Wednesday, August 14, 2013
C.A. Revives Action Claiming School District Failed to Prevent Rape
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday reinstated a former Claremont High School student’s claim that the school district failed to protect her from being raped by another student, despite knowing that the perpetrator had victimized another student.
Div. Five, in an unpublished opinion, partially reversed Los Angeles Superior Court Judge Bruce Minto’s order granting summary judgment to the Claremont Unified School District. The ruling allows the plaintiff, who was identified only by the initials A.R., to sue the district for negligence, although the dismissal of her claims for intentional and negligent infliction of emotional distress was affirmed.
A.R.’s parents transferred her out of the Claremont district following a February 2010 incident at Cahuilla Park, which is just north of the high school and was used by the school’s athletes. A.R., who ran track at the school, said a football player raped her in the bathroom.
The football player was suspended from school and arrested. The inter-district transfer that allowed him to attend Claremont, even though he lived in the Pomona Unified School District, was revoked.
Plea of No Contest
His full name was not used in the opinion, but the Pomona College student newspaper reported that Tyler Singleton, 18 at the time, pled no contest to two felony charges of unlawful sex with a minor in April 2010. The Claremont Courier reported last year that Singleton, the football team’s leading rusher before the incident, was placed on probation in the case, with a term of 180 days in jail, and was subsequently accused of another sexual assault.
In opposing the district’s summary judgment motion, A.R.’s lawyers presented evidence that her assailant and another student had sexually assaulted another young female, identified as R.R., one evening after summer school in 2008. The student and her mother allegedly reported the assault to a summer school teacher, who took no action.
The assault was subsequently reported to a police officer serving as resource officer at the school, who concluded that the incident was consensual, even though the girl was underage, according to A.R.’s evidence. The female student eventually transferred to another school, after her father filed a request stating that she had been the “Victim of sexual assault and sexual harassment.”
In granting summary judgment, Minto ruled that—to the extent the claim was based on the district allowing the assailant to transfer into and remain at the school—the district had discretionary immunity. He further ruled that the district was immune because the alleged assault occurred off-campus outside school hours.
But Justice Richard Mosk, writing for the Court of Appeal, noted that the school district itself argued that it had to allow the student to transfer in once it concluded that he met certain criteria, contrary to the trial judge’s ruling that his admission was discretionary as a matter of law. Besides, the justice wrote, “even if the act of allowing T.S. to remain in school were discretionary, there was a triable issue of fact as to the negligence in the investigation” that led to the conclusion that he met the academic and “good behavior” criteria for a transfer.
Mosk also noted that the district presented no evidence to support a claim of discretionary immunity with respect to “the decision, if any, of any CHS employee about whether or not to discipline, suspend, or expel T.S. after R.R. and her parents repeatedly informed CHS officials of T.S.’s alleged sexual assault of R.R.”
Mosk went on to conclude that there was sufficient evidence that the school treated Cahuilla Park as functionally being part of its campus to preclude summary judgment on that issue.
Justice Sandy Kriegler concurred in the opinion. Presiding Justice Paul Turner concurred separately, distinguishing Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787.
In that case, the LAUSD was held not liable to a student who was shot by gang members off-campus. While the school he attended was located in a gang-infested neighborhood, the court held that the school was not required to monitor gang activity outside the campus in order to determine when it was safe to release students.
In A.R.’s case, Turner wrote, there is a triable issue as to whether school personnel complied with the district’s policies concerning sexual assault after learning of the incident involving R.R.
The presiding justice also questioned prior Court of Appeal decisions treating the decision to expel or not expel a student as discretionary for purposes of immunity. Turner argued that such decisions are “operational” rather than discretionary, and thus not imbued with immunity.
Attorneys on appeal were Martin N. Buchanan, along with David N. Bigelow and Molly B. Weber of Girardi Keese, for the plaintiff and Ric C. Ottaiano, Courtney L. Hylton, and Patrick J. Kirby of Lynberg & Watkins for the school district.
The case is A.R. v. Claremont Unified School District, B240947.
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