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John C. Taylor, State Bar No. 78389

Natalie Weatherford, State Bar No. 278522
TAYLOR & RING, LLP
10900 Wilshire Boulevard, Suite 920
Los Angeles, California 90024
Telephone: (310) 209-4100
Facsimile: (310) 208-5052
Attorneys for Plaintiff

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, EAST DISTRICT (POMONA)

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A.M., a minor by and through her Guardian Ad

Litem, M.M.
Plaintiff,
vs.

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POMONA UNIFIED SCHOOL DISTRICT, a
public entity; KRYSTANA WALKS-HARPER, )
an individual; and DOES 1 through 60, Inclusive, ))
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Defendants.
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CASE NO. BC543558

[Complaint Filed: 04/23/2014; Assigned to the
Hon. David Cunningham]
PLAINTIFFS TRIAL BRIEF
Trial Date:
Dept:

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Plaintiff A.M. submits her trial brief.

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PLAINTIFFS TRIAL BRIEF

April 12, 2016

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PARTIES

ATTORNEYS

Plaintiff:

Antonia M.

John C. Taylor
Natalie Weatherford
TAYLOR & RING

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Defendants:
Pomona Unified School District

Dana McCune
Jessica Gillette
MCCUNE & HARBER

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1.

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SUMMARY OF FACTS

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This is an action for negligence against Defendants Pomona Unified School District ("PUSD").
(The perpetrator, Defendant Steven Andrews, is incarcerated related to his sexual abuse of Plaintiff.
Plaintiff sued Andrews and he was dismissed from the lawsuit prior to trial. )

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Plaintiff A.M. is currently 19 years old. In 2010/2011, Plaintiff was sexually abused and
sexually exploited by her 8th grade teacher, Defendant Steven Andrews. Plaintiff was just 14 years old

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at the time of the abuse. Defendant Andrews was in his 40s.

The "grooming" of Plaintiff by Andrews started at the beginning of the 2009/2010 school year
and eventually resulted in Andrews engaging in sexual acts with Plaintiff both on the Lorbeer campus

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in his classroom, in the school gym, and off campus at hotels and other locations.
In September 2011, Andrews was arrested and criminally charged related to his abuse of

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Plaintiff. He was found guilty by a jury and is currently serving a 15 year prison sentence. He will be
required to register as a sex offender for the rest of his life.

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Plaintiff claims that PUSD and its employees were negligent in their supervision of Plaintiff,
and their employees, including Andrews, and that said negligence was a substantial factor resulting in
Plaintiff being sexually abused.

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Plaintiff has suffered serious emotional distress as a result of the sexual abuse. She has
struggled with suicidal ideations and has been diagnosed with chronic, severe Post Traumatic Stress

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Disorder.

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PLAINTIFFS TRIAL BRIEF

2.

TIMELINE OF EVENTS

2001-2009

Complaints Re: Andrews Being Too Playful With Students

Defendant Steven Andrews was a 7th grade history teacher and ASB advisor at Lorbeer Middle

School (Lorbeer) in Pomona, California. Lorbeer Middle School is an intermediate school within the

Pomona Unified School District (PUSD).

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Beginning in 2001, teachers at Lorbeer began to comment that Andrews was too playful with
his students. The concerns of the teachers were heightened after witnessing Andrews playing video

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games with students in his classroom after school hours and play fighting with lightsabers in the

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school hallway.

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Maria Hernandez-Gonzales, a science teacher at Lorbeer middle school, stated that teachers

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took notice of Andrews playful behavior and it was generally known that Andrews was a popular

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teacher because of his playfulness.

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Complaints Re: Andrews Spending Too Much Time with Female ASB Students and

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Comments that He should be Careful Because His Credential is on the Line

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Starting in 2001, teachers (including Ms. Hernandez-Gonzales) took notice that there were a

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lot of female students in Andrews ASB class and that he spent a lot of alone time with these

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female students.

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In or around 2001, Ms. Hernandez-Gonzales overheard a teacher comment that he [Mr.

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Andrews] should be careful because his teaching credential is on the line. Ms. Hernandez-Gonzales

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understood that to mean that Andrews was spending an inappropriate amount of time with female

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students. She also witnessed concerned looks on the faces of several teachers which she understood to

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be expressions of concern and judgment related to Andrews interactions with female students.

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Complaints Re: Andrews Using Passes to Remove ASB Students from Class

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Beginning as early as 2001, Ms. Hernandez-Gonzales and other teachers complained to the

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Lorbeer administration that Andrews was removing students from their class too frequently. Andrews

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PLAINTIFFS TRIAL BRIEF

would send passes to request that certain students be excused from class to come help him with ASB

tasks.

The entire staff at Lorbeer was bothered by Andrews removing students from their classes and

complained to the administration. The complaints were acknowledged by the administration, and

discussed at the Friday late start teacher meetings. The administration promised to handle the pass

complaints and speak to ASB (and Andrews) about it.

2009/2010 School Year

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At the outset of the 2009/2010 school year, Andrews was assigned as Plaintiffs history teacher
for her 7th grade school year. Plaintiff was just 12 years old and Andrews was in his 39.
Andrews and Plaintiff immediately connected on some level as teacher-student in the first

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month of school (September 2009). Andrews quickly elevated the relationship to one where he paid

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special attention to Plaintiff, gave her compliments about her looks, intellect and leadership skills and

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bought her lunch.

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In spring 2010, Andrews initiated adult type conversations with Plaintiff via personal email.

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At the conclusion of the 2009/2010 school year, Andrews suggested that Plaintiff to join his

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ASB class so that they could continue spending time together in the 2010/2011 school year.

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2010/2011 School Year

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In 2010/2011, Plaintiff began her 8th grade year at Lorbeer. Andrews was assigned as
Plaintiffs director in the ASB program.

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Beginning immediately in Fall 2010, Andrews escalated his grooming of Plaintiff by giving

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her special treatment and attention, drawing her pictures, giving her gifts, and spending time alone

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with her before school, at lunch and after school.

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At this same time, teachers Maria Hernandez-Gonzales and Darryl Hutchinson, a history

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teacher at Lorbeer, overheard ASB students comment that Plaintiff received special treatment from

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Andrews and that Plaintiff was not required to do as much ASB work as the other students. Neither

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teacher reported these comments to school administration.

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Fall 2010 Semester:

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Ms. Hernandez-Gonzales continued to complain that Andrews was sending passes to remove

Plaintiff from her class. During a Friday teachers meeting, Walks-Harper stated that she would speak

to Andrews about removing students from classes. Walks-Harper told teachers she would make sure

that students were not being taken out of class.

Despite the complaints, Andrews continued to send passes for Plaintiff. Ms. Hernandez-

Gonzales eventually refused to allow Plaintiff to leave when Andrews sent a pass for her. However,

Plaintiffs other teachers still accepted Andrews passes and released Plaintiff from their classes.

Hernandez-Gonzales and Plaintiffs teachers did not report to school administration that

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Andrews was continuing to write passes for Plaintiff.

In fact, Andrews sent passes to remove Plaintiff from class for the purpose of spending time

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alone in his classroom and other locations on the school campus. During these periods of alone time,

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Andrews initiated adult type conversations with Plaintiff and began to physically touch and hug her.

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Andrews wrote Plaintiff approximately 35 to 45 passes during the 2010/2011 school year.

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Spring 2011 Semester

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Beginning in the spring 2011 semester, Plaintiff and Andrews were alone together on campus

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almost every day.

At this point, Andrews was all consuming Plaintiffs life. Plaintiff believed that she was in love
with Andrews and Andrews told Plaintiff that he would leave his wife to be with her.
Andrews began to kiss, grope, digitally penetrate and engage in skin to skin genital contact

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with Plaintiff in his classroom and school gymnasium. Andrews would lock his classroom or

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gymnasium door during these periods of sexual contact.

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Andrews also placed paper over the windows of his classroom door so that anyone passing by
his classroom could see inside.

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January 2011- May 2011

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Beginning at the outset of the spring 2011 semester, Darryl Hutchinson witnessed Andrews

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alone in the classroom behind a locked door with Plaintiff. Hutchinson told Andrews to be careful

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and knock it off with Plaintiff.

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Hutchinson witnessed Andrews purchase lunch for Plaintiff several times per week.

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At a C.A.S.L. student leadership conference, Hutchinson, Andrews and other teachers were

eating lunch while the students were inside a seminar. Hutchinson witnessed Plaintiff leave the

seminar to find Andrews. Hutchinson described this as odd. Hutchinson realized that Plaintiff was

able to locate Andrews outside the seminar because they were text messaging each other. (See Exhibit

1- Email from Hutchinson to Walks Harper dated June 8, 2011).

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Hutchinson did not report these incidents and no investigation was done into Andrews
inappropriate relationship with Plaintiff.

May/June 2011

Mary Campbell, Plaintiffs 8th grade math teacher, witnessed Andrews and Plaintiff alone

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behind his closed, locked classroom door. The next day, Campbell asked Plaintiff if everything was

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okay? and was there anything you need to tell me? Plaintiff responded that everything was fine.

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Campbell did nothing further to investigate what she saw and did not report the incident to the

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school administration.

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May 26, 2011

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As the sexual contact in the classroom escalated, Andrews made a plan to take Plaintiffs

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virginity. On Thursday, May 26, 2011, Andrews took a personal day and requested that a substitute

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teacher cover his classroom. That morning, Andrews picked Plaintiff up from Lorbeer and drove her to

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his home. Andrews had sexual intercourse with Plaintiff for the first time. Andrews did not use

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protection and ejaculated inside Plaintiff. Plaintiff has just turned 14 years old one month prior.

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That same morning, Principal Walks-Harper was looking for Plaintiff to discuss an issue with

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her. Walks-Harper discovered that Plaintiff was not in class and called Plaintiffs mother to ask if

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Plaintiff had gone to school that day. After calling Plaintiffs mother, the very next call Walks-Harper

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made was to Andrews- who she knew was off campus taking a personal day.

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Walks-Harper asked Andrews if he knew where Plaintiff was and Andrews said he would try

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to locate her. A few minutes later, Andrews called Walks-Harper back and said that he had located

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Plaintiff and would bring her back to school. Walks-Harper stood outside Lorbeer and witnessed

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Andrews walking up the sidewalk with Plaintiff and a school security officer.

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Plaintiff told Walks-Harper she had been upset and went for a run outside of school. She was
given a detention and sent back to class.
Walks-Harper then spoke alone to Andrews in her office. She asked him is it worth it? and
you have your career and wife so make the right decisions.
That same day, Hutchinson learned about the off campus incident involving Plaintiff and
witnessed Andrews meeting alone with Walks-Harper in her office.
Walks-Harper reported the incident (including Andrews involvement in the incident) to the

PUSD assistant superintendent Stephanie Baker. Walks-Harper stated that after her conversation with

Ms. Baker, she did not think she should pay any special attention to the relationship or activities of

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Plaintiff and Andrews. (See Exhibit 2- 8th Grade Student 2011 Memo).
Nothing further was done to supervise Andrews or Plaintiff and no investigation was
conducted.

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May 29, 2011

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Walks-Harper had a discussion with Andrews wherein she told him he should not text message

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or call students on their personal cell phones. She stated that she became aware that Andrews was

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communicating with students via cell phone during the May 26, 2011 incident involving Plaintiff.

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Walks-Harper described Andrews communicating with a student via cell phone as unusual.

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Late May/Early June 2011

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Hutchinson witnessed Andrews and Plaintiff alone behind a locked, closed classroom door

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during lunch. Hutchinson reported what he saw to Walks-Harper.

Around that same time, students reported to Hutchinson that they attempted to go into

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Andrews classroom after school and could not get in because Andrews and Plaintiff were in there

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with the door locked. Hutchinson reported this to Walks-Harper. (See Exhibit 2- 8th Grade Student

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2011 Memo).

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Walks-Harper verbally counseled Andrews to not be alone with students.

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Hutchinson overhead students saying that Andrews had an unlimited text messaging plan

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because of Plaintiff. (See Exhibit 1- Email from Hutchinson to Walks Harper dated June 8, 2011).

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Hutchinson learned that Andrews was attempting to transfer to Diamond Ranch High School

for the 2011/2012 school year. Hutchinson immediately reported this to Walks-Harper. Walks-

Harper and Hutchinson felt apprehensive about this news because we both knew that Plaintiff

would be going there the following year. (See Exhibit 3- September 28, 2011 Statement of Darryl

Hutchinson).

Walks-Harper does nothing in response to these reports.

June 8, 2011

Hutchinson was becoming increasingly concerned about the Andrews/Plaintiff situation. He

wrote an email to Walks-Harper detailing his concerns. In the email, Hutchinson wrote:

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It has been hard for me to pin you down for the last week and I have been really struggling

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with how to phrase my concerns about all this. Beyond what was discussed already, it should

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be noted that students have made mention that Steve (Andrews) has unlimited texting now

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because of Antonia We both know that he has her number and even at the CASL conference

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she contacted him and left the seminar she was in to find him while we were eating lunch It

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also seems coincidental that former students of ours recently told me that he was going to

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transfer to Diamond Ranch High School if there was something going on and he wanted to

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be near her, this too, would not be good. As a friend, I am very concerned, have made my

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concerns known to him in the past I look back on all of these circumstances in addition to

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the concerns mentioned in our meeting and put together it doesnt paint a very good picture.

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(See Exhibit 1- Email from Hutchinson to Walks Harper dated June 8, 2011).

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Walks-Harper does nothing in response to this email.

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June 10, 2011

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Hutchinson witnessed Andrews and Plaintiff alone behind a locked, closed door in the school

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gymnasium.
Hutchinson confronted Andrews and asked whether Walks-Harper had spoken to him about

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not being alone with Plaintiff. Hutchinson then left the gym and waiting outside to make sure to

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Plaintiff and Andrews separated. After waiting several minutes, Hutchinson realized that they were not

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leaving so he walked into Walks-Harpers office and reported what he saw. He told her to walk over to

the gym and see it for herself.

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Walks-Harper went to the gym and told Plaintiff to go wait in the administration lobby until
the other students arrived for the dance. (See Exhibit 2- 8th Grade Student 2011 Memo).

Andrews was not reprimanded for being alone behind a locked door with Plaintiff. No

investigation was done into the relationship between Andrews and Plaintiff. No report of the incident

was made.

June 13, 2011

Three days later, Walks-Harper witnessed Andrews and Plaintiff hanging out and talking at the

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ASB booth during a softball tournament. (See Exhibit 2 - 8th Grade Student 2011 Memo).

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June 20, 2011

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Plaintiff attended a Lorbeer 8th grade student event at Disneyland. Andrews was not a

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chaperone at this event, however, he drove to Disneyland, picked Plaintiff up from the Disneyland

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parking lot and drove her across the street to a motel where they engaged in sexual intercourse for the

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second time.

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June 22, 2011

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Hutchinson and Walks-Harper have another meeting where they discuss the issues with

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Andrews. At this meeting Hutchinson stated Andrews said he is having marital problems.

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Afterward, Walks-Harper has another conversation with assistant superintendent Stephanie Baker

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where she again brought up the May 26, 2011 off campus incident involving Andrew and Plaintiff.

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(See Exhibit 2 - 8th Grade Student 2011 Memo).

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Nothing is done to investigate the relationship between Andrews and Plaintiff.

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June 23, 2011

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On the last day of the school year, Walks-Harper conducted her end of year exit interview of

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Andrews. Andrews told Walks-Harper that he was interested in going to Diamond Ranch High School

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the following year. He also spontaneously stated that he would never do anything to harm a child.

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Walks-Harper asking him why he said that, and he stated that he just wanted her to know. Walks-

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Harper thought that the comment seemed odd and out of context. (See Exhibit 2 - 8th Grade

Student 2011 memo).

June 24, 2011

The following day, Walks-Harper claims that she called DCFS (Department of Child and

Family Services) because she was concerned there could be a relationship between Andrews and

Plaintiff and she wanted DCFS to make a report. Walks-Harper shared the incidents that had

occurred between Andrews and Plaintiff up to that date with the DCFS employee.

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Ms. Walks-Harper claims that the DCFS employee who handled the call, Olivia Wheeler, told
her that there was no concern at this time, that reports could not be based on hearsay and

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suggested that Walks-Harper just have a conversation with Andrews. Walks-Harper claims she was

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not given her a reference number for her call. (See Exhibit 2 - 8th Grade Student 2011 Memo).

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After the conversation, Walks-Harper did not fill out a SCAR report which is a mandatory

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requirement for all school personnel who report suspected abuse pursuant to their mandated reporting

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duties.

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*It should be noted that DCFS employee Olivia Wheeler was deposed in this case. Ms.

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Wheeler testified that she did not receive this call from Walks-Harper and DCFS did not have any

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record of this call. Ms. Wheeler stated that DCFS does not act as an advice hotline and does not

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provide counseling or input to callers. Rather, DCFS simply takes down information, creates an intake

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report, assigns a reference number and the matter is investigated from there.

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Walks-Harper did nothing further despite now having a reasonable suspicion of suspected child
abuse sufficient to trigger her mandated reporting duties under California law.
Walks-Harper did not inform law enforcement, did not inform the district, did not create a
report, did not open an investigation and did not contact Plaintiff or Plaintiffs her parents.

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The 2010/2011 school year concluded and Walks-Harper dropped the issue altogether.

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July 26, 2011- August 2011

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The sexual abuse of Plaintiff escalated after the school year concluded. On July 26, 2011,

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Andrews met with Plaintiff at a park and they engaged in intercourse in his car. On August 5, 2011,

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Andrews picked Plaintiff up from her friends house and took her to a Best Western Motel where they

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engaged in intercourse. On August 17, 2011, Andrews picked Plaintiff up from volleyball practice,

drove her to an elementary school parking lot and engaged in sexual intercourse in his car. And

September 10, 2011, Andrews came over to Plaintiffs home while her father was gone and engaged in

sexual intercourse in Plaintiffs bedroom.

September 23, 2011

Andrews wife, Erin Andrews, told Hutchinson that she found compromising text messages

between Andrews and a woman whose name was saved in his cell phone under the initials ANT.

Hutchinson and Erin Andrews make the connection that ANT is code for Plaintiff. (See Exhibit 3-

September 28, 2011 Statement of Darryl Hutchinson).

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September 27, 2011

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Four days later, Hutchinson sends an email to Walks-Harper telling her about his conversation

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with Erin Andrews and stating that we put the pieces together about Andrews sexual relationship

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with Plaintiff. Hutchinson asks for Walks-Harpers advice on whether anything can or should be done

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with the information. (See Exhibit 4- September 27, 2011 Email from Hutchinson to Walks-Harper).

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Walks-Harper does not respond to this email.

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September 28, 2011

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Darryl Hutchinsons wife, Deborah Hutchinson, a principal at Chino Hills High School,

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attended a meeting where she was seated next to Mary Jean Higgins, a school resource officer with the

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San Bernardino Sheriffs Department. Throughout the meeting, Mrs. Hutchinson informed Deputy

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Higgins about the series of the events between Andrews and Plaintiff.

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Deputy Higgins was extremely concerned about what she heard and told Mrs. Hutchinson that

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she needed to report it to law enforcement immediately. Deputy Higgins left the meeting, contacted

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the Los Angeles Sheriffs Department and an investigation began that day.
Andrews was subsequently arrested and the entire story came out in the media. Plaintiffs

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classmates figured out that she was the girl and she was ridiculed by many classmates.

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Andrews was charged with several felonies related to his sexual abuse of Plaintiff. He was

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found guilty by jury trial and sentenced to 15 year in prison. His conviction was upheld on appeal.

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3.

A SCHOOL DISTRICT IS LIABLE FOR THE NEGLIGENCE OF ITS

EMPLOYEES COMMITTED IN THE COURSE AND SCOPE OF THEIR EMPLOYMENT

California's Tort Claims Act ("the Act") established the following basic rules:

-- Public employees are liable for their negligence unless they are made immune from

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liability by statute (Govt. Code 820(a));

-- Public entities are vicariously liable for the negligence of their employees (Govt. Code
815.2(a));
-- If a statute makes a public employee immune from liability, then the public entity is also
immune from liability (Govt. Code 815.2(b));
-- Unless a public employee is negligent within the course and scope of his employment

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(and thus the public entity is vicariously liable), a public entity is immune from liability unless it

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breached a specific statute aimed at preventing the harm that occurred (Govt. Code 815(a)).

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See, Caldwell v. Montoya (1995) 10 Cal.4th 972, 980

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Under the Act, a public employee is liable for any injury caused by his act or omission "to

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the same extent as a private person," except as provided by statute. Govt. Code 820(a). (The

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exception refers to the array of immunities set forth in the Act.) In other words, a public

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employee has liability for common-law torts, including the tort of negligence.

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There are four avenues to liability against a public entity within the Act. One of those

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avenues is through Government Code 815.2(a), which allows a public entity to be held

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vicariously liable for injury caused by an act or omission of its employee within the scope of his

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employment, absent some statutory immunity applicable to the employee's conduct. (The other

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three avenues involve: liability for independent contractor's acts (Section 815.4); liability for breach

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of mandatory duty imposed by enactment (Section 815.6); and dangerous condition liability

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(Section 835). A public entity can also be held liable for violating a statute that is outside of the

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Act but which applies to the entity.

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To put it another way: A public entity is not directly liable for its breach of a common law
duty of care. However, it is vicariously liable (i.e., indirectly liable) for its employees' breaches of a

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common law duty of care. While this may seem like a distinction without a difference, there are in

fact circumstances when a public entity, but not a particular public employee, breaches a common

law duty of care. If so, the public entity cannot be held directly liable unless it violated a particular

statute aimed at preventing the type of harm that resulted. See, Rodriguez v. Inglewood Unified

School District (1986) 186 Cal.App.3d 707.

Plaintiff in the instant action asserts a vicarious liability (respondeat superior) theory of

recovery against the Pomona Unified School District under Section 815.2(a) based upon the

negligence of the district's employees within the course and scope of their employment.

Plaintiff has substantial evidence establishing that PUSD employees Krystana Walks-

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Harper, Darryl Hutchinson and several other school employees owed a duty of care to Plaintiff,

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breached that duty, and that breach was a legal cause of Plaintiff's injuries.

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Establishing the requisite duty of care owed by school district employee to a student

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requires an assessment of the relationship between the public entity employee and the injured

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person. See, e.g. Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749.

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PUSD OWED PLAINTIFF A HEIGHTENED DUTY OF CARE BECAUSE OF

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THE "SPECIAL RELATIONSHIP" THAT EXISTS BETWEEN A

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SCHOOL DISTRICT AND ITS STUDENTS

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A school district has a "special relationship" with its minor students: A special relationship is

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formed between a school district and its students resulting in the imposition of an affirmative duty on

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the school district to take all reasonable steps to protect its students. (M.W. v. Panama Buena Vista

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School District (2003) 110 Cal.App.4th 508, 517; see also C.A. v. William S. Hart Union High Sch.

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Dist. (2012) 53 Cal.4th 861, 869-70.)

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The California Supreme Court reaffirmed the principle that [w]hile school districts and their

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employees have never been considered insurers of the physical safety of students, California law has

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long imposed on school authorities a duty to supervise at all times the conduct of the children

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on the school grounds and to enforce those rules and regulations necessary to their protection.

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[Citations.] [Citations.] The standard of care imposed upon school personnel in carrying out this duty

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to supervise is identical to that required in the performance of their other duties. This uniform

standard to which they are held is that degree of care which a person of ordinary prudence, charged

with [comparable] duties, would exercise under the same circumstances. [Citations.] 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. (See C.A. v. William S.

Hart Union High Sch. Dist. (2012) 53 Cal.4th 861, 869, citing Dailey v. Los Angeles Unified Sch.

Dist. (1970) 2 Cal.3d 741, 747.)

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The question of what constitutes ordinary care depends upon the circumstances of each
particular case and is to be determined as a fact. (J.H., supra, 183 Cal.App.4th at p. 140.)

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The Supreme Court in C.A. explained: a school district and its employees have a special

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relationship with the districts pupils. (C.A., at p. 869-870 (emphasis added).) Because of this special

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relationship, imposing obligations beyond what each person generally owes others under Civil Code

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section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to

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protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.

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(Id.) As explained in Jennifer C., [i]n the traditional special relationship setting, the plaintiff is

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particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over

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the plaintiffs welfare. (Jennifer C., 168 Cal.App.4th at p. 1328-1329.)

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Case law has thus established a special relationship is formed between a school district and its

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students so as to impose an affirmative duty on the district to take all reasonable steps to protect its

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students. (See Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 717

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(emphasis added); see also J.H., 183 Cal.App.4th at pp. 141142.

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5.

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PUSD IS LIABLE FOR THE NEGLIGENT SUPERVISION COMMITTED BY ITS

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PRINCIPAL AND TEACHERS

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In the Districts trial brief they argue that the District is only liable for the negligent supervision

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of its administrators and supervisors. This is completely incorrect. See C.A. v. William S. Hart Union

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High School Dist. (2012) 138 Cal.Rptr.3d 1, 53 Cal.4th 861, 270 P.3d 699 (Student adequately pleaded

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the theory that school district was subject to vicarious liability for its employees, administrators

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and/or agents who allegedly failed to properly hire, train and supervise a female high school

guidance counselor they should have known had a propensity to commit sexual harassment and abuse,

even though student did not identify the employees, administrators, or agents by name or position.

negligent supervision.). C.A. provides:

The standard of care imposed upon school personnel in carrying out this duty to supervise is

identical to that required in the performance of their other duties. This uniform standard to which

they are held is that degree of care which a person of ordinary prudence, charged with

[comparable] duties, would exercise under the same circumstances. [Citations.] Either a total

lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of

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ordinary care on the part of those responsible for student supervision. Under section 815.2,

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subdivision (a) of the Government Code, a school district is vicariously liable for injuries

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proximately caused by such negligence. (Dailey v. Los Angeles Unified Sch. Dist., supra, 2

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Cal.3d at p. 747, 87 Cal.Rptr. 376, 470 P.2d 360; accord, Hoff v. Vacaville Unified School Dist.

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(1998) 19 Cal.4th 925, 932933, 80 Cal.Rptr.2d 811, 968 P.2d 522; Hoyem v. Manhattan Beach

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City Sch. Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851.)

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C.A. v. William S. Hart Union High Sch. Dist., 53 Cal. 4th 861, 869 (2012).

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The District has latched on to the terms administrators and supervisors in the C.A. case.

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However, (1) C.A. did not hold that a school district is only liable for the negligent supervision of

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supervisors and administrators and (2) The significance of the use of the word supervisor in this

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case is negligible because a supervisor within the context of a school applies to all school personnel

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including teachers since they have an affirmative duty to supervise all students and in turn, to supervise

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and report any conduct that could be harmful to the student- including conduct by other teachers at the

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school.

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6.

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PUSD MISREPRESENTS THE LIABILITY STANDARD

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In its trial brief, the District grossly misrepresents the liability standard of care for school

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districts. The Districts brief argues that: (1) the knew or should have known requirement in the CACI

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PLAINTIFFS TRIAL BRIEF

426 Negligent Supervision jury instruction should be changed to the higher standard of knew or had

reason to know and (2) the term unfit should be changed to require prior acts of sexual misconduct.

This is a misstatement of the C.A. v. William S. Hart Union High Sch. Dist. case and an

incorrect modification of CACI 426 which unambiguously provides the standard for negligent

supervision cases.

First, the District relies on a small excerpt, taken out of context, from the C.A. case to argue that

liability will be imposed only if the District knew or had reason to know that such individual [the

perpetrator] was prone to sexual abuse.

C.A. cannot be read to require this standard. In C.A., the plaintiff alleged that the school

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counselor who abused him had engaged in unlawful sexually-related conduct with minors in the past and

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the school district knew or should have known or were put on notice of the counselor's past sexual abuse

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of minors and her propensity and disposition to engage in such abuse. (C.A., supra, 53 Cal.4th at p.

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866, 138 Cal.Rptr.3d 1, 270 P.3d 699.) The issue before the Supreme Court in C.A. was whether the

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plaintiff's theory of liability for negligent hiring, retention and supervision was a legally viable one. The

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court concluded that:

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A public school district may be vicariously liable under section 815.2 for the negligence of

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administrators or supervisors in hiring, supervising and retaining a school employee who

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sexually harasses and abuses a student. Whether plaintiff in this case can prove the District's

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administrative or supervisory personnel were actually negligent in this respect is not a question

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we address in this appeal from dismissal on the sustaining of a demurrer. (Id. at p. 879, 138

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Cal.Rptr.3d 1, 270 P.3d 699.)

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Thus, C.A. cannot be read as requiring proof of a dangerous propensity to sexually abuse

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minors in a negligent supervision cause of action.

Second, the negligent supervision standard is clearly and unambiguously laid out in CACI 426
which provides that:
[name of employer defendant] knew or should have known that [name of employee]
[was/became] [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] created a

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particular risk to others;. Judicial Council Of California Civil Jury Instruction 426, Judicial

Council Of California Civil Jury Instruction 426.

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7.
DISCRETIONARY IMMUNITY IS NOT APPLICABLE IN THIS CASE
Discretionary immunity does not apply to negligent acts. See Martinez v. City of Los Angeles,

C.A.9 (Cal.)1998, 141 F.3d 1373 (No immunity under California's discretionary immunity statute if

injury results, not from employee's exercise of discretion vested in him to undertake act, but from his

negligence in performing it after having made discretionary decision to do so). See also, Megargee v.

Wittman, E.D.Cal.2008, 550 F.Supp.2d 1190. (County was subject to vicarious liability under

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California law for sheriff deputies' alleged negligence in firing 18 shots into stationary truck following

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a high speed chase of burglary suspects. See also, Scott v. County of Los Angeles (App. 2 Dist. 1994)

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32 Cal.Rptr.2d 643, 27 Cal.App.4th 125, (Functions performed by county welfare agency pursuant to

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Welfare and Institutions Code provisions governing child welfare are separate and distinct from those

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quasi-prosecutorial functions in connection with proceedings under child dependency statute, which

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are commonly delegated to county welfare departments pursuant to statute; thus, county and its

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employees are not immune under prosecutorial immunity statutes for negligence in performance of

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such functions.).

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8.

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DAMAGES

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Plaintiff has suffered severe emotional distress and other significant harm as a result of being
sexually abused by Andrews.

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First, Plaintiff was a virgin at the time of the abuse. She was 14 years old and was manipulated

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by a 40-year old teacher to think she was "in love" with him. Andrews manipulated Plaintiff to engage

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in sexual intercourse, oral copulation, and other sexual acts.

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Second, Plaintiffs 8th grade year turned into one huge lie. She led a double-life. She lied to

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her parents, friends, and others. She did this because of Andrews. She lost all of her friends that year.

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She stopped engaging in normal social activities one would expect of a girl in middle school. Her

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world was all-consumed by Andrews.

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PLAINTIFFS TRIAL BRIEF

Third, the fallout from the arrest and the publicity has dramatically affected Plaintiff.

Classmates ostracized her and made fun of her. She lost what she then thought was someone she

"loved" in Andrews. She feels that she let her parents down and lost their trust. It took Plaintiff

months of therapy to realize that she was taken advantage of by Andrews and used by him, since he

was a sexual predator.

Plaintiff has been in therapy on a regular basis since Andrews arrest. Plaintiffs treating

therapist has diagnosed her with PTSD. Plaintiff has and continues to suffer with suicidal ideations,

depression, isolation, fears, insecurities, and many other detrimental emotional effects from this entire

episode. Her personality has changed as a result. There is no quick fix for her mental state. She has

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forever been negatively impacted by all of this and the impact will be felt for years, well into

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adulthood, which is typical of child abuse victims.

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Plaintiff seeks to recover damages for past and future medical (psychological) bills, and past
and future emotional distress.

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Dated: April __, 2016

TAYLOR & RING

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By:
John C. Taylor
Natalie Weatherford
Attorneys for Plaintiff

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PLAINTIFFS TRIAL BRIEF