Preview
Filed
Superior Court of California,
Sacramento
LAW OFFICES OF a
ee WALKUP, MELODIA, KELLY& SCHOENBERGER 06/28/2023
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650 CAUFORNIA STREET, 26™ FLOOR By , Deputy
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BY FAX
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KHALDOUN A. BAGHDADI (State Bar #190111)
kbaghdadi@walkuplawoffice.com
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VALERIE N. ROSE (State Bar #272566)
vrose@walkuplawoffice.com
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JOSEPH NICHOLSON (State Bar #284959)
jnicholson@walkuplawoffice.com
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ATTORNEYS FOR PLAINTIFF
E.Y., a minor, by and through her Guardian
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Ad Litem SONG VANG
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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E.Y., a minor, by and through her Case No.
Guardian Ad Litem SONG VANG,
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COMPLAINT FOR DAMAGES
Plaintiff,
{Amount in controversy exceeds $25,000]
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TWIN RIVERS UNIFIED SCHOOL
DISTRICT, KIM KENNETH WILSON,
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and DOES ONE through 100,
Defendants. DEMAND FOR JURY TRIAL
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Plaintiff E.Y., a minor by and through her Guardian Ad Litem SONG VANG,
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complains of Defendants, and each of them, and alleges as follows:
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PARTIES
1. At all relevant times herein mentioned, Plaintiff E.Y. (hereinafter
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“Plaintiff’) was a minor residing in the County of Sacramento, in the State of
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California.
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2. Song Vang is the natural mother of Plaintiff E.Y. and is a resident of
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Sacramento County. She brings this action on behalf of her daughter E.Y. as her
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COMPLAINT FOR DAMAGES
Guardian ad Litem.
a. At all relevant times herein mentioned, Defendant TWIN RIVERS
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UNIFIED SCHOOL DISTRICT (hereinafter “TRUSD”) was a public entity within the
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meaning of California Government Code sections 811.2, 900 et seq., duly
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incorporated and operating under California law as a school district.
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4. At all relevant times herein mentioned, Defendant KIM KENNETH
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WILSON (hereinafter “WILSON”) was a natural person and a resident of the County
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of Sacramento, in the State of California. All actions alleged herein by WILSON were
taken in the course and scope of his employment with TRUSD.
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5. The true names, capacities, or involvement, whether individual,
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corporate, governmental, or associate, of the defendants named hereinafter as DOE
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are unknown to Plaintiff who therefore sues said defendants by fictitious names.
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Plaintiff prays leave to amend this Complaint to show their true names, capacities,
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or involvement when the same have been finally determined.
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6. Plaintiff is informed and believes, and upon such information and belief
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alleges, that each of the defendants designated herein as DOE is negligently or
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otherwise legally responsible in some manner for the events and happenings herein
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referred to, and negligently or otherwise caused injuries and damages proximately
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thereby to Plaintiff as is hereinafter alleged.
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7. At all times herein mentioned, each and every of the defendants herein
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was the agent, servant, partner, joint venturer, employee, and/or franchisee of each
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of the other defendants, and each was at all times acting within the course and scope
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of such agency, service, employment, joint venture, partnership, and/or franchise.
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FACTS
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8. At all relevant times herein, Plaintiff was a minor residing in the
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County of Sacramento and was a student at Del Paso Heights Elementary School
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(hereinafter “DPHES’).
9. Between 2011 and 2015, Plaintiff was a student enrolled in the TRUSD.
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COMPLAINT FOR DAMAGES
eH During the 2013-2014 school year, when Plaintiff was 7 years old, she attended
second grade at DPHES in the TRUSD. During the time she attended DPHES,
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Plaintiff qualified for and received special education services from TRUSD on the
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basis of her disability, Speech or Language Impairment (SLI.
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10. On multiple dates during the 2013-2014 school year, while in the care
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and supervision of TRUSD, Plaintiff was physically and sexually assaulted, sexually
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harassed, molested, threatened and intimidated by DPHES teacher WILSON during
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school hours on the DPHES campus.
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11. On information and belief, prior to and during Plaintiffs abuse during
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the 2013-2014 school year, WILSON frequently gave frontal hugs to female students
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on school grounds. WILSON also regularly pulled Plaintiff and other minor students
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out of their scheduled class periods and/or recess periods and/or invited them into a
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secluded and unsupervised broadcast room on the DPHES campus.
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12. On information and belief, prior to and during Plaintiffs abuse during
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the 2013-2014 school year, WILSON physically and sexually assaulted, harassed,
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molested, threatened, intimidated and/or committed lewd acts against other minor
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students at DPHES.
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13. On information and belief, WILSON’s inappropriate hugging of female
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students, as well as his habit of removing students from their class and recess
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periods and/or inviting Plaintiff and other minors to a secluded and unsupervised
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room on campus was open, obvious, and known to TRUSD and DPHES
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administrators and staff.
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14. Oninformation and belief, TRUSD knew or should have known that
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WILSON posed a threat to Plaintiff and other students and was engaging in
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misconduct with students including Plaintiff, but negligently failed to monitor
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WILSON or supervise students to ensure their safety.
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15. As part of WILSON’s victim “grooming,” initially WILSON only played
computer games with Plaintiff and other students during the periods he held them
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COMPLAINT FOR DAMAGES
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inside the broadcast room alone with him.
16. Eventually, WILSON began routinely pulling Plaintiff from her regular
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class periods and/or recess periods and bringing her inside a broadcast room housing
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audio/visual equipment with photos of young girls hanging on the wall. WILSON told
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Plaintiff he needed her help with his new camera equipment, he removed her
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clothing and underwear, physically positioned her in various “poses” and took
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photographs and/or videos of her genital area and vagina. On at least one occasion,
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WILSON also directed Plaintiff to hold a sausage in her mouth while he took
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photographs and/or videos of her in different positions.
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17. After multiple incidents on multiple dates, WILSON then told Plaintiff
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that all of the photos they had taken together had been deleted and would needed to
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be retaken. Thereafter, WILSON continued to repeatedly pull Plaintiff from her
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classes and recess periods, bring her to the secluded broadcast room, remove her
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clothing and underwear and take additional photographs and/or videos of her in the
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same manner as described above.
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18. Plaintiff is informed and believes and thereon alleges that Defendants
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TRUSD, DOES 1-50, and each of them, knew or should have known of WILSON’s
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abuse of Plaintiff while Plaintiff was in the care of Defendant TRUSD.
19. Plaintiff is informed and believes and thereon alleges that prior to
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WILSON’s physical and sexual assaults against Plaintiff during the 2013/2014 school
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year, employees, administrators and agents of TRUSD and DPHES, including
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TRUSD’s Police Department (“TRUSD PD”), had knowledge of information giving
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rise to a reasonable suspicion that WILSON was engaging in criminal activity on the
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DPHES campus but were deliberately indifferent and negligently failed to monitor
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WILSON, supervise students or take intervening action to ensure student safety.
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20. Oninformation and belief, TRUSD and TRUSD PD have a history of
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mishandling student complaints and failing to document, investigate and report
complaints alleging a TRUSD employee engaged in sexual misconduct with a TRUSD
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COMPLAINT FOR DAMAGES
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student. At no time prior to WILSON’s arrest did TRUSD or TRUSD PD inform
Plaintiffs parents that she was a victim of WILSON, or of the substance or outcome
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of any investigation of WILSON related to inappropriate conduct with students
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including Plaintiff.
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21. Plaintiff is informed and believes and thereon alleges that Defendants
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TRUSD and DOES 1-50, and each of them, failed to take appropriate action to
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intervene and stop the abuse, negligently failed to monitor, supervise and/or control
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WILSON, and failed to protect Plaintiff from abuse while she was in the care of
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Defendant TRUSD and DPHES.
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22. Plaintiff is informed and believes and thereon alleges that prior to and
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during the 20131/2014 school year, Defendants TRUSD and DOES 1-50, and each of
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them, had or should have had a reasonable suspicion regarding WILSON’s proclivity
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to abuse vulnerable minor students placed into his care, knew or should have known
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that WILSON posed a threat to the safety and welfare of children, including Plaintiff,
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and knew or should have known that WILSON was likely to abuse minor students if
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he was allowed unsupervised access to them without constant and diligent
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supervision.
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23. Plaintiff is informed and believes and thereon alleges that, despite their
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actual and/or constructive knowledge of the danger WILSON posed to DPHES
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students including Plaintiff, Defendants, and each of them, negligently failed to
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monitor, supervise and/or maintain control of the students and failed to protect
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Plaintiff from abuse by WILSON while Plaintiff was in the care of Defendant
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TRUSD.
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24. Asa proximate and legal result of TRUSD’s, and its employees’ and
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agents’, negligence and deliberate indifference to Plaintiffs safety, their negligent
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supervision of students and employees on campus during school hours, and their
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negligent and deliberate indifference to investigating and resolving all reports of
sexual harassment, physical and sexual assaults and other criminal activity
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paipem enehamia 5
Pmancisco, ch 94308 COMPLAINT FOR DAMAGES
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occurring to students on campus, Plaintiff was sexually harassed and assaulted,
discriminated against, deprived of her access to the educational opportunities and
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benefits to which she was entitled and otherwise harmed.
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STATUTE OF LIMITATIONS AND TORT CLAIM COMPLIANCE
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25. California’s Assembly Bill 218, otherwise known as the California Child
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Victims Act, took effect January 1, 2020 and expanded the statute of limitations for
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survivors of sexual assault, thus allowing Plaintiffs claims to proceed. These changes
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are codified as California Code of Civil Procedure §340.1.
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26. Per §340.1(a), an action for recovery of damages suffered as a result of
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childhood sexual assault shall commence within 22 years of the date the plaintiff
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attains the age of majority (effectively on a plaintiffs 40 birthday) or within 5 years
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of the date the plaintiff discovers or reasonably should have discovered that
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psychological injury or illness occurring after the age of majority, whichever period
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expires later.
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27. Plaintiffs date of birth is May 8, 2006, and thus, she has filed this
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action within the statute of limitations set forth in C.C.P. §340.1(c) as to his claims of
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childhood sexual assault against all Defendants named in this action.
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28. Defendant TRUSD is, and at all relevant times herein mentioned was, a
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public entity with the ability to own, operate, and control DPHES. However,
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pursuant to Govt. Code §905(m), Plaintiff is exempt from the requirement to present
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a government tort claim to Defendant TRUSD. See Coats v. New Haven Unified
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School Dist. (2020) 46. Cal.App.5th 415, 430-431.
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29. Nevertheless, on March 30, 2023, a written claim for damages setting
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forth the matters herein alleged was duly and regularly presented on behalf of
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Plaintiff to Defendant TRUSD in accordance with the appropriate sections of the
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California Government Code. TRUSD took no action on Plaintiff's claim and it was
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thereafter deemed rejected by operation of law.
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COMPLAINT FOR DAMAGES
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FIRST CAUSE OF ACTION
(Negligence—All Defendants)
30. Plaintiff hereby refers to and incorporates by this reference each of the
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allegations set forth above and makes them part of this cause of action as though
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fully set forth herein.
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31. Defendant TRUSD has a duty to supervise students on the premises of
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DPHES. Cal. Ed. Code § 44807. The standard of care imposed upon school employees
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in carrying out their duty to supervise is identical to that required in the
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performance of their other duties, i.e., that degree of care which a person of ordinary
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prudence, charged with comparable duties, would exercise under the same
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circumstances; either a total lack of supervision or ineffective supervision may
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constitute a lack of ordinary care on the part of those responsible for student
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supervision. Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925.
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32. Defendant TRUSD owed a duty of care to Plaintiff due to the “special
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relationship” between a school and its students. This duty includes supervising and
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protecting Plaintiff and other students from potential dangers while on school
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grounds, including protecting students from being subjected to sexual abuse on
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school grounds, during school hours by a school employee. TRUSD, and its employees
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and agents, breached this duty to Plaintiff by negligently failing to screen, monitor,
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supervise, train and/or discipline WILSON and recklessly permitting WILSON to
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remove students, including Plaintiff, from their scheduled class and recess periods to
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hold them alone behind closed and/or locked doors unsupervised where he molested,
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assaulted, harassed, threatened and intimidated them.
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33. Defendant TRUSD negligently failed to monitor WILSON and further
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failed to supervise students including Plaintiff to prevent WILSON’s sexual assaults,
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harassment and molestation. TRUSD failed to prevent violation of Plaintiffs civil
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rights and discrimination of Plaintiff on the basis of her sex.
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34. On information and belief, Defendant TRUSD negligently failed to
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COMPLAINT FOR DAMAGES
document, investigate or report earlier incidents of WILSON’s prior sexual
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misconduct with students and failed to retrain, discipline and/or terminate WILSON
to prevent recurrence, including Wilson’s subsequent abuse of Plaintiff.
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35. Atall relevant times, Defendant TRUSD had control of WILSON, of the
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DPHES campus where WILSON perpetrated his abuse, and control of the students
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who were victimized by WILSON. Despite their prior knowledge that Wilson posed a
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danger to students including Plaintiff, TRUSD administrators and staff nonetheless
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permitted WILSON to have unsupervised access to Plaintiff during periods they
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knew WILSON was repeatedly removing Plaintiff from her regularly scheduled
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classes and recess periods. WILSON then used those unsupervised periods to hold
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Plaintiff inside a secluded room on the DPHES campus and repeatedly sexually
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assault, harass and molest her.
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36. On information and belief, despite their knowledge that female
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students, including Plaintiff, were being sexually harassed and physically and
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sexually assaulted by WILSON at DPHES, responsible administrators and
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employees of TRUSD, each mandated reporters as defined by Penal Code § 11165.7,
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failed to report WILSON’S abuse to law enforcement and intentionally concealed
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WILSON’S abuse from victims’ families.
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37. Further, Defendant TRUSD breached its duty to Plaintiff by violating
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the applicable TRUSD board policies and regulations which were intended to prevent
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sexual harassment and abuse of students, including without limitation BP/AR 5145.7
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(Student Sexual Harassment), 5141.4 (Child Abuse Prevention And Reporting) and
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1312.3 (Uniform Complaint Procedures). The failure to document, investigate,
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respond to and resolve ongoing sexual harassment of students in compliance with
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TRUSD board policies and regulations created a hostile environment where
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pervasive student sexual harassment flourished and led to WILSON’s abuse of
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Plaintiff.
38. Defendants, and each of them, are vicariously liable for injuries
8
COMPLAINT FOR DAMAGES
re proximately caused by negligence of school personnel responsible for student
supervision.
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39. Defendant TRUSD is vicariously liable for injuries proximately caused
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by the negligence of school employees responsible for student supervision under Cal.
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Gov. Code § 815.2(a).
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40. Plaintiff is informed and believes that in addition to named Defendants,
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there are other DOE defendants who were also board members, administrators,
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teachers, aides, employees or agents of Defendants who were responsible for student
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supervision and who failed to properly supervise, monitor, and control the students
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and who were responsible for the acts alleged herein.
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41. Defendants, and each of them, are responsible for student supervision.
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They had a duty of care toward Plaintiff to prevent the abuse perpetrated against her
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by WILSON while the in care of the TRUSD and DPHES. Defendants, and each of
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them, breached their duty by failing to supervise the conduct of students, giving rise
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to vicarious liability.
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42. Plaintiff is informed and believes and thereon alleges that Defendants,
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and each of them, knew or should have known that WILSON posed a risk to
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students, including Plaintiff. Defendants negligently failed to supervise WILSON to
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prevent him from abusing Plaintiff on the DPHES campus while in the care of the
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TRUSD and DPHES.
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43. Plaintiff is informed and believes and thereon alleges that Defendant
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TRUSD failed to comply with BP 5145.7 prohibiting sexual and gender-based
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harassment of students while on campus. The policy required TRUSD to take prompt
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action to stop sexual harassment, prevent recurrence, implement remedies and
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address any continuing effects; required any TRUSD employee who received a report
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of sexual harassment of a student to, within one school day, forward the report to the
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principal or the Title [IX Coordinator who in turn shall inform the student or parent
of their right to file a formal written complaint under AR 1312.3 Uniform Complaint
9
COMPLAINT FOR DAMAGES
Procedures (UCP).
44. Plaintiff is informed and believes and thereon alleges that Defendant
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TRUSD further failed to comply with AR 1312.3 UCP which required TRUSD to
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investigate and resolve all complaints alleging sexual harassment of a student,
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maintain a log of all such complaints received, conduct an investigation to include
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“collection of all available documents and review all available records notes, or
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statements related to the complaint...interview all available witnesses...prepare and
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send to the complainant a written investigation report within 60 days of the receipt of
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the complaint”
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45. Plaintiff is informed and believes and thereon alleges that Defendant
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TRUSD breached these duties after receiving reports that female students had been
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physically and sexually assaulted, harassed and/or molested by WILSON.
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46. Defendant TRUSD negligently and recklessly, in deliberate indifference
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to Plaintiff's and other students’ safety, failed to conduct an adequate investigation
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after receiving reports of WILSON’s sexual misconduct and criminal activity, failed
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to remove WILSON from campus after receiving said reports, failed to notify
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Plaintiffs parents and failed to report the incidents involving WILSON that is was
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aware of to law enforcement as required.
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47. The TRUSD administrators, school officials, and other employees of
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TRUSD were each mandated reporters as defined by Penal Code § 11165.7, but on
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information and belief, each failed to report known incidents of sexual harassment,
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sexual assault and physical abuse involving WILSON to an agency defined in Penal
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Code § 11165.9.
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48. Further, Respondent breached its duty to Plaintiff in violating TRUSD
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PD Policy 600, requiring it to adequately hire, train, retain and supervise qualified
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investigators and to investigate and report claims of suspected sexual harassment of
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students.
49. The ongoing conduct of Wilson and TRUSD violated Education Code
10
COMPLAINT FOR DAMAGES
Section 220. Plaintiff was harmed by being subjected to harassment at school because
of her sex, gender, race, age and disability.
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50. Asa proximate result of Defendants’ negligent acts, Plaintiff has
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incurred damages as alleged heretofore.
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SECOND CAUSE OF ACTION
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(Intentional Infliction of Emotional Distress—WILSON and DOES 51-70)
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51. Plaintiff hereby refers to and incorporates by this reference each of the
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allegations set forth above and makes them part of this cause of action as though
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fully set forth herein.
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52. The actions of Defendants WILSON and DOES 51-70 as alleged herein
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were outrageous, malicious, made in reckless disregard of the probability that
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Plaintiff would suffer emotional distress, and intended to and did inflict emotional
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distress and humiliation upon Plaintiff.
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53. Asa proximate result of Defendants’ acts, Plaintiff has incurred
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damages as alleged heretofore.
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THIRD CAUSE OF ACTION
(Negligent Hiring, Supervision, and Retention—TRUSD and DOES 1-50)
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54. Plaintiff hereby refers to and incorporates by this reference each of the
allegations set forth above and makes them part of this cause of action as though
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fully set forth herein.
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55. Defendants, and each of them, had a duty to: not hire and/or retain
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WILSON given his propensity to engage in abuse of students placed in her care, of
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which Defendants knew or should have known about; provide adequate supervision
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of WILSON; use reasonable care in investigating complaints of inappropriate
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behavior by WILSON; take appropriate adverse employment actions against
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WILSON as a result of his tortious conduct; provide adequate supervision and
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protection to students at DPHES with whom Defendants, and each of them, allowed
WILSON to have contact; provide adequate warnings to Plaintiff and Plaintiffs legal
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COMPLAINT FOR DAMAGES
De guardians, and other individuals at the premises, regarding WILSON’s unfitness,
predatory, troubling and abnormal behavior, dangerous propensities, and proclivities
to engage in abuse of minor students, at DPHES, including Plaintiff.
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56. Plaintiff is informed and believes and thereon alleges that Defendants,
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and each of them, knew or should have known of WILSON’s dangerous and
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exploitative propensities, that he was an unfit agent, and of his predatory proclivities
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to have abusive contact with minor students at DPHES. It was reasonably
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foreseeable that if Defendants breached the duty of care owed to students at DPHES,
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including Plaintiff, these children would be more vulnerable to abuse by WILSON.
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57. Plaintiff is informed and believes and thereon alleges that despite
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having actual and/or constructive notice of WILSON’s predatory propensities to
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engage in inappropriate sexualized misconduct with students, Defendants, and each
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of them, negligently hired, retained, and failed to supervise WILSON, thereby
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allowing him the ability and opportunity to access the minor Plaintiff to commit
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ongoing willful criminal acts against Plaintiff.
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58. Accordingly, Defendants, and each of them, failed to take reasonable
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steps to prevent and avoid acts of abuse despite having actual and/or constructive
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notice.
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59. ‘Plaintiff is informed and thereon alleges that WILSON’s unfitness
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resulted in harm to Plaintiff during a period including the 2013/2014 school year,
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when WILSON used his position as an employee of Defendants, and each of them,
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with access to minor students at DPHES, to engage in abuse as herein alleged of
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Plaintiff, resulting in injuries and damages to Plaintiff as alleged herein.
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60. Asa proximate result of Defendants’ negligent acts, Plaintiff has
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incurred damages as alleged heretofore.
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FOURTH CAUSE OF ACTION
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(Sexual Battery—WILSON and DOES 51-70)
61. Plaintiff hereby refers to and incorporates by this reference each of the
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COMPLAINT FOR DAMAGES
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allegations set forth above and makes them part of this cause of action as though
fully set forth herein.
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62. During the period including the 2013/2014 school year, Defendant
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WILSON used his position as faculty at Defendant TRUSD and at DPHES to engage
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in unpermitted, harmful, offensive, and unlawful sexual contact and battery upon the
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person of Plaintiff, a minor female student at the time.
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63. Plaintiff did not consent to these acts of battery.
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64. Defendant WILSON’s conduct against Plaintiff constitutes sexual
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battery within the meaning of California Civil Code Section 1708.5 and Penal Code
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Section 234.(b) and resulted in significant injuries and damages to Plaintiff.
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65. Asa direct, legal, and proximate cause of the conduct of Defendants,
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and each of them, as herein alleged above, Plaintiff was harmed as heretofore
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alleged.
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66. These acts of Defendants, and each of them, alleged above were done
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maliciously, oppressively, and/or fraudulently, entitling Plaintiff to recover punitive
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damages from Defendants WILSON, and DOES 51-70, in an amount to be proven at
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the time of trial of this action.
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FIFTH CAUSE OF ACTION
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(Failure to Perform Mandatory Duties—TRUSD and DOES 1-50)
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67. Plaintiff hereby refers to and incorporates by this reference each of the
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allegations set forth above and makes them part of this cause of action as though
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fully set forth herein.
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68. Defendants TRUSD and DOES 1 through 50, and each of them, had a
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mandatory reporting duty imposed by California Penal Code Sections 11164 et seq.
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at the time of the abuse of Plaintiff.
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69. Defendants’ mandatory duties owed to Plaintiff pursuant to California
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Penal Code Sections 11164 et seq. included contacting law enforcement and/or other
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appropriate administrative agencies to report suspected child abuse.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
‘ 2s FLOOR 13
FRANCISCO,
CA 94308 COMPLAINT FOR DAMAGES
ee 70. Prior to the unlawful sexual abuse and sexual battery perpetrated upon
Plaintiff, Defendants TRUSD and DOES 1 through 50, and each of them, had actual
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and/or constructive notice of WILSON’s predatory proclivity to engage in
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inappropriate sexual contact with minors.
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71. Despite receiving this actual and/or constructive notice regarding
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WILSON’s predatory proclivity to engage in sexually abusive behavior of minors,
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these administrators, employees, and staff members, all within the course and scope
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of their employment with Defendants TRUSD and DOES 1 through 50 and each of
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them, failed to perform their mandatory duties by failing to investigate these
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allegations of sexual assault sexual abuse, and sexual harassment and by failing to
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contact law enforcement, the California Department of Social Services, or any other
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administrative agency as was mandated by California Penal Code Sections 11164 et
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seq. at the time of the abuse of Plaintiff.
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72. Asa direct, legal, and proximate cause of the conduct of Defendants,
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and each of them, as herein alleged above, Plaintiff was harmed as heretofore
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alleged.
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SIXTH CAUSE OF ACTION
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(Violation of Ralph Act (Civ. Code § 51.7)—WILSON and DOES 51-70)
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73. Plaintiff hereby refers to and incorporates by this reference each of the
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allegations set forth above and makes them part of this cause of action as though
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fully set forth herein.
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74. Defendant WILSON committed an act of violence against her witha
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substantial motivating reason being her sex.
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75. Asa direct, legal, and proximate cause of the conduct of Defendants,
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and each of them, as herein alleged above, Plaintiff was harmed as heretofore
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alleged.
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14
COMPLAINT FOR DAMAGES
eH SEVENTH CAUSE OF ACTION
(Violation of Bane Act (Civ. Code § 52.1)—All Defendants
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76. Plaintiff hereby refers to and incorporates by this reference each of the
BF
allegations set forth above and makes them part of this cause of action as though
ee
fully set forth herein.
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77. Defendant, and each of them, intentionally interfered with Plaintiffs
DMD
civil rights, including her right to be free from harassment and discrimination, by
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threats, intimidation and coercion. In so doing, Defendants intended to deprive
fo
Plaintiff of her enjoyment of the interests protected by these rights.
mo
78. Asa direct, legal, and proximate cause of the conduct of Defendants,
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and each of them, as herein alleged above, Plaintiff was harmed as heretofore
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alleged.
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EIGHTH CLAIM FOR RELIEF
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Violation of California Education Code §§ 200 et seq.-TRUSD and DOES 1-50
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79. Plaintiff hereby refers to and incorporates by this reference each of the
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allegations set forth above and makes them part of this cause of action as though
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fully set forth herein..
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80. California Education Code section 200 et seq. provides for a private right
fh
of action for intentional discrimination on the basis of sex, which includes sexual
O&O
harassment.
OC
DDD
81. Section 220 of the Education Code provides: “[n]Jo person shall be
KF
subjected to discrimination on the basis of ...gender....in any program or activity
NH
conducted by an educational institution that receives, or benefits from, state financial
©
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assistance or enrolls pupils who receive state student financial aid.”
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82. The California legislature specifically declared its intent that an action
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under the Education Code shall be interpreted as consistent with Title IX of the
DO
Oo
Education Amendments of 1972, 20 USC 1681, et seq. (Cal. Ed. Code 201 (g)). A
plaintiff may maintain an action for monetary damages against a school district
15
COMPLAINT FOR DAMAGES
ee when the plaintiff alleges that he suffered severe, pervasive and offensive
harassment that effectively deprived the plaintiff of the right of equal access to
HN
educational benefits and opportunities; the school had actual knowledge of the
CO
harassment; and the school responded with deliberate indifference. Donovan v.
&e
Poway Unified School Dist., 167 Cal.App.4th 567, 603-09 (2008).
Oo
83. The California legislature recognized that all pupils enrolled in the state
ND
public schools have the inalienable right to attend classes on school campuses that
are safe, secure, and peaceful. Cal. Ed. Code 32261 (a), Article I, section 28 (c) of the
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California State Constitution.
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84. Defendants TRUSD and DOES 1 through 50, were aware that WILSON
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was removing E.Y. from her regularly scheduled class and recess periods but they
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b=
permitted WILSON to have unsupervised access to E-Y. for extended periods of time
fh
bo
during which WILSON sexually harassed, molested and assaulted Plaintiff during
w
school hours on the DPHES campus.
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rs
4
85. This type of sexual harassment is actionable because it is based on
or
fh
E.Y.’s gender and was so severe and pervasive that it had detrimental effect on E.Y.’s
ah
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mental health and caused substantial interference with her ability to participate in
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and benefit from educational programs, opportunities and benefits she was entitled
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to.
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86. WILSON’s sexual harassment, assault and molestation of E.Y. occurred
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DDD
on the DPHES campus during the time periods designated as educational hours for
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E.Y.. TRUSD permitted WILSON to frequently remove E.Y. from her regularly
bo
DDD
scheduled class periods for extended periods of time during which WILSON sexually
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harassed, molested and assaulted E.Y. and staff did nothing to intervene.
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87. On information and belief, TRUSD and DOES 1 through 50 had actual
or
DOD
knowledge of this ongoing harassment but failed act to stop it. The failure to halt
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harassment of which a school district is aware constitutes intentional discrimination.
Franklin v. Gwinnet County Public Schools, 502 U.S. 112 (1992).
Preview
Filed Superior Court of California, Sacramento LAW OFFICES OF a ee WALKUP, MELODIA, KELLY& SCHOENBERGER 06/28/2023 A PROFESSIONAL CORPORATION chapmam DN 650 CAUFORNIA STREET, 26™ FLOOR By , Deputy SAN F ), CAL 94108-2615 CW T: casa ai ates 391-6965 2 aC VbOs84 5 BY FAX fe KHALDOUN A. BAGHDADI (State Bar #190111) kbaghdadi@walkuplawoffice.com GO VALERIE N. ROSE (State Bar #272566) vrose@walkuplawoffice.com GM JOSEPH NICHOLSON (State Bar #284959) jnicholson@walkuplawoffice.com 1 ATTORNEYS FOR PLAINTIFF E.Y., a minor, by and through her Guardian fo Ad Litem SONG VANG OO mo SUPERIOR COURT OF THE STATE OF CALIFORNIA taht FS COUNTY OF SACRAMENTO wW NY E.Y., a minor, by and through her Case No. Guardian Ad Litem SONG VANG, B® COMPLAINT FOR DAMAGES Plaintiff, {Amount in controversy exceeds $25,000] Do Vv. hhh TWIN RIVERS UNIFIED SCHOOL DISTRICT, KIM KENNETH WILSON, ON and DOES ONE through 100, Defendants. DEMAND FOR JURY TRIAL OH DD SG Plaintiff E.Y., a minor by and through her Guardian Ad Litem SONG VANG, KK complains of Defendants, and each of them, and alleges as follows: OO NY DDD PARTIES 1. At all relevant times herein mentioned, Plaintiff E.Y. (hereinafter ® DDD “Plaintiff’) was a minor residing in the County of Sacramento, in the State of oO California. 8 2. Song Vang is the natural mother of Plaintiff E.Y. and is a resident of BD oN Sacramento County. She brings this action on behalf of her daughter E.Y. as her 1 COMPLAINT FOR DAMAGES Guardian ad Litem. a. At all relevant times herein mentioned, Defendant TWIN RIVERS ND UNIFIED SCHOOL DISTRICT (hereinafter “TRUSD”) was a public entity within the wo meaning of California Government Code sections 811.2, 900 et seq., duly ®- incorporated and operating under California law as a school district. oo 4. At all relevant times herein mentioned, Defendant KIM KENNETH ®& WILSON (hereinafter “WILSON”) was a natural person and a resident of the County oN of Sacramento, in the State of California. All actions alleged herein by WILSON were taken in the course and scope of his employment with TRUSD. Do 5. The true names, capacities, or involvement, whether individual, fd CO corporate, governmental, or associate, of the defendants named hereinafter as DOE fk KF are unknown to Plaintiff who therefore sues said defendants by fictitious names. fh WH Plaintiff prays leave to amend this Complaint to show their true names, capacities, WH fk or involvement when the same have been finally determined. &— kfm 6. Plaintiff is informed and believes, and upon such information and belief oT alleges, that each of the defendants designated herein as DOE is negligently or OD tah otherwise legally responsible in some manner for the events and happenings herein nN referred to, and negligently or otherwise caused injuries and damages proximately OO ehh thereby to Plaintiff as is hereinafter alleged. © 7. At all times herein mentioned, each and every of the defendants herein © DBD was the agent, servant, partner, joint venturer, employee, and/or franchisee of each F&F of the other defendants, and each was at all times acting within the course and scope DD NM of such agency, service, employment, joint venture, partnership, and/or franchise. WwW ND FACTS mh! BD 8. At all relevant times herein, Plaintiff was a minor residing in the Or ND County of Sacramento and was a student at Del Paso Heights Elementary School DO Oo (hereinafter “DPHES’). 9. Between 2011 and 2015, Plaintiff was a student enrolled in the TRUSD. 2 COMPLAINT FOR DAMAGES eH During the 2013-2014 school year, when Plaintiff was 7 years old, she attended second grade at DPHES in the TRUSD. During the time she attended DPHES, DO Plaintiff qualified for and received special education services from TRUSD on the CO basis of her disability, Speech or Language Impairment (SLI. me 10. On multiple dates during the 2013-2014 school year, while in the care CO and supervision of TRUSD, Plaintiff was physically and sexually assaulted, sexually &® harassed, molested, threatened and intimidated by DPHES teacher WILSON during 1 school hours on the DPHES campus. CO 11. On information and belief, prior to and during Plaintiffs abuse during o the 2013-2014 school year, WILSON frequently gave frontal hugs to female students fl OC on school grounds. WILSON also regularly pulled Plaintiff and other minor students fh KF out of their scheduled class periods and/or recess periods and/or invited them into a WS ffm secluded and unsupervised broadcast room on the DPHES campus. WO 12. On information and belief, prior to and during Plaintiffs abuse during & ahh the 2013-2014 school year, WILSON physically and sexually assaulted, harassed, DO molested, threatened, intimidated and/or committed lewd acts against other minor ah students at DPHES. HAI fs 13. On information and belief, WILSON’s inappropriate hugging of female © students, as well as his habit of removing students from their class and recess © periods and/or inviting Plaintiff and other minors to a secluded and unsupervised CC NINE room on campus was open, obvious, and known to TRUSD and DPHES KH administrators and staff. NM 14. Oninformation and belief, TRUSD knew or should have known that WwW WILSON posed a threat to Plaintiff and other students and was engaging in -»e misconduct with students including Plaintiff, but negligently failed to monitor oO BOI WILSON or supervise students to ensure their safety. Oo 15. As part of WILSON’s victim “grooming,” initially WILSON only played computer games with Plaintiff and other students during the periods he held them 3 COMPLAINT FOR DAMAGES eH inside the broadcast room alone with him. 16. Eventually, WILSON began routinely pulling Plaintiff from her regular LD class periods and/or recess periods and bringing her inside a broadcast room housing CF audio/visual equipment with photos of young girls hanging on the wall. WILSON told ee Plaintiff he needed her help with his new camera equipment, he removed her OF clothing and underwear, physically positioned her in various “poses” and took MD photographs and/or videos of her genital area and vagina. On at least one occasion, 4 WILSON also directed Plaintiff to hold a sausage in her mouth while he took fo photographs and/or videos of her in different positions. mo 17. After multiple incidents on multiple dates, WILSON then told Plaintiff CO ff that all of the photos they had taken together had been deleted and would needed to KF be retaken. Thereafter, WILSON continued to repeatedly pull Plaintiff from her fk WH classes and recess periods, bring her to the secluded broadcast room, remove her fk WwW clothing and underwear and take additional photographs and/or videos of her in the ah ahh &— BOD same manner as described above. oa 18. Plaintiff is informed and believes and thereon alleges that Defendants OO TRUSD, DOES 1-50, and each of them, knew or should have known of WILSON’s hh MN abuse of Plaintiff while Plaintiff was in the care of Defendant TRUSD. 19. Plaintiff is informed and believes and thereon alleges that prior to © WILSON’s physical and sexual assaults against Plaintiff during the 2013/2014 school © year, employees, administrators and agents of TRUSD and DPHES, including KF TRUSD’s Police Department (“TRUSD PD”), had knowledge of information giving MW rise to a reasonable suspicion that WILSON was engaging in criminal activity on the WwW DPHES campus but were deliberately indifferent and negligently failed to monitor mm WILSON, supervise students or take intervening action to ensure student safety. oO 20. Oninformation and belief, TRUSD and TRUSD PD have a history of Oo mishandling student complaints and failing to document, investigate and report complaints alleging a TRUSD employee engaged in sexual misconduct with a TRUSD 4 COMPLAINT FOR DAMAGES eH student. At no time prior to WILSON’s arrest did TRUSD or TRUSD PD inform Plaintiffs parents that she was a victim of WILSON, or of the substance or outcome DO of any investigation of WILSON related to inappropriate conduct with students WwW including Plaintiff. - 21. Plaintiff is informed and believes and thereon alleges that Defendants CO TRUSD and DOES 1-50, and each of them, failed to take appropriate action to DO intervene and stop the abuse, negligently failed to monitor, supervise and/or control “1 WILSON, and failed to protect Plaintiff from abuse while she was in the care of CO Defendant TRUSD and DPHES. Oo 22. Plaintiff is informed and believes and thereon alleges that prior to and OQ during the 20131/2014 school year, Defendants TRUSD and DOES 1-50, and each of font fk them, had or should have had a reasonable suspicion regarding WILSON’s proclivity bo ahah to abuse vulnerable minor students placed into his care, knew or should have known w that WILSON posed a threat to the safety and welfare of children, including Plaintiff, ee 7 and knew or should have known that WILSON was likely to abuse minor students if or he was allowed unsupervised access to them without constant and diligent D supervision. ~] 23. Plaintiff is informed and believes and thereon alleges that, despite their oO actual and/or constructive knowledge of the danger WILSON posed to DPHES © DD students including Plaintiff, Defendants, and each of them, negligently failed to So monitor, supervise and/or maintain control of the students and failed to protect bent Plaintiff from abuse by WILSON while Plaintiff was in the care of Defendant bo DD TRUSD. CO 24. Asa proximate and legal result of TRUSD’s, and its employees’ and tm agents’, negligence and deliberate indifference to Plaintiffs safety, their negligent on DODO supervision of students and employees on campus during school hours, and their Oo negligent and deliberate indifference to investigating and resolving all reports of sexual harassment, physical and sexual assaults and other criminal activity & 2 paipem enehamia 5 Pmancisco, ch 94308 COMPLAINT FOR DAMAGES re occurring to students on campus, Plaintiff was sexually harassed and assaulted, discriminated against, deprived of her access to the educational opportunities and NW benefits to which she was entitled and otherwise harmed. WwW STATUTE OF LIMITATIONS AND TORT CLAIM COMPLIANCE mh 25. California’s Assembly Bill 218, otherwise known as the California Child Go Victims Act, took effect January 1, 2020 and expanded the statute of limitations for DM survivors of sexual assault, thus allowing Plaintiffs claims to proceed. These changes 1 are codified as California Code of Civil Procedure §340.1. CO 26. Per §340.1(a), an action for recovery of damages suffered as a result of Oo childhood sexual assault shall commence within 22 years of the date the plaintiff ff attains the age of majority (effectively on a plaintiffs 40 birthday) or within 5 years re of the date the plaintiff discovers or reasonably should have discovered that LW psychological injury or illness occurring after the age of majority, whichever period fh fk fh Ww DDD expires later. & 27. Plaintiffs date of birth is May 8, 2006, and thus, she has filed this oo action within the statute of limitations set forth in C.C.P. §340.1(c) as to his claims of fm fh hhh childhood sexual assault against all Defendants named in this action. sN 28. Defendant TRUSD is, and at all relevant times herein mentioned was, a OO public entity with the ability to own, operate, and control DPHES. However, © pursuant to Govt. Code §905(m), Plaintiff is exempt from the requirement to present OC a government tort claim to Defendant TRUSD. See Coats v. New Haven Unified re School Dist. (2020) 46. Cal.App.5th 415, 430-431. BN 29. Nevertheless, on March 30, 2023, a written claim for damages setting CO forth the matters herein alleged was duly and regularly presented on behalf of Com Plaintiff to Defendant TRUSD in accordance with the appropriate sections of the BORD California Government Code. TRUSD took no action on Plaintiff's claim and it was oO thereafter deemed rejected by operation of law. Hfl 6 COMPLAINT FOR DAMAGES Be FIRST CAUSE OF ACTION (Negligence—All Defendants) 30. Plaintiff hereby refers to and incorporates by this reference each of the WO allegations set forth above and makes them part of this cause of action as though &e. fully set forth herein. CO 31. Defendant TRUSD has a duty to supervise students on the premises of MD DPHES. Cal. Ed. Code § 44807. The standard of care imposed upon school employees ss“ in carrying out their duty to supervise is identical to that required in the OW performance of their other duties, i.e., that degree of care which a person of ordinary DO prudence, charged with comparable duties, would exercise under the same fl O circumstances; either a total lack of supervision or ineffective supervision may = fff constitute a lack of ordinary care on the part of those responsible for student DH supervision. Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925. WwW 32. Defendant TRUSD owed a duty of care to Plaintiff due to the “special &® kf relationship” between a school and its students. This duty includes supervising and oO protecting Plaintiff and other students from potential dangers while on school ah DMD grounds, including protecting students from being subjected to sexual abuse on HN school grounds, during school hours by a school employee. TRUSD, and its employees CO Ia and agents, breached this duty to Plaintiff by negligently failing to screen, monitor, © supervise, train and/or discipline WILSON and recklessly permitting WILSON to © remove students, including Plaintiff, from their scheduled class and recess periods to & hold them alone behind closed and/or locked doors unsupervised where he molested, MW assaulted, harassed, threatened and intimidated them. BND WO 33. Defendant TRUSD negligently failed to monitor WILSON and further mh failed to supervise students including Plaintiff to prevent WILSON’s sexual assaults, OF harassment and molestation. TRUSD failed to prevent violation of Plaintiffs civil mM rights and discrimination of Plaintiff on the basis of her sex. TI BO 34. On information and belief, Defendant TRUSD negligently failed to az COMPLAINT FOR DAMAGES document, investigate or report earlier incidents of WILSON’s prior sexual De misconduct with students and failed to retrain, discipline and/or terminate WILSON to prevent recurrence, including Wilson’s subsequent abuse of Plaintiff. WC 35. Atall relevant times, Defendant TRUSD had control of WILSON, of the - DPHES campus where WILSON perpetrated his abuse, and control of the students CO who were victimized by WILSON. Despite their prior knowledge that Wilson posed a OD danger to students including Plaintiff, TRUSD administrators and staff nonetheless nN permitted WILSON to have unsupervised access to Plaintiff during periods they fo knew WILSON was repeatedly removing Plaintiff from her regularly scheduled mw classes and recess periods. WILSON then used those unsupervised periods to hold OC fa Plaintiff inside a secluded room on the DPHES campus and repeatedly sexually KF assault, harass and molest her. fan DW 36. On information and belief, despite their knowledge that female WO fk students, including Plaintiff, were being sexually harassed and physically and -»& hf sexually assaulted by WILSON at DPHES, responsible administrators and oO employees of TRUSD, each mandated reporters as defined by Penal Code § 11165.7, DD ehh failed to report WILSON’S abuse to law enforcement and intentionally concealed NN WILSON’S abuse from victims’ families. MW 37. Further, Defendant TRUSD breached its duty to Plaintiff by violating © the applicable TRUSD board policies and regulations which were intended to prevent CO DD sexual harassment and abuse of students, including without limitation BP/AR 5145.7 KK RD (Student Sexual Harassment), 5141.4 (Child Abuse Prevention And Reporting) and HM ND 1312.3 (Uniform Complaint Procedures). The failure to document, investigate, NO WwW respond to and resolve ongoing sexual harassment of students in compliance with &® BNO TRUSD board policies and regulations created a hostile environment where CO BN pervasive student sexual harassment flourished and led to WILSON’s abuse of Oo RD Plaintiff. 38. Defendants, and each of them, are vicariously liable for injuries 8 COMPLAINT FOR DAMAGES re proximately caused by negligence of school personnel responsible for student supervision. DO 39. Defendant TRUSD is vicariously liable for injuries proximately caused WW by the negligence of school employees responsible for student supervision under Cal. mh Gov. Code § 815.2(a). CO 40. Plaintiff is informed and believes that in addition to named Defendants, OD there are other DOE defendants who were also board members, administrators, “1 teachers, aides, employees or agents of Defendants who were responsible for student CO supervision and who failed to properly supervise, monitor, and control the students © and who were responsible for the acts alleged herein. © fk 41. Defendants, and each of them, are responsible for student supervision. wR They had a duty of care toward Plaintiff to prevent the abuse perpetrated against her HW by WILSON while the in care of the TRUSD and DPHES. Defendants, and each of ak WO Dh them, breached their duty by failing to supervise the conduct of students, giving rise ee fa to vicarious liability. oO 42. Plaintiff is informed and believes and thereon alleges that Defendants, DO and each of them, knew or should have known that WILSON posed a risk to NIN students, including Plaintiff. Defendants negligently failed to supervise WILSON to OO prevent him from abusing Plaintiff on the DPHES campus while in the care of the © TRUSD and DPHES. CSC 43. Plaintiff is informed and believes and thereon alleges that Defendant KF DDD TRUSD failed to comply with BP 5145.7 prohibiting sexual and gender-based NM harassment of students while on campus. The policy required TRUSD to take prompt © action to stop sexual harassment, prevent recurrence, implement remedies and &® DD address any continuing effects; required any TRUSD employee who received a report OF of sexual harassment of a student to, within one school day, forward the report to the DOO Im principal or the Title [IX Coordinator who in turn shall inform the student or parent of their right to file a formal written complaint under AR 1312.3 Uniform Complaint 9 COMPLAINT FOR DAMAGES Procedures (UCP). 44. Plaintiff is informed and believes and thereon alleges that Defendant bo TRUSD further failed to comply with AR 1312.3 UCP which required TRUSD to WwW investigate and resolve all complaints alleging sexual harassment of a student, me maintain a log of all such complaints received, conduct an investigation to include CO “collection of all available documents and review all available records notes, or OS statements related to the complaint...interview all available witnesses...prepare and | send to the complainant a written investigation report within 60 days of the receipt of OO the complaint” Oo 45. Plaintiff is informed and believes and thereon alleges that Defendant al OO TRUSD breached these duties after receiving reports that female students had been fk KF physically and sexually assaulted, harassed and/or molested by WILSON. fk LD 46. Defendant TRUSD negligently and recklessly, in deliberate indifference fk WO D to Plaintiff's and other students’ safety, failed to conduct an adequate investigation &® hf after receiving reports of WILSON’s sexual misconduct and criminal activity, failed oO to remove WILSON from campus after receiving said reports, failed to notify DM hah Plaintiffs parents and failed to report the incidents involving WILSON that is was NY DD aware of to law enforcement as required. OO 47. The TRUSD administrators, school officials, and other employees of © TRUSD were each mandated reporters as defined by Penal Code § 11165.7, but on © information and belief, each failed to report known incidents of sexual harassment, ew sexual assault and physical abuse involving WILSON to an agency defined in Penal NM Code § 11165.9. OW 48. Further, Respondent breached its duty to Plaintiff in violating TRUSD me PD Policy 600, requiring it to adequately hire, train, retain and supervise qualified oO BOD investigators and to investigate and report claims of suspected sexual harassment of oO students. 49. The ongoing conduct of Wilson and TRUSD violated Education Code 10 COMPLAINT FOR DAMAGES Section 220. Plaintiff was harmed by being subjected to harassment at school because of her sex, gender, race, age and disability. DS 50. Asa proximate result of Defendants’ negligent acts, Plaintiff has Ww incurred damages as alleged heretofore. te SECOND CAUSE OF ACTION GO (Intentional Infliction of Emotional Distress—WILSON and DOES 51-70) DO 51. Plaintiff hereby refers to and incorporates by this reference each of the ss allegations set forth above and makes them part of this cause of action as though OF fully set forth herein. Om 52. The actions of Defendants WILSON and DOES 51-70 as alleged herein OC fa were outrageous, malicious, made in reckless disregard of the probability that KK fh Plaintiff would suffer emotional distress, and intended to and did inflict emotional WH Deh fh fh distress and humiliation upon Plaintiff. WO 53. Asa proximate result of Defendants’ acts, Plaintiff has incurred »&- ah damages as alleged heretofore. DO THIRD CAUSE OF ACTION (Negligent Hiring, Supervision, and Retention—TRUSD and DOES 1-50) ON 54. Plaintiff hereby refers to and incorporates by this reference each of the allegations set forth above and makes them part of this cause of action as though © fully set forth herein. OC 55. Defendants, and each of them, had a duty to: not hire and/or retain &F& DDD WILSON given his propensity to engage in abuse of students placed in her care, of NM which Defendants knew or should have known about; provide adequate supervision WwW of WILSON; use reasonable care in investigating complaints of inappropriate - DOO behavior by WILSON; take appropriate adverse employment actions against CO WILSON as a result of his tortious conduct; provide adequate supervision and oO protection to students at DPHES with whom Defendants, and each of them, allowed WILSON to have contact; provide adequate warnings to Plaintiff and Plaintiffs legal ll COMPLAINT FOR DAMAGES De guardians, and other individuals at the premises, regarding WILSON’s unfitness, predatory, troubling and abnormal behavior, dangerous propensities, and proclivities to engage in abuse of minor students, at DPHES, including Plaintiff. OW 56. Plaintiff is informed and believes and thereon alleges that Defendants, he and each of them, knew or should have known of WILSON’s dangerous and OF exploitative propensities, that he was an unfit agent, and of his predatory proclivities DO to have abusive contact with minor students at DPHES. It was reasonably 1 foreseeable that if Defendants breached the duty of care owed to students at DPHES, fe including Plaintiff, these children would be more vulnerable to abuse by WILSON. Oo 57. Plaintiff is informed and believes and thereon alleges that despite © having actual and/or constructive notice of WILSON’s predatory propensities to KF fan engage in inappropriate sexualized misconduct with students, Defendants, and each fh NW Dhak of them, negligently hired, retained, and failed to supervise WILSON, thereby WO hf allowing him the ability and opportunity to access the minor Plaintiff to commit &— ongoing willful criminal acts against Plaintiff. oO 58. Accordingly, Defendants, and each of them, failed to take reasonable DO steps to prevent and avoid acts of abuse despite having actual and/or constructive NN notice. MW 59. ‘Plaintiff is informed and thereon alleges that WILSON’s unfitness © resulted in harm to Plaintiff during a period including the 2013/2014 school year, CO when WILSON used his position as an employee of Defendants, and each of them, re with access to minor students at DPHES, to engage in abuse as herein alleged of NM Plaintiff, resulting in injuries and damages to Plaintiff as alleged herein. CO OO 60. Asa proximate result of Defendants’ negligent acts, Plaintiff has me incurred damages as alleged heretofore. CO DBO FOURTH CAUSE OF ACTION oO (Sexual Battery—WILSON and DOES 51-70) 61. Plaintiff hereby refers to and incorporates by this reference each of the 12 COMPLAINT FOR DAMAGES ee allegations set forth above and makes them part of this cause of action as though fully set forth herein. Oo 62. During the period including the 2013/2014 school year, Defendant WwW WILSON used his position as faculty at Defendant TRUSD and at DPHES to engage fH in unpermitted, harmful, offensive, and unlawful sexual contact and battery upon the CO person of Plaintiff, a minor female student at the time. DD 63. Plaintiff did not consent to these acts of battery. “1 64. Defendant WILSON’s conduct against Plaintiff constitutes sexual CO battery within the meaning of California Civil Code Section 1708.5 and Penal Code Oo Section 234.(b) and resulted in significant injuries and damages to Plaintiff. fl OS 65. Asa direct, legal, and proximate cause of the conduct of Defendants, KF ff and each of them, as herein alleged above, Plaintiff was harmed as heretofore NW alleged. WH fam 66. These acts of Defendants, and each of them, alleged above were done & fk maliciously, oppressively, and/or fraudulently, entitling Plaintiff to recover punitive oO damages from Defendants WILSON, and DOES 51-70, in an amount to be proven at aft DD the time of trial of this action. I FIFTH CAUSE OF ACTION MO (Failure to Perform Mandatory Duties—TRUSD and DOES 1-50) © 67. Plaintiff hereby refers to and incorporates by this reference each of the CO DD allegations set forth above and makes them part of this cause of action as though re fully set forth herein. RD NM 68. Defendants TRUSD and DOES 1 through 50, and each of them, had a ND CW mandatory reporting duty imposed by California Penal Code Sections 11164 et seq. ND mh at the time of the abuse of Plaintiff. CO BRN 69. Defendants’ mandatory duties owed to Plaintiff pursuant to California Om Penal Code Sections 11164 et seq. included contacting law enforcement and/or other TI RM appropriate administrative agencies to report suspected child abuse. LAW OFFICES OF WALKUP, MELODIA, KELLY ‘ 2s FLOOR 13 FRANCISCO, CA 94308 COMPLAINT FOR DAMAGES ee 70. Prior to the unlawful sexual abuse and sexual battery perpetrated upon Plaintiff, Defendants TRUSD and DOES 1 through 50, and each of them, had actual bo and/or constructive notice of WILSON’s predatory proclivity to engage in CW inappropriate sexual contact with minors. hm 71. Despite receiving this actual and/or constructive notice regarding OF WILSON’s predatory proclivity to engage in sexually abusive behavior of minors, OD these administrators, employees, and staff members, all within the course and scope NN of their employment with Defendants TRUSD and DOES 1 through 50 and each of Oo them, failed to perform their mandatory duties by failing to investigate these Oo allegations of sexual assault sexual abuse, and sexual harassment and by failing to fd © contact law enforcement, the California Department of Social Services, or any other F&F fff administrative agency as was mandated by California Penal Code Sections 11164 et DW seq. at the time of the abuse of Plaintiff. WO 72. Asa direct, legal, and proximate cause of the conduct of Defendants, & fk and each of them, as herein alleged above, Plaintiff was harmed as heretofore oO hh alleged. DM SIXTH CAUSE OF ACTION pak NA (Violation of Ralph Act (Civ. Code § 51.7)—WILSON and DOES 51-70) MO Dea 73. Plaintiff hereby refers to and incorporates by this reference each of the © allegations set forth above and makes them part of this cause of action as though © fully set forth herein. KF 74. Defendant WILSON committed an act of violence against her witha HM substantial motivating reason being her sex. CO ND 75. Asa direct, legal, and proximate cause of the conduct of Defendants, & DD and each of them, as herein alleged above, Plaintiff was harmed as heretofore CO alleged. BO Oo fH Thi 14 COMPLAINT FOR DAMAGES eH SEVENTH CAUSE OF ACTION (Violation of Bane Act (Civ. Code § 52.1)—All Defendants LH 76. Plaintiff hereby refers to and incorporates by this reference each of the BF allegations set forth above and makes them part of this cause of action as though ee fully set forth herein. OF 77. Defendant, and each of them, intentionally interfered with Plaintiffs DMD civil rights, including her right to be free from harassment and discrimination, by NN threats, intimidation and coercion. In so doing, Defendants intended to deprive fo Plaintiff of her enjoyment of the interests protected by these rights. mo 78. Asa direct, legal, and proximate cause of the conduct of Defendants, OC ff and each of them, as herein alleged above, Plaintiff was harmed as heretofore KF alleged. WH hh EIGHTH CLAIM FOR RELIEF WO Violation of California Education Code §§ 200 et seq.-TRUSD and DOES 1-50 —- fh fk 79. Plaintiff hereby refers to and incorporates by this reference each of the oO allegations set forth above and makes them part of this cause of action as though DO hh fully set forth herein.. WN 80. California Education Code section 200 et seq. provides for a private right fh of action for intentional discrimination on the basis of sex, which includes sexual O&O harassment. OC DDD 81. Section 220 of the Education Code provides: “[n]Jo person shall be KF subjected to discrimination on the basis of ...gender....in any program or activity NH conducted by an educational institution that receives, or benefits from, state financial © DDD assistance or enrolls pupils who receive state student financial aid.” & 82. The California legislature specifically declared its intent that an action oO under the Education Code shall be interpreted as consistent with Title IX of the DO Oo Education Amendments of 1972, 20 USC 1681, et seq. (Cal. Ed. Code 201 (g)). A plaintiff may maintain an action for monetary damages against a school district 15 COMPLAINT FOR DAMAGES ee when the plaintiff alleges that he suffered severe, pervasive and offensive harassment that effectively deprived the plaintiff of the right of equal access to HN educational benefits and opportunities; the school had actual knowledge of the CO harassment; and the school responded with deliberate indifference. Donovan v. &e Poway Unified School Dist., 167 Cal.App.4th 567, 603-09 (2008). Oo 83. The California legislature recognized that all pupils enrolled in the state ND public schools have the inalienable right to attend classes on school campuses that are safe, secure, and peaceful. Cal. Ed. Code 32261 (a), Article I, section 28 (c) of the Oo California State Constitution. mo 84. Defendants TRUSD and DOES 1 through 50, were aware that WILSON oO fa was removing E.Y. from her regularly scheduled class and recess periods but they fk b= permitted WILSON to have unsupervised access to E-Y. for extended periods of time fh bo during which WILSON sexually harassed, molested and assaulted Plaintiff during w school hours on the DPHES campus. fafa rs 4 85. This type of sexual harassment is actionable because it is based on or fh E.Y.’s gender and was so severe and pervasive that it had detrimental effect on E.Y.’s ah oH mental health and caused substantial interference with her ability to participate in ~J fa and benefit from educational programs, opportunities and benefits she was entitled CO to. fafa Co 86. WILSON’s sexual harassment, assault and molestation of E.Y. occurred co DDD on the DPHES campus during the time periods designated as educational hours for ee E.Y.. TRUSD permitted WILSON to frequently remove E.Y. from her regularly bo DDD scheduled class periods for extended periods of time during which WILSON sexually Co harassed, molested and assaulted E.Y. and staff did nothing to intervene. im 87. On information and belief, TRUSD and DOES 1 through 50 had actual or DOD knowledge of this ongoing harassment but failed act to stop it. The failure to halt oO harassment of which a school district is aware constitutes intentional discrimination. Franklin v. Gwinnet County Public Schools, 502 U.S. 112 (1992).