The opinion
Filed 06/13/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
E.I., B325733
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. 19STCV14649)
EL SEGUNDO UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael B. Harwin, Judge. Affirmed.
Law Offices of Barber & Bauermeister, Linda Bauermeister
and Robert Kostrenich for Defendant and Appellant.
Abir Cohen Treyzon Salo, Christa Ramey, Schyler Katz;
S.C. Law, Siannah Collado; Esner, Chang, Boyer & Murphy,
Holly N. Boyer, Shea S. Murphy, and Kevin N. Nguyen for
Plaintiff and Respondent.
_________________________________
INTRODUCTION
A jury awarded plaintiff E.I.1 $1 million in damages after it
found defendant El Segundo Unified School District (District)
negligently failed to protect her from other students’ bullying
while she was a student at El Segundo Middle School (Middle
School). On appeal, the District argues: (1) the trial court erred
in allowing E.I. to rely on various provisions of the Education
Code to support her negligence claim; (2) the District is immune
from liability because any decision made by the Middle School
employees in determining how to respond to E.I.’s complaints of
bullying was discretionary under Government Code section 820.2;
(3) E.I. failed to prove any of her injuries were caused by the
negligence of the Middle School employees; (4) the court erred
when it allowed the jury to consider a negligent training and
supervision theory because E.I. dismissed her second cause of
action for negligent hiring, retention, supervision, and training;
(5) the court should have excluded testimony from one of E.I.’s
expert witnesses; and (6) E.I.’s counsel engaged in misconduct
during closing argument. As we explain, the District has waived
or failed to develop many of these issues in their opening brief,
and the remaining issues lack merit. Accordingly, we affirm.
FACTUAL BACKGROUND
1. The bullying
E.I. attended the Middle School during the 2017–2018
school year. She was friends with two other students, Kate B.
and Skylar B. At some point during that school year, E.I. told
Kate that she liked a boy whom Kate had recently dated. Kate
told E.I. “ ‘no worries.’ ”
1 We use initials for the minors in the middle school.
2
When Skylar discovered E.I. was talking to Kate’s ex-
boyfriend, Skylar sent E.I. messages on social media accusing her
of being a “cheater,” a “whore,” a “bitch,” a “slut,” and a “liar.”
Skylar began insulting E.I. at school, and she sometimes
screamed at E.I., flipped her off, and, on one occasion, slapped
her face. Teachers were present when Skylar engaged in some of
this behavior, but they did not intervene or report it.
E.I. eventually complained about Skylar’s behavior to one
of the Middle School’s counselors. At the principal’s request, the
counselor held a meeting with E.I., Skylar, and Kate on
October 20, 2017. The counselor did not develop a plan for the
meeting or share the school’s anti-bullying policies with the girls.
According to E.I., the girls had a “very superficial[]” discussion
about what was happening between them and “nothing really
ended from that.”
On October 24, 2017, four days after meeting with Skylar
and Kate, E.I. sent an e-mail to the school’s counselor, asking to
meet with her “as soon as possible.” Skylar’s behavior had
“picked up” since the meeting, and she continued to send E.I.
harassing messages and to yell at, and flip off, E.I. at school.
Although the counselor met with E.I., she did not otherwise
follow up on E.I.’s complaint. Because E.I. did not feel safe
around other students, she started eating lunch by herself in the
nurse’s office.
In mid-November 2017, Skylar and E.I. engaged in the
following exchange on social media:
Skylar: “Fuck you
u can just get the hell out of my life
Ur a toxic friend”
E.I.: “ok”
3
Skylar: “I hate you
Ur passive aggressive
A li[a]r
A toxic friend
A bully
A cheater
And u make people feel like shit
And u ruined all the memories I had with
u
We were fine until u lied
Go lie to someone else
Go kiss someone else’s ass
Like Grace
Or anyone
Idc
Just get the hell out of my life
And until u decide to be a descent [sic]
human being u can forget about
everything”
E.I.: “what’s everything[?]”
Skylar: “Oh GO TO HELL
I can take a lot of shit but u have pissed
me off the [most]
And I think u like it”
E.I.: “why would I like any of this[?]”
Skylar: “Bc u keep doing it”
E.I.: “ok”
Skylar: “ ‘Ok’ ”
E.I.: “yes ok”
Skylar: “That’s all u got to say[?]”
4
E.I.: “If [I] say anything else you’re going to
yell or manipulate my words or
something”
Skylar: “That’s what u do
Hypocrite
U know what?”
E.I.: “what[?]”
Skylar: “Ur a fucking bitch and u don’t deserve
anyone that goes to that school and I
hope they realize how deceiving and petty
you are and u know what u can just live
alone with cats the rest of ur life.”
E.I. showed the messages to the school’s counselor. E.I.
also told the counselor that Skylar continued to harass her at
school, and she asked the counselor for help with the situation.
The counselor told E.I. that “girls will be girls” or that “[t]his is
just girl drama.”
Around the fall of 2017, E.I. began cutting her stomach
because she “felt like [she] needed help with the situation and it
wasn’t being addressed. And [she] wanted someone to . . . see
how . . . real and intense [the situation] was and . . . how it wasn’t
being looked at.” When E.I.’s mother noticed that E.I. was
cutting herself, E.I. explained that she was engaging in this
behavior because of the loss of her “friendship that she had with
[Skylar] and [Kate], and [that] it had to do with a boy.” E.I. often
came home from school “in tears,” and she frequently asked her
parents to pick her up early from school. E.I. also started seeing
a therapist.
On November 26, 2017, E.I.’s mother e-mailed the Middle
School’s principal to request a meeting to address “disturbing
5
information” that required “immediate attention.” A couple of
days later, E.I.’s mother and father met with the school’s
principal. The parents showed the principal some of the
messages that Skylar sent E.I. through social media, and E.I.’s
father told the principal that E.I. did not feel safe attending
school and that he was concerned that other students were
bullying her. The principal told E.I.’s parents, “Yes, I know who
the mean girls are, and I’ll do something about it.”
On November 28, 2017, the Middle School held a “challenge
day,” where students broke off into small groups with teachers
and administrators. The event was intended to allow students to
talk to school officials about issues that typically did not come up
in class, such as their emotional well-being. The administrator
overseeing E.I.’s group was the school’s former principal. When
E.I. told him about her issues with Skylar, he brushed over her
comments and started talking to another student.
On November 29, 2017, the school’s principal notified E.I.’s
mother that she (the principal) met with E.I. E.I. and the
principal talked about Skylar and “getting to a place where there
wouldn’t be any hurtful messages being sent.” E.I. was open to
“meeting in a restorative justice setting” with Skylar, which the
principal promised to “definitely work on getting . . . to happen.”
At some point in November or December 2017, E.I. blocked
Skylar and Kate on her text messaging and social media
accounts. E.I. unblocked Skylar from her accounts in the spring
of 2018.
Around January 2018, E.I. applied to a private high school
outside the District. Although she had planned to attend a high
school within the District, she no longer felt safe doing so because
of the bullying she continued to experience at the Middle School.
6
Skylar’s bullying persisted throughout the remainder of the
2017–2018 school year. Skylar continued to confront E.I. on
campus. In April 2018, Skylar initiated a text exchange with E.I.
Skylar called E.I. a “bitch” and “irrelevant” and accused her of
losing all her school friends. Skylar claimed that “the other 50”
students in their grade were happy that E.I. was leaving the
District, and Skylar ridiculed E.I. for eating lunch alone in the
nurse’s office. E.I. told the Middle School’s counselor about
Skylar’s messages, but nothing was done to address them.
On June 12, 2018, E.I.’s class took a trip to Knott’s Berry
Farm. Skylar sent messages to E.I. throughout the day, claiming
E.I. did not have any friends and teasing her for being alone at
the theme park. At the end of the day, as E.I. walked back to the
bus, Skylar and some of Skylar’s friends approached E.I. and
called her a “bitch,” yelled profanities at her, flipped her off, and
laughed at her. When E.I. got on the bus, she started crying.
One of the teachers saw E.I. crying but did not say anything to
her.
On June 13, 2018, E.I.’s parents met with the Middle
School’s principal. E.I.’s parents told the principal about the
messages that Skylar sent E.I. while at the theme park and
about how Skylar and her friends teased and cursed at E.I. as she
returned to the bus. The principal responded that she “ ‘dropped
the ball.’ ”
On the same day E.I.’s parents met with the principal,
Skylar decided to create a petition titled, “Petition to END [E.I.’s]
Life.” K.S., another student at the Middle School, drafted and
signed the petition, while other students wrote comments on it,
like “KKK” and “she is a whore.”
7
Two students reported the petition to the Middle School’s
counselor, who reported it to the principal. The principal
eventually notified the police, and she met with Skylar, K.S., and
their parents. No one from the school contacted E.I.’s parents.
The principal did not view the petition as bullying. Instead, she
believed it was just “wrong.” The police later found the petition
did not pose a credible threat of harm to E.I.
E.I.’s parents did not hear about the petition until late in
the evening on the day it was circulated, when another student’s
mother contacted E.I.’s mother. E.I.’s father sent an e-mail to the
Middle School’s principal, demanding a meeting with her the
following day or else he would “ ‘call the police.’ ” The principal
responded, claiming “[w]ord of a potential issue came to the office
at the end of the day,” and that she intended to contact E.I.’s
parents “as soon as [she] had substantial information.” She
promised that the school would fully investigate the petition
“first thing in the morning” and that the “ESPD resource officers
will be involved.”
E.I. did not learn about the petition until June 14, 2018,
when she and her parents met with the principal and the police.
The principal informed E.I.’s family that Skylar and K.S. had
been suspended. Nevertheless, Skylar was allowed to attend the
school’s promotion ceremony the next day.
E.I.’s psychologist testified that E.I. was diagnosed with
posttraumatic stress disorder (PTSD) and an adjustment disorder
with depressed mood and anxiety because of the bullying she
experienced during the 2017–2018 school year. E.I. became more
withdrawn and distant from other people. According to the
psychologist, E.I.’s PTSD diagnosis was enduring and “doesn’t go
8
away,” and E.I. would need to continue to attend therapy for
many years.
2. The District’s and the Middle School’s anti-bullying
policies
The District developed a “Comprehensive Safety Plan,”
which establishes, among other things, “appropriate strategies
and programs that will provide or maintain a high level of school
safety and address the school’s procedures for complying with
existing laws related to school safety, including . . . [¶] . . . [a]
policy consistent with the prohibition against discrimination,
harassment, intimidation, and bullying pursuant to the
Education Code [sections] 200–262.4.” The District’s safety plan
was modeled, in part, on the Education Code’s provisions
addressing school safety.
The District’s safety plan states in relevant part, “[t]he
Government Board recognizes the harmful effects of bullying on
student learning and school attendance and desires to provide
safe school environments that protect students from physical and
emotional harm. District employees shall establish student
safety as a high priority and shall not tolerate bullying of any
student. [¶] No student or group of students shall, through
physical, written, verbal, or other means, harass, sexually
harass, threaten, intimidate, retaliate, cyberbully, cause bodily
injury to, or commit hate violence against any student or school
personnel.” The safety plan defines cyberbullying, in part, as
“the creation or transmission of harassing communications, direct
threats, or other harmful texts, sounds, or images on the
Internet, social media, or other technologies using a telephone,
computer, or any wireless communication device.”
9
Under the District’s safety plan, schools shall, to the extent
possible, “focus on the prevention of bullying by establishing clear
rules for student conduct and implementing strategies to promote
a positive, collaborative school climate. Students shall be
informed, through student handbooks and other appropriate
means, of district and school rules related to bullying,
mechanisms available for reporting incidents of threats, and the
consequences for engaging in bullying.” School “[s]taff shall
receive related professional development, including information
about early warning signs of harassing/intimidating behaviors
and effective response,” and “[b]ased on an assessment of
bullying incidents at school, the Superintendent or designee may
increase supervision and security in areas where bullying most
often occurs, such as classrooms, playgrounds, hallways,
restrooms, and cafeterias.”
The District’s safety plan also establishes guidelines for
preventing and reporting bullying. Students “are encouraged to
notify school staff when they are being bullied or suspect that
another student is being victimized.” In addition, school “staff
who witness an act of bullying shall immediately intervene to
stop the incident when it is safe to do so.” The superintendent
also must notify the victim’s and the perpetrator’s parents
“[w]hen appropriate based on the severity or pervasiveness of the
bullying.” Further, the superintendent, principal, or principal’s
designee “may refer a victim, witness, perpetrator, or other
student affected by an act of bullying to a school counselor, school
psychologist, social worker, child welfare attendance personnel,
school nurse, or other school support service personnel for case
management, counseling, and/or participation in a restorative
justice program as appropriate.”
10
In addition, the District’s safety plan requires schools to
document and investigate complaints of bullying. Specifically,
the plan states that “[a]ny complaint of bullying, whether it is
discriminatory or nondiscriminatory, shall be investigated and
resolved in accordance with law and the district’s uniform
complaint procedures.” Any student, parent, or other individual
who believes a student has been bullied, or who has witnessed
bullying, “may report the incident to a teacher, the principal, a
compliance officer, or any other available school employee.
Within one business day of receiving such a report, a staff
member shall notify the principal of the report whether or not a
uniform complaint is filed. Within two business days of receiving
a report of bullying, the principal shall notify a district
compliance officer . . . . In addition, any school employee who
observes an incident of bullying involving a student shall, within
one business day, report his/her observation to the principal or a
district compliance officer, whether or not the alleged victim files
a complaint.” The school also must inform the alleged victim, or
the alleged victim’s parents, of the right to file a formal written
complaint, and the alleged victim “shall be given an opportunity
to describe the incident, identify witnesses who may have
relevant information, and provide other evidence of bullying.”
Under the District’s safety plan, individuals who are aware
of cyberbullying are encouraged to save and print the electronic
messages that they believe constitute cyberbullying and to notify
a teacher, the principal or another school employee so that the
issue may be investigated. In addition, the superintendent may
file a request with the networking site or service to suspend the
privileges of the student and to have the bullying material
removed.
11
The District’s safety plan also provides guidelines for
disciplining students who engage in bullying conduct. The school
may require a student who bullies another student to participate
in “counseling, behavioral intervention and education,” and, “if
the behavior is severe or pervasive as defined in Education Code
section 48900,” the school may suspend or expel the student.
In addition, any “employee who permits or engages in bullying or
retaliation related to bullying shall be subject to disciplinary
action, up to and including dismissal.”
The Middle School also developed its own safety plan,
which was authored by the school’s principal. The Middle
School’s plan is based on the Education Code and largely mirrors
the District’s safety plan.
The District trained the Middle School employees how to
respond when (1) receiving complaints of bullying or
(2) witnessing students engaging in acts of bullying.
PROCEDURAL BACKGROUND
In April 2019, E.I. sued the District, asserting causes of
action for negligence and negligent hiring, retention, supervision,
and training, both under Education Code section 44807 and
Government Code sections 815.2, 815.4, 815.6, 820, and 835.
In her first cause of action for negligence, E.I. alleged, among
other things, that the District and the Middle School employees
owed a duty to protect her from other students’ bullying and to
supervise, and maintain discipline of, the Middle School’s
students, and that their breach of those duties caused her
injuries. In her second cause of action, E.I. alleged that the
District owed her a duty to “adequately and properly investigate,
screen, hire, train, monitor, place, evaluate, and supervise its
instructors and employees in order to protect its students from
12
harm caused by other [] students on El Segundo Middle School’s
premises,” and that the District’s breach of that duty caused her
injuries.
A jury trial commenced in August 2022. During trial, E.I.
dismissed her second cause of action for negligent hiring,
retention, supervision, and training. The jury found the District
was negligent and that its negligence was a substantial factor in
causing E.I.’s injuries. The jury awarded E.I. $1 million in
damages, including $700,000 for past noneconomic damages and
$300,000 for future noneconomic damages.
After the court entered judgment in E.I.’s favor, the District
moved for a new trial and for judgment notwithstanding the
verdict. The court denied both motions.
The District appeals.
DISCUSSION
1. Education Code section 48900 et seq.
The District argues the court erred when it allowed E.I. to
rely on Education Code sections 48900, 48900.5, 48900.7 and
48911 to prove the Middle School employees negligently failed to
protect her from other students’ bullying. According to the
District, those provisions address when a school may punish a
student for engaging in harmful or disruptive behavior, but they
do not create any mandatory duties on the part of school
personnel to protect students from other students’ behavior.
In other words, the District contends that “[t]he only proper
construction of [those] statutes is that [E.I.] does not have a right
to assert a right to protection thereunder.” This argument is
misguided.
Education Code sections 48900, 48900.5, 48900.7 and
48911 are “part of a comprehensive legislative scheme designed
13
to ensure procedural fairness in suspension and expulsion
proceedings.” (Tirpak v. Los Angeles Unified School Dist. (1986)
187 Cal.App.3d 639, 645.) As the District points out, those
provisions “do not expressly set forth a private cause of action for
damages for breach of their provisions,” nor do they create
“a mandatory duty of care owed to plaintiffs with respect to
economic damages arising from educational injury.” (Ibid.)
But E.I. did not sue the District under Education Code
section 48900, 48900.5, 48900.7 or 48911. Nor did she cite those
provisions in her operative first amended complaint or argue at
trial that the District’s liability arose out of those provisions.
The court also did not instruct the jury on those provisions.
Although E.I.’s expert testified about some of the steps the
District could have taken under those provisions to discipline
Skylar and address E.I.’s complaints of bullying, E.I. did not
otherwise base her negligence claim on a theory that the Middle
School employees breached a mandatory duty owed to her under
those provisions. Instead, E.I. brought her negligence claim
against the District under Education Code section 44807 and
Government Code sections 815.2, 815.4, 815.6, 820, and 835.
As our Supreme Court has explained, “ ‘California law has
long imposed on school authorities a duty 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.” ’ ” (C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 869 (C.A.); see also J.H. v. Los Angeles
Unified School Dist. (2010) 183 Cal.App.4th 123, 139 (J.H.) [the
duty of school officials to always supervise the conduct of children
on school grounds is “very, very well established”].) This duty of
care arises, in part, out of what is now Education Code
14
section 44807. (See Dailey v. Los Angeles Unified School Dist.
(1970) 2 Cal.3d 741, 747; see also Lucas v. Fresno Unified School
Dist. (1993) 14 Cal.App.4th 866, 872.)
It is well-settled that “a school district and its employees
have a special relationship with the district’s pupils, a
relationship arising from the mandatory character of school
attendance and the comprehensive control over students
exercised by school personnel, ‘analogous in many ways to the
relationship between parents and their children.’ ” (C.A., supra,
53 Cal.4th at p. 869.) Because of this special relationship, “the
duty of care owed by school personnel includes the duty to use
reasonable measures to protect students from foreseeable injury
at the hands of third parties acting negligently or intentionally.”
(C.A., at p. 870.)
“ ‘The standard of care imposed upon school personnel in
carrying out this duty to supervise is identical to that required in
the performance of their other duties. This uniform standard to
which they are held is that degree of care “which a person of
ordinary prudence, charged with [comparable] duties, would
exercise under the same circumstances.” [Citations.] Either a
total lack of supervision [citation] or ineffective supervision
[citation] may constitute a lack of ordinary care on the part of
those responsible for student supervision. Under section 815.2,
subdivision (a) of the Government Code, a school district is
vicariously liable for injuries proximately caused by such
negligence.’ ” (C.A., supra, 53 Cal.4th at p. 869.)
Thus, independent of any obligations that may arise under
Education Code sections 48900, 48900.5, 48900.7, and 48911,
school officials owe a duty to students to supervise their conduct
and protect them from harm while on school grounds. (See C.A.,
15
supra, 53 Cal.4th at pp. 868–869.) The District’s contention that
the Middle School employees had no duty to protect E.I. from
harm caused by other students is, therefore, meritless.
2. Immunity under Government Code section 820.2
The District next contends it is immune from liability
under Government Code section 820.2. Specifically, the District
argues any decisions by the Middle School employees in
determining how to respond to E.I.’s complaints of bullying were
“discretionary” under that statute and, as a result, could not
expose the District to any liability for those employees’ failure to
protect E.I. from other students’ bullying. This argument also
lacks merit.
Government Code section 820.2 provides: “Except as
otherwise provided by statute, a public employee is not liable for
an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in
him, whether or not such discretion be abused.”
Immunity under Government Code section 820.2 is
reserved for “ ‘ “basic policy decisions” ’ ” that have been expressly
committed to coordinate branches of government, and “ ‘as to
which judicial interference would . . . be “unseemly.” ’ ” (Barner
v. Leeds (2000) 24 Cal.4th 676, 685 (Barner).) That immunity
does not extend to “lower level decisions that merely implement a
basic policy already formulated.” (Ibid.) Indeed, “not all acts
requiring a public employee to choose among alternatives entail
the use of ‘discretion’ within the meaning of [Government Code]
section 820.2.” (Id. at pp. 684–685, citing Caldwell v. Montoya
(1995) 10 Cal.4th 972, 981 (Caldwell).)
In Barner, the Supreme Court held that a deputy public
defender is not immune from civil liability under Government
16
Code section 820.2 for his or her acts or omissions in representing
a criminal defendant. (Barner, supra, 24 Cal.4th at pp. 679–680,
686–692.) The court explained that while a deputy public
defender’s decision to represent a particular client may qualify as
an immune “discretionary” act, “once the employee undertakes to
render such services, he or she is not immune for the negligent
performance of professional duties that do not amount to policy or
planning decisions.” (Id. at p. 686.) That is, “legal representation
provided by a deputy public defender entails operational (as
opposed to policy) decisions that are incident to the normal
functions of the office of the public defender.” (Id. at p. 680.)
The Supreme Court rejected the deputy public defender’s
argument that an attorney’s decision whether to file a certain
motion, as opposed to what information should be included in a
motion once the attorney has decided to file one, “is inherently
discretionary and should not be subject to later judicial scrutiny
in a civil action.” (Barner, supra, 24 Cal.4th at p. 688.) While
both decisions involve “the exercise of professional judgment in
light of an evaluation of all the circumstances of the case,” the
Supreme Court explained, neither one is “a sensitive decision
implicating fundamental policy concerns warranting judicial
abstention.” (Id. at p. 689.)
The Supreme Court also identified other public employees
who are not immune from liability for certain acts that they
perform in the scope of their employment, even though some of
those acts may involve some level of discretionary decision
making. For instance, government medical doctors are not
immune from liability when they act negligently during an
“examination or diagnosis performed for the purpose of treating
[an] individual.” (Barner, supra, 24 Cal.4th at pp. 687–688.)
17
Likewise, government psychologists “are not immune from
liability under [Government] Code section 820.2 for the failure to
warn a third person of a risk of harm posed by a patient,” even
though the decision whether to disclose such a risk “may require
the exercise of considerable judgmental skills.” (Id. at p. 686,
citing Tarasoff v. Regents of University of California (1976)
17 Cal.3d 425.) Such decisions are not insulated from liability
because they do “not rise to the level of a basic policy decision for
which the statute provides immunity.” (Barner, at p. 686.)
Here, E.I.’s negligence claim was based on a theory that the
Middle School employees negligently failed to protect her from
other students’ bullying. To support that claim, E.I. presented
evidence that she and her parents repeatedly reported Skylar’s
bullying to the Middle School’s principal and counselor, and that
several members of the Middle School’s staff, including some
teachers, witnessed Skylar’s bullying but failed to do anything to
address it. E.I. also presented evidence of the District’s and the
Middle School’s safety policies, which established procedures and
guidelines for District and Middle School employees to follow
when witnessing, or receiving reports of, bullying. Those policies
outlined, among other things, when and how those employees
should investigate alleged incidents of bullying, how to discipline
students who engage in bullying, and how to help students who
are victims of bullying. E.I. also presented evidence that the
Middle School employees, including the principal and the
counselor, did not follow many of those procedures and guidelines
once she and her parents reported Skylar’s bullying.
Applying Barner’s rationale, the District is not immune
from liability arising out of the Middle School employees’
responses to E.I.’s complaints that she was being bullied by other
18
students. E.I. did not claim that the District or the Middle School
was negligent in crafting its anti-bullying policies. Rather, E.I.
claimed that the Middle School employees negligently failed to
protect her from other students’ bullying by, among other things,
not following the District’s and the Middle School’s safety policies
that were already in place. As the Supreme Court explained in
Barner, such “lower level decisions that merely implement a basic
policy already formulated” are not immune from liability under
Government Code section 820.2. (Barner, supra, 24 Cal.4th at
p. 685.)
The District relies on Skinner v. Vacaville Unified School
Dist. (1995) 37 Cal.App.4th 31 (Skinner) and Thompson v.
Sacramento City Unified School Dist. (2003) 107 Cal.App.4th
1352 (Thompson) to argue it is immune from liability under
Government Code section 820.2. In Skinner, the appellate court
reversed a jury’s verdict finding a school district liable for failing
to protect the plaintiff student who was injured during a
playground fight. (Skinner, at pp. 37–43.) Relevant here, the
court reasoned that the jury’s verdict could not be supported by
evidence that the school district failed to expel the aggressor
student based on his prior behavioral issues at school. (Id. at
p. 39.) The court explained, “[t]he power to expel students from
public schools has been entrusted to the governing board of the
school district, which must exercise this power pursuant to
statutory guidelines [citation] and its own rules and regulations.
[Citation]. Accordingly, the decision falls squarely within the
discretionary immunity provision of Government Code
section 820.2. The decision to expel entails ‘the resolution of
policy considerations, entrusted by statute to a coordinate branch
19
of government, that compels immunity from judicial
reexamination.’ ” (Id. at p. 39.)
In Thompson, the reviewing court affirmed summary
judgment for the school district after the plaintiff student sued
the district for injuries he sustained when another student
punched him at school. Relevant here, the court rejected the
plaintiff’s argument that the school district should be held liable
for readmitting the aggressor after he was expelled from middle
school. (Thompson, supra, 107 Cal.App.4th at p. 1361.) Relying
on Skinner, the court in Thompson explained, “[t]he decision to
readmit a student to school is a matter for which there is
statutory immunity. . . . [¶] A school district’s exercise of
authority to expel and/or readmit a pupil involves the type of
decision that entails ‘ “the resolution of policy considerations,
entrusted by statute to a coordinate branch of government, that
compels immunity from judicial reexamination.” ’ ” (Thompson,
at p. 1361.)
Skinner and Thompson do not compel a finding that the
District is immune from liability under Government Code
section 820.2. E.I. did not allege that the District or Middle
School employees were negligent for failing to expel Skylar.
Instead, as we just explained, E.I. alleged that the employees
negligently failed to protect her from other students’ bullying.
The District cites no authority that such conduct qualifies as
“quasi-legislative policy-making” entitled to immunity under
Government Code section 820.2. (See Barner, supra, 24 Cal.4th
at p. 685; Caldwell, supra, 10 Cal.4th at p. 981.)
3. Substantial evidence of causation
The District argues insufficient evidence supports the jury’s
finding that E.I.’s injuries were caused by the Middle School
20
employees’ negligent failure to protect E.I. from other students’
bullying. As we explain, the District has waived this argument
by failing to discuss all relevant evidence that was presented at
trial.
The elements of negligence are: (1) the defendant’s duty to
conform to a certain standard of care for the protection of others
against unreasonable risks; (2) the defendant’s breach of that
duty; (3) a reasonably close connection between the defendant’s
conduct and the resulting injuries, otherwise known as proximate
causation; and (4) actual loss suffered by the plaintiff. (Vasquez
v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279.)
Whether a defendant is negligent, and whether that
negligence was a proximate cause of the plaintiff’s injuries,
generally are questions of fact. (J.H., supra, 183 Cal.App.4th at
p. 148.) We therefore review a jury’s finding of causation for
substantial evidence. (Garbell v. Conejo Hardwoods, Inc. (2011)
193 Cal.App.4th 1563, 1569 (Garbell).)
“Where findings of fact are challenged on appeal, we are
bound by the ‘elementary, but often overlooked principle of law,
that . . . the power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted,’ to support the findings below.
[Citation.] We must therefore view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor.”
(Garbell, supra, 193 Cal.App.4th at p. 1569.)
“A party who challenges the sufficiency of the evidence to
support a finding must set forth, discuss, and analyze all the
evidence on that point, both favorable and unfavorable.” (Doe v.
Roman Catholic Archbishop of Cashel & Emly (2009)
21
177 Cal.App.4th 209, 218 (Roman Catholic Archbishop).)
A reviewing court will not independently review the record to
make up for the appellant’s failure to carry its burden on appeal.
(Defendant the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261,
1266.) Failure to meet this burden waives any claim that the
trial court’s or jury’s finding is not supported by substantial
evidence. (Roman Catholic Archbishop, at p. 218.)
In its opening brief, the District addresses only evidence
that it claims does not support the jury’s causation finding, such
as: (1) testimony from one of E.I.’s experts addressing the
adequacy of the Middle School employees’ responses to E.I.’s
complaints of bullying; and (2) a handful of statements E.I. made
about the status of her relationships with Skylar and K.S.
throughout the course of the events leading to this case. The
District fails, however, to address a plethora of evidence that
supports the jury’s finding that the Middle School employees’
failure to properly respond to E.I.’s complaints of bullying were a
proximate cause of E.I.’s injuries.
For instance, E.I. testified that over the course of several
months, she repeatedly notified the Middle School’s principal and
counselor about the harassing messages Skylar sent her through
social media and about how Skylar frequently harassed her on
campus. E.I. also testified that she engaged in self-harming
behavior, at least in part, because she believed the Middle School
was not taking seriously her complaints about Skylar’s behavior.
E.I.’s parents testified that they repeatedly complained to
the Middle School’s principal about Skylar’s behavior and asked
the school to take measures to address it. In addition, E.I.’s
psychologist testified about the mental and emotional distress
E.I. suffered because of Skylar’s behavior, including being
22
diagnosed with PTSD and depression. E.I. also introduced
evidence of the District’s and the Middle School’s failure to follow
their own safety plans, which established guidelines for District
and Middle School employees to follow when receiving complaints
of bullying, including how to prevent bullying, how to punish
students who engage in bullying, and how to provide support to
students who are the victims of bullying.
By failing to address any of this evidence in challenging the
jury’s causation finding, the District has waived any argument
that insufficient evidence supports that finding. (See Roman
Catholic Archbishop, supra, 177 Cal.App.4th at p. 218.)
4. Negligent supervision and training
Next, the District argues the court erred by asking the jury
to consider a negligent training and supervision theory on the
special verdict form because E.I. dismissed her second cause of
action for negligent hiring, retention, supervision, and training.
As we explain, even if we were to assume it was error for the
court to allow the jury to consider a negligent training and
supervision theory, the District has not shown that error was
prejudicial.
E.I. alleged in her first amended complaint a second cause
of action for negligent hiring, retention, supervision, and
training, but she dismissed that cause of action at trial. The
special verdict form included four questions about negligence and
causation: (1) was the District negligent?; (2) if so, was that
negligence a substantial factor in causing E.I.’s injuries?; (3) was
the District negligent in training or supervising its employees?;
and (4) if so, was that negligent training and supervision a
substantial factor in causing E.I.’s injuries? The jury answered
“yes” to all four questions.
23
A defective special verdict form is subject to harmless error
analysis. (Taylor v. Nabors Drilling USA, LP (2014)
222 Cal.App.4th 1228, 1244.) The error is harmless if “under the
pleadings and evidence[,] the same result would have been
reached even if the error had not been committed.” (Id. at
p. 1245.) As the party challenging the special verdict form, the
District bears the burden of showing any error in that form was
prejudicial. (Fundamental Investment etc. Realty Fund v.
Gradow (1994) 28 Cal.App.4th 966, 971–972.)
The District argues it was prejudiced by the special verdict
form’s questions about a negligent training and supervision
theory because “there is no way to parse out general negligence
damages compared to damages for negligent supervision.”
We disagree.
Throughout trial, E.I. maintained that she was injured by
the Middle School employees’ failure to protect her from other
students’ bullying. E.I. presented evidence that the employees
failed to protect her in at least two ways: (1) they did not respond
appropriately to her complaints of bullying, including failing to
take necessary steps to prevent the bullying; and (2) they were
not properly trained or supervised on how to respond to
complaints of bullying. But E.I. did not argue, or present
evidence suggesting, that she suffered a distinct injury related to
each theory. Rather, E.I. relied on the two theories of negligence
as alternative ways of establishing the cause of all her injuries
that gave rise to this lawsuit.
As we just explained, the jury found the District negligent
under both a general negligence theory and a negligent training
and supervision theory. The District makes no effort to explain
why, despite the finding of liability on E.I.’s general negligence
24
theory, the jury likely would have awarded E.I. fewer damages if
the special verdict form did not include questions about the
negligent training and supervision theory. Nor does the District
otherwise explain how it likely would have obtained a more
favorable verdict but for any error on the special verdict form.
The District has therefore failed to show it was prejudiced by the
inclusion of questions about negligent training and supervision
on the special verdict form.
5. Admission of expert testimony
The District next contends the court committed reversible
error when it allowed one of E.I.’s experts to testify about certain
provisions of the Education Code. We disagree.
An assistant superintendent for a local school district
testified as one of E.I.’s experts. The assistant superintendent’s
testimony addressed, among other things, what steps school
personnel should take to investigate complaints of bullying,
including how to document complaints of bullying, how to protect
students who are victims of bullying, and how to discipline
students who engage in acts of bullying. The assistant
superintendent also addressed various provisions of the
Education Code, including Education Code sections 48900 and
48900.4, and the District’s and the Middle School’s safety plans
addressing bullying. Relying on portions of those code provisions
and safety plans, the assistant superintendent opined that the
Middle School employees, including the principal and the
counselor, did not adequately document and investigate E.I.’s
complaints of bullying and, ultimately, failed to protect E.I. from
other students’ bullying.
The District takes issue with the following portions of the
assistant superintendent’s testimony: (1) that Education Code
25
section 48900 addresses “bullying,” and school district
administrators “are responsible for knowing and implementing
and using” that provision “to make sure that students on their
campuses are safe”; (2) that Education Code section 48900.4
addresses when a student may be suspended for bullying another
student and that none of the students who bullied E.I. were
suspended until the end of the 2017–2018 school year; and
(3) that certain options for responding to complaints of bullying
set forth in unspecified provisions of the Education Code are
mandatory.
As a threshold matter, the District waived any claim of
error arising out of the third challenged statement. The District
elicited that testimony during the assistant superintendent’s
cross-examination, and the District did not ask the court to strike
the testimony or admonish the jury not to consider it. Where, as
here, “an appellant offers inadmissible matters into evidence, [it]
cannot complain of its admission on appeal.” (Horsemen's
Benevolent & Protective Assn. v. Valley Racing Assn. (1992)
4 Cal.App.4th 1538, 1555.)
In any event, even if we were to assume the challenged
portions of the assistant superintendent’s testimony should have
been excluded, the District has not shown how it was prejudiced
by their admission. “A fundamental rule of appellate review is
that the appellant must affirmatively show prejudicial error.”
(Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th
370, 403.) To meet this burden, the “appellant must provide an
argument and legal authority to support [its] contentions. This
burden requires more than a mere assertion that the judgment is
wrong. ‘Issues do not have a life of their own: If they are not
raised or supported by argument or citation to authority, [they
26
are] . . . waived.’ ” (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852 (Benach).) Accordingly, an appellant
waives contentions that are conclusory and not supported by
cognizable legal argument or analysis. (Id. at p. 852; Ewald v.
Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948–949.)
In the section of its opening brief challenging the admission
of the assistant superintendent’s testimony, the District makes
no effort to explain how it was prejudiced. Instead, the District
simply asserts, in conclusory fashion, that permitting the expert
“to testify as to statutory construction and meaning was
erroneous and reversal of the judgment is required on this
ground.” This argument falls far short of meeting the District’s
burden to affirmatively show prejudicial error. (See Benach,
supra, 149 Cal.App.4th at p. 852.)
In the final section of its opening brief, which addresses
why the various claims of error it raises on appeal are “singularly
and collectively” prejudicial, the District devotes a single
paragraph to explaining why it was prejudiced by the admission
of the assistant superintendent’s challenged testimony: “The
trial court improperly allowed [the assistant superintendent] to
interpret the Ed[ucation] Code statutes and to tell the jury what
they mean. The jury was allowed to pick which expert they
believed. The trial court should have construed the statute[,] and
had expert testimony by [the assistant superintendent] been
prohibited, then a defense verdict would have been probable.
Further, [the assistant superintendent’s] testimony was
speculative and unsupported by the evidence.”
This argument also is conclusory and does not meet the
District’s burden to affirmatively show it was prejudiced by the
admission of the assistant superintendent’s testimony. For
27
instance, the District fails to explain why allowing the jury to
“pick which expert they believed” was prejudicial, let alone
erroneous. In fact, the District does not explain who the other
expert witnesses are or what testimony they offered at trial.
The District also does not explain why a defense verdict would
have been more likely had the court excluded the assistant
superintendent’s testimony. That is, the District does not
address any other evidence presented at trial supporting the
jury’s finding that the District was negligent and explain why,
despite that evidence, it is reasonably likely the jury would have
reached a more favorable verdict.
6. Attorney misconduct
The District next contends that E.I.’s counsel committed
misconduct during her closing argument. Specifically, the
District argues that counsel violated a stipulation not to
reference either party’s wealth or financial status. The District
forfeited this argument by not objecting to counsel’s argument or
asking the trial court to issue a curative admonition.
Before trial, E.I. and the District entered the following
stipulation: “[N]either [E.I.] nor [the District] will mention the
wealth or poverty of either the defendant or plaintiff. Their
respective financial positions will be excluded from the trial of
this matter. No witness, expert or attorney will comment upon
the financial position of either party.”
At trial, the District’s superintendent testified that Skylar’s
parents were “Superintendent’s Round Table” members of the
Education Foundation, a foundation comprised of businesses,
parents, and members of the community who support the
District’s schools. The Education Foundation raises funds for the
District’s schools, and Skylar’s family donated to the foundation.
28
Skylar’s mother was on the foundation’s board of directors, and
one of Skylar’s family’s close friends was the chief executive
officer of the Education Foundation. The superintendent
confirmed that one needed to donate a “certain level of amount to
the District” to become a member of the “Superintendent Round
Table.”
During her closing argument, E.I.’s counsel stated, “So here
we have the Ed[ucation] Foundation, a check that [the
superintendent] over here got from the Ed[ucation] Foundation
for 1.3 million. In reviewing the evidence yesterday, that stuck
out. The school district decided to take money from the
Ed[ucation] Foundation and the donors, substantial donors, at
the expense of my client’s mental health. They should pay for
that harm. [¶] . . . but I thought that was a good benchmark for
you.” The District did not object to counsel’s statement that the
District’s superintendent received a $1.3 million check from the
Education Foundation or ask the court to admonish the jury not
to consider that statement.
Generally, a party cannot complain on appeal of attorney
misconduct unless the party timely objected to the alleged
misconduct and asked the court to admonish the jury.
(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 286
(Hernandez).) The failure to timely object and request an
admonition waives any claim of error unless the complaining
party can show that the misconduct was so prejudicial that it
could not be cured by an admonition, an objection or request for
admonition would have been futile, or the court promptly
overruled an objection and the objecting party had no opportunity
to request an admonition. (Ibid.) “ ‘Attorney misconduct is
incurable only in extreme cases.’ ” (Ibid.)
29
The District claims it did not object to counsel’s argument
for strategic reasons, because an “objection serves to highlight
the 1.3 million dollar reference.” The District also asserts that an
admonition “would not serve to unring the bell as the jury
already heard it” and that counsel’s argument was “extremely
prejudicial in and of itself.”
The District fails to explain, however, why an admonition
would not have cured any potential harm caused by counsel’s
challenged argument or why that argument was so prejudicial
that the District’s failure to object to the argument should be
excused. Because the District has not sufficiently developed
these arguments, we disregard them. (Hernandez, supra,
37 Cal.App.5th at p. 277 [“We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the
conclusions [it] wants us to adopt’ ”].)
In short, the District has forfeited any challenge to
counsel’s argument addressing money received by the District
because it did not object to that argument or otherwise ask the
court to admonish the jury not to consider it. (Hernandez, supra,
37 Cal.App.5th at p. 286.)
7. New issues raised on reply
In its reply brief, the District raises several new arguments
that it did not raise in its opening brief. We briefly address why
we reject these arguments.
First, the District argues E.I. was prohibited from relying
on the District’s and the Middle School’s anti-bullying policies to
show the Middle School employees negligently failed to protect
her from other students’ bullying. To support this argument,
the District quotes the following portion of Evidence Code
30
section 669.1: “A rule, policy, manual, or guideline of state or
local government setting forth standards of conduct or guidelines
for its employees in the conduct of their public employment shall
not be considered a statute, ordinance, or regulation of that
public entity within the meaning of Section 669, unless the rule,
manual, policy, or guideline has been formally adopted as a
statute, as an ordinance of a local governmental entity in this
state empowered to adopt ordinances, or as a regulation by an
agency of the state pursuant to the Administrative Procedure Act
. . . .” Relying on this language, the District argues that E.I.
improperly relied on the District’s and the Middle School’s anti-
bullying policies to establish the “standards of conduct of school
district employees.”
The District has waived this argument by failing to raise it
in their opening brief. (City of Palo Alto v. Public Employment
Relations Bd. (2016) 5 Cal.App.5th 1271, 1318 (City of Palo Alto)
[reviewing courts generally will not consider arguments raised for
the first time on reply when those arguments could have been
raised in the opening brief].) In any event, the argument lacks
merit.
The District ignores the final sentence of Evidence Code
section 669.1, which states, “[t]his section affects only the
presumption set forth in Section 669, and is not otherwise
intended to affect the admissibility or inadmissibility of the rule,
policy, manual, or guideline under other provisions of law.”
(Evid. Code, § 669.1.) As our Supreme Court has explained, a
public agency’s employee policies or manuals cannot, on their
own, create the applicable standard of care, but they may be
considered by the trier of fact in determining whether a public
31
employee was negligent in a particular case. (Lugtu v. California
Highway Patrol (2001) 26 Cal.4th 703, 720–721.)
The District fails to explain why E.I. could not rely on the
District’s and the Middle School’s anti-bullying policies in
determining whether the Middle School employees’ conduct fell
below the standard of care that school personnel generally owe
students to protect them from harm. The District has therefore
not shown any error, let alone reversible error, arising out of
E.I.’s reliance on the District’s and the Middle School’s anti-
bullying policies to support her negligence claim.
Second, the District asserts that E.I. stopped receiving
harassing texts and social media messages from Skylar once she
blocked Skylar on her text messaging and social media accounts,
and that E.I. only began receiving such messages again once she
unblocked Skylar from those accounts. The District does not
explain why these facts are relevant to the issues raised in its
opening brief, nor does it cite any case law, or offer any cogent
argument, explaining why these facts support reversing any
aspect of the judgment. We therefore disregard this portion of
the District’s reply brief. (Dietz v. Meisenheimer & Herron (2009)
177 Cal.App.4th 771, 799 [“ ‘ “Issues do not have a life of their
own: If they are not raised or supported by argument or citation
to authority, [they are] . . . waived” ’ ”].)
Third, the District argues Skylar’s “name calling does not
equate to bullying.” According to the District, E.I. proved, at
most, that she and her classmates engaged in “isolated events of
inappropriate behavior,” including “ ‘simple acts of teasing and
name-calling,’ ” but she did not prove that she was ever bullied by
other students at the Middle School. Because the District did not
raise this argument in its opening brief, and it does not explain
32
why it could not do so, we disregard it. (City of Palo Alto, supra,
5 Cal.App.5th at p. 1318.)
8. Cumulative prejudice
Finally, we reject the District’s assertion that even if the
various instances of error it raises on appeal were not prejudicial
on their own, the cumulative effect of those errors was
prejudicial. As we already explained, the District has not
established error for most of the issues it raises on appeal. For
those issues where we have assumed error, the District has not
met its burden to show any prejudice. Thus, there is no prejudice
to cumulate.
DISPOSITION
The judgment is affirmed. The District shall bear its costs
on appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
33