Metropolitan News-Enterprise


Thursday, February 24, 2011


Page 1


S.C. to Consider Liability for Molestation by Guidance Counselor




The California Supreme Court yesterday agreed to decide whether a school district can be held liable to a man who claims he was molested by a high school guidance counselor.

The justices, at their weekly conference in San Francisco, voted 5-2 to grant review to the now-18-year-old plaintiff in C.A. v. William S. Hart Union High School District (2010) 189 Cal.App.4th 1166. Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Kathryn M. Werdegar, Carlos Moreno, and Carol Corrigan voted to hear the case, with Justices Joyce L. Kennard and Ming Chin opposed.

The Court of Appeal for this district, Div. One, held on Nov. 5 in a 2-1 decision that the counselor could not have been acting within the scope of her employment, and that school districts are immune from liability on theories of negligent supervision, hiring, or training, or failure to warn, train, or educate.

The student filed suit in 2009, claiming he was molested on numerous occasions in 2007. The Court of Appeal opinion did not name the school or the counselor, but The Signal, an area newspaper, identified her as Roselyn Hubbell of Golden Valley High School.

Counselor Resigned

Hubbell resigned in 2008 after being accused of improper conduct with two students. The Signal said she tried to check into a motel with an underage boy—not the plaintiff—and was required to register as a sex offender.

No charges were filed involving C.A. because he delayed reporting what transpired, the newspaper said. The molestations involving C.A., according to those accounts, took place at several locations, including the boy’s home, to which his mother had given Hubbell access, believing that the counselor was merely talking to the boy about school matters.

Los Angeles Superior Court Judge Melvin Sandvig sustained the district’s demurrer, finding that Hubbell was acting outside the scope of her employment, and that the plaintiff’s statutory sexual harassment claims could not be brought against a public entity.

No Vicarious Liability

Justice Jeffrey Johnson, writing for the Court of Appeal, said the district could not be held vicariously liable under a respondeat superior theory. He noted that earlier cases have rejected similar claims based on molestation by teachers, and said there was no apparent basis for treating a claim involving a guidance counselor any differently.

Even if the relationship between student and guidance counselor differs from the student-teacher relationship, the justice added, the district still could not be liable because the plaintiff “makes no effort to explain how sexual misconduct with a student could possibly fall within the scope of a guidance counselor’s employment.”

The justice went on to say that the direct liability claims were barred by sovereign immunity. The plaintiff, he said, failed to identify a statutory exception that would allow those claims.

Justice Frances Rothschild concurred in the opinion.

Presiding Justice Robert Mallano dissented, arguing that while the district could not be held liable for Hubbell’s intentional misconduct, “it may be liable through respondeat superior for the negligence of other employees who were responsible for hiring, supervising, training, or retaining her.”

Mallano noted that, by statute, a public entity is liable for any injury caused by an employee acting within the scope of his or employment if the employee would also be liable for such injury. A number of cases hold that school employees may be liable for failure to supervise students adequately, and the same rationale supports imposition of liability if, as alleged, school officials knew the counselor had molested other students but did nothing about it, the presiding justice reasoned.

“These administrators, who had a duty to protect students from harm, were required, within the scope of their employment, not to hire a guidance counselor they knew to be a child molester,” he wrote. “After the counselor was hired, they had to take appropriate action within the scope of their employment to supervise, train, and, if necessary, discharge the counselor, whom they knew to be a continuing threat.”

In other conference action, the justices left standing a ruling by this district’s Div. Two that requires former soap opera actress Lisa Marie to pay nearly $233,000 to the crown princess of Greece for wrongfully withholding a $75,000 security deposit for a lease on a Beverly Hills home.

That ruling, in an unpublished opinion, said Princess Marie-Chantal was entitled to actual damages plus twice the amount of the deposit because Lisa Marie, who appeared on General Hospital in 1980, acted in bad faith when she withheld nearly $59,000 of the deposit.

The princess sued in 2008, claiming that Marie’s deductions for alleged damage to furniture stored in the home were unsupported. Marie-Chantal also contended that deductions for photography and administrative expenses, and for loss of estimated rent were not permitted under California’s security deposit law, Civil Code Sec. 1950.5.

The Los Angeles Superior Court entered a default judgment against Marie in November 2008 after she failed to answer. The actress, through attorney Kathryn Stanton, moved later that month to quash service of process, claiming that the summons was only left on her doorstep, but Judge Zaven V. Sinanian denied the motion after Marie-Chantal provided a declaration by a process server who said he personally served a woman who identified herself as Marie.

The judge said Marie failed to demonstrate any attorney fault. He entered judgment for the princess and awarded her $225,000 in damages, plus $17,299.89 in prejudgment interest and $582.80 in costs.

On appeal, Marie argued that Sinanian should have quashed the service of process, but Presiding Justice Roger W. Boren said the process server’s declaration gave the trial court “ample proof” of service warranting entry of the default.

He also wrote that the trial court did not abuse its discretion in denying relief from the default because Marie failed to show any misconduct by either of her attorneys.


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