Filed 6/18/13 Cauzza v. Julian Union H.S. Dist. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



VICTOR CAUZZA et al.,                                               D060364

Cross-complainants and Appellants,

         v.                                                         (Super. Ct. No. 37-2008-00102526-
                                                                                           CU-PO-EC)
JULIAN UNION HIGH SCHOOL
DISTRICT,

Cross-defendant and Respondent.



         APPEAL from a judgment and postjudgment order of the Superior Court of San

Diego, Joel R. Wohlfeil, Judge. Affirmed.



         Daley & Heft, Lee H. Roistacher, Robert R. Heft, David P. Berman for Cross-

complainants and Appellants, Victor Cauzza and Julie Cauzza.

         Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Paul V. Carelli IV for Cross-

defendant and Respondent Julian Union High School District.
       Appellants Victor Cauzza and Julie Cauzza appeal from a summary judgment in

favor of respondent Julian Union High School District (District) on the Cauzzas' second

amended cross-complaint for equitable indemnity filed after the Cauzzas were sued by a

Julian High School student for personal injuries occurring on their property, where they

were storing a junior class homecoming float. The Cauzzas also appeal from a

postjudgment order awarding District costs as the prevailing party. The Cauzzas contend

the trial court erred in granting summary judgment because (1) they demonstrated a

triable issue of fact as to whether they had recoverable indemnity damages, namely the

potential recovery of attorney fees from District under Code of Civil Procedure1 section

1021.6; and (2) triable issues of fact exist as to whether District is entitled to immunity

from liability under Education Code section 44808. They further contend the trial court

erred by ruling it was without discretion to deny District costs as the prevailing party

under section 1032, subdivision (a).

       We conclude District demonstrated its entitlement to summary judgment and the

Cauzzas did not present evidence raising a triable issue of material fact for a jury. We

further conclude the trial court did not err in awarding District costs as the prevailing

party under section 1032. Accordingly, we affirm the judgment and postjudgment order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       We take the factual background from the undisputed facts in the parties' separate

statements, and otherwise state the facts and draw inferences favorable to the Cauzzas as



1      Statutory references are to the Code of Civil Procedure unless otherwise indicated.
                                              2
the parties opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 843; Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-

1250; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 197.)

       District hosts a homecoming parade as part of the Julian High School (JHS)

homecoming activities. For years, float building has been part of the annual homecoming

activities, and each high school class is permitted to construct a float for the parade,

which exists exclusively for the demonstration of class floats. The school schedules a

half day for students and faculty to participate in the parade.

       Each class at JHS has a class advisor for the year with responsibility to oversee

class meetings at which students made decisions concerning their floats. Scott Munson,

the senior class advisor for the 2007/2008 school year and also a teacher and coach at

JHS for 25 years, attended all of the official senior class meetings, and at times provided

input as to the meeting agendas. Class meetings were held on campus during school

hours in a particular class period, but students were not required to attend as long as they

had a legitimate school excuse to be somewhere else.2 Though they volunteered for the

advisor positions, District paid the senior and junior class advisors a stipend for their

participation. District exercised editorial control over the content of student class floats,

and that year, the seniors used their class funds to pay for float materials. Though


2      Munson testified at his deposition that if a senior class member did not want to
attend a meeting, he or she would either go to a counselor, the office, or to another
teacher and be excused from the meeting. Otherwise, if the student left campus he or she
could be considered truant. However, Munson stated the class meetings were not
mandatory. Another class advisor testified at her deposition that the class meetings
occurred during the "ssr" (silent sustained reading) class period.
                                              3
students did not receive any grade for their floats or for participation in their construction,

classes would be awarded points for their participation, which would accrue toward an

end-of-the-year prize for the most involved class.

       Students were aware of a tradition of vandalizing floats on the night before the

homecoming parade, which was referred to as "float night." The tradition involved

students throwing eggs or shooting paintballs at the floats as well as alcohol

consumption, and students in each class slept on the float that night to protect it. Munson

was aware of floats being hit by paintballs, and had seen football players who were

visibly bruised by paintballs but considered it a "badge of honor" to be hit by one while

protecting their floats. In the fall of 2007, students had approached Cheryl McColl, the

junior class advisor, to tell her they were concerned that other classes would throw eggs

or shoot paintballs at their floats. McColl asked Munson to advise his seniors to concern

themselves with their own float.

       In the years leading up to 2007, Detective Keith Dalton, a local sheriff's deputy

assigned to JHS, had spoken with previous superintendents, principals and even school

board members about the safety of float night activities and vandalism. He also

discussed concerns about safety, vandalism and trespassing with JHS students' parents,

specifically about the escalation of events, how unsafe it was, and how much law

enforcement time it was consuming. He had similar discussions with school board

members, and was aware that the administration at various times addressed the students

in assembly or through teachers, warning against behavior such as violating curfew or

trespassing. He had heard from previous administration members that the matter was not

                                              4
a school activity, but rather an after-school activity that took place off campus at a private

home.

        In 2007, the senior float was constructed at the home of David and Lisa Boyer,

whose daughter was a senior at JHS. That year, Munson and his daughter, who was also

then a senior, participated in the senior class float construction and Munson helped the

seniors finish their float on float night, which was October 4, 2007. Munson had been to

the Boyer residence three times including that night. On float night, he left the Boyers'

home at about 8:00 p.m. At some point, Munson told his students to protect their float.

He understood some seniors, including his daughter, were going to stay the night at the

Boyers' to protect their float. He did not admonish them to not mess with other class

floats. Jennifer Rose Smelser, a senior at JHS, was at the Boyers' home and drank

alcohol while she was there, as did other seniors.

        The junior class float was at the Cauzzas' home that night. Bud Cauzza was a JHS

graduate and had attended all four years of high school there. On the afternoon of

October 4, 2007, McColl stopped at the Cauzzas and left around dinner time. Though she

was not required to participate in float building, she had been to the Cauzzas' on more

than one occasion to check on the students' progress. Before she left, Bud Cauzza

expressed his concern about something happening with eggs or paintballs, and McColl

told him that if for any reason they felt uncomfortable during the night, they should call

the police.

        Just after midnight, Smelser and some of her friends passed through a barbed

fence onto the Cauzzas' property to throw eggs and shoot paintballs at the junior class

                                              5
float. At some point after she had run down a hill toward the float, an unknown object

struck Smelser in the head and injured her. The following day, District cancelled the

homecoming parade and the scheduled short school day. The JHS interim superintendent

and principal, Peter McHugh, apologized to students during the assembly the next day,

telling them he did not do his job as an educator and that in the future it was his

responsibility to do a better job about educating them about proper conduct. Thereafter,

an administrative decision was made to require float building to take place on campus,

and District hired security guards to protect the floats.3

       Smelser and her parents sued the Cauzzas for personal injuries, alleging the

Cauzzas' son, Todd Cauzza, hit Smelser in the head that night with a baseball bat. The

Cauzzas then filed a government tort claim with District. After District rejected their

claim, the Cauzzas filed a cross-complaint against District for contribution, implied and

express indemnity and declaratory relief, alleging that negligence by District employees

contributed to Smelser's injuries. The trial court eventually granted the Cauzzas leave to

file a second amended cross-complaint adding claims for negligent supervision and

"statutory liability." Other defendants, including Todd Cauzza, filed indemnity and

contribution cross-complaints against District.

       District moved for summary judgment or alternatively summary adjudication of

issues on the Cauzzas' indemnity cross-complaint. It argued it was immune from liability


3      District objected to this evidence, which the Cauzzas provided via deposition
testimony of Cara Kern, as inadmissible "[s]ubsequent repair evidence." There is no
indication the trial court considered this objection or ruled upon it, but the objections are
nevertheless preserved on appeal. (Reid v. Google (2010) 50 Cal.4th 512, 532.)
                                              6
under Education Code section 44808 as a matter of law because (1) Smelser was not on

school property when she was injured; (2) District did not undertake a school-sponsored

activity off school property; (3) District did not specifically assume responsibility or

liability for the off-campus activity; (4) the Cauzzas could not maintain a separate

negligence action against it; (5) Smelser was not, and should not have been, under the

direct supervision of a District employee when she was injured; and (6) the Cauzzas

failed to properly allege a dangerous condition.

       In November 2010, the Cauzzas obtained summary judgment on Smelser's

complaint on grounds they did not owe Smelser a duty of care as a matter of law, and her

parents did not allege a direct injury. In opposition to District's motion, they argued in

part that though they had been absolved from liability, they nevertheless had a right to be

indemnified under section 1021.6 for the attorney fees incurred in defending Smelser's

complaint. They also sought sanctions against District in part for its asserted refusal to

agree to a cost waiver.

       Thereafter, the trial court granted summary judgment in District's favor.

Sustaining some of District's objections to the Cauzzas' evidence, it first ruled section

1021.6 by its terms only applied to claims for implied indemnity where the indemnitee

has been required to bring or defend an action through the tort of the indemnitor, and did

not apply to the Cauzzas because they were not required to defend the action based solely

on District's wrongdoing. It then turned to the Cauzzas' claims that District did not

qualify for immunity under Education Code section 44808, ruling: the Cauzzas did not

provide evidence that District employees breached a duty owed to Smelser while she was

                                              7
on campus; there was no evidence District required attendance or gave credit for

participating in float building; the class advisors' participation in float construction was

not a specific assumption of responsibility or liability by District; there was no evidence

District required class advisors to attend any off-campus function regarding float building

or that any advisor spent the night, and thus Smelser was not, nor should she have been,

under the immediate and direct supervision of a District or school board employee. The

court denied the Cauzzas' request for sanctions.

       In June 2011, District filed a memorandum of costs seeking $15,335.76 in costs as

the prevailing party. The Cauzzas moved to tax the costs bill in its entirety on grounds

District was not a prevailing party under section 1032 and it was inequitable to award

prevailing party costs to District, where the Cauzzas' indemnity claim was extinguished

by virtue of their prevailing against Smelser. Alternatively, they asked the court to

apportion the costs between the four distinct cross-complaints against District, and reduce

the maximum recoverable costs to $3,525.31.

       The trial court granted in part and denied in part the Cauzzas' motion to tax. It

determined District was a prevailing party under section 1032, subdivision (a)(4) entitled

to statutory costs. Pointing to the grounds on which it granted summary judgment in

District's favor and citing Great Western Bank v. Converse Consultants, Inc. (1997) 58

Cal.App.4th 609, 613, the court reasoned: "A cross-defendant for indemnity in whose

favor a dismissal of the cross-complaint is entered is the prevailing party. [Citation.]

The Great Western case cites numerous cases involving the dismissal of indemnity

claims after good faith settlement determinations. The Court has held that a dismissed

                                              8
indemnitor is entitled to costs as a prevailing party even in situations where the indemnity

claims were 'deemed filed' (i.e. no actual cross-complaint filed but the cross-complaint

was deemed filed by a case management order signed by all parties in the case). Great

Western and the cases cited therein make it clear that there is no 'equitable' basis to

disallow costs if the party meets the statutory definition for costs of [section] 1032."

(Italics added, some capitalization omitted.)

       The Cauzzas appeal from the ensuing judgment, as well as the postjudgment order

awarding District costs.

                                       DISCUSSION

      I. Summary Judgment on the Cauzzas' Equitable Indemnity Cross-Complaint

A. Legal Standards

       " ' " ' "Summary judgment is proper only where there is no triable issue of material

fact and the moving party is entitled to judgment as a matter of law. [Citation.] 'To

secure summary judgment, a moving defendant may prove an affirmative defense,

disprove at least one essential element of the plaintiff's cause of action [citations] or show

that an element of the cause of action cannot be established [citations].' [Citation.] 'All

doubts as to whether any material, triable issues of fact exist are to be resolved in favor of

the party opposing summary judgment.' " ' " ' " (Eric M. v. Cajon Valley Union School

Dist. (2009) 174 Cal.App.4th 285, 292 (Eric M.), quoting Guerrero v. South Bay Union

School District (2003) 114 Cal.App.4th 264, 268 (Guerrero).)

       We independently review the moving and opposing summary judgment papers to

ascertain whether the parties met their respective burdens (ibid.), applying the same legal

                                                9
standard as the trial court in determining whether there are any genuine issues of material

fact or whether the moving party is entitled to judgment as a matter of law. (Greystone

Homes, Inc.. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1207.) We consider all of the

evidence except that to which objections have been made and sustained. (Guz v. Bechtel

National, Inc. (2000) 24 Cal.4th 317, 334.)

B. Application of Section 1021.6

       The Cauzzas argue the trial court erred as a matter of law in ruling they had no

recoverable indemnity damages following their success on Smelser's complaint, or could

not recover section 1021.6 attorney fees in defending against Smelser's claims, thus

entitling District to summary judgment. They maintain all they needed to show to avoid

summary judgment was they could potentially recover attorney fees, and met that burden

when they showed they were adjudged innocent indemnitees. The Cauzzas also fault the

trial court's conclusion that section 1021.6 fees were not recoverable by an indemnitee

defending itself in an action alleging its own wrongdoing. They argue such a rule would

render the statute a nullity, and was not the Legislature's intent.4



4      We observe District did not raise or discuss section 1021.6 in its moving or reply
summary judgment papers. The Cauzzas first raised the statute in opposition to District's
motion, arguing that despite the finding of no liability in the Smelser action, they
nevertheless could maintain an indemnity action under section 1021.6, which allowed
innocent indemnitees such as themselves to recover attorney fees. District had an
opportunity to develop its arguments and evidence in response. Because the
interpretation of a statute is a question of law (Bruns v. E Commerce Exchange, Inc.
(2011) 51 Cal.4th 717, 724), and the essential procedural facts relevant to the application
of section 1021.6 are undisputed, we may consider the matter even assuming it was not
fully briefed below. (Ward v. Taggart (1959) 51 Cal.2d 736, 742; Cal Sierra Const., Inc.
v. Comerica Bank (2012) 206 Cal.App.4th 841, 851 [legal arguments may be raised for
                                              10
       Section 1021.6 provides: "Upon motion, a court after reviewing the evidence in

the principal case may award attorney's fees to a person who prevails on a claim for

implied indemnity if the court finds (a) that the indemnitee through the tort of the

indemnitor has been required to act in the protection of the indemnitee's interest by

bringing an action against or defending an action by a third person and (b) if that

indemnitor was properly notified of the demand to bring the action or provide the defense

and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined

that the indemnitee was without fault in the principal case which is the basis for the

action in indemnity or that the indemnitee had a final judgment entered in his or her favor

granting a summary judgment, a nonsuit, or a directed verdict."

       Section 1021.6 permits an indemnitee to recover attorney fees incurred in the

principal action where that indemnitee is adjudged to be without fault in that action.

(Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164 Cal.App.3d 1227, 1244,

disapproved on other grounds in Bay Development, Ltd. v. Superior Court (1990) 50

Cal.3d 1012, 1031-1032 & fn. 12 (Bay Development).) It does not create a statutory right

to indemnity, but "merely 'permits an indemnitee to recover . . . attorney fees in an

implied indemnity action under specified circumstances.' " (John Hancock Mutual Life

Ins. Co. v. Setser (1996) 42 Cal.App.4th 1524, 1531.) A claim for attorney fees under

section 1021.6 thus is "simply a statutory incident" of a "successful common law claim

for implied equitable indemnity." (Id. at p. 1534.)


the first time on appeal where new theory presents a question of law to be applied to
undisputed facts in the record].)
                                              11
       A prerequisite of recovering attorney fees under section 1021.6 is a determination

that the party seeking fees is a prevailing indemnitee: that the party in fact succeed on its

claim for implied indemnity against the indemnitor. (See Uniroyal Chemical Co. v.

American Vanguard Corp. (1988) 203 Cal.App.3d 285, 296 [" 'section 1021.6 read as a

whole, clearly applies only to an indemnitee who prevails on a claim against an

indemnitor' "].) And, "[a] would-be indemnitee may be eligible to recover attorney fees

under section 1021.6 even when . . . the indemnitee has been absolved of all liability for

the plaintiff's injuries, so long as the indemnitee demonstrates it would have been entitled

to indemnity for any judgment that had been rendered against it." (Bay Development,

supra, 50 Cal.3d at p. 1027, italics added.) Thus, to defeat summary judgment on this

ground, the Cauzzas were required to demonstrate triable issues of material fact as to

whether, had Smelser obtained a judgment against them in her action, they would have

been entitled to some form of implied indemnity from District.

       The California Supreme Court has explained that there are only two basic types of

indemnity: express indemnity (requiring express contractual language establishing one

party's duty to save another harmless on the occurrence of specified circumstances) and

equitable indemnity. (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157,

1158.) Implied contractual indemnity is "but a form of equitable indemnity." (Id. at p.

1157, fn. 2.) The other form of equitable indemnity, "traditional equitable indemnity," is

"indemnity arising from the equities of particular circumstances . . . ." (Id. at p. 1157.)

Traditional equitable indemnity, the only type of equitable indemnity at issue here,

requires no contractual relationship between indemnitor and indemnitee. (Id. at p. 1158.)

                                             12
It " 'is premised on a joint legal obligation to another for damages,' but it 'does not

invariably follow fault.' " (Ibid.) The doctrine is subject to principles pertaining to

allocation of fault and comparative equitable apportionment of loss. (Ibid.)

       "A key restrictive feature of traditional equitable indemnity is that, on matters of

substantive law, the doctrine is 'wholly derivative and subject to whatever immunities or

other limitations on liability would otherwise be available' against the injured party.

[Citations.] This rule 'is often expressed in the shorthand phrase . . . there can be no

indemnity without liability.' " (Prince v. Pacific Gas & Elec. Co., supra, 45 Cal.4th at

pp. 1158-1159; see Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787

["As against the indemnitee, the indemnitor may invoke any substantive defense to

liability that is available against the injured party"].)

       As we will explain more fully below, even assuming the Cauzzas could establish

that District owed a duty of care to Smelser, the Cauzzas cannot establish District's

liability by virtue of the immunity of Education Code section 44808. For those reasons,

they are unable to establish the necessary showing for recovery of attorney fees under

Code of Civil Procedure section 1021.6., namely, some potential entitlement to implied

indemnity from District.

C. District's Duty of Care to Smelser

       The Cauzzas contend triable issues of material fact exist as to whether on-campus

negligence by District employees contributed to Smelser's injury and whether District

specifically assumed responsibility for the off-campus float building, precluding any

immunity provided by Education Code section 44808. In part, they argue Education

                                               13
Code section 44808 does not provide blanket immunity to District simply because

Smelser's injury occurred off campus, particularly where District failed to exercise

reasonable care.

       Before the question of statutory immunity arises, it is first necessary to establish

that District owed Smelser a duty of care. (See Lackner v. North (2006) 135 Cal.App.4th

1188, 1204, fn. 8; citing Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202;

Williams v. State of California (1983) 34 Cal.3d 18, 22 [emphasizing the impropriety of

placing the "immunity cart . . . before the duty horse"].) This inquiry is a question of law.

(J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 138; Catsouras v.

Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 876.)

       Except as provided by statute, a public entity such as District is not liable for an

injury arising out of an act or omission by itself or its employees. (Gov. Code, §§ 811.2

[" 'Public entity' " includes a "district"] 815, subd. (a); Hoff v. Vacaville Unified School

Dist. (1998) 19 Cal.4th 925, 932.) One such statute is Government Code section 815.2,

subdivision (a), which provides that "[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." (Hoff, at p. 932.) "Through this section, the

California Tort Claims Act expressly makes the doctrine of respondeat superior

applicable to public employers," and thus District is " 'vicariously liable' " for any injury

that one of its employees causes to the same extent as a private employer. (Ibid.)



                                              14
Accordingly, " 'a school district is vicariously liable for injuries proximately caused by

[the] negligence' of school personnel 'responsible for student supervision.' " (Ibid.)

       Under these standards, District could be vicariously liable for injuries proximately

caused by the negligence of its class advisors, who supervised the students during on-

campus meetings held during school hours in connection with their float planning

activities. "The law regarding the duty of supervision on school premises is very, very

well established. 'It is the duty of the school authorities 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. [Citations.] The school district is liable for injuries which

result from a failure of its officers and employees to use ordinary care in this respect.

[Citations.]' [Citation.] 'What is ordinary care depends upon the circumstances of each

particular case and is to be determined as a fact with reference to the situation and

knowledge of the parties.' " (J.H. v. Los Angeles Unified School Dist., supra, 183

Cal.App.4th at pp. 139-140; see C.A. v. William S. Hart Union High School Dist. (2012)

53 Cal.4th 861, 865 ["Ample case authority establishes that school personnel owe

students under their supervision a protective duty of ordinary care, for breach of which

the school district may be held vicariously liable"].) The existence of a duty of care

depends in part on whether the harm to the plaintiff was reasonably foreseeable. (See

Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459.)

       This case does not involve a student injury occurring on school grounds. But, as

the Cauzzas correctly point out, the question of a school district's duty does not turn on

whether the injury occurs on school grounds. (See Guerrero, supra, 114 Cal.App.4th

                                              15
264, 270; Eric M., supra, 174 Cal.App.4th 285, 294; Perna v. Conejo Valley Unified

School District (1983) 143 Cal.App.3d 292, 295 [question of fact presented on school

district's negligence where teacher kept a 12-year-old student after class, forcing her and

her 14-year-old sister to leave school after crossing guard left]; Calandri v. Ione Unified

School Dist. (1963) 219 Cal.App.2d 542, 549-550 [trial court correctly made a

preliminary determination that school district owed a duty of care when a 15-year-old

student was injured at home by a toy cannon he made in a school shop class].) They

contend the evidence is in dispute as to whether on-campus negligence was committed by

District employees. Maintaining the evidence shows District personnel knew "of the

danger associated with float night but did nothing about it until after the . . . incident,

despite having the obvious ability to do so earlier" and pointing out District "easily

solved the problem after the incident by precluding off-campus float construction," the

Cauzzas argue it was for the trier of fact to decide whether on-campus negligence by

District employees contributed to Smelser's injury on their property.

       District's response is that the risk of harm was not foreseeable; that the evidence

showed there had been no significant injury to any participant in the float building, and

thus nothing to "put a thoughtful person on notice that an adult might attack a student

with a baseball bat." According to District, "[t]he injury resulted in a completely

unforeseeable attack by an adult—not a student—who was not defending a float or a

student class, who attacked with a potentially lethal weapon—[a] baseball bat—not a

paint ball gun." It argues there could be no duty upon District under these circumstances.



                                              16
       District's assertions about foreseeability are unpersuasive. First, there is no

evidence of what exactly caused Smelser's head injury. Second, foreseeability is

determined in light of all the circumstances and does not require prior identical or even

similar events or injuries. (M.W. v. Panama Buena Vista Union School Dist. (2003) 110

Cal.App.4th 508, 519.) " 'It is not necessary to prove that the very injury which occurred

must have been foreseeable by the school authorities . . . . Their negligence is established

if a reasonably prudent person would foresee that injuries of the same general type would

be likely to happen in the absence of [adequate] safeguards.' [Citations.] . . . '[T]he issue

of 'foreseeability' does not depend upon the foreseeability of a particular third party's act,

but instead focuses on whether the allegedly negligent conduct at issue created a

foreseeable risk of a particular kind of harm.' " (M.W. v. Panama Buena Vista Union

School Dist., at p. 519, quoting in part Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d

594, 600.) "Neither the mere involvement of a third party nor that party's wrongful

conduct is sufficient in itself to absolve [a school district] of liability, once a negligent

failure to provide adequate supervision is shown." (Dailey v. Los Angeles Unified Sch.

Dist. (1970) 2 Cal.3d 741, 750; see also C.A. v. William S. Hart Union High School Dist.,

supra, 53 Cal.4th 861, 870; J.H. v. Los Angeles Unified Sch. Dist., supra, 183

Cal.App.4th at p. 144.)

       Here, the Cauzzas presented evidence that District's paid class advisors supervised

and assisted students during school hours in connection with the District-sponsored

homecoming activities, particularly to assist them with respect to their class floats. The

evidence is undisputed that Munson and McColl were aware of the float night practice of

                                               17
students "messing" with floats, both visited the Boyd and the Cauzza properties the night

before homecoming, and their knowledge extended to the storage of class floats on

private property as well as the likelihood of students trespassing on private property in an

attempt to vandalize floats stored there with eggs and paintballs guns. The advisors knew

at least some students would spend the night on their floats, and it was foreseeable they

would take steps to "protect" or defend their floats (Munson in fact advised his students

to protect their float). It was foreseeable under the circumstances that a private property

owner might respond with some efforts of their own to prevent trespass or property

damage. Indeed, District superintendents and board members had been warned by

Detective Dalton about the increasingly serious nature of float night activities, the

trespassing involved, and the general "escalation" of events. These sorts of facts tend to

give rise to District's duty of care to take steps to protect against injuries likely to result

from these float night activities.

       We need not, however, further discuss the relevant factors underlying the duty of

care analysis. (See C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at

p. 877, fn. 8 [duty of care analysis requires consideration not only of the foreseeability of

harm to the plaintiff, but also factors such as " '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' "]; Titus v. Canyon

                                               18
Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 911-912.) Even if we were to

conclude District, via its own negligence or the negligence of Munson or McCall, owed

Smelser a duty of care under these circumstances, we nevertheless hold the Cauzzas have

not demonstrated a triable issue of material fact as to District's immunity from liability

under Education Code section 44808.

D. The Cauzzas' Evidence Does Not Raise Factual Issues as to Whether District

Specifically Assumed Responsibility or Liability For Off-Campus Float Building, and

Failed to Exercise Reasonable Care Under the Circumstances to Preclude Immunity

Under Education Code section 44808

       As pertinent here, Education Code section 44808 provides that District will not be

"responsible or in any way liable for the . . . safety of any pupil . . . at any time when such

pupil is not on school property" unless District has "undertaken a school-sponsored

activity off the premises, has otherwise specifically assumed such responsibility or

liability or has failed to exercise reasonable care under the circumstances." (Ed. Code,

§ 44808.) If District engages in "such a specific undertaking," it is liable or responsible

for a pupil's safety only where he or she "is or should be under the immediate and direct

supervision of an employee of such district or board."5 (Ibid.)



5      In full, Education Code section 44808 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
                                              19
       This court addressed Education Code section 44808 in a summary judgment

context in Guerrero, supra, 114 Cal.App.4th 264 and Eric M., supra, 174 Cal.App.4th

285. In Guerrero, the six-year-old plaintiff was struck by a car while crossing the street

in front of her school, approximately 30 minutes after her release from school while she

was waiting to be picked up. (Guerrero, 114 Cal.App.4th at pp. 266-267.) One of the

plaintiff's opposing summary judgment arguments was "that the accident was caused by

[the school district's] failure to properly supervise her while on school grounds." (Id. at

p. 269.) In rejecting that argument, the Guerrero majority explained that under

Education Code section 44808, "[the school district] would not be liable for injuries off

campus and after school unless they were the result of the District's negligence occurring

on school grounds or were the result of some specific undertaking by the District, which

was then performed in a negligent manner." (Guerrero, at p. 269.) It addressed cases in

which a duty had been found relative to an off-campus injury, concluding that "[e]ach of

the cases in which schools have been held to have a duty of care for the safety of students

off campus and after school arises from circumstances where school personnel did

something on campus or failed in their supervisory duties on campus. . . . [¶]

[Plaintiff's] case does not present any basis for constructing a duty to exercise reasonable

care for her safety after she was released from school. Although she argues the District

failed in its duty to supervise her while on school grounds, she does not articulate what

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."
                                              20
the school's duty should have been or what action the school should have taken. No

evidence was presented in the summary judgment proceeding that the District or the

school supervised the public street where [the plaintiff] and her siblings waited to be

picked up. Nor are there any facts presented to show how the on-campus conduct of the

school related to the off-campus injury." (Id. at p. 270.) It found "no factual connection

to [the plaintiff's] release from school in the company of her siblings and her unfortunate

accident after she was released from school." (Ibid.) Accordingly, in Guerrero, the

majority held the district in that case owed no duty of care to the plaintiff under the

circumstances.

       Both Guerrero and Eric M. further observed that any failure to exercise reasonable

care by a school district must be tied to one of the mentioned undertakings in Education

Code section 44808. " 'To construe [the failure-to-exercise-reasonable-care-under-the-

circumstances language of Education Code section 44808] as an independent basis for

liability would be to say, absurdly: A district is never liable in negligence unless it acts

negligently. Also, the breach must be of a duty, a duty created through one of the

undertakings. [Citation.] "The 'reasonable care' phrase enunciates a standard of care and

as such cannot exist in a vacuum; in the absence of a duty to which it applies, the phrase

is meaningless." ' [Citations.] [¶] 'In essence, the section grants a district immunity

unless a student was (or should have been) directly supervised during a specified

undertaking.' " (Guerrero, supra, 114 Cal.App.4th at pp. 271-272, quoting Wolfe v.

Dublin Unified School District (1997) 56 Cal.App.4th 126, 129; see also Eric M., supra,

174 Cal.App.4th at p. 295, fn. 4.)

                                              21
       On appeal, the Cauzzas do not argue (as they did in their opposing papers below)

that their evidence demonstrated District undertook a "school-sponsored activity" off the

premises in which students were or should have been under the immediate and direct

supervision of a District employee, which is one source of a duty of care on District's

part.6 (See Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th

821, 830.) Instead, the Cauzzas contend the evidence raises triable issues as to whether

District specifically assumed responsibility for off-campus float building, and failed to

exercise reasonable care under the circumstances. They point to McHugh's apology to

students the next day, characterizing it as evidence that McHugh "believed his failure to

properly ensure students were taught appropriate responsibility and behavior played a

role in Smelser's injury." They also point to District's decision to change the location of

float building and hire security guards to prevent incidents like Smelser's.

       District does not directly respond to this claim, but instead argues the injuries did

not occur at a school-sponsored activity; that neither vandalizing a float, trespassing, nor

off-campus construction were part of the school curriculum. District also argues there is

no evidence (a) it sponsored Smelser's actions in trespassing and vandalizing the float; (b)

it required class advisors to spend float night supervising the floats; (c) class advisors

ever spent the night with a float; or (d) parents expected the advisors to spend the night


6       "For purposes of sections 44808 . . . a ' " 'school-sponsored activity' " ' is ' "one
that requires attendance and for which attendance credit may be given . . . ." ' [Citation.]
'[T]he test is not really whether the student's participation [is] voluntary or not, but
whether the off-premises activity [is] part of the school curriculum.' " (Patterson v.
Sacramento City Unified School Dist., supra, 155 Cal.App.4th at p. 830.)

                                              22
with the floats. District maintains that at the time of her injury, Smelser was not, nor

should she have been, under the direct supervision of District employees.

       On summary judgment review, we decide whether there is evidence from which a

jury could infer or conclude District directly or specifically assumed responsibility for

student safety relating to off-campus float-building activities, and whether there are

triable issues as to whether it failed to exercise reasonable care with respect to that

specifically assumed activity. On this point, we cannot say the Cauzzas' evidence gives

rise to a jury question. The fact District had class advisors assist the students with their

float decision making, or even the fact the advisors allowed students to store the floats off

campus during float night, does not constitute District's specific assumption of

responsibility or liability for the students' off-campus conduct in building, vandalizing, or

protecting, their class floats. Though the class advisors assisted in float construction,

they were not required to do so, and they did not stay to protect the floats. (See Hoff v.

Vacaville Unified School Dist., supra, 19 Cal.4th at p. 940 [evidence that school district

never supervised overflow parking lot where accident occurred at the end of the school

day "unequivocally establishe[d] that the District did not specifically assume any

responsibility to supervise student driving in the overflow lot"; the school district's

decision to supervise the school's main lot could not be expanded to an assumption of a

general duty to supervise all student driving at the school].)

       In Cerna v. City of Oakland, supra, 161 Cal.App.4th 1340 (Cerna), the Court of

Appeal upheld a summary judgment in a school district's favor, after considering whether

the District in that case had specifically assumed responsibility to ensure safe school

                                              23
access in a situation where the plaintiff children were either killed or injured while they

crossed a city street on their way to school. (Id. at pp. 1344-1345, 1358-1359.) The

plaintiffs, who were hit by an unlicensed motorist, had argued the district specifically

assumed responsibility for their safety by (1) preparing an environmental impact report

(EIR) analyzing traffic safety impacts; (2) adopting a resolution finding the site selection

standards for the school were met, including standards for pedestrian safety; and (3)

telling parents it would take steps to make it safe for walking to and from the school. (Id.

at p. 1358.) The appellate court held none of these actions constituted a specific

assumption of responsibility under Education Code section 44808. (Cerna, at p. 1358.)

       Specifically, Cerna explained that the EIR had a specialized purpose for long term

environmental protection, and, reviewing the EIR's factual conclusions as to the

generation of "increased pedestrian activity" on the street and the safety of a different

intersection closest to the school having crossing signals, observed it contained nothing

suggesting the district had assumed any responsibility for pedestrian safety at the subject

intersection. (Cerna, supra, 161 Cal.App.4th at pp. 1358-1359.) With regard to the

district's resolution, the Court of Appeal observed the district had found the school

project met statutory and regulatory site selection standards, and had stated it was on

streets with a "heavy traffic pattern" but that a mitigation plan had been developed that

complied with a pedestrian safety manual edition of the California Department of

Transportation. (Id. at p. 1359.) However, the Cerna court held the manual did not

create mandatory duties but only provided advisory guidelines that recommended

standards and procedures aimed at bringing about desirable safety conditions. (Ibid.)

                                             24
Thus, the district's adoption of those guidelines provided no basis to conclude the district

specifically assumed liability for student conduct and safety. (Id. at p. 1360.)

         Finally, the Cerna court rejected the argument that the district assumed

responsibility for student safety by statements made by unidentified school

representatives that " 'various things would be done to make it safe for students to walk to

and from School,' " including installation of traffic lights or stop signs, crossing guards,

and presence of police officers. (Cerna, supra, 161 Cal.App.4th at p. 1360.) The Court

of Appeal found the alleged representations "too general and vague to constitute a

specific assumption of liability under [Education Code] section 44808." (Cerna, at p.

1360.) That circumstance, combined with the fact crossing guards were a municipal

obligation outside the responsibility of school districts providing "essentially a police

function," and the fact the lack of a crossing guard was not a proximate cause of the

injuries suffered, compelled the court to affirm the summary judgment. (Id. at pp. 1360-

1361.)

         The evidence presented by the Cauzzas here does not come close to the type of

actions or statements of the school district in Cerna, which were held insufficient to

defeat summary judgment on a claim it specifically assumed liability for student safety

under Education Code section 44808. McHugh's apology to students, District's decision

to relocate float building after 2007 (assuming the decision is admissible on the issue of

District's control, see Evid. Code, § 1151; Cal. Law Revision Com. com., 29B pt. 3B

West's Ann. Evid. Code, foll. § 1151, p. 450; Ault v. International Harvester Co. (1974)

13 Cal.3d 113, 119), and District's provision of class advisors who were aware of float

                                              25
night activities, neither separately nor collectively raise a triable issue of material fact as

to whether District specifically assumed responsibility or liability for student safety

during off-campus float-building activities. For the foregoing reasons, we affirm the

summary judgment.

     II. Prevailing Party Determination under Code of Civil Procedure Section 1032

       The Cauzzas contend the trial court erred by ruling it was without discretion to

deny District prevailing party costs under section 1032, subdivision (a). They maintain

as a matter of statutory interpretation, the trial court possessed discretion to decide in

unusual circumstances that a party may not meet the definition of a prevailing party as in

the present case, where the Cauzzas, who were ultimately successful in Smelser's action

against them, were compelled by the Government Claims Act to initiate indemnity claims

against District before they obtained a favorable liability determination and then

summary judgment in the underlying action.

       District responds that it falls squarely within section 1032, subdivision (a)(4),

namely, it qualifies as a "cross-defendant in whose favor a dismissal of the cross-

complaint is entered," entitling it to litigation costs as a matter of right. It further argues

that even assuming the trial court retained discretion to award costs, it exercised its

discretion by naming District as the prevailing party as part of the judgment without

objection from the Cauzzas, who have not shown how the court's discretion was abused.

Finally, District maintains nothing compelled the Cauzzas to countersue the District until

such time they were found liable; it was not a compulsory cross-complaint.



                                               26
A. Standard of Review

        "Generally, a trial court's determination that a litigant is a prevailing party, along

with its award of fees and costs, is reviewed for abuse of discretion." (Goodman v.

Lozano (2010) 47 Cal.4th 1327, 1332.) When an issue involves interpretation of a

statute, however, it becomes a question of law subject to de novo review. (Ibid.) "In

interpreting a statute, our primary goal is to determine and give effect to the underlying

purpose of the law. [Citation.] 'Our first step is to scrutinize the actual words of the

statute, giving them a plain and common-sense meaning.' [Citation.] ' "If the words of

the statute are clear, the court should not add to or alter them to accomplish a purpose that

does not appear on the face of the statute or from its legislative history." ' [Citation.] In

other words, we are not free to 'give the words an effect different from the plain and

direct import of the terms used.' " (Ibid.)

B. Section 1032 and Its Definition of Prevailing Party

        Section 1032 provides in part:

        "(a) As used in this section, unless the context clearly requires otherwise:

        "(1) 'Complaint' includes a cross-complaint.

        "(2) 'Defendant' includes a cross-defendant or a person against whom a complaint

is filed.

        "(3) 'Plaintiff' includes a cross-complainant or a party who files a complaint in

intervention.

        "(4) 'Prevailing party' includes the party with a net monetary recovery, a

defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor

                                               27
defendant obtains any relief, and a defendant as against those plaintiffs who do not

recover any relief against that defendant. When any party recovers other than monetary

relief and in situations other than as specified, the 'prevailing party' shall be as determined

by the court, and under those circumstances, the court, in its discretion, may allow costs

or not and, if allowed may apportion costs between the parties on the same or adverse

sides pursuant to rules adopted under Section 1034.

         "(b) Except as otherwise expressly provided by statute, a prevailing party is

entitled as a matter of right to recover costs in any action or proceeding."

C. District is a Prevailing Party as a Matter of Right Under Section 1032, Subdivision

(a)(4)

         The Cauzzas contend that the phrase "unless the context clearly requires

otherwise" in section 1032, subdivision (a) plainly "give[s] the trial court some discretion

in prevailing party determinations in other than normal circumstances even where, like

here, one party meets one of the specified definitions of a prevailing party." The Cauzzas

assert that phrase provides a limitation on the right to recover costs, citing Sears v.

Baccaglio (1998) 60 Cal.App.4th 1136. They seek to distinguish the authority on which

the trial court relied, Great Western Bank v. Converse Consultants, Inc., supra, 58

Cal.App.4th 609 (characterized as dicta and distinguished on other grounds in Goodman

v. Lozano (2010) 47 Cal.4th 1327, 1337-1338) and authority cited by Great Western,

Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, as failing to

consider the quoted phrase from section 1032, subdivision (a).



                                              28
       Our reading of the plain language of section 1032 as a whole does not reflect a

grant of trial court discretion where a defendant meets one of the "prevailing party"

definitions set out in section 1032, subdivision (a)(4). The Cauzzas' interpretation would

contradict the Legislature's express and unambiguous declaration in subdivision (b) of

section 1032 that a prevailing party—defined by the four subdivision (a)(4) categories—

is entitled "as a matter of right to recover costs in any action or proceeding." (See

Goodman v. Lozano, supra, 47 Cal.4th at p. 1333; Cussler v. Crusader Entertainment

(2012) 212 Cal.App.4th 356, 371-372; Zintel Holdings, LLC v. McLean (2012) 209

Cal.App.4th 431, 441; Michell v. Olick (1996) 49 Cal.App.4th 1194, 1197-1198

[prevailing party as defined by the four categories of section 1032, subdivision (a)(4) is

entitled to costs as a matter of right, and the trial court has no discretion to order each

party to bear his or her own costs]; Crib Retaining Walls, Inc. v. NBS Lowry, Inc. (1996)

47 Cal.App.4th 886, 890.)

       The sole question is whether District comes within one of the four categories of

prevailing party because it succeeded in defeating the Cauzzas' cross-complaint by

summary judgment. Applying the statutory definition that a defendant includes a cross-

defendant as District was here, it is plain that District is a "defendant as against those

plaintiffs who do not recover any relief against that defendant." (§ 1032, subd. (a)(4).)

The Cauzzas' arguments were rejected in Cussler v. Crusader Entertainment, supra, 212

Cal.App.4th 356, which explained that section 1032 expressly provides the court with

discretion to determine the prevailing party only "under two circumstances: (1) when any



                                              29
party 'recovers other than monetary relief' and (2) 'in situations other than as specified.' "

(Cussler, at p. 372.) In the present case, neither party recovered nonmonetary relief,

and the circumstances present one of those "specified" by section 1032, subdivision

(a)(4). (Cussler, at p. 372.) "Nothing in Sears [v. Baccaglio, supra, 60 Cal.App.4th

1136] . . . states that the trial court has discretion to deny costs under the circumstances

presented here." (Cussler, at p. 372.) Because the trial court did not have discretion to

deny District costs to which it was entitled as a matter of right, we affirm the

postjudgment order awarding costs.



                                       DISPOSITION

       The judgment and postjudgment order are affirmed.




                                                                               O'ROURKE, J.

WE CONCUR:


McDONALD, Acting P. J.


McINTYRE, J.




                                              30
