ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
(Docket No. 27)
I. INTRODUCTION
This case arises out of the death of Milanca Lopez — an undergraduate at the University of California, Berkeley — and her six year old son, Xavier. On May 18, 2012, Milanca, Xavier, and Defendant Jose Lumbreras — Milanca’s boyfriend — were involved in a car accident. Lumbreras was driving the vehicle while under the influence of narcotics and/or alcohol. Tragically, Milanca and Xavier did not survive the accident. Milanca’s parents, Me-dardo Lopez and Margarita Lopez (“Plaintiffs”), have instituted the instant action against Lumbreras, the Regents of the University of California (“the U.C. Regents”), and Cephas John, the Leasing & Assignment Manager in the Residential and Student Services Program at U.C. Berkeley. In general, Plaintiffs allege that the U.C. Regents and Mr. John were aware of, and failed to properly respond to, Lumbreras’ continual abuse and harassment of Milanca. They allege that this failure was a proximate cause of Mi-lanca and Xavier’s death.
Before this Court are the motion for judgment on the pleadings brought by the U.C. Regents and Mr. John as well as Plaintiffs’ request for judicial notice. For the following reasons, Defendants’ motion will be GRANTED as to Plaintiffs’ federal causes of action. However, Plaintiffs will be granted leave to amend.
II. FACTUAL AND PROCEDURAL BACKGROUND
Milanca Lopez was a Mexican-American woman who attended the University of California, Berkeley from July 2007 to May 18, 2012. Dkt. No. 1, First Amended Complaint (“FAC”) ¶ 5, 15. During the fall semester of 2011, Defendant Lumbrer-as — a graduate student and student teacher at U.C. Berkeley — and Milanca began a relationship. Id. ¶ 16. Plaintiffs allege, on information belief, that Lumbreras used his position as a student teacher to initiate this relationship, but they do not allege what facts underlie this belief. Id. Additionally, Plaintiffs have not alleged any facts suggesting that Defendant Lumbrer-as was Milanca’s teacher.
Soon after the relationship began, Lumbreras allegedly began to systematically control, abuse, and insult Milanca. He would publicly insult her in front of other undergraduate and graduate students, referring to her as a “dirty whore,” a “slut,” and would denigrate her heritage by referring to her as “not Mexican
Starting in March 2012, Lumbreras and Milanca began living together in Milanca’s apartment in the University Village — a housing complex located on the campus of U.C. Berkeley and maintained under the direction and authority of the university. Id. ¶ 9,19.
On April 26, 2012, Milanca contacted a fellow U.C. Berkeley student, upset and crying because Lumbreras was at a bar on campus drinking and refused to pick up Xavier from school. Id. ¶ 20. Hours later, at 1:30 a.m. on April 27, 2012, Milanca contacted the same student while crying, telling that student that Lumbreras was “punching and kicking” her in her apartment. Id. ¶ 21. Lumbreras then abruptly hung up the telephone. Id. ¶ 22. Within minutes, a group of U.C. Berkeley students responded to Milanca’s apartment to check on her welfare. Id. ¶ 23-24. They observed Milanca run out of her apartment, only half dressed, crying, screaming, and holding Xavier. Id. ¶ 24. Milanca’s arms and thighs displayed fresh bruises. Id. ¶ 25. Milanca and Xavier went to stay with a neighbor for the night, but at 4:00 a.m., Lumbreras arrived at the apartment visibly intoxicated and belligerent. Id. ¶ 27. He began to bang on the apartment door and yell insults at the apartment for approximately 45 minutes. Id. When Mi-lanca returned to the apartment the next morning, she found that Lumbreras had broken and/or vandalized numerous items in her apartment, including her laptop, television, and a jewelry box. Id. ¶28.
Plaintiffs allege that in early May 2012, Milanca reported Lumbreras’ abuse to U.C. Berkeley personnel in two separate instances. First, they allege that in early May 2012, “University of California Berkeley Police Department Officers responded to Milanca’s apartment on two separate occasions.” Id. ¶ 29. Plaintiffs allege that the officers “failed to draft notes, reports, or otherwise removed Defendant from the apartment for an investigation.” Id. However, Plaintiffs do not allege what prompted the officers to respond to Milanca’s apartment on those occasions or what Mi-lanca reported to them. Second, Plaintiffs allege that around this time, Milanca telephoned Mr. John and told him about the above incidents of abuse and insults. Id. ¶ 30.
On May 18, 2012, Lumbreras drove himself, Milanca, and Xavier in a 1999 Cadillac
Plaintiffs filed the instant action in California state court on May 10, 2013. Plaintiffs assert thirteen causes of action. Only two of these are federal causes of action— Count 1 alleges a violation of Title IX, 20 U.S.C. § 1681(a), and Count 12 alleges a violation of Title VI, 42 U.S.C. § 2000d ei seq. Id. ¶ 44-50; Id. ¶ 123-136.
Plaintiffs base their Title IX count on the basis that Lumbreras “harassed Milan-ca Lopez based upon her sex and Mexican-American race and ethnicity, such that she was denied benefits and precluded from participation in school programs.” Id. ¶ 49.
Plaintiffs allege that Lumbreras’ harassment of Milanca was pervasive in that it “permeated all aspects of Milanca’s personal, academic, and familial life.” Id. ¶ 55. Further, Plaintiffs allege that the harassment took place at “numerous locations throughout campus and in front [of] numerous U.C. students, in Milanca’s home, [Lumbreras’] home, and at the home of Milanca’s neighbor.” Id. This fact, combined with Milanca’s May 7, 2012 telephone call and email to Mr. John are alleged to have conveyed to Mr. John and the University actual knowledge of Lumbreras’ harassment, intimidation, and abuse. Id. ¶ 57. Plaintiffs also allege that numerous students had actual knowledge of Lumbreras’ acts of domestic violence, but failed to report them. Id. ¶ 58.
Plaintiffs state law causes of action are for negligence per se, negligence, negligent supervision, premises liability, intentional infliction of emotional distress, negligent infliction of emotional distress, battery, assault, and gender violence in violation of Cal. Civ. Code § 52.4. The U.C. Regents and Mr. John have filed a motion for judgment on the pleadings, seeking to have Plaintiffs’ Complaint dismissed in its entirety. Dkt. No. 27.
III. DISCUSSION
A. Legal Standard
Under Federal Rule of Civil Procedure 12(c), “[j]udgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Fleming v. Pickard,
While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id.; see also Lewis v. City & County of San Francisco, No. C 11-5273 PJH,
In the context of ruling on both a Rule 12(b)(6) and Rule 12(c), motion, the Court is generally limited to the contents of the complaint. However, in addition, the Court may consider “documents referenced extensively in the complaint, documents that form the basis of plaintiffs claims, and matters of judicial notice when determining whether the allegations of the complaint state a claim upon which relief can be granted.” Mendelsohn v. Intalco Aluminum Corp., No. C06-0190RSL,
Where a court grants a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. Apple, Inc.,
Defendants raise a number of challenges to Plaintiffs’ Title IX claim. First, they argue that Plaintiffs cannot, under California’s survival statute (Cal. Code Civ. Proc. § 377.34), state a claim under Title IX to the extent they seek emotional damages (pain, suffering, and the like). Dkt. No. 27, at 4. Second, they argue that Plaintiffs lack standing to assert the Title IX claim. Third, they imply that as the underlying conduct constitutes “domestic violence,” it does not constitute “sexual harassment” for purposes of Title IX. Id. at 8. Fourth, they argue that there is not a sufficient basis for concluding that Defendants “knew or should have known” about Lumbreras’ harassing conduct. Id. Finally, they argue there is no causal link between their alleged failure to act under Title IX and the automobile accident in which Milanca and Xavier died. Id. at 9.
The Court rejects Defendants first three arguments. However, Plaintiffs’ Title IX claim suffers from a number of defects. Accordingly, the Court will dismiss this claim with leave to amend.
1. Plaintiffs Have Standing to Assert Milanca’s Title IX Claims
Defendants argue that Defendants lack standing to bring a claim for violation of Title IX. Defendants are correct that, in general, non-students such as parents do not have a personal claim under Title IX. See R.L.R. v. Prague Public School Dist. I-103,
Defendants nonetheless argue that Plaintiffs do not have standing to assert a Title IX claim on behalf of Milanca because Milanca was not a minor. Dkt. No. 27, at 6. They cite a single case for the proposition that parents may not assert a Title IX claim on behalf of an adult child— Burrow by and Through Burrow v. Postville Cmty Sch. Dist.,
It is perhaps not surprising that there is little case law on this point. In most Title IX claims either the student in question will be a minor, making it difficult for the student to personally assert his or her own claim, or the student will be an adult enrolled in a college and thus able to do so. While no court appears to have addressed the question of whether parents have standing to assert Title IX claims on behalf of a deceased adult child, a number of courts have implicitly found that parents have standing to assert a Title IX claim on behalf of a deceased minor child. See, e.g., Vidovic v. Mentor City School Dist.,
As a result, and in the absence of any authority to the contrary, the Court concludes that Plaintiffs have standing to assert Milanca’s Title IX claim.
2. Plaintiffs May State a Claim Under Title IX for Emotional Damages
Defendants next argue that, assuming Plaintiffs have standing to assert Milanca’s Title IX claim, they may not assert a claim for non-economic damages (such as pain and suffering). Defendants base this argument on the fact that under California’s survivorship statute, Plaintiffs may only seek economic damages suffered by Milanca and Xavier and not “damages for pain, suffering, or disfigurement.” Cal. Code of Civ. Proc. § 377.34. As to the two federal causes of action asserted in the Complaint — Title IX and Title VI — the Court disagrees.
Defendants’ argument on this point is built on a premise this Court rejects: that the California survival statute applies to Plaintiffs’ Title IX and Title VI claims. Although Defendants do not expressly explain why they believe that California’s survival statute applies in this case, they cite Walsh v. Tehachapi Unified School Dist.,
As a result, it is apparent that Defendants believe that California’s survival statute applies in this case by operation of 42 U.S.C. § 1988(a). This provision provides:
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights ... shall be exercised and enforced in conformity with the laws of the United States ... but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States....
42 U.S.C. § 1988(a). Thus, this provision directs courts to “apply state law in certain types of cases where federal law is silent or inadequate.” Hanson v. Atlantic Research Corp., No. 4:02CV00301 SMR,
As the district court in Walsh recognized, Title IX’s provisions are silent as to survivor claims. Walsh,
By its express terms, § 1988(a) applies to “civil and criminal matters” brought under the “provisions of titles 13, 24, and 70 of the Revised Statutes.” 42 U.S.C. § 1988(a). The Revised Statutes were Congress’ first official codification of federal law and was a precursor to the United States Code. According to the textual references following the text of § 1988(a):
Title 13 of the Revised Statutes, referred to in subsec. (a), was in the original “this Title” meaning title 13 of the Revised Statutes, consisting of R.S. sections 530 to 1093. For complete classification of R.S. sections 530 to 1093 to the Code, see Tables.
Title 24 of the Revised Statutes, referred to in subsec. (a), was in the original “Title ‘CIVIL RIGHTS’ ” meaning title 24 of the Revised Statutes, consisting of R.S. sections 1977 to 1991, which are classified to sections 1981 to 1983, 1985 to 1987, and 1989 to 1994 of this title. For complete classification of R.S. sections 1977 to 1991 to the Code, see Tables.
Title 70 of the Revised Statutes, referred to in subsec. (a), was in the original “Title ‘Crimes,’ ” meaning title 70 of the Revised Statutes, consisting of R.S. sections 5323 to 5550. For complete classification of R.S. sections 5323 to 5550, see Tables.
42 U.S.C. § 1988(a) (References in Text). Thus, Title 24 of the Revised Statutes generally apply to the Reconstruction Era civil rights acts, while Title 70 of the Revised Statutes refer to criminal statutes now codified in Title 18. See Kettner v. Compass Group USA, Inc.,
Courts have split as to whether § 1988(a) should nonetheless apply to modern civil rights statutes not expressly enumerated in § 1988(a). For example, in Fleming v. U.S. Postal Service AMF O’Hare,
Conversely, a number of courts have found that § 1988(a) applies to federal civil rights actions more generally, even when not expressly enumerated in § 1988(a). See, e.g., Slade for Estate of Slade v. U.S. Postal Serv.,
Nonetheless, the Court finds the latter cases unpersuasive. None of these cases support their “conclusion with any persuasive analysis — or in fact any analysis at all — of the statutory language. Rather, courts seem to have ignored the actual language of Section 1988(a), presumably under the unsupported assumption that it applies broadly to any and all actions that could be characterized as sounding in ‘civil rights.’ ” Kettner,
It is a fundamental canon of statutory construction that where the “statutory text is plain and unambiguous,” a court “must apply the statute according to its terms.” Carden v. Salazar,
Further, the Court concludes that the omission of the more recent civil rights statutes from § 1988(a)’s text cannot be dismissed as “legislative oversight in failing to update Section 1988.” Id. at 1130. Congress has twice amended Section 1988 to add attorneys’ fees provisions codified at § 1988(b) and § 1988(c). Id. at 1131. Both of these provisions, like § 1988(a), expressly limit their application to certain statutory provisions (including the more recent civil rights statutes). See 42 U.S.C. § 1988(b), (c). Further, Congress has continually, by subsequent amendment, expanded the scope of subsections (b) and (c) to encompass new legislation. Kettner,
Finally, even if § 1988(a) did apply to Title IX, the Court would still conclude that California’s survival statute does not apply to Title IX (or Title VI). The Court has been unable to locate any statement in the legislative history of Title VI or Title IX that would shed light on Congress’ intent regarding the survivability of these claims or their interplay with § 1988(a). It is beyond dispute, however, that where a civil rights statute — including Title VI or Title IX — is ambiguous, courts must “broadly interpret” those statutes so as to “effectuate the remedial purpose of the legislation.” Kang v. U. Lim Am., Inc.,
Accordingly, the Court concludes that federal common law, not California law of survivorship, governs the question of whether, and to what extent, Milanca’s Title VI and Title IX claims survived her death. Under federal common law, a cause of action survives a decedent’s death “unless it is an action for penalties.” Kilgo v. Bowman Transp., Inc.,
3. Plaintiffs Have Failed to State a Claim Under Title IX, but Will be Given Leave to Amend
As an initial matter, the Court notes that Plaintiffs cannot state a Title IX claim against Mr. John — an individual. Rather, Plaintiffs can only state a Title IX claim against the U.C. Regents. See Doe by and Through Doe v. Petaluma City School Dist.,
The Court next examines Plaintiffs’ Title IX claim against the U.C. Regents. Title IX provides, in relevant part:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). Title IX prohibits intentional discrimination. See Alexander v. Sandoval,
To state a prima facie case under Title IX based on student-to-student sexual harassment, Plaintiffs must show: (1) The sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits; (2) the U.C. Regents had actual knowledge of the sexual harassment; and (3) the U.C. Regents were deliberately indifferent to the harassment. See Reese v. Jefferson Sch. Dist. No. 14J,
Finally, a federal funding recipient may only be held liable under Title IX where the recipient “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis,
a. Housing Benefits Constitute an “Educational Benefit” Under Title IX, But Plaintiffs Have Failed to Adequately Allege this Benefit Was Denied as a Result of a Title IX Violation
Title IX has a causative element—Title IX plaintiffs asserting a sexual harassment theory must demonstrate that the harassment was so severe, pervasive, and objectively offensive that it caused a deprivation of educational opportunities or benefits. See Porto v. Town of Tewksbury,
Further, Milanca Lopez was scheduled to receive the benefits associated with U.C. Berkeley university housing until approximately June 29, 2012. Milanca was scheduled to pay for these benefits with federal and state student aid received through and paid to U.C. Berkeley. On June 29, 2012, Milanca was accepted and set to enroll as a graduate student at the University of California Los Angeles.
FAC ¶ 50.
Defendants argue that “educational benefit” cannot be extended to include “housing arrangements.” Dkt. No. 32, at 8. The Court disagrees. First, the federal regulations adopted in furtherance of Title IX apply broadly to “any academic, extracurricular, research, occupational training, or other education program or activity.” 45 C.F.R. § 86.31. In fact, there is a regulation, promulgated under the authority of Title IX, which expressly prohibits a recipient of federal funds from “applying] different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing” on the basis of sex. Id. § 86.32. As a result, Title IX has clearly been construed by the relevant federal agencies as extending to the housing “benefits” supplied by a federal funds recipient.
Accordingly, the question is whether Plaintiffs have alleged sufficient facts showing that Milanca was deprived of the benefits of University housing because
b. Plaintiffs Have Failed to Allege Facts Showing that the U.C. Regents Had Actual Notice of, or Were Deliberately Indifferent to, Sexual Harassment
Plaintiffs’ Title IX claim is deficient for another reason. Plaintiffs’ Complaint inadequately alleges that the U.C. Regents had actual notice of sexual harassment. Where a Title IX claim is predicated on a student’s sexual harassment, actual notice on the part of the federal funding recipient is critical because “it is the deliberate failure to curtail known harassment, rather than the harassment itself, that constitutes the intentional Title IX violation.” Mansourian v. Regents of University of California,
Plaintiffs’ Complaint relies on three facts in support of the contention that the U.C. Regents had actual notice of the alleged sexual harassment and were deliberately indifferent: (1) Numerous U.C. Berkeley students observed the alleged harassment but failed to report it (Comply 58); (2) U.C. Berkeley police officers responded to Milanca’s apartment in two instances but took no action {Id. ¶ 29); and (3) Milanca called and emailed Mr. John about the April 27 incident and he took no action {Id. ¶ 30). None of these allegations adequately allege actual notice or deliberate indifference on the part of the U.C. Regents.
That Milanca’s peers witnessed or were aware of alleged incidents of sexual harassment is insufficient to impute actual notice to the U.C. Regents. Rather, Title IX requires that “ ‘an official who at minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf [have] actual knowledge of discrimination in the recipient’s programs.’ ” Oden v. N. Mari
Further, Plaintiffs’ allegations that the U.C. Berkeley police and Mr. John had actual notice of sexual harassment are insufficiently alleged.
Plaintiffs argue, however, that Mr. John’s email to Milanca’s parents following her death (Dkt. No. 29-3, at 7) proves that Mr. John (and by imputation, the U.C. Regents) was aware of a domestic violence incident. This email stated, in relevant part that “Prior to this 5/7/12 email (below), [Milanca] called me about a domestic violence incident but then assured me that everything’s ok after I returned her call.” Id. They argue that because Mr. John was aware of a domestic violence incident, he necessarily was aware of sexual violence or sexual harassment cognizable under Title IX. Accordingly, the Court is confronted with the following question: Is actual notice of a single incident of domestic violence sufficient to impose liability under Title IX?
The Court concludes that under the facts alleged, it does not. The Court so holds for several reasons. First, it is not clear under what circumstances an act of domestic violence between peers on a university campus constitutes sex-based harassment proscribed by Title IX. To hold a university liable for peer-to-peer sexual harassment under Title IX, the university must have had actual knowledge of sex-based harassment. Title IX does not address all instances of student-on-student violence or harassment. Rather, Title IX prohibits discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). The Court “glean[s] from this language of the statute
While courts have not addressed the circumstances under which domestic violence can trigger a Title IX violation, at least one university has noted the distinction between gender based domestic violence and other domestic violence. For example, Gonzaga University recognizes that “Domestic Violence that is based on sex or gender is a violation of Title IX and is also a violation of Gonzaga’s sexual misconduct policy. Domestic abuse or violence that is not based on sex or gender is still a violation of Gonzaga’s Student Code of Conduct.” See Gonzaga Univ., “Stalking, Domestic Violence, and Sexual Assault,” http://www.gonzaga.edu/Student-Life/Support-for Students/SexualMiscon-duct/stalking-domesticviolence-sexualas-saultasp (last visited Nov. 21, 2013).
Nonetheless, Plaintiffs rely on the “Dear Colleague Letter” on Sexual Violence published by the U.S. Department of Education’s Office of Civil Rights.
However, it does not follow that because rape and sexual assault can result in a
Second, as noted above, the Complaint does not sufficiently allege what Mr. John or the University knew as a result of the single contact by Milanca with Mr. John. Nor are there allegations suggesting that Mr. John was aware that the domestic violence incident in question was motivated because of Milanca’s sex or that the alleged abuse from that incident had a sexual component.
For similar reasons, Plaintiffs have failed to allege that the U.C. Regents were deliberately indifferent for purposes of Title IX. When the Supreme Court adopted the deliberate indifference standard in cases seeking damages for sexual harassment, it stated:
We think, moreover, that the response must amount to deliberate indifference to discrimination. [Title IX’s] administrative enforcement scheme presupposes that an official who is advised of a Title IX refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. The framework finds a rough parallel in the standard of deliberate indifference.
Gebser,
c. Plaintiffs Have Failed to Allege that any “Deliberate Indifference” Caused Her to Be Subjected to Further Harassment
Even if Plaintiffs had adequately alleged actual knowledge or deliberate indifference on the part of the U.C. Regents, they failed to allege that this deliberate indifference caused Milanca being subjected to further discrimination or deprivation of Title IX rights. In Davis, the Supreme Court stated that a federal funding recipient may only be held liable for damages where its “deliberate indifference ‘subject[s]’ is students to harassment. That is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo]’ harassment or ‘make them liable or vulnerable’ to it.” Davis,
Beyond the conclusory allegation that “Defendant Lumbreras harassed Milanca Lopez based upon her sex and Mexican-American race and ethnicity” from “August 2011 to May 18, 2012,” FAC ¶ 49-50, Plaintiffs do not allege any incidents of harassment which occurred after the U.C. Regents allegedly obtained actual knowledge of the late April domestic violence incident. The only subsequent incident that is alleged is the fatal car accident which tragically took Milanca’s and Xavier’s life on May 18, 2012. Id. ¶ 41. However, as stated above, the Plaintiffs have not alleged that Lumbreras’ decision to drive intoxicated (or any other aspect of the fatal accident) was motivated by Milan-ca’s gender or was part of a continuing source of harassment. There is no allegation, for instance, that Lumbreras forced Milanca into the car as part of the sex-based domestic abuse.
Accordingly, Plaintiffs fail to allege sufficient facts to demonstrate deliberate indifference on the part of the U.C. Regents to know a sex-based harassment or that any such deliberate indifference caused Milan-ca to be subject to further harassment or deprivation of rights. Plaintiffs have thus failed to state a claim under Title IX.
4. Conclusion
Accordingly, Plaintiffs Title IX claim is DISMISSED with prejudice as to Mr. John and with leave to amend as to the U.C. Regents. In their second amended complaint, Plaintiffs must allege sufficient facts demonstrating: (1) that Lumbreras engaged in harassment or abuse that was gender-based within the purview of Title IX; (2) that this harassment or abuse deprived Milanca of educational benefits; (3) that the U.C. Regents had actual knowledge of (and were deliberately indifferent) to incidents of harassment or abuse motivated by gender; and (4) that the deliberate indifference caused Milanca to be subjected to further harassment or deprivation of rights.
C. Plaintiffs’ State Law Claims
Because the Court has dismissed, with leave to amend, Plaintiffs’ two federal law claims, it declines at this time to address Defendants’ motion to dismiss arguments as to Plaintiffs’ state law claims. To the extent that Plaintiffs are unable to sufficiently allege a violation of Title IX or
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment on the pleadings is GRANTED as to Plaintiffs’ federal causes of action, with leave to amend. Plaintiffs’ second amended complaint shall be filed within 30 days of this order.
This order disposes of Docket Nos. 27 and 30.
IT IS SO ORDERED.
Notes
. The FAC states that Milanca telephoned Mr. John on May 7, 2012. At the hearing, Plaintiffs’ counsel indicated this date may be an error.
. While not attached to the Complaint, this Court will consider the May 7, 2012 email from Milanca to Mr. John as it is referenced and implicitly incorporated by reference into the Complaint. See Chimara v. Contra Costa County Gov’t, No. 12-cv-00201 JSC,
. Plaintiffs’ Title VI claim largely mirrors the Title IX claim, but is focused on Lumbreras' harassment on the basis of Milanca’s race rather than on her gender.
. Plaintiffs have filed a request for judicial notice. (Dkt. No. 30). In this motion, Plaintiff seeks to have the court take judicial notice of a "Dear Colleague” letter from the U.S. Department of Education, a Department of Education "Handbook for Campus Safety and Security Reporting,” and various webpages from the University of California website relating to the reporting of sexual harassment. Plaintiffs request for judicial notice is GRANTED for purposes of this motion. See, e.g., Jarvis v. JP Morgan Chase Bank, N.A., No. CV 10-4184-GHK,
Plaintiffs have also submitted three declarations in support of their opposition. These are not appropriate for consideration at the judgment on the pleadings stage. See United States v. Ritchie,
. The Court finds, and Defendants do not appear to contest, that emotional distress damages are generally recoverable under Title VI and Title IX. See Sheely v. MRI Radiology Network, P.A.,
. In general, Title 13 of the Revised Statutes "covered governance of the judiciary and the creation of jurisdiction.” Brian Owsley, Survivorship Claims Under Employment Discrimination Statutes, 69 Miss. L.J. 423, 428 n.20 (1999). Specifically, according to the tables that accompany the United States Code, the provisions of Title 13 of the old Revised Statutes have either been repealed or placed into the following United States Code provisions (as amended):
• Title 1: Section 113;
• Title 18: Sections 3005, 3012; 3041, 3047, 3049, 3141-3144, 3282, 3283; 3290. 3432, 3486, 3497, 3565, 3569, 4084;
• Title 19: Sections 579, 580;
• Title 28: Sections 292, 501, 403, 506, 509, 541-543, 546, 547, 549, 544, 545, 550, 551, 553, 554, 564, 604, 636, 751, 755, 793, 952, 953, 1251, 1333, 1334, 1338, 1351, 1355, 1652, 1691, 1733, 1734-1739; 1740, 1742-1745, 1821, 1823, 1825, 1871,1873, 1874, 1912, 1914, 1918, 1920-1924, 1927-1929, 1961, 1962, 2003, 2006, 2007, 2041, 2042, 2071-2073, 2104- 2106, 2241-2243, 2251, 2252, 2405-2408, 2413, 2462-2465, 2710-2718;
• Title 30: Section 53;
• Title 42: Section 1988;
• Title 44: Section 3703.
. The Court notes that the opposite result obtains as to Plaintiffs' state law causes of action. Survivability of state law claims is governed by state law. See, e.g., In re C.R. Stone Concrete Contractors, Inc.,
. And, as discussed below, the Court does not, either because there are no facts alleged suggesting it was motivated by Milanca’s sex (as to the April 2012 domestic violence incident) or there are no facts alleged that the U.C. Regents had actual notice or were deliberately indifferent to such acts (as to the abusive name-calling and sexual misconduct alleged).
. The U.C. Regents have not argued that either the U.C. Berkeley police officers or Mr. John lacked the authority to take corrective action.
. See Office for Civil Rights, U.S. Dep't of Educ., "Dear Colleague Letter: Sexual Violence,” http://www.whitehouse.gov/sites/ defauh/files/dear_colleague_sexuaLviolence. pdf (last visited Nov. 21, 2013).
. There are absolutely no allegations that Mr. John or the U.C. Regents were aware of the sexually abusive names to which Lumbr-eras subjected Milanca or the January 2012 sexual incident between Lumbreras and Mi-lanca.
. Additionally, because Title VI claims are held to the same standard as Title IX claims, the Court will DISMISS that claim with leave to amend to the same extent, and for the same reasons, as Plaintiff's Title IX claims. See Stanley v. Trustees of California State University,