Opinion
No. CV-F-06-066 REC/DLB.
May 1, 2006
On April 24, 2006, the court heard defendants' motion to dismiss.
Upon due consideration of the arguments of the parties and the record herein, the court grants the motion to dismiss with regard to the allegations in Paragraph 44(B) of the Complaint and otherwise denies the motion to dismiss for the reasons set forth herein.
On January 18, 2006, Armando Sandoval, a minor, by his guardian, Jose Sandoval, filed a Complaint for Damages and Declaratory and Injunctive Relief. Named as defendants are the Merced Union High School District and various employees of the School District. The Complaint alleges that
Plaintiff's pleadings and briefs in this action are in a very small font, making them difficult to read. Unless there is a technical reason for the use of this font, plaintiff's counsel is requested to increase its size to save the court and staff from serious eyestrain.
While attending Atwater High School Plaintiff experienced pervasive, severe and unwelcome harassment based on his gender and sexual orientation. Plaintiff's classmates harassed him physically and verbally on a near daily basis. Plaintiff was continuously subjected to epithets such as `faggot,' `fag,' `queer,' `homo,' and `cocksucker.' Plaintiff's classmates threatened to assault, injure, and kill Plaintiff because of his gender and sexual orientation. On several occasions Plaintiff was subjected to actual assault, battery, and physical violence on school grounds during and after school. Defendants, who had the authority to institute corrective measures, were aware of the harassment, yet repeatedly and intentionally failed to take appropriate or necessary measures to stop the abuse suffered by Plaintiff.
The Complaint alleges that plaintiff "has filed an administrative claim for damages under the California Tort Claims Act with the MUHSD." Paragraphs 13 through 45 allege the facts common to all causes of action. The Eleventh Cause of Action is captioned "Cal.Education Code §§ 200, 201, 212.5, 220, 230, 230.5, 231.5 and 233.5 Sex Discrimination Against All Defendants."
Although the Eleventh Cause of Action refers to Education Code § 230.5, there is no such provision in West's Annotated California Codes.
Defendants now move to dismiss portions of the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. Specifically, defendants move to dismiss the Eleventh Cause of Action on the ground that the provisions of the California Education Code upon which the cause of action is based do not provide a private right of action. In addition, defendants move to dismiss the Seventh, Eighth, Ninth, Tenth and Eleventh Causes of Action and/or specific factual allegations relevant to those causes of action on the ground that plaintiff failed to comply with the claim requirement of the California Government Tort Claim Act.
A. Eleventh Cause of Action — Private Right of Action.
As noted, the Eleventh Cause of Action alleges sex discrimination in violation of California Education Code §§ 200, 201, 212.5, 220, 230, 231.5 and 233.5.
As noted above, although the Eleventh Cause of Action refers to Education Code § 230.5, there is no such provision in West's Annotated California Codes.
In arguing that the above-cited provisions of the California Education Code do not provide a private right of action, defendants refer the court to Nicole M. v. Martinez Unified School District, 964 F.Supp. 1369 (N.D.Cal. 1997).
In Nicole M., Judge Patel addressed the defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6). Plaintiff had alleged that, beginning in 1991 and continuing through 1993 when she transferred to another school, male students repeatedly sexually harassed her by unwanted verbal comments regarding plaintiff's breasts and figure, and on one occasion involved a male student touching plaintiff's breast during class. On January 4, 1993, plaintiff's mother told the principal, Guzman, that plaintiff was being sexually harassed at school and gave Guzman the names of the boys who had harassed plaintiff and the names of female students who had witnessed the harassment. Sometime later, Guzman also learned that plaintiff had been sexually assaulted in one of her classes. Guzman suspended the boy who had sexually assaulted plaintiff for one day. Guzman took other actions in response to the reported sexual harassment that plaintiff alleged was inadequate and counter-productive. Guzman spoke with the female students who had witnessed the sexual harassment, promising to keep the meeting confidential. However, Guzman broke that promise and others at the school, including the harassers, discovered that plaintiff had reported the harassment. Guzman moved plaintiff into new classes so that she could avoid the worst harassers. However, when the worst harasser was moved into one of plaintiff's new classes, plaintiff's complaints were unavailing. In early February 1993, plaintiff's mother told Guzman and the superintendent of the school district, Crocker, that at least one boy continued to sexually harass plaintiff. Because plaintiff no longer felt safe at the school, she transferred to a school in another district in mid-February 1993. In resolving the motion to dismiss, Judge Patel ruled in pertinent part:
Plaintiff's sixth claim charges MUSD and Crocker with violating the prohibition against sexual harassment in educational institutions as provided by California Education Code sections 200, 212.5, 212.6, 220 and 230. Section 220 provides: `No person shall be subjected to discrimination on the basis of sex in any program or activity conducted by an educational institution.' (West 1994) Section 230 defines sex discrimination to include, inter alia, harassment or other discrimination among persons, including students, on the basis of sex . . . MUSD and Crocker argue that sections 220, 212.5, 212.6, 220 and 230 do not provide a private right of action.
Neither of the parties nor the court has found any authority explicitly confirming or denying the existence of a private right of action under the sections relied upon by plaintiff. It seems relatively well-established under California law that `[t]o imply a private right of action, the court must determine that a private right of action is needed to ensure the effectiveness of the statute.' Arriaga v. Loma Linda Univ., 10 Cal.App. 4th 1556, 1564 . . . (1992); see also Middlesex Ins. Co. v. Mann, 124 Cal.App.3d 558, 570 . . . (1981). Here, plaintiff has a private right of action under Title IX, section 1983 and the Unruh Civil Rights Act. As a result, a private right of action need not be inferred under the California Education Code sections cited by plaintiff. Accordingly, defendants' motion to dismiss plaintiff's sixth cause of action is granted.964 F.Supp. at 1390.
Noting that the Complaint before the court alleges causes of action under Title IX, 42 U.S.C. § 1983, and the Unruh Act, defendants argue that the court should dismiss the Eleventh Cause of Action.
The court notes Nicole M. was based on the 1994 version of the Education Code. The court further notes that the Education Code was amended in 1998 by A.B. 499. In relevant part, A.B. 499 amended Education Code § 200. Prior to its amendment in 1998, Section 200 provided:
It is the policy of the State of California to afford all persons, regardless of their sex, equal rights and opportunities in the educational institutions of the state. The purpose of this chapter is to prohibit acts which are contrary to that policy and to provide remedies therefor.
A.B. 499 amended Section 200 to provide:
It is the policy of the State of California to afford all persons in public schools, regardless of their sex, ethnic group identification, race, national origin, religion, or mental or physical disability, equal rights and opportunities in the educational institutions of the state. The purpose of this chapter is to prohibit acts which are contrary to that policy and to provide remedies therefor.
Prior to the 1998 amendments, Education Code § 45 provided:
(a) All pupils have the right to participate fully in the educational process, free from discrimination and harassment.
(b) California's public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity.
(c) Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution.
(d) There is an urgent need to prevent and respond to acts of hate violence and bias-related incidents that are occurring at an increasing rate in California's public schools.
(e) There is an urgent need to teach and inform pupils in the public schools about these rights, as guaranteed by the federal and state constitutions, in order to increase pupils' awareness and understanding of their rights and the rights of others, with the intention of promoting tolerance and sensitivity in public schools and in society as a means of responding to potential harassment and hate violence.
(f) It is the intent of the Legislature that each public school undertake educational activities to counter discriminatory incidents on school grounds and within constitutional bounds, to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.
A.B. 499 renumbered Section 45 as Section 201 and amended Section 201 to include subparagraph (g):
It is the intent of the Legislature that this chapter shall be interpreted as consistent with Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code, Title VI of the federal Civil Rights Act of 1964 ( 42 U.S.C. Sec. 1981, et seq.), Title IX of the Education Amendments of 1972 ( 20 U.S.C. Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of 1973 ( 29 U.S.C. Section 794(a)), the federal Individuals with Disabilities Education Act ( 20 U.S.C. Sec. 1701, et seq.), the federal Equal Educational Opportunities Act ( 20 U.S.C. Sec. 1701 et seq.), the Unruh Civil Rights Act (Secs. 51 t0 53, incl., Civ. C.), and the Fair Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900), Div. 3, Gov. C.), except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes.
The Legislative Counsel's Digest for A.B. 499 states in pertinent part: "This bill would specify that the provisions on discrimination may be enforced through a civil action."
Because Nicole M.'s holding was based on the version of the relevant Education Code provisions in effect in 1994 and because the subsequent amendments to the Education Code made by A.B. 499 and the legislative history of those amendments indicate that the Legislature intended that the provisions could be enforced through a civil action, the court concludes that defendants' reliance on Nicole M. is misplaced and that Nicole M. is no longer authoritative. The court further concludes that the Legislature concluded that a private right of action was needed to implement the statutory scheme under the Middlesex test. In order to imply a private right of action under Middlesex, a court must determine: (1) the plaintiff belongs to a class of persons the statute is intended to protect; (2) a private remedy will appropriately further the purpose of the litigation; and (3) such a remedy appears to be needed to assure the effectiveness of the statute. See Jacobellis v. State Farm Fire Cas. Co., 120 F.3d 171, 174 (9th Cir. 1997), citing Middlesex Ins. Co. v. Mann, 124 Cal.App.3rd 558, 570 (1981). Here, it cannot be doubted that plaintiff belongs to the class of persons the California Education Code provisions are intended to protect and that a private remedy will appropriately further the purpose of the litigation. Given the statement in the Legislative Counsel's Digest and in Section 201(g), the court concludes that the Legislature believed that such a remedy is needed to assure the effectiveness of the statutory scheme.
Accordingly, defendants' motion to dismiss the Eleventh Cause of Action is denied.
B. Compliance with California Government Tort Claims Act.
Defendants contend that the factual allegations set forth in paragraphs 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 28 29, 31, 33, 34, 36, 40 and 44(B) should be dismissed because these allegations do not appear in plaintiff's claim under the California Government Tort Claims Act.
In resolving this aspect of the motion to dismiss, the court takes judicial notice of plaintiff's tort claim filed on November 22, 2005, wherein it is stated in pertinent part:
4. The circumstances giving rise to this claim are as follows:
Claimant Armando Sandoval is an openly gay high school student at Atwater High School. From September 2004 to the present Claimant Sandoval has been subjected to harassment by students in the form of derogatory epithets such as `fag' `fagot' [sic] `homo' `cocksucker' and `queer.' Although school officials were aware of the harassment Claimant Sandoval was undergoing they took no reasonable actions to stop the harassment.
Merced Unified School District's failure to discipline Claimant's Sandoval's harassers led to one of them assaulting Claimant Sandoval with a knife outside the school cafeteria on January 31, 2005.
Claimant Sandoval has also received notes threatening his life in his locker. Once again no reasonable action was taken to investigate the matter, discipline Claimant Sandoval's harassers, or to assure Claimant Sandoval's safety.
On or about September 13, 2005 a student harassed, spit, and attacked Claimant Armando Sandoval at Atwater High School and when Armando defended himself, the Merced Unified School District's employees responded by suspending Armando Sandoval from Atwater High School.
Merced Unified School District's failure to discipline Claimant Sandoval's harassers has led to them spitting on him and in multiple batterys against Claimant Sandoval's person.
Merced Unified School District employees have themselves harassed, discriminated and retaliated against Claimant Sandoval by preventing him from attending classes in which he was enrolled, suspending Claimant Sandoval without justification, taking disciplinary actions against Claimant Sandoval which was [sic] unwarranted, failing to allow Claimant Sandoval the same privileges as other students, unfairly seeking to have Claimant Sandoval evaluated as being somehow `learning impaired,' falsely and fraudulently stating that Claimant Armando Sandoval's parents had consented to place Armando Sandoval in independent study, intimidating Claimant Sandoval, and other actions.
Despite the fact that Merced Unified School District's own internal investigation found that Claimant's prior complaint to Merced Unified School District was substantially justified it failed to take any remedial actions specified in its own report.
This tort claim names the employees who caused these injuries to plaintiff as Kelly J. Bentz, Sylvia Smith, Kuljit Malhi, Linda Lucas, Paul Shirlock, Ralph Calderon, Robert Fore, Scott Clinton, Brian Ballenger, Jordan Bell, Andy Miller, Kenneth Rhoades, Jeffrey Blackwell, all school board members, and possibly others to be identified. Plaintiff's tort claim filed on November 22, 2005 was denied. Thereafter, the School District granted plaintiff's request to file a late claim. Plaintiff filed the second tort claim on December 27, 2005. Paragraph 4 of that tort claim and the names of the public employees are identical in all respects to the one filed on November 22, 2005, except that this later tort claim describes events from September 2004 "to the present", i.e., until December 27, 2005. This second tort claim also was denied.
The allegations in the Complaint that defendants move to dismiss as not being included in the tort claims are as follows:
14. In September 2004 Vice Principal Malhi and campus liaison Steven Menezes searched Plaintiff's backpack.
15. On or about November 2, 2004 Plaintiff was sent to the `responsibility center' for allegedly disrupting class. In fact, Plaintiff had not been disrupting class but had been sent to the center due to his sexual orientation.
16. On or about November 4, 2004 Plaintiff was told by a MUHSD counselor that, `One more screw-up and you're in IHS.' IHS is an independent study program and would result in Plaintiff not attending Atwater High School.
17. Early in the Spring Semester of 2005 Atwater High School male students in Plaintiff's drama class told Plaintiff that, `being gay is sick.' After Plaintiff complained of this conduct Defendant failed to investigate it.
18. In the Spring Semester of 2005 Plaintiff was unable to use the regular restroom because other students would harass Plaintiff based on his sexual orientation. MUHSD was aware of this problem and took no reasonable steps to correct it.
19. In the Spring Semester of 2005 Mr. Rhoades, Plaintiff's third period teacher, repeatedly ignored Plaintiff and made him raise his hand to speak in class while he allowed other students to speak without raising their hands. A fellow student informed Plaintiff that Mr. Rhoades had stated, `I don't like gay people.'
20. In the Spring Semester of 2005 Plaintiff was repeatedly harassed by students as he passed by the classroom of Mr. Schiber. Plaintiff reported this harassment to Defendant Bentz. Despite having informed Defendant Bentz and Mr. Schiber's presence during the incidents themselves Defendants permitted the harassment to continue and took no reasonable steps to prevent its re-occurrence.
. . .
22. On or about January 28, 2005 a student called Plaintiff a `stupid bitch' and pushed him into the mud due to Plaintiff's sexual orientation. On or about January 31, 2005 the student menaced Plaintiff with a knife and threatened to kill him in front of numerous witnesses. Nevertheless it took several hours before the student was relieved of the knife or anyone at MUHSD called the police. Furthermore, MUHSD illegally placed the Plaintiff on `administrative leave' for a week as a result of the incident.
23. In or about February 2005 a student called Plaintiff a `faggot' in the classroom of Defendant Miller. Plaintiff replied, `there is no homophobia allowed.' Defendant Miller said, `yeah, there is, it's a fear just like a fear of spiders.' Defendant Miller took no action regarding the student referring to the Plaintiff as a `faggot.' Throughout the Spring 2005 semester Defendant Miller was aware that Plaintiff was undergoing harassment in his classroom yet took no steps to prevent its occurrence.
. . .
25. On or about February 18, 2005 a student falsely accused Plaintiff of harassing him, called Plaintiff a `fucking faggot' and grabbed Plaintiff's hand while saying, `Hey, sexy.' Plaintiff reported the incident and Defendant failed to take adequate measures to ensure that the derogatory name called ceased. The name calling continued.
26. On or about February 23, 2005 a student harassed Plaintiff by throwing an object at his head and calling him a, `faggot.' Despite Plaintiff reporting this incident on three occasions the harassment continued.
27. On or about February 25, 2005 Plaintiff reported a student for harassing and calling him names such as `queer' and saying phrases such as, `Oh, you're too close' and jumping away from Plaintiff. Defendant failed to take adequate measures to stop the harassment.
28. In or about February or March 2005 Plaintiff was taking [sic] to a student in class about being gay and the teacher, Defendant Miller, said, `Oh stop it, you're turning me on.'
29. On or about March 2, 2005, Defendant Miller told Vice Principal Bentz that Armando thought she was `hot.' Plaintiff had never said anything of the sort. Defendant Miller's actions resulted in Plaintiff being reprimanded by Defendant Bentz.
. . .
31. On or about March 24, 2005 a female student told Plaintiff that she would get a fellow male student's telephone number for him. Plaintiff told her not to do so. The female student asked the male student for his number for Plaintiff despite his express statement not to. The male student then reported the incident and Plaintiff was counseled despite there being no evidence whatsoever that he had made any comment concerning the student or sought out the telephone number. Furthermore, Plaintiff is informed and believes that heterosexual students who seek to obtain the telephone numbers of fellow students are not counseled for such conduct.
. . .
33. On or around April 5, 2005 MUHSD allowed it to become generally known that Plaintiff was represented by counsel and was considering a lawsuit against MUHSD.
34. On or about April 11, 2005 a magazine page depicting a nude man in a bathtub was placed on Plaintiff's desk with a card stating, `You know you want his body.' Plaintiff reported the incident to Defendant Bentz. Defendants failed to take adequate steps to stop the harassment.
. . .
36. In or about April 2005 Plaintiff was interested in trying out from the pep/cheerleading squad. Plaintiff was informed by several members of the football team that they would quit the team if he did so. The coach of the team was aware of this and similar incidents. Nevertheless no action was taken by MUHSD.
. . .
40. On or about May 26, 2005 Plaintiff arrived to take his final examination in his earth science class. Upon his arrival Plaintiff told his teacher that he wished to take the final examination. Plaintiff was asked by the teacher, in a voice audible to the entire class, why Plaintiff wanted to take the final examination as it `would not help your grades at all' humiliating Plaintiff in front of the class.
. . .
44[¶] B. After meeting with Defendants and Defendants' representatives on December 12, 2005, Plaintiff agreed to return to Atwater High School on January 3, 2006. Plaintiff returned to school on January 3, 2006. On January 10 and 12, 2006, plaintiff was harassed, called names and threatened by other students. Defendants failed and refused to take any actions to prevent the harassment and threats against Plaintiff. On January 17, 2006, Plaintiff was threatened by a student who told Plaintiff that he was going to kill him after school. Plaintiff left school prior to the completion of classes on January 17, 2006. Plaintiff now fears for his safety to the extent that afraid to attend Defendants' school. . . .
Defendants argue that because the above-quoted factual allegations were not included in plaintiff's tort claims, the court must dismiss these specific allegations.
In Fall River Joint Unified School District v. Superior Court, 206 Cal.App.3d 431 (1988), the tort claim alleged that the student was injured when one of the school doors closed with sufficient force slam the student's head against the steel door frame. In his complaint, the plaintiff included an allegation and cause of action that the school had negligently failed to supervise students engaged in horseplay. The Court of Appeal held in pertinent part:
Government Code § 945.4 requires, as a prerequisite to maintenance of an action against a public entity for damages arising out of an alleged tort, the timely filing of a claim, and its rejection. Section 910 provides that the claim must include a general description of the injuries and the names of the public employees who caused them. Furthermore, `If a plaintiff relies on more than one theory of recovery against the [governmental] agency, each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer [or motion for judgment on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the written claim.'. . . .206 Cal.App. 3d at 434.
However, the California Supreme Court addressed this issue inStockett v. Association of California Water Agencies Joint Powers Insurance Authority, 34 Cal.4th 441 (2004), Stockett presented a tort claim that he was wrongfully terminated for supporting a female employee's sexual harassment complaints against a broker, Malone, which harassment was in violation of the Fair Employment and Housing Act and the public policy of California; that Stockett became aware that members of the Executive Committee and Malone had purchased insurance without determining that the insurer provided the lowest price or value to its members, and refused to select a provider through a competitive bidding process; and that Malone and some members of the Executive Committee, learning that Stockett was considering soliciting other bids, conspired to induce the Executive Committee to terminate Stockett by meeting secretly and making false charges against him. After JPIA denied Stockett's claim, he filed a lawsuit against JPIA. He later moved to amend his complaint to allege that he had been wrongfully terminated in violation of public policy on three grounds: (1) opposing sexual harassment by Malone in the workplace; (2) objecting to a conflict of interest involving Malone's dual role as both JPIA's insurance consultant and a vendor of insurance products to JPIA; and (3) exercising his First Amendment right of free speech by objecting to JPIA's practice of not having its insurance purchased on the open market through an open bid process, which was in the best interests of JPIA's member agencies. JPIA unsuccessfully opposed the motion to amend, claiming that the facts in the amended complaint had not been set forth in the government tort claim. At trial, Stockett also argued that he had been terminated for exercising his free speech rights when he made statements to Smart's California Workers' Compensation Bulletin, an insurance industry newsletter, to the effect that JPIA's workers' compensation insurer was selling insurance below cost. After a plaintiff's verdict, JPIA appealed. The Court of Appeals reversed the judgment, holding that "[b]y allowing the conflict of interest and free speech theories to be presented to the jury, the trial court allowed the Stocketts to present a very different case than one based solely on retaliation for objection to sexual harassment." The California Supreme Court reversed the Court of Appeals. In so doing, the Supreme Court explained:
The purpose of these statutes is `to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.' . . . Consequently, a claim need not contain the detail and specificity required of a pleading, but need only `fairly describe what [the] entity is alleged to have done.' . . . As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions . . ., the claims statute `should not be applied to snare the unwary where its purpose has been satisfied.
. . .
The claim, however, need not specify each particular act or omission later proven to have caused the injury . . . A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an `entirely different set of facts.'. . . Only where there has been a `complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,' have courts generally found the complaint barred . . . Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.34 Cal.4th at 446-447. In holding that Stockett's tort claim complied with the requirements of California law, the Supreme Court noted that the claim generally stated the circumstances of his termination and that the termination had been wrongful because it was effected in violation of California public policy. The Supreme Court further held that "[w]hile Stockett's claim did not specifically assert his termination violated the public policies favoring free speech and opposition to public employee conflict of interest, these theories to do not represent additional causes of action and hence need not be separately presented under [California Government Code] section 945.4."Id. at 447. The Supreme Court distinguished Fall River because
the additional theories in Stockett's amended complaint did not shift liability to other parties or premise liability on acts committed at different times or places. In Fall River, the plaintiff was injured at school when a steel door struck his head. His notice of claim stated the injury was caused by the school's negligent maintenance of the door, but his complaint additionally alleged the school had negligently failed to supervise students engaged in horseplay . . . The court held that the factual divergence between claim and complaint was too great; the complaint alleged liability `on an entirely different factual basis than what was set forth in the tort claim.' . . . Stockett's complaint, in contrast, alleged liability on the same wrongful act, his termination, as was stated in his notice of claim.Id. at 448. The California Supreme Court in Stockett further held:
Nor were the fundamental facts underlying Stockett's claim changed in his amended complaint. Rather, the free speech and conflict of interest theories simply elaborated and added detail to his wrongful termination claim by alleging additional motivations and reasons for JPIA's single action of wrongful termination. This case is thus similar to previous cases holding that the claim fairly reflected the theories of liability set forth in the complaint. In Blair v. Superior Court, supra, . . . for example, the plaintiff, a passenger, was injured when the driver lost control of his vehicle on a highway and collided with a tree. His claim stated the state had negligently constructed and maintained the highway surface, particularly by failing to sand it to prevent icing, whereas the complaint alleged the state had failed to provide warning signs and a guardrail on the highway . . . The appellate court stated the general claim of `negligent construction' could `reasonably be read to encompass defects in the placement of highway guardrails . . . or inadequate warning signs,' and the plaintiff was not obliged to specify in his notice of claim his particular theories of negligence . . . The claim and complaint were based on the same foundation: `because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.' . . . Stockett's claim and complaint, similarly, are based on the same factual foundation, viz., that certain named JPIA agents wrongfully terminated him.
In comparing claim and complaint, `we are mindful that "[s]o long as the policies of the claims statutes are effectuated, [the statutes] should be given a liberal construction to permit full adjudication on the merits.'". . . If the claim gives adequate information for the public entity to investigate, additional detail and elaboration in the complaint is permitted.
By notifying JPIA of its act (wrongful termination) that caused his injury (loss of earnings, mental and physical pain and suffering) and naming those JPIA agents he believed responsible, Stockett's claim provided sufficient information for JPIA to investigate and evaluate its merits. Contrary to JPIA's suggestion, a reasonable investigation of a wrongful termination claim would not be limited to the motives for termination hypothesized in the fired employee's claim form; certainly it would not be so limited where, as here, the employee at the time of termination asked for the reasons and was refused them. A reasonable investigation by JPIA would have included questioning members of the committee to discover their reasons for terminating Stockett and an evaluation of whether any of the reasons proffered by the committee, including but not limited to the theories in Stockett's claim, constituted wrongful termination. (Cf. Sandhu v. Lockheed Missiles and Space Co. (1994) 26 Cal.App.4th 846, 859 . . . [where administrative charge claimed only racial discrimination, complaint was not defective in alleging national origin discrimination as well; `we are confident that the administrative investigation into Sandhu's claim of disparate treatment because he was "Asian" would likely have encompassed both race and national origin']; Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1065 . . . [investigation of administratively charged instances of discrimination `would lead to the investigation of subsequent discriminatory acts undertaken by respondents in retaliation for appellant's filing an internal grievance'].)
In summary, Stockett adequately presented to JPIA his wrongful termination cause of action. His notice of claim satisfied the purposes of the claims statutes by providing sufficient information for the public entity to conduct an investigation into the merits of the wrongful termination claim, and the complaint's free speech and conflict of interest theories of termination in violation of public policy were fairly reflected in the claim because the complaint did not change the fundamental facts of the claim. Stockett was therefore not precluded from amending his complaint to include these theories or from presenting them to the jury.Id. 448-450.
Defendants argue that "the factual circumstances stated in the written claim as the basis of the public entity's liability must correspond with the facts alleged in the complaint." In so arguing, defendants refer the court to Loehr v. Ventura County Community College Dist., 147 Cal.App.3d 1071, 1082-1083 (1993): "Although a claim need not conform to pleading standards, the facts constituting the causes of action must substantially correspond with the circumstances described in the claims as the basis of the plaintiff's injury."
In opposition, plaintiff contends that the Complaint "is based on the same legal and factual theories set forth in his California Tort Claim and fully satisfy the requirements of the Act as set forth in Stockett. . . ." Plaintiff argues:
[T]he general allegations of Plaintiff's tort claim do fairly encompass the more detailed pleadings of his lawsuit. For example, in his claim Plaintiff asserted, `Merced Unified School District's employees have themselves harassed, discriminated and retaliated against Claimant Sandoval by preventing him from attending classes in which he was enrolled, suspending Claimant Sandoval without justification, taking disciplinary actions against Claimant Sandoval which was [sic] unwarranted, failing to allow Claimant Sandoval the same privileges as other students, unfairly seeking to have Claimant Sandoval evaluated as being somehow `learning impaired,' falsely and fraudulently stating that Claimant Armando Sandoval's parents had consented to place Armando Sandoval in independent study, intimidating Claimant Sandoval, and other actions.'. . . Numerous items objected to by the Defendants are merely examples of how, `District's employees have themselves harassed, discriminated and retaliated against Claimant' as asserted in Plaintiff's claim, `taking disciplinary actions against Claimant Sandoval which was [sic] unwarranted' and `suspending Claimant Sandoval without justification.' In his complaint at paragraph 15 where plaintiff pleads that, `On or about November 2, 2004 Plaintiff was sent to the "responsibility center" for allegedly disrupting class. In fact, Plaintiff had not been disrupting class but had been sent to the center because of his sexual orientation' and paragraph 22 in which Plaintiff pleads that, Marin [sic] Unified High School District illegally placed the Plaintiff on "administrative leave" for a week as a result of the incident.'
Therefore, plaintiff argues, each of the allegations contained in the Complaint are fairly related to those alleged in the claim under the California Tort Claims Act.
Defendants argue that the fact that these allegations were not described in the tort claims, coupled with the severity of the allegations, means that defendants were not given adequate notice to analyze these allegations, thereby running afoul of the Act's notice provisions and the statute's core purpose. Furthermore, defendants argue, plaintiff's contention that the contested allegations fairly relate to those events described in the tort claims is without merit:
Plaintiff bases Defendants' civil liability on these specific allegations. In short, Plaintiff asserts each allegation as a distinct violation upon which Plaintiff's claims rest, and Plaintiff's allegations which occur after the filing of both of his government tort claims are no exception. Consequently, if this Court were to allow entirely new factual allegations, only found in the civil complaint, to carry the same possible liability as the factual allegations properly asserted, Defendants would necessarily need to analyze and defend against specific allegations to which they have no previous knowledge, which specifically violates the CGTCA.
Finally, defendants refer to Stockett's point in distinguishingFall River that "the additional theories in Stockett's amended complaint did not shift liabilities to other parties or premise liability on acts committed at different times or places." 34 Cal.4th at 448.
The court concludes that, unless the substantial compliance doctrine applies, see discussion infra, the allegations at issue must be dismissed for failure of the plaintiff to file a tort claim with regard to those allegations for the reasons argued by defendants.
With regard to the allegations at issue, including those set forth in Paragraph 44(B), plaintiff argues that he is entitled to proceed in this action with regard to those allegations under the Substantial Compliance Doctrine.
In City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974), the California Supreme Court explained:
It is not the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and settle then, if appropriate, without the expense of litigation . . . It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel. . . .
The Supreme Court further held that in determining a contention that there has been substantial compliance with the claim filing requirements of the California Government Tort Claims Act, "two tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance." Id. at 456-457. In Phillips v. Desert Hospital Dist., supra, 49 Cal.3d at 709, the California Supreme Court held that "a document constitutes a `claim as presented' triggering sections 910.8 [and] 911 . . ., if it discloses the existence of a `claim' which, if not satisfactorily resolved, will result in a lawsuit against the entity." "[T]o be sufficient to constitute a trigger-claim under section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation."Green v. State Center Community College Dist., 34 Cal.App.4th 1348, 1358 (1995). "The doctrine of substantial compliance, however, cannot cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute." Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at 1083.
Plaintiff argues that his tort claims presented sufficient information to appraise the defendants of the nature of the claims at issue, i.e., that the District's employees had discriminated against the plaintiff and failed to take reasonable steps to stop the harassment and discrimination against the plaintiff because of his sexual orientation. Plaintiff asserts: "It is this information which forms the basis of Plaintiff's claims and would have allowed . . . [the] District to conduct an appropriate investigation."
With regard to the allegations in the Complaint that were not included in the tort claims of events that occurred prior to December 27, 2005, the court concludes that plaintiff has established substantial compliance with the claim requirement.
Plaintiff contends that defendants were aware in detail of many of plaintiff's factual allegations, including those not set forth in the tort claims. In so asserting, plaintiff refers to the Declaration of Daniel Bacon, plaintiff's attorney, where Mr. Bacon avers that he attended lengthy meetings with defendants' representatives and attorneys in which plaintiff's allegations were discussed in detail, and avers that plaintiff filed an administrative complaint with the District pursuant to 5 California Administrative Code, §§ 4600-4671. This complaint resulted in the District's investigation of plaintiff's allegations and recommendations with regard to those which the District's investigation found had merit, the School District sending a letter to plaintiff's counsel on May 24, 2005 stating that "[e]nough of the allegations have been sustained, in whole or in part, that I am recommending that all staff and students undergo sexual harassment training before the end of the calendar year." In a report dated June 24, 2005, sent to plaintiff's counsel, the School District stated: "In order to prevent future issues from arising involving Armando and others, the District will provide its staff and student body at Atwater High School with additional, specific training on avoiding and preventing illegal harassment, including harassment based on actual or perceived sexual orientation no later than January 1, 2006." Therefore, plaintiff argues, the function of the Tort Claims Act has been fulfilled. However, as noted above, actual knowledge of the circumstances of the claim does not constitute substantial compliance with the claim requirement. Therefore, to the extent that plaintiff relies on defendant's actual knowledge of all of the allegations of the Complaint except those occurring in January 2006 because of the investigation of plaintiff's administrative complaint as constituting substantial compliance with the claim requirement, plaintiff's contention is without merit.
However, with regard to the allegations in paragraph 44(B), the court concurs with defendants that plaintiff did not substantially comply with the claim requirement with respect to these alleged instances. With regard to these allegations, plaintiff does not merely elaborate or add further detail to his claim, but alleges two entirely distinct factual occurrences which transpired after the filing of the two tort claims. As explained in Fall River, supra, 206 Cal.App.3d at 435-436:
[The substantial compliance doctrine] is unavailing where the plaintiff seeks to impose upon the defendant . . . the obligation to defend a lawsuit based upon a set of facts entirely different from those first noticed. Such an obvious subversion of the purposes of the claims act, which is intended to give the governmental agency an opportunity to investigate and evaluate its potential liability, is unsupportable . . . Here, defendant was given no warning that it might be sued for its employee's failure to supervise plaintiff and his fellow students, and had no opportunity to consider the validity of such a claim until the filing of the amended complaint.
As noted, the second tort claim detailed events from September 2004 "to the present", i.e., until December 27, 2005. Defendants would have had no notice and no reason to investigate acts occurring after that date in order to assess their potential liability for those acts.
Plaintiff further argues that defendants have waived any defense related to the insufficiency of plaintiff's tort claims by failing to comply with the legal requirement that defendants notify a claimant of any defect or omission in the claim.
In so arguing, plaintiff relies on California Government Code § 910.8, which provides in pertinent part:
If, in the opinion of the board or the persons designated by it, a claim as presented fails to comply substantially with the requirements of sections 910 and 910.2, or with the requirements of a form provided under Section 910.4 if a claim is presented pursuant thereto, the board or the person may, at any time within 20 days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein. The notice shall be given as prescribed by Section 915.4. The board may not take action on the claim for a period of 15 days after the notice is given.
California Government Code § 911 further provides:
Any defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by the failure to give notice of the insufficiency with respect to the defect or omissions as provided in Section 910.8, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.
Plaintiff's claim of waiver is without merit. Plaintiff's assertion requires that defendants be mind-readers and anticipate that the facts alleged in the Complaint would include factual allegations note detailed in the tort claims and notify plaintiff that the tort claims were insufficient on that basis.
Defendants argue that, because plaintiff failed to present a tort claim with regard to these allegations, the court should dismiss these allegations from the Complaint.
Plaintiff argues that, because the tort claims alleged a pattern of harassment and discrimination extending "`[f]rom September 2004 to the present', it is clear from the nature of the claim that the issues addressed in the document are ongoing and have not ended." Plaintiff further notes that a plaintiff is required by California Government Code § 911.2(a) to file a tort claim not later than six months from the date his cause of action accrues. Plaintiff contends:
Based on the facts of this case it is clear that Plaintiff's causes of action as pled in the complaint had already accrued prior to December 27, 2005. Additional facts which support plaintiff's causes of action or which caused additional injury to Plaintiff under the same course of conduct as complained on in the Plaintiff's original claims do not change the date at which his cause of action accrued. Thus, Plaintiff believes that any argument that Plaintiff needs to re-file his claims to reflect additional facts would be contrary to the statutory scheme.
The court does not agree. Plaintiff is seeking to impose tort liability on defendants based on alleged tortious acts that were not included in the tort claim and which occurred after the tort claim was filed. Given the statutory scheme and the purpose of the tort claim, plaintiff should have filed a tort claim with regard to the acts described in paragraph 44(B). Because he did not, the allegations in paragraph 44(B) are dismissed.
ACCORDINGLY:
1. Defendants' motion to dismiss is granted in part and denied in part as set forth herein.
2. Plaintiff shall file a First Amended Complaint in accordance with this Order within 30 days of the filing date of the Order.
IT IS SO ORDERED.