The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Denying Motion to Dismiss
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants the San Diego Unified School District ("SDUSD") and Kimberly Chambers ("Chambers") (collectively "Defendants") move the Court for dismissal of Plaintiffs' claims under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), the California Unruh Civil Rights Act, and California Civil Code § 51.9. Defendants*fn1 also ask the Court to decline supplemental jurisdiction over Plaintiffs' remaining state law claims, and to dismiss the case in its entirety. Plaintiffs have filed an opposition, and Defendants have filed a reply. The Court found Defendants' motion appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1), and the October 29, 2007 hearing date was vacated. For the reasons set forth herein, the Court DENIES Defendants' motion.
Plaintiff Jessica Schroeder has been mentally disabled since infancy. [Complaint, ¶ 15.] At the time of the incident which forms the basis of Plaintiffs' claims, Jessica was an 18-year-old with the mental capacity of a very young child. [Id., ¶ 13.] Jessica has had significant developmental delays, is significantly below average in general intellectual functioning, exhibits deficits in adaptive behavior, and also has a seizure disorder. [Id., ¶ 14.] Because of her disability, Jessica qualifies for and receives special education programs and assistance from SDUSD. [Id., ¶ 15.] At the time of the incident which forms the basis of Plaintiffs' claims, Jessica was a student at Serra High School as a special needs student. [Id., ¶ 16.]
Jessica's October 2002 Individualized Education Program ("IEP") evaluation commented that Jessica "is generally easily persuaded." A March 31, 2006 draft IEP further commented that "Jessica does not appear to know self-advocacy skills when personal boundaries are violated" and that "Jessica needs to learn basic safety and personal boundaries." [Complaint, ¶ 21.] The same IEP recommended that Jessica be given a benchmark/objective of learning "good-touch, bad-touch and personal safety and boundaries when in an appropriate setting." [Id., ¶ 22.] Plaintiffs allege SDUSD was aware, because of Jessica's disability, that Jessica was vulnerable to sexual molestation. [Id., ¶ 21.]
Plaintiffs allege that despite SDUSD's awareness of Jessica's vulnerability to sexual molestation and abuse, SDUSD and Chambers, the teacher responsible for Jessica, selected a 17-year-old male student to be Jessica's peer tutor. [Complaint, ¶ 27.] Plaintiffs allege the male student, Fernando Ortiz, had a troubled past and had been in trouble with the law prior to his selection as a peer tutor. [Id., at ¶ 29-32.] Plaintiffs allege SDUSD and Chambers allowed Jessica to be supervised one-on-one by Ortiz without close or adequate adult or teacher supervision.
On Monday, April 3, 2006, and for the next few days during that week, Plaintiffs allege Jessica was sexually battered by Ortiz while he was acting in his capacity as a peer tutor to Jessica and while both students were in Chambers' class. [Complaint, ¶ 33.] School was closed the following week but on Monday, April 17, 2006, the next day school was in session, Plaintiffs allege Ortiz once again sexually assaulted Jessica in Chambers' classroom.*fn2 [Id., ¶ 35.] At the time of both the April 3 and April 17, 2006 incidents, class was in session and students, teachers, aides, staff, and peer tutors were present. A female student who was also acting as a peer tutor in Chambers' classroom reported the assault to SDUSD personnel on April 17, 2006. However, Plaintiffs allege school officials did not take any action to have Jessica examined, contact officials, or contact Jessica's mother about the assault until the following day, April 18, 2006.*fn3 [Id., ¶ 37-38.]
Plaintiffs allege that prior to the assaults, Jessica was affectionate and relatively easy to handle by her mother and other adults. [Complaint, ¶ 25.] On the evening of April 17, 2006 and into the day of April 18, 2006, Marina Schroeder was confused, frustrated, and emotionally distressed because of Jessica's puzzling symptoms and behavior. [Id., ¶ 39.] Since the assaults, Jessica has required psychiatric treatment and medication; she has become aggressive, combative, and overtly violent. Jessica is detached and distraught and suffers from sleep difficulties. [Id., ¶ 44-45.]
Plaintiffs' complaint states claims for relief against SDUSD and Chambers under 42 U.S.C. § 1983 and California Civil Code § 51.9. Plaintiffs also state a claim for relief against SDUSD under Title II of the Americans with Disabilities Act and the California Unruh Act. Finally, Plaintiffs state claims against both SDUSD and Chambers for negligence.
A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King & Spaulding, 467 U.S. 69, 73 (1974); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) ("[U]nder Fed.R.Civ.P. 12(b)(6), [the court must] accept all facts alleged in the complaint as true and construing them in the light most favorable to the plaintiff,") (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)).
The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal is not warranted unless it "appears beyond doubt that the plaintiff can prove no set of facts in ...