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Mythily Sivarajah, SBN: 252494
Elana R. Jacobs, Esq., SBN: 303178
P. Ann Surapruik, Esq., SBN: 299231
WINER, BURRITT & TILLIS, LLP
1999 HARRISON STREET, SUITE 600
OAKLAND, CALIFORNIA 94612
Tel (510) 433-1000
Fax (510) 433-1001
Attorneys for Plaintiff
AM., an individual, by and through
her Guardian Ad Litem, M.A.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA — UNLIMITED JURISDICTION
10
11
A.M., an individual, by and through her Case No.: 18CV336716
12 Guardian ad Litem M.A.; (Unlimited Civil Case)
13 Plaintiff, DECLARATION OF ELANA R. JACOBS
IN SUPPORT OF PLAINTIFF'S MOTION
14 TO COMPEL FURTHER RESPONSES
Vv.
FROM DEFENDANT BERRYESSA
IS UNION SCHOOL DISTRICT
BERRYESSA UNION SCHOOL DISTRICT,
16 a government entity; STEFANI GARINO, an Date: 4/16/2020
individual; THOMAS CARROLL, an Time: 9:00 a.m.
17 individual; LORNIMITA UMALI, an Dept. 21
individual; MELANIE SANTOS, an Honorable Thang N. Barrett
18
individual; and DOES 1-50, inclusive;
19
Defendants. Complaint Filed: 10/17/18
20
21
I, Elana Jacobs, declare:
22
1 I am an attorney at law duly admitted to practice before all the courts of
23
California. I am an associate attorney with Winer, Burritt & Tillis, LLP, attorneys of record
24
herein for Plaintiff A.M., an individual, by and through her Guardian ad Litem ("Plaintiff").
25
Unless otherwise noted, I have personal knowledge of the matters set forth herein and, if called
26
as a witness, could and would testify competently thereto.
27
28
DECLARATION OF ELANA R. JACOBS IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES FROM DEFENDANT BERRYESSA UNION SCHOOL DISTRICT 1
2. Attached hereto as Exhibit A is a true and correct copy of Plaintiff's Complaint
For Damages that was filed with this Court on October 17, 2018.
3 Attached hereto as Exhibit B is a true and correct copy of Defendant Berryessa
Union School District's ("Defendant") Answer to Plaintiff's Complaint.
4. Attached hereto as Exhibit C is a true and correct copy of Plaintiff's First Set of
Requests for the Production of Documents which were propounded on March 5, 2019.
5 Attached hereto as Exhibit D is a true and correct copy of Defendant's
Responses to Plaintiff's First Set of Production Requests, where were served on June 7, 2019.
6 Attached hereto as Exhibit E are true and correct copies of the meet and confer
10 correspondence between counsel that precipitated this motion.
7
1 Attached hereto as Exhibit F is a true and correct copy of Defendant's privilege
12 log pertaining to documents that are being withheld in connection with this motion.
13 8 Attached hereto as Exhibit G are Defendant's Responses to Plaintiff's Form
14 Interrogatories -- General - which were served on June 7, 2019.
15 9 Attached hereto as Exhibit H is a true and correct copy of a March 23, 2018
16 letter that Defendant wrote to Plaintiff's mother after conducting an investigation into Plaintiff's
17 claims. It contains numerous findings of fact that allegedly came directly out a third party
18 investigation that Defendant commissioned.
19 10. Attached hereto as Exhibit I is a true and correct copy of the Stipulated
20 Protective Order in this case that was entered by the Court on April 4, 2019.
21 11. Attached hereto as Exhibit J is a true and correct copy of a Stipulation reached
22 between the parties in which Defendant agreed to waive its objections based on privacy and the
23 FERPA with respect to Plaintiff's effort to recover certain student files.
24
I declare under penalty of perjury under the laws of the State of California that the
25
forgoing is true and correct and that this declaration was signed on February 12, 2020 in
26
Oakland, California.
27
By:
28 EL (NA JACOBS
DECLARATION OF ELANA JACOBS IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES FROM DEFENDANT BERRYESSA UNION SCHOOL DISTRICT
EXHIBIT A
E-FILED
10/17/2018 2:52 PM
AlexisS. McKenna, Esq., SBN: 197120 Clerk of Court
Elana R. Jacobs, Esq., SBN: 303178 Superior Court of CA,
WINER, MCKENNA, BURRITT & TILLIS, LLP County of Santa Clara
1999 HARRISON STREET, SUITE 600 18CV336716
OAKLAND, CALIFORNIA 94612 Reviewed By: E. Fang
Tel (510) 433-1000
Fax (510) 433-1001
Attomeys for Plaintiff
A.M., an individual, by and through her Guardian Ad Litem, M.A.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SANTA CLARA
A.M., an individual, by and through her Case No.: 18CV3367 16
10 Guardian ad Litem M.A. (Unlimited Civil Case)
11 Plaintiff, COMPLAINT FOR DAMAGES AND
DEMAND FOR JURY TRIAL
12 Vv.
13 1 Violation of Cal, Education Code §
BERRYESSA UNION SCHOOL DISTRICT, 234(b);
14 a government entity, STEFANI GARINO, an 2 Sexual Harassment- Violation of Cal.
individual; THOMAS CARROLL, an Education Code §§ 200, 201
15 individual; LORNIMITA UMALT, an Negligence:
individual; MELANIE SANTOS, an. Negligent Failure to Warn, Train and
16 individual; and DOES 1-50, inclusive: Educate
17 Negligent Hiring, Retention and
Supervision;
18 Defendants Intentional Infliction of Emotional
Distress.
19
20
21 Plaintiff A.M., an individual, by and through her Guardian Ad Litem, M.A. (hereinafter
22 sometimes referred to as “Plaintiff’) for her complaint against defendants BERRYESSA UNION
23 SCHOOL DISTRICT, STEFANI GARINO (who was erroneously named in Plaintiff's Notice of
24 Claim under Government Code Section 910 as “STEFANI GOMEZ”), THOMAS CARROLL,
25 LORNIMITA UMALI, MELANIE SANTOS (who was erroneously named in Plaintiffs Notice of
26 Claim under Government Code Section 910 as “KAYLA SANTOS), and DOES 1-50 (sometimes
27 collectively “Defendants”), alleges as follows:
28
Complaint for Damages
JURISDICTION AND VENUE
1 Venue is proper because the injuries and wrongful acts occurred in Santa Clara
County and because at least one defendant is domiciled in Santa Clara County, California.
2. Subject matter in this action is properly heard in this Court, as the action incorporates
an amount in controversy as set forth in the complaint which exceeds $25,000.00.
3 On or around March 14, 2018, Plaintiff properly and timely presented her government
tort claim in accordance with Government Code section 910 to the BERRYESSA UNION SCHOOL
DISTRICT. The Governing Board of the BERRYESSA UNION SCHOOL DISTRICT rejected
Plaintiff's claim on May 8, 2018 and sent Notice of Rejection of Claim to Plaintiff pursuant to
10
Government Code section 913 on May 10, 2018. Plaintiff now timely files this Complaint.
il PARTIES
12 4 She attended
Plaintiff is minor female who is domiciled in San Jose, California.
13 UNION SCHOOL DISTRICT
Piedmont Middle School, which is part of the BERRYESSA
14
(hereinafter sometimes referred to as “the District”) for sixth, seventh and part of eighth grades. Her
15
mother M.A, is her Guardian Ad Litem. Plaintiff is filing her claim as A.M. in order to protect her
16
identity as she is a minor and a victim of bullying and sexual harassment and because there is a risk
17
of retaliatory physical and mental harm to her if her true identity is revealed to the public. See Doe
18 If Defendants have any
y. Lincoln Unified School District (2010) 188 Cal. App. 4'" 758, 765-768.
19
doubt of the identity of Plaintiff they may contact the office of Plaintiff's counsel (the undersigned)
20 and her name will be immediately provided.
21 5 Plaintiff is informed and believes that the District is a public school district serving
22 students in San Jose, California.
23 6 Plaintiff is informed and believes, and thereon alleges, that, at all times herein
24
mentioned, defendants the District and/or Does 1 to 50 knew, or should have known, of the rampant
25
bullying, sexual harassment, and unsafe learning environment at Piedmont Middle School and in the
26
District, and failed to take immediate, appropriate corrective action despite knowledge of such.
27 7 Plaintiff is informed and believes, and thereon alleges, that, at all times herein
28
mentioned, each of the Defendants was the agent, employee, servant, and joint venturer of each of
2
Complaint for Damages
the remaining Defendants, and that, in doing the things hereafter alleged, was acting within the
course, scope, and authority of such agency, employment, and joint venture, and with the consent
and permission of each of the other Defendants. Plaintiff is further informed and believes, and
thereon alleges, that the officers, directors, and/or managing agents of the entity Defendants
authorized, approved of, and/or ratified all actions of each of the other Defendants as set forth
herein.
8 Plaintiff is informed and believes, and thereon alleges, that the managerial or
supervisory employees described herein, and the Doe defendants, and the other employees, were the
agents, servants, and employees of each of the Defendant entities named herein, and, in doing the
10
things herein alleged, were acting in a managerial or supervisory capacity within the scope of their
i
authority, or, if said conduct was outside the scope of their authority, said conduct was known to,
12
authorized by, and/or ratified by the other Defendants.
13
9 Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as
14 Plaintiff will
Does 1 to 50, inclusive, and, therefore, sue said Defendants by such fictitious names.
15
seek leave of court to amend this Complaint, or file an amendment to complaint, to allege their true
16 Plaintiff is informed and believes, and
names and capacities when the same have been ascertained.
17
thereon alleges, that each of the fictitiously-named Defendants is responsible in some actionable
18
manner for the acts, conduct, and/or omissions complained of herein, which resulted in injury and
19
damage to Plaintiff and were the legal cause of the same.
20 FACTUAL ALLEGATIONS
21
10. In the fall of 2015, Plaintiff started attending Piedmont Middle School in the sixth
22
grade. When she started seventh grade the following year, in the fall of 2016, Plaintiff began to be
23 and sexual harassment by her peers,
subjected to unwanted, frequent, inappropriate bullying
24
including, but not limited to the following:
25
a. During Spirit Week, Plaintiff wore black and green clothes in celebration of St.
26
Patrick’s Day; when she entered a classroom, students called Plaintiff a “ho” and a
27 Plaintiff is informed and believes that the teacher, Ms.
“slut” and laughed at her.
28
Vasquez, heard the students call Plaintiff these names;
Complaint for Damages
Later that week, Plaintiff wore red, white and blue clothing, in celebration of Spirit
week; Plaintiff's peers again stared at her and laughed at her;
Plaintiff spoke to Melanie Santos, the school social worker; she said she was being
bullied and that students were making fun of her. Plaintiff complained about this
bullying to Ms. Santos on multiple occasions;
Students whispered and laughed when Plaintiff entered classrooms;
On one occasion, another student said that Plaintiff had “camel toe” because the waist
of her pants was high; thereafter students started calling Plaintiff “camel toe” and
laughed at her as they said this;
10
Another female student repeatedly made fun of Plaintiffs grades in front of other
i
students;
12
Another student called Plaintiff a “bitch” and “ho” and “dumb and stupid.” Plaintiff
13 When Plaintiff was in line for
ignored the student and the student became mad.
14
lunch, the student walked by and again called her a bitch;
15
Students called Plaintiff a “clown” “Sponge Bob Square Pants” “polka dot face”
16
“clown bitch” “slut” “ho” and other names to that effect, They said “look the circus
17
is coming” and “look there is the clown,” or words to that effect.
18
A student said that Plaintiff was not pretty or smart and the only thing that would get
19
her through life were her “big tits”;
20
Male students made inappropriate sexual gestures to Plaintiff imitating masturbation,
21
oral sex, and other sexual acts.
22
11. On one occasion, Plaintiff handed an Altoid mint to another student during class,
23
which Plaintiff did not believe was against the classroom policy; the teacher, Ryan Phillips saw
24 After the
Plaintiff’s classmate holding the Altoid, grabbed it, and asked her where she got it from.
25
student said Plaintiff, Mr. Phillips put a blue sticky note on the mint and said he was going to give it
26
to the Principal and Vice Principal since it may be drugs. Plaintiff showed him the Altoid container
27 When class ended,
which smelled like strawberry. Mr. Phillips told Plaintiff to stop talking.
28
Plaintiff went to the office; the Vice Principal, Thomas Carroll, asked Plaintiff why Mr. Phillips
4
Complaint for Damages
accused her of giving out drugs in front of the class. Mr. Carroll told Plaintiff not to hand Altoids
out because they look suspicious.
12. Sometimes, Mr. Phillips sent Plaintiff to see Ms. Santos, the social worker, because
he said she looked sad; he did this even when Plaintiff said she was not sad.
13. Plaintiff's science teacher, Emel Inam, would not give Plaintiff additional time to
work on projects in violation of her 504 Plan. Ms. Inam told Plaintiff her 504 Plan was just an
excuse, One time, Ms. Inam asked students who did not complete a certain project to stand up in
front of the class; Plaintiff did not stand up. Ms. Inam told Plaintiff to stand up and criticized her
and the other students who were standing, Ms. Inam then told Plaintiff to go do her work at a desk
10
and said she was not allowed to look up and would get in trouble if she looked up from the desk.
i
14. Plaintiff became so upset by this conduct, she started to skip school and become
12
physically ill. After six days of missing class, Ms. Santos called Plaintiff's mother, M.A., and told
13 Later that day, Plaintiff broke down crying to her
her Plaintiff had not been attending school.
14
mother and said she could not handle the bullying and wanted to transfer out of the school. She said
15
the students and staff were bullying her and no one was doing anything. Plaintiff said there was no
16
point in talking to Ms. Santos since she already did and it did not help.
17
15. Nevertheless, M.A. and Plaintiff met with Ms. Santos and explained that Plaintiff was
18
terrified to go to school since students were harassing her. They told Ms. Santos some of the many
19 Plaintiff believes she had already told Ms. Santos and
names Plaintiff was being called at school.
20
her counselor, Kylie Gomez, about this. At that point, Plaintiff was visiting Ms. Gomez almost daily
21
to report what was going on, including naming students who were bullying her. When she saw that
22
nothing was being done, Plaintiff stopped providing the names of the students.
23
16. On or around August 17, 2017, M.A. tried to switch Plaintiff to middle school outside
24 However, she was told the school was full and they would
the District, Orchard Middle School.
25 However, once Plaintiff started eighth grade at
have to wait to see if there were any openings.
26
Piedmont, the bullying continued. Plaintiff began going to the school nurse’s office with complaints
27
of abdomen pain, vomiting and shortness of breath. Plaintiff underwent medical testing to determine
28
the cause of her complaints, and was diagnosed with panic attacks.
Complaint for Damages
17. The students continued to make inappropriate sexual hand gestures to Plaintiff, One
boy approached Plaintiff and asked if she was a virgin; another boy asked Plaintiff if she
masturbated. Plaintiff is informed and believes that two of her teachers, Lornimita Umali and
Michael Saltzman heard these students making inappropriate, comments to Plaintiff but did not take
any steps to stop it,
18. A few weeks into the school year, Plaintiff had a 504 Plan meeting with all of her
teachers in addition to Ms. Santos and Vice Principal Mr. Carroll, Plaintiff was only missing a few
assignments and Ms. Santos discussed Plaintiff's medical diagnosis of Attention Deficit
Hyperactivity Disorder. Plaintiff explained that she was being bullied again that year. Ms. Santos
10
told Plaintiff to come in later that day to discuss the bullying.
11
19, When she met with Ms. Santos, Plaintiff provided the names of the boys who were
12
harassing her and described what they were doing, She said that the frequency of their inappropriate
13 Plaintiff did not
comments was increasing and the boys’ friends would laugh and encourage them.
14
describe the gestures because Ms. Santos only asked about inappropriate comments. Ms. Santos said
15
she would talk to Ms. Umali and Ms. Umali would handle it. Ms. Santos said if she talked to the
16
boys about it she would not use Plaintiff's name.
17
20. Plaintiff told her physical education teacher, Mr. Saltzman, about the inappropriate
18 She told him she was being bullied
comments the boys were making in or around September 2017.
19 Plaintiff said that they were especially
and named the two boys who were the main perpetrators,
20
inappropriate in math class and in his class. He did not give Plaintiff any suggestions about what she
21
should do about it and Plaintiff does not believe he reported this complaint.
22
21. The next time Plaintiff went to Ms. Umali’s class, Ms. Umali asked Plaintiff in front
23
of the class how the two boys she identified could call her names when they sat on the other side of
24
the classroom. Ms. Umali said they could not possibly have done that. Plaintift was mortified and
25
just shook her head yes; Ms. Umali said that Plaintiff lied and she needed to go tell Ms. Santos that
26 Plaintiff did not tell Ms. Santos again
she had lied and take it back because it did not happen.
27
because after what happened with Ms. Umali she was afraid to complain about a teacher again and
28
thought it would just get worse. That same day, as Plaintiff was leaving class, the two boys who
6
‘Complaint for Damages
taunted her stood outside of the classroom with a large group of students and called Plaintiff a “slut”
“ho” and said she looked like a boy as she walked into the hall.
22. The next day, Plaintiff's stomach was causing her a lot of pain and she stayed home.
23. Plaintiff physical ailments worsened. Ms. Terry, the woman who worked in the front
office, told Plaintiff that she was just faking stomach aches to get out of class. Her accusations made
Plaintiff cry. Sometimes Plaintiff got anxiety attacks where she could not breathe. M.A. took
Plaintiff to the Emergency Room and to Urgent Care. Plaintiff was referred to a specialist and saw
her pediatrician.
24. The day after Ms. Umali humiliated Plaintiff in front of the class, the same two male
10
students called her a slut and a ho and made more sexual gestures to Plaintiff.
il Plaintiff was
25. Plaintiff’s grades were getting worse and her health was getting worse.
12
failing her classes. M.A. tried to email Plaintiffs teachers who told her to look online for
13 received information from Plaintiff's
information about Plaintiff's grades. Eventually, M.A.
14
teachers about which assignments Plaintiff was missing, but Ms. Umali did not respond to M.A.’s
15
emails or calls.
16
26. In or around early October 2017, M.A. and Plaintiff met with Ms. Santos to discuss
17
Plaintiff's grades and to figure out what work Plaintiff was missing from Ms. Umali’s class.
18
Plaintiff reported how Ms. Umali was treating her, Ms. Santos claimed this was the first she was
19
hearing about this but Plaintiff reminded her that they had previously discussed issues in Ms.
20
Umali’s class and that Plaintiff had already described the harassment she was experiencing from her
21
male peers and named them to Ms. Santos. Plaintiff said that Ms. Umali had called Plaintiff a liar in
22
front of the class claiming that the boys could not harass her because of where they were seated in
23
the room, and told Plaintiff to go to the office to take it back in front of the class. Plaintiff told Ms.
24
Santos she had not told her about this earlier because the last time Plaintiff complaint to Ms. Santos,
25
the problems did not get any better, instead the harassment escalated.
26
27. Plaintiff told Ms. Santos that Ms. Umali insisted that Plaintiff move her seat to sit
27
next to the same two boys Plaintiff had complained about earlier., Plaintiff also told Ms. Santos that
28
the boys’ harassment had escalated: they were now taunting Plaintiff by stating, “you want to fuck
7
Complaint for Damages
me” “you want to fuck someone,” or words to that effect, and making comments to Plaintiff that she
told Ms..
wanted to “give them blow jobs” “suck their dicks” and words to that effect. Plaintiff
Santos that the boys frequently made comments like these, especially in Ms. Umali’s and Mr.
Saltzman’s class where the teachers seemingly did not care. The boys also continued to make
inappropriate hand gestures to Plaintiff. When Plaintiff's mother heard this, she was livid and said
Plaintiff's
Plaintiff was not returning to Ms. Umali’s class. Mr. Carroll joined the meeting and
to that class.
mother reiterated what Plaintiff had just told them, and that Plaintiff could not return
who were
Plaintiff told Mr. Carroll she wanted to switch math teachers and she wanted the two boys
work
harassing her to be held accountable. Plaintiff explained that she was behind in her school
10 and
because of the harassment she was experiencing and the resulting pain she was in. Plaintiff
11
M.A. explained that some of her teachers were not permitting her to make up her work despite her
12
504 accommodation plan, and that teachers like Ms. Umali did not even respond to her emails to tell
13
her what work she was missing.
14
28. The following week, on or around October 9, 2017, Plaintiff and her parents met with
15 Plaintiff's parents were upset and said
the Principal, Ms. Garino and Vice Principal, Mr. Carroll.
16 of
that Plaintiff had lost a lot of weight, did not have an appetite, and had anxiety attacks because
17 going
what was happening at school. They said that Plaintiff had been afraid to discuss what was
18 a worse situation.
on, and once she did, Ms. Umali embarrassed her in front of the class and created
19
Plaintiff's parents said something had to be done. Ms. Garino and Mr. Carroll said they would talk
20 They
to the boys; Plaintiff's parents said they wanted the boys to be pulled out of Plaintiff's classes.
21 told
said they would have to go to the District administration if this was not addressed. Ms. Garino
22
Ms. Santos to get a written statement from Plaintiff about what she could remember and said they
23
would hold the boys accountable.
24
29. Thereafter, when Plaintiff saw the boys who had harassed her, they rolled their eyes
25 ed
at her, or mouthed “wow” and laughed at her. While two of the five boys Plaintiff had complain
26 One time,
about were pulled from her classes, she still saw them at lunch and between classes.
27 at
Plaintiff's parents were in the school office and two of the boys passed by the office and laughed
28
them.
Complaint for Damages
30. Plaintiff attempted to complete her homework but was in pain while she worked. A
few days after meeting with the Principal and others, Plaintiff's physical education teacher, Brady
Fischer told Plaintiff that if all of her grades were not above Cs she would be cut from the basketball
team and would not be able to participate in the cross-country finals, even though she was one of
he
only two students in her school who qualified for the finals. When Mr. Fischer told Plaintiff this,
took her uniform away from her in front of the other students in the class.
31. Later, Plaintiff explained to Mr. Fischer that she had turned in her assignments to Mr.
Carroll, as she was supposed to, she just had not yet received credit for the work. Despite her pain,
Plaintiff was determined to participate in sports, which was one of few activities she enjoyed. When
10
Plaintiff learned she might be not able to compete in cross-country she called her mother hysterically
il Plaintiff and M.A. then told Mr.
crying. She told her mother what happened with Mr. Fischer.
12
Fischer about the sexual harassment she was experiencing and she said she was trying her best but
13
she just needed to get credit from the teachers who would grade the work she had turned in.
14
32. Mr. Fischer told Plaintiff and M.A. that the teachers and physical education staff met
15 He told Plaintiff it
and decided that students with grades below Cs could not participate in sports.
16 papers at the drop of a hat; he said it is a hard
was not the teachers’ responsibility to grade Plaintiff's
17
world and if he made an exception for Plaintiff he would have to make an exception for everyone.
18
Mr. Fischer told Plaintiff he was going to make an example of her.
19
33. M.A. said Plaintiff was a sick 13-year-old girl who had worked really hard and did
20
not let her experiences defeat her. M.A. said this would be devastating to Plaintiff, who broke down
21
crying saying that she could not make anything right and felt defeated, Mr. Fischer again said it was
22.
not his problem, and if Plaintiff's grades were not Cs she could not participate in the cross-country
23
finals.
24 There
34, A few days later, Ms. Garino and Mr, Carroll called Plaintiff into the office.
25 When she did, they
they screamed at her and told her to take her work out of her backpack.
26
slammed it on the desk. Mr. Carroll gave Plaintiff a pencil and told her to write something down
27
because he wanted to compare her handwriting to the handwriting of homework she had handed in.
28
He asked Plaintiff if anyone did her homework for her and she said no. Plaintiff panicked and froze
9
Complaint for Damages ,
Plaintiff's
up. In that moment she forgot that on one occasion, Plaintiff's mother had handwritten
write.
answers (which Plaintiff dictated) because Plaintiff was in too much physical pain to
35. Mr. Carroll yelled at Plaintiff and said since she did not want to tell the truth she
.
would get a zero on this paper and all the work she had done, even work she had not yet submitted
while
Plaintiff could not think clearly to explain. She called her mother from the nurse’s office
that
hysterically crying. M.A. asked why Plaintiff did not explain that M.A. wrote the answers
Plaintiff gave her. Plaintiff said she froze up and they did not let her explain.
36. In ot around mid-October 2017, Plaintiff and M.A. met with Ms. Garino and Mr.
assignment by
Carroll. M.A explained that Plaintiff did not cheat, but that M.A. had helped with one
10 stated
writing Plaintiff's answers as she dictated them because Plaintiff was in so much pain. M.A
lt answered the
that Plaintiff had well-documented medical issues and reiterated that Plaintiff had
12 suggested
questions herself and M.A. had not even read the book herself to know the answers. M.A.
13 she
that they test her there to prove she could answer the questions herself. Ms. Garino refused;
14 Garino
said they had wasted too many hours on Plaintiff already and she would still get zeros. Ms.
45 Plaintiff
aid they needed to move forward and Plaintiff needed to do her own work. M.A. said if
16 and would be cut
received all zeros she would fail her classes, would not be able to fix her grades,
17 grades
from her sports teams, Ms. Garino said Plaintiff had the rest of the semester to improve her
18 they were
and it was not her problem if Plaintiff was cut from her sports teams. M.A. protested that
19
not giving Plaintiff a chance to succeed despite her hard work,
20 The
37. That day, Plaintiff's parents went to the District’s administration office.
21 d a
Superintendent was out of the office, so they spoke to an Administrative Assistant and requeste
22 had been
transfer for Plaintiff to another school in the District. They described in detail what
23
happening to Plaintiff at Piedmont Middle School. The meeting lasted about two hours.
24
38. Not having heard back from the District about the transfer, Plaintiff decided to return
25 was at
to school for the last two days of the week to say goodbye to her friends. The final day she
26 was
school, Plaintiff was told to go to the Principal’s office. The seventh grade basketball coach
27 if Plaintiff
there as well. Ms. Garino demanded that Plaintiff hand over her bag demanding to know
28 of taking
had anything in her bag that did not belong to her. Apparently, Plaintiff was being accused
10
Complaint for Damages
money, identification, and other documents out of the basketball coach’s bag. The coach said that
had seen
after practice the day earlier, things were missing from her bag; she said that students
Plaintiff at basketball practice that day. The coach said she would not get mad if Plaintiff told her
to do
what she knew; she just wanted her belongings returned to her. Plaintiff swore she had nothing
no idea who
with this, Plaintiff said she had gone to practice to say goodbye to her friends and had
took things from the coach’s bag.
I
39, Then, Ms, Garino turned to the coach as if Plaintiff was not there, and said, “See?
ility for
told you that she would lie about it and would not tell the truth; she does not take responsib
up to anything,”
what she does; all she does is lie and has other people lie for her and will never own
10 asked her
or words to that effect. Plaintiff reminded Ms. Garino that she was sitting right there, and
11 to call
not to speak about her that way and reiterated that she was telling the truth. Plaintiff asked
12 just defend Plaintiff
her mother; the Principal refused to let her call her mother stating that she would
13 They searched Plaintiff's backpack and there was
and lie for her to help her get out of trouble,
14 d the
nothing inside that did not belong to Plaintiff. The coach started to cry, and Plaintiff comforte
15 started
coach saying she was sorry that about her belongings. The coach explained she had just
16 them a
college and needed the papers and books that were taken. Ms. Garino said she would give
17 crying
minute and left the room. Plaintiff started crying as well. The coach asked Plaintiff if she was
18 for the
because she felt bad for her or because she had taken the items. Plaintiff said she felt sorry
19
coach,
20
40. Afterwards, Plaintiff went to Mr. Saltzman’s office and asked if she could call her
21
mother. She told M.A. what happened. Her mother came to pick her up and they went to the office
22 sister, who also attended the school, were leaving. They went to the
and said Plaintiff and Plaintif?’s
23 The next week, someone
District Office and spoke to a different staff person about what happened.
24 Two. days
from the District called and said they would have an investigator meet with Plaintiff.
25 Middle School,
later, on or atound October 25, 2017, Plaintiff and her sister started at Morrill
26 than Piedmont
another middle school in the District, which was 15 minutes farther from their house
27 She did not have any friends there,
Middle School, Plaintiff had great difficulty switching schools.
28
and felt targeted as the “new girl.” Her anxiety and stress continued.
11
Complaint for Damages
Al. Soon after, Plaintiff and her family met with an attorney, Lauren Becker, for a few
to
hours, who was the investigator hired by the District. Ms. Becker said she was neutral but refused
give M.A. a copy of the statement she was writing and said only the District would receive it, so she
did not seem neutral to Plaintiff and M.A.
42. Plaintiff and her family did not hear from the investigator. Plaintiff continued to have
or
panic attacks at home and at school. Plaintiff tried to return to Morrill after Christmas break on
around January 5, 2018. However, she got locked in the locker room alone during physical
education class and had a panic attack. Plaintiff and her family decided to withdraw Plaintiff from
the District.
10 FIRST CAUSE OF ACTION
11 n of
(Against Defendants Berryessa Union School District and Does 1-50 for Violatio
12 California Education Code § 234(b))
13
43. Plaintiff incorporates by this reference all the other allegations of this Complaint,
14
except those that are inconsistent with a cause of action for Violation of California Education Code
15
section 234(b).
16
10. On the times and place set forth above, Plaintiff was repeatedly bullied by other
17
students in the District.
18
il. The District and its employees, were obligated to protect students from bullying
19
pursuant to the California Safe Place to Learn Act, California Education Code §234(b) which
20 violence,
ensures “1ocal educational agencies continue to work to reduce discrimination, harassment,
21 have an
intimidation, and bullying.” Assembly Bill 9 Ch. 723, Seth’s Law, requires that the District
22 is
anti-bullying policy and follow a timeline when investigating student claims of bullying. Plaintiff
23
informed and believes that the District failed to adhere to its obligations under California law.
24
12. Plaintiff is informed and believes that Stefani Garino, Thomas Carroll, Lornimita
25 have
Umali, Michael Saltzman, Brady Fischer and Kayla Santos, among others, knew or should
26
known about the inappropriate comments and conduct directed towards Plaintiff, and were put on
27
notice of such conduct, but failed to take any steps to prevent further harm to minor students,
28
including Plaintiff, and/or failed to adequately supervise the students so as to ensure their safety,
12
Complaint
Preview
Mythily Sivarajah, SBN: 252494 Elana R. Jacobs, Esq., SBN: 303178 P. Ann Surapruik, Esq., SBN: 299231 WINER, BURRITT & TILLIS, LLP 1999 HARRISON STREET, SUITE 600 OAKLAND, CALIFORNIA 94612 Tel (510) 433-1000 Fax (510) 433-1001 Attorneys for Plaintiff AM., an individual, by and through her Guardian Ad Litem, M.A. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA — UNLIMITED JURISDICTION 10 11 A.M., an individual, by and through her Case No.: 18CV336716 12 Guardian ad Litem M.A.; (Unlimited Civil Case) 13 Plaintiff, DECLARATION OF ELANA R. JACOBS IN SUPPORT OF PLAINTIFF'S MOTION 14 TO COMPEL FURTHER RESPONSES Vv. FROM DEFENDANT BERRYESSA IS UNION SCHOOL DISTRICT BERRYESSA UNION SCHOOL DISTRICT, 16 a government entity; STEFANI GARINO, an Date: 4/16/2020 individual; THOMAS CARROLL, an Time: 9:00 a.m. 17 individual; LORNIMITA UMALI, an Dept. 21 individual; MELANIE SANTOS, an Honorable Thang N. Barrett 18 individual; and DOES 1-50, inclusive; 19 Defendants. Complaint Filed: 10/17/18 20 21 I, Elana Jacobs, declare: 22 1 I am an attorney at law duly admitted to practice before all the courts of 23 California. I am an associate attorney with Winer, Burritt & Tillis, LLP, attorneys of record 24 herein for Plaintiff A.M., an individual, by and through her Guardian ad Litem ("Plaintiff"). 25 Unless otherwise noted, I have personal knowledge of the matters set forth herein and, if called 26 as a witness, could and would testify competently thereto. 27 28 DECLARATION OF ELANA R. JACOBS IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES FROM DEFENDANT BERRYESSA UNION SCHOOL DISTRICT 1 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiff's Complaint For Damages that was filed with this Court on October 17, 2018. 3 Attached hereto as Exhibit B is a true and correct copy of Defendant Berryessa Union School District's ("Defendant") Answer to Plaintiff's Complaint. 4. Attached hereto as Exhibit C is a true and correct copy of Plaintiff's First Set of Requests for the Production of Documents which were propounded on March 5, 2019. 5 Attached hereto as Exhibit D is a true and correct copy of Defendant's Responses to Plaintiff's First Set of Production Requests, where were served on June 7, 2019. 6 Attached hereto as Exhibit E are true and correct copies of the meet and confer 10 correspondence between counsel that precipitated this motion. 7 1 Attached hereto as Exhibit F is a true and correct copy of Defendant's privilege 12 log pertaining to documents that are being withheld in connection with this motion. 13 8 Attached hereto as Exhibit G are Defendant's Responses to Plaintiff's Form 14 Interrogatories -- General - which were served on June 7, 2019. 15 9 Attached hereto as Exhibit H is a true and correct copy of a March 23, 2018 16 letter that Defendant wrote to Plaintiff's mother after conducting an investigation into Plaintiff's 17 claims. It contains numerous findings of fact that allegedly came directly out a third party 18 investigation that Defendant commissioned. 19 10. Attached hereto as Exhibit I is a true and correct copy of the Stipulated 20 Protective Order in this case that was entered by the Court on April 4, 2019. 21 11. Attached hereto as Exhibit J is a true and correct copy of a Stipulation reached 22 between the parties in which Defendant agreed to waive its objections based on privacy and the 23 FERPA with respect to Plaintiff's effort to recover certain student files. 24 I declare under penalty of perjury under the laws of the State of California that the 25 forgoing is true and correct and that this declaration was signed on February 12, 2020 in 26 Oakland, California. 27 By: 28 EL (NA JACOBS DECLARATION OF ELANA JACOBS IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES FROM DEFENDANT BERRYESSA UNION SCHOOL DISTRICT EXHIBIT A E-FILED 10/17/2018 2:52 PM AlexisS. McKenna, Esq., SBN: 197120 Clerk of Court Elana R. Jacobs, Esq., SBN: 303178 Superior Court of CA, WINER, MCKENNA, BURRITT & TILLIS, LLP County of Santa Clara 1999 HARRISON STREET, SUITE 600 18CV336716 OAKLAND, CALIFORNIA 94612 Reviewed By: E. Fang Tel (510) 433-1000 Fax (510) 433-1001 Attomeys for Plaintiff A.M., an individual, by and through her Guardian Ad Litem, M.A. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF SANTA CLARA A.M., an individual, by and through her Case No.: 18CV3367 16 10 Guardian ad Litem M.A. (Unlimited Civil Case) 11 Plaintiff, COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 12 Vv. 13 1 Violation of Cal, Education Code § BERRYESSA UNION SCHOOL DISTRICT, 234(b); 14 a government entity, STEFANI GARINO, an 2 Sexual Harassment- Violation of Cal. individual; THOMAS CARROLL, an Education Code §§ 200, 201 15 individual; LORNIMITA UMALT, an Negligence: individual; MELANIE SANTOS, an. Negligent Failure to Warn, Train and 16 individual; and DOES 1-50, inclusive: Educate 17 Negligent Hiring, Retention and Supervision; 18 Defendants Intentional Infliction of Emotional Distress. 19 20 21 Plaintiff A.M., an individual, by and through her Guardian Ad Litem, M.A. (hereinafter 22 sometimes referred to as “Plaintiff’) for her complaint against defendants BERRYESSA UNION 23 SCHOOL DISTRICT, STEFANI GARINO (who was erroneously named in Plaintiff's Notice of 24 Claim under Government Code Section 910 as “STEFANI GOMEZ”), THOMAS CARROLL, 25 LORNIMITA UMALI, MELANIE SANTOS (who was erroneously named in Plaintiffs Notice of 26 Claim under Government Code Section 910 as “KAYLA SANTOS), and DOES 1-50 (sometimes 27 collectively “Defendants”), alleges as follows: 28 Complaint for Damages JURISDICTION AND VENUE 1 Venue is proper because the injuries and wrongful acts occurred in Santa Clara County and because at least one defendant is domiciled in Santa Clara County, California. 2. Subject matter in this action is properly heard in this Court, as the action incorporates an amount in controversy as set forth in the complaint which exceeds $25,000.00. 3 On or around March 14, 2018, Plaintiff properly and timely presented her government tort claim in accordance with Government Code section 910 to the BERRYESSA UNION SCHOOL DISTRICT. The Governing Board of the BERRYESSA UNION SCHOOL DISTRICT rejected Plaintiff's claim on May 8, 2018 and sent Notice of Rejection of Claim to Plaintiff pursuant to 10 Government Code section 913 on May 10, 2018. Plaintiff now timely files this Complaint. il PARTIES 12 4 She attended Plaintiff is minor female who is domiciled in San Jose, California. 13 UNION SCHOOL DISTRICT Piedmont Middle School, which is part of the BERRYESSA 14 (hereinafter sometimes referred to as “the District”) for sixth, seventh and part of eighth grades. Her 15 mother M.A, is her Guardian Ad Litem. Plaintiff is filing her claim as A.M. in order to protect her 16 identity as she is a minor and a victim of bullying and sexual harassment and because there is a risk 17 of retaliatory physical and mental harm to her if her true identity is revealed to the public. See Doe 18 If Defendants have any y. Lincoln Unified School District (2010) 188 Cal. App. 4'" 758, 765-768. 19 doubt of the identity of Plaintiff they may contact the office of Plaintiff's counsel (the undersigned) 20 and her name will be immediately provided. 21 5 Plaintiff is informed and believes that the District is a public school district serving 22 students in San Jose, California. 23 6 Plaintiff is informed and believes, and thereon alleges, that, at all times herein 24 mentioned, defendants the District and/or Does 1 to 50 knew, or should have known, of the rampant 25 bullying, sexual harassment, and unsafe learning environment at Piedmont Middle School and in the 26 District, and failed to take immediate, appropriate corrective action despite knowledge of such. 27 7 Plaintiff is informed and believes, and thereon alleges, that, at all times herein 28 mentioned, each of the Defendants was the agent, employee, servant, and joint venturer of each of 2 Complaint for Damages the remaining Defendants, and that, in doing the things hereafter alleged, was acting within the course, scope, and authority of such agency, employment, and joint venture, and with the consent and permission of each of the other Defendants. Plaintiff is further informed and believes, and thereon alleges, that the officers, directors, and/or managing agents of the entity Defendants authorized, approved of, and/or ratified all actions of each of the other Defendants as set forth herein. 8 Plaintiff is informed and believes, and thereon alleges, that the managerial or supervisory employees described herein, and the Doe defendants, and the other employees, were the agents, servants, and employees of each of the Defendant entities named herein, and, in doing the 10 things herein alleged, were acting in a managerial or supervisory capacity within the scope of their i authority, or, if said conduct was outside the scope of their authority, said conduct was known to, 12 authorized by, and/or ratified by the other Defendants. 13 9 Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as 14 Plaintiff will Does 1 to 50, inclusive, and, therefore, sue said Defendants by such fictitious names. 15 seek leave of court to amend this Complaint, or file an amendment to complaint, to allege their true 16 Plaintiff is informed and believes, and names and capacities when the same have been ascertained. 17 thereon alleges, that each of the fictitiously-named Defendants is responsible in some actionable 18 manner for the acts, conduct, and/or omissions complained of herein, which resulted in injury and 19 damage to Plaintiff and were the legal cause of the same. 20 FACTUAL ALLEGATIONS 21 10. In the fall of 2015, Plaintiff started attending Piedmont Middle School in the sixth 22 grade. When she started seventh grade the following year, in the fall of 2016, Plaintiff began to be 23 and sexual harassment by her peers, subjected to unwanted, frequent, inappropriate bullying 24 including, but not limited to the following: 25 a. During Spirit Week, Plaintiff wore black and green clothes in celebration of St. 26 Patrick’s Day; when she entered a classroom, students called Plaintiff a “ho” and a 27 Plaintiff is informed and believes that the teacher, Ms. “slut” and laughed at her. 28 Vasquez, heard the students call Plaintiff these names; Complaint for Damages Later that week, Plaintiff wore red, white and blue clothing, in celebration of Spirit week; Plaintiff's peers again stared at her and laughed at her; Plaintiff spoke to Melanie Santos, the school social worker; she said she was being bullied and that students were making fun of her. Plaintiff complained about this bullying to Ms. Santos on multiple occasions; Students whispered and laughed when Plaintiff entered classrooms; On one occasion, another student said that Plaintiff had “camel toe” because the waist of her pants was high; thereafter students started calling Plaintiff “camel toe” and laughed at her as they said this; 10 Another female student repeatedly made fun of Plaintiffs grades in front of other i students; 12 Another student called Plaintiff a “bitch” and “ho” and “dumb and stupid.” Plaintiff 13 When Plaintiff was in line for ignored the student and the student became mad. 14 lunch, the student walked by and again called her a bitch; 15 Students called Plaintiff a “clown” “Sponge Bob Square Pants” “polka dot face” 16 “clown bitch” “slut” “ho” and other names to that effect, They said “look the circus 17 is coming” and “look there is the clown,” or words to that effect. 18 A student said that Plaintiff was not pretty or smart and the only thing that would get 19 her through life were her “big tits”; 20 Male students made inappropriate sexual gestures to Plaintiff imitating masturbation, 21 oral sex, and other sexual acts. 22 11. On one occasion, Plaintiff handed an Altoid mint to another student during class, 23 which Plaintiff did not believe was against the classroom policy; the teacher, Ryan Phillips saw 24 After the Plaintiff’s classmate holding the Altoid, grabbed it, and asked her where she got it from. 25 student said Plaintiff, Mr. Phillips put a blue sticky note on the mint and said he was going to give it 26 to the Principal and Vice Principal since it may be drugs. Plaintiff showed him the Altoid container 27 When class ended, which smelled like strawberry. Mr. Phillips told Plaintiff to stop talking. 28 Plaintiff went to the office; the Vice Principal, Thomas Carroll, asked Plaintiff why Mr. Phillips 4 Complaint for Damages accused her of giving out drugs in front of the class. Mr. Carroll told Plaintiff not to hand Altoids out because they look suspicious. 12. Sometimes, Mr. Phillips sent Plaintiff to see Ms. Santos, the social worker, because he said she looked sad; he did this even when Plaintiff said she was not sad. 13. Plaintiff's science teacher, Emel Inam, would not give Plaintiff additional time to work on projects in violation of her 504 Plan. Ms. Inam told Plaintiff her 504 Plan was just an excuse, One time, Ms. Inam asked students who did not complete a certain project to stand up in front of the class; Plaintiff did not stand up. Ms. Inam told Plaintiff to stand up and criticized her and the other students who were standing, Ms. Inam then told Plaintiff to go do her work at a desk 10 and said she was not allowed to look up and would get in trouble if she looked up from the desk. i 14. Plaintiff became so upset by this conduct, she started to skip school and become 12 physically ill. After six days of missing class, Ms. Santos called Plaintiff's mother, M.A., and told 13 Later that day, Plaintiff broke down crying to her her Plaintiff had not been attending school. 14 mother and said she could not handle the bullying and wanted to transfer out of the school. She said 15 the students and staff were bullying her and no one was doing anything. Plaintiff said there was no 16 point in talking to Ms. Santos since she already did and it did not help. 17 15. Nevertheless, M.A. and Plaintiff met with Ms. Santos and explained that Plaintiff was 18 terrified to go to school since students were harassing her. They told Ms. Santos some of the many 19 Plaintiff believes she had already told Ms. Santos and names Plaintiff was being called at school. 20 her counselor, Kylie Gomez, about this. At that point, Plaintiff was visiting Ms. Gomez almost daily 21 to report what was going on, including naming students who were bullying her. When she saw that 22 nothing was being done, Plaintiff stopped providing the names of the students. 23 16. On or around August 17, 2017, M.A. tried to switch Plaintiff to middle school outside 24 However, she was told the school was full and they would the District, Orchard Middle School. 25 However, once Plaintiff started eighth grade at have to wait to see if there were any openings. 26 Piedmont, the bullying continued. Plaintiff began going to the school nurse’s office with complaints 27 of abdomen pain, vomiting and shortness of breath. Plaintiff underwent medical testing to determine 28 the cause of her complaints, and was diagnosed with panic attacks. Complaint for Damages 17. The students continued to make inappropriate sexual hand gestures to Plaintiff, One boy approached Plaintiff and asked if she was a virgin; another boy asked Plaintiff if she masturbated. Plaintiff is informed and believes that two of her teachers, Lornimita Umali and Michael Saltzman heard these students making inappropriate, comments to Plaintiff but did not take any steps to stop it, 18. A few weeks into the school year, Plaintiff had a 504 Plan meeting with all of her teachers in addition to Ms. Santos and Vice Principal Mr. Carroll, Plaintiff was only missing a few assignments and Ms. Santos discussed Plaintiff's medical diagnosis of Attention Deficit Hyperactivity Disorder. Plaintiff explained that she was being bullied again that year. Ms. Santos 10 told Plaintiff to come in later that day to discuss the bullying. 11 19, When she met with Ms. Santos, Plaintiff provided the names of the boys who were 12 harassing her and described what they were doing, She said that the frequency of their inappropriate 13 Plaintiff did not comments was increasing and the boys’ friends would laugh and encourage them. 14 describe the gestures because Ms. Santos only asked about inappropriate comments. Ms. Santos said 15 she would talk to Ms. Umali and Ms. Umali would handle it. Ms. Santos said if she talked to the 16 boys about it she would not use Plaintiff's name. 17 20. Plaintiff told her physical education teacher, Mr. Saltzman, about the inappropriate 18 She told him she was being bullied comments the boys were making in or around September 2017. 19 Plaintiff said that they were especially and named the two boys who were the main perpetrators, 20 inappropriate in math class and in his class. He did not give Plaintiff any suggestions about what she 21 should do about it and Plaintiff does not believe he reported this complaint. 22 21. The next time Plaintiff went to Ms. Umali’s class, Ms. Umali asked Plaintiff in front 23 of the class how the two boys she identified could call her names when they sat on the other side of 24 the classroom. Ms. Umali said they could not possibly have done that. Plaintift was mortified and 25 just shook her head yes; Ms. Umali said that Plaintiff lied and she needed to go tell Ms. Santos that 26 Plaintiff did not tell Ms. Santos again she had lied and take it back because it did not happen. 27 because after what happened with Ms. Umali she was afraid to complain about a teacher again and 28 thought it would just get worse. That same day, as Plaintiff was leaving class, the two boys who 6 ‘Complaint for Damages taunted her stood outside of the classroom with a large group of students and called Plaintiff a “slut” “ho” and said she looked like a boy as she walked into the hall. 22. The next day, Plaintiff's stomach was causing her a lot of pain and she stayed home. 23. Plaintiff physical ailments worsened. Ms. Terry, the woman who worked in the front office, told Plaintiff that she was just faking stomach aches to get out of class. Her accusations made Plaintiff cry. Sometimes Plaintiff got anxiety attacks where she could not breathe. M.A. took Plaintiff to the Emergency Room and to Urgent Care. Plaintiff was referred to a specialist and saw her pediatrician. 24. The day after Ms. Umali humiliated Plaintiff in front of the class, the same two male 10 students called her a slut and a ho and made more sexual gestures to Plaintiff. il Plaintiff was 25. Plaintiff’s grades were getting worse and her health was getting worse. 12 failing her classes. M.A. tried to email Plaintiffs teachers who told her to look online for 13 received information from Plaintiff's information about Plaintiff's grades. Eventually, M.A. 14 teachers about which assignments Plaintiff was missing, but Ms. Umali did not respond to M.A.’s 15 emails or calls. 16 26. In or around early October 2017, M.A. and Plaintiff met with Ms. Santos to discuss 17 Plaintiff's grades and to figure out what work Plaintiff was missing from Ms. Umali’s class. 18 Plaintiff reported how Ms. Umali was treating her, Ms. Santos claimed this was the first she was 19 hearing about this but Plaintiff reminded her that they had previously discussed issues in Ms. 20 Umali’s class and that Plaintiff had already described the harassment she was experiencing from her 21 male peers and named them to Ms. Santos. Plaintiff said that Ms. Umali had called Plaintiff a liar in 22 front of the class claiming that the boys could not harass her because of where they were seated in 23 the room, and told Plaintiff to go to the office to take it back in front of the class. Plaintiff told Ms. 24 Santos she had not told her about this earlier because the last time Plaintiff complaint to Ms. Santos, 25 the problems did not get any better, instead the harassment escalated. 26 27. Plaintiff told Ms. Santos that Ms. Umali insisted that Plaintiff move her seat to sit 27 next to the same two boys Plaintiff had complained about earlier., Plaintiff also told Ms. Santos that 28 the boys’ harassment had escalated: they were now taunting Plaintiff by stating, “you want to fuck 7 Complaint for Damages me” “you want to fuck someone,” or words to that effect, and making comments to Plaintiff that she told Ms.. wanted to “give them blow jobs” “suck their dicks” and words to that effect. Plaintiff Santos that the boys frequently made comments like these, especially in Ms. Umali’s and Mr. Saltzman’s class where the teachers seemingly did not care. The boys also continued to make inappropriate hand gestures to Plaintiff. When Plaintiff's mother heard this, she was livid and said Plaintiff's Plaintiff was not returning to Ms. Umali’s class. Mr. Carroll joined the meeting and to that class. mother reiterated what Plaintiff had just told them, and that Plaintiff could not return who were Plaintiff told Mr. Carroll she wanted to switch math teachers and she wanted the two boys work harassing her to be held accountable. Plaintiff explained that she was behind in her school 10 and because of the harassment she was experiencing and the resulting pain she was in. Plaintiff 11 M.A. explained that some of her teachers were not permitting her to make up her work despite her 12 504 accommodation plan, and that teachers like Ms. Umali did not even respond to her emails to tell 13 her what work she was missing. 14 28. The following week, on or around October 9, 2017, Plaintiff and her parents met with 15 Plaintiff's parents were upset and said the Principal, Ms. Garino and Vice Principal, Mr. Carroll. 16 of that Plaintiff had lost a lot of weight, did not have an appetite, and had anxiety attacks because 17 going what was happening at school. They said that Plaintiff had been afraid to discuss what was 18 a worse situation. on, and once she did, Ms. Umali embarrassed her in front of the class and created 19 Plaintiff's parents said something had to be done. Ms. Garino and Mr. Carroll said they would talk 20 They to the boys; Plaintiff's parents said they wanted the boys to be pulled out of Plaintiff's classes. 21 told said they would have to go to the District administration if this was not addressed. Ms. Garino 22 Ms. Santos to get a written statement from Plaintiff about what she could remember and said they 23 would hold the boys accountable. 24 29. Thereafter, when Plaintiff saw the boys who had harassed her, they rolled their eyes 25 ed at her, or mouthed “wow” and laughed at her. While two of the five boys Plaintiff had complain 26 One time, about were pulled from her classes, she still saw them at lunch and between classes. 27 at Plaintiff's parents were in the school office and two of the boys passed by the office and laughed 28 them. Complaint for Damages 30. Plaintiff attempted to complete her homework but was in pain while she worked. A few days after meeting with the Principal and others, Plaintiff's physical education teacher, Brady Fischer told Plaintiff that if all of her grades were not above Cs she would be cut from the basketball team and would not be able to participate in the cross-country finals, even though she was one of he only two students in her school who qualified for the finals. When Mr. Fischer told Plaintiff this, took her uniform away from her in front of the other students in the class. 31. Later, Plaintiff explained to Mr. Fischer that she had turned in her assignments to Mr. Carroll, as she was supposed to, she just had not yet received credit for the work. Despite her pain, Plaintiff was determined to participate in sports, which was one of few activities she enjoyed. When 10 Plaintiff learned she might be not able to compete in cross-country she called her mother hysterically il Plaintiff and M.A. then told Mr. crying. She told her mother what happened with Mr. Fischer. 12 Fischer about the sexual harassment she was experiencing and she said she was trying her best but 13 she just needed to get credit from the teachers who would grade the work she had turned in. 14 32. Mr. Fischer told Plaintiff and M.A. that the teachers and physical education staff met 15 He told Plaintiff it and decided that students with grades below Cs could not participate in sports. 16 papers at the drop of a hat; he said it is a hard was not the teachers’ responsibility to grade Plaintiff's 17 world and if he made an exception for Plaintiff he would have to make an exception for everyone. 18 Mr. Fischer told Plaintiff he was going to make an example of her. 19 33. M.A. said Plaintiff was a sick 13-year-old girl who had worked really hard and did 20 not let her experiences defeat her. M.A. said this would be devastating to Plaintiff, who broke down 21 crying saying that she could not make anything right and felt defeated, Mr. Fischer again said it was 22. not his problem, and if Plaintiff's grades were not Cs she could not participate in the cross-country 23 finals. 24 There 34, A few days later, Ms. Garino and Mr, Carroll called Plaintiff into the office. 25 When she did, they they screamed at her and told her to take her work out of her backpack. 26 slammed it on the desk. Mr. Carroll gave Plaintiff a pencil and told her to write something down 27 because he wanted to compare her handwriting to the handwriting of homework she had handed in. 28 He asked Plaintiff if anyone did her homework for her and she said no. Plaintiff panicked and froze 9 Complaint for Damages , Plaintiff's up. In that moment she forgot that on one occasion, Plaintiff's mother had handwritten write. answers (which Plaintiff dictated) because Plaintiff was in too much physical pain to 35. Mr. Carroll yelled at Plaintiff and said since she did not want to tell the truth she . would get a zero on this paper and all the work she had done, even work she had not yet submitted while Plaintiff could not think clearly to explain. She called her mother from the nurse’s office that hysterically crying. M.A. asked why Plaintiff did not explain that M.A. wrote the answers Plaintiff gave her. Plaintiff said she froze up and they did not let her explain. 36. In ot around mid-October 2017, Plaintiff and M.A. met with Ms. Garino and Mr. assignment by Carroll. M.A explained that Plaintiff did not cheat, but that M.A. had helped with one 10 stated writing Plaintiff's answers as she dictated them because Plaintiff was in so much pain. M.A lt answered the that Plaintiff had well-documented medical issues and reiterated that Plaintiff had 12 suggested questions herself and M.A. had not even read the book herself to know the answers. M.A. 13 she that they test her there to prove she could answer the questions herself. Ms. Garino refused; 14 Garino said they had wasted too many hours on Plaintiff already and she would still get zeros. Ms. 45 Plaintiff aid they needed to move forward and Plaintiff needed to do her own work. M.A. said if 16 and would be cut received all zeros she would fail her classes, would not be able to fix her grades, 17 grades from her sports teams, Ms. Garino said Plaintiff had the rest of the semester to improve her 18 they were and it was not her problem if Plaintiff was cut from her sports teams. M.A. protested that 19 not giving Plaintiff a chance to succeed despite her hard work, 20 The 37. That day, Plaintiff's parents went to the District’s administration office. 21 d a Superintendent was out of the office, so they spoke to an Administrative Assistant and requeste 22 had been transfer for Plaintiff to another school in the District. They described in detail what 23 happening to Plaintiff at Piedmont Middle School. The meeting lasted about two hours. 24 38. Not having heard back from the District about the transfer, Plaintiff decided to return 25 was at to school for the last two days of the week to say goodbye to her friends. The final day she 26 was school, Plaintiff was told to go to the Principal’s office. The seventh grade basketball coach 27 if Plaintiff there as well. Ms. Garino demanded that Plaintiff hand over her bag demanding to know 28 of taking had anything in her bag that did not belong to her. Apparently, Plaintiff was being accused 10 Complaint for Damages money, identification, and other documents out of the basketball coach’s bag. The coach said that had seen after practice the day earlier, things were missing from her bag; she said that students Plaintiff at basketball practice that day. The coach said she would not get mad if Plaintiff told her to do what she knew; she just wanted her belongings returned to her. Plaintiff swore she had nothing no idea who with this, Plaintiff said she had gone to practice to say goodbye to her friends and had took things from the coach’s bag. I 39, Then, Ms, Garino turned to the coach as if Plaintiff was not there, and said, “See? ility for told you that she would lie about it and would not tell the truth; she does not take responsib up to anything,” what she does; all she does is lie and has other people lie for her and will never own 10 asked her or words to that effect. Plaintiff reminded Ms. Garino that she was sitting right there, and 11 to call not to speak about her that way and reiterated that she was telling the truth. Plaintiff asked 12 just defend Plaintiff her mother; the Principal refused to let her call her mother stating that she would 13 They searched Plaintiff's backpack and there was and lie for her to help her get out of trouble, 14 d the nothing inside that did not belong to Plaintiff. The coach started to cry, and Plaintiff comforte 15 started coach saying she was sorry that about her belongings. The coach explained she had just 16 them a college and needed the papers and books that were taken. Ms. Garino said she would give 17 crying minute and left the room. Plaintiff started crying as well. The coach asked Plaintiff if she was 18 for the because she felt bad for her or because she had taken the items. Plaintiff said she felt sorry 19 coach, 20 40. Afterwards, Plaintiff went to Mr. Saltzman’s office and asked if she could call her 21 mother. She told M.A. what happened. Her mother came to pick her up and they went to the office 22 sister, who also attended the school, were leaving. They went to the and said Plaintiff and Plaintif?’s 23 The next week, someone District Office and spoke to a different staff person about what happened. 24 Two. days from the District called and said they would have an investigator meet with Plaintiff. 25 Middle School, later, on or atound October 25, 2017, Plaintiff and her sister started at Morrill 26 than Piedmont another middle school in the District, which was 15 minutes farther from their house 27 She did not have any friends there, Middle School, Plaintiff had great difficulty switching schools. 28 and felt targeted as the “new girl.” Her anxiety and stress continued. 11 Complaint for Damages Al. Soon after, Plaintiff and her family met with an attorney, Lauren Becker, for a few to hours, who was the investigator hired by the District. Ms. Becker said she was neutral but refused give M.A. a copy of the statement she was writing and said only the District would receive it, so she did not seem neutral to Plaintiff and M.A. 42. Plaintiff and her family did not hear from the investigator. Plaintiff continued to have or panic attacks at home and at school. Plaintiff tried to return to Morrill after Christmas break on around January 5, 2018. However, she got locked in the locker room alone during physical education class and had a panic attack. Plaintiff and her family decided to withdraw Plaintiff from the District. 10 FIRST CAUSE OF ACTION 11 n of (Against Defendants Berryessa Union School District and Does 1-50 for Violatio 12 California Education Code § 234(b)) 13 43. Plaintiff incorporates by this reference all the other allegations of this Complaint, 14 except those that are inconsistent with a cause of action for Violation of California Education Code 15 section 234(b). 16 10. On the times and place set forth above, Plaintiff was repeatedly bullied by other 17 students in the District. 18 il. The District and its employees, were obligated to protect students from bullying 19 pursuant to the California Safe Place to Learn Act, California Education Code §234(b) which 20 violence, ensures “1ocal educational agencies continue to work to reduce discrimination, harassment, 21 have an intimidation, and bullying.” Assembly Bill 9 Ch. 723, Seth’s Law, requires that the District 22 is anti-bullying policy and follow a timeline when investigating student claims of bullying. Plaintiff 23 informed and believes that the District failed to adhere to its obligations under California law. 24 12. Plaintiff is informed and believes that Stefani Garino, Thomas Carroll, Lornimita 25 have Umali, Michael Saltzman, Brady Fischer and Kayla Santos, among others, knew or should 26 known about the inappropriate comments and conduct directed towards Plaintiff, and were put on 27 notice of such conduct, but failed to take any steps to prevent further harm to minor students, 28 including Plaintiff, and/or failed to adequately supervise the students so as to ensure their safety, 12 Complaint