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R. H. v. Los Gatos Union School District

United States District Court, N.D. California, San Jose Division

April 2, 2014

R. H., a minor, RICHARD H., GUARDIAN AD LITEM FOR R. H., a minor, and RICHARD H., Plaintiffs,

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For R. H., minor, Richard H., Guardian at Litem for R. H., Minor and Richard H., Plaintiffs: Adam Cabral Bonner, Charles A. Bonner, Law Offices of Bonner and Bonner, Sausalito, CA.

For Los Gatos Union School District, Los Gatos-Saratoga Recreation, Lisa Fraser, Lisa Nanez, Curtis Summers, Dan Racimo, Defendants: Mark E. Davis, LEAD ATTORNEY, Davis & Young. APLC, San Jose, CA.

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LUCY H. KOH, United States District Judge.

Plaintiffs R. H. and his father and guardian, Richard H. (collectively " Plaintiffs" ), filed this action against the Los Gatos Union School District, Los Gatos-Saratoga Community Education and Recreation,[1] Lisa Fraser, Lisa Nanez, Curtis Summers, and Dan Racimo (collectively, " Defendants" ), alleging violations of R. H.'s Fourteenth Amendment liberty interests, as well as various state law torts. See Plaintiffs' Second Amended Complaint (" SAC" ), ECF No. 41 ¶ 2. Plaintiffs' claims arise out of an incident which occurred during a school-sponsored wrestling match and which resulted in injuries to Plaintiff R. H. Id. ¶ 23-28. Before the Court is Defendants' Motion for Summary Judgment (" Mot." ). See ECF No. 61. Plaintiffs have filed an Opposition (" Opp'n" ), ECF No. 71, and Defendants have filed a reply (" Reply" ), ECF No. 75. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing on this Motion and the Case Management Conference set for April 3, 2014, at 1:30 p.m. Having considered the record in this case, applicable law, and the parties' briefs, the Court GRANTS Defendants' Motion for Summary Judgment.


Plaintiffs R. H. and Richard H. bring this action against Defendants, alleging that Defendants' negligence led to R. H.'s injury during a middle school wrestling match, and that Defendants' conduct violated R. H. and Richard H.'s constitutional rights under the Fourteenth Amendment. SAC ¶ ¶ 2, 16-43; Declaration of Richard H. (" Richard H. Decl." ), ECF No. 70 ¶ 21. Specifically, Plaintiffs allege that Defendants' negligence and misconduct led to R. H.'s wrestling against a larger, more experienced opponent, which resulted in R. H.'s injury. Richard H. Decl. ¶ ¶ 4, 6, 21.

A. The Parties

Plaintiff R. H. started at Fisher Middle School as an 8th grade student in the fall of 2010. Deposition of R. H. (" R. H. Depo" ), ECF No. 65, Ex. A at 9. In October, shortly after the semester began, R. H. joined the school's wrestling team. Id. at 32. R. H. was thirteen years old at the time. Declaration of R. H. (" R. H. Decl." ), ECF No. 69 ¶ 3. Although he had no prior wrestling experience, R. H. had for several years participated in various martial arts and had achieved an " advanced brown belt" in taekwondo. R. H. Depo at 38-44, 48.

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Plaintiffs bring this action against the Los Gatos Union School District, Los Gatos-Saratoga Community Education and Recreation, Lisa Fraser, Lisa Nanez, Curtis Summers, and Dan Racimo. SAC ¶ 2. Fisher Middle School is in the Los Gatos Union School District, and R. H. was a student in the district at the time of his injury. SAC ¶ 10. Defendant Lisa Fraser is the principal of Fisher Middle School. Declaration of Lisa Fraser, ECF No. 66 ¶ 1. Student athletics in the district are run by Los Gatos-Saratoga Community Education and Recreation. Deposition of Lisa Fraser, ECF No. 68, Ex. 8 at 32-33.

Defendant Lisa Nanez is employed by the Los Gatos Union School District, and is the athletic director at Fisher Middle School, where she also works as a physical education teacher. Declaration of Lisa Nanez, ECF No. 62 ¶ 1. As athletic director, she finds coaches for the various Fisher Middle School athletic teams and recommends them to Los Gatos-Saratoga Community Education and Recreation. Id. ¶ 2. Defendants Lisa Nanez and Lisa Fraser recommended Defendants Curtis Summers and Dan Racimo as potential wrestling coaches to Los Gatos-Saratoga Community Education and Recreation. Id. ¶ 3

Defendants Curtis Summers and Dan Racimo are Fisher Middle School's wrestling coaches and are employed by Los Gatos-Saratoga Community Education and Recreation. SAC ¶ 15. Defendant Summers, a former middle and high school wrestler, obtained his " copper" USA wrestling coach certification in 2000, which qualifies him as a wrestling coach up to the high school level. Declaration of Curtis Summers (" Summers Decl." ), ECF No. 64 ¶ 3. Defendant Racimo also wrestled in high school, and likewise received his " copper" certification in 2008. Declaration of Dan Racimo (" Racimo Decl." ), ECF No. 63 ¶ 3. Although employed by Los Gatos-Saratoga Community Education and Recreation, both Summers and Racimo declined the stipend offered to athletics coaches, preferring instead to volunteer their services as coaches. Summers Decl. ¶ 4; Racimo Decl. ¶ 4.

B. The Release

Upon joining the team, Richard H. filled out and signed the required " After School Sports Emergency/Health Insurance form" and release, which stated in pertinent part that Richard H.:

agrees to indemnify and hold the Los Gatos Union School District and Community Education and Recreation Department harmless and release the district and Department from any and all liability for any injury which may be suffered by [R. H.], arising out of or in any way connected with participation in [the wrestling team].

ECF No. 64, Ex. A.

The release further stated that:


Id. The release language appears to be in 10 point font, the same font size as the rest of the emergency contact and health insurance form that Richard H. completed and signed, and is situated just above the signature and date line. See id. R. H. testified that he signed a waiver as well,[2] but

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that he " didn't really read through either of them." R. H. Depo at 50. Nevertheless, R. H.'s general understanding was that the release form " releas[ed] the school district and the coaches from any and all injuries that [he] might sustain while participating on the Fisher wrestling team." Id. at 50-51.

C. The Fisher Wrestling Team

R. H. joined the Fisher wrestling team in October of 2010. After the first practice of the season, Fisher's wrestling coaches, Defendants Curtis Summers and Dan Racimo, selected R. H. to join the varisity team. R. H. Depo at 66, 68; ECF No. 64 (" Summers Decl." ) ¶ 6; ECF No. 63 (" Racimo Decl." ) ¶ 6. Varsity athletes wrestle in different weight classifications according to their body weight. The team's " Wrestling Rules" state that the weight classifications include 70, 75, 80, 85, 90, 95, 100, 105, 110, 115, 120, 125, 135, 145, 155, 165, 175, and 205 pounds, and a further heavyweight for wrestlers beyond 205 pounds. See ECF No. 72, Ex. 6 (" 2010 Fisher Wrestling Rules" ).[3] R. H.'s first weigh-in took place during the first varsity practice, sometime in October of 2010. R. H. Depo at 73-74; see also ECF No. 73, Ex. 35 (list of Fisher wrestlers and corresponding weights). According to R. H., he weighed 155.3 pounds at this initial weigh-in, wearing a t-shirt, shorts, and possibly wrestling shoes. R. H. Depo at 73-74.[4]

Under the league wrestling rules, a wrestler may " wrestle up" and compete in the next weight class above his or her lowest weight classification. See 2010 Fisher Wrestling Rules; Racimo Decl. ¶ 7; Summers Decl. ¶ 9. The rules also provide for a two pound allowance, so a 157 pound wrestler may still wrestle in the 155 pound class, which would otherwise include only 145-155 pound wrestlers. See 2010 Fisher Wrestling Rules; ECF No. 74, Ex. 6 (" Summers Depo" ), at 64; Racimo Depo at 43-44. At 155.3 pounds, R. H. was initially eligible to compete in: (1) the 155-165 pound weight class; (2) the 145-155 class on account of the 2-pound allowance rule; and (3) he could even have wrestled up to the 165-175 class.

From early October until the league championships on December 3, 2010, the team held wrestling practice every weekday, and wrestled in tournaments on Saturdays. R. H. Depo at 60. Over the course of the season, R. H. competed in both the 155 and 165 pound classes. Id. at 113. During the weekday practice sessions, R. H. would often practice and spar with two wrestlers, C. H. and M. M. Id. at 77-78, 87. Both were more skilled, both were in better shape, and at around 186 pounds, C. H. was significantly larger and heavier than R. H. Id. at 77-78, 82, 87. Defendant coaches Summers and Racimo also coached R. H. at each practice, helping him improve his wrestling and his physical conditioning. Id. at 84-85. R. H. lost all but one match during the season, which apparently is common for new wrestlers

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and had been expected by both R. H. and his father. R. H. Depo at 63, 107, 114; ECF No. 68, Ex. 4 (" Richard H. Depo" ) at 46. Some of the matches R. H. lost as a result of being pinned. Some were prolonged, and he lost by points. R. H. Depo at 106-107; Richard H. Depo at 79. R. H. was not injured in any of his matches during the regular season, whether he was wrestling in the 155 or 165 pound class, nor was he ever concerned about being hurt competing in either class. R. H. Depo at 144, 189. He continued to have no concerns about the prospect of injury throughout the season, and his only concern about participating in the 165 pound weight class at the year-end league tournament was that he felt he had no chance of winning. Id. at 189.

R. H. contends that he lost weight over the course of the season on account of his daily participation in strenuous wrestling practices. R. H. Decl. ¶ 5; R. H. Depo 97-98. R. H. alleges that the coaches did not weigh him regularly during the season, R. H. Decl. ¶ 5-6, and did not weigh him prior to dual meets as required by the league rule. Id. ¶ 5; see also Summers Depo at 60 (stating that wrestlers were not weighed in before each dual meet during the 2010 season). Defendant coaches Racimo and Summers state in their depositions that the wrestlers weighed in daily at practice and self-reported their weights to the coaches. Racimo Depo at 60-61; Summers Depo at 66-67. If the wrestlers self-reported significant weight changes, the coaches would make note of the new values on their list of wrestlers and corresponding weights. Racimo Depo at 60-61. Plaintiffs maintain that Defendants themselves did not weigh in the wrestlers during practices, but Plaintiffs do not appear to dispute that the wrestlers weighed themselves on a daily basis. R. H. Decl. ¶ 5 (" The coaches never measured my weight during practices." ) (emphasis added).

Beyond R. H.'s initial weigh-in at 155.3 pounds, he was also weighed in at the Hyde Classic wrestling meet on November 20, 2010. R. H. Decl. ¶ 6. At that point, two weeks before the league championships, R. H.'s weight is recorded in Defendant Summers' records as being 151.6 pounds. Id. ; ECF No. 73, Ex. 41, 42 (handwritten charts indicating a weight of 151.6 for R. H.). According to Defendants, R. H. was weighed-in on November 20, 2010 wearing only a wrestling singlet, not his street clothes. Summers Decl. ¶ 8. R. H. states in his declaration that he did not weigh 151.6 pounds at that point.[5] R. H. Decl. ¶ 6.

At some point during the course of the regular season, another wrestler on the Fisher team, L. B., weighed in at the very top of his weight class shortly before a dual meet. Summers Depo at 137-38. As they were about to depart for the meet, Coach Summers asked L. B. if he wanted to " wait an hour" to eat breakfast, so that L. B. could weigh in at the meet before increasing his weight by eating breakfast. Id. L. B. elected to eat " a bowl of cereal" anyway, and after weighing in over the maximum, he did not wrestle at that meet. Id. at 138. Plaintiffs contend that L. B. was subsequently ridiculed by the coaches and the other students for eating the cereal, R. H. Decl. ¶ 20, which Defendants deny. Summers Depo at 138, 142; Racimo Decl. ¶ 7.

D. Final Weigh-In for the Season-End League Championships

The league championships were held at Wilcox High School in Santa Clara, California

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on December 3, 2010. Richard H. Depo at 76. All of the wrestlers who were to compete in the league championships were weighed in the day before, as required by the league rules. See 2010 Fisher Wrestling Rules. Following the weigh-in, the coaches for the teams participating in the tournament held a seeding meeting. ECF No. 68, Ex. 10 (" Petulla Depo" ) at 23-24. These seeding meetings differed depending on whether the coaches were seeding the wrestlers for a regular-season dual meet or for tournaments like the league championships. Id. At dual meets, any wrestler from any team may participate, so the coaches would seed the wrestlers to ensure that participants were matched with others of somewhat similar skill. Id. at 25-26. Because tournaments like the league championships were not part of the mandatory wrestling team schedule, participation was voluntary and wrestlers had to earn their place and " opt in." Id. Wrestlers in these tournaments were also typically at a higher skill level. Id. Thus, the seeding meeting for the league championship involved seeding wrestlers according to their records, so that the coaches could set up a proper bracket. Id. A tournament bracket initially pits the top seeded wrestlers against the lower seeded wrestlers, so that the top two wrestlers will ultimately face off in the final match, should they both win all the matches up to that point. Id.

Fisher wrestlers were weighed in at Rolling Hills Middle School, and were weighed by Coach Summers and Stephen Petulla, the Rolling Hills coach. R. H. Depo at 163; Summers Depo at 101-102. Stephen Petulla described the weigh-in procedure thus:

" The schools would line up. They'd most often be in order of weight, and we would call, hey, you know, what's your name? The gentleman would tell me his name. What weight are you wrestling? He'd say 70 pounds. He'd step on the scale, and we'd check his weight, and if he weighed, you know, if he made weight, they'd write him down and check him off, and he'd go on the list to wrestle."

Petulla Depo at 21-22. Wrestlers were weighed with their clothes on, and R. H. was weighed in as Fisher's wrestler in the 165 pound weight class. R. H. Depo at 163, 176-177. The third party coach, Stephen Petulla, reported R. H.'s weight, and Defendant Summers recorded this weight on his listing of wrestlers as 152.6. Summers Decl. ¶ ¶ 14, 15; see also ECF No. 73, Ex. 8 (handwritten list of Fisher wrestlers and weights measured on December 2, 2010 for the league championships on December 3, 2010). At 152.6, R. H. was therefore recorded as weighing one pound more than he had at the November 20, 2010 weigh-in. R. H. Decl. ¶ 6, ECF No. 73, Ex. 41, 42.

R. H. disputes this weight, and testified that when he stepped on the scale on December 2, 2010, the scale read 148.5, not 152.6. R. H. Depo at 98, 169-171. However, Stephen Petulla, present at the weigh-in as a neutral third party, made no objection when R. H. was weighed and his weight was recorded at 152.6. Id. at 169. R. H. testified that at some point after Coach Summers had recorded R. H.'s weight at 152.6, Petulla, who knew R. H. would be wrestling in the 165 pound class, " did make a mention then that he didn't know how much a wrestler was allowed to wrestle up, but that seemed a little--a little much." R. H. Depo at 170. This allegation is not in the FAC or SAC, and the first time it appears is in R. H.'s deposition on August 8, 2013. Id. The record indicates that Plaintiffs' counsel did not ask Summers or Racimo about any such remark at their depositions, which occurred several months before R. H. first made this allegation during R. H.'s depositon.

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See Racimo Depo at 1; Summers Depo at 1. Stephen Petulla, who was deposed after R. H., did not recall such a conversation or remark. Petulla Depo at 31-33. R. H. further testified that he had not otherwise ever seen, nor was he aware of, any situation in which an incorrect weight was recorded by a coach for a Fisher wrestler. Id. at 170-171. R. H. admits he made no mention of the alleged weight manipulation by Coach Summers to anyone until after he was injured. Id. at 182. Nor did he remark to anyone before the incident that he was surprised to be wrestling in the 165 pound weight class. Id.

Plaintiffs state that when R. H. weighed in on December 2, 2010, he was wearing clothing and had items in his pockets that weighed four pounds in total. Richard H. Decl. ¶ 11; R. H. Decl. ¶ 9. Although Plaintiffs appear to no longer possess the actual clothing R. H. was wearing and the items he had in his pockets on December 2, 2010, Plaintiffs later measured the weight of similar, representative items to arrive at their estimate of " 4.0 lbs." Id. Defendants object that Plaintiffs' " recreation" does not accurately reflect what R. H. was wearing on December 2, 2010. See ECF No. 78 at 1. The record is thus unclear as to what exactly R. H. was wearing at the time, and what he had in his pockets.

Additionally, Plaintiffs' allegations regarding the content of R. H.'s pockets and what he was wearing have changed several times over the course of this litigation. Initially, Plaintiffs alleged in the SAC that the coaches instructed R. H. to put as much as he could in his pockets to increase his weight, and that he weighed in wearing his jacket and shoes. SAC ¶ 22 (alleging that Defendants " instructed [R. H.] to weigh-in wearing his street clothes, shoes, jacket, and 'whatever else might fit easily into [his] pockets.'" ). Defendants deny this accusation. Summers Depo at 101-102; Racimo Depo at 100-101. Later, R. H. testified that Defendants did not instruct him to put anything in his pockets, but that Defendant Racimo or Summers told him not to remove anything from his pockets. R. H. Depo at 166-167. R. H. also testified that no one had ever told him at any point during the season to put anything into his pockets before being weighed in. R. H. Depo at 166-167. Additionally, R. H. testified that he had in fact removed his shoes and jacket before being weighed in, but that he may have had some loose change and possibly his headphones in his pockets as well. Id. at 165-168, 174.

In their opposition, Plaintiffs drop their contention about headphones, and assert instead that it was actually an iPod that R. H. had in his pockets when he weighed in on December 2, 2010. Opp'n at 2, 11. The Opposition provides no citation in support of Plaintiffs' assertions about an iPod. See Opp'n at 2, 11. The only other mention of an iPod is in R. H.'s declaration, see R. H. Decl. ¶ 9, which contradicts R. H.'s deposition testimony that his pockets contained " [his] cell phone and [his] wallet" and that " there might have been some loose change and [his] headphones, as well." R. H. Depo at 166.

E. R. H. Is Injured While Wrestling at the League Championships

During the league championship the following day, December 3, 2010, R. H. competed in the 165 pound weight class. Summers Decl. ¶ 13; SAC ¶ 26. R. H. testified that his only concern about competing in the 165 weight class was that he felt he would very likely lose his matches, and that he was unconcerned about somehow being injured as a result of competing in that weight class. R. H. Depo at 186.

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R. H. was matched up against an opponent who Plaintiffs allege weighed 164 pounds. SAC ¶ 26 (opponent weighed 164 pounds); see also Opp'n at 9 (opponent weighed nearly 165 pounds). Plaintiffs point to nothing in the record showing R. H.'s opponent's weight, and state no basis for their knowledge. Upon seeing his opponent, R. H. remained unconcerned about potential injury. R. H. Depo at 186. Although R. H. had no concerns about his physical safety, he testified that he was nevertheless " terrified by his [opponent's] size." R. H. Decl. ¶ 12. During the match, R. H.'s opponent took him to ground, and as a result R. H. suffered a fractured jaw. Richard H. Decl. ¶ ¶ 6, 9; Id. Ex. 1, 2 (medical records of R. H.'s post injury operation and treatment).

After the incident, Richard H. brought R. H. to the Emergency Room at Santa Clara Medical Center in San Jose, California, where Richard H. works as a Certified Registered Nurse Anesthetist. Id. ¶ 10. The SAC states that R. H. was taken to the hospital the day after the incident, December 4, 2010. ECF No. 41 ¶ 23. Plaintiffs now contend that R. H. was taken to the ...

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