Response ReplyCal. Super. - 6th Dist.September 28, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/15/2022 2:53 PM Reviewed By: R. Nguyen Case #21CV388845 Envelope: 8514746 21CV388845 Santa Clara - Civil R. Nguyen \oooqmmamw'fl N N N N L) >- H y-a >--A H H v-d >--A r-A u-A A U) N t- O \O OD N O\ U: g w [\J '-‘ O 26 27 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 OF THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA JOHN DOE, a minor by and through is Guardian Case No.1 21CV388845 ad Litem, MATTHEW DOE , . REPLY T0 PLAINTIFF’S OPPOSITION T0 Plamtlff, DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S MOTION T0 STRIKE V- PORTIONS 0F PLAINTIFFS’ FIRST AMENDED COMPLAINT LOS GATOS UNION SCHOOL DISTRICT, JOSEPH BRIAN HOUG, an individual and ROES DATE: Mamh 22’ 2022 _ _ TIME: 9.00 am. 1 through 25, mcluswe DEPT; 20 DefendantS- [FEES EXEMPT PURSUANT T0 GOVERNMENT CODE SECTION 6103] Action Filed: September 28, 2021 Trial Date: Not Set TO THE COURT, ALL PARTIES AND THEIR COUNSEL 0F RECORD: PLEASE TAKE NOTICE that Defendant, LOS GATOS UNION SCHOOL DISTRICT, hereby and herewith submits the following reply t0 Plaintiff‘s Opposition to Motion to Strike. I. THAT PART OF PARAGRAPH 30 ATTRIBUTING LIABILITY TO A FAILURE TO EDUCATE PLAINTIFFS IS IMMATERIAL BECAUSE IT CANNOT SUPPORT ANY BASIS FOR LIABILITY In addition t0 an alleged failure to document complaints about Houg, failure to detect Houg’s predatory behavior and allegedly failing to properly supervise either students or Mr. Houg so as t0 1 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT ®OONO\U‘I4>UJ[\J)- NNNNNNNNN-twv-‘m-twwr-wt- OOQQU’I-bwwt-‘OOOONQLll-hwwhao protect Plaintiffs from being sexually assaulted, Plaintiffs allege that there was a failure “t0 educate plaintiffs and other students as t0 what constitutes inappropriate physical contact between a teacher and student; andfailing to educate students 0n the right t0 report teacher misconduct withoutfear of retaliation under Title IX and the Uniform Complaint procedures.” (FAC, 1130.) It is this part 0f the pleading that exceeds the law, is immaterial and is therefore subject t0 strike pursuant t0 Code of Civil Procedure section 436(a). Plaintiffs offer no legal authority that a California Public School District can be liable for failing t0 educate students as to what constitutes inappropriate physical contact 0r their rights t0 report teacher misconduct and they fail t0 counter the holding in Peter W that a school district is not subject t0 a negligence claim under a “negligent failure t0 educate” theory 0f recovery. (Peter W v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 825.) Instead, Plaintiffs identify three cases t0 support their failure t0 educate theory 0f negligence. See Opposition, fn. I, 2:1 7-28. However, each of these cases is based upon the special relationship which triggers a duty of reasonable supervision, not a duty t0 educate. Virginia G. involved a student sexually molested by a teacher and a claim for negligent hiring and supervision. (Virginia G. v. ABC Unified School District (1993) 15 Cal.App.4th 1848, 1853.) The court found the potential for a negligence claim “if individual district employees responsible for hiring and/or supervising teachers knew or should have known of a person’s prior sexual misconduct towards students, and thus, that he posed a reasonably foreseeable risk of harm to students under supervision,” then those employees owed a duty to protect the students from such harm. (1d. at 1855.) Virginia G. did not involve any claim that the district owed a student any duty t0 educate them about sexual abuse or any other aspect of education. Likewise, M. W. v. Panama Buena Vista Union School District did not involve a claim for failure t0 educate. (M W. v. Panama Buena Vista Union School District (2003) 110 Cal.App.4th 508, 516-517. In M. W., a jury’s conclusion that a school district violated its duty to reasonably supervise students was upheld where a student proved they were sodomized by a student 0n campus before school where the perpetrator had a long history 0f abusive conduct 0n school campus. (Id. at 519-520.) This was another negligent supervision case without any reference t0 any theory 0f recovery 0n the basis 0f education or 2 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT .bbJN \OOONQLJI 10 11 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 curriculum. Last, the DZ. v. Los Angeles Unified School District case also involved a duty 0f supervision, and not a duty 0f education. (D. Z. v. Los Angeles Unified School District (2019) 35 Cal.App.5th 210, 223.) Liability there was based 0n the duty owed by school personnel to supervise students under their protective duty 0f ordinary care. (Id.) A school district was noted t0 be liable for negligence “0f supervisory or administrative personnel” who allegedly knew, 0r should have known, 0f the foreseeable risk to students 0f sexual abuse by an employee, and yet hired, retained and/or inadequately supervised that employee. (Id.) Again, there was n0 claim 0r theory 0f negligent education. None 0f Plaintiffs’ cited cases detract from the Peter W. holding that school districts are not liable for alleged negligence in educating students. This prohibition encompasses that part 0f Paragraph 3O that is a subject 0f this Motion to Strike - the alleged duty t0 educate students regarding sexual abuse or their rights to pursue a Complaint without potential for retaliation. II. PRAYER ITEM 3 SHOULD BE STRICKEN Defendant agrees with Plaintiffs’ perspective that the determination of the concurrently filed demurrer should control as t0 Prayer item 3. District strongly believes that the demurrer as t0 the Bane Act Cause 0f Action should be sustained without leave to amend and Prayer item 3 should be stricken from the pleading as a consequence. III. CONCLUSION Defendant, Los Gates Union School District respectfully requests that it’s Motion to Strike be granted. There is n0 duty upon any California public school district to educate students 0n any topic. The curriculum for California public school students is set by the California Department 0f Education, and that discretion is properly exercised through administrative processes/channels other than a lawsuit. Respectfully submitted, Dated: March 15, 2022 SPINELLI, DONALD & NOTT Ross R. NOTT V ' ‘7 / THOMAS R. BOSWELL Attorneys for Defendant LOS GATOS UNION SCHOOL DISTRICT 3 REPLY TO OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S DEMURRER TO 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 OF SERVICE COURT: Superior Court of California, County of Santa Clara CASE NO.: 21CV388845 CASE NAME: Doe v. L05 Gatos Union School District I am a citizen 0f the United States, employed in the County 0f Sacramento, State 0f California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I am over the age 0f 18 and not a party t0 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 t0 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 0r before the close 0f each day’s business. (Code CiV. Proc., § 1013a(3) or Fed.R.CiV.P.5(a) and 4.1 .) On March 15, 2022, I caused the REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT LOS GATOS UNION SCHOOL DISTRICT’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT the original 0f which was produced on recycled paper, t0 be served via: g BY ELECTRONIC SERVICE" I caused such document to 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- 1 4 1 7 Attorneysfor Plaintiff 408/289-8127 (fax) rallard@cmalaw.ner mboskovichfcflcmalaw.net kim a, cmalawnet Steven Clark Attorney at Law 96 N. 3rd Street, Suite 660 S J CA 951 12 . 43181/2281663245 Attorneyfor Joseph Brzan Houg 408/289-1 509 steveclarklawgcflaolfiom I declare under penalty of perjury under the laws 0f the State 0f Califo is true and correct Executed on March 15, 2022, at Sacr , ' that the foregoing ‘\ Kate Pifér