Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC297654, Rodney Nelson, Judge. Affirmed.
Paul D. Fitzgerald and John C. Torjesen for Plaintiff and Appellant.
Haight Brown & Bonesteel, Dennis K. Wheeler, Rita Gunasekaran and J. Alan Warfield for Defendant and Respondent Los Angeles Unified School District.
Gary E. Yardumian and Todd A. Fuson for Defendants and Respondents Clairmont Academy, et al.
OPINION
WOODS, J.
INTRODUCTION
Sariah Dorlac appeals the judgment on her negligence claim entered after the trial court granted motions for summary judgment in favor of Clairmont Academy (Clairmont) and the Los Angeles Unified School District (LAUSD). On appeal, Dorlac claims the trial court erred in granting summary judgment for Clairmont and LAUSD. Specifically, she contends the lower court erred because there are triable issues of material fact concerning Dorlac’s causes of action for negligence, breach of fiduciary duty, and whether LAUSD had a nondelegable duty to supervise Dorlac or respondent Clairmont. For the reasons hereafter discussed, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Clairmont Academy, LAUSD, and Dorlac.
Clairmont was a private, nonpublic school that opened in 1998 and closed in 2003. Clairmont provided special education services to 35 to 40 students. It was not a lock-down facility; rather, Clairmont offered a “least restrictive” program that required students to remain on campus all day. The school’s owners were respondents Vern Simpson and Mark Simpson. Respondent Mark Simpson was the director of the school. Respondent Shannon Simpson was the operations manager and Individualized Education Plan (IEP) coordinator, with the responsibility for monitoring the IEPs and progress of all Clairmont students.
The LAUSD and Clairmont entered into a series of master contracts whereby Clairmont agreed to provide special education services to qualified LAUSD students. The master contract included a clause entitled “Independent Contractor,” which stated: “[N]othing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of . . . employer and employee between the parties. . . .”
Pursuant to the California Code of Regulations, these master contracts were for a term of one year and were renewable. (Cal. Code Regs., tit. 5, § 3062, subd. (a).) The master contract pertaining to this case was for the period of 2002–2003. Either the LAUSD or Clairmont could terminate the contract with notice.
Under the terms of the contract, Clairmont submitted an Individual Services Agreement and a Nonpublic Schools Enrollment form to the LAUSD for each LAUSD student Clairmont admitted and the LAUSD participated in the IEP meetings for each student. These two forms acknowledged Clairmont’s intent to provide all services to the student as specified in the student’s IEP.
The contract did not require Clairmont to provide transportation for its students. However, Clairmont operated a bus and three passenger vans. Clairmont used these vehicles to provide transportation for students if their IEP indicated such a need. Shannon Simpson described this transportation as a privilege that a student could lose by failing to follow the school’s rules, which included the prompt boarding of their assigned buses after school.
Appellant Sariah Dorlac attended Clairmont Academy from the summer of 2002 until November 2002 of her junior year; at the time relevant to this case she was 17 years old. According to Shannon Simpson and Antonio Martin, the school principal, Dorlac had a reputation among staff for being “one of the better students at the school.” She was obedient toward staff and volunteered to assist with school projects. Dorlac suffered, however, from mental disorders and conditions, which limited her school performance, attendance, and social activities. Specifically, Dorlac had a history of sexual relationships with men she had met on the Internet.
On October 17, 2002, the LAUSD and Clairmont conducted an IEP team meeting for Dorlac. The IEP evaluation form for this meeting describes Dorlac as having the disability of “emotional disturbance.” In response to her mental and emotional history, Clairmont provided Dorlac with an aide to “watch her constantly, all day, everyday while she was on campus.” The entire Clairmont staff was aware of this arrangement.
According to this evaluation, Dorlac exhibited “impulsivity, poor judgment, sexual promiscuity, poor anger control, verbal and physical aggressiveness toward her mother, running away from home, oppositional behavior, depression [sic].” At this meeting, Shannon Simpson said that the school made staff aware of Dorlac’s prior history.
Incident Giving Rise to This Action.
November 27, 2002, was the Wednesday before the Thanksgiving holiday, and Clairmont dismissed its students early at or around noon. Clairmont parked its vans in front of the school. Students were departing campus to the busses and socializing with each other before boarding. Five Clairmont staff members, Shannon Simpson, Mr. Martin, Ms. Dillon (a teacher), Mr. Brown, and Mr. Guela (a teacher), stood on the sidewalk in front of the school to supervise students as they proceeded from campus, across the sidewalk, and boarded the vans.
Dorlac, Eric Olsson, Shawn Stephens, and a third male student walked away from the vans, down the sidewalk, and toward the public stairway at the end of the street, which led to Sepulveda Boulevard. Staff members requested and pleaded with the students to return to the vans. Dorlac and Stephens did not respond to the staff’s requests. Dorlac recalled Clairmont staff calling after them as they continued to walk away from campus. The students were not touching each other as they left and Dorlac did not appear to staff to be distressed, agitated, or unwilling to go with the two boys.
Eric Olsson and Shawn Stephens also attended Clairmont Academy in 2002. According to Shannon Simpson, Eric Olsson’s IEP identified him as having an impaired ability to learn due to ADD/ADHD or impulsivity conditions. Stephens’ IEP identified him as being emotionally disturbed. According to Shannon Simpson, nothing in Olsson or Stephens’ IEPs indicated a prior history of verbal or physical violence, threats of violence, or intimidation toward Dorlac or any other student or staff member. The staff was not aware that Olsson, Stephens, or Dorlac were friends with each other. Dorlac and Olsson testified that three male students walked off campus with Dorlac; however, Dorlac testified that the student’s name was Dell, while Olsson said it was Jay Weaver.
There is no written policy regarding Clairmont or LAUSD’s specific procedures for student walk-offs. However, Mark Simpson, the school director, described the procedure: “[T]he staff was instructed to do the very best that they could to try to verbally redirect that student back on campus. . . .” Shannon Simpson added, “If they are not verbally redirectable, if you verbally cannot get them to come back and they’re not, you know, responding, that’s when you draw the line. You can only follow them so far.” Clairmont staff also understood the Education Code as not permitting them to touch the students to redirect them back to campus. If a student “willfully exits the school campus” and a teacher sees the student leave, the teacher is supposed to generate an incident report for the LAUSD and the school director would call the student’s parent or guardian.
According to staff, Mr. Martin reached Olsson, who initially stopped but then continued walking with Dorlac and Stephens. Mr. Martin followed Olsson and continued to ask him to return to campus. According to Eric Olsson’s deposition, Shannon Simpson called out to them, but they kept walking. The students proceeded down the staircase to Sepulveda Boulevard. From the top of the stairs, Mr. Martin watched the students turn south on Sepulveda. He returned to campus, retrieved his car, and drove around the block to Sepulveda heading southbound. Mr. Martin later returned to campus and reported that he had not located the students.
Ms. Dillon followed the students down the stairs and continued to ask them to return or stop and talk to her. At the bottom of the stairs, the students did not respond to Ms. Dillon, but turned right and proceeded southbound quickly. Ms. Dillon returned to campus, retrieved her car, and drove around the area. She could not locate them so she notified Ms. Simpson, and after 20 minutes drove home.
Shannon Simpson telephoned Director Mark Simpson to inform him that the students had left campus. Mark Simpson then attempted to contact the parents of the three students by telephone. Shannon Simpson also telephoned all contact numbers available for the parents of each of the students. Ms. Simpson and Ms. Dillon each telephoned the cell phone of Dorlac’s mother, but received a message that the voice mailbox was full. Ms. Simpson next called Dorlac’s home. Dorlac’s sister answered and told Shannon Simpson that her parents were not home. Dorlac’s sister told Shannon Simpson that she thought she could reach her mother and Shannon Simpson told the sister that Dorlac had left campus and that staff had been unable to find her. Mark Simpson continued that afternoon and evening to reach the students’ parents by phone and left messages describing how the students had left campus, that staff could not find them, and requested the parents return his call. Only Olsson’s mother returned Clairmont’s calls and informed the school that her son had eventually returned home. Clairmont staff was not aware of any prior instance when students refused to board their assigned vehicles.
At some point after leaving campus, the third male student left Dorlac, Stephens, and Olsson. Within a half hour of leaving campus, the three students walked to a liquor store, where Olsson and Stephens stole alcohol. In the next half hour, the three students proceeded to a park. Olsson and Stephens joined a football game and Dorlac watched them play for an hour or two. Olsson and Stephens stopped their game and sat with Dorlac in the park and the three drank alcohol. Dorlac claims that some time later at the park, Olsson and Stephens proceeded to take turns holding her down and raping her.
At the time of the incident giving rise to this action, Dorlac testified that only Olsson and Stephens were present.
Dorlac’s Legal Claims.
Dorlac sued Clairmont, its personnel and the LAUSD for civil rights violations, negligence, and breach of fiduciary duty. After two demurrers by LAUSD, the only remaining cause of action was based on California Education Code section 44808.
Clairmont’s Summary Judgment Proceedings.
Clairmont moved for summary judgment. Clairmont asserted it did not owe a duty to protect Dorlac from an unforeseeable injury that occurred several hours after she left campus. Clairmont contended that Dorlac failed to offer any evidence of any such duty, breach, or cause of her injuries. In opposition, Dorlac argued Clairmont owed a heightened standard of care to Dorlac based on her particular psychological and emotional situation. Moreover, Clairmont undertook to transport Dorlac and therefore had a duty toward her under section 44808. Additionally, Dorlac asserted her injury was foreseeable because she had a tendency to act out sexually and defy authority. In reply, Clairmont argued that section 44808 is not relevant to non-public schools. In addition, Clairmont asserted that Dorlac failed to establish any heightened standard of care that would have required Clairmont to follow Dorlac all afternoon until her parents’ regained custody.
The court granted Clairmont’s motion for summary judgment, finding that “the school did what it could to induce [Dorlac] and the three boys to get on the school bus. The court found no basis for holding them liable for the rape that occurred later.”
LAUSD’s Summary Judgment Proceedings.
LAUSD filed for summary judgment asserting it did not undertake to supervise Dorlac after school and off school grounds; that it did not breach any duty; and that any breach was not a substantial factor in bringing about Dorlac’s injuries. LAUSD further asserted that it had no duty to supervise schools to which it transferred students. In opposition, Dorlac argued that LAUSD had a nondelegable duty to supervise Clairmont and was vicariously liable for the acts of its employees. Dorlac also asserted section 44808 liability because LAUSD and Clairmont had undertaken to transport Dorlac from school and breached that duty by failing to redirect Dorlac to the van.
LAUSD replied that the court had granted Clairmont’s summary judgment motion. Therefore, since the court found the school had done “all it could” there was no basis for the court to find the LAUSD liable independent of Clairmont. The court granted LAUSD’s motion for summary judgment.
Dorlac also filed a motion for a new trial in which she asserted the same arguments she made in her oppositions to the motions for summary judgment. Clairmont and LAUSD filed oppositions and Dorlac filed her reply. The court denied the motion, stating there was no basis for granting a new trial.
Dorlac filed a notice of appeal on June 28, 2005.
Dorlac properly appeals from the judgment entered on the summary judgment order for Clairmont. However, she appeals from the order granting of summary judgment for LAUSD and the order denying her motion for new trial (not the judgment entered thereon on July 1, 2005). Respondent argues that Dorlac improperly appealed from the orders granting LAUSD’s summary judgment and denying her motion for a new trial. Because orders granting summary judgment and orders denying motions for new trials are not appealable, respondent argues the appeal should be dismissed. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761; and Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156.)
DISCUSSION
I. Standard of Review
The standard of review on appeal after an order granting summary judgment is de novo review. (Hernandez v. Department of Transp. (2003) 114 Cal.App.4th 376, 382, citing Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) The appellate court independently reviews the evidence offered by the parties on the motion, except that which the trial court properly excluded, to determine whether a triable issue of fact exists. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) The appellate court strictly construes the moving party’s papers and liberally construes those of the opposing party (the appellant). (Weiner v. Southcoast Childcare Ctrs., Inc. (2004) 32 Cal.4th 1138, 1142.) When the facts are undisputed, the question of whether the moving party is entitled to judgment is a question of law. (Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162.)
II. Dorlac’s Legal Claims
In this appeal, Dorlac asserts the trial court erred in granting summary judgment in favor of Clairmont and LAUSD. She maintains there is a triable issue of material fact presented as to whether LAUSD had a nondelegable duty to supervise students at Clairmont. She also argues there are triable issues of material fact regarding the cause of action for negligence and the breach of fiduciary duty against Clairmont. We examine the issues in turn.
1. LAUSD’s Duties to Dorlac.
Normally, one who employs an independent contractor is not liable to third parties for that contractor’s negligence. There are two major exceptions to this rule. First, under the doctrine of peculiar risk, if a party employs an independent contractor to do work that is highly dangerous, the party cannot delegate its liability. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 668.) Here, there is nothing highly dangerous about supervising schoolchildren, so this exception does not apply. Second, if the law imposes an affirmative duty on a party, that party cannot delegate its affirmative duty to an independent contractor. (Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1036; citing Snyder v. Southern Cal. Edison Co. (1955) 44 Cal.2d 793, 800.) An entity cannot escape such a nondelegable duty by entrusting it to an independent contractor. (Ibid.)
As we shall explain, while the LAUSD does owe certain nondelegable duties towards students such as Dorlac, the duty at issue here—the duty to supervise—is one the school district may delegate.
a. Affirmative Duty to Protect.
School districts have a special relationship with their students that creates an affirmative duty on the part of the school to “take all reasonable steps to protect students.” (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517.) The duty is due in part to the compulsory nature of education. (Ibid. citingCal. Const., art. I, § 28, subd. (c) [students have inalienable right to attend safe, secure and peaceful campuses]; Ed. Code, § 48200 [children between ages 6 and 18 years subject to compulsory full-time education]; and Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 714-715.) Even though there is a special relationship between school districts and students, this special relationship does not impose on districts a duty to protect students from all injury that may occur at school. (Panama Buena, supra, 110 Cal.App.4th at p. 519.) Instead, school districts have a duty to protect students from foreseeable harm. (Id. at p. 518.) Pursuant to this duty, a school district must “take all reasonable steps to protect its students.” (Id. at p. 517.) Therefore, LAUSD had an affirmative duty to take reasonable steps to protect its students and this duty is nondelegable to Clairmont. (See Felmlee v. Falcon Cable TV, supra, 36 Cal.App.4th at p. 1036.)
b. Delegable Duty to Supervise.
School districts have a duty to supervise students. (M.W. v. Panama Buena Vista Union School Dist., supra, 110 Cal.App.4th at p. 518.) Unlike the duty to protect, however, the duty to supervise is not an affirmative duty. Therefore, a district can delegate it to independent contractors.
This case involves a non-public school that contracted with LAUSD to provide an alternative to public schools in order to meet the special needs of public school students. Based on the master contract, Clairmont functioned as an independent contractor. The employer of an independent contractor is ordinarily not liable to third parties for the contractor’s negligence. (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365.) Nevertheless, the contract required Clairmont to abide by the California Education Code and follow LAUSD disciplinary procedures. In addition, both entities collaborated in IEP meetings for each student. Therefore, in the master contract LAUSD delegated the actual supervision of students, but did not delegate the process of setting standards for that supervision. Therefore, this court conducts the following analysis under the assumption that the relationship between LAUSD and Clairmont with its personnel as analogous to the relationship between LAUSD and a subsidiary public school.
A special relationship alone does not create liability for the school district. Courts base tort liability for governmental entities on statute. (Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 268, citing Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932; and Ramirez v. Long Beach Unified School District (2002) 105 Cal.App.4th 182, 188.) Section 44808 of the Education Code governs liability of school districts. This code states: “Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.
“In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.” (Ed. Code, § 44808.)
Here, Dorlac bases her claim of liability against LAUSD on section 44808. Dorlac argues that LAUSD undertook to transport her and thus the LAUSD assumed responsibility for Dorlac and failed to exercise reasonable care. We do not agree.
i. LAUSD Did Not Undertake to Transport Dorlac.
Dorlac has offered no facts suggesting that the LAUSD undertook to transport Dorlac. The master contract does not include any requirement that Clairmont provide transportation for its students. Nevertheless, Clairmont operated vehicles and undertook to transport students whose IEP indicated such a need. This undertaking was contingent on students following school rules, which included the prompt boarding of their assigned buses after school.
No case law suggests that if a non-public school under contract with a district undertakes on its own to transport students, then the district necessarily undertakes to transport for the purposes of section 44808. Nevertheless, even if this court assumes arguendo that the LAUSD did undertake to transport Dorlac by virtue of Clairmont’s undertaking, Education Code section 44808 immunity applies to Clairmont and the LAUSD because Dorlac voluntarily walked away from the school’s vehicles and did not promptly board. Based on Clairmont’s policy, Dorlac consequently lost the privilege of transportation. Therefore section 44808 immunity applies to the school and LAUSD with respect to the duty to transport Dorlac.
ii. LAUSD Remained Responsible for Students Between Their Dismissal and Boarding the Busses.
Even if the LAUSD did not undertake to transport Dorlac, LAUSD arguably maintained responsibility for students between their dismissal and the initiation of Clairmont’s transportation. While classes dismissed at noon, there was a brief period between dismissal and boarding Clairmont’s vehicles. According to the facts, at the time of the walk-off, students were moving from campus, across the sidewalk, toward the busses. Considering the undisputed facts in a light most favorable to Dorlac, the LAUSD was still responsible for supervising the students while on the campus. Therefore section 44808 immunity does not apply to the LAUSD for that brief period of time between dismissal and boarding the busses.
2. Clairmont Did Not Act Negligently Because It Did Not Breach Any Duty It Owed To Dorlac.
School districts and school authorities have a duty to “supervise the conduct of students on school grounds and to enforce rules and regulations necessary for their protection.” (Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 795; see also Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513; and Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.) Despite this duty, courts maintain schools are not insurers of pupils’ safety. (Brownell, supra, 4 Cal.App.4th at p. 795.) Courts impose on schools a standard of care “which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances.” (Id. at pp. 795-796.) Clairmont was a special education non-lockdown facility for students with behavioral and emotional problems. Therefore, Clairmont and its school authorities owed Dorlac the duty to supervise that an ordinary school would exercise under these special education circumstances.
Dorlac attempts to establish that Clairmont had a heightened duty of care, through expert testimony alone, which was breached in this instance. Dorlac maintains that the deposition of expert Ruth Navarro Frazier establishes that the standard of care for this heightened duty required Clairmont staff to keep Dorlac in their sight until she returned to her parents. We find no such duty existed. Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court. “‘The degree of care and skill required to fulfill a professional duty ordinarily is a question of fact and may require testimony by professionals in the field if the matter is within the knowledge of experts only. [Citations.] However, expert testimony is incompetent on the predicate question whether the duty exists because this is a question of law for the court alone. (Carleton v. Tortosa [1993] 14 Cal.App.4th [745,] 754-755.)’” (Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1279.) Generally speaking, in order to establish the degree of care and skill required to fulfill a duty, parties “may require testimony by professionals in the field if the matter is within the knowledge of experts only.” (Ibid.) Expert testimony, however, cannot constitute substantial evidence when it relies on conclusions or assumptions not supported by evidence in the record. (Hongsathavij v. Queen of Angels/Hollywood Presbyterian Med. Ctr. (1998) 62 Cal.App.4th 1123, 1137, citing Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) Furthermore, an expert’s opinion “cannot rise to the dignity of substantial evidence” where the expert bases his or her conclusion on speculative, remote or conjectural factors. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487; quoting Pacific Gas & Electric Co., supra, 189 Cal.App.3d at p. 1135; see also Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Here, Clairmont’s duty was to exercise ordinary care under the circumstances. However, Dorlac’s expert claims that under a heightened duty of care this standard of care required Clairmont staff to maintain “visual contact” with Dorlac until she returned to her parents. We conclude that Clairmont did not have a heightened duty, beyond acting reasonably under the circumstances, to maintain visual contact with Dorlac off campus indefinitely until she returned to her parents.
a. The Facts Do Not Reveal Any Breach of Duty in Clairmont’s Supervision of Its Students.
Generally, breach of duty is a question of fact; however, this court may determine breach as a question of law if reasonable jurors following the law could draw only one conclusion from the evidence. (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1366.) Based on the undisputed facts presented on summary judgment, there is no basis for finding any breach of duty.
i. Clairmont Informed the Staff of Dorlac’s Special Needs and Made Arrangements for Her Supervision.
Dorlac has not asserted that Clairmont acted negligently or breached any duty in the period leading up to the incident on November 27, 2002. The uncontested facts show that Clairmont took reasonable steps under the circumstances to supervise Dorlac. Clairmont’s entire staff was informed of Dorlac’s particular emotional and psychological needs as of her October 17, 2002, IEP meeting. In addition, because of Dorlac’s needs, Clairmont assigned a staff person to watch her specifically “all day every day.”
ii. Clairmont Provided Appropriate Supervision of Its Students at the Campus Bus Stop.
Dorlac does not contend any inadequacies in the supervision of the students. The facts show that Clairmont provided supervision to its students at the bus stop. After school released early on November 27, 2002, vans were waiting in front of the school and ready for students to board. Additionally, five Clairmont staff members were on the sidewalk in front of the school to supervise students as they boarded the vans. There appears to be some time between when Clairmont released the students from class and when the students boarded the bus, but this appears to be only minutes, in which students were slowly filtering toward their buses and talking with each other before leaving for the holiday.
iii. Staff Followed and Exceeded Clairmont’s Procedures for Responding to Walk-offs.
Dorlac contends that Clairmont had a duty to prevent Dorlac from walking off campus by failing to maintain visual contact with Dorlac. Dorlac also asserts the school had a duty to enforce rules necessary for children’s protection. Clairmont had a procedure in place for dealing with walk-offs. According to this procedure, the staff was to redirect the student back to campus verbally and not permitted to touch the student. If staff could not redirect the student, Clairmont did not require its staff to follow student walk-offs indefinitely. After a student walk-off, the staff would call the student’s parent or guardian.
According to the facts, Clairmont staff followed the school procedure and endeavored to enforce its rules. (Dailey, supra, 2 Cal.3d at P. 747.) Upon seeing Dorlac, Olsson, and Stephens walking away from the vans toward the end of the street, staff members attempted to redirect them verbally. The staff reports that Dorlac did not appear to be distressed, agitated, forced, or unwilling to go with the other two boys. Therefore, it appears Dorlac and the boys were leaving willfully and willingly. According to respondents, staff members pleaded that the students return to the vans. Dorlac and Stephens did not respond to the staffs’ requests. Dorlac and Olsson recall Clairmont staff calling after them as they continued to walk away from staff and campus. Based on these facts, Clairmont staff acted according to school policy for responding to walk-offs.
The facts also show that Clairmont staff continued to try to redirect the student walk-offs in a manner that went beyond the requirements of the school policy by driving around the area. Mr. Martin and Ms. Dillon followed the students to the end of the street and tried to redirect them. Failing to redirect the students upon reaching Sepulveda, a major street, Mr. Martin returned to campus, retrieved his car, and drove around the block to Sepulveda heading southbound. Ms. Dillon also retuned to campus, retrieved her car, and drove around the area to try to locate the students.
Ultimately unsuccessful at redirecting the students, Clairmont staff took the final step of calling each of the students’ parents to notify them of the walk-offs. Shannon Simpson, Ms. Dillon, and Mark Simpson each called all contact numbers available for the parents of each of the students. Shannon Simpson reached Dorlac’s sister and left her a message to relay to Dorlac’s mother that Dorlac had left campus and that staff had been unable to find her. Only Olsson’s mother returned Clairmont’s calls and informed the school that her son had eventually returned home. It is clear from these facts that staff made an earnest, repeated effort to comply with Clairmont policy and notify the students’ parents. Based on the above, Clairmont staff met and exceeded the school’s requirements for dealing with walk-offs.
b. Because Clairmont Provided Proper Supervision on Campus, It Did Not Owe a Duty of Care to Students Who Walked Off Campus.
Under section 44808, a district is not liable for injuries off campus and after school unless they were the result of the district’s negligence occurring on school grounds or were the result of a specific undertaking, which the school performed in a negligent manner. (Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 269; Ed. Code, § 44808; see also Mosley v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260, 1264.)
Dorlac contends that Clairmont’s duty to Dorlac persisted even though her injury took place off school grounds and after school dismissed. Courts have found schools and districts liable for injuries that occur off campus or after school hours. In Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, the court held that a school’s duty to supervise off school grounds could exist by virtue of the duty to supervise students while on campus. (Id. at p. 515.) In Hoyem, a ten-year-old student not under supervision left school without permission and a motorcycle hit him at a public intersection. (Id. at p. 512.) The court determined the school’s failure to address the procedures for keeping students on school grounds during the school day proximately caused the injury and that it therefore failed to provide ordinary care in supervising its students. (Id. at p. 519.) Similarly, in Perna v. Conejo Valley Unified School District (1983) 143 Cal.App.3d 292, the court held that a teacher was negligent when two students were hit by a car because the teacher had kept the students after school and dismissed them knowing that crossing guards were no longer available to supervise the students as they crossed a busy street. (Id. at pp. 293-294.) Finally, in Brownell v. Los Angeles Unified School District, supra, 4 Cal.App.4th 787, the court held a school acted negligently in failing to exercise reasonable care in dismissing students when the school knew the area surrounding the school was at risk for gang violence. (Id. at p. 794.)
The Hoyem court explained that the school was not liable for its failure to supervise the student off the school premises, but rather because it failed to exercise “due care in supervision on school premises.” (Hoyem, supra, 22 Cal.3d at p. 523; followed by Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 872.) Despite the possibility of a school’s off-campus liability for on-campus negligence, courts maintain that schools do not need to be fortresses. The court in Hoyem asserts that ordinary care does not require schools to be “truant-proof.” (Hoyem, supra, 22 Cal.3d at p. 519.)
Dorlac has not established any evidence and the uncontested facts do not reveal any failure by Clairmont to provide due care for Dorlac on-campus. Therefore, under Hoyem, Clairmont cannot be liable for Dorlac’s subsequent off-campus injury. (Hoyem, supra, 22 Cal.3d at p. 515.)
c. Clairmont Could Not Foresee Dorlac’s Injury; Therefore, Protecting Her from That Injury was Not Within Clairmont’s Scope of Duty.
Dorlac also argues that respondents had a duty to protect her from foreseeable harm by fellow students. When a special relationship exists, such as that between a school and its students, the school has a responsibility to prevent a third-party sexual assault only if the school had prior “actual knowledge” that the third party posed a risk of sexual assault. (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080-1084, citing Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 157; see also Rodriguez v. Inglewood Unified School Dist., supra, 186 Cal.App.3d at p. 717.) Courts maintain that while it is conceivable teenage boys may sexually assault a girl, this is not a sufficient basis for establishing such assault as foreseeable. (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 160.)
Dorlac contends that Clairmont knew that Olsson and Stephens posed a risk of sexual assault to Dorlac. However, Dorlac has offered no evidence to substantiate this claim. According to Shannon Simpson, Eric Olsson’s IEP identified him as having an impaired ability to learn due to ADD/ADHD or impulsivity conditions. Shawn Stephens’ IEP identified him as being emotionally disturbed. According to Shannon Simpson, nothing in Olsson or Stephens’ IEPs indicated a prior history of verbal or physical violence, threats of violence, or intimidation toward Dorlac or any other student or Clairmont staff member. Therefore, Clairmont had no basis to foresee Olsson or Stephens committing any sexual assault. Moreover, Clairmont had no basis for foreseeing any violent interaction between Olsson and Stephens and Dorlac because the staff was not aware that Olsson, Stephens, or Dorlac were friends with each other.
Nevertheless, Dorlac contends that Dorlac’s history of sexually acting out, running away from home, and defying authority should have made this injury foreseeable. However, Dorlac’s history shows she acted out sexually with adult males that she met over the Internet. This case, however, involves alleged rapes committed by Dorlac’s teenage classmates. The circumstances of this case are sufficiently different from those suggested by her history such that knowledge of her prior actions would not make the rapes in this case reasonably foreseeable. In any event, even if Dorlac’s history of acting out extended the scope of duty the school owed her, the school nevertheless satisfied that duty by calling after her, following her on foot, searching for her by car, and trying to contact her parents.
d. There Is No Fiduciary Duty Between Clairmont and Dorlac.
Dorlac asserts a fiduciary relationship exists between Clairmont and Dorlac based on her status as an IEP student. Dorlac, however, cited no legal authority for this point. There is no legal basis for the claim that a fiduciary relationship exists between a school or LAUSD and student, and we reject it on that ground.
In view of the foregoing, we conclude the trial court properly granted summary judgment in favor of the LAUSD and Clairmont.
DISPOSITION
The judgment is affirmed. Respondents are entitled to its costs on appeal.
We concur:PERLUSS, P.J. JOHNSON, J.
The notice of appeal must be liberally construed. (Cal. Rules of Court, rule 1(a)(2).) Courts construe orders granting summary judgment as incorporating the appealable judgment, and the notice of appeal as appealing from such judgment in the interests of justice and to avoid delay. (Levy v. Skywalker Sound, supra, 108 Cal.App.4th at p. 762.) Therefore, we construe the notice of appeal as appealing from the judgment entered thereon on July 1, 2005.