Filed 3/25/22 Cleveland v. Taft Union High School Dist. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
BOWE CLEVELAND,
F080084
Plaintiff and Appellant,
(Super. Ct. No. S1500CV279256)
v.
TAFT UNION HIGH SCHOOL DISTRICT et OPINION
al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Kern County. David Lampe,
Judge.
Rodriguez & Associates, Daniel Rodriguez, Chantal A. Trujillo, Danay S.
Gonzalez; Esner, Chang & Boyer, Andrew N. Chang and Kevin K. Nguyen for Plaintiff
and Appellant.
Herr Pedersen & Berglund, Leonard C. Herr, Ron Statler; Pollak, Vida & Barer
and Daniel P. Barer for Defendants and Respondents.
-ooOoo-
Plaintiff Bowe Cleveland obtained a $2 million judgment against Defendant Taft
Union High School District (District) for negligence in assessing the threat posed by a
student who shot plaintiff in the stomach with a shotgun. After the jury verdict in his
favor, plaintiff filed a motion pursuant to Code of Civil Procedure section 2033.4201
seeking the attorney fees and costs incurred because defendants denied requests for
admission (RFAs) that District was aware the shooter made “violent threats” to other
students in February 2012.
The trial court denied the request on the grounds that the undefined term “violent
threats” could have many different meanings and the matters covered by the RFAs were
not of substantial importance because the details about what the shooter said and did 11
months before the shooting needed to be presented to the jury for it to evaluate whether
the reaction of District’s employees breached the standard of care. As explained below,
we conclude the trial court did not abuse its discretion in denying the motion for costs of
proof.
We therefore affirm the order denying the motion.
BACKGROUND
A description of the procedural history, evidence, and jury verdict in favor of
plaintiff is set forth in our opinion in Cleveland v. Taft Union High School District, case
No. F079926. The parties are familiar with the case’s history and evidence and,
therefore, it need not be repeated in this unpublished opinion. (See Cal. Const., art. VI,
§ 14 [appellate decisions “shall be in writing with reasons stated”]; People v. Garcia
(2002) 97 Cal.App.4th 847, 853.)
On November 21, 2013, plaintiff served RFAs on Assistant Principal Rona
Angelo, Principal Marilyn Brown and District requesting them to admit that (1) “YOU
were aware that … Bryan … made violent threats to YOUR other students in February
2012”; (2) “YOUR employee, Kelly Federoff informed YOU of the violent threats made
by … Bryan … to YOUR other students in February 2012”; (3) “YOUR employee,
Dianne Kaszycki, informed YOU of the violent threats made by … Bryan … to YOUR
1 Subsequent unlabeled statutory references are to the Code of Civil Procedure.
2.
other students in February 2012”; and (4) “YOUR employee, Dianne Kaszycki, informed
YOU that she was concerned for the safety of Taft Union High School and YOUR
students because of the violent threats made by … Bryan … to YOUR other students in
February 2012.”
The responses of District, Brown, and Angelo were dated February 4, 2014. Each
defendant denied all four of the RFAs without making any objection.2
We note that plaintiff’s appellate briefing does not cite to pages in the appellate
record containing the first set of RFAs that he propounded. Instead, he cites to the
defendants’ responses to that set of RFAs, which repeated each request before denying it.
As a result, plaintiff has not provided this court with the definitions the RFAs gave the
capitalized terms “YOU” and “YOUR” or any definition the RFAs might have given the
terms “violent threats” or “threats.”3
Also, the appellate record does not contain any form interrogatories served with
the RFAs. Interrogatory No. 17.1 of Judicial Council form DISC-001 (rev. Jan. 1, 2008),
Form Interrogatories–General, asks: “Is your response to each request for admission
served with these interrogatories an unqualified admission? If not, for each response that
is not an unqualified admission: [¶] (a) state the number of the request; [¶] (b) state all
facts upon which you base your response.” In addition, it asks the identity of all persons
2 Plaintiff emphasizes the lack of objections to the RFAs, but does not cite any
statute or case law stating that (1) a responding party is obligated to object to an RFA that
is vague or ambiguous, (2) a denial based on one reasonable interpretation of the vague or
ambiguous language is not a “good reason for the failure to admit” for purposes of
subdivision (b)(4) of section 2033.420, or (3) when an ambiguous RFA is denied and a
motion is brought under section 2033.420, the ambiguity is resolved by adopting the
interpretation most favorable to the propounding party.
3 In the absence of a definition, it is unclear how plaintiff would have interpreted an
admission of the RFAs. For example, plaintiff might have argued that the “violent
threats” violated Penal Code section 422 and, as a result, charges should have been
brought against Bryan. (See generally, People v. Toledo (2001) 26 Cal.4th 221, 227–228
[elements of the offense of making a criminal threat in violation of Pen. Code, § 422].)
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with knowledge of those facts and all documents that support the response. This
interrogatory’s absence from the record, along with defendants’ responses (if any), makes
it difficult for this court to ascertain the precise reasons for defendants’ denials of the
RFAs at the time they were given. (See generally, Jameson v. Desta (2018) 5 Cal.5th
594, 609 [appellant has the burden of providing an adequate record on appeal].)
In July 2019, a judgment after jury verdict was entered awarding plaintiff damages
in the amount of $2,052,000. The judgment was based on the jury’s findings that Brown,
Angelo, school psychologist Mark Shoffner, superintendent Mark Richardson, and
campus supervisor Kim Fields were negligent and their negligence was a substantial
factor in causing plaintiff’s injuries.
Costs of Proof Motion
On August 2, 2019, plaintiff filed a motion for attorney fees and costs pursuant to
section 2033.420. A few days later, plaintiff filed an amended motion. Plaintiff argued
that defendants “had several incident reports by both students and staff informing them of
the threats of violence made by their student Bryan” and, therefore, defendants
unquestionably “knew of the violent threats made by … Bryan … in 2012.” The
amended motion, like the RFAs themselves and plaintiff’s appellate briefs, make no
attempt to define the term “violent threats.”
Defendants’ opposition to the costs of proof motion raised various points,
including the arguments that (1) the requested admissions were not of substantial
importance to the action and (2) it was reasonable to deny the RFAs at the time because
District’s threat assessment did not reveal an actual threat having been made by Bryan
against another District student. Also, defendants specifically argued that “[n]either the
jury nor the Court were asked to determine whether Bryan … made a threat; rather the
jury was asked to determine whether, in light of Bryan[’s] statements, the District
Defendants should have done more.” (Italics added.)
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Plaintiff’s reply papers asserted the trial court was vested with the authority to
determine whether the denial was proven at trial. Plaintiff reasserted that defendants’
unreasonable denials of knowledge about Bryan’s threats were the core issue of the
liability phase of the trial and, thus, the RFAs qualified as substantially important.
Trial Court’s Decision
In September 2019, the trial court held a hearing on the motion for costs of proof.
At the beginning of the hearing, the court stated its tentative to deny the motion for the
reasons stated in the opposition. The court also stated: “I don’t think that the matters that
were initially denied regarding the notice were really material issues for proof at the time
of trial, and they were admitted. There was no issue with respect to notice.” The court
stated the issues were whether the District’s employees were negligent and whether that
negligence caused injury and that “I don’t really see that the bulk of the proof related to
their notice of the shooter’s tendencies.” The court also noted the ambiguity in the term
“violent threat,” stating:
“I suppose it’s in the eye of the beholder what a violent threat is. Can they
deny it and say well, we didn’t consider it a violent threat. Yes, we had this
information, there is no dispute what he said and what people re[ported]
and its all part of our incident [reports], but we deny that it was a violent
threat.
“I don’t see if they had admitted that what difference that would make to
the trial. They’d say well, if what you mean is did we have this information
that you define as a violent threat, the answer is yes, we admit that, but we
were not negligent and we did everything correctly.”
Elaborating on the notice issue, the court stated:
“[T]here was no issue that the district was aware of the statements made by
Bryan []. They admitted that. There was no proof that had to be introduced
of their awareness of those statements.
“The introduction of the statements and all of the evidence as to what
people knew was related to their conduct in light of that evidence. Was
their conduct in light of that evidence and what they knew negligent and a
matter of causation. It wasn’t proving that they knew those matters. It was
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proving – you had to prove the matters to the jury in order to demonstrate
that their response to those matters known to them was [negligent].”
After hearing argument from counsel, the court stated it was satisfied with its
tentative ruling and would deny the motion. The minute order from the hearing reflected
the court’s denial of plaintiff’s motion for attorney fees and costs pursuant to section
2033.420. In October 2019, plaintiff filed this appeal.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A party to a civil action may propound a written request for the admission of “the
truth of specified matters of fact, opinion relating to fact, or application of law to fact.”
(§ 2033.010.) The primary purpose of RFAs is to narrow the issues in dispute and
expedite trial. (City of Glendale v. Marcus Cable Associates, LLC (2015) 235
Cal.App.4th 344, 353.)
Under subdivision (a) of section 2033.420, “[i]f a party fails to admit … the truth
of any matter when requested to do so ..., and if the party requesting that admission
thereafter proves … the truth of that matter, the party requesting the admission may move
the court for an order requiring the party to whom the request was directed to pay the
reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”
Pursuant to subdivision (b) of section 2033.420, the court “shall make this order”
unless it finds any of the following: “(1) An objection to the request was sustained or a
response to it was waived .... [¶] (2) The admission sought was of no substantial
importance. [¶] (3) The party failing to make the admission had reasonable ground to
believe that that party would prevail on the matter. [¶] (4) There was other good reason
for the failure to admit.” The party seeking to benefit from one of these exceptions has
the burden of establishing the applicability of that exception. (Samsky v. State Farm
Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 523 (Samsky).)
6.
Appellate courts review orders granting or denying costs of proof awards for abuse
of discretion. (Samsky, supra, 37 Cal.App.5th at p. 521.) “ ‘An abuse of discretion
occurs only where it is shown that the trial court exceeded the bounds of reason.’ ”
(Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 753.) In other words, the trial
court’s determination will be upheld so long as it is reasonable, provided the court
applied the correct legal standards and any findings of fact were supported by substantial
evidence. (Ibid.; County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316.)
Also, for abuse of discretion to constitute reversible error is that it must clearly appear to
effect injustice. (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815; § 475 [no
decision shall be reversed unless is appears from the record that the error was
prejudicial].)
II. TRIAL COURT DID NOT ABUSE ITS DISCRETION
The trial court determined the RFAs about defendants’ awareness of violent
threats made by Bryan in February 2012 was not of substantial importance because
defendants’ admitted being aware of Bryan’s statements (which statements were
described in incident reports) and the jury needed to hear the specific details of what
Bryan reportedly said and did to evaluate the reasonableness of the response of District’s
employees to that information.
First, the trial court’s determination reflects, in part, the uncertainty over the
meaning of the term “violent threats” and how useful an admission to a request using that
undefined term would have been in expediting the trial. (See Denver D. Darling, Inc. v.
Controlled Environments Construction Inc. (2001) 89 Cal.App.4th 1221, 1239 [denial of
costs of proof motion was within court’s discretion where ambiguity in contract led each
party reasonably to believe the contract meant something different].) Plaintiff’s appellate
briefing does not address the ambiguity in the term “violent threats” and, therefore, does
not identify how that term should have been interpreted by the trial court or this court.
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To illustrate the point about the uncertainty inherent in the term, we note that
plaintiff’s opening brief described various incidents that plaintiff believes constituted
violent threats made by Bryan. Plaintiff (1) included a reference to the testimony of the
female student who snatched the drawing titled “The Playground” from Bryan’s desk
during history class, (2) represented that the student “saw Bryan draw an image of him
shooting students in a playground with a machine gun,”4 and (3) implied that the drawing
was a violent threat made by Bryan to another student. Whether the stick figure drawing
constitutes a “violent threat” depends on how one defines that term. (See In re George T.
(2004) 33 Cal.4th 620, 629 [15-year-old student’s poem was not a criminal threat for
purposes of Penal Code section 422]; In re M.S. (1995) 10 Cal.4th 698, 710 [“A threat is
an ‘ “expression of an intent to inflict evil, injury, or damage on another” ’ ”].) In
addition, whether any threat the drawing may have contained was made “to YOUR other
students” is another source of ambiguity. The drawing was snatched away from Bryan.
There is no evidence he showed it to another student, which might be a basis for inferring
Bryan intended to communicate a threat to that student. In sum, the drawing would not
constitute a threat if that term is defined as an expression of actual intent to inflict harm
on another.
Second, the trial court’s determination took into account that plaintiff was required
to prove a breach of the duty to protect, which included proving Bryan’s actions in
January 2013 were foreseeable. (See C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 869–870 [“duty to use reasonable measures to protect students
4 Perhaps recognizing the weakness of claiming the drawing was a violent threat,
plaintiff misrepresents the student’s testimony. (See Bus. & Prof. Code, § 6068, subd. (d)
[duty of attorney not to mislead a judge by a false statement of fact or law]; Cal. Rules
Prof. Conduct, rule 3.3, subd. (a)(1) [duty of candor].) The student did not testify or
report that Bryan was one of the big stick figures doing the shooting. She simply stated
that the drawing showed “[b]ig stick figures with machine guns shooting baby stick
figures laying around a playground.”
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from foreseeable injury at the hands of third parties acting negligently or intentionally”].)
It was reasonable for the trial court to conclude that, without specific information about
Bryan’s statements and the context in which the statements were made, the jury would
have difficulty in evaluating whether District employees reacted with reasonable care
when they became aware of his statements and whether Bryan’s subsequent conduct was
foreseeable. In other words, providing the jury with a general statement that District
employees were aware Bryan had made violent threats to other students in February 2012
would have had little meaning in evaluating whether District’s conduct breached its duty
of care and was a substantial factor in causing the shooting that occurred nearly 11
months later.
Third, the trial court’s determination about a lack of importance also reflects that
plaintiff did not have to prove Bryan made “violent threats” to other students in February
2012 in order to prove District was negligent in conducting its threat assessment. As
noted in District’s argument—an argument that plaintiff has not directly acknowledged
and refuted—the jury was not asked to find whether Bryan’s statements constituted a
“violent threat.” Instead, under the negligence instruction given on the basic standard of
care, the jury was asked to determine whether defendants did “something that a
reasonably careful person would not do in the same situation or fail[ed] to do something
that a reasonably careful person would do in the same situation.” (Italics added.) To
evaluate what a reasonable person would have done in the same situation, the jury would
need to know details about that situation—that is, what Bryan said and did in February
2012 and the extent defendants were aware of those statements and acts. Telling the jury
that District’s employees were aware of unspecified conduct labeled as “violent threats”
to other students would not have allowed the jury to properly apply the instruction about
the standard of care. Furthermore, defendants did not deny, vigorously or otherwise,
knowledge of the contents of the incident reports prepared in February 2012. Thus, their
awareness of Bryan’s statement and actions was a matter of written records maintained
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by District and not an issue the jury had to resolve in evaluating whether the standard of
care was breached.
In sum, we conclude the trial court did not exceed the bounds of reason when it
concluded the admission of a general request that defendants were aware Bryan made
“violent threats” to other students in February 2012 was not of substantial importance for
purposes of section 2033.420, subdivision (b)(2). (See generally, Miller v. American
Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066 [plaintiffs were requested to admit
that the defendant’s employee was not acting within the scope of his employment when
his truck struck Miller’s car; the issue was “not so cut and dried” as the trial court
suggested; order awarding costs of proof was reversed].)
DISPOSITION
The order denying costs of proof is affirmed. Respondents shall recover their
costs on appeal.
FRANSON, J.
WE CONCUR:
DETJEN, ACTING P. J.
DE SANTOS, J.
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