 6 and 7 (UMFs 2 and 13). The court DECLINES to rule on objection no. 4 pursuant to Code Civ. Proc. § 437, subd. q (“ the court need rule only on those objections to evidence that it deems material to its disposition of the motion”).

The court SUSTAINS objection no. 5 (UMF 9) on the basis of speculation and lacks personal knowledge, but only as to “no CUSD official was aware of any concerns about Lutz’s behavior.” The court overrules any objection to the evidence provided in support of this UMF.

Defendant’s Objections

The court OVERRULES objections nos. 1-24 (Decl. of Friedman), and DECLINES to rule on objections nos. 25-28 (Decl. of Steinhardt) pursuant to Code Civ. Proc. § 437, subd. q.

Defendant also objects, to, and moves to strike, Plaintiff’s entire additional separate statement of material fact (AUMF) on the basis that it contains 781 facts, many of which are immaterial. The court agrees that some of these facts are unnecessary. The court also finds that Plaintiff would sometimes refer to large groups of AUMFs in the arguments of her Opposition, which made it difficult to ascertain exactly which AUMFs she was relying on. (See Opp., at pg. 13 [referring to facts “Nos. 74-90”]; see also Opp. At pgs. 19 [referring to facts “Nos. 497-606”]).

Nevertheless, the court finds that striking Plaintiff’s AUMF is a harsh and unnecessary remedy, and OVERRULES Defendant’s objections to the AUMF. However, the court admonishes Plaintiff that the separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. (See Cal. R. Ct., rule 3.1350(d)).

Motions for Summary Judgment

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving 9

party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850- 51.) However, “[t]he defendant must indeed present evidence." (Aguilar, supra, 25 Cal.4th at 855, italics original.)

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar, supra, 25 Cal.4th at 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances . . ., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843, citations omitted.) Courts “‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 10

Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) “[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

Plaintiff’s Claims

“A summary judgment motion is directed to the issues framed by the pleadings”. (Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268). The court looks to the pleadings as “the outer measure of materiality” in a motion for summary judgment. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

Plaintiff asserts two causes of action against Defendant Capistrano Unified School District for negligence and negligent hiring, supervision and retention.

Plaintiff Avery Steinhardt alleges that she was a senior at Tesoro High School in Las Flores, California, during the 2022-2023 school year and was 18 years of age in December 2022. She was also a member of the Tesoro High School Girls’ Basketball Team during the 2022-2023 season. (Compl., ¶ 6). Brandon Lutz was a coach of the Tesoro High School Girls’ Basketball Team and an employee of the Capistrano Unified School District. (Compl., ¶ 8). From December 27-30, 2022, the Tesoro High School Girls’ Basketball Team was participating in a basketball tournament. (Compl., ¶ 11).

On the morning of December 28, 2022, Brandon picked up Avery from her house and drove with her alone to San Diego to complete the tournament, and put his hand on Avery’s thigh. (Compl., ¶ 14). During the evening hours of December 28, 2022, Brandon texted Avery and offered alcohol. (Compl., ¶ 16). Brandon texted Avery inappropriate comments multiple times on the evening of December 28, 2022. (Compl., ¶ 17). On December 29, 2022, Brandon asked Avery to come to his room to take a shot of Captain Morgan Rum, which she did. (Compl., ¶ 18).

Around 11:30 p.m. on December 29, 2022, Brandon invited the girls from the team back to his room for alcohol. (Compl., ¶ 20). On the morning of December 30, 2022, Brandon texted Avery to go get coffee in the hotel lobby. He offered to bring it up to her, but she said she would go downstairs. He texted her: “I wanted you to stay. I just don’t want the girls to jump all

over our case. I like hanging with you.” After getting coffee, Avery went back to Brandon’s room with him where they sat on two separate beds and watched a movie. Brandon moved over to Avery’s bed and tried to convince her to give him a massage. She told him to stop and that she felt uncomfortable and left. (Compl., ¶ 21).

Brandon drove Avery to the game and touched her thigh, moving his hand all the way up her thigh toward her genital area, touching her bare skin under her shorts. Avery pushed his hand away and told him she was uncomfortable. (Compl., ¶ 22). On December 30, 2022, Brandon texted Avery telling her he wanted to talk to her over text. (Compl., ¶ 23). Brandon sent her another text on December 30, 2022 wherein he expressed his feelings and affection for her. (Compl., ¶ 24). On December 31, 2022, Avery texted Brandon telling him: “I’m very uncomfortable with what you just texted me and upset that it puts us both in a really bad position.”

Avery then reported Brandon’s conduct to her mother, Shawn Steinhardt, who e-mailed him and demanded he leave Avery alone and resign from coaching the team. (Compl., ¶ 25). On December 31, 2022, Brandon responded to Avery’s message with another lengthy message attempting to backtrack on his previous message. (Compl., ¶ 26). On January 4, 2023, Shawn and Avery Steinhardt filed a police report against Brandon Lutz with the Orange County Sheriff’s Department. (Compl., ¶ 27).

Defendant and its employees have a duty to Avery Steinhardt to ensure she is kept safe at school and during school sponsored excursions. This duty includes, but was not limited to, the obligation to enact and enforce policies that would meaningfully prevent instances of physical and emotional harm against Avery Steinhardt. (Compl., ¶ 41). Defendant and its employees breached that duty by failing to enact or enforce policies that conform to the applicable standards of care, including by failing to enforce reasonable safety policies to protect its students, including Avery Steinhardt, from physical and emotional harm. (Compl., ¶ 42).

Defendant and its employees hired, retained, employed, contracted with, and otherwise caused an agency relationship with persons to be in contact with and have caretaking authority over Avery. The persons that Defendant and its employees hired, retained, employed, or otherwise caused to be their agents, were unfit to perform the duties for which they were engaged. (Compl., ¶ 45). Defendants and their employees knew or should have known that these agents posed a risk to Avery and other students. (Compl., ¶ 46).

Education Code § 35330

The District’s first argument is that Plaintiffs’ claims against the District are barred by field trip immunity under Education Code § 35330.

Educ. Code § 35330, subd. (d) provides: “All persons making the field trip or excursion shall be deemed to have waived all claims against the district, a charter school, or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion. All adults taking out-of-state field trips or excursions and all parents or guardians of pupils taking out-of-state field trips or excursions shall sign a statement waiving all claims.”

“ ‘Field trip’ is defined as a visit made by students and usually a teacher for purposes of first hand observation (as to a factory, farm, clinic, museum). ‘Excursion’ means a journey chiefly for recreation, a usual brief pleasure trip, departure from a direct or proper course, or deviation from a definite path.” (Doe v. Mount Pleasant Elementary School Dist. (2025) 113 Cal.App.5th 1208, 1219 [internal citations omitted]).

The District contends that the alleged claims which took place on December 27-30, 2022 in the basketball tournament took place in a “field trip or excursion” as provided by this statute. In Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, the court analyzed whether injuries sustained during a road trip for a basketball tournament fell under this provision, and held the following: “To the extent, if any, the road trip was a voluntary field trip or excursion related to LHS' girls' basketball program, the waiver provisions of Education Code section 35330, subdivision (d) must control.” (Id. at 240).

In Barnhart v. Cabrillo Cmty. Coll. (1999) 76 Cal.App.4th 818, 821, the court held that field trips as defined in the community college equivalent statute included “trips in connection with extra curricular sports programs.”

Finally, the District cites to Roe ex rel. Callahan v. Gustine Unified Sch. Dist. (E.D. Cal. 2009) 678 F.Supp.2d 1008, which was a case involving claims asserted by Plaintiff against Gustine Unified School District after Plaintiff was assaulted at a football camp by several upper class teammates and suffered additional acts of hazing. (Id. at 1011).

The court analyzed whether Educ. Code § 35330 applied to the trip at issue, and held: “Like traveling to an away game in Barnhart or traveling between tournament games in Myricks, the students here were off-campus, participating in a school-related athletic function.” (Id. at 1042). The court went on to state: “In this case, it is undisputed that the football camp was not a school-sponsored activity for which attendance was required and attendance credit given. Defendants provided substantial evidence that the trip was voluntary, the event was held off campus on the grounds of another school, that it related to athletic endeavors of the high school, and comported with legislative intent. Although the football camp's transportation was coordinated by the District, this fact ‘bear[s] no relation to whether the road trip was a

school sponsored activity’ and does not preclude the application of § 35330.” (Id. at 1043).

Plaintiff relies on Doe v. Mount Pleasant Elementary School Dist. (2025) 113 Cal.App.5th 1208, where the court held that the school district failed to show that its students’ attendance at outdoor science school amounted to a “field trip or excursion” subject to section 35330.

In Doe, Mount Pleasant Elementary School District contracted with the Santa Clara County Office of Education (SCCOE) for district students to spend four days during the school term in residence at Walden West Outdoor Science School. (Id. at 1213). Although district teachers “help[ed] the program run,” SCCOE provided direct overnight supervision of students, with district teachers on call if needed. Jane Doe sued the district, as well as SCCOE and an SCCOE employee, in connection with repeated sexual assaults she alleges the SCCOE employee committed against her when she attended Walden West as a fifth-grade student. (Id.).

The court held that “the hallmark of a field trip or excursion under section 35330 is that its observational or recreational purpose represents a departure from a school's curriculum and required school purposes.” (Id. at 1219).

As the court explained:

The district's evidence did not suggest any purely observational or recreational purpose. That students who opted out of attending Walden West were to remain at Ida Jew Academy for science education suggests the required school purpose that, as in Castro, would exempt an off-premises activity from section 35330’s deemed waiver of claims. This alone would have prevented the district from meeting its initial burden. [citation]

We also consider Doe's undisputed evidence. ... Ample evidence invites a reasonable inference that Walden West was a program in outdoor science education that was an expected feature of the district's science curriculum, and that it was operated by the SCCOE in conjunction with district teachers. Walden West provided ‘programs and classes in outdoor science education and conservation education,’ a statutory educational priority. (See § 8760, subd. (a)(1), (3).) Walden West was billed as a school, and students attended the outdoor school for four days in the academic year in lieu of science education in their usual district classrooms.

Under the district's contract with SCCOE, SCCOE provides most of the personnel necessary to run the camp—including cabin leaders and an overnight supervisor— while the district provides one credentialed teacher for every class of 36 students or less to ‘help[] the program run.’ Viewed 14

in the light most favorable to Doe, the record suggests that SCCOE and the district contracted to jointly operate the outdoor school's science education program, as contemplated by statute. (§§ 8760, 8765 [specifying that ‘all of the powers and duties authorized for ... school districts by Section 8760 are powers and duties of the county superintendent ... provid[ing] programs and classes in outdoor science education ....’].) A reasonable trier of fact could accordingly conclude that attendance at Walden West was neither a field trip nor an excursion, because it was neither a mere observational visit nor a recreational departure from the usual educational course.

(Id. at 1220-1221).

The District presents the following material facts in its separate statement: During Plaintiff’s senior season at Tesoro, she participated in a Christmas tournament in San Diego, CA from December 27 through 30, 2022. (Undisputed Material Fact [“UMF”] 1). Head Coach Jim Arneson submitted a CUSD Field Trip form for the tournament in San Diego in December 2022. (UMF 2). On the drive down to San Diego for the basketball tournament on December 28, 2022, Lutz touched Plaintiff’s thigh. (UMF 3). On December 30, 2022, in the car on the way from the hotel to the basketball tournament, Lutz touched Plaintiff’s thigh. (UMF 4).

While in San Diego for the basketball tournament, Lutz provided Plaintiff and her teammates alcohol in the hotel. (UMF 5). Prior to the 2022 Christmas Tournament, Lutz never touched Plaintiff, provided her alcohol, texted her anything sexual, nor sent her inappropriate photographs. (UMF 10). Plaintiff never reported Lutz, nor told anyone Lutz was texting her, prior to the 2022 tournament. (UMF 11). Players were expected to find their own transportation to the tournament as there was no school-provided transportation. (UMF 12).

There were three designated chaperones for the field trip: Jim Arneson, Brandon Lutz, and a parent of one of the players. (UMF 13). During the tournament, Arneson did not hear loud noises coming from the players and had no knowledge Lutz was personally texting Plaintiff, had alcohol in his room, or was giving alcohol to players. (UMF 14). No girls on the team ever expressed any concern to Arneson about behavior between Plaintiff and Lutz. (UMF 15). After becoming aware of Lutz’s actions, Principal Ezratty instructed to have Lutz not attend practice. (UMF 16).

On January 5, 2023, CUSD placed Lutz on unpaid administrative leave pending investigation, and he was prohibited from contacting District employees, parents, or students. (UMF 17). Lutz had a meeting with Presby and Ezratty to discuss his misconduct, but before a second meeting could be held, Lutz resigned. (UMF 18).

The District argues that because the 2022 Christmas Tournament was during the school’s winter break, player participation in the tournament was not required. The District cites the deposition transcript of witness Coach James Arneson, wherein he testified that participation in the 15

tournament was not required of the students on the team. (See Arneson Depo, Pg. 73:21-24, Hylton Decl. ¶ 13, Ex. K).

Finally, the District cites two statements made by Plaintiff in this court in support of its contention that the Christmas basketball tournament was a field trip or excursion: Compl. at ¶ 41, wherein Plaintiff alleges: “Defendant and its employees have a duty to Avery Steinhardt to ensure she is kept safe at school and during school sponsored excursions”; and Plaintiff’s Opposition to Motion for Leave to Amend Answer, at Pg. 11:24-27, wherein she states: “Plaintiff’s causes of action are openly and obviously derived from the events that took place during a school sponsored field trip at the end of 2022. There is no case to be made for the District having recently discovered this field trip. It is a material, essential, and central fact to the case.” (See ROA 129).

The court finds that the District has met its burden in establishing that the basketball tournament is a “field trip or excursion” pursuant to Educ. Code § 35330. Plaintiff did not create a triable material fact as to this issue. For example, Plaintiff did not demonstrate that the field trip was required for credits or otherwise part of her school curriculum.

However, Plaintiff contends that not all of the actions by Defendant Lutz occurred during the trip. In her Complaint, Plaintiff had also plead the allegations regarding the December 31, 2022 text messages-which occurred after the tournament. (See Compl., ¶¶ 25, 26).

She also provided evidence of these text messages in her AUMF:

Brandon Lutz (“BL”) texted Avery Steinhardt, (“AS”) on December 31, 2022: BL: “I feel like u are going to judge me. Maybe I shouldn’t send this.” AS: “??” (AUMF 257, 376, 489, 601, 7171). Brandon Lutz (“BL”) texted Avery Steinhardt, (“AS”) on December 31, 2022:

BL: But here is the part that is a little tough for me to get out, so hopefully this doesnt scare u off and u understand where I am coming from... If I am going to be completely transparent and honest, you are very attractive to me, and not just in a physical way. I’m not saying that u aren’t beautiful, because obv u are. I’m just saying that I am attracted to how u are w me and the connection of who u are w me. I know it’s playful and I know nothing could ever happen between us, but that doesn’t necessarily make it easier. This is probably making u uncomfortable hearing hits after having to deal w some perv manager at Five Guys, and that is not my intention. I don’t 16

want u to feel that way about me and I hope that u don’t. I’m just kinda stuck here in this mental space because I don’t know if we should just go back to keeping it about basketball, or if we should further develop this friendship.”

(AUMF 258, 377, 490, 602, 772).

Brandon Lutz (“BL”) texted Avery Steinhardt, (“AS”) on December 31, 2022. BL: “Bottom line... u are the kind of girl that I love being around, and the fact that u are unattainable for me, for many different reasons, makes it tougher. If you were not my player, a little older, or if I was a little younger, I would have already made a move and would have probably been turned down. It was honestly hard not to during this trip. Girls like you don’t’ come around very often.” (AUMF 259, 378, 491, 603, 773). Brandon Lutz (“BL”) texted Avery Steinhardt, (“AS”) on December 31, 2022. BL: “It was probably good that u didn’t come by last night after, cus after a few drinks, my mind was all wrapped up into the situation and I probably would have said sum then.” (AUMF 260, 379, 492, 604, 774).

In Plaintiff’s response to Defendant’s SSUMF, Plaintiff also provides evidence of other text messages that occurred prior to the Christmas Tournament.

The District failed to address the issue of whether these texts also fall under immunity in its moving papers. Instead, the District focuses on the events that transpired during the December 27-30, 2022 tournament.

The District argues for the first time in the Reply that these text messages, or any nonphysical conduct, cannot be the subject of Plaintiff’s claims, citing to Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 627 (“Thomas cites no authority imposing on a university a duty to protect students from harm of a nonphysical nature. She asks us to extend existing authority imposing a duty of care to protect against foreseeable physical harm to the harm resulting from hostile environment sexual harassment without in any way analyzing why this new duty should be imposed and what parameters should define its scope. In failing to develop her argument, Thomas fails to meet her burden on appeal.”).

However, as the moving party, the District had the burden to establish “a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.” (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661 [quotations omitted, emphasis in the original]; see also Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 627 [“general rule is that points raised 17

for the first time in reply brief will not be considered unless good cause is shown for failure to present them before”])

Accordingly, while the court finds that the District established that the Christmas Tournament falls under Educ. Code § 35330, the court also finds that that District failed to establish that all of the conduct (the text messages) in the Complaint falls under this Section.

No Actual or Constructive Notice

Next, the District alternatively seeks summary adjudication as to the following issue: Plaintiff’s first and second causes of action fail because the District had no actual or constructive notice of Defendant Lutz’s dangerous propensities prior to the 2022 Christmas Tournament.

“[A] school district is liable for the negligence of supervisory employees who ‘knew or should have known of [a school employee's] dangerous propensities, but nevertheless hired, retained and failed to properly supervise’ the employee.” (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 25; see also Rancho Cucamonga Central School Dist. v. Superior Court (2025) 116 Cal.App.5th 718, 721).

“Thus, the school district may be liable for hiring, supervising, or retaining an employee if the district's supervisory personnel had actual or constructive knowledge of the employee's dangerous propensities.” (Rancho Cucamonga Central School Dist., supra, 116 Cal.App.5th at 721 [emphasis added]). “Constructive knowledge is knowledge that ‘may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts. ” ’ ” (Id. [internal citations omitted, cleaned up]).

In Rancho Cucamonga Central School Dist., a former student brought action against the district, asserting claims arising from alleged sexual abuse by the director of a childcare program that was operated on campus of student's middle school. The fourth district court of appeal reversed the lower court’s denial of summary judgment, holding that:

[T]he lack of any evidence that any district employees had either actual or constructive knowledge of Johnson's dangerous propensities is fatal to Flowers's claim. The undisputed facts show no district employee, let alone a supervisor, witnessed any of the alleged sexual assaults or inappropriate behavior by Johnson, and Flowers did not report them to anyone during his time at the middle school. There also is no evidence any district employee observed anything that reasonably should have

triggered suspicion of abuse to justify an inference of constructive knowledge.

The facts of Roe provide a useful contrast. In Roe, this court found the complaint stated a claim against the defendant school district for negligent supervision of a school janitor who had sexually abused students. (Roe, supra, 85 Cal.App.5th at p. 31, 300 Cal.Rptr.3d 340.) The plaintiffs had not alleged the defendant district had actual knowledge of the abuse. (Id. at p. 28, 300 Cal.Rptr.3d 340.) But they had alleged that “two principals, one of whom was also a school district director, and an assistant principal witnessed plaintiffs sitting on [the janitor's] lap and [the janitor] escorting plaintiffs across campus to empty rooms,” in violation of school policy about being alone with students in rooms with closed doors and having physical contact with students. (Id. at p. 30, 300 Cal.Rptr.3d 340.)

We found these alleged facts sufficient to state a claim for negligent supervision of the janitor by demonstrating constructive knowledge of abuse by district supervisory personnel. (Id. at p. 31, 300 Cal.Rptr.3d 340.) Here, in contrast, there is no evidence any district employee saw Johnson do anything abusive or inappropriate, or giving rise to suspicion of abuse or inappropriate behavior. Thus, the district is entitled to summary adjudication on Flowers's cause of action for negligent supervision of Johnson.

(Id. at 722 [emphasis added]).

Notably, however, this court also found that the application of this standard applied to claims of negligent hiring, retention or supervision of its employees:

Flowers's arguments for a contrary conclusion muddle together the standard for a claim the district negligently supervised students with the standard for a claim based on negligently supervising an employee (or, in this case, a non- employee operating a program for district students on a district campus). With respect to a claim that the district negligently failed to supervise students, “plaintiffs must allege facts demonstrating that school personnel failed to exercise ‘ “ ‘ordinary prudence.’ ” ’ ” (Roe, supra, 85 Cal.App.5th at p. 29, 300 Cal.Rptr.3d 340, quoting C.A., supra, 53 Cal.4th at p. 869, 138 Cal.Rptr.3d 1, 270 P.3d 699.) “ ‘ “Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision.” ’ ” (Roe, at p. 29, 300 Cal.Rptr.3d 340, quoting C.A., at p. 869, 138 Cal.Rptr.3d 1, 270 P.3d 699.)

That standard applies only to Flowers's first cause of action, based on allegedly negligent supervision of students, which we 19

excluded from this proceeding in our order to show cause. It is not the standard applicable to the cause of action at issue.

(Id. at 722 [emphasis in original]).

Here, Plaintiff’s first cause of action is for negligence, and based on the following “Defendant and its employees have a duty to Avery Steinhardt to ensure she is kept safe at school and during school sponsored excursions. This duty includes, but was not limited to, the obligation to enact and enforce policies that would meaningfully prevent instances of physical and emotional harm against Avery Steinhardt.” (Compl., ¶ 41). Plaintiff’s second cause of action is for negligent hiring, retention and/or supervision.

The District presents the following in its SSUMF, in addition to SSUMF 1-5 above: As part of the background check during the process of hiring a coach, reference checks are performed and fingerprints are run through the Department of Justice and FBI. (UMF 6). Brandon Lutz passed both the DOJ and FBI screening as part of the onboarding process. (UMF 7). Lutz was hired October 7, 2021 and completed his mandatory trainings upon hiring including sexual misconduct: staff-to-student. (UMF 8). The District presents evidence that the Assistant Principal Ms.

Engelken, the Principal Mr. Ezratty, and the other basketball coach Mr. Arneson were not aware of any concerns about Defendant Lutz’s behavior. (Deposition of April Engelken, Hylton Decl. ¶ 18, Ex. P, Pg. 42:6-8; Deposition of Ken Ezratty, Hylton Decl. ¶ 11, Ex. I, Pg. 42:18-21; Deposition of Jim Arneson, Hylton Decl. ¶ 13, Ex. K, Pg. 118:15 – 119:13).

Prior to the 2022 Christmas Tournament, Lutz never touched Plaintiff, provided her alcohol, texted her anything sexual, nor sent her inappropriate photographs. (SSUMF 10). Plaintiff never reported Lutz, nor told anyone Lutz was texting her, prior to the 2022 tournament. (SSUMF 11). No girls on the team ever expressed any concern to Arneson about behavior between Plaintiff and Lutz. (SSUMF 15). After becoming aware of Lutz’s actions, Principal Ezratty instructed to have Lutz not attend practice. (SSUMF 16). On January 5, 2023, CUSD placed Lutz on unpaid administrative leave pending investigation, and he was prohibited from contacting District employees, parents, or students. (SSUMF 17). Lutz had a meeting with Presby and Ezratty to discuss his misconduct, but before a second meeting could be held, Lutz resigned. (SSUMF 18).

The court finds that the District established its burden of demonstrating that the second cause of action fails because the District had no actual or constructive notice of Lutz’s dangerous propensities prior to the 2022 Christmas Tournament. As the facts establish, neither the Assistant Principal, the Principal nor the other basketball coach had any knowledge of Lutz’s dangerous propensities. 20

There is no evidence that the other players on the team made complaints, and Plaintiff herself had never reported Lutz to the District prior to the Christmas Tournament. After the Christmas Tournament and the report of his conduct, the District immediately took action and Defendant Lutz resigned.

Accordingly, the burden shifts to Plaintiff to create a triable issue of material fact. Plaintiff argues that “Defendant’s no-notice argument also misapprehends Plaintiff’s claims. Prior actual or constructive knowledge of a particular employee’s propensity for sexual misconduct is an element of negligent hiring and retention—it is not an element of negligent supervision, of the District’s mandatory duties under Government Code section 815.6, or of the special-relationship duty to supervise students.” (Opp., 14:12-26). However, as with the plaintiff in Rancho Cucamonga Central School Dist., Plaintiff’s arguments here muddle together the standard for a claim the district negligently supervised students with the standard for a claim based on negligently supervising an employee.

Next, Plaintiff contends that the District was on notice that Lutz was in violation of multiple school policies-specifically, his failure to complete training and his paperwork for the field trip was incomplete, including his driver form. In support of this contention, Plaintiff cites to the following AUMFs: Records show that Lutz only completed trainings in 2021 and was regularly emailed regarding failure to sign the policies and procedures handbook, and to complete mandatory training, including student safety and mandated child abuse reporter training in the autumn of 2022. (AUMF 266). Defendant Lutz’s Employee/Volunteer Personal Automobile Use Permission was not produced, if it exists. (AUMF 196).

In support of AUMF 266, Plaintiff includes copies of four automated reminders dated 12/4/22, 12/11/22, 12/25/22, and 12/30/22 which reminds Defendant Lutz that he still needs to complete the “CUSD Policy Acceptance for the 2022-2023 school year”, and attaches an exhibit an imagine showing that the following training courses were past due: “Coronavirus 101 - What You Need to Know (Full Course)”, “IPM [Integrated Pest Management] for Teachers and Office Staff (Full Course)”, and “Mandated Reporter: Child Abuse and Neglect (California Full). (Friedman Decl., ¶ 3, Ex. 1).

However, Lutz’s failure to timely complete three courses on Coronavirus 101 - What You Need to Know (Full Course)”, “IPM [Integrated Pest Management] for Teachers and Office Staff (Full Course)”, and “Mandated Reporter: Child Abuse and Neglect” does not create a triable issue of material fact as to whether the District had constructive knowledge of Lutz’s dangerous propensities, particularly

where Lutz had completed trainings for sexual misconduct and staff-tostudent training. (SSUMF 8).

Compare, for example, the appellate court’s finding in Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, where the appellate court found constructive knowledge where: “Plaintiffs allege that when they were six years old they routinely were missing from their first grade classrooms, sometimes up to 30 minutes at a time. Plaintiffs’ teachers were aware of the absences and did not investigate why plaintiffs were missing so frequently. In addition, numerous District employees, including two school principals (one of whom is also a school district director), an assistant principal, and plaintiffs’ teachers, saw Martinez accompany plaintiffs individually or in groups across campus during breaks to empty classrooms or restrooms.

The same employees are alleged to have seen plaintiffs sitting on Martinez's lap. Plaintiffs further allege that as a janitor Martinez's role did not require him to have any one-on-one contact with any students.” (Id. at 29).

In her response to the District’s SSUMF, Plaintiff also contends that she previously disclosed CUSD employee witnesses and that Defendant did not elicit testimony from those witnesses. (See PL’s Response to DF’s SSUMF 9).

Plaintiff attaches a copy of her response to special interrogatory no. 11 which asks “Identify all persons with knowledge of facts pertaining to any of the events surrounding this lawsuit, including all witnesses to liability and damages/injuries.” Plaintiff responded, in part: Donna Horn, Gloria Diaz, Kerri McDaid, Rich Montgomery and Denice Scarola, all employees of CUSD, who have knowledge of the following: “The SoCal Holiday Classic”; “The hotel arrangements”; “The chaperones”; “The investigation into Brandon Lutz”; and “[t]he resignation/termination of Brandon Lutz.”

She also lists Ernie Bucher, a CUSD employe/the athletic director, who “has, at least, knowledge of the police investigation conducted by the Orange County’s Sheriff’s Department which spoke to Mr. Bucher on the phone”, and Melissa Moore, the CUSD who has knowledge of CUSD’s policies, procedures and training, and of CSUD’s enforcement mechanisms and knowledge of Lutz’s failure to complete the training required of him. (See Friedman Decl., ¶ 3, Ex. 2).

However, none of these witnesses were listed to have any knowledge of any facts that would give rise to constructive knowledge of Brandon Lutz’s dangerous propensities prior to the actions that took place during the Christmas Tournament. Finally, Plaintiff’s challenges to the District’s SSUMF nos. 11 and 15, wherein Plaintiff contends that the deposition testimony is more narrow than the facts as set forth in the SSUMF, also do not create a triable issue of fact, as they still do not demonstrate any evidence of any actual or constructive knowledge of Lutz’s dangerous propensities. 22

Accordingly, the court finds that Plaintiff failed to create a triable issue of material fact as to the second cause of action.

Gov. Code §§ 818.2 and 820.2

In the District’s alternative motion for summary adjudication, the District contends that the first cause of action is barred by Government Code §§ 818.2, 820.2.

Gov. Code § 818.2 provides: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”

Gov. Code § 820.2 provides: “Except as otherwise provided by statute, 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 the discretion vested in him, whether or not such discretion be abused.”

The District describes this statute discretionary immunity for quasilegislative policy-making decisions, and cites to Barner v. Leeds (2000) 24. Cal.4th 676, which provides: “Under that statute, ‘[i]mmunity is reserved for those “basic policy decisions [which have] ... been [expressly] committed to coordinate branches of government,” and as to which judicial interference would thus be “unseemly.” [Citation.] Such “areas of quasi-legislative policy-making ... are sufficiently sensitive” [citation] to call for judicial abstention from interference that 'might even in the first instance affect the coordinate body's decision-making process' [citation].” ’ ” (Id. at 685).

As stated above, Plaintiff alleges in her first cause of action for negligence that the District failed to “enact” or “enforce” reasonable safety policies to protect its students. (Compl, ¶ 42). These immunity statutes, however, only pertain to adopting or failing to adopt an enactment, or basic policy decisions. It is true that Plaintiff alleges that the District should have adopted certain policies regarding communications between students and staff, traveling in vehicles with a second adult, and other travel/chaperone policies. (Compl., ¶¶ 37-40).

However, Plaintiff separately alleges that the District failed to enforce its own policies.

Plaintiff contends that the District failed to follow its own rules/policies/procedures regarding Title IX reporting and allowing Defendant Lutz to drive the vehicle without completing the registration form, while generally referring to AUMFs 74-90.

The District had the burden to establish there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661).

The District has not provided any authority in support of its argument that the District’s alleged failure to enforce its own policies and procedures falls under the immunity afforded by these two statutes.

Causation

However, the District separately contends that any act or failure to act by the District did not cause Plaintiff’s injuries. “To establish their negligence claim, plaintiffs must prove duty, breach, causation, and damages.” (C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974, 983).

“Causation may be decided as a question of law if under the undisputed facts, ‘there is no room for a reasonable difference of opinion.’” (Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 568 [citing Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687]).

“Only ‘where reasonable [people] will not dispute the absence of causality, [may] the court ... take the decision from the jury and treat the question as one of law.’” (Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1065 [internal citations omitted]).

In Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, the court held that “[i]t is well settled that ‘a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.’” (Id. at 1369 [internal citation omitted]). The court also held that “[t]o establish a right of recovery, a student must prove the traditional elements of actionable negligence, including causation. ... In fact, the Government Code expressly requires proximate causation for recovery against a public entity. (Gov.Code, § 815.2, subd. (a).).” (Id. at 1371).

The District contends that Defendant Lutz deliberately evaded scrutiny by acting behind closed doors and away from supervisory personnel, and that there is zero admissible evidence proving a substantial link or nexus that any of CUSD’s actions were the cause of Plaintiff’s injury.

The District presents the following SSUMFs in support of this assertion: As part of the background check during the process of hiring a coach, reference checks are performed and fingerprints are run through the Department of Justice and FBI. (SSUMF 6). Brandon Lutz passed both the DOJ and FBI screening as part of the onboarding process. (SSUMF 7). Lutz was hired October 7, 2021 and completed his mandatory 24

trainings upon hiring including sexual misconduct: staff-to-student. (SSUMF 8). Prior to December 2022, no CUSD official was aware of any concerns about Lutz’s behavior. (SSUMF 9). Plaintiff never reported Lutz prior to the 2022 tournament. (SSUMF 11). During the tournament, Arneson did not hear loud noises coming from the players and had no knowledge Lutz was personally texting Plaintiff, had alcohol in his room, or was giving alcohol to players. (SSUMF 14). No girls on the team ever expressed any concern to Arneson about behavior between Plaintiff and Lutz. (SSUMF 15). The court finds that the District met its burden with regards to the issue of causation.

In her Opposition, Plaintiff contends that had the District enforced its policies prohibiting private transportation, unsupervised access to students, alcohol use, and violations of curfew and check-in requirements, the opportunities Lutz exploited to isolate Plaintiff, furnish her alcohol, and escalate his misconduct would have been significantly curtailed. (Plaintiff generally cites to AUMF nos. 497-606 in support of this assertion).

There are various problems with this argument, however. First, every one of these purported failures is related to the misconduct that occurred during the Christmas Tournament. As the District established, it cannot be liable for conduct that occurred during the Christmas Tournament. This leaves the remaining allegations-the text messages between Lutz and Plaintiff-and Plaintiff failed to establish that any purported failure to enforce policy caused Lutz to privately text message Plaintiff. The District presented evidence that these messages were private, and there is no evidence that anyone other than Lutz or Plaintiff knew about them prior to Plaintiff reporting Lutz in January of 2023, which promptly resulted in the District taking action against Lutz.

But even if the court were to consider the conduct that occurred during the Christmas Tournament, Plaintiff still failed to create a triable issue demonstrating that any of the purported policy failures or lack of supervision caused the injury. First, Plaintiff contends that the District failed to make a report to the Title IX officer after the report. However, Plaintiff’s evidence only establishes that Principal Ezratty did not remember if he made a Title IX report. (See AUMF 81). In any event, a failure to enforce a Title IX reporting policy after the incident already occurred cannot be said to have caused the incident to occur in the first place.

Next, Plaintiff argues that the District failed to follow its own selftransport policy because Lutz was permitted to drive Plaintiff even though he did not complete the requisite paperwork to drive. However, Plaintiff does not provide evidence showing that the District permitted Lutz to drive Plaintiff. Plaintiff even contends that only Coach Arneson and a parent chaperone completed the forms for Employee/Volunteer Personal Automobile Use Permission. (AUMF 115, 25

116). None of the forms submitted by Coach Arneson for the field trip that were produced by either the District or Plaintiff show that Defendant Lutz intended to transport students. The Field Study-Teacher Request Form only stated that Lutz would supervise, not drive. (Friedman Decl., ¶ 19, Ex. 28).

It is also unclear if Plaintiff is contending that the District did not enforce “Section 5: Athletics and Co-Curricular Transportation Guidelines”, which Plaintiff referenced in her AUMF. “Section 5: Athletics and Co-Curricular Transportation Guidelines” states that student-arranged self transport may occur if various conditions are met, which includes the following: “No district employee may assist with arranging student self-transportation, assigning carpools, etc. under any circumstances. Students and parents must arrange self-transportation on their own.” (AUMF 88).

But based on Plaintiff’s evidence, the District was, at most, only aware that Coach Arneson and a parent completed a driver form. There is no evidence that the District -or any supervisory employee - had knowledge that Defendant Lutz would either be driving or taking part in any way of arranging carpool.

Plaintiff also presents evidence that it failed to enforce policies relating to ensuring that its employees complete trainings. But as discussed above, the delinquency of three trainings Coronavirus 101, IPM (Integrated Pest Management), and Mandated Reporter cannot be said to have caused Lutz’s actions, particularly where Defendant Lutz had completed trainings for sexual misconduct and staff-to-student training. (SSUMF 8).

Plaintiff’s contention that Defendant failed to enforce its own drug and alcohol policy and that “CUSD’s employees did not follow multiple policies that were already in place” is, as the District notes, one akin to strict liability. Plaintiff provided no evidence creating a triable issue as to whether the District failed to enforce its own policies, other than evidence of Lutz’s failure to timely complete the three trainings for Coronavirus 101, IPM (Integrated Pest Management), and Mandated Reporter.

After Lutz’s misconduct and policy violations were reported, the District immediately began investigating and took action against Lutz, no further misconduct took place, and Lutz resigned.

Accordingly, the court GRANTS summary judgment.

Defendant CUSD shall give notice. 4 Johnson vs. General Defendant General Motors’s unopposed motion to compel compliance Motors LLC with C.C.P. § 871.26 and request for sanctions is GRANTED.

Defendant moves for an order for compliance requiring Plaintiff Joel Johnson to appear for his initial depositions under Code of Civil Procedure section 871.26, subdivision (c)(1), and for the imposition of sanctions against Plaintiff’s counsel in the amount of $1,500 as required under Code of Civil Procedure section 871.26, subdivision (j)(2).

Deposition

Code of Civil Procedure section 871.26 applies to a civil action brought against a manufacturer seeking restitution or replacement of a motor vehicle pursuant to subdivision (b) or (d) of Section 1793.2, Section 1793.22, or Section 1794 of the Civil Code, or for civil penalties pursuant to subdivision (c) of Section 1794 of the Civil Code, where the request for restitution or replacement is based on noncompliance with the applicable express warranty. (Code Civ. Proc. §§ 871.20(a), 871.26(a).) Section 871.26 applies to a civil action filed on or after January 1, 2025. (Code Civ. Proc. § 871.26(l).)

Section 871.29(a)(1) provides the procedure for a manufacturer to elect to be governed by the chapter, which includes the manufacturer’s electing “by October 31 of the preceding calendar year, except as provided in Section 871.30.” Section 871.29(b) further clarifies: “Unless a manufacturer has made the election described in subdivision (a) that covers a given year, Sections 871.20 to 871.28, inclusive, shall not apply to an action described in subdivision (a) of Section 871.20 with respect to all of the manufacturer’s motor vehicles sold during that year, except as provided in Section 871.30.”

Section 871.30, in turn, provides that: “Within 30 days of the effective date of the act adding this section [which was April 2, 2025], a manufacturer may elect to be governed by this chapter for all actions described in subdivision (a) of Section 871.20 with respect to all of its motor vehicles sold in the year 2025 and in all prior years by providing written notice of that election to the Arbitration Certification Program within the Department of Consumer Affairs.” In other words, the Legislature explicitly provided a procedure by which manufacturers such as Defendant could elect to apply the statutory procedures retroactively to all cases filed after January 1, 2025.

The Court takes judicial notice on its own volition that Defendant elected to be governed under the optional statutory framework of Sections 871.20 et seq. on 4/23/25, which was within the 30-day window provided by section 871.30. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752.) (See Cal. Dep’t of Consumer Affs., Manufacturer Opt-in, https://www.dca.ca.gov/acp/accepted_manufacturers.shtml).)

Plaintiffs commenced the instant action on 3/07/25, and is one for restitution or replacement of a motor vehicle brought against Defendant, 27