United States District Court, E.D. California
ORDER DENYING MOTION TO DISMISS AND APPOINTING
GUARDIAN AD LITEM (DOC. NOS. 2, 6)
February 22, 2017, plaintiff P.H., a minor, commenced this
action by filing a complaint against Kathleen Quijada and the
Tehachapi Unified School District ("Tehachapi")
bringing claims for 1) a violation of the American
Disabilities Act ("ADA"), 28 C.F.R. Part 35; 2) a
violation of the Unruh Civil Rights Act, Cal. Civ. Code
§ 51, et seq.; 3) a violation of the
Rehabilitation Act, 28 U.S.C. § 794 (§ 504); 4)
breach of due of care arising under a special relationship;
5) negligence; 6) assault; 7) battery; and 8) intentional
infliction of emotional district. (Doc. No. 1.) On the same
day, plaintiff P.H.'s mother filed a motion for order
appointing her guardian ad litem for P.H. (Doc. No.
2.) On March 16, 2017, defendant Tehachapi filed a motion to
dismiss plaintiffs first and third claim for relief under
Federal Rule of Civil Procedure ("Rule") 12(b)(6).
(Doc. No. 6.) On April 3, 2017 plaintiff P.H. filed an
opposition to the motion to dismiss and on April 10, 2017,
defendant Tehachapi filed a reply. (Doc. Nos. 9 and 10.) The
motion for order appointing guardian ad litem is
unopposed. The matters came before the court for hearing on
April 18, 2017. Attorney Anthony DeMaria appeared
telephonically on behalf of defendant Tehachapi and attorney
David Grey appeared telephonically on behalf of plaintiff.
(Doc. No. 12.) The matters were taken under submission. For
the reasons that follow the court will appoint Juanita Luna
as P.H.'s guardian ad litem and will deny
defendant Tehachapi's motion to dismiss.
P.H. is a seven-year old girl who suffers from multiple
severe disabilities, is non-verbal, and has limited
intellectual capacity. (Doc. No. 2 at 3.) P.H. was a student
at Tehachapi where she alleges she was tied to a chair with a
blanket and left for entire school days. (Doc. No. 1 at 2.)
Plaintiff further alleges she was bruised, battered, screamed
at, and left all day in soiled papers. (Id.) In sum,
plaintiff claims that she was physically and psychologically
abused because of her disability from March 2016 through May
2016. (Id.) Her biological mother and legal
custodian is Juanita Luna. (Doc. No. 2 at 3.) As noted, Ms.
Luna has moved for an order appointing herself as guardian
ad litem for P.H. (Doc. No. 2.)
noted, defendant Tehachapi moves to dismiss plaintiff's
first and third claims brought under the ADA and the
Rehabilitation Act, respectively, arguing that plaintiff has
failed to allege that she exhausted her administrative
remedies with respect to those claims. (Doc. No. 6 at 1-2.)
Tehachapi contends that the Individuals with Disabilities
Education Act (“IDEA”) requires exhaustion of
plaintiff's first and third claims for relief before
plaintiff can seek federal court intervention. (Id.
at 5.) Plaintiff opposes dismissal of those claims, arguing
that exhaustion is not required because her first and third
claims are personal injury damages claims and are independent
of the relief available under the IDEA for denial of free
appropriate public education (“FAPE”). (Doc. No.
98 at 1) (citing Fry v. Napolean Community Schools,
580 U.S. ___, 137 S.Ct. 743, 749 (2017) (“We hold that
exhaustion is not necessary when the gravamen of the
plaintiff's suit is something other than the denial of
the IDEA's core guarantee - what the Act calls a
‘free appropriate public education.'”)).
the court will first address the motion for appointment of a
guardian ad litem before turning to defendant's
motion to dismiss.
courts have a special duty, derived from Federal Rule of
Civil Procedure 17(c), to safeguard the interests of
litigants who are minors.” Robidoux v.
Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). Rule 17
provides that “[t]he court must appoint a guardian ad
litem-or issue another appropriate order-to protect a minor
or incompetent person who is unrepresented in an
action.” Fed.R.Civ.P. 17(c)(2). Local Rule 202(a) of
this court states, in pertinent part:
Upon commencement of an action or upon initial appearance in
defense of an action by or on behalf of a minor . . . the
attorney representing the minor or incompetent person shall
present . . . a motion for the appointment of a guardian ad
litem by the Court, or . . . a showing satisfactory to the
Court that no such appointment is necessary to ensure
adequate representation of the minor or incompetent person.
See Fed. R. Civ. P. 17(c).
decision to appoint a guardian ad litem “must normally
be left to the sound discretion of the trial court.”
United States v. 30.64 Acres of Land, 795 F.2d 796,
804 (9th Cir. 1986).
Luna moves the court to appoint her as guardian ad
litem to her daughter P.H. (Doc. No. 2.) In a
declaration signed under penalty of perjury, Ms. Luna states
that P.H. is her natural born child and that she has legal
custody over her. (Id. at 3.) Ms. Luna further
declares that she has no interest adverse to the rights of
P.H. and that she is fully competent and responsible to
prosecute the action on her daughter's behalf.
(Id.) Finding good cause, the court grants the
motion (Doc. No. 2) and appoints Juanita Luna as the guardian
ad litem of P.H., a minor and the named plaintiff in
Rule 12(b)(6) Legal Standard
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and ...