February 24, 2011

Summary of February 23, 2011 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 23, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request.

Review Granted

C.A. v. William S. Hart Union High School District, S188982—Review Granted—February 23, 2011

This is an action by a minor student, through his guardian ad litem, against a public high school district arising from a high school guidance counselor’s unlawful sexual conduct with the plaintiff. The guidance counselor was an employee of the district. The trial court sustained the district’s demurrer in its entirety without leave to amend on the ground that the guidance counselor’s activities were outside the scope of her employment. The questions presented are: (1) whether, on these facts, the public school district can be held vicariously liable for the tortious conduct of its employees; and (2) whether the school district can be held directly liable on theories of negligence, negligent supervision, negligent hiring and/or retention, or negligent failure to warn, train or educate.

The Court of Appeal, Second District, Division One, held in an unpublished opinion that: (a) the school district could not be held vicariously liable because the guidance counselor’s alleged sexual misconduct was not within the scope of her employment as a matter of law; and (b) the school district could not be directly liable because “‘as a public entity, … liability must be based on statutory not common law,’” and no statute permits a direct action against a school district for negligent hiring or supervision.

Presiding Justice Robert Mallano wrote a lengthy dissent, asserting that, in light of the school administrators’ alleged knowledge of the guidance counselor’s proclivity for sexually abusing students—which must be taken as true on demurrer—the plaintiff should be permitted to proceed with his negligence-based causes of action. Justice Mallano explained that “[i]n these circumstances, the school district would not be held liable for the intentional wrongdoing of the molester but rather, through respondeat superior, for the negligence of the administrator, who, while acting within the scope of his or her employment, failed to protect students from a known or suspected danger.”

Review Denied (with dissenting justices)

None.

Depublished

None.

Court of Appeal Publication Request Denied

None.

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