The opinion
Filed 2/24/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VANNDRYA JASON SROUY, D078411
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00010704-CU-NP-CTL)
SAN DIEGO UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Eddie Sturgeon, Judge. Affirmed.
Law Office of Michael J. Kielty and Michael J. Kielty for Plaintiff and
Appellant.
Higgs Fletcher & Mack, John Morris, Steven J. Cologne, Susan M.
Hack, Jacob T. Spaid and Rachel M. Garrard for Defendant and Respondent.
INTRODUCTION
Vanndrya Jason Srouy is a graduate of Crawford High School
(Crawford) in the San Diego Unified School District (the District). While a
student at Crawford, he was a member of its varsity football team. After
Srouy graduated, he found himself named as a co-defendant in a lawsuit filed
by a football referee, John Herlich, who claimed to have been injured when
Srouy blocked an opponent, who fell into Herlich, during a school football
game. (John Herlich v. Jason Srouy, et al., San Diego Superior Court Case
No. 37-2016-00032867-CU-PO-CTL) (the Herlich lawsuit).) The other
defendant, the District, rejected Srouy’s tender of his defense in the Herlich
lawsuit.
Srouy then filed the instant action against the District, claiming the
District violated a mandatory duty to defend him in the Herlich lawsuit.
Srouy alleges this duty arose under the free school guarantee and the equal
protection clause of the California Constitution; title 5, section 350 of the
California Code of Regulations; and/or Education Code section 44808. The
trial court granted the District’s demurrer without leave to amend and
dismissed Srouy’s operative complaint. We are compelled to affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Factual Background
The allegations of Srouy’s operative second amended complaint (SAC)
describe the Herlich lawsuit in detail. The SAC also attaches and
incorporates by reference a number of exhibits. 1 Because this appeal is
1 These exhibits are: the Herlich complaint, together with a claim form
that Herlich submitted to the District as part of the prelitigation process, and
the District’s denial of that claim; a statement of damages filed in the Herlich
lawsuit; a declaration filed by the District in support of a motion for summary
judgment in the Herlich lawsuit; a minute order in the Herlich lawsuit in
which the trial court granted Srouy relief from entry of default; and a claim
form that Srouy submitted to the District as part of the prelitigation process,
together with a letter from the District’s lawyers rejecting Srouy’s tender of
his defense in the Herlich lawsuit, a declaration filed by Srouy in support of
2
taken from a ruling sustaining a demurrer, we assume the truth of these
allegations to the extent they are properly pleaded. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).) “We also assume the numerous attachments to
the [SAC] are true, and they take precedence over any conflicting
allegations.” (Nede Mgmt. Inc. v. Aspen American Ins. Co. (2021) 68
Cal.App.5th 1121, 1127.) The following factual summary is derived from the
SAC.
A. The Injury to Herlich
Srouy graduated from Crawford in June 2016. Before graduating, he
was a member of Crawford’s varsity football team. He earned physical
education class credit for attending and participating in football team
practices and games, and was “given instruction, training and direction by
the coaches,” who were District employees, “as to what to do, and what his
assignment was on each play.”
At the time of the 2015 football season, Srouy was a high school senior
and had not yet turned 18 years old. On October 16, 2015, Srouy played in a
football game that pitted Crawford against Holtville High School (Holtville).
Because the Crawford football field was unavailable, the game was held at
Lincoln High School, which is also operated by the District. The Crawford
football team was transported to and from Lincoln High School in District
buses.
During the game, Crawford football coaches called a play in which
Srouy was assigned to block an opposing player. Srouy alleges that during
the play, he blocked the opposing player, “who then fell onto the back of [a
referee’s] legs,” injuring the referee, Herlich. Srouy was flagged for a late hit
his motion for relief from default in the Herlich lawsuit, and the District’s
denial of Srouy’s prelitigation claim.
3
by a different referee. However, during a team meeting the next day, “while
reviewing the game film,” Crawford’s head coach “said that he did not think
that it was a late hit, and that [Srouy] had done nothing wrong.”
B. The Herlich Lawsuit
On March 11, 2016, Herlich filed a two-page claim form with the
District. He stated he was an independent contractor for the San Diego
County Football Officials Association, which provides officials for District
sporting events. He claimed a Crawford player whom Crawford coaches
knew to have a pattern of unsportsmanlike conduct had hit him intentionally
during the October 16, 2015 game, and as a result of the hit, he had
sustained “tibia/fibula fractures requiring multiple surgeries” and “rotator
cuff injuries” that also required surgery. He sought damages in excess of
$25,000. On April 22, 2016, the District denied the claim.
On September 21, 2016, Herlich filed a complaint in superior court
against Srouy and the District. The complaint contained two causes of
action. In support of the first cause of action, which was asserted against
Srouy,2 Herlich alleged that Srouy “had a custom and practice of
2 Because we are not sitting in review of the Herlich lawsuit and are not
in possession of the full record from that case, we are not in a position to
comment on its merits. However, we find it helpful to review certain legal
principles that may explain how a high school football player could come to
find himself named in a civil suit filed by a referee. Participants in a sport
may be held liable for injuries arising from their conduct during a play, if the
conduct falls “ ‘outside the range of the ordinary activity involved in the
sport.’ ” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165
(Avila).) And although Srouy was a minor at the time Herlich was injured,
his minority did not shield him from suit. (Fam. Code, § 6600 [“A minor is
civilly liable for a wrong done by the minor, but is not liable in exemplary
damages unless at the time of the act the minor was capable of knowing that
the act was wrongful.”].) Based on an annotation collecting suits related to
claims of injury to or death of an umpire, referee, or judge of a game or
4
unsportsmanlike conduct, including the practice of engaging in late and
improper hits, defined as forceful bodily contact after the play has been called
dead.” He further alleged that during the October 16, 2015 game, after the
end of a play, Srouy “intentionally, deliberately, negligently and/or carelessly
hit an unidentified Holtville player pushing the Holtville player into the back
of [Herlich’s] legs, causing [Herlich] to fall and sustain serious injuries and
damages.”
In support of the second cause of action, asserted against the District,
Herlich alleged the District “sponsored, organized, ran and otherwise
controlled” the Crawford sports program, including its football team, and had
agreed to be bound by the National Federation of State High School
Associations (NFHS) football rules, “which prohibit illegal personal contact
under Rule 9-4.” He further alleged that Crawford coaches knew or should
have known that Srouy “had a custom and practice of engaging in
unsportsmanlike conduct” and “despite such knowledge, sanctioned,
authorized and encouraged” Srouy to play in this manner, “including
engaging in late and improper hits in violation of Rule 9-4.” Herlich alleged
that Crawford’s coaches “should have benched” Srouy “or otherwise restricted
his play,” and that as a result of their failure to do so, Srouy “engaged in
illegal personal contact with a Holtville player by charging or throwing the
Holtville player into and on top of [Herlich] after the ball was dead,” injuring
Herlich. In his statement of damages, Herlich claimed his general damages
totaled $750,000, and his special damages totaled $250,000.
contest, such suits appear to be relatively rare. (Annot., Liability for injury
to or death of umpire, referee, or judge of game or contest (1966) 10 A.L.R.3d
446.)
5
By the time the Herlich lawsuit was filed, Srouy had graduated from
Crawford. The Herlich complaint was served at Srouy’s mother’s house while
Srouy was out of town. Srouy’s mother is a refugee from Cambodia who
“speaks and reads limited English” and, due to her experiences under the Pol
Pot regime, is “cautious” when speaking to “anyone in authority.” For his
part, Srouy had “no experience with litigation or courts,” spoke Khmer at
home, and struggled with spoken English. When Srouy returned to San
Diego and saw the legal papers, he saw that his “name was on a lawsuit” but
otherwise did not understand what the papers meant.
Srouy and his mother went to see Crawford’s athletic director, Kelcie
Butcher, to ask what to do. According to Srouy, Butcher said Srouy “should
try and talk to an attorney,” but also told Srouy “not to worry because
[Herlich] was not really after [Srouy,] he was after the school district because
they had money” and that “the school district’s attorneys will take care of it.”
From this conversation, Srouy believed the District’s attorneys “would be
representing [him].” He thus took no further action and waited for the next
court date of April 21, 2017, which was a “date on the paperwork” he had
received.
On April 11, 2017, the attorney representing Herlich filed a request for
entry of default against Srouy seeking “an amount in excess of one million
dollars.” Srouy appeared in superior court with family members, but without
an attorney, at the April 21 hearing, which was an initial case management
conference. Although he stood alongside the attorneys representing Herlich
and the District, the attorneys did not bother to tell Srouy that a default had
been entered against him.
More than 10 months later, Srouy received a notice of deposition,
served by the District, requiring him to appear for his videotaped deposition
6
on February 12, 2018. Srouy complied. While the attorneys were making
their introductions, Srouy stated that he believed he was being represented
by counsel for the District. He learned for the first time that he was not. The
deposition was then adjourned so Srouy could “find and hire his own counsel.”
Srouy contacted the San Diego County Bar Association’s Lawyer
Referral and Information Service, and then reached out to attorney Michael
J. Kielty, who “agreed to assist and represent [Srouy].” Kielty appeared with
Srouy at his rescheduled deposition. Kielty also tendered Srouy’s defense to
the District. On March 19, 2018, the District, through its outside counsel,
rejected the tender.
Kielty also pressed Herlich’s attorney to agree to set aside the default
entered against Srouy. On March 24, 2018, Herlich’s counsel stated he “did
not have his client’s authority” to set aside the default. Kielty then filed a
noticed motion seeking judicial relief from the default. Superior Court Judge
John S. Meyer found the equities favored Srouy and set aside the default on
the basis of extrinsic mistake. In doing so, Judge Meyer noted Srouy’s
difficulty with English and inexperience with courts, and observed that
although Srouy “may have misunderstood Ms. Butcher” during their
conversation about the Herlich lawsuit, “his reliance on what he understood
is not unreasonable under these circumstances.”
During the course of the Herlich lawsuit, the District moved for
summary judgment, unsuccessfully. In support of this motion, the District
filed a declaration from Butcher, which Srouy attached to the SAC in this
case. In this declaration, Butcher averred that before the October 16, 2015
game, “Mr. Srouy had never been accused of unsportsmanlike conduct,
including late or improper hits, while a member of the Crawford football
team.” (Emphasis in original.) She further averred: “At the time of the
7
incident, Mr. Srouy was an undersized senior wide receiver who did not play
every play. He only recorded one catch the whole 2015 season. [¶] . . .
During the Holtville game, Mr. Srouy’s primary duty was to block defensive
players from reaching Crawford High School’s running backs. Plaintiff’s
claim arises from a run play where Mr. Srouy was performing blocking
support and Crawford was on offense. Mr. Srouy initiated a block on a
Holtville defender and the impact caused the Holtville player to fall onto
Plaintiff. [¶] . . . Crawford High School coaching staff and I determined that
Mr. Srouy’s block on a Holtville player who fell onto Plaintiff was not
conducted intentionally or maliciously.”
On December 3, 2018, shortly before trial, Herlich agreed to dismiss
Srouy from the case “in exchange for an agreement to waive costs against Mr.
Herlich.” On December 10, 2018, the case proceeded to a jury trial on
Herlich’s remaining cause of action against the District. After counsel gave
their opening statements, Herlich and the District settled for $50,000.
II.
Procedural Background
A. The Underlying Complaint
On August 22, 2018, Srouy filed a two-page claim form with the
District seeking recovery of legal fees in his defense in the Herlich lawsuit,
which he stated were “currently in excess of $50,000.” 3 In the claim form,
Srouy stated that District employees, including Butcher, had failed to inform
him of the potential financial risks associated with playing football for
Crawford. He described the event underlying his claim as the District’s
3 In his opening brief on appeal, Srouy states that by the time he was
dismissed from the Herlich lawsuit, the total amount of his legal fees and
costs exceeded $129,000.
8
March 19 rejection of his tender of defense. On August 29, the District
denied Srouy’s claim.
On February 27, 2019, Srouy filed the instant suit against the District,
alleging the District acted wrongfully when it refused to defend him in the
Herlich lawsuit. Srouy sought recovery of the legal fees and costs he incurred
defending himself from that case.
In his original complaint, Srouy asserted causes of action for
negligence, fraud, and implied indemnity. He alleged the District had
negligently “failed to protect it[s] student athlete players from financial and
legal harm by failing to purchas[e] appropriate insurance to defend” against
lawsuits arising from “activities on the playing field.” He further alleged
Crawford football coaches and administrators had fraudulently withheld
their knowledge that the District had a policy of not defending students in
lawsuits arising from high school activities. In support of the implied
indemnity cause of action, Srouy alleged he had been “controlled by
[Crawford] coaching staff” during the play that injured Herlich, and as a
result, the District was obligated to defend Srouy when Herlich sued.
However, Srouy did not identify a statutory basis for the District’s alleged
liability under any of these theories.
B. The First Amended Complaint
After conferring with counsel for the District, Srouy filed a first
amended complaint (FAC). The FAC asserted just two causes of action:
negligence and negligent supervision. It alleged the District had agreed to
abide by the California Interscholastic Federation (CIF) Constitution and
Bylaws, and that the CIF Constitution and Bylaws contained provisions that
imposed certain duties on the District that were “mandatory duties” within
9
the meaning of Government Code section 815.6.4 The relevant provisions
required the District to comport itself with “ ‘scrupulous integrity,’ ” and
required Crawford’s coaches and athletic director to “ ‘provide safeguards for
the welfare of participating athletes.’ ” Srouy alleged the District had
breached the “spirit” of these provisions by failing to defend him in the
Herlich lawsuit, and that Crawford’s coaches and athletic director had
likewise breached these provisions by failing to inform him the District would
not provide him with a legal defense in the event of a lawsuit.
The District demurred to the FAC. It argued, among other things, that
the CIF Constitution and Bylaws were not an “ ‘enactment’ ” within the
meaning of Government Code section 815.6, and did not impose a mandatory
duty to provide a legal defense to students or to warn students of a purported
policy not to provide a defense. The trial court agreed and sustained the
District’s demurrer with leave to amend.
C. The Second Amended Complaint
Srouy then filed the operative SAC. The SAC asserts three causes of
action: express indemnity, implied indemnity, and equitable indemnity. Its
factual allegations are similar to those of the earlier complaints, but they are
more extensive and more detailed. In place of the CIF Constitution and
Bylaws, the SAC relies on three new provisions as predicates for the
District’s alleged mandatory duty liability under Government Code section
815.6.
4 Government Code section 815.6 provides: “Where a public entity is
under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury, the public entity is liable for an
injury of that kind proximately caused by its failure to discharge the duty
unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.”
10
The first such provision is Education Code section 44808, which states:
“Notwithstanding any other provision of this code, no school district, city or
county board of education, county superintendent of schools, or any officer or
employee of such district or board shall be responsible or in any way liable for
the conduct or safety of any pupil of the public schools at any time when such
pupil is not on school property, unless such district, board, or person has
undertaken to provide transportation for such pupil to and from the school
premises, has undertaken a school–sponsored activity off the premises of
such school, has otherwise specifically assumed such responsibility or
liability or has failed to exercise reasonable care under the circumstances.
[¶] In the event of 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.” The SAC alleges the District violated
Education Code section 44808 by “failing to protect [his] safety and well being
[sic] . . . in connection with the aftermath of the October 16, 2015 football
game” and by “failing to insure the absence of financial injury to [Srouy] as a
result of the Herlich lawsuit.”
The second provision is article IX, section 5 of the California
Constitution, which states: “The Legislature shall provide for a system of
common schools by which a free school shall be kept up and supported in each
district at least six months in every year, after the first year in which a school
has been established.” Srouy alleges in the SAC that the guarantee of a free
school extends to ensuring a student does not incur legal fees and costs from
a lawsuit arising from an extracurricular activity for which the student
receives class credit.
11
The third provision is title 5, section 350, of the California Code of
Regulations, which states: “A pupil enrolled in a school shall not be required
to pay any fee, deposit, or other charge not specifically authorized by law.”
The SAC alleges the attorney fees and costs Srouy incurred in defending
against the Herlich lawsuit constituted a “ ‘charge not specifically authorized
by law’ ” that the District failed to prevent him from incurring.
In the prayer for relief in the SAC, Srouy requests, in addition to
general damages and costs of suit, a judgment declaring that the District is
under a duty to indemnify him “for the full amount of all fees, costs and
expenses incurred in [his] defense in the Herlich litigation.”
D. The District Demurs to the SAC
The District filed a demurrer to the SAC. It argued that none of the
provisions on which Srouy relied to hold it liable under Government Code
section 815.6 impose a mandatory duty to prevent a student from incurring
attorney fees and costs in the defense of a lawsuit. Srouy opposed the
demurrer but did not seek leave to amend.
The trial court issued a minute order granting the District’s demurrer
without leave to amend. The court found Srouy had not succeeded in
establishing that the District was under a mandatory duty to “protect or
indemnify [him] from incurring attorney fees.” The court reasoned that
incurring legal fees was not the type of harm that Education Code section
44808 was designed to prevent. The court further found that while article IX,
section 5 of the California Constitution, and title 5, section 350 of the
California Code of Regulations, prohibit schools from charging students fees
to enroll or participate in educational extracurricular activities, they did not
obligate schools to prevent students from being “required to pay [an] attorney
for fees incurred in representing [the student] in litigation outside of school.”
12
The trial court concluded Srouy had failed to allege sufficient facts to
constitute a cause of action against the District, and granted the demurrer
without leave to amend. The court later entered a judgment of dismissal,
from which Srouy timely appeals.
DISCUSSION
Srouy contends the trial court erred in sustaining the District’s
demurrer because the allegations of the SAC are sufficient to state a claim
based on the District’s violation of a mandatory duty to defend him in the
Herlich lawsuit.
“California follows what is commonly referred to as the American rule,
which provides that each party to a lawsuit must ordinarily pay his own
attorney fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278.) “Except as
attorney’s fees are specifically provided for by statute, the measure and mode
of compensation of attorneys and counselors at law is left to the agreement,
express or implied, of the parties[.]” (Code Civ. Proc., § 1021.)
Srouy effectively contends that three provisions—the free school
guarantee of article IX, section 5 of the California Constitution; title 5,
section 350 of the California Code of Regulations; and Education Code section
44808—create an exception to the American rule under which the District
has a mandatory duty to pay the attorney fees of a student sued by a third
party for an incident arising from the student’s participation in a school-
sponsored athletic game. We conclude these provisions did not impose a
mandatory duty on the District to defend Srouy from the Herlich lawsuit.
13
I.
Relevant Legal Principles
A. Standard of Review
“In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “And when it is sustained
without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Blank, supra, 39 Cal.3d at p. 318.)
B. Mandatory Duty Liability Under Government Code Section 815.6
“Except as otherwise provided by statute: [¶] . . . [a] public entity is not
liable for an injury, whether such injury arises out of an act or omission of the
public entity[.]” (Gov. Code, § 815, subd. (a).) Government Code section
815.6 is one of the statutory exceptions to this rule of governmental
immunity. It provides: “Where a public entity is under a mandatory duty
imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.” (Gov. Code, § 815.6.)
“ ‘[A]pplication of [Government Code] section 815.6 requires that the
enactment at issue be obligatory, rather than merely discretionary or
permissive, in its directions to the public entity; it must require, rather than
merely authorize or permit, that a particular action be taken or not taken.
14
[Citation.] It is not enough, moreover, that the public entity or officer have
been under an obligation to perform a function if the function itself involves
the exercise of discretion.’ ” (Guzman v. County of Monterey (2009) 46 Cal.4th
887, 898 (Guzman).) Courts construe this requirement “rather strictly,
finding a mandatory duty only if the enactment ‘affirmatively imposes the
duty and provides implementing guidelines.’ ” (Ibid.; see Clausing v. San
Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1240 (Clausing)
[“If rules and guidelines for the implementation of an alleged mandatory duty
are not set forth in an otherwise prohibitory statute, it cannot create a
mandatory duty.”].)
“[E]qually important, [Government Code] section 815.6 requires that
the mandatory duty be ‘designed’ to protect against the particular kind of
injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of
the consequences which the [enacting body] sought to prevent through
imposing the alleged mandatory duty.” ’ ” (Haggis v. City of Los Angeles
(2000) 22 Cal.4th 490, 499 (Haggis).) Finally, the breach of the duty must
have been a proximate cause of the plaintiff’s injury. (Guzman, supra, 46
Cal.4th at p. 898.)
“The question of whether an enactment is intended to impose a
mandatory duty on a public entity to protect against a particular kind of
injury is a question of law.” (Clausing, supra, 221 Cal.App.3d at p. 1239.)
Whether a statute provides for a mandatory award of attorney fees is
likewise a question of law subject to de novo review. (James L. Harris
Painting & Decorating, Inc. v. West Bay Builders, Inc. (2015) 239 Cal.App.4th
1214, 1218.)
15
II.
The Free School Guarantee of Article IX, Section 5 of the California
Constitution Did Not Create a Mandatory Duty on the Part of the District to
Defend Srouy in the Herlich Lawsuit
Since 1879, our state’s Constitution has included a free school
guarantee. (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2
Cal.4th 251, 260 (Arcadia).) Specifically, article IX, section 5 of the
California Constitution (article IX, section 5) provides, “The Legislature shall
provide for a system of common schools by which a free school shall be kept
up and supported in each district at least six months in every year, after the
first year in which a school has been established.” The free school guarantee
extends to “all educational activities⎯curricular or ‘extracurricular.’ ”
(Hartzell v. Connell (1984) 35 Cal.3d 899, 911 (Hartzell).)
Here, Srouy contends the District was required to ensure that his
participation on the Crawford varsity football team was “free,” and the
District violated this constitutional obligation when it failed to accept his
tender of defense in the Herlich lawsuit, thereby causing him to incur
substantial expenses attributable to his participation on the team. Although
no case has interpreted the free school guarantee to require a school district
to provide its students a free legal defense, Srouy contends this result is
compelled by the plain language of the guarantee, on the theory that “free
must mean free.”
At the outset, the parties dispute whether the free school guarantee of
article IX, section 5 is “mandatory” or “self-executing.” Srouy argues the free
school clause is both mandatory and self-executing, noting that under article
I, section 26 of the California Constitution, all provisions of our state
Constitution “are mandatory and prohibitory, unless by express words they
16
are declared to be otherwise.” (Italics added.) Srouy’s argument falls short,
however, because he overlooks that “ ‘[a] [constitutional] provision may be
mandatory without being self-executing.’ ” (Clausing, supra, 221 Cal.App.3d
at p. 1236, fn. 5.)
The District, on the other hand, argues that article IX, section 5 is not
mandatory or self-executing. However, the three cases on which it relies
either address this point in dicta, or are distinguishable. (People ex rel.
Beckwith v. Board of Education (1880) 55 Cal. 331, 334 [action for writ of
mandate directing school board to use a particular series of textbooks;
observing that “[s]everal portions of article [IX] are not self-executing; for
instance, § 5”]; Gonzales v. State of California (1972) 29 Cal.App.3d 585, 592
[holding the state was a distinct government entity from the school district
and was not liable for personal injuries incurred when plaintiff was stricken
by a bus driven by a school district employee; reasoning, in part, that there
was “no constitutional provision directing or authorizing the state to operate
school buses” and “[e]ven assuming the duty of the state to educate its
children encompasses their transportation to school, the constitutional
provisions imposing this duty are not self-executing”]; Campaign for Quality
Education v. State of California (2016) 246 Cal.App.4th 896, 902, 916
[holding that sections 1 and 5 of article IX of the California Constitution do
not provide a judicially-enforceable right to an education of “ ‘some quality’ ”
for all public school children].)
Not only are the parties’ arguments off the mark, but it is also unclear
what, precisely, each side is attempting to demonstrate, as neither side
explains what it means by “self-executing.” This term has more than one
possible meaning: it can refer to “ ‘the question whether a clause is judicially
enforceable at all,’ ” or it can refer to the question of whether the
17
constitutional provision in question “ ‘provides [for] rules or procedures by
which its declaration of rights is to be enforced, and, in particular, whether it
provides citizens with a specific remedy by way of damages for its violation in
the absence of legislation granting such a remedy.’ ” (Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 307 fn. 4.) As one appellate
court has explained, the “self-executing analysis differs depending upon the
relief sought.” (Bautista v. State of California (2011) 201 Cal.App.4th 716,
728.) The Katzberg court ultimately eschewed the “ ‘self-executing’
terminology” because it found the term “potentially confusing” in the context
of a constitutional claim seeking monetary recovery. (Katzberg, at p. 307,
fn. 4.) It promulgated a comprehensive test for “determining the existence of
a damages action to remedy an asserted constitutional violation” that entails
consideration of “the language and history of the constitutional provision . . .
as well as any pertinent common law history” and, if necessary, “the
‘constitutional tort’ analysis adopted by Bivens [v. Six Unknown Fed.
Narcotics Agents (1971) 403 U.S. 388] and its progeny.’” (Id. at p. 317; see Lu
v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 602 [describing the
Katzberg analysis as “exhaustive”].)
Ultimately, we find it unnecessary to determine whether or not the free
school guarantee is self-executing. Our high court has enforced the free
school guarantee, leaving little room for doubt that the guarantee is judicially
enforceable. (Hartzell, supra, 35 Cal.3d at pp. 911−913.) Even if we assume
the free school guarantee supports an individual right of action for monetary
recovery, we conclude Srouy cannot rely on it to hold the District liable for his
defense costs, because the free school guarantee was not designed to prevent
this kind of injury. (Haggis, supra, 22 Cal.4th at p. 499 [to support
mandatory duty liability, “[t]he plaintiff must show the injury is ‘ “one of the
18
consequences which the [enacting body] sought to prevent through imposing
the alleged mandatory duty” ’ ”].) As we explain, legal expenses like those
Srouy incurred in defending the Herlich lawsuit do not fall within the free
school guarantee, because they are not “ ‘educational’ in character.” (See
Hartzell, supra, 35 Cal.3d at p. 911; Arcadia, supra, 2 Cal.4th at p. 262.)
In Hartzell, our high court considered whether a school district violated
the free school clause when it imposed fees for participation in
extracurricular activities, including athletic teams, dramatic productions,
and music groups. (Hartzell, supra, 35 Cal.3d at p. 904.) The trial court
rejected the plaintiffs’ claims, primarily because the activities covered by the
fee program did not provide school credit. (Ibid.) Our high court rejected this
approach in favor of an analysis that relied on “the educational character of
the activities in question,” rather than the “formalities of credit.” (Id. at
p. 909.) Turning to the particular programs for which the district imposed
fees, the Court found they “constitute an integral component of public
education,” are “ ‘ “generally recognized as a fundamental ingredient of the
educational process,” ’ ” and teach “particular skills” in addition to
contributing to “ ‘the making of good citizens physically, mentally, and
morally.’ ” (Id. at pp. 909, 911.) The programs were thus “ ‘educational’ in
character,” leading to the conclusion that they were within the free school
guarantee. (Id. at p. 911, italics added.)
In Arcadia, our high court applied the “educational in character”
analysis to the question of whether an Education Code provision authorizing
school districts to charge students for transportation to and from school
violated the free school guarantee. The plaintiff argued that “school-provided
transportation, although not educational in character, is nonetheless covered
by Hartzell’s understanding of the free school guarantee because it is an
19
‘integral fundamental part of [ ] elementary and secondary education,’ or a
‘necessary element[ ] of any school’s activity.’ ” (Arcadia, supra, 2 Cal.4th at
p. 261.)
The Arcadia court found the plaintiff’s argument focused too narrowly
on select aspects of Hartzell’s reasoning. The Court explained that in
Hartzell, it looked at “whether an activity is an integral, fundamental part of
education or a necessary element of any school’s activity, specifically because
that approach focuses ‘upon the educational character of the activities in
question.’ ” (Arcadia, supra, 2 Cal.4th at p. 262.) “Although in Hartzell [the
high court] adopted a broad understanding of what activities are protected as
educational, [it] did not extend that expansive understanding of the free
school clause beyond the realm of educational activities to noneducational
supplemental services.” (Id. at pp. 262–263, italics added.) The Court
reasoned: “Students are not required to use the same means of
transportation as their classmates in order to get to school to receive an
education; individual students may choose different modes of transportation
to suit their own circumstances. Unlike textbooks or teachers’ salaries,
transportation is not an expense peculiar to education. Without doubt,
school-provided transportation may enhance or be useful to school activity,
but it is not a necessary element which each student must utilize or be denied
the opportunity to receive an education.” (Id. at pp. 263–264.) Because
transportation to and from school was noneducational, it was not
encompassed by the free school guarantee. (Id. at p. 263.)
Hartzell and Arcadia compel us to conclude the District was not under
a mandatory duty to provide Srouy a legal defense as part of the free school
guarantee. Although the Herlich lawsuit arose from an incident that
occurred during an extracurricular activity that itself qualified as
20
educational, the lawsuit was plainly not an educational activity. A civil suit
proceeds in a judicial forum, not an educational one, under its own distinct
statutes and rules. The student, in this context, is primarily a litigant; his
status as a student is relevant only insofar as he was a student at the time of
the underlying event.
And while a legal defense to such a suit is undoubtedly both “useful”
and “necessary” to the student with the misfortune of being sued, it “is not an
expense peculiar to education” and “is not a necessary element which each
student must utilize or be denied the opportunity to receive an education.”
(Arcadia, supra, 2 Cal.4th at p. 264.) The relationship between the ability to
fully participate in school on the one hand, and legal representation in a civil
personal injury suit on the other, is more attenuated than the relationship
between school transportation and the ability to fully participate in school. If
transportation to and from school is a “noneducational supplemental
service[ ]” (id. at p. 263), the provision of a legal defense, even to a suit
against a student seeking damages for an incident occurring during a school-
sponsored athletic game, is simply “noneducational” (Ibid).
We therefore conclude that a legal defense to a civil suit is not
“educational in character,” and it therefore falls outside the free school
guarantee.5 Accordingly, Srouy cannot state a claim against the District
5 Srouy relies on Bostock v. Clayton County (2020) 140 S.Ct. 1731 for the
general proposition that the plain terms of an unambiguous statute trump
any “extratextual consideration[s]” that might lead to a different meaning.
(Id. at p. 1749.) Essentially, Srouy contends that we should conclude, in
reliance on Bostock, that our state’s constitution guarantees an education
that is “free” in all respects, full stop. We decline Srouy’s invitation to reach
this conclusion in reliance on Bostock, which involved interpretation of the
statutory term “sex” in Title VII of the Civil Rights Act of 1964. Neither this
word nor this federal law is at issue here. (See, e.g., People v. Banks (1993) 6
Cal.4th 926, 945 [“It is well settled that language contained in a judicial
21
based on an alleged mandatory duty to provide him a defense to the Herlich
lawsuit under article IX, section 5.
III.
Title 5, Section 350 of the California Code of Regulations Did Not Create a
Mandatory Duty to Defend Srouy in the Herlich Lawsuit
Next, Srouy contends that he sufficiently stated a claim against the
District for violation of title 5, section 350 of the California Code of
Regulations (title 5, section 350), which provides: “A pupil enrolled in a
school shall not be required to pay any fee, deposit, or other charge not
specifically authorized by law.” Srouy argues the District’s refusal to defend
him in the Herlich lawsuit resulted in his incurring a prohibited “charge” for
participation in his school football team in the form of legal fees and costs.
We disagree that the “charge[s]” prohibited by title 5, section 350 can
be interpreted as extending to costs of litigation, even those incurred in a suit
arising from participation in a school sport. “A note appended to title 5,
section 350 cites article IX, section 5 of the Constitution (the ‘free school’
guarantee) as its specific basis of authority.” (Hartzell, supra, 35 Cal.3d at
p. 914.) For the same reasons the costs of defending a student against a civil
lawsuit do not fall within the free school guarantee, such costs cannot
reasonably be construed as a “charge” for participation in school athletics
within the meaning of this regulation.
In Hartzell, the Supreme Court described in detail the constructions
given this regulation by the Legislative Counsel and the Department of
opinion is ‘ “to be understood in the light of the facts and issue then before
the court, and an opinion is not authority for a proposition not therein
considered.” ’ ”].) The free school guarantee is a matter of state law on which
our Supreme Court’s jurisprudence in Hartzell and Arcadia is controlling.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
22
Education. (Hartzell, supra, 35 Cal.3d at pp. 913–914.) The Court noted that
title 5, section 350 had been construed as barring school districts from
“charging fees for educational extracurricular activities,” as prohibiting fees
for “musical instruments used in extracurricular band, special uniforms used
in extracurricular activities,” and as prohibiting fees “as a condition of
participation in ‘athletic or other activities’ sponsored by a school.” (Hartzell,
at pp. 913–914.) The fee incurred for obtaining legal representation in a civil
lawsuit is unlike any of the fees and charges that the Hartzell court identified
as prohibited by the regulation. Further, Srouy did not incur the legal costs
until after he had finished participating on the football team, at a time when
he was no longer “[a] pupil enrolled in a school.” (Cal. Code Regs., tit. 5,
§ 350.) It follows that the amounts Srouy was required to expend did not fall
within the scope of title 5, section 350.
Thus, we conclude the District did not have a mandatory duty to defend
Srouy in the Herlich lawsuit by virtue of this regulation.
IV.
Education Code Section 44808 Did Not Create a Mandatory Duty to Defend
Srouy in the Herlich Lawsuit
Srouy contends the SAC sufficiently alleged a cause of action for
indemnification of his legal fees and costs in the Herlich lawsuit based on the
theory that the District owed him a duty to defend under Education Code
section 44808. We must reject this contention as well.
A. Legal Principles
Since the early days of state laws regulating schools, teachers, coaches,
and other school officials have been required to exercise reasonable care in
the supervision of students. (See Dailey v. Los Angeles Unified School Dist.
(1970) 2 Cal.3d 741, 747 (Dailey) [“California law has long imposed on school
23
authorities a duty to ‘supervise at all times the conduct of the children on the
school grounds and to enforce those rules and regulations necessary to their
protection.’ ”]; Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600
(Taylor) [in action under former School Code section 2.801, school authorities
held negligent for failing to take precautions to minimize known danger to
students from delivery trucks that frequented school grounds]; Goodman v.
Pasadena City High School Dist. (1935) 4 Cal.App.2d 65, 68 (Goodman) [in
action under former School Code section 2.801, plaintiff’s eye injury from a
flying piece of aluminum in metal shop class held not attributable to the
negligence of any school authority]; see also 5 Witkin, Summary of Cal. Law
(11th ed. 2017) Torts, § 383, p. 588 [discussing former section 903 of the
Education Code].)
The relevant standard of care to which school authorities were held was
the care that “ ‘a person of ordinary prudence, charged with [comparable]
duties, would exercise under the same circumstan[c]es.’ ” (Dailey, supra, 2
Cal.3d at p. 747.) School districts were understood to be vicariously liable for
injuries proximately caused by such negligence. (Ibid.) At the same time, it
was uniformly recognized that school districts and their employees were not
“insurers of the physical safety of students.” (Ibid.; Taylor, supra, 17 Cal.2d
at p. 602 [observing that challenged jury instruction did not erroneously
“make the school district an insurer of the safety of its pupils”]; Goodman,
supra, 4 Cal.App.2d at p. 68 [“ ‘[t]he law does not make school districts
insurers of the safety of the pupils at play or elsewhere’ ”].)
These principles were carried over into the interpretation of Education
Code former section 13557⎯the statutory precursor to current Education
Code section 44807⎯which requires public school teachers to “hold pupils to
a strict account for their conduct on the way to and from school, on the
24
playgrounds, or during recess.” (See Dailey, supra, 2 Cal.3d at p. 747 [action
under former section 13557 of the Education Code].) In Dailey, our high
court reiterated that the “standard of care imposed upon school personnel in
carrying out this duty to supervise is identical to that required in the
performance of their other duties. This uniform standard to which they are
held is that degree of care ‘which a person of ordinary prudence, charged with
[comparable] duties, would exercise under the same circumstan[c]es.’ ” (Ibid.)
Applying this standard, the Dailey court held that a school district was
vicariously liable for its physical education instructors’ negligent failure to
supervise an area just outside the gymnasium, where a slap-boxing match
between two teenage students resulted in one of them suffering a fatal head
injury. (Id. at pp. 748–751.)
Education Code section 44807, which has been construed as governing
activities on school grounds, has been described as “impos[ing] on school
authorities a general duty to supervise pupils on school property during
school hours in order to ‘ “regulate their conduct so as to prevent disorderly
and dangerous practices which are likely to result in physical injury to
immature scholars under their custody.” ’ ” (Lilley v. Elk Grove Unified
School Dist. (1998) 68 Cal.App.4th 939, 945.) At the same time, this statute
“ ‘does not make school districts insurers of the safety of pupils at play or
elsewhere’ [citation], and, by its terms, section 44807 does not purport to
impose a duty on teachers to insure students against the risks of injury
inherent in the participation in extracurricular school sports.” (Ibid.)
And in the context of school sports, our high court has held that the
duty owed by a sports instructor or coach of a school athletic team is reduced,
in light of the risk of harm inherent in the sport. (Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 1006–1007.) Thus, a sports
25
instructor or coach “[does] not have a duty to eliminate the risks presented by
a sport” nor to “eliminate all the risks presented by inexperience” (id. at
pp. 1006, 1011), but “[does] have a duty to the student not to increase the risk
inherent in learning, practicing, or performing in the sport” (id. at p. 1006).
Thus, a sports instructor or coach cannot be held liable unless it is alleged
and proved “that the instructor acted with intent to cause a student’s injury
or that the instructor acted recklessly in the sense that the instructor’s
conduct was ‘totally outside the range of the ordinary activity’ [citation]
involved in teaching or coaching the sport.” (Id. at p. 1011.)
Education Code section 44808 governs activities outside of school
grounds. It provides: “Notwithstanding any other provision of this code, no
school district, city or county board of education, county superintendent of
schools, or any officer or employee of such district or board shall be
responsible or in any way liable for the conduct or safety of any pupil of the
public schools at any time when such pupil is not on school property, unless
such district, board, or person has undertaken to provide transportation for
such pupil to and from the school premises, has undertaken a school–
sponsored activity off the premises of such school, has otherwise specifically
assumed such responsibility or liability or has failed to exercise reasonable
care under the circumstances. [¶] In the event of 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.”
Our high court has explained that this provision was enacted with the
intention of limiting the circumstances under which a school district is
responsible for supervising students. (See Hoyem v. Manhattan Beach City
26
School Dist. (1978) 22 Cal.3d 508, 517–518.) Education Code section 44808
has been interpreted to grant school districts immunity from liability
“ ‘ “unless a student was (or should have been) directly supervised during a
specified undertaking.” ’ ” (Cerna v. City of Oakland (2008) 161 Cal.App.4th
1340, 1358.) Thus, “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.” (Ibid.) The relevant
standard of care to which the school district and its employees are held is a
standard of “reasonable care.” (Ed. Code, § 44808; Cerna, at p. 1358; see
Farley v. El Tejon Unified School Dist. (1990) 225 Cal.App.3d 371, 376 [in
action for wrongful death of a student based on negligent operation of a
school bus, “Education Code section 44808 is simply a recognition by the
Legislature of the law existing prior to its enactment that once a school
district undertakes to provide transportation for its pupils it has a duty to
exercise reasonable care under the circumstances”].) Under Education Code
section 44808, it remains the case that school districts and their employees
are not “ ‘considered insurers of the physical safety of their students.’ ”
(Cerna, at p. 1352.)
B. The District Did Not Owe Srouy a Duty to Defend Pursuant to
Education Code Section 44808
With these principles in mind, we turn to Srouy’s specific contentions
on appeal. Srouy’s first argument is that “if the [District] was responsible for
the conduct of [Srouy], then the [District] should have defended [Srouy] in the
[u]nderlying [Herlich] [l]awsuit.” This argument focuses on the word
“conduct” in the statutory phrase “liable or responsible for the conduct or
safety of any pupil[.]” (Ed. Code, § 44808, italics added.) Srouy observes that
Education Code section 44808 makes the District “responsible for the
conduct” of a student while that student is under the “immediate and direct
27
supervision of an employee of such district.” (See ibid.) He then argues that
because he was under the “ ‘immediate and direct supervision’ ” of Crawford
coaches during the play in question, the District was “ ‘responsible’ for
[Srouy’s] ‘conduct,’ ” a responsibility that he asserts extended to providing
him a legal defense when his conduct resulted in a lawsuit. Srouy does not
allege in the SAC, nor does he assert on appeal, that his coaches failed to
exercise reasonable care in supervising him during the game. Rather, Srouy
asserts that by virtue of the fact that he was under their supervision when he
committed the “conduct” that resulted in Herlich’s injury, the District “ha[d]
an obligation to defend that conduct.”
Srouy’s second argument is based on the statutory word “safety.” He
argues the District violated Education Code section 44808 “by failing to
protect [his] safety and wellbeing . . . in connection with the aftermath of the
October 16, 2015 football game . . . [by] failing to insure the absence of
financial injury to [Srouy] as a result of the [u]nderlying [Herlich] [l]awsuit.”
Neither of Srouy’s positions presents a tenable interpretation of
Education Code section 44808.6 As we have discussed, California has never
put schools in the position of insuring student safety. And yet Srouy’s
interpretation of Education Code section 44808 would effectively thrust the
District into the role of a liability insurer by obligating the District, even in
the absence of any fault on its part, to protect students from the legal and
6 Although the Crawford-Holtville football game took place at Lincoln
High School, which was within the District, the parties appear to agree that
the game falls within Education Code section 44808, the theory apparently
being that it was an “away” game that occurred off of the Crawford home
campus. As this issue is undisputed and it does not materially affect the duty
owed by the District, we accept the parties’ position that Education Code
section 44808 is the governing provision.
28
financial consequences of conduct they commit while under a District
employee’s supervision. (See Civ. Code, § 2778, subd. (3) [“An indemnity
against claims, or demands, or liability, expressly, or in other equivalent
terms, embraces the costs of defense against such claims, demands, or
liability incurred in good faith, and in the exercise of a reasonable
discretion.”].) Nothing about the history of Education Code section 44808,
and nothing about the interpretations accorded it since its enactment,
indicates it was intended to broaden the scope of school district liability at all,
much less to the extent Srouy urges here. Moreover, Srouy’s reliance on the
term “conduct” in Education Code section 44808 ignores that Education Code
section 44807 uses the same term, “conduct,” and yet it has not been
interpreted expansively so as to impose liability in the absence of negligence
on the part of the school. (See Ed. Code, § 44807 [“Every teacher in the
public schools shall hold pupils to a strict account for their conduct[.]” (Italics
added.)].)
Moreover, although Herlich accused Srouy of unsportsmanlike conduct
during the play in question, and blamed his coaches for failing to restrict his
play, Srouy has taken a different position in his case against the District.
Srouy alleges he was playing “carefully” and, by comparing his situation to
the hypothetical basketball player whose long pass misses the mark and
unexpectedly hits a bystander, characterizes the events that resulted in
Herlich’s injury as accidental. He observes that after the game, his coaches
told him he had done nothing wrong, and that Butcher, the high school
athletic director, stated Srouy had never been accused of late or improper hits
and that she had concluded Srouy’s block on the opposing player was not
intentional or malicious. Although Srouy alleges he was under his coaches’
control during the game, he does not allege that his coaches told or
29
encouraged him to violate the rules, or that their supervision during the
game otherwise fell below the relevant standard of care. His factual
allegations thus do not establish that these school employees “failed to
exercise reasonable care” in supervising him during the game, as required to
establish a violation of Education Code section 44808.
C. Srouy’s Additional Arguments in Favor of Liability Under Education
Code Section 44808 Lack Merit
Srouy advances a number of additional reasons why he has sufficiently
stated a claim against the District for violation of a mandatory duty imposed
by Education Code section 44808, but they all lack merit.
In his opening brief on appeal, Srouy asserts the District could have
“protected” him in a number of ways, such as “requiring a waiver of claims
[on referees] or imposing an arbitration requirement [on referees],” or
“obtaining insurance covering its players.” We have reviewed the SAC and
do not find any allegations to this effect. Even if such allegations did appear
in the SAC, Srouy does not allege that requiring a waiver of claims or
imposing an arbitration requirement are a standard school practice such that
the District’s asserted failure to institute such measures here fell below the
standard of care. He also does not assert that these steps would have
prevented a lawsuit or protected him from incurring legal fees.
As for the possibility of the District obtaining insurance that might
have provided him a defense from the Herlich lawsuit, Srouy does not
identify a law requiring school districts to provide student athletes with
third-party liability insurance. As Srouy acknowledges, Education Code
section 32221 obligates the governing board of each school district to provide
members of athletic teams coverage for medical expenses “arising while the
members are engaged in or are preparing for an athletic event . . . or while
the members are being transported by . . . [school districts] to or from school
30
. . . and the place of the athletic event.” Educational institutions are not
precluded from providing broader or additional insurance coverage, but the
decision to provide broader or additional coverage is discretionary. (Ed. Code,
§ 32223.) Mandatory duty liability cannot be imposed based on an enactment
that is “ ‘merely discretionary or permissive.’ ” (Guzman, supra, 46 Cal.4th at
p. 898.) Since Education Code section 32223 makes the provision of
insurance coverage other than medical coverage discretionary, Srouy cannot
base a claim for mandatory duty liability on the District’s asserted failure to
provide liability insurance coverage to student athletes.
Srouy’s next argument relies on Government Code section 810.8, which
provides, “ ‘Injury’ means death, injury to a person, damage to or loss of
property, or any other injury that a person may suffer to his person,
reputation, character, feelings or estate, of such nature that it would be
actionable if inflicted by a private person.” Srouy asserts the term “injury”
should be interpreted expansively to include more than “just physical injury”
and should include “mental and psychological injury,” such as he experienced
when he was “required to take on a debt to pay for legal fees and costs.” We
reject this argument, because Government Code section 810.8 supplies a
definition to be used in interpreting other provisions, and does not itself
create a mandatory duty that might support liability under Government Code
section 815.6.
Next, Srouy contends the District should be held liable for his attorney
fees under a theory of respondeat superior. He asserts that “the coach should
be considered the principal, and the student athlete as the agent.” He
concludes that “[t]he [District] is thus liable for the cost incurred by [Srouy]
to defend himself as a result of following the directions of the [District].” It
appears Srouy may be attempting to bring himself within the ambit of
31
Government Code provisions requiring public entities to defend their
employees. (See, e.g., Gov. Code, §§ 825, 996.4.) However, Srouy was not an
employee of the school. Accordingly, he cannot assert that the District owed
him a mandatory duty to defend under provisions governing the duty to
defend an employee.
Finally, Srouy claims he was “never warned or informed” that he would
not be defended by the District in the event of a suit, and that he “thus did
not know that by playing on the football team for school credit he was
potentially subjecting himself . . . to financial ruin.” We do not disagree with
the wisdom of informing student athletes (and their parents) of their
potential exposure to litigation arising from participation in school-sponsored
sports or that the District may not defend its student athletes in such
litigation. However, for several reasons, we are unable to conclude that the
District’s failure to provide such notice could subject it to mandatory duty
liability for Srouy’s defense costs when he was sued.
First, Srouy does not allege in his SAC, nor does he assert on appeal,
that it is a standard practice for school football coaches or other school
officials to provide student athletes with such notice. Srouy also does not
assert that his coaches or other school officials were aware of facts that would
have alerted them that Srouy, in particular, was in need of such notification.
Srouy thus fails to establish that his coaches or athletic director fell below
any relevant standard of care by failing to take these steps. (Ed. Code,
§ 44808 [school district must “exercise reasonable care”]; cf. Avila, supra, 38
Cal.4th at p. 162 [school coaches “have a duty not to increase the risks
inherent in sports participation”].)
Second, we observe that under current law, in connection with their
obligation to provide medical insurance coverage to student athletes, school
32
districts that operate interscholastic athletic teams are required to provide a
written notice to school team members, the contents of which are statutorily
prescribed. (Ed. Code, § 32221.5.) These notices must inform team members
that they “may qualify to enroll in no-cost or low-cost local, state, or federally
sponsored health insurance programs” and must provide toll-free telephone
numbers where the team members can obtain information about such
programs. (See Ed. Code, § 32221.5, subds. (a), (c).) However, school districts
may, but are not required to, provide other forms of insurance coverage, and
there is no statute comparable to Education Code section 32221.5 that
obligates school districts to provide athletic team members information about
other insurance protection through which they might protect themselves from
other types of harm. The absence of such legislation lends further support to
the conclusion that the District was not under a mandatory duty to warn
students about a need to defend themselves from possible litigation.
Third, holding the District liable for Srouy’s attorney fees under such a
failure to warn theory—i.e., allowing a student to recover his attorney fees on
the theory his coach failed to warn him of the possibility of incurring such
fees in the event of a lawsuit—would result in a significant judicial expansion
of the scope of civil liability for attorney fees. As we have noted, California
law provides that parties to civil litigation are generally responsible for their
own attorney fees. (Code Civ. Proc., § 1021.) Nonstatutory exceptions to this
rule include the “ ‘common fund’ ” theory (see Serrano v. Priest (1977) 20
Cal.3d 25, 35), the “ ‘substantial benefit’ ” theory (see id. at p. 38), and the
“ ‘tort of another’ ” theory (see Gray v. Don Miller & Associates, Inc. (1984) 35
Cal.3d 498, 507; Watson v. Department of Transportation (1998) 68
Cal.App.4th 885, 894 [tort of another doctrine does not allow an exonerated
alleged tortfeasor to recover his attorney fees from the liable defendant]).
33
The California Supreme Court has stated that it has “ ‘moved cautiously in
expanding the nonstatutory bases on which awards of attorney’s fees may be
predicated,’ ” observing that to do so has a tendency to “open a ‘ “Pandora’s
Box” of prolonged litigation.’ ” (Gray, at p. 507.) Accordingly, we decline to
hold that the District was under a mandatory duty to defend Srouy from the
Herlich lawsuit based on its alleged failure to warn Srouy of the possibility he
could be sued and incur attorney fees.
V.
Srouy Fails to Establish He Has a Viable Claim for Mandatory Duty Liability
Against the District Under the Equal Protection Clause of the California
Constitution
For the first time on appeal, Srouy contends the SAC states a claim, or
can be amended to state a claim, for violation of the equal protection clause of
the California Constitution. (Cal. Const., art. I, § 7, subd. (a) [“A person may
not be deprived of life, liberty, or property without due process of law or
denied equal protection of the laws.”].) Relying in large part on Chief Justice
Bird’s concurring opinion in Hartzell, supra, 35 Cal.3d at pages 921 to 928,
Srouy argues the “costs which the [District] caused [him] to incur [in his
defense] violate the equal protection guarantee” because imposition of such
costs “creates a group of [haves] (those with insurance and/or financial
resources to defend . . . litigation), and [have-nots] (those without any
insurance and/or financial resources to defend such litigation).” The District,
in its responsive brief, does not address this argument.
“Generally, a party is not permitted ‘to change [his] position and adopt
a new and different theory on appeal’ because doing so would be unfair both
to the court and to the opposing litigant.” (Grinzi v. San Diego Hospice Corp.
(2004) 120 Cal.App.4th 72, 85.) “However, the appeal of a judgment of
34
dismissal after sustaining of a demurrer without leave to amend requires the
consideration of whether the allegations state a cause of action under any
legal theory. [Citation.] Under these circumstances, new theories may be
advanced for the first time on appeal.” (Ibid.) Therefore, we may consider
the merits of Srouy’s equal protection claim. Although the District failed to
present argument on this point in its response brief, the burden of proving
the possibility of amending the operative complaint to state a claim is on
Srouy. (Blank, supra, 39 Cal.3d at p. 318.)
We conclude Srouy has not established a potential claim against the
District for violation of our state’s equal protection clause. The equal
protection clause of the California Constitution does not afford litigants a
right to recover individual monetary damages. (Gates v. Superior Court
(1995) 32 Cal.App.4th 481, 521–525.) The SAC seeks a judicial declaration
that the District is obligated to indemnify Srouy “for the full amount” of his
legal fees and costs in the Herlich lawsuit. However, “a declaration of the
scope of a defendant’s duty is a statement of law” (Avila, supra, 38 Cal.4th at
p. 165, fn. 12), and Srouy’s requested declaration would be contrary to the
law, because the equal protection clause does not support such a monetary
recovery. In his appellate briefs, Srouy does not indicate he will change his
allegations to seek a different remedy. Instead, he professes that he can
recover his costs under an equal protection theory. Gates forecloses the
possibility of relying on the equal protection clause of the California
Constitution to obtain such relief.
Accordingly, Srouy has not demonstrated that he has a viable equal
protection claim against the District.
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VI.
Conclusion
Although Srouy’s plight evokes our sympathy, our ability to respond is
constrained by the law, and the allegations of this case do not afford a judicial
solution. We leave it to the Legislature to determine whether the needs of
student athletes in Srouy’s position are sufficiently addressed by current law,
and if not, to craft an appropriate solution.
DISPOSITION
The judgment is affirmed. Each side shall bear its own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
DO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
36