1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUSTIN POSEY, et al., Case No. 23-cv-02626-JSC

8 Plaintiffs,

ORDER RE: DEFENDANTS’

9 v. MOTIONS TO DISMISS AND MOTION

TO STRIKE

10 SAN FRANCISCO UNIFIED SCHOOL DISTRICT, et al., Re: Dkt. Nos. 16, 24 11 Defendants.

12 13 Plaintiffs Justin Posey and Adriana Herrera-Posey (Parent Plaintiffs) sue Defendants for 14 claims arising from abuse suffered by their minor daughter, Student A, under Defendants’ 15 supervision. (Dkt. No. 9.)1 Defendants move to dismiss claims and strike immaterial statements 16 from Plaintiffs’ First Amended Complaint. (Dkt. Nos. 16, 24.) Having carefully considered the 17 briefing, and with the benefit of oral argument on November 30, 2023, the Court GRANTS IN 18 PART AND DENIES IN PART Defendants’ motions to dismiss and DENIES Defendants’ motion 19 to strike immaterial statements. Student A’s Title VI claim against the School District is plausibly 20 pled; all other claims are dismissed. 21 DISCUSSION 22 For Plaintiffs’ challenged claims to survive, the complaint’s factual allegations must raise a 23 plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–56 (2007). Though the 24 Court must accept the complaint’s factual allegations as true, conclusory assertions are insufficient 25 to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when 26 the plaintiff pleads enough factual content to justify the reasonable inference the defendant is 27 1 liable for the misconduct alleged. Id. 2 A. Count Five: Unruh Civil Rights Act 3 California’s Unruh Civil Rights Act entitles all persons “to the full and equal 4 accommodations, advantages, facilities, privileges, or services in all business establishments of 5 every kind whatsoever.” Cal. Civ. Code § 51(b). Plaintiffs fail to state a claim for violation of the 6 Unruh Civil Rights Act against any Defendant because schools are not “business establishments.” 7 Brennon B. v. Superior Ct., 13 Cal. 5th 662, 684 (2022), reh’g denied (Aug. 31, 2022); id. at 681 8 (“[T]he Unruh Civil Rights Act does not reach public school districts engaged in the provision of a 9 free and public education to students.”). Nor are individual school employees. Accordingly, 10 count five is DISMISSED without leave to amend. Yagman v. Garcetti, 852 F.3d 859, 863 (9th 11 Cir. 2017). 12 B. Count Six: Breach of Fiduciary Duty 13 “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a 14 fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the 15 breach.” Ash v. N. Am. Title Co., 223 Cal. App. 4th 1258, 1276 (2014) (cleaned up). Plaintiffs do 16 not cite, and the Court has not found, any authority holding a fiduciary relationship exists between 17 a school district and an individual student in California. See C.A. v. William S. Hart Union High 18 Sch. Dist., 117 Cal. Rptr. 3d 283, 292 (Ct. App. 2010), review granted and opinion superseded, 19 247 P.3d 547 (Cal. 2011), and rev’d on other grounds, 53 Cal. 4th 861, 270 P.3d 699 (2012). 20 Accordingly, count six is DISMISSED without leave to amend. Yagman, 852 F.3d at 863. 21 C. Count Three: Violation of Title VI 22 Plaintiffs’ third claim alleges the School District violated Title VI, 42 U.S.C. § 2000, et 23 seq. Title VI of the Civil Rights Act of 1964 provides: “No person in the United States shall, on 24 the ground of race, color, or national origin, be excluded from participation in, be denied the 25 benefits of, or be subjected to discrimination under any program or activity receiving Federal 26 financial assistance.” 42 U.S.C. § 2000(d). “[A] school district violates Title VI when (1) there is 27 a racially hostile environment; (2) the district had notice of the problem; and (3) it “failed to 1 Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998). A “racially hostile environment” is one in which 2 racial harassment is “severe, pervasive or persistent so as to interfere with or limit the ability of an 3 individual to participate in or benefit from the services, activities or privileges provided by the 4 recipient.” Id. A racially hostile environment can be caused by the conduct of peers. Id. 5 As a threshold matter, Parent Plaintiffs cannot bring a Title VI because Parent Plaintiffs are 6 not the intended beneficiaries of public schooling. See Smith v. California Bd. of Educ., No. CV 7 13-5395 FMO PJW, 2014 WL 5846990, at *4 (C.D. Cal. Nov. 10, 2014). At oral argument, 8 Plaintiffs conceded they are not aware of any case—anywhere—holding parents of an affected 9 student can bring a Title VI claim. Accordingly, Parent Plaintiffs’ Title VI claim against 10 Defendant School District is DISMISSED without leave to amend. 11 Plaintiffs otherwise plausibly allege the School District violated Title VI as to Student A. 12 Plaintiffs allege Student B physically and verbally abused Student A at school based on her race 13 (Dkt. No. 9 ¶¶ 20, 39), the School District had notice of the problem (Id. ¶¶ 21, 22, 26), and the 14 School District still failed to adequately redress the situation such that Student A withdrew from 15 Ulloa Elementary School. (Id. ¶¶ 38, 39.) Indeed, the School District was found by its Office of 16 Equity to have failed to adequately and timely respond to Student B’s bullying behavior of Student 17 A and Student A was bullied based in part on her race. (Id. ¶ 39.) Accordingly, Defendant School 18 District’s motion to dismiss this count is DENIED. 19 D. Count One: Section 1983—Violation of Substantive Due Process 20 a. Defendant School District 21 The Eleventh Amendment immunizes state agencies from federal court suits for private 22 damages and injunctive relief. Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 23 2017). A California school district is an arm of the state which “enjoy[s] Eleventh Amendment 24 immunity.” Id. at 934. Accordingly, count one against Defendant School District is DISMISSED 25 without prejudice, but without leave to amend. Yagman, 852 F.3d at 863. 26 b. Individual Defendants 27 Plaintiffs accuse Individual Defendants of violating their substantive due process rights by 1 “caus[ing] or [being] deliberately indifferent to the abusive conditions” at Ulloa Elementary 2 School, and “misle[ading] or fail[ing] to inform [Parent Plaintiffs] as to the cause of severe 3 behavioral changes” in Student A. (Dkt. No. 9 ¶ 50.) 4 “The Fourteenth Amendment’s mandate that no State shall deprive any person of life, 5 liberty, or property, without due process of law confers both procedural and substantive rights.” 6 Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (cleaned up). Substantive due process 7 “protects individual liberty against certain government actions regardless of the fairness of the 8 procedures used to implement them.” Id. However, the “Due Process Clause does not impose an 9 affirmative obligation on the State to protect a person’s life, liberty, or property; it acts as a 10 limitation on the State’s power to act rather than a guarantee of certain minimal levels of safety 11 and security.” Id. at 925-26. So, the Due Process Clause “typically does not impose a duty [on 12 the state] to protect individuals from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 13 (9th Cir. 2011) (cleaned up). But there are two exceptions to this rule:

14 (1) when a “special relationship” exists between the plaintiff and the state (the special-relationship exception), and (2) when the state 15 affirmatively places the plaintiff in danger by acting with “deliberate indifference” to a “known or obvious danger” (the state-created 16 danger exception). If either exception applies, a state’s omission or failure to protect may give rise to a § 1983 claim. 17 18 Id. at 971-72. 19 Plaintiffs allege both exceptions. (Dkt. No. 9 ¶¶ 47-53.) However, “the special- 20 relationship exception does not apply when a state fails to protect a person who is not in custody,” 21 and “compulsory school attendance and in loco parentis status do not create custody.” Patel, 648 22 F.3d at 972-73 (cleaned up). Thus, Plaintiffs may state substantive due process claims against 23 Defendants only if Plaintiffs allege facts plausibly supporting an inference the state-created danger 24 exception applies. Id. at 972. 25 To state a substantive due process claim under the state-created-danger doctrine, a plaintiff 26 must satisfy two requirements. First, a plaintiff must plausibly allege “affirmative conduct on the 27 part of the state,” exposed her to “an actual, particularized danger that [she] would not otherwise 1 “deliberate indifference” to that “known or obvious danger.” Id. As to the first requirement, 2 Plaintiffs must allege facts supporting an inference each Defendant put Student A in a “worse 3 position than [she] would have been in had the state not acted at all.” Id. (cleaned up); see also id. 4 (the state must have exposed the plaintiff to a danger she “would not have otherwise faced”); 5 Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (same). 6 Plaintiffs allege Defendant Fong affirmatively acted by failing to investigate Student B’s 7 bullying of Student A despite her assurances to Plaintiffs, (Dkt. No. 9 ¶¶ 23, 49), “thereby 8 exposing [Student A] to an actual and particularized danger of additional bullying.” (Dkt. No. 23 9 at 11.) But Plaintiffs fail to allege how Defendant Fong’s failure to conduct a bullying 10 investigation exposed Student A to a danger she did not already face. Polanco, 76 F.4th at 926; 11 see also Lamberth v. Clark Cnty. Sch. Dist., 698 F. App’x 387, 388 (9th Cir. 2017) (upholding 12 dismissal where the complaint failed to allege the school district “took any steps to expose [the 13 student] to a danger she did not already face.”). Plaintiffs do not allege facts plausibly supporting 14 an inference Defendant Fong’s failure to investigate despite her affirmative promise to do so put 15 Student A in a worse position than Student A would have been in had Defendant Fong not 16 affirmatively promised to investigate. 17 The same reasoning applies to each of the other Individual Defendants. The complaint 18 does not allege facts to support a plausible inference each Defendant engaged in an affirmative act 19 that exposed Student A to a danger she would not have otherwise faced. Accordingly, count one 20 of Plaintiffs’ complaint is DISMISSED with leave to amend as to Individual Defendants. 21 E. Count Two: Negligence 22 Plaintiffs accuse the School District and Individual Defendants of negligence per se, res 23 ipsa loquitur, negligent supervision, negligent hiring/retention, and negligent failure to warn, train, 24 or educate. (Dkt. No. 9 ¶¶ 54-97.) To state a claim of negligence against each Defendant, 25 “Plaintiffs must allege facts to support the four elements of negligence: duty, breach, causation, 26 and damages.” Dent v. Nat’l Football League, 968 F.3d 1126, 1130 (9th Cir. 2020). 27 As an initial matter, Plaintiffs fail to plausibly plead a negligence claim against any 1 indiscriminately alleges all Defendants are liable under all alleged negligence theories. This 2 approach makes no sense. For example, Plaintiffs allege a theory of negligent hiring/retention 3 against all Defendants. (Dkt. No. 9 ¶¶ 86-93.) They allege Defendants owed Plaintiffs a duty not 4 to hire and retain Defendant Fong. (Id. ¶ 86.) What facts support a plausible inference Defendant 5 Fong was negligent in hiring and retaining herself? Such an inference is obviously implausible. 6 Similarly, how were Defendants Jew, Jiang, Fudym, and Lawrence-Wong responsible for 7 hiring/retaining Defendant Fong? Plaintiffs must allege facts supporting a plausible inference 8 each Defendant engaged in negligent conduct. Indiscriminately alleging “Defendants” did things 9 does not satisfy the pleading burden. The negligence claim is therefore DISMISSED with leave to 10 amend. Given the indiscriminate pleading, the Court declines to rule on Defendants’ immunity- 11 based arguments. 12 Defendants argue Parent Plaintiffs cannot bring a negligence claim because neither the 13 School District nor the school employees owed Parent Plaintiffs a duty of care. “California courts 14 have found that a school owes a duty of care not only to an attending student, but to the student’s 15 parents under certain circumstances.” Saar v. Oakland Unified Sch. Dist., No. 21-CV-01690- 16 KAW, 2021 WL 9758808, at *3 (N.D. Cal. May 24, 2021). Parents can bring claims as direct 17 victims of a school’s negligent acts or failure to act if the school preempted or usurped “the 18 parental prerogative to take measures to protect the child” by making a conscious decision not to 19 inform parents of a known danger. Steven F. v. Anaheim Union High Sch. Dist., 112 Cal. App. 4th 20 904, 915 (2003), as modified on denial of reh’g (Oct. 22, 2003); Phyllis v. Superior Ct., 183 Cal. 21 App. 3d 1193, 1197 (Ct. App. 1986) (ruling school owed a parent a duty of care where school 22 deliberately withheld information it should have foreseen would cause the parent injury). 23 Accordingly, all Plaintiffs are granted leave to amend the negligence claim. 24 F. Count Four: Intentional Infliction of Emotional Distress 25 The elements of a prima facie case of intentional infliction of emotional distress are “(1) 26 extreme and outrageous conduct by the defendant with the intention of causing, or reckless 27 disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or 1 defendant’s outrageous conduct.” Christensen v. Superior Ct., 54 Cal. 3d 868, 903 (1991). “A 2 defendant’s conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually 3 tolerated in a civilized community.” Hughes v. Pair, 46 Cal. 4th 1035, 1050-51 (2009) (cleaned 4 up). Plaintiffs must plausibly plead Defendants’ conduct was intended to inflict injury or engaged 5 in with the realization injury will result. Id. at 1051. “Whether treated as an element of the prima 6 facie case or as a matter of defense, it must also appear that the defendants’ conduct was 7 unprivileged.” Fletcher v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 394 (Ct. App. 1970). 8 Defendants move to dismiss on the grounds Plaintiffs have not alleged facts plausibly 9 supporting an inference each Defendant engaged in outrageous conduct causing any Plaintiff 10 emotional distress. Plaintiffs respond by grouping all Defendants together. They argue: 11 “Defendants had a duty to stop the harassment [by Student B] but failed to do so.” (Dkt. No. 30 at 12 27.) Which Defendant? Based on what facts? For example, the only facts alleged as to 13 Defendant Lawrence-Wong are “Defendants” allowed Student A “to spend her lunch and recess 14 playing with Lawrence-Wong, a male social worker, in his office with no other children or staff 15 present to avoid her bully.” (Dkt. No. 9 ¶ 28.) No other factual allegations are made as to 16 Defendant Lawrence-Wong. What was outrageous about what he did? How did he intend to 17 inflict harm on Student A or Parent Plaintiffs? 18 The Court is not going to parse through the complaint to see if it can cobble together 19 factual allegations as to each Defendant to plausibly support an inference of liability for 20 intentional infliction of emotional distress (or any other claim). Plaintiffs chose to file in federal 21 court. Plaintiffs must comply with federal pleading standards and, as to each Defendant, allege 22 facts plausibly supporting an inference a specific Defendant is liable for the alleged violation. See 23 Ashcroft, 556 U.S. at 678. Plaintiffs may not be able to state every claim against every Defendant 24 as each Defendant engaged in different conduct. 25 Plaintiffs also fail to distinguish the intentional infliction of emotional distress claims 26 brought on behalf of Student A from those brought by Parent Plaintiffs. How did certain conduct 27 cause Student A emotional distress? How did it separately cause Parent Plaintiffs’ emotional 1 classrooms during recess, but not her bully, Student B. (Dkt. No. 9 ¶ 30.) What facts from this 2 lone allegation plausibly support a claim of intentional infliction of emotional distress by Parent 3 Plaintiffs against Defendant Fudym? 4 Accordingly, count four of Plaintiffs’ complaint is DISMISSED with leave to amend as to 5 all Defendants. Again, given the indiscriminate pleading, the Court declines to address 6 Defendants’ immunity-based arguments. 7 G. Government Claims Act 8 Defendant Fong argues Plaintiffs’ claims should be dismissed for failure to comply with 9 the California Government Claims Act. To sue Defendant Fong for acts or omissions committed 10 in the scope of her employment with the School District, Plaintiffs must timely file a claim against 11 the School District pursuant to the California Government Claims Act. S.M. v. Los Angeles 12 Unified Sch. Dist., 184 Cal. App. 4th 712, 717 (2010) (“Under the Tort Claims Act, a person may 13 not sue a public entity for personal injury unless he or she first presents a written claim to the 14 entity within six months of the time her cause of action accrues, and the entity then denies the 15 claim.”); Briggs v. Lawrence, 230 Cal. App. 3d 605, 613 (Ct. App. 1991) (“[O]ne who sues a 16 public employee on the basis of acts or omissions in the scope of the defendant’s employment 17 [must] have filed a claim against the public-entity employer pursuant to the procedure for claims 18 against public entities.”) The claim must include “[a] general description of the indebtedness, 19 obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of 20 the claim.” Cal. Gov’t Code § 910. 21 Courts employ a test of substantial compliance to determine whether a plaintiff has met 22 California’s claim presentation requirements. Johnson v. San Diego Unified Sch. Dist., 217 Cal. 23 App. 3d 692, 697 (Ct. App. 1990), modified (Feb. 20, 1990). Plaintiffs’ claim “need not specify 24 each particular act or omission later proven to have caused the injury.” Stockett v. Ass’n of Cal. 25 Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 447 (2004). Plaintiffs’ claim is 26 sufficient so long as the complaint is “based on the same factual foundation.” Id. at 449. 27 Generally, complaints are barred for failure to comply with claim presentation requirements only 1 liability on acts or omissions committed at different times or by different persons than those 2 described in the claim.” Id. at 447. 3 Plaintiffs allege compliance with California’s claim presentation requirements. (Dkt. No. 4 9 ¶ 41.) Defendant Fong challenges Plaintiffs’ compliance on the grounds “Plaintiffs’ claims did 5 not present a ‘general description’ of facts supporting their novel legal theories.” (Dkt. No. 27 at 6 20.) The California Government Claims Act does not require Plaintiffs to list the legal theories 7 they intend to bring against Defendant Fong before filing a complaint. Instead, “the facts 8 underlying each cause of action in the complaint must have been fairly reflected in a timely 9 claim.” Stockett, 34 Cal. 4th at 447. 10 The claim forms Plaintiff submitted on October 20, 2022, explained, “[o]ver the course of 11 the 2021-2022 school year 7 year old [Student A] was subjected to extreme and outrageous 12 bullying, including being called the N-word, Naked Prune, slapped, spanked, and assaulted.” 13 (Dkt. No. 20-1 at 2-4.) Plaintiffs continued, “[a]fter notifying school officials including former 14 Principal Carol Fong, [Student A’s] parents[’] concerns were dismissed, ultimately resulting in 15 [Student A] cleaning during her recesses in 5/2022.” Id. These same facts underlie Plaintiffs’ 16 complaint against Defendant Fong and provide sufficient information to enable adequate 17 investigation into Plaintiffs’ claims. Stockett, 34 Cal. 4th at 446 (“The purpose of these statutes is 18 to provide the public entity sufficient information to enable it to adequately investigate claims and 19 to settle them, if appropriate, without the expense of litigation.” (cleaned up)). Thus, Plaintiffs 20 substantially complied with California’s claim presentation requirements. Accordingly, Defendant 21 Fong’s motion to dismiss on this basis is DENIED. 22 H. Parent Plaintiffs’ Article III Standing 23 Defendants seek dismissal of Parent Plaintiffs’ claims for lack of Article III standing, 24 arguing “Parent Plaintiffs have failed to allege they suffered ‘injury in fact’ to survive Article III 25 scrutiny.” (Dkt. No. 24 at 29.) Article III of the United States Constitution “confines the federal 26 judicial power to the resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 141 27 S. Ct. 2190, 2203, (2021). “For there to be a case or controversy under Article III, the plaintiff 1 bear the burden of establishing Article III standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 2 560 (1992) (“A party invoking federal jurisdiction has the burden of establishing that it has 3 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution [and] standing is a 4 ‘core component’ of that requirement.”). 5 The standing analysis considers whether the petitioner has demonstrated “(i) that he 6 suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury 7 was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial 8 relief.” TransUnion, 141 S. Ct. at 2203. Injury in fact is “an invasion of a legally protected 9 interest” that is (1) “concrete,” (2) “particularized,” and (3) “actual or imminent, not conjectural or 10 hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (cleaned up). A concrete injury 11 may be financial or non-financial, tangible or intangible, but it must be “real, and not abstract”; “it 12 must actually exist.” TransUnion, 141 S. Ct. at 2204; Spokeo, 578 U.S. at 340, 352. 13 Where a school district or its employees affirmatively act to prevent a parent from having 14 information necessary to make informed decisions about their child’s safety, the parent has 15 standing to bring their own claims. See Saar v. Oakland Unified Sch. Dist., No. 21-CV-01690- 16 KAW, 2021 WL 9758808, at *4 (N.D. Cal. May 24, 2021) (finding parent plaintiffs had Article III 17 standing where Defendant School District “allegedly misrepresented that there was staff dedicated 18 to ensuring student safety.”). Plaintiffs allege they had to withdraw Student A from school 19 because it had become a racially hostile environment. (Dkt. No. 9 ¶¶ 38, 100.) Accepting 20 Plaintiffs’ allegations as true, Defendants’ mishandling of the reported bullying interfered with 21 Parent Plaintiffs’ ability to make decisions about Student A’s safety, (Id. ¶ 50), and ultimately 22 forced Parent Plaintiffs to remove Student A from school. (Id. ¶¶ 38, 100.) Accordingly, Parent 23 Plaintiffs have adequately alleged an injury-in-fact to establish Article III standing to pursue their 24 own claims. 25 CONCLUSION 26 Student A’s Title VI claim against the School District is plausibly pled; all other claims are 27 dismissed as follows: 1 leave to amend. 2 e Plaintiffs’ counts five and six are DISMISSED without leave to amend. 3 e Plaintiffs’ count one against Defendant School District is DISMISSED without prejudice, 4 but without leave to amend. 5 e Plaintiffs’ counts one against Individual Defendants, and two and four against all 6 Defendants, are DISMISSED with leave to amend. 7 Plaintiffs may file an amended complaint by January 3, 2024. 8 The Court DENIES Defendants’ 12(f) motion to strike immaterial statements from 9 || Plaintiffs’ complaint because Defendants fail to demonstrate the challenged statements are 10 || immaterial to Plaintiffs’ claims. In particular, Defendants have failed to demonstrate the 11 challenged statements are immaterial to Plaintiffs’ claim of a racially hostile environment. 12 This Order disposes of Docket Nos. 16 and 24. 13 IT IS SO ORDERED. 14 || Dated: December 4, 2023 ,

COQUELINE SCOTT CORLEY

= 16 United States District Judge

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