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P.S. v. San Bernardino City Unified School District

June 5, 2009

P.S., A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT, DEFENDANT AND RESPONDENT.
M.A., A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT, DEFENDANT AND RESPONDENT.
C.R., A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT, DEFENDANT AND RESPONDENT.
M.V., A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed. (Super.Ct.Nos. RCV100106)(Super.Ct.No. RCV100107) (Super.Ct.No. RCV100129)(Super.Ct.No. RCV100133).

The opinion of the court was delivered by: Miller J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiffs and appellants P.S., M.A., C.R., and M.V. were first-grade pupils in the Central School District. They were victims of molestation by Eric Norman Olsen, a substitute teacher. They each filed suit, alleging causes of action for negligence, negligence per se, and negligent infliction of emotional distress. In addition to naming Olsen and Central School District (where the plaintiffs attended school and which had hired Olsen as a substitute teacher), plaintiffs also named as defendants the Chino Valley Unified School District,*fn1 defendant and respondent San Bernardino City Unified School District (SBCUSD), the Ontario-Montclair School District, the San Bernardino County Department of Children‟s Services, and the San Bernardino County Superintendent of Schools, on the theory that these entities had failed in a mandatory statutory duty to report suspected child abuse when Olsen had worked as a substitute teacher in other districts. Defendant and respondent SBCUSD demurred to each complaint on the ground that the Child Abuse and Neglect Reporting Act (the Reporting Act) did not impose a duty on them toward these plaintiffs. The trial court sustained the demurrers without leave to amend as to all three causes of action against SBCUSD. Plaintiffs appeal as to the negligence and negligence per se causes of action; they do not contest the ruling as to the cause of action for negligent infliction of emotional distress. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

Because the matter arises on demurrer, we draw our factual statement from the pleadings, accepting as true the properly pleaded material facts alleged. The complaints in each of the four cases are substantially the same, and involve the same issues. P.S.‟s action will serve as an adequate exemplar of the facts, contentions, issues and procedural history applicable to each of the four plaintiffs.

In December 2005, P.S. was a first-grade student at a school within the Central School District in Rancho Cucamonga. Olsen was a substitute teacher in P.S.‟s class, and Olsen engaged in incidents of unlawful touching of P.S., including having P.S. sit on his lap, for the purpose of Olsen‟s sexual arousal or gratification.*fn2

The complaints alleged that, in 2004, Olsen was a substitute teacher in a school in the Chino Valley Unified School District, when he had unlawful contact with a five-year-old girl. The Chino Valley Unified School District permanently banned Olsen from teaching in that district. The Chino Valley Unified School District reported Olsen to the San Bernardino County Superintendent of Schools.

In April 2005, Olsen had unlawful contact with a student in the SBCUSD. The alleged conduct included allowing children to sit on his lap. The SBCUSD permanently banned Olsen from teaching in that district.

The complaints alleged that "[o]n or about 2004 or 2005 . . . Olsen engaged in inappropriate and improper conduct in the Ontario Montclair School District," but provided no further details.

The first cause of action, for negligence, alleged that Olsen negligently, carelessly, recklessly and inappropriately fondled the plaintiffs, and that the Central School District, where the plaintiffs were pupils, failed to properly investigate Olsen‟s background, and negligently hired and supervised him.

As to the other school districts and agencies, the negligence cause of action alleged that the Reporting Act requires certain persons (mandated reporters) to make a report whenever the person has knowledge of, observes, or reasonably suspects a child has been a victim of abuse or neglect. The other school districts and agencies, including SBCUSD, allegedly failed to report Olsen to the proper authorities under the Reporting Act. This failure allowed Olsen to continue working as a substitute teacher in other districts, which caused plaintiffs‟ harm.

The second cause of action, for negligence per se, was alleged against the Central School District, as well as the prior school districts and agencies, including SBCUSD, for alleged violation of the statutory duty of reporting under the Reporting Act. As to SBCUSD in particular, the pleadings alleged that "[e]mployees of the [SBCUSD] . . . who were Mandated Reporters negligently failed to comply with their statutory duties to report Olsen‟s conduct which occurred in the [SBCUSC] on or about April 2005 which they knew or suspected to be inappropriate to the specified authorities as required by Penal Code § 11164 et seq." The pleadings further alleged that defendants, including SBCUSD, had negligently failed to train, educate and instruct its personnel of the reporting requirements of the Reporting Act. As a result of these failures to report, "other school districts and authorities were not alerted of Olsen‟s inappropriate conduct and propensities," which in turn allowed Olsen to continue substitute teaching and thus to continue perpetrating unlawful acts on children, including plaintiffs.*fn3

SBCUSD demurred to the complaints. SBCUSD argued that the complaints failed to state facts sufficient to state a cause for liability against it, that SBCUSD had governmental immunity against the action, and that the alleged source of the statutory violation to support the negligence per se cause of action, i.e., the Reporting Act, did not include plaintiffs in the class of persons protected by the statute. (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066 (Randi W.).)

Plaintiffs opposed the demurrers, arguing that they had pled sufficient facts to state a proper cause of action, that governmental immunity did not apply, and that amendments to the Reporting Act (Pen. Code, § 11164 et seq.)*fn4 had abrogated the holding in Randi W.

SBCUSD responded that the amendments to the Reporting Act contained no indication of an intent to abrogate Randi W., which ...


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