N.F. v. Gruber, et al.

“An ‘immunity’ is ‘[a]ny exemption from a duty [or] liability ....’ [Citation.] It ‘ “avoids liability in tort under all circumstances, within the limits of the immunity itself; it is conferred, not because of the particular facts, but because of the status or position of the favored defendant; and it does not deny the tort, but [rather] the resulting liability....” [Citation.]’ [Citation.] When the law grants an immunity, it does not mean that the defendant's conduct is not tortious, but rather that the defendant is absolved from liability.” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 378.)

Defendant FUSD’s Motion for Summary Judgment

Defendant FUSD argues it is entitled to immunity from plaintiff’s claims of vicarious liability and breach of mandatory duty under Education Code section 44808. As alleged in the operative complaint, the school district’s liability is premised on its failure to supervise and protect plaintiff from harm on campus (SAC, ¶¶ 23-24) and due to its failure to supervise its employee Gruber such that the harassment occurred (SAC, ¶¶ 24, 33).

Education Code section 44808 states,

Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.

In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board. (Ed. Code, § 44808, emphasis added.) “Section 44808 ‘ “thus limits the liability of schools for after hours, off-campus activity, absent a specific undertaking.”’ The provision ‘ “ ‘grants a district [and its employees] immunity [for a student’s injuries] unless [the] student was (or should have been) directly supervised during a specified undertaking.’”’” (Taylor v.

Los Angeles Unified School District (2025) 112 Cal.App.5th 769, 774, internal citations omitted.) FUSD asserts it is undisputed that the harassment alleged in the complaint consisted to two phone calls by defendant Gruber to plaintiff’s mother on May 13, 2023 at approximately 9:30 p.m. while plaintiff and his mother were at their residence. (UMF Nos. 3, 4. 8, 9.) As the alleged harassing phone calls were made after school hours, while plaintiff was off campus and not during a school-sponsored activity, defendant FUSD argues Education Code section 44808 immunity applies.

The court finds defendant FUSD has met its burden in demonstrating it is entitled to summary judgment on the basis that it is immune from liability from the after-hours, offcampus negligent acts alleged. In opposition plaintiff does not dispute the material facts supporting FUSD’s motion and instead asserts the negligent acts of its employee were done under the color of her authority as a teacher. Plaintiff cites as additional material facts that the phone calls were made based on information learned at school and using the phone number defendant Gruber obtained from school records. (AMF Nos. 1, 2, 7, 8, 12.)

Defendant Gruber also introduced herself as a teacher and was calling to follow up on her concerns regarding her student. (AMF Nos. 10, 11, 13.) Plaintiff argues the use of Gruber’s position as a teacher creates a triable issue of act as to whether there was a specific undertaking by defendant Gruber and exception to immunity. Plaintiff describes defendant Gruber’s conduct as a school-related undertaking in her investigation of the complaints against plaintiff occurring on campus that later resulted in injury off campus. (Hoyem v.

Manhattan Beach City School District (1978) 22 Cal.3d 508; Perna v. Conejo Valley Unified School District (1983) 143 Cal.App.3d 292.) The authorities relied upon by plaintiff are distinguishable. In Hoyem v. Manhattan Beach City School District, a summer school student left campus before the end of the schedule day and was struck by a motorcycle. (Hoyem, supra, 22 Cal.3d at p. 512.) The school district argues there was no duty to supervise students to prevent off-campus accidents unless the school had specially undertaken to provide off-campus supervision. (Id., at p. 514.)

The court held the school had a duty to exercise reasonable care in supervising its pupils while on school premises and a cause of action for negligence based on the school’s failure to supervise the student while on campus was stated. (Id., at p. 519.) The facts of Hoyem are not analogous with those of the case at bench. The negligent off-campus incident occurred during the school day while the student was under the supervision of the school. Here, it is undisputed that the phone calls occurred while plaintiff was at his residence and well after the end of the school day.

Unlike the student in Hoyem who should have been in class when the offcampus incident occurred, there is no reason to believe plaintiff should have been under the supervision of the school when the phone calls occurred. In Perna v. Conejo Valley Unified School District, two students stayed after school at the direction of a teacher past the time when the crossing guard was no longer on duty and were struck by a vehicle when crossing in the crosswalk. (Perna, supra, 143 Cal.App.3d at p. 294.) The court found that the complaint stated a cause of action based on the negligent conduct of keeping the children after school occurring while still on school premises. (Id., at p. 296.)

Here, in contrast with both Hoyem and Perna, the negligence alleged is the after school, off-campus phone calls regarding plaintiff, not defendant Gruber’s questioning of the alleged victim on campus at the end of the school day. The additional facts raised by plaintiff do not support finding there is a question of fact as to whether there was on campus negligence. The additional facts regarding defendant Gruber’s using information she learned on campus also do not support finding there is a question of act as to whether there was a specific undertaking to supervise or care for plaintiff at the time of the alleged negligent incidents.

Plaintiff alleges FUSD was negligent in failing to supervise and protect plaintiff from harm on campus and negligent in hiring and supervising defendant Gruber. (SAC, ¶¶ 24, 36.) These allegations are similar to those of Taylor v. Los Angeles Unified School District, where plaintiff argued that the district was liable for the off-campus death of their child who was being babysat by a teacher negligently hired and supervised by the district. (Taylor, supra, 112 Cal.App.5th at p. 772.) As in Taylor, the negligent act here occurred off-campus, outside of school hours, and unrelated to any school-sponsored event or activity.

The court held the Education Code section 44808 immunity precluded the school district’s liability and rejected the argument to extend the exception to immunity to incidents that could be traced back to negligent hiring and supervision. (Id., at p. 776.) “This interpretation would run afoul of section 44808’s express purpose of limiting school district liability for harm that occurs to students when they are not on school property or engaged in school-sponsored or school-supervised activities. (Ibid.)

The court finds the immunity under Education Code section 44808 applies to defendant FUSD. Accordingly, defendant FUSD’s motion for summary judgment of the second amended complaint is granted.

Defendant Lea Gruber’s Motion for Summary Judgment

Defendant Gruber argues there is no dispute that the negligent acts alleged, two phone calls to plaintiff’s home, occurred while plaintiff was at his home and after school hours and are alleged by plaintiff to have been made while in the course and scope of Gruber’s employment with FUSD. (UMF Nos. 1-6.) As such, defendant Gruber asserts she is entitled to immunity under Education Code section 44808 as an employee of the school district. Education Code section 44808 states,

Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.

In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board. (Ed. Code, § 44808, emphasis added.) “Section 44808 ‘ “thus limits the liability of schools for after hours, off-campus activity, absent a specific undertaking.”’ The provision ‘ “ ‘grants a district [and its employees] immunity [for a student’s injuries] unless [the] student was (or should have been) directly supervised during a specified undertaking.’”’” (Taylor v.

Los Angeles Unified School District, supra, 112 Cal.App.5th 769, 774, internal citations omitted.) 15

Defendant cites to Casterson v. Superior Court (2002) 101 Cal.App.4th 177 in support of her argument that a finding of immunity for FUSD requires finding her immune as well. In Casterson, a student nearly drowned in a hotel pool while on a school field trip. (Id., at pp. 180-181.) The court rejected plaintiff’s argument that chaperone Casterson was personally liable for her alleged negligent supervision of the student because she was in the course and scope of her employment with the school district, which is afforded immunity under Education Code section 35330. (Id., at p. 190.)

The court’s interpretation of immunity under section 35330 was guided in part to avoid the contradiction of the statute’s express immunity the school district for personal injury claims arising from field trips with the possibility of the district’s vicarious liability under Government Code section 815.2 for the chaperone’s negligence in the course and scope of employment during a field trip. (Ibid.) In the case at bench, a similarly contradictory situation would result in in light of the court having found FUSD is entitled to immunity under section 44808.

Defendant Gruber’s negligence in placing the phone calls is either outside the course and scope of her employment, which is not pleaded, or Gruber’s actions are within the course and scope of her employment as pleaded and she is immune from liability under Education Code section 44808. With respect to whether defendant Gruber was acting in the course and scope of her employment the “fact” supported is limited to plaintiff having alleged that Gruber was acting in the course and scope of her employment at the time she placed the phone calls and reference to the operative complaint as evidence.

The court finds this is sufficient to meet defendant’s burden in moving for summary judgment. In opposition, plaintiff does not dispute that defendant Gruber is alleged to have been acting in the course and scope of her employment in placing the phone calls. As additional material facts plaintiff sets forth that part of defendant Gruber’s role as a teacher was to follow up on student welfare which is why she called plaintiff’s mother and that when she called she introduced herself as a teacher. (AMF Nos. 10, 13.)

These additional material facts bolster the allegation that defendant Gruber was within the course and scope of her employment when placing the phone calls to plaintiff’s home and do not support finding there is a dispute as to whether Gruber was acting in the course and scope of her employment. As a result, there is no dispute that defendant Gruber is entitled to immunity under Education Code section 44808. The court finds plaintiff has not met his burden to demonstrate there is a dispute as to whether Education Code section 44808 immunity applies to his claims.

Accordingly, defendant Gruber’s motion for summary judgment is granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/03/26. (Judge’s initials) (Date)

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