MONICA WHOOLEY, Plаintiff, v. TAMALPAIS UNION HIGH SCHOOL DISTRICT, et al.,
Case No. 18-cv-07686-RS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 29, 2019
ORDER GRANTING IN PART AND DENYING IN PART TAMALPAIS DISTRICT‘S MOTION TO DISMISS AND GRANTING YOSHIHARA‘S MOTION TO DISMISS
I. INTRODUCTION
Monica Whooley, the mother and successor-in-interest to her son, Gabriel, maintains that he committed suicide because Tamalpais Union High School District (the “District“) and its former superintendent, David Yoshihara (collectively “Defendants“), failed to implement his accommodation plan pursuant to
II. BACKGROUND1
In 2014, during Gabriel‘s eighth grade year, he was assessed by Ross Valley School District (“RVSD“) and found eligible for special education owing to a specific learning disability arising from his significant processing weaknesses and high anxiety related to academics. Upon reassessment, he was found ineligible for special education, but concerns remained regarding his processing skills and anxiety. RVSD then placed Gabriel on a
Beginning in the Fall of 2014, Gabriel was enrolled in Drake High School in the Tamalpais District. He remained on the 504 Plan throughout his time at Drake, but the District purportedly never re-evaluated Gabriel for his 504 Plan. As he progressed through high school, Gabriel became increasingly overwhelmed by mounting pressure from the school to achieve and maintain a high grade point average, to attain high scores on the ACT or SAT exams, and to complete early enrollment period applications for colleges. This stress was allegedly compounded by the District‘s employees failing to implement his 504 Plan on numerous occasions.
In one instance, Gabriel was scheduled to take the Advanced Placement (“AP“) test in English Language and Composition in May 2017. Pursuant to his 504 Plan, Gabriel was to be placed in a separate room away from other students and given the test by a different proctor. On the day of the test, however, he was told that there was no proctor available to administer his test, thereby forcing him to take the test in the school‘s gymnasium with the other students. When Gabriel informed her of this breach of his 504 Plan, Whooley contacted members of Drake‘s staff to ensure his accommodations werе in place and would be implemented for the ACT in
Shortly after the AP exam, Gabriel suffered a sudden spontaneous pneumothorax, meaning one of his lungs partially collapsed. Whooley informed all of Gabriel‘s teachers, his academic counselor, and Drake‘s 504 Plan coordinator that he would be out of school for a few days and requested that they send class notes and assignments. Whooley never received a response. She then contacted the assistant, Jolie Jacobs, to Drake‘s principal, Liz Seabury, in order to inform the principal of Gabriel‘s condition and to ensure that his teachers were apprised of the need for extra accommodations due to his health. Jacobs refused to inform Seabury of Gаbriel‘s health concerns. In light of Gabriel‘s continuing symptoms of pneumothorax, Whooley sent Drake a note from his doctor requesting that he be given reasonable academic accommodations to facilitate his recovery. Whooley again received no response from Drake employees.
A few days before the ACT, Gabriel contacted Kyle Elsman, the Drake staff member responsible for handling accommodation requests, to confirm that his accommodations were in place. After receiving no response, Gabriel contacted the ACT organization itself to discover that Drake had not filed the appropriate paperwork on his behalf, despite Elsman‘s confirmation in March 2017 that Gabriel had provided all of the proper paperwork to process his request. Drake and the District subsequently attempted to secure the proper accommodations for the ACT, but were only able to do so for the September exam. This would preclude Gabriel from being able to complete early enrollment period applications for colleges. Additionally, Gabriel had received a scholarship for tutoring for the June ACT that did not carry over to the September 2017. In order to retain the information he had learned over the course of his tutoring, Gabriel had to continue studying over the summer of 2017. Drake and the District refused to cover the cost of the additional three months of tutoring.
The night before the September ACT, Gabriel told Whooley that he was growing increasingly stressed about school. Whooley then contacted Gabriel‘s academic counselor, Sheila Souder, and asked if there were any counselors at Drake with whom Gabriel could speak. Souder assured Whooley that she would complete a Wellness Refеrral for Gabriel and would follow-up with her soon. The Wellness Referral was not made. Subsequently, in October 2017, Gabriel suffered from another pneumothorax. Gabriel informed his teachers and academic counselors that he would be out of school and requested extra time and support to complete his assignments, but received no response.
In November 2017, Gabriel‘s Advanced Placement Chemistry teacher and tutor commented that his stress levels were rising due to his having to miss class for health reasons. They recommended that Gabriel drop the class, even though that would mean he would receive a failing grade in the course. Whooley alleges that despite the chemistry teacher‘s awareness of his health issues, she refused to give him the extra time to prepare for a test he missed when he was out of school for a doctor‘s appointment. Additionally, Whooley generally avers thе chemistry teacher refused to follow Gabriel‘s 504 Plan and allow him extra accommodations for time. She also generally pleads another unnamed teacher routinely mocked Gabriel for his constant anxiety over achieving the best grades.
On the night of December 13, 2017, Gabriel informed his mother that he would be
III. LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
A motion to dismiss a complaint under
IV. DISCUSSION
A. Mixing Defendants Together
The Complaint is critically deficient for all оf Whooley‘s causes of action against Yoshihara because she improperly mixes Yoshihara with the District by accusing them of the same conduct and holding them collectively liable. The Complaint, however, contains no facts stating what acts Yoshihara committed and how his individual conduct caused Whooley harm. There is virtually no detail about Yoshihara‘s interaction with Whooley or Gabriel, nor anything to infer that Yoshihara played any role with the accused District personnel to cause either Whooley or Gabriel injury. Indeed, in Walsh v. Techachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1116 (E.D. Cal. 2011), a defendant superintendent‘s motion to dismiss was granted because he could “only be held liable for his own individual actions” under Iqbal, and the plaintiff had failed to allege any facts directed at the superintendent. Here, Whooley effectively concedes this point by failing to address it in her Opposition, opting instead to assert that Yoshihara rejected three separate offers from the California Department of Education for free youth mental health training for teachers the year before
B. California Education Code § 215
To start, there is an explicit private right of action under the statute.
That said, Whooley‘s cause of action under this statute must be dismissed. Her overarching theory of liаbility against the District is that its repeated failures to implement properly Gabriel‘s 504 Plan drove him to commit suicide. Nowhere in the Complaint, however, does Whooley allege that the District‘s failure to adopt a policy on pupil suicide prevention, itself, played a role in fostering this tragedy. Therefore, this claim is dismissed with leave to amend.
Yoshihara argues Whooley should not be given leave to amend her
statute imposes a duty upon the governing body of a school district and not specifically on the superintendent. The first argument fails for the reasons just explained. The latter argument also fails, but for different statutory reasons.
At first glance, there appears to be some support for Yoshihara‘s position.
Finally, when the legislature has seen fit expressly to impose a duty specifically on a superintendent, it has done so elsewhere in the Education Code. See
C. Supervisory Liability Under 42 U.S.C. § 1983
Yoshihara asserts supervisory personnel cannot be held liable under
D. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
Whooley bears the burden of proving disability within the meaning of the statute. Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1063 (9th Cir. 2005). Additionally, to recover monetary damages she must show the discrimination was intentional, Duvall v. Cty. of Kitsap, 260 F.3d 1125, 1138-39 (9th Cir. 2001), or that the culpable entity acted with deliberate indifference. Mark H. v. Hamamoto, 620 F.3d 1090, 1099 (9th Cir. 2010). An educational organization acts with deliberate indifference if it (1) had knowledge that a harm to a federal protected right is substantially likely and (2) failed to act upon that likelihood. Mark H., 620 F.3d at 1099. The District asserts dismissal of Whooley‘s
The Ninth Circuit‘s decision in Mark H. is controlling here. In that case, the court held it was enough if: (1) the students needed autism-specific services to enjoy meaningful access to the benefits of a public education; (2) the state was on notice that the students needed those autism-specific services but did not provide them; and (3) autism-specific services were available as a reasonable accommodation. Mark H., 620 F.3d at 1097-98. The Ninth Circuit further held that the culpable educational entity acted with deliberate indifference if it knew the students needed autism-specific services in order to enjoy meaningful access to the benefits of a public education and failed to investigate whether those services were available as a reasonable accommodation. Id. at 1099. This mirrors the situation here. Gabriel was entitled to certain services, such as testing accommodаtions, because of his learning disability. The District was on notice as to the need for those accommodations because it knew Gabriel was on a section 504 plan. The District failed to investigate whether services such as extra time and separate spaces for testing were available as a reasonable accommodation. Alleged facts reflecting such failure include the lack of a proctor to administer Gabriel‘s AP English exam in a separate room or to confirm the submission of the appropriate accommodation documents for the June ACT test. Whooley has sufficiently alleged the District acted with deliberate indifference in violating
In general,
may seek monetary damages under the
F. Unruh Civil Rights Act (California Civil Code §§ 51, 51.5, 52)
California‘s
The California Supreme Court has not squarely addressed this question and federal district courts in California have differed in their conclusions. Compare Yates v. East Side Union High Sch. Dist., No. 18-cv-02966-JD, 2019 WL 721313 (N.D. Cal. Feb. 20, 2019) (holding a school district qualifies as a “business establishment” under the Unruh Act), with Zuccaro v. Martinez Unified Sch. Dist., No. 16-cv-02709-EDL, 2016 WL 10807692, at *9-13 (N.D. Cal. Sep. 27, 2016) (holding they do not). The California Supreme Court, however, has explained that the term “business establishment” should be сonstrued “in the broadest sense reasonably possible.” Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal. 3d 72, 78 (1985) (internal quotation marks omitted). The Act applies to an organization that is “classically ‘public’ in its operation,” namely one that “opens its . . . doors to the entire youthful population” of a city, or a “broad segment of the population,” with “no attempt to select or restrict membership or access on the basis of personal, cultural, or religious affinity, as private clubs might do.” Id. at 81, 84 (emphasis omitted).
In keeping with this broad reading, California courts have applied the Act not just to for-profit commercial establishments, but also to nonprofit institutions. See O‘Connor v. Village Green Owners Ass‘n., 33 Cal. 3d 790, 796 (1983) (“Nothing in the language or history of its enactment calls for excluding an organization from its scope simply because it is nonprofit.“). The Act, however, generally does not apply to a private social club, such as a private religious school that is “an expressive social organizаtion whose primary function is the inculcation of values in its youth members,” and whose admission policies are “effectively selective and based on these
The District does not dispute Drake High School is a public operation that provides educational services to the local community at no cost to the individuals it serves. In fact, it insists that its existence as a nonprofit provides a strong reason to infer that school districts should not qualify as “business establishments” under the act. The California Supreme Court, however, has applied the Unruh Act to nonprofit organizations. See Warfield, 10 Cal. 4th at 599; O‘Connor, 33 Cal. 3d at 796. The California appellate cases relied upon by the District and the district court in Zuccaro are readily distinguishable. Neither Carter v. City of Los Angeles, 224 Cal. App. 4th 808 (2014), nor Gregory v. County of Los Angeles, No. B251945, 2014 Cal. App. Unpub. LEXIS 8358 (Nov. 21, 2014), dealt with public schools with their “quintessential character of providing public aсcommodations and services to students.” Yates, 2019 WL 721313, at *2; see Carter, 224 Cal. App. 4th at 825 (in dictum casting doubt on challenge to city‘s sidewalk construction); Gregory, 2014 Cal. App. Unpub. LEXIS 8358, at *13-15 (holding a county animal shelter was not functionally equivalent to a commercial enterprise to warrant classifying it as a “business establishment” under the Unruh Act).
Consequently, the reasoning in Yates is more persuasive and the District may constitute a “business establishment” under the Unruh Act. See Yates, 2019 WL 721313, at *3. In Yates, the court found this conclusion squares with the
Finally, the District contends that even if the Act applies, Whooley has not alleged any discriminatory intent on the part of the District, nor any causal link between Gabriel‘s suicide and any alleged adverse action on the part of the District. Furthermore, for reasons discussed below with regard to the common law torts, the District asserts suicide is an intervening event that breaks the chain of causation, thereby precluding tort liability. Both arguments fail for the reasons discussed above with regard to the
G. Negligence
Whooley argues the District‘s conduct negligently caused Gabriel‘s suicide. Under California law, “[t]he elements of negligence are: (1) defendant‘s obligation to conform to a certain standard of conduct for the protection of others against
Both parties appear to conflate their arguments regarding Whooley‘s pleadings and the negligence factors of duty and proximate cause. As discussed with regard to her
1. Uncontrollable Impulse
Proximate cause, or legal cause, is absent where an intervening act or event breaks the chain of causation between the defendant‘s conduct and the plaintiff‘s injuries as a matter of law. Lombardo v. Huysentruyt, 91 Cal. App. 4th 656, 665-66 (2001). In California, suicide has historically been viewed as an intervening event that always breaks the chain of causation, thereby precluding any tort liability for a suicide. Tate v. Canonica, 180 Cal. App. 2d 898, 901-03 (1960). An exception is where the defendant‘s negligence causes the decedent to suffer from an uncontrollable impulse to commit suicide. Id. at 913-15. The underlying rationale for this exception is that absent volition, the decedent‘s act of suicide is not independent from the defendant‘s original negligence. Therefore, in order to satisfy the uncontrollable impulse test, a plaintiff must show that a defendant‘s negligence causes the decedent to suffer a mental condition in which the decedent cannot control his or her suicidal impulses. Id. at 915. On the other hand, if the decedent was able to control such impulses and had the аbility to refrain from committing suicide, then it would be a superseding event that breaks the chain of causation between the defendant‘s negligence and the death. Id.
Both the District and Yoshihara counter that they are immune from liability under
Similarly, the District‘s citation to
Finally, the District‘s contention that the allegedly negligent conduct at issue cannot give rise to liability because it occurred over a period of months instead of years is unpersuasive. The District points to no authority suggesting negligence must last for a minimum duration of time before it
2. Specific Duty
Whooley‘s negligence claim, however, may not proceed under her specific duty theory of liability. Primarily relying upon Walsh, Whooley asserts the District had a specific duty to prevent Gabriel‘s foreseeable suicide. Under California law, there is generally no duty to prevent suicide unless there is a special relationship between the defendant and the decedent that gives rise to such a duty. See Nally v. Grace Cmty. Church, 47 Cal. 3d 278, 293 (1988). Courts have imposed a duty to prevent suicide only where the defеndant has physical custody and substantial control over a person or where the defendant has special training or expertise in mental illness and has sufficient control over a person to prevent the suicide. Walsh, 997 F. Supp. 2d at 1085. Typically, such defendants are a prison, jail, or hospital. Id. Under such circumstances, the defendant has a custodial relationship over others that uniquely place the defendant in a position to detect and prevent suicide. Id. at 1086.
It is unclear whether a duty to prevent suicide could similarly be imposed on a school. Whooley does not cite to any California state court case explicitly imposing such a duty on a school district or its employees. Cf. Nally, 47 Cal. 3d at 299 (indicating that a duty to prevent suicide has “heretofore” only been imposed on psychiatrists and hospitals caring for suicidal patients). Even Walsh only assumed the existence of such a duty for the purposes оf its analysis finding a plaintiff failed to produce sufficient evidence to show a school district had breached that duty. Walsh, 997 F. Supp. 2d at 1088. The court in Walsh did conclude that a strong argument could be made to support imposition of a duty to prevent suicide based on the special relationship California courts have found between a school and its students. Id. at 1086. This special relationship is premised on the idea that school personnel stand in loco parentis to their students and not only have authority to exercise comprehensive control over them, but are expected to take “all reasonable steps” to protect its students from harm. Id. (quoting J.H. v. L.A. Unified Sch. Dist., 183 Cal. App. 4th 123, 142 (2010)).
Walsh concluded plaintiff had not provided sufficient evidence to show that defendants breached a duty to prevent a foreseeable suicide because there was nothing to suggest the decedent‘s suicide was foreseeable. Id. at 1087-88. Such is the case here. Evеn assuming the District had a duty to prevent the foreseeable suicide of one of its pupils, the Complaint is devoid of any facts to suggest that Gabriel was suicidal or why it should have been apparent to the District that his suicide was likely or foreseeable. Indeed, Whooley does not aver that she herself thought that Gabriel was suicidal. Cf. Id. at 1088 (“It is telling that [p]laintiff, who was aware of the bullying at school as anyone else, conceded that she herself never thought that [d]ecedent was depressed or suicidal. A juror would be hard-pressed to turn around and find that [d]efendants knew any better.“). She does not allege facts reasonably to infer why the District should have thought differently.
3. California Government Code Section 820.2
Yoshihara contends permitting Whooley to amend her pleadings as to him would be futile because there are no facts as to negligence she can allege that would satisfy proximate cause so, even crediting the improperly pled allegation regarding Yoshihara‘s refusal to accept the mental health training for the District‘s teachers, it is a discretionary decision entitled to immunity under
There is nothing to suggest amendment would be futile, as Whooley may be able to allege Yoshihara‘s rejection of the mental health training was not a discretionary decision entitled to statutory immunity, but a mandatory duty pursuant to a California statute. In that situation, Yoshihara would not be shielded from liability. Even then, Yoshihara has cited to no authority to suggest that he would have any statutory immunity for conduct prompting an uncontrollable impulse to commit suicide in any of the District‘s pupils.
H. Wrongful Death (California Code of Civil Procedure § 377.60)
To state a claim for wrongful death, a plaintiff must plead (1) the tort
I. Bystander Emotional Distress
Whooley‘s last cause of action is for “bystander emotional distress,” an apparent variant of a claim for negligent infliction of emotional distress to a bystander. A plaintiff must satisfy three requirements to state such a claim: (1) the plaintiff must be closely related to the injury victim; (2) the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and was then aware that it was causing injury to the victim; and (3) as a result, the plaintiff must have suffered serious emotional distress. Thing v. La Chusa, 48 Cal. 3d 644, 667-68 (1989). The District asserts Whooley cannot satisfy the second requirement as she was not present at the injury-producing event when it occurred. The District identifies Gabriel‘s act of hanging as the injury-producing event and appears to argue the event ended with Gabriel‘s death. In the Complaint, Whooley identifies separate injury-producing events when she avers she: (1) witnessed, saw, and perceived discrimination towards Gabriel, and (2) was present, witnessed, saw, and perceived Gabriel hanging from Gabriel‘s neck, yet neither include facts reflecting her presence at either injury-producing event.
With regard to her averred witnessing of Gabriel‘s discrimination, it is unclear if California courts recognize a cause of action for negligent infliction of emotion distress where the injury-producing event causes a purely mental injury as opposed to a physical one. Indeed, the cases discussed by the parties involved a plaintiff witnessing only physical injuries that were inflicted upon a loved one. In a separate opinion resolving summary judgment with regard to claims for bystander negligent infliction of emotional distress, the court in Walsh dealt with a student‘s suicide, but only with regard to the physical hanging itself, as the plaintiff in that case did not argue otherwise and the court did not discuss the potential effect on a bystander of observing the school district‘s failure to prevent bullying of the decedent. Walsh v. Tehachapi Unified Sch. Dist., No. 1:11-cv-01489-LJO-JLT, 2013 WL 4517887, at *4 & n.2 (E.D. Cal. Aug. 26, 2013). Even assuming a cause of action can exist where the observed injury is entirely non-physical, Whoоley fails to allege that she was present at any of the identified events where the District failed to implement properly Gabriel‘s 504 Plan. For example, she does not allege that she was present at the AP Exam where Gabriel was informed his needs could not be accommodated, on the phone call where Gabriel
As for Whooley‘s observation of Gabriel hanging by his neck in his bedroom, the reasoning in Walsh is instructive. There, the court found the plaintiff‘s claim for negligent infliction of emotional distress could survive summary judgment because at the point of discovery the decedent was still alive (albeit unconscious and immobile) and therefore the noose and act of hanging continued to inflict injury on the decedent in plaintiff‘s presence. Walsh, 2013 WL 4517887, at *5-6. The court noted, however, that the analysis would be different if there was medical evidence indicating the decedent was already dead or brain dead at some point before plaintiff arrived on the scene. Id. at *5 n.5. Here, Whooley has not alleged that Gabriel was alive at the time she discovered him hanging in his bedroom. Therefore, this claim is dismissed with leave to amend.5
V. CONCLUSION
For the foregoing reasons, the District‘s motion is granted only with regard to Whooley‘s
IT IS SO ORDERED.
Dated: July 29, 2019
RICHARD SEEBORG
United States District Judge