Garcia ex rel. Marin v. Clovis Unified Sch. Dist.

• Citation: 627 F.Supp.2d 1187
• Decision Date: 16 April 2009
• Docket Number: No. 1:08-CV-1924 AWI DLB.,1:08-CV-1924 AWI DLB.
• Parties: Krista GARCIA, by and through her guardian ad litem Lorraine MARIN, Plaintiff, v. CLOVIS UNIFIED SCHOOL DISTRICT, Douglas Burns, Barry Jager, Greg Bass, Ann-Maura Cervantes, Mai Yia Moua, and Does 1 through 20, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1187

627 F.Supp.2d 1187

Krista GARCIA, by and through her guardian ad litem Lorraine MARIN, Plaintiff, v. CLOVIS UNIFIED SCHOOL DISTRICT, Douglas Burns, Barry Jager, Greg Bass, Ann-Maura Cervantes, Mai Yia Moua, and Does 1 through 20, inclusive, Defendants.

No. 1:08-CV-1924 AWI DLB.

United States District Court, E.D. California.

April 16, 2009.

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Robert John Rosati, Law Office of Robert J. Rosati, Scott C. Hawkins, Hawkins & Bohman, Fresno, CA, for Plaintiff.

Benjamin L. Ratliff, Law Offices of Benjamin L. Ratliff, Fresno, CA, Jason Michael Sherman, Alesa M. Schachter, Johnson Schachter & Lewis, Sacramento, CA, for Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS AND ORDER REMANDING CALIFORNIA CIVIL CODE § 51.9 CLAIM TO THE FRESNO COUNTY SUPERIOR COURT

ANTHONY W. ISHII, Chief Judge.

This case was removed from the Fresno County Superior Court on the basis of federal question jurisdiction. Plaintiff Krista Garcia ("Garcia"), through her guardian ad litem, alleges fourteen causes of action against Clovis Unified School District ("CUSD") and its employees Douglas Burns ("Burns"), Barry Jager ("Jager"), Greg Bass ("Bass"), Anna-Maura Cervantes ("Cervantes"), and Mai Yia Moua ("Moua"). Garcia's claims stem from conduct by her former teacher Burns and CUSD's reaction to Burns's conduct. CUSD moves to dismiss each cause of action alleged against it under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, CUSD's motion will be granted in part and denied in part.

BACKGROUND

From the complaint,¹ during the 2007-2008 school year: Garcia was a student at Reyburn Middle School ("the School"), Jager was the principal of the School, Moua was the eighth grade guidance counselor at the School, Burns was a teacher (apparently math) at the School, and Bass and Cervantes were employees of CUSD. See Complaint at ¶ 11.

In early November 2007 (hereinafter "the November Incident"), during Burns's math class, Garcia was walking back to her chair when she was approached from behind by Burns. See id. at ¶ 12. Burns lifted Garcia upside down and completely off the ground. See id. "Burns held Garcia, including on or about her buttocks, `feeling her,' positioning her head directly in his groin area and proceeded to shake her up and down several times, in front of the entire class." Id. After Burns put her down, Garcia put her head down until class was over. See id. at ¶ 13. Garcia's classmates encouraged her to report the incident "to the office." Id. Garcia then immediately went to "the office" and reported the incident to "an administrator/assistant," believed to be the eighth grade secretary. See id. The secretary stated that she would contact Garcia's mother and report the matter to other personnel; she then instructed Garcia to return to class. See id.

Garcia did not tell her mother about this incident until April 2008, and CUSD never contacted Garcia's mother to advise or discuss this incident. See id. at ¶ 14. Garcia states on information and belief that CUSD made no official report or took any action regarding Burns and the November Incident. See id. at ¶ 15.

After the November Incident, Garcia felt humiliated and fearful whenever she had to be around Burns and tried to avoid him as much as possible. See id. at ¶ 16. However, Garcia remained enrolled in Burns's math class. See id.

Apparently no further incidents occurred until March 2008 (hereinafter "the March Incident"). Garcia was waiting outside on School grounds for her mother to pick her up from classes. See id. at ¶ 17. Garcia was waiting with her brother and some of his friends, who were also students at the School. See id. Burns approached the group and had a crossing sign in his hand. See id. at ¶ 18. Burns spoke to Garcia about seeing her in class and then, as he turned to walk away, he deliberately turned and "forcefully struck" Garcia with the sign on her buttocks. See id. Burns then left, but laughed out loud as he walked away.² See id. Garcia was scared and confused, and her brother pulled her next to him. See id. at ¶ 19. Garcia did not tell her mother about this incident until April 2008, and continued to try to avoid Burns because she continued to feel fearful and humiliated. See id.

On April 1, 2008, Garcia attended a school attendance review board ("SARB") meeting at the CUSD office. See id. at ¶ 20. Garcia, her mother, Bass, Cervantes, Moua, and "others" were present at this meeting. See id. During the course of the SARB meeting, Garcia broke down and cried and gave a brief account of the November and March Incidents with Burns. See id. at ¶ 21. An unidentified administrator stated, in essence, that the meeting was not the time or place to discuss the Incidents. See id. Bass stated that it was the appropriate time and place. After more discussion, the unidentified administrator again stated that this was not the time or place to discuss such matters. See id. Garcia's mother attempted to get specifics as to whom she needed to contact and when was the proper time to discuss the Incidents. See id. She was told to schedule a meeting with Jager. See id. On information and belief, Garcia alleges that no action was taken with respect to Burns and the Incidents disclosed by Garcia at the meeting. See id. Garcia requested to be removed from Burns's classroom and "was moved at this time." Id. at ¶ 22.

From April 2 through April 11, 2008, Garcia's mother attempted to schedule a meeting with Jager. See id. at ¶ 23. On April 11, 2008, Jager and Garcia's mother met. See id. at ¶ 24. Jager stated that he was very concerned, that he and CUSD considered the reports by Garcia to be very serious, and that the matter was being dealt with appropriately. See id. Jager also told Garcia's mother that she would likely hear from other individuals and/or agencies in the near future, including law enforcement. See id.

On information and belief, Jager entered Burns's classroom and had a conversation with him about the March Incident. See id. at ¶ 25. Other children reported to Garcia that Burns told Jager that Burns was in the cross walk and "used the sign to `hurry' [Garcia] out of the street." Id. On information and belief, Jager took no other action regarding Burns. Id.

From May 2008, to the end of the school year, Burns continued to stare and leer at Garcia "from head to toe" and to laugh and snicker at her when he saw her on campus. Id. at ¶ 27. Although Garcia tried to avoid Burns, she could not do so. See id. Garcia's attorneys wrote to CUSD regarding Garcia's complaints. See id. ¶ 28. Thereafter, CUSD removed Burns from the classroom. See id. Burns had continued to teach math class until May 2008, when he was removed. See id. at ¶ 26. On information and belief, Burns addressed his students prior to leaving his classroom. See id. at ¶ 29. Burns told his students that he was leaving because Garcia was suing him for hurrying her across the street with a crossing sign. See id. "Thereafter, students in the class harassed and retaliated against [Garcia]." Id.

Garcia filed this lawsuit in the Fresno County Superior Court in November 2008. Defendants removed in December. In her complaint, Garcia alleges the following causes of action: (1) assault, (2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) sexual harassment under California Civil Code § 51.9, (6) violations of California education code §§ 201(c), (f) and 212.5(7) negligence per se through California Penal Code § 11166, (8) negligent supervision, (9) negligent training, (10) negligent hiring/retention, (11) violation 20 U.S.C. § 1681(a) ("Title IX"), and (12) two violations of 42 U.S.C. § 1983 by Burns and CUSD respectively.

GENERAL LEGAL FRAMEWORK

Rule 8(a)

Federal Rule of Civil Procedure 8(a) sets the pleading standard for claims for relief. "Under the liberal rules of pleading, a plaintiff need only provide a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Sagana v. Tenorio, 384 F.3d 731, 736 (9th Cir.2004) (quoting Fed.R.Civ.P. 8(a). This rule does "not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The pleadings need only give the opposing party fair notice of a claim and the claim's basis. Conley, 355 U.S. at 47, 78 S.Ct. 99; Sagana, 384 F.3d at 736; Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir.2001). The pleadings are also to "be construed as to do substantial justice," and "no technical forms of pleading ... are required." Fed. Rules Civ. Pro. 8(e)(1), 8(f); Sagana, 384 F.3d at 736; Fontana, 262 F.3d at 877.

Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.1988). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir.2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d...