Tuesday, September 8, 2015
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C.A. Rejects Claim Against Teacher Involved in LAUSD Case
Panel Says Adult Plaintiff Could Not Sue 14 Years After Alleged Misconduct
By KENNETH OFGANG, Staff Writer
A man now in his early 20s waited too long to seek damages from the Los Angeles Unified School District for sexual misconduct by his now-imprisoned elementary school teacher, the Court of Appeal for this district ruled Friday.
Div. Two, in an unpublished opinion by Presiding Justice Roger Boren, affirmed Los Angeles Superior Court Judge Joanne O’Donnell’s denial of a request for relief from the government claims statutes.
The plaintiff, identified only as Frank Z., was 22 years of age when he presented his damages claim in April of last year. He alleged that he was subjected to numerous instances of improper conduct by Mark Berndt during the 1999-2000 school year.
Berndt, then 62, pled no contest in 2013 to 23 counts of committing lewd acts on children and was sentenced to 25 years in prison. Civil suits were brought on behalf of more than 130 former pupils and resulted in the district paying some $169 million in settlements.
Creepy Cookies
Frank Z.’s allegations mirror those of other ex-pupils, including that Berndt fed him cookies with a “whitish” liquid on them. He also claimed that Berndt came to his home on occasion, after school and on weekends, to drive him and his siblings or friends around the neighborhood.
Although Berndt was removed from his classroom in 2011 and arrested in 2012, Frank Z. said he was living in Texas and unaware of the civil and criminal proceedings prior to September 2013, two months before Berndt was sentenced and after millions of dollars in settlements had been announced.
Before that, he said, he “was not aware of the arrest and prosecution of Berndt and/or the true nature of the sexual acts of Berndt.” As a child, he said, he “was unable to understand and comprehend the nature of his reprehensible conduct.”
The district rejected his claim as untimely, then rejected his application for leave to file a claim more than 13 years beyond the statutory six-month period. O’Donnell ruled that she lacked jurisdiction to grant relief because the application for leave to file a late claim was brought more than a year after the claim accrued.
Not Timely
The Court of Appeal rejected the plaintiff’s contention that his claim was timely under the delayed discovery doctrine.
The doctrine, Boren emphasized, permits the accrual of a claim to be delayed until the claimant is placed on inquiry notice. While Frank Z. might not have appreciated the wrongfulness of Berndt’s conduct when he was eight years old, he “cannot rely on his childhood naivete to claim he had no idea that Berndt’s conduct was wrong until 2014,” the presiding justice said.
He elaborated:
“Plaintiff had an ongoing duty to take action, instead of sitting on his rights. Taking action did not require awareness of the extensive media coverage about Berndt and LAUSD. Berndt’s sexual misconduct was an established fact when it took place in plaintiff’s presence in 1999-2000. Plaintiff did not know it was wrong then, but as an adult, he does. Plaintiff may have realized in 2014 that there was a legal theory of recovery for Berndt’s misconduct. Yet inquiry notice does not require knowledge of a legal theory, just a suspicion of wrongdoing. Plaintiff’s declaration shows awareness of Berndt’s bad acts since 1999, but no explanation as to why plaintiff did not consider the wrongdoing actionable until 2014.”
Boren distinguished Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, in which the court said a claim, brought when a child was 12 and based on abuse he allegedly suffered in foster care between the ages of five and eight, may have been timely, depending on facts that might be alleged in an amended pleading.
Boren explained that the case was “inapposite, as Curtis was still a child, and unaware that the abusive conduct allowed by his caregiver was wrongful,” whereas “Frank Z. had no complicit foster caregiver, and reached majority four years before filing his claim.”
Case Distinguished
Also inapposite, the jurist said, was K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, which allowed for an 11-month delay in the accrual of the plaintiff’s claim that her former high school teacher exploited her age, vulnerability and confidence to seduce her into an unlawful and harmful three-year sexual relationship. The court said the claim did not accrue until she realized through psychotherapy that she had been victimized.
“While Frank Z. may have been trusting toward Berndt in 1999-2000, as a youngster in Berndt’s classroom, he did not have a loving or dependent sexual relationship for three years, unlike the K.J. scenario,” Boren wrote. “Frank Z. claims no contact with Berndt after 2000, let alone into adulthood.”
Attorneys on appeal were Susan A. Owen and Tamiko B. Herron of Owen Patterson & Owen for the plaintiff and Craig S. Barnes and Michael M. Walsh of Sedgwick and Sean A. Andrade and Stephen V. Masterson of Andrade Gonzalez for LAUSD.
The case is Frank Z. v. Los Angeles Unified School District, B258812.
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