Motion for Summary Judgment, or alternatively, for Summary Adjudication
(20) Tentative Ruling
Re: Doe v. Fresno Unified School District, et al. Superior Court Case No. 23CECG03206
Hearing Date: May 19, 2026 (Dept. 502)
Motion: By Defendant Samuel Confectioner for Summary Judgment, or alternatively, for Summary Adjudication
Tentative Ruling:
To deny. (Code Civ. Proc., § 437c.)
Explanation:
Plaintiff John “HJ” Doe (hereinafter “plaintiff”) alleges that he was the victim of childhood sexual abuse that occurred when he was approximately 15-17 years old. The alleged perpetrator, defendant Samuel Confectioner, was a substitute teacher employed by defendant Fresno Unified School District (“FUSD”) when the abuse allegedly occurred.
The operative pleading is the Second Amended Complaint (“SAC”) which alleges four causes of action against FUSD: (1) negligence; (2) negligent supervision; (3) negligent hiring/retention; and (4) public entity liability for failure to perform mandatory duty. All but the third cause of action are asserted against Confectioner (as well as FUSD).
Confectioner seeks summary judgment, or alternatively summary adjudication of unspecified causes of action. The motion primarily appears to be drafted as an attack on the pleading, but without showing that any particular element or elements of the various causes of action are not adequately pled.
Before addressing the merits of the motion, the court will address plaintiff’s evidentiary objections. For the most part these are nuisance objections with no basis or merit. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532-533 [parties are encouraged “to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion.”].) The court sustains objection no. 2 to the complaint filed in Sacramento Superior Court, as there is no authentication of the document. All other objections are overruled.
In moving for summary judgment, a defendant has burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense. (
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Confectioner first argues that the SAC’s propensity-based theory must be excluded under Evidence Code §§ 1101 and 352. Confectioner points to the SAC’s 5
allegations of a 2004 arrest and conviction involving other alleged conduct and quotes Penal Code provisions. (SAC ¶ 18.) The SAC further alleges that defendant had a "pedophilic nature," that there were "reports," "red flags," "grooming," and similar generalized character allegations. (SAC ¶¶ 20, 28-30, 36-38.)
Confectioner appears to be raising an issue of admissibility evidence at trial. Confectioner makes no showing that exclusion of any unspecified propensity-based evidence would negate the essential elements of any cause of action. This argument does not supply a basis for granting summary judgment or summary adjudication. Arguments relating to admissibility of evidence of Confectioner’s prior sexual misconduct is more appropriately brought as a motion in limine prior to trial. It is not appropriately raised in a summary judgment motion where no such evidence has been submitted by plaintiff.
Confectioner then argues that plaintiff cannot defeat summary judgment with uncorroborated decades-old recollections by plaintiff. Confectioner contends that “[w]here a plaintiff cannot identify admissible evidence establishing essential elements beyond narrative recollection, no triable issue exists.” Even if this is an accurate statement of the law, again, no evidence is submitted in this regard. The burden does not shift to plaintiff to show the existence of triable issues until Confectioner first shows that undisputed facts negate an essential element or elements of specific causes of action.
Confectioner contends that the allegations are of conduct that occurred two decades ago, and that Confectioner is prejudiced by lost records and faded memories. But he submits no legal authorities to the effect that summary judgment may be granted on this basis.
Confectioner attacks the fifth cause of action for assault, arguing that plaintiff's alleged imminent apprehension harmful/offensive contact (SAC ¶¶ 121-123) is insufficient where the SAC does not supply corroborating facts or admissible evidence supporting this element beyond plaintiff’s recollection. Similarly, Confectioner argues that the sixth cause of action for sexual battery should be adjudicated in his favor because “the SAC pleads no contemporaneous report by Plaintiff, no contemporaneous medical documentation, and no documentary corroboration.”
Aside from the failure to show that such contemporaneous evidence must exist to establish the claims set forth in the SAC, a complaint need only plead ultimate facts upon which liability depends. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) Evidence is not to be included in the complaint. (See “A complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.” (See Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) Pointing out that the SAC does not contain certain evidence does not negate any element of any cause of action, and does not shift the burden of production to plaintiff.
Confectioner then argues that the negligence-based causes of action focused on FUSD, alleging what FUSD knew or should have known, “do[] not establish triable evidence of each element supported by admissible proof.” However, in this section, 6
Confectioner does not identify any particular cause of action, or show what element of any cause of action is not adequately pled against him. And as noted above, the burden only shifts to plaintiff to produce such evidence once the moving defendant submits evidence negating an essential element of a cause of action. This Confectioner has not done. For some reason in the opposition plaintiff devotes substantial space arguing FUSD’s negligence, which is relevant to the claims against FUSD; not so much against Confectioner. It is unclear why plaintiff opposes Confectioner’s motion for summary judgment with evidence and arguments relating to FUSD’s negligence.
Finally, Confectioner argues,
Plaintiff pleads emotional distress and psychological damage, including anxiety, depression, lack of sleep, humiliation, loss of enjoyment of life, therapy expenses, and wage loss. (SAC W45(c), 47-48, 88, 96, 106, 118, 125, 132.)
Plaintiff previously alleged substantially similar emotional distress injuries in another lawsuit arising from different alleged conduct (Sacramento County case referenced in Defendant's RJN). Judicial estoppel prevents a party from asserting inconsistent positions in successive proceedings. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183-184; Jogani v. Jogam (2006) 141 Cal.App.4th 158, 169-170.) At minimum, this warrants strict evidentiary control and undermines any attempt to defeat summary judgment through generalized, recycled damages allegations rather than proof tied to admissible facts. (Emphasis added.)
This argument is entirely conclusory. Confectioner does not identify what inconsistent positions were taken in the Sacramento lawsuit. Simply vaguely referencing another lawsuit does not establish anything. Moreover, the argument by its terms shows that res judicata or judicial estoppel does not apply, since Confectioner argues that the Sacramento lawsuit arose from different conduct. Confectioner shows no relevance.
For these reasons the motion is denied.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: KCK on 05/15/26. (Judge’s initials) (Date)
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