Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YC052057 Bob Hight, Judge.
Law Offices of Gross & Blackman and April R. Blackman for Plaintiffs and Appellants.
McCune & Harber and Garrett J. Hines for Defendants and Respondents.
EPSTEIN, P. J.
Minors Eddie Castaneda and Kenneth Pojoy appeal through their guardians ad litem from summary judgment in favor of defendants in this personal injury action arising from separate altercations on the grounds of Morningside High School in Inglewood. We affirm the judgment because there is no triable issue of material fact as to causation.
FACTUAL AND PROCEDURAL SUMMARY
Plaintiffs Eddie Castaneda and Kenneth Pojoy were students at Morningside High School in Inglewood. In February 2005, Castaneda was assaulted by a former student and two others while walking toward a school exit. He was struck on his face and body with metal bars, sustaining injuries to his head, eye, cheek, neck, and back. Pojoy was attacked a month later while walking past the school gymnasium by eight males. He was kicked, punched, and sustained a broken hand, bruises, and scratches.
Alicia Miranda, as guardian ad litem for Castaneda, and William Pojoy as guardian ad litem for Pojoy, sued the Inglewood Unified School District (Inglewood), the Los Angeles County Board of Education, Morningside High School (Morningside), and Evelyn Mainor, principal at Morningside, for negligence and failure to carry out their mandatory duty to supervise students in violation of Government Code section 815.6. Inglewood and Mainor filed a cross-complaint for equitable indemnity and declaratory relief against five individuals, and answered the complaint.
Inglewood asserts that it was erroneously sued as Morningside High School.
Inglewood and Mainor moved for summary judgment on the grounds that plaintiffs could not establish the element of causation in their negligence cause of action; that insufficient facts support the second cause of action under Government Code section 815.6; and that they are immune from liability for negligence under Government Code sections 815.2, subdivision (b) and 820.2. The motion was supported by plaintiffs’ responses to form and special interrogatories.
Plaintiffs opposed the motion, arguing that defendants were indifferent to reports that plaintiffs were being threatened at school, and failed to adequately supervise the school environment, where there were daily brawls and rampant gang activity. They claimed the safety staff at Morningside High School was inadequate. Plaintiffs argued that defendants breached their mandatory duty under Education Code section 44807 to supervise the conduct of children on the school grounds. The opposition was supported by a declaration by plaintiffs’ attorney, who said that no depositions had been taken, but that some were scheduled for the following month. Attached were copies of plaintiffs’ responses to defendants’ special interrogatories. Plaintiffs did not request a continuance of the summary judgment motion to conduct further inquiry pursuant to Code of Civil Procedure section 437c, subdivision (h).
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
Plaintiffs filed an opposing statement of material facts. It listed 15 “undisputed material facts” to the effect that there was daily physical violence at Morningside resulting in injuries to students on a regular basis; school officials were aware of attacks on students; plaintiffs told school officials they had been threatened before they were attacked; and this was the second attack on Pojoy. In support of the claim that school officials were aware of frequent fights and gang activity at Morningside leading to physical injuries to students, plaintiffs cited their responses to the second special interrogatory by defendants. Those answers were identical and read: “There were many threats of attacks and physical fights at the school, some of them occurring at specifically designated areas, popular for fighting. Students were getting hurt all the time. It would be rare not [to] see or hear about a physical fight on the school’s premises, on a daily basis. Street gang activity at the school was rampant.” In addition, plaintiffs cited Pojoy’s response to the fifth special interrogatory, which identified various school officials who were aware of the dangerous propensities of students on campus.
No other evidence was submitted in opposition to the motion for summary judgment. Instead, plaintiffs’ separate statement cited the “expected testimony” of plaintiffs, Pojoy’s parents, Castaneda’s mother, an unidentified expert witness, and Divany Medina, who was not identified. It was noted that plaintiffs’ depositions had not yet been taken. Pojoy’s medical and school records were cited, but not submitted in support of the opposition.
Defendants objected to the “expected testimony” cited in plaintiffs’ separate statement on the ground that it does not constitute evidence as required by section 437c, subdivision (b)(3). The trial court sustained the objection to “the alleged evidence of ‘expected testimony’ of various individuals as this does not constitute substantive, admissible evidence.” It noted that plaintiffs’ opposition failed to address causation. Summary judgment was granted on the ground that plaintiffs could not establish causation, having presented no evidence to show that the assaults would not have occurred had defendants adhered to some other security measures. Judgment was entered in favor of defendants. This timely appeal followed.
DISCUSSION
I
In Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768 (Saelzler), the Supreme Court examined the applicable standards for review of summary judgment in the context of premises liability for the acts of third persons. Our review is de novo; we view the evidence in a light favorable to plaintiff as the losing party, and liberally construe plaintiff’s evidence and strictly scrutinize defendants’ evidence. (Id. at p. 768.) Any evidentiary doubts are to be resolved in favor of plaintiff. (Ibid.) In a negligence action based on premises liability, the defendants are entitled to summary judgment if they show that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case of causation . . . .” (Ibid.)
The Saelzler court examined premises liability cases addressing the issue of causation where inadequate security was the basis for the negligence claim. It stated the rule on causation as requiring the plaintiff to “establish by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s failure to provide adequate security measures.” (Saelzler, supra, 25 Cal.4th at p. 774.) Summary judgment in favor of defendants was affirmed in Saelzler because plaintiff was unable to prove that it was “‘more probable than not’ that additional security precautions would have prevented the attack.” (Id. at p. 776.)
The Supreme Court cautioned against finding causation wherever security measures were not increased: “[W]e hesitate to adopt a rule of common sense that seemingly would prevent summary judgment on the causation issue in every case in which the defendant failed to adopt increased security measures of some kind. Nola M. [v. University of Southern California (1993) 16 Cal.App.4th 421 (Nola M.)] observes that ‘it would be grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were “inadequate,” particularly in light of the fact that the decision would always be rendered in a case where the security had, in fact, proved inadequate . . . .’” (Saelzler, supra, 25 Cal.4th at p. 778, quoting Nola M., supra, 16 Cal.App.4th at p. 429.) The Saelzler court held: “No matter how inexcusable a defendant’s act or omission might appear, the plaintiff must nonetheless show the act or omission caused, or substantially contributed to, her injury. Otherwise, defendants might be held liable for conduct which actually caused no harm, contrary to the recognized policy against making landowners the insurer of the absolute safety of anyone entering their premises. (See Sharon P. [v. Arman, Ltd. (1999) 21 Cal.4th 1181,] 1195, disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; Ann M. [v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,] 679; Nola M., supra, 16 Cal.App.4th at p. 437.)” (Saelzler, at p. 780.)
The Saelzler court concluded: “In short, plaintiff cannot prove that defendants’ omissions were a substantial factor in causing her injuries, and no proper basis exists for shifting the burden of proof on that issue to defendants. Plaintiff has had ample opportunity, through pretrial discovery, to marshal evidence showing that defendants’ asserted breach of duty actually caused her injuries. The evidence at hand, however, merely shows the speculative possibility that additional daytime security guards and/or functioning security gates might have prevented the assault.” (Saelzler, supra, 25 Cal.4th at p. 781.)
The elements of a cause of action for negligence are a legal duty, and breach of the duty, proximately or legally causing plaintiff’s injuries. (Saelzler, supra, 25 Cal.4th at p. 767.) Much of plaintiffs’ brief focuses on the elements of duty and breach, rather than causation, which was the basis for the order granting summary judgment. While there is a caption in plaintiffs’ opening brief asserting that they demonstrated a triable issue of material fact as to causation, the text of the argument under that section addresses duty and breach of duty rather than causation.
They argue that the defendants had a duty under Education Code section 44807. That statute provides in pertinent part: “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. A teacher, vice principal, principal, or any other certificated employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.”
Plaintiffs rely upon Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, in which parents of a high school student who was killed in a fight on campus sued for negligence based on inadequate supervision. The trial court directed a verdict for defendants. The Dailey court first considered the duty of care owed to students on school grounds, a question not at issue here. (Id. at pp. 747-748.) In that case, there was evidence the school personnel responsible for supervision of students had breached that duty. The instructor on duty placed himself in a position with his back to the window of his office, was engaged in other activities, and failed to hear or see a 10 minute boxing match which drew a crowd of 30 spectators nearby. From this evidence, the court in Dailey concluded that the jury could reasonably conclude the breach of duty to provide supervision was the proximate cause of the student’s death. The court observed that there was no real dispute as to the existence of actual causation because there was evidence from which the jury could find that if the individual defendants had seen the fight they would have stopped it, and that patrols by those individuals would have deterred the fight. (Id. at p. 750, fn. 7.)
In contrast, plaintiffs here have presented no admissible evidence regarding the defendants’ supervision of the school, other than conclusory statements in their answers to interrogatories that security measures were inadequate because altercations were common on campus, and that school officials were aware of these problems. As the trial court correctly found, the “expected testimony” cited in plaintiffs’ separate statement did not constitute evidence sufficient to raise a triable issue of material fact. At that point, it was speculation. “Speculation . . . is not evidence.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 864; see also Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856 [party opposing summary judgment must show by admissible evidence the existence of triable issue of material fact].) Counsel for plaintiffs does not claim that her clients and the other witnesses were unavailable to provide declarations in opposition to the summary judgment motion, and provides no explanation for the failure to proffer declarations which would have constituted evidence.
Nola M., supra, 16 Cal.App.4th 421 is instructive. The plaintiff was attacked and raped on defendant’s campus, and sued on the theory that the university was negligent in failing to provide security measures that would have deterred the attack. Extensive evidence was presented concerning the incidence of violent crimes on campus and the security measures taken by the university. Plaintiff’s expert sharply criticized these security efforts, but did not testify that compliance with his suggested additional measures would have prevented the attack. (Id. at pp. 424-425.) The appellate court reversed the judgment for plaintiff following jury trial on the ground there was no proof of a causal connection between any negligence by the university and the attack. It cited Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, a case involving an attack in the parking lot of Dodger Stadium by two drunks. Plaintiff’s expert witness testified that Dodger security measures were inadequate. In reversing the judgment based on failure to establish causation, the Noble court observed: “The present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers’ security didn’t comport with plaintiffs’ expert’s or the jury’s notion of ‘adequacy,’ but failing to prove any causal connection between that negligence and the injury.” (Id. at p. 918.)
The Nola M. court reviewed additional abstract negligence cases in which plaintiff’s experts testified that security measures were inadequate to prevent the injuries suffered. (See Constance B. v. State of California (1986) 178 Cal.App.3d 200 [lighting conditions at state-operated rest stop not proximate cause of assault]; Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495 [no causal nexus between breach of duty to protect patrons from reasonably foreseeable criminal acts by third parties and injuries suffered by survivors and surviving family members of restaurant massacre]; Thai v. Stang (1989) 214 Cal.App.3d 1264 [failure to provide unarmed security guard not proximate cause of injuries suffered in drive-by shooting].) It distinguished cases in which there is evidence that an injury could have been prevented by installation of a lock, fence, or other physical device, in which case the failure to do so can be a legal cause of injury inflicted by a third person. (Nola M., supra, 16 Cal.App.4th at p. 436.)
But, the Nola M. court concluded, where the attack occurred in “an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it could not reasonably have prevented.” (Id. at pp. 436-437, quoting Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at p. 918 [“‘No one can reasonably contend that even a significant increase in police personnel will prevent all crime or any particular crime’”].)
In Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, the court examined this line of cases discussing abstract negligence based on inadequate security, including Saelzler, supra, 25 Cal.4th 763 and Nola M., supra, 16 Cal.App.4th 421. The court concluded that the standard of causation is no different “simply because a school district is the defendant. It has long been held that school districts are not the insurers of the physical safety of students. (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 747.) To establish a right of recovery, a student must prove the traditional elements of actionable negligence, including causation. (Ibid.) In fact, the Government Code expressly requires proximate causation for recovery against a public entity. (Gov. Code, § 815.2, subd. (a).)” (Thompson, supra, at p. 1371.)
The Thompson court observed: “Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. [Citation.] When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery.” (Thompson v. Sacramento City Unified School Dist., supra, 107 Cal.App.4th at p. 1372.) The Court of Appeal rejected the plaintiffs’ suggestion that the mere fact that a fight occurred was sufficient in itself to establish actionable negligence: “Where, as here, a claim of ineffective supervision is not supported by competent proof of causation, summary judgment is appropriate.” (Ibid., citing Saelzler, supra, 25 Cal.4th at pp. 778, 781 .)
Here, plaintiffs presented no competent proof of causation. The record includes no evidence establishing the specific circumstances of the attacks. Plaintiffs’ answers to interrogatories submitted in support of the summary judgment motion do not provide these details, and defendants cited the allegations of the complaint in their separate statement for the circumstances of the attacks. There is no competent evidence concerning the security provided at Morningside High. Unlike the other abstract negligence cases, plaintiffs did not submit the declaration or testimony of an expert witness criticizing the security provided at the high school. The only evidence was that plaintiffs were attacked and injured, and that there was a history of altercations on the campus. Plaintiffs could not rely on “expected testimony” cited in their separate statement because this was not competent evidence. They failed to raise a triable issue of material fact as to causation on the negligence cause of action.
II
Our conclusion that there is no triable issue of material fact as to causation is fatal to plaintiffs’ alternative theory of liability, failure to perform a mandatory duty under Government Code section 815.6. The basis of this claim is Education Code section 44807, which imposes a duty on schools to supervise students on school grounds. Breach of this mandatory duty would expose defendants to liability under Government Code section 815.6, which provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Plaintiffs also rely upon Government Code section 815.2, which makes a public entity liable for injury proximately caused by an act or omission of one of its employees if the act or omission would have given rise to a cause of action against the employee.
A plaintiff seeking to hold a public entity liable under these statutes must prove that “breach of the statute’s mandatory duty was a proximate cause of the injury suffered.” (Braman v. State of California (1994) 28 Cal.App.4th 344, 349.) Since plaintiffs raised no triable issue of material fact as to causation, defendants were entitled to judgment on this cause of action as well.
DISPOSITION
The judgment is affirmed. Respondents are to have their costs on appeal.
We concur: WILLHITE, J. SUZUKAWA, J.