1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 R.N., a minor, by and through her Guardian No. 2:20-cv-00562-KJM-JDP ad Litem, NICOLE NEFF, et al., 12 ORDER Plaintiffs, 13 v. 14

TRAVIS UNIFIED SCHOOL DISTRICT,

15 et al., 16 Defendants. 17 18 Two separate motions to dismiss are before the court in this case involving the 19 alleged physical and psychological abuse of a minor by a paraeducator at her school. Defendants 20 Travis Unified School District (“TUSD”), Solano County Office of Education (“SCOE”) and 21 Special Education Teacher Christopher Mears (“Mr. Mears”) (collectively “District defendants”) 22 move to dismiss ten of plaintiffs’ claims. District Mot. to Dismiss (“District MTD”) at 2, ECF 23 No. 12-1. Plaintiffs minor R.N. and her parents Nicole Neff and Chris Neff (“Mr. and Mrs. 24 Neff”) oppose the motion to dismiss. Pls.’ Opp’n to District MTD (“District Opp’n”), ECF No. 25 18. District defendants have replied. District Reply, ECF No. 19. District defendants also 26 request the court take judicial notice of both TUSD and SCOE’s complaint procedures. Req. for 27 Jud. Not., ECF No. 12-3. 28 ///// 1 Defendant Lilia Gumapas (“Ms. Gumapas”) also moves to dismiss five of 2 plaintiffs’ claims. Gumapas Mot. to Dismiss (“Gumapas MTD”) at 5, ECF No. 13-1. Plaintiffs 3 oppose this motion as well. Pls.’ Opp’n to Gumapas MTD (“Gumapas Opp’n), ECF No. 17. 4 Ms. Gumapas has replied. Gumapas Reply, ECF No. 20. 5 On June 26, 2020, the court heard oral argument, by videoconference, on both 6 motions to dismiss. Hr’g Minutes, ECF No. 21. Valerie Rose appeared for plaintiffs, Megan 7 Symons appeared for District defendants, and Lynn Garcia appeared for Ms. Gumapas. Id. On 8 July 22, 2020, the parties filed a stipulation regarding a City of Fairfield Police report plaintiffs’ 9 counsel received on July 7, 2020. Stip., ECF No. 24; see also Rose Decl., ECF No. 23. Though 10 the parties disagree over whether the police report contains new facts, they stipulate that if the 11 court grants either defendants’ motions to dismiss in full or in part, the court give plaintiffs leave 12 to amend to file a second amended complaint. Id. at 2–3. 13 For the reasons set forth below, the court GRANTS District defendants’ motion to 14 dismiss and GRANTS in part and DENIES in part Ms. Gumapas’ motion to dismiss. The court 15 GRANTS the parties’ stipulation and gives plaintiffs leave to file a second amended complaint. 16 The court also GRANTS District defendants’ request for judicial notice. Req. for Jud. Not., ECF 17 No. 14-3. 18 I. FACTUAL BACKGROUND AND ALLEGATIONS 19 During the 2018-2019 school year, plaintiff R.N., a minor diagnosed with autism, 20 Smith Lemli Optiz Syndrome (“SLO”), dyspraxia and intellectual disabilities, attended the Center 21 Elementary School (“CES”) in Solano County. First Am. Compl. (“FAC”) ¶¶ 4, 23, ECF No. 9. 22 R.N.’s disabilities entitled her to receive special education services and support under the 23 Individuals with Disabilities Education Act (“IDEA”). Id. ¶ 23. Mr. Mears and Ms. Gumapas 24 served as R.N.’s teacher and paraeducator, respectively. Id. ¶ 24. 25 Plaintiffs allege R.N. witnessed and experienced “ongoing physical and 26 psychological abuse” from Ms. Gumapas. Id. ¶ 25. This alleged abuse includes, but is not 27 limited to, events that took place on November 14, 2018, when several witnesses observed and 28 reported “multiple incidents” in which Ms. Gumapas allegedly: 1 kicked R.N. while forcing R.N. out of a sensory area, yelled at R.N. while physically forcing her to stand, forced R.N. into her desk, 2 grabbed R.N. by both of her ankles and pulled her by her legs 3 dragging R.N. across the ground approximately a foot before dropping R.N.’s legs onto the floor, grabbed R.N. by her shoulders, 4 pushing her down by her shoulders to force R.N. into a chair, grabbed R.N. by her jacket, pushed her to the ground, dragged R.N. 5 while yelling at her and physically held R.N. down while forcing R.N. to pick up grapes from the ground. 6 7 Id. ¶ 26 (emphasis in original). Plaintiff alleges the SCOE Principal of Special Education, Ilah 8 Feeney, only reported Ms. Gumapas’ abuse of R.N. to the police after the November 14 events, 9 despite numerous prior instances of physical and psychological abuse of which Mr. Mears and 10 other administrators were aware. Id. ¶¶ 28–29. On the evening of November 14, Principal 11 Feeney informed the Neffs of Ms. Gumapas’ abuse of their daughter earlier that day. Id. ¶ 35. 12 The Neffs claim the abuse began months before November 14 and the delay between the 13 beginning of this behavior and when the Neffs became aware of it allegedly caused them 14 emotional distress and deprived them “of the ability to contemporaneously comfort their daughter 15 and to provide appropriate counseling, medical or psychological care and support at the time of 16 her abuse.” Id. ¶¶ 33–35. When he spoke to them, Principal Feeney also informed the Neffs that 17 school officials removed Ms. Gumapas from CES after the events on November 14. Id. ¶ 35. 18 In the operative complaint, plaintiffs claim they do not yet know “the full extent of 19 all the abuse suffered by Plaintiff R.N. [. . .].” Id. ¶ 31. “On information and belief,” plaintiffs 20 allege administrators and employees of TUSD and SCOE, including Mr. Mears, knew of 21 Ms. Gumapas’ abuse, but “failed to take action to intervene to stop the abuse, failed to document 22 or report the abuse, and failed to retrain and/or discipline” Ms. Gumapas. Id. ¶¶ 29–30. “[T]he 23 full extent of all the abuse suffered by Plaintiff R.N.,” id. ¶ 31, and other students as well 24 becomes more evident in light of the City of Fairfield Police report, which plaintiffs’ counsel 25 provided to the court after she received it through a subpoena. Rose Decl., ECF No. 23; Rose 26 Decl. Ex. A (transcript from body camera footage in City of Fairfield Police report), ECF No. 23. 27 The report is based in part on videos of interviews on November 15, 2018, with Principal Feeney 28 1 and Mr. Mears, as well as of three classroom aides, Mariah Garrick, Sabrina True and Teresa 2 Koon. Rose Decl. ¶¶ 2–4. Transcripts of those interviews revealed all five school staff members 3 were aware of prior incidents with Ms. Gumapas. 4 Each person reported that Ms. Gumapas has, on other occasions, used 5 some form of inappropriate discipline, even if it was not as serious as the events plaintiffs allege 6 occurred on November 14, 2018. See Rose Decl. Ex. A at 62–63 (“Ms. Garrick: Like when a 7 kid’s like yelling and being auditory and just-just being a child with autism, she starts like tapping 8 their mouth—like not slapping them or hitting them, just like ‘hey, hey, be quiet’ to their own 9 mouth.”); id. at 90 (“Ms. True: As a coworker, she’s too rough with the kids. And there’s been a 10 lot of incidents with her that she-she’s too hands on.”); id. at 108 (“Ms. Koon: But, uh, it just 11 looked funny because I’ve seen her do other things—on other days—that are kind of 12 questionable.”). Additionally, two staff members, Ms. True and Ms. Koon, claimed school 13 leadership knew about Ms. Gumapas’ prior behavior and had even taken steps to discipline her or 14 at the very least prevent her from continuing to use these abusive methods. Id. at 91–93 (“Ms. 15 True: Uh, I believe she’s been told multiple times you can’t be that hands on with the students.” 16 And stating “yes” to “Have you ever made any complaints or reports to your supervisors about 17 previous behavior?”); id. at 113 (Ms. Koon: “She doesn’t take direction very well—even from the 18 teacher of the classroom.”). 19 In his interview, Mr. Mears, a named defendant in this action, even acknowledged 20 he “wouldn’t say [laughs] that she’s a good employee,” while also stating “[Ms. Gumapas] hasn’t 21 been like physically aggressive towards the students until yesterday.” Id. at 40–41. The police 22 report does not, however, reflect unanimity among all of Ms. Gumapas’ coworkers about how to 23 characterize the events of November 14. Some coworkers indicate they believe her actions that 24 day violated the law, while Mr. Mears does not. Compare Mr. Mears’ answers, id. at 46 (“I don’t 25 believe she was willfully trying to harm [R.N.]”) with Ms. Garrick’s answers, id. at 73 (“My 26 answer would be yes” to whether Ms. Gumapas willfully broke law), Ms. True’s answers, id., at 27 101 (“my answer is yes” to whether Ms. Gumapas crossed line) and Ms. Koon’s answers at id. at 28 121 (“the dragging and pushing her down did seem a little willful on Lily’s part”). 1 On January 25, 2018, SCOE issued its report, which found multiple individuals 2 complained Ms. Gumapas raised her voice and physically forced R.N. to comply with her 3 directions in “four different incidents” on November 14. FAC ¶ 36. In May 2019, plaintiffs 4 presented written government claims to TUSD for their alleged “injuries, losses, and damages” 5 resulting from the events of November 14; in June 2019, TUSD and SCOE notified plaintiffs they 6 were rejecting their claims. Id. ¶¶ 19–22. On March 12, 2020, plaintiffs filed this suit against 7 defendants. Compl., ECF No. 1. On April 20, 2020, the court granted plaintiffs leave to file an 8 amended complaint. Order, ECF No. 6. On April 23, 2020, plaintiffs filed their amended 9 complaint. See generally FAC. On May 5, 2020, the court granted plaintiffs’ petition appointing 10 Nicole Neff as guardian ad litem for minor plaintiff R.N. Order, ECF No. 10. 11 Plaintiffs put forward twelve causes of action in their first amended complaint: 12 (1) violation of Fourth Amendment rights under 42 U.S.C. § 1983; (2) violation of the Americans 13 with Disabilities Act (“ADA”); (3) violation of the Rehabilitation Act; (4) negligence; 14 (5) negligent hiring, supervision, or retention of an employee; (6) battery; (7) discrimination in 15 violation of the Unruh Civil Rights Act; (8) discrimination in violation of the California 16 Education Code; (9) violation of the mandatory reporting duty; (10) discrimination in violation of 17 the Bane Act; (11) intentional infliction of emotional distress (IIED); and (12) negligent infliction 18 of emotional distress (NIED). Id. ¶¶ 52–190. All claims, except for battery, are at issue in one 19 or other of the pending motions. See District MTD at 2; see also Gumapas MTD at 5. 20 II. LEGAL STANDARD 21 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 22 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 23 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 24 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 25 1990). 26 Although a complaint need contain only “a short and plain statement of the claim 27 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 28 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 1 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 3 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 4 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 5 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 6 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 7 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 8 interplay between the factual allegations of the complaint and the dispositive issues of law in the 9 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 10 In making this context-specific evaluation, this court must construe the complaint 11 in the light most favorable to the plaintiff and accept as true the factual allegations of the 12 complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “‘a legal 13 conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted 14 in Twombly, 550 U.S. at 555, nor to “allegations that contradict matters properly subject to 15 judicial notice” or to material attached to or incorporated by reference into the complaint. 16 Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). A court’s 17 consideration of documents attached to a complaint or incorporated by reference or matter of 18 judicial notice will not convert a motion to dismiss into a motion for summary judgment. United 19 States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 20 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 21 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to 22 dismiss, generally court is limited to face of the complaint on 12(b)(6) motion). 23 III. DISCUSSION 24 A. District Motion to Dismiss 25 District defendants contend the court should dismiss plaintiffs’ case for: (1) failure 26 to allege facts sufficient to establish a § 1983 claim; (2) failure to state a claim for relief under the 27 ADA; (3) failure to state a claim for relief under the Rehabilitation Act; (4) plaintiffs Nicole and 28 Chris Neff’s lack of standing to state a claim of negligence; (5) plaintiffs Nicole and Chris Neff’s 1 lack of standing to state a claim of negligent, hiring, supervision or retention; (6) failure of 2 plaintiffs’ Unruh Civil Rights Act claim as a matter of law; (7) plaintiffs’ failure to exhaust their 3 administrative remedies and to state a claim for relief for a violation of California Education Code 4 section 220; (8) failure of plaintiffs’ claim for violation of a mandatory reporting duty under 5 California Penal Code section 11166 fails as a matter of law; (9) failure of plaintiffs’ Bane Act 6 claim to state any facts that the District or its employees threatened, intimidated, coerced or 7 interfered with R.N.’s public education rights; (10) plaintiffs Nicole and Chris Neff’s lack of 8 standing and failure to allege facts sufficient to state a claim of IIED; and (11) plaintiffs Nicole 9 and Chris Neff’s lack of standing and failure to allege facts sufficient to state a claim of NIED. 10 MTD at 9–10. 11 The court addresses each of these arguments in turn. 12 1. Section 1983 (First Cause of Action): Mr. Mears 13 District defendants argue plaintiffs failed to provide sufficient factual allegations 14 (1) to demonstrate Mr. Mears had “any actual knowledge or notice” of Ms. Gumapas’ abusive 15 actions and (2) to show Mr. Mears did not provide adequate training to Ms. Gumapas. District 16 MTD at 12. With respect to the training claim, District defendants state plaintiffs have not 17 alleged a “‘pattern of similar constitutional violations by untrained employees.’” Id. (citing 18 Flores v. City of Los Angeles, 758 F.3d 1154, 1158–59 (9th Cir. 2014) (citations omitted)). 19 In opposition, plaintiffs point to their allegations Mr. Mears knew of Ms. 20 Gumapas’ “ongoing abuse” and “use of excessive force” throughout the 2018-2019 school year. 21 District Opp’n at 10 (citing FAC ¶¶ 29, 60–61). Even though the “only specific allegations” 22 involve the November 14, 2018 events, plaintiffs reason they have advanced sufficient facts to 23 state a plausible claim because R.N. is a “non-verbal disabled child who could neither report the 24 abuse nor articulate its effects” and so any evidence of other abuse is solely in the hands of 25 District defendants. District Opp’n at 10–11 (citing Preschooler II v. Clark County School Bd. of 26 Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007)). The police report plaintiffs received after motion 27 practice, including the interviews about the November 14, 2018 events, provides additional detail 28 that plaintiffs could use to support their allegations about prior instances of abuse. See generally 1 Rose Decl. The court notes the police report only to the extent it grants plaintiffs leave to file an 2 amended complaint. 3 Even without the police report, both at hearing and in their filings with the court, 4 plaintiffs present a thoughtful and well-reasoned argument regarding the pleading difficulties 5 unique to R.N.’s case. R.N. is similar in this respect to the plaintiff in Preschooler II, who was a 6 non-verbal child with autism and a neurological disorder. Preschooler II, 479 F.3d at 1180–81 7 (“Preschooler II’s mother alleges that the full extent of the abuse is not known, and Preschooler II 8 cannot be counted on to report it since he was so young at the time and is non-verbal as a result of 9 his autism.”). Given R.N.’s disabilities, as with Preschooler II’s, defendants including Mr. Mears 10 are likely best positioned to know about incidents involving R.N. at school. 11 Plaintiffs’ complaint here, however, is distinguishable from that in Preschooler II, 12 in that it does not provide sufficient factual allegations to plausibly state a claim for relief under 13 Section 1983. In Preschooler II, the Ninth Circuit found the plaintiff alleged sufficient facts for a 14 Section 1983 claim by describing seven specific instances of abuse from September 2002 to April 15 2003. Preschooler II, 479 F.3d at 1178, 1182–83 (“(1) Preschooler II was assaulted at circle time 16 by Defendant LiSanti [. . .] (2) LiSanti maliciously body slammed Preschooler II into a chair [. . .] 17 (3) On four occasions, LiSanti forced Preschooler II to ‘walk without shoes across the asphalt’ 18 from the school bus to the classroom [. . .] (4) On one occasion, LiSanti documented in writing 19 noticeable bruising to Preschooler II's arms.”). The Ninth Circuit did not interpret each of these 20 alleged events as providing a basis for an excessive force claim, id. at 1181; but when accepting 21 plaintiff’s allegations as true, the court did view the slamming and assault allegations as showing 22 “disregard of [the school officials’] responsibilities in hiring, training, supervising, disciplining 23 and reporting abuses committed by LiSanti,” id. at 1183. 24 In this case, by contrast, plaintiffs allege abuse occurring only on one day, saying 25 on that day Ms. Gumapas physically abused R.N. by grabbing, pushing and pulling her over the 26 course of the day. FAC ¶ 26. These allegations alone do not make out a plausible claim that 27 Mr. Mears had actual knowledge or notice of Ms. Gumapas’ abuse and failed to train her 28 ///// 1 adequately. Plaintiffs allege only vaguely that Mr. Mears knew about Ms. Gumapas’ treatment of 2 students and failed to provide her with the requisite training, as in the following: 3 On information and belief, during the 2018/2019 school year while GUMAPAS subjected R.N. to ongoing physical and psychological 4 abuse as punishment in response to her behaviors, responsible 5 administrators and employees of TUSD and SCOE, including Mears […] were aware of GUMAPAS’ abuse of R.N., but failed to take 6 action to intervene to stop the abuse, failed to discipline or retrain staff to prevent further abuse, failed to document or report incidents 7 of abuse, and failed to report the abuse to law enforcement as required. 8 9 Id. ¶ 29. These kind of allegations do not defeat District defendants’ motion to dismiss plaintiffs’ 10 Section 1983 claim against Mr. Mears. 11 The court GRANTS District defendants’ motion to dismiss the Section 1983 12 claim, as alleged against Mr. Mears. The court provides plaintiffs’ leave to file an amended 13 complaint, based on the parties’ stipulation and the police report now provided to the court. 14 Given that Ms. True and Ms. Koon each reported to the police that Mr. Mears was aware of 15 Ms. Gumapas’ problematic discipline of R.N. and other students prior to November 14, their 16 statements could well support factual allegations sufficient to plead Mr. Mears’ actual or 17 constructive knowledge of Ms. Gumapas’ behavior and his failure to correct it through necessary 18 training. 19 2. ADA (Second Cause of Action) and Rehabilitation Act (Third Cause of Action): TUSD and SCOE 20 a) Exhaustion Requirement 21 22 District defendants argue the court must dismiss plaintiffs’ claims under the ADA 23 and Rehabilitation Act because R.N. failed to exhaust administrative remedies available to her 24 under the IDEA by seeking an impartial due process hearing, with the opportunity to appeal an 25 unfavorable ruling. District MTD at 16 (citing 20 U.S.C. § 1415(f)–(g) (describing parental 26 rights to request hearing and appeal ruling)). In opposition, plaintiffs insist the exhaustion 27 requirement does not apply to their claims because they seek damages unavailable for IDEA 28 1 claims for disability discrimination, as opposed to administrative remedies such as “a change in 2 school placement, or additional hours of occupation or speech therapy” to redress a denial of a 3 free and appropriate public education (FAPE). District Opp’n at 14. 4 The IDEA does not “restrict or limit the right[s]” to seek remedies under the 5 Constitution, ADA, or Rehabilitation Act, “except that before the filing of a civil action under 6 such laws seeking relief that is also available under this subchapter, the procedures under 7 subsections (f) and (g) shall be exhausted to the same extent as would be required had the action 8 been brought under this subchapter.” 20 U.S.C. § 1415(1). Whether a plaintiff seeks relief also 9 available under the IDEA and therefore must meet “§ 1415(1)’s exhaustion rule hinges on 10 whether a lawsuit seeks relief for the denial of a free appropriate public education.” Fry v. 11 Napoleon Cmty. Sch., 137 S. Ct. 743, 754 (2017). For example, when a denial of FAPE also 12 violates the Rehabilitation Act, “that plaintiff must first submit her case to an IDEA hearing 13 officer.” Id. To determine when a plaintiff seeks relief for the denial of FAPE, courts must look 14 “to the ‘substance’ of, rather than the labels used in, the plaintiff’s complaint. . . or, in legal speak, 15 the gravamen—of the plaintiff’s complaint.” Id. at 755 (citations omitted). In this inquiry, courts 16 must answer the following questions: “[f]irst, could the plaintiff have brought essentially the 17 same claim if the alleged conduct had occurred at a public facility that was not a school—say, a 18 public theater or library? And second, could an adult at the school—say, an employee or visitor— 19 have pressed essentially the same grievance?” Id. at 756 (articulating “Fry test”) (emphasis in 20 original). 21 Here, plaintiffs correctly state the exhaustion requirement does not apply. In the 22 operative complaint, they seek damages for alleged discrimination on the basis of R.N.’s 23 disability, rather than an alleged denial of R.N.’s right to FAPE. FAC ¶¶ 74–97. Plaintiffs come 24 closest to mentioning a denial of FAPE when they allege defendants 25 removed Plaintiff from the regular school environment solely by reason of her disability yet failed to provide her with a level of 26 services ‘comparable’ to the level of services provided to individuals 27 who are not disabled because the paraeducator they placed her with subjected her to abuse. 28 1 Id. ¶ 90; see id. ¶ 80 (“TUSD and SCOE excluded Plaintiff R.N. from participation in and denied 2 her the benefits of the services, programs or activities [] provided, and she was entitled to receive, 3 by placing her in an environment where she was subjected to physical and psychological abuse by 4 her paraeducator.”). Plaintiffs use these allegations to support their claim that defendants 5 “excluded [R.N.] from participation in and denied [her] the benefits of the state program by 6 reason of her disability.” Id. Plaintiffs also seek monetary damages, “which are not available 7 under the IDEA.” E.H. v. Brentwood Union Sch. Dist., No. C13-3243 TEH, 2013 WL 5978008, 8 at *5 (N.D. Cal. Nov. 4, 2013) (citing Blanchard v. Morton Sch. Dist., 509 F.3d 934, 936 (9th Cir. 9 2007)). Moreover, plaintiffs have not made “an initial decision to pursue the administrative 10 process and a later shift to judicial proceedings,” which indicates they are not “making ‘strategic 11 calculations about how to maximize the prospects of such a remedy.’” Paul G. v. Monterey 12 Unified Sch. Dist., 933 F.3d 1096, 1101 (9th Cir. 2019) (quoting Fry, 137 S. Ct. at 757). In fact, 13 “[i]t is improbable” plaintiffs can obtain “adequate relief” through the IDEA administrative 14 process because the “hearing officer lacks the authority to grant the relief sought.” Paul G., 15 933 F.3d at 1101 (quoting Hoeft v. Tucscon Unified Sch. Dist., 967 F.2d 1298, 1303–04 (9th Cir. 16 1992)). 17 Plaintiffs’ claims also meet the Fry test for determining whether an ADA claim is 18 properly construed as an IDEA claim. First, plaintiffs could have brought essentially the same 19 claim if the alleged conduct occurred at another public facility, such as a library or pool and not a 20 school. Second, an adult, such as another employee, could have brought a similar ADA claim 21 based on the nature of Ms. Gumapas’ alleged abuse if the adult had been subjected to it. This is 22 because plaintiffs’ claims are not “fundamentally educational”; they do not request “access to a 23 particular kind of school as required by” an IEP. Paul G., 933 F.3d at 1101. Instead, the claim is 24 one of “equality of access to public facilities” because R.N.’s disability allegedly led the District 25 defendants to subject her to an abusive environment. Paul G., 933 F.3d at 1101 (quoting Fry, 26 137 S. Ct. at 756). Other courts in this district have found the gravamen of the complaint does 27 not involve a denial of FAPE in similar circumstances. P.H. v. Tehachapi Unified Sch. Dist., No. 28 1:17-CV-00257-DAD-JLT, 2017 WL 3085020, at *4 (E.D. Cal. June 9, 2017) (finding plaintiff’s 1 claims do not require exhaustion of IDEA remedies when “the complaint alleges that defendants 2 isolated P.H. from other school children during the school day, resulting in the denial of school 3 programs and services, and physically and psychologically abused her because of her 4 disability.”). 5 Plaintiffs’ ADA claim is not one for a denial of FAPE and they need not have 6 exhausted administrative remedies under the IDEA. The court next moves to the merits of 7 plaintiffs’ claims under the ADA and Rehabilitation Act. 8 b) ADA and Rehabilitation Act Claims 9 District defendants argue plaintiffs have not pled factual allegations as necessary 10 to show they exhibited “deliberate indifference” to the intentional discrimination of R.N. because 11 of her disability. District MTD at 15. Specifically, they say plaintiffs failed to plead any facts to 12 demonstrate District defendants “knew that GUMAPAS was engaging in alleged misconduct 13 prior to November 14, 2018.” Id. Plaintiffs counter they sufficiently pled “knowledge of prior, 14 known, and ongoing abuse,” pointing to the complaint, FAC ¶¶ 29, 30, 39, 81, 82, and say the 15 seriousness of the events of November 14 allow the court to infer prior instances of such abuse, 16 id., ¶¶ 26, 36. 17 Title II of the ADA provides: “No qualified individual with a disability shall, by 18 reason of such disability, be excluded from participation in or be denied the benefits of the 19 services, programs, or activities of a public entity, or be subjected to discrimination by any such 20 entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act provides: “No otherwise 21 qualified individual with a disability . . . shall, solely by reason of her or his disability, be 22 excluded from the participation in, denied the benefits of, or be subjected to discrimination under 23 any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. Because of 24 their similarity, the court treats the two statutory schemes as one and evaluates them under a 25 single framework in the analysis below. Zukle v. Regents of University of California, 166 F.3d 26 1041, 1045 n.11 (9th Cir. 1999). Under the dual ADA and Rehabilitation Act analysis, a plaintiff 27 must show: “(1) she is a qualified individual with a disability; (2) she was excluded from 28 participation in or otherwise discriminated against with regard to [. . .]services, programs, or 1 activities, [provided by a public entity or entity receiving federal financial assistance, 2 respectively] and (3) such exclusion or discrimination was by reason of her disability.” Lovell v. 3 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). 4 Plaintiffs have not sufficiently pled facts to plausibly state a claim for relief under 5 the “deliberate indifference” standard of the ADA and Rehabilitation Act, which requires “a 6 culpable mental state” in which the defendant “must ‘recognize [. . .] unreasonable risk and 7 actually intend [. . .] to expose the plaintiff to such risks without regard to the consequences to the 8 plaintiff.’” Patel v. Kent Sch. Dist., 648 F. 3d 965, 974–76 (9th Cir. 2011) (internal citation 9 omitted). In their complaint, plaintiffs merely offer conclusory allegations of District defendants’ 10 awareness of abuse prior to November 14. See FAC ¶ 82 (“Plaintiff further alleges that MEARS 11 [. . .], knew of and were deliberately indifferent to the abuse committed by GUMAPAS.”). And 12 plaintiffs’ allegations regarding District defendants’ actions following the abuse on November 13 14—they made a police report, called Mr. and Mrs. Neff, and fired Ms. Gumapas, FAC ¶¶ 28, 35, 14 could support an inference the District defendants were appropriately responsive to any instance 15 of disability discrimination. Taking the sparse allegations in the operative complaint as true, 16 plaintiffs have not pled that TUSD and SCOE acted with the “culpable mental state” necessary to 17 plausibly state a claim for relief under the “deliberate indifference” standard. 18 Though the operative complaint does not include these necessary facts, the 19 transcript from the body camera footage in the police report plaintiffs provided to the court does 20 appear to provide additional bases for pleading the District defendants recognized the risk of 21 Ms. Gumapas’ behavior and still exposed R.N. to that risk. This new information supports the 22 court’s granting plaintiffs leave to file an amended complaint, as it does below. 23 The court GRANTS District defendants’ motion to dismiss plaintiffs’ ADA and 24 Rehabilitation Act claims. As with plaintiffs’ Section 1983 claims, the court allows plaintiffs 25 leave to file an amended complaint that references and relies on the transcript from the body 26 camera footage in the police report. 27 ///// 28 ///// 1 3. Mr. and Mrs. Neff’s Standing to Pursue Negligence (Fourth Cause of Action), Negligent Hiring (Fifth Cause of Action), IIED (Eleventh Cause 2 of Action), and NIED (Twelfth Cause of Action) Claims: TUSD, SCOE, 3 and Mr. Mears 4 District defendants assert Mr. and Mrs. Neff lack standing to bring their 5 negligence, IIED and NIED claims. District MTD at 18. The court addresses here whether 6 Mr. and Mrs. Neff have standing to pursue these claims separately. 7 a) Negligence (Fourth Cause of Action), Negligent Hiring (Fifth Cause of Action), and NIED (Twelfth Cause of Action) Claims 8 9 With regard to Mr. and Mrs. Neff’s negligence claims, District defendants argue 10 no case law establishes “a duty of care based on a ‘special relationship’ between the parents of a 11 student and the defendants,” so as to support standing. Id. Plaintiffs disagree and point to 12 precedent they say does control here. District Opp’n at 15 (citing Phyllis P. v. Superior Court, 13 183 Cal. App. 3d 1193, 1196 (1986) (holding a “special relationship” between parents and school 14 officials exists when school officials failed to inform parents following “the first series of sexual 15 assaults” upon their minor child). 16 With claims of negligence, a plaintiff must prove “[t]he traditional elements of 17 duty, breach of duty, causation and damages.” Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 18 (1992). “Whether a defendant owes a duty of care is a question of law.” Id. Direct victim cases 19 are those “in which damages for serious emotional distress are sought as a result of a breach of [a] 20 duty owed to the plaintiff” arising from a preexisting relationship between the plaintiff and 21 defendant. Id. at 1073. As a matter of law, a school owes a duty of care not only to its students, 22 but also to parents because the school stands “in loco parentis” and the students’ care is 23 “entrusted to” them. Phyllis P., 183 Cal. App. 3d at 1196. 24 In the amended complaint, plaintiffs allege they have standing to pursue these 25 claims because defendants owed them the following duties of care: (1) “to adequately supervise 26 R.N. and to place her in an appropriate educational environment that was safe and free from 27 danger and abuse”; (2) “to notify [R.N.’s parents] of the assaults perpetrated upon their child, 28 1 pursuant to their special relationship”; and (3) “to anticipate the wrongful acts of a third person, 2 as such acts were reasonably foreseeable.” FAC ¶¶ 99–101. The court agrees; each of these 3 duties reveal District defendants have a “special relationship” with Mr. and Mrs. Neff. As 4 alleged, District defendants failed to meet a legal obligation to report abuse to the parent of a 5 child and to protect the child from danger, a failure which they “should have foreseen would 6 cause” emotional distress to the child’s parents. Phyliss P., 183 Cal.App.3d at 1197. Therefore, 7 plaintiffs have standing to pursue these claims against District defendants. 8 b) IIED (Eleventh Cause of Action) 9 With regard to plaintiffs’ IIED claim, District defendants maintain Mr. and Mrs. 10 Neff are neither “bystanders” nor “direct victims” of the alleged events, and so also do not have 11 standing to pursue this claim. District MTD at 18–19. In their opposition, plaintiffs assert Mr. 12 and Mrs. Neff were “direct victims” because the District defendants “act[s] in loco parentis to the 13 student while at school.” District Opp’n at 16 (citing C.A. v. William S. Hart Union High School 14 Dist., 53 Cal. 4th 861 (2012)). IIED cases require outrageous conduct on the part of the 15 defendant, “[b]ecause the outrageous conduct must be directed toward the plaintiff, the plaintiff 16 must generally be present at the time of the conduct, and the defendant must know that the 17 plaintiff is present.” Christensen v. Super. Ct., 54 Cal. 3d 868, 905-06 (1991). However, courts 18 within the Ninth Circuit have looked to Phyllis P., 183 Cal. App. 3d at 1196, and found “a school 19 owes a duty of care not only to a student, but also to the student’s parent,” which supports a 20 “position that a parent can state an IIED claim based on alleged harm directly suffered by the 21 parent as a result of a defendant’s action or inaction regarding their child.” Zuccaro v. Martinez 22 Unified Sch. Dist., No. 16-CV-02709-EDL, 2016 WL 10807692, at *9 (N.D. Cal. Sept. 27, 2016). 23 The court finds District defendants’ mandatory reporting duty creates a legal relationship between 24 the school and the Neffs, such that Mr. and Mrs. Neff do have standing as “direct victims” to 25 pursue any alleged IIED claims. 26 c) Conclusion 27 The court finds Mr. and Mrs. Neff have standing to pursue their negligence and 28 IIED claims. 1 4. Unruh Civil Rights Act (Seventh Cause of Action): TUSD and SCOE 2 With respect to plaintiffs’ Unruh Civil Rights Act claims against TUSD and 3 SCOE, District defendants argue a public school is not a “business establishment” that falls under 4 the ambit of the law. District MTD at 19–20 (citing Zuccaro,2016 WL 10807692.; Doe v. 5 Lutheran High Sch. Ass’n, 170 Cal. App. 4th 828, 839 (2009) (“In our society, however, private 6 elementary and secondary schools are overwhelming not-for-profit enterprises. . . And public 7 schools, of course, are run on a nonprofit basis by the government.”) (additional citations 8 omitted)). In opposition, plaintiffs highlight cases classifying public schools as a “business 9 establishment.” District Opp’n at 17 (citing Walsh v. Tehachapi Unified Sch. Dist., 10 827 F. Supp. 2d 1107, 1123 (E.D. Cal. 2011) (additional citations omitted)). Even if the court 11 finds a public school is a “business establishment,” District defendants assert plaintiffs still have 12 failed to demonstrate the intentional discrimination necessary for Unruh Act claims. District 13 MTD at 21. Plaintiffs argue they have pled sufficient facts to show intentional discrimination. 14 District Opp’n at 18. 15 The Unruh Act provides, “[a]ll persons within the jurisdiction of this state are free 16 and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, 17 medical condition, genetic information, marital status, sexual orientation, citizenship, primary 18 language, or immigration status are entitled to the full and equal accommodations, advantages, 19 facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. 20 Civ. Code § 51(b); see also Cohen v. City of Culver City, 754 F.3d 690, 701 (9th Cir. 2014) 21 (explaining Unruh Act disability discrimination claims are derivative of ADA disability 22 discrimination claims); Munson v. Del Taco, Inc., 46 Cal. 4th 661, 669 (2009) (same). 23 a) Business Establishment 24 As a threshold matter, the court finds R.N.’s school is a “business establishment” 25 under the Unruh Act, while recognizing there is a split among district courts within the Ninth 26 Circuit on the question, and the California Supreme Court has not resolved it. In Zuccaro v. 27 Martinez Unified School District, the court found a public school that provided education to a 28 child with disabilities was “acting as a public servant rather than a commercial enterprise and is 1 therefore not subject to the Unruh Act.” Zuccaro, 2016 WL 10807692 at *13. As plaintiffs note, 2 the court in Zuccaro cited a state court case, Doe, which held a private religious school is not a 3 “business establishment” for purposes of the Unruh Act. Zuccaro, 2016 WL 10807692, at *11– 4 12 (quoting Doe v. California Lutheran High Sch. Ass’n, 170 Cal. App. 4th 828, 838–41). The 5 court in Zuccaro also reasoned from other California cases, one holding a city providing 6 sidewalks and curbs to its citizens is not a business establishment and another reaching the same 7 conclusion with respect to a county animal shelter, in concluding the public school was not a 8 business establishment. Zuccaro, 2016 WL 10807692, at *12–13 (citing Carter v. City of L.A., 9 224 Cal. App. 4th 808, 825 (2014) (“We think a public entity providing sidewalks and curbs to its 10 citizens does so as a public servant, not a commercial enterprise.”) (citations omitted); Gregory v. 11 Cnty. of L.A., 2014 WL 6610198 at *4–5 (Cal. App. 2d Dist. Nov. 21, 2014) (“County animal 12 shelters are not functionally equivalent to a commercial enterprise; they are local, governmental 13 entities that serve a social purpose and are largely funded by the county.”)). 14 The analysis in Zuccaro does not consider that a public school is “readily 15 distinguishable” from city sidewalks or a county animal shelter, which do not have the same 16 “quintessential character of providing public accommodations and services to students” as do 17 public schools. Whooley v. Tamalpais Union High School Dist., 399 F.Supp.3d 986, 998 (N.D. 18 Cal. Jul. 30, 2019) (quoting Yates v. East Side Union High School Dist., No. 18-CV-02966-JD, 19 2019 WL 721313 at *2 (N.D. Cal. Feb. 2019)); see also Walsh v. Tehachapi Unified School Dist., 20 827 F. Supp. 2d 1107, 1123 (E.D. Cal. Oct. 28, 2011) (holding a public school “constitutes a 21 ‘business establishment’” because the California Supreme Court “has determined that the 22 Legislature intended the term ‘business establishment’ to be interpreted ‘in the broadest sense 23 reasonably possible.’”) (quoting Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal.3d 72, 78 24 (1985)); D.K. ex rel. G.M. v. Solano Cty. Office of Educ., No. 2:08CV00534 MCE DAD, 25 2008 WL 5114965, at *6 (E.D. Cal. Dec. 2, 2008) (“SCOE is a business establishment within the 26 meaning of Cal. Civ. Code § 51”). Additionally, finding that a public school qualifies as a 27 “business establishment” under the Unruh Act aligns the Unruh Act’s jurisdiction with that of the 28 ADA, which also applies to public schools. Yates, 2019 WL 721313, at *3 (citing K.M. ex rel. 1 Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1094 n.1 (9th Cir. 2013) (“[A] violation of the 2 ADA is, per se, a violation of the Unruh Act.”) (additional citations omitted)); Sullivan v. Vallejo 3 City Unified School Dist., 731 F. Supp. 947, 952–53 (E.D. Cal. Mar. 1, 1990) (“In like fashion, 4 since public schools were among those organizations listed in the original version of the Unruh 5 Act, it must follow that for purposes of the Act they are business establishments as well.”). Here, 6 the court reaches the same conclusion and finds TUSD and SCOE constitute “business 7 establishments” under the Unruh Act. 8 b) Intentional Discrimination 9 Because the Unruh Act claims derive from plaintiffs’ ADA disability 10 discrimination claims, for the same reasons explained above in analyzing plaintiffs’ ADA claim, 11 plaintiffs have not adequately pled District defendants exhibited deliberate indifference to 12 intentional disability discrimination against R.N. The court GRANTS District defendants’ 13 motion to dismiss plaintiffs’ Unruh Act claims, with leave to amend. 14 5. Cal. Educ. Code § 220 (Eighth Cause of Action): TUSD and SCOE 15 District defendants assert the court must dismiss plaintiffs’ claims under California 16 Education Code section 220, both for failure to exhaust administrative remedies and because 17 plaintiffs have not alleged facts necessary to demonstrate a practice of severe and pervasive 18 disability discrimination. District MTD at 21–22.1 In their opposition, plaintiffs again argue their 19 allegations “on information and belief that TUSD and SCOE had actual knowledge that Gumapas 20 physically abused disabled students” demonstrate a plausible claim for relief. District Opp’n at 21 18–19. 22 Section 220 of the California Education Code prohibits discrimination based on 23 protected characteristics, including disability, in any “program or activity conducted by an 24 1 District defendants request the court take judicial notice of both the SCOE and TUSD complaint 25 procedures. See Req. for Jud. Not., ECF No. 12-3; Ex. A (“SCOE procedures”); id., Ex. B (“TUSD procedures”). “The court may judicially notice a fact that is not subject to reasonable 26 dispute because it: [. . .] (2) can be accurately and readily determined from sources whose 27 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). The court GRANTS District defendants’ request, finding the documents existence as the documents represented 28 “cannot reasonably be questioned.” 1 educational institution that receives, or benefits from, state financial assistance or enrolls pupils 2 who receive state student financial aid.” See Cal. Educ. Code § 220. To succeed on a section 220 3 claim, a plaintiff must show she suffered severe, pervasive and offensive discrimination or 4 harassment on the basis of disability, which effectively deprived her of equal access to 5 educational benefits and opportunities. Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 6 567, 579 (2008) (citation omitted). She must also show the District acted with deliberate 7 indifference in the face of “actual knowledge” of such discrimination or harassment. Id. 8 The court finds plaintiffs have not exhausted their administrative remedies. 9 Plaintiffs filed a complaint with SCOE, the local education agency, on May 30, 2019. FAC 10 ¶¶ 20–22. Although plaintiffs filed the complaint a bit later than required, they presented SCOE 11 with “Applications for Permission to Present Late Claims,” which SCOE granted on June 6, 2019. 12 FAC ¶ 20; see also Cal. Code Regs., tit. 5 § 4630(b) (“An investigation of alleged unlawful 13 discrimination, harassment, intimidation or bullying shall be initiated by filing a complaint not 14 later than six months from the date the alleged discrimination, harassment, intimidation or 15 bullying occurred.”). SCOE had the authority to extend the time for filing, “upon written 16 request” from plaintiffs “setting forth the reasons for the extension.” Cal. Code Regs., tit. 5 17 § 4630(b). As plaintiffs allege, SCOE denied plaintiffs’ complaint on June 10, 2019. FAC ¶ 21. 18 Based on the record before the court, the court finds plaintiffs did not exhaust their administrative 19 remedies upon receiving this denial, because they failed to file an appeal to the State Department 20 of Education as required. See Cal. Educ. Code § 262.3(d) (“Notwithstanding any other provision 21 of law, a person who alleges he or she is a victim of discrimination may not seek civil remedies 22 pursuant to this section until at least 60 days have elapsed from the filing of an appeal to the State 23 Department of Education.”). 24 Therefore, the court GRANTS District defendants’ motion to dismiss plaintiffs’ 25 claims under California Education Code section 220. Although it would appear plaintiff cannot 26 amend to cure this claim, the court does not rule that possibility out if plaintiffs can amend while 27 fully satisfying Federal Rule of Civil Procedure 11. 28 ///// 1 6. Cal. Penal Code § 11166 (Ninth Cause of Action) 2 District defendants maintain plaintiffs have failed to plausibly state a claim for 3 relief under California Penal Code section 11166, a mandatory reporting statute, which 4 defendants claim does not create a private right of action and which does not protect parents like 5 Mr. and Mrs. Neff. District MTD at 22–23 (citing Randi W. v. Muroc Joint Unified School Dist., 6 14 Cal. 4th 1066, 1087 (1997)). They also argue plaintiffs have not shown “the alleged failure to 7 report was the proximate cause of her injury (i.e., that as a result of the failure to report, R.N. was 8 subjected to further abuses.).” District MTD at 23. Plaintiffs disagree and argue a private right of 9 action for failure to report is provided in California Government Code § 815.6. District Opp’n at 10 19–20. 11 The California Child Abuse and Neglect Reporting Act provides, “a mandated 12 reporter shall make a report to an agency [. . .] whenever the mandated reporter, in the mandated 13 reporter’s professional capacity or within the scope of the mandated reporter’s employment, has 14 knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has 15 been the victim of child abuse or neglect.” Cal. Pen. Code § 11166(a). The Government Code 16 section to which plaintiffs point provides, “Where a public entity is under a mandatory duty 17 imposed by an enactment that is designed to protect against the risk of a particular kind of injury, 18 the public entity is liable for an injury of that kind proximately caused by its failure to discharge 19 the duty unless the public entity establishes that it exercised reasonable diligence to discharge the 20 duty.” Cal. Gov’t Code § 815.6. 21 Despite the lack of case law, the relevant statutes provide a private right of action 22 for a failure to report child abuse. While California Government Code section 815.6 does not 23 include an express cross-reference to California Penal Code section 11166, section 815.6 applies 24 to a teacher’s reporting obligations under section 11166. In addition, the case defendants cite, 25 Randi W, is distinguishable from the instant case. There, a minor child who had been molested 26 by a school vice principal brought a number of claims, including negligence per se for failing to 27 report the abuse, against “other school districts and their employees, alleging that defendants had 28 written letters recommending the vice principal without divulging his history of sexual 1 molestations.” Randi W., 14 Cal. 4th at 1066. The court found the other school districts were not 2 “child care custodians” under the Reporting Act and they did not have knowledge of or observe 3 or reasonably suspect the vice principal would abuse plaintiff, who attended a different school. 4 Id. at 1087. As the court reasoned, “the act was intended to protect only those children in 5 custodial care of the person charged with reporting the abuse, and not all children who may at 6 some future time be abused by the same offender.” Id. 7 Plaintiffs, however, have not alleged sufficient facts to demonstrate the District 8 defendants did not “exercise[. . .] reasonable diligence to discharge the duty,” as required to 9 proceed. As noted above, the only specific instance of abuse the plaintiffs allege prompted the 10 District defendants to make an immediate police report and fire Ms. Gumapas, which suggests the 11 District defendants exercised some reasonable care in observing their mandatory reporting duty 12 upon learning of Ms. Gumapas’ behavior. See FAC ¶ 35. While plaintiffs highlight other 13 allegations regarding the District defendants’ failure to report numerous other instances of alleged 14 abuse. District Opp’n at 20 (citing FAC ¶¶ 31, 33, 34, 38, 45, 59), their descriptions of 15 unreported abuse prior to November 14, 2018 are conclusory do not plausibly state a claim for 16 relief under § 11166. 17 The court GRANTS District defendants’ motion to dismiss plaintiffs’ claim 18 defendants failed to report child abuse, with leave to amend. 19 7. Bane Act (Tenth Cause of Action): Mr. Mears 20 In their motion to dismiss, the District defendants argue plaintiffs have failed to 21 state a claim of relief against Mr. Mears under California’s Bane Act because they do not provide 22 any “factual allegations demonstrating that TUSD, SCOE, or MEARS were personally involved 23 in any threatening, coercive, violent or intimidating conduct.” District MTD at 23. In their 24 opposition, plaintiffs argue they have pled sufficient facts to show District defendants deprived 25 R.N. of her state constitutional right to a school-based education “by way of abuse and 26 acquiescence.” District Opp’n at 20 (citing FAC ¶¶ 164–165). 27 The Bane Act prohibits intentionally interfering with a person’s state civil rights 28 by way of threats, intimidation, or coercion. Jones v. Kmart Corp., 17 Cal. 4th 329, 332 (1998). 1 The essence of such a claim is that “the defendant, by the specified improper means . . . tried to or 2 did prevent the plaintiff from doing something he or she had the right to do under the law or force 3 the plaintiff to do something he or she was not required to do.” Austin B. v. Escondido Union 4 Sch. Dist., 149 Cal. App. 4th 860, 883 (2007). The elements of a Bane Act excessive force claim 5 are essentially identical to those of a § 1983 excessive force claim, Chaudhry v. City of Los 6 Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014), though a Bane Act claim additionally requires a 7 showing of “a specific intent to deprive that person of those [constitutional] rights,” which can be 8 proven by “reckless disregard” for those same rights. Reese v. Cty. of Sacramento, 888 F.3d 9 1030, 1045 (9th Cir. 2018) (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)). 10 Given the similarities between excessive force claims under § 1983 and under the 11 Bane Act, the court need not analyze District defendants’ arguments about plaintiffs’ Bane Act 12 claims. For the same reasons provided above regarding the § 1983 claims, and given the 13 additional element of intent plaintiffs must plead to state a Bane Act claim, which plaintiffs have 14 not adequately pled here, the court GRANTS District defendants’ motion to dismiss plaintiffs’ 15 Bane Act claim. The court grants plaintiffs leave to amend. 16 8. Plaintiff’s IIED (Eleventh Cause of Action) and NIED (Twelfth Cause of Action) Claims 17 a) IIED (Eleventh Cause of Action) 18 19 District defendants assert plaintiff R.N. fails to state an IIED claim against 20 Mr. Mears because R.N. has not alleged “specific facts” regarding behavior that is “so outrageous 21 as to shock the conscience” or that Mr. Mears engaged in conduct “with an intent to cause [R.N.] 22 severe emotional distress.” District MTD at 24. In their opposition, plaintiffs refer to their 23 allegations that Mr. Mears knew of abuse throughout the 2018-2019 school year, arguing they 24 plead the requisite reckless disregard for the probability of causing R.N.’s emotional distress. 25 District Opp’n at 21 (citing FAC ¶¶ 26–30, 177). 26 The elements of an IIED claim are (1) extreme and outrageous conduct by the 27 defendant with the intent to cause, or reckless disregard as to the probability of causing, 28 ///// 1 emotional distress; (2) plaintiff’s severe or extreme emotional distress; and (3) causation. 2 Christenson v. Superior Court, 54 Cal. 3d 868, 903 (1991). 3 As currently pled, plaintiffs’ complaint does little more than recite the elements of 4 an IIED claim against Mr. Mears. Plaintiffs allude to previous instances of ongoing abuse of 5 which Mr. Mears was aware, FAC ¶¶ 29–30, but provide no specific facts which, if proven true, 6 would demonstrate intent to cause or reckless disregard for inflicting emotional distress on 7 plaintiff R.N or Mr. and Mrs. Neff. As District defendants point out, the only specific instance of 8 alleged abuse resulted in a police report, FAC ¶ 28, undermining the suggestion an inference can 9 be drawn of Mr. Mears’ intent to cause or reckless disregard for the infliction of emotional 10 distress on plaintiffs. 11 The motion to dismiss this claim too is GRANTED, but with leave to amend in 12 light of the new information plaintiffs have now obtained. 13 b) NIED (Twelfth Cause of Action) 14 With respect to plaintiffs’ NIED claim, District defendants assert such a claim “is 15 not an independent tort in California” and therefore the court must dismiss R.N.’s claim against 16 District defendants. District MTD at 25. Plaintiffs do not respond directly to this argument in 17 their opposition, but instead state they will fall back on pursuing their NIED and negligence 18 claims separately, in the alternative. District Opp’n at 15 n. 1. 19 California law on this issue is clear. “We have repeatedly recognized that ‘[t]he 20 negligent causing of emotional distress is not an independent tort, but the tort of negligence.’” 21 Burgess, 2 Cal. 4th at 1072 (emphases in original) (citations omitted). As a result, for claims 22 involving emotional distress a plaintiff must plead negligence by alleging the “traditional 23 elements of duty, breach of duty, causations and damages”; the issue of defendants’ duty is a 24 “question of law.” Id. 25 Because NIED is not an independent tort, the court GRANTS District defendants’ 26 motion to dismiss plaintiffs’ NIED claims, without leave to amend. Even though the law 27 precludes plaintiffs from pleading NIED as an independent tort in an amended complaint, under 28 Burgess plaintiffs may use the underlying factual allegations to support their negligence claim. 1 c) Conclusion 2 The court GRANTS the District defendants’ motion to dismiss plaintiffs’ IIED and 3 negligence claims, with leave to amend. The court GRANTS district defendants’ motion to 4 dismiss plaintiff R.N.’s NIED claim, with prejudice. 5 9. Punitive Damages: Mr. Mears 6 With respect to plaintiffs’ prayer for punitive damages against Mr. Mears, District 7 defendants assert the following: (1) Mr. Mears is immune from punitive damages because the 8 alleged conduct occurred in his official capacity as a public-school teacher; and (2) plaintiffs have 9 failed to state facts supporting a demand for punitive damages. District MTD at 25–26. 10 Plaintiffs, in their opposition, point out District defendants have pointed to no law that shows 11 immunity for public school officials in cases involving punitive damages. Plaintiffs also stand on 12 their repeated allegations that Mr. Mears’ actions were “undertaken with an improper an [sic] evil 13 motive amounting to malice” as sufficient to support their prayer for punitive damages. District 14 Opp’n at 22 (citing FAC ¶¶ 108, 129, 171, 183, 190). 15 Punitive damages require a plaintiff show by “clear and convincing evidence” the 16 defendant is guilty of oppression, fraud or malice. Cal. Civ. Code § 3294(a). Malice is “conduct 17 which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is 18 carried on by the defendant with a willful and conscious disregard of the rights or safety of 19 others.” Cal. Civ. Code § 3294(c)(1). 20 Even taking plaintiffs’ allegations as true, they are insufficient to support a request 21 for punitive damages. Each of the paragraphs referencing Mr. Mears’ taking of actions 22 “maliciously, fraudulently and oppressively” fails to include any allegations of specific acts. See 23 FAC ¶ 108. 24 The court GRANTS District defendants’ motion to dismiss plaintiffs’ request for 25 punitive damages against Mr. Mears, with leave to amend. 26 B. Ms. Gumapas’ Motion to Dismiss 27 In her motion to dismiss, defendant Gumapas asserts the following: (1) Mr. and 28 Mrs. Neff fail to plead a viable claim of negligence; (2) Mr. and Mrs. Neff fail to state a claim for 1 IIED; (3) Mr. and Mrs. Neff lack standing and fail to state a claim for NIED; (4) plaintiffs fail to 2 state a claim for relief under California Penal Code section 11166(a) because Ms. Gumapas had 3 no duty to self-report; and (5) plaintiffs do not state sufficient facts to allege a claim for punitive 4 damages. Gumapas MTD at 2. The court addresses her arguments below. 5 1. Negligence (Fourth Cause of Action), IIED (Eleventh Cause of Action), and NIED (Twelfth Causes of Action) 6 7 Similar to District defendants, Ms. Gumapas argues Mr. and Mrs. Neff have failed 8 to state a claim for relief to proceed on their negligence, IIED and NIED causes of action. 9 Gumapas MTD at 8–13. For the reasons set forth above, the court does not consider the 10 negligence and NIED claims separately. The court finds Mr. and Mrs. Neff do have standing to 11 pursue these claims against Ms. Gumapas, but for the same reasons stated above, the facts alleged 12 in plaintiffs’ complaint lack the specificity required at this stage. See FAC ¶¶ 99-103, 174-176; 13 Phyllis P., 183 Cal. App. 3d at 1196 (defendants have a duty to notify the student’s parent after 14 “learning of the first series of” assaults). The court will grant plaintiffs leave to file an amended 15 complaint, given that additional details now available to them from the police report appear to 16 provide a basis for amendment. See generally Rose Decl. 17 The court GRANTS Ms. Gumapas’ motion to dismiss Mr. and Mrs. Neff’s 18 negligence and IIED claims, with leave to amend. The court also GRANTS Ms. Gumapas’ 19 motion to dismiss Mr. and Mrs. Neff’s independent NIED claim against her, without leave to 20 amend. 21 2. California Penal Code § 11166 (Ninth Cause of Action) 22 As do District defendants, Ms. Gumapas argues plaintiffs’ claims she violated her 23 mandatory reporting duty must fail. Gumapas MTD at 13–14. Ms. Gumapas reasons that 24 because the only specific instance of alleged abuse involved her own actions, California’s 25 mandatory reporting duty does not apply because otherwise she would be forced impermissibly to 26 forfeit her Fifth Amendment right against self-incrimination. Id. (citing Kassey S. v. City of 27 Turlock, 212 Cal. App. 4th 1276, 1280 (2013)). In their opposition, plaintiffs argue Ms. Gumapas 28 1 allegedly witnessed other instances of abuse by other school employees, which supports their 2 pleading she failed her duty as a mandatory reporter. Gumapas Opp’n at 7 (citing FAC ¶¶ 37, 3 44). 4 Plaintiffs’ allegations of alleged abuse by other school employees here provide 5 even less basis for relief than plaintiffs’ mandatory reporting claims against District defendants, 6 discussed above. Plaintiffs make only one non-specific, somewhat conclusory assertion that Ms. 7 Gumapas witnessed abuse of R.N. by other teachers, which does not plausibly state a claim for 8 relief. See FAC ¶¶ 37, 44. The additional information from the police report, however, suggests 9 some greater basis for plaintiffs pursuing a claim against Ms. Gumapas for failing to report abuse 10 of R.N. by other staff. The court grants plaintiffs leave to file an amended complaint including 11 this cause of action, as against Ms. Gumapas. 12 As a result, the court GRANTS Ms. Gumapas’ motion to dismiss plaintiffs’ 13 mandatory reporting claims against her, with leave to amend. 14 3. Punitive Damages 15 Ms. Gumapas argues plaintiffs have failed to allege facts, which would 16 demonstrate she acted “maliciously, fraudulently and oppressively” so as to state a plausible 17 claim for punitive damages against her. Gumapas MTD at 16–17. In opposition, plaintiffs point 18 to the alleged abuse on November 14, 2018, when Ms. Gumapas allegedly kicked, yelled, 19 dragged, pushed and restrained plaintiff R.N. Gumapas Opp’n at 7 (citing FAC ¶ 26). Plaintiffs 20 further point to other aspects of their complaint, in which they allege Ms. Gumapas’ actions were 21 “both ongoing and intentional as a form of punishment or coercion.” Id. (citing FAC ¶¶ 25, 37, 22 108, 129, 171, 183, 190). 23 The factual allegations regarding the events on November 14, 2018 alone state a 24 plausible claim for punitive damages against Ms. Gumapas. If taken as true, her actions on that 25 date represent “despicable conduct which is carried on by the defendant with a willful and 26 conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). The 27 specificity with which plaintiffs describe Ms. Gumapas’ alleged actions allows an inference of 28 malice on the part of Ms. Gumapas. 1 The court DENIES Ms. Gumapas’ motion to dismiss plaintiffs’ claim for punitive 2 damages. 3 IV. CONCLUSION 4 For the foregoing reasons, the court orders as follows: 5 1) District Defendants’ Motion to Dismiss Plaintiffs’ first cause of action, as 6 alleged against Mr. Mears is GRANTED, with leave to amend. 7 2) District Defendants’ Motion to Dismiss Plaintiffs’ second and third causes of 8 action is GRANTED, with leave to amend. 9 3) District Defendants’ Motion to Dismiss Plaintiffs’ seventh cause of action is 10 GRANTED, with leave to amend. 11 4) District Defendants’ Motion to Dismiss Plaintiffs’ eighth cause of action is 12 GRANTED, with leave to amend. 13 5) District Defendants’ Motion to Dismiss Plaintiffs’ ninth cause of action is 14 GRANTED, with leave to amend. 15 6) District Defendants’ Motion to Dismiss Plaintiffs’ tenth cause of action is 16 GRANTED, with leave to amend. 17 7) District Defendants’ Motion to Dismiss Plaintiffs’ eleventh cause of action is 18 GRANTED, with leave to amend. 19 8) District Defendants’ Motion to Dismiss Plaintiffs’ twelfth cause of action is 20 GRANTED, without leave to amend. 21 9) District Defendants’ Motion to Dismiss Plaintiffs’ claim for punitive damages 22 against Mr. Mears is GRANTED, with leave to amend. 23 10) Ms. Gumapas’ Motion to Dismiss Mr. and Mrs. Neff’s fourth and eleventh 24 causes of action is GRANTED, with leave to amend. 25 11) Ms. Gumapas’ Motion to Dismiss Mr. and Mrs. Neff’s twelfth cause of action 26 is GRANTED, without leave to amend. 27 12) Ms. Gumapas’ Motion to Dismiss Plaintiffs’ ninth cause of action is 28 GRANTED, with leave to amend. 1 13) Ms. Gumapas’ Motion to Dismiss Plaintiffs’ tenth cause of action is 2 GRANTED, with leave to amend. 3 14) Ms. Gumapas’ Motion to Dismiss Plaintiffs’ claim for punitive damages 4 against her is DENIED. 5 15) District defendants’ request to take judicial notice is GRANTED. 6 Plaintiff shall have 21 days from the date of this order to file an amended 7 complaint. 8 This order resolves ECF Nos. 7, 11, 12, 12-3, 13 and 24. 9 IT IS SO ORDERED. 10 DATED: December 8, 2020. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28