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

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: Where there are concerns is in the area of typicality. The named plaintiff must be a member of the class. (Petherbridge v. Altadena Fed. Savings and Loan Assoc. (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, in this case, no evidence is presented establishing that Plaintiffs Baker, Doe, and ML, are members of the proposed class. In particular, they submit no declaration or evidence establishing they were students at Los Osos during the relevant period and were enrolled in PE or an athletic program during the Class Period. Thus, typicality is not met.

Further, in relation to the Civil Code section 1708.85 causes of action [TAC’s 5th and 4AC’s 5th], it imposes liability on one who distributes images of intimate body parts. In seeking certification, Plaintiffs cite to Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 292, for the proposition that actual capture of images is irrelevant. However, the Hernandez Supreme Court was addressing statutory claims that involve either physical trespass or offensive conduct for the purpose of capturing a picture of someone engaged in personal activities, e.g., Civil Code section1708.8. (Ibid.) Under those statutes, the failure to capture or record the subject image is not a defense to liability. (Ibid.) However, Civil Code section 1708.85 imposes liability for distributing images.

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.

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