WIEDER v. SAN DIEGO UNIFIED SCHOOL DISTRICT No. D056376.

WIEDER, Plaintiff and Appellant, v. SAN DIEGO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.

Court of Appeals of California, Fourth District, Division One.
Filed December 20, 2011.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McDONALD, J.

Defendant San Diego Unified School District (District) appeals a judgment entered after a jury found it liable to plaintiff Wieder for its employees' violation of Penal Code1 section 11166 by not reporting suspected child abuse of Wieder while she was a District student. On appeal, District contends it cannot be held liable for Wieder's harm because: (1) section 11166 does not create a civil cause of action against it or its employees for violation of section 11166; (2) section 11166 does not create a Government Code section 815.6 mandatory duty to report reasonable suspicions of child abuse; and (3) it does not have any direct, mandatory duty under section 11166 to report reasonable suspicions of child abuse. Wieder cross-appeals, contending the trial court erred by granting District's motion for summary adjudication on her causes of action for negligence in not supervising and protecting her, and not properly training its employees to fulfill their section 11166 reporting obligations and for negligent infliction of emotional distress. We conclude the jury properly found District vicariously liable for its employees' negligence per se based on their violation of section 11166 by not reporting their reasonable suspicions that a District teacher was committing acts of child abuse against Wieder. We also conclude Wieder has not sustained her burden to establish reversible error in her cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Wieder filed a complaint against defendants District, John Lee, Elizabeth Laughlin, and unidentified Does alleging causes of action for negligence and failure to discharge mandatory duties (i.e., violation of their statutory duty to report suspected child abuse). In 2008, she filed a first amended complaint alleging causes of action for negligence, failure to discharge mandatory duties (i.e., violation of their statutory duty to report suspected child abuse), sexual abuse, sexual battery, battery, negligent infliction of emotional distress, and intentional infliction of emotional distress.

In October 2008, District filed a motion for summary adjudication of the first and sixth causes of action, arguing Wieder could not establish either direct or vicarious liability against it for negligence or negligent infliction of emotional distress. Wieder opposed the motion. While the motion was pending, the trial court granted Wieder leave to amend her complaint. She filed a second amended complaint alleging causes of action against District for negligence, failure to discharge mandatory duties, and negligent infliction of emotional distress. After considering the parties' supplemental briefing on that operative complaint, the trial court granted District's motion for summary adjudication on Wieder's causes of action for negligence and negligent infliction of emotional distress. The remaining cause of action against District was for failure to discharge mandatory duties of District and its employees under section 11166 to report suspected child abuse of Wieder by Lee, which violation was a substantial factor in causing her harm. Before trial, Lee entered into a settlement with Wieder in the amount of $40,000.

At trial, Wieder presented the testimonies of various percipient witnesses who described Lee's conduct with Wieder while she was a student at District's School of Creative and Performing Arts (SCPA). Wieder testified that during 10th grade she began a romantic and sexual relationship with Lee, who had been her SCPA physics teacher in ninth grade. During 10th grade when Wieder was 15 years old, Lee was her after-school martial arts club instructor and often gave her a ride home after class. Lee drove a truck with a camper shell on its back. After sitting in the right-side passenger's seat the first few trips home, Wieder began sitting in the middle seat. Wieder had a crush on Lee. On subsequent trips, Lee began putting his arm around Wieder. Lee eventually put his arm under her shirt. She and Lee began spending more time together, talking and sitting on benches outside his classroom. During the second half of Wieder's sophomore year, Lee parked his truck while driving her home and kissed her. Soon after Wieder turned 16 years old, Lee, then 36 years old, initiated a sexual relationship with her. During her junior and senior years, they had sexual intercourse one to three times per week. Most of those times, Lee drove her to a Mission Bay parking lot to have sex with her in his truck. During that period, Wieder spent most of her free time at school in Lee's classroom. After Wieder graduated from SCPA and went to college, Lee told her mother he and Wieder had a romantic and sexual relationship since her sophomore year. Their relationship ended soon thereafter.

Andrew Hinds, an SCPA teacher, testified he saw Lee and Wieder hugging, grappling, stroking, and petting. He saw them hug five to 10 times. He saw Wieder rub her fingers on the back of Lee's neck. He saw Wieder alone with Lee in his truck. During the time she was one of Hinds's students, Wieder often spoke to him and others about Lee. In November 2005, Hinds began to suspect the relationship between Lee and Wieder was possibly sexual in nature. Matt Stoever, another SPCA teacher, told Hinds that it appeared—and he had heard—that Lee and Wieder were having a sexual relationship, and he suspected it was true. Stoever also told Hinds that a substitute teacher told him Wieder had confessed to a friend of the substitute teacher the nature of her (Wieder's) relationship with Lee. Hinds ultimately wrote a letter to Laughlin, SCPA's principal, informing her of what he had seen and heard about Lee and Wieder.

Andrew Barbolla, an SCPA teacher, testified he heard from students that they believed Wieder had a "crush" on Lee and believed Lee and Wieder were "maybe a little too close." He heard Lee and Wieder sat too close when they ate together. He frequently saw Wieder eating her lunch with Lee in his (Lee's) classroom. Once, he saw Lee and Wieder sitting so closely that their hips were touching. He also saw Wieder in Lee's truck, sitting in the middle seat next to Lee. On more than one occasion, Barbolla saw Lee and Wieder hugging while on campus. He saw Wieder run and jump up on Lee, straddling him with her legs around his waist. Barbolla was suspicious about the relationship between Lee and Wieder and confronted Lee about it. Barbolla also spoke with Stoever about his suspicion regarding the inappropriate relationship between Lee and Wieder. Stoever told him he also had the same suspicion. Barbolla told Stoever it was "only a matter of time until [Lee] gets popped [i.e., gets caught]." Barbolla also told Laughlin he was suspicious that Lee and Wieder were having an inappropriate relationship. Laughlin replied that she needed to do something about Lee. Barbolla never reported his suspicions to Child Protective Services (CPS) or the police.

Matthew Stoever testified he wrote a memorandum detailing what he had heard and seen regarding Lee and Wieder. During the subsequent investigation, he gave police a copy of that memorandum. His memorandum stated he saw Lee "goose" Wieder from behind.

Hortencia Garcia-Rubio, an SCPA teacher, testified that after Daniel Hagos, an SCPA student, expressed to her his concerns about Lee and Wieder, she confronted Lee about it and reported her concerns to Laughlin. Hagos testified at trial regarding his suspicions about Lee and Wieder. He saw them in extended hugs that were beyond friendly hugs. He saw them embracing and holding hands. He told Garcia-Rubio about his suspicions. He also testified another SPCA teacher, Susan Strasser, was within five feet of Lee and Wieder when they engaged in that inappropriate behavior.

Priscilla Pearson, an SCPA security guard, testified she saw Lee and Wieder leave the campus together in Lee's truck, sitting side-by-side. Subsequently, she saw Lee and Wieder alone in his classroom. Lee was seated and Wieder was standing behind him, "rubbing" her fingers through his hair. Pearson immediately reported her observation to SCPA's vice-principal, Emma Martinez, and told her she needed to go to Lee's classroom. Pearson believed the behavior she witnessed was an inappropriate display of affection.

Martinez testified Pearson told her to go to Lee's classroom to see something. When she did, she saw Wieder's arm around Lee's neck and her head on his chest. Wieder was affectionately touching or playing with Lee's ear or collar. There were other students nearby. Martinez asked Lee to step away from the group and then told him she thought Wieder's behavior was inappropriate and he should stop it. Later that day, Martinez reported to Laughlin her observations and discussion with Lee. Martinez later wrote a letter to Lee describing her observations of the behavior and stating she was "shocked" by what she had seen.

Laughlin testified and denied Barbolla had reported to her his concerns about Lee and Wieder. She also denied she told Hinds she was concerned about Lee. She also denied Garcia-Rubio had reported to her Hagos's concerns about Lee and Wieder. None of the witnesses testified they reported their suspicions regarding Lee and Wieder to CPS or police.

After presentation of the parties' evidence, the trial court instructed the jury on Wieder's theory of District's liability:

"Wieder claims that she was harmed because [District], through its employees and agents, violated Penal Code section 11166, which states: A mandated reporter shall make a report to an agency specified in section 11165.9 whenever the mandated reporter in his or her professional capacity or within the scope of his or her employment has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. "To establish this claim, Ms. Wieder must prove all of the following: "1. That [District's] employees or agents violated Penal Code section 11166; "2. That Ms. Wieder was harmed; and "3. That [District's] agents' and employees' failure to perform their duty was a substantial factor in causing Wieder's harm. "[District], however, is not responsible for Ms. Wieder's harm if it proves that its agents or employees made reasonable efforts to perform their duties under Penal Code section 11166. "Reasonable suspicion means it is objectively reasonable for a person to entertain a suspicion based upon facts that would cause a reasonable person in a like position drawing, when appropriate, on his or her training and/or experience to suspect child abuse or neglect. . . . "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. "A public entity is responsible for the harm caused by the wrongful conduct of its agents or employees while acting within the scope of his or her employment or agency. John Lee was not acting in the course and scope of his employment as a teacher with the [District]." (Italics added.)

During deliberations, the jury sent the following note to the court:

"If at least nine jurors agree that at least one [District] employee had a reasonable suspicion of child abuse while [Wieder] was a student at SCPA, do all nine jurors have to agree on whichspecific [District] employee had a [reasonable] suspicion, or can the nine jurors disagree on which specific [District] employee had a reasonable suspicion, in order to answer `yes' to question one?" (Italics added.)

The court responded to the note, stating: "At least [nine] or more jurors must agree that a particular employee had a reasonable suspicion of child abuse or neglect." (Italics added.)

The jury returned a verdict finding District had reasonable suspicion of child abuse while Wieder was an SCPA student, that it failed to report reasonably suspected child abuse to CPS, police, or the sheriff's department, and that its failure to report child abuse was a substantial factor in causing harm to Wieder. The jury calculated Wieder's economic damages were $250,000 and noneconomic damages were $1,000,000. It apportioned 40 percent of fault for Wieder's harm to District and the remaining 60 percent to Lee. Based on that verdict, the trial court entered judgment against District for the total amount of damages of $650,000.

District timely filed a notice of appeal challenging the judgment. Wieder timely filed a notice of cross-appeal also challenging the judgment.

DISCUSSION

DISTRICT'S APPEAL

I

Section 11166 and Wieder's Second Cause of Action

District contends it cannot be held liable for Wieder's harm because section 11166 does not create a civil cause of action against it or its employees.

A

The Child Abuse and Neglect Reporting Act (CANRA) (§ 11164 et seq.) was enacted to protect children from abuse and neglect. (§ 11164.) As used in CANRA, "child abuse" includes "physical injury or death inflicted by other than accidental means upon a child by another person" and "sexual abuse as defined in Section 11165.1." (§ 11165.6.) Section 11165.1 defines "sexual abuse" as sexual assault or sexual exploitation. "Sexual assault" is defined as conduct in violation of certain Penal Code provisions, including statutory rape, lewd act on a child, and child molestation provisions. (§ 11165.1, subd. (a).) Section 11165.1, subdivision (b), provides:

"Conduct described as `sexual assault' includes, but is not limited to, all of the following: "(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person . . . . [¶]. . . [¶] "(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose. . . ."

CANRA requires certain persons, known as "mandated reporters," to report to CPS, police, or other law enforcement agencies known or reasonably suspected child abuse or neglect. (§ 11166.) In pertinent part, section 11166 provides: "(a) . . . a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." For purposes of CANRA, "reasonable suspicion" means "that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. . . ." (§ 11166, subd. (a)(1).) Violation by a mandated reporter of section 11166's duty to report child abuse or neglect is a criminal misdemeanor offense. (§ 11166, subd. (c).)2 Furthermore, "[t]he reporting duties under [section 11166] are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. . . ." (§ 11166, subd. (i)(1).) CANRA's definition of a "mandated reporter" includes a teacher, a classified employee of any public school, an "administrative officer or supervisor of child welfare and attendance, or a certificated pupil personnel employee of any public or private school," an "administrator or employee of a public or private organization whose duties require direct contact [with] and supervision of children," and an employee of a school district police or security department. (§ 11165.7, subd. (a).)

B

In her second cause of action against District for its employees' violation of CANRA's mandatory duty to report reasonably suspected child abuse, Wieder, in effect, alleged a negligence per se cause of action based on the employees' violation of a criminal statute (i.e., § 11166). There is persuasive case authority supporting a conclusion that a civil cause of action may exist based on a violation of section 11166. In Landeros v. Flood (1976) 17 Cal.3d 399, the California Supreme Court recognized that a negligence per se cause of action may be alleged against a physician (i.e., a mandated reporter) for a violation of his or her duty to report child abuse pursuant to one of section 11166's predecessor statutes. (Landeros, at pp. 407, 413-415.) The court concluded violation of that statutory reporting duty could support a presumption of negligence pursuant to Evidence Code section 669.3 (Landeros v. Flood, 17 Cal.3d at pp. 413-415.)

Similarly, in Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, the court concluded a negligence per se cause of action may be alleged against a city and one of its police officers based on the officer's violation of his or her duty under section 11166 to investigate a report of child abuse and to report his or her reasonable suspicion a child has been abused. (Alejo, at pp. 1184-1190; cf. Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-1087 [negligence per se cause of action for violation of section 11166 could not be alleged by a child not in the custodial care of another school district's employee who had previously failed to report suspected child abuse against another child; CANRA was intended to protect only those children in the custodial care of mandated reporters].)

Citing Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, District argues that because neither CANRA's express language nor its legislative history shows any legislative intent to create a civil cause of action for violation of section 11166, Wieder cannot allege a civil cause of action against it or its employees based on violation of section 11166. In a case involving a Labor Code statute prohibiting employers from taking employees' gratuities, Lu stated the following general principles:

"A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has `manifested an intent to create such a private cause of action' under the statute. [Citations.] Such legislative intent, if any, is revealed through the language of the statute and its legislative history. [Citation.] [¶] A statute may contain `"clear, understandable, unmistakable terms,"' which strongly and directly indicate that the Legislature intended to create a private cause of action. [Citation.] . . . If, however, a statute does not contain such obvious language, resort to its legislative history is next in order." (Lu v. Hawaiian Gardens Casino, Inc., supra, 50 Cal.4th at pp. 596-597, fn. omitted.)

We are not persuaded that Lu's principles preclude Wieder from asserting a civil cause of action against District or its employees in this case. Lu is both factually and legally inapposite to this case. Lu involved a violation of the Labor Code and not a violation of the Penal Code as in this case. More importantly, Lu involved a cause of action purportedly created by that Labor Code provision. In this case, Wieder apparently does not assert that section 11166 directly created a cause of action against District or its employees. Rather, she alleged, in effect, that the violation of section 11166's mandatory reporting duty by District's employees supported a presumption that they were negligent (i.e., a negligence per se cause of action). Accordingly, Wieder's cause of action was fundamentally based on negligence principles under common law and Civil Code section 1714,4 and not section 11166. In contrast, Lu did not involve an "indirect" cause of action, such as a negligence per se cause of action based on violation of a statute. Therefore, we need not address District's assertion that section 11166 did not directly create a civil cause of action and need not consider its statutory language and legislative history. (Cf. Lu v. Hawaiian Gardens Casino, Inc., supra, 50 Cal.4th at pp. 596-597; Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 141-145.)

Based on our consideration of the above authorities, we reject District's contention it cannot be held liable for Wieder's harm because section 11166 does not create a civil cause of action against it or its employees. As we discuss in more detail below, we conclude Wieder can allege a negligence per se cause of action against District's employees for violation of their section 11166 duty to report reasonably suspected child abuse committed against her and, based thereon, allege District is vicariously liable for its employees' negligence per se. (Landeros v. Flood, supra, 17 Cal.3d at pp. 407, 413-415; Alejo v. City of Alhambra, supra, 75 Cal.App.4th at pp. 1184-1190.)

II

Section 11166's Mandatory Duty to Report

District contends it cannot be held liable to Wieder because section 11166 does not create a Government Code section 815.6 mandatory duty for mandated reporters to report reasonable suspicions of child abuse. It asserts the section 11166 duty to report is discretionary and not mandatory.

A

District asserts Wieder's second cause of action was based on its liability under Government Code section 815.6 for violation of a mandatory duty. Based on that premise, District argues that because the section 11166 duty to report is only discretionary, and not mandatory, within the meaning of Government Code section 815.6, it cannot be held liable to Wieder.

However, the premise of District's argument is flawed. Although Wieder's second cause of action is ostensibly titled "FAILURE TO DISCHARGE MANDATORY DUTIES," it is the substance of its allegations, and not its label, that controls the nature of the cause of action. The second cause of action alleged District and its employees violated their mandatory duty (i.e., per § 11166) to report suspected child abuse of Wieder by Lee, which violation was a substantial factor in causing her harm.5 However, that cause of action, in effect, alleged a negligence per se cause of action based on the violation by District's employees of their section 11166 duty to report reasonably suspected child abuse. Furthermore, by alleging District was liable for its employees' violation of that section 11166 duty to report, Wieder, in effect, alleged District was vicariously liable for their negligence per se in violating their section 11166 duty.

"Under the California Tort Claims Act (Gov. Code, § 810 et seq.), `a public entity is not liable for injury arising from an act or omission except as provided by statute. (Gov. Code, § 815, subd. (a); [citation].)' [Citation.] Thus, in California, `all government tort liability must be based on statute [citation].' [Citation.] . . . [¶] Section 815.2, subdivision (a), is one such statute." (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, fn. omitted.) Under Government Code section 815.2, a government entity generally may be held vicariously liable under the doctrine of respondeat superior for torts committed by its employees within the scope of their employment. Government Code section 815.2 provides:

"(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. "(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

Government Code section 820, subdivision (a), provides: "Except as otherwise provided by statute (including [Government Code] Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person."6 Accordingly, a public employee generally is liable the same as a private person is for injuries caused by his or her negligence per se, and a government entity is vicariously liable for its public employee's negligence per se. (Gov. Code, §§ 820, subd. (a), 815.2.) School districts have been held vicariously liable for injuries caused by the negligence of their employees. (Hoff v. Vacaville Unified School District, supra, 19 Cal.4th at pp. 932-933; Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 235.) Although Wieder's second cause of action did not expressly cite those Government Code provisions (i.e., Gov. Code, §§ 820, subd. (a), 815.2), Wieder's theory of District's vicarious liability based on its employees' negligence per se was implicit within the factual and legal allegations of her second cause of action.

Contrary to District's assertion, Wieder's second cause of action against it was not based on Government Code section 815.6. That statute provides:

"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

Wieder's second cause of action did not allege, either expressly or implicitly, that District was liable pursuant to Government Code section 815.6. The second amended complaint does not contain any express reference to Government Code section 815.6. Furthermore, although Wieder's second cause of action does not contain any reference to either Government Code sections 815.2 or 815.6, its allegations, in effect, assert District is vicariously liable for its employees' negligence per se. Therefore, it is implicit within the second cause of action that Wieder alleged District's liability is based on Government Code section 815.2 and not Government Code section 815.6. This conclusion is supported by the jury instructions given by the trial court in which the court instructed the jury on Wieder's theory of District's vicarious liability in pertinent part:

"Wieder claims that she was harmed because [District], through its employees and agents, violated Penal Code section 11166 . . . . "To establish this claim, Ms. Wieder must prove all of the following: "1. That [District's] employees or agents violated Penal Code section 11166; "2. That Ms. Wieder was harmed; and "3. That [District's] agents' and employees' failure to perform their duty was a substantial factor in causing Wieder's harm. "[District], however, is not responsible for Ms. Wieder's harm if it proves that its agents or employees made reasonable efforts to perform their duties under Penal Code section 11166. [¶] . . . [¶] "A public entity is responsible for the harm caused by the wrongful conduct of its agents or employees while acting within the scope of his or her employment or agency. . . ."7 (Italics added.)

We reject District's assertion that it was held liable on Wieder's second cause of action under Government Code section 815.6 for violating its own mandatory duty.

B

In any event, we conclude the section 11166 duty to report reasonably suspected child abuse or neglect is a mandatory, not discretionary, duty. The individuals required by CANRA to report reasonably suspected child abuse or neglect are statutorily designated or described as "mandatory reporters," showing their duty to report is mandatory and not discretionary. (§ 11165.7, subd. (a).) Furthermore, section 11166 states that "a mandated reporter shall make a report" to CPS, police, or other law enforcement agency of reasonably suspected child abuse or neglect. (§ 11166, subd. (a), italics added.) District does not persuade us that section 11166's use of the term "shall" was not intended to have its ordinary meaning that the required action is mandatory. District does not cite anything in CANRA or its legislative history showing section 11166's duty to report was intended to be discretionary, and not mandatory, for mandated reporters. Furthermore, the fact that CANRA makes a violation of the section 11166 duty a misdemeanor criminal offense shows the Legislature intended the mandated reporters' duty to report to be mandatory and not discretionary.

Contrary to District's argument, mandated reporters do not exercise discretion in deciding whether to report reasonably suspected child abuse or neglect. Rather, mandated reporters must apply an objective standard in determining whether there is reasonable suspicion a child has been abused or neglected. Section 11166 provides, in pertinent part, that "reasonable suspicion" means "it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. . . ." (§ 11166, subd. (a)(1).) In determining whether to report suspected child abuse or neglect, a mandated reporter does not apply any personal discretion, but must instead apply an objective standard. If that objective standard is met, the mandated reporter is required to report the reasonably suspected child abuse or neglect. (§ 11166.) Therefore, the duty under section 11166 of District's employees to report reasonably suspected child abuse is mandatory and not discretionary.

III

District's Lack of Direct Duty Under Section 11166

District also contends it cannot be held liable to Wieder for violation of a Government Code section 815.6 mandatory duty because it does not have any direct, mandatory duty under section 11166 to report reasonable suspicions of child abuse. However, as discussed in part II(A) above, Wieder's second cause of action alleged against District was, in effect, for Government Code section 815.2 vicarious liability for its employees' negligence per se based on their violation of their section 11166 duty to report reasonably suspected child abuse. The second cause of action did not allege District was liable under Government Code section 815.6 for its own failure, as a public entity, to discharge a mandatory duty imposed on it by section 11166 or another statute. Although District appears to correctly argue section 11166 imposes a duty to report only on individuals who are "mandated reporters" under section 11165.7 and not on public entities (e.g., District), that argument does not establish it cannot be held vicariously liable for its employees' negligence per se based on their violation of their section 11166 duty to report reasonably suspected child abuse. District does not persuade us the judgment against it must be reversed.

WIEDER'S CROSS-APPEAL

IV

Summary Adjudication of Two Causes of Action

In her cross-appeal, Wieder contends the trial court erred in granting District's motion for summary adjudication of her causes of action for negligence in not supervising and protecting her and not properly training its employees to fulfill their section 11166 reporting obligations, and for negligent infliction of emotional distress.

A

Wieder's first amended complaint's first cause of action for negligence alleged that District, Laughlin, and the 10 Doe defendants owed her and other SCPA students a duty to take reasonable steps to protect them from sexual exploitation by teachers and others, and those defendants did not take reasonable steps to protect her from sexual exploitation by Lee. That cause of action also alleged District, Laughlin, and the Doe defendants did not provide adequate training, supervision, and reporting procedures to minimize the threat of sexual exploitation of SCPA students by teachers. Wieder alleged those defendants acted negligently and their negligence was a substantial factor in causing her harm. Her sixth cause of action for negligent infliction of emotional distress was based on the negligence of the defendants alleged in her first cause of action.

District filed a motion for summary adjudication of the first and sixth causes of action in her first amended complaint, arguing Wieder could not establish either direct or vicarious liability against it for negligence or negligent infliction of emotional distress. District did not move for summary adjudication of Wieder's second cause of action. Wieder opposed District's motion. She argued there were triable issues of material fact whether District was negligent in hiring, supervising, and/or training its teachers and other employees.

With District's summary adjudication motion pending, the trial court issued a tentative ruling granting that motion, but then granted Wieder leave to amend her complaint before it would issue a final decision. Wieder filed a second amended complaint alleging causes of action against District for negligence (first cause of action), failure to discharge mandatory duties (second cause of action), and negligent infliction of emotional distress (fifth cause of action). After considering the parties' supplemental briefing on that operative complaint, the trial court granted District's motion for summary adjudication of Wieder's causes of action for negligence and negligent infliction of emotional distress.

The only cause of action presented to the jury at trial was Wieder's second cause of action against District for vicarious liability for its employees' negligence per se based on their violation of the section 11166 mandatory duty to report reasonably suspected child abuse of Wieder by Lee. The jury returned a verdict finding District liable based on that cause of action. The jury calculated Wieder's economic damages were $250,000 and noneconomic damages were $1,000,000. It apportioned 40 percent of fault for Wieder's harm to District and the remaining 60 percent to Lee. Based on that verdict, the trial court entered judgment against District for the total amount of damages of $650,000.

B

Code of Civil Procedure section 437c, subdivision (f)(1), provides in pertinent part: "A party may move for summary adjudication as to one or more causes of action within an action . . . if that party contends that the cause of action has no merit . . . or that one or more defendants . . . did not owe a duty to the plaintiff . . . ." "Motions for summary adjudication are procedurally identical to motions for summary judgment [citation], and our review of rulings on those motions is de novo [citation]. Summary adjudication is warranted only if the motion completely disposes of a cause of action . . . . [Citation.] The motion 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 a judgment as a matter of law." (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) For purposes of this opinion, we need not set forth herein the specific standards for deciding motions for summary judgment or summary adjudication. For a discussion of those standards, refer to our opinion in Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1320-1322.)

C

Wieder asserts the trial court erred by granting District's motion for summary adjudication because District did not show there were no triable issues of material fact regarding her negligence cause of action and that there was no merit to that cause of action. Wieder argues District can be held liable directly for its own negligence in not adequately supervising and training its employees and indirectly, or vicariously, for its employees' negligence in not adequately supervising and protecting its students (e.g., Wieder).

There is a strong argument District and its administrators, teachers, and other employees have a special relationship with its students that would support a conclusion they owe a legal duty of reasonable care to those students to supervise them and protect them from harm, and a breach of that duty (i.e., negligence) could support a finding District is at least vicariously liable (Gov. Code, §§ 820, subd. (a), 815.2), and possibly even directly liable, for harm caused by that negligence. (See, e.g., J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139-143; Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 909; M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517-525 [school district owed student an affirmative duty of care to supervise student and take all reasonable steps to protect student from assault on campus]; Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855 ["claims against school districts premised on their own direct negligence in hiring and supervising teachers may be pursued"]; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 453 [school district may be liable for "its own direct negligence in hiring and supervising the teacher"]; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-1462 [individual school employees responsible for supervising a student had a special relationship with that student on which a duty of care may be founded]; Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 715 ["a special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students"]; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 804 ["[t]he special relationship doctrine may serve as the basis for establishing negligence and liability on the part of a school district for breach of the long-established duty of schools to supervise students in their charge and protect them against harm from others on school premises during the school day"]; Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 515 [school district had duty of care to supervise student while on school premises]; Dailey v. Los Angeles Unified School Dist., supra, 2 Cal.3d at p. 747 [lack of or ineffective supervision of students may constitute negligence by employees responsible for supervision and school district may be held be vicariously liable for that negligence]; Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600 [school district has duty to supervise students while on school grounds]; Prosser & Keeton on Torts (5th ed. 1984), § 56, p. 383, fn. 11 & cases cited therein; Rest.2d Torts (1965) §§ 315, 320, com. a.; cf. de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249 [county had no vicarious liability for murder committed by employee because employee's coworkers did not have a special relationship with or otherwise owe a duty of care to the victim].)8

However, we need not, and do not, address the merits of Wieder's argument that the trial court erred in granting District's motion for summary adjudication on the causes of action for negligence and negligent infliction of emotional distress because she has not carried her burden on appeal to show the purported error was prejudicial and requires reversal of the judgment. "The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice." (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; see also Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945.)

Article VI, section 13, of the California Constitution provides: "No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Furthermore, Code of Civil Procedure section 475 provides in pertinent part: "No judgment . . . shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." (Italics added.) Accordingly, we generally can reverse a judgment only if we conclude "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) Furthermore, prejudice "must appear affirmatively upon the court's examination of the entire record." (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Because prejudice is not presumed, "the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred." (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)

"But our duty to examine the entire cause [for reversible error] arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his [or her] brief exactly how the error cause a miscarriage of justice. ([Citations]; Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77 [106 P.2d 60] ["[w]here any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there"].)" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Ibid.) We do not "act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial." (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)

We conclude Wieder has waived or forfeited her challenge to the trial court's summary adjudication order by not presenting any substantive legal argument or analysis on the issue of whether the purported error was prejudicial. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived"]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) The California Supreme Court stated: "`[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]'" (People v. Stanley (1995) 10 Cal.4th 764, 793.) In this case, Wieder's cross-appellant briefs present substantive legal argument and analysis only on the issue of whether the trial court erred in granting District's motion for summary adjudication. Her briefs do not argue, or present any substantive legal analysis, on the issue of whether that purported error was prejudicial and requires reversal of the judgment. As a result, Wieder waived or forfeited her contention that the judgment must be reversed because the trial court committed prejudicial error in granting District's motion for summary adjudication. (In re Marriage of Falcone & Fyke, at p. 830; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [waiver for failure to present any intelligible legal argument]; Hoffman Street, LLC v. City of West Hollywood (2009) 179 Cal.App.4th 754, 773 [appellant did not address merits and failed to show alleged error was prejudicial]; In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337 [appellant failed to cite anything in record showing error was prejudicial]; Paterno v. State of California, supra, 74 Cal.App.4th at p. 106; Cucinella v. Weston Biscuit Co., supra, 42 Cal.2d at p. 82; Pool v. City of Oakland, supra, 42 Cal.3d at p. 1069; County of Los Angeles v. Nobel Ins. Co., supra, 84 Cal.App.4th at p. 945; Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833 [burden is on appellant to show miscarriage of justice]; Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 963 ["While Century asserts this error was prejudicial, it fails to make any argument showing why that is so. As stated, we cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice."].)

Assuming arguendo Wieder did not waive or forfeit the argument that the purported error was prejudicial, we nevertheless conclude she has not carried her burden on appeal to show prejudicial error (i.e., that it is reasonably probable she would have obtained a more favorable result had the error not occurred). (People v. Watson, supra, 46 Cal.2d at p. 836.) We conclude, based on our review of the record, it is not reasonably probable Wieder would have obtained a more favorable verdict had the trial court denied the motion for summary adjudication and, as a result, the jury would have been presented with her causes of action for negligence and negligent infliction of emotional distress. At trial, Wieder presented extensive evidence on her "primary right" claim for personal injury caused by the negligence of District's employees. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106 [no prejudicial error for instructing jury only on negligence theory and not on nuisance theory because both theories of liability were predicated on the same primary right and operative facts]; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-575 [no prejudicial error for failing to instruct jury on appellant's "central theory" of case].) Although the jury was specifically instructed on the particular theory of negligence per se based on District's employees' violation of section 11166 and District's resulting vicarious liability, there is nothing in the record showing Wieder would have obtained a more favorable verdict had the jury also been instructed on her alternative theories of negligence based on District's and/or its employees' failure to supervise and protect her and failure to train employees on their section 11166 duty to report, and negligent infliction of emotional distress.

The jury returned a verdict in Wieder's favor finding District liable for a portion of her total damages. The jury calculated Wieder's total damages to be $1,250,000. There is nothing in the record to suggest the jury would have found Wieder suffered greater damages had it been instructed on her alternative theories of liability. Furthermore, there is nothing in the record to suggest the jury would have changed its apportionment of fault of 60 percent to Lee and 40 percent to District and attributed any greater proportion of fault to District. Therefore, it is likely the jury would have reached the same ultimate result had it been instructed on Wieder's alternative theories of liability. Because there is nothing in the record showing it is reasonably probable Wieder would have obtained a more favorable result had the trial court not granted District's motion for summary adjudication and, instead, instructed the jury on Wieder's alternative theories of negligence and negligent infliction of emotional distress, we conclude the purported error was not prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.) Alternatively stated, based on our review of the entire record, we conclude "the error complained of [did not] result[] in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Therefore, the purported error does not require reversal of the judgment.9

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

HUFFMAN, Acting P. J. and O'ROURKE, J., concurs.

FootNotes


1. All statutory references are to the Penal Code unless otherwise specified.
2. Section 11166, subdivision (c), provides: "Any mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine. . . ."
3. Evidence Code section 669 provides: "(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. [¶] (b) This presumption may be rebutted by proof that: [¶] (1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law . . . ."
4. Civil Code section 1714, subdivision (a), provides: "Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . ." (See also (2011) , 771 [general legal duty of care]; (2001) , 716 [same].)
5. The second cause of action incorporated all allegations previously alleged in the Second Amended Complaint and then further alleged: "39. At all relevant times, Penal Code Sections 11164-11174.3, imposed a mandatory duty upon [District], [Laughlin], employees of [District], and Does 1-10, inclusive, to report suspected child abuse or neglect, including any suspicion by any person that [Lee] was engaged in an inappropriate intimate relationship with [Wieder]. [¶] . . . [¶] 41. [District] and its employee, [Laughlin], and Does 1-10, inclusive, failed to report their suspicions regarding [Lee's] relationship with [Wieder]. [¶] . . . [¶] 43. [District] and its employees, [Laughlin], and Does 1-10's failure to discharge those mandatory duties was a substantial factor in causing [Wieder's] harm. [¶] 44. As a result of [District] and its employees, [Laughlin], and Does 1-10's failure to discharge those mandatory duties, [Wieder] has suffered, and continues to suffer, economic, physical and personal injuries and severe emotional distress. In addition, [Wieder] has incurred, and will continue to incur, expenses for counseling and treatment, all in an amount to be proven at the time of trial."
6. Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
7. Although the court's instruction appears on its face to be based on CACI No. 423, which sets forth a public entity's liability under Government Code section 815.6 for not performing a mandatory duty, the modifications to that instruction show that the instruction given focused on the alleged violation of section 11166 by District's and not District itself. Furthermore, the court additionally instructed that a public entity (e.g., District) is responsible for the harm caused by the wrongful conduct of its employees acting within the scope of their employment. The court instructed the jury on Wieder's theory that District was vicariously liable for its employees' negligence per se based on their violation of section 11166. The court did instruct on any liability of District under Government Code section 815.6 for its own violation of section 11166.
8. We note the California Supreme Court may provide some clarification on a school district's direct or vicarious liability for injury to a student in a case currently pending before it. (See (2010) , review granted February 23, 2011, S188982.)
9. Although Wieder does not discuss it, we note the reversible per se standard for error in granting a motion for generally does not apply to an error in granting a motion for summary adjudication because the appellant is not deprived of a fair hearing (i.e., trial). ( 8 Cal.4th at pp. 574-575, 579 [no "structural" defect in the trial mechanism requiring automatic reversal for erroneous instructional omission or preclusion of a claim if appellant was permitted to present evidence, cross-examine witnesses, and present argument before a fairly selected jury that rendered an honest verdict]; (2003) , 1248-1253 [applying Code Civ. Proc., § 475 (or ) standard of prejudice to trial court's error in refusing to instruct on negligence per se]; cf. (2006) , 947 [erroneous granting of motion is reversible per se because "such an error denies a party of its right to a jury trial."].)

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