Full Opinion

Filed 10/16/26; Certified for Publication 11/2/26 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT M. T., H053180 (Santa Cruz County Plaintiff and Appellant, Super. Ct. No. 22CV00971) v. PAJARO VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Respondent. Plaintiff and appellant M.T. alleges that Candace Mercer, an elementary school teacher in the Pajaro Valley Unified School District (the District), sexually abused him in August 1997, when he was a teenager. After M.T. sued the District for negligence and a breach of statutory duties, the District moved for summary judgment on two alternative grounds: (1) it did not owe any duty to M.T., and (2) it was immune from liability under Education Code section 44808. The trial court accepted both grounds in granting summary judgment. We discern no error in the trial court’s ruling, as M.T. was never a student of Mercer’s, the sexual abuse occurred away from school at Mercer’s home, and there was no school-related reason for M.T. to have been at Mercer’s home. We will affirm. I. BACKGROUND A. Facts M.T. met Mercer, who was a teacher at Rio Del Mar Elementary School, during the summer of 1997, the summer between his eighth and ninth grades. M.T. had never attended Rio Del Mar and had never met Mercer before, but M.T.’s sister was previously a student of Mercer’s in 1995-1996, and M.T.’s friend, E.S., was also a former student of Mercer’s. E.S. introduced M.T. to Mercer and accompanied him to Mercer’s home on two occasions that summer. On one occasion, the two boys attended a party with other students, where they smoked marijuana and drank alcohol, both in Mercer’s car and at her home. On the other occasion, M.T., E.S., and two other friends spent the night at Mercer’s home, where they consumed marijuana and alcohol again; after the other boys had gone to sleep, Mercer showed M.T. a pornographic movie and then sexually assaulted him. 1 Mercer had been sexually abusing E.S. for a much longer period of time. According to M.T., he had been hearing rumors about it for a “whole dang year,” the rumors were confirmed by E.S. himself, and E.S. had been going to Mercer’s house “since his days in elementary.” E.S. testified at his deposition that he went to Mercer’s house “a total of 15 to 20 times,” and “[s]even to ten times is when she raped me.” Soon after M.T.’s two visits to Mercer’s home, Mercer was arrested and accused of having victimized a total of seven boys in the District. She ultimately pled guilty to one felony charge and two misdemeanor charges, receiving a three-year prison sentence in January 1998. 1 At his deposition in January 2024, M.T. could not remember which visit came first, but his recollection was that they were within two weeks of each other, and they were the only times he went to Mercer’s home. 2 B. Procedural History M.T. filed the present action on May 11, 2022, with the District as the only named defendant. The operative first amended complaint asserted five causes of action against the District: (1) negligence under Government Code sections 815.2 and 820; (2) negligent hiring, supervision, and retention under Government Code sections 815.2 and 820; (3) negligent failure to warn, train, or educate under Government Code sections 815.2 and 820; (4) negligent supervision of a minor under Government Code sections 815 and 820; 2 and (5) breach of a mandatory duty under Government Code sections 815.6. The District moved for summary judgment based on the following undisputed material facts: (1) M.T. never attended Rio Del Mar Elementary School, (2) M.T. met Mercer through E.S., and (3) Mercer’s sexual assault of M.T. occurred at her home in the summer of “1998.” Other than correcting the year, which should have been 1997, M.T. did not identify any material dispute as to these facts in his opposition.3 Instead, he added a number of other facts that he argued were also material, including that Mercer “used her status as a District teacher to trick parents of District students into letting [them] hang out with her so she could groom and abuse them,” that District staff either knew or should have known that she was having parties and sleepovers at her home with students, and that the District either knew or should have known of other suspicious behaviors by Mercer that were “‘textbook’ grooming behavior[s].” The trial court issued a tentative ruling granting the motion, which M.T. contested at a hearing on February 13, 2025. The parties and the court spent the bulk of the hearing addressing the court’s evidentiary rulings, which the court agreed to modify in part. As 2 The fourth cause of action mistakenly cites section 815 instead of section 815.2. 3 Even though he admitted he was never a student at Rio Del Mar, M.T. quibbled with the notion that he never “attended” the school, based on the fact that he lived nearby and would periodically “hang out with friends [there] after school,” and that he once “attended” an open house for his sister’s sixth grade class in 1995 or 1996. These are not material factual disputes. 3 for the existence of a special relationship and a duty of care, M.T.’s counsel argued that the District’s duty was “not limited by school”: because M.T. was a student within the District as a whole, his attendance or non-attendance at a specific school “really has no bearing” on whether the District owed him a duty. The trial court stated that it would “adopt the [t]entative with the exception of the evidentiary objections ruling.” After entry of judgment against him, M.T. timely appealed. II. DISCUSSION A. The Standard of Review We review an order granting summary judgment under a de novo standard. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “ ‘A court may grant a motion for summary judgment or summary adjudication “only when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” ’ [Citations.]” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 123 (Lawndale).) B. Whether the District Had a Duty of Care to M.T. 1. School Districts and the “Special Relationship” with Students “A school district, like a county office of education, is a public entity.” (Doe v. Mount Pleasant Elementary School Dist. (2025) 113 Cal.App.5th 1208, 1216, fn. omitted (Mount Pleasant).) As such, it “is not liable for any injury from its own or its employees’ acts or omissions, ‘[e]xcept as otherwise provided by statute.’ (Gov. Code, § 815, subd. (a).)” (Id. at p. 1217.) One of those statutory exceptions is contained in Government Code section 815.2, subdivision (a), which 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 [or her] employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his [or her] personal representative.” 4 As noted above, M.T. has asserted causes of action under Government Code section 815.2 for four species of negligence: general negligence, negligent hiring, negligent failure to warn, train, or educate, and negligent supervision. “ ‘ “To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that [it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ [Citation.]” ’ ” (Lawndale, supra, 72 Cal.App.5th at p. 125.) Thus, the “threshold” inquiry is whether there was “a legal duty of care,” which “is a question of law” for the court. (Ibid.) The remaining liability questions—whether there was a breach of duty and whether there was causation— “ ‘are usually questions for the jury.’ [Citations.]” (Id. at p. 126.) As the California Supreme Court explained in Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214 (Brown) (and as the Court of Appeal reiterated in Lawndale), “ ‘[g]enerally, the “person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another” from that peril.’ ” (Lawndale, supra, 72 Cal.App.5th at p. 125.) Nevertheless, “ ‘[u]nder some circumstances, a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant’s own making.’ [Citations.] In particular, ‘a person may have an affirmative duty to protect the victim of another’s harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm.’ [Citations.]” (Id. at p. 125; see also Brown, supra, at p. 215.) “ ‘ “[A] typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.’ ” ’ [Citations.]” (Lawndale at p. 125; see also Brown at p. 220 [a special relationship “extends a right of recovery to individuals in relationships involving dependence or control, and who by virtue of those relationships have reason to expect the defendant’s protection”].) 5 Lawndale goes on to state: “ ‘[A] school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, “analogous in many ways to the relationship between parents and their children.” ’ [Citations.] ‘Because of this special relationship, imposing obligations beyond what each person generally owes others,’ the ‘duty of care owed by school personnel includes the duty to use reasonable measures to protect students 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.’ [Citations.]” (Lawndale, supra, 72 Cal.App.5th at pp. 125–126.) 2. There was No Special Relationship and Therefore No Duty of Care Owed by the District The trial court here determined that there was no special relationship between M.T. and the District as a matter of law, and this determination is supported by the undisputed material facts: (1) M.T. was never Mercer’s student or even a student at Mercer’s school, Rio Del Mar Elementary School; (2) M.T. met Mercer outside of school through his friend E.S.; and (3) M.T.’s two encounters with Mercer occurred at her home during the summer, when school was not in session. There was no “mandatory . . . school attendance,” no “comprehensive control over students exercised by school personnel,” and therefore no “reason to expect the [District’s] protection” under these circumstances. (Lawndale, supra, 72 Cal.App.5th at pp. 125–126.) M.T. takes issue with the foregoing analysis, but his arguments are conclusory and unpersuasive. As he did in the trial court, he argues here that the District owed a duty to him “as a District student,” regardless of whether he was “a Rio Del Mar student,” and that the “unique factual circumstances” of this case gave rise to a special relationship. Those unique circumstances include that M.T. “lived in close proximity to Rio Del Mar, had a sibling that attended Rio Del Mar, and was known to frequent Rio Del Mar’s 6 campus, such that [he] was a member of the Rio Del Mar community.” But M.T. fails to provide any explanation as to how these circumstances have any bearing on the existence of a special relationship. As noted above, a special relationship derives from the interrelated factors of dependence and control: where “ ‘ “the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.” ’ ” (Lawndale, supra, 72 Cal.App.5th at p. 125; see also Brown, supra, 11 Cal.5th at p. 220.) In the context of public education, it arises from “ ‘the mandatory character of school attendance and the comprehensive control over students exercised by school personnel.’ ” (Lawndale, supra, at p. 126.) M.T. does not show any possible connection between his living near Rio Del Mar, his having a younger sister who attended Rio Del Mar, or his sometimes “hang[ing] out” at Rio Del Mar after school and any of the hallmarks of dependence and control called for by the case law. None of these circumstances involved mandatory school attendance or “control over the plaintiff’s welfare.” Indeed, M.T. does not cite any authority to support the notion that a school district has a special relationship with a student when that student and a teacher from a different school (but the same district) interact at a private home, and when there is no school- related purpose for their interaction and no academic term in session. M.T. appears to contend, solely by virtue of the fact that he was “a District student” and Mercer was “a District teacher,” that the District necessarily had some control over his summer vacation and leisure activities, but he identifies no factual or legal support for this dubious concept. M.T. also tries to find significance in the fact that Mercer actively deceived his mother by telling her that M.T., E.S., “and some other boys from Rio Del Mar Elementary School were going to Mercer’s home to do yard work,” and that because Mercer “presented herself… as a District teacher to gain access to and further her sexual abuse of [M.T.],” this means that the District somehow had a duty to M.T. to protect him 7 from her predatory behavior. This misapprehends the nature of a special relationship between the student and the school district. Because that relationship is based upon dependence and control—not upon a parent’s subjective perceptions of a district employee or a district employee’s veneer of trustworthiness and reliability—any deceptive representations by Mercer to M.T.’s mother are ultimately irrelevant. M.T. presents no authority for the proposition that a school district employee can somehow manufacture a special relationship out of whole cloth by concocting an excuse to have a district student who is not even her own pupil come over to her house. 4 Whatever Mercer told M.T.’s mother and whatever his mother believed about Mercer have no impact on the question of whether there was actually a special relationship between the District and M.T. Because we agree with the trial court that M.T. failed to show the existence of a special relationship, and therefore a duty by the District to protect him from Mercer, we also agree with the District that under Rowland v. Christian (1968) 69 Cal.2d 108 there is no need to examine whether there are any “relevant policy considerations [that] counsel limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.) As the Supreme Court explained in Brown, the so-called “Rowland factors”—which examine “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved’ ”—are only to be considered if a duty exists based on a special relationship in the first place. (Brown, 4 The notion that that is all it takes to create a special relationship is made even more questionable by the excuse that Mercer actually used: nothing to do with school or the school district, but rather a false claim of “yard work.” 8 supra, at p. 217.) As a consequence, M.T.’s numerous arguments regarding the District’s alleged constructive knowledge of Mercer’s “inappropriate and deeply concerning behaviors with male students” in her classroom and the “foreseeability” of harm to students arising from her conduct are not relevant to this appeal. 5 We also note that in his reply brief, M.T. criticizes the District for failing to recognize “that there are two alternative routes to a ‘special relationship’ giving rise to a duty”: that it can “exist with either (1) a third person that imposes a duty upon the defendant to control the third person’s conduct, or (2) the plaintiff giving rise to the plaintiff’s right to protection.” According to M.T., the District “ignor[es]” the former while addressing “solely” the latter in its brief. The problem with this argument is that M.T.’s opening brief also does not address the concept of a special relationship between the District and Mercer, as opposed to between the District and M.T. In fact, this alternative theory was not articulated anywhere in the summary judgment briefing or hearing before the trial court. Accordingly, even if we were to lend credence to the notion that the District somehow had a duty to control Mercer’s non-school-related conduct in her own home during the summer break, the argument has been forfeited. (See P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344 (P&D) [“ ‘As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal . . . .’ ”]; Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106, fn. 6 (Bonzi) [“we do not consider arguments raised for the first time in a reply brief”].) 5 For the same reason, we have no need to address M.T.’s evidentiary arguments, which focus on deposition testimony addressing constructive notice and the foreseeability of harm, rather than the existence of a special relationship. In addition, the District correctly notes that the trial court did not actually exclude any of this evidence. 9 C. Whether the District is Immune from Liability Under Education Code Section 44808 For similar reasons, we will also uphold the trial court’s summary judgment ruling based on Education Code section 44808, which governs a school district’s liability for the conduct and safety of students when they are not on school property. 1. Public Entity Immunity Under Section 44808 Under section 44808, a school district is not “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 . . . 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.” It thus provides an exception to the exception for public entity liability set forth in Government Code section 815.2, quoted above, as well as an exception to the exception to the exception for such liability: as a public entity, a school district is not liable for negligence except as “provided by statute” (Gov. Code, § 815); Government Code section 815.2 provides for such liability, except it is “ ‘subject to any immunity of the public entity provided by statute’ ” (Mount Pleasant, supra, 113 Cal.App.5th at p. 1217); Education Code section 44808 provides immunity, except it does not immunize a school district from responsibility when the district undertakes to provide transportation, sponsor an activity off premises, or “otherwise specifically assume[] such responsibility.” (Ed. Code, § 44808.) 6 6 In Wolfe v. Dublin Unified School District (1997) 56 Cal.App.4th 126, 129, the appellate court clarified that the language at the end of the first paragraph of section 44808 (“or ‘failed to exercise reasonable care under the circumstances’ ”) is not “an independent basis for liability,” but rather applies only “during one of the mentioned ‘undertakings.’ ” 10 2. The District is Immune in this Case For the same reasons that there is no special relationship giving rise to a duty by the District, M.T.’s factual allegations fall squarely within the scope of immunity conferred by Education Code section 44808. Mercer’s sexual abuse of M.T. took place away from school property, and no school—neither hers nor his—undertook to provide transportation off campus or to sponsor a school-related activity off campus. Indeed, as already noted, Mercer did not even pretend that there was a school-related reason for M.T. to come to her house, saying only that the boys would be doing “yard work.” M.T. nevertheless argues that under Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508 (Hoyem), section 44808 does not apply to the circumstances here, because he has alleged that the District’s negligence on campus (negligent hiring, supervision, and retention of Mercer) caused M.T.’s injuries off campus. While it is true that in Hoyem, the Supreme Court concluded that “the off-campus situs of an injury does not ipso facto bar recovery from a school district,” that case is readily distinguishable from the present situation. (Id. at p. 515.) In Hoyem, a 10-year-old boy was supposed to be at school during school hours, but school personnel failed to supervise him; as a result, he wandered off the school grounds and was hit by a motorcycle at a public intersection. (Id. at p. 512.) In other words, the only reason the plaintiff was off campus to begin with was because of the school’s breach of its duty of care to him on campus, during school hours. In this case, by contrast, the District did not have a duty of care to M.T. for anything that occurred “on campus,” given that he was not a student of Mercer’s, he was not a student at Mercer’s school, and he did not meet her at the school or even during the school year. Indeed, in contrast to the plaintiff in Hoyem, M.T.’s encounters with Mercer had nothing to do with the fact that he was a District student and everything to do with the mere fact that he was a friend of E.S., who already knew Mercer. At oral argument, counsel for M.T. highlighted the recent opinion in Victor Valley Union High School Dist. v. Superior Court (2026) 121 Cal.App.5th 901 (Victor Valley), 11 which was decided after the parties’ briefing. But the facts of Victor Valley, like the facts of Hoyem, are distinguishable from the present case. The plaintiff in Victor Valley was a student of the alleged abuser, and the alleged abuser escorted the student from their joint school-related activity on campus (ROTC practice) directly to his home off campus. (Id. at pp. 903–904.) As a result, the trial court determined that there was a triable issue of material fact as to whether the District “ ‘negligently supervised [Student] while she was on campus or being instructed by or interacting with [Teacher],’ ” and the Court of Appeal left this ruling undisturbed. (Id. at p. 905.) There are no comparable triable issues under the facts of the present case. To hold that Evidence Code section 44808 does not apply under the circumstances of this case—where the injuries occurred away from school premises and had no connection with anything that occurred on school premises—would be directly inconsistent with the statutory language. We hold that section 44808 immunizes the District from liability in the present case, and this is an independent basis for affirming the trial court’s grant of summary judgment. D. M.T. Failed to Preserve Any Appeal Concerning the Fifth Cause of Action Finally, the District points out that in the trial court, M.T. did not present any arguments in opposition to the summary judgment motion based on the fifth cause of action for breach of a mandatory duty under Government Code section 815.6. The District also notes that M.T.’s opening brief does not say anything about the fifth cause of action or even mention section 815.6. Having reviewed M.T.’s summary judgment opposition brief, the transcript of the February 13, 2025 hearing, and M.T.’s opening brief on appeal, we agree with the District. Because M.T. did not raise the issue below or in his opening brief, any appeal as to the fifth cause of action has been forfeited. (P&D, supra, 190 Cal.App.4th at p. 1344.) Moreover, even though M.T.’s reply brief belatedly expends several pages on this point, as noted above, we do not consider arguments made for the first time on reply. (Bonzi, supra, 216 Cal.App.4th at p. 1106, fn. 6.) 12 III. DISPOSITION The order granting summary judgment is affirmed. The District is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).) 13 CHUNG, J.∗ WE CONCUR: GROVER, ACTING P. J. LIE, J. M.T. v. Pajaro Valley Unified School District H053180 ∗ Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Filed 11/2/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT M. T., H053180 (Santa Cruz County Plaintiff and Appellant, Super. Ct. No. 22CV00971) v. PAJARO VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Respondent. THE COURT: The opinion in the above-entitled matter filed on October 16, 2026, was not certified for publication in the Official Reports. Respondent requests that the opinion be certified for publication. Under California Rules of Court, rule 8.1105(c), the opinion is ordered published. CHUNG, J.∗ GROVER, ACTING P.J. LIE, J. M.T. v. Pajaro Valley Unified School District H053180 ∗ Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Trial Court: Santa Cruz County Superior Court Superior Court No. 22CV00971 Trial Judge: Hon. Syda K. Cogliati Attorneys for Plaintiff and Appellant: Michael Scott Smith M.T. Brian Wayne Plummer Herman Law Attorneys for Defendant and Respondent: Eric James Bengtson Pajaro Valley Unified School District Davis, Bengtson & Young, APLC Jennifer A. Cormier Laurelly Dale Manning Gross + Massenburg LLP M.T. v. Pajaro Valley Unified School District H053180