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

As to the MSJ (ML 4AC): The Court would, likewise, DENY this MSJ. And, again, likewise, it would GRANT MSA as to the mandatory duty under Education Code section 35183 and the California Constitution, article 1, section 28(f)(1).

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 (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 (ML SAC) was filed on March 8, 2023. In the ML SAC, Plaintiff G.S. was replaced by M. Following a demurrer to the ML SAC, a Third Amended Complaint was filed on July 31, 2023 (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 Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).)

The analysis requires three steps: First, the court must identify of the issues framed within the pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064- 3 1065.) Second, it must determine whether the moving party has established facts sufficient to negate the claim and justify a judgment in movant’s favor. (Ibid.) Third, and finally, when a summary judgment motion, as a prima facie matter, justifies a judgment, the court must determine whether the opposition demonstrates the existence of a triable issue of material fact. (Ibid.)

A motion for summary judgment granted where moving party has not met its burden of showing that the action is without merit “would have to be reversed, even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 [emphasis in original].) The court’s sole function on a motion for summary judgment is issue finding, not issue determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)

Analysis

Here the District separately filed MSJ/ MSA motions as to the Baker TAC and the ML 4AC. The District’s MSJs attack both operative pleadings the same way (that no duty is owed, causation is lacking, and no damages can be established). Although the District alternatively moved for MSA, the sole issue identified for adjudication is whether it owed Plaintiffs and the class a duty.

Here, negligence causes of action are based on (1) duty to protect the students; (2) duty to supervise/monitor Riden; and (3) duty to use reasonable care in hiring or retaining Riden (Baker TAC, ¶¶67, 75, 76, 80-81, 83, 85-86, & 90; ML 4AC, ¶¶49-50, 55, & 63.)

For a claim of negligence, the plaintiff must prove (1) legal duty; (2) breach of the legal duty; (3) causation; and (4) damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.)

An employer may be liable for negligent hiring, retention, or supervision if he knows or should know an employee is unfit, and because of that unfitness, the employee creates a risk with that risk materializing. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.)

To establish liability for negligent hiring, retention, or supervision, the plaintiff needs to prove that (1) the employee was unfit or incompetent to perform the work for which he was hired; (2) the employer knew or should have known that the employee was unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (3) the employee’s unfitness or incompetence harmed the plaintiff; and (4) the employer’s negligence in hiring, retaining, or supervising employee was a substantial factor in causing the plaintiff’s harm. (CACI 426.)

Factual Background: Saliently, here, in response to Requests for Admissions (RFAs), Plaintiffs admitted that they have no images depicting themselves or any class member on any of the concealed cameras in the women’s locker room at the high school. (See Baker Sep. Statement, UF 8-12; ML Sep. Statement, UF 8-15 [both undisputed].)

Further, between July 2017 and July 2022, Morton was the Assistant Principal at the high school. (Baker UF 30; ML UF, 30 [both undisputed].) On August 23, 2021, Morton reported to the School Resource Officers (SRO) that a few days prior a coach found a device within the girls’ 4 restroom on the pool deck area. The black device resembled an iPhone charging block. Deputy Cadegan inspected the device and found a camera lens on the back side and an opening with a memory card. (Baker UF 31-33; ML UF 31-33 [both undisputed].)

During her tenure, Morton would be the one to receive all information regarding such recording devices. Prior to this discovery, there had been no complaints about Riden using any recording device, hidden or otherwise, in an inappropriate manner to capture images of female students. The first indication of Riden using a hidden recording device was when the subject camera was located a few days prior to August 23, 2021. (Baker UF 34-35; ML UF 34-35.)

Plaintiffs dispute these facts on the assertion that the hidden camera was located before August of 2021. They assert that the device was discovered multiple times but never examined, investigated, or reported, even though there was a policy that stated phone chargers (which it appeared as) were prohibited in the girls’ locker room.

The charger-looking device was first discovered in the 2018-19 school year inside the pool storage room. After it was removed from the wall, it was left nearby. The next discovery was in the 2019-20 school year, when it was found in Ms. Sanchez’s office. The extension cord was unplugged from the wall and placed on a stepladder. The device was located by Riden on a side desk in Ms. Sanchez’s office, and Riden placed it back in the locker room about two weeks later.

The device was necessarily discovered a third time, as Riden found it unplugged and placed on a high shelf. The extension cord was wrapped up and placed again on a stepladder. However, Riden would use the device again. A fourth discovery occurred when the device was found along the wall of the locker room, and someone placed it in the Physical Education (PE) office. The fifth discovery was when the device was in the restroom. It was discovered to be a camera when the person who found it showed it to a coach who recognized it for the camera that it was. (ML Addt’l Facts (ML AF) 47-53, & 60.)

Plaintiffs further dispute to point out that on three-to-four occasions Sanchez caught Riden walking into her office, which was inside the girls’ locker room. She reported those incidents twice to her supervisor. Other than the supervisor indicating that was not okay, no formal investigation was done and no incident-report was made. (ML AF 56-58.)

Plaintiffs add that Riden was given a key card and keys that gave him access to the girl’s locker room attendant’s office and girl’s bathroom, which were spaces that his duties did not require him to access. (Baker Addt’l Facts (Baker AF) 3; M AF 54-55.) Sanchez also heard and received complaints that female students were uncomfortable or felt weird around Riden. (Baker AF 4; M AF 59.)

The District’s Duty: The District argues that it owed no duty because it had no evidence that Riden posed the risk of harm as alleged in this case. The District asserts there is no evidence that it should have known of any risks. Furthermore, since Riden’s placement of hidden cameras in the locker room was unforeseeable, it owed no duty to prevent him from installing the cameras or take greater security measures.

Although a District may not be vicariously liable for the acts of an abuser, it can be liable for its administrators or supervisory personnel negligently hiring, retaining, or supervising. (C.A. v. William S. Hart Union School Dist. (2012) 53 Cal.4th 861, 865-66, 868-871; Roe v. Hesperia Unified School Dist. (2022) 85 Cal.App.5th 13, 25.)

Liability flows if the administrator or supervisor knew or should have known of the abuser’s danger to students. (Roe v. Hesperia, supra, 85 Cal.App.5th at p. 26.) School administrators and supervisors may be liable for negligent supervision if they fail to take reasonable measures to identify and respond to signs of potential abuse of students. (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 133.) Even if they lack actual knowledge of misconduct, the administrators and supervisors need to notice, identify, and respond to warning signs. (Id. at p. 135.) Now, whether the measures taken to prevent abuse and supervise personnel are reasonable is a matter for the jury. (Id. at p. 137.)

For no duty to exist related to Riden’s hiring, retention, or supervision, the District needs to establish a lack of knowledge of any propensity by Riden or any warning signs. Furthermore, for there to be no duty to protect the female students, the District needs to establish that the use of hidden cameras was unforeseeable. However, the only facts and evidence presented are that the assistant principal had received no prior reports of hidden cameras or that Riden attempted to capture images of the female students. This, alone, is insufficient to establish that the District had no duty.

It is insufficient to say that the District lacked any reasonable basis to foresee that cameras may be hidden in a girl’s locker room that would impose a reasonable duty to engage in some protective measures against it. Instead, the facts and evidence show the suspicious2 “charger” was found in sensitive areas at the school at four-to-five times, without investigation or inquiries. (Baker UF 32 [undisputed]; ML UF 32 [undisputed but citing to policy prohibiting such chargers in locker rooms].)

Here, there are facts indicating that Riden had been discovered entering sensitive areas, such as the girls’ locker room, where he had no legitimate business. (Sanchez Depo., 26:5-24; 36:18- 37:11; Baker AF 3; ML AF 54-58.) In this context, there were also informal concerns about Riden’s demeanor, albeit vaguely worded. (E.g., Sanchez Depo., 51:25-53:7; 54:3-15 [student complaints that Riden was “weird” and made them “uncomfortable”].)

Further, while it is undisputed that the at-issue device was designed to look like phone charger, there is no evidence or assertion that it was of such a realistic-looking design that it could not be identified as a camera with reasonable inquiry. (Baker UF 32; ML UF 32 [device described as having a camera lens and memory slot].) Finally, the device was located on four-to-five occasions, with District personnel having access to it on at least a couple of those occasions. (See, e.g., Riden Depo., 47:16-49:2 [Riden found his camera in Sanchez’s office].) Thus, there is at least a triable issue as to whether the District “should have known” of Riden’s danger to students.

2 Neither party disputes that, while designed to resemble a charging block, the device had a camera lens on the back side and a memory card slot. (Baker UF 32; ML UF 32 [both undisputed].)

Mandatory Duty: Next, the District argues that it held no mandatory duty to provide protection per Education Code section 35183 and the California Constitution, article I, section 28. Relevant to the analysis of Education Code section 35183, the California Constitution at article I, section 28(f)(1) provides that all students and staff of public schools have the inalienable right to attend safe, secure, and peaceful campuses. However, this provision does not mandate an affirmative duty to guarantee the safety of schools; rather, it establishes “parameters of the principle enunciated . . . .” (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1236-1238.)

Education Code section 35183(a)(1), states, as a legislative finding, that the Constitution affords students the right to a safe and secure school. Because of that finding, the legislation provides a school district may adopt a reasonable dress code. (Educ. Code, § 35183(b).) Based on the statutory language, Education Code section 35183 does not impose a mandatory duty on a school district to have a hazard-free school.

Causation: Causation is determined under the substantial factor test, meaning when a reasonable person would consider the defendant’s conduct or omission to have contributed to the plaintiff’s harm. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1092; CACI 430.) Although a defendant’s conduct need not be the only cause of the harm, it must be more than a remote or trivial factor or harm that would have occurred without the defendant’s conduct. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240.)

Here, the District argues that causation must be lacking because Plaintiffs cannot demonstrate that they are visible on any recordings or were subject to any recordings whatsoever. (Baker UF 13 [disputed]; ML UF 14.) However, Plaintiffs clearly set forth circumstantial evidence that Riden had been placing a camera for years and that the camera’s motion sensor recorded upon party entry into the area. (See, e.g., Baker UF 13 [opposing response citing Riden Depo., 8:20- 9:17; 13:13-22; 15:10-16:11].)

Furthermore, Defendant District offers nothing to support its contention that any breach in failing in its duty in hiring, retaining, or supervising Riden or providing protective measures must have no causal connection to Plaintiffs and the class’s alleged harm (e.g., being placed in an environment where a bad actor views and recorded them in various states of undress).

Damages: “[D]amages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable.” (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1048.) The damages must follow the complained-about act to a legal certainty. (Ibid.)

Here, similar to the causation argument, Defendant District argues Plaintiffs suffered no damages because the Plaintiffs admit that they have no evidence that they are visible on any recordings or were, in fact, subject to any recordings. However, that alone is not going to support lack of damages. To make a poor analogy, if a party was allowed to swim in a tank with a dangerous shark, the absence of a bite mark would not be proof that damages were lacking.

Certainly, the damages would be different where there was direct interaction with the shark. However, even without direct interaction, emotional distress would be a consideration. Here, there is evidence to create an issue as to whether the locker room, in which the class had a reasonable expectation of privacy and where they were in various states of undress, had been under secret surveillance and recording by Riden. Similarly, distress – as pleaded – appears at issue.

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