APPEAL from a judgment of the Superior Court of Los Angeles County. PauláGutman, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC354118).
The opinion of the court was delivered by: Rubin, J.
CERTIFIED FOR PUBLICATION
S.M., a minor, appeals from the summary judgment entered on her action against the Los Angeles Unified School District for negligent supervision of a teacher who sexually fondled her. Because the undisputed facts show that S.M. waited too long to file the required tort claim with the school district, we affirm.
FACTS AND PROCEDURAL HISTORY
S.M. sued the Los Angeles Unified School District (the district) for negligence after she was repeatedly fondled by Michael McMurray, her fourth grade teacher at Plainview Elementary School during the 2002-2003 school year. According to S.M., McMurray would rub her leg from ankle to thigh while kneeling by her desk to answer questions about her schoolwork. This happened regularly during the school year even though she would move her legs away or tell McMurray to stop. As a result, S.M. stopped asking questions about her schoolwork to keep McMurray away.
The undisputed facts showed that the school year ended on June 30, 2003, that S.M. had a different teacher the next school year and had no contact with McMurray, and that she switched to a different school for sixth grade. S.M. testified at her deposition that she felt what McMurray was doing was wrong, and that his actions made her scared and nervous. Therefore, the district contended, her cause of action accrued no later than Juneá30, 2003, when the school year ended. Instead of filing a tort claim by Decemberá30, 2003, however, she did not do so until April 12, 2005, meaning her claim was barred. The district moved for summary judgment on that basis.*fn1
S.M. was one of several girls who were sexually fondled by McMurray. Acting out of embarrassment and fear they might somehow be blamed, they agreed to keep quiet and not tell their parents what had happened. McMurray was arrested Octoberá14, 2004, when one of his victims came forward and reported the incident to the police.*fn2 S.M.'s mother learned of the arrest that day, and asked S.M. what she knew about it. S.M. told mother what McMurray had done to her, and mother filed a tort claim with the district on Aprilá12, 2005. S.M. opposed the summary judgment motion on the ground that her cause of action did not accrue until mother discovered what happened on Octoberá14, 2004. As a result, her tort claim was timely, she argued. The trial court disagreed, and entered judgment for the district.
On appeal, S.M. contends her cause of action did not accrue until mother learned what happened. She also raises an issue not raised below: that the district is equitably estopped from asserting the statutory time limits because it created an atmosphere of fear and intimidation that delayed her from telling her mother what had happened.
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., §á437c, subd.á(c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party's papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. (Barber v. Marina Sailing, Inc. (1995) 36áCal.App.4th 558, 562.)
A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., §á437c, subds.á(o)(2), (p)(2).) If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of her pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists.á.á.á." (Id., subd.á(p)(2).) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25áCal.4th 826, 850, fn. omitted.)
Our first task is to identify the issues framed by the pleadings. (Lennar Northeast Partners v. Buice (1996) 49áCal.App.4th 1576, 1582.) The moving party need address only those theories actually pled and an opposition which raises new issues is no substitute for an amended pleading. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57áCal.App.4th 1334, 1342.)
1. S.M.'s Cause of Action Accrued by ...