Rasheed v. Banning U. Sch. Dist.
Filed 6/22/12 Rasheed v. Banning U. Sch. Dist. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
SOFIA RASHEED, a Minor, etc.,
Plaintiff
and Appellant,
v.
BANNING UNIFIED SCHOOL DISTRICT et al.,
Defendants
and Respondents.
E053727
(Super.Ct.No.
RIC10000565)
OPINION
APPEAL
from the Superior Court
of Riverside
County. Paulette
Durand-Barkley, Temporary Judge.
(Pursuant to Cal. Const.,
art. VI, § 21.) Affirmed.
Law
Office of Zulu Ali and Zulu Ali for Plaintiff and Appellant.
Declues
Burkett & Thompson, Jeffrey A. Smith and Steven J. Lowery for Defendants
and Respondents.
On February 2, 2009, plaintiff and
appellant Sofia Rasheed attended her eighth grade history class. She was chewing gum despite knowing classroom
rules forbade it. Her teacher, defendant
and respondent Robin Hennen, told her, “‘You remind me of a prostitute chewing
her gum.’” Plaintiff immediately
swallowed the gum. Plaintiff averred she
thereafter began seeing a psychiatrist
every other week to deal with the emotional trauma she sustained from the
remark.
Plaintiff
filed a complaint against Hennen, and defendant and respondent Banning
Unified School District
(Banning) alleging causes of action for intentional
tort (defamation) and negligence.
Banning moved for summary judgment on November 19, 2010.
Hennen moved for summary judgment on February 16, 2011.
On February 22, 2011,
the court granted Banning’s motion for summary judgment. Plaintiff moved for reconsideration. The court denied plaintiff’s motion for
reconsideration and granted Hennen’s motion for summary judgment. The court entered final judgment on July 8, 2011.
On
appeal, plaintiff contends the court erred in granting both Banning and
Hennen’s motions for summary judgment.
In addition, plaintiff maintains the court erroneously denied her motion for reconsideration of the order
granting Banning’s motion for summary judgment.
We affirm the judgment.
Plaintiff
averred she understood Hennen’s words to mean that she was being called a
prostitute, and her classmates also understood them as such. Plaintiff was subjected to ridicule and had
to go to treatment. In ruling on
Banning’s motion for summary judgment, the court noted, “I don’t have evidence,
admissible evidence, regarding other students and what they understood and what
they heard. I can’t tie that comment to
a want of chastity . . . .” “[W]hat I
have in terms of evidence is I have the plaintiff’s statement, how she accepted
this, and I don’t have other students declarations or any evidence.” “I don’t have the other classmates. I don’t have any other evidence.” Moreover, the court opined that “when I look
at the quote, ‘You remind me of a prostitute chewing her gum,’ it doesn’t say,
you look like a prostitute.”
With
respect to Banning’s motion for summary judgment, the court noted that while it
did “not find the comment particularly appropriate, . . . neither does the
Court find the comment, on its face, imputing a want of chastity.” The court sustained Banning’s objection to
plaintiff’s understanding of what other students thought Hennen’s statement
meant. The court noted it had “no
admissible evidence to indicate that any third party understood the statement
as slanderous.” Moreover, the court
noted “[t]he evidence, as submitted, appears to acknowledge that Plaintiff knew
what Ms. Hennen meant with the comment, as deposition testimony indicated that
after the statement was made, Plaintiff swallowed her gum.” Furthermore, the court found there was no
authority for a claim of negligent defamation.
On
March 4, 2011, plaintiff
moved for reconsideration of the court’s order granting Banning’s motion for
summary judgment. Plaintiff’s basis for
moving for reconsideration was new evidence consisting of the declarations of
two students claiming they understood Hennen’s words to mean she was calling plaintiff
a prostitute. Defense counsel alleged he
“did not mention the new evidence at the February
8, 2011[,] hearing because at that time I was unaware that these
witnesses were available and willing to provide statements regarding Ms.
Hennen. The declarations from these
witnesses were not available until after the court had ruled on the motion for
summary judgment.” One of the
declarations read “I, Miguel Angel Aispuio [w]as a student at Nicolet
Middle School in Banning
Unified School District
on February 2 when I witnessed the teacher Ms. Hennen refer to Sofia Rasheed as
a prostitute. I understood Ms. Hennens
words to mean that Sofia Rasheed was a prostitute.” The other was virtually identical: “I, Ben Rivera [w]as a student at Nicolet
Middle School in Banning
Unified School District
on February 2 when I witnessed the teacher Ms. Hennen refer to Sofia Rasheed as
a prostitute. I understood . Ms. Hennens
words to mean that Sofia Rasheed was a prostitute.”
In
plaintiff’s reply to Banning’s opposition to the motion for reconsideration,
plaintiff attached another declaration from an Eric Ceja. The declaration read, “I was a student at Nicolet
Middle School . . . on February 2, 2009. I was in the U.S.
history class on February 2, 2009,
where Sofia Rasheed was also a student, and where Ms. Hennen . . .
was the teacher. [¶] I heard Ms. . . . Hennen say the following
words to Sofia Rasheed: ‘When you pop
the gum you sound like a prostitute’. I
understood the words to mean that Sofia
was being called a ‘prostitute’. I
understand that the word ‘prostitute’ means a person who sells her body. I understood that Ms. Hennen was saying that Sofia
sounded like a prostitute.” Plaintiff
attached all three students’ declarations to her opposition to Hennen’s motion
for summary judgment.
At the
hearing on Banning’s motion for reconsideration, the court noted plaintiff
failed to explain why she could not have obtained the declarations at an
earlier time: “You knew who the class
group was. Your client was in the
class.” The court stated that if
plaintiff needed more time to obtain the declarations, she should have
requested more time. The court took the
matter under submission, but denied the motion later that day.
With
respect to Hennen’s motion for summary judgment, the court noted, again, that
plaintiff evidenced recognition as to what Hennen’s comment referred when
plaintiff swallowed her gum. “As to . .
. negligence, I don’t know of any case that tells me that there should be a
negligence defamation cause of action.”
“I don’t find any case law that says that the teacher’s statements to a
student in a classroom are going to create a negligence claim.” The court took the matter under
submission.
On
May 26, 2011, the court
granted Hennen’s motion for summary judgment.
In its statement of decision, the court found that “[b]ased on the
evidence submitted, and the context in which the statement was made, the Court
does not find the statement actionable.”
Moreover, the court found “no cause of action stated in negligence based
on the utterance of the statement itself.”
A. MOTIONS FOR SUMMARY JUDGMENT
Plaintiff
contends the court erroneously granted the motions for summary judgment of
Banning and Hennen, because Hennen’s statement could be perceived as imputing
plaintiff’s want of chastity and, thus, presented a triable issue of fact. Moreover, even if Hennen’s statement could
not be interpreted as an intentional attempt to impugn plaintiff’s chastity, the
evidence plaintiff produced reflected that it had such an effect sufficient to
preserve plaintiff’s negligence claim as a triable
issue. We disagree.
“‘[O]n
appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set
forth in the moving and opposition papers except that to which objections have
been made and sustained.’
[Citation.]” (
512, 534) “We review de novo a trial court’s grant of summary judgment
along with its resolution of any underlying issues of statutory construction. [Citation.] A trial court may only grant a motion for summary judgment if
no triable issues of material fact appear and the moving party is entitled to judgment as a
matter of law. [Citations.] The evidence must be viewed in the light most
favorable to the nonmoving party.
[Citation.]” (
Cal.4th 610, 618.)
1. DEFAMATION
“The
elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage.
[Citation.]” (
1354, 1369.) “The crucial question in
this case is whether the statement at issue was a statement of fact or a
statement of opinion. This is a question
of law to be decided by the court.
[Citations.] In making such a
determination, the court must place itself in the position of the hearer or
reader, and determine the sense or meaning of the statement according to its
natural and popular construction. [
Citation.] ‘“That is to say, the
publication is to be measured not so much by its effect when subjected to the
critical analysis of a mind trained in the law, but by the natural and probable
effect upon the mind of the average reader.”’
[Citation.]” (
(1986) 42 Cal.3d 254, 260.)
“A
statement is not defamatory unless it can reasonably be viewed as declaring or
implying a provably false factual assertion [citation],
and it is apparent from the ‘context and tenor’ of the statement ‘that the
[speaker] seriously is maintaining an assertion of actual fact.’ [Citation.]”
(Carver v. Bonds (2005) 135
Cal.App.4th 328, 344.) “When one states
a view in terms of an ‘impression,’ the listener or reader is on notice that
the maker is not vouching for its accuracy.
A reasonable person would understand that a
statement of opinion rather than of fact was to follow.” (Baker
v. Los Angeles Herald Examiner, supra,
42 Cal.3d at pp. 261-262.)
Here,
Hennen’s statement “‘You remind me of a prostitute chewing her gum’” is not, as
a matter of law, a provably false factual assertion of fact. No one can prove that the style in which
plaintiff chewed her gum did not remind Hennen of the manner in which a
prostitute might chew her gum. Moreover,
Hennen’s statement cannot be regarded as actually calling plaintiff a
prostitute. First, Hennen only said that
plaintiff reminded her of a prostitute by the manner in which she chewed her
gum; she did not either implicitly or explicitly impugn plaintiff’s sexual
chastity. Second, Hennen’s comment was
directed at attempting to remedy plaintiff’s violation of the classroom rule
against chewing gum; this she succeeded in doing, as plaintiff immediately
swallowed her gum. Thus, even
plaintiff’s own declaration adduced evidence that she herself understood the
true gist of Hennen’s remark.
Plaintiff
argues that we must consider the audience to which the remark was
addressed: a classroom full of young,
impressionable, eighth grade students.
Plaintiff argues her attachment of three declarations to subsequent
pleadings, presumably all from members of the class that heard Hennen’s
remarks, averring the students regarded Hennen’s statement as calling plaintiff
a prostitute, demonstrates that in the context of an eighth grade classroom,
the students obviously did regard the comment as imputing plaintiff’s
chastity. However, regardless of plaintiff’s
classmates asserted interpretations of Hennen’s comment, there is still simply
no way any reasonable 13 year old could interpret the statement as an objective
statement of fact that plaintiff was a prostitute. Hennen never said plaintiff was a prostitute;
she never said plaintiff engaged in the defining activities of a prostitute;
rather, she merely implied that plaintiff’s gum chewing was reminiscent, in
Hennen’s mind, of how a prostitute chews gum.
Although we agree with both defendants’ counsels, and the trial court
below, that Hennen’s comment was inappropriate, we cannot say it rose to the
level of defamation.
2. NEGLIGENCE
We
agree with plaintiff that defendants were not immune from a suit for
negligence. Schools and their employees
“do owe plaintiff a duty to use the degree of care which a person of ordinary
prudence, charged with comparable duties, would exercise in the same
circumstances. [Citation.]” (Leger
v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459.) Nevertheless, we disagree with plaintiff
regarding the scope of that duty: “Of
course, in the present circumstances, the existence of a duty of care depends
in part on whether the harm to plaintiff was reasonably foreseeable. [Citation.]”
(Ibid.) “[T]he scope of defendants’ duty, and the existence of duty is a
pure question of law
. . . .” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 363;
(2012) 202 Cal.App.4th 948, 958.)
“‘Since the existence of
a duty of care is an essential element in any assessment
of liability for negligence [citations], entry of summary
judgment in favor of the defendant in a negligence action
is proper where the plaintiff is unable to show that the defendant owed such a duty of care.’
[Citation.] The determination
that a legal duty is owed in a particular set of
circumstances is ‘“‘only an expression of the sum total of those considerations
of policy which lead the law to say that the particular
plaintiff is entitled to protection.’”’ [Citation.]” (
supra, 202 Cal.App.4th at p. 958, fn.
omitted.)
Here, as discussed
above, Hennen’s statement did not rise to the level of defamation; yet,
plaintiff contends a triable issue of fact remained as to whether Hennen’s
statement negligently inflicted the emotional damages sustained by
plaintiff. We hold that no cause of
action for negligence exists against a teacher where her statement to a student
does not rise to the level of defamation.
To hold otherwise would be to permit a cause of action for any comment
made by a teacher that unintentionally hurt the child’s feelings and/or was
subjectively perceived by her classmates to result in ridicule of the
student.
As the trial court
implied, teachers do not have a duty to be “nice.” Moreover, the First Amendment implications
are staggering, as a contrary holding would significantly chill teachers’
freedom to communicate with their students.
Finally, the procedural hurdles faced by school districts alone would make
such rule impractical because school districts could not be expected to compile
examples of all prohibited statements that might offend a student or subject
her to ridicule. Neither could school
districts be expected to constantly supervise their teachers to ensure
compliance with any rule book of impermissible comments. We hold that although Hennen owed plaintiff a
duty of care, the scope of that duty did not extend to the unforeseeable
consequence that her non-defamatory statement would subject plaintiff to
emotional distress and ridicule. Thus,
defendants established there was no triable
issue of material fact and were entitled to summary judgment.
B. MOTION FOR RECONSIDERATION
Plaintiff
contends the court erroneously denied her motion for reconsideration of the
order granting Banning’s motion for summary judgment. We disagree.
“Section
1008, subdivision (a) requires that a motion for reconsideration be based on
new or different facts, circumstances, or law.
A party seeking reconsideration also must provide a satisfactory
explanation for the failure to produce the evidence at an earlier time. [Citation.]
A trial court’s ruling on a motion for reconsideration is reviewed under
the abuse of discretion standard. [Citation.]”
(New York Times Co. v. Superior
Court (2005) 135 Cal.App.4th 206, 212.)
Plaintiff
based its motion for reconsideration on the “newly discovered evidence” of the
three student declarations averring that they regarded Hennen’s statement as
calling plaintiff a prostitute. Defense
counsel asserted, “I did not mention the new evidence at the February 8, 2011,
hearing because at that time I was unaware that these witnesses were available
and willing to provide statements regarding Ms. Hennen. The declarations from these witnesses were
not available until after the court had ruled on the motion for summary
judgment.” However, as the court noted,
plaintiff knew who was in class, because she was in the class herself. Thus, it is difficult to understand why
counsel could not have contacted the class members at an earlier time and
requested such declarations.
Indeed,
the name and phone number for one of the students who submitted a declaration
was included in plaintiff’s response to special interrogatories dated May 27,
2010, nearly eight months prior to plaintiff filing her opposition to Banning’s
motion for summary judgment, and at least nine and a half months prior to her
eventual submission of those declarations.
Likewise, the name of another student who appears to have submitted a
declaration was also included in the same response. Plaintiff failed to provide any satisfactory
explanation for her failure to obtain the declarations at an earlier time.
Moreover,
as the court noted, even if plaintiff was having difficulty obtaining the
declarations, plaintiff could have requested an extension of time to obtain
them; this plaintiff never did.
Plaintiff never even indicated they were seeking such declarations. Finally, as discussed above, the declarations
are largely irrelevant to both our and the trial court’s determination that no
triable issue of fact existed. Thus, the
court acted within its discretion in denying plaintiff’s motion for
reconsideration.
The
judgment is affirmed. In the interest of
justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RICHLI
Acting P. J.
KING
J.
