Opinion
C076641
04-21-2017
ZACHARY RIEDL, Plaintiff and Appellant, v. WESTERN PLACER UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV 0031671)
Plaintiff Zachary Riedl was injured in a fight with another student, Cody B., on their way to their high school but off school property, specifically, on the sidewalk or street in front of the school. Riedl sued Western Placer Unified School District for negligence, but the trial court granted summary judgment because Education Code section 44808 provides a school with immunity for a student's injuries that did not occur on school property and under circumstances in which the school did not undertake to supervise the students on their way to school. The trial court's ruling was consistent with precedent of this court, Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 871 (Bassett).
Phoenix High School principal Michael Doherty was also named in Riedl's complaint, and judgment was entered in his favor after the summary judgment ruling. We need not discuss his liability separately because Riedl raises no issues on appeal relating to Doherty only.
Riedl appeals. Ignoring Bassett and similar authorities in his opening brief, he argues that, because violence between Riedl and Cody B. was foreseeable, the school was negligent in failing to supervise the combatants. As did the trial court, we conclude that, under Education Code section 44808, the school had no duty to supervise Riedl and Cody B. on their way to school and that foreseeability, by itself, did not bestow such a duty. We therefore affirm.
STANDARD OF REVIEW
"A motion for summary judgment 'shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c, subd. (c).) In considering a request for summary judgment by a defendant, the statute instructs that such a party 'has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. (p)(2).) An appellate court reviews de novo a trial court's decision to grant a summary judgment motion. [Citation.]" (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1346 (Cerna).)
MATERIAL FACTS
Riedl makes several factual statements in his opening brief without providing a citation to the record on appeal to support those statements. Rule 8.204(a)(1)(C) of the California Rules of Court requires each party to support any reference to a matter in the record by a citation to the record. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) To the extent Riedl has recounted factual matters without record citations, we disregard such matters. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)
Phoenix High School is a school in defendant Western Placer Unified School District (the District).
On December 5, 2011, students Riedl and Cody B. had a verbal dispute in a class at Phoenix High School. Riedl was called to meet with principal Doherty in the office and was sent home early to avoid further contact with Cody B. that day. Also, Cody B.'s class schedule was changed with the notation, "can't be in class w/[Riedl]."
The next morning, between 7:45 and 8:00, before classes began, Riedl was standing on the sidewalk or curb in front of the school when Cody B. approached, walking up the street or sidewalk. Riedl said he did not want to fight, but he flicked his cigarette at Cody B.'s face.
The fight was short, occurring on the sidewalk, curb, and street in front of the school. Riedl alleges he was injured as a result of being struck by Cody B.
Additional facts are recounted later in the discussion.
PROCEDURE
Apparently, Riedl filed a complaint naming Western Placer Unified School District and Doherty as defendants, alleging causes of action for negligence and premises liability.
Riedl did not designate the complaint as part of the record on appeal. This is problematic because the issues to be resolved are framed by the pleadings. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1018.) On this ground, Riedl forfeited review of the trial court's resolution of those issues. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) In any event, as will be seen, Riedl's contentions are without substantive merit.
The District filed a summary judgment motion, arguing, among other things, that it was immune from liability under Education Code section 44808. Riedl opposed the motion, but the trial court ruled in the District's favor. The court found that the District was immune from liability under Education Code section 44808 because the fight did not occur on school property and the school had not undertaken to supervise the students off school property.
Riedl appeals the ensuing judgment.
DISCUSSION
I
Education Code section 44808 Grants Immunity Here
Education Code section 44808 provides: "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."
In enacting Education Code section 44808, "the Legislature was principally concerned with limiting a school district's liability for injuries to pupils either before or after school hours while children were either going to school or coming home after school." (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517 (Hoyem).)
On its face, Education Code section 44808 therefore grants immunity any time the student is off school property unless: (1) the school has undertaken to provide transportation for the student; (2) the school has undertaken a school-sponsored activity off school property; (3) the school has otherwise specifically assumed responsibility; or (4) the school "has failed to exercise reasonable care under the circumstances." We have held, along with other appellate courts, that the fourth exception, referring to failure to exercise reasonable care, does not create a separate duty but instead refers to the failure to exercise reasonable care in one of the three mentioned undertakings. (Bassett, supra, 140 Cal.App.4th at pp. 871-872; see also, e.g., Cerna, supra, 161 Cal.App.4th at p. 1354 [First App. Dist., Div. Four]; Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 129 (Wolfe) [First App. Dist., Div. Two]; Torsiello v. Oakland Unified School Dist. (1987) 197 Cal.App.3d 41, 48-49 [First App. Dist., Div. Four]; contra, Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 301 .)
"In essence, the section grants a district immunity unless a student was (or should have been) directly supervised during a specified undertaking. The language 'failed to exercise reasonable care under the circumstances,' while set off by an 'or' as if meant to be a self-sufficient basis for liability, has correctly been construed as requiring such failure during one of the mentioned 'undertakings.' To construe it as an independent basis for liability would be to say, absurdly: A district is never liable in negligence unless it acts negligently. Also, the breach must be of a duty, a duty created through one of the undertakings. [Citation.] 'The "reasonable care" phrase enunciates a standard of care and as such cannot exist in a vacuum; in the absence of a duty to which it applies, the phrase is meaningless.' [Citation.]" (Wolfe, supra, 56 Cal.App.4th at p. 129, italics omitted.)
In Hoyem, which predated the cited Court of Appeal decisions, the Supreme Court said that Education Code section 44808 withdraws immunity "whenever the school district, inter alia, 'has failed to exercise reasonable care under the circumstances.' " (Hoyem, supra, 22 Cal.3d at p. 517, original italics, fn. omitted.) Refinement by the Court of Appeal decisions, however, have limited this statement to situations in which the school has undertaken supervision off school property.
"The Hoyem court's statements about [Education Code] section 44808 are problematic. On the one hand, we are told the Legislature intended section 44808 to free school districts from liability for accidents to students en route to school, consistent with the then existing common law. (Hoyem, supra, 22 Cal.3d at p. 518.) On the other hand, we are told the Legislature intended to hold school districts liable for every failure to exercise reasonable care. (Id. at p. 517.) Which of these apparently conflicting interpretations of section 44808 are we to follow? [¶] Litigants and jurists have grappled with this problem for 30 years. The consensus of decisions from the Court of Appeal is that 'section 44808 limits the liability of schools for after-hours, off-campus activity, absent a specific undertaking.' [Citation.] 'The portion of section 44808 that refers to failing to exercise reasonable care does not create a common law form of general negligence; it refers to the failure to exercise reasonable care during one of the mentioned undertakings.' [Citation.]" (Cerna, supra, 161 Cal.App.4th at p. 1356.)
Here, Riedl and Cody B. fought off school property, on their way to school; therefore, the District had no duty to supervise them. Also, the District did not undertake to supervise them. (We discuss Riedl's contentions to the contrary in the next part of this discussion.) Under these circumstances, Education Code section 44808 provided the District with immunity from liability for Riedl's injuries sustained in the fight with Cody B. Riedl, who fails even to mention Bassett until his reply brief, fails to convince us otherwise.
II
Riedl's Remaining Contentions are Without Merit
Having recounted the law in this regard, we turn to Riedl's arguments for not extending immunity to the District under Education Code section 44808. He contends: (1) the District failed to supervise the front of the campus; (2) the District asserted control over the sidewalk and street in front of campus by having a policy that the students not loiter there; (3) the fight was foreseeable; and (4) the District is liable for its on-campus negligence even if the injury is suffered off school property. None of these contentions successfully establishes error in the trial court's granting of summary judgment.
Before we consider these contentions, however, we must discuss the parties' disagreement about what evidence we may consider.
In his opening brief, Riedl recounts facts that he did not include in his separate statement in opposition to the summary judgment motion, but instead included them only in the various documents filed in opposition to the summary judgment motion. The District argues that we should disregard those facts, and Riedl responds that we should consider them. We need not resolve this controversy because, even considering all admissible evidence submitted by Riedl in opposition to the summary judgment motion, the trial court properly granted summary judgment.
Rule 3.1350(f)(3) of the California Rules of Court provides, in part: "If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement."
Riedl also asserts that we must reconsider the trial court's evidentiary rulings, especially those finding some of his evidence was inadmissible. However, he does not provide argument or citation for why the evidence was admissible. Instead, he simply writes, in his reply brief, "since this is a de novo review, this Court may also review and determine if the objections to RIEDL's evidence were ruled on correctly, and consider such evidence if the objections should have been overruled instead of sustained." This argument betrays Riedl's misconception of appellate review. We presume the trial court's rulings were correct unless the appellant establishes the contrary. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Having failed even to attempt to show that the evidentiary rulings were erroneous, Riedl forfeited any consideration of that issue on appeal. (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
A. Failure to Supervise Front of Campus
Riedl argues that the fight could have been prevented if only the District had supervised the front of the school adjacent to the sidewalk and street where the fight took place. This argument fails because Education Code section 44808 grants immunity for injuries occurring off school property, unless there is a specific undertaking of responsibility, and the fight occurred off school property.
B. Assertion of Control over Sidewalk and Street
Riedl claims that the District asserted or assumed control over the sidewalk and street in front of the school because the District had a policy barring students from congregating and smoking in front of the school. We disagree that this policy constituted an undertaking on the part of the District to protect the students.
Riedl submitted evidence of a District policy concerning loitering. The policy states: "[District] policy prohibits loitering within two blocks of any school in the district by any student of the district." Riedl also submitted evidence that the District prohibited students from smoking in front of the school and sometimes told them to go across the street or down the street.
Other than saying that the District "asserted control over the area of the incident," Riedl does not say how this policy and these actions constituted an undertaking on the part of the District to protect the students under Education Code section 44808. The policy and actions did not, contrary to what Riedl argues, make the sidewalk and street in front of the school part of the school premises.
Riedl points to a school record that states that Riedl and Cody B. were warned that they would be suspended for any fighting on school property and were later suspended after the fight in question here. However, this evidence does not establish that the fight occurred on school property and does not rebut the direct evidence that the fight actually occurred off school property, on the sidewalk, curb, and street.
The school record, which appears to be from Phoenix High School, states in a "comment": "[Riedl] and another PHS student had words on 12/05/12. Both students were warned that a fight on school grounds would result in suspension from school. The next day on the way to school in front of PHS, the students got into a fight, both boys were landing and exchanging punches. This was a mutual combat situation. As a result both students were suspended from school. [Riedl] sustained some serious injuries when he fell backwards to the ground hitting his head on the pavement." --------
Finally, Riedl argues that he "also presented evidence that the incident occurred in the loitering area, an area which includes the grassy area which [the District] admit[s] is on the premises, as opposed to a pin-point spot wherever RIEDL's head sustained the damaging blows to the head. A jury could thus conclude the incident took place on the premises by being in the 'loitering area.' " For this argument, Riedl provides no citation to the record. Therefore, for the purposes of appeal, no such "facts" exist, and no jury could have found in Riedl's favor on this issue. (See ante, fn. 2.)
There is no evidence that the District assumed responsibility for students within two blocks of any school, or even in front of a school, and there was no evidence the fight occurred on school property. Accordingly, Education Code section 44808 grants immunity.
C. Foreseeability of the Fight
Riedl claims: "California courts have held that a school has a duty to protect students against violent acts of third persons off the school campus if the danger is known or reasonably foreseeable." To the contrary, the District is not liable for a student's off-campus injuries unless it undertook to supervise the student off-campus, as stated in Education Code section 44808.
In support of his argument, Riedl cites Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787. In that case, a student left campus and was shot and wounded by gang members on the street in front of campus. The student sued the school for negligence, and the jury returned a verdict for the student. The Court of Appeal reversed, holding that the school was not liable because the injury to the student was not foreseeable. (Id. at pp. 797-798.) In dicta, the court wrote that Education Code section 44808 allows a school to be held liable for off-campus injuries if the school " 'assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.' " (Id. at p. 795.) However, as we noted above, that is a misinterpretation of Education Code section 44808. There must be an undertaking, not simply a failure to exercise reasonable care under the circumstances. Thus, establishing that the fight between Riedl and Cody B. was foreseeable was insufficient to impose liability on the District.
D. Negligence Taking Place on School Property
Riedl contends that, even if we find that the fight took place off school property, an act of negligence committed by the District on campus led to the injury. This contention is without merit because no on-campus negligence led to the fight.
In Hoyem, the Supreme Court held that a school could be held liable for injuries suffered by a 10-year-old student after he left campus early, without permission, and was hit by a motorcycle. The Supreme Court wrote that liability could arise because of the school's on-campus negligence of failing to supervise the child adequately to prevent the child from leaving school. (Hoyem, supra, 22 Cal.3d at p. 523.)
Here, there was no similar on-campus act that led to Riedl's injuries. Riedl and Cody B. were on their way to school; therefore, they had no yet come under the supervision and care of the District.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON, Acting P. J. We concur: HULL, J. RENNER, J.