John Doe #3 v. Santa Barbara Unified School District and Justin Sell

Case Number

22CV01608

Case Type

Hearing Date / Time

Wed, 10/18/2023 - 10:00

Nature of Proceedings

1) Defendant Santa Barbara Unified School District’s Motion For Summary Judgment Or, In The Alternative Summary Adjudication; and, 2) Plaintiff’s Motion To File Under Seal Documents Lodged Under Seal

Tentative Ruling

For Plaintiff John Doe #3: David M. Ring, Natalie Weatherford, Sonya Ostovar,

Afnan Shukry, Taylor & Ring LLP                   

For Defendant Santa Barbara Unified School District: Harry W. Harrison,

Marianne Gordon, Tyson & Mendes

RULING

(1) For all reasons discussed herein, the clerk shall file in the public record the Notice Of Lodgment Of Exhibit(s) Filed Under Seal Pursuant To Protective Order which was conditionally lodged under seal by Defendant the Santa Barbara Unified School District on June 15, 2023.

(2) For all reasons discussed herein, the motion of Defendant the Santa Barbara Unified School District for summary judgment, or, in the alternative, summary adjudication, is granted.

(3) For all reasons discussed herein, the Court continues the hearing on Plaintiff’s motion to file under seal to November 15, 2023. On or before November 6, 2023, Doe’s counsel, Afnan Shukry, shall publicly file redacted versions of Exhibits 7, 8, and 19 to the declaration of Natalie Weatherford in accordance with this ruling.

(4) Plaintiff’s counsel, Afnan Shukry, is ordered to appear on November 15, 2023, at 10:00 a.m. in this Department, and show cause why monetary sanctions not to exceed $1,500 should not be imposed against him for violating the Court’s Minute Order dated August 30, 2023, and California Rules of Court, rules 2.551 (b)(1) and 2.551(b)(5), as discussed herein. Counsel for Plaintiff shall file and serve a written response to the Court’s order to show cause on or before November 6, 2023.

Background

The first amended complaint (FAC) filed in this matter on August 24, 2022, by Plaintiff John Doe #3 (a pseudonym used for these litigation purposes) is the operative pleading. As alleged in the FAC:

Plaintiff Doe was the victim of unlawful sexual assault, abuse, and other misconduct by Defendant Justin Sell (Sell) from 2011 through 2013. (FAC, ¶¶ 1, 8.) Sell was a football coach as well as a security guard at Dos Pueblos High School in Goleta, California. (Ibid.) Doe was a 14-year-old student when he entered the ninth grade for the 2009-2010 school year. (Id. at ¶ 9.) Dos Pueblos High School is part of Defendant the Santa Barbara Unified School District (the District), which is a public school district. (Id. at ¶ 2.)

During the 2011-2012 school year, when Doe was a junior, Sell began grooming Doe with the intent to manipulate Doe’s emotions and take advantage of Doe’s young age. (FAC, ¶ 9.) Sell began stopping Doe between classes and initiating small talk. (Id. at ¶ 10.) Sell later obtained Doe’s cell phone number and began text messaging him, often to set up times to go lift weights in the school weight room that Sell had keys to access and had to unlock for students. (Ibid.) Sell also made sexual remarks to Doe. (Id. at ¶ 11.)

Sell began following Doe in his vehicle. (FAC, ¶ 12.) In one incident, Sell was attempting to follow Doe, ran a red light, and caused an accident. (Id. at ¶ 13.) Although Doe had no involvement or fault in the accident, Sell told Doe the accident was Doe’s fault, and that Doe or Doe’s parents would have to pay. (Ibid.) Sell ordered Doe to come over to Sell’s house, which Doe did out of fear. (Id. at ¶ 14.) Sell forced Doe to engage in sexual activity with Sell. (Ibid.) This encounter was video recorded. (Id. at ¶ 15.)

Sell made threats and directives to Doe with the intention of persuading Doe to keep silent. (FAC, ¶ 16.) These threats and directives had a coercive effect upon Doe so that he did not immediately divulge the sexual abuse to anyone. (Ibid.) Teachers, administrators, and personnel of the District did nothing to investigate Sell’s inappropriate relationship with Doe and Sell was allowed to continue, unhindered, in his predatory conduct directed at Doe. (Id. at ¶ 20.)

The FAC alleges seven causes of action: (1) sexual abuse of a minor (against Sell); (2) intentional infliction of emotional distress (against Sell); (3) sexual harassment (Civ. Code, §§ 51.9, 52) (against Sell); (4) negligent hiring, supervision & retention of an unfit employee (Gov. Code, §§ 815.2 & 820) (against the District); (5) breach of mandatory duty: failure to report suspected child abuse (Gov. Code, § 815.6; Pen. Code, § 11166 et seq.) (against the District); (6) negligent supervision of a minor (Gov. Code, §§ 815.2, subd. (a), 820) (against the District); and (7) negligence (against Does 31-50 only).

On September 27, 2022, Sell filed his answer to the FAC, generally denying its allegations and asserting twenty-three affirmative defenses.

On October 28, 2022, the District filed a demurrer to the fifth cause of action for breach of mandatory duty and failure to report suspected child abuse alleged in the FAC and concurrently filed a motion to strike portions of the FAC. Doe opposed the demurrer and motion to strike. The Court sustained the District’s demurrer to the fifth cause of action without leave to amend, but without prejudice to the making of a later motion for leave to amend. (See Dec. 15, 2023, Minute Order.) The Court granted in part the District’s motion to strike, without leave to amend but without prejudice to the making of a later motion for leave to amend. (Ibid.) The motion to strike was denied in all other respects. (Ibid.)

On January 5, 2023, the District filed its answer to the FAC, generally denying its allegations and asserting twenty affirmative defenses.

On June 14, 2023, the District filed a motion for summary judgment (the motion) on the grounds that the District owed no duty to Doe based on the undisputed facts present in this matter. Alternatively, the District moves for summary adjudication of the fourth, fifth, sixth, and seventh causes of action alleged in the FAC on the grounds that Education Code section 44808 precludes any finding of liability against the District. Doe opposes the motion.

Both the District and Doe conditionally lodged under seal records, respectively, in support of and in opposition to the motion. Specifically, on June 15, 2023, the District conditionally lodged under seal a Notice of Lodgment of Exhibits Filed Under Seal which includes Exhibits B and C to the declaration of its counsel. Doe conditionally lodged under seal Exhibits 7, 8, 10, 11, 17, 18, and 19 submitted in support of Doe’s opposition to the motion. (See Aug. 16, 2023, Doe Notice Of Lodgment at ¶¶ 1-7.) Because the lodged records and evidence submitted by the District and Doe were not properly before the Court, the Court continued the hearing on the motion to permit the parties to file procedurally and substantively appropriate motions to seal the lodged records. (See Aug. 30, 2023, Minute Order.)

On September 8, 2023, the District filed an Amended Notice of Lodgment of Exhibits (the amended lodgment) asserting that the District withdraws its request to for an order sealing Exhibits B and C attached to its counsel’s declaration and that the District makes no further motion to seal any exhibits submitted in support of the motion.  

Also on September 8, 2023, Doe filed a motion for an order sealing only Exhibits 7, 8, and 19 attached to the declaration of Natalie Weatherford (the motion to seal). In the motion to seal, Doe asserts that he does not seek an order sealing Exhibits 10, 11, 17, or 18 previously lodged by Doe in support of Doe’s opposition to the motion. No party to this matter has filed an opposition to the motion to seal filed by Doe.

 

Court records further reflect that on August 25, 2023, Doe filed a request for dismissal of the action with prejudice as to Sell only.

Analysis

(1) The District’s Motion for Summary Judgment or Adjudication

A motion for 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 party is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 (Aguilar).)

A Defendant moving for summary judgment bears the burden of persuasion that “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, supra, 235 Cal.4th at p. 850, 853 [Defendant is not required to conclusively negate the element that Defendant contends the Plaintiff cannot establish].) A moving Defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If a moving Defendant carries its burden of production, this “causes a shift, and the [Plaintiff] is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) The Plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).) If the Plaintiff cannot meet its burden of proof regarding an essential element of Plaintiff’s case, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the Plaintiff to establish anything unless and until the Defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

A triable issue of fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) “In ruling on the motion, the Court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Id. at p. 843.) Furthermore, the Court “may not weigh the evidence or conflicting inferences and must deny the motion if there is a single issue of material fact in dispute.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty….A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The undisputed or not reasonably disputed facts:

The Court construes the amended lodgment filed by the District as an acknowledgment that there does not exist any overriding interest in that overcomes the right of public access to the resignation letter signed by Sell and dated May 6, 2011 (attached to the Harrison declaration as Exhibit B), the portions of the transcript of the deposition of Elaine Alvarado attached to the Harrison declaration as Exhibit C, or the resignation agreement between Sell and the District dated May 3, 2011, and attached to the Harrison declaration as Exhibit C. Therefore, the Court will order that these documents, including the District’s notice of lodgment filed on June 15, 2023, to which the documents are attached, be filed in the public record.

It is undisputed that the District is a public school district which operates elementary, junior high, and high schools in California. (Doe’s Response Separate Statement (Resp. Sep. Stmt.), UMF No. 1 & evidence cited therein.) Doe attended Dos Pueblos Senior High School from Fall 2009 through Spring 2013, and graduated therefrom. (Id. at UMF No. 2 & evidence cited therein.) Doe met Sell on campus during Doe’s freshman year, while Sell was a campus security guard. (Id. at UMF No. 3 & evidence cited therein.) Doe never spoke with any teachers or administrators about any inappropriate conduct by Sell directed toward him and never made any verbal or written complaints to anyone at the District about Sell. (Id. at UMF Nos. 4, 5 & evidence cited therein.) Sell’s employment with the District ended on June 2, 2011. (Id. at UMF No. 3 & evidence cited therein.)

Doe contends that Sell touched him inappropriately on one occasion in late 2012 or early 2013 at Sell’s mother’s house. (Resp. Sep. Stmt., UMF Nos. 7-9 & evidence cited therein [not reasonably disputed on this point].) Doe had his license at the time and drove himself to Sell’s mother’s house that day to discuss a car accident involving Sell. (Id. at UMF No. 10 & evidence cited therein.) During the time that Doe was at Sell’s mother’s house, only the two of them were present and no one else knew that Doe was going to Sell’s mother’s house. (Id. at UMF Nos. 11, 12 & evidence cited therein.) On that day, oral sex occurred between Doe and Sell. (Id. at UMF No. 13 & evidence cited therein.) The first time Doe told anyone about this incident was after he moved forward with a restraining order against Sell in June of 2013, after Doe’s high school graduation. (Id. at UMF No. 14 & evidence cited therein.)

The above summary is not intended to be exhaustive, and the Court has considered all admissible evidence offered in support of and in opposition to the District’s motion as further discussed below.

Summary adjudication of the fifth and seventh causes of action alleged in the FAC:

As further discussed above, the Court sustained the District’s demurrer to the fifth cause of action for breach of mandatory duty and failure to report suspected child abuse alleged in the FAC, without leave to amend, and granted the District’s motion to strike the last sentence of paragraph 22 of the FAC also without leave to amend. (See Dec. 15, 2022, Minute Order.) Court records reflect that Doe has not filed a motion for leave to amend the FAC to allege a cause of action for breach of mandatory duty or a failure to report suspected child abuse under Government Code sections 815.2 and 815.5 or Penal Code section 11166 et seq. For these reasons, the fifth cause of action alleged in the FAC is no longer at issue. Therefore, the District’s motion for summary adjudication of the fifth cause of action is moot and will therefore be denied.

The seventh cause of action for negligence is alleged against fictitious “Doe” Defendants and not against the District. For the same reasons discussed above, the Court will also deny the motion as to the seventh cause of action as moot.

Summary adjudication of the fourth and sixth causes of action alleged in the FAC:

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) The fourth cause of action for negligent hiring, supervision, and retention of an unfit employee and the sixth cause of action for negligent supervision of a minor alleged in the FAC are the only causes of action asserted against the District in the FAC. Therefore, to meet its burden, the District must adduce evidence negating the theories of liability alleged in fourth and sixth causes of action of the FAC. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

As alleged in the FAC, the fourth and sixth causes of action are brought under Government Code sections 815.2 and 820. The parties do not dispute that the District is a public entity. Under Government Code section 810 et seq. (the California Tort Claims Act or the Act), a public entity such as the District is not liable for an injury “[e]xcept as otherwise provided by statute[.]” (Gov. Code, § 815, subd. (a); see also Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 268 (Guerrero) [tort liability for a school district “is based upon statute”].) Relevant here as alleged in the FAC, grounds for the District’s liability exist under the Act for injuries “proximately caused by an act or omission of [Sell] within the scope of [Sell’s] employment if the act or omission would, apart from this section, have given rise to a cause of action against [Sell] or his personal representative” and injuries caused by Sell’s “act or omission to the same extent as a private person.” (Gov. Code, §§ 815.2; 820; see also C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868-870 (C.A.) [discussing a school district’s liability for negligent hiring, supervising, and retaining an employee and vicarious liability for injuries caused by the employee].)

“While school districts and their employees have never been considered insurers of the physical safety or students, California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. (Citations.)’ [Citations.] 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 ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, fn. omitted.)

“In addition, a school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.’ [Citations.] Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student [citation], injury to a student by a nonstudent [citation] and … injuries to a student resulting from a teacher’s sexual assault [citation].” (C.A., supra, 53 Cal.4th at pp. 869-870, fn. omitted.)

Because the liability of a school district is generally based on a theory of negligence for reasons discussed above, to prevail on the fourth and sixth causes of alleged in the FAC against the District, Doe must establish that the District owed a duty of care, that the District breached that duty, and that the breach was the proximate cause of Doe’s injuries. (LeRoy v. Yarboi (2021) 71 Cal.App.5th 737, 742 (LeRoy); citing Guerrero, supra, 114 Cal.App.4th at p. 268, [tort liability for public entities is based on the provisions of the Government Code].)

In cases where there exist statutory grounds for imposing liability, the public entity’s liability “is subject to any immunity of the public entity provided by statute … and is subject to any defenses that would be available to the public entity if it were a private person.” (Gov. Code, § 815, subd. (b); Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 804.) Here, the District asserts that Doe’s theory of liability arises solely from a sexual assault that occurred at the private home of Sell’s mother after Sell was no longer an employee of the District. Because the sole injury producing event occurred off-campus and after school hours, the District argues, Doe cannot establish that the District owed a duty to Doe. The District further contends that, under Education Code section 44807, it is immune from liability for Doe’s injuries because the event was unrelated to any school function or activity and occurred off-campus while neither Doe nor Sell were under the supervision of the District.

“Public school districts enjoy certain immunities from actions for negligence.” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 829.) Relevant here, Education Code section 44807 provides that “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.)

Education Code section 44807 “was enacted with the intention of limiting the circumstances under which a school district is responsible for supervising students. [Citation.] Education Code section 44808 has been interpreted to grant school districts immunity from liability ‘ “ ‘unless a student was (or should have been) directly supervised during a specified undertaking.’ ” ’ [Citation.] Thus, ‘school districts are not responsible for the safety of students outside school property absent a specific undertaking by the school district and direct supervision by a district employee.’ [Citation.] The relevant standard of care to which the school district and its employees are held is a standard of ‘reasonable care.’ [Citations.] Under Education Code section 44808, it remains the case that school districts and their employees are not ‘ “considered insurers of the physical safety of their students.” ’ [Citation.]” (Srouy v. San Diego Unified School District (2022) 75 Cal.App.5th 548, 568.) Therefore, “ ‘[i]n essence, [Education Code section 44808] grants a district immunity unless a student was (or should have been) directly supervised during a specified undertaking.’ [Citation.]” (Mosley v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260, 1265.)

The undisputed evidence offered by the District demonstrates that the sexual assault described above occurred in late 2012 or early 2013, approximately one and one-half years after Sell’s employment with the District terminated. In addition, the District has offered undisputed evidence demonstrating that the assault occurred off campus and not during an event or activity sponsored by the District. The undisputed evidence further demonstrates that the District did not provide Doe with transportation to or from Sell’s mother’s house on the day of the assault and that the assault did not occur while Doe was or should have been under direct supervision by an employee of the District.

The “great weight of authority” demonstrates that section 44808 ‘ “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.” [Citation.]’ [Citations.]” (LeRoy, supra, 71 Cal.App.5th at pp. 743-744 [summary judgment properly granted based on a finding that Plaintiffs’ son committed suicide off-campus during a summer break when the son was not and should not have been supervised by the school district or its employees and when no one at the school had assumed responsibility for his well-being].) Based on the undisputed evidenced offered by the District and for all reasons discussed above, the District has met its burden to demonstrate that Evidence Code section 44808 grants the District immunity for injuries and damages sustained by Doe as a result of the sexual assault that occurred off campus at Sell’s mother’s home long after Sell was no longer employed with the District and not during any event or activity sponsored by the District.

As the District has met its initial burden of production, the burden now shifts to Doe to produce sufficient evidence demonstrating the existence of a triable issue of fact as to the District’s claim of immunity under Evidence Code section 44808. (Code Civ. Proc., § 437c, subd. (p)(2).)

Doe asserts that the District’s liability in this matter is not based on any failure by the District to supervise or protect Doe on the day the sexual abuse occurred at Sell’s mother’s house. (Opp. at p. 15, ll. 1-3.) Doe also does not dispute that the injury for which Doe seeks to hold the District liable is the sexual assault by Sell that “ultimately materialized off campus.” (Opp. at p. 13, ll. 18-20.)

Notwithstanding that the injury producing event for which Doe seeks to hold the District liable occurred off campus, Doe contends the District was negligent while Doe was on campus because the District failed to discipline or investigate Sell or intervene when Sell began displaying “red flags” while employed with the District and after the District discovered that Sell had inappropriate contact with Doe. (Opp. at p. 13, ll. 20-23.) Because the District failed to supervise or protect Doe while Sell was employed with the District, Doe argues, Sell was permitted unfettered access to Doe. (Opp. at p. 15, ll. 5-8.) Doe contends that this unfettered access allowed Sell to “groom” Doe for the sexual abuse incident that occurred at Sell’s mother’s house in late 2012 or early 2013. (Opp. at p. 14, ll. 7-12; p. 15, ll. 8-10.) For these reasons, Doe contends, the District’s conduct was a substantial factor that permitted the sexual abuse to occur. (Opp. at p. 14, ll. 7-12; p. 15, ll. 1-5.)

Doe asserts that the District’s negligence “falls broadly into three categories” which include a failure to terminate or report Sell after Sell punched a student while Sell was still a probationary employee, a failure to conduct an adequate investigation of or take disciplinary action against Sell while he was employed with the District, and a failure to adequately investigate Sell’s interactions with Doe and failing to warn Doe’s parents after learning that Sell had access to Doe’s Facebook account and had exchanged inappropriate text messages with Doe. (Opp. at p. 17, ll. 4-5 & 14-17; p. 18, ll. 20-23.)

In support of the opposition to the motion, Doe offers evidence regarding the District’s hiring and promotion of Sell, the District’s procedures for terminating employees during the employee’s probationary period, the length of Sell’s probationary period with the District, an incident that occurred while Sell was a probationary or at-will employee wherein Sell struck a student in the face with a closed fist, the District’s failure to report the punching incident, and the District’s failure to fire Sell for punching a student instead permitting Sell to become a permanent District employee with attendant protections regarding progressive discipline. (Opp. Sep. Stmt., AMF Nos. 1 through 21 & evidence cited therein.)

Doe also offers evidence that Doe contends constitute “red flags” regarding Sell’s behavior while employed with the District and Sell’s violations of school policy including: the existence of an “entourage” of students following Sell around; Sell making sexual remarks and questioning students about their sexual activity; Sell and another minor student being referred to as “butt buddies” which implied sexual contact; the minor student also being referred to as Sell’s “bitch”; rumors of sexual contact between Sell and another minor student; Sell opening or keeping the weight room open late and on weekends for a few select students including Doe; Sell inviting students to weekend weightlifting sessions when no other coach or administrator was present; an incident where Sell and another minor student frantically exited a closet in the gym; Sell giving car rides to minor students including Doe; Sell taking students to shopping centers; Sell visiting student’s homes for barbeques or to watch football games; Sell “butt slapping” or “nut tapping” students including Doe; and Sell meeting Doe off campus to watch a movie which raised “red flags” with Doe’s coach. (Opp. Sep. Stmt., AMF Nos. 22-40, 42, 44, & evidence cited therein.)

In addition, Doe presents evidence regarding concerns expressed by Doe’s coach regarding Sell and Sell’s relationship with another minor student, events leading up to Sell’s termination as a football coach which include another coach’s observations and suspicions regarding an inappropriate relationship between Sell and another minor student, Sell’s continuing employment with the District as a security guard after Sell was fired from the football team, the District’s knowledge of Sell’s behavior with and towards another minor student following the student’s disclosure of various incidents to District employees which included accusations that Sell was engaging in stalking and other inappropriate behavior, and a District employee’s conclusions regarding whether Sell had sexual identity issues. (Opp. Sep. Stmt., AMF Nos. 44-48, 50-51, 53-57, 59 & evidence cited therein.)

The evidence offered by Doe also demonstrates that school administrators, including the school’s Vice Principal, spoke to Sell regarding his behavior towards minor students and that a formal complaint was made to the District on December 6, 2010, by the family of another minor student regarding Sell’s behavior which was forwarded to the school’s assistant Principal for investigation. (Opp. Sep. Stmt., AMF Nos. 49, 60 & evidence cited therein.) The evidence presented by Doe also shows that the student’s family provided the District with copies of a Facebook message Sell sent the other minor student from Doe’s Facebook account demonstrating that Sell used Doe’s account to send a message to another minor student. (Id. at AMF Nos. 61, 66 & evidence cited therein.)

Doe further submits evidence showing that after the District issued a letter of reprimand instructing Sell not to contact another minor student, Sell continued to contact that student. (Opp. Sep. Stmt., AMF Nos. 69-72 & evidence cited therein.) According to the evidence presented by Doe, the District gave Sell a verbal reprimand, but did not fire Sell because of union involvement. (Id. at AMF Nos. 72, 74 & evidence cited therein.) Instead, the District transferred Sell to another high school in February 2011. (Id. at AMF No. 75 & evidence cited therein.) Sell remained in communication with Doe after he was transferred and visited Doe’s house whether invited or not. (Id. at AMF No. 78 & evidence cited therein.)

Doe also offers evidence to demonstrate that the District learned that a police investigation had uncovered copies of emails and text messages between Sell and another minor student. (Opp. Sep. Stmt., AMF Nos. 79, 80 & evidence cited therein.) The text messages included exchanges between Sell and Doe that Doe contends demonstrate that Sell tried to use Doe to relay messages to another minor student and demonstrates an intimate relationship between Sell and Doe and. (Id. at AMF Nos. 81, 82 & evidence cited therein.)

Doe also presents evidence to demonstrate that the District placed Sell on administrative leave on March 4, 2011. (Opp. Sep. Stmt., AMF No. 85 & evidence cited therein.) On May 6, 2011, Sell and the District executed a resignation agreement which included a provision stating that Sell could not be on campus during school hours. (Id. at AMF No. 89 & evidence cited therein.) The District learned that a couple of weeks after Sell resigned, Sell was loitering on campus. (Id. at AMF No. 90 & evidence cited therein.) The District contemplated obtaining a restraining order. (Ibid.) After the sexual assault at Sell’s mother’s house further discussed above, Sell loitered in the parking lot on school grounds, followed Doe after he had taken senior photos with his friends, and created a fake Facebook account to try to blackmail Doe regarding the sexual assault. (Id. at AMF Nos. 95, 96 & evidence cited therein.) The District never warned Doe or his parents about Sell. (Id. at AMF No. 84 & evidence cited therein.)

Doe also submits the declaration of expert Robert Fraisse, Ph.D in support of the opposition to the motion. Dr. Fraisse is an educator and a school administrator whose career in education has spanned over 45 years. (Fraisse Decl., ¶ 2 & Exh. A [curriculum vitae].) Dr. Fraisse states that the District’s failure to provide adequate supervision or oversight of Sell fell below the standard of care and emboldened Sell’s inappropriate conduct. Dr. Fraisse also describes behavior by Sell that Dr. Fraisse asserts constitutes an inappropriate relationship between Doe and Sell, and “red flag” conduct by Sell that should have put the District on notice of Sell’s grooming of Doe and an inappropriate relationship between Sell and Doe. (See Fraisse Decl., ¶¶ 19, 20, 21.)

With its reply papers, the District submits a reply separate statement. Neither the statute nor Court rules permit a party moving for summary judgment or adjudication to submit a reply separate statement. (Cal. Rules of Court, rule 3.1350(c); Code Civ. Proc., § 437c, subd. (b)(4); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Therefore, the District’s reply separate statement is improper and will be disregarded by the Court. Even if the Court were to consider the District’ improper reply separate statement, apart from asserting objections to the additional facts offered by Doe which are further discussed below, the District does not effectively dispute the additional facts offered by Doe.

The Court’s discussion of the evidence offered by Doe is not intended to be exhaustive and as noted above, the Court has considered all admissible evidence offered in opposition to the District’s motion.

Based on the evidence presented by Doe, Doe contends that the District knew that Sell ingratiated himself with other boys and that Doe was one of Sell’s favored students. Therefore, Doe argues, the District reasonably could infer that Sell might have been inappropriate with Doe and was grooming Doe. Doe further asserts that, had the District acted on the information it possessed and either terminated Sell or alerted Doe’s parents, this would have prevented the sexual abuse that later occurred at Sell’s mother’s house. Because the District failed to adequately investigate the matter, failed to supervise Doe and Sell while Doe was a student, and allowed Sell to maintain contact with students after Sell resigned, Doe argues, the District’s conduct effectively made Doe a potential victim for abuse which culminated in the sexual assault in late 2012 or early 2013, further discussed above. Doe further contends that the District reasonably should have discovered that Doe was a potential victim for abuse by Sell. (See Opp. at p. 6, ll. 17-25; p. 18, ll.10-19; p. 19, ll. 2-8.) Accordingly, Doe contends that the District’s failure to adequately supervise and protect Doe from Sell while Sell was employed with the District was a substantial factor in permitting the eventual sexual assault to occur. (See Opp. at p. 15, ll. 1-5.)

Based on the evidence and arguments offered by Doe in support of his opposition to the motion, and Doe’s characterization of the events discussed above as “grooming” or “red flags”, it is the Court’s understanding that Doe does not seek to hold the District independently liable for any breach of duty or injuries that occurred while Sell was employed by the District. It is also the Court’s understanding that Doe does not seek to hold the District liable for any failure to supervise Doe or other breach of duty on the day the assault occurred.

As Doe has effectively disclaimed independent liability for the events described in the opposition that occurred while Sell was employed with the District, the Court will limit its analysis to whether Doe has demonstrated a triable issue of fact with regard to whether the District is immune from liability for the sexual assault described above under the provisions of Education Code section 44808 or whether an exception to its statutory immunity applies. (Note: Undesignated statutory references in the remainder of this ruling shall be to the Education Code unless otherwise stated.)

Though Education Code section 44808 “refers to the failure to exercise reasonable care during one of the mentioned undertakings” and does not provide an independent basis for liability or “ ‘create a common law form of general negligence’ ”, section 44808 does not grant automatic immunity for injuries suffered off school premises under all circumstances. (Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 871; LeRoy, supra, 71 Cal.App.5th at pp. 743-744 [section 44808 refers to a failure to exercise reasonable care during one of the mentioned undertakings]; Guerrero, supra, 114 Cal.App.4th at pp. 271-272 [section 44808 does not create a common law form of negligence].)

For example, in Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508 (Hoyem), a mother and her son filed an action against a school district for injuries suffered by the son when he left school premises before the end of scheduled classes and was subsequently injured by a motorcycle. (Id. at p. 512.) Citing a provision of the Administrative Code that prohibits students from leaving school premises at recess or before a school’s normal closing hour, the Court in Hoyem found that the Plaintiffs in that case adequately alleged that school authorities had a duty to exercise ordinary care to enforce the rule while the son was on school premises and breached that duty which resulted in the son leaving the school grounds and sustaining injuries. (Id. at p. 514.) Because Plaintiffs in that matter had sufficiently alleged that the Defendant school district had failed to exercise reasonable care while the son was on school premises, Education Code section 44808 did not bar that action. (Id. at pp. 512, 517.)

In Perna v. Conejo Valley Unified School Dist. (1983) 143 Cal.App.3d 292 (Perna), two minor students filed an action against a school district for injuries sustained when the students were struck by a vehicle off school premises after a teacher had kept the students after school hours to grade papers. (Id. at p. 294.) The Court in Perna found that “[o]n the basis of the allegations in Plaintiffs’ complaint, a jury could find that negligent supervision by the school district on the school grounds could have proximately caused Plaintiff’s off campus injury” because “[i]f Plaintiffs’ injuries had occurred as a result of being kept after school for several hours so that they had to walk home in the dark, there would be no question that the conduct of the school in keeping them late would constitute negligence.” (Id. at p. 296 [also noting that the facts alleged by Plaintiffs “may not state as strong a case for negligence”].)

In Calandri v. Ione Unified School Dist. of Amador County (1963) 219 Cal.App.2d 542 (Calandri), a student who was injured at home by a toy cannon he had constructed in school alleged that the failure of the teacher to warn of the dangers involved in firing the cannon or to provide instruction regarding how to safely use the cannon was a proximate cause of student’s off-campus injury. (Id. at pp. 545-547.) Reversing a verdict in favor of the school district because of an error regarding instruction on the standard of conduct, the Court found that a duty of care was owed by Defendant school district and that the claims of negligence and proximate cause were questions of fact for the jury. (Id. at pp. 547, 551-552.)

Though section 44808 somewhat qualifies the principle that “school districts are not legally responsible for accidents that students may suffer once they have been released from school or before they arrive at school” (Perna, supra, 143 Cal.App.3d at p. 294), the case examples cited above demonstrate that, under certain circumstances, a school district “may be held liable for injuries suffered by a student off school premises and after school hours where the injury resulted from the school’s negligence while the student was on school premises.” (Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 794-795 (Brownell) [also discussing the holdings in Hoyem, Perna, and Calandri].) However, though the District “cannot automatically escape liability simply because the injury occurred off the school property”, Doe must still demonstrate that any failure by the District to exercise reasonable care prior to Sell’s resignation from his employment with the District was the proximate causal connection of Doe’s injuries. (Perna, supra, 143 Cal.App.3d at p. 295; Hoyem, supra, 22 Cal.3d at pp. 514, 516, 519 [the Plaintiff bears the burden of showing that a failure to exercise ordinary care was a proximate cause of the injury].)
 

Courts have recognized two aspects of proximate cause. “ ‘ “One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.” ’ [Citation.] This is sometimes referred to as ‘but-for’ causation.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352 (State Hospitals).) “The second aspect of proximate cause ‘focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional “limitations on liability other than simple causality.” [Citation.] “These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.” [Citation.] Thus, “proximate cause ‘is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor’s responsibility for the consequences of his conduct.’ ” [Citation.]’ [Citation.] As Witkin puts it, ‘[t]he doctrine of proximate cause limits liability; i.e., in certain situations where the Defendant’s conduct is an actual cause of the harm, the Defendant will nevertheless be absolved because of the manner in which the injury occurred.... Rules of legal cause ... operate to relieve the Defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.’ [Citation.]” (Id. at p. 353.)

Moreover, “[o]rdinarily proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint. [Citations.] … Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” (Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1084 (Weissich); accord, State Hospitals, supra, 61 Cal.4th at p. 353.)

The Court has reviewed the substantial evidence presented by Doe. Viewing the evidence in the light most favorable to Doe, which includes evidence of what Doe asserts constitutes “red flags” and Sell “grooming” Doe for sexual abuse, Doe has not made a sufficient showing, either expressly or by inference, of a proximate causal connection between any breach of duty by the District while Sell was employed with the District and the sexual assault that occurred off-campus well over a year after Sell resigned. Considering the totality of the evidence offered by the parties and for all reasons discussed below, the only reasonable conclusion is that there is an absence of causation between the District’s conduct while Sell was an employee and the off-campus sexual assault that occurred in late 2012 or early 2013, after Sell resigned.

For example, Doe has not presented evidence that establishes how or why any grooming behavior by Sell while he was employed by the District or any “red flags” that the District observed or should have discovered enabled the District to foresee the possibility of an off-campus sexual assault by Sell over a year and one-half after Sell resigned from his employment with the District. (See Beck v. San Francisco Unified School Dist. (1964) 225 Cal.App.2d 503, 507 [“[w]hile foreseeability is one factor in the delineation of negligence, it is equally pertinent in the exploration of proximate cause….”].)

In addition, though Doe offers evidence to establish that shortly after Sell resigned, Sell failed to abide by the terms of the resignation agreement by loitering on campus, there is no evidence demonstrating that Sell contacted Doe during these events or, to the extent Sell made contact with Doe, that the District was aware of any inappropriate contact between Sell and Doe during that timeframe. (See Doe Exh. 10 at p. 209, l. 12 – p. 212, l. 3 & p. 221, l. 18-222, l. 23.) The evidence also indicates that, with regard to other instances of Sell’s loitering after the sexual assault, these events also occurred off District premises and after Sell resigned. (See, e.g., Doe Exh. 3 at p. 42 [off-campus incidents]; Exh. 20 at p. 24, ll. 5-21 [off-campus incident], p. 25, ll. 20-25 [same], p. p. 27, ll. 13-19 [same].) The evidence does not demonstrate that the District was or should have been aware of any continued interactions between Sell and Doe after Sell resigned.

In addition, though the concept of foreseeability does not require identical or similar events, “the facts must demonstrate the Defendant’s awareness of the need for the precaution not taken or that such a precaution ‘could aid in deterring criminal conduct.’ [Citation.]” (Brownell, supra, 4 Cal.App.4th at pp. 797-798.) Doe has not sufficiently demonstrated that the act of punching a student made or should have made the District aware of a need to take precautions to thereafter prevent any inappropriate sexual conduct, or how any such precautions would aid in deterring a sexual assault that occurred long after Sell resigned. Further, Doe presents no evidence to demonstrate that the qualitatively different act of punching a student has anything to do with the grooming or other inappropriate behavior described in the opposing papers or how any breach of duty by the District in failing to terminate Sell after Sell punched a student was a substantial factor in Sell grooming Doe or later sexually assaulting Doe after Sell resigned. (See Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861 [“[i]f the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries”].)

Doe also presents no evidence that establishes, expressly or by inference, that had District warned Doe’s parents or required Sell to resign earlier, the result would have been any different. (See, e.g., Guerrero, supra, 114 Cal.App.4th at p. 270.) The significant passage of time between the alleged breach of duty and the sexual assault presents a significant question of causation with regard to whether any failure to warn Doe or Doe’s parents was the proximate cause of the off-campus sexual assault. (See Weissich, supra, 224 Cal.App.3d at p. 1084 [addressing lapse of time between a purported breach of a duty to warn and a later killing].)

Though Doe contends that the District has failed to meet its burden on summary judgment or adjudication because the District has not addressed the factors enumerated in Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland), the considerations and factors set forth in Rowland are determinative “of the existence and scope of a Defendant's duty in a particular case.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) Here, there is no dispute that the District owed a duty to Doe while Doe was a student at the District’s school and while Sell was employed with the District. The scope of the duty owed by the District is also not in question. As further discussed above, Doe does not seek to hold the District independently liable for any failure to supervise Doe on the date of the sexual assault or independently liable for any breach of duty or resultant injuries occurring while Sell was employed by the District.

Furthermore, Rowland was decided before Education Code section 44808 was enacted. (See LeRoy, supra, 71 Cal.App.5th at p. 743, fn. 2 [noting that the decisions relied on by Plaintiffs in that case were decided before section 44808 was enacted in 1976].) The issue that the Court must determine for present purposes is whether, under the undisputed admissible facts presented by the parties, the District’s conduct was a substantial factor in the sexual assault that occurred off-campus, after Sell was no longer employed by the District, and over a year and one-half after Sell resigned.

“[C]ausation in fact is ultimately a matter of probability and common sense[.]” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253.) Though Doe is not required to eliminate any possibility that the District’s conduct while Sell was employed was not a cause of the sexual assault, Doe must present evidence “from which reasonable [persons] may conclude that it is more probable that the [sexual assault] was caused by the [District] than that it was not.” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029.) “ ‘A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the Court to direct a verdict for the Defendant.’ [Citation.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776; see also Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79 [a cause that plays a “theoretical” part in bringing about an injury is not a substantial factor].)

The evidence here demonstrates that the District cut off any causal connection by allowing Sell to resign. Further, the temporal distance between the date of Sell’s resignation and the sexual assault together with the absence of any evidence that the District possessed any special knowledge of any continued inappropriate conduct by Sell towards Doe following Sell’s resignation suggests at most a theoretical possibility of causation and therefore precludes the Court from finding as a matter of law that any breach of duty by the District that occurred before Sell resigned was a proximate cause of the sexual assault that occurred off-campus long after Sell was no longer under the District’s supervision or control. To find otherwise would subject the District to sweeping liability once the District learns that an employee has engaged in inappropriate or criminal conduct with minor students without regard to considerations of causation and notwithstanding whether the District removes the problem employee. This effectively unlimited liability is unwarranted under the evidence presented here. (See Guerrero, supra, 114 Cal.App.4th at p. 270.)

Though section 44808 does not permit the District to escape liability for off premises injuries under all circumstances, for all reasons discussed above, Doe has failed to meet his burden to adduce evidence demonstrating that the District’s actions or inaction was a proximate cause of the sexual assault that occurred in late 2012 or early 2013. Accordingly, Doe has failed to establish that section 44808 does not apply here or that there exists an exception to its statutory grant of immunity. It is not the Court’s intent to dismiss or minimize Sell’s abhorrent conduct or the damages and injuries incurred by Doe resulting from the sexual assault. However, imposing a duty on the District to, under the facts present here, effectively insure in perpetuity the safety of its students long after a perpetrator is no longer employed by the District would be unfounded and unfair. (See, e.g., C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974, 984.) Therefore, for all reasons discussed above, the Court will grant the District’s motion for summary adjudication of the fourth and sixth causes of action alleged in the FAC. The Court will also grant the District’s motion for summary judgment.

The District’s evidentiary objections:

In support of its reply to Doe’s opposition to the motion, the District submits 160 objections to exhibits and evidence submitted by Doe.

The California Rules of Court requires that written objections to evidence “[q]uote or set forth the objectionable statement or material[.]” (Cal. Rules of Court, rule 3.1354(b)(3).) Though the District’s written objections cite to a location for each of the matters to which the District asserts an objection, the District has failed to quote or set forth the objectional material itself. The District’s failure to quote the objectionable material forces the Court to locate the statement among numerous and voluminous exhibits and to guess whether the District objects to the cited matters in whole or in part. As the District has failed to comply with the formatting rules set forth in California Rules of Court, rule 3.1354(b)(3), the Court will disregard the District’s objections to Doe’s evidence. (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial Court may decline ruling on improperly formatted objections].)

(2) Doe’s Motion To Seal

In its Minute Order dated August 30, 2023 (the August Minute Order), the Court reiterated its previous determination that an order sealing records or portions thereof that reveal Doe’s identity would be warranted. (August Minute Order; see also Nov. 2, 2022, Minute Order.) Accordingly, the Court further noted that, to the extent a party requests an order sealing only those records or portions thereof that reveal Doe’s identity, that party may refer to the Court’s findings as set forth in its November 2, 2022, Minute Order. Under these circumstances, the Court ordered the moving party to “publicly file the lodged record in a manner that redacts only Doe’s identity” and to “refer to those portions of the records that contain or disclose Doe’s identity on a line-by-line basis with specific references to each document to enable the Court to easily locate the information the party requests be sealed.” (See August Minute Order.)

In the motion to seal, Doe requests an order sealing the entirety of Exhibits 7, 8, and 19 attached to the declaration of its counsel Natalie Weatherford on the grounds that these records reveal Doe’s last name and therefore reveal Doe’s identity. Doe asserts no objection to the disclosure of Doe’s first name or the first initial of Doe’s last name, and asserts no other grounds for an order sealing Exhibits 7, 8, and 19 apart from Doe’s right to proceed in this matter without publicly revealing his last or full name.

For all reasons discussed in the Court’s November 2, 2022, Minute Order, Doe has established that there exists an overriding interest in protecting Doe’s identity in this matter that overcomes the public’s right of access that will be prejudiced if records or portions thereof that reveal Doe’s last name are not sealed. (Cal. Rules of Court, rule 2.550(d)(1)-(3). Moreover, available information demonstrates that there exist no countervailing interests or prejudice to Defendants. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894 (H.B. Fuller).)

Notwithstanding the Court’s findings regarding the existence of an overriding interest in protecting Doe’s identity that supports sealing those portions of Exhibits 7, 8, and 19 that reveal Doe’s last name, the exhibits that are the subject of the motion to seal include information and matters other than Doe’s last name or identity. Doe has presented no information or evidence that establishes an overriding interest that would overcome the public’s right of access to those portions of Exhibits 7, 8, and 19 that do not reveal Doe’s last name. Therefore, Doe has not met his burden to demonstrate that all of the information contained in the lodged records implicate overriding interests that overcome the public’s right of access to these records. (See Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487, 505.)

For these same reasons, the proposed sealing is not narrowly tailored. (Cal. Rules of Court, rule 2.550(d)(4)-(5).) In addition, Doe’s failure to establish an overriding interest in the entirety of the records prevents the Court from making the required factual findings, which is a sufficient ground to deny Doe’s motion to seal. (See Cal. Rules of Court, rule 2.550; H.B. Fuller, supra, 151 Cal.App.4th at pp. 888-889.)

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the Court, for any violation of a lawful Court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the Court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.” (Code Civ. Proc., § 177.5.) Furthermore, “[i]n addition to any other sanctions permitted by law, the Court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the Court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” (Cal. Rules of Court, rule 2.30(b).)

In filing the motion to seal, Doe has failed to publicly file the lodged Exhibits 7, 8, and 19 in a manner that redacts only Doe’s last name, which is the only matter for which Doe seeks a sealing order, and has failed to identify those portions of Exhibits 7, 9, and 19 that disclose Doe’s last name either on a line-by-line basis or with specific references to each exhibit to enable the Court to easily locate Doe’s last name as ordered by the Court. (See August Minute Order). For these reasons, the Court finds that Doe has violated the August Minute Order. Doe has offered no information demonstrating good cause or substantial justification for violating the August Minute Order. (Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081 [“section 177.5 does not even require a willful violation, but merely one committed ‘without good cause of substantial justification,’ that is, without a valid excuse”].)

In addition, Doe’s failure to publicly file the lodged exhibits with appropriate redactions and to identify those portions of the lodged exhibits that reveal Doe’s last name constitutes a violation of California Rules of Court, rule 2.551(b)(1) [requiring that a memorandum accompanying a motion to seal include facts sufficient to justify the sealing] and rule 2.551(b)(5) [documents be filed in a public redacted version with identifying information]. As a result of Doe’s violation of the August Minute Order and Court rules, the Court is unable to presently issue an appropriate order sealing Exhibits 7, 8, and 19. (Ibid.)

For all reasons discussed above, the Court will order counsel for Doe, Afnan Shukry, to appear and show cause why monetary sanctions not to exceed $1,500 should not be imposed against him for violating the August Minute Order and California Rules of Court, rules 2.551 (b)(1) and 2.551(b)(5). The hearing on this order to show cause shall be set for November 15, 2023, at 10:00 a.m. in this Department. Counsel for Doe shall file and serve his written response to the Court’s order to show cause on or before November 6, 2023.

In addition, the portions of Exhibits 7, 8, and 19 that do not reveal Doe’s last name and that have been conditionally lodged under seal by Doe are not part of the Court’s permanent file. (See Mao’s Kitchen, Inc. v. Mundy (2012) 209 Cal.App.4th 132, 150 [“lodging a document makes it only temporarily a Court record”].) Therefore, notwithstanding that sufficient grounds exist to seal the portions of Exhibits 7, 8, and 19 that reveal Doe’s last name, the evidence offered by Doe in opposition to the motion is not properly before the Court. Therefore, the Court will continue the hearing on the motion to seal to November 15, 2023, to permit Doe’s counsel, Afnan Shukry, to publicly file Exhibits 7, 8, and 19 in a manner that redacts only Doe’s last name. Doe’s counsel, Afnan Shukry, shall publicly file redacted versions of Exhibits 7, 8, and 19 in accordance with this ruling on or before November 6, 2023. Should counsel fail to publicly file redacted versions of Exhibits 7, 8, and 19 on or before November 6, 2023, in accordance with this ruling, the Court will order the clerk to file the lodged exhibits in the public record, if appropriate.