In Sruouy v. San Diego Unified School Dist., published February 24, 2022, the Fourth District Court of Appeal, Division 1 affirmed dismissal after demurrer of a former high school student's lawsuit against a school district seeking indemnity for defense costs. During a high school football game, the plaintiff, then still a minor, blocked an opposing player who then fell against a referee's legs, injuring the referee. The referee sued the school district and the plaintiff. The plaintiff initially thought the school was defending him, and a default was entered against him. When he discovered that the school's attorney was not defending him and that he was in default, the student obtained counsel and got the default set aside. Eventually the referee dismissed the student from the case for a waiver of costs. The plaintiff then presented a claim to the school district for his attorney fees. After the claim was denied, the plaintiff, who had graduated, sued the district for express indemnity, equitable indemnity, and implied indemnity. The student alleged that under Government Code section 815.6, the school district owed the student a mandatory duty to defend him in the lawsuit. He alleged that the mandatory duty was created by Education Code section 44804 (which imposes liability on a school district for injury occurring off-campus in a school-sponsored activity if the injury occurs through failure to exercise reasonable care); article IX, section 5 of the California Constitution (which provides for free schooling); and title 5, section 350 of the California Code of Regulations (which provides a student shall not be required to pay any fee, deposit, or other charge not specifically authorized by law). The trial court sustained the district's demurrer without leave to amend, ruling that the plaintiff had failed to plead a mandatory duty to protect or indemnify him from incurring attorney fees.
The appellate court agreed. To create a mandatory duty under Government Code section 815.6, an enactment must be obligatory, rather than discretionary; and the duty must be designed to protect against the particular kind of injury the plaintiff suffered. None of the enactments cited met those tests. The district was not required to provide the plaintiff with a legal defense as part of its constitutional free school guarantee. The constitution guarantees free educational activities, and the lawsuit was not an educational activity. Further, the free schooling provision pertains to expenses peculiar to education. Representation in a lawsuit is not peculiar to education. The argument that the cost of retaining a lawyer was a charge for participating in the football team, in violation of section 350's regulation, failed, because the regulation is based on the constitution's free schooling provision; and because the cost of defense was incurred after the plaintiff graduated and was no longer on the team. Education Code section 44808 cannot be interpreted to require schools to defend students whenever they are sued for causing injuries while under supervised school activities, because that would make school districts insurers of student safety by requiring them to defend students even absent any fault by the district. Nothing about the history or interpretations of section 44808 indicate it was intended to broaden the scope of school district liability at all, much less to this extent. Further, while Education Code section 32221 requires school boards to provide medical insurance for school athletes, providing any other insurance is discretionary rather than mandatory. Finally, the plaintiff's argument on appeal that the California Constitution's equal protection clause provided a ground for recovery failed, because monetary damages cannot be recovered under that provision.