Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC364060 Conrad Aragon, Judge.
Hadsell Stormer Keeny Richardson & Renick, Barbara Enloe Hadsell, Dan Stormer and Natalie Nardecchia for Plaintiff and Appellant.
McCune & Harber, Dana John McCune and Jessica O. Gillette for Defendant and Respondent.
WILLHITE, J.
INTRODUCTION
Plaintiff Jennifer Singer appeals from judgment entered by the trial court in favor of defendant and respondent Las Virgenes Unified School District (LVUSD) after the trial court granted LVUSD’s motion for summary judgment in this action arising out of Singer’s sexual harassment by a teacher employed by LVUSD, Fletcher Reel.
Singer contends on appeal that she should be allowed to try her claims of negligent failure to protect her, negligent infliction of emotional distress, and sexual harassment. According to Singer, the trial court used the wrong “framework” for evaluating Singer’s negligence claims, and she in fact put forth sufficient evidence to show that LVUSD knew or should have known of Reel’s misconduct, and to show that LVUSD failed to exercise due care at all times to take all reasonable steps to protect her. Singer contends the court erred (1) when it purportedly ruled that she could survive summary judgment only if she put forth conclusive evidence that LVUSD actually knew Reel subjected Singer to inappropriate sexual conduct throughout the years; (2) by holding her to higher standards than controlling legal authority dictates as to duty, foreseeability, and causation; (3) by disregarding significant evidence establishing liability, including negligence per se, as LVUSD breached its statutory duties; (4) by sustaining LVUSD’s demurrer to her cause of action for sexual harassment; (5) by sustaining LVUSD’s objections to evidence offered by Singer in opposition to the motion for summary judgment; and (6) by denying a continuance of the hearing on the motion for summary judgment to permit consideration of the deposition testimony of a district representative.
We disagree with each of Singer’s contentions on appeal and accordingly conclude that the trial court properly entered summary judgment in favor of LVUSD. In addition, we conclude that any error committed by the trial court in sustaining LVUSD’s demurrer without leave to amend as to Singer’s cause of action for sex discrimination was necessarily harmless. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
Singer filed a complaint against LVUSD and Fletcher Reel in December 2006. The causes of action asserted against LVUSD included sex discrimination and harassment, violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), battery, assault, childhood sexual abuse, negligent supervision, negligent failure to protect, and negligent and intentional infliction of emotional distress. Singer alleged that defendants engaged in unlawful sex discrimination, and that they or their agents or employees sexually harassed her, and failed to take adequate preventive and corrective action. With regard to her causes of action for assault, battery, and sexual abuse of a child, Singer alleged that Reel’s acts were authorized or ratified by LVUSD, occurred within the course and scope of Reel’s employment, and that LVUSD failed to provide adequate training to prevent the conduct from occurring. In her remaining tort causes of action, Singer alleged that LVUSD was under a duty to exercise due care in taking reasonable steps to protect its students, and to hire, train, and supervise its personnel properly. LVUSD breached its duty by failing to supervise Reel, and knew or should have known that he engaged in inappropriate, tortious conduct of a sexual nature. She alleged that LVUSD breached its duty of due care by failing to conduct a proper investigation before hiring Reel, and by failing to properly train and supervise him.
Singer’s father, Richard Singer, was also a named plaintiff to the complaint; however, he is not a party to this appeal.
Singer alleged that she was a student at Calabasas High School (CHS) from September 2002 through February 2006. Beginning in her sophomore year (2003/2004), she was enrolled in various classes taught by Reel. Reel frequently commented on her appearance, hugged her, kissed her cheek, discussed sexual activities he engaged in, and inquired about her sex life. Singer observed Reel engaging in the same kind of conduct with numerous female students. Singer alleged that another teacher at CHS, Ian Godburn, frequently sat in on Reel’s classes and observed Reel’s inappropriate conduct. In March 2006, another student reported Reel’s inappropriate sexual conduct to her psychiatrist, who then reported it to the school administration. The administration interviewed Singer and other female students regarding Reel’s conduct, and asked Singer to prepare a written statement. She was also interviewed by the sheriff’s office. One of the school counselors, Tiffany Cozzi, told Singer that Reel would be back at school the following day, but not to worry because Reel would not “take it out on” Singer or the other girls. Singer was distressed and fearful at the prospect of seeing Reel, but in fact he was not in class. As a result of these events, Singer was psychologically unable to finish the remainder of her senior year at CHS, and instead completed her high school courses through home schooling and taking a course at another high school. At no time did anyone at CHS offer her counseling or suggest that she talk to her parents, or a psychologist or therapist.
The Demurrer
In March 2007, the trial court sustained LVUSD’s demurrer to Singer’s first cause of action for sex discrimination and harassment, and her second cause of action for violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Thereafter, Singer voluntarily dismissed her causes of action for assault, battery, and intentional infliction of emotional distress.
The Motion for Summary Judgment
In April 2008, LVUSD filed a motion for summary judgment, or in the alternative summary adjudication of issues, supported by a separate statement of undisputed material facts.
The issues asserted by LVUSD as being subject to summary adjudication included the following: LVUSD could not be held vicariously liable for Reel’s alleged sexual abuse of a child; LVUSD did not negligently supervise Reel; LVUSD did not negligently fail to protect Singer; Singer lacked sufficient evidence that LVUSD breached its duty to Singer; there was insufficient evidence to establish that LVUSD’s conduct was a substantial factor in bringing about injury to Singer; and Singer could not maintain a cause of action for negligent infliction of emotional distress against LVUSD.
LVUSD asserted that the following facts were undisputed. Singer alleged that Reel’s inappropriate acts first occurred during her sophomore year, when he commented repeatedly about her dresses and that she looked good. During her sophomore year, Reel hugged her once or twice a week, and kissed her on the check about 10 to 15 times. Singer was not aware of any teacher, administrator, or other LVUSD employee ever hearing Reel’s comments or observing him hugging or kissing her. Singer did not complain about Reel’s actions during her sophomore year, and she was not aware of anyone else complaining about Reel to school employees.
During Singer’s junior and senior years, Reel hugged her at least once every day, and kissed her on the cheek about twice a week. He began talking to her about his sex life, and inquiring about her sex life. During her junior year, Reel made her uncomfortable by instructing her to play the role of a girl whose father caught her having sex with a boy and telling her not to act as if she was putting her clothes back on. She did not tell any adults about her discomfort with this incident. During her senior year, Reel squeezed Singer’s upper thigh and touched her shoulders and neck. Singer did not know of any administrator, teacher, or district employee being aware of any of Reel’s conduct or comments.
Singer received a student handbook that contained prohibitions against sexual harassment. She felt she had an understanding of what constituted sexual harassment. She understood that she could file a complaint or grievance for sexual harassment, and that a student could report harassment, intimidation, or threats to the administration.
The first time LVUSD received any complaints regarding Reel’s inappropriate sexual conduct was in March 2006. The students who were interviewed regarding Reel’s inappropriate behavior in March 2006 told Singer that they did not say anything about Reel earlier. Singer first told her father about Reel’s conduct shortly after Principal Jackson interviewed her. Singer did not recall providing the district with the names of students who said mean things to her for reporting Reel.
Reel’s background check prior to his employment with LVUSD showed no history of any sexual misconduct or any indication of such proclivities. Reel’s personnel file contained an April 2002 letter from his former employer, Duval County Public Schools, confirming Reel’s employment as a teacher and indicating he received satisfactory evaluations. Reel completed an “application for character and identification clearance, ” in which he stated he (1) had never been convicted of any felony or misdemeanor offense; (2) had never had any credential or application for credential suspended, revoked, voided, or otherwise denied or rejected for alleged misconduct in California or elsewhere; (3) had never been dismissed, resigned from, entered into a settlement agreement, or otherwise left school employment to avoid investigation or dismissal for alleged misconduct in California or elsewhere; (4) was not the subject of any inquiry, review, or investigation by any licensing agency in connection with any alleged misconduct; (5) had never had any outstanding criminal charges pending against him in California or elsewhere; (6) and had never had any disciplinary action taken against any professional or vocational license in California or elsewhere.
In June 2002, Reel submitted a “duty to report child abuse” form, in which he stated that he had knowledge of the child abuse reporting requirements of Penal Code section 11166. He also acknowledged receipt of the LVUSD policy regarding sexual harassment.
In June 2003, Reel agreed to comply with and observe all provisions of the rules and regulations prescribed by the governing board of LVUSD and follow the orders of the administration of LVUSD relating to his employment. In August 2005, Reel acknowledged that he received and reviewed the 2005/2006 policies and procedures for teachers, which addressed sexual harassment. LVUSD employees attended annual staff meetings, at which they were informed of district policies and procedures, including its policy regarding sexual harassment. At the annual staff meetings and at other professional development, faculty, and staff meetings, teachers were informed of the district’s policies regarding teacher’s conduct with students and supervision of students. Teachers were reminded to refrain from engaging in inappropriate behavior with students. Other materials addressing misconduct by teachers were distributed throughout the school year.
The Opposition to the Motion for Summary Judgment
Singer disputed that during her senior year no other teacher was aware of discussions or conduct that occurred involving her and Reel. Ian Godburn, a Calabasas High School English teacher, was often in Reel’s classroom during Singer’s senior year, and Singer thought he “would’ve had to have been in the classroom on one occasion or another when Mr. Reel would have touched [her] or another girl or said something because [Godburn] was in there so often.” On one occasion, Reel said something inappropriate to Singer regarding the Kobe Bryant rape case, and in response Godburn asked if he needed to leave the room because of it. Singer believed Godburn was in the classroom on numerous occasions when Reel made sexual comments to her and other students. Another student, Joshua Nebenzahl, confirmed that Godburn came into Reel’s classroom during Singer’s senior year, before school started and during lunch. Nebenzahl stated that Godburn “most likely knew what was going on regarding Mr. Reel’s inappropriate behavior.” Godburn stated that he did not know if Reel made any jokes of a sexual nature in class. Godburn did not remember if he ever asked Reel if he needed to leave the room because of a conversation between Reel and a student. Godburn said Reel talked to students about topics besides school work.
Singer disputed that she received a student handbook that contained prohibitions against sexual harassment. She purchased a student handbook that had language about sexual harassment, but it did not contain any description of sexual harassment or prohibition against sexual harassment by adults, did not provide information regarding the procedures for making a complaint of sexual harassment, and did not encourage students to report sexual harassment. The handbook only informed students that they would be subject to disciplinary action if they harassed other students. Principal Jackson did not know if a written policy existed regarding a procedure for a student to complaint about sexual harassment by a teacher. Sherry Bronow, who was charged with educating students on sexual harassment, stated there was also a “Parent, Student, and Staff Legal Notification Handbook” that was mailed to parents, and parents were asked to sign a “legal notification/hold harmless” acknowledgment card. LVUSD had not produced an acknowledgment card signed by Singer’s parents. Bronow did not know if there was any way of knowing whether students understood the policies and procedures set forth in the legal notification document mailed to parents. Students were told that harassment of one another of any kind would not be tolerated.
Singer also disputed that she had an understanding of what constituted sexual harassment. She was not given any documents or verbal instruction about making a complaint. She stated in her declaration that she did not understand while she was a student that a teacher could sexually harass a student. Singer spoke to other female students about how uncomfortable Reel’s behavior made her, but they felt there was never anything they could do about it. Singer did not understand that she could file a complaint or grievance. She only understood that it was unacceptable for students to harass other students.
Regarding Singer’s discussions with other girls who were interviewed in March 2006 regarding Reel’s conduct, Singer clarified that she assumed the girls had been interviewed, because they had the same contact with Reel that she did, and discussed with them the fact that they were sad they did not say anything earlier.
Singer did not dispute that Reel’s background check showed no history of sexual misconduct, but she pointed out that Joseph Guidetti and Dan Stepenosky did not attach a background check to their declarations, and she argued that as a result their testimony to that effect lacked foundation and constituted hearsay.
Singer offered numerous additional facts in opposition to the motion for summary judgment. Regarding details of Reel’s inappropriate behavior, she added that he told her about that his wife “gave him amazing head the night before and how amazing their sex life was, ” and that he and his wife liked to have sex with other couples. Another student, Joshua Nebenzahl, stated that Reel told Singer to sit on his lap or his desk almost every class, asked about her boyfriend and their sex life, and flirted with Singer and made sexual innuendos.
Singer told Jackson and the school counselor, Cozzi, in March 2006 that Reel had been touching her, asking about her sex life and discussing his open marriage, and making her feel uncomfortable. Singer stated at her deposition that she was uncomfortable about Reel’s behavior toward her, but she did not talk to him about it because she was afraid, and did not know how to go about telling the person in control of her grade, and an authority figure she thought liked her and treated her as an adult, that he was making her uncomfortable. She did not want him to treat her differently when it came to the work that she enjoyed doing in his class. She never complained about Reel because she felt “petrified” of what Reel would say or do, she was concerned about her grade, she did not want other students to be mad at her, and she did not know what the process was for complaining about Reel. Another student, Chelsea Moore, told Jackson that Reel asked if she and her boyfriend wanted to have sex with him and his wife, and asked her to have sex with him. An unnamed student told Jackson and Cozzi that Reel said he had had sex with students many times. Reel offered to give two female students blow job lessons. A secretary at the school, Michelle Garrison, told Jackson and Bronow that Reel knew all about the sex lives of the students, often made inappropriate sexual innuendos and comments, and made a pass at her during an outing to happy hour after work. Garrison heard, probably from a student, that if a female student gave Reel hugs, she would get an A in his class. Reel told Garrison that he had sex with the mother of a student during a summer theater camp program at CHS, and they were seen by a maintenance man. Reel also told Garrison about jobs he had in other states and all the girls he has had sex with. Reel’s conduct made Garrison uncomfortable but she did not tell anyone who worked at CHS until she was interviewed by Jackson and Bronow; before then she did not see that there was a need to tell anybody. Secretary Lorraine Thompson told Jackson that she had heard rumors about Reel, so she stayed away from him. She heard that he was a swinger. Thompson saw a female math teacher sitting on Reel’s lap during an evening outing with CHS employees.
Reel said that he and Tiffany Cozzi, the head school counselor, were good friends, and they discussed sex fairly regularly. Cozzi said that Reel told her he had an open marriage. He came on to her sexually and said she should try that type of open relationship with him. Cozzi heard that Reel was also attracted to Thompson and Garrison. Cozzi said it was “well-known throughout CHS that Mr. Reel talks about intimate details of his life and does not keep that private at all.”
Assistant Principal Joseph Skaff received a call from a private therapist on March 2, 2006, telling him that Reel had been seen by a student romantically kissing a female student (one of Reel’s teacher’s aides). Jackson, LVUSD Assistant Superintendent Hanke, and a union representative met with Reel on that date. Reel worked the remainder of that day and the next day, and was placed on paid administrative leave on March 3, 2006 until January 25, 2007, when he apparently resigned. Skaff did not have complete information about the incident involving Reel kissing a student, so he did not report the incident to child protective services.
We recognize the trial court sustained respondent’s hearsay objection to this evidence, but we consider it to demonstrate that even if improperly excluded, its admission would not have altered the outcome.
The CHS policy was to place the responsibility on teachers to inform students about sexual harassment. The “Title IX coordinator” for CHS from 2002 until 2006, Sherry Bronow, who was in charge of ensuring compliance with state laws regarding sexual harassment and staff training on sexual harassment, did not provide sexual harassment training for the students. Bronow did not inform students that retaliation against complainants was prohibited, or that they could make anonymous complaints. Bronow had available an incident report that students could complete if they reported sexual harassment to her, but students were not informed about the existence of the incident report until they made a complaint. Bronow could identify only one staff development meeting during the 2005-2006 school year that addressed sexual harassment. Skaff, the assistant principal and the current Title IX officer at CHS, did not know of any document that a student could refer to in order to determine what to do if a teacher was sexually harassing them. Jackson admitted there were no formal follow-up steps taken to ensure that teachers talked to students about sexual harassment, that students knew who the sexual harassment coordinator was and where information about harassment could be viewed, or that students knew sexual harassment could occur between a teacher and student. A posting allegedly placed at the school directed students to contact Bronow regarding sexual harassment.
Reel said the sexual harassment training he received from LVUSD did not tell him that he could not engage in sexual banter with his students. He did not believe his engaging in sexual banter with students was sexual harassment, and he did not know whether engaging in sexual banter with students in front of other students was allowed under LVUSD’s sexual harassment guidelines. Reel admitted female students had sat on his lap at school, but he said there were no LVUSD policies of which he was aware that prohibited this from occurring. Reel said he was present hundreds of times when he and other teachers heard sexual commentary by students; he considered it part of the culture and did not report it to the administration.
Bronow said that if she was offended by a sexual joke, even if students were not offended, it would be considered harassment; she could not say if it would be sexual harassment if students did not feel a negative impact. Skaff stated that in order to constitute sexual harassment, sexual conduct had to be unwelcome, so if a student had no objection, it would not be harassment.
Skaff stated that there was no training informing CHS staff how to address situations in which students talked about sexual issues around staff members. He did not know if students frequently talked about sex in front of teachers during the 2005-2006 school year.
After Singer was interviewed by school personnel about Reel in March 2006, Singer told Cozzi that she was being harassed by some football players because she had spoken to adults at CHS about Reel, and that she was getting a lot of questions asked of her. Some people were angry with her because they knew that she was one of the girls involved in being questioned by school personnel about Reel. No one gave Singer advice on what she should do about the retaliation she experienced, no one asked her who was harassing her, and no one offered her any assistance regarding the harassment. Cozzi was not aware of any policies or procedures regarding protecting students from retaliation if they complained about harassment. Bronow did not offer any follow-up to the female students interviewed in March 2006, and had no idea if anyone else did either. She did not take any steps to prevent retaliation against the students who were interviewed regarding Reel. Singer was never told that the school prohibited retaliation against complainants. After Singer was interviewed, she was told by Cozzi that Reel would be back at school the next day, but that she did not need to worry because Reel “[would]n’t take it out on you or the other girls.” Singer’s schedule was not changed to avoid her having Reel as her teacher. Singer and her parents decided that Singer would finish the school year at home because of the harassment Singer was receiving at school. Singer and her parents met with Jackson to discuss home schooling; at the end of the meeting, Jackson kissed Singer on the hand, which upset her given the circumstances.
Reel was criminally prosecuted and pleaded guilty to two counts, including one count that related to Singer. Reel admitted to joking with Singer about a sexual experience she allegedly had with her boyfriend. Reel stated that he was not certain if he engaged in sexual banter with students in front of other teachers at CHS.
Singer asserted that LVUSD failed to comply with its Administrative Regulation (AR 5145.7) and section 231.5, subdivision (e) of the Education Code by failing to provide a copy of the district’s sexual harassment policy and regulation as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session as applicable. It also failed to comply with its Board Policy (BP 5145.7), cf. 1312.3 – Uniform Complaint Procedures, by failing to even attempt to prohibit retaliatory behavior against any complainant or any participant in the complaint process. It also failed to comply with its Board Policy (BP 5145.7), cf. 5141.4-Child Abuse Reporting Procedures, by failing to “ensure that appropriate action [was] promptly taken to end the harassment, address its effects on the person subjected to the harassment, and prevent any further instances of the harassment.”
It also failed to comply with its Board Policy (BP 5145.7) regarding sexual harassment by failing to ensure students received age-appropriate information related to sexual harassment, and by failing to assure students that they need not endure any form of sexual behavior or communication, or endure, for any reason, any harassment which impaired the educational environment or a student’s emotional well-being at school.
The Ruling
In July 2008, the trial court heard LVUSD’s motion for summary judgment. Thereafter, it entered judgment in favor of LVUSD on September 3, 2008.
This timely appeal followed.
DISCUSSION
I. The Motion for Summary Judgment
A. Standard of Review
“Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. A defendant bears the burden of persuasion that “[o]ne or more of the elements of the cause of action” in question “cannot be separately established, ” or that “defendant establishes an affirmative defense” thereto. (Code Civ. Proc., § 437c, subd. (o).) The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he or she carries the burden of production, he or she causes a shift, and the opposing party is then subjected to a burden of production of his or her own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
B. Statutory Bases for Imposing Governmental Tort Liability
It must be noted at the outset that, contrary to Singer’s assertion, governmental tort liability is dependent upon the existence of an authorizing statute or enactment. (Gov. Code, § 815.) “Under the California Tort Claims Act (Gov. Code, § 810 et seq.), ‘a public entity is not liable for injury arising from an act or omission except as provided by statute. (Gov. Code, § 815, subd. (a); [citation].)’ (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 630-631.) Thus, in California, ‘all government tort liability must be based on statute [citation].’ (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2.) ‘“In the absence of a constitutional requirement, public entities may be held liable only if a statute... is found declaring them to be liable.”’ (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 481.)” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 (Hoff), fn. omitted.)
Singer asserts that she “was not required to establish that any particular statute was violated to hold LVUSD liable.”
1. Vicarious Liability
Government Code section 815.2, subdivision (a) provides the statutory basis upon which a public entity may be found vicariously liable in tort. It provides: “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.” “Through this section, the California Tort Claims Act expressly makes the doctrine of respondeat superior applicable to public employers. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.) ‘A public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable. [Citations.]’ (Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157.) Under section 820, subdivision (a), ‘[e]xcept as otherwise provided by statute..., a public employee is liable for injury caused by his act or omission to the same extent as a private person.’ Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).’ (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463, fn. omitted.) [¶] Through these statutes, ‘the Legislature incorporated “general standards of tort liability as the primary basis for respondeat superior liability of public entities....” [Citation.]’ (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 209-210.) Under them, ‘a school district is vicariously liable for injuries proximately caused by [the] negligence’ of school personnel ‘responsible for student supervision.’ (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 (Dailey); see also Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 235 [under § 815.2, ‘school districts are liable for the negligence of their employees’].)” (Hoff, supra, 19 Cal.4th at pp. 932-933.)
Thus, LVUSD’s liability under section 815.2 depends on whether CHS school personnel, acting within the course and scope of their employment with the district, breached any duties owed to Singer by failing to protect, supervise, and educate Singer, and by failing to properly train and supervise Reel, resulting in the injury suffered by Singer.
Singer does cite, in her appellant’s opening brief, these Government Code sections pertaining to vicarious liability. We note also that in response to LVUSD’s demurrer, the trial court recognized that Singer had failed to identify in her pleadings Government Code sections 815.2 and 820 as the statutory bases for her claims against LVUSD. The court ruled that “[t]hose vicarious liability statutes are sufficient to support plaintiff’s fifth, sixth, seventh and eighth causes of action. (Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448.) Nothing would be accomplished, except for a loss of time and further needless effort, by requiring amendment of the pleadings to identify the statutes by name in the allegations. The demurrer on this ground is overruled.”
We note that Reel’s misconduct as an employee of the school district does not give rise to vicarious liability. It is well established that the conduct of teachers who sexually molest students under their supervision will not be imputed to school districts to permit recovery by injured students from the employing districts under the doctrine of respondeat superior. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447-452 [teacher’s sexual assault of student not within scope of employment]; see also Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545, 547-549.)
As we understand Singer’s claims, she asserts that LVUSD may be held liable for the negligence of its employees, generally falling into three categories: (1) failure to protect her from a teacher known to be or reasonably suspected to be a sexual harasser; (2) failure to supervise and educate her about sexual harassment, and to train Reel regarding sexual harassment, so as to prevent its occurrence or its continuation; and (3) failure to protect her from retaliation arising from her participation in the protected complaint process. We will address each assertion in turn.
a. Failure to Supervise and Protect Singer from a Known or Reasonably Suspected Sexual Harasser
i. Duty
In Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848 (Virginia G.), a junior high school student brought an action against a school district for injuries arising out of her sexual molestation by a teacher. In that context, the appellate court set forth the general framework applicable to such lawsuits. “‘As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.” [Citations.]’ (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203.) [¶] In Rodriguez v. Inglewood Unified School Dist [(1986)] 186 Cal.App.3d 707, we recognized that ‘a special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students.’ (Id. at p. 715.) Thus, the District had a duty to protect Virginia G. from assaults by her teacher.” (Virginia G., supra, 15 Cal.App.4th at p. 1853.)
Similarly here, we recognize preliminarily that a special relationship existed between LVUSD and Singer, such that LVUSD had an affirmative duty to take all reasonable steps to protect students such as Singer from being sexually harassed by teachers, including Reel. However, the existence of a duty of care depends also on whether the harm to plaintiff was reasonably foreseeable. (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1459; see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125.) We next consider whether Singer put forth facts sufficient to support her contention that Reel’s misconduct was reasonably foreseeable.
ii. Foreseeability
Individual school employees responsible for supervising students have a duty of care to protect students from harm, where the employees knew or reasonably should have known of the risk of the particular harm. (Virginia G., supra, 15 Cal.App.4th at p. 1854; see also Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459.) Under the circumstances in the present case, as the court found in Virginia G., “while [the teacher’s] conduct in molesting [the student] will not be imputed to the District, if individual District employees responsible for hiring and/or supervising teachers knew or should have known of [the teacher’s] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision, including [plaintiff], the employees owed a duty to protect the students from such harm. (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 453; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459.)” (Virginia G., supra, 15 Cal.App.4th at p. 1855.)
In the case before us, we conclude as a matter of law that Singer has not set forth any facts establishing that LVUSD employees responsible for hiring or supervising Reel knew or should have known that Reel posed a reasonably foreseeable risk of harm to his students. LVUSD established that it performed a background check on Reel which revealed no prior sexual misconduct or any other reason which would support a claim that LVUSD was negligent in hiring Reel. In opposing the motion for summary judgment, Singer did not press that claim. Singer did present ample evidence, which we need not recount in detail here, that Reel’s students were well aware of his inappropriate behavior with students, including Singer. It was well known among the students that he frequently engaged in frank sexual banter, and had certain “favorite” female students whom he treated inappropriately. However, Singer did not establish that any district employees responsible for supervising Reel were aware of his improper conduct with students. Singer was not specifically aware of any teacher, administrator, or other LVUSD employee ever hearing Reel’s comments or observing him hugging or kissing her. Singer did not complain about Reel’s actions, and she was not aware of anyone else complaining about Reel to school employees (until March 2006).
Singer argues on appeal that she raised a triable issue of fact regarding whether another teacher, Godburn, witnessed Reel’s inappropriate behavior. Even assuming that a failure by a fellow teacher to report Reel could potentially form a basis of liability for the district, Singer’s evidence of Godburn’s knowledge of Reel’s conduct is entirely speculative. Singer speculated at her deposition that Godburn “would’ve had to have been in the classroom on one occasion or another when Mr. Reel would have touched [her] or another girl or said something because [Godburn] was in there so often.” Singer believed Godburn was in the classroom on numerous occasions when Reel made sexual comments to her and other students. The only specific incident Singer could recount was when Reel said something inappropriate to Singer regarding the Kobe Bryant rape case, and in response Godburn asked if he needed to leave the room because of it. Another student, Joshua Nebenzahl, similarly speculated that Godburn “most likely knew what was going on regarding Mr. Reel’s inappropriate behavior.” (Italics added.) Such speculation does not raise a triable issue whether Godburn witnessed any inappropriate behavior by Reel, and further fails to suggest that LVUSD knew, or reasonably should have known, that Reel was engaging in, or likely to engage in, sexually abusive and harassing conduct toward students.
We again note that the trial court sustained respondent’s objection to this evidence, but we consider it to demonstrate that even if improperly excluded, its admission would not have altered the outcome.
Singer also points to evidence that: (1) Reel frequently discussed sexual matters and engaged in sexually charged conduct with other adult employees; (2) adult employees were aware that Reel knew a lot about the sexual activities of his students; and (3) on one occasion, a secretary, Michelle Garrison, heard, “probably” from a student (Garrison could not recall when she heard it or from whom), that if you were a girl and hugged Reel, you would get an “A” in his class. But Reel’s conduct with adult employees and his awareness of the sex lives of his students do not make it reasonably foreseeable that he would sexually harass students. And that on one occasion a secretary heard a rumor that girls would get an “A” if they hugged Reel is likewise insufficient in itself to suggest that employees of LVUSD with the responsibility of supervising Reel were on notice of facts making it reasonably foreseeable that Reel would engage in sexual harassment of students. Moreover, the secretary explained that on a high school campus, there are “so many things that you overhear and so much gossip going on, ” and given how frequently students exaggerated as rumors spread around campus, she did not believe the comment was anything more than exaggerated gossip. In sum, Singer failed to raise a triable issue whether it was reasonably foreseeable that responsible district employees knew or should have known that students required protection from sexual harassment by Reel.
b. Failure to Supervise and Inform Singer, and Reel, Regarding Sexual Harassment
Singer contends that LVUSD is also subject to liability based on its negligent failure to adequately train its staff, including its administrators, regarding sexual harassment, and to provide students with any training, guidance, or documents regarding sexual harassment, including information regarding the complaint procedure.
Initially, we note that Singer inaccurately characterizes the efforts made by LVUSD to inform its staff and students about sexual harassment recognition, prevention, and reporting. Singer likens the situation present here to those in Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 (Juarez), and Faragher v. Boca Raton (1998) 524 U.S. 775 (Faragher), in which the defendants entirely failed to disseminate any information regarding sexual molestation or harassment. However, here there was not a complete failure to provide Singer and the staff with information and resources regarding sexual harassment. Nonetheless, for analysis we will assume that LVUSD’s supervisory efforts regarding sexual harassment education and prevention were inadequate, and focus instead on whether Singer presented evidence from which a jury could reasonably conclude that she had established causation, i.e., that it is more probable than not that adequate measures would have prevented her injury. “When an injury occurs despite a defendant’s efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail. For analysis purposes, courts assume duty and breach and focus upon causation.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1370 (Thompson).)
Because we assume the existence of a duty to instruct students and staff regarding sexual harassment, and its breach, we need not discuss Singer’s assertion that her injury was foreseeable in the absence of adequate safeguards because LVUSD knew of the prevalence of sexual harassment in schools.
The discussion of causation in Thompson, supra, 107 Cal.App.4th 1352 is instructive. “[In Saelzler v. Advanced Group 400 [(2001)] 25 Cal.4th 763], the plaintiff, who was criminally assaulted while attempting to deliver a package at the defendant’s apartment complex, alleged that better security measures would have prevented the assault. The court observed that proof of causation cannot be based upon speculation and conjecture, and that a mere possibility of causation is insufficient. (Id. at pp. 775-776.) To establish causation, the plaintiff must demonstrate some substantial link or nexus between omission and injury. (Id. at p. 778.) The plaintiff must show it was more probable than not that different security precautions would have prevented the attack. (Id. at p. 776.) In the absence of actual proof of causation, an expert’s opinion that better security measures would have prevented the assault is nothing more than speculation and conjecture and is insufficient. (Id. at p. 777.) The court went on to reject the plaintiff’s argument for a ‘common sense’ or ‘practical approach’ that would permit cause to be inferred from the hindsight observation that the injury occurred. (Id. at p. 778.) The court also rejected the suggestion that the burden of proof on the causation issue should be shifted to the defendant. (Id. at p. 780.) It is the plaintiff’s burden to establish causation by competent evidence. (Ibid.) [¶] The standard 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, 107 Cal.App.4th at p. 1371, italics added.) While causation is ordinarily a question of fact for a jury to determine, when only one conclusion may reasonably be drawn from the facts, the question becomes one of law for the court to determine the legal consequences of such facts. (Banville v. Schmidt (1974) 37 Cal.App.3d 92, 106.)
As to causation, Singer contends that adequate instructional and preventative measures would have accomplished the following: she and other students would have understood sexual harassment, including that sexual harassment by a teacher could occur, Singer and other students would have known the complaint procedure and that complainants were supposed to be protected from retaliation, and therefore Singer (and possibly other students and staff) would have complained prior to March of 2006, and Reel would not have continued to sexually harass students for years.
These assertions are premised on the supposition that Singer did not know that what Reel was doing was sexual harassment, and that she did not know she could complain or how to go about doing so, because school officials failed to inform her of those things. The facts elicited in support of the motion for summary judgment, and in opposition, belie these assumptions. Singer stated at deposition that she felt she had an understanding of what constituted sexual harassment, and when asked immediately thereafter, “Did you feel during your sophomore[, junior, and senior] year[s] that he [Reel] sexually harassed you?” Singer replied “Yes.” She was then asked, “Throughout that period of time did you understand that you could if you chose and felt strong enough to do so file a complaint or grievance for sexual harassment?” She again replied, “Yes.”
Singer filed a declaration in opposition to summary judgment that contradicted this testimony. In the declaration, she stated that no school officials told her how to make a complaint, and she did not understand while she was a student that a teacher could sexually harass a student. “Where a party’s self-serving declarations contradict credible discovery admissions and purport to impeach that party’s own prior sworn testimony, they should be disregarded. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522.)” (Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473.) We therefore disregard Singer’s declaration to the extent Singer contradicted her deposition testimony that she believed she understood sexual harassment, that during her sophomore, junior, and senior years she felt that Reel sexually harassed her, and that during that time she understood that she could file a complaint for sexual harassment.
Moreover, Singer failed to raise a triable issue that further efforts to disseminate information concerning sexual harassment and reporting it would have made any difference in her failure to complain about Reel. At her deposition, Singer stated that while she was his student, she considered Reel a friend. He treated her as an adult and she liked that. Regarding one incident, in which Reel instructed Singer and a male student to act as if naked, Singer testified that she did not complain to Reel himself because “I was afraid to.... I don’t know how to go about telling the person who is in control of my grade and an authority figure, and I think likes me as a person and treats me as an adult [that] what he is doing is making me uncomfortable because I didn’t want him to treat me any differently when it came to the actual work that I enjoyed doing in the forensics class.” She also explained that after that incident, she made no effort to transfer to another theater class because “I didn’t want him to get in trouble for what he was doing and I also wasn’t comfortable going up to an adult and saying this is what he had me do.” Singer admitted that when first interviewed by Jackson, the school principal, concerning Reel’s behavior, he told her that she was not in any trouble, but she initially did not tell the truth, because “I didn’t want to be the one to tell on him. I wasn’t sure what they knew at the time. I didn’t want anybody to be mad at me and I didn’t want Mr. Reel to be angry with me that I would say things against him.”
Thus, in the main, Singer’s failure to report Reel was due to her wish not to get him in trouble, and her wish not to be the one who complained about him. She failed to produce any evidence sufficient to raise a triable issue that it is more likely than not that the measures she now contends should have been taken – e.g., providing students with a complaint form, explaining that retaliation for complaining was forbidden – would have led her (or any other student) to complain about Reel earlier. Indeed, even when initially interviewed by the principal about Reel’s inappropriate conduct and assured she was not in trouble, Singer did not tell the truth about Reel.
Furthermore, Singer’s contention that school officials failed to properly inform Reel about sexual harassment, and that such failure caused her injuries, also fails. Singer relied on Reel’s deposition testimony to the effect that the district’s training did not inform him that he should not engage in sexual banter with students, or have physical contact with students such as having female students sit on his lap. The notion that a teacher such as Reel who believes it appropriate to engage in such behavior would have been deterred by more detailed instructions is questionable. In any event, the CHS 2005/2006 policies and procedures, which Reel acknowledged receiving, plainly stated: “Sexual Harassment: Presentations must be given to all students each year regarding sexual harassment: what it is, how to avoid it, how to handle it, whom to see if there is a problem. If a student should talk to you about a problem he/she is having, please direct him/her to a counselor or administrator. We must be very careful about any comments we make to students and to each other. What you might consider a ‘joke’, a meaningless statement, or a casual physical contact may be taken the wrong way by a student or colleague. Each of us could be held personally accountable for such actions. Refrain from ANY inappropriate language around students in or outside of the classroom. Please report any incidents to Sherry Bronow immediately.” (Boldface in original.) Given the extent of Reel’s misconduct (e.g. offering lessons in oral sex and expressing a desire to engage in group sex with a female student and her boyfriend), it is entirely speculative to suggest that additional or more thorough sexual harassment training probably would have prevented him from engaging in inappropriate sexual behavior with students.
Finally, we address the assertion that training other staff members to recognize sexual harassment would have prevented or foreshortened Reel’s misconduct. As we discussed above regarding foreseeability, there was nothing of which the other school officials were aware that would have made a reasonable person know or suspect that Reel was sexually harassing students. Even if they had a more thorough understanding of sexual harassment, they would not have known that intervention was needed regarding Reel. As soon as school officials became aware of Reel’s harassment, they acted swiftly and decisively to end it. Reel was immediately placed on leave of absence and Singer did not have to interact with him again. Singer further contends, however, that she suffered additional injury because CHS officials failed to properly handle matters after she complained about Reel because they traumatized her and permitted retaliation to occur against her. We turn next to discussion of these allegations.
c. Failure to Protect Singer from Retaliation
As the trial court noted here, “[t]here was nothing in the pleadings, no cause of action relating to retaliation for making a complaint.” Accordingly, the court disregarded the events occurring when Singer made her complaint and thereafter which she alleged constituted improper retaliation. Singer argues on appeal that she “was not required to plead retaliation as a separate cause of action, as LVUSD had a duty to protect its students during the complaint process, including [preventing] retaliation against complainants.” We disagree.
“‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ (Turner v. State of California (1991) 232 Cal.App.3d 883, 891.) Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265.) ‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.” [Citation.] [Plaintiff’s] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]’ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-1202, fn. 5.)” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs); see also cases discussed therein, at pp. 1253-1257.)
In Laabs, for example, the plaintiff asserted in her operative first amended complaint a cause of action against a city for premises liability based on the theory that her injuries were caused by a dangerous condition of public property in that there was inadequate sight distance at an intersection, and therefore another driver did not perceive the approaching vehicle in which plaintiff was a passenger. Plaintiff alleged that the city was negligent in designing, constructing, and controlling the road conditions, and by failing to install warning signs or devices. (Id. at pp. 1249-1250.) The city moved for summary judgment on the basis that it did not own or control one portion of the location at issue, that the intersection was not in a dangerous condition as a matter of law, and that the city was entitled to design immunity pursuant to statute and also to statutory immunity for failure to provide warning signals or devices. (Id. at p. 1250.) In opposing summary judgment, the plaintiff argued that the placement of a light pole constituted a dangerous condition that contributed to the severity of her injuries. (Ibid.) The trial court granted the motion for summary judgment. (Ibid.)
On appeal, the city argued that because plaintiff made no allegations in her complaint that the physical location of the light pole was a basis for dangerous condition liability, the appellate court could not consider the issue in determining the propriety of the trial court’s grant of summary judgment. Plaintiff argued that the placement of the light pole, while not specifically referenced in her complaint, was “‘closely tied to the City’s dangerous condition liability which was clearly alleged in plaintiff’s complaint.’” (Id. at p. 1252.) The appellate court rejected plaintiff’s argument. The court noted that the operative pleading did not make any reference to the fact that the vehicle in which plaintiff was riding struck a light pole. The additional fact, raised for the first time in opposition to the motion for summary judgment, “shifts the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint. It attempts to predicate liability on a totally different condition, not the least bit involved with the intersection or inadequate sight distance.” (Id. at p. 1258.) In upholding the grant of summary judgment, the appellate court observed: “Upon a motion for summary judgment, amendments to the pleadings are readily allowed. [Citation.] If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. [Citation.] To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.” (Id. at p. 1258.)
The situation before us is comparable. Rather than seeking leave to amend her complaint to add factual allegations regarding the district employees’ handling of post-complaint retaliation against her, Singer merely raised those facts in her own separate statement in an effort to defeat summary judgment. We conclude that this was insufficient to expand the issues LVUSD was required to address on summary judgment.
After LVUSD objected in its reply papers that Singer was attempting to raise unpleaded allegations regarding retaliation, Singer did not seek leave to amend prior to or even during the hearing on the motion. In the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings. (See Laabs, supra, 163 Cal.App.4th at p. 1257, fn. 6.)
2. Direct Liability
Having thus concluded that Singer did not demonstrate the existence of facts sufficient to support her claims that LVUSD could be held vicariously liable for the acts of its employees, we next consider whether Singer established any basis for direct liability against LVUSD. A public entity may be liable for an injury directly as a result of its own conduct or omission, rather than through the doctrine of respondeat superior, but only “as... provided by statute.” (Gov. Code, § 815; see Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131); de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 251, 255-256.)
Government Code section 815.6 provides for direct liability of a government entity for failure to discharge a mandatory duty. It 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.” “Cases interpreting [Gov. Code, § 815.6] have noted that it establishes a three-pronged test for determining whether liability may be imposed on a public entity: (1) the enactment in question must impose a mandatory, not discretionary, duty; (2) the enactment must be intended to protect against the kind of risk of injury suffered by the party asserting the statute as the basis of liability; and (3) the breach of duty must be a proximate cause of the plaintiff’s injury. [Citation.]” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688-689.) “The plaintiff must show the injury is ‘“one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.”‘ (Hoff v. Vacaville Unified School Dist. [supra] 19 Cal.4th 925, 939, fn. omitted.)” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.)
Singer asserts on appeal that LVUSD breached mandatory duties set forth in Education Code section 200 et seq., and in the Uniform Complaint Procedures set forth in the California Code of Regulations, title 5, sections 4600-4687 (as well as its own internal policies adopted pursuant to these statutes). According to Singer, LVUSD failed to abide by its mandatory duties set forth in these enactments in the following manner: (1) failing to provide a copy of the District’s sexual harassment policy and regulation to students (LVUSD administrative regulation 5145.7, and Ed. Code, § 231.5, subd. (e)); (2) failing to prohibit retaliatory behavior against participants in the complaint process; (3) failing to ensure appropriate action is taken to end harassment, address its effects, and prevent further instances of harassment (LVUSD Board Policy No. 5145.7); (4) failing to ensure students receive age-appropriate information related to sexual harassment (ibid.); (5) failing to assure students they need not endure any form of sexual behavior or communication, including harassment because of sexual orientation (ibid.); (6) failing to assure students they need not endure harassment which impairs the educational environment or the student’s emotional well-being at school (ibid.); and (7) failing to publicize antidiscrimination and antiharassment policies to pupils, including information about the manner in which to file a complaint, pursuant to Education Code section 234.1. According to Singer, these alleged breaches establish negligence per se.
We note that Education Code section 234.1 was enacted in 2007, after the occurrence of the events at issue in this case. (Stats. 2007, ch. 566, § 2.)
Thus, the alleged mandatory duties set forth in the enactments relied upon by Singer, which she argues LVUSD breached, relate to the manner in which CHS, acting through its employees, was required to educate its students and staff about sexual harassment and to provide complaint procedures to redress grievances. In other words, the enactments impose the duties already discussed above regarding vicarious liability, which Singer alleged CHS school administrators breached. The same failure of causation applies here, such that even if we assume without deciding that the enactments impose mandatory, not discretionary, duties, and that the enactments are intended to protect against the kind of risk of injury suffered by Singer, we conclude that the alleged breaches were not the proximate cause of Singer’s injury. (Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 499.) She did not set forth facts from which a jury could reasonably conclude that her injury would have been prevented had LVUSD followed the statutory requirements in the manner Singer argues it should have done.
C. Negligent Infliction of Emotional Distress
Having thus concluded that the trial court properly granted summary judgment as to Singer’s claim for negligent failure to supervise and protect, we also conclude that her claim for negligent infliction of emotional distress is not viable. As Singer concedes, there is no independent tort of negligent infliction of emotional distress; it is merely a means of recovering damages for the tort of negligence. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)
II. The Demurrer to Singer’s Cause of Action for Sexual
Discrimination and Harassment
Singer attempted to allege in her complaint a cause of action for sex discrimination and harassment in violation of Education Code sections 200, 212.5, 220, 230, and 231.5. She averred that defendants and their agents or employees sexually harassed her and failed to take adequate preventive and corrective action, and that they are liable for sex discrimination perpetrated against her in the provision of programs or activities conducted by an educational institution. The trial court sustained LVUSD’s demurrer without leave to amend to this cause of action, finding that Singer “ha[d] not alleged the loss of any educational opportunities or adverse differential treatment attributable to [LV]USD’s discriminatory animus against female students.”
Respondent contends that Singer’s failure to specify in her notice of appeal that the appeal was also taken from the order sustaining the demurrer precludes consideration of this issue on appeal. However, a prior nonappealable order or ruling need not be specified in the notice of appeal from a subsequent appealable judgment or order. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 668-669; see also Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425.) We therefore consider the propriety of the court’s order sustaining respondent’s demurrer without leave to amend.
“In determining whether the complaint alleges facts sufficient to state a cause of action, we treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also consider matters of which the court may or must take judicial notice (ibid.; Code Civ. Proc., § 430.30, subd. (a)).” (Freis v. Soboroff (2000) 81 Cal.App.4th 1102, 1104.) Furthermore, we note that “a reviewing court reviews the judgment rather than the reasons for the judgment and must affirm the judgment if any of the grounds stated in the demurrer is well taken. [Citations.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)
Respondent argued in its demurrer that Singer lacked sufficient facts to pursue a cause of action for sex discrimination and harassment (Ed. Code, §§ 200, 212.5, 220, 230 & 231.5), because she failed to plead actual knowledge or actual notice of the alleged conduct by an appropriate LVUSD official, or that upon actual knowledge or notice of the alleged conduct, LVUSD acted with deliberate indifference, which caused plaintiff to experience sexual harassment or made her more vulnerable to it. In her complaint, Singer alleged that defendants or their agents or employees sexually harassed her, and failed to take adequate preventive and corrective action. She also alleged that she believed another teacher, Godburn, was in the classroom on numerous occasions when Reel engaged in inappropriate conduct.
Education Code section 200 et seq. provides for a private right of action for intentional discrimination on the basis of sex, which may include sexual harassment. (See Ed. Code, §§ 201, 212.5, 220, 262.4 [enforcement of chapter through civil action]; Franklin v. Gwinnett County Public Schools (1992) 503 U.S. 60. 75 [Title IX placed on school district duty not to discriminate on basis of sex, and “‘when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex’”; same rule applies when teacher sexually harasses and abuses a student].) In Education Code section 201, subdivision (g), the California legislature specifically declared its intent that such an action under the Education Code shall be interpreted as consistent with Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681, et seq.), inter alia. Under these antidiscrimination and harassment provisions, a plaintiff may maintain an action for monetary damages against a school district when the plaintiff alleges that the school district knew or should have known in the exercise of its duties that plaintiff was being sexually harassed and the school district failed to take steps reasonably calculated to end the harassment. (See Nicole M. v. Martinez Unified School Dist. (N.D.Cal. 1997) 964 F.Supp. 1369, 1374-1378, citing Franklin v. Gwinnett County Public Schools, supra, 503 U.S. 60.)
Singer’s allegations that LVUSD or its agents sexually harassed her and failed to take adequate preventive and corrective action, and that Godburn was aware of Reel’s misconduct, were arguably insufficient to state a cause of action for sex discrimination. However, at the time the court sustained the demurrer, Singer could have amended her complaint to adequately allege that the school district knew or should have known of Reel’s misconduct and thereafter acted with deliberate indifference. The basis for the trial court’s ruling on the demurrer, that Singer failed to allege the loss of educational opportunities or adverse differential treatment attributable to discriminatory animus against female students, is problematic. For purposes of this appeal, we will assume without deciding that the trial court erred in sustaining the demurrer without leave to amend. We conclude, however, that any error in the trial court’s ruling on the demurrer was necessarily harmless. Considering the factual exposition afforded by LVUSD’s summary judgment motion and Singer’s opposition thereto, it cannot be said that LVUSD knew or reasonably should have known prior to March 2006 that Reel was sexually harassing Singer. Upon learning of the harassment, it immediately took steps reasonably calculated to end Reel’s harassment. Had the trial court overruled the demurrer and the cause of action for sex discrimination had remained in place, it would have been subject to summary judgment on the basis that Singer failed to raise triable issues of fact regarding LVUSD’s knowledge of the harassment. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 107 [erroneous preclusion of proper legal theory does not require reversal without showing of prejudice]; see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802 [explaining standard of prejudice].)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: EPSTEIN, P.J., MANELLA, J.
Furthermore, we note that Singer contends the trial court erred by denying her request to continue the hearing on the motion for summary judgment in order to permit her to rely on the deposition testimony of LVUSD Assistant Superintendent Hanke for purposes of establishing the existence of a duty. However, because we assume for purposes of our analysis the existence of a duty and its breach, we conclude that even if the trial court erred by refusing to continue the hearing, any error was harmless. Reliance on Hanke’s deposition testimony would not have altered the outcome. Singer also mentions in her appellate brief that she requested a continuance to permit her to discover additional facts regarding Reel’s guilty plea to the criminal charge pertaining to Singer, summarily stating that such facts could provide further proof of breach of duties. Based on this inadequate explanation of the relevance of such evidence, we find no abuse of discretion occurred.