Modification: Baker v. Pacific Oaks Education Corp.

CERTIFIED FOR PARTIAL PUBLICATION^*

MATEO BAKER, a Minor, etc., et al.,

Plaintiffs and Appellants,

v.

PACIFIC OAKS EDUCATION

CORPORATION,

Defendant and Appellant.

No. B320814

(Los Angeles County Super. Ct. No. GC050404)

California Court of Appeal

Second Appellate District

Division Three

Filed February 21, 2024

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[No change in judgment]

The Court:

Plaintiffs' petition for rehearing, filed February 9, 2024, is hereby denied.

It is further ordered that the opinion filed herein on January 25, 2024, is modified as follows:

On page 30 of the opinion, first full paragraph, delete the first sentence:

On appeal, plaintiffs do not challenge the trial court's conclusion that the services Pacific Oaks provided in the infant/toddler program fall outside the regulatory definition of care and supervision.

Replace the deleted portion with the following:

Plaintiffs contend a program description in Pacific Oaks's handbook and testimony from McComas and Rosenberg showed Pacific Oaks offered "care and supervision" to children in the infant/toddler program. The evidence does not support this conclusion. Neither the language in the handbook regarding the program's attention to "child/child interactions," nor the administrators' testimony about children playing with their parents onsite or staff members enrolling their children in Pacific Oaks programs, undermined the trial court's conclusion that the infant/toddler program did not provide "care and supervision" as the regulation defined the term.

On page 30 of the opinion, first full paragraph, the word "Instead" and the following comma are deleted and a new paragraph break is inserted. "Plaintiffs" is capitalized and the word "also" is inserted between the words "Plaintiffs" and "argue."

On page 42, at the end of first full paragraph, a footnote is inserted with the following language:

On appeal, Plaintiffs contend the handwritten portions of the sign-in sheets were admissible because Rosenberg admitted the truth of the hearsay statements when she testified that school personnel "could refer to the sign-in sheets" to conduct a head count. However, plaintiffs did not assert this argument in the trial court. They are precluded from arguing a new theory of admissibility for the first time on appeal. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282-283.)

All subsequent footnotes are renumbered accordingly.

There is no change in judgment.

LAVIN, Acting P. J.

EGERTON, J.

ADAMS, J.

^*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts II, III, IV, V, and VI of the Discussion section.