K. v. Google LLC

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 SAN JOSE DIVISIONS

7

8 M. K., Case No. 21-cv-08465-VKD

9 Plaintiff,

ORDER GRANTING FREMONT

10 v. UNIFIED SCHOOL DISTRICT'S

MOTION TO DISMISS

11 GOOGLE LLC, et al.,

Re: Dkt. No. 69

Defendants.

12

13

14 Plaintiff M.K., through his mother as guardian ad litem, brings this action against Google,

15 LLC (“Google”) and the Fremont Unified School District (“District”) asserting claims for relief

16 for harm M.K. alleges he suffered when the District used a Google platform to facilitate remote

17 learning during the COVID-19 pandemic. Both defendants moved to dismiss M.K.’s original

18 complaint pursuant to Rule 12(b)(6). Dkt. Nos. 21, 33. The Court granted these motions, but gave

19 M.K. leave to amend his complaint. Dkt. Nos. 64, 65.

20 M.K.’s first amended complaint (“FAC”) asserts a single claim for “failure to protect”

21 against the District, as well as several claims against Google.1 Dkt. No. 66 ¶¶ 105-110. The

22 District moved to dismiss this claim pursuant to Rule 12(b)(6); M.K. opposed the motion. Dkt.

23 Nos. 69, 72.2 The Court requested supplemental briefing from M.K. and the District regarding

24 whether M.K.’s claim against the District is barred by sovereign immunity under the Eleventh

25 Amendment. Dkt. No. 77. The District says it is; M.K. says it is not. Dkt. Nos. 81, 84.

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1 The Court will address Google’s motion to dismiss in a separate order.

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1 The Court held a hearing on the District’s motion to dismiss on July 18, 2023. Dkt. No.

2 86. Upon consideration of the moving and responding papers, as well as the oral arguments

3 presented, the Court finds that M.K.’s claim against the District is barred by the Eleventh

4 Amendment.

5 I. BACKGROUND

6 The following facts are based on the allegations of the FAC.

7 In 2020, M.K. was a student at a public elementary school in the District. Dkt. No. 66 ¶ 1.

8 In March 2020, due to the COVID-19 pandemic, the District closed its school buildings and M.K.

9 began attending school remotely using a Google platform.3 Id. ¶¶ 1-2. According to the FAC,

10 “M.K’s parents were not given an option to opt out or an alternative to receive education if they

11 did not wish to submit M.K. to the risks of attending school on the Google platform.” Id. ¶ 2.

12 The District assigned M.K. a Google account. Id. ¶ 3. Using this account, M.K. and other

13 students “were allowed to access online videos provided by Google’s YouTube, a video sharing

14 platform[,] as well as Google [Slide Show], a platform that allows individuals to watch videos as

15 well as insert videos and messages into slideshows to watch.” Id. ¶ 7. The District logged M.K.

16 out of his Google account at the end of each school day. Id. ¶ 3.

17 According to the FAC, M.K. used multiple devices to access his Google account, including

18 his personal iPad and, later, a Google Chromebook computer supplied by the District. Id. ¶¶ 4, 6.

19 M.K. watched videos on Google’s YouTube and Slide Show platforms while logged into the

20 Google platform for school. Id. ¶ 9. M.K.’s teachers informed his parents that M.K. was

21 watching videos during class when he should have been focused on his lessons. Id. ¶ 10. M.K.’s

22 teachers further advised M.K.’s parents that the teachers could see M.K.’s online activity during

23 class time. Id. Based on this information, M.K. alleges that Google gave the District and other

24 unidentified third parties access to M.K.’s online activity. Id. ¶ 13.

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3 In some places, the FAC refers to this platform as “Google Classroom” or “Google Classrooms.”

See Dkt. No. 66 ¶¶ 4, 14. However, it is not clear from the allegations in the FAC exactly what

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the platform is or whether there are any terms of service that govern the relationship between

1 On or about January 14, 2021, one of M.K’s teachers reported receiving a sexually explicit

2 communication from M.K. via a Google chat message. Id. ¶ 16. M.K. alleges that his Google

3 account had been hacked and that he did not send the message. Id. ¶¶ 17, 20, 24.

4 According to the FAC, on or about January 27, 2021, M.K.’s teacher “scheduled a parent-

5 teacher zoom call and made a teacher suspension on the basis of ‘Sexual Harassment via Google

6 Classroom.’” Id. ¶ 22. The FAC describes the suspension variously as a “teacher removal from

7 class,” a two-day suspension from school, an exclusion from “his regular school day” that lasted

8 “weeks,” and a “permanent[]” removal from class. Id. ¶¶ 23, 25-26, 28, 82, 107. M.K. eventually

9 stopped attending school in the District. Id. ¶¶ 31, 82.

10 M.K. alleges that his parents “had to reduce their work to instruct [him], suffering a loss of

11 income” and had to hire a tutor to work with him at their own expense. Id. ¶¶ 15, 33. He also

12 alleges that he suffered emotional distress and embarrassment. Id. ¶¶ 25, 28, 30, 33.

13 M.K.’s sole claim against the District is for an alleged “failure to protect.” Dkt. No. 66

14 ¶¶ 105-110. Specifically, he says that he was harmed when the District suspended him in

15 violation of California Education Code § 48900.5 because the suspension was made by his teacher

16 instead of a principal or superintendent, as the Code requires. Id. ¶¶ 107-108. As remedies for his

17 claim against the District, M.K. seeks a declaration that the District must offer him an alternative

18 education that does not require him to “submit to Google’s platforms” and “[d]amages for

19 emotional distress and damage to reputation caused by negligence of Defendants.” Id. at 16-17.

20 II. DISCUSSION

21 In its motion to dismiss, the District argues that: (1) the FAC includes asserts a new claim

22 that exceeds the scope of permissible amendment; (2) M.K. fails to plead facts sufficient to state a

23 failure to protect claim based on a violation of California Education Code § 48900.5; (3) any

24 suspension was a disciplinary decision for which the District enjoys discretionary immunity under

25 California Government Code § 820.2; and (4) M.K. did not plead compliance with the

26 Government Tort Claims Act. See Dkt. No. 69.4 M.K. responds that: (1) his failure to protect

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1 claim is not new, even though he did not previously assert a violation of California Education

2 Code § 48900.5; (2) compliance with § 48900.5 is mandatory, not discretionary; (3) the District’s

3 internal policies regarding student discipline conflict with and are preempted by state law; and (4)

4 he pleaded compliance with the Government Tort Claims Act in his original complaint and those

5 allegations support his FAC. See Dkt. No. 72.

6 The Court does not decide whether M.K. states a claim for “failure to protect” against the

7 District based on a purported violation of California Education Code § 48900.5 because M.K.’s

8 sole claim against the District is barred by sovereign immunity under the Eleventh Amendment.

9 A. Eleventh Amendment Immunity

10 Claims against a state entity for violations of state law may be barred by the Eleventh

11 Amendment and therefore outside the jurisdiction of the federal courts. Pennhurst State School &

12 Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). “[T]he principle of sovereign immunity is a

13 constitutional limitation on the federal judicial power established in Art. III.” Id. at 98; see also

14 id. at 119. “A federal court must examine each claim in a case to see if the court’s jurisdiction

15 over that claim is barred by the Eleventh Amendment.” Id. at 121; Charley’s Taxi Radio Dispatch

16 Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 873 at n.2 (9th Cir. 1987) (“The effect of the

17 Eleventh Amendment must be considered sua sponte by federal courts.”). The plaintiff bears the

18 burden of establishing a federal court’s jurisdiction. Stock W., Inc. v. Confederated Tribes of the

19 Colville Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989).

20 Because California’s school districts are “controlled and funded by the state government

21 rather than the local district,” the Ninth Circuit has held that they are “arms of the state” under the

22 Eleventh Amendment and are therefore entitled to sovereign immunity. Belanger v. Madera

23 Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir. 1992); see also Sato v. Orange County Dep't of

24 Educ., 861 F.3d 923, 926, 934 (9th Cir. 2017) (reaffirming Belanger following enactment of AB

25 97). M.K. argues, however, that the District is not entitled to sovereign immunity because “M.K.

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matter of law. Dkt. No. 75 at 2; see Tirpak v. Los Angeles Unified Sch. Dist., 187 Cal. App. 3d

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639, 646-47 (1986); Henderson v. Newport-Mesa Unified Sch. Dist., 214 Cal. App. 4th 478, 498

1 seeks declaratory relief only” and “does not seek damages” against the District. Dkt. No. 81 at 2.

2 M.K.’s arguments are unavailing for three reasons. First, M.K. does seek damages against

3 the District. The FAC includes a request for damages for emotional distress and damage to

4 reputation cause by the District’s (and Google’s) alleged negligence. Dkt. No. 66 at 17. During

5 the hearing, M.K. indicated that he withdrew his demand for damages against the District. Dkt.

6 No. 88 at 6:19-22.

7 Second, it is unclear how M.K. could possibly obtain prospective injunctive relief for the

8 District’s alleged violation of California Education Code § 48900.5. He was suspended in 2021,

9 and his parents withdrew him from school in the District before the conclusion of the 2020-2021

10 academic year. He does not allege that the District continues to require students to attend school

11 remotely through the Google platform the District used during the pandemic, and he does not

12 explain how his suspension in 2021 could be remedied by any injunction directed at the District’s

13 continued use of Google’s platform or Google Chromebook computers.

14 Third, even if M.K. could plausibly seek declaratory or injunctive relief against the

15 District, the District would still enjoy immunity. Pennhurst, 465 U.S. at 100 (“This jurisdictional

16 bar applies regardless of the nature of the relief sought.”). Because M.K. asserts only a single

17 state law claim against the District, he may not invoke the exception to sovereign immunity that

18 permits a plaintiff to seek prospective injunctive relief against a state to redress an ongoing

19 violation of federal law. See id. at 105 (discussing availability of relief under Ex Parte Young,

20 209 U.S. 123, 159-60 (1908)); see also id. at 106 (“A federal court’s grant of relief against state

21 officials on the basis of state law, whether prospective or retroactive, does not vindicate the

22 supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on

23 state sovereignty than when a federal court instructs state officials on how to conform their

24 conduct to state law.”).

25 B. Leave to Amend

26 M.K. seeks leave to amend his pleading to substitute the superintendent of the Fremont

27 Unified School District in place of the District on the theory that, under the Ninth Circuit’s

1 1990), an action for prospective injunction relief may be brought against a state official, even if an

2 action against the state itself is barred by sovereign immunity. See Dkt. No. 81 at 2. M.K. is

3 mistaken. Southern Pacific Transportation involved claims against a state agency for violations

4 of federal constitutional rights under 42 U.S.C. § 1983, not violations of state law. See 922 F.2d

5 at 501-502. In that case, the Ninth Circuit observed that California had not consented to be sued

6 || under § 1983 and Congress did not override states’ sovereign immunity when it enacted that

7 statute. Id. at 508 n.12. Here, any amendment M.K. might make to name a state official would be

8 futile as his sole claim is for a purported violation of state law. See Doe v. Regents of the Univ. of

9 California, 891 F.3d 1147, 1154 n. 6 (9th Cir. 2018) (“We have permitted plaintiffs leave to

10 amend to conform their pleading with Young, ... but our conclusion that the § 1094.5 petition is a

11 state law claim bars Doe from bringing the writ petition in federal court against either The Regents

12 || or Perkin and means such an amendment would be futile.”).

5 13 As there is no suggestion that the District has consented to federal jurisdiction in this

14 action, the District is immune from M.K.’s state law claim in federal court.

15 || 1. CONCLUSION

16 For the reasons explained above, the Court dismisses M.K.’s state law “failure to protect”

3 17 claim against the District because that claim is barred by sovereign immunity. Because the

18 Eleventh Amendment is a limit on federal courts’ jurisdiction, the dismissal is without prejudice

19 || with respect to M.K.’s ability to assert his state law claim in a competent state forum. Freeman v.

20 Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999); see also Zelda B. v. City of

21 Oakland, No. 21-CV-07078-DMR, 2022 WL 526160, at *3 (N.D. Cal. Feb. 22, 2022).

22 IT IS SO ORDERED.

23 Dated: July 19, 2023

24 .

6 VIRGINIA K. DEMARCHI

United States Magistrate Judge

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28 > Eleventh Amendment immunity, where applicable, also bars claims brought pursuant to 28

USS.C. § 1367(a). Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533, 541-42 (2002).