Cauzza v. Julian Union H.S. Dist.
Filed 6/18/13 Cauzza v. Julian Union H.S. Dist. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
VICTOR CAUZZA et al., Cross-complainants and Appellants, v. JULIAN UNION HIGH SCHOOL DISTRICT, Cross-defendant and Respondent. | D060364 (Super. Ct. No. 37-2008-00102526- CU-PO-EC) |
APPEAL from
a judgment and postjudgment order of the Superior Court of
Joel R. Wohlfeil, Judge. Affirmed.
Daley &
Heft, Lee H. Roistacher, Robert R. Heft, David P. Berman for Cross-complainants
and Appellants, Victor Cauzza and Julie Cauzza.
Stutz
Artiano Shinoff & Holtz, Daniel R. Shinoff, Paul V. Carelli IV for
Cross-defendant and Respondent Julian
Union High School
District.
Appellants Victor Cauzza and Julie Cauzza appeal from a
Julian Union High School District (District) on the Cauzzas' second amended
cross-complaint for equitable indemnity filed after the Cauzzas were sued by a
Julian High School student for personal injuries occurring on their property,
where they were storing a junior class homecoming float. The Cauzzas also appeal from a postjudgment
order awarding District costs as the prevailing party. The Cauzzas contend the trial court erred in
granting summary judgment because (1) they demonstrated a triable issue of fact
as to whether they had recoverable indemnity damages, namely the potential
recovery of attorney fees from District under Code of Civil Procedure
1021.6; and (2) triable issues of fact exist as to whether District is entitled
to immunity from liability under Education Code section 44808. They further contend the trial court erred by
ruling it was without discretion to deny District costs as the prevailing party
under section 1032, subdivision (a).
We conclude
District demonstrated its entitlement to summary judgment and the Cauzzas did
not present evidence raising a triable
issue of material fact for a jury.
We further conclude the trial court did not err in awarding District
costs as the prevailing party under section 1032. Accordingly, we affirm the judgment and postjudgment
order.
FACTUAL AND
PROCEDURAL BACKGROUND
We take the
factual background from the undisputed facts in the parties' separate
statements, and otherwise state the facts and draw inferences favorable to the
Cauzzas as the parties opposing summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843; Conroy v. Regents of University of Cal. (2009)
45 Cal.4th 1244, 1249-1250; Ragland v. U.S. Bank Nat. Assn. (2012) 209
Cal.App.4th 182, 197.)
District
hosts a homecoming parade as part of the Julian High School (JHS) homecoming
activities. For years, float building
has been part of the annual homecoming activities, and each high school class
is permitted to construct a float for the parade, which exists exclusively for
the demonstration of class floats. The
school schedules a half day for students and faculty to participate in the
parade.
Each class
at JHS has a class advisor for the year with responsibility to oversee class
meetings at which students made decisions concerning their floats. Scott Munson, the senior class advisor for
the 2007/2008 school year and also a teacher and coach at JHS for 25 years,
attended all of the official senior class meetings, and at times provided input
as to the meeting agendas. Class
meetings were held on campus during school hours in a particular class period,
but students were not required to attend as long as they had a legitimate
school excuse to be somewhere else.
name="_ftnref2" title="">[2] Though they volunteered for the advisor
positions, District paid the senior and junior class advisors a stipend for
their participation. District exercised
editorial control over the content of student class floats, and that year, the
seniors used their class funds to pay for float materials. Though students did not receive any grade for
their floats or for participation in their construction, classes would be
awarded points for their participation, which would accrue toward an
end-of-the-year prize for the most involved class.
Students
were aware of a tradition of vandalizing floats on the night before the
homecoming parade, which was referred to as "float night." The tradition involved students throwing eggs
or shooting paintballs at the floats as well as alcohol consumption, and
students in each class slept on the float that night to protect it. Munson was aware of floats being hit by
paintballs, and had seen football players who were visibly bruised by
paintballs but considered it a "badge of honor" to be hit by one
while protecting their floats. In the
fall of 2007, students had approached Cheryl McColl, the junior class advisor,
to tell her they were concerned that other classes would throw eggs or shoot
paintballs at their floats. McColl asked
Munson to advise his seniors to concern themselves with their own float.
In the
years leading up to 2007, Detective Keith Dalton, a local sheriff's deputy
assigned to JHS, had spoken with previous superintendents, principals and even
school board members about the safety of float night activities and
vandalism. He also discussed concerns
about safety, vandalism and trespassing with JHS students' parents,
specifically about the escalation of events, how unsafe it was, and how much
law enforcement time it was consuming.
He had similar discussions with school board members, and was aware that
the administration at various times addressed the students in assembly or
through teachers, warning against behavior such as violating curfew or
trespassing. He had heard from previous
administration members that the matter was not a school activity, but rather an
after-school activity that took place off campus at a private home.
In 2007,
the senior float was constructed at the home of David and Lisa Boyer, whose
daughter was a senior at JHS. That year,
Munson and his daughter, who was also then a senior, participated in the senior
class float construction and Munson helped the seniors finish their float on
float night, which was October 4, 2007.
Munson had been to the Boyer residence three times including that
night. On float night, he left the
Boyers' home at about 8:00 p.m. At some
point, Munson told his students to protect their float. He understood some seniors, including his
daughter, were going to stay the night at the Boyers' to protect their
float. He did not admonish them to not
mess with other class floats. Jennifer
Rose Smelser, a senior at JHS, was at the Boyers' home and drank alcohol while
she was there, as did other seniors.
The junior
class float was at the Cauzzas' home that night. Bud Cauzza was a JHS graduate and had
attended all four years of high school there.
On the afternoon of October 4, 2007, McColl stopped at the Cauzzas and
left around dinner time. Though she was
not required to participate in float building, she had been to the Cauzzas' on
more than one occasion to check on the students' progress. Before she left, Bud Cauzza expressed his
concern about something happening with eggs or paintballs, and McColl told him
that if for any reason they felt uncomfortable during the night, they should
call the police.
Just after
midnight, Smelser and some of her friends passed through a barbed fence onto
the Cauzzas' property to throw eggs and shoot paintballs at the junior class
float. At some point after she had run
down a hill toward the float, an unknown object struck Smelser in the head and
injured her. The following day, District
cancelled the homecoming parade and the scheduled short school day. The JHS interim superintendent and principal,
Peter McHugh, apologized to students during the assembly the next day, telling
them he did not do his job as an educator and that in the future it was his
responsibility to do a better job about educating them about proper
conduct. Thereafter, an administrative
decision was made to require float building to take place on campus, and
District hired security guards to protect the floats.
Smelser and
her parents sued the Cauzzas for personal injuries, alleging the Cauzzas' son,
Todd Cauzza, hit Smelser in the head that night with a baseball bat. The Cauzzas then filed a government tort
claim with District. After District
rejected their claim, the Cauzzas filed a cross-complaint against District for
contribution, implied and express indemnity and declaratory relief, alleging
that negligence by District employees contributed to Smelser's injuries. The trial court eventually granted the Cauzzas
leave to file a second amended cross-complaint adding claims for negligent
supervision and "statutory liability." Other defendants, including Todd Cauzza,
filed indemnity and contribution cross-complaints against District.
District
moved for summary judgment or alternatively summary adjudication of issues on
the Cauzzas' indemnity cross-complaint.
It argued it was immune from liability under Education Code section
44808 as a matter of law because (1) Smelser was not on school property when
she was injured; (2) District did not undertake a school-sponsored activity off
school property; (3) District did not specifically assume responsibility or
liability for the off-campus activity; (4) the Cauzzas could not maintain a
separate negligence action against it; (5) Smelser was not, and should not have
been, under the direct supervision of a District employee when she was injured;
and (6) the Cauzzas failed to properly allege a dangerous condition.
In November
2010, the Cauzzas obtained summary judgment on Smelser's complaint on grounds
they did not owe Smelser a duty of care as a matter of law, and her parents did
not allege a direct injury. In
opposition to District's motion, they argued in part that though they had been
absolved from liability, they nevertheless had a right to be indemnified under
section 1021.6 for the attorney fees incurred in defending Smelser's
complaint. They also sought sanctions
against District in part for its asserted refusal to agree to a cost waiver.
Thereafter,
the trial court granted summary judgment in District's favor. Sustaining some of District's objections to
the Cauzzas' evidence, it first ruled section 1021.6 by its terms only applied
to claims for implied indemnity where the indemnitee has been required to bring
or defend an action through the tort of the indemnitor, and did not apply to
the Cauzzas because they were not required to defend the action based solely on
District's wrongdoing. It then turned to
the Cauzzas' claims that District did not qualify for immunity under Education
Code section 44808, ruling: the Cauzzas did not provide evidence that District
employees breached a duty owed to Smelser while she was on campus; there was no
evidence District required attendance or gave credit for participating in float
building; the class advisors' participation in float construction was not a
specific assumption of responsibility or liability by District; there was no
evidence District required class advisors to attend any off-campus function
regarding float building or that any advisor spent the night, and thus Smelser
was not, nor should she have been, under the immediate and direct supervision
of a District or school board employee.
The court denied the Cauzzas' request for sanctions.
In June
2011, District filed a memorandum of costs seeking $15,335.76 in costs as the
prevailing party. The Cauzzas moved to
tax the costs bill in its entirety on grounds District was not a prevailing
party under section 1032 and it was inequitable to award prevailing party costs
to District, where the Cauzzas' indemnity claim was extinguished by virtue of
their prevailing against Smelser.
Alternatively, they asked the court to apportion the costs between the
four distinct cross-complaints against District, and reduce the maximum
recoverable costs to $3,525.31.
The trial
court granted in part and denied in part the Cauzzas' motion to tax. It determined District was a prevailing party
under section 1032, subdivision (a)(4) entitled to statutory costs. Pointing to the grounds on which it granted
summary judgment in District's favor and citing Great Western Bank v. Converse Consultants, Inc. (1997) 58
Cal.App.4th 609, 613, the court reasoned:
"A cross-defendant for indemnity in whose favor a dismissal of the
cross-complaint is entered is the prevailing party. [Citation.]
The Great Western case cites
numerous cases involving the dismissal of indemnity claims after good faith
settlement determinations. The Court has
held that a dismissed indemnitor is entitled to costs as a prevailing party
even in situations where the indemnity claims were 'deemed filed' (i.e. no
actual cross-complaint filed but the cross-complaint was deemed filed by a case
management order signed by all parties in the case). Great
Western and the cases cited therein make it clear that there is no
'equitable' basis to disallow costs if the party meets the statutory definition
for costs of [section] 1032."
(Italics added, some capitalization omitted.)
The Cauzzas
appeal from the ensuing judgment, as well as the postjudgment order awarding
District costs.
DISCUSSION
I. Summary
Judgment on the Cauzzas' Equitable Indemnity Cross-Complaint
A. Legal
Standards
" '
" ' "Summary judgment is proper only where there is no triable
issue of material fact and the moving party is entitled to judgment as a matter
of law. [Citation.] 'To secure summary judgment, a moving defendant
may prove an affirmative defense, disprove at least one essential element of
the plaintiff's cause of action [citations] or show that an element of the
cause of action cannot be established [citations].' [Citation.]
'All doubts as to whether any material, triable issues of fact exist are to be
resolved in favor of the party opposing summary judgment.' " ' " '
" (Eric M. v. Cajon Valley Union School
Dist. (2009) 174 Cal.App.4th 285, 292 (Eric
M.), quoting Guerrero v. South Bay
Union School District (2003) 114 Cal.App.4th 264, 268 (Guerrero).)
We
independently review the moving and opposing summary judgment papers to
ascertain whether the parties met their respective burdens (
as the trial court in determining whether there are any genuine issues of
material fact or whether the moving party is entitled to judgment as a matter
of law. (Greystone Homes, Inc.. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194,
1207.) We consider all of the evidence
except that to which objections have been made and sustained. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
B.
The Cauzzas
argue the trial court erred as a matter
of law in ruling they had no recoverable indemnity damages following their
success on Smelser's complaint, or could not recover section 1021.6 attorney
fees in defending against Smelser's claims, thus entitling District to summary
judgment. They maintain all they needed
to show to avoid summary judgment was they could potentially recover attorney fees, and met that burden when they
showed they were adjudged innocent indemnitees.
The Cauzzas also fault the trial court's conclusion that section 1021.6
fees were not recoverable by an indemnitee defending itself in an action
alleging its own wrongdoing. They argue
such a rule would render the statute a nullity, and was not the Legislature's
intent.
Section
1021.6 provides: "Upon motion, a court after reviewing the evidence
in the principal case may award
attorney's fees to a person who prevails on a claim for implied
indemnity if the court finds (a) that the indemnitee through the tort of the
indemnitor has been required to act in the protection of the
indemnitee's interest by bringing an action against or defending an action by a
third person and (b) if that indemnitor was properly notified of the demand to
bring the action or provide the defense and did not avail itself of the
opportunity to do so, and (c) that the trier of fact determined that the
indemnitee was without fault in the principal case which is the basis for the
action in indemnity or that the indemnitee had a final judgment entered in his
or her favor granting a summary judgment, a nonsuit, or a directed
verdict."
Section
1021.6 permits an indemnitee to recover attorney fees incurred in the principal
action where that indemnitee is adjudged to be without fault in that
action. (Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164
Cal.App.3d 1227, 1244, disapproved on other grounds in Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012,
1031-1032 & fn. 12 (Bay Development).) It does not create a statutory right to
indemnity, but "merely 'permits an indemnitee to recover . . . attorney
fees in an implied indemnity action under specified circumstances.' " (John Hancock Mutual Life Ins. Co. v.
Setser (1996) 42 Cal.App.4th 1524,
1531.) A claim for attorney fees
under section 1021.6 thus is "simply a statutory incident" of a
"successful common law claim for implied equitable indemnity." (Id. at p. 1534.)
A prerequisite of recovering
attorney fees under section 1021.6 is a determination that the party seeking
fees is a prevailing indemnitee: that
the party in fact succeed on its claim for implied indemnity against the
indemnitor. (See Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203
Cal.App.3d 285, 296 [" 'section 1021.6 read as a whole, clearly applies
only to an indemnitee who prevails on
a claim against an indemnitor' "].)
And, "[a] would-be indemnitee may be eligible to recover attorney
fees under section 1021.6 even when . . . the indemnitee has been absolved of
all liability for the plaintiff's injuries, so
long as the indemnitee demonstrates it would have been entitled to indemnity
for any judgment that had been rendered against it." (Bay
Development, supra, 50 Cal.3d at
p. 1027, italics added.) Thus, to defeat summary judgment on this
ground, the Cauzzas were required to demonstrate triable issues of material
fact as to whether, had Smelser obtained a judgment against them in her action,
they would have been entitled to some form of implied indemnity from District.
The
California Supreme Court has explained that there are only two basic types of
indemnity: express indemnity (requiring express contractual language
establishing one party's duty to save another harmless on the occurrence of
specified circumstances) and equitable
indemnity. (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157,
1158.) Implied contractual indemnity is
"but a form of equitable indemnity."
(Id. at p. 1157, fn. 2.) The other form of equitable indemnity,
"traditional equitable indemnity," is "indemnity arising from
the equities of particular circumstances . . . ." (Id.
at p. 1157.) Traditional equitable
indemnity, the only type of equitable indemnity at issue here, requires no
contractual relationship between indemnitor and indemnitee. (Id.
at p. 1158.) It " 'is premised on a
joint legal obligation to another for damages,' but it 'does not invariably
follow fault.' " (
The doctrine is subject to principles pertaining to allocation of fault
and comparative equitable apportionment of loss. (Ibid.)
"A key
restrictive feature of traditional equitable indemnity is that, on matters of
substantive law, the doctrine is 'wholly derivative and subject to whatever
immunities or other limitations on liability would otherwise be
injured party. [Citations.] This rule
'is often expressed in the shorthand phrase . . . there can be no indemnity
without liability.' " (
Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787 ["As against the
indemnitee, the indemnitor may invoke any substantive defense to liability that
is available against the injured party"].)
As we will
explain more fully below, even assuming the Cauzzas could establish that
District owed a duty of care to Smelser, the Cauzzas cannot establish
District's liability by virtue of the immunity of Education Code section
44808. For those reasons, they are
unable to establish the necessary showing for recovery of attorney fees under
Code of Civil Procedure section 1021.6., namely, some potential entitlement to
implied indemnity from District.
C.
The Cauzzas
contend triable issues of material fact exist as to whether on-campus negligence
by District employees contributed to Smelser's injury and whether District
specifically assumed responsibility for the off-campus float building,
precluding any immunity provided by Education Code section 44808. In part, they argue Education Code section
44808 does not provide blanket immunity to District simply because Smelser's
injury occurred off campus, particularly where District failed to exercise
reasonable care.
Before the
question of statutory immunity arises, it is first necessary to establish that
District owed Smelser a duty of care.
(See Lackner v. North (2006)
135 Cal.App.4th 1188, 1204, fn. 8; citing Davidson
v. City of Westminster (1982) 32 Cal.3d 197, 201-202; Williams v. State of California (1983) 34 Cal.3d 18, 22
[emphasizing the impropriety of placing the "immunity cart . . . before
the duty horse"].) This inquiry is
a question of law. (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th
123, 138; Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, 876.)
Except as
provided by statute, a public entity such
as District is not liable for an injury arising out of an act or omission by
itself or its employees. (Gov. Code,
§§ 811.2 [" 'Public entity' " includes a "district"]
815, subd. (a); Hoff v. Vacaville Unified
School Dist. (1998) 19 Cal.4th 925, 932.)
One such statute is Government Code section 815.2, subdivision (a),
which provides that "[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." (Hoff,
at p. 932.) "Through this section,
the California Tort Claims Act expressly makes the doctrine of respondeat
superior applicable to public employers," and thus District is "
'vicariously liable' " for any injury that one of its employees causes to
the same extent as a private employer. (Ibid.)
Accordingly, " 'a school district is vicariously liable for
injuries proximately caused by [the] negligence' of school personnel
'responsible for student supervision.' "
(Ibid.)
Under these
standards, District could be vicariously liable for injuries proximately caused
by the negligence of its class advisors, who supervised the students during
on-campus meetings held during school hours in connection with their float
planning activities. "The law
regarding the duty of supervision on school premises is very, very well
established. 'It is the duty of the
school authorities to supervise at all times the conduct of the children on the
school grounds and to enforce those rules and regulations necessary to their
protection. [Citations.] The school district is liable for injuries
which result from a failure of its officers and employees to use ordinary care
in this respect. [Citations.]' [Citation.]
'What is ordinary care depends upon the circumstances of each particular
case and is to be determined as a fact with reference to the situation and
knowledge of the parties.' " (J.H.
v. Los Angeles Unified School Dist.,
supra, 183 Cal.App.4th at pp. 139-140; see C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 865 ["Ample case authority establishes that school personnel owe
students under their supervision a protective duty of ordinary care, for breach
of which the school district may be held vicariously liable"].) The existence of a duty of care depends in
part on whether the harm to the plaintiff was reasonably foreseeable. (See Leger
v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459.)
This case
does not involve a student injury occurring on school grounds. But, as the Cauzzas correctly point out, the
question of a school district's duty does not turn on whether the injury occurs
on school grounds. (See
Cal.App.4th 285, 294; Perna v. Conejo
Valley Unified School District (1983) 143 Cal.App.3d 292, 295 [question of
fact presented on school district's negligence where teacher kept a 12-year-old
student after class, forcing her and her 14-year-old sister to leave school
after crossing guard left]; Calandri v.
Ione Unified School Dist. (1963) 219 Cal.App.2d 542, 549-550
preliminary determination that school district owed a duty of care when a
15-year-old student was injured at home by a toy cannon he made in a school
shop class].) They contend the evidence
is in dispute as to whether on-campus negligence was committed by District
employees. Maintaining the evidence
shows District personnel knew "of the danger associated with float night
but did nothing about it until after the . . . incident, despite having the
obvious ability to do so earlier" and pointing out District "easily
solved the problem after the incident by precluding off-campus float
construction," the Cauzzas argue it was for the trier of fact to decide
whether on-campus negligence by District employees contributed to Smelser's
injury on their property.
District's
response is that the risk of harm was not foreseeable; that the evidence showed
there had been no significant injury to any participant in the float building,
and thus nothing to "put a thoughtful person on notice that an adult might
attack a student with a baseball bat."
According to District, "[t]he injury resulted in a completely
unforeseeable attack by an adult—not a student—who was not defending a float or
a student class, who attacked with a potentially lethal weapon—[a] baseball
bat—not a paint ball gun." It
argues there could be no duty upon District under these circumstances.
District's
assertions about foreseeability are unpersuasive. First, there is no evidence of what exactly
caused Smelser's head injury. Second,
foreseeability is determined in light of all the circumstances and does not
require prior identical or even similar events or injuries. (M.W. v. Panama Buena Vista Union School
Dist. (2003) 110 Cal.App.4th 508, 519.)
" 'It is not necessary to prove that the very injury which occurred
must have been foreseeable by the school authorities . . . . Their negligence is established if a
reasonably prudent person would foresee that injuries of the same general type
would be likely to happen in the absence of [adequate] safeguards.' [Citations.]
. . . '[T]he issue of
'foreseeability' does not depend upon the foreseeability of a particular third
party's act, but instead focuses on whether the allegedly negligent conduct at
issue created a foreseeable risk of a
Dist., at p. 519, quoting
in part Taylor v. Oakland Scavenger Co. (1941)
17 Cal.2d 594, 600.) "Neither the
mere involvement of a third party nor that party's wrongful conduct is
sufficient in itself to absolve [a school district] of liability, once a
negligent failure to provide adequate supervision is shown." (Dailey v. Los Angeles Unified Sch. Dist.
(1970) 2 Cal.3d 741, 750; see also C.A.
v. William S. Hart Union High School Dist., supra, 53 Cal.4th 861, 870; J.H. v. Los Angeles Unified Sch.
Dist., supra, 183
Cal.App.4th at p. 144.)
Here, the Cauzzas presented
evidence that District's paid class advisors supervised and assisted students
during school hours in connection with the District-sponsored homecoming
activities, particularly to assist them with respect to their class
floats. The evidence is undisputed that
Munson and McColl were aware of the float night practice of students
"messing" with floats, both visited the Boyd and the Cauzza properties
the night before homecoming, and their knowledge extended to the storage of
class floats on private property as well as the likelihood of students
trespassing on private property in an attempt to vandalize floats stored there
with eggs and paintballs guns. The
advisors knew at least some students would spend the night on their floats, and
it was foreseeable they would take steps to "protect" or defend their
floats (Munson in fact advised his students to protect their float). It was foreseeable under the circumstances
that a private property owner might respond with some efforts of their own to
prevent trespass or property damage.
Indeed, District superintendents and board members had been warned by
Detective Dalton about the increasingly serious nature of float night
activities, the trespassing involved, and the general "escalation" of
events. These sorts of facts tend to
give rise to District's duty of care to take steps to protect against injuries likely
to result from these float night activities.
We need
not, however, further discuss the relevant factors underlying the duty of care
analysis. (See C.A. v. William S. Hart Union High School Dist.,
of care analysis requires consideration not only of the foreseeability of harm
to the plaintiff, but also factors such as " 'the degree of certainty that
the plaintiff suffered injury, the closeness of the connection between the
defendant's conduct and the injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise care
with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved' "]; Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th
906, 911-912.) Even if we were to conclude District, via
its own negligence or the negligence of Munson or McCall, owed Smelser a duty
of care under these circumstances, we nevertheless hold the Cauzzas have not
demonstrated a triable issue of material fact as to District's immunity from
liability under Education Code section 44808.
D.
Issues as to Whether District Specifically Assumed Responsibility or Liability
For Off-Campus Float Building, and Failed to Exercise Reasonable Care Under the
Circumstances to Preclude Immunity Under Education Code section 44808
As
pertinent here, Education Code section 44808 provides that District will not be
"responsible or in any way liable for the . . . safety of any pupil . . .
at any time when such pupil is not on school property" unless District has
"undertaken a school-sponsored activity off the premises, has otherwise
specifically assumed such responsibility or liability or has failed to exercise
reasonable care under the circumstances."
(Ed. Code,
§ 44808.) If District
engages in "such a specific undertaking," it is liable or responsible
for a pupil's safety only where he or she "is or should be under the
immediate and direct supervision of an employee of such district or
board."
title="">[5]
(Ibid.)
This court
addressed Education Code section 44808 in a summary judgment context in
M., supra, 174 Cal.App.4th
285. In Guerrero, the six-year-old plaintiff was struck by a car while
crossing the street in front of her school, approximately 30 minutes after her
release from school while she was waiting to be picked up. (Guerrero,
114 Cal.App.4th at pp. 266-267.) One of the plaintiff's opposing summary
judgment arguments was "that the accident was caused by [the school
district's] failure to properly supervise her while on school
grounds." (Id. at p.
269.) In rejecting that argument, the
Education Code section 44808, "[the school district] would not be liable
for injuries off campus and after school unless they were the result of the
District's negligence occurring on school grounds or were the result of some specific
undertaking by the District, which was then performed in a negligent
manner." (Guerrero, at p. 269.) It
addressed cases in which a duty had been found relative to an off-campus
injury, concluding that "[e]ach of the cases in which schools have been
held to have a duty of care for the safety of students off campus and after
school arises from circumstances where school personnel did something on campus
or failed in their supervisory duties on campus. . . .
[¶] [Plaintiff's] case does not
present any basis for constructing a duty to exercise reasonable care for her
safety after she was released from school.
Although she argues the District failed in its duty to supervise her
while on school grounds, she does not articulate what the school's duty should
have been or what action the school should have taken. No evidence was presented in the summary
judgment proceeding that the District or the school supervised the public
street where [the plaintiff] and her siblings waited to be picked up. Nor are there any facts presented to show how
the on-campus conduct of the school related to the off-campus
injury." (Id. at p.
270.) It found "no factual
connection to [the plaintiff's] release from school in the company of her
siblings and her unfortunate accident after she was released from
school." (Ibid.) Accordingly, in Guerrero, the majority held the district in that case owed no duty
of care to the plaintiff under the circumstances.
Both
care by a school district must be tied to one of the mentioned undertakings in
Education Code section 44808. " 'To
construe [the failure-to-exercise-reasonable-care-under-the-circumstances language
of Education Code section 44808] as an independent basis for liability would be
to say, absurdly: A district is never
liable in negligence unless it acts negligently. Also, the breach must be of a duty, a duty
created through one of the undertakings.
[Citation.] "The 'reasonable
care' phrase enunciates a standard of care and as such cannot exist in a
vacuum; in the absence of a duty to which it applies, the phrase is
meaningless." ' [Citations.] [¶]
'In essence, the section grants a district immunity unless a student was
(or should have been) directly supervised during a specified undertaking.'
" (Guerrero, supra, 114
Cal.App.4th at pp. 271-272, quoting Wolfe
v. Dublin Unified School District (1997) 56 Cal.App.4th 126, 129; see also
On appeal,
the Cauzzas do not argue (as they did in their opposing papers below) that
their evidence demonstrated District undertook a "school-sponsored
activity" off the premises in which students were or should have been
under the immediate and direct supervision of a District employee, which is one
source of a duty of care on District's part.
v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821,
830.) Instead, the Cauzzas contend the
evidence raises triable issues as to whether District specifically assumed
responsibility for off-campus float building, and failed to exercise reasonable
care under the circumstances. They point
to McHugh's apology to students the next day, characterizing it as evidence
that McHugh "believed his failure to properly ensure students were taught
appropriate responsibility and behavior played a role in Smelser's
injury." They also point to
District's decision to change the location of float building and hire security
guards to prevent incidents like Smelser's.
District
does not directly respond to this claim, but instead argues the injuries did
not occur at a school-sponsored activity; that neither vandalizing a float,
trespassing, nor off-campus construction were part of the school curriculum. District also argues there is no evidence (a)
it sponsored Smelser's actions in trespassing and vandalizing the float; (b) it
required class advisors to spend float night supervising the floats; (c) class
advisors ever spent the night with a float; or (d) parents expected the
advisors to spend the night with the floats.
District maintains that at the time of her injury, Smelser was not, nor
should she have been, under the direct supervision of District employees.
On summary
judgment review, we decide whether there is evidence from which a jury could
infer or conclude District directly or specifically assumed responsibility for
student safety relating to off-campus float-building activities, and whether
there are triable issues as to whether it failed to exercise reasonable care
activity. On this point, we cannot
say the Cauzzas' evidence gives rise to a jury question. The fact District had class advisors assist
the students with their float decision making, or even the fact the advisors
allowed students to store the floats off campus during float night, does not
constitute District's specific assumption
of responsibility or liability for the students' off-campus conduct in
building, vandalizing, or protecting, their class floats. Though the class advisors assisted in float
construction, they were not required to do so, and they did not stay to protect
the floats. (See Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 940 [evidence that school district never
supervised overflow parking lot where accident occurred at the end of the
school day "unequivocally establishe[d] that the District did
responsibility to supervise student driving in the overflow lot"; the
school district's decision to supervise the school's main lot could not be
expanded to an assumption of a general duty to supervise all student driving at
the school].)
In
summary judgment in a school district's favor, after considering whether the
District in that case had specifically assumed responsibility to ensure safe
school access in a situation where the plaintiff children were either killed or
injured while they crossed a city street on their way to school. (Id.
at pp. 1344-1345, 1358-1359.) The
plaintiffs, who were hit by an unlicensed motorist, had argued the district
specifically assumed responsibility for their safety by (1) preparing an
environmental impact report (EIR) analyzing traffic safety impacts; (2)
adopting a resolution finding the site selection standards for the school were
met, including standards for pedestrian safety; and (3) telling parents it
would take steps to make it safe for walking to and from the school. (Id.
at p. 1358.) The appellate court held
none of these actions constituted a specific assumption of responsibility under
Education Code section 44808. (
Specifically,
Cerna explained that the EIR had a
specialized purpose for long term environmental protection, and, reviewing the
EIR's factual conclusions as to the generation of "increased pedestrian
activity" on the street and the safety of a different intersection closest to the school having crossing
signals, observed it contained nothing suggesting the district had assumed any
responsibility for pedestrian safety at the subject intersection. (Cerna,
supra, 161 Cal.App.4th at pp.
1358-1359.) With regard to the
district's resolution, the Court of Appeal observed the district had found the
school project met statutory and regulatory site selection standards, and had
stated it was on streets with a "heavy traffic pattern" but that a
mitigation plan had been developed that complied with a pedestrian safety manual
edition of the California Department of Transportation. (Id.
at p. 1359.) However, the
create mandatory duties but only provided advisory guidelines that recommended
standards and procedures aimed at bringing about desirable safety
conditions. (Ibid.) Thus, the district's
adoption of those guidelines provided no basis to conclude the district
specifically assumed liability for student conduct and safety. (Id.
at p. 1360.)
Finally,
the Cerna court rejected the argument
that the district assumed responsibility for student safety by statements made
by unidentified school representatives that " 'various things would be
done to make it safe for students to walk to and from School,' " including
installation of traffic lights or stop signs, crossing guards, and presence of
police officers. (Cerna, supra, 161
Cal.App.4th at p. 1360.) The Court of
Appeal found the alleged representations "too general and vague to
constitute a specific assumption of liability under [Education Code] section
44808." (Cerna, at p. 1360.) That
circumstance, combined with the fact crossing guards were a municipal
obligation outside the responsibility of school districts providing
"essentially a police function," and the fact the lack of a crossing
guard was not a proximate cause of the injuries suffered, compelled the court
to affirm the summary judgment. (
The
evidence presented by the Cauzzas here does not come close to the type of
actions or statements of the school district in Cerna, which were held insufficient to defeat summary judgment on a
claim it specifically assumed liability for student safety under Education Code
section 44808. McHugh's apology to
students, District's decision to relocate float building after 2007 (assuming
the decision is admissible on the issue of District's control, see Evid. Code,
§ 1151; Cal. Law Revision Com. com., 29B pt. 3B West's Ann. Evid. Code,
foll. § 1151, p. 450; Ault v.
International Harvester Co. (1974) 13 Cal.3d 113, 119), and District's
provision of class advisors who were aware of float night activities, neither
separately nor collectively raise a triable issue of material fact as to
whether District specifically assumed responsibility or liability for student
safety during off-campus float-building activities. For the foregoing reasons, we affirm the
summary judgment.
II. Prevailing
Party Determination under Code of Civil Procedure Section 1032
The Cauzzas
contend the trial court erred by ruling it was without discretion to deny District
prevailing party costs under section 1032, subdivision (a). They maintain as a matter of statutory
interpretation, the trial court possessed discretion to decide in unusual
circumstances that a party may not meet the definition of a prevailing party as
in the present case, where the Cauzzas, who were ultimately successful in
Smelser's action against them, were compelled by the Government Claims Act to
initiate indemnity claims against District before they obtained a favorable
liability determination and then summary judgment in the underlying
action.
District
responds that it falls squarely within section 1032, subdivision (a)(4),
namely, it qualifies as a "cross-defendant in whose favor a dismissal of
the cross-complaint is entered," entitling it to litigation costs as a
matter of right. It further argues that
even assuming the trial court retained discretion to award costs, it exercised
its discretion by naming District as the prevailing party as part of the
judgment without objection from the Cauzzas, who have not shown how the court's
discretion was abused. Finally, District
maintains nothing compelled the Cauzzas to countersue the District until such
time they were found liable; it was not a compulsory cross-complaint.
A. Standard
of Review
"Generally,
a trial court's
determination that a
litigant is a
prevailing party, along
with its award
of fees and
for abuse of
of a statute,
however, it becomes a question
to de
goal is to determine and give effect to the underlying purpose of the law. [Citation.]
'Our first step is to scrutinize the actual words of the statute, giving
them a plain and common-sense meaning.'
[Citation.] ' "If the words
of the statute are clear, the court should not add to or alter them to
accomplish a purpose that does not appear on the face of the statute or from
its legislative history." '
[Citation.] In other words, we
are not free to 'give the words an effect different from the plain and direct
import of the terms used.' " (
B.
Prevailing Party
Section
1032 provides in part:
"(a) As used in this section, unless the context
clearly requires otherwise:
"(1) 'Complaint' includes a cross-complaint.
"(2) 'Defendant' includes a cross-defendant or a
person against whom a complaint is filed.
party who files a complaint in intervention.
'Prevailing party' includes the party with a net monetary recovery, a
defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary
relief and in situations other than as specified, the 'prevailing party' shall
be as determined by the court, and under those circumstances, the court, in its
discretion, may allow costs or not and, if allowed may apportion costs between
the parties on the same or adverse sides pursuant to rules adopted under
Section 1034.
statute, a prevailing party is entitled as a matter of right to recover costs
in any action or proceeding."
C.
of Right Under Section 1032, Subdivision (a)(4)
The Cauzzas
contend that the phrase "unless the context clearly requires
otherwise" in section 1032, subdivision (a) plainly "give[s] the
trial court some discretion in prevailing party determinations in other than
normal circumstances even where, like here, one party meets one of the
specified definitions of a prevailing party." The Cauzzas assert that phrase provides a
limitation on the right to recover costs, citing Sears v. Baccaglio (1998) 60 Cal.App.4th 1136. They seek to distinguish the authority on
which the trial court relied, Great Western
Bank v. Converse Consultants, Inc., supra,
58 Cal.App.4th 609 (characterized as dicta and distinguished on other grounds
in Goodman v. Lozano (2010) 47
Cal.4th 1327, 1337-1338) and
authority cited by Great Western,
Inc. (1996) 47 Cal.App.4th 886, as failing to consider the quoted phrase
from section 1032, subdivision (a).
Our reading
of the plain language of section 1032 as a whole does not reflect a grant of
trial court discretion where a defendant meets one of the "prevailing
party" definitions set out in section 1032, subdivision (a)(4). The Cauzzas' interpretation would contradict
the Legislature's express and unambiguous declaration in subdivision (b) of section
1032 that a prevailing party—defined by the four subdivision (a)(4)
categories—is entitled "as a matter of right to recover costs in any
action or proceeding." (See
v. Crusader Entertainment (2012) 212 Cal.App.4th 356, 371-372;
209 Cal.App.4th 431, 441; Michell v.
Olick (1996) 49 Cal.App.4th 1194, 1197-1198 [prevailing party as defined by
the four categories of section 1032, subdivision (a)(4) is entitled to costs as
a matter of right, and the trial court has no discretion to order each party to
bear his or her own costs]; Crib
Retaining Walls, Inc. v. NBS Lowry, Inc. (1996) 47 Cal.App.4th 886,
890.)
The sole
question is whether District comes within one of the four categories of
prevailing party because it succeeded in defeating the Cauzzas' cross-complaint
by summary judgment. Applying the
statutory definition that a defendant includes a cross-defendant as District
was here, it is plain that District is a "defendant as against those
plaintiffs who do not recover any relief against that defendant." (§ 1032, subd. (a)(4).) The Cauzzas' arguments were rejected in
explained that section 1032 expressly provides the court with discretion to
determine the prevailing party only "under two circumstances: (1) when any party 'recovers other than
monetary relief' and (2) 'in situations other than as specified.' " (Cussler,
at p. 372.) In the present case, neither
party recovered nonmonetary relief,
and the circumstances present one of those
"specified" by section 1032, subdivision (a)(4). (Cussler,
at p. 372.) "Nothing in
Cal.App.4th 1136] . . . states that the trial court has discretion to deny
costs under the circumstances presented here." (Cussler,
at p. 372.) Because the trial court did
not have discretion to deny District costs to which it was entitled as a matter
of right, we affirm the postjudgment order awarding costs.
DISPOSITION
The judgment and postjudgment order are affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Statutory references are to the Code of Civil Procedure
unless otherwise indicated.
name="_ftn2" title="">[2] Munson testified at his deposition that if a senior class
member did not want to attend a meeting, he or she would either go to a
counselor, the office, or to another teacher and be excused from the
meeting. Otherwise, if the student left
campus he or she could be considered truant.
However, Munson stated the class meetings were not mandatory. Another class advisor testified at her
deposition that the class meetings occurred during the "ssr" (silent
sustained reading) class period.
