Sergio A. Chavira, Jr., et al v. El Rancho Unified School District, et al

Filing 20

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Plaintiffs' motion to remand the action 14 is hereby DENIED. Defendants' motion to dismiss the complaint 12 is GRANTED in part and DENIED in part. Specifically, plaintiffs ' claims for "breach of duty owing by special relationship" (claim 2), "violation of mandatory duty" (claim 3), violation of 42 U.S.C. Section 1983 (claim 5), and all claims against defendant Galindo are DISMISSED without pre judice. In addition, the Court STRIKES without prejudice the portion of plaintiffs' complaint seeking damages pursuant to the Unruh Act "per each day" of defendants' alleged denial of access to the ERHS pool. However, defendants&# 039; motion to dismiss is DENIED insofar as it seeks to dismiss plaintiffs' first claim for "general negligence." Plaintiffs shall have until and including 11/23/2015 to file a first amended complaint addressing the deficiencies identified herein. Failure to do so may result in dismissal with prejudice. Court Reporter: Debbie Gale. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Present: The Honorable

Date

November 9, 2015

CHRISTINA A. SNYDER, U.S. DISTRICT JUDGE

CONNIE LEE
Deputy Clerk

DEBBIE GALE
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

John Holcomb, Jr.

Brianne Gardner

Proceedings:

PLAINTIFFS’ MOTION TO REMAND (filed October 9, 2015,
dkt. 14)
DEFENDANTS’ MOTION TO DISMISS (filed September 25,
2015, dkt. 12)

I.

INTRODUCTION

On June 9, 2015, plaintiffs Sergio Chavira (through his guardian ad litem Rosa
Chavira), Jonathan Rivera (through his guardian ad litem Maria G. Rivera), and Salvador
Francia (through his guardian ad litem Salvador Fancia) (collectively, “plaintiffs”) filed
the instant action in the Los Angeles County Superior Court against the El Rancho
Unified School District (“ERUSD”), ERUSD Superintendent Martin Galindo
(“Galindo”), and Does 1-50, inclusive (collectively, “defendants”). Dkt. 1 (Notice of
Removal), Ex. A (Compl.). On September 10, 2015, defendants removed this action to
federal court on the basis of federal question jurisdiction. Id. ¶ 2.
Plaintiffs’ complaint asserts seven claims: claim one for “general negligence,”
pursuant to Cal. Gov. Code §§ 815.2, 820, against ERUSD and Does 1-50; (2) claim two
for “breach of duty owing by reason of special relationship with plaintiffs,” against
ERUSD and Does 1-50; claim three for “violation of mandatory statutory duties,” against
ERUSD and Does 1-50; claim four for violation of the Unruh Civil Rights Act, Cal .Civ.
Code § 51, et seq., against defendants ERUSD and Does 1-50; claim five for violation of
42 U.S.C. § 1983, against ERUSD, Superintendent Galindo, and Does 1-50; claim six for
violation of the Americans with Disabilities Act, pursuant to 42 U.S.C. § 12101, et seq.,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

against ERUSD and Does 1-50; and claim seven for violation of section 504 of the
Rehabilitation Act, pursuant to 29 U.S.C. § 794, against ERUSD and Does 1-50.
On September 25, 2015, defendants filed a motion to dismiss plaintiffs’ complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 12. Plaintiffs filed an
opposition to defendants’ 12(b)(6) motion on October 5, 2015, dkt. 13, and defendants
replied on October 12, 2015, dkt. 15. On October 9, 2015, plaintiffs filed a motion to
remand the case to state court, dkt. 12, and defendants filed an opposition to plaintiffs’
motion to remand on October 19, 2015, dkt. 17. The Court held oral argument on
November 9, 2015. Having carefully considered the parties’ arguments, the Court finds
and concludes as follows.
II.

BACKGROUND

Plaintiffs Sergio Chavira, Jonathan Rivera, and Salvador Francia allege that they
are disabled persons who attended Special Education Special Day Classes (“SDC”) at El
Rancho High School (“ERHS”) between approximately 2011 through the end of the 2014
school year. Compl. ¶¶ 12-13, 27-28 42-43. While at ERHS, which is within ERUSD,
plaintiffs allege that they were qualified to receive “a free appropriate public education
that emphasizes special education and related services to meet [their] unique needs and to
prepare [them] for employment and independent living” pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et. seq. See id. ¶¶ 12, 27, 42.
During the relevant time period, plaintiffs allege that they attended ERHS’s extended
school year program (“ESY”) on a full-time basis, as detailed in their Individual
Education Plans (“IEP”), which provided that plaintiffs would attend physical education
classes. Id. ¶¶ 13, 28, 43.
On or about June 1, 2012, plaintiffs allege that their parents were informed that
ERUSD “would not allow its special education students to use the ERHS swimming pool
for the entire 2012 summer due to [a] lack of resources to pay for insurance, but that
[ERUSD’s] non-disabled students on the ERHS swim team, water polo team, and
summer swim classes could [continue to] use the pool.” Id. ¶ 15; see also ¶¶ 30, 45.
Plaintiffs further allege that sometime after June 21, 2012, Lucila Saccone, the mother of
one of plaintiff Chavira’s SDC classmates at ERHS, filed a formal complaint regarding
the closure with the United States Department of Education’s Office for Civil Rights
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

(“OCR”), which then investigated the complaint until about July 9, 2014. Id. ¶¶ 20-21.
On or about July 9, 2014, OCR mailed the results of its investigation to Saccone. Id. ¶
22. According to the complaint in the instant suit, the results of the OCR’s investigation
include the following observations:
Based on the available information, OCR determined that the
District made the decision to eliminate the use of the swimming
pool by the SDC class during the ESY because of [a] perceived
increased risk related to their disability status. This perceived
risk was not individually assessed.
OCR finds that the District was not fully in compliance with
Section 504 [of the Rehabilitation Act] and Title II [of the
Americans with Disabilities Act] when it suspended pool use by
the SDC class in summer 2012, 2013 [sic] and did not permit
use of the pool by SDC students until midway through summer
2014.
OCR discussed its findings with the District in February 2014
and sent the District a draft agreement that would resolve the
issues raised in the case. Despite many attempts, the District
did not respond in any way to OCR until June 2014, and at that
time, the District expressed a willingness to try to resolve
OCR’s concerns and sign and implement the Resolution
Agreement.
Id. ¶ 22.
Plaintiffs aver that ERUSD re-opened the pool to disabled students in the summer
of 2014, only to close the pool to “all use” the following fall “without review of any
student’s IEPs.” Id. ¶¶ 22(b), 24, 37(b), 39, 52(b), 54. Finally, plaintiffs Chavira and
Francia also claim that beginning on approximately June 11, 2014 (shortly after the
pool’s reopening) and continuing for approximately eight ESY school days, ERUSD
failed to provide them with reasonable accommodations––specifically, with trained staff
to do water safety and adaptive physical education in the pool. Id. ¶¶ 23, 53.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

III.

Date

November 9, 2015

LEGAL STANDARD
A.

Motion to Remand

A motion to remand is the proper procedure for challenging removal. Remand
may be ordered either for lack of subject matter jurisdiction or for any defect in removal
procedure. See 28 U.S.C. § 1447(c). In general, a federal district court has subject
matter jurisdiction where a case presents a claim arising under federal law (“federal
question jurisdiction”), or where the plaintiffs and defendants are residents of different
states and the amount in controversy exceeds $75,000 (“diversity jurisdiction”). See,
e.g., Deutsche Bank Nat’l Trust Co. v. Galindo, 2011 WL 662324, *1 (C.D. Cal. Feb.11,
2011) (explaining the two types of jurisdiction). The Court strictly construes the removal
statutes against removal jurisdiction, and jurisdiction must be rejected if there is any
doubt as to the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). The party seeking removal bears the burden of establishing federal jurisdiction.
See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999).
B.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Polic Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.

DISCUSSION
A.

Plaintiffs’ Motion to Remand

Plaintiffs argue that “[o]nly three of the causes of action [in the instant case]
involve federal claims,” and that because “those causes of action do not require federal
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

jurisdiction . . . the matter should be remanded” to state court. Mot. Remand at 1. More
specifically, plaintiffs argue that because “[f]ederal question jurisdiction is not required
when alleging a violation of the Americans with Disabilities Act, a violation of 42 U.S.C.
1983, and a Violation of Section 504 of the Rehabilitation Act,” there accordingly “is not
a proper basis for removal of this action based on a Federal Question.” Id. at 1-2.
Plaintiffs’ argument misses the mark, however, because it is premised upon the
false assumption that the case must be remanded simply “because Defendants will not be
able to show that the District Court has exclusive jurisdiction over this matter.” Id. at 4.
As they note in their opposition, defendants need not demonstrate any such “exclusive
jurisdiction” in order to remove the instant action to federal court. See generally Remand
Opp’n. Pursuant to 28 U.S.C. section 1331,“[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws or treaties of the
United States.” Section 1441 further provides that “[e]xcept as otherwise expressly
provided by Act of Congress, any civil action brought in a State court of which the
district courts of the United States have original jurisdiction may be removed” to district
court. 28 U.S.C. § 1441(a). Here, the Court of course retains original jurisdiction over
plaintiffs’ ADA, Section 504, and Section 1983 claims, as all three claims arise under the
laws of the United States. Accordingly, an action alleging such claims can be removed
pursuant to 28 U.S.C. section 1441. While plaintiffs rightly note that “[e]xclusive
jurisdiction does not exist in this matter,” Motion to Remand at 4, the lack of exclusive
jurisdiction is not determinative of whether the action can properly be removed to federal
court. See 28 U.S.C. §§ 1331, 1441(a).
With respect to plaintiffs’ additional state law claims, the federal courts’ authority
to exercise supplemental jurisdiction“in any civil action” extends to all “claims that are so
related to [the] claims in the action” over which a district court has original jurisdiction
that “they form part of the same case or controversy.” 28 U.S.C. § 1367(a). Here,
defendants rightly argue that “the gravamen of Plaintiffs’ entire complaint is the
allegation that, between June of 2012 and the fall of 2014, the defendants discriminated
against disabled students by failing to provide equal access to a swimming pool.”
Remand Opp’n at 5. Plaintiffs’ state law claims accordingly form part of the same case
or controversy, and while in certain circumstances the Court may nevertheless decline to
exercise supplemental jurisdiction, no such circumstances apply in the instant case. See
28 U.S.C. 1367(c) (noting district courts may decline to exercise supplemental
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

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Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

jurisdiction over a claim when the claim “raises a novel or complex issue of State law,”
the claim “substantially predominates over the claim or claims over which the district
court has original jurisdiction,” and where, “in exceptional circumstances, there are other
compelling reasons for declining jurisdiction”).
Accordingly, plaintiffs’ motion to remand is hereby DENIED.
B.

Defendants’ Motion to Dismiss

In the instant 12(b)(6) motion, defendants ERUSD and Superintendent Galindo
seek to dismiss (1) all claims as asserted against defendant Galindo; (2) plaintiffs’ first
claim for “general negligence”; (3) plaintiffs’ second claim for “breach of duty owing by
special relationship”; (4) plaintiffs’ third claim for “violation of mandatory duty”; (5)
plaintiffs’ fifth claim for violation of 42 U.S.C. section 1983; and (6) plaintiffs’ request
for statutory “daily damages” under California Civil Code Section 52, et. seq. The Court
addresses defendants’ motion as to each of these claims in the discussion below.
1.

Plaintiffs’ Claims Against Defendant Galindo

Defendants argue that ERUSD Superintendent Galindo should be dismissed from
the action because plaintiffs’ “allegations that Galindo was the Superintendent for the
District, and that he therefore had an agency relationship with the District do not lead to
the inference that Galindo is liable for any misconduct.” Motion at 3. More specifically,
defendants argue that plaintiffs’ allegations that Galindo “acted with deliberate
indifference” and “should have known that plaintiffs required and would benefit from the
provision of their respective special education . . . services,” Compl. ¶¶ 69, 74, are
“threadbare recitals of the elements of plaintiffs’ cause of action and mere conclusory
statements.” Motion at 3.
While it is somewhat unclear, it appears from the face of the complaint that only
one of defendants’ eight claims is actually being asserted against defendant Galindo.
Specifically, the only “cause of action” for which Galindo is listed as a defendant is
plaintiffs’ fifth claim pursuant to 42 U.S.C. Section 1983, which, as explained infra, the
Court dismisses without prejudice. See Compl. at p.19. All of plaintiffs’ other claims
expressly list ERUSD and Does 1-50 and notably fail to list Galindo as a defendant.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

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Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Plaintiffs’ opposition to the instant motion also fails to provide any clarification as to
which claims are being asserted against Galindo, instead stating only that “[a]s the
Superintendent [Galindo] likely had knowledge of the acts complained of, and he was
indeed in charge of the district, [and therefore] the causes of action against him should
not be dismissed.” Opp’n at 5. “At the very least,” plaintiffs argue, Galindo “should
remain in the case until discovery has been conducted to determine exactly whether or
not he played a major role in determining that the pool was not to be used by disabled
individuals.” Id.
At oral argument, plaintiffs clarified that the only claim that they are asserting
against defendant Galindo is their fifth claim for an alleged violation of 42 U.S.C.
Section 1983. As explained infra, the Court dismisses this claim as to all defendants
without prejudice. Accordingly, defendant Galindo is hereby DISMISSED from this
action without prejudice.
2.

Plaintiffs’ First Claim for General Negligence

Under California law, public entity liability is governed entirely by statute. See
Cal. Gov. Code § 815 (“Except as otherwise provided by statute: (a) A public entity is not
liable for an injury, whether such injury arises out of an act or omission of the public
entity or a public employee or any other person.”) (emphasis added). Accordingly, in
order to hold a public entity liable, plaintiffs must identify a California statute which
permits that entity to be held liable. In pleading their “general negligence” claim,
plaintiffs’ caption page cites to California Government Code sections 815.2 and 820, and
the complaint further alleges that defendants “directly and proximately cause[d] plaintiffs
to suffer great physical stress, anxiety, and regression in their respective developmental
and educational skill levels” by “negligently and continuously fail[ing] to provide
plaintiffs their free, appropriate public education as required by law, fail[ing] to
implement plaintiffs’ IEPs as required by Education Code section 56345 and C.C.R. §
3040, and fail[ing] to comply with section 504 of the Rehabilitation Act of 1973.”
Compl. ¶ 70.
While the complaint is not entirely clear as to this point, plaintiffs appear to
allege that defendant ERUSD is liable for its allegedly negligent behavior pursuant to
California Government Code section 815.2(a), which provides that “[a] public entity is
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

liable for injury proximately caused by an act or omission of an employee of the public
entity within the scope of his employment if the act or omission would, apart from this
section, have given rise to a cause of action against that employee.” In their motion,
defendants argue that section 815.2 is not itself a statutory basis for liability and that
plaintiffs must accordingly identify an independent statutory basis for liability against the
employee of the public entity. Motion at 4-5 (“[Section 815.2] does not create a private
right of action, but merely provides that a public entity may be vicariously liable for the
acts of its employees . . . this statute does not form the basis of statutory liability but
merely incorporates general principals of respondeat superior”).
However, defendants misstate the law. Section 815.2 is a vicarious liability statute
that permits a public entity to be liable for the actions of its employees to the same extent
as a private employer. See Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir.
2002) (en banc) (“California . . . has rejected the Monell rule and imposes liability on
counties under the doctrine of respondeat superior for acts of county employees; it grants
immunity to counties only where the public employee would also be immune”); see also
Scott v. County of Los Angeles, 27 Cal. App. 4th 125, 139–40 (1994) (“Under
Government Code section 815.2, subdivision (a), the County is liable for acts and
omissions of its employees under the doctrine of respondeat superior to the same extent
as a private employer. Under subdivision (b), the County is immune from liability if, and
only if, [the employee] is immune.”) (emphasis omitted). Accordingly, pursuant to
section 815.2, ERUSD may be held liable under a theory of respondeat superior for the
allegedly negligent actions of its employees.
Still, defendants argue that plaintiffs’ complaint is factually deficient because it
does not specifically “identify an employee whose acts the District is allegedly liable
[for], let alone describe[] how those acts were carried out in the course and scope of
employment.” Motion at 5. While defendants are correct that plaintiffs have not
specified individual ERUSD employees by name, plaintiffs’ negligence claim is brought
against “Does 1 though 50”––that is, those alleged to be “agents, servants, employees,
successors in interest, and/or joint venturers of their co-defendants . . . [who] were acting
within the course, scope, and authority” of ERUSD and whose allegedly negligent
conduct can give rise to liability for ERUSD under a theory of respondeat superior.
Compl. ¶ 10. Moreover, the Court notes that defendants have cited no factually
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

analogous cases in support of their argument that the allegations in the instant complaint
are insufficient to state a claim for general negligence.
Defendants’ motion to dismiss plaintiffs’ “general negligence claim” against
ERUSD and Does 1-50 is accordingly DENIED.
3.

Plaintiffs’ Second Claim for “Breach of Duty Owing by Special
Relationship”

Plaintiffs second claim is for “breach of duty owning by reason of special
relationship with plaintiffs.” Compl. ¶ 14. Specifically, plaintiffs allege that defendant
“ERUSD has occupied a position of trust and control over plaintiffs, which gave
[ERUSD] plenary power to control the circumstances of the plaintiffs’ respective special
education,” and that ERUSD “abused that position of trust and control by failing to meet
its particular duties of care.” Id. ¶ 78. However, neither plaintiffs’ complaint nor their
opposition to the instant motion cites to any authority or case law whatsoever regarding
the existence of a “separate and independent duty of care owning to plaintiffs by reason
of its special relationship with plaintiffs.” Id. ¶ 80; see Opp’n at 7. Accordingly,
defendants argue that “[i]nsofar as the plaintiffs rely on the ‘special relationship’ theory
to differentiate their second cause of action from their general negligence claim, the
existence of special relationship merely gives rise to a duty to assist or protect another”
and “do[es]not create an independent cause of action, but instead establish[es] the ‘duty’
element of a common law general negligence claim.” Motion at 6. The Court agrees
with defendants, particularly in light of plaintiffs’ failure to cite any authority supporting
the existence of a separate claim for “breach of duty owing by special relationship,” as
well as plaintiffs’ specific request for leave “to amend to cure the deficiency” as to these
allegations. Opp’n at 7.
Accordingly, plaintiffs’ second claim is hereby DISMISSED without prejudice.
4.

Plaintiffs’ Third Claim for “Violation of Mandatory Duty”

Plaintiffs’ third claim is for failure to fulfill a “mandatory duty” pursuant to
California Government Code section 815.6, which provides that “[w]here a public entity
is under a mandatory duty imposed by an enactment that is designed to protect against the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

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Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

risk of a particular kind of injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the public entity establishes
that it exercised reasonable diligence to discharge the duty.” Cal. Gov. Code § 815.6. “A
plaintiff asserting liability under Government Code section 815.6 must specifically allege
the applicable statute or regulation” that gives rise to the mandatory duty. Brenneman v.
California, 208 Cal.App.3d 812, 817 (Cal. Ct. App.1989) (internal quotation marks
omitted). Plaintiffs’ complaint cites to a scattershot of federal and state authorities that
purportedly “impose” under California Government Code section 815.6 “a mandatory
duty [upon defendants] . . . that is designed to protect against the risk of [the] particular
kind of injury” that plaintiffs allege in the complaint. Cal. Gov. Code § 815.6; see
Compl. ¶¶ 82-87.
However, neither plaintiffs’ complaint nor their opposition to the instant motion
cite to any authority or case law recognizing these myriad sources of authority as
“enactments” whose violation would support a claim for failure to fulfill a “mandatory
duty” under California Government Code section 815.6. Accordingly, defendants argue
that none of the cited authorities “create mandatory duties [that] support civil liability”
under Section 815.6. Motion at 6-7. Plaintiffs’ opposition to the instant motion does not
attempt to counter defendants’ arguments or the relevant case law cited in support
thereof. Instead, plaintiffs state only that they have “list[ed] various Government Code,
Education Code, and Constitutional Amendments exhaustively in the Complaint,” and
that “[i]f the Court determines [that] any of the statutory duties are not appropriate,
Plaintiffs should be permitted to amend to cure the deficiency in the allegations.” Opp’n
at 7. Of course, “[i]t is not the job of this court to develop arguments for [the parties],”
Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609 (7th Cir. 2008), and the Court
declines to determine whether one of the more than twenty authorities to which plaintiffs
cite in their complaint could possibly support plaintiffs’ claim under California
Government Code section 815.6.1

1

Plaintiffs do not expressly allege that any one of the many authorities in the
complaint has been recognized as supporting a claim for failure to fulfill a “mandatory
duty” under California Government Code section 815.6. See Compl. ¶¶ 83-87. Rather,
plaintiffs simply list and at times briefly describe various authorities that purportedly
create a “mandatory of care” to plaintiffs, including: California Government Code §§
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UNITED STATES DISTRICT COURT
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Case No.

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Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Accordingly, plaintiffs’ third claim for violation of a “mandatory duty” is
DISMISSED without prejudice. Should plaintiffs file an amended complaint again
alleging a violation of a “mandatory duty,” plaintiffs are admonished to cite to a specific
statutory authority whose violation by a public entity may give rise to liability pursuant to
California Government Code section 815.6.2
5.

Plaintiffs’ Fifth Claim for Violation of 42 U.S.C. Section 1983

Defendants argue that plaintiffs’ Section 1983 claim against ERUSD, Galindo, and
Does 1-50 must be dismissed because “school districts and their agents cannot be held
liable under 42 U.S.C. Section 1983” pursuant to the Ninth Circuit’s decision in Belanger
v. Madera Unified School District. Motion at 8 (citing Belanger v. Madera Unif. Sch.
Dist., 963 F.2d 248, 254-55 (9th Cir. 1992)). In Belanger, the Ninth Circuit held that
California school districts are entitled to Eleventh Amendment immunity and thus
immune from suit under Section 1983. Id. at 254. Specifically, the Court found that the
California school district at issue in the case “[was] an agent of the state that performs
state governmental functions and [because] a judgment would be satisfied out of state
funds,” California school districts are accordingly “immune to suit under the Eleventh
Amendment.” Id. In recent years, “not only has every federal district in California cited
810.6, 810.8, 811, 811.6, 811, 815.2; California Education Code §§ 44808, 56000,
56045, 56343.5, 56347; California Civil Code §§ 51, 52, 52.1; Title II of the Americans
with Disabilities Act, 42, U.S.C. § 12101, et seq.; 28 C.F.R. § 35.130(d); 45 C.F.R. §
84.4(b)(1)(iv); 28 U.S.C. § 794(a); the Fourth, Fifth, Eighth, and Fourteenth Amendments
of the United States Constitution; and Article I, Sections 1 and 7(a) of the California
Constitution.
2

Generally, cases interpreting California Government Code section 815.6 have
noted that it establishes a three-pronged test for determining whether a particular
enactment may impose liability on a public entity: “(1) the enactment in question must
impose a mandatory, not discretionary, duty; (2) the enactment must be intended to
protect against the kind of risk of injury suffered by the party asserting the statute as the
basis of liability; and (3) the breach of duty must be a proximate cause of the plaintiff's
injury.” In re Groundwater Cases, 154 Cal. App. 4th 659, 688-89 (2007) (citation
omitted).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Belanger and held that school districts are entitled to Eleventh Amendment immunity, but
the Ninth Circuit also has continued to rely on Belanger for the proposition that ‘a school
district cannot be sued for damages under § 1983.’” Sato v. Orange Cnty. Dep’t of Educ.,
No. SACV 15-00311, 2015 WL 4078195, at *5 (C.D. Cal. July 6, 2015) (collecting
cases) (quoting C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1247 (9th
Cir.2015)). In their three-sentence opposition to defendants’ argument, plaintiffs fail to
cite any authority or case law that calls the holding of Belanger into question and instead
state only that defendants “engaged in despicable conduct” and “should be held
responsible based upon their extraordinary relationship to the students.” Opp’n at 7.
Accordingly, plaintiffs’ fifth claim for violation of 42 U.S.C. § 1983 is
DISMISSED without prejudice.
6.

Plaintiffs’ Request for Statutory Daily Damages under California
Civil Code Section 52, et. seq.

Plaintiffs’ prayer for relief seeks statutory damages under the Unruh Act “in the
sum of three times actual damages . . . or $4,000 per each day” that each plaintiff was
“denied use of [the] ERHS swimming pool.” Compl. at p. 27 (Prayer for Relief, ¶ 3)
(emphasis added). Defendants note that the Unruh Act makes no reference to daily
damages but instead states, in relevant part, that “[w]hoever denies . . . or makes any
discrimination or distinction contrary to [the Unruh Act] is liable for each and every
offense for the actual damages . . . suffered by any person denied the rights,” as well as
“any amount that may be determined by a jury, or a court sitting without a jury, up to a
maximum of three times the amount of actual damage but in no case less than four
thousand dollars ($4,000), and any attorney's fees that may be determined by the court in
addition thereto.” Cal. Civ. Code § 52(a); see Motion at 8-10. Accordingly, defendants
argue that “[t]he plain language of [the Unruh Act’s] treble damages provision explicitly
compensates plaintiffs for each offense, not for the injury that follows the offense,” and
that recovery should therefore be “calculated based on the defendants’ wrongful acts, not
the number of days that the plaintiffs purportedly suffered injury.” Motion at 9
(emphasis in original). Plaintiffs fail to cite any authority in support of the contention
that they may be entitled to damages under the Unruh Act “per each day” that they were
denied access to the pool; indeed, plaintiffs fail to rebut or otherwise acknowledge
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

defendants’ argument regarding their prayer for relief under the Unruh Act. See Opp’n at
7.
There is a split of authority among the district courts as to whether the Unruh Act’s
authorization of damages “for each and every offense” permits the recovery of the daily
damages plaintiffs seek in the instant action. See Moore v. Anaya, No.
1:12-CV-00009-AWI, 2012 WL 1657205, at *1 (E.D. Cal. May 10, 2012) (noting split of
authority). In one of the earlier cases to consider the issue, the district court concluded
that such damages were not available because the statutory language “makes no reference
to daily damages and appears to contemplate an award based on the number of instances
of non-compliance, not on the passage of time.” Doran v. Embassy Suites Hotel, No.
C-02-1961 EDL, 2002 WL 1968166, at *4 (N.D. Cal. Aug. 26, 2002). In that way, the
language of the Unruh Act differed from other provisions under California law that
expressly provide liability for statutory damages “for each day or part thereof” that a
defendant remains in violation. Id. (citing Cal. Civ. Code § 789.3). Accordingly, the
Court in Doran concluded––as defendants in the instant case argue––that the Unruh Act’s
mention of liability“for each and every offense” authorized “statutory damages based on
each specific instance of non-compliance, rather than on the mere passage of time.” Id. at
*5 (noting that “[i]f the Legislature intended to provide for daily damages in Civil Code
sections 52(a) . . . it could have specifically provided for them”).
A more recent decision in the Central District of California similarly found, upon
consideration of the “well-reasoned opinion in Doran,” that “daily damages are not
available under [Section 52(a) of the Unruh Act].” Kohler v. Rednap, Inc., 794 F. Supp.
2d 1091, 1094 (C.D. Cal. 2011). The court in Kohler noted that “a later amendment to
the statute[] in 2008 makes clear that damages are not available on a daily basis.” Id.
(citing Cal. Civ. Code § 55.56); but see Botosan v. Fitzhugh, 13 F. Supp. 2d 1047, 1051
(S.D. Cal. 1998) (declining “to strike the portion of Plaintiff’s complaint that seeks daily
damages in the amount of $1000 per day . . . [based upon] California Civil Code §§ 52
and 54.3”); and Grutman v. Regents of Univ. of California, 807 F. Supp. 2d 861, 870
(N.D. Cal. 2011) (declining to exercise supplemental jurisdiction over plaintiff’s Unruh
Act claim because it raised “novel and difficult questions of state law” and because the
plaintiff could “potentially be awarded close to two million dollars in damages” or “only
a nominal $4,000” depending on whose interpretation of Section 52(a)’s “each offense”
language the court adopted).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07147-CAS-AS

Date

November 9, 2015

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Accordingly, because the Court finds the reasoning in Doran and Kohler
persuasive, and in light of plaintiffs’ apparent lack of opposition as to the issue, the Court
STRIKES without prejudice the portion of plaintiffs’ complaint seeking damages
pursuant to the Unruh Act “per each day” of defendants’ alleged denial of access to the
ERHS pool.
V.

CONCLUSION

In accordance with the foregoing, plaintiffs’ motion to remand the action is hereby
DENIED. Defendants’ motion to dismiss the complaint is GRANTED in part and
DENIED in part. Specifically, plaintiffs’ claims for “breach of duty owing by special
relationship” (claim 2), “violation of mandatory duty” (claim 3), violation of 42 U.S.C. §
1983 (claim 5), and all claims against defendant Galindo are DISMISSED without
prejudice. In addition, the Court STRIKES without prejudice the portion of plaintiffs’
complaint seeking damages pursuant to the Unruh Act “per each day” of defendants’
alleged denial of access to the ERHS pool. However, defendants’ motion to dismiss is
DENIED insofar as it seeks to dismiss plaintiffs’ first claim for “general negligence.”
Plaintiffs shall have until and including Monday, November 23, 2015 to file a first
amended complaint addressing the deficiencies identified herein. Failure to do so may
result in dismissal with prejudice.
IT IS SO ORDERED.
00
Initials of
Preparer

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02

CL

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