Motion Amended

Cal. Super. - 6th Dist.September 28, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/7/2022 3:09 PM Reviewed By: A. Villanueva Case #21CV388845 Envelope: 8010891 21CV388845 Santa Clara - Civil A. Villanueva \OOONQUIhWN- Hg F‘O NNNNNNNNMHHH--H OONO‘xU‘l-QUJNHOOOONQUI-Bwtx) SPINELLI, DONALD & NOTT A Professional Corporation ROSS R. NOTT, SBN: 172235 THOMAS R. BOSWELL, SBN: 325656 601 University Avenue, Suite 225 Sacramento, California 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 Attorneys for Defendant LOS GATOS UNION SCHOOL DISTRICT SUPERIOR COURT 0F THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JOHN DOE, a minor by and through is Guardian Case No.: 21CV388845 ad Litem, MATTHEW DOE, and JOHN DOE 2, an individual DEFENDANT LOS GATOS UNION SCHOOL _ _ DISTRICT’S AMENDED NOTICE OF PlamtlffS, MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST V- AMENDED COMPLAINT LOS GATOS UNION SCHOOL DISTRICT, DATE: MaFCh 22a 2022 JOSEPH BRIAN HOUG, an individual and ROES TIME 9=00 a-m- - - DEPT.: 20 1 through 25, Incluswe, [FEES EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103] Complaint Filed: September 28, 2021 Trial Date: Not Set Defendants. TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that 0n March 22, 2022 at 9:00 a.m. in Department 20 of the above- entitled Court located at 191 N. First Street, San Jose, CA 951 1 3, Defendant Los Gatos Union School District (“Defendant”) will, and hereby does, move the Court for an order striking portions 0f Plaintiffs’ First Amended Complaint as follows: 1. A11 language that Defendant owed a duty t0 educate Plaintiffs and other students regarding inappropriate physical contact between a teacher and student and their rights to report such misconduct, specifically “failing t'o educate PLAINTIFFS and other students as t0 what constitutes 1 DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S AMENDED NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT \DOONOUI-bUJNH N N N u-A p-I H -a t-d v-t p- n-I p-~ pd N i-I O \D 00 fl ON U: -b DJ N '-' O N DJ inappropriate physical contact between a teacher and student; and failing t0 educate students 0n their right to report teacher misconduct without fear 0f retaliation under Title IX and the Uniform Complaint Procedures.” (First Amended Complaint 1[30, 8:17-20.) 2. All language regarding injunctive and/or equitable relief found at paragraph 35 (9:19- 10: 1 9) and Plaintiffs” prayer for damages item #3 “For injunctive, equitable, or other appropriate relief against DISTRICT.” (First Amended Complaint, Prayer Item #3, 10:3.) Defendant moves to strike these portions 0f the First Amended Complaint under Code of Civil Procedure section 436(a) because they are irrelevant, false, or improper. Pursuant to California Rule of Court 3. 1 322(b), Defendant has filed a concurrent demurrer to Plaintiffs’ First Amended Complaint, which disputes the viability of the Third Cause of Action for Violation 0f the Tom Bane Civil Rights Act, Civil Code section 52.1, because it is either based upon conclusory allegations without requisite supporting facts 0r because it is not a viable claim against Defendant. Defendant’s motion t0 strike is made pursuant t0 Code of Civil Procedure sections 435, 435.5 and 436, and is based upon this Notice 0f Motion and Motion t0 Strike, the Memorandum of Points and Authorities in support of this motion, the Declaration of Thomas R. Boswell and such other evidence as the Court deems relevant. Pursuant t0 Civil Local Rule 8(E): The Court follows CRC 3.1308(a)(1) for those departments that have elected to issue tentative rulings in civil law and motion and discovery matters. Counsel and litigants are responsible for determining whether the department hearin their motion has made this election. Those departments issuing tentative rulings will o so generally by 2:00 p.m., and no later than 3:00 p.m., 0n the court day preceding the scheduled hearing. If the Court has not directed oral argument, a party contesting a tentative ruling must give notice of its intention to appear t0 the other side and the Court n0 later than 4:00 pm. 0n the court day preceding the scheduled hearing. Appearances may be made by telephone (through CourtCall) 0r in person. The tentative ruling will automatically become the order 0f the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails to timely notice an obj ection to the other side and the Court. Tentative rulings will be posted 0n the Court's website, www.scscourt.org, where further information may be found. If a party does not have access t0 the intemet, the tentative ruling may be accessed by calling Court Services at (408) 882-25 15. Questions about these procedures may be addressed to the specific department where the matter is t0 be heard. /// 2 DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S AMENDED NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT \ooo'xloxmnwww N N N N N N *-‘ *-‘ '-‘ N H h-I H -- v-t p-t U} h DJ N H O 0 GO N O\ U! -b b) N --‘ O 27 28 Dated: January _, 2022 SPINELLI, DONALD & NOTT M\ Ross I(IWIT r’ V JV ‘\\ THOMAS R. BOSWELL Attorneys for Defendant LOS GATOS UNION SCHOOL DISTRICT By 3 DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S AMENDED NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT PROOF 0F SERVICE COURT: Superior Court of California, County of Santa Clara CASE NO.: 21CV388845 CASE NAME: Doe v. Los Gatos Union School District I am a citizen 0f the United States, employed in the County of Sacramento, State 0f California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. I am readily familiar with Spinelli, Donald & Nott’s practice for collection and processing 0f correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at or before the close of each day’s business. (Code Civ. Proc., § 1013a(3) or Fed.R.CiV.P.5(a) and 4.1.) On January 7, 2022, I caused the DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S AMENDED NOTICE 0F MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT the original of which was produced on recycled paper, to be served via: BY ELECTRONIC SERVICE- I caused such document t0 be electronically served by filing said document electronically in accordance with rules of electronically filing documents. See Local Rule 5-135(a); Fed. R. Civ. P. 5(b)(2)(D). B. Robert Allard Mark J. Boskovich Corsiglia McMahon & Allard LLP 96 North Third Street, Suite 620 San Jose, CA 951 12 408/289-1417 Attorneysfor Plaintiff 408/289-8127 (fax) rallard@cmalaw. net mbaskovich®cmalawnet kim cmalaw.net Steven Clark Attorney at Law 96 N. 3rd Street, suite 660 San Jose, CA 951 12 Attorneyfor Joseph Brian Houg 408/271-33245 408/289-1 509 steveclarklaw@aol.com I declare under penalty of perjury under the laws of the State 9f California that the foregoing