Judge: Kenneth J. Medel, Case: 37-2023-00008475-CU-CR-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00008475-CU-CR-CTL RULLAN VS LA MESA SPRING VALLEY SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/12/2023

Defendant La Mesa-Spring Valley Schools' Demurrer is SUSTAINED as to the First Cause of Action and the Fourth Cause of Action. The Demurrer is OVERRULED as to the Second and Third Causes of Action. The Court will hear as to leave to amend.

This is an action by minor Omar Rullan (8 yrs) against his former school district, Defendant La Mesa Spring Valley Schools, for alleged violations of the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and federal civil rights (29 U.S.C. §1983). Plaintiff alleges that the District failed to provide him with 825 minutes of intensive individual services, put him in kindergarten for the second time instead of first grade, isolated him in a tent on a hard walkway with no pillows or furniture and used an ambulance as a 'paddy wagon' to take him away for a non-existent seizure. The FAC seeks compensatory damages and attorney's fees.

The District demurs to the FAC as follows: (1) his first cause of action fails for failure to exhaust administrative remedies under IDEA because he did not file a due process complaint; (2) his second and third causes of action fail for the same reason because they depend on allegations the District denied him a free and appropriate public education (FAPE); (3) his first three causes of action fail because he did not present a government claim; (4) his first three causes of action fail because he cannot sue the District for isolating him to stop the spread of Covid or assisting him in a medical emergency; and (5) his first three causes of action fail for lack of subject matter jurisdiction because his failure to file a due process complaint was 'jurisdictional.' The District also demurs to the Fourth Cause of Action based upon 29 USC 1983, which is explicitly not opposed in the Opposition to the Demurrer (and therefore not addressed in substance). The Court SUSTAINS the Demurrer to the FOURTH CAUSE OF ACTION WITHOUT LEAVE TO AMEND.

First Cause of Action – IDEA SUSTAIN IDEA offers federal funds to states if they provide a FAPE to children with certain disabilities. 20 U.S.C.

§1412(a)(1)(A). The 'primary vehicle' for a FAPE is the 'individualized education plan (IEP).'' Honig v. Doe, 484 US 305, 311 (1988). IDEA provides an administrative process for a parent to challenge the implementation of his or her child's IEP. This process begins with a preliminary meeting or mediation between the parent and the child's IEP team. §1415(b)- (f). If the dispute remains unresolved after meeting/mediation, the dispute progresses to a 'due process hearing.' Id. The child's parent must exhaust this administrative process before resorting to a civil action for violations of IDEA. §1415(l).

Plaintiff concedes he did not bring a Due Process hearing, but argues that he has exhausted his administrative remedies by filing a complaint with the Department of Education. (First Amended Complaint 18) 20 U.S.C.A. § 1415(l) provides: ....before the filing of a civil action under such laws seeking relief that is also available under this Calendar No.: Event ID:  TENTATIVE RULINGS

2984653  31 CASE NUMBER: CASE TITLE:  RULLAN VS LA MESA SPRING VALLEY SCHOOL DISTRICT  37-2023-00008475-CU-CR-CTL subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

Subdivision (f) references a 'due process hearing.' (f) Impartial due process hearing (1) In general (A) Hearing Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.

Subdivision (f) is specific as to the requirements of that hearing. For example, it states: 'a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.' Subdivision (g) provides for an appellate procedure.

Nothing in subdivision (f) and (g) contemplate a procedure other than a 'due process' determination of the specific needs of the child. A 'compliance hearing' is not contemplated.

Based on the plain language of IDEA as summarized above, the filing a 'compliance complaint' with the California Department of Education does not exhaust administrative remedies under IDEA.

At least one Federal District Court has so ruled – at least in most cases. See N.R. v. San Ramon Vallev Unified Sch. District (2005) WL 8178082. 9 In N.R., the District brought a motion for judgment on the pleadings arguing that the Court lacked jurisdiction over Plaintiffs claims under IDEA and the California Education Code because due process had not been completed. Plaintiff sought leave to amend the Complaint to plead exhaustion, based upon the filing of a complaint with the California Department of Education's Compliance Unit. The N.R. Court relied upon the Ninth Circuit's holding in Hoeft v. Tucson Unified School Dist, 967 F.2d 1298 (9th Cir. 1983), which held that a compliance complaint only served as 'an appropriate administrative remedy where the only purposes served by exhaustion are to notify the state of local noncompliance and to afford it an opportunity to correct the problem.' Id. at 1308. The N.R.

Court noted: 'The Court concludes that a compliance complaint filed with CDE would not substitute for exhausting the IDEA administrative procedures in this case because plaintiffs are not challenging a facially invalid policy, but rather seek relief in the form of continued and uninterrupted services from their current services provider. As stated above, such relief is available through the administrative process, and plaintiffs must exhaust those remedies.' The Court agreed that it lacked jurisdiction over the Plaintiffs claims and dismissed the claims. As noted in N.R., a complainant must exhaust administrative remedies before bringing a complaint under the Constitution, the ADA, Section 504, or any other federal law which protects the rights of children with disabilities. Id The basis for plaintiff's First Cause of Action under IDEA is: 'The School District denied Omar a FAPE by failed to provide 825 minutes of intensive individual services in the general education setting.' This is not challenging a 'facially invalid policy' but seeking relief for specific services denied. Thus, under the rationale of the federal opinions, the Compliance Hearing would not satisfy the requirements of exhaustion.

Second Cause of Action - Violation of Title II of the Americans with Disabilities Act– 42 U.S.C. §12101 and Third Cause of Action - Violation of Section 504 of the Rehabilitation Act– 20 U.S.C. §701 et seq.

OVERRULED.

Defendant School District argues that these causes of action depend on allegations the District denied him a free and appropriate public education (FAPE). Therefore, because plaintiff has not exhausted under IDEA, these causes of action should be sustained as well as the first. The District cites IDEA's exhaustion requirement, 20 U.S.C. §1415(l), which provides that a plaintiff must exhaust administrative remedies under IDEA 'before the filing of a civil action' under 'other Federal laws protecting the rights of children with disabilities' if he 'seek[s] relief that is also available' under IDEA. The District says the 'dispositive question' is whether Omar is seeking a remedy for injuries that IDEA's administrative procedures could redress 'to any degree.' Plaintiff argues that Plaintiff's 'failure' to request due process does not bar his non-IDEA claims. Plaintiff relies on the recent US Supreme Court case - Perez v. Sturgis Pub. Sch., 143 S. Ct. 859, 864 (2023).

That case held, Section 1415(l) does not require exhaustion under IDEA 'where a plaintiff brings suit under another federal law for compensatory damages – a form of relief everyone agrees IDEA does not Calendar No.: Event ID:  TENTATIVE RULINGS

2984653  31 CASE NUMBER: CASE TITLE:  RULLAN VS LA MESA SPRING VALLEY SCHOOL DISTRICT  37-2023-00008475-CU-CR-CTL provide.' That is because Section 1415(l) 'applies only to suits that 'see[k] relief...also available under' IDEA.' Id. IDEA does not provide for compensatory damages. Plaintiff is only seeking compensatory damages.

In Perez, the Supreme Court held: (1) IDEA's administrative exhaustion requirement applies only to suits brought under another federal law that seek relief also available under IDEA; and (2) the student was not required to exhaust administrative procedures under IDEA before seeking relief in the form of compensatory damages under ADA. Because plaintiff is seeking damages under other federal law, the causes of action are not subject to the exhaustion requirement under IDEA.

Tort Claims Act - Government Code 911.2 The District asserts plaintiff had to present a government claim before he sued. The Government Claims Act ('GCA'), Gov. Code §810 et seq., provides: 'A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee...' Gov. Code §815.2(a). '[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented...until a written claim therefor has been presented to the public entity and has been acted upon...or...deemed to have been rejected...' §945.4 (emphasis added). Plaintiff did not have to present a claim under the GCA before he filed the first to third causes of action; they are federal. See Williams v. Horvath, 16 Cal. 3d 834, 842 (1976)('the filing of a claim for damages...may be [a]...permissible...impediment in the path of a state cause of action,' but 'the supremacy clause will not permit a like abrogation of the perquisites of a federal civil rights litigant...'); Gatto v. Cnty. of Sonoma, 98 Cal. App. 4th 744, 762 (2002)('...[T]he supremacy clause...does not permit a state law to alter or restrict federally created rights'); California Corr. Peace Officers Ass'n. v. Virga, 181 Cal. App. 4th 30, 39 (2010)('it is well settled that [California] claims-filing provisions are inapplicable to section 1983 claims') Substantive Arguments The District also demurs to Plaintiff's first to third cause of action on the ground that the District is 'immune' from suit under Government Code section 855.4. That section provides, in pertinent part, that neither a public entity nor a public employee is liable for: (a) 'an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease if the decision...was the result of the exercise of discretion vested in the public entity or public employee, whether or not such discretion be abused'; or (b) 'an injury caused by an act or omission in carrying out with due care [such] a decision...' The District writes that '...Plaintiff claims that the District did not reasonably believe that he had COVID or flu like symptoms...and therefore wrongfully had him wait for his parents with other students with symptoms in a tented area outside.' (P&A, p. 9, lines 19 to 22.) The District concludes it is immune from suit under Government Code section 855.4. (Id., p. 9, fn. 1.) The FAC does not allege he had symptoms of COVID or the flu or that he waited for his parents with 'other students with symptoms.' He only alleges '[t]he School District removed [him] from class and secluded him in a tent...' (FAC, ¶10.) He does not allege any facts that would disclose a defense under Section 855.4. The District's argument goes beyond the four corners of the FAC.

The District also demurs to the first to third causes of action on the ground that it is immune from suit under the 'Good Samaritan' defense, Health & Safety Code section 1799.102(b)(2), which reads: '[N]o person who in good faith, and not for compensation, renders emergency...care or assistance at the scene of an emergency shall be liable for...damages...from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct.' Section 1799.70 defines an 'emergency' as 'a condition or situation in which an individual has a need for immediate medical attention, or where the potential for such need is perceived by emergency medical personnel or a public safety agency.' Omar does not allege he had a 'need for immediate medical attention' or that 'emergency medical personnel' or a 'public safety agency' 'perceived' such a need or that anyone rendered emergency care or assistance 'in good faith and not for compensation.' Again the District's argument relies on facts not pled in the FAC. The face of the FAC does not disclose that such defense necessarily bars his action. Plaintiff alleges the District 'removed [him] from class and had an ambulance transport him...to a hospital...' (FAC, ¶11); that the District only 'later claimed he suffered a grand mal seizure and vomited,' when, in fact, 'an MRI and EEG did not show any signs that he had a seizure or any other health crisis' (id.); and that the District actually removed him 'by reason of Calendar No.: Event ID:  TENTATIVE RULINGS

2984653  31 CASE NUMBER: CASE TITLE:  RULLAN VS LA MESA SPRING VALLEY SCHOOL DISTRICT  37-2023-00008475-CU-CR-CTL [his] autism and ADHD.' (¶16.) Plaintiff alleges the District made a false 911 call to remove him from class and was therefore guilty of an act of willful or wanton misconduct, which would be an exception to immunity.

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