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

Case Number

22CV01608

Case Type

Hearing Date / Time

Wed, 01/17/2024 - 10:00

Nature of Proceedings

Defendant Santa Barbara Unified School District’s Motion For Summary Judgment Or, In The Alternative Summary Adjudication

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

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 denied.

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 and a security guard at Dos Pueblos High School in Goleta, California. (Ibid.) 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.) Doe was a 14-year-old student when he entered the ninth grade during the 2009-2010 school year. (Id. at ¶ 9.)

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 unlock for students. (Ibid.) Sell also made sexual remarks to Doe. (Id. at ¶ 11.)

Sell also began following Doe in his vehicle. (FAC, ¶ 12.) During one incident, Sell was attempting to follow Doe, ran a red light, and caused an accident. (Id. at ¶ 13.) Although Doe was not involved 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 towards Doe with the intention of persuading Doe to keep silent. (FAC, ¶ 16.) These threats and directives had a coercive effect upon Doe such that he did not immediately divulge the sexual abuse to anyone. (Ibid.) The District’s teachers, administrators, and personnel 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).

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. (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 District’s motion) on the grounds that the District owed no duty to Doe in connection with an incident which occurred off campus in late 2012 or early 2013 and that the undisputed material facts in this matter demonstrate that the late 2012 or early 2013 incident, which the District contends is the sole injury producing event, was unrelated to any school activity or function and occurred off campus outside of school hours such that the District is immune from liability under Education Code section 4408. Alternatively, the District moves for summary adjudication of the fourth, fifth, sixth, and seventh causes of action alleged in the FAC. Doe opposes the motion.

The District and Doe each conditionally lodged under seal records, respectively, in support of and in opposition to the District’s motion. The Court continued the hearing on the District’s 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 withdrew its request for an order sealing records lodged by the District and asserted that the District makes no further motion to seal any exhibits submitted in support of the District’s motion. (See District’s Sept. 8, 2023, Amended Notice Of Lodgment Of Exhibits.)

Also on September 8, 2023, Doe filed a motion for an order sealing Exhibits 7, 8, and 19 attached to the declaration of his counsel, Natalie Weatherford (the motion to seal).

 

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

On October 18, 2023, the Court issued its Minute Order directing the clerk to file in the public record the District’s exhibits in support of the District’s motion and directing Doe’s counsel to publicly file redacted versions of Exhibits 7, 8, and 19 submitted in support of Doe’s opposition to the District’s motion. The Court continued the hearing on the motion to seal and ordered Doe’s counsel to appear and show cause why monetary sanctions not to exceed $1,500 should not be imposed. (See Oct. 18, 2023, Minute Order.) In addition, the Court continued the hearing on the District’s motion for additional briefing as requested during oral argument. (Ibid.)

On November 15, 2023, the Court issued its Minute Order granting the motion to seal and discharging the order to show cause.

On November 29, 2023, Doe filed a supplemental opposition to the District’s motion. In support of the supplemental opposition, Doe submits a supplemental statement of additional material facts that Doe contends are in dispute, and a declaration of its counsel attaching supplemental Exhibits 1 through 13.

On January 5, 2024, the District filed its reply to Doe’s supplemental opposition together with objections to the supplemental exhibits submitted by Doe.

Analysis

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 [ also noting that a 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 fails to meet its burden of proof, the Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781 (Saelzler).) 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:

Upon review of the parties’ original papers supporting and opposing the District’s motion, the Court noted that the parties do not dispute or effectively dispute that the District is a public school district which operates elementary, junior high, and high schools in California. (Doe Response Separate Statement (Resp. Sep. Stmt.), UMF No. 1 & evidence cited therein.) Doe attended Dos Pueblos Senior High School from 2009 through 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. (Resp. Sep. Stmt., UMF No. 3 & evidence cited therein.) Doe never spoke with any teachers or administrators about any inappropriate conduct by Sell directed toward Doe 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.)

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

The summary above 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, including additional evidence offered by Doe in support of Doe’s supplemental opposition to the District’s motion.

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

As further discussed above, the Court sustained the demurrer of the District 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 as to the fifth cause of action will be denied as moot.

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 as moot the District’s motion as to the seventh cause of action.

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 sole causes of action alleged against the District in the FAC are 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. 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. 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”].)

Based on the allegations of 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 for 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 retention of an employee and vicarious liability for injuries caused by its 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 as further discussed above, to prevail on the fourth and sixth causes of alleged 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 addition, in cases where there exist statutory grounds for imposing liability on a public entity, the 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.)

In its original moving papers, the District asserts that Doe’s theory of liability arises from the 2012/2013 assault which occurred at the private home of Sell’s mother after Sell was no longer an employee of the District. Because the 2012/2013 assault, which the District characterizes as 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 in connection with that event. The District further contends that, under Education Code section 44807, it is immune from liability for Doe’s injuries because the 2012/2013 assault was unrelated to any school function or activity and occurred while neither Doe nor Sell were under the District’s supervision.

In his original opposition to the District’s motion, Doe asserts that the District’s liability in this matter is not based on any failure by the District to supervise or protect Doe in connection with the 2012/2013 assault. (Opp. at p. 15, ll. 1-3.) Doe also acknowledges that he seeks to hold the District liable for the 2012/2013 assault. (Opp. at p. 13, ll. 18-20.) In his original opposition, Doe states that “although [Doe’s] injury ultimately materialized off campus, [Doe] is asserting that the District’s negligence which permitted Sell to ultimately sexually abuse [Doe] occurred on campus, while [Doe] was a student in the District.” (Opp. at p. 13, ll. 19-21.) 

Doe initially argued that the District failed to discipline or investigate Sell or to 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 argued, Sell was permitted unfettered access to Doe. (Opp. at p. 15, ll. 5-8.) Doe asserted that this unfettered access allowed Sell to “groom” Doe for 2012/2013 assault. (Opp. at p. 14, ll. 7-12; p. 15, ll. 8-10.) For these reasons, Doe argued, the District’s conduct was a “substantial factor” that permitted the 2012/2013 assault to occur. (Opp. at p. 14, ll. 7-12; p. 15, ll. 1-5.)

Doe further argued that negligence by the District which, according to Doe, caused Doe’s off campus harm resulting from the 2012/2013 assault “falls broadly into three categories”: (1) a failure to terminate or report Sell after Sell punched a student while Sell was still a probationary employee; (2) a failure to conduct an adequate investigation of or take disciplinary action against Sell while he was employed with the District; and (3) 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. 14, ll. 14-27; p. 15, ll. 3-9; p. 17, ll. 4-5 & 14-17; p. 18, ll. 20-23.)

The evidence offered by Doe in connection with Doe’s original opposition to the District’s motion included facts relating to the District’s hiring and promotion of Sell, the District’s procedures for terminating employees during the probationary period, the length of Sell’s probationary period with the District, an incident wherein Sell struck a student in the face with a closed fist, and the District’s failure to report the punching incident or to fire Sell for the punching incident (instead permitting Sell to become a permanent District employee). (Opp. Sep. Stmt., AMF Nos. 1 through 21 & evidence cited therein.)

Doe also offered evidence of what Doe describes as “red flag” or grooming behavior by Sell while Sell was employed with the District and Sell’s violations of school policy which included: an “entourage” of students following Sell around; Sell’s sexual remarks and questioning students about their sexual activity; Sell and another minor student being referred to as “butt buddies” and Sell’s “bitch”; rumors of sexual contact between Sell and another minor student; Sell opening the weight room late and on weekends for only 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 and taking students to shopping centers; Sell visiting student’s homes for barbeques or to watch football games; Sell “butt slapping” or “nut tapping” 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.)

Doe also submitted evidence relating to 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 including another coach’s observations and suspicions regarding an inappropriate relationship between Sell and another minor student, the District’s knowledge of Sell’s behavior following another student’s disclosure of stalking and other inappropriate behavior by Sell, and observations of a District employee regarding Sell’s sexual identity issues. (Opp. Sep. Stmt., AMF Nos. 44-48, 50-51, 53-57, 59 & evidence cited therein.)

Doe’s original evidentiary showing also demonstrated that District administrators 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 District’s assistant Principal for investigation. (Opp. Sep. Stmt., AMF Nos. 49, 60 & evidence cited therein.) The evidence also showed that the other student’s family provided the District with copies of a Facebook message sent from Doe’s Facebook account indicating that Sell used Doe’s account to send a message to another minor student. (Id. at AMF Nos. 61, 66 & evidence cited therein.)

Doe’s original evidence further showed that 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.) The District verbally reprimanded but did not fire Sell due to 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 the transfer and visited Doe’s house whether invited or not. (Id. at AMF No. 78 & evidence cited therein.)

Doe also submitted evidence demonstrating that the District had learned of a police investigation which 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 indicating that Sell used Doe to relay messages to another minor student and that there existed an intimate relationship between Sell and Doe. (Id. at AMF Nos. 81, 82 & evidence cited therein.)

The evidence offered by Doe in connection with Doe’s original opposition to the District’s motion established that on March 4, 2011, the District placed Sell on administrative leave. (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 prohibiting Sell from being 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 2012/2013 assault further discussed above, Sell loitered in the school parking lot, followed Doe after Doe had taken senior photos with his friends, and created a fake Facebook account to try to blackmail Doe regarding the 2012/2013 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 submitted the declaration of expert Robert Fraisse, Ph.D in support of the opposition to the District’s 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.)

Based on the manner in which Doe and the District focused their respective papers on the 2012/2013 assault only, the Court noted that public school districts “enjoy certain immunities from actions for negligence.” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 829.) Specifically, under Education Code section 44807, on which the parties focused their moving and opposing papers, “no school district … or employee of such district … 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 … 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 … 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.)

Based on the undisputed evidence offered by the District in support of the District’s motion, the Court noted that the 2012/2013 assault had occurred one and one-half years after Sell’s employment with the District terminated, off the District’s campus, and not during an event or activity sponsored by the District. In their original moving and opposing papers, the parties did not reasonably dispute that 2012/2013 assault did not occur at a time when Doe was or should have been under the direct supervision 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].) Accordingly, with respect to the issues on which the parties initially focused their original moving and opposing arguments, the Court determined that the District met its burden to demonstrate that under Education Code section 44808, it is immune from liability for injuries and damages sustained by Doe resulting from the 2012/2013 assault.

As the District has met its initial burden of production with respect to the 2012/2013 assault, the burden shifted 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 for damages arising from the 2012/2013 assault. (Code Civ. Proc., § 437c, subd. (p)(2).)

In his original opposition, Doe contended that the District knew that Sell had ingratiated himself with other boys and that Doe was one of Sell’s favored students. Therefore, Doe argued, the District reasonably could infer that Sell might have been inappropriate with Doe and was grooming Doe. Doe further asserted that, had the District acted on the information it possessed and either terminated Sell or alerted Doe’s parents, this would have prevented the 2012/2013 assault. Because the District failed to adequately investigate, failed to supervise Doe and Sell while Doe was a student with the District, and allowed Sell to maintain contact with students after Sell resigned, Doe argued, the District’s conduct effectively made Doe a potential victim for abuse by Sell which culminated in the 2012/2013 assault. (See Opp. at p. 6, ll. 17-25; p. 18, ll. 10-19; p. 19, ll. 2-8.)

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].)

The Court noted that while the District cannot escape liability for the 2012/2013 assault “simply because the injury occurred off the school property”, Doe must nonetheless 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 any injury to Doe resulting from the 2012/2013 assault. (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].)

In his original papers opposing the District’s motion, Doe effectively acknowledged that the Court must determine whether any negligence by the District in connection with its duty to supervise Doe and Sell was the proximate cause of or a substantial factor in causing damages sustained by Doe resulting from the 2012/2013 assault. (See, e.g., Opp. at p. 16, ll. 11-17; p. 14, ll. 14-27; p. 15, l. 1- p. 17, l. 5 [arguing that the District’s negligent acts caused Doe’s off-campus harm resulting from the 2012/2013 assault].)
 

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.]” (State Hospitals, supra, 61 Cal.4th 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.)

Viewing the evidence originally presented by the parties in the light most favorable to Doe, the Court determined that Doe had 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 2012/2013 assault. Considering the totality of the evidence offered by the parties in their respective original papers and as further discussed below, the Court determined that the only reasonable conclusion was that there is an absence of causation between the District’s conduct while Sell was an employee and the 2012/2013 assault.

For example, Doe did not present evidence to establish 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 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 presented evidence to establish that 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 did contact Doe, that the District was aware of any inappropriate contact between Sell and Doe during that time period. (See Doe Exh. 10 at p. 209, l. 12 – p. 212, l. 3 & p. 221, l. 18-222, l. 23.)

The evidence also indicated 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 did 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.)

Based on the manner in which the issues were originally presented and addressed by the parties, the Court further determined that Doe had 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 prevent inappropriate sexual conduct of a different nature, or how any such precautions would aid in deterring a sexual assault occurring after Sell resigned. Further, Doe presented no evidence to demonstrate that the qualitatively different act of punching a student had 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 presented no evidence to establish, expressly or by inference, that had the District warned Doe’s parents of any red flags or grooming behavior 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 2012/2013 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].)

In his original opposition, Doe further argued that the District failed to address 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.)

The parties here do not effectively 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. 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].)

“[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 2012/2013 assault, Doe is required to 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, supra, 25 Cal.4th at pp. 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 originally presented by the parties showed that the District cut off any causal connection alleged by Doe when it allowed Sell to resign. Further, the temporal distance between the date of Sell’s resignation and 2012/2013 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 with regard to any negligence by the District and the 2012/2013 assault. Therefore, the evidence did not demonstrate that any breach of duty by the District that occurred before Sell resigned was a proximate cause of the 2012/2013 assault that occurred off-campus long after Sell was no longer under the District’s supervision or control. (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, based on the manner in which the issues and evidence were originally framed and presented by the parties, the undisputed evidence demonstrates that the District’s actions or inactions were not a proximate cause of the 2012/2013 assault.

With its reply papers, the District submitted 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.

During oral argument at the hearing on the District’s motion, Doe indicated that he intended his opposition to be broader, and requested an opportunity to present further briefing. Although the Court initially centered its analysis on the 2012/2013 assault based upon the manner in which the parties focused the issues in their respective moving and opposing papers, the Court permitted the parties to submit further briefing in order to permit a more full and comprehensive discussion of all issues to be determined in connection with the District’s motion.

The Court has reviewed the supplemental additional material facts and supporting evidence offered by Doe which relate, among other things, to Sell’s conduct prior to Sell’s resignation in June 2011 and conduct by the District which Doe contends caused or contributed to the 2012/2013 assault. The Court has also reviewed the additional arguments offered by Doe to support Doe’s contention that the District’s negligence caused or contributed to the 2012/2013 assault.

The additional material facts, evidence, and arguments submitted by Doe do not create a triable issue of fact with regard to whether any negligence by the District that occurred while Sell was employed with the District or while Doe was a student caused or was a proximate cause of or substantial factor in causing the damages suffered by Doe resulting from the 2012/2013 assault. The additional facts, evidence, and arguments offered by Doe also do not change the Court’s analysis with respect to the District’s liability for the 2012/2013 assault.

In the supplemental opposition, Doe also asserts that the 2012/2013 assault is not the sole injury producing event or the only injury Doe suffered as a result of the District’s alleged negligence. Rather, Doe asserts that he also seeks to recover emotional distress damages Doe suffered as a result of the harassment, grooming, and stalking that occurred while Doe was a student of the District and prior to the date Sell resigned from his employment with the District in June 2011.

The evidence offered by Doe to support his contention regarding emotional distress suffered by Doe as a result of harassment and grooming by Sell includes the evidence discussed further above and supplemental additional material facts showing that Sell called and texted Doe nonstop, that Sell sent Doe photographs of Sell’s genitalia, that Sell asked Doe to send Sell photographs of Doe’s genitalia, that Sell asked Doe about Doe’s sexual interests, that Doe and Sell lifted weights while alone together, that Sell gave Doe rides home, that Sell slapped Doe’s butt and “nut tapped” Doe, that Sell used Doe’s Facebook account to contact another student, and that Sell drove around campus looking for Doe with the purpose of obtaining information about an investigation. (See Doe Supp. Mat. Fact Nos. 110, 112, 113, 115 & evidence cited therein.)

Doe asserts that a reasonable trier of fact could conclude that, prior to his resignation from the District, Sell was engaged in a course of harassment and stalking that would cause a reasonable person to suffer emotional distress. Doe also submits evidence that Doe suffered fear and emotional distress as a result of Sell’s conduct while Sell was an employee of the District. (See Doe Decl., ¶¶ 5, 7, 8, 9, 10.)

In its reply to Doe’s supplemental opposition, the District asserts that Doe is attempting to convert the causes of action alleged against the District into a claim for negligent infliction of emotional distress based on events that occurred prior to Sell’s resignation notwithstanding that in the FAC, Doe alleges that the present action is brought pursuant to Code of Civil Procedure section 340.1. The District further contends that Code of Civil Procedure section 340.1 applies only to actions brought for “childhood sexual assault” and not actions for negligent infliction of emotional distress.

In addition, the District argues that the allegations of the FAC disclose that the only incident that gives rise to the present action is the 2012/2013 assault which the District asserts is the only actionable encounter. The District further argues that in his original opposition to the District’s motion and at his deposition, Doe acknowledged that the sole sexual abuse event that gives rise to this action is the 2012/2013 assault.

There are no allegations in the FAC that necessarily limit Doe’s claim against the District to the 2012/2013 assault. For example, Doe alleges that the acts of abuse by Sell against Doe began in 2011. (FAC, ¶¶ 3 & 8.) In addition, a reasonable interpretation of the FAC demonstrates that the acts of abuse alleged in the FAC for which Doe seeks to hold the District liable include conduct that occurred while Sell was still employed with the District. (See, e.g., FAC, ¶¶ 8 [alleging that the incidents occurred before, during, and after school while Sell was Doe’s coach and a school security guard]; 9 [Sell began grooming Doe in the 2011 school year]; 10 [Sell stopped Doe in between classes and messaged Doe to go lift weights in the school weight room]; 43 [Sell engaged in misconduct while at the District which included sexually suggestive remarks, sexual questions, and making sexual demands]; 45 [Sell’s predatory conduct was directed towards Doe]; 60 [Sell sexually harassed and abused Doe on campus].) These examples are not intended to be exhaustive.

Moreover, the term “childhood sexual assault” under Code of Civil Procedure section 340.1, subdivision (c), includes “any act committed against the Plaintiff that occurred when the Plaintiff was under the age of 18 years and that would have been proscribed by” provisions of the Penal Code enumerated under the statute “or any prior laws of this state of similar effect at the time the act was committed.” (Code Civ. Proc., § 340.1, subd. (c); see also Roe v. Doe (2023) 2023 WL 9184651, at *1, fn. 3.) The District has not produced any evidence or information to demonstrate how or why the conduct described by Doe in the FAC, or in Doe’s opposition to the District’s motion, do not constitute childhood sexual assault as that term is defined in Code of Civil Procedure section 340.1.

As the broad allegations of the FAC do not necessarily limit Doe’s claim solely to damages resulting from the 2012/2013 assault, the District bears the burden to show that all material factual claims arising from the FAC with respect to the alleged abuse of Doe by Sell while Sell was still employed with the District are also not in dispute and do not require a trial. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 380.)

The District has not addressed any other pleaded claim including claims of any failure by the District to protect or properly supervise Doe or Sell while Sell was still employed with the District. Therefore, the District has failed to meet its burden to dispose of the entirety of each cause of action alleged against the District including other claims of negligence in connection with the hiring, supervision, or retention of Sell or supervision or protection of Doe while Sell was still employed with the District. (See Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96 [adjudication of facts or issues must completely dispose of a cause of action].)

In addition, the deposition testimony cited by the District does not necessarily demonstrate a clear or unequivocal admission that the only incident for which Doe seeks to hold the District liable is the 2012/2013 assault, nor does Doe’s testimony sufficiently show that Doe has limited his claim to damages sustained as a result of the 2012/2013 assault.

For example, while Doe testified that he was inappropriately touched by Sell during the 2012/2013 assault, this does not show that Doe cannot establish a claim for damages based on other inappropriate conduct by Sell during the time Doe was a student and Sell was employed with the District, apart from the 2012/2013 assault. (See Aguilar, supra, 25 Cal.4th at p. 854-855 [a moving party must “present evidence, and not simply point out that the opposing party does not possess, and cannot reasonably obtain, needed evidence”]; see also Code Civ. Proc., § 437c, subd. (c) [the Court may not grant motion “based on inferences ... if contradicted by other inferences or evidence, which raise a triable issue as to any material fact”].)

Though the Court, for reasons discussed above, initially focused its analysis on the 2012/2013 assault based on the limited manner in which the issues were originally presented by the parties, the parties’ additional briefing demonstrates that Doe also seeks to hold the District liable for damages incurred as a result of Sell’s conduct towards Doe during the time Sell was still employed by the District. In addition, the FAC may be reasonably interpreted to include claims for damages based on Sell’s conduct before Sell resigned from his employment with the District. The evidence presented by the District does not require the Court to conclude, at this stage of the proceedings, that Doe has disclaimed liability for any other inappropriate conduct by Sell occurring prior to Sell’s resignation from his employment with the District.

For all reasons discussed above, the District has failed to meet its burden to demonstrate that Doe cannot establish one or more elements of the causes of action alleged against the District with respect to any other pleaded claim for damages relating to allegedly inappropriate conduct by Sell occurring prior to Sell’s resignation from his employment with the District, and apart from the 2012/2013 assault. Therefore, the Court will deny the District’s motion.

The District’s evidentiary objections:

In support of its original reply to Doe’s original 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 the location of 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 the evidence offered by Doe in connection with Doe’s original opposition to the District’s motion. (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].)

The District also submits objections to evidence submitted by Doe in support of Doe’s supplemental opposition. The Court will overrule the District’s objection nos. 1 through 8, and the District’s objection to Doe’s supplemental exhibit nos. 4, 11, and 12.