Metropolitan News-Enterprise


Friday, May 14, 2010


Page 1


C.A. Tosses Sex Abuse Lawsuit Against School District


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday threw out a suit against the Los Angeles Unified School District by a student who said she was repeatedly fondled by a fourth-grade elementary school teacher in Tujunga.

Div. Eight said that “S.M.” could not maintain a negligent supervision claim against the district based on repeated abuse by former Plainview Elementary School teacher Michael McMurray because she waited too long to file a required tort claim with the district.

Pointing to the minor’s testimony that she knew at the time that what McMurray was doing was wrong, the panel held that the cause of action accrued no later than the end of the school year, not when the girl told her mother of the abuse upon McMurray’s arrest over a year later.

California’s Tort Claims Act requires claimants to first present a written claim to a public entity within six months after a cause of action accrues before suit can be filed. S.M. was a student in McMurray’s class during the 2002-03 school year, but did not present her claim to the district until April 2005.

McMurray was arrested in October 2004, when another victim reported him to police. At least 10 other girls came forward accusing McMurray of fondling them, and he agreed to plead no contest to sexual abuse of a child and was sentenced to 16 years in prison.

S.M. alleged that McMurray would rub her leg while kneeling by her desk to answer questions about her schoolwork. She testified at a deposition that she felt what he was doing was wrong, and that his actions made her scared and nervous.

She also said that she and other girls fondled by McMurray agreed to keep quiet and not tell their parents what had happened out of embarrassment and fear that they might somehow be blamed.

S.M. told her mother of the abuse when her mother learned of McMurray’s arrest and asked S.M. what she knew about it.

S.M. sued, but the district sought summary judgment, arguing that her tort claim was filed too late. S.M. contended the claim was timely because the cause of action did not accrue until her mother discovered what happened in October 2004, but Los Angeles Superior Court Judge Paul Gutman granted summary judgment for the district.

On appeal, S.M. renewed her argument, asserting that her knowledge of wrongfulness was irrelevant given her age and inexperience, but the court affirmed in an opinion by Justice Laurence D. Rubin.

He wrote that S.M.’s bid to apply delayed discovery failed because she submitted nothing casting doubt on whether she appreciated the wrongfulness of McMurray’s conduct or putting her testimony in context beyond her literal words.

“[W]e do not intend to suggest a 10-year-old, or a child of any age, necessarily has a real awareness of a wrong at the moment child sexual abuse occurs, or that abused children must as a matter of law report child abuse immediately to their parents upon penalty of losing their legal claims,” Rubin said.

He added that the case “does not lend itself to the conclusion that as a matter of law a 10-year-old is or is not aware that the acts done to the child were wrongful,” but wrote that the evidence presented did not give rise to any triable issues of fact.

Rubin also concluded that the district was not equitably estopped from asserting the statutory time limits where S.M. presented no evidence of an affirmative act of intimidation or violence intended to deter her from speaking up.

Presiding Justice Tricia A. Bigelow and Justice Elizabeth A. Grimes joined Rubin in his opinion.

S.M. was represented by attorneys Victor Jacobovitz, Richard Reyes and Tyna Thall Orren. Orren, of Orren & Orren in Pasadena, declined to comment on the case, but told the MetNews her client was weighing her options on whether to seek review.

Orren noted that at least three other girls had sued the district over McMurray’s conduct, but she said that all of the other cases had been dismissed.

Jeffery J. Carlson of Carlson & Messer in Los Angeles represented the district along with Edgar De Vera. Carlson said his client was “very pleased” with the decision.

The case is S.M. v. Los Angeles Unified School District, 10 S.O.S. 2522.


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