Legal Document: Santa Cruz County Parents United vs Farris Sabbah, et al

On October 06, 2022 a Opp_Demurrer was filed involving a dispute between and for (08) Unlimited Civil Rights in the District Court of Santa Cruz County.

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1 Tracy L. Henderson, Esq
Law Offices of Tracy L. Henderson, Esq
2 P. O. Box 221562
Carmel CA 93922
3
831.917.1583
4 tlhlaw@protonmail.com

5 Attorneys for Plaintiff

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SANTA CRUZ
9
UNLIMITED CIVIL CASE

10
SANTA CRUZ COUNTY PARENTS ) Case No.: 22CV02200
11
UNITED, an unincorporated nonprofit )
association, ) PLAINTIFF’S OPPOSITION TO
) DEFENDANT’S DEMURRER
12
Plaintiff, )
) Date: March 16, 2023
13 vs. ) Time: 8:30 a.m.
) Dept: 5
14 SANTA CRUZ COUNTY OFFICE OF ) Judge: Hon. Timothy Volkmann
EDUCATION, SAN LORENZO UNIFIED )
15 VALLEY SCHOOL DISTRICT, a school ) Complaint filed: 10/6/22
district, PAJARO VALLEY UNIFIED Trial Date: Not Yet Set
16 SCHOOL DISTRICT, a school district, SANTA
CRUZ CITY SCHOOL DISTRICT, a school
17 district, FARRIS SABBAH, in his official
capacity as superintendent of Santa Cruz
18 County, and Does 1 through 50, inclusive,
19 Defendant.
20

28
1 TABLE OF CONTENTS

2
INTRODUCTION……………………………………………………………………………………1
3

4 ARGUMENT IN OPPOSITION TO DEFENDANTS’ DEMURRER……………………………1

5 A. The Administrative Procedures Act is Not the Entire Basis of Plaintiff’s Complaint…1
6
B. Defendants Cannot Create or Punitively Implement Policies that Violate the Law;
7 However, Propriety of Policy is Irrelevant to Legal Sufficiency of Complaint…………..3

8 C. Defendants are Vicariously Liable for Any Injury Which Their Employees Cause…..6
9
D. Defendants are Not Immune From Liability Under Gov. Code §855.4 Nor Were Their
10 Abusive and Discriminatory Acts “Carried Out with Due Care”………………………..9

11 E. All Civil Rights Violations in Plaintiff’s Second Cause of Action Fall Under the Bane
Act……………………………………………………………………………………………10
12

13 i. Plaintiff’s Second Cause of Action is Not “Five Causes of Action” Nor is It a Pure
First Amendment Claim……………………………………………………………10
14 ii. Plaintiffs SCCPU is an Unincorporated Association with Rights to Sue………..11
iii. Plaintiff’s First Amendment Claims Under Ed Code §48907 and the California
15
Constitution Art I §2 are Not Stand Alone; However, Plaintiffs’ Free Speech
16 Rights Were Violated……………………………………………………………….11
iv. Plaintiff Has Pled Facts Sufficient to State A Bane Act Claim; Defendants Simply
17 Misconstrue the Law
18
F. Second Cause of Action for Violation of Rights is Not a §1983 Claim Subject to Eleventh
19 Amendment Immunity. Assuming Arguendo This Court Disagrees, Immunity Does Not
Apply in This Case…………………………………………………………………………..15
20
G. Plaintiffs’ Declaratory Relief Claim is Proper ……………………………………………16
21

22 H. Plaintiff is Entitled to Injunctive Relief if Sought…………………………………………18

23
CONCLUSION………………………………………………………………………………………21
24

i
1 TABLE OF AUTHORITIES

2 Austin B. v. Escondido Union School Dist.,
149 Cal. App. 4th 860…………………………………………………………………….13
3
Barner v. Leeds,
4 (2000) 24 Cal. 4th 676, 687……………………………………………………………….7
Burton v. Board of Education,
5 71 Cal. App. 3d 52, 58……………………………………………………………………………..5
Bryant v. Armstrong,
6
2012 U.S. Dist. LEXIS 186754, *73-74 ……………………………………………………14
7 Committee on Children's Television, Inc. v. General Foods Corp.,
35 Cal. 3d 197, 213………………………………………………………………………..6
8 C.A. v. William S. Hart Union High School Dist.,
53 Cal. 4th 861, 868……………………………………………………………………….7
9
Dept. of Agriculture v. Tide Oil Co.
10 (1969) 269 Cal. App. 2d 145, 150–151…………………………………………………..20
D.V. v. City of Sunnyvale,
11 65 F. Supp. 3d 782, 785…………………………………………………………….……7, 14
Elton v. County of Orange,
12
(1970) 3 Cal. App. 3d 1053, 1057………………………………………………………7-9
13 Fretz v. Burke
1967) 247 Cal. App. 2d 741, 744………………………………………………………….20
14 Gifford v. Hornbrook Fire Prot. Dist.,
2021 U.S. Dist. LEXIS 174806, *73………………………………………………………14
15
Health Freedom Defense Fund, Inc. v. Joseph R. Biden, Jr.,
16 Case No: 8:21-cv-1693-KKM-AEP………………………….……………………………2
In re Application of Arata,
17 52 Cal. App. 380, 383……………………………………………………………………..4
Johnson v. Bay Area Rapid Transit Dist.,
18
724 F.3d 1159, 1171 (9th Cir. 2013)………………………………………………………15
19 Johnson v. State of California,
(1968) 69 Cal. 2d 782, 798……………………………………………………………6, 9-10
20 Jones v. Kmart Corp.,
(1998) 17 Cal. 4th 329, 334……………………………………………………………….14
21 Martinez v. City of Los Angeles,
22 141 F.3d 1373, 1379………………………………………………………………………8
McCorkle v. City of Los Angeles,
23 (1969) 70 Cal. 2d 252, 261………………………………………………………………..7
M.H. v. County of Alameda,
24 (N.D. Cal. 2013) 90 F. Supp. 3d 889, 898…………………………………………………15
25 Mitchell v. Los Angeles Community College District,
861 F.2d 198 (9th Cir. 1988)……………………………………………………………….16
26 Muskopf v. Corning Hospital Dist.,
55 Cal.2d 211, 219…………………………………………………………………………6
27 Pacific Western Oil Co. v. Bern Oil Co.
28
(1939) 13 Cal. 2d 60, 66…………………………………………………………………….20

ii
1 People v. Mobile Magic Sales, Inc.
(1979) 96 Cal. App. 3d 1, 13……………………………………………………………….20
2 Pittenger v. Home Savings & Loan Assn.,
166 Cal.App.2d 32, 37…………………………………………………………………….17
3
Redevelopment Agency of San Diego v. San Diego Gas & Electric Co.,
4 111 Cal. App. 4th 912………………………………………………………………………..11
Regents of the University of California v. Doe,
5 519 U.S. 425, 429…………………………………………………………………………16
Rosicrucian Fellow. v. Rosicrucian Fellowship Non-Sectarian Ch.
6
(1952) 39 Cal. 2d 121, 144…………………………………………………………………...20
7 Sato v. Orange Cty. Dep't of Educ.,
861 F.3d 923, 928………………………………………………………………………….16
8 Shoval v. San Diego County,
No. 09-CV-01348-H (JMA), 2009 U.S. Dist. LEXIS 77723, at *10………………………14
9
Southern Counties Gas Co. v. Ventura Pipeline Constr., Co.,
10 19 Cal. App. 3d 372………………………………………………………………………17
Spence v. Washington,
11 418 U.S. 405, 410–11(1974)……………………………………………………………….12
St. Paul Fire & Marine Insurance Co. v. Barry,
12
438 U.S. 531, 538………………………………………………………………………….20
13 St. James Church v. Superior Court
1955) 135 Cal. App. 2d 352, 361…………………………………………………………..20
14 Stanley v. Cty. of San Diego,
2018 U.S. Dist. LEXIS 10936……………………………………………………………..14
15
Tiburon v. Northwestern P. R. Co.
16 (1970) 4 Cal. App. 3d 160, 170……………………………………………………………16
Tide Water Assoc. Oil Co. v. Superior Court
17 (1955) 43 Cal. 2d 815, 822…………………………………………………………………20
Texas v. Johnson,
18
491 U.S. 397, 404 (1989)………………………………………………………………….12
19 Transamerica Occidental Life Ins. Co. v. Digregorio,
811 F.2d 1249, 1251………………………………………………………………………..17
20 United States v. O'Brien,
391 U.S. 367(1968)………………………………………………………………………..12
21 United States v. Phosphate Export Assn.,
22 393 U.S. 199, 203 (1968)………………………………………………………………….17
Venegas v. County of Los Angeles,
23 32 Cal. 4th 820, 829……………………………………………………………………….14
West Virginia State Board of Education v. Barnette,
24 319 U.S. 624 (1943)………………………………………………………………………..12
25
STATUTES
26
Civil Code §51………………………………………………………………………………………8
27 Civil Code §52………………………………………………………………………………………8
28
Civil Code §52.1……………………………………………………………………………10, 13-15

iii
1 Code Civ Proc § 369.5………………………………………………………………………………11
Code Civ. Proc. § 1060………………………………………………………………………………16
2 Code Civ. Proc. § 425………………………………………………………………………………16
Code Civ. Proc. § 525………………………………………………………………………………20
3
Code Civ. Proc. § 3368…………………………………………………………………………….20
4 Gov Code §815.2, subd. (a)………………………………………………………………………….6
Gov Code §815, subd. (b)……………………………………………………………………………6
5 Cal Gov Code § 815.6……………………………………………………………………………….9
Cal Gov Code § 855.4………………………………………………………………………………9,10
6
Gov Code §821.6…………………………………………………………………………………….8
7 Gov Code §820………………………………………………………………………………………6
Gov Code §820.2……………………………………………………………………………………6, 8
8 Gov. Code § 11342.545……………………………………………………………………………...2
Gov. Code § 11346.1……………..……………………………………………………………….....2
9
Gov. Code § 11346…………………………………………………………………………………..2
10 Education Code §35160……………………………………………………………………………..4
Education Code §48907…………………………………………………………………………10-12
11 Education Code §49451…………………………………………………………………………….10
Education Code §201………………………………………………………………………………...8
12
Health & Saf Code §11340.5;………………………………………………………………………..2
13 Health & Saf Code §11370…………………………………………………………………………..2
Health & Saf Code §24176…..………………………………………………………………………4
14 Health & Saf Code §120175…………………………………………………………………………5
Health & Saf Code 120195…………………………………………………………………………..5
15
Health & Saf Code § 101030…………………………………………………………………………5
16 42 USC §1983…………………………………………………………………………….7, 10-12, 14
45 CFR 46.404………………………………………………………………………………………..5
17 45 CFR 46.408. ………………………………………………………………………………………5
45 CFR 46.405……………………………………………………………………………………..5-6
18
21 U.S.C. § 360-bbb-3 ……………………………………………………………………………….4
19 42 USC §1983………………………………………………………………………………8, 12, 15-16

20 OTHER AUTHORITIES
21 Cal. Const., art IX, § 2……………………………………………………………………………11-12
22 Cal. Const., art IX, § 5………………………………………………………………………………..8
Cal. Const., art. IX, § 14 ……………………………………………………………………………..4
23 Eleventh Amendment to the U.S. Constitution………………………………………………………16
45 California Forms of Pleading and Practice--Annotated § 513.91…………………………….10, 12
24 6 California Points & Authorities § 67.52 (2022)……………………………………………………16
25 15 California Forms of Pleading and Practice--Annotated § 182.10 (2022)…………………………17
6A Moore's Federal Practice, P 57.13………………………………………………………………...17
26

iv
1 I. INTRODUCTION

2 Defendant’s arguments in support of their demurrer simply show they misunderstand the
3
law and Plaintiffs’ claims. The Plaintiffs, as a non-profit unincorporated association of parents and
4
their students, have standing to ask a trier of fact in a court of law to hold Defendants accountable for
5
the discriminatory and harmful implementation of the California Department of Public Health
6

7 (“CDPH”) guidance, which were always only recommendations schools could disregard, because it

8 was never a legal mandate. The Santa Cruz County Office of Education policy and the Defendant
9
School District Policies relied on this CDPH guidance. The claimed immunities simply do not apply
10
to Defendants’ tortious acts perpetuated against impressionable children as argued herein because
11
there is no 1983 claim subject to the Eleventh Amendment nor is abusive implementation of a policy
12

13 proper for immunity under government codes. Finally, the Defendants are still mandating testing,

14 masking and quarantining rendering injunctive and declaratory relief proper. Accordingly, this
15
demurrer should be overruled it its entirety or Plaintiffs given leave to amend. Plaintiffs so
16
respectfully request.
17
II. ARGUMENT IN OPPOSITION TO DEFENDANTS’ DEMURRER
18

19 A. The Administrative Procedures Act is Not the Entire Basis of Plaintiff’s Complaint

20 Defendants first argue that “the APA does not apply to school districts… and Plaintiff
21 cannot state any claims based on the alleged violation of the APA.” Memorandum of Points and
22
Authorities in Support of Defendant’s Demurrer to Complaint (“Demurrer”) 3:9-16. Defendants then
23
direct the Court to paragraphs 24-26 in Plaintiff’s Complaint as support.
24

25
This argument is the first example of how Defendant’s misunderstand the law and

26 Plaintiffs’ claims. Plaintiffs are not making any claims against Defendants based on the
27 Administrative Procedures Act ("APA”) – these paragraphs in the Complaint related to the APA are
28

- 1 -
1 foundational allegations that establish as a matter of law that no authority of a school district or

2 county office of education exists to allow Defendants to mandate what is only a state agency health
3
recommendation. Complaint ¶24-27.
4
The simple fact is the California Department of Public Health’s guidance did not go through
5
the Administrative Procedures Act statutory rule making process. §11340.5; 11370. Without having
6

7 gone through that process, laid out in the government codes §11340.5 et seq, the CDPH guidance was

8 always only a recommendation schools could disregard. Complaint ¶7. The federal case that
9
removed masks on airplanes for not following the federal APA is illustrative on this legal point as
10
that federal Court found that the CDC, not having followed the APA due process procedures, had no
11
authority to mandate masks on airplanes. Health Freedom Defense Fund, Inc. v. Joseph R. Biden, Jr.,
12

13 Case No: 8:21-cv-1693-KKM-AEP. Any argument that Governor Newsom’s executive orders could

14 waive the legal requisites of the APA fails as due process requirements during a state of emergency
15
still exist per statute. Gov. Code § 11342.545; Gov. Code, § 11346.1. The legislature certainly
16
addressed this issue rendering this argument legally incorrect. Gov. Code, § 11346, subd.(a).
17
In California, and in this case, schools used the CDPH guidance as the basis for their
18

19 actions. Complaint ¶28. Defendants acted like this provided them authority to exclude a healthy child

20 from learning, refuse them the ability to participate in extra-curricular activities, attempt to bully,
21 pressure and coerce them into compliance, force them to use experimental medical products (only
22
emergency use authorized by the FDA), or violate the statutory requirements related to independent
23
study by forcing students to do what is legally voluntary. Complaint ¶37-47. The CDPH guidance
24

25
never gave them such authority. Complaint ¶25-27. That is the point Plaintiff’s complaint makes;

26 Santa Cruz County Parents United (‘SCCPU’) is not making a claim against Defendants on the basis
27 of the APA as it applies to state agencies.
28

- 2 -
1 Accordingly, Defendant’s first argument attacking the complaint on this odd basis fails.

2 B. Defendants Cannot Create or Punitively Implement Policies that Violate the Law;
However, Propriety of Policy is Irrelevant to Legal Sufficiency of Complaint
3

4 Defendants next make a broad sweeping argument that Plaintiff’s claims are “based on

5 implementing policies related to masking, testing and quarantining” and fail to specify what policies
6
are “improper”. Demurrer 3:19-21; 4:12-14. This broad sweeping argument is not a basis for granting
7
a demurrer.
8
First, no policy of any organization can violate the law. Second, Plaintiff’s claims are that
9

10 Defendants have no authority to adopt a mandatory COVID testing, quarantining, or masking policy

11 nor can the punitively implement it in violation of Plaintiff’s civil and other legal rights causing
12
children harm. Complaint ¶29-34. The polices attached to the complaint, Exhibit 1-3 are the written
13
policies from Defendants, regardless of to whom they apply, that violate the law and for which they
14
have no authority to implement in a mandatory and punitive manner. Complaint ¶37-47.
15

16 First, Exhibit “1” attached to the complaint, is a policy from Defendants Santa Cruz County

17 Office of Education (“SCCOE”) and Farris Sabbah, signed by the other Defendant school districts’
18
agents who are superintendents, that applied to sports and other extracurricular activities. On the very
19
first page, it states that ‘Masks will be required for all persons while playing indoor sports”,
20
“Students participating in high risk sports where wearing masks….is not possible will need to be
21

22 fully vaccinated,” and “In team buses…masks are required per existing statewide face covering

23 guidance.” Second, Exhibits “2-3” are more examples of these types of “mandates” per county and
24 district “policy” in regards to quarantining, testing and masking. Despite Defendant’s contention
25
otherwise, these policies violate the law and are therefore “improper.”
26

- 3 -
1 The policies, Ex. 1-3, mandate masks, testing and discriminate against the unvaccinated.

2 First, the COVID injection is only emergency use authorized 1 (“EUA”) and therefore experimental as
3
a matter of law which requires informed consent. 21 U.S.C. § 360-bbb-3; H & S §24176. No school
4
policy can create a policy in violation of the law of informed consent. Second, school districts have
5
no authority to “mandate” or “require” health recommendations that quarantine healthy people. In re
6

7 Application of Arata, 52 Cal. App. 380, 383 (“…personal restraint can only be imposed where, under

8 the facts as brought within the knowledge of the health authorities, reasonable ground exists to
9
support the belief that the person is afflicted as claimed…”) Third, masks and COVID tests are
10
likewise only EUA authorized and suffer from the same informed consent requirements. Complaint
11
¶51.
12

13 Simply, school districts and county offices of education do not have the authority to act as

14 health officers and certainly cannot mentally traumatize children based on the mistaken belief they
15
can do so. Complaint ¶29-30. The Constitution, and more precisely the Legislature itself, have ceded
16
some discretionary control to local school districts relating to education only. Since 1973 the
17
Constitution has provided that the Legislature may authorize the governing boards of all school
18

19 districts to ‘initiate and carry on any programs, activities, or to otherwise act in any manner which is

20 not in conflict with the laws and purposes for which school districts are established.’ (Cal. Const.,
21 art. IX, § 14.) Education Code §35160 codifies the Constitution which notably qualifies the authority
22
of a school district based on the purpose of a school district:
23
‘[T]he governing board of any school district may initiate and carry on any program, activity,
24 or may otherwise act in any manner which is not in conflict with or inconsistent with, or
25
1
The FDA has not approved any of the COVID-19 shots currently available in the United States. On August 23, 2021 the
26 FDA granted BioNTech Manufacturing GmbH’s Biologics Licensing Application to distribute the Comirnaty vaccine in
the United States once certain conditions are met; however, the Comirnaty vaccine is not currently available in the United
27 States and will not be until the supply of the Pfizer-BioNTech vaccine is first exhausted. See
https://www.fda.gov/media/151710/download. The Pfizer-BioNTech vaccine is currently available only under an EUA,
28 which the FDA extended also on August 23, 2021. See https://www.fda.gov/media/150386/download.

- 4 -
1 preempted by, any law and which is not in conflict with the purposes for which school
districts are established.’ Emphasis added.
2
It is undisputable that a school district’s main job is to educate children. Nothing in the grant of
3
authority from the legislature to school districts allows a school district to make or even enforce
4
health orders or mandate experimental masks 2, vaccines3 or testing (Complaint ¶51) on healthy
5
children to respond to a pandemic.
6

7 "The Legislature hereby recognizes that, because of the common needs and interests of the
citizens of this state and the nation, there is a need to establish a common state curriculum for
8 the public schools, but that, because of economic, geographic, physical, political and social
diversity, there is a need for the development of educational programs at the local level,
9
with the guidance of competent and experienced educators and citizens. Therefore, it is
10 the intent of the Legislature to set broad minimum standards and guidelines for educational
programs, and to encourage local districts to develop programs that will best fit the needs
11 and interests of the pupils, pursuant to stated philosophy, goals, and objectives." Burton v.
Board of Education, 71 Cal. App. 3d 52, 58. Emphasis added.
12

13 Health officers, in contrast, do have police power to issue and enforce health orders.

14 (Complaint ¶29). The legislature has also been very clear in its delegation of duties to state and local
15
health officers. Under Chapter 3 of the California Health and Safety Code, it is the job of the local
16
health officer…
17
“knowing or having reason to believe that any case of the diseases made reportable by
18 regulation of the department, or any other contagious, infectious … disease exists, or has
19 recently existed, within the territory under his or her jurisdiction, shall take measures as may
be necessary to prevent the spread of the disease or occurrence of additional cases.”
20 Health & Saf Code § 120175; § 120195.
21 By the plain meaning of the language in the relevant health and safety codes, it is clearly the duty of
22
the health officer to issue and enforce health orders related to public health not a school district. Cal
23
Health & Saf Code § 101030. At best, the only authority a school district has in this situation is to
24

25
2
26 https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-emergency-use-authorization-face-
masks-non-surgical
3
27 Per the FDA, an investigational drug can also be called an “experimental drug” and when an experimental drug is
administered, it is the equivalent of entering the recipient into a clinical trial.
28 https://www.fda.gov/media/150386/download. A child cannot be entered into a clinical trial without express consent from
their parents, and only if there is a benefit and a minimal risk to the child. 45 CFR 46.404,45 CFR 46.408. Further, if

- 5 -
1 send a sick child home. Ed code §49451. The CDPH guidance was not a health order but a mere

2 recommendation. (Complaint ¶27.)
3
In sum, the argument that the policies are “improper” not only fails to provide grounds for
4
sustaining the demurrer but fails to actually even challenge the legal sufficiency of the complaint.
5
Committee on Children's Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 213 (“It is not the
6

7 ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with

8 which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the
9
pleading.”) Accordingly, the demurrer cannot be sustained on this proffered ground.
10
C. Defendants are Vicariously Liable for Any Injury Which Their Employees Cause
11
Defendants cite Gov Code §820.2 for the proposition that it provides “immunity to public
12

13 employees for discretionary acts” and that this immunity is “extended to the public entity” as if it is

14 an absolute rule. Demurrer 4:16-23. Defendants then argue that COVID measures implemented by
15
them were “policy level decisions involving discretion” rendering them absolutely immune.
16
Demurrer 5:1-6. This argument misstates the law and the facts alleged and fails.
17
As an initial matter, our California Supreme Court has been clear that immunity based on
18

19 §820.2 is an exception that requires “a strong showing…justify” "discretionary function" immunity”.

20 Gov Code § 820; Johnson v. State of California, (1968) 69 Cal. 2d 782, 798. As cited in Johnson,
21 "…when there is negligence, the rule is liability, immunity is the exception." Muskopf v. Corning
22
Hospital Dist., 55 Cal.2d 211, 219. Thus, “the liability of a public employee is clear.” “…the general
23
rule is that an employee of a public entity is liable for his torts to the same extent as a private person
24

25
(§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes

26 (§815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).” (Citations omitted)
27

28 there is a greater than minimal risk to the child, there must first be a “direct benefit” to that specific child, and any risk
must be “as favorable as” those presented by alternative approaches. 45 CFR 46.405

- 6 -
1 C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 868; D.V. v. City of Sunnyvale, 65

2 F. Supp. 3d 782, 785. Simply, the legislature has not granted immunity for every act or omission as
3
Defendants appear to argue. Elton v. County of Orange, (1970) 3 Cal. App. 3d 1053, 1057. And, it
4
has certainly not granted immunity for negligent implementation that amounts to tortious conduct.
5
The Johnson analysis is illustrative and has been upheld and applied by our California
6

7 Supreme Court in later years. “…although a basic policy decision may be discretionary and thus

8 warrant governmental immunity, subsequent operational actions in the implementation of that basic
9
decision still must face case-by-case adjudication on the question of negligence.” Barner v. Leeds,
10
(2000) 24 Cal. 4th 676, 687. Johnson is truly illustrative as it carefully analyzes the definition of
11
discretion and debunks Defendants claim because not only do they not have the authority to mandate
12

13 health recommendations as educators as they did, the way they implemented the policies resulting in

14 emotional and physical harm to children, violated the law.
15
"Generally speaking, a discretionary act is one which requires the exercise of judgment or
16 choice.” “Discretion” has also been defined as meaning equitable decision of what is just and
proper under the circumstances." (Citation omitted) Finally, "[a] discretionary act is one
17 which requires 'personal deliberation, decision and judgment…'” Johnson v. State of
California, (1968) 69 Cal. 2d 782, 788. Emphasis added. “[Once] the determination has been
18
made that a service will be furnished and the service is undertaken, then public policy
19 demands (except when the Legislature specifically decrees otherwise) that government be
held to the same standard of care the law requires of its private citizens in the performance of
20 duties imposed by law or assumed." Johnson, supra, at 796
21 There is no immunity "if the injury . . . results, not from the employee's exercise of discretion vested
22
in him to undertake the act, but from his negligence in performing it after having made the
23
discretionary decision to do so." McCorkle v. City of Los Angeles, (1969) 70 Cal. 2d 252, 261
24

25
(internal quotation and citation omitted). For example, applying this rule, the California Supreme

26 Court has held that even if a police officer exercises his discretion in deciding to investigate an
27 automobile accident, he may be liable for negligently conducting that investigation. Id.
28

- 7 -
1 Martinez v. City of Los Angeles, 141 F.3d 1373, 1379.

2 Here, there is nothing “just and proper” about the Defendant’s decisions to punitively
3
implement health recommendations as alleged in the Complaint. Complaint ¶37-47. Namely: to
4
discriminate against “unvaccinated children or parents” causing emotional trauma (Complaint ¶38-
5
39, 45), put children’s health in danger by forcing them to mask during physical activity or refusing
6

7 to allow them to leave class to get water (Complaint 39, 43), violate a minor’s right to privacy by

8 making her change her clothes in front of others or not allow “unvaccinated” children to play sports
9
and humiliate them for it (Complaint 40, 42-43, 45), discriminate against children with medical
10
conditions in violation of the Unruh and Bane Acts (Complaint 41), illegally punish children or force
11
them into independent study which is voluntary by law (Complaint 44), fail to supervise other
12

13 students who bullied plaintiffs (Complaint 38, 45, 47), abuse and humiliate a child by forcing them to

14 sit in the freezing cold because they were “unvaccinated” (Complaint 46), or illegally quarantine
15
healthy children (Complaint 47). Each of these acts violate statutory law. California Constitution,
16
article IX, section 5, Ed Code §201, 220; 42 USC §1983; Civil Code §51-52 et seq. and cannot be
17
found to be acts of discretion for which they are immune.
18

19 These acts by Defendants in violation of plaintiffs constitutional and statutory rights were at

20 best negligent, at worst tragically cruel, and cannot reasonably be characterized as a “sensitive
21 decision implicating fundamental policy concerns warranting judicial abstention.” Id. Notably, the
22
Johnson Court concluded the discretionary acts and omissions of public employees for which §820.2
23
provides immunity from liability are only those which involve basic policy decisions. Elton v. County
24

25
of Orange, 3 Cal. App. 3d 1053, 1058. Further, in a case involving the failure of those responsible for

26 the care of children to prevent physical and mental trauma it was held that “to be entitled to immunity
27 the state must make a showing that such a policy decision, consciously balancing risks and
28

- 8 -
1 advantages, took place. The fact that an employee normally engages in 'discretionary activity' is

2 irrelevant if, in a given case, the employee did not render a considered decision." Elton v. County of
3
Orange, (1970) 3 Cal. App. 3d 1053, 1058. Emphasis added.
4
It simply strains all credulity for Defendants to argue that their acts of implementation as
5
outlined in paragraphs 38-47 of the complaint met this standard. Accordingly, Defendants have not
6

7 met their burden on this argument rendering the court the power to overrule the demurrer.

8 D. Defendants are Not Immune From Liability Under Gov. Code §855.4 Nor Were Their
Abusive and Discriminatory Acts “Carried Out with Due Care”
9

10 Defendants next cherry pick Gov. Code §855.4 out of an entire statutory scheme, and

11 without providing any analysis from case law to support their contention, claim Defendant’s action
12
were “to promote public health” and were “unquestionably an exercise of discretion.” This argument
13
ignores that Defendants had a duty to provide in person instruction free from harassment and
14
discrimination and no ministerial duty to enforce health “recommendations” or force use of
15

16 experimental products against parent directives. Again, Defendant’s authority is limited to

17 educational decisions not public health.
18
Defendants fail to make a cogent complete argument. Cal Gov Code § 815.6. 855.4, found
19
in the chapter of the title under dangerous buildings, provides for immunity for acts of promoting
20
public health – not from acts of discrimination, abuse, harassment, humiliation, privacy violations,
21

22 putting children in harm of physical danger etc – so this statute is misplaced. The legal analysis is

23 simple: “[Once] the determination has been made that a service will be furnished and the service is
24 undertaken, then public policy demands … that government be held to the same standard of care the
25
law requires of its private citizens in the performance of duties imposed by law or assumed." Johnson
26
v. State of California, 69 Cal. 2d 782, 796. Public entities are liable for their failure to discharge
27

28
statutory duties. School District’s duty and authority is limited to sending a sick child home by law.

- 9 -
1 Ed code §49451. Its one thing to adopt a CDPH recommendation as a policy. It is a whole other thing

2 to harm children in the performance of a duty. “…although a basic policy decision (such as standards
3
for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial
4
actions in the implementation of that basic decision still must face case-by-case adjudication on the
5
question of negligence. Johnson v. State of California, 69 Cal. 2d 782, 797. Hence, not only is 855.4
6

7 not applicable to school districts or their employees, it strains credulity to argue the discriminatory

8 and harmful overzealous implementation of recommendations are immune from tort claims. This
9
argument likewise fails.
10
E. All Civil Rights Violations in Plaintiff’s Second Cause of Action Fall Under the Bane Act
11
Defendants next make a myriad of arguments contending that the cause of action based on
12

13 Civil Code §52.1, the Bane Act, is “improper”. Defendants argue that a) the Civil Rights Violations

14 are actually five causes of action, b) the Defendants are immune under the Eleventh Amendment, and
15
c) Defendant’s policies “do not infringe on the first amendment” d) Sports are not “fundamental
16
rights” e) no cause of action can be stated under the California Constitution or Education Code
17
48907, f) Plaintiff lacks standing to bring a Bane Act claim and has pled facts insufficient to do so.
18

19 Demurrer pps. 6-10. Plaintiff takes each issue raised in turn.

20 i. Plaintiff’s Second Cause of Action is Not “Five Causes of Action” Nor is It a Pure
First Amendment Claim
21

22 First, Plaintiff’s Second Cause of Action for Violation of Rights is not “five causes of action”

23 nor is there an impediment to Plaintiff’s claim of a violation of the California Constitution or
24 Education Code rights to free speech. 45 California Forms of Pleading and Practice--Annotated §
25
513.91. Simply, the Bane Act, as described in ¶66 of the Complaint in Plaintiffs’ Second Cause of
26
Action articulates that Civil Code §52.1 provides for a private right of action for any individual
27

28
whose exercise or enjoyment of any rights provided by the constitution, or our laws of any kind, have

- 10 -
1 been interfered with in any way or if these rights were even attempted to be interfered with.

2 Paragraphs 65, 70, 73, 75 of Plaintiffs’ Complaint go onto list the statutes and constitutional rights
3
belonging to Plaintiff SCCPU, which consist of a group of people called an association, that were
4
interfered with. If the Court disagrees, the Plaintiff seeks leave to amend to clarify that this is a
5
violation of a series of rights properly claimed as a Bane Act Violation.
6

7 ii. Plaintiffs SCCPU is an Unincorporated Association with Rights to Sue

8 Likewise, Plaintiff SCCPU, consisting of parents and students, do not lack standing as there is
9
a statutory right for an unincorporated association to sue. Complaint ¶1; Code Civ Proc § 369.5.
10
Notably, the individual members that suffered the civil rights violations are the students, Complaint
11
¶48, simply given pseudonyms to protect their privacy as minors, and their claims are clearly
12

13 outlined. Complaint ¶38-48. The case cited by Defendants, Redevelopment Agency of San Diego v.

14 San Diego Gas & Electric Co., 111 Cal. App. 4th 912, 920, does not support their argument as it
15
neither discusses unincorporated associations nor the Bane Act.
16
iii. Plaintiff’s First Amendment Claims Under Ed Code §48907 and the California
17 Constitution Art I §2 are Not Stand Alone; However, Plaintiffs’ Free Speech
Rights Were Violated
18

19 Defendants argue that their policies are content neutral, narrowly tailored, and do not infringe

20 on any rights of free expression. Demurrer 7:21-25. This argument, as articulated, is not only bare
21
bones but appears misplaced. Defendants also claim Plaintiffs’ listing of Ed Code §48907 and Cal
22
Const, Art. I §2 under the Civil Rights Violation cause of action cannot be made stand alone.
23
Demurrer 9:3-14. Both arguments show a misunderstanding of the law and Plaintiffs’ claims.
24

25 Again, Plaintiffs’ claim a violation of many of their legal rights under their Second Cause of

26 Action of which include the right to free speech. Complaint ¶65-82. When Plaintiffs protested masks,
27 some were harassed and abused. Complaint ¶38. This conduct of refusing to wear a mask in protest
28

- 11 -
1 squarely falls under protected conduct. Expressive conduct sufficient to invoke First Amendment

2 protections is generally speech without words but its “protection does not end at the spoken or written
3
word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). One’s conduct is protected if, based on the
4
context surrounding conduct, a reasonable observer would understand the actor’s intended meaning.
5
See United States v. O'Brien, 391 U.S. 367(1968); Spence v. Washington, 418 U.S. 405, 410–
6

7 11(1974); and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Conduct

8 intended to convey a particular meaning is protected speech if—due to the circumstances—the action
9
is inherently communicative. Id. It would be unreasonable to argue a refusal to wear a mask isn’t
10
protected speech.
11
Further, as outlined in Plaintiff’s Opposition to Defendant’s Motion to Strike, injunctive relief
12

13 based on the first amendment is highly proper. In fact, 45 California Forms of Pleading and Practice--

14 Annotated § 513.91 provides an entire COMPLAINT FOR DECLARATORY AND INJUNCTIVE
15
RELIEF based on U.S. Const., amends. I, XIV; 42 U.S.C. § 1983; Cal. Const., art. I, § 2(a); Educ.
16
Code § 48907.
17
Accordingly, Defendants misplaced argument fails. In the event the Court would like more
18

19 clarity on this cause of action due to Defendants confusion, Plaintiff request leave to amend to make

20 it clearer that the cause of action is under the Bane Act.
21
iv. Plaintiff Has Pled Facts Sufficient to State A Bane Act Claim; Defendants Simply
22 Misconstrue the Law

23 Defendants next argue that only “egregious” interference with legal rights will suffice and
24 Plaintiffs have failed to even “minimally plead” coercion, intimidation or threats, and that actual
25
threats of violence are required. Demurrer 10:17-25. The authorities cited by Defendant in support
26
actually support Plaintiff. Also, per the Ninth Circuit, threats of violence are not needed – only
27

28
interference, or attempted interference, or violations of rights are.

- 12 -
1 Using Defendants case, Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 860,

2 883, which is factually distinguishable, what is important and required is intimidation and causation.
3
The Austin court granted non-suit, a wholly different motion with different legal standards than a
4
demurrer on the Bane act claim, because it found “…no evidence of acts that could be construed as
5
threats, violence or intimidation that actually caused a loss of their right to an education or that
6

7 attempted to do so.” Here, there are plenty of bad acts by Defendants that caused learning loss or

8 attempted to do so.
9
For example, Jane Doe 1 was forced by her PE teacher to change in a stall that opens to the
10
outside because she would not wear a mask. The issue was brought to the Vice Principal who did
11
nothing. Jane Doe 1 repeatedly told her teachers she could not breathe and needed water. Jane Doe 1
12

13 left her mask down. In response, her teachers gave her demerits. Complaint ¶40. John Doe 3 wise

14 likewise humiliated by his athletic director who passed around a list of the “unvaccinated” and was
15
not allowed to play sports in the spring for the same reason. Complaint ¶40. John Doe 5 was
16
humiliated by his coach and the entire audience during a public basketball game for deciding to not
17
wear a mask while playing the game. Complaint ¶43. John Doe 7 was forced to sit outside in the cold
18

19 because he was not “vaccinated” and was sent home. Complaint ¶47. These are clearly acts of

20 coercion or intimidation that violated these student’s rights to in person instruction free from
21
harassment and discrimination. Using Defendants’ case Austin as an authority, a non-suit here would
22
have been denied because here there is clear evidence of coercion that interfered with legal rights as
23
required under the Bane Act.
24

25 Second, Defendants fail to understand that the showing required at the pleading stage for a

26 Bane Act claim is conduct that amounts to coercion or intimidation that interferes, or attempts to
27 interfere, with a constitutional or statutory right. Cal Civ Code § 52.1(c). A plaintiff bringing claims
28

- 13 -
1 under the Bane Act must only show two things: (1) intentional interference or attempted interference

2 with a state or federal constitutional or legal right, and (2) the interference or attempted interference
3
was done through threats, intimidation, or coercion. Gifford v. Hornbrook Fire Prot. Dist., 2021 U.S.
4
Dist. LEXIS 174806, *73; Jones v. Kmart Corp., (1998) 17 Cal. 4th 329, 334.
5
"The essence of a Bane Act claim is that the defendant, by 'threats, intimidation or coercion,'
6
tried to or did prevent the plaintiff from doing something he or she had the right to do under
7 the law, or to force the plaintiff to do something that he or she was not required to do under
the law." Shoval v. San Diego County, No. 09-CV-01348-H (JMA), 2009 U.S. Dist. LEXIS
8 77723, at *10; Bryant v. Armstrong, 2012 U.S. Dist. LEXIS 186754, *73-74
9
In fact, Civil Code Section 52.1 doesn’t even use the word violence. An actual threat of violence is
10
not needed. D.V. v. City of Sunnyvale, 65 F. Supp. 3d 782, 789 (“Section 52.1 does not require
11
threats, coercion, or intimidation independent from the threats, coercion, or intimidation inherent in
12

13 the alleged constitutional or statutory violation.”) "When a § 52.1 claim is premised on the violation

14 of a constitutional right, the court must look to the elements of the constitutional claim to determine
15
whether the § 52.1 claim is meritorious." (Citations omitted) Stanley v. Cty. of San Diego, 2018 U.S.
16
Dist. LEXIS 10936. In sum, the Ninth Circuit has concluded that requiring violence or a threat of
17
violence "is no longer a correct interpretation of section 52.1's requirements." Bryant v. Armstrong,
18

19 2012 U.S. Dist. LEXIS 186754, *70.

20 Defendants also use a distinguishable case, Shoyoye v County of Los Angeles, to argue that
21
interference must be egregious and that putting children in the cold, humiliating them in front of an
22
entire basketball game full of the community, or forcing them into independent study is not
23
“egregious.” Demurrer 10:17-20. Not only does this argument strain credibility in this case where we
24

25 are talking about impressionable children who are developing their self-esteem and who have a

26 fundamental right to in person instruction free from discrimination and harassment, but Shoyoye, a
27 case about a two week detention not discrimination and harassment, is limited to those acts that are
28

- 14 -
1 unintentional. See M.H. v. County of Alameda, (N.D. Cal. 2013) 90 F. Supp. 3d 889, 898 ("the

2 relevant distinction for purposes of the Bane Act is between intentional and unintentional conduct,
3
and . . . Shoyoye applies only when the conduct is unintentional"). The acts committed by Defendants
4
described herein were intentional and surely intended to pressure children into compliance with
5
masks, COVID injections and COVID testing against parental wishes. Complaint ¶37-47.
6

7 Accordingly, Defendants’ attack on this cause of action fails.

8 F. Second Cause of Action for Violation of Rights is Not a §1983 Claim Subject to Eleventh
Amendment Immunity. Assuming Arguendo This Court Disagrees, Immunity Does Not
9
Apply in This Case
10
Defendants next confusingly seem to argue another form of sovereign immunity based on the fact
11
that Plaintiff cited the statute 42 USC §1983 in the header of their Second Cause of Action for
12

13 Violation of Civil Rights. There are several problems with this argument.

14 Most notably, as explained above, the claim is a Bane Act claim -not a §1983 claim – and they
15
alleged claims for violation of free speech rights under state and federal law – which renders the
16
Eleventh Amendment inapplicable. "The doctrine of qualified immunity does not shield defendants
17
from state law claims," including claims under the Bane Act, Cal. Civ. Code § 52.1, which is
18

19 California's equivalent to 42 U.S.C. § 1983. Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,

20 1171 (9th Cir. 2013). Such a claim gives rise to attorney’s fees under its statutory scheme.
21
The simplest solution, if necessary to clarify the claim, is Plaintiff can amend to move the civil
22
rights violations to be a Bane Act claim based on the other statutory and constitutional rights claims
23
as the violations of the various rights would properly be “conduct that amounts to coercion or
24

25 intimidation that interferes, or attempts to interfere, with a constitutional or statutory right.” Civil

26 Code 52.1.
27

- 15 -
1 It must be pointed out that assuming arguendo that qualified immunity somehow applies,

2 Defendants failed to apply the five Mitchell factors by citing Sato v. Orange Cty. Dep't of Educ., 861
3
F.3d 923, 928 and Regents of the University of California v. Doe, 519 U.S. 425, 429 for the
4
proposition that the §1983 claim is barred. However, Under the Ninth Circuit’s current analysis,
5
Defendants and their officials, like Defendant Farris Sabbah, are protected by the Eleventh
6

7 Amendment only if, by adopting the subject CDPH guidance as a mandatory policy and

8 discriminating against Plaintiffs, the district acted as an instrumentality of the State of California. To
9
determine whether a government entity is an arm of the state, an examination of the five factors set
10
forth in Mitchell v. Los Angeles Community College District, 861 F.2d 198 (9th

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