Opinion
G060503
11-28-2023
G.P., a minor, etc. et al., Plaintiffs and Appellants, v. HUNTINGTON BEACH CITY SCHOOL DISTRICT et al., Defendants and Respondents.
Gravitas Law Group and David J. Scharf for Plaintiffs and Appellants. Harbottle Law Group, Sydney J. Blaauw and S. Daniel Harbottle for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2019-01060053 Deborah C. Servino, Judge. Affirmed.
Gravitas Law Group and David J. Scharf for Plaintiffs and Appellants.
Harbottle Law Group, Sydney J. Blaauw and S. Daniel Harbottle for Defendants and Respondents.
OPINION
GOETHALS, J.
G.P., a former student at a middle school in the Huntington Beach City School District (the District), and his mother, Maria P., appeal from the trial court's entry of judgment after granting summary judgment in favor of the District on plaintiffs' causes of action for negligence, disability discrimination, and "sexualized" harassment. The District prevailed against plaintiffs' negligence and disability discrimination causes of action based on their failure to exhaust their administrative remedies and furthermore on substantive grounds even assuming that administrative exhaustion was not required. The trial court also found appellants failed to rebut the District's evidence that the alleged derogatory name-calling perpetrated by fellow middle school students against G.P. was not "sexualized" within the meaning of the relevant anti-discrimination statutes. We find appellants' challenges to these summary judgment rulings to be without merit. We therefore affirm the judgment.
We use "District" here and throughout the opinion as the abbreviated designation for, collectively, both the school district and the district employees individually named by plaintiffs as defendants in the action, i.e., Gregg Haulk, Dr. Cynthia Guerrero, Forest Holbrook, John Ashby, Trinon Carter, Theresa Martella, Michelle Albaugh, and Will Johnson.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with the standard of review, in which we must view the facts in the light most favorable to the party opposing summary judgment (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 (Meridian)), we adopt appellants' version of the facts as set out in their opening brief. We nonetheless abbreviate our recitation because the trial court's exhaustion ruling was not fact dependent; nor are the facts of the name calling disputed.
As appellants recount in their opening brief, they submitted in opposition to summary judgment a declaration by one of G.P.'s fellow students, E.S., from his fifth-grade science class. According to E.S., on one occasion when she "was sitting in Mr. Carter's 5th period" classroom, the teacher was "at his desk . . . not paying attention," but E.S. "looked up" from her phone and saw G.P. "sitting in the back of the room with [E.O.], [T.K.], and [L.S.] standing around him." E.S. "could tell they were teasing [G.P.] about something and heard them call him a 'Fucktard'. [G.P.] told them to stop multiple times, but they kept teasing him and were blocking his path to leave." E.S. felt "it was obvious [G.P.] was being picked on," and the teacher had to have noticed, but did nothing. "The three boys finally pushed [G.P.] into the cabinets in the back of the classroom which made a loud noise." According to E.S., "The bullying had gone on all year in this classroom."
She mentioned in her declaration another incident that did not involve any bullying of G.P., but rather other bad behavior by the trio; G.P., who "was assigned to their group but was not participating in the play fighting," also "got in trouble" when the teacher yelled at him, too. E.S. "did not think it was fair" and "told her mom she needed to call Mrs. P[.] about how [G.P.] was being treated in Mr. Carter[']s science class." E.S.'s mother did so and, as a result, Maria P. "sent emails directly to Cynthia Guerrero, the Principal at the time."
Maria P. "stated that her son had been called a 'Retard', a 'Fucktard', 'Special Needs', 'Weirdo' and 'Stupid' on a daily basis for months." Appellants acknowledge the trial court sustained the District's objection on hearsay and other grounds, but they assert on appeal that the evidence was "not offered for the truth but to prove that Guerrero was informed of the fact that G.P. was being severely bullied at school." The trial court also sustained the District's objections to E.S.'s declaration and other evidence. We need not reach appellants' challenges to the trial court's evidentiary rulings because, even assuming the evidence had been admitted, it would not undermine the trial court's summary judgment ruling on exhaustion and non-exhaustion grounds. (See Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 337 [appellate court "unable to reverse without a showing of prejudice"; therefore, will not idly "decide whether a trial court's decision" was correct].)
Appellants also presented G.P.'s deposition in which he stated that "[d]uring eighth grade, [the bullying] got [] worse." "Every single day and every single time" E.O. saw G.P. at school, he would call him "a faggot," and whenever E.O. "saw [G.P.] in a group, he would tell them like, 'Oh, everybody, look. This kid's a faggot.'" E.O. would say of G.P. and other students, "'These kids are gay for each other' . . . several times a week."
G.P. testified during his deposition that he did not identify as gay or transgender, and that he did not believe E.O. thought he (G.P.) was gay.
Appellants asserted seven causes of action in a third amended complaint against the District, all of which the trial court rejected in its summary judgment ruling. Appellants challenge only the court's rulings on their claims for negligence, disability discrimination, and sexual harassment.
DISCUSSION
A. Standard of Review
We review a trial court's decision to grant summary judgment de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) When a defendant moves for summary judgment, the defendant has the initial burden of presenting evidence sufficient to establish either that the plaintiffs cannot prove one or more elements of their causes of action, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If the defendant does so, the burden then shifts to the plaintiffs to produce admissible evidence demonstrating there is a triable issue of material fact as to the claim or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) Failure to exhaust administrative remedies is one such complete defense. (E.g., Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594.) Claims or theories advanced to thwart summary judgment that are not supported by evidence will not raise a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163, 166.)
"'[A]lthough we use a de novo standard of review here, we do not transform into a trial court.'" (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379 (Dinslage).) We approach a summary judgment appeal, as we do any appeal, with the presumption the judgment or trial court ruling is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Therefore, "'"[o]n review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court."'" (Dinslage, at p. 379.) While "our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [the appellant's] brief." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
B. Negligence Claims
Appellants fail to show error in the trial court's summary judgment ruling on their negligence claim. Confronted with a welter of assertions in appellants' first cause of action, the court observed that appellants "labeled [it] a negligence claim." The court noted the negligence was apparently premised on the District's alleged breach of a host of duties said to be embodied in various statutory code sections-including under "the IDEA," i.e., the Individuals with Disabilities Education Act. (20 U.S.C. § 1400 et seq.)
The trial court ruled that, "[t]o the extent this claim is based [on] the District Defendants' failure to provide a free appropriate public education ('FAPE') pursuant to the IDEA, Plaintiffs have failed to exhaust their administrative remedies prior to filing the present lawsuit and the statute of limitations has expired to do so." We agree.
The IDEA establishes an administrative exhaustion requirement for claims alleging denial of a child's right to a free, appropriate public education despite educational disabilities the child may face. (20 U.S.C. § 1415(1).) "In the event of a dispute regarding the child's FAPE, the IDEA and California law afford students, parents and the [local education agency] the procedural protection of an impartial administrative, or 'due process,' hearing." (B.H. v. Manhattan Beach Unified School Dist. (2019) 35 Cal.App.5th 563, 572.)
The IDEA's FAPE guarantee is "the yardstick for measuring the adequacy of the education that a school offers to a child with a disability: Under that standard, . . . a child is entitled to 'meaningful' access to education based on her [or his] individual needs." (Fry v. Napoleon Community Schools (2017) 580 U.S. 154, 167 (Fry).) In other words, because the IDEA's express purpose is '"to ensure that all children with disabilities have available to them a free appropriate public education' [citation], [states] receiving federal funding under the IDEA must make such an education [i.e., a FAPE] 'available to all children with disabilities.'" (Id. at pp. 166-167.)
As pertinent here, we read appellants' negligence claim to be based on the District's alleged failure to protect G.P. from bullying that arose from, or was compounded by, disabilities he suffered. As appellants phrase it in their appellate briefing, their "negligence claim is based on the fact that Defendants had a duty to exercise reasonable care to ensure G.P.'s safety. Defendants knew that G.P. was constantly being bullied from 2016 until he left the school in 2018."
Appellants summarize their negligence claim thusly: "The Defendant[s] had an affirmative duty to protect G.P. from this harm [i.e., bullying] but deliberately failed to do so because the Defendants considered G.P. to be the problem due to his behavioral issues which stemmed from his disabilities and were exacerbated by the constant harassment." According to appellants, defendants alleged G.P. "is a child with disabilities including Aspergers and a speech disorder that would sometimes manifest in problematic behavior." Appellants argue they "offered" in opposition to respondents' summary judgment motion evidence that "Defendants fail[ed] to properly conduct Child Find under the IDEA [a process to identify children with disabilities and furnish appropriate educational resources] . . . to further demonstrate the [District's] deliberate indifference to G.P.'s plight" at the hands of his bullies.
The IDEA "requires exhaustion when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way" and "setting aside any attempts at artful pleading." (Fry, supra, 580 U.S. at pp. 169-170.) Fry noted there may be disability-based claims that do not implicate the exhaustion requirement, such as when "a wheelchair-bound child sues his school for discrimination under Title II [of the Americans with Disabilities Act] because the building lacks access ramps." (Id. at p. 171.) In such instances, while "that architectural feature has educational consequences" (ibid.), the "essence" or "gravamen" of the student's complaint "is equality of access to public facilities, not [the] adequacy of special education" (id. at p. 172). Only contentions alleging inadequate public education opportunities amount to a FAPE challenge requiring exhaustion.
The Supreme Court in Fry indicated that a "clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from" answering two questions. "First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school-say, a public theater or library?" (Fry, supra, 580 U.S. at p. 171.) "And second, could an adult at the school-say, an employee or visitor-have pressed essentially the same grievance?" (Ibid.) If in both instances, "the same basic suit could go forward," then the student's complaint is "unlikely to be truly about" denial of appropriate education opportunities and, therefore, there is no FAPE administrative exhaustion requirement. (Ibid.)
A "further sign" that the gravamen of a student's complaint is in fact "the denial of a FAPE can emerge from the history of the proceedings." (Fry, supra, 580 U.S. at p. 173.) When, as here, "a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute . . . before switching midstream," the "plaintiff's initial choice to pursue that process may suggest that she [or he] is indeed seeking relief for the denial of a FAPE-with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations." (Ibid.)
These Fry "clues" convince us FAPE exhaustion is required here. Appellants initiated the FAPE administrative process in November 2018, but then unilaterally withdrew their request for a hearing five months later. An adult-say, a custodian at the school-could not pursue a cause of action based on similar alleged misconduct by third parties or students because the alleged harm perpetrated by a schoolyard bully is that it interferes with a child's educational opportunities. In other words, it relates directly to the school setting and instruction that takes place at school.
Likewise, a similar suit could not be brought in a library or theater setting because libraries or theater operators have no duty to protect patrons against harm from third parties in the way that schools may have a parens patriae obligation to their students. The fact that appellants do not challenge the trial court's ruling against them related to their claim that a teacher facilitated an assault by intentionally blocking a doorway-which would be actionable in any setting as aiding and abetting criminal conduct-reinforces this conclusion. The trial court did not err in finding that appellants' negligence claim based on generalized student bullying implicated the appropriateness- or lack thereof-of G.P.'s learning environment. Therefore, the administrative exhaustion requirement applied.
Appellants contend the fact they are seeking money damages for the alleged bullying, rather than any relief an administrative officer might afford through an IDEA "due process" hearing, exempts them from the exhaustion requirement. We agree that the Supreme Court in Fry did not rule on this question. (Fry, supra, 580 U.S. at p. 165, fn. 4.) But the distinction appellants attempt to create by abandoning FAPE administrative relief begs the question of whether their negligence claim is, in essence, about the adequacy of G.P.'s schooling.
We find significant precedent holding that the "primary concern in determining whether a plaintiff must utilize the IDEA's administrative procedures relates to the source and nature of the alleged injuries for which he or she seeks a remedy, not the specific remedy itself." (Padilla v. School Dist. No. 1 in Denver, Colo. (10th Cir. 2000) 233 F.3d 1268, 1274.) Consequently, "we understand 'available' relief 'to mean relief for the events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers,' [citation], or specifically seeks." (Ibid.; accord, K.D. v. Los Angeles Unified School Dist. (9th Cir. 2020) 816 Fed.Appx. 222, 224 [since "damages sought were based on an alleged failure to provide a FAPE," court rejected argument that "exhaustion would be futile because [plaintiff] seeks monetary damages"].)
Although G.P. transferred to another school, equitable relief may still have been available under the IDEA, even if the new school was private. (See Nieves-Marquez v. Puerto Rico (1st Cir. 2003) 353 F.3d 108, 124 ["Awards of compensatory education and equitable remedies that involve the payment of money, such as reimbursements to parents for expenses incurred on private educational services to which their child was later found to have been entitled, remain available" under the IDEA; they are not considered to be "damages" under precedent]; accord, Charlie F. v. Bd. of Educ. of Skokie School Dist. 68 (7th Cir. 1996) 98 F.3d 989, 993 ["in principle relief is available under the IDEA"], abrogated implicitly in part on another ground as stated in Fry, supra, 580 U.S. at pp. 164-165, 174.) In light of this precedent, appellants cannot circumvent the administrative exhaustion requirement by disclaiming all remedies except court-awarded monetary damages.
C. Alternate Negligence Claim
On appeal, appellants appear to assert their negligence cause of action was not FAPE-based because it is not premised solely on federal statutory protection for disabled students. They now invoke two California cases that they contend impose on schools broad anti-bullying liability regardless of whether a student suffers from a disability. Appellants cite Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, for the proposition that "California law has long imposed on school authorities a duty to 'supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.'" (Citing and quoting also Doe v. United States Youth Soccer Assn. Inc. (2017) 8 Cal.App.5th 1118, 1130 ["parents entrusted their children to defendants with the expectation that they would be kept physically safe and protected from sexual predators while they participated in soccer activities"].)
This new argument fails to satisfy appellants' burden to demonstrate error requiring reversal. "Because it is the Appellants' burden to affirmatively demonstrate error, they must provide citations to the appellate record directing the court to the evidence supporting each factual assertion." (Meridian, supra, 67 Cal.App.5th at p. 684.) "The reviewing court is not required to develop the parties' arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived." (Ibid.) These principles apply here: "'"the rules relating to the scope of appellate review apply to appellate review of summary judgments."'" (Ibid.)
Appellants state only that "[t]he legal basis for th[eir negligence] claim is set forth at length in Plaintiffs[' Third Amended Complaint] at 1 AA 15-72 ...." Block citations to dozens of pages at a time cannot satisfy appellants' burden. "As [a] practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs .... The problem is especially acute when, as here, the appeal is taken from a summary judgment." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
Appellants then compound their block reference problem. Alluding generally to more than 1600 pages in the appellate record, they argue "the evidence submitted to the trial court as contained in Appellant[s'] Appendices more than adequately demonstrates the existence of substantial material evidence to support the negligence action." Ignoring the appellate rules in this manner forfeits the claim. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) "'"'In other words, review is limited to issues which have been adequately raised and briefed.'""' (Dinslage, supra, 5 Cal.App.5th at p. 379.) "[W]e will not scour the record on our own in search of supporting evidence" (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149), which would contravene the standard of review (Denham, supra, 2 Cal.3d at p. 564).
Appellants' brief reference in the negligence section of their brief to "the statement of facts set forth above," i.e., at some unspecified earlier point in their brief, does not rectify the deficiency. It is unclear which facts appellants rely on, and the appellate court may not on its own develop a party's arguments for reversal, nor "'be[] compelled to extricate [a contention or supporting facts] from the mass.'" (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Thus, appellants' bid for reversal of the trial court's ruling on their alternate negligence claim must fail.
D. Section 504/ADA Claims
The trial court granted summary judgment against appellants on their third amended complaint's eighth cause of action for alleged violation of Title II of the Americans with Disabilities Act (ADA; 42 U.S.C § 12131 et seq.) and related claims under Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, Tit. V, § 504 (Sept. 26, 1973) 87 Stat. 394, codified at 29 U.S.C. § 794; hereafter, Section 504). The court found against appellants on both exhaustion and non-exhaustion grounds. On the former, the court found that appellants' failure to exhaust their administrative remedies under the IDEA barred their Section 504 and ADA claims. The court also found in the alternative that even if appellants were not required to exhaust their administrative remedies, they failed to identify and provide supporting evidence of a triable issue of material fact precluding summary judgment on their ADA and Section 504 claims.
In our initial opinion in this matter, we upheld the trial court's grant of summary judgment on exhaustion grounds, without reaching the court's alternate ruling on non-exhaustion grounds. Eight days before our opinion became final, the United States Supreme Court filed its opinion in Luna Perez v. Sturgis Public Schools (2023) 598 U.S. 142 (Perez), and the day before our jurisdiction would have lapsed (Cal. Rules of Court, rule 8.260(b)(1)), appellants sought rehearing on grounds that, under Perez, exhaustion of claims under IDEA administrative procedures is not required to pursue ADA/Section 504 claims. We granted the rehearing request to consider Perez's applicability, if any, to the issues on appeal.
We find Perez is applicable to foreclose upholding the trial court's summary judgment ruling against appellants on exhaustion grounds as to their ADA/Section 504 claims, and the District agrees. As the District recognizes, Perez "directly addresses the issue of when and whether a student must exhaust administrative remedies under the IDEA for [claims under] other federal statutes when seeking relief that is unavailable under the IDEA." The Supreme Court framed the issue there as "whether a suit admittedly premised on the past denial of a free and appropriate education [i.e., a 'FAPE' under the IDEA] may nonetheless proceed without exhausting IDEA's administrative processes if the remedy a plaintiff seeks [such as under the ADA or Section 504] is not one IDEA provides." (Perez, supra, 598 U.S. at pp. 149-150.) The high court concluded exhaustion is not required in that instance. (Id. at p. 151 [reversing lower court's conclusion that lack of exhaustion "precluded Mr. Perez's ADA lawsuit"].)
On rehearing here, the District contends that the alternative, non-exhaustion grounds on which it sought and obtained summary judgment on plaintiffs' ADA/Section 504 claims below require upholding that ruling, notwithstanding Perez. We agree.
In granting summary judgment, the trial court found "[t]he District Defendants have also met their prima facie burden to show that the School District was not aware of G.P.'s alleged disability prior to March 2, 2018," when he transferred to a private school: "Plaintiffs failed to present substantial and admissible evidence creating a triable issue of material fact," and, "[a]ccordingly, the motion for summary adjudication as to the eighth cause of action . . . is granted." The court did not err.
"To establish a violation of Title II of the ADA, a plaintiff must show: '(1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.'" (D.A. v. Meridian Joint School Dist. No. 2 (D.Idaho 2013) 289 F.R.D. 614, 622 (D.A.), italics added.) A corresponding cause of action arises under Section 504 when the discriminating entity "'receives federal financial assistance'" and the entity's denial of benefits was similarly "'by reason of his disability.'" (D.A. at p. 622, italics added.) "[A]llegations of intentional discrimination or deliberate indifference are required to state a claim for damages under Section 504 or the ADA." (Ibid., citing Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, 1135-1136 (Duvall).)
Intentional discrimination by definition requires knowledge of the disability said to trigger the alleged discriminatory conduct. In other words, the ADA language prohibiting discrimination '"by reason of"' a disability '"establishes a "motivating factor" causal standard of liability."' (K.M. ex rel. Bright v. Tustin Unified School Dist. (9th Cir. 2013) 725 F.3d 1088, 1099 (K.M.).) Under that standard, the "relevant question" is whether the student's disability "motivat[ed]" or was a "motivation" for the school personnel's allegedly discriminatory conduct. (Garedakis v. Brentwood Union School Dist. (9th Cir. 2018) 756 Fed.Appx. 669, 672.) The standard under Section 504 is even higher, "requiring a plaintiff to show a denial of services 'solely by reason of' disability." (K.M., at p. 1099.)
The trial court did not err in concluding that plaintiffs failed to present evidence in their opposition to the summary judgment motion to create a triable issue of fact that District personnel intentionally discriminated against G.P. on the basis of a known disability, or that District personnel acted with the requisite deliberate indifference. "Deliberate indifference" is a form of intentional discrimination that "requires 'knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.'" (D.A., supra, 289 F.R.D. at p. 622, citing Duvall, supra, 260 F.3d at p. 1139.)
The case on which appellants rely, D.A., actually demonstrates the paucity of appellants' evidence. There it was "undisputed" that the student alleging disability discrimination "suffer[ed] from a disability" that was '"within the meaning of Section 504."' (D.A., supra, 289 F.R.D. at p. 628 [answer to complaint admitted student's qualifying ADA and Section 504 disability].)
Here, in contrast, appellants point to no such diagnosis in the record, stating at most that G.P.'s medical records contained a "notation" suggestive "of pervasive developmental delay now known as autism spectrum ...." (Italics added.) Assuming that autism is the disability on which G.P. premises his ADA and Section 504 claim, appellants did not point to evidence in opposing summary judgment that the District knew of his autistic condition. G.P. testified that he did not "think any of my teachers were aware of any disability since it wasn't evaluated at all."
Instead, plaintiffs opposed summary judgment on grounds that G.P.'s mother told school personnel upon G.P.'s enrollment in kindergarten in 2009, and several times thereafter, about a different disability: his speech delays, including repeating to his teachers "yearly" that "he had been a late talker ([age] 31/2) . . . ." This is too far removed in time and the nature of the disability (speech delay) to constitute notice to the District. It does not fit within the '"by reason of"' disability discrimination standard under which the student's disability, and the school's knowledge thereof, meets the ""'motivating factor" causal standard for liability."' (K.M., supra, 725 F.3d at p. 1099.)
Notably, appellants in opposing summary judgment on their ADA and Section 504 claims did not assert that G.P.'s speech delay qualified as a disability under those provisions of law, but instead alleged, based on that condition, that when G.P. first "entered HBCSD's doors," he was "a student with a disability covered under the IDEA." (Italics added.) As discussed, however, for IDEA claims, appellants were required to exhaust their administrative remedies.
Appellants attempted in opposing summary judgment to bootstrap this early notice of one learning disability (speech delay) into imputed knowledge on the District's part of a later diagnosis of autism by claiming that the District negligently responded to notice of G.P.'s speech delay. Although not entirely clear, it appears appellants opposed summary judgment on their ADA and Section 504 claims on grounds that, if only the District had not been negligent in following up on "IDEA safety protections" and several IDEA "Child Find red flags" to identify disabled children, including by failing to act on a "request by [G.P.'s] kindergarten teacher to have [him] assessed by the school psychologist as soon as possible," the District would have discovered G.P. suffered from autism.
Appellants' summary judgment opposition thus suggested the District was liable under the ADA and Section 504 for discrimination G.P. later suffered in middle school based on his presumed autism because the District negligently failed to discover that condition at an earlier date. We cannot agree. A public entity's liability under the ADA or Section 504 for "failure to act must be a result of more than mere negligence; rather, it must involve a measure of deliberateness." (D.A., supra, 289 F.R.D. at pp. 622-623.) Thus, the trial court did not err in finding no merit in appellants' summary judgment opposition based on claims that "HBCSD was negligent in training its educators" and "negligent[ly] fail[ed] in their ongoing Child Find obligations."
The trial court also did not err in finding no merit to appellants' opposition to summary adjudication of their ADA and Section 504 claims based on notice to the District of alleged peer-on-peer disability-based harassment. The case on which appellants rely on appeal, D.A., again shows their allegations do not meet the requisite standards.
"School district liability for peer-on-peer disability-based harassment under Section 504 and the ADA has not been directly addressed by the United States Supreme Court or the Ninth Circuit. The Supreme Court, however, has addressed school district liability for peer-on-peer sexual harassment in violation of Title IX of the Civil Rights Act. In [Davis v. Monroe County Bd. of Educ. (1999) 526 U.S. 629], the United States Supreme Court held that school districts may be held liable for student-on-student harassment under Title IX if they are 'deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.'" (D.A., supra, 289 F.R.D. at p. 628.)
D.A. continued: "Based upon the holding in Davis[, supra, 526 U.S. 629], federal courts have extended peer-on-peer harassment claims to the disability context." (D.A., supra, 289 F.R.D. at p. 628, citing M.L. v. Federal Way School Dist. (9th Cir. 2005) 394 F.3d 634, 650 ["school's deliberate indifference to bullying could result in the denial of a FAPE under the IDEA"].)
Even assuming that such disability-based bullying furnishes a ground for ADA/Section 504 claims that are not subject to an exhaustion requirement under the IDEA, the trial court properly granted summary judgment against appellants for lack of evidence the District knew of G.P.'s alleged disability and harassment based on that disability.
"To establish a disability harassment claim, the plaintiff must prove that the defendant knew about the harassment. [Citation.] The Supreme Court made clear in Davis[, supra, 526 U.S. 629] that this is not a negligence standard under which a school may be held liable for actions that it should have known about. [Citation.] Rather, the Supreme Court concluded in Davis that a school district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of harassment 'of which it had actual knowledge.'" (D.A., supra, 289 F.R.D. at p. 630, italics omitted.)
In D.A., the school district argued there was "'no evidence indicating that [it] had knowledge of the alleged bullying until after it occurred,'" and therefore could not be found to have been indifferent to known disability-based bullying. (D.A., supra, 289 F.R.D. at p. 630, italics added.) The district court there found summary judgment inappropriate where the record "d[id] not support this contention." (Ibid.) To the contrary, a teacher "was present during times when [the student] was being harassed" and, importantly, the student's mother repeatedly "raised the bullying issue" with school administrators in successive years. (Ibid.) Despite this repeated notice of an ongoing problem, "[i]f Plaintiffs['] allegations are to be believed, [the district] never investigated or took any steps to prevent or remediate the harassment." (Id. at p. 631.)
Here, in contrast, appellants premised their claim of disability-based harassment on the actions of a "student bully for two years from approximately February 2016 through March 2018" who alluded to a perceived disability by calling G.P. a "'Retard[,]' 'Fucktard' and 'Special Needs.'" But their sole reference in opposition to summary judgment to alleged District notice of the bullying was one "independent student witness . . . report" in 2016 of classroom bullying after it occurred. Moreover, G.P. testified the bullying ceased "during [his] seventh grade year" when he did not have class with or otherwise encounter or suffer abuse from his bully or the bully's sidekick: "I never said a word to them. They never said a word to me." According to G.P., his bully resumed tormenting him in his eighth grade year before G.P. transferred out, but the record, including G.P.'s separate statement in opposition to summary judgment, is devoid of any notice to the District.
On this record, there is no triable issue of fact regarding District knowledge of ongoing, alleged peer bullying sufficient to rise to the level of deliberate indifference. As the D.A. court noted, the Supreme Court has "made clear . . . that this is not a negligence standard under which a school may be held liable for actions that it should have known about." (D.A., supra, 289 F.R.D. at p. 630, original italics.) Thus, the trial court properly granted summary adjudication in favor of the District on appellants' ADA and Section 504 claims in their eighth cause of action.
E. Sexualized Harassment
Finally, the trial court did not err in adjudicating appellants' "sexualized harassment" claim against them. Plaintiffs in their seventh cause of action brought the claim under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.; hereafter Title IX), the Unruh Civil Rights Act (Civil Code, § 51 et seq.), Civil Code section 51.9, and Education Code section 220. In pertinent part, the protections that these provisions afford against harassment based on sex require as an element of the claim "conduct . . . of a hostile nature based on gender" (e.g., Civ. Code, § 51.9, subd. (a)(2)) or otherwise that the victim was "being subjected to harassment at school because of [his/her] . . . sexual orientation ...." (CACI No. 3069 ["Harassment in Educational Institution"]; see Ed. Code, § 220.)
The Supreme Court has determined under Title IX in particular that, because "students are still learning how to interact appropriately with their peers," and thus may behave "regularly . . . in a manner that would be unacceptable among adults" (Davis v. Monroe County Bd. of Educ., supra, 526 U.S. at p. 651), "[d]amages are not available for simple acts of teasing and name-calling among school children . . . even where these comments target differences in gender" (id. at p. 652). Alleged violations of Education Code section 220 are similarly evaluated under the same standards as Title IX violations. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 581.) Words "merely tinged with offensive sexual connotations" do not demonstrate there was '"discrimin[ation] . . . because of . . . sex."' (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81.)
Thus, "[t]he use of gender-based or sexually loaded insults such as 'fag' or 'homo' can certainly be indicative of animus on the basis of gender, but the use of such terms without more is not necessarily sufficient to establish gender discrimination." (Roe ex rel. Callahan v. Gustine Unified School (E.D.Cal. 2009) 678 F.Supp.2d 1008, 1027 (Roe).) In Roe, for instance, the "more" included allegations of peer sexual assault with an air hose, exposing the victim's penis during football practice, and touching his buttocks in the shower. (Id. at p. 1026.) In contrast, elementary and middle school boys' use of terms like '"fag,"' '"faggot,"' '"bitch,"' and '"gay"' may be "ubiquitous" but aimed as "freeflowing insult[s]" rather than "tinged with sexual connotation." (I.V. v. Wenatchee School Dist. No. 246 (E.D.Wash. 2018) 342 F.Supp.3d 1083, 1095-1096; id. at p. 1095 [observing that none of the deposed students "mentioned IV was being picked on because IV was homosexual, or that YAF perceived IV as being homosexual"].)
These authorities required the trial court to rule against appellants' claims. As the court found, "the District Defendants . . . met their prima facie burden," including by showing that the District "did not sexually harass G.P. and Maria P.," and that appellants failed to present evidence "creating a triable issue of material fact." We find no legal error.
DISPOSITION
The judgment is affirmed. The District is entitled to its costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. SANCHEZ, J.