NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIA HERRERA; CESAR ORTIZ, No. 20-55054
Plaintiffs-Appellants, D.C. No.
8:17-cv-00069-JVS-KES
v.
LOS ANGELES UNIFIED SCHOOL MEMORANDUM*
DISTRICT, a public entity; et al.,
Defendants-Appellees,
and
COUNTY OF LOS ANGELES,
Defendant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 30, 2021
Pasadena, California
Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.
Erick Ortiz was an autistic high school student in the Los Angeles Unified
School District (“LAUSD”) who tragically drowned at an end-of-year class party at
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Atlantic Avenue Park. As part of Erick’s Individualized Education Plan (“IEP”),
LAUSD provided an individual aide to supervise him throughout the school day.
Erick’s parents sued LAUSD, the individual aide, and other school employees for
negligence and wrongful death under California law. Because California law
immunizes schools from “all claims against the district, a charter school, or the State
of California for injury, accident, illness, or death occurring during or by reason of
the field trip or excursion,” see Cal. Educ. Code § 35330(d), and because it is
undisputed that the event at issue took place during a field trip or excursion as
described in the statute, Plaintiffs’ claims are deemed waived under § 35330(d).
Therefore, the district court properly granted summary judgment to Defendants.
Plaintiffs argue that the § 35330 immunity does not apply because (1) the
Individuals with Disabilities Education Act (“IDEA”) is an exception to § 35330
liability, (2) Section 44808 is an exception to § 35330 immunity, and (3) LAUSD
failed to fulfill its obligations under the IDEA and § 44808 and therefore cannot be
immunized by § 35330. To be sure, § 44808 permits liability when a school “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.” Cal. Educ. Code § 44808. But
LAUSD’s obligations under federal law are not an exception to California’s liability
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regime, and under California case law, § 35330 applies to waive claims against the
school even when liability under § 44808 otherwise applies. See Castro v. Los
Angeles Bd. of Educ., 126 Cal. Rptr. 537, 539–40 (1976); Wolfe v. Dublin Unified
Sch. Dist., 65 Cal. Rptr. 2d 280, 286 (1997).
The IDEA permits “a suit against a State for a violation of this chapter.” 20
U.S.C. § 1403(b). To be sure, this provision allows a student to bring suit under
federal law against the state for violations of dozens of obligations, ranging from
“free appropriate public education,” to “responsib[ilities] for general supervision,”
and “access to instructional materials.” 20 U.S.C. §§ 1412(a)(1), (11), (23) (cleaned
up). But the IDEA does not require states to permit state law claims for violating its
obligations under federal law. See generally 20 U.S.C. § 1412. Plaintiffs
characterize Erick’s death as “negligence in implementing the services” required by
the IDEA. Whether that may state a separate federal claim under the IDEA, it is
insufficient to support state negligence or wrongful death claims barred by § 35330.
The contention that § 44808 is an exception to § 35330 immunity also fails.
Plaintiffs argue that § 44808 permits liability where the school “has otherwise
specifically assumed such responsibility or liability,” and “precludes [section
35330’s] immunity” when Defendants assumed responsibility to supervise Erick
under an IEP. But even assuming Defendants specifically assumed responsibility or
liability through Erick’s IEP, § 44808 does not preclude immunity under its
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“specifically assumed such responsibility or liability” clause when the school has
immunity under the “field trip” or “excursion” immunity provided under § 35330.
See Castro, 126 Cal. Rptr. at 539–40; Wolfe, 65 Cal. Rptr. 2d at 286. Here, the
district court found that the outing was an excursion; Plaintiffs do not dispute that
finding.
Plaintiffs’ cited cases do not indicate otherwise. In Anselmo v. Grossmont-
Cuyamaca Cmty. Coll. Dist., the California Court of Appeal held that a statute
parallel to § 35330 did not apply (and thus there was no waiver of liability), in a suit
against a school whose negligence caused injury to a member of a visiting school
athletic team. 236 Cal. Rptr. 3d 282, 285 (Ct. App. 2018). That case addressed the
narrow question of whether a host school could be liable for injuries caused by its
negligence and sustained on its campus, even though the visiting athlete was not on
her own school’s campus. Id. at 283. The court reasoned that because “there would
be no field trip immunity if a [home school] student participating in the volleyball
tournament had injured herself,” field trip immunity did not apply to protect the
home school from liability. Id. at 285.
Anselmo is also inapplicable because that court decided that the injured
student was not on an “excursion” (during which the school would have immunity).
236 Cal. Rptr. 3d at 285 (“[o]nce the visiting teams arrived, [the home school] had
an ongoing responsibility to all participants—home team and visitors—to provide a
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reasonably safe premises.”). In this case, Erick drowned during an excursion from
school, not while on school premises.
Finally, in Hoyem v. Manhattan Beach City School District, the California
Supreme Court held that the school district could be liable for injuries occurring off
campus that are the result of negligent supervision occurring on school campus (even
while § 44808’s text applies to any injury occurring off school grounds). 22 Cal. 3d
508, 511–12 (1978). But Hoyem did not address immunity under § 35330 because
that student was not injured during a field trip or excursion. Id. And unlike the
plaintiffs in Hoyem, Plaintiffs here do not allege that Defendants’ negligent
supervision caused Erick to leave the school campus. Although the Hoyem court
observed that “[w]e entrust the safety of our children to our public school authorities
during school hours,” we must also respect California’s goal of balancing school
liability with the educational benefits of field trips and excursions. Id. at 519–20
(quotation omitted).
The district court found that Erick drowned while on an excursion. Because
Plaintiffs do not challenge that finding in their appeal, any liability permitted by
§ 44808 is superseded by the waiver provided in § 35330.
AFFIRMED.
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