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finding no need to exhaust remedies under the IDEA since Plaintiff's claim was based on the District's failure to properly accommodate "her need to make up work ... so that she can remain in her regular instructional classes" and not based on a request for "special education services under the IDEA"
Summary of this case from Boggs v. Krum Indep. Sch. Dist.Opinion
Case No. CV 13-06050 DDP (PJWx)
03-10-2014
S.L., a minor, by and through her guardian ad litem, MARY L., Plaintiff, v. DOWNEY UNIFIED SCHOOL DISTRICT, Defendants.
ORDER DENYING DEFENDANT'S MOTION
TO DISMISS COMPLAINT AND DENYING
DEFENDANT'S MOTION TO STRIKE
PORTIONS OF THE COMPLAINT
[Dkt. Nos. 17, 18]
Presently before the Court are Defendant's Motion to Dismiss Complaint (Docket No. 17) and Defendant's Motion to Strike Portions of the Complaint (Docket No. 18). For the reasons stated in this order, the Motions are DENIED.
I. Factual Background
Plaintiff S.L. ("Plaintiff") is a minor, born in the year 1997. (Complaint ¶ 10.) At all times relevant to this litigation, Plaintiff was a student enrolled in schools in the Downey Unified School District ("District" or "Defendant"). From fall 2008 to spring 2011, Plaintiff attended East Middle School within the District. (Id. ¶ 27.) Since fall 2011, Plaintiff has attended Downey High School. (Id. ¶ 34.)
In December 2009, Plaintiff received treatment for the first time for an epileptic seizure that she suffered at home. (Id. ¶ 28.) Plaintiff's mother notified a counselor at East Middle School in or around March 2010 that Plaintiff was experiencing epileptic seizures. (Id. ¶ 29.)
The District had in place "General Guidelines" it adopted to "recognize, monitor and assist S.L. with seizure disorder," which included actions and precautionary measures that District staff should take in the event Plaintiff experienced a seizure at school. (Id. ¶ 30.) Various different "Seizure Plans," signed by Plaintiff's physician, were provided to the District. (Id. ¶¶ 31, 32.)
Plaintiff's complaint contains allegations regarding numerous incidents at school involving seizures:
(A) Within the first month of high school, in September 2011, Plaintiff had a seizure in class. (Id. ¶ 37.) The teacher did not know what to do and did not follow the seizure plan then in place. (Id.)
(B) Plaintiff had another seizure on September 26, 2011 while in English class, and again, the teacher did not help her or implement the seizure plan. (Id. ¶ 39.) Instead, Plaintiff's friends helped her out of class and called her mother. (Id.)
(C) At Jazz Choir practice on February 23, 2012, no adults were present when Plaintiff had a seizure and had to be tended to by her classmates. (Id. ¶ 40.)
(D) On March 26, 2012, Plaintiff's driver's education teacher refused to let her take a classmate with her to the restroom, even after she explained that she needed someone with her in case she had a seizure. (Id. ¶ 41.)
(E) On April 2, 2012, Plaintiff had a seizure in driver's education. (Id. ¶ 42.) Instead of following the seizure plan, the teacher called 911, even though the seizure plan states that an ambulance need not be called for seizures lasting less than 5 minutes. (Id.)
(F) On April 23, 2012, Plaintiff began seeing double in P.E. class. (Id. ¶ 44.) The teacher did not implement the seizure plan; Plaintiff's classmates took her to the nurse's office, but the nurse was not there. (Id.)
(G) On May 7, 2012, Plaintiff had a seizure during Jazz Choir. (Id. ¶ 46.) The teacher was not present. (Id.) One of Plaintiff's classmates called Plaintiff's father, who arrived to find Plaintiff still in class. (Id.) The seizure plan was not implemented. (Id.)
(H) On May 17, 2012, Plaintiff had a seizure and fell face-first on the ground. (Id. ¶ 47.) District staff did not implement the seizure plan, but instead called an ambulance, even though the seizure lasted less than 5 minutes. (Id.)
(I) On May 23, 2012, Plaintiff had a seizure in Jazz Choir. (Id. ¶ 49.) District staff did not follow the seizure plan, and the Jazz Choir teacher recommended to Plaintiff's mother on the phone that they should call 911, even though the seizure lasted less than 5 minutes. (Id.) Plaintiff's mother informed the teacher that calling 911 was not necessary and
that Plaintiff should be turned on her side until the seizure stopped. (Id.) Nevertheless, Plaintiff was transported to the hospital. (Id.) During the same phone call, the Vice Principal of Downey High School told Plaintiff's mother that Plaintiff's seizures were too much for the school to handle and that her parents should just keep her at home. (Id. ¶ 50.)
Shortly after the May 23, 2012 incident, Plaintiff's parents met with a school counselor. (Id. ¶ 53.) The counselor suggested that Plaintiff skip school every other day, in the belief that this would somehow decrease the likelihood that Plaintiff would have a seizure at school. (Id.) Plaintiff's parents opposed this arrangement. (Id.) District staff continued to pressure Plaintiff's parents to reduce Plaintiff's attendance at school, which resulted in Plaintiff coming to school two hours late each morning for about one month of the 2011-2012 school year, causing her to miss two hours of instruction each day. (Id. ¶ 54.) Despite this arrangement, the District refused to allow Plaintiff any additional time to complete class assignments and homework or to take tests she missed. (Id. ¶ 55.) This refusal was in contravention of District policy regarding absence due to illness. (Id. ¶ 57.)
During the 2011-2012 school year, Plaintiff's mother repeatedly asked the District to develop a § 504 plan for Plaintiff. (Id. ¶ 58.) On June 8, 2012, the District finally found Plaintiff eligible for § 504 accommodations because her "medical condition impedes daily functioning and access to a free and appropriate public education." (Id. ¶ 59.) However, Plaintiff alleges that the § 504 plan was inadequate, as it failed to provide necessary accommodations for making up missed work and also failed to provide any training to District staff regarding Plaintiff's disability or how to assist in the event of a seizure. (Id.)
In her ninth grade year at Downey High School, Plaintiff was admitted to Jazz Choir. (Id. ¶ 36.) She was told that once she was admitted, there would be no more auditions and that she could continue in Jazz Choir throughout high school. (Id.) She performed in concerts and traveled with the team to participate in competitions throughout her ninth grade year. (Id. ¶¶ 61-62.) She received high grades in the class. (Id. ¶ 62.) Ten days after Plaintiff had her last seizure in Jazz Choir class, the rules were changed for participation in Jazz Choir, requiring members to re-audition for membership the next year. (Id. ¶ 65.) Everyone who re-auditioned was accepted for the 2012-2013 school year except for Plaintiff and one other student. (Id.) According to the student judges, Plaintiff's audition performance was superior to other students who were accepted, but the Jazz Choir teacher said he wanted "something else" and did not accept Plaintiff. (Id. ¶ 66.) Plaintiff alleges that she was excluded from Jazz Choir because of her disability and the District's failure to properly accommodate it. (Id. ¶ 68.) Plaintiff tried out for Jazz Choir again at the end of the 2012-2013 school year, with the same result - most of the student judges voted to put Plaintiff back on the team, but the Jazz Choir teacher did not accept her onto the team. (Id. ¶ 80.)
Plaintiff attended summer school classes at Downey High School during the summer of 2012. (Id. ¶ 70.) Plaintiff's 17-year-old brother attended class with her because Plaintiff alleges that the District did not provide the support Plaintiff required. (Id.) On or about July 5, 2012, Plaintiff wrote a letter to the District requesting § 504 accommodations. (Id. ¶ 71.) A physician letter was delivered to the District on or about July 12, 2012, clarifying Plaintiff's physician's recommendations for care during and after a seizure. (Id.) Plaintiff had a seizure in summer school on July 17, 2012, during which her brother assisted rather than her teacher; Plaintiff had at least two additional seizures during summer school and was attended to by her brother each time. (Id. ¶¶ 72, 74.)
On or about July 23, 2012, the District revised Plaintiff's § 504 plan to include a one-to-one aide to follow her around campus. (Id. ¶ 73.) This accommodation was implemented in fall 2012. (Id. ¶ 76.) Plaintiff alleges that during the 2012-2013 school year, she had three different aides, none of whom were trained to handle her seizures. (Id. ¶ 77.) The District did not implement the proper seizure plans during Plaintiff's seizures at school during the 2012-2013 school year. (Id. ¶ 78.) Plaintiff alleges that she had an increase of seizures during summer 2013 and fears that she will continue to face discrimination by the District. (Id. ¶ 81.)
II. Procedural Background
On July 11, 2012, Plaintiff filed a Compliance Complaint against the District, and amended that complaint on July 13, 2012. (Id. ¶ 14.) On August 16, 2012, Plaintiff filed a Request for Mediation and Due Process Hearing with the Special Education Division of the California Office of Administrative Hearings ("OAH"). (Id. ¶ 15.) Plaintiff alleged that the District had failed to timely identify and assess Plaintiff for special education services, thereby denying her a free, appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"). (Id.) Plaintiff also alleged that the District had discriminated against her solely on the basis of her disability and denied her the benefits of participation in public education, in violation of § 504 of the Rehabilitation Act and the Americans with Disabilities Act. (Id.)
In response to the Due Process Complaint, the District requested and received written consent of Plaintiff's parents to conduct an assessment of Plaintiff. (Id. ¶ 16.) After conducting the assessment, the District concluded that Plaintiff did not meet the requirements for a Specific Learning Disability. (Id.) On October 10, 2013, an IEP meeting was held for Plaintiff, at which time the district concluded that Plaintiff was not eligible for special education and related services under the IDEA. (Id. ¶ 17.) On November 13, 2013, another IEP meeting was help, with the same result. (Id. ¶ 18.) The District concluded that Plaintiff's needs could be met through a § 504 plan. (Id.) On November 27, 2012, Plaintiff dismissed the Due Process Complaint based on the District's finding that Plaintiff was not eligible for special education services and because Plaintiff believed that this meant that the OAH did not have jurisdiction to adjudicate the claims. (Id. ¶ 19.)
Plaintiff then filed this action, asserting the following claims: (1) discrimination under Section 504 of the Rehabilitation Act for failure to provide access to programs and activities; (2) discrimination under the Americans with Disabilities Act ("ADA") for failure to provide access to programs and activities; (3) discrimination under Section 504 for denial of FAPE; (4) violation of California's Unruh Civil Rights Act based on discrimination; and (5) discrimination under Cal. Gov. Code § 11135.
Defendant now moves to dismiss the complaint because Defendant claims that Plaintiff failed to exhaust administrative remedies as required by the IDEA. Defendant also argues in the alternative that Plaintiff has failed to allege sufficient facts to state a claim under Rule 12(b)(6). Defendant then argues that because all of Plaintiff's federal claims should be dismissed for failure to exhaust and/or failure to state a claim, Plaintiff's remaining state law claims should also be dismissed. Defendant also brings a motion to strike portions of Plaintiff's complaint.
III. Legal Standard
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted).
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
IV. Discussion
A. IDEA Exhaustion Requirement
"The IDEA was enacted to protect children with disabilities and their parents by requiring participating states to provide 'a free appropriate public education [("FAPE")] that emphasizes special education and related services designed to meet [disabled students'] unique needs and prepare them for further education, employment, and independent living.'" Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871 (9th Cir. 2011) (quoting 20 U.S.C. § 1400(d)(1)(A)). The IDEA provides extensive procedural protections, which must be exhausted before filing a case in the courts. Id. The IDEA's exhaustion requirement provides:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], or other Federal laws protecting the rights of children20 U.S.C. § 1415(l).
with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
The exhaustion requirement is limited by the language of the statute and recent case law. "[T]he IDEA's exhaustion provision applies only in cases where the relief sought by a plaintiff in the pleadings is available under the IDEA. Non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement, even if they allege injuries that could conceivably have been redressed by the IDEA." Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871 (9th Cir. 2011). Exhaustion is required if a disabled student (1) seeks an IDEA remedy or functional equivalent; (2) seeks prospective injunctive relief to alter an IEP or the educational placement; or (3) seeks to enforce rights that arise as a result of a denial of FAPE premised upon a violation of the IDEA (whether pled as an IDEA or a Section 504 claim). Id. at 874.
The Court notes that Plaintiff takes issue with Defendant's characterization of the exhaustion requirement as a jurisdictional requirement under Payne. Plaintiff is correct that under current Ninth Circuit law, the IDEA exhaustion requirement is no longer considered a jurisdictional requirement, but is instead a "claims processing requirement" or an affirmative defense. However, under either scheme it is appropriate for the Court to dismiss the action on Defendant's motion. Therefore, the proper characterization of the exhaustion requirement is irrelevant to the Court's analysis.
Plaintiff makes two interrelated arguments to attempt to avoid the exhaustion requirements of the IDEA. First, Plaintiff argues that her claims do not seek relief that is available under the IDEA by framing her claims as discrimination claims. Second, Plaintiff argues that Defendant should be judicially estopped from arguing that Plaintiff failed to exhaust administrative remedies because Defendant previously took the position that Plaintiff was ineligible for special education under the IDEA.
Generally speaking, the distinction between the IDEA, on the one hand, and the ADA and § 504, on the other, is that "[t]he ADA and § 504 provide relief from intentional discrimination whereas the IDEA provides relief from inappropriate placement decisions, regardless of discrimination." T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 2012 WL 1611021, at *5 (S.D. Cal. 2012). However, there is much overlap between claims that can be brought under the various statutes.
Plaintiff's claims in this case are for: (1) discrimination under Section 504 for failure to provide access to programs and activities; (2) discrimination under the ADA for failure to provide access to programs and activities; (3) discrimination under Section 504 for denial of FAPE; (4) violation of California's Unruh Civil Rights Act based on discrimination; and (5) discrimination under Cal. Gov. Code § 11135. Plaintiff requests the following relief: (1) damages, including statutory damages; (2) permanent injunctive relief enjoining Defendant from discriminating in the future; (3) reasonable attorney's fees and costs; and (4) compensatory education.
Cases interpreting Payne, or interpreting the IDEA exhaustion language in other circuits, generally hold that claims like Plaintiff's claims in this case are subject to the exhaustion requirement because they seek "relief available" under the IDEA. For example, a Michigan district court found that a student's claims that the school failed to accommodate her disability by not allowing her to bring a service dog with her to school were subject to the exhaustion requirement. EF ex rel. Fry v. Napoleon Community Schools, 2014 WL 106624, at *5 (E.D. Mich. 2014). Plaintiff strongly disclaimed any denial of FAPE, instead premising her claims on the ADA and § 504. Id. The court concluded that such an accommodation would "implicate issues relating to EF's IEP," and therefore that the IDEA exhaustion requirement was triggered by the claims. Id.
Similarly, in a Missouri case, Plaintiff argued that his discrimination claims were "wholly unrelated to the IEP process under the IDEA." A.L.A. ex rel. Liberty v. Avilla R-XIII Sch. Dist., 2011 WL 6093301, at * 5 (W.D. Missouri 2011). Plaintiff sought monetary damages and "compensatory education" due to his "not [being] provided with the same opportunity as his non-disabled peers to receive a free appropriate, public education." Id. The court found that relief Plaintiff sought is exactly the kind of relief available under IDEA. Id. at 6. See also J.B. ex rel. Bailey v. Avilla R-XIII Sch. Dist., 2011 WL 6887863 (W.D. Missouri 2011) (same); D.C. ex rel. T.C. v. Oakdale Joint Unified Sch. Dist., 2011 WL 5828187 (E.D. Cal. 2011) (finding exhaustion required where plaintiff's claims alleged that he was "provided with an unequal education compared with his non-disabled peers, in that they were not subjected to and did not have their education adversely impacted by this treatment from their District staff"); Cayla R. v. Morgan Hill Unified Sch. Dist., 2012 WL 1038664 (N.D. Cal. 2012); B.K. ex rel. Keller v. Lake Oswego Sch. Dist., 2012 WL 844222 (D. Ore. 2012).
On the other hand, there are situations where courts have found that exhaustion was not required because the plaintiff was not seeking "relief available" under the IDEA. These are cases in which a special education student brings an action under § 504 or the ADA based on harassment or infliction of physical or emotional pain, where the plaintiff seeks monetary damages for "physical pain and anguish, physical impairment, and medical and mental health expenses." M.J. v. Marion Indep. Sch. Dist., 2013 WL 1882330, at *12 (W.D. Texas 2013). Plaintiff's claims clearly do not fall into this category of ADA and § 504 claims normally excluded from the IDEA exhaustion requirement. Her claims rely on a denial of FAPE and a failure to accommodate her disability to allow her to access educational benefits to the same extent as other students, and therefore would ordinarily be subject to the exhaustion requirement.
However, there is an important distinction between all of the cases cited and discussed above and Plaintiff's case: all of those plaintiffs had been found eligible for special education services under the IDEA and had IEPs in place. Therefore, each of those plaintiffs could have sought relief under the IDEA that was functionally equivalent to the relief they were seeking under the other statutes.
In contrast, one court in this district has addressed a situation that is highly analogous to the instant case. In D.R. ex. Rel. Courtney R. v. Antelope Valley Union High Sch. Dist., 746 F. Supp. 2d 1132 (C.D. Cal. 2010), the plaintiff was a student with Charcot-Marie-Tooth Disease, which causes reduced hand and leg strength and required her to use an elevator to access classrooms on the second floor of her school. Even though the court found that the plaintiff's condition impaired her academic performance, including causing her to miss instruction time waiting for elevator assistance, the court determined that she did not qualify for services under the IDEA, which involves "specially designed instruction" required to meet student needs. Id. at 1142. Because the plaintiff didn't need any instructional modifications, she was ineligible for IDEA services. Id. at 1145. Further, the plaintiff's school district had "never considered plaintiff eligible under IDEA." Id. at 1144. The court concluded that this excused the IDEA exhaustion requirement, since there was no "relief available" for the plaintiff under the IDEA. Id. at 1145.
The facts of the instant case are closely analogous to D.R. Here, Plaintiff's disability does not appear to require instructional modifications, and Plaintiff does not seek any such modifications. Instead, Plaintiff's academic performance has suffered because she has had to miss class due to her seizures, and she alleges that the District has not properly accommodated her need to make up work nor administered proper treatment so that she can remain in her regular instructional classes. In addition, the District has determined on multiple occasions that Plaintiff does not qualify for special education services under the IDEA. Therefore, Plaintiff does not seek "relief available" under the IDEA because she is ineligible to seek relief under that statute. Therefore, the Court finds that administrative exhaustion of Plaintiff's claims was not required once the District determined that Plaintiff was ineligible for special education services under the IDEA.
While the Court need not reach Plaintiff's judicial estoppel argument, the Court notes that the purpose of the administrative exhaustion requirement is to give state and local educational agencies "the first opportunity to correct shortcomings in their educational programs for disabled children" and "to prevent courts from acting as ersatz school administrators and making what should be expert determinations about the best way to educate disabled students." Payne, at 875-76. The prior administrative proceeding gave the District just such an opportunity. However, the District persuaded Plaintiff to dismiss her request for a due process hearing by taking the position that she was not entitled to such a hearing because she did not qualify for services under the IDEA; in so doing, the District chose to pass up any opportunity it might have had to address Plaintiff's claims at the state and local level. While the underlying facts of this case may not be sufficient to justify application of the doctrine of judicial estoppel, the public policy underlying the administrative process has been sufficiently served here.
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B. Sufficiency of the Pleadings
Defendant argues that Plaintiff's complaint should be dismissed because she fails to plead sufficient facts to support her claims. A prima facie claim for discrimination under § 504 or the ADA requires pleading facts that show (1) the plaintiff is disabled under the meaning of § 504 or the ADA; (2) the plaintiff was "otherwise qualified" for the benefits she was denied; (3) the plaintiff was intentionally discriminated against on the basis of her disability (for ADA claims) or solely on the basis of her disability (for § 504 claims); and (4) the entity is a public entity (for ADA claims) or receives federal financial assistance (for § 504 claims). Zukle v. Regents of the Univ. of California, 166 F.3d 1041, 1045 (9th Cir. 1999). Defendant does not dispute that Plaintiff has a disability within the meaning of the statutes or that the District is a public entity and receives federal financial assistance. Defendant argues that Plaintiff has not pled sufficient facts to support the second and third elements of her discrimination claims.
In order to show that Plaintiff is "otherwise qualified" to participate in the educational program, she must show that she could "meet the essential eligibility requirements of the school, with or without reasonable accommodation." Id. In this case, Plaintiff is "otherwise qualified" to participate in the District's educational program because she is a student residing within the boundaries of the District. Upon reply, Defendant does not refute Plaintiff's argument that this fact alone establishes her eligibility to participate in the educational program because she meets the "essential eligibility requirements" for attendance at a public high school within the District. Therefore, the Court finds that the second element of Plaintiff's discrimination claims has been adequately pled.
With respect to the third element, Defendant argues that Plaintiff has not pled sufficient facts to support her claim that she was "denied benefits," nor that such denial was the result of "intentional discrimination." The Court finds that Plaintiff has pled sufficient facts to support her claim that she was denied benefits. She was excluded from class time, not allowed to make up work or otherwise compensate for the missed class time, and precluded from participation in Jazz Choir. See D.R., 746 F. Supp. 2d at 1146-47 (finding that the plaintiff was denied benefits because she was "excluded from class time, student club meetings, and school functions" as a result of her disability). Taking the facts in the complaint in the light most favorable to Plaintiff, these actions denied Plaintiff the benefits of a full public education.
In order to show that Plaintiff was "intentionally discriminated against" under the ADA or § 504, Plaintiff must allege sufficient facts to show that Defendant acted with deliberate indifference. In order to establish that Defendant was deliberately indifferent, Plaintiff must show that (1) Defendant had knowledge that a harm to a federally protected right is substantially likely and (2) Defendant failed to act upon that likelihood. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002).
In this case, the District was on notice that Plaintiff needed accommodations in order to obtain the benefits of her public education. Plaintiff and her parents repeatedly provided Plaintiff's school with physician-approved seizure plans and spoke with multiple counselors, teachers, and the vice principal regarding Plaintiff's needs. Furthermore, Plaintiff had multiple seizures while in school, such that it should have been obvious to Defendant that she required accommodation for her seizure disorder. See Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) ("When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious ...), the public entity is on notice that an accommodation is required."). Therefore, Plaintiff has pled sufficient facts to support a finding that Defendant was on notice of Plaintiff's need for accommodation.
The Court also finds that Plaintiff has pled sufficient facts to support Plaintiff's allegation that the District did not properly act on the likelihood of harm by offering Plaintiff reasonable accommodations. Taking Plaintiff's pleadings as true, the District's suggestions with regard to accommodation of Plaintiff's seizures did not do enough to address the potential harm. The District's suggestions that Plaintiff remain at home for a portion of the school day, or for the entire day every other day, do not constitute sufficient action to defeat Plaintiff's claim because Plaintiff alleges that such accommodations were unreasonable and did not address her needs adequately. Further, Plaintiff alleges that the aides she was provided were not properly trained to handle her seizures. Plaintiff and her parents continued to make clear to the District that the accommodations the District was offering were not sufficient and that other, potentially reasonable accommodations would better meet Plaintiff's needs. Therefore, Plaintiff has pled sufficient facts to support her claims under § 504 and the ADA.
With regard to Plaintiff's state law claim under the Unruh Civil Rights Act, Defendant argues that Plaintiff's complaint is insufficient because Plaintiff has failed to sufficiently allege that she was harmed. However, "[a] violation of the right of any individual under the federal Americans with Disabilities Act ... shall also constitute a violation of [the Unruh Act]." Cal. Civ. Code § 51(f). Further, Plaintiff plainly did allege educational harm stemming from Defendant's failure to accommodate her seizures properly. She missed school, was unable to make up assignments, and was excluded from the Jazz Choir, all of which are cognizable harms. See D.R., 746 F. Supp. 2d at 1145 (finding that the plaintiff would suffer irreparable harm from her continued exclusion from classes and inability to participate in extracurricular activities). Therefore, Plaintiff's pleading is sufficient to state a plausible claim for violation of the Unruh Civil Rights Act.
Finally, Defendant's only argument as to why Plaintiff's fifth claim, for violation of Cal. Gov. Code § 11135, should be dismissed is that the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims after dismissing her federal claims. As Plaintiff's federal claims survive, this argument is unavailing.
Therefore, the Court DENIES Defendant's Motion to Dismiss Plaintiff's complaint in its entirety.
C. Motion to Strike
Defendant also filed a motion to strike portions of Plaintiff's complaint under Rule 12(f). (Docket No. 18.) The portions of the complaint that Defendant seeks to strike provide background medical and statistical information about epilepsy, types of seizures, and proper seizure treatment. Defendant argues that such allegations have no bearing on the case and are not pertinent to the facts alleged in Plaintiff's complaint.
Rule 12(f) of the Federal Rules of Civil Procedure states that the "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pled. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010)(quotation and citation omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id. Under Rule 12(f), the court has the discretion to strike a pleading or portions thereof. MGA Entm't, Inc. v. Mattel, Inc., No. CV 05-2727 NM(RNBx), 2005 WL 5894689, at *4 (C.D. Cal. 2005).
"A motion to strike under Rule 12(f) should be denied unless it can be shown that no evidence in support of the allegation would be admissible, or those issues could have no possible bearing on the issues in the litigation." Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F. Supp.2d 1088, 1099 (E.D. Cal. 2001). Courts must view the pleading under attack in the light most favorable to the pleader, treating as admitted all material facts alleged, and all reasonable presumptions that can be drawn therefrom. California v. United States, 512 F. Supp. 36, 39 (N.D. Cal. 1981). Background information need not be stricken because it provides the court "with a fuller understanding of the dispute." Kaiser Found. Hosp. v. California Nurses Ass'n, No. 11-5588 SC, 2012 WL 440634, at *4 (N.D. Cal. 2012).
The Court is convinced that the background facts that Plaintiff includes in her complaint are useful for a fuller understanding of the dispute. The Court is not an expert in medical conditions, and Plaintiff's pleadings assist the Court in understanding why Defendant's actions were allegedly improper. Such facts may also be relevant to an assessment of whether Defendant's offered accommodations were medically reasonable. Further,
Defendant will not be prejudiced by allowing the background information to remain in the complaint. The veracity of such purported factual statements can be challenged by evidence at a later stage in the proceedings. Therefore, the Court declines to strike any portion of Plaintiff's complaint.
V. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss is DENIED and Defendant's Motion to Strike is DENIED. IT IS SO ORDERED.
DEAN D. PREGERSON
United States District Judge