Doe v. Mount Pleasant Elementary School Dist.

Filed 8/29/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JANE DOE, H050830

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 20CV374714)

v.

MOUNT PLEASANT ELEMENTARY

SCHOOL DISTRICT,

Defendant and Respondent.

Mount Pleasant Elementary School District contracted with the Santa Clara

County Office of Education (SCCOE) for district students to spend four days during the

school term in residence at Walden West Outdoor Science School. Although district

teachers “help[ed] the program run,” SCCOE provided direct overnight supervision of

students, with district teachers on call if needed. Jane Doe sued the district, as well as

SCCOE and an SCCOE employee, in connection with repeated sexual assaults she

alleges the SCCOE employee committed against her when she attended Walden West as

a fifth-grade student.

A school district, like other public entities, is vicariously liable for harms

proximately caused by the negligence of its employees acting in the scope of

employment. (Gov. Code, § 815.2; see also Gov. Code, § 820; LeRoy v. Yarboi (2021)

71 Cal.App.5th 737, 742 (LeRoy).) As a general rule, this liability for student welfare

does not extend beyond the school grounds. (See Ed. Code, § 44808.) 1 But when the

1

Undesignated statutory references are to the Education Code.

district undertakes certain activities off school grounds or specifically assumes

responsibility, it may be liable or responsible for student safety if the student “is or

should be under the immediate and direct supervision” of a district employee. (Ibid.)

And among such school-sponsored undertakings, students participating in “field trips or

excursions” are also “deemed to have waived all claims against the district . . . for injury,

accident, illness, or death occurring during or by reason of the field trip or excursion.”

(§ 35330, subd. (d).)

Doe’s appeal from summary judgment of her negligence claim against the district

turns on whether the district has shown these statutes shield the district from liability.

We accordingly examine whether the district’s evidence establishes as a matter of law

either (1) that the outdoor science school was a “field trip or excursion” subject to

section 35330’s “deemed . . . waive[r]” of liability, or (2) that no district employee should

have had immediate and direct supervision of Doe when the SCCOE employee assaulted

her.

In our independent judgment, the district failed to carry its burden on either

statutory defense. We will reverse.

I. BACKGROUND

A. The Pleadings

In her operative complaint, Doe alleged the following.

SCCOE owns and operates Walden West, a public education science camp

providing outdoor experiences to children including an overnight camp. SCCOE

employed Edgar Covarrubias-Padilla, an adult male under SCCOE’s “complete control

and/or active supervision,” to serve as a night monitor, mentor, and counselor to minor

students.

The district operates elementary schools in Santa Clara County. In that capacity,

the district sent Doe and other Ida Jew Academy fifth graders to Walden West.

2

Doe alleges that before she and her classmates went to Walden West, both the

district and SCCOE “knew or should have known that [Covarrubias-Padilla] had engaged

in unlawful sexually[ ]related conduct with minors” and “was under investigation for

possession and distribution of child pornography,” yet the district and SCCOE

“suppressed, concealed or failed to disclose this information” despite both standing in a

“trusting, confidential, and in loco parentis relationship” with Doe. And “there had been

reports of sexual abuse and/or misconduct with children” involving Covarrubias-Padilla

before or during the time he worked for SCCOE at Walden West that SCCOE or the

district could have uncovered with a proper investigation.

At Walden West, Covarrubias-Padilla used authority SCCOE granted him as the

night monitor—supervising minor children in a separate and secluded environment at

night—to sexually abuse Doe over three nights. As a result, Doe experienced severe

post-traumatic stress disorder, severe anxiety, and depression and attempted suicide

multiple times.

Doe pleaded a cause of action for negligence against SCCOE and the district. Doe

alleged that they breached their duty to protect her from harm by allowing her contact

with Covarrubias-Padilla without supervision when they knew or should have known

Covarrubias-Padilla’s history of sexual misconduct. 2

In its answer, the district generally denied Doe’s allegations and asserted

affirmative defenses under sections 35330 and 44808, among others.

2

Doe pleaded other causes of action against SCCOE and Covarrubias-Padilla. As

against SCCOE, Doe alleged claims for negligence in its hiring, retention, and

supervision of Covarrubias-Padilla. As against Covarrubias-Padilla, Doe pleaded a

handful of intentional tort claims.

3

B. Summary Judgment and Appeal

In moving for summary judgment, the district relied solely on its affirmative

defenses under section 35330 and section 44808 and did not assert any defect in Doe’s

ability to prove the elements of her negligence claim.

As to section 35330, the district argued that Doe was “deemed to have waived”

her negligence claim because it was a claim “for injury . . . occurring during or by reason

of [a qualifying] field trip or excursion.” (§ 35330, subd. (d).) The district submitted

evidence that Doe’s attendance at the overnight camp was voluntary and that

Covarrubias-Padilla was not employed by the district.

As to section 44808, the district argued that it could not be liable for Doe’s injury

when she was “not on school property” unless it had “undertaken a school-sponsored

activity off . . . premises” and Doe’s injury occurred when Doe was or should have been

“under the immediate and direct supervision” of a district employee. The district

submitted evidence that during the sleeping hours Doe was supervised by others; district

teachers were only on call to provide support as needed.

Relying on section 35330 without reaching section 44808, the trial court granted

the district’s motion. Doe timely appealed. 3

II. DISCUSSION

The district having prevailed on summary judgment, “ ‘ “we review the record de

novo to determine whether [it has] . . . demonstrated that under no hypothesis is there a

material issue of fact that requires the process of trial.” ’ ” (Saelzler v. Advanced

Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) Because the district in its motion

chose not to dispute the facts underlying Doe’s claim that the district was negligent, we

3

Doe filed her notice of appeal before the trial court entered judgment for the

district. We construe Doe’s premature appeal as having been filed after the entry of

judgment. (See Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284,

288.)

4

evaluate whether it has established any affirmative defense as a matter of law. (See ibid.)

A defendant seeking summary judgment based upon an affirmative defense “ ‘ “ ‘has the

initial burden to show that undisputed facts support each element of the affirmative

defense.’ ” ’ ” (Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, N.A. (2021)

65 Cal.App.5th 292, 302, quoting Consumer Cause, Inc. v. SmileCare (2001)

91 Cal.App.4th 454, 467–468 (Consumer Cause).) Summary judgment granted to a

defendant who fails to produce substantial evidence supporting every element of the

affirmative defense “ ‘would have to be reversed, even if the plaintiff failed to introduce a

scintilla of evidence challenging that element.’ ” (Consumer Cause, at p. 468, italics

omitted.)

The district maintains that attendance at Walden West—away from district

premises and operated by SCCOE—immunized the district from liability for negligence

under section 35330 or section 44808. The district relies on (1) Doe’s voluntary

attendance at Walden West rather than her usual school, and (2) SCCOE’s provision of

volunteers and SCCOE’s own employee for nighttime supervision. But the district has

shown neither that its students’ attendance at Walden West amounted to a “field trip or

excursion” subject to section 35330’s deemed waiver nor that its delegation to SCCOE of

“immediate and direct” nighttime supervision meant section 44808 relieved the district of

liability for any negligent failure by its employees to reassert such supervision of district

students before Doe was harmed.

A. School Districts and Governmental Immunity

The Constitution mandates that the Legislature “shall provide for a system of

common schools” for free public education. (Cal. Const., art. IX, § 5.) “ ‘Local districts

are the State’s agents for local operation of the common school system.’ ” (San Jose

Unified School Dist. v. Santa Clara County Office of Education (2017) 7 Cal.App.5th

967, 971 (San Jose Unified); Cal. Const., art. IX, § 5.)

5

A school district, like a county office of education, is a public entity. 4 (See San

Jose Unified, supra, 7 Cal.App.5th at pp. 970–971; Today’s Fresh Start, Inc. v. Los

Angeles County Office of Education (2013) 57 Cal.4th 197, 207, fn. 4.) As a public

entity, the district is not liable for any injury from its own or its employees’ acts or

omissions, “[e]xcept as otherwise provided by statute.” (Gov. Code, § 815, subd. (a).)

Among these statutory exceptions, “[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 . . . have given rise to a cause of action against

that employee . . . .” (Gov. Code, § 815.2, subd. (a); see also Gov. Code, § 820; LeRoy,

supra, 71 Cal.App.5th at p. 742.) But vicarious liability under Government Code

section 815.2 is “subject to any immunity of the public entity provided by statute.” (Gov.

Code, § 815, subd. (b).)

School districts bear a special responsibility for their students on school premises.

(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869–870.) But

their potential liability, already limited by Government Code section 815, normally

excludes harm to students off school premises. (§ 44808.) Even when a district sponsors

the off-campus activities, it loses the Education Code’s shield against liability only in

certain circumstances.

Since 1972, neither a school district nor a county board of education or

superintendent, and no “officer or employee of such district or board[,] shall be

responsible . . . for the conduct or safety of any pupil of the public schools at any time

4

Besides the appointment or election of state education officials, the Constitution

separately mandates the appointment or election of county boards of education and

county superintendents of schools (Cal. Const., art. IX, §§ 7, 3) and specifies that

qualifications for county superintendents are set by the Legislature (id., § 3.1). Each

county superintendent in turn heads their county’s office of education, which in turn

supports the school districts of the county. (San Jose Unified, supra, 7 Cal.App.5th at

p. 971.)

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when such pupil is not on school property, unless such district, board, or person has

undertaken” certain acts or duties, including “a school-sponsored activity off the premises

of such school.” (§ 44808; see Stats. 1972, ch. 979, § 1, p. 1782 [adding former

§ 13557.5].) But even “[i]n . . . such a specific undertaking, the district, board, or person

shall be liable or responsible for the conduct or safety of any pupil only while such pupil

is or should be under the immediate and direct supervision of an employee of such

district or board.” (§ 44808.) Outdoor science education is a school-sponsored

off-campus activity that the Legislature authorized districts to provide more than two

decades before the inception of what is now section 44808 immunity. (Stats. 1951,

ch. 1008, § 1, pp. 2639–2640 [adding former § 10056, precursor to § 8760].) 5

Even before the Legislature enacted what is now section 44808’s limited

immunity for school-sponsored off-campus activities, it recognized certain “field trips or

excursions” as a specific type of off-premises activity warranting limits on district

liability—irrespective of the supervision district employees did or should have provided.

(§ 35330, subd. (a)(1); see Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 185;

Barnhart v. Cabrillo Community College (1999) 76 Cal.App.4th 818, 827–829

(Barnhart) [recognizing a field trip or excursion as “simply a narrowly defined type of

[§ 44808’s] more broadly defined school-sponsored activity”].) “All persons making the

field trip or excursion shall be deemed to have waived all claims against the district, a

charter school, or the State of California for injury, accident, illness, or death occurring

5

Sections 8760 and 8765 authorize school districts and county offices of

education to conduct programs or classes in outdoor science education. The county

superintendent may, subject to the approval of the county board of education and state

regulation, “provide for the coordination of courses of study” such as outdoor science and

conservation education “among the school districts” of the county. (§§ 1703, 8767.)

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during or by reason of the field trip or excursion.” 6 (§ 35330, subd. (d); see also Sanchez

v. San Diego County Office of Education (2010) 182 Cal.App.4th 1580, 1584 [holding

that a county office of education is a “ ‘district’ ” as that term is used in the statute].)

With minor modification since 1971, the relevant statute authorizes the governing board

of a school district or the county superintendent of schools to “[c]onduct field trips or

excursions in connection with courses of instruction or school-related social, educational,

cultural, athletic, or school band activities to and from places in the state, any other state,

the District of Columbia, or a foreign country for pupils enrolled in elementary or

secondary schools” subject to the participants’ deemed waiver of specified claims.

(§ 35330, subd. (a)(1); see also Stats. 1971, ch. 1808, §§ 1, 2, pp. 3910–3911 [repealing

and replacing former § 1081.5].)

B. “Field Trips” and “Excursions” Under Section 35330

The district defends the trial court’s application of section 35330, maintaining that

participation in the Walden West science camp was a field trip or excursion as a matter of

law. But not every school-sponsored outing is a field trip or excursion. (Castro v. Los

Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 236 (Castro) [observing that

otherwise “there would have been no purpose in the Legislature’s adding [what is now

§ 44808]” the year after providing for the deemed waiver of liability on field trips].) The

district did not carry its initial burden of proving section 35330 applies, because it

mistakenly relies on Doe’s voluntary attendance at Walden West, without addressing the

6

Unlike the closed environment of an outdoor science camp, where students are

educated by personnel engaged by the district or by the county superintendent of schools

(see §§ 8760, subd. (a)(1), 8765), a field trip or excursion may involve exposing students

to the public at large in environments less susceptible to control by the district or its

privies. Thus, the Legislature could reasonably have concluded that field trips or

excursion necessitated a broader statutory waiver of liability than an outdoor science

camp operated by a district, county office of education, or a third party engaged to host

the education program.

8

extent to which Walden West was designed to meet curricular requirements as a program

in outdoor science education.

Because the Legislature did not define “field trip” or “excursion,” courts have

relied on the ordinary and usual meaning of the terms in their statutory context. (See

People v. Colbert (2019) 6 Cal.5th 596, 603.) “ ‘Field trip’ is defined as a visit made by

students and usually a teacher for purposes of first hand observation (as to a factory,

farm, clinic, museum). ‘Excursion’ means a journey chiefly for recreation, a usual brief

pleasure trip, departure from a direct or proper course, or deviation from a definite path.”

(Castro, supra, 54 Cal.App.3d at p. 236, fn. 1; see also Ramirez v. Long Beach Unified

School Dist. (2002) 105 Cal.App.4th 182, 189, fn. 4; Wolfe v. Dublin Unified School Dist.

(1997) 56 Cal.App.4th 126, 134 [applying same definition of “ ‘field trip’ ” in holding

visit to a farm was a field trip].)

Unlike students who travel for the observational or recreational purposes served

by field trips or excursions so defined, however, “[s]tudents who are off of the school’s

property for required school purposes are entitled to the same safeguards as those who are

on school property, within supervisorial limits.” (Castro, supra, 54 Cal.App.3d at

p. 236.) In holding that the plaintiff had adequately alleged that a high school’s ROTC

summer camp was not a field trip, the Castro court reasoned that the plaintiffs in Castro

were entitled “to prove, if they can, that the ROTC ‘summer camp, bivouac and summer

training’ ” at which their son died “was just as much a part of the school curriculum as a

school-sponsored band or orchestra performance at an off-premises event.” (Id. at

p. 237.) So the hallmark of a field trip or excursion under section 35330 is that its

observational or recreational purpose represents a departure from a school’s curriculum

and required school purposes. (See Barnhart, supra, 76 Cal.App.4th at p. 827 [“under

9

Castro, the test is not really whether the student’s participation was voluntary . . . , but

whether the off-premises activity was part of the school curriculum”].) 7

We acknowledge that “field trips or excursions” could be susceptible to a broader

definition that encompasses any school-sponsored group travel to a specific destination—

the only limitation being that the travel be “in connection with courses of instruction or

school-related social, educational, cultural, athletic, or school band activities.” (§ 35330,

subd. (a)(1).) But we construe the Legislature’s use of “field trips or excursions” in the

broader statutory context: As we have explained, the Legislature had in 1951 authorized

districts to “[c]onduct programs and classes in outdoor science education and

conservation education” even outside district boundaries or to contract with other public

entities for the joint operation of such programs. (Stats. 1951, ch. 1008, § 1, p. 2639.) In

1963, it authorized county superintendents to contract with school districts to provide

programs or classes in outdoor science education. (Stats. 1963, ch. 251, § 9, pp. 1011–

1013.) And by 1970, the Legislature prescribed the development of environmental

education programs. (See §§ 8700, 8702, 8707; Stats. 1970, ch. 1616, § 2, pp. 3393–

3397 [adding former § 565 et seq.].) Although the Legislature could have deemed

participants in outdoor science education to have waived all claims just as it would for

field trips and excursions, it did not and has not. The separate treatment of outdoor

science education and field trips or excursions suggests that they are distinct forms of

school-sponsored off-premises activities, and we view as significant the absence of a

deemed waiver in the context of outdoor science education. We also note that in nearly a

half century since Castro announced its rule, the Legislature has taken no action to

7

The Castro standard finds support in the legislative history of section 35330 and

its original purpose of permitting educational field trips to Mexico outside the regular

academic calendar. (Frank A. Mesplé, bill memorandum to Governor Brown re Assem.

Bill No. 655 (1965 Reg. Sess. Apr. 26, 1965); Stats. 1965, ch. 222, § 1, p. 1193;

Chairman Charles B. Garrigus, letter to Governor Edmund G. Brown re Assem. Bill

No. 655 (1965 Reg. Sess. Apr. 27, 1965).)

10

override it. Though not dispositive of the legislative intent in 1965, this apparent

legislative acquiescence affords us no reason to question Castro’s “required school

purposes” standard here.

The district’s evidence did not suggest any purely observational or recreational

purpose. That students who opted out of attending Walden West were to remain at Ida

Jew Academy for science education suggests the required school purpose that, as in

Castro, would exempt an off-premises activity from section 35330’s deemed waiver of

claims. This alone would have prevented the district from meeting its initial burden.

(See Consumer Cause, supra, 91 Cal.App.4th at p. 468.)

We also consider Doe’s undisputed evidence. (See Code Civ. Proc., § 437c,

subd. (c) [“summary judgment shall be granted if all the papers submitted show that there

is no triable issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law” (italics added)].) Even if the moving party’s evidence is by

itself insufficient to assess all dimensions of the initial burden it undertook, the

opponent’s evidence may fill gaps in the district’s showing. (Villa v. McFerren (1995)

35 Cal.App.4th 733, 749–751; see also Hutton v. Fidelity National Title Co. (2013)

213 Cal.App.4th 486, 497, fn. 10 [following Villa]; White v. Smule, Inc. (2022)

75 Cal.App.5th 346, 363 [same].) But Doe’s evidence does not assist the district in its

initial burden.

Doe as the nonmoving party is entitled to reasonable inferences in her favor.

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Saelzler, supra, 25 Cal.4th

at p. 768.) Ample evidence invites a reasonable inference that Walden West was a

program in outdoor science education that was an expected feature of the district’s

science curriculum, and that it was operated by the SCCOE in conjunction with district

teachers. Walden West provided “programs and classes in outdoor science education and

conservation education,” a statutory educational priority. (See § 8760, subd. (a)(1), (3).)

Walden West was billed as a school, and students attended the outdoor school for four

11

days in the academic year in lieu of science education in their usual district classrooms.

Under the district’s contract with SCCOE, SCCOE provides most of the personnel

necessary to run the camp—including cabin leaders and an overnight supervisor—while

the district provides one credentialed teacher for every class of 36 students or less to

“help[] the program run.” Viewed in the light most favorable to Doe, the record suggests

that SCCOE and the district contracted to jointly operate the outdoor school’s science

education program, as contemplated by statute. (§§ 8760, 8765 [specifying that “all of

the powers and duties authorized for . . . school districts by Section 8760 are powers and

duties of the county superintendent . . . provid[ing] programs and classes in outdoor

science education . . . .”].) A reasonable trier of fact could accordingly conclude that

attendance at Walden West was neither a field trip nor an excursion, because it was

neither a mere observational visit nor a recreational departure from the usual educational

course. 8

That Doe could have declined to attend Walden West and instead participated in

classroom science education at her school does not alter our analysis. (Barnhart, supra,

76 Cal.App.4th at p. 827.) In arguing otherwise, the district selectively relies on Castro.

True, Castro reasoned that “[s]tudents who participate in nonrequired trips or excursions,

though possibly in furtherance of their education but not as required attendance, are

effectively on their own; the voluntary nature of the event absolves the district of

liability.” (Castro, supra, 54 Cal.App.3d at p. 236.) But in distinguishing voluntary from

8

One court has treated a five-day outdoor science program—“ ‘sixth grade

camp’ ”—as a field trip, without dispute or reference to section 8760. (Sanchez, supra,

182 Cal.App.4th at p. 1582.) But there the sole issue on appeal was whether the county

office of education, which operated the camp, met the definition of a “district” under

section 35330. (Sanchez, at p. 1582.) Here, on a summary judgment record where the

district relied on the voluntariness of the program, we need not decide whether a

curricular school camp program can also be treated (in whole or in part) as a field trip or

excursion if it includes both curricular and extracurricular elements.

12

mandatory activities, the focus in Castro was on whether the activity served a “required

school purpose[],” not whether the district could compel participation in an off-premises

activity as the sole means of satisfying that required purpose. (Ibid.) There is no dispute

that science education is a required school purpose, whether the means of satisfying that

required purpose is outdoor science education at a camp like Walden West or classroom

learning on school premises with those students who opt out of the school camp program.

The voluntary choice to attend Walden West for a program in outdoor science education

rather than satisfying the required school purpose by science education at a student’s

customary school does not make attending Walden West a field trip or excursion subject

to section 35330’s deemed waiver of claims.

C. Section 44808 9

The district alternatively contends that section 44808 entitled it to summary

judgment because its employees were not, and should not have been, providing

immediate and direct supervision when Doe was injured. It is beyond dispute that the

district and its employees on site at Walden West relied on SCCOE to provide Doe’s

immediate and direct supervision overnight while district teachers were sleeping but on

call. What remains in dispute is whether district employees should have assumed

immediate and direct supervision of Doe overnight, rather than allowing any SCCOE

cabin leader to send Doe to Covarrubias-Padilla. As we will explain, the district’s

contractual division of labor with SCCOE did not negate the existence of any duty to

provide Doe immediate and direct supervision. (See Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850.)

9

Although the trial court did not reach this alternate ground for summary

judgment, we must affirm if summary judgment was proper on any ground advanced in

the trial court. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019,

1031.) The parties addressed section 44808 both in the trial court and on appeal, in their

original briefs and supplemental briefing we requested. (See Code Civ. Proc., § 437c,

subd. (m)(2).)

13

Section 44808 limits a school district’s liability for the negligence of its employees

under Government Code section 815.2 to “the schoolground” barring one of

section 44808’s exceptions, which include but are not limited to school-sponsored

activities off of school premises. (Castro, supra, 54 Cal.App.3d at p. 235 [discussing

former § 13557.5, which was since renumbered as § 44808]; see also Cerna v. City of

Oakland (2008) 161 Cal.App.4th 1340, 1356 (Cerna) [“ ‘[S]ection 44808 limits the

liability of schools for after-hours, off-campus activity, absent a specific

undertaking’ ”].) 10 “ ‘In essence, [section 44808] grants a district immunity unless a

student was (or should have been) directly supervised during a specific undertaking.’ ”

(Mosley v. San Bernardino City Unified School Dist. (2005) 134 Cal.App.4th 1260, 1265;

see also LeRoy, supra, 71 Cal.App.5th at p. 744 [district not liable where student

committed suicide off campus during a summer break, when “he was not and should not

have been supervised” by any district employee].)

The limitation of liability to circumstances where the “pupil is or should be under

the immediate and direct supervision of an employee of such district or board” (§ 44808)

10

Another express exception to section 44808 immunity is where the district “has

failed to exercise reasonable care under the circumstances.” In Hoyem v. Manhattan

Beach City Sch. Dist. (1978) 22 Cal.3d 508, the Supreme Court held that a school district

could be deemed liable for negligent supervision on school premises, if that negligence

allowed a student to leave campus and suffer an off-campus injury. (Hoyem, at pp. 512,

523.) In so holding, the high court stated both that section 44808 allows liability

whenever a district “ ‘has failed to exercise reasonable care’ ” and that the statute was

principally intended to shield districts from liability before or after school hours while

children are traveling to or from school. (Hoyem, at p. 517.) The Cerna court observed

that “[l]itigants and jurists” had since then “grappled” with what it called Hoyem’s

“problematic” language. (Cerna, supra, 161 Cal.App.4th at p. 1356.) Faced with these

“apparently conflicting interpretations of section 44808,” the weight of authority has

settled on the proposition “that school districts are not responsible for the safety of

students outside school property absent a specific undertaking by the school district and

direct supervision by a district employee.” (Cerna, at pp. 1356, 1357.) Our analysis does

not require us to reach this provision of section 44808.

14

“ ‘draws a line between activities requiring additional supervision and control over the

students when they travel, and the multitude of off-campus school-related activities for

which liability cannot be imposed.’ ” (Patterson v. Sacramento Unified School Dist.

(2007) 155 Cal.App.4th 821, 830 (Patterson).)

There is no dispute that Doe’s injury occurred off school property at Walden West,

satisfying section 44808’s threshold requirement for immunity. We agree with Doe that

the district undertook a school-sponsored off-campus activity by having district students

attend the science camp. (See Patterson, supra, 155 Cal.App.4th at p. 830 [“ ‘[T]he test

is . . . whether the off-premises activity [is] part of the school curriculum,’ ” even if

student participation in that off-premises curriculum is not mandatory].) So the district is

immune from liability unless Doe was or should have been under a district employee’s

immediate and direct supervision when she was assaulted. (§ 44808; see also Patterson,

at p. 830.)

The district’s evidence that its employees were not directly supervising Doe when

she was assaulted is undisputed. It was SCCOE that supplied cabin leaders to sleep in

cabins with the students and a nighttime supervisor to assist if problems arose. Doe

alleged that the cabin leader repeatedly sent her to Covarrubias-Padilla, the nighttime

supervisor, because she was talking in her sleep, and Covarrubias-Padilla repeatedly

assaulted her while she was in his care.

But the parties dispute whether the district should have been providing immediate

and direct supervision when Doe was assaulted and, more fundamentally, whether what

“should be” depends solely on the scope of the district’s contractual division of labor

with SCCOE or on what the totality of the circumstances reasonably called for. The

district maintains that—by virtue of its contractual delegation of immediate and direct

supervision to SCCOE—district employees should have had no responsibility for Doe’s

overnight welfare unless summoned by an SCCOE volunteer or employee. Doe maintains

that the district should have been providing immediate and direct supervision to Doe at

15

the time of her injury, because the district failed to adequately scrutinize SCCOE’s

hiring, training and supervision of its employees and because district employees knew or

should have known that Covarrubias-Padilla and SCCOE’s volunteers could not be

entrusted with overnight supervision of students. 11

We construe the words of the statute “ ‘in context, keeping in mind the statutory

purpose, and statutes or statutory sections relating to the same subject [that] must be

harmonized, both internally and with each other, to the extent possible.’ ” (People v.

Valencia (2017) 3 Cal.5th 347, 357.) In doing so, we “ ‘accord[] significance, if possible,

to every word, phrase and sentence in pursuance of the legislative purpose’ ” and avoid

constructions “ ‘making some words surplusage.’ ” (Ibid.) The district’s narrow view is

that the scope of supervision it should have provided is determined by its contract with

SCCOE, without reference to the circumstances known to district employees capable of

providing immediate and direct supervision themselves or causing other district

employees to provide that supervision.

We decline the district’s invitation to read section 44808’s “should be” language

as satisfied only when a district has expressly pledged its own employees to provide

immediate and direct supervision overnight but the employees then failed to do so. (Cf.

Brinsmead v. Elk Grove Unified School Dist. (2023) 95 Cal.App.5th 583, 593 [holding

that parents adequately alleged student should have been under district supervision when

she left school bus stop because the district’s transportation program provided that the

11

In addition to school-sponsored off-premises activities, section 44808 provides

exceptions to its immunity where the entity “has otherwise specifically assumed such

responsibility [for the conduct or safety of any pupil off school property] or liability or

has failed to exercise reasonable care under the circumstances.” Because Walden West

was a school-sponsored off-premises activity, we need not address whether the district

“otherwise” assumed responsibility for Doe’s conduct or safety or if it assumed

responsibility by failing to exercise reasonable care. (Compare Hoyem, supra, 22 Cal.3d

at p. 517 with Cerna, supra, 161 Cal.App.4th at pp. 1356–1357.)

16

bus would pick her up earlier]; Patterson, supra, 155 Cal.App.4th at p. 832 [holding that

instructors should have been supervising off-campus community service project because

they expressly and properly undertook that supervision].) In the district’s interpretation,

its delegation of immediate and direct supervision to SCCOE would shield it from

liability even if the district had known SCCOE’s identified supervisor to be a pedophile.

This maximalist view of immunity reads too narrowly the “should be” limitation on

section 44808’s exceptions. The statute provides immunity if the “pupil . . . should be

under the immediate and direct supervision of” a district employee; it does not limit the

potential reasons that might oblige district employees to provide first-line rather than

on-call supervision, even overnight. And the district supplies no authority for the

proposition that its obligations to SCCOE under their Walden West contract delimit its

duties to students such as Doe. The district’s contract with SCCOE only provides for

indemnification, not immunity.

Even so, we reject Doe’s assertion that the district has a duty to provide immediate

and direct supervision around the clock for the duration of any school-sponsored

off-campus activity. Relying on Castro to argue that students in school-sponsored

activities are entitled to the district’s immediate and direct supervision whether on or off

school property, Doe omits the express limitation in her chosen authority: “Students who

are off of the school’s property for required school purposes are entitled to the same

safeguards as those who are on school property, within supervisorial limits.” (Castro,

supra, 54 Cal.App.3d at p. 236, italics added; see also Srouy v. San Diego Unified School

Dist. (2022) 75 Cal.App.5th 548, 568 [discussing role of § 44808 in “limiting the

circumstances under which a school district is responsible for supervising students”].)

Doe does not explain how district employees could at all times have been individually

responsible for immediate and direct supervision of students while at Walden West, even

overnight when those employees were themselves entitled to sleep, apart from the

students, subject only to on-call responsibilities.

17

Nor do we read section 44808 as categorically precluding the district from

delegating immediate and direct supervision to SCCOE without independently

investigating SCCOE’s recruitment, training, and supervision of SCCOE employees and

volunteers. The district contracted not with just any third party but with the office of an

independent constitutional officer vested by statute with equal powers and duties in this

school camp program (see § 8765)—for SCCOE to provide immediate and direct

overnight supervision of district students. Nothing in section 44808’s “should be”

language makes the district vicariously liable for SCCOE’s screening, hiring, training,

and supervision decisions. Section 44808 exempts the district from liability when the

student is off school grounds unless an exception is satisfied; it does not create new

liability or new duties. 12

Turning to the facts before us, elementary school students were participating in a

four-day overnight science camp. It is reasonable to infer from the nature of this

undertaking that some level of immediate and direct supervision was required during

sleeping hours, particularly for any students who woke during the night or who, like Doe,

were sufficiently sleep-disordered that they disturbed the other students. Doe’s burden at

trial will be to establish that a district employee breached a duty to Doe in the course of

employment and that this employee’s breach was a substantial factor in causing Doe’s

harm. But the district’s burden in seeking summary judgment based on section 44808

12

To be sure, Government Code section 895.2 provides that contracting public

entities will be jointly and severally liable “upon any liability which is imposed by any

law other than this chapter upon any one of the entities . . . for injury caused by a

negligent or wrongful act or omission occurring in the performance of such agreement.”

But like all other provisions of liability in the same part, Government Code section 895.2

is “subject to any immunity of the public entity provided by statute.” (Gov. Code, § 815,

subd. (b).) So even if Government Code section 895.2 might otherwise make the district

jointly and severally liable with SCCOE, Education Code section 44808 would supersede

any such liability unless employees of the district itself were or should have been

providing immediate and direct supervision when SCCOE’s nighttime supervisor abused

her.

18

immunity was to demonstrate not only that Doe was not under the immediate and direct

supervision of district employees when she was harmed but that, given the totality of the

circumstances, no district employees owed Doe their immediate and direct supervision.

Considering the dispute as framed by the pleadings (see Nativi v. Deutsche Bank

National Trust Co. (2014) 223 Cal.App.4th 261, 289–290), the district failed to make a

prima facie showing its employees could have no duty of immediate and direct overnight

supervision over Doe, under the circumstances. This is because the district has not, in its

motion, challenged Doe’s allegation that SCCOE’s chosen nighttime supervisor,

Covarrubias-Padilla, was known to be a danger to children and therefore unsuited to

supervising them. Nor has the district challenged Doe’s allegation that the district knew

or should have known the factual basis for his unsuitability. We acknowledge Doe’s

evidence that the district did not know the identity of SCCOE’s nighttime supervisor

before the abuse. But we construe the limited factual record in Doe’s favor as the

nonmoving party, and the district has not disputed Doe’s claim that its employees knew

at least one of SCCOE’s Walden West employees could not be trusted with immediate

and direct supervision of children. The district did not carry its initial burden, and Doe’s

evidence does not remedy that failure of proof. 13

As we have explained, we accept that a school district may delegate immediate

and direct supervision of its students to another public entity that by statute has the same

“powers and duties” that the district would in operating an outdoor science camp.

(§ 8765.) We do not suggest that the district had an affirmative obligation to

independently investigate SCCOE’s hiring, training, or supervision of SCCOE employees

To the extent an analysis of what the district or its employees knew or should

13

have known about Covarrubias-Padilla or any SCCOE employees connected with

Walden West requires an analysis of predicate facts, the district set forth no facts to

negate Doe’s allegations on that point.

19

and volunteers. 14 But we decline to rule that a district may withhold immediate and

direct supervision during school-sponsored off-premises activity in the face of known

threats to its students’ safety.

We acknowledge the practical reality that any chink in public entity immunity may

invite claims and the burden of defending even unsuccessful claims. (See, e.g., Sandoval

v. Pali Institute, Inc. (Aug. 13, 2025, G063037) ___ Cal.App.5th ___ [pp. 33–34] [2025

WL 2331662] [reversing denial of anti-SLAPP motion to strike complaint alleging

negligent and intentional infliction of emotional distress from science camp counselor’s

use of “they/them” as preferred pronouns].) But as the district’s counsel noted at oral

argument, we read statutory authorities as we find them, without substituting our own

policy judgments for that of the Legislature. As we have explained, outdoor science

education predates by more than 20 years the inception of the immunities on which the

district would rely; nothing prevents the Legislature from again taking action to enlarge

the scope of those limitations on district liability.

III. DISPOSITION

The March 15, 2023 judgment in favor of the district is reversed. Doe is entitled

to her costs on appeal.

14

Assuming without deciding that some additional assurance that another public

entity is one to whom supervision could be entrusted may be required as a precondition

of section 44808 immunity, micromanagement is not. (See generally Castro, supra,

54 Cal.App.3d at p. 236.) And we express no opinion on the sufficiency of Doe’s

allegations or evidence on elements of her cause of action that the district has not

challenged. Because of its maximalist view of statutory immunity, the district made no

attempt to negate breach or causation.

20

_____________________________________

LIE, J.

I CONCUR:

_____________________________________

GREENWOOD, P. J.

I CONCUR IN THE JUDGMENT ONLY:

_____________________________________

WILSON, J.

Doe v. Mount Pleasant Elementary School District

H050830

WILSON, J., Concurring.

I concur in the result. I write separately because I would not decide whether the

school district carried its burden on summary judgment of establishing as a matter of law

that Walden West constituted a “field trip or excursion” within the meaning of section

35330. (Maj. opn., ante, at pp. 8–13.) Instead, I would hold that, even assuming Walden

West was a field trip or excursion, section 35330, subdivision (d), does not provide

absolute immunity as the trial court held, but rather provides a “deemed waiver” of

claims, by which the Legislature intended to limit the liability of school districts to a

lesser degree. Within that framework, the school district failed to carry its initial burden

on summary judgment of demonstrating that Doe’s negligence claim was “deemed

waived” as a matter of law.

I would then also hold, as the majority does, that the school district failed to carry

its initial burden of demonstrating it is not liable as a matter of law pursuant to section

44808.

A. The “deemed waived” provision of section 35330, subdivision (d)

Section 35330, subdivision (d), uses the phrase “deemed to have waived,” in

contrast to other statutes which expressly limit public entity liability or provide immunity

to a public entity by stating that the entity “is not” or “shall not be liable.” Section

44808, for instance, provides that “no school district … shall be … in any way liable for

the conduct or safety of any pupil” in the specified circumstances. (§ 44808.)

Similarly, the Government Claims Act statutes enumerate dozens of express

limitations of liability, and use identical or comparable language, providing that “a public

entity is not liable,” or that “no [specified government entity or employee] is liable …” in

various contexts. (See, e.g., Govt. Code, §§ 816, 818, 818.2, 818.4, 818.6, 818.7, 818.8,

818.9, 820.2, 820.4, 820.6, 820.8, 820.9, 821, 821.2, 821.4, 821.5, 821.6, 821.8, 822,

822.2, 823, 830.6, 830.8, 830.9, 831, 831.2, 831.25, 831.3, 831.4, 831.6, 831.7, 831.7.5,

831.8.)

Comparable or identical language is used for limitations of liability relating to

police and correctional activities (Gov. Code, §§ 844–846), fire protection (Gov. Code,

§§ 850–850.8), unmanned aircraft (Gov. Code, §§ 853–853.5), medical, hospital and

public health activities (Gov. Code, §§ 854–856.6), administration of tax laws (Gov.

Code, §§ 860–860.4), use of pesticides (Gov. Code, § 862), and activities to abate an

impending peril (Gov. Code, §§ 865–867).

In section 35330, subdivision (d), though, the Legislature elected to use different

language. I do not presume that the Legislature’s use of “deemed to have waived” in one

statute, and “shall not be liable” in another, was careless or meaningless. I presume

instead that the Legislature intended the terms to have different meanings, rather than be

considered interchangeable.

“When confronted with two statutes, one of which contains a term, and one of

which does not, we do not import the term used in the first to limit the second. Instead, it

is our obligation to interpret different terms used by the Legislature in the same statutory

scheme to have different meanings.” (Walt Disney Parks & Resorts U.S., Inc. v. Superior

Court (2018) 21 Cal.App.5th 872, 879, citing Roy v. Superior Court (2011) 198

Cal.App.4th 1337, 1352; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725

[when Legislature has carefully employed a term in one place and excluded it in another,

it should not be implied where excluded]; Cornette v. Department of Transportation

(2001) 26 Cal.4th 63, 73 [“When one part of a statute contains a term or provision, the

omission of that term or provision from another part of the statute indicates the

Legislature intended to convey a different meaning.”]; Craven v. Crout (1985) 163

Cal.App.3d 779, 783 [“Where a statute referring to one subject contains a critical word or

phrase, omission of that word or phrase from a similar statute on the same subject

generally shows a different legislative intent.”]; Campbell v. Zolin (1995) 33 Cal.App.4th

2

489, 497 [“Ordinarily, where the Legislature uses a different word or phrase in one part

of a statute than it does in other sections or in a similar statute concerning a related

subject, it must be presumed that the Legislature intended a different meaning.”].)

Therefore, I construe “deemed to have waived” to have a different meaning than

the immunities and limitations on liability set forth in the other statutes discussed above,

including section 44808.

Section 35330, subdivision (d), does not define “deemed to have waived.” To

ascertain the phrase’s meaning, then, I rely on its well-established legal meaning, if one

exists. As Doe argued on appeal: “when a word used in a statute has a well-established

legal meaning, it will be given that meaning in construing the statute.” (Arnett v. Dal

Cielo (1996) 14 Cal.4th 4, 19, citing Harris v. Reynolds (1859) 13 Cal. 514, 518 [“The

rule of construction of statutes is plain. Where they make use of words and phrases of a

well-known and definite sense in the law, they are to be received and expounded in the

same sense in the statute.”].)

“Waiver” has a well-established legal meaning in numerous statutory and other

contexts. The California Supreme Court recently construed “waiver” as it applied to a

party’s right to disqualify a judge under Code of Civil Procedure section 170.3(b)(2).

(North American Title Co. v. Superior Court (2024) 17 Cal.5th 155 (North American

Title Co.).) That section provides: “There shall be no waiver of disqualification if the

basis therefor is either of the following: [¶] (A) The judge has a personal bias or prejudice

concerning a party. [¶] (B) The judge served as an attorney in the matter in controversy,

or the judge has been a material witness concerning that matter.” (Code Civ. Proc.,

§ 170.3, subd. (b)(2).)

As part of its interpretation of that statute, the Court focused on the common

meaning of “waiver.” It explained that “waiver is the ‘intentional relinquishment or

abandonment of a known right.’ ” (North American Title, supra, 17 Cal.5th at p. 178,

quoting U.S. v. Olano (1993) 507 U.S. 725, 733; see also People v. Aguilar (1984) 35

3

Cal.3d 785, 794 [“classic definition of a waiver — “an intentional relinquishment or

abandonment of a known right’ ”].) “ ‘Waiver’ is not properly used to describe a

circumstance other than when a party voluntarily relinquishes or abandons a known

right.” (North American Title, supra, 17 Cal.5th at p. 178.)

The Court has held in other contexts that waiver “always rests upon intent.”

(Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 (Lynch), citing City of

Ukiah v. Fones (1964) Cal.2d 104, 107 (City of Ukiah).) “The intention may be express,

based on the waiving party’s words, or implied, based on conduct that is ‘ “so

inconsistent with an intent to enforce the right as to induce a reasonable belief that such

right has been relinquished.” ’ ” (Lynch, supra, at p. 475, quoting Savaglio v. Wal-Mart

Stores, Inc. (2007) 149 Cal.App.4th 588, 598.)

Because the waiver in section 35330, subdivision (d), is “deemed” by the

Legislature, the relevant question is not what rights or claims a particular plaintiff may

have intended to relinquish, but rather what rights or claims the Legislature intended to

deem waived.

I find the law regarding contractual waivers instructive here, insofar as it reflects a

general public policy against waivers of liability for gross negligence or intentional

torts. 15 The California Supreme Court has explained that, “ ‘[t]raditionally the law has

looked carefully and with some skepticism at those who attempt to contract away their

legal liability for the commission of torts.’ ” (City of Santa Barbara v. Superior Court

(2007) 41 Cal.4th 747, 754 (City of Santa Barbara). “The traditional skepticism

concerning agreements designed to release liability for future torts … long has been

expressed in Civil Code section 1668 [], which (unchanged since its adoption in 1872)

provides: ‘All contracts which have for their object, directly or indirectly, to exempt any

one from responsibility for his [or her] own fraud, or willful injury to the person or

15

I am not aware of any other statute, and the parties have not identified any, that

provides a “deemed waiver” as in section 35330, subdivision (d).

4

property of another, or violation of law, whether willful or negligent, are against the

policy of the law.’ ” (City of Santa Barbara, supra, at pp. 754–755 [“Exploring the

meaning and characteristics of the concept of ‘public interest,’ ” the Court recognized a

general rule that an “ ‘exculpatory clause which affects the public interest cannot

stand’ ”].)

In City of Santa Barbara, the California Supreme Court considered the

enforceability of an agreement purporting to waive the city’s liability for future gross

negligence in the context of sports and recreational services for developmentally disabled

children. (City of Santa Barbara, supra, 41 Cal.4th at p. 747.) The Court began by

articulating the distinction between ordinary negligence—a failure to exercise the degree

of care in a given situation that a reasonable person under similar circumstances would

employ to protect others from harm—and gross negligence, defined as either a want of

even scant care or an extreme departure from the ordinary standard of conduct. (Id. at pp.

754–755, citing Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869; Eastburn v.

Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186.)

The Court concluded that “public policy generally precludes enforcement of an

agreement that would remove an obligation to adhere to even a minimal standard of

care,” and applying that general rule to the facts of its case, it held that “an agreement

purporting to release liability for future gross negligence committed against a

developmentally disabled child who participates in a recreational camp designed for the

needs of such children violates public policy and is unenforceable.” (City of Santa

Barbara, supra, 41 Cal.4th at p. 777; see id. at p. 779 [courts are not precluded from

drawing legal distinctions between ordinary negligence and more aggravated categories

of misconduct].) Analogizing to the context of active sports, the Court emphasized the

concept of “inherent risks” in an activity: “a defendant generally has no duty to

eliminate, or protect a plaintiff against, risks inherent in a sport—that is, against ordinary

careless conduct considered to be part of the sport. [Citation.] And yet … such a

5

defendant nevertheless may be liable for conduct ‘so reckless as to be totally outside the

range of the ordinary activity.’ ” (Id. at p. 779, citing Knight v. Jewett (1992) 3 Cal.4th

296, 320–321.)

Thus, while an agreement that releases liability for future ordinary negligence is

enforceable, “to the extent it purports to release liability for future gross negligence,

violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41 Cal.4th at

p. 751 [distinction between ordinary and gross negligence reflects a “ ‘rule of policy’ that

harsher legal consequences should flow when negligence is aggravated instead of merely

ordinary”]; see also Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 825

(Joshi).)

Even outside the context of gross negligence, “California courts long have voided

agreements releasing liability for future ordinary negligence in the context of such

socially important matters as medical services, auto repair, banking, and day care. …”

(City of Santa Barbara, supra, 41 Cal.4th at p. 773, fn. 46, citing Tunkl v. Regents of

University of California (1963) 60 Cal.2d 92.)

Of course, the “deemed waiver” in section 35330, subdivision (d), is not a

contract, but a statute. It is, therefore, a determination of public policy by the Legislature

in the first place. (City of Santa Barbara, supra, 41 Cal.4th at p. 777, citing Jensen v.

Traders & Generals Insurance Co. (1959) 52 Cal.2d 786, 794 [“[t]he determination of

public policy of states resides, first, with the people as expressed in their Constitution

and, second, with the representatives of the people—the state Legislature”].)

The task, then, is to interpret section 35330, subdivision (d), to discern what the

Legislature intended that public policy to be.

In light of the law regarding “waivers,” and the public policies regarding liability

for gross negligence enumerated by the California Supreme Court in City of Santa

Barbara, I would conclude that section 35330, subdivision (d), does not confer absolute

immunity on school districts, or provide that a school district “shall not be liable” under

6

any circumstances for harm suffered during a field trip or excursion. Instead, by using

the phrase “deemed to have waived,” the Legislature intended to limit the liability of

school districts to a lesser degree—one that does not include claims for gross negligence

or intentional torts.

The history and legislative policy behind section 35330 support this construction

of the statute. The statutory scheme was “designed to encourage the use of field trips as

an important part of enhancing the educational process.” (Sanchez v. San Diego County

Office of Education (2010) 182 Cal.App.4th 1580, 1584 (Sanchez), citing Assem. Com.

on Education, Analysis of Assem. Bill No. 766 (2007–2008 Reg. Sess.) as amended April

9, 2007, p. 6.) While that includes a legislative policy of incentivizing field trips in part

by not imposing burdensome costs on school districts that undertake them, it does not

follow that the Legislature intended to provide school districts with blanket immunity

from any and all claims.

The policy of incentivizing educational field trips cuts both ways. A statutory

scheme that leaves young schoolchildren “effectively on their own,” with no legal

recourse against a school district under any and all circumstances for failing to

appropriately protect the safety of those children, would likely discourage parents from

allowing their children to participate. (See, e.g., Castro v. Los Angeles Board of

Education (1976) 54 Cal.App.3d 232 (Castro) [“[s]tudents who participate in

nonrequired trips or excursions, though possibly in furtherance of their education but not

as required attendance, are effectively on their own; the voluntary nature of the event

absolves the district of liability”].)

And, significantly, providing absolute immunity to school districts for all injuries

suffered by students on field trips—such as those alleged here by Doe—would run

counter to the compelling state interest of protecting children from sexual abuse. (People

v. Gonzalez (1978) 81 Cal.App.3d 274, 277; see also, People v. Patten (1992) 9

7

Cal.App.4th 1718, 1726 [state has compelling interest in safeguarding physical and

psychological well-being of minors and victims of sexual offenses].)

Indeed, the school district’s interpretation of section 35330, subdivision (d), would

violate a central maxim of statutory interpretation—that a provision not be construed to

result in absurd consequences the Legislature did not intend. (Coalition of Concerned

Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 737.) In my view, a statutory

scheme that allows elementary school children to be “effectively on their own” at a week-

long off-campus outdoor science camp, with no potential legal recourse against a school

district, for even grossly negligent or intentionally tortious conduct related to the children

under their care, would be absurd. I do not believe that providing absolute immunity to a

school district, even in the face of evidence which might undisputably demonstrate a

want of even scant care or an extreme departure from the ordinary standard of conduct, is

what the Legislature intended.

The school district argues that the “plain and unambiguous provision of field trip

immunity in [§ 35330, subd. (d)] creates a conclusive presumption of immunity based

upon the waiver of liability.” It characterizes this as “absolute immunity,” and asserts

that “there is no type of injury occurring during a field trip that escapes” it. According to

the district, “the language of [§ 35330, subdivision (d)] is plain and clear - to promote

field trip opportunities among California public school students, there shall be no

liability on the part of a school district for injuries occurring during same.”

The school district mischaracterizes the statute, which—in contrast to section

44808—does not use the words “there shall be no liability,” “shall not be liable,” or “is

not liable.” (§ 35330, subd. (d).) As discussed above, when the Legislature intends for

there to be no liability, it knows the exact words to use to convey such a meaning.

The case law the school district relies on does not support its interpretation of the

statute, either. The earliest such case was Castro, in which a high school student died

while participating with his R.O.T.C. unit at an off-campus summer training event that

8

was organized by, and under the supervision and control of employees of the defendant

board of education. (Castro, supra, 54 Cal.App.3d at p. 234.) The student’s parents sued

the board, alleging that their son’s death occurred as a result of the board’s negligence.

(Ibid.) The board demurred on the basis of section 1081.5, the predecessor to section

35330, and the trial court sustained the demurrer. (Castro, at p. 234.)

The court of appeal first addressed the interplay between section 1081.5 and

section 13557.5, the predecessor statute to section 44808, noting “the difference in words

used to describe the events delineated in section 13557.5 (school sponsored activity) and

that event referred to in the immunity statute, section 1081.5 (field trip or excursion).”

(Castro, supra, 54 Cal.App.3d at pp. 235–236.) In reversing the judgment, the court

explained that the allegations in the operative complaint were “sufficient to place the

plaintiffs within the ambit of section 13557.5 [44808] and not under the disability of

immunity provisions of section 1081.5 [35330].” (Castro, supra, at p. 237.) The court

stated that “there would have been no purpose in the Legislature’s adding section 13557.5

[now 44808] to the Education Code at its 1972 session if by its amendment of section

1081.5 [now 35330] of the same code, it provided absolute immunity from liability for

the same away-from-school activity.” (Castro, at p. 236.)

Because the court ultimately held that section 1081.5 did not apply, based on the

nature of the ROTC activity, it conducted no analysis of the scope of the “deemed

waiver” provision in section 35330, subdivision (d). I do not consider it authority for the

proposition that section 35330, subdivision (d), provides absolute immunity to a school

district from all claims, and nothing in Castro explains or justifies such an interpretation.

The same is true of subsequent caselaw that relied on Castro. In Wolfe v. Dublin

Unified School District (1997) 56 Cal.App.4th 126 (Wolfe), for example, a first-grade

student was injured on the way home from a “field trip” to a family farm when the car of

the parent driver with whom he was riding collided with a truck. The student’s parents

sued the school district for negligence, and the trial court granted the district’s motion for

9

summary judgment. (Id. at p. 128.) The court of appeal followed the holding and

analysis in Castro and found section 35330, subdivision (d), applicable. (Wolfe, supra, at

p. 134.)

Again, though, the court did not analyze the scope of the “deemed waiver”

provision—it merely held that the statute applied and the claim at issue was barred.

(Wolfe, supra, 56 Cal.App.4th at p. 137.) As with Castro, I do not consider Wolfe

authority for the proposition that section 35330, subdivision (d), provides absolute

immunity to a school district from any conceivable claim.

Also, in Barnhart v. Cabrillo Community College (1999) 76 Cal.App.4th 818, 827

(Barnhart), a different panel of this court considered a regulation applicable to

community college districts (Cal. Code Regs. tit. 15, § 55450) that included a deemed

waiver of claims in language identical to section 35330, subdivision (d). (Barnhart,

supra, at p. 818.) The plaintiffs were college soccer players injured in a car crash while

being driven to a game by a school employee. (Id. at p. 821.) As this court explained,

the question boiled down to whether the plaintiffs were on a field trip or excursion—if

they were, “then there is immunity.” (Id. at p. 828.) After concluding that the plaintiffs

were on a field trip, this court held that “the special or specific immunity statute [section

35330] applies.” (Barnhart, at p. 829.)

However, Barnhart did not analyze the scope of the so-called “immunity” in

section 35330, subdivision (d), or suggest that the immunity is absolute. (See also,

Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 240. [no analysis of

scope of waiver provision]; Sanchez, supra, 182 Cal.App.4th at p. 1584 [parties agreed

regarding nature of field trip immunity; issue presented to court dealt with legislative

intent as to what entities are entitled to its protections]; Casterson v. Superior Court

(2002) 101 Cal.App.4th 177 (Casterson) [considering only whether statute applies to

employees of school districts].)

10

In sum, there does not appear to any published authority which has expressly

considered the scope of the “deemed waiver” provision of section 35330, subdivision (d),

or which has dealt with facts similar to those at issue here. I would conclude, as

explained above, that section 35330, subdivision (d), does not confer absolute immunity

on school districts, or provide that a school district “shall not be liable” under any

circumstances for harm suffered during a field trip or excursion, but instead limits the

liability of school districts to a lesser degree—one that does not include claims for gross

negligence or intentional torts.

B. The school district’s initial burden on summary judgment

I would then conclude that, within that framework of section 35330, subdivision

(d), the school district failed to carry its initial burden of demonstrating that Doe’s

negligence claim was “deemed waived” as a matter of law.

To prevail on summary judgment, the school district must have demonstrated that

Doe’s negligence claim was “deemed waived” pursuant to section 35330, subdivision (d),

as a matter of law. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284,

289–290.) That is, the school district must have shown that Doe’s claim is the type of

claim the Legislature intended to deem waived in the context of a field trip or excursion.

A party asserting waiver has the burden to prove it by clear and convincing evidence, and

“ ‘doubtful cases will be decided against a waiver.’ ” (City of Ukiah, supra, 64 Cal.2d at

pp. 107–108, citing Church v. Public Utilities Com. (1958) 51 Cal.2d 399, 401 [“This is

particularly apropos in cases in which the right in question is one that is ‘favored’ in the

law”].)

Here, the school district made no showing regarding the scope of the deemed

waiver or the nature of Doe’s claim, because it argued only that section 35330,

subdivision (d), provides “absolute immunity,” thereby barring the claim. The school

district’s separate statement of undisputed facts in support of its motion for summary

judgment asserted only that: Doe was a fifth-grader when she voluntarily attended

11

Walden West; Doe understood that if she chose not to attend Walden West, she would

remain at her school campus; Covarrubias-Padilla and the cabin leaders were not district

employees; Covarrubias-Padilla’s sexual abuse of Doe occurred while she attended

Walden West; and, the district teachers attending Walden West did not have any ongoing

supervisory duties of students unless contacted by Walden West staff.

Even accepting those facts as true or undisputed, they do not establish as a matter

of law that Doe’s negligence claim against the district was deemed waived pursuant to

section 35330, subdivision (d). The facts do not address, for instance, the nature of Doe’s

allegations—in particular the nature of the school district’s alleged negligence—or

whether the Legislature intended that this particular type of claim be deemed waived.

Accordingly, the school district has failed to carry its burden of showing that section

35330, subdivision (d), bars Doe’s claim.

C. Gross negligence

Following oral argument, this court requested supplemental briefing on specific

issues, including: “The Mount Pleasant Elementary School District in its motion for

summary judgment did not attempt to demonstrate that Jane Doe cannot establish either

gross negligence (which she maintains would be exempt from Education Code section

35330's ‘deemed’ waiver of all claims) (id., subd. (d)), or that she ‘[was] or should [have

been] under the immediate and direct supervision of an employee of [the] district’

(§ 44808). But Jane Doe elected to oppose the motion not only by disputing the district’s

interpretation of section 35330 but also by presenting evidence on the merits of her claim

of gross negligence. [¶] Does Doe’s evidence in opposition to the motion permit the

court to conclude that there is no triable issue of material fact? (See, e.g., Villa v.

McFerren (1995) 35 Cal.App.4th 733, 750–751 [reasoning that the trial court must

consider all the evidence in assessing whether the initial burden shifted]; see also Weil &

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2024

Update) ¶ 10:251; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The

12

Rutter Group June 2024 Update) ¶ 10:271.1 [citing Villa for the proposition that ‘gaps in

the moving party’s affidavits may be cured by matters in the opposing party's papers’].)”

In light of the parties’ supplemental briefing on this issue, and the school district’s

arguments on appeal, I would also address this issue and conclude that the district did not

carry its burden of demonstrating there is no evidence of gross negligence.

On appeal, the district recites various facts, albeit without any citations to the

record, which purportedly show that SCCOE, rather than the school district itself,

controlled and operated Walden West, and had the responsibility for vetting, hiring,

training and supervising its personnel. The school district also argues that its teachers

nevertheless “were present in a support role,” “signed up for daytime duties, had the

option of participating in the daytime nature hikes, and remained on camp premises for

the duration of the camp so that they could be available for the students if called upon.”

According to the district, these facts “do not support any claim of gross negligence.”

Again, though, the district bore the initial burden in its summary judgment motion

of demonstrating there is no triable issue of material fact as to Doe’s negligence claim.

Its unsupported factual assertions on appeal cannot satisfy that burden.

Nor is there any merit to the school district’s contention that Doe may not argue

gross negligence on appeal because she failed to raise it in the trial court. As we have

stated, to support a theory of gross negligence, a plaintiff must allege facts showing either

a “want of even scant care,” or “an extreme departure from the ordinary standard of

conduct.” (Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 881

(Anderson), quoting Santa Barbara, supra, 41 Cal.4th at p. 754.) Gross negligence thus

differs from ordinary negligence only in degree, not in kind. (Anderson, supra, at p. 881,

citing Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197.) It

is a “subspecies of negligence; it is not a separate tort. As the Supreme Court held, its

conclusion that an agreement purporting to release a claim for future gross negligence

was expressly not a recognition of ‘a cause of action for gross negligence.’ ” (Joshi,

13

supra, 80 Cal.App.5th at p. 825, quoting Santa Barbara, supra, 41 Cal.4th at pp. 779–

780, fn. omitted.) Accordingly, Doe was not required to label her cause of action as one

for “gross negligence.”

Moreover, as a practical matter, the complaint alleged numerous facts which, if

established at trial, could support a finding by the trier of fact that the school district was

grossly negligent. Doe alleged, for instance, that the school district had a duty “to take

reasonable steps and implement reasonable safeguards to avoid acts of unlawful sexual

conduct by [Covarrubias-Padilla], including preventing abuse of [Doe] by [Covarrubias-

Padilla], avoiding placement of [Covarrubias-Padilla] in a function or environment in

which contact with children is an inherent part of that function or environment.”

Similarly, she alleged that the school district failed “to put in place a system or procedure

to supervise or monitor employees, volunteers, representatives or agents to insure that

they did not molest or abuse minors in Defendants’ care, including [Doe].”

Further, Doe asserted that, “at all material times hereto, [Doe] was under [the

school district’s] supervisory personnel’s care, control and supervision.” She also alleged

that before she was sexually assaulted by Covarrubias-Padilla, the school district knew or

should have known that Covarrubias-Padilla “had engaged in unlawful sexually-related

conduct with minors in the past, and/or was continuing to engage in such conduct,” as he

was “under investigation for possession and distribution of child pornography at least six

months prior to being arrested.” According to Doe, the district “had a duty to disclose to

these facts to [Doe], their parents and others, but suppressed, concealed or failed to

disclose this information.”

In addition, Doe alleged that the school district “failed to take reasonable steps and

implement reasonable safeguards to avoid acts of unlawful sexual conduct by

[Covarrubias-Padilla], including preventing abuse of [Doe] by [Covarrubias-Padilla],

avoiding placement of [Covarrubias-Padilla] in a function or environment in which

contact with children is an inherent part of that function or environment.” Instead, Doe

14

alleged, the school district “ignored and concealed the sexual abuse of [Doe] and others

by [Covarrubias-Padilla] that had already occurred,” and “failed to properly supervise

[Covarrubias-Padilla] at Walden West, which led to many students, including [Doe],

being repeatedly sexually abused by [Covarrubias-Padilla].”

Finally, prior to and during Covarrubias-Padilla’s sexual harassment, molestation

and abuse, Doe alleged, the school district knew or should have known that Covarrubias-

Padilla had violated his role as a night monitor. Instead, the district allowed Covarrubias-

Padilla “to come into contact with minors, including [Doe], without any supervision.”

The district therefore failed to “put in place a system or procedure to supervise or monitor

employees, volunteers, representatives or agents to insure that they did not molest or

abuse minors in Defendants’ care, including [Doe].”

Doe also produced facts in her separate statement in opposition to the motion for

summary judgment which, at the very least, created a triable issue of material fact on this

issue, even if the school district had carried its initial burden. Significantly, Doe included

facts showing that the Walden West Director had stated that teachers were responsible for

their students “all the time” and were “always there as the students’ teachers,” even

during nighttime hours. Similarly, a district administrator had assured Doe’s mother that

district employees would be supervising the students at night, and that their children

would be properly supervised by qualified district staff at all times while at Walden West.

The school district did not dispute those facts.

Whether a lack of due care constitutes gross negligence in any particular

circumstance is generally a question of fact. (Decker v. City of Imperial Beach (1989)

209 Cal.App.3d 349, 358.) It was therefore the school district’s burden in the context of

its motion for summary judgment to establish that there was no triable issue of material

fact on this issue, but it failed to carry that burden here.

15

D. “Field trip or excursion”

Although I would not decide the question of whether Walden West constituted a

field trip or excursion within the meaning of section 35330, subdivision (d), I also write

separately on this issue because I decline to join a portion of the majority’s analysis on it.

The majority cites the definition of “field trip or excursion” first articulated in

Castro and cited in subsequent cases: “ ‘Field trip’ is defined as a visit made by students

and usually a teacher for purposes of first hand observation (as to a factory, farm, clinic,

museum). ‘Excursion’ means a journey chiefly for recreation, a usual brief pleasure trip,

departure from a direct or proper course, or deviation from a definite path.” (Castro,

supra, 54 Cal.App.3d at p. 236.) (Maj. opn., ante, at p. 9.) Similarly, the majority,

relying on Castro, states that, “[i]n holding that the plaintiff had adequately alleged that

the high school’s ROTC summer camp was not a field trip, the Castro court reasoned that

the plaintiffs in Castro were entitled ‘ “to prove, if they can, that the ROTC ‘summer

camp, bivouac and summer training ” ’ at which their son died ‘was just as much a part

of the school curriculum as a school-sponsored band or orchestra performance at an off-

premises event.’ ” (Maj. opn., ante, at p. 9, citing Castro, supra, at p. 237.) Therefore,

the majority concludes, the “hallmark of a field trip or excursion under section 35330 is

that its observational or recreational purpose represents a departure from the school’s

curriculum and required school purposes.” (Maj. opn., ante, at p. 9.)

In my view, Castro made only passing reference to curriculum at the end of the

opinion in dicta (Castro, supra, 54 Cal.App.3d at p. 237.) and did not purport to define

“field trip or excursion” based on whether it functioned as curriculum replacement.

Instead, the court stated: “As we construe the governing sections, we conclude that

where a ‘school-sponsored activity,’ i.e., one that requires attendance and for which

attendance credit may be given, is involved, the event is a ‘specific undertaking’ of the

district. In such a case ‘the district ... shall be liable or responsible for the ... safety of any

pupil only while such pupil is or should be under the immediate and direct supervision of

16

an employee of such district.’ ” (Castro, supra, 54 Cal.App.3d at p. 236.) In other

words, the court’s holding was predicated on the voluntary or involuntary nature of the

activity, rather than whether it was part of the school curriculum. 16 I would decline to

follow such a definition for “field trip” or “excursion” because there is no authority or

explanation for it provided in Castro, and no support for it in the statute itself.

The majority also states, “in nearly a half century since Castro announced its rule,

the Legislature has taken no action to override it. Though not dispositive of the legislative

intent in 1965, this apparent legislative acquiescence affords us no reason to question

Castro’s ‘required school purposes’ standard here.” (Maj. opn., ante, at pp. 10-11.)

However, I do not think the Legislature's failure to act in response to Castro or its

progeny can be read as acquiescence, let alone approval, of its holdings. As the California

Supreme Court has recently stated, “Legislative acquiescence arguments of this type

rarely do much to persuade; even when a clear consensus has emerged in the appellate

case law, we have noted that legislative inaction supplies only a ‘ “ ‘ “ ‘weak reed upon

which to lean’ ” … ’ ” ’ in inferring legislative intent.” (Naranjo v. Spectrum Security

Services, Inc. (2022) 13 Cal.5th 93, 116–117.)

Finally, I share the majority’s acknowledgment regarding the potential impact

which may result from any perceived opening to what has been known as field trip

“immunity.” (Maj. opn., ante, at p. 21.) However, I also acknowledge that interpreting

section 35330, subdivision (d), to afford absolute immunity to school districts—absent

express legislative articulation—would create an inherent contradiction to public policy

by removing “an obligation to adhere to even a minimal standard of care” as relates to

16

I would also decline to follow this aspect of Castro. As this court previously

noted in Barnhart, “Castro’s statements about the voluntary or involuntary nature of the

participation are (1) dicta, and (2) of questionable validity given that neither [statute]

suggests such a test.” (Barnhart, supra, 76 Cal.App.4th at p. 827; see also Casterson,

supra, 101 Cal.App.4th at pp. 177, 185, fn. 4.) Indeed, section 35330 and section 44808

say nothing about the voluntary or involuntary nature of the specific activities.

17

public school children during field trips or excursions. (City of Santa Barbara, supra, 41

Cal.4th at 777.) I disagree with the Castro court that the Legislature would have intended

that children, some as young as grade school age, to be “effectively on their own” during

such field trips or excursions. (Castro, supra, 54 Cal.App.3d at p. 236.) For the

aforementioned reasons, I conclude that any determination that absolute immunity exists

under section 35330, subdivision (d), should expressly come from the Legislature.

18

Trial Court: Santa Clara County Superior Court

Superior Court No.: 20CV374714

Trial Judge: Hon. Christopher G. Rudy and Evette D. Pennypacker

Counsel: Manly, Stewart & Finaldi, Morgan A. Stewart, Vince W. Finaldi,

Courtney P. Pendry, Haley K. Aanestad; Esner, Chang, Boyer &

Murphy, Holly N. Boyer and Kevin K. Nguyen for Plaintiff and

Appellant.

Spinelli, Donald, and Nott, Ross R. Nott and Carter J. Nott for

Defendant and Respondent.

Doe v. Mount Pleasant Elementary School District

H050830