Government Liability Update

School Personnel Can Be Found Negligent for Failing to Comply with District and School Anti-Bullying Policies

In E.I. v. El Segundo Unified School District, published June 13, 2025, the Second District Court of Appeal, Division 8 affirmed a jury verdict for the plaintiff.  The plaintiff who was a middle-school student who was subjected to extensive online and in-person bullying by two classmates.  The plaintiff, her parents, and schoolmates repeatedly reported the bullying to school personnel.  The personnel failed to respond as directed in the District's Comprehensive Safety Plan and the school's own safety plan.  The safety plans were modeled on the Education Code's provisions addressing school safety.  At one point, the district called the police when one of the bullies created a "petition to end [plaintiff's] life and multiple students signed it; but the district did not notify the plaintiff or her parents of the petition, and the parents only learned of it from another student's mother.  The plaintiff suffered emotional trauma, including at one point cutting herself to get attention.  The plaintiff sued the district for negligence and negligent hiring, retention, supervision and training, both under Education Code section 44807 and Government Code sections 815.2, 815.4, 815.6, 820, and 835.  During trial the plaintiff dismissed the negligent supervision cause of action.  The jury found the district negligent and that its negligence was a substantial factor in causing the plaintiff's injuries.  It awarded the plaintiff $1 million.

The appellate court rejected the district's multiple arguments for reversal.  The appellate court agreed with the district that Education Code sections 48900, 48900.5, 48900.7 and 48911 do not create private causes of action or create a mandatory duty of care owed to plaintiffs with respect to economic damages arising from educational injury.  But plaintiff did not base her negligence cause of action on those statutes, but rather on Education Code section 44807, which supports the duty of school authorities to supervise children on school grounds and enforce rules and regulations necessary to their protection; and Government Code section 815.2(a), which makes the district vicariously liable for injuries caused by its employees' negligence.  The school employees had a duty to protect the plaintiff from harm caused by other students.  Government Code section 820.2's discretionary immunity did not immunize the school employees' decisions in determining how to respond to the complaints of bullying.  Section 820.2 immunizes basic policy decisions.  The plaintiff did not claim that the district or school were negligent in crafting anti-bullying policies.  She claimed that the employees negligently failed to protect her by, among other things, not following the safety policies already in place.  Lower-level decisions that merely implement a basic policy already formulated are not immunized by section 820.2.  The district complained that the special verdict form set forth the negligent supervision claim that the plaintiff dismissed.  But this was harmless error, because the district failed to show that the jury would have awarded the plaintiff less in damages for negligence if the verdict did not include the negligent training and supervision theory.

School District Forfeited Appellate Argument It Had No Mandatory Duty to Inform Teachers of Available Defibrillator

In Tillinghast v. Los Angeles Unified School Dist., published May 5, 2025, the Second District Court of Appeal, Division 8 affirmed the judgment in favor of the plaintiff.  The plaintiff's decedent, a middle-school student, passed away in PE class, after jogging, of sudden cardiac arrest.  He had an unsuspected heart defect.  When the decedent collapsed, teachers began performing CPR and called 911.  The teacher on the 911 call was trained to use a defibrillator.  The 911 operator asked the teacher if the school had a defibrillator.  The teacher had worked at the school for more than a decade, but did not know that the school had an AED-type defibrillator in its main office.  A cardiac arrest victim's chance of survival decreases by 7-10% each minute that passes without defibrillation.  The defendant school district promulgated a defibrillator policy and bulletin in 2012.  The policy stated that AEDs will be maintained on the premises of selected schools and other locations in the district.  The school principal, who started at this school in 2012, did not know of the defibrillator bulletin.  Had he known of it, he would have told the teachers about the school's AED.  The plaintiff sued the principal and the school district for negligence under Government Code sections 820, 815.2, and 815.6.  At trial, the plaintiff's strategy focused on the district's liability, rather than the principal's.  The district's policy was to admit mistakes were made, but that the there was no causation because the decedent's abnormal heart caused his death and defibrillation would not have made a difference.  During the trial, the parties agreed on a version of CACI 423, the jury instruction about mandatory duty.  The jury found the district negligent, but the principal not liable.  On appeal, the district contended that the trial court erred by giving CACI 423.  It also argued that insufficient evidence supported the verdict.

The appellate court ruled that the district had forfeited its objections to CACI 423, by acquiescing to it without requesting any additional instructions.  The insufficient evidence argument could not succeed, because the district conceded in its opening statement and closing argument that it had made mistakes.  The stipulated verdict form did not ask the jury to distinguish between negligence based on breach of a statutory duty and negligence based on any other theory.

Existence of Fundamental Rights Protected by Substantive Due Process Is Not Determined by Applying the Qualified Immunity Analysis

In Regino v. Staley, published April 4, 2025, the 9th Circuit Court of Appeals reversed dismissal of a 42 U.S.C. section 1983 suit at the pleading stage.  A school district had a policy that prohibited conduct such as refusing to address a student by a name and pronouns consistent with the student’s gender identity and revealing a student’s transgender status to those who do not have a legitimate need for the information without the student’s consent.  One of the plaintiff’s two children, who was 11 and biologically female told a school counselor that the child felt like a boy.  The child stated that the child would prefer male pronouns and that the child did not want the mother to know.  The counselor arranged for school personnel to refer to the child by a male name and male pronouns.  The counselor advised the child about LGBTQ+ support, top surgery, and breast binding.  When the child told the counselor the child wanted  to tell the mother about the new gender identity, the counselor encouraged the child to speak with other family members first.  The child spoke to the child’s grandmother, who then told the mother.  The mother told the child that the mother supported the child in her decisions if that is what the child wanted. The mother expressed to the school personnel her concern that she had not been informed that the personnel were treating her child as a boy; and that if she had known she would not have allowed them to “socially transition her daughter without first seeking guidance from a mental health professional.”  Later, the child’s feelings about being a boy subsided.  At the time the complaint was filed, the child identified as a girl and was in therapy for depression and anxiety.  Meanwhile, the mother’s other child allegedly began exhibiting traits making her more likely to identify as a boy as she gets older.  The mother filed suit seeking a declaration invalidating the policy as violating the mother’s constitutional rights and an injunction against the policy’s enforcement.  She asserted facial and as-applied procedural and substantive due process and First Amendment claims.  The district court dismissed the action, ruling that the mother had failed to allege the existence of a fundamental right that was clearly established in existing precedent.  It denied leave to amend as futile.

The 9th Circuit ruled that the district court erred in dismissing the substantive due process claim, because the district court failed to conduct the proper analysis in determining whether the mother adequately alleged the existence of a cognizable fundamental right protected by substantive due process.  Parents have a broad fundamental right to make decisions concerning the care, custody, and control of their children, but those rights are confined by the interests of the State.  The district court erred by borrowing the standard for qualified immunity and determining whether the right had been clearly established and placed beyond debate by existing precedent.  The qualified immunity framework does not govern the merits of substantive due process claims.  Instead, the inquiry is whether an asserted fundamental right is objectively deeply rooted in the Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed.  While courts must be reluctant to expand the concept of substantive due process and exercise the utmost care before breaking new ground, the right does not have to be clearly established by precedent.  The appellate court declined to undertake the proper analysis itself, because the parties had failed to consistently articulate the scope of their respective claims and defenses.  The substantive due process analysis must begin with a careful description of the asserted fundamental right.  The plaintiff had provided shifting definition of the right, and the defendants had failed to consistently identify the district’s justification for its policy.  The district court had no opportunity to address the parties’ revamped arguments.  The 9th Circuit therefore remanded the issue to the district court.  The court will have to determine whether the plaintiff’s asserted right meets the criteria for a fundamental right and examine the nuances of the district’s policy, considering precedents on parents’ rights and the state’s interests in limiting those rights.  Regarding the procedural due process claim, the district court erred in determining a lack of a fundamental right defeated that claim.  Procedural due process does not merely protect fundamental rights; it protects all liberty interests derived from state law or from the Due Process Clause itself.  The 9th Circuit remanded that issue as well.

Qualified Immunity for Academic 1st Amendment Retaliation Claim Was Not Amenable to Resolution at Pleadings Stage

In Jensen v. Brown, published March 10, 2025, the 9th Circuit Court of Appeals reversed the dismissal of a 42 U.S.C. section 1983 lawsuit without leave to amend.  The plaintiff is a mathematics professor at a state community college.  The board of regents for the state college system adopted a policy that lowered the academic level of certain math classes.  The plaintiff objected to this policy.  The dean of sciences at the college facilitated a "math summit" to discuss the policy's implementation "with the community."  During a question-and-answer session, the plaintiff attempted to comment on the policy.  The dean cut him off.  The plaintiff went to his office and created a handout that discussed his concerns with the policy.  During a break in the summit's programming, he went room to room distributing the handout to the participants.  The dean directed him to stop.  She accused him of disobeying her and being a "bully," stated his conduct was "disruptive," and warned him that he had "made an error by defying her."  A week later, she sent the plaintiff a letter of notice of reprimand, along with a proposed letter of reprimand accusing the plaintiff of "insubordination" at the event.  An official letter of reprimand was then placed in the plaintiff's personnel file.  The plaintiff then sent an e-mail to the college's faculty complaining about the policy.  About a week later, the plaintiff, under pressure from the dean, resigned as chair and member of a tenure committee.  The dean raised issues with the professor's syllabus policies.  That dean and another dean rated the plaintiff unsatisfactory during two annual performance evaluations.  The evaluations triggered a disciplinary termination hearing, although the plaintiff does not allege he was terminated or disciplined based on the hearing.  The plaintiff sued various college and college system administrators alleging (1) 1st Amendment retaliation, (2) procedural due process violations, and (3) equal protection violations.  The administrators moved to dismiss the complaint based on sovereign immunity and qualified immunity.  The district court dismissed the claims without leave to amend.

The 9th Circuit ruled the district court erred in dismissing the plaintiff's personal capacity 1st amendment retaliation claim against the administrators.  Applying the Pickering inquiry for a public employee's 1st Amendment retaliation claim, the court ruled the plaintiff's criticism of the changes in the mathematics curriculum addressed a matter of public concern.  The scope of the handout distribution was instructive but not determinative of the public concern issue.  Under 9th Circuit precedent, the Garcetti v. Ceballos rule that speech according to public duties is not protected by the 1st Amendment does not apply to teaching and academic writing.  Because the plaintiff's speech was focused on the contents of the school's curriculum, it relates to scholarship and teaching and so does not come within the Garcetti rule.  The plaintiff alleged facts that plausibly linked alleged retaliatory acts to his speech.  Although the Pickering test balances the employee's right to speak against the state's interests as an employer, unless the facts alleged in the complaint decisively indicate that the state's interest outweighs the plaintiff, the Pickering balancing test is not amenable to resolution on a motion to dismiss, and is generally deferred at least to the summary judgment stage.  Since the facts alleged do not show an “actual, material and substantial disruption” or “reasonable predictions of disruption” to support the
Administrators’ claim that the state’s interest outweighs the plaintiff's, this inquiry could not be resolved at the pleadings stage.  Since at the time of the events, 9th Circuit authority put a reasonable official on notice that the plaintiff's speech involved an issue of general public interest, need not be aired to the general public, and did not fall outside 1st Amendment protection simply because it was made according to official duties, and the balancing test could not be resolved at the pleading stage, the question of whether the administrators violated clearly-established law also could not be resolved at that stage.  The district court therefore erred in dismissing the claim based on qualified immunity.  The official capacity 1st Amendment claim was not barred by sovereign immunity, because it sought prospective injunctive relief.  Although the complaint failed to allege facts showing an interest protected by procedural due process, or an equal protection claim, the district court erred by denying leave to amend those claims without providing a reason for doing so.

Parent's Exclusion from School Grounds in Alleged Retaliation May Violate 1st Amendment, but Principal Entitled to Qualified Immunity

In Hartzell v. Marana Unified School Dist., published March 5, 2025, the 9th Circuit Court of Appeals affirmed in part and reversed in part the judgment in favor of the defendant school district and its principal.  The plaintiff was a parent who had multiple children enrolled in the school overseen by the defendant principal.  The plaintiff had been advocating for improved services in the district, and asserted that the district reacted negatively to her advocacy.  One day, two of the plaintiff's children were scheduled to present projects at a school event, in different rooms simultaneously.  The plaintiff saw the principal during the event and complained.  After a conversation, the principal started walking away.  There was conflicting evidence over whether the plaintiff grabbed the principal's wrist or simply touched his arm.  A hall monitor ordered the plaintiff to leave the school grounds.  The plaintiff was approached in the parking lot by a police officer who told her she was "trespassed from" the school property and could not enter school property; and that the order would remain in effect until the district decided otherwise.  In an incident report, the officer stated that he was acting on the school's instructions.  After the incident, district personnel discussed the plaintiff's advocacy.  The superintendent and an attorney for the district met with the plaintiff and told her she was banned from school grounds indefinitely, with the exception that she could pick up one child if she did not speak to anyone.  The order remained in place for over three years.  The plaintiff contended the exclusion order was issued pursuant to a district policy that prohibits conduct intended to obstruct, disrupt, or interfere with a school’s operations; physical or verbal abuse or threat of harm to any person on property owned or controlled by the district; and use e of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment.  The plaintiff sued the district and the principal, bringing a 1st Amendment retaliation claim against both and a procedural due process claim against the district.  The district court granted summary judgment on the procedural due process claim, and granted the principal summary judgment based on qualified immunity.  The case proceeded to trial on the plaintiff's Monell claim against the district based on a custom, policy, or practice that was the moving force behind the alleged 1st Amendment retaliation claim.  At the close of the plaintiff's case in chief, the court granted the defendants judgment on the Monell claim under FRCP 50(a) (nonsuit).  

The 9th Circuit ruled that the district court erred in granting nonsuit on the district's 1st Amendment retaliation liability.  The provision of the district policy banning speech that is offensive or inappropriate would be unconstitutional if it applied to ban the plaintiff for criticizing the principal.  The plaintiff presented sufficient evidence for a jury to conclude that the district relied on the policy, rather than the plaintiff allegedly grabbing the principal's wrist, to ban the plaintiff from school premises.  The 9th Circuit upheld summary judgment on the procedural due process claim, on the ground that the plaintiff did not have a protected state interest in accessing school property.  It also upheld summary judgment for the principal based on qualified immunity.  There was no existing binding precedent that clearly established that excluding a parent from school grounds based on a policy banning offensive or inappropriate speech.

Failure to Give Student Opportunity to Explain Himself before Extending Suspension on New Charge Violated Clearly-Established Law

In K.J. v. Jackson, published February 11, 2025, the 9th Circuit reversed summary judgment for the individual defendants in a 42 U.S.C. section 1983 case.  The students involved in a lunchtime fight on a high school campus were suspended for fighting on campus.  The plaintiff was included.  Before he and the other students were suspended, they met with administrators and provided written statements about the incident.  At some point after the plaintiff was sent home from school, a vice principal watched surveillance videos of the fight, and learned one of the students involved suffered injuries.  The vice principal concluded that plaintiff not only participated in the fight, but willfully caused serious injury to another person that was not in self-defense.  The night before the plaintiff was scheduled to return to school, the vice principal called the plaintiff's mother and told her school officials had decided to extend the plaintiff's suspension and were recommending his expulsion.  The plaintiff was not on the call.  The next day, the vice principal sent the parents an e-mail summarizing the call, and providing updated suspension/expulsion paperwork.  It advised the parents their next step was to communicate directly to the district's appeal department.  The parents met with a counselor from the department.  The plaintiff was not required to attend, not invited to attend, and did not attend.  His parents were not allowed to present any defense to the factual allegations underlying the suspension and recommended expulsion.  The parents then sued the district, the vice principal, and other school district officials challenging the suspension and recommended expulsion.  Five days later, the suspension was lifted and the recommendation for expulsion rescinded.  Between the suspension and the return to school, no one from the district or school ever communicated with the plaintiff. The district court agreed with the plaintiff that the district violated his 14th Amendment right to procedural due process by extending his suspension and recommending expulsion without providing him with notice of the charges against him, an explanation of the evidence, and a chance to tell his side of the story.  But it granted summary judgment on the grounds that the individual defendants were entitled to qualified immunity, because the law did not clearly establish a right to due process before a suspension is extended.  And it concluded that the plaintiff lacked Article III standing to seek expungement of his record.

The 9th Circuit agreed that the defendants violated the plaintiff's due process rights.  Goss v. Lopez (1975) 419 U.S. 565, 580-581 established the student's due process rights to notice of the charge and evidence, and a right to be heard, before suspension.  The defendants contended that they gave the plaintiff that right before his initial suspension.  But because the defendants never informed the student of the new charges and new evidence that formed the basis of the extended suspension, he did not have a meaningful opportunity to present his side of the story.  That the suspension was an extension, rather than an original suspension, was of no consequence.  Further, Goss clearly established the student's right to due process.  The suspension extension was not based on the same alleged conduct as the original suspension.  The plaintiff did not have an opportunity to present his side of the story as to the new charges and evidence.  The procedures delineated in Goss clearly apply to suspension extensions based on new charges or new evidence.  Finally, the plaintiff may seek expungement of any records of the suspension extension and expulsion recommendations.  There is no 11th Amendment bar to the plaintiff seeking prospective injunctive relief from an ongoing violation of federal law.  The district court's finding that the relief sought was moot was error.  The relief sought was not moot at the time the plaintiff filed suit, because he was still suspended and unable to return to school.  He had standing to seek injunctive relief to stop the ongoing effects of the violation.  And because the suspension report and expulsion recommendation remain in his disciplinary files--accessible to district personnel-- and he would likely need to self-disclose that information on college applications, his prayer is not moot.

Jury Properly Assigned Liability for Student's Injury to Him and Other Student Fighting Him, Rather than Teacher Who Fell on Student while Trying to Break Up Fight

In I.C. v. Compton Unified School Dist., ordered published February 6, 2025, the Second District Court of Appeal, Division 8 affirmed a judgment entered after jury trial.  The 16-year-old plaintiff and his friend started a fist fight during an art class.  Their teacher intervened.  The teacher weighed 375 pounds, and had recently been using a walker because of a back condition.  While pulling the larger boy away from the plaintiff, and while plaintiff was hitting the teacher, the teacher lost his balance and fell on the plaintiff's leg, causing a severe fracture.  The incident was captured on video.  The plaintiff sued the teacher and the school district for negligence.  He contended the teacher should not have stopped the fight, and instead should have prevented it, and that the school district failed to adequately train the teacher in safely intervening in student fights.  The court rejected expert witnesses from both sides.  The court also declined to give multiple instructions the plaintiff requested regarding duty.  The jury assigned 50% fault for the injury to the plaintiff and 50% to the other boy, and found that neither the teacher nor the district was negligent.

The appellate court rejected the plaintiff's arguments of error.  It affirmed the trial court's denial of JNOV to the plaintiff, finding substantial evidence supported the jury's conclusion that neither the teacher nor the district was negligent.  The plaintiff's contentions that there was insufficient evidence that the district's training was reasonable and that the teacher acted with due care assume that the burden was on the defendants to prove lack of negligence.  But the plaintiff had the burden to prove negligence.  Plaintiff's contention that the jury had to be instructed on the nature of the special relationship between student and teacher, the duty of school authorities to supervise children and enforce rules, the standard of care for school employees, the duty of school authorities to train and supervise employees, the duty of school personnel to use reasonable measure to protect students, and the foreseeability of the injury failed.  None of the instructions was necessary to assist the jury in deciding whether the teacher breached his duty to use reasonable care to prevent harm to others.  The jury was adequately instructed to decide how a reasonably careful person would have acted in the teacher's situation.  Exclusion of the plaintiff's expert on intervening in fights was within the trial court's discretion, based on the evidence that the expert had no experience teaching or managing a classroom.  Further, the jury watched the video, and did not need an expert to expound upon how the intervention happened and whether it was done safely.

Amendment to Bane Act Exempting It from Statutory Immunities Is Not Retroactive

In Wiley v. Kern High School District, ordered partially published on December 20, 2024, the Fifth District Court of Appeal affirmed a demurrer to a claim under Civil Code section 52.1, the Bane Act.  The plaintiff alleged that she engaged in a verbal altercation with various students, staff members, and a school district police officer when she stopped by a district high school to pick up school yearbooks for her children.  She submitted a written complaint about the incident to the high school. The police officer wrote an incident report recommending various charges against the plaintiff.  The plaintiff alleged that the report contained no evidence that could reasonably be construed as constituting probable cause against her, and "cast" her "in an extremely unfavorable light."  A citation was issued against the plaintiff.  A criminal complaint issued against her charging her with misdemeanors.  During the criminal proceedings against the plaintiff, the plaintiff asked the prosecutor why he was not dropping the charges.  The prosecutor allegedly replied to the effect that the plaintiff had angered the district employees involved by threatening a lawsuit against them.  On January 3, 2022, after a mistrial, the court dismissed the misdemeanor charges in the interests of justice.  The plaintiff brought suit against multiple defendants, including the officer who wrote the report.  The trial court sustained the demurrer as to various claims and defendants.  In particular, demurrer was sustained as to all claims against the officer without leave to amend, and he was dismissed.  The plaintiff appealed.

The appellate court affirmed the demurrer as to all causes of action, albeit it reversed for leave to amend as to one cause of action.  The published portion of the decision addressed the plaintiff's Bane Act cause of action.  The plaintiff alleged that the officer who wrote the report was liable for malicious prosecution and abuse of process under the Bane Act.  By alleging the report cast her in an "unfavorable light," the plaintiff failed to plead the elements of malicious prosecution.  She does not allege the officer arrested her without probable cause, submitted false information, omitted material information, knowingly caused erroneous charges to be filed against her, or influenced prosecutors to prosecute her without probable cause.  She does not allege the officer threatened or intimidated her.  She did not allege facts connecting the report to the complaint she made to the school.  Although the officer did not need to obtain the information for his report by threats, intimidation, or coercion to qualify under the Bane Act, the report itself was not inherently coercive, and the plaintiff failed to allege any facts showing that the officer's alleged acts rose to the level of coercion required by the Bane Act.  The Bane Act's language limiting actions based on speech alone counsels that a mere unfavorable portrait of the plaintiff is likely insufficient.  The court further held the officer immune from liability under Government Code section 821.6, immunity to malicious prosecution claims.  In 2022, subdivision (n) was added to section 821.6, removing this immunity for police officers for Bane Act violations.  The court rejected the plaintiff's argument that the amendment applied to the events of this case.  The plaintiff attempted to analogize the amendment to statute of limitations cases, and argued that the elements of her cause of action for malicious prosecution were not completed until January 3, 2022, when her case was dismissed in the interests of justice.  She therefore argued that the amendment was retroactive.  The court disagreed.  Statutes are presumed prospective, unless the statute is procedural.  A statute is not procedural when it deprives a defendant of any defense on the merits.  Statutory immunity for public entities or employees is generally a substantive, rather than procedural, bar to tort immunity.  The removal of an absolute defense to liability is more than a procedural change.  There is no express legislative intent, or evidence of a clear legislative intent, to increase liability for past conduct regarding the 2022 amendment.  Finally, retroactive application of the penalties available under the Bane Act--actual damages, treble damages, punitive damages--would raise a serious constitutional question.

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Pollak, Vida & Barer represented the defendants on appeal in this matter.

 

Divided Appellate Court Affirms Judgment Apportioning 100% Fault to Entity That Failed to Prevent Molestation and 0 to Molester

In A.H. v. Tamalpais Union High School Dist., published September 9, 2024, the First District Court of Appeal, Division 2 affirmed a judgment against the district entered after jury trial.  The plaintiff was molested by his school tennis coach.  Before the molestation occurred, the school principal received a report that the coach had touched a student's genitals while measuring body fat.  After investigation, the principal wrote the coach a letter of warning in which he stated he would create a protocol for body fat measurement.  The principal did not place the letter in the coach's personnel file, did not create the protocol, and did not tell other P.E. teachers or supervisors about the complaint.  Before plaintiff's molestation, the coach improperly touched multiple other students during body fat measurements and massages.  After the plaintiff graduated, the principal received a second complaint about the coach involving a body fat test.  In closing argument, the plaintiff asked the jury to apportion 90% fault to the district and 10% to the coach.  The district's counsel asked the jury to apportion 75-90% fault to the coach.  The jury awarded $10 million in noneconomic damages, and apportioned 100% responsibility to the district and 0% to the coach.  The district did not criticize the verdict regarding apportionment of fault after the jury returned it.  The district did not move for new trial.  The district appealed, arguing that the trial court failed to properly instruct the jury and that the fault apportionment showed the error was prejudicial.  It also argued that the trial court abused its discretion in admitting evidence of the molestations that were not reported to the district, the complaint after the plaintiff graduated, and of the coach's conviction 16 years after the plaintiff graduated.

The court rejected the claims of error.  The district complained that the trial court did not give its requested instructions that the district could not be held vicariously liable for the molestation, and could be held liable only for supervisors' negligence in hiring, supervision, and retention.  The appellate court ruled that the instructions given adequately communicated these concepts to the jury.  The district argued that the trial court should have given the district's proposed special instruction based on language in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 noting that ordinarily lie with the individual who intentionally abused or harassed the students, and that the fact should be reflected in any allocation of comparative fault.  The court agreed with the trial court that the language did not create an actual standard, but was instead a comment by the Supreme Court regarding what happens at times.  CACI No. 406, which was given, correctly instructs the jury on apportionment.  Instructing the jury with the proposed language would have confused the jury.  Because the district failed to show instructional error, the majority declined to reach the district's argument that the "legally impossible" verdict apportioning no fault to the molester showed prejudicial error.  The court noted that the district did not separately claim insufficiency of the evidence as to the jury's apportionment finding.  The court also rejected the evidentiary arguments, finding the trial court did not abuse its discretion in deeming the unreported molestations relevant to the pervasiveness of the coach's molestation and the negligence of the supervisors in failing to detect or prevent it, the subsequent molestation as relevant to lack of reasonable supervision following the earlier complaint, and the later conviction relevant to damages because the plaintiff testified at the criminal trial.

A dissenting justice opined that despite the district's failure to raise insufficiency of the evidence to attack the fault apportionment, the court should have addressed the issue sua sponte and reversed the apportionment as improper as a matter of law.  The justice urged the California Supreme Court to grant review of the decision.

"Counsel Mandate" Bars Non-Attorney Parent from Representing Children's Claims Pro Se

In Grizzell v. San Elijo Elementary School, published August 7, 2024, the 9th Circuit affirmed the district court's dismissal without prejudice of a civil rights case against the defendant school and school district.  The plaintiff enrolled her children in the school under the McKinney-Vento Homeless Assistance Act.  She alleges that the children suffered racial discrimination and harassment, and were ultimately unlawfully unenrolled.  She asserted claims under the Equal Protection and Due Process clauses of the 14th Amendment, Title IV and Title VI of the Civil Rights Act of 1964, and several other federal and state educational laws.  When the plaintiff conceded that the lawsuit only concerns her children's claims, the district court dismissed the action without prejudice because the minors could proceed with their claims only through an attorney licensed to practice in the court.  The plaintiff appealed.

The 9th Circuit panel affirmed.  The "Counsel mandate" requires a non-attorney parent to be represented by counsel in bringing an action on behalf of her child.  The right to proceed pro se under 28 U.S.C. section 1654 does not create a true choice for minors who, under state law, cannot determine their own legal actions, and does not overcome the rule that a non-lawyer has no authority to appear as an attorney for others.  The panel acknowledged the important interests raised by the plaintiff's allegations, and that other circuits have allowed more flexibility in permitting a pro se parent to make a child's case the parent's own.  But the panel viewed itself bound by precedent.