N.M. v. Ramona Unified School District et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
N.M., a minor, by and through his
Guardian ad Litem Pamela McKeirnan.,
Plaintiff,
v.
RAMONA UNIFIED SCHOOL
DISTRICT, et al.,
Defendants.
Case No. 24-cv-2306-BJC-MSB
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
[Doc. No. 17, 25]
On April 18, 2025, Plaintiff N.M., a minor by and through his Guardian ad Litem
Pamela McKeirnan (“Plaintiff”), filed a First Amended Complaint against Defendants
Ramona Unified School District, Chris Gunnett, Chris Rogers, Audrey Beyer, Eileen
Highley, and Does 1 through 100 (collectively, “Defendants”). 	Doc. No. 15 (“FAC”).
Defendants have since filed a motion to dismiss. Doc. No. 17. Plaintiff filed an opposition,
to which Defendants replied. Doc. Nos. 18, 19. The Court found the matter suitable for
determination on the papers and without oral argument pursuant to Civil Local Rule
7.1.d.1. Doc. No. 20. For the reasons set forth below, the Court GRANTS IN PART and
DENIES IN PART Defendants’ motion to dismiss.
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I. BACKGROUND
Ramona Unified School District (“RUSD”) is a public education agency that
operates numerous schools in San Diego, California. FAC ¶ 7. Hanson Lane Elementary
School (“Hanson”) is one such school within RUSD. 	Id. ¶ 8. 	Prior to the 2023–2024
school year, Defendant Gunnett was the Principal of Hanson, and Defendant Highley was
Director of Special Education for RUSD. Id. ¶¶ 9, 12. At the beginning of the 2023–2024
school year, Defendant Rogers became the Principal of Hanson, and Defendant Beyer
became Director of Special Education for RUSD. 	Id. ¶¶ 10, 13. 	At all relevant times,
Defendant Thurman was the Superintendent for RUSD.1 Id. ¶ 11.
Plaintiff N.M. is an African American child who attended Hanson until May 2024.2
Id. ¶¶ 5, 21, 68. 	He has been diagnosed with numerous conditions and disorders that
qualify him to receive special education services and an Individualized Education Plan
(“IEP”). 	Id. ¶ 22. 	Plaintiff alleges that while a student at Hanson, he endured severe
discrimination and harassment based upon his race and disabilities and that he was
subjected to physical abuse by other students for approximately two years. 	Id. ¶ 23.
Plaintiff explains that the bullying was so severe that he expressed suicidal intent and was
hospitalized for his own safety. 	Id. ¶¶ 86, 218. 	During one altercation in particular in
February 2024, another student repeatedly kicked Plaintiff in his head and chest, and he
sustained a concussion as a result. Id. ¶¶ 56–58.
Plaintiff’s mother became aware of the physical and emotional abuse in Spring 2022
and repeatedly reported the conduct to Gunnett, Highley and others within RUSD. 	Id. ¶
26, 28–29, 35. Plaintiff alleges that despite being on notice of the discrimination and abuse,
Defendants failed to stop the harassment or take adequate measures to protect him. Id. 36.
Additionally, Plaintiff contends that because of Defendants’ inaction and tolerance of the
1 The Court hereinafter refers to Defendants Gunnett, Rogers, Highley, Beyer, and Thurman as the
“Individual Defendants.”
2 At the time of filing the Complaint, N.M. was nine years old. FAC ¶¶ 5, 21.
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abusive environment, he was deprived access to educational opportunities and benefits and
was denied a safe learning environment. Id. 37–38. Consequently, Plaintiff brings sixteen
(16) claims against Defendants for violation of his constitutional rights, as well as various
federal and California state laws.
II. LEGAL STANDARD
A. 	Rule 12(b)(1)
Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject
matter jurisdiction “either on the face of the pleadings or by presenting extrinsic evidence.”
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger asserts that
the allegations contained in a complaint are insufficient on their face to invoke federal
jurisdiction.” 	Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 	In
ruling on a Rule 12(b)(1) motion attacking the complaint on its face, the Court accepts the
allegations of the complaint as true. See, e.g., Wolfe v. Strankman, 392 F.3d 358, 362 (9th
Cir. 2004). 	“By contrast, in a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction.” 	Safe Air,
373 F.3d at 1039. “With a factual Rule 12(b)(1) attack . . . a court may look beyond the
complaint to matters of public record without having to convert the motion into one for
summary 	judgment. 	It 	also 	need 	not 	presume 	the 	truthfulness 	of 	the 	plaintiff[‘s]
allegations.” 	White, 227 F.3d at 1242 (internal citation omitted); see also Thornhill Pub.
Co., Inc. v. General Tel & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979) (“Where
the jurisdictional issue is separable from the merits of the case, the judge may consider the
evidence presented with respect to the jurisdictional issue and rule on that issue, resolving
factual disputes if necessary. . . ‘[N]o presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.’”) (quoting Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (9th Cir. 1977)). 	“However, where the
jurisdictional 	issue 	and 	substantive 	issues 	are 	so 	intertwined 	that 	the 	question 	of
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jurisdiction is dependent on the resolution of factual issues going to the merits, the
jurisdictional determination should await a determination of the relevant facts on either a
motion going to the merits or at trial.” 	Augustine v. U.S., 704 F.2d 1074, 1077 (9th Cir.
1983). It is the plaintiff who bears the burden of demonstrating that the Court has subject
matter jurisdiction to hear the action. 	See Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
1989).
B. 	Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. 	Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible
on its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ.
P. 12(b)(6). 	The plausibility standard demands more than a “formulaic recitation of the
elements 	of 	a 	cause 	of 	action,” 	or 	“‘naked 	assertions’ 	devoid 	of 	‘further 	factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555, 557); Twombly, 550 U.S. at 555 (“[F]actual allegations must be enough to raise a
right to relief above the speculative level.”). 	Instead, the complaint “must contain
sufficient allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth
of all factual allegations and must construe them in the light most favorable to the
nonmoving party. 	Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996)
(citing Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). The court need
not take legal conclusions as true merely because they are cast in the form of factual
allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting W. Min.
Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory allegations of
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law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” 	Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not
look beyond the complaint for additional facts. See United States v. Ritchie, 342 F.3d 903,
907–08 (9th Cir. 2003). “A court may, however, consider certain materials—documents
attached to the complaint, documents incorporated by reference in the complaint, or matters
of judicial notice—without converting the motion to dismiss into a motion for summary
judgment.” 	Id. at 908; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119,
1125–26 (9th Cir. 2002). “However, [courts] are not required to accept as true conclusory
allegations which are contradicted by documents referred to in the complaint.” 	Steckman
v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998).
Where dismissal is appropriate, a court should grant leave to amend unless the
plaintiff could not possibly cure the defects in the pleading. 	Knappenberger v. City of
Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000)).
III. DISCUSSION
Plaintiff pleads the following sixteen claims: (1) “Violation of 42 U.S.C. Section
1983 – Equal Protection” against the Individual Defendants; (2) “Violation of 42 U.S.C.
Section 1983 – Fourteenth Amendment – Danger Creation” against the Individual
Defendants; (3) “Violation of Constitutional Rights, 42 USC Section 1983 (Monell – Equal
Protection)” against the Individual Defendants; (4) “Violation of Constitutional Rights, 42
USC Section 1983 (Monell – 14th Amendment Danger Creation)” against the Individual
Defendants; (5) racial harassment in violation of Title VI of the Civil Rights Act against
RUSD; (6) violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
against RUSD; (7) violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, against RUSD; (8) violation of California’s Ralph Act, Cal. Civ. Code § 51.7, against
the Individual Defendants; (9) violation of California’s Bane Act, Cal. Civ. Code § 52.1,
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against the Individual Defendants; (10) discrimination in violation of California Education
Code § 220 against the Individual Defendants; (11) assault and battery against the
Individual 	Defendants; 	(12) 	intentional 	infliction 	of 	emotional 	distress 	against 	the
Individual Defendants; (13) negligence per se in violation of California Penal Code §
11166 against the Individual Defendants; (14) “Negligent Supervision/Failure to Warn”
against the Individual Defendants; (15) “Negligent Failure to Warn, Train, or Educate
Plaintiff” against the Individual Defendants; and (16) negligence against the Individual
Defendants.
As a threshold matter, Plaintiff improperly characterizes his first two causes of
action as claims for violation of 42 U.S.C. § 1983. 	See FAC at 11, 12.3 Title 42 of the
United States Code, Section 1983 is not itself the source of any substantive rights. 	This
statute merely provides “a method for vindicating federal rights elsewhere conferred.”
Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979) (internal quotation marks omitted)). 	In other words, “Section 1983
creates a private right of action against individuals who, acting under color of state law,
violate federal constitutional or statutory rights.” 	Devereaux v. Abbey, 263 F.3d 1070,
1074 (9th Cir. 2001). 	Consequently, there is no such claim for “Violation of 42 U.S.C.
Section 1983.” See Sernoffsky v. Novak, 773 F. Supp. 3d 988, 1006 (S.D. Cal. 2025). To
this extent, the Court DISMISSES Plaintiff’s first two claims.
A plaintiff alleging a claim under § 1983 must plead that (1) the defendants acting
under color of state law (2) deprived plaintiffs of rights secured by the Constitution or
federal statutes. Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021).
Here, Plaintiff references the Equal Protection Clause of the Fourteenth Amendment,4 as
well as his substantive due process rights protected by the Fourteenth Amendment. FAC
3 Unless otherwise noted, all citations include the pagination assigned by the CM/ECF system.
4 Plaintiff also appears to rely on the right to equal protection the Supreme Court has identified within
the Fifth Amendment. See United States v. Windsor, 570 U.S. 744, 774 (2013).
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¶¶ 73–74, 83. 	Accordingly, the Court presumes for the limited purpose of resolving the
present motion to dismiss that Plaintiff brings his first and second claims for violations of
these constitutional rights, respectively.
The Court further presumes that by way of his third and fourth causes of action
Plaintiff seeks to bring these two claims pursuant to Monell v. New York City Dep’t of
Social Servs., 436 U.S. 658 (1978). Monell provides that a local governmental entity:
may not be sued under § 1983 for an injury inflicted solely by its employees
or agents. Instead, it is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.
Id. at 694; see also Connick v. Thompson, 563 U.S. 51, 60 417 (2011) (“A municipality or
other local government may be liable under [Section 1983] if the governmental body itself
‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” (quoting Monell, 436 U.S. at 692)).
Here, Plaintiff vaguely titles these two claims “Violation of Constitutional Rights”
and references Monell. FAC at 15, 18. The substance of these two claims strongly suggests
he is bringing his first two constitutional violation claims pursuant to Monell. See FAC ¶¶
94–96 (alleging a custom of inadequately responding as moving force behind violation),
110–111 (alleging a custom of harassment as moving force behind violation).
With this in mind, the Court turns to the substance of Defendants’ motion to dismiss.
A. 	Eleventh Amendment Immunity
Defendants first ask the Court to dismiss all of Plaintiff’s claims against the
Individual Defendants pursuant to the Eleventh Amendment. According to the Individual
Defendants, they are immune from suit. Doc. No. 17-1 at 12–16.
The 	Supreme 	Court 	has 	interpreted 	the 	Eleventh 	Amendment, 	with 	limited
exceptions, to prohibit a citizen from suing a state in federal court. Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669–70. (1999). The Supreme
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Court has further held that state officials acting within their official capacity are not
“persons” within the meaning of § 1983; when a state official is sued their official capacity
the suit “is not a suit against the official but rather is a suit against the official’s office” and
as such “is no different from a suit against the State itself.” 	Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). Eleventh Amendment immunity also extends to state law
claims brought against states and state officials in their official capacities in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984); Pena v. Gardner,
976 F.2d 469, 473 (9th Cir. 1992); Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129,
1133–34 (9th Cir. 2006) (holding that the Eleventh Amendment immunizes school districts
in California from tort claims and claims brought under the Unruh Act and the Education
Code). 	As the Ninth Circuit has aptly explained: “the Eleventh Amendment deprives
federal courts [of] jurisdiction to order state actors to comply with state law . . . It is difficult
to think of a greater intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.” 	Gilbreath v. Cutter Biological,
Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (quoting Pennhurst, 465 U.S. at 106) (internal
quotation marks omitted); see also Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that non-consenting
States may not be sued by private individuals in federal court.”). 	The Ninth Circuit has
held that, under California law, school districts are considered state agencies for purposes
of the Eleventh Amendment. 	See, e.g., Belanger v. Madera Unified Sch. Dist., 963 F.2d
248, 254 (9th Cir. 1992).
Plaintiff pleads Claims 1–4 and 8–16 against the Individual Defendants. Defendants
seem to acknowledge that Plaintiff only names the Individual Defendants in their
individual capacities. 	See Doc. No. 17-1 at 16 (“Here, there is no dispute that the First
Amended Complaint sues the individual Defendants in their individual capacities.”); but
see id. at 11–12 (“. . . Plaintiff has continued to sue the individual Defendants in their
official capacities as employees of the District.”). 	In any event, a review of the First
Amended Complaint reveals that Plaintiff explicitly pleads these claims against the
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Individual Defendants in their individual—not official—capacities. 	FAC ¶ 17 (alleging
that the Individual Defendants are “sued only in their individual capacity.”). 	Seemingly
recognizing 	this, 	Defendants 	contend 	that, 	despite 	this 	express 	language, 	Plaintiff
nevertheless raises these claims against them in their official capacities. 	The Court
disagrees. As the Supreme Court has explained:
The distinction between individual- and official-capacity suits is paramount
here. In an official-capacity claim, the relief sought is only nominally against
the official and in fact is against the official’s office and thus the sovereign
itself. Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989); Dugan
v. Rank, 372 U. S. 609, 611, 620-622 (1963). This is why, when officials sued
in their official capacities leave office, their successors automatically assume
their role in the litigation. Hafer, 502 U. S. at 25. The real party in interest is
the government entity, not the named official. See Edelman v. Jordan, 415
U.S. 651, 663-665 (1974). “Personal-capacity suits, on the other hand, seek to
impose individual liability upon a government officer for actions taken under
color of state law.” Hafer, 502 U. S. at 25 (emphasis added); see also id., at
27-31 (discharged employees entitled to bring personal damages action
against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 (1971). “[O]fficers sued in their personal capacity come
to court as individuals,” Hafer, 502 U. S. at 27, and the real party in interest
is the individual, not the sovereign.
Lewis v. Clarke, 581 U.S. 155, 162–63 (2017).
Here, there is no indication that Plaintiff intends to sue the offices of the Hanson
Principal or RUSD Special Education Director or Superintendent. Stated differently, the
real parties in interest here are the Individual Defendants, not their offices. The mere fact
that the Individual Defendants were all RUSD employees and acting within those roles
does not overcome the fact that Plaintiff seeks to hold them personally liable for their
actions taken under color of state law. And it is well-settled that Plaintiff can pursue his
claims for damages against them in this manner. See, e.g., Hafer v. Melo, 502 U.S. 21, 31
(1991). Accordingly, because Plaintiff brings his claims against the Individual Defendants
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in their individual capacities, they are not entitled to Eleventh Amendment immunity. The
Court therefore DENIES Defendants’ motion on this basis.5
B. 	Qualified Immunity & Absolute Privilege
Next, Defendants argue that the Individual Defendants are entitled to qualified
immunity. Doc. No. 17-1 at 16–17. “The Supreme Court has ‘repeatedly . . . stressed the
importance of resolving immunity questions at the earliest possible stage of litigation.'’”
Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S.
224, 227 (1991)). 	However, the Ninth Circuit has found that “[d]etermining claims of
qualified immunity at the motion-to-dismiss stage raises special problems for legal decision
making,” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), particularly where the Court
is “aided only by the skeletal . . . factual picture sketched out in the complaint,” Kwai Fun
Wong v. United States INS, 373 F.3d 952, 956 (9th Cir. 2004). “When, as here, defendants
assert qualified immunity in a motion to dismiss under Rule 12(b)(6), dismissal is not
appropriate unless we can determine, based on the complaint itself, that qualified immunity
applies.” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (internal citation omitted)).
Here, the Court finds that Defendants are not entitled to a determination on their
qualified immunity defense at this stage of the litigation. Defendants merely set forth the
relevant legal standard and do not substantively argue why they should be entitled to a
finding of qualified immunity based upon the facts alleged in the First Amended Complaint
alone. In light of the scant record before the Court, the Court declines to reach Defendants’
5 To the extent Defendants ask the Court to dismiss Plaintiff’s claims against RUSD (Claims 5, 6, and 7)
pursuant to the Eleventh Amendment, see Doc. No. 17-1 at 19–20, the Court DENIES their motion. Title
VI of the Civil Rights Act (Claim 5), Title II of the Americans with Disabilities Act (Claim 6), and Section
504 of the Rehabilitation Act (Claim 7) are all examples of Congress’ express abrogation of states’
Eleventh Amendment immunity. 	See 42 U.S.C. § 2000d-7(a)(1) (providing that states are not immune
from suit under the Eleventh Amendment for violations of section 504 of the Rehabilitation Act of 1973
or Title VI of the Civil Rights Act of 1964); 42 U.S.C. § 12202 (providing that states are not immune from
suit under the Eleventh Amendment for violations of Title II of the Americans with Disabilities Act of
1990). Moreover, Defendants repeat their Eleventh Amendment immunity argument elsewhere in their
motion. See Doc. No. 17-1 at 18 (arguing that Plaintiff’s § 1983 claims cannot be brought against RUSD
and the Individual Defendants pursuant to the Eleventh Amendment).
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qualified immunity defense at this time. 	Hernandez v. City of San Jose, 241 F. Supp. 3d
959, 975 (N.D. Cal. 2017), aff’d in part, dismissed in part, 897 F.3d 1125 (9th Cir. 2018)
(“[I]n many cases it is impossible to determine based on a complaint alone that qualified
immunity is warranted. In such circumstances, a court may deny a qualified immunity
defense without prejudice and after further factual development a defendant may re-raise
the qualified immunity issue at summary judgment or at trial.”) (citation and internal
quotation marks omitted). Consequently, the Court DENIES Defendants’ motion without
prejudice to Defendants renewing their request at summary judgment.
Defendants also argue in passing that the Individual Defendants are entitled to
absolute privilege. Doc. No 17-1 at 17. However, Defendants provide no legal support for
their position that the Individual Defendants’ challenged communications here—if any—
are privileged. Both California Civil Code § 47 and Brody v. Montalbano, 87 Cal. App.
3d 725, 733 (Cal. Ct. App. 1978), are inapposite as this case does not appear to involve any
published or broadcasted communications, and Plaintiff does not claim Defendants
defamed him or made any libelous statements. 	Accordingly, the Court 	DENIES
Defendants’ motion on this basis as well.
C. 	Monell Claims – Claims 3 & 4
Defendants also ask the Court to dismiss Plaintiff’s Monell claims, arguing that
RUSD, as a school district, is not a municipality subject to liability. Doc. No. 17-1 at 18–
19. Even assuming that is true, Plaintiff does not bring his Monell claims against RUSD.
He only pleads Claims 3 and 4 against the Individual Defendants. FAC at 15, 18. For this
reason, Defendants are not entitled to dismissal of these claims.
That said, there is simply no legal basis to pursue Monell claims against the
Individual Defendants. 	As discussed above, Monell provides a vehicle for holding a
government entity liable when its employees are found to have committed constitutional
violations, and “a policy, practice or custom of the entity can be shown to be a moving
force behind the violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d
892, 900 (9th Cir. 2011). 	Simply stated, a Monell claim may be brought only against a
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municipality, not an individual acting in their individual capacity. See Guillory v. Orange
Cty., 731 F.2d 1379, 1382 (9th Cir. 1984) (“Monell does not concern liability of individuals
acting under color of state law.”); see also Robles v. Cty. of San Diego, No. 3:23-cv-00898-
JES-BLM, 2024 U.S. Dist. LEXIS 128996, at *31 (S.D. Cal. July 22, 2024); Doe v. Cty.
of San Joaquin, No. 2:24-cv-00899 WBS CKD, 2024 U.S. Dist. LEXIS 140233, at *4 (E.D.
Cal. Aug. 6, 2024); Cooper v. City of Fairfield, No. 2:21-cv-01538-JAM-KJN, 2023 U.S.
Dist. LEXIS 15238, at *8 (E.D. Cal. Jan. 30, 2023); Green v. Cal. Dep’t of Corr. & Rehab.,
No. 1:23-cv-01108-JLT-SAB, 2023 U.S. Dist. LEXIS 209693, at *29 (E.D. Cal. Nov. 22,
2023); De Magdaleno v. Cty. of Riverside, No. EDCV 21-2027 (SHKx), 2022 U.S. Dist.
LEXIS 101086, at *8 (C.D. Cal. Apr. 14, 2022); Reason v. City of Richmond, No. 20-cv-
01900-WBS-EFB, 2021 U.S. Dist. LEXIS 6015, at *13-14 (E.D. Cal. Jan. 12, 2021);
Casandra Pastora v. Cty. of San Bernardino, No. EDCV 21-1410 JGB (SPx), 2021 U.S.
Dist. LEXIS 258874, at *10 (C.D. Cal. Dec. 22, 2021). Thus, to the extent Plaintiff seeks
to hold the Individual Defendants liable for the constitutional violations asserted in Claims
1 and 2 pursuant to Monell, the Court DISMISSES Claims 3 and 4 with prejudice.
D. 	California’s Ralph Act and Bane Act – Claims 8 & 9
Plaintiff’s eighth and ninth claims are for violation of California’s Ralph Civil Rights
Act, Cal. Civ. Code § 51.7 (“Ralph Act”), and Tom Bane Civil Rights Act, Cal Civ. Code
§ 52.1 (“Bane Act”), respectively. Defendants move to dismiss these claims, asserting that
Plaintiff fails to adequately plead them. Doc. No. 17-1 at 20–21.
The Ralph Act broadly provides that “[a]ll persons . . . have the right to be free from
any violence, or intimidation by threat of violence committed against their persons or
property” on the basis of a variety of protected characteristics, including, as relevant here,
race. Cal. Civ. Code § 51.7(b)(1). Intending to supplement the Ralph Act and further deter
violence, California later enacted the Bane Act, which imposes liability on a person who
“interferes 	by 	threat, 	intimidation, 	or coercion, or 	attempts 	to 	interfere by 	threat,
intimidation, or coercion, with the exercise or enjoyment by any individual or individuals
of rights secured by the Constitution or laws of the United States, or of the rights secured
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by the Constitution or laws of this state.” Cal. Civ. Code § 52.1(b). Together, these statutes
were enacted to “provide a civil remedy for hate crimes.” D.C. v. Harvard-Westlake Sch.,
176 Cal. App. 4th 836, 844 (Cal. Ct. App. 2009).
In order to state a claim under the Ralph Act, a plaintiff must show:
(1) that the defendant threatened or committed violent acts against the plaintiff
or his or her property; (2) that a motivating reason for the defendant’s conduct
was his or her perception of race (or other protected status); (3) that the
plaintiff was harmed; and (4) that the defendant’s conduct was a substantial
factor in causing the plaintiff harm.
Rodriguez v. Cty. of Contra Costa, No. C 13-02516 SBA, 2013 U.S. Dist. LEXIS 158511,
at *17 (N.D. Cal. Nov. 1, 2013) (citing Austin B. v. Escondido Union Sch. Dist., 57 Cal.
Rptr. 3d 454, 470 (Cal. Ct. App. 2007)).
A plaintiff pleading a Bane Act claim must allege: “(1) intentional interference or
attempted interference with a state or federal constitutional or legal right, and (2) the
interference or attempted interference was by threats, intimidation or coercion.” 	Allen
v. City of Sacramento, 183 Cal. Rptr. 3d 654, 676 (Cal. Ct. App. 2015)
Defendants argue that Plaintiff fails to plead how each Individual Defendant violated
these statutes. 	Doc. No. 17-1 at 20. 	Defendants also maintain that these claims are not
viable because mere negligence is not actionable. 	Id. at 20–21. 	While it appears that
Plaintiff pleads conduct which, if true, would amount to more than mere negligence, see,
e.g., FAC ¶¶ 26, 28, 35, 36, 41, 87 (alleging that the Individual Defendants were aware of
the bullying and harassment), ¶¶ 80, 92 (alleging that the Individual Defendants’ inaction
and failure to protect was intentional), the Court agrees that Plaintiff’s group pleading is
problematic as he does not put each Individual Defendant on notice of how his or her
conduct allegedly violated these statutes. 	With respect to his Bane Act claim, Plaintiff
responds to Defendants’ argument by pointing to paragraphs 182–185. Doc. No. 18 at 19.
However, these paragraphs are merely a formulaic recitation of the elements of his claim
and are utterly devoid of any factual support. And having independently reviewed the First
Amended Complaint in its entirety, the Court finds that Plaintiff fails to plausibly plead his
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Bane Act claim. The Court agrees with Plaintiff that retaliatory actions may be sufficient
to state a Bane Act claim based upon coercion or intimidation. See Bailey v. Shasta Union
High Sch. Dist., No. 2:23-cv-01750-KJM-DMC, 2024 U.S. Dist. LEXIS 210247, at *7
(E.D. Cal. Nov. 18, 2024). 	However, unlike in Bailey, Plaintiff does not allege that any
Individual Defendant retaliated against him for reporting the alleged abuse and assaults.
At best, Plaintiff vaguely alleges that “yard duty personnel” punished him for reporting the
discrimination and harassment, “going so far as to deprive him of his recess time.” FAC ¶
47. Assuming this amounts to retaliation that could plausibly support a finding of coercion
or intimidation, Plaintiff does not plead that any Individual Defendant deprived him of his
recess time. Nor does Plaintiff plead who these individuals on yard duty are and why the
Individual Defendants should be held liable for their allegedly retaliatory conduct. To that
end, Plaintiff pleads that the suggestion by his IEP team, which included Defendants Beyer
and Rogers, id. ¶ 43, that Plaintiff be removed from recess was rejected by Plaintiff’s
parents, id. ¶ 44. And, according to Plaintiff himself, his IEP team “suggested that Plaintiff
should immediately report any bullying to school administrators,” id. ¶ 44, which he
seemingly had not done, id. ¶ 51. These allegations do not plausibly support a finding that
the 	Individual 	Defendants 	retaliated 	against 	Plaintiff 	for 	reporting 	the 	alleged
discrimination and harassment. 	For these reasons, the Court GRANTS Defendants’
motion and DISMISSES Plaintiff’s Bane Act claim.
As to his Ralph Act claim, the Court similarly finds that Plaintiff fails to plausibly
plead that the Individual Defendants threatened to commit or actually committed acts of
violence against him.
According to Plaintiff, the Individual Defendants:
subjected him to violence and fear of violence by failing to protect him from
harassment and assault (including by failing to provide proper supervision)
and refusing to take corrective action after being on notice of the harassment
and abuse, thus enabling the violence, bullying, and harassment to continue
and escalate unabated.
Doc. No. 18 at 19.
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Even assuming that is true, Plaintiff does not explain how “enabling the violence”
of other students plausibly amounts to a threat of violence or the commission of actual
violence. Stated differently, Plaintiff does not argue that Ralph Act liability can be imputed
on the Individual Defendants based upon another student’s violent acts. 	And while
respondeat superior and ratification might permit liability against an employer for
California law civil rights violations, see Vasquez v. Ramos, 2025 Cal. Super. LEXIS
43898, *12 (Cal. Sup. Ct. July 30, 2025) (“Courts have applied principles of ratification
and respondeat superior to these civil rights statutes.”), Plaintiff does not persuasively
argue that these principles should apply in the school administrator-student context.
Plaintiff first relies on three district court cases that involved violence in the prison
setting, claims of deliberate indifference, and in one case, supervisory liability. 	See
Armstead v. Cty. of Alameda, No. 21-cv-05257-LB, 2022 U.S. Dist. LEXIS 54807, at *25-
26 (N.D. Cal. Mar. 26, 2022) (“Here, the plaintiffs similarly pleaded deliberate indifference
and the allegations are sufficient to state a claim under the Bane Act.”); Luttrell v. Hart,
No. 5:19-cv-07300-EJD, 2020 U.S. Dist. LEXIS 173856, at *15–16 (N.D. Cal. Sep. 22,
2020) (“[I]f a plaintiff adequately pleads a claim for deliberate indifference, which requires
a pleading of reckless disregard, then he has sufficiently alleged the intent required for the
Bane Act claim.”); see also Johnson v. Baca, No. CV 13-04496 MMM (AJWx), 2014 U.S.
Dist. LEXIS 196976, at *45 (C.D. Cal. Mar. 3, 2014) (declining to dismiss Ralph Act and
Bane Act claims absent such “authority holding that a Ralph or Bane Act claim cannot be
asserted against a sheriff as a supervisor for his role in promoting the use or threat of
violence against a plaintiff”). These cases are inapposite, and Plaintiff fails to meaningfully
argue otherwise.
Plaintiff also relies on Black Lives Matter-Stockton Chapter v. San Joaquin Cty.
Sheriff’s Office, 398 F. Supp. 3d 660, 679 (E.D. Cal. 2019), in support of his position that
the Individual Defendants can be held liable because they “made him feel extremely fearful
for his safety and vulnerable to continued abuse.” Doc. No. 18 at 23. But in Black Lives
Matter-Stockton Chapter, the plaintiffs’ Ralph Act claim was not viable merely because
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they pleaded the defendants made them fear for their safety but also because numerous
unnamed defendants physically chased them and engaged in “menacing and threatening
conduct” and because of this, the court allowed the plaintiff’s Ralph Act claim to proceed
against these doe defendants, specifically. 	398 F. Supp. 3d at 679. 	Here, there are no
allegations that any Individual Defendant engaged in threatening or menacing behavior.
Similarly, Stallworth v. Nike Retail Services, does not aid Plaintiff, as the Individual
Defendants are not alleged to have chased him or engaged in threatening conduct. 	No.
2:20-cv-05985-VAP-GJSx, 2021 U.S. Dist. LEXIS 243299, at *34 (C.D. Cal. Nov. 12,
2021). 	As such, absent allegations of other threatening or menacing conduct, the mere
allegation that the Individual Defendants caused Plaintiff to feel fearful is insufficient to
state a Ralph Act claim. 	Accordingly, the Court GRANTS Defendants’ motion and
DISMISSES Plaintiff’s Ralph Act claim.
E. 	California Education Code § 220 – Claim 10
Plaintiff’s tenth claim is for discrimination in violation of California Education Code
§ 220, and he pleads this claim against the Individual Defendants. 	California Education
Code § 220 prohibits, as relevant here, “discrimination on the basis of . . . race . . . in any
program or activity conducted by an educational institution that receives, or benefits from,
state financial assistance.” 	Cal. Educ. Code § 220. 	An “[e]ducational institution” is
defined as “a public or private preschool, elementary, or secondary school or institution;
the governing board of a school district; or any combination of school districts or counties
recognized as the administrative agency for public elementary or secondary schools.” Cal.
Educ. Code § 210.3.
The Defendants are not an educational institution and therefore cannot be held liable
under § 220. 	See E.M. v. Cal. Dep’t of Educ., No. 24-cv-07397-NW, 2025 U.S. Dist.
LEXIS 129681, at *19 (N.D. Cal. July 8, 2025) (citing Donovan v. Poway Unified Sch.
Dist., 84 Cal. Rptr. 3d 285, 296 n.3 (Cal. Ct. App. 2008)). Plaintiffs seemingly concede
this as their opposition is devoid of argument on this point. 	Consequently, the Court
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GRANTS 	Defendants’ 	motion 	and 	DISMISSES 	Claim 	10 	against 	the 	Individual
Defendants with prejudice.
F. 	Assault and Battery – Claim 11
Next, Defendants move to dismiss Plaintiff eleventh claim, for assault and battery
against the Individual Defendants. Plaintiff does not plead that any Individual Defendant
physically touched him. Instead, the dispute here turns on whether Plaintiff may maintain
his claim against the Individual Defendants based upon their alleged ratification of the
attacks by other students. 	See Doc. No. 18 at 25. 	Plaintiff appears to be correct that
ratification is a valid theory of intentional tort liability in California. 	See Rakestraw v.
Rodrigues, 104 Cal. Rptr. 57, 60–61 (Cal. 1972) (“Ratification is the voluntary election by
a person to adopt in some manner as his own an act which was purportedly done on his
behalf by another person, the effect of which, as to some or all persons, is to treat the act
as if originally authorized by him.”); see also, e.g., C.R. v. Tenet Healthcare Corp., 87 Cal.
Rptr. 3d 424, 437 (Cal. Ct. App. 2009) (“As an alternate theory to respondeat superior, an
employer may be liable for an employee’s act where the employer either authorized the
tortious act or subsequently ratified an originally unauthorized tort.”); Cisco Sys. v. Wilson
Chung, 462 F. Supp. 3d 1024, 1057 (N.D. Cal. 2020) (quoting Garcia ex rel. Marin v.
Clovis Unified Sch. Dist., 627 F. Supp. 2d 1187, 1201 (E.D. Cal. 2009) (“Ratification
applies to intentional torts like battery, assault, and false imprisonment.”)). 	However,
again, Plaintiff does not explain how or why this theory of liability should apply in the
school administrator-student context. Nor does he cite any applicable authority in support
of such a position. 	Cf. Benthin v. Washoe Cty. Sch. Dist., No. 3:24-cv-00428-ART-CSD,
2025 U.S. Dist. LEXIS 185543, at *21 (D. Nev. Sep. 19, 2025) (reviewing Nevada state
law). 	Rather, the two cases Plaintiff relies on involved an employer’s liability for
ratification of its employee’s torts. See Baptist v. Robinson, 49 Cal. Rptr. 3d 153, 167 (Cal.
Ct. App. 2006); see also Amini v. Cnty. of Ventura, C.D. Cal. Case No. 2:22-cv-05420-
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DSF-ADS, ECF Doc. No.140.6 Absent any authority showing that the Individual
Defendants, as school administrators, can be held liable for the intentional torts of their
students under a theory of ratification, the Court finds that this claim is not actionable as
pleaded. Accordingly, the Court GRANTS Defendants’ motion and DISMISSES Claim
11.
G. 	Intention Infliction of Emotional Distress – Claim 12
Plaintiff’s twelfth claim is for intentional infliction of emotional distress (“IIED”).
Defendants argue that it is well-settled that there is no common law tort liability for public
entities in California; municipal tort liability must be based on statute. 	See Miklosy v.
Regents of Univ. of Cal., 80 Cal. Rptr. 3d 690, 708 (Cal. 2008) (“[S]ection 815 abolishes
common law tort liability for public entities.”). Pursuant to California Government Code
§ 815, “[e]xcept as otherwise provided by statute . . . [a] public entity is not liable for an
injury, whether such injury arises out of an act or omission of the public entity or a public
employee or any other person.” 	Cal. Gov. Code § 815(a); see also Becerra v. Cnty. of
Santa Cruz, 81 Cal. Rptr. 2d 165, 168 (Cal. Ct. App. 1998) (“In California, all government
tort liability must be based on statute.”) (citing Cal. Gov. Code § 815); In re Groundwater
Cases, 64 Cal. Rptr. 3d 827, 848 (Cal. Ct. App. 2007) (“Of course there is no common law
tort liability for public entities in California; such liability is wholly statutory.”).
However, Plaintiff pleads his IIED claim against the Individual Defendants. 	And
California Government Code § 820 provides that “a public employee is liable for injury
caused by his act or omission to the same extent as a private person.” 	Cal. Gov. Code
§ 820(a); C.B. v. Moreno Valley Unified Sch. Dist., 544 F. Supp. 3d 973, 986 (C.D. Cal.
2021) (“A public employee can be held liable for an injury caused by their act or omission
‘to 	the 	same 	extent 	as 	a 	private 	person.’”) 	(quoting 	Cal. 	Gov. 	Code 	§ 	820(a)).
6 It appears that Plaintiff cites to a Supplemental Summary Judgment Order available on the docket in a
Central District case but not otherwise available on the legal research databases.
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Consequently, Plaintiff’s IIED claim is not subject to dismissal on this basis and for this
reason, the Court DENIES Defendants’ motion.
H. 	Negligence Per Se – Claim 13
Plaintiff’s thirteenth claim is for negligence per se in violation of California Penal
Code § 11166. Defendants argue that this section of the California Penal Code sets forth
an evidentiary presumption, not a private right of action. 	Doc. No. 17-1 at 22. 	Under
California law, negligence per se is an evidentiary doctrine not an independent cause of
action. 	See, e.g., Jones v. Awad, 252 Cal. Rptr. 3d 596, 605 (Cal. Ct. App. 2019)
(“Negligence per se is an evidentiary doctrine, rather than an independent cause of action.”)
(citing Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 245 (Cal. Ct. App. 2006)). “[I]t
operates to establish a presumption of negligence for which the statute serves the subsidiary
function of providing evidence of an element of a preexisting common law cause of
action.” 	Quiroz, 45 Cal. Rptr. 3d at 244. As such, the doctrine creates a presumption of
negligence if the plaintiff shows four elements:
(1) the defendant violated a statute, ordinance, or regulation; (2) the violation
proximately caused death or injury to person or property; (3) the death or
injury resulted from an occurrence the nature of which the statute, ordinance,
or regulation was designed to prevent; and (4) the person suffering the death
or the injury to his person or property was one of the class of persons for
whose protn the statute, ordinance, or regulation was adopted.
Cal. Evid. Code § 669(a); Alcala v. Vazmar Corp., 84 Cal. Rptr. 3d 402, 407 (Cal. Ct. App.
2008); Quiroz, 45 Cal. Rptr. 3d at 244. “Even if the four requirements . . . are satisfied,
this alone does not entitle a plaintiff to a presumption of negligence in the absence of an
underlying negligence action.” Quiroz, 45 Cal. Rptr. 3d at 244.
Plaintiff elsewhere pleads a common law claim for negligence (Claim 16). 	Thus,
Plaintiff’s Claim 13 for negligence by proof of violation of California Penal Code § 11166
would appear to be subsumed by Plaintiff’s general negligence claim. 	Nevertheless, the
Court is not convinced Plaintiff’s claim should be dismissed. Despite the clear authority
explaining that negligence per se is not an independent cause of action, it appears to be also
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true that some courts in California have nevertheless permitted a claim entitled negligence
per se to proceed. 	See, e.g., Garcia v. Clovis Unified Sch. Dist., 627 F. Supp. 2d 1187,
1205 (E.D. Cal. 2009) (“It has been held that Penal Code § 11166(a) may form the basis
of a negligence per se claim.”) (citing Alejo v. City of Alhambra, 75 Cal. App. 4th 1180,
1185–95 (Cal. Ct. App. 1999)). Therefore, to the extent Plaintiff’s thirteenth claim is an
alternative theory of liability for common law negligence, the Court declines to dismiss
this claim. For this reason, the Court DENIES Defendants’ motion.
I. 	Punitive Damages
Defendants also ask the Court to strike Plaintiff’s request for punitive damages.
Doc. No. 17-1 at 23–24. In order to state a prima facie claim for punitive damages, Plaintiff
must set forth the elements as stated in the general punitive damage statute, California Civil
Code § 3294. 	These statutory elements include allegations that the defendant has been
guilty of oppression, fraud, or malice. 	See Cal. Civ. Code, § 3294(a). 	To prove malice,
Plaintiff must show the Individual Defendants’ conduct was despicable, or circumstances
that are “base,” “vile,” or “contemptible.” Id. (“The statute plainly indicates that absent an
intent to injure the plaintiff, . . . the additional component of ‘despicable conduct’ must be
found.”); see also Cal. Civ. Code § 3294(c). “‘Oppression’ means despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that person’s
rights.” 	Id. § 3294(c)(2). 	“‘Fraud’ is ‘an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on the part of the
defendant of thereby depriving a person of property or legal rights or otherwise causing
injury.’” Id. § 3294(c)(3).
Plaintiff argues that he sufficiently pleads facts that demonstrate the Individual
Defendants acted with the requisite malice and oppression. Doc. No. 18 at 27. The Court
agrees. 	Accepting the facts in the First Amended Complaint as true, the Individual
Defendants were repeatedly informed over a period of approximately two years that
Plaintiff was being subjected to pervasive racial bullying and physical attacks by his peers
and that they failed to take any steps to protect Plaintiff or otherwise deter the other
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students’ abuse. 	This is sufficient, at this stage, to pursue punitive damages under
California law. For this reason, the Court DENIES Defendants’ motion.
IV. CONCLUSION
Based upon the foregoing, the Court GRANTS IN PART Defendants’ motion to
dismiss. Consistent with the discussion above, the Court DISMISSES Claims 3, 4, and 10
against the Individual Defendants with prejudice. The Court further DISMISSES Claims
1, 2, 8, 9, and 11 with leave to amend. 	Defendant’s motion as to Claims 5, 6, and 7 is
DENIED, and those claims survive. If Plaintiff wishes to file an amended pleading, he
must do so on or before April 6, 2026. 	Defendants may then respond within the time
prescribed by Rule 15. Any claim not re-alleged and any defendant not named in the third
amended complaint will be considered waived. See CivLR 15.1; Hal Roach Studios, Inc.
v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); Lacey v. Maricopa
Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that after dismissal with leave to amend,
claims may be “considered waived if not repled”).
IT IS SO ORDERED.
Dated: March 6, 2026
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