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Lopez v. The Regents of the University of California

United States District Court, N.D. California

December 10, 2013

MEDARDO LOPEZ and MARGARITA LOPEZ, as parents of decedent MILANCA LOPEZ, and as representatives of XAVIER C., deceased, Plaintiffs,

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For Medardo Lopez, as parent of decedent Milanca Lopez, and as representative of Xavier, C., deceased, Margarita Lopez, as parent of decedent Milanca Lopez, and as representative of Xavier C., deceased, Plaintiffs: Joel H. Siegal, Richard Lewis Richardson, LEAD ATTORNEYS, Attorney at Law, San Francisco, CA.

For Regents of the University of California, The, Cephas John, Defendants: Gaylynn Kirn Conant, LEAD ATTORNEY, Lombardi Loper & Conant, LLP, Oakland, CA.


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EDWARD M. CHEN, United States District Judge.


This case arises out of the death of Milanca Lopez an undergraduate at the University of California, Berkeley -- and her six year old son, Xavier. On May 18, 2012, Milanca, Xavier, and Defendant Jose Lumbreras -- Milanca's boyfriend -- were involved in a car accident. Lumbreras was driving the vehicle while under the influence of narcotics and/or alcohol. Tragically, Milanca and Xavier did not survive the accident. Milanca's parents, Medardo Lopez and Margarita Lopez (" Plaintiffs" ), have instituted the instant action against Lumbreras, the Regents of the University of California (" the U.C. Regents" ), and Cephas John, the Leasing & Assignment Manager in the Residential and Student Services Program at U.C. Berkeley. In general, Plaintiffs allege that the U.C. Regents and Mr. John were aware of, and failed to properly respond to, Lumbreras' continual abuse and harassment of Milanca. They allege that this failure was a proximate cause of Milanca and Xavier's death.

Before this Court are the motion for judgment on the pleadings brought by the U.C. Regents and Mr. John as well as Plaintiffs' request for judicial notice. For the following reasons, Defendants' motion will be GRANTED as to Plaintiffs' federal causes of action. However, Plaintiffs will be granted leave to amend.


Milanca Lopez was a Mexican-American woman who attended the University of California, Berkeley from July 2007 to May 18, 2012. Dkt. No.1, First Amended Complaint (" FAC" ) ¶ 5, 15. During the fall semester of 2011, Defendant Lumbreras -- a graduate student and student teacher at U.C. Berkeley -- and Milanca began a relationship. Id. ¶ 16. Plaintiffs allege, on information belief, that Lumbreras used his position as a student teacher to initiate this relationship, but they do not allege what facts underlie this belief. Id. Additionally, Plaintiffs have not alleged any facts suggesting that Defendant Lumbreras was Milanca's teacher .

Soon after the relationship began, Lumbreras allegedly began to systematically control, abuse, and insult Milanca. He would publicly insult her in front of other undergraduate and graduate students, referring to her as a " dirty whore," a " slut," and would denigrate her heritage by referring to her as " not Mexican

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enough." Id. ¶ 17. In January 2012, Lumbreras invited Milanca to his home to smoke marijuana with other students. Id. ¶ 18. During this visit, Lumbreras forced Milanca's 6 year old son, Xavier, to watch Lumbreras have sex with Milanca while Milanca attempted to make Lumbreras stop. Id.

Starting in March 2012, Lumbreras and Milanca began living together in Milanca's apartment in the University Village -- a housing complex located on the campus of U.C. Berkeley and maintained under the direction and authority of the university. Id. ¶ 9, 19.

On April 26, 2012, Milanca contacted a fellow U.C. Berkeley student, upset and crying because Lumbreras was at a bar on campus drinking and refused to pick up Xavier from school. Id. ¶ 20. Hours later, at 1:30 a.m. on April 27, 2012, Milanca contacted the same student while crying, telling that student that Lumbreras was " punching and kicking" her in her apartment. Id. ¶ 21. Lumbreras then abruptly hung up the telephone. Id. ¶ 22. Within minutes, a group of U.C. Berkeley students responded to Milanca's apartment to check on her welfare. Id. ¶ 23-24. They observed Milanca run out of her apartment, only half dressed, crying, screaming, and holding Xavier. Id. ¶ 24. Milanca's arms and thighs displayed fresh bruises. Id. ¶ 25. Milanca and Xavier went to stay with a neighbor for the night, but at 4:00 a.m., Lumbreras arrived at the apartment visibly intoxicated and belligerent. Id. ¶ 27. He began to bang on the apartment door and yell insults at the apartment for approximately 45 minutes. Id. When Milanca returned to the apartment the next morning, she found that Lumbreras had broken and/or vandalized numerous items in her apartment, including her laptop, television, and a jewelry box. Id. ¶ 28.

Plaintiffs allege that in early May 2012, Milanca reported Lumbreras' abuse to U.C. Berkeley personnel in two separate instances. First, they allege that in early May 2012, " University of California Berkeley Police Department Officers responded to Milanca's apartment on two separate occasions." Id. ¶ 29. Plaintiffs allege that the officers " failed to draft notes, reports, or otherwise removed Defendant from the apartment for an investigation." Id. However, Plaintiffs do not allege what prompted the officers to respond to Milanca's apartment on those occasions or what Milanca reported to them. Second, Plaintiffs allege that around this time, Milanca telephoned Mr. John and told him about the above incidents of abuse and insults. Id. ¶ 30.[1] Apparently, Mr. John tried to respond to Milanca, but heard nothing from Milanca in response. Dkt. No. 29-3, at 8. On May 7, 2013, Milanca emailed Mr. John and apologized for " not getting back to [him]" and telling him " I ended up working things out." Id. [2] It is unclear from the FAC or the email what Milanca actually told Mr. John about the underlying incidents. Plaintiffs allege that Mr. John was " responsible for reporting and otherwise taking reasonable steps to prevent further acts of dating, stalking, and domestic violence incidents at the University Village," but failed to prevent the incidents of domestic violence. Id. ¶ ¶ 33, 34.

On May 18, 2012, Lumbreras drove himself, Milanca, and Xavier in a 1999 Cadillac

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while he was under the influence of narcotics and/or alcohol. Id. ¶ 41. Lumbreras' blood alcohol content was .219. Id. In this impaired state, Lumbreras drove his vehicle into a tree, killing Milanca and severely injuring Xavier. Id. ¶ 42. Xavier succumbed to his injuries in the hospital a week later. Id.

Plaintiffs filed the instant action in California state court on May 10, 2013. Plaintiffs assert thirteen causes of action. Only two of these are federal causes of action -- Count 1 alleges a violation of Title IX, 20 U.S.C. § 1681(a), and Count 12 alleges a violation of Title VI, 42 U.S.C. § 2000d, et seq. Id. ¶ 44-50; Id. ¶ 123-136.

Plaintiffs base their Title IX count on the basis that Lumbreras " harassed Milanca Lopez based upon her sex and Mexican-American race and ethnicity, such that she was denied benefits and precluded from participation in school programs." Id. ¶ 49.[3] Specifically, Plaintiffs allege that Milanca was " scheduled to receive the benefits associated with U.C. Berkeley university housing until approximately June 29, 2012" and was " accepted and set to enroll as a graduate student at the University of California Los Angeles." Id. ¶ 50. Thus, it appears that Plaintiffs are alleging that it is the accident (and Milanca's subsequent death) which caused the deprivation of housing benefits. See id. ¶ 54 (" Further, said acts were so severe as to damage the physical, mental, and emotional health of Milanca and her minor child, Xavier. Ultimately, the severity of the actions and inactions of each Defendant led to the death of Milanca Lopez and her minor child." ).

Plaintiffs allege that Lumbreras' harassment of Milanca was pervasive in that it " permeated all aspects of Milanca's personal, academic, and familial life." Id. ¶ 55. Further, Plaintiffs allege that the harassment took place at " numerous locations throughout campus and in front [of] numerous U.C. students, in Milanca's home, [Lumbreras'] home, and at the home of Milanca's neighbor." Id. This fact, combined with Milanca's May 7, 2012 telephone call and email to Mr. John are alleged to have conveyed to Mr. John and the University actual knowledge of Lumbreras' harassment, intimidation, and abuse. Id. ¶ 57. Plaintiffs also allege that numerous students had actual knowledge of Lumbreras' acts of domestic violence, but failed to report them. Id. ¶ 58.

Plaintiffs state law causes of action are for negligence per se, negligence, negligent supervision, premises liability, intentional infliction of emotional distress, negligent infliction of emotional distress, battery, assault, and gender violence in violation of Cal. Civ. Code § 52.4. The U.C. Regents and Mr. John have filed a motion for judgment on the pleadings, seeking to have Plaintiffs' Complaint dismissed in its entirety. Dkt. No. 27.


A. Legal Standard

Under Federal Rule of Civil Procedure 12(c), " [j]udgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). " Rule 12(c) is 'functionally identical' to Rule 12(b)(6) and . . . 'the same standard of review' applies to motions brought under either rule." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Accordingly, in considering such a motion, a court must take all allegations

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of material fact as true and construe them in the light most favorable to the nonmoving party, although " conclusory allegations of law and unwarranted inferences are insufficient to avoid" dismissal. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

While " a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. ; see also Lewis v. City & County of San Francisco, No. C 11-5273 PJH, 2012 WL 909801, at *1 (N.D. Cal. Mar. 16, 2012) (stating that to survive a Rule 12(c) motion, a plaintiff must allege " 'enough facts to state a claim to relief that is plausible on its face.'" (citation omitted)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell A. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than sheer possibility that a defendant acted unlawfully." Iqbal, 556 U.S. at 678.

In the context of ruling on both a Rule 12(b)(6) and Rule 12(c), motion, the Court is generally limited to the contents of the complaint. However, in addition, the Court may consider " documents referenced extensively in the complaint, documents that form the basis of plaintiff's claims, and matters of judicial notice when determining whether the allegations of the complaint state a claim upon which relief can be granted." Mendelsohn v. Intalco Aluminum Corp., No. C06-0190RSL, 2006 WL 1148559, at *1 (W.D. Wash. Apr. 21, 2006); see also United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003).[4]

Where a court grants a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c), leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir. 2013) (" [A] district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factional allegations . . . ." ).

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B. Plaintiff's Have Failed to State a Claim for a Violation of Title IX, But Will Be Granted ...

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