John Roe 1, et al. v. Mountain View Whisman School District, et al.

Issue No. 5: SCUSD has immunity for conduct which occurred off campus after school hours.

Notice of Motion (the “Motion”) at 1:25—2:13 (filed: Sept. 24, 2025).

The Motion is made on the grounds that there is no triable issue of material fact as a matter of law. Id. at 2:14-15.

The Motion came on for hearing on July 17, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, including all the evidence and separate statements and authorities submitted by each party, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

I. Factual Allegations

According to the Third Amended Complaint, in the early 1970’s, when Plaintiff Roe 2 was about the age of 12 or 13, he was sexually assaulted by Defendant McCray at Defendant Murray’s apartment. Defendant Murray was the school photographer at Pomeroy Elementary school and Curtis Junior High School of SCUSD. McCray presented himself as the sex education teacher at Graham Junior High School of Mountain View Whisman School (“MVWSD”). McCray was the friend and co-conspirator of Murray in a child sex and photography ring. (TAC ¶ 7)

Murray was arrested and charged with felony violation of PC 288 (lewd or lascivious acts with children) and PC 272 (contributing to the delinquency of a minor); to which he pled guilty and went to jail. Murray is a registered sex offender. (TAC ¶ 7)

In 1973 or 1974, when Plaintiff Roe 3 was about age 13, he was sexually assaulted by Defendant Murray. Plaintiff attended Pomeroy Elementary school, Curtis Junior HS or Curtis Intermediate, located within SCUSD. Murray would take John Roe 3 to nude beaches, churches, bands/concerts, and weddings. Plaintiff also photographed weddings with Murray as his assistant. During this time, Murray took Plaintiff to McCray’s house where Plaintiff was violently sexually assaulted by a gang of men. (TAC ¶ 8)

In about 1974, when Plaintiff Roe 5 was about age 13, he was sexually assaulted by Defendants Murray and McCray. Plaintiff attended Pomeroy Elementary school and Curtis Junior HS of SCUSD. Murray used his position as a school photographer at the schools to groom and recruit his child victims including Roe 5. (TAC ¶ 10)

Principal Robert J. Smith, and/or one or more of the SCUSD’s other teachers/aids/ assistants and principals and/or administrators at Pomeroy Elementary school knew or should have known of Murray’s dangerous propensities but nevertheless hired him, failed to properly supervise him and the students, and failed to spot and respond to obvious red flags. (TAC ¶ 10)

Plaintiffs initiated this action on December 5, 2022, and amended their complaint on December 30, 2022, March 17, 2023, and September 1, 2023, alleging causes of action for: (1) negligence, (2) negligent supervision, (3) negligent hiring and/or retention, (4) negligent failure to warn, train or educate, (5) intentional infliction of emotional distress, (6) sexual battery (civil code § 1708.5), (7) sexual assault, (8) gender violence (civil code §52.4), (9) violation of penal code §§266j, 286, 287, 288a, 289(h), (i), (j), 311.4 and 647.6, (10) violation of civil rights (civil code §§ 51.7, 52 and 52.1), (11) human trafficking (civil code §52.5)

II. Legal Standard on Motion for Summary Judgment or Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties' pleadings in order to determine

whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and 'all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

III. Analysis of the Motion

A. Negligence & Vicarious Liability

“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.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].)

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer's hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, 1055.)

Government Code section 815.2, subd. (a) provides: “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 or his personal representative.” Similarly, Government Code section 815.4 provides: “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public

entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”

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.” (Gov. Code, § 815.6; San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 428.)

In other words, a school district and its personnel owe students the duty to use reasonable measures to protect them from foreseeable injury at the hands of third parties acting negligently or intentionally, including injuries to a student resulting from a teacher's sexual assault. (See, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441, 447; Roe v. Hesperia Unified School Dist. (2022) 85 Cal.App.5th 13, 25.)

Plaintiffs allege that SCUSD stood in loco parentis and was duty bound to take reasonable steps and implement reasonable safeguards to protect them from the foreseeable injuries that were caused by the individual perpetrator Defendants. Allegedly, SCUSD also had a statutory duty under Penal Code section 11166 to report known or suspected incidents of sexual abuse of minors to a child protective agency. SCUSD breached these duties by failing to adequately supervise students including Plaintiffs; failing to implement policies and practices to protect against sexual abuse of children; failing to follow policies and practices to protect against sexual abuse of children; failing to enforce rules and regulations to protect against sexual abuse of children; failing to train its employees to recognize potential red flags of abuse; failed to report the abuse to law enforcement agency of a county welfare department. (TAC ¶¶ 1, 60, 63 - 66.)

SCUSD contends in this Motion that as a matter of law it cannot be held vicariously liable for the negligence of administrators, or supervisors in hiring, supervising, and retaining Murray because Murray he was not an employee of SCUSD, and that there is no evidence SCUSD knew or should have known of Murray’s propensity to sexually abuse children.

In support of its position, SCUSD presents evidence showing:

• In 1973 and 1974, it utilized freelance photographers or photography companies to take student portraits for the yearbook, there are no personnel, employment, or payroll records for Murray, and he does not appear in the yearbook. (Simpson Decl. ¶¶ 5-8)

• Roe 3 described Murray as a freelance photographer who photographed weddings and was working for a company that Curtis Junior High School used for student portrait photos. (Exhibit B, Excerpts from Roe 3 Deposition, pp. 79: 13-19, 96:12-97:1, 119:6-22; 120:1-24)

• Roe 2 worked for Murray as his assistant and that Murray photographed mostly weddings. (Exhibit A, Excerpts from Roe 2 Deposition, pp. 71:7-20, 71:24-72:6.)

• Murray deliberately kept himself "safe and clear" during school hours, avoiding attention. (Exhibit B, Excerpts from Roe 3 Deposition, 140:2-10)

• Murray did not engage in inappropriate sexual conduct with Plaintiffs on school grounds or during school hours. (Exhibit B, Excerpts from Roe 3 Deposition pp. 76:11-13, 81:7-11, 82:4-20, 83:7-17, 91:1-7, 102:7-25, 103:5-17, 104:10-16, 116:17 117:21, 122:22-123:19, 124:22-125:4, 126:5-21, 132:8 12, 139:25-140:10; Exhibit A, Excerpts from Roe 2 Deposition, pp. 54:12-56:2, 60:16-61:1, 75:7 25, 91:16-92:6, 93:10-25.)

• None of the Plaintiffs disclosed any of the inappropriate conduct to any adult until after Murray was arrested. (Exhibit B, Excerpts from Roe 3 Deposition pp. 104:18-23, 132:25-133:13, 140:11-141:8, 156:12-18, 163:14-24; Excerpts from Roe 2 Deposition, pp. 90:25-91:5, 97:4-7.)

Contrary to SCUSD’s argument, this evidence does not resolve classification of Murray’s status. This evidence raises questions regarding Murray’s status as an independent contractor and the degree of control SCUSD may have exercised over his freelance photography job at the school. Critical facts remain undisclosed. SCUSD does not address: (1) whether it contracted with a photography company that employed Murray; (2) what control it exercised over when, where, and how school portraits were taken; (3) whether SCUSD provided space, equipment, or supervision; (4) how frequently Murray was on campus; (5) whether Murray wore identification or was introduced to students as affiliated with the school.

These facts are material to determine whether Murray was an employee, an independent contractor, or an employee of a company with which SCUSD contracted. The classification of Murray's status is a mixed question of law and fact that typically cannot be resolved on summary judgment when material facts remain in dispute.

Therefore, SCUSD has not met its burden of establishing as a matter of law that no employment relationship with Murray existed. The Court finds that a reasonable trier of fact could infer from Murray's repeated on-campus presence, his role taking official school portraits, and the school's provision of space for photography that SCUSD exercised sufficient control to create an employment or agency relationship, or at minimum, a relationship giving rise to supervisory duties.

Then the question becomes whether SCUSD knew or should have known that Murray posed a foreseeable risk to students but nevertheless retained him and failed to properly supervise him even if he was an independent contractor. California law does not require actual knowledge of prior abuse or a specific propensity. (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 119.) School districts have a duty to take reasonable measures to identify and respond to potential misconduct, even before a district knows a specific employee has previously engaged in sexual misconduct. (Id at 135.)

SCUSD emphasizes: (1) Roe 3's testimony that Murray deliberately kept himself "safe and clear" during school hours, avoiding attention, and (2) undisputed facts show Murray did not engage in sexual conduct with Plaintiffs on school’s grounds and during school hours. (Exhibit B, Excerpts from Roe 3 Deposition, 140:2-10, SSUMF No. 8, 9)

But several facts create triable issues:

1. Murray had repeated unsupervised access to students. He photographed students in the cafeteria, approached students on the field after school, and interacted with students on campus on multiple occasions. Roe 3 testified he saw Murray on campus three to five times after school or during summer, and Murray would come on the campus and offer us marijuana, invite us over. (Exhibit B, Excerpts from Roe 3 Deposition pp. 83:12-17, 102:7-25, 103:5-24, 104:5-16) These interactions occurred on school grounds, visible to anyone present.

2. Murray had access to students alone. The portrait sessions occurred in the cafeteria with the whole class present (SSUMF No. 2), but the facts do not establish that a teacher or administrator was continuously present to supervise. Murray's presence on the field after school hours when students were hanging out occurred without adult supervision.

3. California courts have recognized that sexual abuse by adults in positions of authority—like Murray—over children in school settings is reasonably foreseeable, even where the organization had no knowledge that the particular individual had previously sexually or physically abused anyone or had a propensity.

4. Plaintiffs allege that SCUSD failed to implement adequate systems for investigating and supervising personnel to prevent sexual grooming and abuse. While SCUSD argues it had no notice of Murray's conduct, the absence of policies, training, and supervision may itself constitute negligence when harm was foreseeable. SCUSD has not presented evidence establishing that it conducted any background investigation of Murray, implemented policies governing independent contractors' access to students, trained staff to recognize grooming behavior, or supervised Murray's interactions with students. These omissions may constitute breach of duty when an adult has repeated unsupervised access to minors.

Accordingly, the Court finds that the evidence presented here, viewed in the light most favorable to Plaintiffs, raises triable issues of material fact regarding whether SCUSD breached its duty by: (1) failing to adequately supervise an adult with access to students; (2) failing to implement policies to prevent abuse; (3) allowing unsupervised contact between an adult and students after school hours on campus; and (4) failing to investigate or monitor adults regularly present on campus. Whether these omissions constituted negligence is a question for the jury.

As these triable issues of material fact exist, SCUSD’s motion for Summary Adjudication of Plaintiff’s claims on these grounds is DENIED. More specifically: • Regarding Issue No. 1 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs’ claims fail as a matter of law because there is no vicarious liability for SCUSD because SCUSD did not employ Defendant Roger Ray Murray,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED; and

• Regarding Issue No. 2 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs cannot recover under a theory of negligence because there is no evidence that SCUSD knew or should have known of Murray’s propensity to commit sexual abuse,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED.

B. Negligent Failure to Warn, Train or Educate

SCUSD argues it had no duty to warn, train, or educate students about how to avoid sexual abuse by non-employees, and that no statute imposes such a duty on public school districts. SCUSD contends that public entities are immune from common law tort liability, and the duty to warn is a common law doctrine without statutory support. (Motion at 8:25- 9:16)

In Chevlin v. Los Angeles Community College Dist. (1989) 212 Cal. App. 3d 382, 389-90, the court held that the law refuses to hold a public school system liable to a student who claims she was inadequately educated. Similarly, the court in Campaign for Quality Education v. State of California (2016) 246 Cal. App. 4th 896, 903, 915, held that questions of educational quality are best left to the Legislature, and should not be adjudicated in the courts.

Accordingly, SCUSD’s motion for summary adjudication of Plaintiff’s claim for negligent failure to warn, train or educate students is GRANTED.

More specifically, regarding Issue No. 4 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs’ Fourth Cause of Action for failure to warn, train, or educate Plaintiffs fails as a matter of law because SCUSD did not have a statutory duty to warn Plaintiffs on the risk of sexual abuse by third parties and how to avoid the risk,” this Motion for Summary Adjudication in SCUSD’s favor is GRANTED.

C. Negligence Per Se – Breach of Duty to Report Abuse under the Child Abuse Neglect Reporting Act (“CANRA”)

“CANRA requires mandated reporters, including teachers and other specified school employees, to make a report to a law enforcement agency or a county welfare department whenever the mandated reporter, in [the mandated reporter's] professional capacity or within the scope of [the mandated reporter's] employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. . . . Failure to make the required report constitutes a misdemeanor.

(Pen. Code, § 11166, subd. (c).) In addition, a failure to make such a report may give rise to a claim of negligence per se when a breach of the duty to report causes injury.” (Roe, supra, 85 Cal.App.5th at 31-32, internal citations and quotations omitted.)

SCUSD argues that it cannot be held liable for violating CANRA because the statute was enacted in 1980, six years after the alleged conduct. The Court agrees.

It is well established and widely recognized legal principle that statutory enactments apply prospectively in the absence of a clear legislative intent to the contrary. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194.) So because the alleged abuse occurred in 1973-74 and CANRA was not enacted until 1980, SCUSD could not have violated a duty that did not yet exist.

Therefore, SCUSD’s motion for summary adjudication of Plaintiff’s CANRA-based negligence per se claim is GRANTED.

More specifically, regarding Issue No. 3 in SCUSD’s Motion for Summary Adjudication that “SCUSD cannot be liable for a violation of the Child Abuse and Neglect Reporting Act (Pen. Code §§ 11164 et seq.)(“CANRA”) as a matter of law because all conduct occurred prior to enactment of CANRA,” this Motion for Summary Adjudication in SCUSD’s favor is GRANTED.

D. Immunity Under Education Code Section 44808

Education Code § 44808, 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.

(Education Code § 44808.)

SCUSD argues that it is immune because (1) there is no dispute that all sexual conduct and pornographic photography occurred off campus during non-school hours, (2) SCUSD did not provide any Plaintiff with transportation to Murray’s condo, (3) visits to

Murray’s condo were not school sponsored activities. Rather all the alleged conduct occurred after school hours, during summer months, at Murray’s condo or another offcampus location. (Motion 9:18-10:13)

But immunity under section 44808 does not shield SCUSD from liability for negligence that occurred on campus and during school functions. Plaintiffs' claims are not solely based on SCUSD's failure to supervise students at Murray's condo. Rather, Plaintiffs allege SCUSD negligently: (1) failed to supervise Murray's access to students on campus; (2) allowed unsupervised contact between Murray and students on school grounds; (3) failed to investigate or monitor Murray despite his regular presence on campus; and (4) failed to implement policies to prevent grooming and abuse. (TAC ¶¶ 78, 81, 83, 84, 92, 97) These alleged breaches occurred on school property and during school-related activities (portrait sessions, after-school hours on campus).

The fact that the ultimate abuse occurred off campus does not immunize SCUSD from liability for on-campus negligence that proximately caused the off-campus harm. Section 44808 addresses where the injury occurred, not where the negligence occurred.

Additionally, Murray's access to students arose from his role of taking school portraits—an activity directly connected to school operations. Whether this constitutes a "school-sponsored activity" sufficient to invoke an exception to section 44808, or whether SCUSD's on-campus negligence falls outside the immunity altogether, presents triable issues of material fact.

Therefore, SCUSD’s motion for summary judgment, or in the alternative, summary adjudication on this ground that it is immune is DENIED.

More specifically, regarding Issue No. 5 in SCUSD’s Motion for Summary Adjudication that “SCUSD has immunity for conduct which occurred off campus after school hours,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED.

IV. Conclusion & Order

Accordingly, SCUSD’s Motion for Summary Adjudication is GRANTED IN PART and DENIED IN PART as follows:

Regarding Issue No. 1 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs’ claims fail as a matter of law because there is no vicarious liability for SCUSD because SCUSD did not employ Defendant Roger Ray Murray,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED.

Regarding Issue No. 2 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs cannot recover under a theory of negligence because there is no evidence that SCUSD knew or should have known of Murray’s propensity to commit sexual abuse,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED.

Regarding Issue No. 3 in SCUSD’s Motion for Summary Adjudication that “SCUSD cannot be liable for a violation of the Child Abuse and Neglect Reporting Act (Pen. Code §§ 11164 et seq.)(“CANRA”) as a matter of law because all conduct occurred prior to enactment of CANRA,” this Motion for Summary Adjudication in SCUSD’s favor is GRANTED.

Regarding Issue No. 4 in SCUSD’s Motion for Summary Adjudication that “Plaintiffs’ Fourth Cause of Action for failure to warn, train, or educate Plaintiffs fails as a matter of law because SCUSD did not have a statutory duty to warn Plaintiffs on the risk of sexual abuse by third parties and how to avoid the risk,” this Motion for Summary Adjudication in SCUSD’s favor is GRANTED.

Regarding Issue No. 5 in SCUSD’s Motion for Summary Adjudication that “SCUSD has immunity for conduct which occurred off campus after school hours,” this Motion for Summary Adjudication in SCUSD’s favor is DENIED.

Moreover, as SCUSD’s Motion for Summary Adjudication is now DENIED IN PART for the reasons explained above, SCUSD’s Motion for Summary Judgment is DENIED as well.

SO ORDERED.

Date: July 17, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

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