McKINSTER, J.
Plaintiffs and appellants, A.J., S.P., T.M., and A.L. (plaintiffs), are all former third grade students of John Desilets. At the time pertinent to this action Desilets was a third grade teacher at Village Elementary School. Desilets sexually molested plaintiffs after befriending each of them when they were students in his class. Plaintiffs, through their respective guardians ad litem, brought this action for damages against Desilets, and defendants and respondents Victor Elementary School District (District), Dale Marsden, Ralph Baker, Marie Miller, Janet Young, Martha McCarthy and John Levell (collectively referred to as defendants). All of the individually named defendants other than Desilets were school or district administrators at times pertinent to plaintiffs' claims. In their complaint, plaintiffs alleged theories of recovery against defendants based on negligence, including negligent hiring, supervision, and retention. Plaintiffs also alleged defendants violated Penal Code section 11166 by failing to report Desilets's sexual abuse. At the conclusion of an 11-week trial, the jury, in a vote of 9 to 3, returned verdicts in favor of defendants and against plaintiffs on all theories of recovery. Plaintiffs appeal from that judgment.
Plaintiffs' first claim of error is that the trial court abused its discretion by refusing their request to instruct the jury on vicarious liability of District based on the purported negligent acts of employees not named in the complaint. Next, plaintiffs contend the trial court incorrectly refused to instruct the jury on negligence per se based on defendants' purported violation of a January 2001 publication prepared by the United States Department of Education, Office of Civil Rights, entitled, "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students or Third Parties" (hereafter the Guidance). Finally, plaintiffs contend the trial court erred in granting defendants' motion in limine to exclude the Guidance from evidence at trial.
We conclude for reasons we explain below that plaintiffs' claims are meritless. Therefore, we will affirm the judgment.
The issues plaintiffs raise in this appeal are all ones of law and therefore do not require an extensive recitation of the facts. Moreover, the pertinent facts are undisputed. Therefore, we will only summarize the facts, and unless otherwise indicated, we take that summary from plaintiffs' opening brief, which sets the facts out in great detail.
According to the allegations of plaintiffs' amended complaint and the evidence presented at trial, District hired Desilets in 1989 and at the time pertinent to this complaint Desilets was a third grade teacher at District's Village Elementary School. Desilets had a reputation as a compassionate teacher who hugged kids. The individually named defendants at the times pertinent to this action were all either school or District administrators. Specifically, Ralph Baker was District's superintendent; Marie Miller was District's assistant superintendent for pupil services; John Levell was District's complaint officer; Janet Young was District's assistant superintendant for personnel services and title IX officer; Dale Marsden was principal of Village Elementary School; and Martha McCarthy from 1989 to 1994 was principal of Parkview Elementary School where Desilets had taught in 1992.
A.J., T.M., and A.L. were all students in Desilets third grade class at Village Elementary School in the 2001-2002 school year. S.P., A.J.'s younger brother, met Desilets through A.J. in 2002, and then in the 2002-2003 school year was a student in Desilets's third grade class. A.J.'s out-of-school relationship with Desilets apparently began when A.J. invited him to come to one of his soccer games. A.J.'s grandmother, Anita (also sometimes referred to in the trial court and by the parties as Susie), with whom he and S.P. lived, thought it was "neat" that Desilets took such an interest in his students. With Anita's permission, A.J. began to spend time at Desilets's home, and eventually stayed overnight with Desilets. Desilets would drive A.J. to school in the morning and home from school in the afternoon. By mid-school year, toward the end of 2002, Anita allowed Desilets to take A.J. and S.P. places after school and on weekends. Desilets bought gifts for A.J. that included clothes, shoes, toys, DVD's, and videogame consoles. Desilets also helped out Anita by purchasing groceries and paying for repairs on her car. Desilets developed similar relationships with A.L. and T.M., both of whom lived in single parent households with their mothers. The mothers of both boys not only gave permission for them to go to Desilets's home but also to spend the night there.
Desilets began to sexually molest A.J. and T.M. in the summer of 2002 and continued through the next school year when the boys were in fourth grade. Desilets's molestation of A.L. began in November 2002, and Desilets began to molest S.P. either in December of 2002, or in the beginning of 2003. On July 25, 2003, Desilets was arrested after A.J. told a neighbor that Desilets had been molesting him, and the neighbor in turn told Anita.
Additional facts pertinent to our resolution of the issues plaintiffs raise on appeal will be recounted below.
Plaintiffs theory of liability at trial was that defendants failed to recognize and investigate signs that indicated Desilets might be molesting plaintiffs. To that end, plaintiffs elicited testimony, for example, from defendant Dale Marsden, the principal of Village Elementary School, that District had a rule regarding teachers transporting students. That rule required another school employee be present whenever a teacher gave a student a ride in the teacher's car. Marsden also testified that he had instructed his staff to report violations of this rule to him, and he had never received any violation reports. Marsden also testified that on June 24, 2003, defendant Marie Miller, District's assistant superintendent for pupil services, called him and told him she had heard that Desilets had allowed A.J. and S.P. to stay overnight with him at his house. According to Marsden, Miller was concerned about the community perception of Desilets's conduct and as a result asked Marsden to talk with Desilets. Marsden called Desilets to ask him what was going on. When Marsden explained the reason for his call, Desilets said he had a relationship with the boys' grandmother, the boys were at his house frequently, they stayed overnight, and that he frequently took them to school as well as other places, such as dental appointments and soccer practice. Desilets also told Marsden that he would not discuss the situation further without a lawyer or union representative present. Within minutes after his phone conversation with Desilets, Anita, the boys' grandmother, called Marsden. Anita effectively confirmed what Desilets had told Marsden. As a result of Anita's call, Marsden understood that Desilets and she had a relationship, "almost as husband-and-wife," they were at each other's houses often, and that Desilets "was like a dad to the kids." Because Anita had consented to the relationship between Desilets and her grandsons, Marsden did not investigate the matter further.
Consistent with the noted theory of liability, plaintiffs sought to establish District's vicarious liability for the acts of its employees. To that end plaintiffs submitted jury instructions and verdict forms that stated the jury could find District liable based on the acts of defendants and "other employees" of District. Defendants objected to including the phrase "other employees" in the jury instructions. Defendants argued that District's liability could only be based on the negligent acts of the individual defendants identified in plaintiffs' government tort claim and named in plaintiffs' complaint. Defendants also argued it would be unfair to allow plaintiffs to rely on the conduct of employees plaintiffs failed to disclose before trial and therefore were unknown to defendants. The trial court agreed with defendants and deleted reference to "other employees" from the pertinent jury instructions and verdict forms.
Plaintiffs contend the trial court incorrectly removed the "other employees" language. We will not resolve this issue, because even if we were to agree with plaintiffs, the error would require reversal of the judgment only if it were prejudicial. More particularly, "A judgment may not be reversed on appeal, even for error involving `misdirection of the jury,' unless `after an examination of the entire cause, including the evidence,' it appears the error caused a `miscarriage of justice.' (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
Plaintiffs assert the error was prejudicial because it "had the effect of depriving [them] of a theory of liability supported by evidence in this case" and "precluded the jury from altogether considering that issue." Plaintiffs' assertion states the obvious but does not demonstrate prejudice. In order to demonstrate prejudice and thus compel reversal of the judgment, plaintiffs have to show that if the trial court had instructed the jury that District's liability could be based on the negligent acts of employees other than the named defendants there is a reasonable probability the jury would have returned a verdict in plaintiffs' favor. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) Plaintiffs have not made the required showing and in our view they cannot do so.
Plaintiffs contend the omitted instruction was warranted because there was evidence that employees at Village Elementary School not named as defendants knew Desilets was "transporting A.J. on and off campus," but did not report Desilets despite "a clear directive from Marsden that teachers transporting students all by themselves had to be reported to administration." In addition, plaintiffs cite evidence they claim shows Virginia Hoadley, a teacher at the school and one of the unnamed employees, "became aware in the course of her employment of the more extensive off campus contact between Desilets and A.J. She was aware that Desilets had been giving A.J. gifts and taking A.J. places, and that there were occasions that A.J. spent the night at Desilets'[s] without Anita being there." Plaintiffs also cite the testimony of their expert witness who stated, assuming Hoadley had training in the "grooming" behavior pedophiles engage in prior to committing abuse, that she would have recognized Desilets's attention to A.J. as such, and because she is a mandated reporter under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.), should have reported Desilets's conduct to the appropriate authorities.
Assuming plaintiffs' characterization of the evidence is accurate and further assuming the evidence establishes a breach of duty by any of the "other employees" in question, there is no evidence that links the purported negligent conduct to the injury suffered by plaintiffs. In other words, there is no evidence that shows Desilets molested plaintiffs because the unnamed employees did not comply with their purported duty to report what they knew about Desilets driving A.J. to and from school. Plaintiffs simply assume without citation either to evidence or legal authority that if the so-called other employees had reported what they knew, Desilets would not have molested the boys or Desilets's conduct would have been discovered sooner than it was. In short, plaintiffs' liability claim is nothing more than speculation.
Moreover, the evidence presented at trial is not entirely as plaintiffs claim. As recounted above, Anita knew of and consented to Desilets's relationship with her grandsons. Therefore, if a school employee had reported Desilets, that report would have ended the same way Marsden's June 2003 inquiry ended—with Desilets and Anita explaining to Marsden the relationship between Desilets, Anita, and the two boys. In addition, the evidence presented at trial was conflicting on the issues of whether Virginia Hoadley had been told to report teachers who provide transportation for a student without another teacher present, and whether she had training in recognizing the signs of grooming. In particular, when asked at trial whether defendant Marsden, the principal of her school, told her "during the '02-'03 School Year that if you saw a Teacher [sic] transporting a student on and off campus in their personal vehicle by themselves, that it was to be reported to him," Hoadley answered, "No." Hoadley also testified that she had not been trained to recognize grooming such as a teacher giving gifts to a student or "ingratiating" himself or herself to a student's family. Because the evidence was conflicting, the jury could have found that Hoadley did not breach any duty of care and for that reason the jury would not have reached a result more favorable to plaintiffs absent the purported instructional error.
In summary, the problem with plaintiffs' argument is that the evidence presented at trial does not show that the conduct of any District employee other than Desilets caused injury to any of the plaintiffs. Absent evidence showing causation, plaintiffs cannot establish a negligence claim against any of the employees, named defendants or otherwise. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 ["`The elements of a cause of action for negligence are well established. They are "(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury."'"].) Because District's liability to plaintiffs is derivative and depends on evidence that shows an employee negligently caused injury to plaintiffs, plaintiffs cannot establish liability on the part of District. (See Gov. Code, § 815.2, subd. (a) ["A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee . . . ."].) Therefore, if the trial court committed error when it refused plaintiffs' request to instruct on District's liability based on the acts of "other employees," that error was necessarily harmless in this case.
As set out above, plaintiffs raise two claims regarding the significance and admissibility of the Guidance—that the trial court should have instructed the jury on negligence per se based on defendants' violation of the purported duty, or standard of care, set out in the Guidance, and that the trial court abused its discretion by ruling that the Guidance was inadmissible even though their expert witness relied on it to form the opinion that defendants breached the duty of care owed to plaintiffs. In other words, plaintiffs' contend the Guidance establishes a standard of care, or duty, the breach of which renders District liable to plaintiffs for damages if the breach caused plaintiffs' injury. We disagree.
Evidence Code section 669.1 states in pertinent part that, "A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a . . . regulation by . . . an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code)."
The only support plaintiffs cite for their claim that the Guidance is a regulation, is the purported fact that it was published in the Federal Register "apparently in compliance with the rule-making procedures set forth in the federal Administrative Procedure Act, in particular, 5 U.S.C.S. § 553." Plaintiffs do not discuss how federal regulations are promulgated. They assert only that publication in the federal register in "compliance with [] rule-making procedures" is sufficient. As the appellants, plaintiffs have the burden to demonstrate that error occurred in the trial court. In order to meet that burden they must show the Guidance was adopted as a regulation and therefore sets out a standard of care the breach of which constitutes negligence for purposes of Evidence Code section 669. Plaintiffs have not met their burden on appeal and therefore we need not address this issue further.
Our conclusion that plaintiffs did not meet their burden to demonstrate that the Guidance is a regulation also resolves their second argument regarding its admissibility under other provisions of law. (See Evid. Code, § 669.1.) Plaintiffs contend the Guidance was otherwise admissible in evidence because one of their expert witnesses relied on it as the basis for the expert's opinion that the individual defendants had breached their duty of care to plaintiffs. According to plaintiffs, "[W]here a statute or ordinance is relied on as creating a duty upon which an action for negligence is predicated, that statute or ordinance is admissible in evidence, even though violation of the statute or ordinance was not pleaded."
Plaintiffs, as previously discussed, have not demonstrated that the Guidance is a regulation and as such sets out a standard of care. The preamble to the Guidance states, "The revised guidance reaffirms the compliance standards that OCR [Office of Civil Rights] applies in investigations and administrative enforcement of Title IX of the Education Amendments of 1972 (Title IX) regarding sexual harassment. The revised guidance re-grounds these standards in the Title IX regulations, distinguishing them from the standards applicable to private litigation for money damages and clarifying their regulatory basis as distinct from Title VII of the Civil Rights Act of 1964 (Title VII) agency law. In most other respects the revised guidance is identical to the 1997 guidance. Thus, we intend the revised guidance to serve the same purpose as the 1997 guidance. It continues to provide the principles that a school should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance."
Plaintiffs do not claim in this appeal, nor did they claim in the trial court, that defendants violated Title IX. Nor could they make such a claim. In Gebser v. Lago Vista School Dist. (1998) 524 U.S. 274, a student sexually harassed by a teacher sought monetary damages under Title IX in a private civil action against the school district. The Supreme Court held "that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures . . . has actual knowledge of discrimination . . . and fails adequately to respond." (Gebser, at p. 290.) In addition, "the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the [federal funds] recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions." (Gebser, at pp. 290-291.)
Assuming sexual abuse constitutes a violation of Title IX, plaintiffs cannot show that any defendant actually knew Desilets was sexually abusing plaintiffs and thereby violated Title IX. Instead, plaintiffs claim that the Guidance independently creates a standard or duty of care the breach of which will support a claim for monetary damages. Plaintiffs have failed to demonstrate that their view is correct and therefore we must reject the claim.
The judgment is affirmed.
Defendants to recover costs on appeal.
We concur:
Hollenhorst, Acting P.J.
Richli, J.
