The opinion
Filed 12/19/25 H.N. v. Scotts Valley Unified School District CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
H.N., a minor, by JUSTIN H052568
NORDGREEN, his Guardian, (Santa Cruz County
Super. Ct. No. 22CV01828)
Plaintiff and Appellant,
v.
SCOTTS VALLEY UNIFIED SCHOOL
DISTRICT, et al.,
Defendants and Respondents.
During the COVID-19 pandemic, H.N. was in the first and second grades at Brook
Knoll Elementary School. Following state-wide guidance, the school adopted measures
such as masking and testing to control spread of the disease, which H.N. and his parents
opposed. As a result of this opposition, and the insistence of H.N.’s parents that he attend
school without complying with several measures, H.N. was kept in isolation for
approximately three school weeks. In addition, on one occasion when H.N. brought a
sign protesting the school’s COVID-19 measures, H.N. was sent to the principal’s office,
and his sign was temporarily confiscated.
In 2022, H.N. sued the Scotts Valley Unified School District (District), the
superintendent of the District, the principal of his school, and his teacher (collectively,
Defendants). H.N. claimed that Defendants violated his constitutional rights and
committed several torts. After discovery, Defendants moved for summary judgment.
The court concluded that governmental immunities barred the claims against the District,
the superintendent, and the principal. It also concluded that H.N. had failed to raise a
triable issue concerning any of his claims. Accordingly, the trial court granted
Defendants’ motion and entered judgment in their favor.
H.N. appeals, contending that none of the Defendants are immune and that he
raised triable issues on all his claims. He also contends that the trial court abused its
discretion in excluding evidence and refusing to take judicial notice of documents.
As explained below, we conclude that summary judgment was properly entered.
In particular, we conclude that the trial court did not abuse its discretion in excluding
evidence and denying judicial notice. We also conclude that the District, the
superintendent, and the principal are immune under Government Code section 855.4
because the actions challenged by H.N. were taken in carrying out public health policies
controlling the spread of disease and H.N. failed to raise a triable issue concerning
whether they acted without due care. (Subsequent undesignated statutory references are
to the Government Code.) In part for this reason and in part because schools have
authority to control the location of students during school hours, we conclude as well that
H.N. failed to raise a triable issue with respect to any of his claims.
The judgment is therefore affirmed.
I. BACKGROUND
A. State COVID-19 Guidance
In March 2020, in response to the COVID-19 pandemic, Governor Newsom
declared a state of emergency. In a series of executive orders related to the pandemic, the
Governor confirmed the authority of the California Public Health Officer “to take any
action she deems necessary to protect public health in the face of the threat posed by
COVID-19” and exercised his authority under the Emergency Services Act (§ 8550 et
seq.) to suspend application of the Administrative Procedure Act (APA) (§ 11340 et seq.)
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to the Public Health Officer’s COVID-19 directives. (Governor’s Exec. Order No. N-60-
20 (May 4, 2020) p. 3, ¶ 2 [citing § 8571]; id. pp. 2-3, ¶ 2 [authorizing actions by the
Public Health Officer].) Subsequently, the Governor expressly recognized the authority
of local health officers “to establish and implement public health measures . . . that are
more restrictive than, or that otherwise exist in addition to, the public health measures
imposed on a statewide basis . . . .” (Governor’s Exec. Order No. N-07-21
(June 11, 2021) p. 2, ¶ 4.)
In August 2021, the California Department of Public Health (CDPH) issued
guidance requiring K-12 students who attended school in-person to wear masks indoors
and directing schools to “develop and implement local protocols to enforce mask
requirements” and to “offer alternative educational opportunities for students who are
excluded from campus because they will not wear a face covering.” Following this
guidance, District schools reopened for full-time, in-person instruction, and the District
informed students and their families that students would be required either to wear masks
indoors while attending school in-person or to enroll in full-time, independent study.
In early January 2022, in light of the appearance of a COVID-19 variant with
increased transmissibility, CDPH issued updated guidance for schools. This guidance
recommended that “[i]n the event of wide-scale and/or repeated exposures” to
COVID-19, schools should consider implementing weekly COVID-19 testing until
exposures decreased.
In March 2022, after the COVID-19 threat had eased, CDPH issued new guidance
which strongly recommended indoor masking in schools but allowed schools to choose to
stop enforcing masking requirements.
B. The Conduct at Issue
In early January 2022, the District’s superintendent Tanya Krause notified parents
that the District planned to follow CDPH guidance regarding testing in the event of a
surge in COVD-19 cases. In January 2022, Brook Knoll Elementary School experienced
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such a surge, with exposure rates exceeding 50 percent among its student population. In
response, Brook Knoll’s principal Joshua Wahl notified families that, effective Thursday,
January 20, 2022 and through February 11, 2022, the school would be implementing a
school-wide “modified quarantine.” Under this modified quarantine, all students
attending school in-person were considered to have been exposed, unvaccinated students
were required to test weekly for COVID-19, and fully vaccinated students were
encouraged to test weekly. Unvaccinated students not testing weekly were required to
quarantine at home and participate in an independent study instructional program.
1. The Initial Isolation Period
H.N.’s father strongly opposed the school’s modified quarantine and its testing
requirements, which required H.N., as an unvaccinated student, to take weekly COVD-19
tests. The father contacted both Principal Wahl and Superintendent Krause, asserting that
the District’s protocols were illegal and that he would continue bringing H.N. to school
every day without him testing for COVID-19. H.N.’s father also threatened to record
District staff and to send the recordings to the media if any District staff tried to send
H.N. home for failing to comply with masking and testing mandates.
H.N.’s father also contacted the Scotts Valley Police Department and demanded
that Superintendent Krause and other District administrators be arrested for enforcing
masking and testing mandates. Superintendent Krause in turn notified the Scotts Valley
police chief of threats that H.N.’s father had made toward herself, Principal Wahl, and
Brook Knoll Elementary School.
After the modified quarantine protocol went into effect, H.N. continued attending
school although he remained unvaccinated and declined to engage in testing. H.N.’s
teacher, Meaghann Gelter, notified Principal Wahl that H.N. was in class. Over the next
week, Wahl communicated with H.N.’s father several times regarding the modified
quarantine protocols. On January 26, 2022, Wahl offered a compromise: Rather than
indefinitely enrolling in independent study, H.N. could participate in a “temporary
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[q]uarantine” at home for 10 days, after which he could return to school. However, in a
subsequent e-mail Wahl reiterated that H.N. would not be permitted in the classroom
unless he participated in COVID testing.
H.N.’s father did not respond to Principal Wahl and on Friday, January 28, 2022,
dropped H.N. off at school. Because H.N. had not performed the weekly testing required
for unvaccinated students, he was removed from his classroom and sent either to the
nurse’s office or Principal Wahl’s office until his parents picked him up. That day,
H.N.’s father went to the District office, demanded to speak to Superintendent Krause,
and for 15-20 minutes expressed his belief that the District’s COVID-19 policies and
procedures were unsupported by science.
On Monday through Wednesday of the following week (January 31 through
February 2, 2022), H.N.’s parents continued to drop him off at school, refused weekly
COVID testing, and refused requests to pick H.N. up before the end of the school day.
Because the District’s protocols prohibited untested unvaccinated students from being on
campus, Superintendent Krause authorized Principal Wahl to hire a substitute teacher to
supervise H.N. one-on-one during the school day. For the next three days, H.N. was
removed from his regular classroom and taught by a substitute teacher in a vacant
classroom which was being used to store furniture and cleaning supplies. Gelter, his
teacher, provided work packets for him to complete, though H.N. said that he only drew
on the packets. H.N. also spent lunchtime and recess alone with the substitute.
On January 31, 2022, H.N. was not allowed to attend an afterschool program. As
a result, he was left alone at the school pickup area until a neighbor, who was in the
elementary school pickup line, saw H.N., contacted his mother, and at the mother’s
request took him home. The record does not reflect who prevented H.N. from attending
the afterschool program, as Principal Wahl denied any knowledge of a staff member
doing so and asserted that the program is not affiliated with the District. H.N. also was
prevented from attending the afterschool program on February 1 and 2, 2022.
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The modified quarantine ended on February 3, 2022, a week earlier than initially
expected, and unvaccinated students such as H.N. were no longer required to undergo
weekly COVID testing.
2. The “End This Nonsense” Sign
On February 15, 2022, nearly two weeks after the modified quarantine ended,
H.N. arrived late to school and his parents escorted him to his classroom. According to
his teacher Gelter, when the class was lined up outside, H.N.’s father handed him a large
sign, which H.N. held up and said “end this nonsense, end this nonsense.” Gelter allowed
H.N. to continue to hold up the sign for the several remaining minutes of unstructured
time, until the whistle blew for class to begin, at which point she sent H.N. to the office.
According to Principal Wahl, H.N. was sent to his office for disrupting class, and he (the
principal) sent an e-mail informing H.N.’s father that students were not permitted to
interrupt instructional time and reminding the father that H.N. was not wearing a mask
indoors as required. Wahl kept H.N.’s sign in his office for pickup after school and
returned H.N. to class.
H.N.’s description of the events is generally consistent with that of Gelter and
Wahl. According to H.N., he brought a sign to school that said “End this Nonsense” and
held it up outside of his classroom. H.N. also states that Gelter grabbed the sign out of
H.N.’s hand and sent him to the office, but does not deny that he was allowed to hold the
sign up for several minutes. However, H.N. denies that he was being disruptive or that he
protested during instructional time.
Following this incident, Gelter e-mailed Principal Wahl to express concerns about
the presence of H.N.’s parents on campus and the safety of her class given their disregard
for school rules.
3. The Second Isolation Period
After the sign incident, H.N. continued to refuse to mask indoors, and on
February 22, 2022, Principal Wahl took H.N. out of class and called his father to pick
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H.N. up from school, which the father refused to do. Wahl also repeatedly e-mailed
H.N.’s father regarding H.N.’s refusal to mask. Nevertheless, for the next 12 school
days, H.N.’s father continued to bring H.N. to school, H.N. continued to refuse to wear a
mask, and his father continued to refuse to pick him up.
During this time period, H.N. was again isolated either in the unused kindergarten
classroom with a substitute teacher or, when a substitute was not available, in Principal
Wahl’s office. H.N.’s teacher Gelter again prepared work packets for him to complete,
but H.N. asserts that he was merely given the packets, rather than taught from them.
Additionally, a substitute teacher made H.N. run laps alone outside during his recess
time.
In late February 2022 Superintendent Krause, Principal Wahl, and the District’s
legal counsel discussed whether the conduct of H.N.’s father in repeatedly dropping H.N.
off at school, knowing he would not be allowed in the classroom, warranted a call to
child protective services. However, the District ultimately decided against doing so.
On March 12, 2022, in light of new state guidance, the District dropped the
masking requirement in favor of a masking recommendation. H.N. does not allege he
was removed from the classroom for not masking after this.
4. Subsequent Events
In September 2022, H.N. was sent home from school and told to quarantine for 10
days due to vomiting. H.N. contends that he was “forced to sit in the lobby every school
day for a week and a half because [he] did not take two COVID tests.”
Also in or around September 2022, the District made “multiple requests of [H.N.’s
father] to comply with” requirements about checking in at the school office and the
reinstated requirement that students wear masks in the classroom. Due to the father’s
refusal to comply with these requirements, on September 12, 2022, Superintendent
Krause, the District’s Director of Student Services Nadia Oskolkoff, and Principal Wahl
decided to contact the police for assistance.
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Six months later, in March 2023, Scotts Valley police officers pulled over H.N.’s
father in his driveway, and one officer drew a weapon. The father believes that this
“treatment was as a result of the communications between . . . Krause and Chief Walpole
in their efforts to weaponize agents of the state against [him] under the color of law.”
C. Proceedings Below
In March and April 2022, H.N. submitted tort claims to the District, each of which
was denied. The following August, H.N. sued Defendants—the District, Superintendent
Krause, Principal Wahl, and H.N.’s teacher Gelter. After the trial court granted a
demurrer with leave to amend, H.N. amended his complaint, adding Director of Student
Services Oskolkoff as a defendant. In the amended complaint, H.N. asserted three tort
claims: false imprisonment (though only against the District, Krause, Wahl, and Gelter),
negligence, and intentional infliction of emotional distress. H.N. also asserted a violation
of the Tom Bane Civil Rights Act (Bane Act) (Civil Code, § 52.1), as well as violations
of the First and Fourteenth Amendments to the United States Constitution; Article I,
section 2(a) of the California Constitution; and Education Code section 48907.
After conducting discovery, Defendants (but not Oskolkoff) moved for summary
judgment. The District, Superintendent Krause, and Principal Wahl asserted immunity
under sections 820.2, 855.4, 818.2, and 820.4. In addition, Gelter as well as the rest of
the Defendants argued that H.N. failed to establish a substantive element of each claim.
In opposition, H.N. submitted his own declaration as well as declarations from his
parents, a neighbor, his therapist, and an expert on immuno-pharmacology.
On July 8, 2024, the trial court granted summary judgment to the District, Krause,
Wahl, and Gelter.* It ruled that the District, Krause, and Wahl were entitled to judgment
* The trial court did not grant summary judgment to Oskolkoff, who apparently
had not yet been served with the amended complaint, because Oskolkoff was not
included in the answer to the amended complaint or mentioned in the summary judgment
motion.
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as a matter of law on all of H.N.’s claims based on governmental immunity. The trial
court also found that H.N. had failed to raise a triable issue on any of his claims. Finally,
the trial sustained objections to the declarations from H.N.’s expert and his therapist, to
seven paragraphs in the declarations of H.N.’s parents and his neighbor, and to three of
H.N.’s requests for judicial notice.
In ruling that governmental immunity bars the claims against the District, Krause,
and Wahl, the trial court concluded that Krause and Wahl made discretionary decisions
concerning masking, testing, and quarantining, and also concerning implementation and
application of those policies, that are absolutely immune from liability under
section 820.2 and that this immunity protects the District as well under section 815.2.
The trial court also found immunity under section 855.4, which provides immunity to
public entities and public employees for acts or omissions related to preventing or
controlling the spread of disease.
In ruling that H.N. failed to raise a triable issue concerning any of his claims, the
trial court concluded that H.N. could not show confinement without lawful privilege—an
essential element of false imprisonment—because schools are required to supervise
students and enforce rules and regulations protecting their health while in the school’s
care. The court also ruled that H.N. failed to present any evidence of a breach of duty of
care to support his negligence claim, and that H.N. failed to present evidence of “extreme
and outrageous conduct” necessary for his intentional infliction of emotional distress
claim. Regarding the Bane Act claim, the trial court ruled that H.N. failed to raise a
triable issue concerning whether Defendants sought to interfere with the exercise of his
constitutional rights by committing or threatening violence.
Finally, the trial court ruled that H.N.’s claim for constitutional violations and
violation of Education Code section 48907 failed because H.N. made no attempt to show
any such violations in his opposition brief. Instead, the court observed, H.N. “appears to
abandon this claim” and instead argue that CDPH guidelines are not binding because they
9
were not adopted pursuant to the APA. Noting that the Governor has authority under
section 8571 to suspend regulatory statutes such as the APA, the court ruled that this
argument failed.
The trial court entered judgment in favor of the District, Krause, Wahl, and Gelter
on July 25, 2024, and notice of entry of judgment was served on July 29, 2024. H.N.
timely appealed.
II. DISCUSSION
H.N. argues that the trial court erred in ruling that governmental immunity bars the
claims against the District, Superintendent Krause, and Principal Wahl and that he failed
to raise any triable issue concerning his claims against Gelter and the other Defendants.
H.N. also argues that the trial court abused its discretion in excluding evidence he
submitted and denying his requests for judicial notice. Below, we address each of these
arguments, beginning with the rulings on exclusion and judicial notice. However, before
doing so, we briefly review the standards governing summary judgment.
A. Summary Judgment
Summary judgment is appropriate when “there is no triable issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law.”
(Code Civ. Proc., § 437c, subd. (c).) A party moving for summary judgment bears the
initial burden of demonstrating both that there is no triable issue of material fact and that
it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850 (Aguilar).) To satisfy this burden, a defendant moving for summary
judgment must demonstrate that the plaintiff’s causes of action lack merit either because
the plaintiff cannot prove at least one element of the claims or because there is a complete
defense to the claims. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) If the
defendant makes this initial showing, the burden shifts to the plaintiff to present evidence
demonstrating a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, at p. 850.)
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On appeal, we review summary judgment orders de novo, applying the rules and
standards governing a trial court’s evaluation of summary judgment motions. (See e.g.,
Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311, 321.) Accordingly, we
“liberally constru[e] the evidence in support of the party opposing summary judgment
and resolv[e] doubts concerning the evidence in favor of that party.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 460.)
B. Evidentiary Rulings
H.N. challenges the trial court’s exclusion of some of the evidence that he
presented and the denial of his request to take judicial notice of several documents.
Reviewing these rulings for abuse of discretion (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 255, fn. 4; Mackey v. Bd. of Trustees of California State University
(2019) 31 Cal.App.5th 640, 657), we conclude that there was no abuse.
1. The Babich Declaration
In opposing summary judgment, H.N. sought to introduce a declaration from an
immuno-pharmacologist, Dr. Michael Babich, concerning the efficacy of masking for
children, transmission of the SARS-CoV-2 virus, and the validity of COVID-19 testing.
H.N. contends that Dr. Babich’s declaration was relevant to whether the protocols used
by the District had a sound scientific basis and thus were adopted with “due care.”
However, as H.N. recognizes in his opening brief, these protocols were formulated by
county and state public health officials, not Defendants. In addition, as the trial court
observed, the Babich Declaration, which was submitted in June 2024, presented
“hindsight opinion” based, among other things, on a “[r]recently” conducted “meta-
analysis” of measures taken to mitigate the spread of COVID-19. In his declaration,
Dr. Babich does not offer any opinions concerning the scientific knowledge available in
early 2022 when the actions at issue in this case were taken. Consequently, the opinions
in the Babich Declaration shed little light on whether there was a sound basis in early
2022 for the protocols that the District followed, much less whether the District acted
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unreasonably or without due care in following them. We therefore conclude that
Dr. Babich’s opinions are not relevant either to H.N.’s negligence claim or to the
immunity defenses of the District, Superintendent Krause, and Principal Wahl.
H.N. also asserts that the Babich Declaration is relevant to whether Defendants
had a lawful privilege to isolate H.N. However, H.N. fails to offer any explanation for
this assertion, and we therefore treat it as abandoned. (In re Phoenix H. (2009) 47
Cal.4th 835, 845 (Phoenix) [“ ‘ “Contentions supported neither by argument nor by
citation of authority are deemed to be without foundation and to have been
abandoned.” ’ ”].)
2. The Burgess Declaration
H.N. also challenges exclusion of the declaration of Catherine Burgess, H.N.’s
therapist. H.N. asserts that the Burgess declaration contained “clinically grounded
descriptions of H.N.’s trauma based on her direct interactions with and treatment of H.N.,
opining, for instance, that his experience of isolation was ‘akin to punitive solitary
confinement’ and would foreseeably cause ‘significant emotional distress and potential
psychological harm,’ potentially leading to ‘lasting emotional harm.’ ” Because Burgess’
opinions are based upon her “percipient observations and clinical judgment,” H.N.
contends that they are admissible lay—but, notably, not expert—opinion.
We are unable to evaluate this assertion because, unlike Dr. Babich’s declaration,
the Burgess declaration is not included in the record. As the Supreme Court has
admonished, “it is a fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate court that the trial court
committed an error that justified reversal of the judgment.” (Jameson v. Desta (2018) 5
Cal.5th 594, 608-609 (Jameson).) “ ‘ “A necessary corollary to this rule is that if the
record is inadequate for meaningful review, the appellant defaults and the decision of the
trial court should be affirmed.” ’ ” (Ibid.) Because H.N. has not included the Burgess
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Declaration in the record, we conclude that he has failed to show that the trial court
abused its discretion in excluding the declaration.
3. Lay Witness Opinions
H.N. submitted declarations from both of his parents and a neighbor. The trial
court excluded seven paragraphs from these declarations. Although H.N. contends that
all of these exclusions were improper, he discusses only one: the exclusion of
paragraph 12 from the declaration of his father. According to that paragraph and the
photograph accompanying it, on March 17, 2023 the father’s car was pulled over by the
police, who drew their weapons on him. In addition to describing this event, H.N.’s
father states “I believe that this result was a result of the communication between Tanya
Krause and Chief Walpole in their efforts to weaponize the agents of the state against me
under the color of the law.” However, the declaration offers no foundation for that belief,
and while H.N. asserts that the father’s assertion was “grounded in his perception,” he
fails to explain what that perception was. We therefore conclude that there was no abuse
of discretion in excluding this paragraph or the other paragraphs from his declaration and
those of H.N.’s mother and their neighbor.
4. Requests for Judicial Notice
Finally, H.N. argues that the trial court should have granted his request to take
judicial notice of two recalls of SARS-CoV-2 tests. H.N. contends that the trial court
should have taken judicial notice of the recalls because they are relevant to the
reasonableness of the testing protocols that H.N. was punished for not following.
However, the District did not formulate the protocols that it adopted, and the recalls of
the tests, one of which occurred in April 2022 after adoption of the protocols, shed no
light on the reasonableness of either the decision to adopt the protocols or
implementation of that decision.
Consequently, we conclude that the trial court did not abuse its discretion either in
excluding evidence or in denying judicial notice.
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C. .Governmental Immunity
Turning to the merits, we first consider governmental immunity. The trial court
held that three of the Defendants—the District, Superintendent Krause, and Principal
Wahl—were immune to H.N.’s claims as a matter of law under two sets of provisions:
(1) the general immunity of public employees for discretionary decisions under section
820.2 and the related immunity for their employers under section 815.2; and (2) the
specific immunity for public health efforts to control the communication of disease under
section 855.4. H.N argues that these rulings were erroneous, among other things, because
the defendants in question did not draft the policies they enforced and therefore did not
exercise discretion protected by the immunity statute, and also because the CDPH
guidance followed was improperly issued and not binding. We need not reach these
arguments because under section 855.4, even when carrying out plans to prevent the
communication of disease formulated by others, public entities and employees are
immune from liability so long as they act with due care, and H.N. has failed to raise a
triable issue whether the District, the superintendent, and the principal failed to exercise
due care.
Section 855.4 confers two types of immunity. First, the section confers absolute
immunity upon public entities and public employees exercising discretionary authority to
control the communication of disease: “Neither a public entity nor a public employee is
liable for an injury resulting from the decision to perform or not to perform any act to
promote the public health of the community by preventing disease or controlling the
communication of disease within the community if the decision whether the act was or
was not to be performed was the result of the exercise of discretion vested in the public
entity or the public employee, whether or not such discretion be abused.” (§ 855.4,
subd. (a).) Second, section 855.4 confers qualified immunity upon public entities and
public employees carrying out discretionary decisions concerning the control of the
communication of disease so long as they act with due care: “Neither a public entity nor
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a public employee is liable for an injury caused by an act or omission in carrying out with
due care a decision described in subdivision (a).” (Id., § 855.4, subd. (b).)
H.N. does not dispute that, in performing the actions he challenges, the District,
the superintendent, and the principal were carrying out decisions concerning control of
the communication of COVID-19 and therefore protected by qualified immunity under
subdivision (b) of section 855.4. (See Allos v. Poway Unified School Dist. (2025) 112
Cal.App.5th 822, 834-835 [school district immune under section 855.4 for decisions
regarding COVID-19 protocols].) To the contrary, H.N. asserts that he presented
evidence that the defendants were “carrying out directives and mandates imposed by the
CDPH and the County Office of Education,” and that each of the acts that he challenges
was “a ministerial or operational implementation of broader health guidance” or “rote
enforcement of externally mandated guidelines.”
Instead, H.N. argues that he presented evidence raising a triable issue whether the
District, the superintendent, and the principal acted with due care. In particular, H.N.
asserts that “[t]he acts complained of—namely, the prolonged isolation of a six-year-old
child in a shuttered ‘storage room,’ his exclusion from academic instruction, his
subjection to unfamiliar substitutes, and his segregation from his peers—bore all the
indicia of arbitrary, punitive conduct, not acts of due care.” However, the only evidence
that H.N. cites in support of this assertion is a paragraph from his declaration and the
declaration from his therapist. This evidence is insufficient. First, as noted above, the
therapist’s declaration, which the trial court excluded, was not included in the record on
appeal and therefore cannot be considered. (Jameson, supra, 5 Cal.5th at p. 609.)
Second, while H.N.’s declaration states that he was placed in an abandoned classroom
used for storage with a substitute, that he was not allowed to eat or play with his friends,
and that he was forced to run laps during recess, he fails to explain how that evidence
shows that defendants did not implement COVID-19 protocols with due care.
15
Such cursory argument cannot establish reversible error. As noted above, “a trial
court judgment is ordinarily presumed to be correct and the burden is on an appellant to
demonstrate . . . that the trial court committed an error that justifies reversal of the
judgment.” (Jameson, supra, 5 Cal.5th at p. 609.) In addition, the California Rules of
Court “expressly require appellate briefs to ‘[s]tate each point . . . and support each point
by argument and, if possible, by citation of authority’ and to ‘[s]upport any reference to a
matter in the record by a citation to the volume and page number of the record where the
matter appears.’ ” (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620.) Consequently,
where, as here, a party fails to support a point with reasoned argument or authority, that
point is deemed forfeited or abandoned. (See Phoenix, 47 Cal.4th at p. 845; see also
Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075 (Delta Stewardship)
[“When an appellant . . . fails to support [a point] with reasoned argument and citations to
authority, we treat the point as forfeited.”]; In re S.C. (2006) 138 Cal.App.4th 396, 408
(S.C.) [“To demonstrate error, appellant must present meaningful legal analysis supported
by citations to authority and citations to facts in the record that support the claim of
error.”].)
We therefore conclude that governmental immunity under section 855.4,
subdivision (b) protects the District, Superintendent Krause, and Principal Wahl, H.N has
failed to demonstrate any triable issue concerning due care, and therefore the District, the
superintendent, and the principal are entitled to judgment as a matter of law on the claims
against them.
D. Individual Claims
We now turn to H.N.’s individual claims, which were asserted against his teacher
Gelter as well as the principal, the superintendent, and (with one exception) the District.
1. False Imprisonment
H.N.’s first claim was for false imprisonment. The trial court granted summary
judgment to Defendants on this claim, reasoning that Defendants had a lawful privilege to
16
segregate H.N. when he came to school without complying with masking and testing
requirements. H.N. argues that he presented evidence raising a triable issue concerning
the lawfulness of his confinement. As explained below, we disagree.
False imprisonment has three elements: “(1) the nonconsensual, intentional
confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of
time, however brief.” (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496
(Easton).) Thus, confining a person to a particular place is not false imprisonment unless
the confinement was without lawful privilege, that is, “ ‘without valid legal authority.’ ”
(Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757; see, e.g., Easton, at p. 496
[finding lawful privilege for removal to hospital based on statute authorizing protective
custody].) As the Supreme Court has recognized, because “ ‘[a] proper educational
environment requires close supervision of schoolchildren,’ ” public schools exercise
“ ‘custodial and tutelary’ ” power over their students. (Vernonia School Dist. 47J v.
Acton (1995) 515 U.S. 646, 655.) This power gives schools a “ ‘degree of physical
control . . . to maintain order, protect property, or protect the health and safety of
pupils,’ ” which authorizes schools to tell students “to remain in or leave a classroom” or
“to go to a particular classroom.” (In re Randy G. (2001) 26 Cal.4th 556, 563.)
The acts about which H.N. complains—confining him in an unused classroom
being used as “storage space,” denying him instruction, and forcing him to eat and
exercise alone—fall squarely within the recognized authority of schools to supervise
students and determine their location on campus. Citing People v. Apo (1972) 25
Cal.App.3d 790 (Apo), H.N. contends that this authority does not extend to acts “unde
rtaken in a punitive, unreasonable, or unlawful manner.” However, in Apo, kidnapping
charges were brought against college students who marched the director of athletics, a
professor, and an administrator into a building and held them there for hours. (Id. at
pp. 793-795.) As a consequence, it sheds no light on the authority of an elementary
school to determine where to place a student.
17
In his reply brief, H.N. also asserts that Defendants exceeded their lawful privilege
by not individually assessing him for health risk. However, the case he cites—Abella v.
Riverside Unified School District (1976) 65 Cal.App.3d 153—concerned an exemption
from the state’s compulsory education requirements (id. at p. 157), not a false
imprisonment claim, and is inapposite—as are his citations to In re Gault (1967) 387
U.S. 1, concerning due process rights, and Tinker v. Des Moines Independent Community
School District (1969) 393 U.S. 503, concerning freedom of expression.
Even more important, H.N. fails to explain how Defendants acted in a punitive,
unreasonable, or unlawful manner. Although H.N. asserted at oral argument that he was
placed in a storage closet, he acknowledged in his declaration that in fact he was placed
in a classroom that was being used to store various items. Moreover, Defendants
presented uncontroverted photographic evidence of the classroom in question, which
shows a spacious, fully furnished classroom with tables, chairs, bookshelves,
whiteboards, posters, and a brightly colored mat. No reasonable jury could find that
confinement to such a classroom was punitive or unreasonable. Moreover, while H.N.
asserts that it was unreasonable to isolate him in this room with a substitute, he does not
offer any meaningful legal analysis or authority in support for this assertion, which
therefore fails to show any reversible error. (Phoenix, supra, 47 Cal.4th at p. 845; Delta
Stewardship, supra, 48 Cal.App.5th at p. 1075; S.C., supra, 138 Cal.App.4th at p. 408.)
H.N.’s averment that the substitute teacher or teachers provided him in the unused
classroom failed to teach him anything is troubling. However, H.N. has not explained
how the failure to teach him raises a triable issue concerning whether Defendants had a
lawful privilege to place him in the unused classroom.
We therefore conclude that H.N. failed to raise a triable issue concerning false
imprisonment and Defendants are entitled to judgment as a matter of law on that claim.
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2. Negligence
In addition to contending that the trial court erred in entering summary judgment
on his false imprisonment claim, H.N. contends that the court erred in finding no triable
issue concerning breach in connection with his negligence claim. Relying once again on
the declaration from his therapist, H.N. asserts that it was “psychologically damaging and
developmentally inappropriate” to place him in an unused classroom filled with stacked
furniture and cleaning supplies, blinds drawn, and no meaningful instruction and forcing
him to eat and exercise alone. This argument fails because, as noted above, the
therapist’s declaration was excluded and not included in the record on appeal.
In addition, while, as noted above, H.N.’s accusation that he did not receive
meaningful instruction is troubling, Defendants presented uncontroverted evidence that
the District retained substitute teachers “to provide . . . education to Plaintiff,” and that
his regular teacher prepared work packets, which H.N. acknowledged that he received.
Moreover, H.N. failed to offer any evidence that Defendants breached any applicable
standard of care by failing to recognize that the substitutes were not teaching H.N.
Indeed, H.N. did not even present any argument or authority suggesting that public
schools have an actionable duty to provide adequate instruction, which is by no means
clear. (See Campaign for Quality Education v. State of California (2016) 246
Cal.App.4th 896, 906 [no judicially enforceable right under the California Constitution to
an “education of some quality”]; Keech v. Berkeley Unified School Dist. (1984) 162
Cal.App.3d 464, 468 [no common law duty to provide general education services]; Peter
W. v. San Francisco Unified School Dist. (1976) 60 Cal.App.3d 814, 817-825 [no
actionable duty to instruct under Rowland v. Christian (1968) 69 Cal.2d 108].)
H.N. also asserts that Defendants provided a damaging and inappropriate
environment based on two decisions. Neither supports H.N. One decision held that a
school owed a duty to protect a special education student from sexual assault at the
school prior to the beginning of class. (See M.W. v. Panama Buena Vista Union School
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Dist. (2003) 110 Cal.App.4th 508, 511.) The other decision held that a school had a duty
to protect a “special needs” student from assault by other students and that the student
had raised a triable issue whether the school breached that duty. (Jennifer C. v. Los
Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1326-1333.) Neither
decision sheds light on whether Defendants provided a damaging or inappropriate
environment to H.N. or in any way suggests that there is a triable issue concerning
negligence. In his reply, H.N. asserts for the first time that the District could have
considered alternative accommodations such as outdoor instruction, plexiglass barriers,
or remote learning support. However, we do not consider arguments raised for the first
time on reply. (See, e.g., Allen v. Sacramento (2015) 234 Cal.App.4th 41, 52.)
Finally, H.N. asserts that Defendants were negligent in excluding him from an
after-school program and leaving him alone at the pickup curb. Citing Patterson v.
Sacramento City Unified School District (2007) 155 Cal.App.4th 821 (Patterson), H.N.
asserts that “[s]uch a lapse constitutes a patent failure of supervision.” However,
Patterson did not involve supervision of school children: Quite the contrary, it held that
a school district offering an adult truck driver training course owed the students a duty to
instruct the students on the proper technique for loading and unloading flatbed trucks and
trailers. (Id. at pp. 828-829.) H.N. does not explain how that decision suggests any
negligence in this case. In addition, his unexplained assertion that there was a “patent
failure of supervision” provides no basis for overturning the trial court’s decision. (See,
e.g., Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 [“conclusionary assertions are
wholly inadequate to tender a basis for relief on appeal”].)
Accordingly, we conclude that summary judgment was properly entered on H.N.’s
negligence claim.
3. Intentional Infliction of Emotional Distress
In addition to claiming false imprisonment and negligence, H.N. claimed
intentional infliction of emotional distress. To prove a claim for intentional infliction of
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emotional distress, a defendant must establish three elements: “(1) extreme and
outrageous conduct . . . with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) . . . severe or extreme emotional distress;
and (3) actual and proximate causation of the emotional distress by the . . . outrageous
conduct.” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229
(Miller).) The trial court ruled that H.N. failed to raise a triable issue concerning
intentional infliction of emotional distress because he failed to present evidence of
extreme and outrageous conduct. H.N contends that he presented evidence of three
separate instances of extreme and outrageous conduct. As explained below, here again,
we disagree.
a. Isolation
H.N. contends that H.N.’s “repeated isolation and solitude” for three days in late
January and early February 2022 and for 12 more days in late February and early
March 2022 qualifies as outrageous conduct. However, for purposes of a claim for
intentional infliction of emotional distress, outrageous conduct is conduct “so extreme as
to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v.
City of Westminster (1982) 32 Cal.3d 197, 209.) Such conduct must be “ ‘of a nature
which is especially calculated to cause, and does cause, mental distress of a very serious
kind.’ ” (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5.) Other than once
again citing to the declaration of H.N.’s therapist that was excluded by the trial court and
not included in the record on appeal, H.N. offers no reason why placement of H.N. in an
unused classroom with a substitute was so extreme as to exceed all bounds of what is
usually tolerated in civilized society, especially as Principal Wahl offered to allow H.N.
to stay home instead.
b. The “End This Nonsense” Sign
H.N. also contends that Defendants engaged in outrageous conduct when they
confiscated his protest sign. In support of this contention, H.N. cites two paragraphs
21
from his declaration and a page from the deposition of his teacher Gelter. However, one
of the cited declaration paragraphs does not concern the protest sign, and the other merely
states that, when he held up a sign saying “End this Nonsense,” his teacher grabbed it out
of his hand and sent him to the office. Moreover, in her deposition, the teacher said that
she did not take the sign and send H.N. to the office until the whistle had blown and the
students were lining up to go back to the classroom. Even viewing this evidence in the
light most favorable to H.N., this conduct was not so extreme as to exceed all bounds
tolerated in civilized society. In addition, H.N. fails to offer any reasoned argument or
authority to the contrary and thus has forfeited or abandoned this issue. (Phoenix, supra,
47 Cal.4th at p. 845; Delta Stewardship, supra, 48 Cal.App.5th at p. 1075; S.C., supra,
138 Cal.App.4th at p. 408.)
Finally, H.N. asserts that “his attempts to speak about the manner in which the
school had treated him were met with reprimand.” However, H.N. does not cite any
evidence in support of this assertion, and he once again fails to offer any reasoned
argument or authority in support of his contention that such conduct qualifies as
outrageous.
c. Contacts with the Police and Child Protective Services
Finally, H.N. contends that it was outrageous for Defendants to use law
enforcement and child protective services to coerce him. However, the evidence cited by
H.N. does not show that Defendants actually called child protective services: Instead, it
shows that the District considered contacting child protective services but decided not to
do so. H.N. does point to deposition testimony by Superintendent Krause that the District
called the police concerning H.N.’s father. However, Krause testified that this call
occurred in September 2022, and there is no evidence that this contact was ever
communicated to H.N., much less that he suffered emotional distress as a result of it. As
a consequence, there is no evidence that this conduct was intended to cause emotional
distress, much less that it did so, and therefore the conduct does not raise a triable issue
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concerning either the first or third elements of a claim for intentional infliction of
emotional distress. (Miller, supra, 15 Cal.App.5th at pp. 228-229.)
We therefore conclude that summary judgment for Defendants was properly
entered on H.N.’s claim for intentional infliction of emotional distress.
4. Bane Act
The trial court granted summary judgment on H.N.’s claim under the Bane Act
(Civil Code § 52.1) for much the same reason as the intentional infliction of emotional
distress claim: H.N. failed to present evidence of the conduct required for such a claim.
While the Bane Act does not require extreme and outrageous conduct, it requires
intentional interference or attempted interference with a legal or constitutional right “ ‘by
threats, intimidation or coercion.’ ” (Wiley v. Kern High School Dist. (2024) 107
Cal.App.5th 765, 774; see also Civ. Code, § 52.1, subd. (a) [authorizing civil action if a
person “interferes by threat, intimidation, or coercion, or attempts to interfere by threat,
intimidation, or coercion” with the exercise or enjoyment of constitutional rights].) Here
again, H.N. contends that he raised a triable issue based on evidence of communications
with the police, consideration of contacting child protective services, and confiscation of
H.N.’s sign. And, here again, we disagree.
In contending that Defendants interfered with his rights by threat, intimidation, or
coercion, H.N. notes that “Superintendent Krause herself communicated directly with the
Scotts Valley Chief of Police.” However, this evidence merely shows that Krause told
the police chief that H.N.’s father was making threats, including to record the principal
sending his child home for refusing testing. Moreover, H.N. fails to explain how this
evidence suggests that Defendants intended to interfere or attempt to interfere with
H.N.’s exercise of constitutional rights. Instead, H.N. asserts that “[s]uch an act . . . is
inherently intimidating” without explanation or authority, which, as noted above, is
insufficient on appeal. (Phoenix, supra, 47 Cal.4th at p. 845; Delta Stewardship, supra,
48 Cal.App.5th at p. 1075; S.C., supra, 138 Cal.App.4th at p. 408.)
23
H.N. also asserts that his father was stopped by a police officer who drew a gun
and pointed it at him. However, according to the evidence that H.N. cites, this incident
occurred in March 2023, long after any of the other incidents alleged in the complaint.
Moreover, while H.N.’s father asserted in a declaration that “I believe that this . . . was a
result of the communication between Tanya Krause and Chief Walpole in their efforts to
weaponize the agents of the state against me under the color of the law,” he failed to offer
any foundation for that belief, which is presumably one of the reasons why the trial court
excluded this portion of the declaration.
In addition to pointing to Superintendent Krause’s communications with the Chief
of Police, H.N. notes that the superintendent spoke with county officials about contacting
child protective services. However, as discussed above, there is no evidence that
Defendants actually contacted child protective services. Nor is there any evidence that
H.N. or his family were told that such a contact might be made. As a consequence, the
evidence that the superintendent considered contacting child protective services does not
raise any triable issue concerning threats, intimidation, or coercion by Defendants.
Finally, H.N. asserts that “suppression of H.N.’s speech through confiscation of
his sign and disciplinary removal (making him ‘sad and a little scared’) was itself
coercive” as was the “pattern of escalation” of “retaliatory punishment for exercising first
amendment rights.” Because H.N. offers no argument or authority in support of this
assertion, it fails to demonstrate any error. (Phoenix, supra, 47 Cal.4th at p. 845; Delta
Stewardship, supra, 48 Cal.App.5th at p. 1075; S.C., supra, 138 Cal.App.4th at p. 408.)
Accordingly, we conclude that summary judgment for Defendants was properly
entered on H.N.’s Bane Act claim.
5. Constitutional Claims
H.N.’s final claim is that Superintendent Krause, Principal Wahl, and his teacher
Gelter violated his rights under the First and Fourteenth Amendments to the United States
Constitution; Article I, section 2(a) of the California Constitution; and Education Code
24
section 48907, subdivision (a). In granting summary judgment on this claim, the trial
court noted that H.N. had not argued in his opposition brief that there was any triable
issue concerning such violations; instead, he argued that the CDPH guidelines followed
by the District were not binding because the department had not followed the APA
(§ 11340 et seq.) in promulgating the guidelines. The trial court rejected this argument
on the ground that the Governor had suspended the APA with respect to COVID-19
regulations pursuant to the Emergency Services Act (§ 8850 et seq.).
On appeal, H.N. does not challenge this ruling. Instead, he argues that Defendants
violated, among other things, his right to free expression under the First Amendment to
the United States Constitution, his Fourteenth Amendment rights to due process and
equal protections, and Education Code section 48907 as well as what he asserts is the
right to “in-person” education under the California Constitution. Because these
arguments were not raised in the trial court, we deem them forfeited. (See, e.g., Hewlett-
Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [“ ‘ “As a general rule,
theories not raised in the trial court cannot be asserted for the first time on
appeal . . . .” ’ ”]; see also Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879,
899 [“ ‘we have an obligation to avoid deciding constitutional questions unless it is
absolutely necessary to do so’ ”].)
We therefore conclude that summary judgment for Defendants was properly
granted on H.N.’s constitutional claims as well as his other claims.
III. DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
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____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
GREENWOOD, P. J.
____________________________________
DANNER, J.
H.N. v. Scotts Valley Unified School District et al.
H052568