1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 L.J., a minor, by and through his Guardian Case No.: 20cv1569-GPC(MDD) ad Litem Karyn Jones, an individual, 12

ORDER:

Plaintiff, 13 v. 1) GRANTING IN PART AND 14

DENYING IN PART DEFENDANTS

POWAY UNIFIED SCHOOL

15 CITY OF SAN DIEGO AND DISTRICT, a California public entity,

OFFICER MCGILL’S MOTION TO

16 AMY RICHARDSON, an individual, DISMISS, [Dkt. No. 2]; CITY OF SAN DIEGO, a public entity, 17 OFFICER DYLAN MCGILL, an 2) GRANTING DEFENDANTS PUSD 18 individual, OFFICER YOUNG JU, an

AND RICHARDSON’S MOTION TO

individual, COUNTY OF SAN DIEGO, a 19 DISMISS, [Dkt. No. 9]; and public entity, COMMUNITY

20 RESEARCH FOUNDATION, INC., a 3) GRANTING IN PART AND California not-for-profit corporation, and 21 DENYING IN PART DEFENDANTS DOES 1-100, inclusive,

CRFI AND JU’S MOTION TO

22 Defendant. DISMISS, [Dkt. No. 12]. 23

24 Pending before the Court are fully briefed motions by Defendants City of San 25 Diego and Officer Dylan McGill for failure to state a claim pursuant to Federal Rule of 26 Civil Procedure (“Rule”) 12(b)(6), (Dkt. Nos. 2, 16, 23); Defendants Poway Unified 27 School District and Amy Richardson for lack of subject matter jurisdiction pursuant to 28 1 Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6), (Dkt. Nos. 9, 18, 22); 2 and Defendants Community Research Foundation, Inc. and Young Ju1 for failure to state 3 a claim under Rule 12(b)(6). (Dkt. Nos. 12, 17, 19). Based on the reasoning below, the 4 Court GRANTS in part and DENIES in part the City of San Diego and Officer McGill’s 5 motion to dismiss; GRANTS PUSD and Richardson’s motion to dismiss and GRANTS 6 in part and DENIES in part CRFI and Ju’s motion to dismiss. Plaintiff is granted leave to 7 file a first amended complaint. 8 Background 9 On June 22, 2020, Plaintiff L.J., a minor by and through his Guardian ad Litem 10 Karyn Jones (“Plaintiff” or “L.J.”) filed a complaint against numerous defendants in San 11 Diego Superior Court alleging eleven causes of action arising from his alleged unlawful 12 and unconstitutional detention and alleged disability discrimination by the defendants 13 during an incident at his school. (Dkt. No. 1-3, Compl.) Defendants are three separate 14 entities and their employees and include Defendants Poway Unified School District 15 (“PUSD”) and Amy Richardson (“Richardson”), the Vice Principal of Design 39 16 Academy (“Design 39”); Defendants City of San Diego and Officer Dylan McGill 17 (“Officer McGill”); and Defendants Community Research Foundation, Inc. (“CRFI”) and 18 CRFI Clinician Young Ju2 (“Ju”).3 (Dkt. No. 1-3, Compl.) On August 13, 2020, the City 19 of San Diego and Officer McGill filed a notice of removal and the case was removed to 20 this Court. (Dkt. No. 1, Not. of Removal.) 21 On May 7, 2019, L.J. was nine years old and a third grade student at Design 39 22 located in San Diego, CA. (Dkt. No. 1-3, Compl. ¶ 16.) Design 39 is a TK-8 school 23 within the Poway Unified School District. (Id.) Plaintiff was documented as having 24 25 1 Defendant Young Ju filed a notice of joinder in Defendant Community Research Foundation, Inc’s 26 motion to dismiss. (Dkt. Nos. 15, 20) 2 While Young Ju is referred to as “Officer Ju” in the complaint, it is not disputed that Ju is a PERT 27 clinician employed by CRFI which Plaintiff does not dispute. 3 County of San Diego was named as a Defendant but was dismissed by way of a joint motion to dismiss 28 1 autism by Design 39 in February 2019 during the tri-annual testing period required by the 2 Individualized Education Plan (“IEP”) which Plaintiff had in place since he was in 3 kindergarten. (Id. ¶ 19.) Due to his autism, he was easily over stimulated, sensitive to 4 noise, and had difficulty processing the rapid input of stressful situations. (Id. ¶ 18.) As 5 such, he frequently reacted with a “fight or flight” response that may be atypical or 6 exaggerated for a situation. (Id.) He was also frequently teased and bullied by other 7 children due to his symptoms which increased his difficulty in exhibiting appropriate 8 social responses. (Id.) 9 Prior to the incident, his teacher described L.J. as a friendly and polite student and 10 spent the majority of his time alone or working with students in a small group. (Id.) 11 Moreover, L.J.’s interactions with his peers were kind and caring and he was liked by his 12 classmates. (Id.) Prior to May 6, 2019, Plaintiff had been bullied by students on multiple 13 occasions and despite Plaintiff’s parents raising the issue with school officials on at least 14 six occasions, the school took no action. (Id. ¶ 22.) 15 On Monday, May 6, 2019, L.J. was participating in a group assignment with 16 several students who had previously bullied him. (Id. ¶ 23.) He became overwhelmed 17 and frustrated and stated he did not want to participate in the group. (Id.) Student A then 18 teased and taunted Plaintiff stating “you’re a quitter, [Plaintiff]”. (Id.) When the group 19 returned to the classroom, the students complained that Plaintiff had reacted 20 inappropriately. (Id.) L.J. allegedly told Student A that he was going to bring a ninja 21 stick, taser gun and his cub scout pocket knife to school and hurt him the next day. (Id.) 22 Vice Principal Amy Richardson was informed of the incident and left a voicemail 23 message with Plaintiff’s parents. (Id.) Mrs. Jones, L.J.’s mother, returned the call ten 24 minutes later but was unable to reach Richardson so she then emailed the teacher, but did 25 not receive a response. (Id.) 26 On Tuesday, May 7, 2019, after interacting with Students A and B, Plaintiff 27 repeatedly stated things like “this is not going to end well,” “I hate you,” and “I hate 28 everyone in this class.” (Id. ¶ 24.) When his teacher Ms. Becker approached, Plaintiffs 1 said, “no you’re the worst of all. You act nice but really, you’re a criminal too. You told 2 the principal on me, and I’m going to tell the principal on you and this whole class.” (Id.) 3 Ms. Becker then called the school’s Welcome Center and then around 9:15 a.m., 4 Richardson arrived, took Plaintiff to the Welcome Center/Office and searched Plaintiff’s 5 person and belongings. (Id. ¶¶ 24, 25.) No weapons or dangerous items were found. 6 (Id.) She then proceeded to detain and interrogate Plaintiff for at least four hours without 7 contacting his parents and asked him questions about whether he wanted to hurt or kill 8 himself or others. (Id.) She also required him to complete a psychological evaluation 9 that asked him to choose between two options – that he wanted to hurt himself or kill 10 himself. (Id.) She threatened him with law enforcement involvement and/or arrest if he 11 did not sign the statement. (Id.) He was very confused as he thought he was taken to the 12 office to address the teasing and bullying committed by Student A but she made no 13 mention of the bullying. (Id.) He also informed Richardson that he had a “hate list” that 14 included eight individuals who had repeatedly bullied him. (Id.) 15 During the interrogation, law enforcement was contacted. (Id. ¶ 26.) San Diego 16 Police Officer McGill and Psychiatric Emergency Response Team4 (“PERT”) 17 “Officer” Young Ju arrived in a marked patrol car. (Id.) According to the complaint, Ju 18 had no training concerning autism. (Id. ¶ 29.) While Officer McGill waited in the patrol 19 car, Ju met with Plaintiff and Richardson and similarly berated Plaintiff with questions 20 about whether he wanted to hurt himself or others, and treated Plaintiff as if nothing had 21 prompted his statements. (Id. ¶ 30.) Ju repeatedly threatened L.J. with going to jail if he 22 did not answer the questions or cooperate. (Id.) Though terrified, Plaintiff remained 23 calm during the four-hour interrogation despite missing lunch and not having any water. 24 (Id. ¶ 31.) Richardson and Ju also refused Plaintiff’s request to call his parents. (Id.) He 25

26 4 “PERT began in San Diego County in 1996 as a partnership between law enforcement officers and 27 mental health clinicians.” (Dkt. No. 1-3, Compl. ¶ 27 (citation omitted).) PERT's mission is to “de- escalate a mental health emergency and, when possible, redirect the individual to mental health services 28 1 was ultimately forced to sign a written statement about the incident that he did not write 2 and could not read. (Id.) Ju decided to take Plaintiff to Rady Children’s Hospital 3 (“Rady’s”) for a psych-evaluation and handcuffed and walked him out to the patrol car. 4 (Id.) During the four-hour interrogation, Richardson and Ju did not contact Plaintiff’s 5 parents or allow him to consult with legal counsel. (Id. ¶ 32.) 6 The school called Mrs. Jones at around 1:45 p.m. and told her that “the police are 7 taking your son.” (Id. ¶ 33.) She demanded more information but Richardson responded, 8 “I’m sorry, the decision has been made and there is nothing I can do.” (Id. ¶ 33.) 9 Richardson advised Mrs. Jones to not get involved but she demanded they wait until she 10 arrived. (Id. ¶ 33.) She arrived at the school between 1:45 p.m. and 2 p.m. and met with 11 Richardson and asked to see Plaintiff. (Id. ¶ 34.) Richardson did not tell her where 12 Plaintiff was and instead asked her to sit in a room while Ju was brought in to provide a 13 brief summary of what happened. (Id.) Ju, wearing a police uniform, did not explain 14 who he was or his relationship to the police department and referred to Officer McGill as 15 “his partner.” (Id.) As Richardson and Ju explained what happened, Mrs. Jones 16 explained that Plaintiff has autism to which Ju did not respond. (Id.) Instead, he said 17 made the decision and there was nothing she could do. (Id.) When Mrs. Jones asked if 18 Plaintiff could be placed in her care, Ju responded that he could either take Plaintiff to 19 Rady’s or arrest him for verbal threats. (Id.) 20 Mrs. Jones then demanded to see L.J. (Id. ¶ 35.) When informed he was in the 21 patrol car, she proceeded to the car and knocked on the window and asked to see her son. 22 (Id.) Officer McGill eventually agreed and when Mrs. Jones opened the door, she saw 23 Plaintiff handcuffed in the back seat completely terrified and confused and stated, “Mom, 24 why am I here? I don’t know what is going on?” (Id.) Plaintiff sat in the back seat of 25 the patrol car while handcuffed for over an hour with no ventilation as the car sat in direct 26 sunlight in front of the school. (Id. ¶ 36.) During this time, Ju said he could not leave 27 until he called all the people on the “hate list.” (Id.) Mrs. Jones then asked Ju and 28 McGill whether she could transport him to Rady’s but Ju responded, “no, this is our 1 policy” and she could not take him. (Id.) Mrs. Jones told them that she would follow 2 them. (Id.) 3 Around 3 p.m., they headed to Rady’s. (Id. ¶ 37.) While still handcuffed, L.J. sat 4 in the waiting room with Mrs. Jones, Officer McGill and Ju. (Id. ¶ 39.) After about 30 5 minutes, Mrs. Jones asked Ju if the handcuffs could be removed so L.J. could eat a snack, 6 and Ju responded, “you’ll have to ask my partner.” (Id.) Officer McGill then said, “well 7 I suppose so” and removed the handcuffs which left bright red marks and cuts on L.J.’s 8 wrists. (Id.) While waiting, Ju filled out a report and asked Mrs. Jones some questions. 9 (Id. ¶ 40.) When Mrs. Jones asked Ju if he had included the names of the bullying 10 students, he responded, “what do you mean? I don’t know anything about that.” (Id.) 11 After about 1.5 to 2 hours, Plaintiff was brought into an exam room. (Id. ¶ 41.) Ju 12 gave his report and left. (Id.) The nurse checked Plaintiff’s vitals, asked about 13 medication and posed general mental health screening questions and she responded, “It’s 14 not a big deal, this happens a lot. These guys bring kids in all the time who just say 15 things.” (Id.) They waited for another hour for the doctor to arrive, asking the same 16 questions. (Id.) Finally, a social worker conducted a mental health screening and 17 reviewed the PERT report. (Id.) She noted Plaintiff’s conduct was typical for autistic 18 individuals and made note of the bullying that prompted the incident. (Id.) They were 19 released from the hospital at 9:00 p.m. (Id.) 20 The next day, on May 8, 2019, at 3:44 p.m. Richardson left a voicemail with Mrs. 21 Jones stating that Plaintiff had been suspended for five days pending administrative 22 review. (Id. ¶ 42.) Around May 10, 2019, Design 39 sent a notice stating that Plaintiff 23 was suspended from school for five days and a Manifestation Determination Review and 24 an Administrative Review meeting was set on Tuesday, May 14, 2019. (Id. ¶ 43.) At the 25 hearing, it was determined that Plaintiff’s conduct was a result of his disability and that 26 his suspension would not be in effect, although it was already served. (Id.) Mr. and Mrs. 27 Jones informed Design 39 that Plaintiff could not return to school because he was 28 severely traumatized by the incident and terrified to return to school. (Id.) School 1 administrator offered to meet with Plaintiff individually for the remainder of the school 2 year which, according to Plaintiff, only highlighted the district’s lack of understanding 3 for kids with autism or the severe impact of the incident. (Id.) 4 Due to the incident, Plaintiff became fearful of police officers, cried every time he 5 tried to do school work, experienced nightmares, was afraid to go into a room with more 6 than three people and was unable to engage in any social interactions due to severe social 7 anxiety. (Id. ¶ 44.) Mr. and Mrs. Jones reported that Plaintiff was in shock for several 8 weeks after the incident and only recently has been able to begin therapy but is still 9 unable to discuss the incident. (Id.) Plaintiff was unable to return to school and began at 10 a different school the following school year. (Id.) 11 The complaint alleges the following eleven causes of action: 12 First Cause of Action: 42 U.S.C. § 1983 against Richardson, Ju and Officer McGill; 13 Second Cause of Action: 42 U.S.C. § 1983 Monell5 claim against PUSD, City of 14 San Diego, and CRFI; Third Cause of Action: Title II of the American with Disabilities Act (“ADA”) 15 against PUSD, City of San Diego, and CRFI; 16 Fourth Cause of Action: Section 504 of the Rehabilitation Act against PUSD, City of San Diego, and CRFI; 17 Fifth Cause of Action: California Education Code section 220 against PUSD and 18 Richardson Sixth Cause of Action: Unruh Civil Rights Act, California Civil Code section 51 19 et seq. against PUSD, City of San Diego, and CRFI; 20 Seventh Cause of Action: California Government Code section 815.6 against PUSD, City of San Diego, and CRFI; 21 Eighth Cause of Action: Negligence against all Defendants; 22 Ninth Cause of Action: False Imprisonment/Arrest against all Defendants; Tenth Cause of Action: Battery against Ju, McGill, City of San Diego, and CRFI; 23 Eleventh Cause of Action: Intentional Infliction of Emotional Distress against all 24 Defendants

25 26 27 28 1 (Dkt. No. 1-3, Compl.) Defendants City of San Diego and Officer McGill move to 2 dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). 3 (Dkt. No. 2.) Defendants PUSD and Amy Richardson move to dismiss the complaint 4 pursuant to Rule 12(b)(1) and alternatively Rule 12(b)(6). (Dkt. No. 9.) Defendants 5 CRFI and Ju move to the dismiss the complaint under Rule 12(b)(6). (Dkt. No. 12.) 6 Plaintiff filed oppositions to these motions. (Dkt. Nos. 16, 17, 18.) Defendants replied. 7 (Dkt. Nos. 19, 20, 22, 23.) 8 Discussion 9 A. Federal Rule of Civil Procedure 12(b)(1) 10 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a 11 complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12 12(b)(1) jurisdictional attacks can be either facial or factual. White v. Lee, 227 F.3d 13 1214, 1242 (9th Cir. 2000). Similar to a Rule 12(b)(6), on a facial attack on subject 14 matter jurisdiction the court assumes the factual allegations of the complaint to be true 15 and draws all reasonable inferences in favor of the plaintiff. Leite v. Crane Co., 749 F.3d 16 1117, 1121 (9th Cir. 2014). However, on a factual attack, a court may look beyond the 17 complaint to matters of public record without having to convert the motion into one for 18 summary judgment and need not presume the truthfulness of the allegations in the 19 complaint. White, 227 F.3d at 1242 (citations omitted). 20 B. Legal Standard as to Federal Rule of Civil Procedure 12(b)(6) 21 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to 22 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal 23 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or 24 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police 25 Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). Under Federal Rule of Civil Procedure 26 8(a)(2), the plaintiff is required only to set forth a “short and plain statement of the claim 27 showing that the pleader is entitled to relief,” and “give the defendant fair notice of what 28 1 the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007). 3 A complaint may survive a motion to dismiss only if, taking all well-pleaded 4 factual allegations as true, it contains enough facts to “state a claim to relief that is 5 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 6 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that the defendant is liable 8 for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of 9 action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a 10 complaint to survive a motion to dismiss, the non-conclusory factual content, and 11 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 12 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 13 (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all 14 facts alleged in the complaint, and draws all reasonable inferences in favor of the 15 plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 16 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 17 the court determines that the allegation of other facts consistent with the challenged 18 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 19 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 20 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 21 be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at 658; Schreiber, 22 806 F.2d at 1401. 23 C. Motion to Dismiss by City of San Diego and Officer McGill 24 Defendants City of San Diego and Officer McGill move to dismiss portions of the 25 complaint. First, they seek dismissal of the allegations of supervisory liability as to 26 Officer McGill as there was no supervisor/supervisee relationship between him and 27 Young Ju. Second, they argue the common law claims alleged against the City of San 28 Diego are barred by California Government Code (“Government Code”) section 815. 1 Finally, they argue the City of San Diego is immune from all claims for punitive damages 2 under Government Code section 818. 3 Plaintiff responds that facts are sufficiently alleged to support supervisory liability 4 against Officer McGill. Second, Plaintiff argues that he does not claim the City of San 5 Diego is liable under Government Code section 815 but the City is proximately liable for 6 claims under Government Code section 815.2. Third, Plaintiff does not oppose the 7 dismissal of the punitive damages claims. Because Plaintiff does not oppose the 8 dismissal of the punitive damages claims, the Court GRANTS City of San Diego’s 9 motion to dismiss on this issue. 10 1. Supervisor Liability 11 Defendants move to dismiss the allegation of supervisory liability as contained in 12 paragraphs 85-89 in the complaint because Officer McGill was not the supervisor of Ju. 13 (Dkt. No. 2-1 at 4-5.6) They explain that McGill is an officer with the San Diego Police 14 Department while Ju is a mental health clinician affiliated with the PERT program and 15 employed by another entity, Defendant CRFI. Plaintiff opposes arguing that Defendants 16 ignore the close collaborative nature of the PERT program and the San Diego Police 17 Department.7 18 19 20 6 Page numbers are based on the CM/ECF pagination. 21 7 In support, Plaintiff filed a request for judicial notice of San Diego Police Department Procedure (“SDPDP”) 6.20 addressing policies and procedures “for handling persons experiencing mental health 22 emergencies” and SDPDP 6.28 which explains the policies and procedures for its “Psychiatric Emergency Response Team”. (Dkt. No. 16-1, P’s RJN, Exs. 1, 2.) Defendants oppose. (Dkt. No. 23 at 23 2-3.) First, they argue that SDPDP 6.28 is not applicable as it is dated June 6, 2019 and the incident took place prior to that date on May 7, 2019, (Dkt. No. 23 at 2), which Plaintiff concedes. (Dkt. No. 16 24 at 8 n. 2.) Second, Plaintiff uses the documents to infer the existence of a supervisory relationship 25 which is not proper on a request for judicial notice. (Dkt. No. 23 at 2-3.) The Court agrees. The “court may judicially notice a fact that is not subject to reasonable dispute because it. . . (2) can be 26 accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1). Because Defendants oppose and Plaintiff relies on these documents to resolve a 27 factual issue of fact, it is not proper on a motion to dismiss. Accordingly, the Court DENIES Plaintiff’s request for judicial notice of SDPDP 6.20 and 6.28. As such, the Court also DENIES Plaintiff’s request 28 1 “A supervisor can be liable in his individual capacity for his own culpable action 2 or inaction in the training, supervision, or control of his subordinates; for his 3 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or 4 callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 1087, 5 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted) (emphasis added); 6 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (supervisory officials “may not be held liable 7 for the unconstitutional conduct of their subordinates under a theory of respondeat 8 superior.”) (emphasis added and italics in original); Taylor v. List, 880 F.2d 1040, 1045 9 (9th Cir. 1989) (“A supervisor is only liable for constitutional violations of his 10 subordinates if the supervisor participated in or directed the violations, or knew of the 11 violations and failed to act to prevent them. There is no respondeat superior liability 12 under section 1983.”) (emphasis added). To establish a prima facie case of supervisor 13 liability, a plaintiff must show facts to indicate that the supervisor defendant either: (1) 14 personally participated in the alleged deprivation of constitutional rights; (2) knew of the 15 violations and failed to act to prevent them; or (3) promulgated or implemented a policy 16 “so deficient that the policy itself ‘is a repudiation of constitutional rights' and is ‘the 17 moving force of the constitutional violation.’“ Hansen v. Black, 885 F.2d 642, 646 (9th 18 Cir. 1989); Taylor, 880 F.2d at 1045. 19 As caselaw describes, supervisory liability requires a supervisor/subordinate 20 relationship. The complaint summarily alleges that Officer McGill is liable as a 21 supervisor of Ju. (Dkt. No. 1-3, Compl. ¶¶ 85-89.) But the complaint also claims that 22 Mr. and Mrs. Jones were informed that police officers have “no duty to supervise, 23 observe, or monitor PERT officers, but instead served solely as a means of transportation 24 and safety- essentially, a policy of complete deference.” (Id. ¶ 29.) Further, no other 25 facts are alleged to support the claim that Officer McGill was a supervisor or acted in the 26

27 RJN, Ex. 1), and Defendant CRFI’s request for judicial notice of SDPDP 6.28. (Dkt. No. 12-1, D’s 28 1 role of a supervisor over Defendant Ju during the incident. Next, Plaintiff has not 2 provided any legal authority that a police officer, employed by the City of San Diego, 3 may be a supervisor over a PERT clinician employed by another agency, CRFI. Finally, 4 Plaintiff’s argument that a close collaborative relationship supports a supervisory 5 relationship is not supported and does not render Officer McGill a supervisor over Ju. 6 Accordingly, the Court GRANTS Defendants’ motion to dismiss the supervisory liability 7 allegations contained in paragraphs 85 - 89 of the complaint. 8 2. California Tort Claim Act 9 Defendants next argue that the eighth through eleventh claims fail as a matter a law 10 against the City of San Diego as there is no common law governmental tort liability 11 under Government Code section 815. Plaintiff responds that the complaint does not 12 allege direct tort liability against the City but alleges derivative liability for torts 13 committed by its employee, Officer McGill, under Government Code section 815.2(a). 14 “Under the [Tort Claims] Act [Cal. Gov. Code § 815], governmental tort liability 15 must be based on statute; all common law or judicially declared forms of tort liability, 16 except as may be required by [the] state or federal Constitution, were abolished.” 17 Michael J. v. Los Angeles Cnty. Dep’t of Adoptions, 201 Cal. App. 3d 859, 866 (1988). 18 Government Code section 815 provides, 19 Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out 20 of an act or omission of the public entity or a public employee or any other 21 person. (b) The liability of a public entity established by this part (commencing with 22 Section 814) is subject to any immunity of the public entity provided by 23 statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person. 24

25 Cal. Gov’t Code § 815. This section bars claims against public entitles absent a statutory 26 provision. See id. However, California Government Code Section 815.2 explicitly 27 provides for vicarious liability and states that “[a] public entity is liable for injury 28 proximately caused by an act or omission of an employee of the public entity within the 1 scope of his employment.” Id. “[U]nder California law municipalities enjoy no special 2 immunity for negligence actions [and that a municipality] is liable for the negligence of 3 [its employees] to the same extent that [the employees] would be liable individually.” 4 Hernandez v. City of San Jose, No. 16-CV-03957-LHK, 2016 WL 5944095, at *45–46 5 (N.D. Cal. Oct. 13, 2016). 6 Here, the complaint alleges common law tort liability of negligence, false 7 imprisonment/arrest, battery and intentional infliction of emotional distress against the 8 City of San Diego based on Officer McGill’s acts as an employee of the City. (Dkt. No. 9 1-3, Compl. ¶¶ 244, 245, 257, 265, 273.) Therefore, Plaintiff has alleged claims that the 10 City of San Diego is vicariously liable for the acts of Officer McGill as an employee of 11 the City. See Cal Gov. Code § 815.2(a); Talada v. City of Martinez, Cali, No. C 08– 12 02771 WHA, 2009 WL 382758 at *5-6 (N.D. Cal. Feb. 12, 2009) (denying the City of 13 Martinez Police Department’s motion to dismiss state claims of false imprisonment and 14 negligence arising from false arrest performed by its police officers); Save CCSF 15 Coalition v. Lim, No. 14–cv–05286–SI, 2015 WL 3409260, at *17 (N.D. Cal. May 27, 16 2015) (“A public entity, such as a municipality, can be held vicariously liable on state 17 law claims for the actions of its employee pursuant to California Government Code § 18 815.2(a).”). Accordingly, the Court DENIES Defendants’ motion to dismiss the eighth 19 through eleventh causes of action for common law tort claims as to the City of San 20 Diego. See Nozzi v. Hous. Auth. of City of Los Angeles, 425 Fed. App’x 539, 542 (9th 21 Cir. 2011) (holding that public entities “may be held vicariously liable for the negligent 22 acts of their individual employees”). 23 In sum, the Court GRANTS Defendants’ motion to dismiss the supervisory 24 liability allegations and DENIES Defendants’ motion to dismiss the eighth through 25 eleventh causes of action. The Court also GRANTS Defendants’ motion to dismiss 26 punitive damages claim as unopposed. 27 / / / 28 / / / 1 D. Motion to Dismiss by PUSD and Richardson 2 Defendants PUSD and Richardson move to dismiss portions of the complaint for 3 lack of subject matter jurisdiction based on Eleventh Amendment immunity under Rule 4 12(b)(1),8 and alternatively seek to dismiss the common law claims for failure to state a 5 claim under Rule 12(b)(6). (Dkt. No. 9.) Specifically, PUSD and Richardson move to 6 dismiss the state law claims under the sixth cause of action for violation of the Unruh 7 Civil Rights Act and seventh cause of action for breach of mandatory duties as well as the 8 common law claims alleged in the eighth cause of action for negligence, ninth cause of 9 action for false imprisonment and eleventh cause of action for intentional infliction of 10 emotional distress.9 (Dkt. No. 9-1 at 11-12.) 11 1. Eleventh Amendment Immunity 12 The Eleventh Amendment bars suits seeking damages or injunctive relief against 13 the state brought in federal court. Savage v. Glendale Union High Sch., 343 F.3d 1036, 14 1040 (9th Cir. 2003); Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir.) 15 (explaining agencies of the state are immune under the Eleventh Amendment from 16 private damages or suits for injunctive relief), cert. denied, 138 S. Ct. 459 (2017); see 17 also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124–25 (1984); Ashker v. 18 Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997). The Eleventh Amendment 19 also bars damages actions against state officials in their official capacity but not in their 20 individual capacity. Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). 21 “The Eleventh Amendment's bar against suing an arm of the state in federal court applies 22 equally to federal and state law claims.” Roe ex rel. Callahan v. Gustine Unified Sch. 23 Dist., 678 F. Supp. 2d 1008, 1039 (E.D. Cal. 2009). 24 25 8 As recognized by Defendants, a motion to dismiss based on Eleventh Amendment immunity may be 26 analyzed under either Rule 12(b)(6) or Rule 12(b)(1). Sato v. Orange Cnty. Dept of Educ., 861 F.3d 923, 927 n. 2 (9th Cir. 2017). 27 9 The Court relies on the notice of motion that seeks dismissal of the state law claims and not the federal claims notwithstanding that Defendants also argue for dismissal of “each cause of action asserted against 28 1 School districts in California are agents of the state and immune to suit under the 2 Eleventh Amendment. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th 3 Cir. 1992) cert. denied, 507 U.S. 919 (1993); Sato, 861 F.3d at 934 (reaffirming Eleventh 4 Amendment immunity to California public school districts after passage of AB 97 5 concerning state funding). Similarly, suits against school officials sued in their official 6 capacity are barred under the Eleventh Amendment. Brown v. Cal. Dep't of Corr., 554 7 F.3d 747, 752 (9th Cir. 2009). 8 Defendants PUSD and Richardson argue that the sixth through ninth and eleventh 9 claims are barred under the Eleventh Amendment. In response, Plaintiff does not dispute 10 that the “the Eleventh Amendment renders Defendant PUSD immune from suit in federal 11 court.” (Dkt. No. 18 at 11.) Instead, Plaintiff asks the Court to remand the case to state 12 court arguing that “where an entity or individual entitled to Eleventh Amendment 13 Immunity does not join in or consent to removal and timely raises its immunity defense 14 in federal court, the proper remedy is remand, rather than dismissal, of plaintiff’s claims, 15 particularly where remand is necessitated through no fault of plaintiff’s and dismissal 16 would result in prejudice to plaintiff.” (Id. at 11-12.) PUSD and Richardson reply that 17 remanding the claims against them while the case is being litigated in this court will 18 result in piecemeal litigation and is not legally supported nor practical. 19 Plaintiff has not provided any legal authority and the Court agrees with Defendants 20 that there is no procedural mechanism to remand certain defendants in a case to state 21 court while adjudicating the remaining defendants in federal court based on the same 22 underlying incident. Accordingly, the Court GRANTS PUSD’s motion to dismiss the 23 sixth through ninth and eleventh causes of action as barred by the Eleventh Amendment 24 as unopposed. 25 Moreover, even if such a procedure were allowed, the Court notes that Plaintiff has 26 waived any request to remand the case or part of the case to state court. The removal 27 statute requires that all defendants who have been “properly . . . served in the action” 28 must join in the notice of removal. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 1 n. 1 (9th Cir. 1988); see 28 U.S.C. § 1446(b)(2)(A) (“all defendants who have been 2 properly joined and served must join in or consent to the removal of the action.”) “A 3 motion to remand the case on the basis of any defect other than lack of subject matter 4 jurisdiction must be made within 30 days after the filing of the notice of removal under 5 section 1446(a).” 28 U.S.C. § 1447(c). A plaintiff's failure to challenge a procedural 6 defect in the removal before the 30 day deadline constitutes a waiver and the deadline is 7 strictly enforced. N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 8 69 F.3d 1034, 1038 (9th Cir. 1995) (“district court had no authority to remand the case to 9 the state court on the basis of a defect in removal procedure raised for the first time more 10 than 30 days after the filing of the notice of removal.”) In this case, at the time of 11 removal, PUSD and Richardson had been served but did not consent to the removal. 12 (Dkt. No. 1 at 3.) Because Plaintiff did not raise the issue of the procedural defect in a 13 motion to remand within the 30 day period, he has waived his procedural objection to 14 removal. 15 Richardson also moves to dismiss these state law claims against her based on 16 Eleventh Amendment Immunity as the complaint alleges claims against her in her official 17 capacity and such claims are barred. (Dkt. No. 9-1 at 13-14.) In response, Plaintiff 18 argues that he is suing Richardson in her individual capacity and dismissal is not 19 warranted. (Dkt. No. 18 at 15-16.) 20 The Eleventh Amendment bars suit against a state official in his or her official 21 capacity but does not bar suit in his or her individual capacity. Pena, 976 F.2d at 473. 22 “In determining whether a plaintiff has sued officials in their personal capacity, courts 23 first look to the allegations asserted in the complaint.” Lil’ Man in the Boat, Inc. v. City 24 and Cnty. of San Francisco, Case No. 17-cv-00904-JST, 2019 WL 8263438, at *3 (N.D. 25 Cal. Nov. 6, 2019) (citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) (noting 26 that courts should consider additional factors in cases where the complaint does not 27 clearly specify whether officials are sued personally)). Here, the complaint clearly 28 alleges that Richardson is the Vice Principal of Design 39 and an employee of PUSD and 1 “acting or purporting to act in her official capacity as such.” (Dkt. No. 1-3, Compl. ¶ 4.) 2 Therefore, because the complaint seeks to sue Richardson in her official capacity, 3 Plaintiff’s claims are barred.10 4 In sum, the Court GRANTS PUSD and Richardson’s motion to dismiss the sixth, 5 seventh, eighth, ninth and eleventh causes of action as unopposed and barred by the 6 Eleventh Amendment.11 7 E. CRFI and Ju’s Motion to Dismiss 8 Defendants CRFI and Ju, by way of joinder, filed a motion to dismiss all causes of 9 action against them based on the immunity provision provided under the Lanterman- 10 Petris-Short Act (“LPS Act”), California Welfare & Institutions Code section 5150 et seq. 11 (“section 5150”). (Dkt. No. 12-1 at 8-11.) Plaintiff disputes that section 5150 applies to 12 minors and instead section 5585.20 of the Children's Civil Commitment and Mental 13 Health Treatment Act of 1988 (“CCC Act”) applies. See Cal. Welf. & Inst. Code § 14 5585.20. In reply, Defendants do not dispute that section 5585.50 applies but contend 15 that the standard for a 72-hour hold under section 5585.50 is similar to section 5150 and 16 the immunity provided under the LPS also applies to the CCC Act. 17 The Court agrees with Plaintiff that the CCC Act applies to the facts in this case 18 because Plaintiff is a minor. The legislative intent of the CCA Act is “(a) To provide 19 prompt evaluation and treatment of minors with mental health disorders, with particular 20 priority given to seriously emotionally disturbed children and adolescents.” Cal. Welf. & 21 Inst. Code § 5585.10. 22

23 10 Plaintiff argues that if the complaint is silent or ambiguous as to what capacity the official actor is 24 being sued, the court looks beyond the caption to the basis of the claims asserted and relief sought and 25 conducts a detailed analysis as to whether the allegations in the complaint alleges claims against Richardson in her personal capacity. (Dkt. No. 18 at 15-21.) However, in this case, the complaint is not 26 silent and explicitly states that Richardson is being sued in her official capacity; therefore, the Court need not analyze the allegations in the complaint to determine if Richardson is sued in her personal or 27 official capacity. 11 Because the Court grants dismissal of PUSD and Richardson, the Court need not address whether 28 1 Section 5585.50 provides, 2 (a) When any minor, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled and authorization for voluntary 3 treatment is not available, a peace officer, member of the attending staff, as 4 defined by regulation, of an evaluation facility designated by the county, or other professional person designated by the county may, upon probable 5 cause, take, or cause to be taken, the minor into custody and place him or her 6 in a facility designated by the county and approved by the State Department of Health Care Services as a facility for 72-hour treatment and evaluation of 7 minors. The facility shall make every effort to notify the minor's parent or 8 legal guardian as soon as possible after the minor is detained.

9 (b) The facility shall require an application in writing stating the 10 circumstances under which the minor's condition was called to the attention of the officer, member of the attending staff, or professional person, and 11 stating that the officer, member of the attending staff, or professional person 12 has probable cause to believe that the minor is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled and 13 authorization for voluntary treatment is not available. If the probable cause 14 is based on the statement of a person other than the officer, member of the attending staff, or professional person, the person shall be liable in a civil 15 action for intentionally giving a statement which he or she knows to be false. 16 17 Cal. Welf. & Inst. Code § 5585.50. Section 5585.50 of the CCC Act applies solely to the 18 72-hour hold; otherwise, the LPS Act applies. Id. § 5585.20. 19 The LPS Act provides immunity to an individual authorized to detain a person 20 pursuant to section 5150 and that individual, “shall not be held either criminally or civilly 21 liable for exercising this authority in accordance with the law.” Cal. Welf. & Inst. Code § 22 5278. “Section 5278 clearly grants immunity to those individuals authorized to detain a 23 person for a 72-hour hold.” Jacobs v. Grossmont Hosp., 108 Cal. App. 4th 69, 74 (2003). 24 “[S]ection 5278 means precisely what it says it means, and that civil liability, whether for 25 battery, [or] for false imprisonment . . . is precluded insofar as the detention is ‘in 26 accordance with the law.’” Heater v. Southwood Psychiatric Ctr., 42 Cal. App. 4th 1068, 27 1083 (1996). 28 1 Here, Plaintiff argues that section 5278 immunity does not apply to the CCC Act 2 because it cannot be read to extend to detentions not specified under that section. See 3 Cal. Welf. & Inst. Code § 5278 (“Individuals authorized under this part to detain a person 4 for 72-hour treatment and evaluation pursuant to Article 1 (commencing with Section 5 5150) or Article 2 (commencing with Section 5200), or to certify a person for intensive 6 treatment pursuant to Article 4 (commencing with Section 5250) or Article 4.5 7 (commencing with Section 5260) or Article 4.7 (commencing with Section 5270.10) or to 8 file a petition for post-certification treatment for a person pursuant to Article 6 9 (commencing with Section 5300) shall not be held either criminally or civilly liable for 10 exercising this authority in accordance with the law.”). 11 Case law on section 5585.50 is scarce and limited and only one case, an 12 unpublished Ninth Circuit case, Pasion v. San Diego Unified Sch. Dist., No. 94-56255, 13 1996 WL 244674 at *6 (9th Cir. May 10, 1996), addressed the applicability of the LPS 14 Act immunity to the CCA Act. In Pasion, the Ninth Circuit indicated that section 5278 15 immunity applied to a section 5585.50 detention but did not need to address the merits 16 because the court already determined that the detention was done “in accordance with the 17 law.” Id. 18 In this case, the Court relies on Pasion for guidance and concludes that the section 19 5278 immunity applies to a minor’s detention under 5585.50. The Court further notes 20 that the CCC Act explicitly states that section 5585.50 applies solely to the initial 72-hour 21 hold and to the extent there is no conflict, the provisions of LPS Act applies. Cal. Welf. 22 & Ins. Code § 5585.20.12 The immunity provision does not conflict with any provisions 23

24 25 12 “This part shall apply only to the initial 72 hours of mental health evaluation and treatment provided to a minor. Notwithstanding the provisions of the Lanterman-Petris-Short Act . .. , unless the context 26 otherwise requires, the definitions and procedures contained in this part shall, for the initial 72 hours of evaluation and treatment, govern the construction of state law governing the civil commitment of minors 27 for involuntary treatment. To the extent that this part conflicts with any other provisions of law, it is the intent of the Legislature that this part shall apply. Evaluation and treatment of a minor beyond the initial 28 1 of the CCC Act. Therefore, the Court agrees with Defendants that the immunity 2 provision of the LPS Act, section 5278, applies to the CCC Act. 3 Plaintiff, alternatively, argues that even if section 5278 immunity applied, the 4 detention was not done “in accordance with the law”; therefore, Defendants are not 5 immune. Defendants disagree arguing the pleaded facts show a properly performed 6 assessment where Ju performed his duties based on the information relayed by Design 39 7 staff and made the determination that Plaintiff was a threat. 8 First, Plaintiff contends that Ju was not “authorized” to conduct the detention. 9 Section 5585.50(a) limits the detention of minors by peace officers, attending staff at 10 county designated evaluation facilities and other county designated professional persons. 11 Cal. Welf. & Ins. Code § 5585.50(a). The complaint alleges that Ju is a PERT clinician 12 and not a peace officer or individual designated or authorized by the county under section 13 5585.50. Therefore, Ju had no authority to detain Plaintiff under section 5585.50 and 14 thus, he is not immune section 5278. Although Officer McGill was an authorized peace 15 officer, he did not participate in the initial “examination.” Therefore, the complaint does 16 not allege that Ju was authorized to carry out the detention under section 5585.20. 17 Second, Plaintiff argues there was no probable cause to detain him. Section 18 5585.50 requires that there be probable cause to take a minor into custody and placed in a 19 county designated facility. Cal. Welf. & Ins. Code § 5585.50. The standard of probable 20 cause for a section 5150 detention13 is similar probable cause for a warrantless arrest 21 under the California Penal Code. People v. Triplett, 144 Cal. App. 3d 283, 287 (1983). 22 “To constitute probable cause to detain a person pursuant to section 5150, a state of facts 23 must be known to the peace officer (or other authorized person) that would lead a person 24 of ordinary care and prudence to believe, or to entertain a strong suspicion, that the 25 person detained is mentally disordered and is a danger to himself or herself or is gravely 26

27 13 Because there is a scarcity of caselaw addressing section 5585.50 and the language of section 5585.50 28 1 disabled. In justifying the particular intrusion, the officer must be able to point to 2 specific and articulable facts which, taken together with rational inferences from those 3 facts, reasonably warrant his or her belief or suspicion.” Id. at 287-88. 4 The complaint alleges that Plaintiff was brought to the Welcome Center/Office 5 based on a verbal altercation and not a physical or violent one. (Dkt. No. 1-3, Compl. ¶¶ 6 23-25, 34.) Plaintiff had no weapons in his possession which was confirmed by 7 Richardson. (Id.) During the interrogation and detention, though terrified and confused, 8 he remained calm despite missing lunch, not having any water and despite Richardson 9 and Ju’s refusal to contact his parents. (Id. ¶ 31.) These alleged facts demonstrate that 10 that a person of ordinary care and prudence would not believe that L.J. was mentally 11 disordered, a danger to himself, or others, or was gravely disabled. See Triplett, 144 Cal. 12 App. 3d at 287. 13 Finally, in contravention to section 5585.50, Ju and Richardson did not attempt to 14 contact Plaintiff’s parents “as soon as possible” after L.J’s detention. (Dkt. No. 1-3, 15 Compl. ¶¶ 32-33.) According to Plaintiff, this demonstrates that Ju ignored the 16 availability of voluntary treatment that was required under section 5585.50. Therefore, 17 the complaint alleges that the detention was not conducted in accordance with section 18 5585.50. 19 Because the complaint alleges that the detention was not conducted in compliance 20 with section 5585.50 or “in accordance with the law,” section 5278 immunity does not 21 apply at this stage to bar Plaintiff’s claims. Therefore, the Court DENIES Defendants’ 22 motion to dismiss based on the section 5278 immunity. 23 Next, Defendants alternatively move to dismiss each cause of action alleged 24 against them for failure to state a claim. In response, Plaintiff agrees to dismiss the 25 seventh cause of action for breach of mandatory duties under Government Code section 26 815.6 and eighth cause of action for negligence under California Government Code 27 section 815.2, 815.6 and 820 against CRFI with leave to amend to allege general 28 1 negligence. (Dkt. No. 17 at 10.) Plaintiff opposes Defendants’ remaining arguments on 2 each cause of action. 3 1. Second Cause of Action - Monell liability as to CRFI 4 Defendants argue that CRFI is not liable under Monell because while Ju was acting 5 under color of state law, no constitutional violation occurred because Ju conducted a 6 proper 515015 assessment.16 (Dkt. No. 12-2 at 12.) Plaintiff contends that CRFI violated 7 his constitutional rights. 8 Cities, counties and other local government entities are subject to claims under 42 9 U.S.C. § 1983. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978). 10 While municipalities, their agencies and their supervisory personnel cannot be held liable 11 under § 1983 on any theory of respondeat superior or vicarious liability, they can, 12 however, be held liable for deprivations of constitutional rights resulting from their 13 formal policies or customs. Monell, 436 U.S. at 691-93. Liability only attaches where 14 the municipality itself causes the constitutional violation through “execution of a 15 government’s policy or custom, whether made by its lawmakers or by those whose edicts 16 or acts may fairly be said to represent official policy.” Id. at 694. A plaintiff must 17 establish that “the local government had a deliberate policy, custom, or practice that was 18 the moving force behind the constitutional violation [they] suffered.” AE ex rel. 19 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citing Whitaker v. 20 Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)). To establish Monell liability, Plaintiff must 21 show that “(1) [Ju] acted under color of state law, and (2) if a constitutional violation 22 occurred, the violation was caused by an official policy or custom of [CRFI].” Tsao v. 23 24 25 14 Defendants solely move to dismiss the eighth cause of action against CRFI and not against Ju. (Dkt. 26 No. 12-1 at 15.) 15 In reply, Defendants do not dispute that section 5585.50 applies to minors instead of section 5150. 27 16 While Defendants assert that CFRI is a private entity, not a public one, it appears to concede that a Monell claim may be extended to a private entity under certain circumstances and does not move to 28 1 Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (citing Harper v. City of Los 2 Angeles, 533 F.3d 1010, 1024 (9th Cir. 2008)). 3 Defendants do not dispute that Ju was acting under color of state law but 4 summarily argue that there was no violation of Plaintiff’s constitutional rights because Ju 5 executed a proper section 5150 assessment. As discussed above, the Court concluded 6 that Plaintiff sufficiently alleged facts demonstrating that Ju did not properly execute a 7 5158.50 detention. As such, Defendants’ summary argument is without merit,17and the 8 Court DENIES Defendants’ motion to dismiss the § 1983 Monell claim against CRFI. 9 2. Third Cause of Action – Title II of the ADA as to CRFI 10 Defendants move to dismiss the Title II of the ADA claim solely arguing that 11 CRFI is not a public entity. (Dkt. No. 12-1 at 12-13.) In opposition, Plaintiff posits that 12 Title II of the ADA should apply to CRFI as an instrumentality of the State. (Dkt. No. 17 13 at 30.) 14 Title II of the ADA states “[n]o qualified individual with a disability shall, by 15 reason of such disability, be excluded from participation in or be denied benefits of the 16 services, programs, or activities of a public entity, or be subjected to discrimination by 17 any such entity.” 42 U.S.C. § 12132 (emphasis added). To prevail under Title II of the 18 ADA, 42 U.S.C. § 12131 et seq., the “plaintiff must show that: (1) he is a qualified 19 individual with a disability; (2) he was either excluded from participation in or denied the 20 benefits of a public entity's services, programs, or activities, or was otherwise 21 discriminated against by the public entity; and (3) this exclusion, denial, or discrimination 22 was by reason of his disability.” Cohen v. City of Culver City, 754 F.3d 690, 695 (9th 23 Cir. 2014). In a disability action seeking monetary relief, a plaintiff must additionally 24 25 17 While Plaintiff provides a detailed legal analysis as to the Monell claims, (Dkt. No. 17 at 18-30), 26 Defendants did not move to dismiss on each separate ground of constitutional violations under Monell but only provided a summary argument that the claim should be dismissed because Ju conducted a 27 proper assessment. Furthermore, Defendants failed to address Plaintiff’s arguments in their reply. Thus, the Court declines to address each separate ground of constitutional violations raised in Plaintiff’s 28 1 prove intentional discrimination as defined by the “deliberate indifference” standard. 2 Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Title II of the ADA 3 defines public entity as “(A) any State or local government” and (B) any department, 4 agency, special purpose district, or other instrumentality of a State or States or local 5 government[.]” 42 U.S.C. § 12131. 6 The Ninth Circuit has not addressed the issue of whether Title II applies to private 7 companies that contract with the State or local government. In Wilkins-Jones, the court 8 held that Title II of the ADA is not applicable to government contractors. Wilkins-Jones 9 v.v. Cnty. of Alameda, 859 F. Supp. 2d 1039, 1045 (N.D. Cal. 2012). The court 10 addressed and conducted a detailed analysis on the issue of whether a private business 11 contracting with the County to provide medical services to inmates, can be considered an 12 “instrumentality” of the state. Id. While acknowledging the split among courts as to 13 “whether private companies can be held liable under Title II when they perform 14 contracted services for the government”, the majority of the courts, including circuit 15 courts who have addressed this issue have held that Title II does not apply to government 16 contractors. Id. at 1045-46. 17 In opposition, Plaintiff asks the Court to consider the unique nature of PERT 18 services and the dissent in the Eleventh Circuit’s decision in Edison v. Douberly, 604 19 F.3d 1307, 1308, 1311 (11th Cir. 2010) (R. Barkett dissenting). He argues that PERT 20 performs essential government functions that only the government is allowed to perform 21 such as involuntary detentions and should be considered an instrumentality of the state 22 for purposes of Title II of the ADA. 23 In Edison, the Eleventh Circuit held that a private prison management corporation 24 that contracted to provide prison management services to the state of Florida was not a 25 “public entity” under Title II of the ADA. Id. at 1310. In dissent, Judge Barkett 26 distinguished between contracting with the government and taking on government 27 functions. Id. at 1311. She explained that where a private company contracts to provide 28 essential government functions, functions which only governments are allowed to 1 perform, that company becomes an instrumentality of the state for liability purposes 2 under the ADA. Id. In Wilkes-Jones, the district court considered the reasoning in Judge 3 Barkett’s dissent persuasive but concluded that it would defer to the currently prevailing 4 view in the circuit courts that government contractors are not liable under Title II. 5 Wilkes-Jones, 859 F. Supp. 2d at 1047. 6 This case involves a non-profit private corporation that contracts with the County 7 of San Diego for PERT services and not to manage a prison. In contrast to Edison where 8 the private corporation contracted with the state to operate a state prison, according to the 9 contract between CRFI and the County of San Diego, PERT services involve more than 10 just involuntary confinements and include functions such as consulting, training and 11 developing programs that private companies can also provide separate from the state. 12 (Dkt. No. 12-3, RJN, Ex. 1 at 20-28.18) Therefore, the Court declines the invitation to 13 rely on the dissent in Edison to conclude that CRFI is an instrumentality of the state. 14 Accordingly, given the current state of the law, the Court concludes that CRFI is not a 15 public entity as defined under Title II of the ADA and the Court GRANTS the dismissal 16 of the third cause of action. 17 / / / 18 / / / 19 20

21 22 18 Defendant CRFI requests judicial notice of San Diego County Contract Number 544550 between the County and PERT, Inc. (the predecessor to CRFI), and the Agreement of Merger evidencing CRFI as 23 the successor surviving corporation to PERT, Inc. as they are documents of public record. (Dkt. No. 12- 2.) Pursuant to Federal Rules of Evidence 201, a court may take judicial notice of a fact not reasonably 24 subject to dispute because it “is generally known within the trial court’s jurisdiction or can be accurately 25 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Plaintiff does not oppose the request. Accordingly, because these documents are matters of 26 public record and available on the relevant government websites, the Court GRANTS CRFI’s request for judicial notice of Exhibit 1 and 3 of its RJN. See Hall v. Washington Mutual Bank, Case No. CV 27 10–01606 DMG (VBKx), 2010 WL 11549664, at *1 n. 2 (C.D. Cal. July 7, 2010) (granting request for judicial notice of contract with the FDIC, a federal agency, where contracts were available on the 28 1 3. Fourth Cause of Action – Section 504 of the Rehabilitation Act as to 2 CRFI 3 Defendants next maintain that the Rehabilitation Act should be dismissed because 4 it only applies to public entities. (Dkt. No. 12-1 at 12-13.) Plaintiff disagrees arguing 5 that the Rehabilitation Act applies to both public and private entities that receive financial 6 assistance from the federal government. (Dkt. No. 17 at 30.) 7 The Rehabilitation Act provides that “[n]o otherwise qualified individual with a 8 disability . . . shall, solely by reason of her or his disability, be excluded from the 9 participation in, be denied the benefits of, or be subjected to discrimination under any 10 program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The 11 Rehabilitation Act is broader in scope than the ADA. Fleming v. Yuma Regional Med. 12 Ctr., 587 F.3d 938, 941(9th Cir. 2009). “Title II applies to public entities whereas 13 Section 504 applies to recipient of federal funds.” Wilkins-Jones, 859 F. Supp. 2d at 14 1044. The Rehabilitation Act broadly defines “program or activity” to include inter alia 15 “all of the operations of—. . . an entire corporation, partnership, or other private 16 organization, or an entire sole proprietorship” if the entity as a whole receives federal 17 assistance or if the entity “is principally engaged in the business of providing education, 18 health care, housing, social services, or parks and recreation,” and various other services. 19 29 U.S.C. § 794(b)(3)(A). 20 The complaint alleges that CRFI receives funds from the federal government. 21 (Dkt. No. 1-3, Compl. ¶¶ 7, 167.) Moreover, in reply, CRFI does not challenge 22 Plaintiff’s argument that the Rehabilitation Act applies. Accordingly, the Court DENIES 23 Defendants’ motion to dismiss the fourth cause of action for violations of Section 504 of 24 the Rehabilitation Act.19 25

26 19 In their reply, Defendants CRFI and Ju, for the first time, argue that the ADA and Rehabilitation Act 27 claims must be dismissed because the complaint alleges that Ju knew of L.J.’s autism diagnosis after the assessment had been concluded; therefore, Ju could not have discriminated L.J. based on his disability. 28 1 4. Sixth Cause of Action – Unruh Civil Rights Act, California Civil Code 2 section 51 3 Defendants aver that the complaint fails to allege that CRFI’s conduct was 4 “motivated” by L.J.’s autism because the complaint alleges that Ju did not know about 5 L.J.’s autism diagnosis until his mother appeared at the school and Ju had already made 6 his determination to send him to Rady’s. (Dkt. No. 12-1 at 14.) In response, Plaintiff 7 claims that the substantial motivating reason for Ju’s conduct was his “reaction and 8 perception that minors with autism do not suffer harm from the wrongful conduct alleged 9 [ ] and/or that Plaintiff is not disabled.” (Dkt. No. 17 at 32-33.) 10 California Civil Code section 51, known as the Unruh Civil Rights Act, provides 11 that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter 12 what their sex, race, color, religion, ancestry, national origin, disability, medical 13 condition, genetic information, marital status, sexual orientation, citizenship, primary 14 language, or immigration status are entitled to the full and equal accommodations, 15 advantages, facilities, privileges, or services in all business establishments of every kind 16 whatsoever.” Cal. Civ. Code § 51. To make out a prima facie case, the plaintiff must 17 prove that (1) the defendant “discriminated or made a distinction that denied full and 18 equal accommodations” as proscribed by the Act; (2) the defendant's “motivating” or 19 “substantial motivating reason” for its conduct was “its perception” that the plaintiff 20 possessed one or more of the characteristics protected by the Act; (3) the plaintiff was 21 harmed; and (4) the defendant's “conduct was a substantial factor in causing [the 22 plaintiff's] harm.” CACI No. 3060; Cheng et al., Cal. Fair Housing and Public 23 24 25 reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider 26 arguments raised for the first time in a reply brief.”); In re China Intelligent Lighting & Elecs,, Inc. Sec. Litig., No. CV 11-2768 PSG SSX, 2012 WL 3834815, at *4 (C.D. Cal. Sept. 5, 2012) (“The Court will 27 not address new arguments raised for the first time in a reply brief.”); United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a moving party to introduce 28 1 Accommodations, The Rutter Group 2015, § 12:3 [in absence of published cases setting 2 forth these elements, looking to CACI Instruction for articulation of elements].) 3 Section 51(f) provides that “[a] violation of the right of any individual under the 4 federal Americans with Disabilities Act of 1990 . . . shall also constitute a violation of 5 this section.” Cal. Civ. Code § 51. As such, an Unruh Act claim is derivative of an ADA 6 disability discrimination claim. Cohen v. City of Culver City, 754 F.3d 690, 701 (9th Cir. 7 2014). To demonstrate a violation of Title II of the ADA, a plaintiff “must show that: (1) 8 he is a qualified individual with a disability; (2) he was either excluded from participation 9 in or denied the benefits of a public entity's services, programs, or activities, or was 10 otherwise discriminated against by the public entity; and (3) such exclusion, denial of 11 benefits, or discrimination was by reason of his disability.” Updike v. Multnomah Cnty., 12 870 F.3d 939, 949 (9th Cir. 2017). “A public entity may be liable for damages under 13 Title II of the ADA or § 504 of the Rehabilitation Act if it intentionally or with deliberate 14 indifference fails to provide meaningful access or reasonable accommodation to disabled 15 persons.” Id. at 951 (citation omitted). 16 Defendants argue that because Ju did not learn that L.J. was autistic until Mrs. 17 Jones arrived at the school and his evaluation had been completed, Ju could not have 18 discriminated L.J. based on his disability. While that assertion is true, (Dkt. No. 1-3, 19 Compl. ¶ 34), once Ju learned that L.J. was autistic, the complaint also claims that Ju 20 should have been knowledgeable and aware of the symptoms associated with autism and 21 should have accommodated L.J. while Ju continued his interaction with him. (See id. ¶¶ 22 236, 247.) Instead, when Mrs. Jones told Ju that L.J. had autism, he did not respond but 23 stated that his decision had been made and there was nothing she could do about it. (Id. ¶ 24 34.) Mrs. Jones then asked whether she could take custody of L.J. and whether she could 25 transport him to Rady’s but Ju responded in the negative. (Id. ¶¶ 34, 36.) Then Ju 26 proceeded to provide the Tarasoff notice to the students on the “hate list” and transported 27 L.J. to Rady’s. (Id. ¶¶ 36-38.) 28 1 Therefore, Plaintiff has alleged that the substantial motivating reason for Ju’s 2 alleged discriminatory conduct by failing to accommodate was due to Plaintiff’s 3 disability. Thus, the Court DENIES Defendants’ motion to dismiss the Unruh Civil 4 Rights Act. 5 5. Ninth Cause of Action – False Imprisonment/False Arrest as to CRFI 6 and Ju 7 Defendants move to dismiss the false arrest/false imprisonment claim arguing that 8 Ju performed a proper section 5150 assessment, he provided the required and proper 9 Tarasoff20 notification to parents of the children identified on the “hate list” and properly 10 aided Officer McGill in transporting L.J. to Rady’s for a formal evaluation. (Dkt. No. 12- 11 1 at 15-16.) Plaintiff disagrees arguing that false imprisonment has been properly 12 alleged. (Dkt. No. 17 at 33.) 13 The “elements of a tortious claim of false imprisonment are: (1) the nonconsensual, 14 intentional confinement of a person, (2) without lawful privilege, and (3) for an 15 appreciable period of time, however short.” Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 16 (1994) (merchant's arrest). “Restraint may be effectuated by means of physical force, 17 threat of force or of arrest, confinement by physical barriers or by means of any other 18 form of unreasonable duress.” Id. (internal citations omitted). False imprisonment under 19 California law is the “unlawful violation of the personal liberty of another.” Asgari v. 20 City of Los Angeles, 15 Cal.4th 744, 757 (1997). False arrest is not a different tort; it is 21 merely “one way of committing a false imprisonment.” Collins v. City & Cnty. of San 22 Francisco, 50 Cal. App. 3d 671, 673 (1975). 23 Here, the complaint alleges that L.J. did not consent to the interrogation and was 24 not allowed to freely leave. (Dkt. No. 1-3, Compl. ¶ 31.) He was interrogated and 25 confined for four hours where he was interrogated and threatened with arrest. (Id. ¶ 32.) 26

27 20 In Tarasoff, the California Supreme Court required that warnings be given directly to an identifiable 28 1 Eventually, he was placed in handcuffs and placed in a police vehicle without L.J.’s 2 consent or probable cause. (Id.) These allegations support a claim for false 3 imprisonment. The Court DENIES Defendants’ motion to dismiss the false 4 imprisonment/false arrest cause of action. 5 6. Tenth Cause of Action – Battery as to CRFI and Ju 6 Defendants move to dismiss the battery claim arguing that Ju performed a proper 7 assessment and the necessary touching in transporting L.J. to Rady’s for a formal 8 evaluation. (Dkt. No. 12-1 at 17.) Plaintiff argues that he was tightly handcuffed without 9 his consent for about three hours which caused bruises and cuts on his wrists causing 10 significant physical pain and emotional trauma. (Dkt. No. 17 at 34.) 11 Civil battery requires the following elements: “(1) defendant intentionally 12 performed an act that resulted in a harmful or offensive contact with the plaintiff's 13 person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive 14 contact caused injury, damage, loss or harm to plaintiff.” Brown v. Ransweiler, 171 Cal. 15 App. 4th 516, 536-27 (2009); Rains v. Superior Ct., 150 Cal. App. 3d 933, 938 (1984) 16 (“A battery is a violation of an individual's interest in freedom from intentional, unlawful, 17 harmful or offensive unconsented contacts with his or her person.”). 18 The complaint alleges a claim for battery by asserting that Plaintiff was handcuffed 19 for a period of three hours without his consent which caused physical and emotional 20 harm. (Dkt. No. 1-3, Compl. ¶¶ 31, 36, 38-39.) Accordingly, the Court DENIES 21 Defendants’ motion to dismiss the battery cause of action. 22 7. Eleventh Cause of Action – Intentional Infliction of Emotional Distress 23 as to CRFI and Ju 24 Defendants similarly argue that the intentional infliction of emotional distress 25 claim should be dismissed because Ju conducted a proper assessment and there was 26 nothing extreme or outrageous in Ju’s conduct. (Dkt. No. 12-1 at 18.) In response, L.J. 27 contends that the detention, interrogation, seizure and/or arrest was extreme and 28 outrageous. (Dkt. No. 17 at 34.) 1 The tort of intentional infliction of emotional distress is comprised of three 2 elements: (1) extreme and outrageous conduct by the defendant with the intention of 3 causing, or reckless disregard of the probability of causing, emotional distress; (2) the 4 plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were 5 actually and proximately caused by the defendant's outrageous conduct. Cochran v. 6 Cochran, 65 Cal. App. 4th 488, 494 (1998). The California Supreme Court has set a 7 “high bar” to demonstrate severe emotional distress. Hughes v. Pair, 46 Cal. 4th 1035, 8 1051 (2009). “Severe emotional distress means ‘emotional distress of such substantial 9 quality or enduring quality that no reasonable [person] in civilized society should be 10 expected to endure it.’” Id. (citation omitted). 11 Here, the complaint sufficiently alleges extreme and outrageous conduct by 12 Defendants of further detaining, interrogating and handcuffing a nine-year old autistic 13 boy who exhibited no signs of violence or emotional distress during the interrogation. 14 See e.g. Crouch v. Trinity Christian Ctr. of Santa Ana, Inc., 39 Cal. App. 5th 995, 1007 15 (2019) (extreme and outrageous conduct where director of non-profit corporation, also 16 victim’s grandmother, flew into a tirade, yelling at a 13-year-old rape victim that she is 17 stupid and it was her fault). Accordingly, the Court DENIES the motion to dismiss the 18 intentional infliction of emotional distress cause of action. 19 In sum, the Court GRANTS Defendants CRFI and Ju’s motion to dismiss the Title 20 II of the ADA cause of action and DENIES the motion to dismiss as to the immunity 21 under the LPS Act, claims under Monell, Section 504 of the Rehabilitation Act, Unruh 22 Civil Rights Act, and the state law claims for false imprisonment/false arrest, battery and 23 intentional infliction of emotional distress. The Court also GRANTS dismissal of the 24 seventh cause of action for breach of mandatory duties under Government Code section 25 815.6 and eighth cause of action for negligence under California Government Code 26 section 815.2, 815.6 and 820 against CRFI as unopposed. 27 / / / 28 / / / 1 ||F. Leave to Amend 2 In the opposition to all Defendants’ motions to dismiss, Plaintiff seeks leave to file 3 |}an amended complaint in the event the Court grants dismissal of any claims. Because 4 ||leave to amend would not be futile, the Court GRANTS Plaintiff's request for leave to 5 || file an amended complaint. See DeSoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. 6 Conclusion 7 As described above, the Court GRANTS in part and DENIES in part the City of 8 ||San Diego and Officer McGill’s motion to dismiss; GRANTS PUSD and Richardson’s 9 || motion to dismiss; and GRANTS in part and DENIES in part CRFI and Ju’s motion to 10 dismiss. Plaintiff is granted leave to amend to file an amended complaint within 20 days 11 the Court’s order. The hearing set on December 4, 2020 shall be vacated. 12 IT IS SO ORDERED. 13 ||Dated: December 2, 2020 <=

15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28