In 2019 a three-year-old ECE Head Start student fell from a school jungle gym and fractured his elbow. Plaintiff sued Defendant claiming that the ECE staff was negligent in failing to provide adequate and appropriate supervision thereby allowing the accident to happen. Plaintiff asked the jury for $770,000 in damages. After a 5 day trial, the jury returned with a unanimous defense verdict. The Palmdale School District was represented by Louis Dumont and Yelena Bakman.
Author: Carpenter, Rothans & Dumont
Court of Appeal Victory
CRD just had a recent victory in a case involving a writ petition seeking to overturn the decision of an administrative hearing officer. The writ was dismissed by the trial court after the petitioner failed to timely file an opening brief and the court denied relief under CCP 473. The Court of Appeal affirmed, finding that the attorney’s knowing decision to not file an opening brief because he thought the case would settle was not an excusable mistake or neglect. The County of Los Angeles, Department of Animal Care and Control, was represented by Jill Williams and Kimberly Morosi.
Summary Judgment Granted in Civil Rights/Wrongful Death Case
The United States District Court for the Central District of California issued an order granting summary judgment in favor of the County of Los Angeles in federal civil rights / wrongful death lawsuit entitled Garry Agosto v. County of Los Angeles. This civil action arose out of the death of a two-year-old girl after her mother accidentally left her in a heated vehicle overnight. The child’s father brought claims for negligence and under 42 U.S.C. section 1983 against the County based on allegations that the Department of Children and Family Services (“DCFS”) social workers conducted a deficient investigation when determining that the child was not at risk of abuse and/or neglect.
The federal district court found that the incontrovertible evidence showed the DCFS social workers did not breach a duty of care when investigating the referral made to the department. The district court dismissed the case with prejudice and entered judgment in favor of the County. The County of Los Angeles was represented by Jill Williams and Kimberly Morosi.
Summary Judgment Granted In Favor of a Public Charter School
CRD achieved summary judgment on behalf of Vaughn Next Century Learning Center (a public charter school within the Los Angeles Unified School District) in an action brought by a female student alleging she was bullied as well as sexually and racially harassed by a male peer when they were in elementary school. The plaintiff also alleged that the school discriminated against her based on her race (African American) in failing to discipline the alleged perpetrator and subjecting plaintiff to “strip searches” by law enforcement on campus. The plaintiff asserted causes of action against the school for negligent supervision, assault and battery, and violation of state civil rights. The court found no evidence that Vaughn discriminated against plaintiff or that the school was indifferent to any misconduct by other students. The court also ruled that Vaughn reasonably supervised its students and responded to known complaints appropriately. The school district was represented by Scott Carpenter.
Summary Judgment Granted In Favor of a High School District
CRD achieved summary judgment on behalf of Garvey High School District in an action brought by a student who collided with another student in Physical Education class. Plaintiff alleged that the teachers negligently supervised the students and that the instructions about the rules of the game and playing safely encouraged students to push each other. The Court held that although the school had a duty to prevent the collision, the teachers’ supervision and instructions did not cause the students’ collision. The high school district was represented by Yaron Dunkel.
CRD Operations during COVID-19
As we continue to monitor the COVID-19 outbreak closely, the health and well-being of our staff, clients, colleagues and their families are of the utmost importance to us. We have been proactively communicating with our staff and clients about steps to take to limit the spread of Covid-19 and have asked anyone in our office who is not feeling well to work from home. We have also ceased holding meetings in our office and have encouraged our clients to do the same during this very challenging time.
If circumstances dictate that we close our offices, rest assured that we have a business continuity plan in place that will enable us to provide you with uninterrupted service and all of us at Carpenter Rothans & Dumont LLP will work remotely in order to be responsive to your needs throughout an office closure.
For over 26 years, CRD has been committed to providing our clients with the highest level of professional representation. Together, we can and will get through these challenging times.
Voluntary Dismissal in Wrongful Death Case for the County of Los Angeles
The firm recently obtained a voluntary dismissal in a wrongful death case where the plaintiff alleged negligence and claims under 42 U.S.C. section 1983. After a demurrer was sustained, Mr. Wells consulted with plaintiff’s counsel, who, as a result of the consultation, agreed to dismiss all claims against the County of Los Angeles with prejudice. The County was represented by Edward Wells.
CRD Obtains Defense Verdict in Federal District Court
In the case of Aarefah Mosavi v. Mt. San Antonio College, et. al., bearing United States District Court Case No. 2:15-cv-04147, handled by attorneys Martin L. Carpenter and Joseph A. Gordon (August 2018), CR&D obtained a defense verdict in a federal jury trial. The case involved a female Muslim student-employee who alleged work place sexual and religious discrimination, and sexual assault by her male co-worker. Congratulations to Mr. Carpenter and Mr. Gordon on a job well done!
Ninth Circuit Affirms Dismissal of Title IX Lawsuit
On April 20, 2018, the Ninth Circuit Court of Appeals affirmed Judge Gonzalo P. Curiel’s grant of summary judgment in favor of the Brawley Elementary School District in the lawsuit entitled Anyssa Sanchez v. Brawley Elementary School District, Case No. 16-55892.
In this civil case, plaintiff, Anyssa Sanchez, sued the school district arising out of a single incident of alleged peer-on-peer sexual harassment in which she claims she was inappropriately touched by another student in a lunch line and then responded by using physical force against the offending student (i.e., kicking him in the groin).
After initially accepting a one day suspension from school for her involvement in the incident, plaintiff switched gears and sued the school district under Title IX, alleging that she had been denied access to educational opportunities and/or benefits. Plaintiff further claimed that the school district knew about inappropriate alleged games involving sexual harassment among its students.
Judge Curiel dismissed the lawsuit on a motion for summary judgment, concluding that plaintiff’s claims had no evidentiary merit. Agreeing with Judge Curiel and finding that the alleged harassment was not “so severe, pervasive, and objectively offensive that it effectively barred Sanchez’s access to an educational opportunity or benefit,” the Ninth Circuit affirmed dismissal of the lawsuit as a matter of law. The matter was argued on summary judgment and briefed before the Ninth Circuit Court of Appeals by Justin Reade Sarno.
CCP 1038: Municipal Considerations
If you are a public entity and find yourself on the victorious end of a summary judgment motion, motion for directed verdict, motion for judgment (under Section 631.8), or non-suit, then consider whether the plaintiff’s lawsuit, or co-defendant’s cross complaint, against the entity was brought “with reasonable cause,” and “in the good faith belief that there was a justifiable controversy.” Civ. Proc. Code, sec. 1038. If it was not, then the victorious public entity may be entitled to recovery of “defense costs reasonably and necessarily incurred” under section 1038. Id.
This is both an important tool, and strategic consideration, for public entities. Specifically, “defense costs,” as defined under section 1038, encompasses “reasonable attorneys’ fees, expert witness fees, the expense of services of experts, advisers, and consultants in the defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.” Id.
In the recent case of Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, the Third Appellate District found in favor of a public entity on a motion for summary judgment relative to a promissory estoppel claim, and then imposed the recovery of fees and costs under section 1038. The court specified that “[s]ection 1038 applies not only to tort actions initiated in bad faith, but also to actions initiated in good faith but maintained in bad faith and without reasonable cause.” (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1585-1586.) Analyzing the claims presented, the Court agreed with the trial court that “no reasonable attorney would have thought the claims were legally tenable.” Ponte, 14 Cal.App.5th at p. 560. Furthermore, the Court of Appeal found that the plaintiff was also responsible for paying the County’s costs on appeal. (Id.; see Cal. Rules Ct., Rule 8.278(a).)
Ultimately, the Ponte case serves as a sobering reminder to plaintiffs that their claims against a public entity must be meritorious. Furthermore, it serves as an important tool for public entities to consider when seeking an award of fees and costs in the trial court pursuant to Code of Civil Procedure section 1038 and, then, costs on appeal pursuant to California Rules of Court, Rule 8.278(a).
Justin Sarno is an appellate practitioner at CR&D and has been defending public agencies and public employees for his entire career.