T.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 C. T., et al., Case No. 24-cv-09507-DMR

8 Plaintiffs,

ORDER ON MOTION TO DISMISS

9 v.

Re: Dkt. No. 17

10 OAKLEY UNION ELEMENTARY

SCHOOL DISTRICT,

11

Defendant.

12

13 Plaintiff C.T., a minor, by and through her guardians ad litem Jeremy and Daisy

14 Templeton, filed this complaint against Oakley Union Elementary School District (“Oakley”).

15 Plaintiff alleges that Oakley failed to take appropriate action to prevent and address sexual

16 harassment and bullying by Plaintiff’s peers that followed an incident of sexual misconduct

17 Plaintiff experienced off-campus. [Docket No. 1 (Compl.).] Oakley moves to dismiss under

18 Federal Rule of Civil Procedure 12(b)(6). [Docket Nos. 17 (Mot.), 20 (Reply).] Plaintiff opposes.

19 [Docket No. 19 (Opp’n).]

20 This matter is suitable for determination without oral argument. Civ. L.R. 7-1(b). For the

21 reasons stated below, the court grants Oakley’s motion to dismiss.

22 I. BACKGROUND

23 A. Statement of Facts

24 Plaintiff makes the following allegations in the complaint, which the court takes as true for

25 purposes of this motion.1 Plaintiff attended school in the Oakley school district from the 2014-15

26

27

1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all

1 school year until the 2022-23 school year, when she matriculated to high school in a different

2 school district. Compl. ¶ 6. Plaintiff alleges that she was subjected to a continuous pattern of

3 targeted bullying, abuse, and harassment from her peers during the Seventh and Eighth Grades

4 (2021-22 and 2022-23 school years). Id.

5 The harassment began in October 2021. Id. ¶ 7. Plaintiff alleges that she experienced

6 “sexual harassment, assault/battery, and/or dating violence” at her family’s home by another

7 Oakley student who was her then-boyfriend (referred to as A.A.). Id. ¶¶ 7, 8. She alleges that

8 A.A. told her to sit in his lap, touched her vaginal area without her consent, and said, “Now you’ve

9 been dry fucked.” Id. He then grabbed her waist and moved her up and down in a humping

10 motion. Id. After the incident, Plaintiff reported A.A.’s conduct to District School Psychologist

11 Nicole Jurand. Id. ¶ 8. Plaintiff alleges that Jurand failed to take sufficient follow-up action—for

12 example, Jurand did not speak to A.A. about the incident, report the incident to Plaintiff’s parents,

13 or report the incident to Oakley or any other authorities who could take appropriate action. Id.

14 Throughout the Fall 2021 semester, A.A. continued to engage in inappropriate sexual conduct

15 against Plaintiff, such as trying to kiss her by moving her arms away, even after Plaintiff refused

16 his attempts by pushing him away. Id. ¶ 9.

17 In December 2021, Plaintiff ended her relationship with A.A. Id. In January 2022,

18 Plaintiff was in the same English class as A.A. Id. ¶ 10. During class, A.A. directed his friends to

19 utter slurs against Plaintiff (e.g., “fag”), causing Plaintiff significant emotional distress. Id. The

20 English teacher reprimanded the harassers. Id. Later that day, after learning about the verbal

21 abuse, Plaintiff’s mother requested that Plaintiff be transferred to a different English class. Id.

22 Oakley granted the transfer request. Id. However, in April 2022, Oakley transferred A.A. into

23 Plaintiff’s new English class, causing Plaintiff discomfort and anxiety. Id. ¶ 11.

24 In June 2022, A.A. added Plaintiff to a group chat in which he and his friends continued to

25 sexually harass her and mock her appearance. Id. ¶ 12. In July 2022, Plaintiff’s mother submitted

26 an inter-district transfer request so Plaintiff could attend a different middle school the following

27 school year. Id. ¶ 13. Oakley granted the request, and Plaintiff transferred to O’Hara Park Middle

1 Middle School as well, at which time Jurand spoke with District School Counselor Adi

2 Kondonijakos about the October 2021 off-campus sexual misconduct by A.A. Id. ¶ 18.

3 In August 2022, during a counseling session with a school counselor, Plaintiff suffered a

4 mental breakdown in which she confessed to suffering depression and thoughts of suicide. Id. ¶

5 14. Plaintiff’s mother was informed, and Plaintiff received psychiatric care, including a three-day

6 stay at a psychiatric hospital. Id. Plaintiff was prescribed anti-depressant drugs and returned to

7 school. Id. Plaintiff continued to attend group therapy and psychiatric appointments. Id. ¶ 15.

8 In April 2023, Plaintiff decided to confront A.A. via text message about his sexually

9 inappropriate and hostile behavior toward her. Id. ¶ 16. In response, A.A. added his friends to the

10 text thread, including a girl identified in the complaint as A.M. who threatened to physically attack

11 Plaintiff. Id. Two days later, A.M. punched Plaintiff in the back of her head nine times while

12 Plaintiff was walking to class. Id. After the attack, Plaintiff told her parents about the off-campus

13 sexual misconduct by A.A. in October 2021, which is the first time her parents learned of the

14 incident. Id. ¶ 17. Plaintiff’s parents investigated and learned from Kondonijakos that Plaintiff

15 had reported the incident to Jurand soon after it had occurred. Id. ¶ 18. Plaintiff’s parents

16 submitted a records request to Oakley to learn what the school district had done to address A.A.’s

17 conduct, but the records provided by Oakley did not include anything related to Plaintiff’s report

18 of the sexual misconduct or Oakley’s response to it. Id.

19 In June 2023, one of A.A.’s friends tripped Plaintiff with a towel while they were on a

20 school field trip. Id. ¶ 19. Plaintiff promptly reported the incident to school staff, but the school

21 failed to take action. Id. In August 2023, Plaintiff’s parents filed a complaint against Oakley for

22 failing to address the continued pattern of abuse and harassment, and requested further information

23 and documentation related to Plaintiff’s report of A.A.’s sexual misconduct. Id. ¶ 20. In

24 September 2023, Superintendent Jeffrey Palmquist sent Plaintiff’s parents a letter stating that

25 Oakley was unable to produce further information about the report because they “no longer have

26 an employment relationship with (nor access to) the practitioners you noted” and “regarding

27 personal counseling notes that they may have made for themselves, these are not something we

1 At the time of filing the complaint, Plaintiff was 15 years old and attending Tenth Grade

2 within the Liberty Union High School District. Id. ¶ 1.

3 B. Procedural History

4 On March 28, 2024, Plaintiff served a government claim pursuant to Cal. Gov. Code §

5 910, et seq. Compl. ¶ 23. Oakley rejected Plaintiff’s claim on July 2, 2024. Id. Plaintiff filed this

6 complaint on December 30, 2024.

7 Plaintiff brings four claims for relief: 1) violation of Title IX for gender discrimination and

8 hostile environment; 2) violation of California Education Code section 220 for gender

9 discrimination and hostile environment; 3) negligence; and 4) negligent training and supervision.

10 II. LEGAL STANDARDS

11 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

12 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

13 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all

14 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94, and may dismiss a

15 claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual

16 matter to state a facially plausible claim to relief,” Shroyer v. New Cingular Wireless Servs., Inc.,

17 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009);

18 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim has

19 facial plausibility when a plaintiff “pleads factual content that allows the court to draw the

20 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

21 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and

22 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

23 Corp. v. Twombly, 550 U.S. 554, 555 (2007).

24 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter

25 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After

26 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be

27 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied

1 2003) (quotation omitted). However, leave to amend may be denied where the complaint “could

2 not be saved by any amendment,” i.e., “where the amendment would be futile.” Thinket Ink Info.

3 Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004).

4 III. DISCUSSION

5 A. Discrimination Claims

6 Oakley argues that Plaintiff failed to plead sufficient facts to support a Title IX claim or a

7 section 220 claim.

8 Title IX of the 1972 Education Amendments prohibits discrimination on the basis of sex

9 “under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §

10 1681. A plaintiff can pursue a private right of action “against recipients of federal education

11 funding for alleged Title IX violations.” Karasek v. Regents of Univ. of California, 956 F.3d

12 1093, 1104 (9th Cir. 2020). However, the plaintiff may only recover damages if the “official

13 policy” of the funding recipient discriminates on the basis of sex. See id. (citing Gebser v. Lago

14 Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). “In sexual harassment cases, it is the deliberate

15 failure to curtail known harassment, rather than the harassment itself, that constitutes the

16 intentional Title IX violation.” Mansourian v. Regents of Univ. of California, 602 F.3d 957, 967

17 (9th Cir. 2010).

18 If the Title IX claim for damages arises from harassment on the basis of sex, the plaintiff

19 must show: (1) the defendant “exercise[d] substantial control over both the harasser and the

20 context in which the known harassment occur[red]”; (2) the plaintiff must have suffered

21 harassment “that is so severe, pervasive, and objectively offensive that it can be said to deprive the

22 [plaintiff] of access to the educational opportunities or benefits provided by the [defendant]”; (3)

23 an official with “authority to address the alleged discrimination and to institute corrective

24 measures on the [defendant’s] behalf” must have had “actual knowledge” of the harassment; (4)

25 the defendant must have acted with “deliberate indifference” to the harassment, such that the

26 defendant’s “response to the harassment or lack thereof [was] clearly unreasonable in light of the

27 known circumstances”; and (5) the defendant’s deliberate indifference must have “cause[d the

1 956 F.3d at 1105 (citing Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S.

2 629, 640 (1999)).

3 California Education Code section 220 prohibits discrimination on the basis of gender,

4 gender identity, gender expression, or sexual orientation “in any program or activity conducted by

5 an educational institution that receives, or benefits from, state financial assistance, or enrolls

6 pupils who receive state student financial aid.” Cal. Educ. Code § 220. Courts interpret the

7 Education Code consistently with Title IX. S.G. v. S.F. Unified Sch. Dist., No. 17-cv-05678-

8 EMC, 2018 U.S. Dist. LEXIS 66292, at *14 (N.D. Cal. Apr. 19, 2018); see also Donovan v.

9 Poway Unified School Dist., 167 Cal. App. 4th 567, 581 (2008) (“the Legislature intended Title

10 IX’s elements to govern an action under section 220”). The court analyzes Plaintiff’s Title IX and

11 section 220 claims together.

12 1. Severe, Pervasive, and Objectively Offensive

13 “Whether gender-oriented conduct rises to the level of actionable ‘harassment’ . . .

14 ‘depends on a constellation of surrounding circumstances, expectations, and relationships’ . .

15 . including, but not limited to, the ages of the harasser and the victim and the number of

16 individuals involved.” Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner Offshore Services,

17 Inc., 523 U.S. 75, 82 (1998)). “[I]n the school setting, students often engage in insults, banter,

18 teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected

19 to it. Damages are not available for simple acts of teasing and name-calling among school

20 children. . . . Rather, in the context of student-on-student harassment, damages are available only

21 where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the

22 equal access to education that Title IX is designed to protect.” Id. at 651-652.

23 Oakley argues that the harassment suffered by Plaintiff consisted only of a handful of

24 discrete incidents that were not sufficiently severe and pervasive to deprive Plaintiff of equal

25 access to her education. In opposition, Plaintiff gestures vaguely at the possibility of more

26 incidents of harassment, Opp’n 6 n.2; but the court can only consider facts as alleged in the

27 complaint. The court must evaluate whether the incidents pleaded by Plaintiff were so severe,

1 Sexual harassment by classmates can constitute severe, pervasive, and objectively

2 offensive conduct supporting a gender discrimination claim. For example, in Davis Next Friend

3 LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999), the Supreme Court held

4 that the plaintiff had pleaded a Title IX claim in a case involving repeated incidents of sexual

5 harassment over a five-month period by the plaintiff’s fifth-grade male classmate. Id. The

6 classmate made vulgar comments to plaintiff, attempted to touch the plaintiff’s breasts and genital

7 area, and engaged in activity such as putting a door stop in his pants and acting in a sexually

8 suggestive manner toward the plaintiff during physical education class. Id. at 633-634. Similarly,

9 in M.M. v. San Juan Unified Sch. Dist., No. 219CV00398TLNEFB, 2020 WL 5702265, at *6

10 (E.D. Cal. Sept. 24, 2020), the court held that the plaintiff had pleaded a gender discrimination

11 claim in a case involving sexual harassment by the plaintiff’s third-grade male classmate in school

12 settings. The classmate engaged in activity that escalated from passing crude notes about the

13 plaintiff in Fall 2017, to pushing the plaintiff to the ground, jumping on her back, and grabbing her

14 breasts under her clothing a total of four times in January and February 2018. Id. at 1. The

15 plaintiff was subsequently forced to remain in the same classroom as her assailant and, in April

16 2018, was seated in the same car as him for the entirety of a school field trip, causing the plaintiff

17 severe discomfort and distress. Id. at 2.

18 Under some circumstances involving off-campus sexual assault, courts have found that

19 post-assault interactions and harassment may be so severe and pervasive that they deprive the

20 student of equal access to education, even if the assault itself did not occur at school. For

21 example, in Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. Conn. 2006), a high

22 school student sexually assaulted the plaintiff (a middle school student) during summer recess and

23 outside of school grounds. Subsequently, both students returned to school, where they attended

24 classes in the same building. Id. at 441. The plaintiff continued to experience off-campus teasing

25 and harassment by her assailant’s friends, but she did not testify to any harassment on campus. Id.

26 at 441-442. Ultimately, the plaintiff transferred out of the school district after finishing eighth

27 grade. Id. at 442. The court held that a reasonable jury could conclude that having to attend

1 pervasive that the plaintiff was deprived of the school’s educational benefits. Id. at 445. In

2 addition, “the proxy-harassment by [the assailant’s] friends, while not actionable, supports

3 plaintiff’s claim that an interaction with [her assailant], like her interactions with these friends,

4 would be sufficiently distressing or threatening such that the fact of their continued mutual

5 presence in the same building and concomitant possibility of potential interaction impacted her

6 decision to transfer.” Id.; see also Karasek v. Regents of the Univ. of California, No. 15-CV-

7 03717-WHO, 2015 WL 8527338, at *11 (N.D. Cal. Dec. 11, 2015) (citing Derby with approval).

8 Here, Plaintiff alleges she was the victim of off-campus sexual misconduct by another

9 student, A.A., in October 2021. The allegations about the incident describe unwanted sexual

10 touching and sexual statements. Oakley argues that the court should not consider the October

11 2021 incident in its analysis of the gender discrimination claims because the incident as alleged

12 was not under Oakley’s substantial control. Liability under Title IX only attaches if the school

13 “exercise[d] substantial control over both the harasser and the context in which the known

14 harassment occur[red].” Karasek, 956 F.3d at 1105. Oakley argues that it did not have substantial

15 control over A.A. when he was in Plaintiff’s family home, so it cannot be liable for the October

16 2021 incident. Oakley argues that the remaining allegations about on-campus harassment do not

17 meet the severe, pervasive, and objectively offensive standard.

18 Plaintiff appears to argue that the October 2021 incident was under Oakley’s substantial

19 control, citing Brown v. Arizona, 82 F.4th 863, 875 (9th Cir. 2023). In Brown, the Ninth Circuit

20 held that liability can attach under Title IX when harassment occurs off campus, “so long as the

21 educational institution has sufficient control over both the ‘harasser’ and the ‘context’ in which the

22 harassment takes place.” 82 F.4th at 876. For example, a university had substantial control over a

23 student’s assaults against his girlfriend in his off-campus residence because the university could

24 revoke the student’s permission to live off-campus based on his off-campus behavior, and

25 additionally had authority to dismiss the student from the university’s football team and revoke his

26 scholarship based on such behavior. Id. at 878-79. The Ninth Circuit noted that “a key

27 consideration is whether the school has some form of disciplinary authority over the harasser in

1 Unlike the circumstances in Brown, Plaintiff does not explain how Oakley exercised

2 control over A.A. in the context in which the October 2021 incident took place. Plaintiff cites Cal.

3 Ed. Code § 48915(c)(4), which confers authority to recommend expulsion of a pupil who has

4 committed or attempted to commit a sexual assault “at school or at a school activity off school

5 grounds.” But Plaintiff has not alleged that the October 2021 incident occurred at school or at a

6 school activity; instead, she alleges that the incident occurred in her private residence. She also

7 does not plead that Oakley had authority to discipline A.A. for off-campus misconduct that

8 occurred outside the school context. In sum, Plaintiff has not sufficiently pleaded that Oakley had

9 substantial control over A.A.’s conduct in Plaintiff’s family home. Similarly, the allegations

10 regarding A.A.’s attempts to kiss Plaintiff without her consent while they were in a dating

11 relationship in Fall 2021 are devoid of details and are thus insufficient to support an inference that

12 this conduct took place under Oakley’s substantial control. There also are no allegations to

13 support an inference that the group chats involving A.A. and Plaintiff were under Oakley’s

14 substantial control. As alleged, Oakley cannot be held liable for these incidents of harassment.

15 Nevertheless, harassment does not have to be actionable itself to contribute to the severity,

16 pervasiveness, or offensiveness of on-campus conduct. The court considers the “constellation of

17 surrounding circumstances, expectations, and relationships” when evaluating the nature of

18 harassment. See Davis, 526 U.S. at 651. For example, in Derby, the fact that the plaintiff had

19 previously been sexually assaulted by a student was a key consideration in the offensiveness of the

20 plaintiff’s later interactions with the student on campus. See Derby, 451 F. Supp. 2d at 445. Thus,

21 the court views Plaintiff’s allegations of gender-based discrimination that occurred beyond school

22 control, including the October 2021 off-campus sexual misconduct, as part of the “constellation”

23 of circumstances surrounding Plaintiff’s allegations of on-campus harassment. See Davis, 526

24 U.S. at 651.

25 According to Plaintiff, she broke up with A.A. in December 2021 but continued to attend

26 school with him. They were placed in the same English class in the spring semester of 2022. In

27 January 2022, A.A. directed his friends to openly mock Plaintiff with sexually derogatory name-

1 classroom with A.A. after she complained to Jurand about A.A.’s off-campus sexual misconduct

2 was “distressing or threatening” because of the “possibility of potential interaction” with the

3 person who had sexually targeted her in the past. See Derby, 451 F. Supp. 2d at 445. This is

4 bolstered by the allegation that A.A. did, in fact, harass Plaintiff (through proxies) in a classroom

5 setting.

6 Although a teacher reprimanded the students involved in the name-calling incident and

7 Oakley granted Plaintiff’s request to transfer to a different English class, Oakley transferred A.A.

8 into Plaintiff’s new English class several months later in April 2022. Plaintiff alleges that this

9 caused her “discomfort and anxiety, negatively impacting her mental and emotional well-being

10 and her ability to access her education.” Compl. ¶ 11. Due to the nature of the alleged October

11 2021 sexual misconduct and A.A.’s other harassing conduct against Plaintiff, A.A.’s returned

12 presence in Plaintiff’s classroom adds support to an inference that she experienced severe,

13 pervasive, and objectively offensive conduct.

14 Plaintiff further alleges that between June and July 2022, A.A. and his friends continued to

15 sexually harass Plaintiff through text messages. Plaintiff subsequently transferred to a different

16 middle school within the district. After Plaintiff’s transfer, the next allegations of harassment

17 occurred nine months later when Plaintiff confronted A.A. by text in April 2023, causing a new

18 round of bullying. In April 2023, Plaintiff alleges that she was punched in the back of the head

19 nine times by A.A.’s proxy, and in June 2023, Plaintiff alleges that she was tripped with a towel

20 by A.A’s proxy. Plaintiff does not plead the severity of these incidents—for example, it is not

21 clear what physical injury Plaintiff suffered, if any. Moreover, the 2023 incidents are temporally

22 attenuated from those alleged to have occurred in the 2022 timeframe.

23 Nevertheless, as a pleading matter, and taking into account the allegations regarding A.A.’s

24 sexual misconduct; Plaintiff’s youth; A.A.’s continuing harassment in and outside of class; and the

25 allegation that a number of students acting as A.A.’s proxies were involved in harassing Plaintiff

26 over multiple months, the court finds that the allegations in the complaint rise beyond mere

27 “teasing and name-calling among school children.” See Davis, 526 U.S. at 652. The gaps in time

1 sufficiently pleaded severe, pervasive, and objectively offensive harassment that deprived her of

2 equal access to her education.

3 2. Deliberate Indifference

4 In a gender discrimination case based on peer sexual harassment, “damages are not

5 recoverable unless ‘an official who at a minimum has authority to address the alleged

6 discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge

7 of discrimination in the recipient’s programs and fails adequately to respond.’ In other words,

8 there must be ‘an official decision by the recipient not to remedy the violation.’” Karasek, 956

9 F.3d at 1104-05 (quoting Gebser, 524 U.S. at 290). “The actual notice requirement under Title IX

10 is satisfied where an appropriate official possessed enough knowledge of the harassment that it

11 reasonably could have responded with remedial measures to address the kind of harassment upon

12 which plaintiff's legal claim is based.” Lopez v. Regents of Univ. of Cal., 5 F.Supp.3d 1106, 1122

13 (N.D. Cal. 2013) (citation and quotation omitted). A school is only liable under Title IX when the

14 need for intervention is so “obvious,” and the failure to intervene “so likely to result in Title IX

15 violations,” that the school “could reasonably be said to have been deliberately indifferent to the

16 need” for intervention. Brown, 82 F.4th at 882 (quoting Simpson v. Univ. of Colo. Boulder, 500

17 F.3d 1170, 1184-85 (10th Cir. 2007)). “Title IX deliberate indifference requires more than mere

18 negligence.” Ramser v. Univ. of San Diego, 779 F. App'x 466, 469 (9th Cir. 2019).

19 Plaintiff alleges that she reported A.A.’s October 2021 off-campus sexual misconduct to

20 her school counselor, Jurand, but Jurand “merely consoled [Plaintiff] without any further

21 appropriate action.” Compl. ¶ 8. Oakley does not dispute that, as alleged, Jurand was a school

22 official with authority who had actual knowledge of the October 21, 2021 sexual misconduct,

23 rendering Oakley liable if Jurand acted with deliberate indifference. Plaintiff argues that Jurand

24 was required by federal law to investigate Plaintiff’s complaint of sexual misconduct once she had

25 learned of it. Opp’n 7. As such, Plaintiff concludes that Jurand’s failure to take further action is

26 sufficient to meet the deliberate indifference standard.

27 The regulation cited by Plaintiff, 34 C.F.R. Part 106, does not support that Jurand had a

1 not cite a specific section of the regulation. Based on the court’s review, the regulation applies to

2 sex discrimination that occurs under an education program or activity. See, e.g., 34 C.R.F. §

3 106.11 (“this part applies . . . to all sex discrimination occurring under a recipient’s education

4 program or activity in the United States”). As discussed above, Plaintiff has not sufficiently

5 pleaded that the October 2021 incident was in Oakley’s substantial control or occurred under an

6 “education program or activity.” Plaintiff does not allege that Jurand knew about other

7 discriminatory conduct taking place in Oakley’s education programs or activities. The allegations

8 hinge entirely on Jurand’s knowledge of one incident of sexual misconduct which took place

9 between two students outside of any school context or control. Plaintiff fails to cite any law

10 mandating that Jurand had to take a particular course of action given what Plaintiff told her, or

11 other authority supporting that Jurand acted with deliberate indifference under Title IX such that

12 the “official policy” of Oakley was to discriminate on the basis of sex. See Karasek, 956 F.3d at

13 1104.

14 Furthermore, the complaint acknowledges that when Plaintiff later experienced on-campus

15 harassment, the school responded. When A.A.’s friends used slurs against Plaintiff in English

16 class in January 2022, the English teacher reprimanded the harassing students, and the school

17 granted Plaintiff’s request to transfer to a different English class. There are no allegations of

18 further harassment against Plaintiff in a classroom. Plaintiff points out that the school then

19 transferred A.A. into Plaintiff’s new English class several months later in April 2022, but there is

20 no indication in the complaint that anyone other than Jurand knew about A.A.’s history with

21 Plaintiff or had reason to believe that sharing a classroom with A.A. could cause Plaintiff severe

22 distress. There also are no allegations that Jurand knew at any point that Plaintiff and A.A. had

23 been placed in the same English class and that this made Plaintiff uncomfortable. “Actual notice”

24 under Title IX requires that an appropriate official “possessed enough knowledge of the

25 harassment that it reasonably could have responded with remedial measures to address the kind of

26 harassment upon which plaintiff's legal claim is based.” Lopez, 5 F.Supp.3d at 1122. As alleged,

27 no single official at Oakley possessed enough knowledge to reasonably be able to remediate the

1 Likewise, Plaintiff has not alleged deliberate indifference regarding the two events that

2 took place in the 2022-2023 school year. Plaintiff was physically attacked in April 2023 by one of

3 A.A.’s proxies, but the complaint does not support an inference that Oakley was on prior notice

4 such that its failure to prevent the incident was “clearly unreasonable in light of the known

5 circumstances.” See Davis, 526 U.S. at 648. Plaintiff does not plead that the school knew about

6 the text exchanges between Plaintiff, A.A., and A.M. that occurred days before the attack.

7 Plaintiff only pleads that Jurand and Kondonijakos knew A.A. had committed an incident of off-

8 campus sexual misconduct against Plaintiff in October 2021. Deliberate indifference “must, at a

9 minimum, cause students to undergo harassment, or make them liable or vulnerable to it.” Davis,

10 526 U.S. at 645. The allegations are insufficient to support a reasonable inference that Oakley’s

11 failure to investigate the October 2021 off-campus incident caused one of A.A.’s friends to

12 physically attack Plaintiff at school in April 2023, particularly since A.A. and Plaintiff no longer

13 shared a school, A.A. apparently stopped harassing Plaintiff after she transferred schools before

14 Plaintiff re-initiated contact, and in light of the 18-month passage of time. Plaintiff also does not

15 allege what Oakley’s response was to the April 2023 attack, or how that response was

16 unreasonable. Likewise, the court cannot reasonably infer from the pleadings that the June 2023

17 tripping incident was caused by Oakley’s deliberate indifference. Plaintiff complains that Oakley

18 failed to take appropriate action after the tripping incident, but the pleadings do not contain

19 allegations to support that Plaintiff experienced harassment or was vulnerable to harassment after

20 the tripping incident.

21 Oakley is not required to “purg[e]” its schools of “actionable peer harassment or . . .

22 engage in particular disciplinary action” regarding incidents of misconduct. See Davis, 526 U.S.

23 at 648. The Supreme Court has held that “courts should refrain from second-guessing the

24 disciplinary decisions made by school administrators.” Id. A plaintiff alleging deliberate

25 indifference must do more than plead a “negligent, lazy, or careless” response—instead, “the

26 plaintiff must demonstrate that the school’s actions amounted to ‘an official decision . . . not to

27 remedy’ the discrimination.” Karasek, 956 F.3d at 1105 (quoting Oden v. N. Marianas Coll., 440

1 various incidents of alleged misconduct and harassment were “clearly unreasonable in light of the

2 known circumstances.” See Davis, 526 U.S. at 648. In sum, Plaintiff has not pleaded deliberate

3 indifference.

4 The court finds that Plaintiff has not pleaded sufficient facts to support a Title IX claim or

5 a section 220 claim. The claims are dismissed with leave to amend.

6 B. Negligence Claims

7 Oakley argues Plaintiff has not identified the statutory basis for her negligence and

8 negligent supervision claims. Oakley also contends that Plaintiff’s negligence-based claims must

9 be limited to incidents that occurred after March 28, 2023, and Plaintiff has not alleged a breach of

10 duty after that time. As Oakley raises the same arguments for both claims, the court analyzes

11 them together.2

12 “[T]o state a cause of action against a public entity, every fact material to the existence of

13 its statutory liability must be pleaded with particularity.” Lopez v. S. Cal. Rapid Transit Dist., 40

14 Cal. 3d 780, 795 (1985) (quoting Peter W. v. San Francisco Unified Sch. Dist., 60 Cal. App. 3d

15 814, 819 (1976)). “Duty cannot be alleged simply by stating ‘defendant had a duty under the law’;

16 that is a conclusion of law, not an allegation of fact. The facts showing the existence of the

17 claimed duty must be alleged. . . . Since the duty of a governmental agency can only be created by

18 statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very

19 least be identified.” Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (Ct. App.

20 1986) (citation omitted).

21 Plaintiff’s complaint cites Cal. Gov. Code section 815.2. Compl. ¶¶ 35, 39. This statute

22 provides that public entities are “vicariously liable for the tortious acts and omissions of its

23 employees committed within the scope of employment under circumstances in which the

24 employee would be personally liable for the conduct.” Torsiello v. Oakland Unified Sch. Dist.,

25 197 Cal. App. 3d 41, 44-45 (Ct. App. 1987) (citing Cal. Gov. Code § 815.2(a).) “The effect of

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2 Oakley also argues that the court should decline to exercise supplemental jurisdiction over the

1 this statute is to incorporate ‘general standards of tort liability as the primary basis for respondeat

2 superior liability of public entities.’” Id. (quoting Van Alstyne, Cal. Government Tort Liability §

3 2.32 (Cont. Ed. Bar 1980)).

4 Oakley’s argument that Plaintiff failed to identity the statutory basis for her negligence-

5 based claims lacks merit. Plaintiff identified Cal. Gov. Code section 815.2 in her complaint.

6 Compl. ¶¶ 35, 39. This is sufficient to plead a statutory basis for liability. See C.A. v. William S.

7 Hart Union High Sch. Dist., 53 Cal. 4th 861, 868 (2012).

8 Oakley next argues that Plaintiff’s complaint fails to explain how Oakley breached its duty

9 of care in the relevant time period. Mot. 15. Plaintiff concedes that her negligence-based claims

10 are limited to incidents that occurred after March 28, 2023. Opp’n 9. Therefore, the court only

11 considers the April and June 2023 incidents when evaluating these claims.

12 “California law has long imposed on school authorities a duty to ‘supervise at all times the

13 conduct of the children on the school grounds and to enforce those rules and regulations necessary

14 to their protection.’ . . . Either a total lack of supervision or ineffective supervision may constitute

15 a lack of ordinary care on the part of those responsible for student supervision. Under section

16 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries

17 proximately caused by such negligence.” C.A., 53 Cal. 4th at 869 (citing Dailey v. Los Angeles

18 Unified Sch. Dist., 2 Cal. 3d 741, 747 (1970)). “In addition, a school district and its employees

19 have a special relationship with the district’s pupils.” Id. “[T]he duty of care owed by school

20 personnel includes the duty to use reasonable measures to protect students from foreseeable injury

21 at the hands of third parties acting negligently or intentionally. This principle has been applied in

22 cases of employees’ alleged negligence resulting in injury to a student by another student.” Id. at

23 870 (citing J.H. v. Los Angeles Unified School Dist., 183 Cal. App. 4th 123, 128-129, 141-148

24 (2010)).

25 Plaintiff’s negligence claim states that Oakley had a legal duty to supervise students in its

26 charge, and that Oakley, “by and through its employees acting within the scopes of their public

27 employment, breached [its] duty of care by failing to prevent bullying and peer hostile

1 said conduct.” Compl. ¶¶ 34-35. The complaint fails to allege how the April and June 2023

2 incidents were “foreseeable” injuries such that Oakley should be held liable for them. See C.A., 53

3 Cal. 4th at 870. Oakley’s knowledge (through Jurand) that A.A. had committed an incident of off-

4 campus sexual misconduct against Plaintiff in October 2021 did not reasonably put Oakley on

5 notice that A.A.’s friends would physically attack Plaintiff in school settings over a year and a half

6 later, even when Plaintiff was no longer attending the same school as A.A. Plaintiff has not

7 pleaded with particularity that Oakley breached its duty to use reasonable measures to protect

8 Plaintiff from foreseeable injury.

9 Plaintiff’s negligent supervision claim states that Oakley owed a duty to protect its pupils

10 from physical and/or emotional harm, and that Oakley, “by and through its employees acting

11 within the scopes of their public employment, breached [its] duty of care by committing acts and

12 omissions that resulted in the failure to supervise and/or train personnel who could, in turn,

13 adequately supervise school grounds and prevent [Plaintiff] from suffering bullying and peer

14 hostile environment based on gender, gender identity, and/or gender expression.” Id. ¶ 38-39.

15 Plaintiff has not specifically alleged what “acts and omissions” committed by Oakley resulted in

16 the failure to supervise or train personnel. See, e.g., C.A., 53 Cal. 4th at 875 (finding that school

17 can be vicariously liable where administrators and employees knew or should have known of

18 guidance counselor’s dangerous propensities, but nevertheless hired, retained and failed to

19 properly supervise her, leading to her sexually abusing a student). And as discussed above,

20 Plaintiff has not alleged that Oakley personnel could have reasonably foreseen and prevented the

21 April and June 2023 incidents. Plaintiff has not pleaded a negligent supervision claim with the

22 required particularity.

23 The court finds that Plaintiff has not pleaded sufficient facts to support the negligence-

24 based claims.

25 IV. CONCLUSION

26 The court grants Oakley’s motion to dismiss Plaintiff’s claims. The court grants Plaintiff

27 leave to amend her complaint by November 12, 2025.

1 February 4, 2026 at 1:30 p.m. A joint case management statement is due January 28, 2026.

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4 IT IS SO ORDERED.

5 Dated: October 21, 2025

6 ______________________________________

Donna M. Ryu

7

Chief Magistrate Judge

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