Ct.App. 2/1 B217982 Los Angeles County Super. Ct. No. PC044428 Court: Superior County: Los Angeles Judge: Melvin D. Sandvig
The opinion of the court was delivered by: Werdegar, J.
C.A., a minor, sued his public high school guidance counselor and the school district for damages arising out of sexual harassment and abuse by the counselor. The trial court sustained the school district's demurrer, and the Court of Appeal affirmed. On review, the question presented is whether the district may be found vicariously liable for the acts of its employees (Gov. Code, § 815.2)*fn1 --not for the acts of the counselor, which were outside the scope of her employment (see John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441, 451-452), but for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor's propensities and nevertheless hired, retained and inadequately supervised her.
We conclude plaintiff's theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-1461.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.
Accordingly, we reverse the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
To determine whether a demurrer was properly sustained, we review the allegations of the operative complaint for facts sufficient to state a claim for relief. In doing so, we treat the demurrer as admitting all material facts properly pleaded. " 'Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Through a guardian ad litem, plaintiff C.A. alleged that while he was a student at Golden Valley High School in the William S. Hart Union High School District (the District) he was subjected to sexual harassment and abuse by Roselyn Hubbell, the head guidance counselor at his school. Plaintiff was born in July 1992, making him 14 to 15 years old at the time of the harassment and abuse, which is alleged to have begun in or around January 2007 and continued into September 2007.
Plaintiff was assigned to Hubbell for school counseling. Representing that she wished to help him do well at school, Hubbell began to spend many hours with plaintiff both on and off the high school premises and to drive him home from school each day. Exploiting her position of authority and trust, Hubbell engaged in sexual activities with plaintiff and required that he engage in sexual activities, including sensual embraces and massages, masturbation, oral sex and intercourse. As a result of the abuse, plaintiff suffered emotional distress, anxiety, nervousness and fear.
The suit names as defendants Hubbell, the District, and Does 1 through 100. In general terms, each defendant is alleged to be the agent and employee of the others and to have done the acts alleged within the course and scope of that agency and employment. On information and belief, plaintiff alleges "[d]efendants knew that Hubbell had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct." Defendants "knew or should have known and/or were put on notice" of Hubbell's past sexual abuse of minors and her "propensity and disposition" to engage in such abuse; consequently, they "knew or should have known that Hubbell would commit wrongful sexual acts with minors, including Plaintiff." Plaintiff bases this belief on "personnel and/or school records of Defendants [that] reflect numerous incidents of inappropriate sexual contact and conduct with minors by teachers, staff, coaches, counselors, advisors, mentors and others, including incidents involving Hubbell, both on and off the premises of such Defendants." Plaintiff's injuries were the result not only of the molestation but of the District's "employees, administrators and/or agents" failing to "properly hire, train and supervise Hubbell and . . . prevent her from harming" plaintiff.
In a cause of action for negligent supervision, plaintiff alleges (again on information and belief) that defendants, through their employees, knew or should have known of Hubbell's "dangerous and exploitive propensities" and nevertheless "failed to provide reasonable supervision" over her and "failed to use reasonable care in investigating" her. Specifically, defendants neither had in place nor implemented a system or procedure for investigating and supervising personnel "to prevent pre-sexual grooming and/or sexual harassment, molestation and abuse of children." In a cause of action for negligent hiring and retention, plaintiff alleges defendants were on notice of Hubbell's molestation of students both before and during her employment by the District, but did not reasonably investigate Hubbell and failed to use reasonable care to prevent her abuse of plaintiff.
The District demurred to the complaint, arguing the negligent supervision and negligent hiring and retention causes of action failed to state a claim because of the lack of statutory authority for holding a public entity liable for negligent supervision, hiring or retention of its employees. The trial court sustained the District's demurrer to the entire complaint without leave to amend and dismissed the action as to the District. (The sole named individual defendant, Hubbell, did not join in the District's demurrer and is not a party to the present appeal.)
The Court of Appeal affirmed in a divided decision. The majority first rejected the viability of a vicarious liability theory under section 815.2, on the ground that "[a]s in John R. [v. Oakland Unified School Dist., supra, 48 Cal.3d 438], in this case the alleged sexual misconduct of the guidance counselor cannot be considered within the scope of her employment." Second, the majority held no theory of direct liability for negligent hiring, supervision or retention could lie because plaintiff had adduced no statutory authority for it. Quoting de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 255-256, the majority concluded: " '[A] direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.' "
The Court of Appeal dissenter opined that "[a]lthough the school district cannot be held liable for the intentional misconduct of the guidance counselor, it may be liable through respondeat superior for the negligence of other employees who were responsible for hiring, supervising, training, or retaining her." Because school personnel were in a special relationship with plaintiff, they owed him a duty of taking reasonable care to prevent the abuse by Hubbell. Consequently, "the failure of a school administrator to exercise ordinary care in protecting students from harm should render a school district liable under section 815.2 where the administrator hires an applicant known to have a history of molesting students or where, after hiring an applicant, the administrator first learns about the employee's sexual misconduct and does not properly supervise, train, or discharge her."
We granted plaintiff's petition for review.
The statutory framework upon which the District's vicarious liability depends is easily set out. Section 815 establishes that public entity tort liability is exclusively statutory: "Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Section 815.2, in turn, provides the statutory basis for liability relied on here: "(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." Finally, section 820 delineates the liability of public employees themselves: "(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. [¶] (b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person." In other words, "the general rule is that an ...