Holguin v. Golden Plains Unified School District ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 Tan Holguin, No. 2:20-CV-00292-KJM-CKD 1] Plaintiff, ORDER 12 v. 13 Golden Plains Unified School District, and 14 Vince Gonzalez, an individual, 15 Defendants. 16 17 This matter is before the court on defendants’ motion to dismiss. Plaintiff Ian Holguin 18 | alleges defendants Golden Plains Unified School District (GPUSD) and Principal Vince Gonzalez 19 | (collectively “defendants”) were unresponsive to his needs for assistance in response to the peer 20 | bullying he experienced while attending Tranquility High School. The motion is granted in 21 | part and denied in part. 22 | I. BACKGROUND 23 Holguin is eighteen years old. First Am. Compl. §/ 1, ECF No. 19. He identifies his 24 | specific disability as a learning and socialization handicap. Jd. § 38. Since May 2012, Holguin 25 | has qualified under the category of “Specific Learning Disability” to receive special education 26 | and related services at school. Jd. 4/1. His disability significantly impacts his appearance and 27 | gestures, as well as his ability to read, speak and relate to others socially. Id. 28 | ///// 1 During the 2017–18 and 2018–19 school years, Holguin attended Tranquility High School 2 for grades nine and ten. Id. ¶ 8. Tranquility High School is within the GPUSD’s jurisdiction. Id. 3 As a public entity, GPUSD receives federal funding for its educational programs. Id. ¶¶ 3 & 7. 4 Throughout his ninth-grade year, Holguin experienced “extreme, unrelenting, and 5 unprovoked” physical and verbal peer bullying. Id. ¶¶ 1 & 11. His shy and quiet nature initially 6 made it difficult for him to report the constant peer abuse he experienced. Id. ¶¶ 11–12. He felt 7 embarrassed and humiliated. Id. ¶ 11. As the bullying escalated throughout his ninth-grade year, 8 it “substantially impacted” his equal access to educational programs and activities. Id. ¶ 12. His 9 grade point average (GPA) declined from 3.14 to 2.50. Id. 10 On April 20, 2018, Holguin’s math teacher reported to the school psychologist she had 11 witnessed Holguin being bullied, excluded and verbally harassed by other students in her 12 classroom. Id. ¶ 13. She reported he was “not accepted by his classroom peers.” Id. She 13 notified the GPUSD, through the school psychologist, of the impact the peer bullying was having 14 on Holguin, including his diminished effort in classroom activities and lack of coping ability. Id. 15 ¶¶ 13–14. The school psychologist also reported that Holguin had better success in more 16 “controlled, or structured environments.” Id. ¶ 14. As an institution, the GPUSD was 17 unresponsive. See id. 18 That same month, Holguin’s mother, M. A., gave notice at an individual education 19 program (IEP) meeting that Holguin was negatively impacted by peers taunting him repeatedly 20 because of his disability. Id. ¶ 15. In response, the school psychologist offered Holguin seven 21 extra counseling sessions for the weeks between April and the end of the school year. Id. ¶ 16. 22 During the seven-week period, Holguin attended informal counseling sessions with GPUSD staff. 23 Id. ¶ 17. He informed GPUSD staff of the physical and verbal bullying in one of his classes. Id. 24 GPUSD took no action to address Holguin’s concerns. Id. Holguin continued to fear attending 25 school and using the restroom at school; he complained of stomach aches and headaches. 26 Id. ¶ 18. 27 During a school hearing, M.A. reported Holguin’s behavior at home as severely 28 withdrawn, depressive and “markedly different from the jovial child” he was before. Id. ¶ 19. 1 She reported finding Holguin in his bedroom “perseverating” due to being picked on and 2 excluded at school. Id. 3 In the Fall of 2018, Holguin confided in his case manager at GPUSD, Mr. Robert Hill, 4 that he was afraid to attend two of his classes because he felt excluded and unsafe. Id. ¶ 20. He 5 also reported being subjected to physical and verbal abuse at school. Id. He also disclosed that 6 peers had encouraged him to kill himself. Id. ¶¶ 21–22. He experienced suicidal ideation 7 because he felt he did not belong. Id. Mr. Hill informed M.A., the GPUSD’s special education 8 coordinator, and Tranquility High’s site counselor about Holguin’s suicidal ideation. Id. ¶ 22. In 9 a separate meeting, Holguin also disclosed to his school counselor, Jessica Rios, his plan to 10 commit suicide by “overdo[sing] on pills.” Id. ¶ 23. Ms. Rios did not request a risk assessment 11 in response to Holguin’s plan. Id. 12 By November 7, 2018, he had failed four of seven classes. Id. He was behind in more 13 than thirty assignments and had a 1.0 GPA. Id. In November 13, 2018, at a meeting with 14 Gonzalez and GPUSD’s superintendent and special education coordinator, M.A. expressed 15 concern the GPUSD had not completed any risk assessment or investigation to address Holguin’s 16 reports of pervasive bullying. Id. ¶ 24. A couple weeks later, at a follow-up meeting with 17 GPUSD, M.A. expressed concern no investigation ever occurred. Id. ¶ 26. 18 On March 21, 2019, a peer hit Holguin with an apple, leaving remnants on his face. Id. 19 ¶ 30. Although a teacher witnessed the incident, GPUSD staff did not take action to remedy the 20 situation. Id. Holguin was absent from school for 17 full-days and 5 partial-days, from January 21 to April of 2019. Id. ¶ 30. He refused to attend school and routinely missed turning in homework 22 assignments. Id. ¶ 28. On May 2019, Holguin informed M.A. that he did not want to go to 23 school because he was afraid to face his peers’ aggressive glares, what plaintiff describes as being 24 “mad-dogged.” Id. ¶ 31. Holguin did not return to school through the end of the 2018–19 school 25 year. Id. ¶ 32. In August 2019, at an IEP meeting Holguin was assigned to home instruction. Id. 26 ¶ 35. 27 On April 2, 2019, an administrative law judge with California’s Office of Administrative 28 Hearings (OAH) ordered Holguin to receive therapy to mitigate the trauma he suffered at 1 Tranquility High School as a result of the pervasive bullying he experienced. Id. ¶ 36; Mot. to 2 Dismiss, Req. Judicial Notice Ex. A at 4, ECF No. 24-2. By virtue of taking the matter to hearing 3 before the administrative law judge, Holguin avers he complied with exhaustion requirements for 4 administrative remedies before filing his complaint in this court. First Am. Compl. ¶ 7. 5 Holguin asserts five claims against defendants: (1) violation of the Rehabilitation Act, 6 § 504 against GPUSD; (2) violation of Title II of the Americans with Disabilities Act (ADA) 7 against GPUSD; (3) negligence against Gonzalez; (4) negligent training and supervision against 8 Gonzalez; and (5) violation of implementing regulations of the Rehabilitation Act, § 504 against 9 GPUSD. Id. ¶¶ 37−65. Defendants move to dismiss Holguin’s claims under Federal Rules of 10 Civil Procedure 12(b)(1) and 12(b)(6). Mot. to Dismiss (MTD) at 2, ECF No. 24. Defendants’ 11 request for judicial notice of the April 2, 2019 decision from the OAH is GRANTED. Id. & Ex. 12 A, ECF No. 24-2; Fed. R. Evid. 201. Holguin opposes the motion to dismiss. Opp’n, ECF No. 13 27. Defendants have replied, Reply, ECF No. 31. The court resolves the motion below. 14 The court need not reach defendants’ arguments to dismiss claims 1 and 3 against 15 Gonzalez on grounds the court lacks subject-matter jurisdiction under Rule 12(b)(1). “[A] claim 16 of . . . immunity is properly brought as a motion to dismiss under Rule 12(b)(6), not Rule 17 12(b)(1).” Williams v. Cty., No. 2:15-CV-01760, 2016 WL 4745179, at *3 (D. Or. Sept. 12, 18 2016) (internal quotations omitted). The court grants plaintiff the opportunity to amend the 19 complaint, applying Federal Rule of Civil Procedure 12(b)(6). See May Dept. Store v. Graphic 20 Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980). 21 II. LEGAL STANDARD 22 A party may move to dismiss for “failure to state a claim upon which relief can be 23 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a 24 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 25 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court 26 assumes all factual allegations are true and construes “them in the light most favorable to the 27 nonmoving party.” Steinle v. City & Cty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). 28 ///// 1 If the complaint’s allegations do not “plausibly give rise to an entitlement to relief,” the motion 2 must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 3 A complaint need contain only a “short and plain statement of the claim showing that the 4 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 6 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 7 678. In the same vein, conclusory or formulaic recitations elements do not alone suffice. Id. 8 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task 9 drawing on “judicial experience and common sense.” Id. at 679. 10 III. DISCUSSION 11 A. Liability of GPUSD 12 Defendants argue the court should dismiss Holguin’s claims 1, 2 and 5 against the 13 GPUSD on three grounds: (1) Holguin has not established his disability in his pleadings; (2) the 14 GPUSD employees had no knowledge of any bullying because Holguin did not disclose the 15 details of those encounters; and (3) there is no nexus between allegations of the peer-to-peer 16 bullying and Holguin’s alleged disability. MTD at 8−10, 15–16. 17 The ADA and the Rehabilitation Act § 504 “prohibit[] public entities from discriminating 18 against people with disabilities by denying them access to or participation in that entity’s benefits, 19 services, and programs.” Wormuth v. Lammersville Union School District, 305 F. Supp. 3d 1108, 20 1124 (E.D. Cal. Jan. 22, 2018). To state a claim under these Acts, plaintiff must allege: (1) he is 21 an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit 22 of some public entity’s services, programs, or activities; (3) he was either excluded from 23 participation in or denied the benefits of the public entity’s services, programs, or activities, or 24 was otherwise discriminated against by the public entity; and (4) the district receives financial 25 assistance (for a Rehabilitation Act claim) or is a public entity (for an ADA claim). Id. 26 1. Claims 1 and 2 27 Holguin’s pleadings satisfy the first, second and fourth prongs of the ADA and 28 Rehabilitation Act claims he asserts. See I.V. v. Vacaville, No. 19-273, 2018 WL 820169, at *9 1 (E.D. Cal. Feb. 19, 2020) (finding plaintiff with autism sufficiently stated disability claim based 2 on being denied benefits at her public school when bullied and harassed by other students.). 3 Here, Holguin has qualified for special education and related services at GPUSD since 2012 4 based on his disability, which he identifies as a learning and socialization handicap. First Am. 5 Compl. ¶ 38. As a public entity, GPUSD receives federal funding to provide educational services 6 to its students. Id. ¶ 3. 7 To meet the third prong, he alleges confiding in his case manager, Mr. Robert Hill, that he 8 was afraid to attend two of his classes because he felt excluded and unsafe. Id. ¶ 20. He also 9 disclosed that peers had encouraged him to kill himself. Id. ¶¶ 21–22. He experienced suicidal 10 ideation because he felt he did not belong. Id. On March 21, 2019, a peer hit Holguin with an 11 apple, leaving remnants on his face. Id. ¶ 30. Although a teacher witnessed and reported the 12 incident, GPUSD staff did not take action to remedy the situation. Id. Holguin ended up refusing 13 to attend school and routinely missed turning in homework assignments. Id. ¶ 28. In May 2019, 14 Holguin informed M.A. that he did not want to go to school because he was afraid to face his 15 peers’ aggressive glares, what plaintiff refers to as being “mad-dogged.” Id. ¶ 31. 16 In Wormuth v. Lammersville Union Sch. Dist., this court explained the two potential 17 theories of liability a plaintiff may invoke in pleading the third prong when, as here, a public 18 school student with a qualifying disability sues the school district because of peer bullying: the 19 district either “(1) failed to respond to known disability-based bullying or (2) refused to make 20 ‘reasonable accommodations’ to address known bullying.” 305 F. Supp. 3d at 1125 (quoting 21 Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001)). As explained below, Holguin 22 sufficiently pleads a claim under the second theory. 23 Under the first theory, the district faces liability if it does not respond to known disability- 24 based bullying. A “nexus between the alleged disability and the alleged bullying is a prerequisite 25 to a disability-based bullying claim.” Wormuth, 305 F. Supp. 3d at 1124–25; Dorsey v. Pueblo 26 Sch. Dist. 60, 140 F. Supp. 3d. 1102,1117 (noting nexus requires factual allegations showing 27 disability prompted bullying). Here, Holguin does not expressly allege he was singled out 28 because of his disability; he only alleges his disability significantly impacts his appearance and 1 gestures, his ability to read, speak and relate to others socially. See First Am. Compl. ¶ 1. These 2 allegations do not address whether the bullying was caused by his disability. See Wormuth, 3 305 F. Supp. 3d at 1126 (finding lack of nexus when plaintiff was bullied because of personal 4 animus or some other reason other than his disability or perceived disability); but see Wagon v. 5 Rocklin Unified School District, 17-1666, 2019 WL 2577336, at *5 (plaintiff sufficiently plead 6 disability-based claim by showing defendant made specific statements referring to plaintiff’s 7 symptoms of disability). Holguin’s allegations are not sufficiently specific to plead a claim under 8 this theory. 9 Under the second theory, the district faces liability if it denies reasonable accommodations 10 to address known bullying. Under Section 504 public entities are prohibited from denying 11 individuals with disabilities “meaningful access” or “reasonable accommodation” to benefits and 12 services. Mark H. v. Lamehieu, 513 F.3d 922, 938 (9th Cir. 2008). Ultimately to succeed on this 13 theory, a plaintiff must show a defendant failed to make reasonable modifications to 14 accommodate his disability. A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 15 1206−07 (9th Cir. 2016); see also Wormuth, 305 F. Supp. 3d at 1126 (“Plaintiff can succeed under 16 this theory by showing the bullying he endured, no matter the motive, hampered his ability to 17 enjoy a free public education and by showing the District did not provide reasonable 18 accommodations to prevent or address this bullying.”). At the pleading stage, the court is not 19 required to evaluate the reasonableness of plaintiff’s request. Brown v. Elk Grove Unified Sch. 20 Dist., 17-396, 2018 WL 953162, at *4. 21 Defendants argue Holguin has pled himself out of a claim by alleging he “masked the 22 torment he was enduring,” and did not report bullying to GPUSD; yet reasonable accommodations 23 were put in place for Holguin, including additional counseling sessions and the disruptive students 24 were removed from his classroom. MTD at 16–17 (citing First Am. Compl. ¶ 11). This 25 argument is unavailing at this stage given the pleadings. Holguin alleges he reported bullying 26 incidents to teachers and counselors at GPUSD who were indifferent. See First Am. Compl. ¶¶ 40 27 −49. Holguin reported to GPUSD, through his mother, his fear of attending school because of the 28 bullying he experienced. Id. ¶¶ 15−30. Despite Holguin’s showing rapid 1 academic decline, depressive symptoms and articulating suicidal thoughts, defendants did not 2 conduct any risk assessment or implement a safety plan. Id. ¶¶ 22−24, 26. 3 Defendant’s motion to dismiss claims 1 and 2 against GPUSD is denied. 4 2. Claim 5 5 A plaintiff may establish denial of meaningful access under section 504 by showing there 6 was a violation of one of the regulations implementing section 504, if such violation denied the 7 plaintiff meaningful access to a public benefit. A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 8 815 F.3d 1195, 1204 (9th Cir. 2016). In Wormuth, this court previously explained that when a 9 plaintiff with a qualifying disability is harassed for any reason and the school is put on notice, the 10 school must undertake a “fact-specific” investigation to determine what constitutes a reasonable 11 accommodation. 305 F. Supp. 3d at 1126-27 (citing A.G., 815 F.3d at 1207). The plaintiff in 12 Wormuth, as here, was bullied. Id. Those experiences affected his mental health and interfered 13 with his academics and his ability to participate in school activities; the District had not addressed 14 plaintiff’s reports of bullying. Id. 15 As someone with a learning and socialization disability, Holguin alleges he reported to 16 GPUSD how the bullying was affecting his mental health and academic performance negatively. 17 See First Am. Compl. ¶¶ 12, 19, 21−23, 28. GPUSD did not conduct a risk assessment or an 18 investigation even when Holguin reported his thoughts or plans to commit suicide. Id. ¶¶ 23, 26. 19 Holguin’s allegations suffice to plead a claim based on a theory of denial of reasonable 20 accommodations. See Brown, 2018 WL 953162, at *4. 21 Finally, plaintiff who seeks damages for suing a school district due to peer harassment, 22 must also allege “intentional discrimination” or deliberate indifference. Wormuth, 305 F. Supp. 23 3d at 1125. Deliberate indifference requires “both knowledge that a harm to a federally protected 24 right is substantially likely, and a failure to act upon that likelihood.” Duvall v. County of Kitsap, 25 260 F.3d at 1138–39. Plaintiff only needs to plead a plausible discrimination claim, not prove the 26 discrimination. Brown, 2018 WL 953162, at *3 (plaintiff met “deliberate indifference” 27 requirement because plaintiff provided sufficient allegations that District knew about plaintiff’s 28 behavioral issues and decline in his academic performance, among others.). 1 Here, Holguin makes factual allegations that GPUSD was on notice that he was being 2 subjected to physical and verbal abuse at school. First Am. Compl. ¶¶ 13, 15, 20−23, 30–31. 3 Holguin alleges he and his mother discussed the bullying with GPUSD employees, Mr. Hill and 4 Ms. Rios. Id. ¶¶ 20, 23, 28. He experienced an academic decline and expressed suicidal ideation. 5 Id. Despite these reports, the GPUSD acted with deliberate indifference in refusing to provide 6 “reasonable accommodations” to address the bullying he experienced at school. Id. ¶¶ 22−24. 7 GPUSD did not implement a suicide prevention protocol or investigate the bullying. Id. Holguin 8 pleads plausible allegations of “deliberate indifference.” Defendants’ motion to dismiss claim 5 9 against the GPUSD is denied. 10 B. Liability of Principal Vince Gonzalez 11 Defendants argue the court should dismiss claims 3 and 4 against Principal Gonzalez on 12 grounds Gonzalez is statutorily immune from suit under California Government Code section 13 820.2 and the federal Coverdell Teacher Protection Act. See MTD at 18. Immunities and other 14 affirmative defenses may defeat claims on a motion to dismiss only when those defenses are 15 established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); 16 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). When deciding whether 17 defenses are established, the court may consider the facts alleged in the complaint, documents 18 attached to the complaint, documents relied upon but not attached to the complaint when 19 authenticity is not contested and matters of which the court takes judicial notice. See C.B. v. 20 Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1129 (E.D. Cal. 2009). The court addresses Principal 21 Gonzalez’s contentions below. 22 1. Government Code section 820.2 23 “Except as otherwise provided by statute, a public employee is not liable for an injury 24 resulting from his act or omission where the act or omission was the result of the discretion vested 25 in him, whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. Discretionary 26 immunity only applies to deliberate and considered policy decisions; it does not apply to lower- 27 level or “ministerial” decisions. Caldwell v. Montoya, 10 Cal. 4th 972, 981-82 (Cal. 1995). 28 ///// 1 In the school context, immunity applies when a principal, for example, “actually rendered 2 a considered decision” and “in deciding to perform or not perform the act that led to plaintiff’s 3 injury, the principal consciously exercised discretion in the sense of assuming certain risks in 4 order to gain other policy objectives.” Id. (quoting Lopez v. So. Cal. Rapid Transit Dist., 5 40 Cal. 3d 780, 794 (Cal. 1985)). 6 Immunity under section 820.2 does not automatically attach to Gonzalez’s discretionary 7 decision not to investigate Holguin’s reports of peer-to-peer bullying. Wormuth, 305 F. Supp. 3d 8 at 1130. Courts in the Ninth Circuit have declined to apply discretionary immunity when “the 9 direct and immediate supervision of school children does not involve ‘basic policy decisions’ or 10 an ‘area of quasi-legislative policy making.’” M.M. v. San Juan Unified Sch. Dist., No. 11 219CV00398, 2020 WL 5702265, at *12 (E.D. Cal. Sept. 24, 2020) (interpreting § 820.2 12 narrowly, noting discretionary immunity “can[not] generally . . . be resolved at a motion to 13 dismiss” pleading stage); Wormuth, 305 F. Supp. 3d at 1130-31 (finding principal was not subject 14 to immunity because his decision not to intervene lacked detailed analysis). 15 Here, Holguin alleges Gonzalez simply decided not to communicate with staff interacting 16 with Holguin daily and to not investigate reports of his being bullied. See First Am. Compl. 17 ¶¶ 25−26. Defendants have not argued otherwise. See generally MTD; id. at 19. For immunity 18 to attach, Gonzalez would have to show based on the face of the complaint that his decisions were 19 a result of conscious discretion. Lopez, 40 Cal. 3d at 916 (“a public entity must prove that the 20 employee, in deciding to perform (or not to perform) the act which led to plaintiff’s injury, 21 consciously exercised discretion in the sense of assuming certain risks in order to gain other 22 policy objectives”). 23 At this stage of the case, based on the pleadings, Gonzalez is not statutorily immune under 24 § 820.2. 25 2. Coverdell Teacher Protection Act 26 Principal Gonzalez is immune under the Coverdell Teacher Protection Act of 2011, 20 27 U.S.C. § 6731. As this court explained in Wormuth, “this statute immunizes teachers and 28 administrators for acts and omissions in connection with maintaining control in the classroom.” 1 305 F. Supp. 3d at 1131. This immunity only applies to acts aimed to control or discipline 2 students for purposes of maintaining order or control of the school; it does not excuse liability for 3 cited conduct that falls within the five categories identified in § 6736(a). Id. (finding immunity 4 applied to school principal because plaintiff had not provided information alleging principal’s 5 conduct was within categories of “willful, criminal, grossly negligent, reckless, conscious or 6 flagrant”). 7 Here, Gonzalez was acting in his official capacity as the principal of Tranquility High. 8 Compl. ¶¶ 51−61. Holguin argues nothing in opposition to alter the conclusion Gonzalez is 9 immune under federal law. See generally Opp’n. Accepting all pleadings as true and construing 10 them in the light most favorable to Holguin, defendants knew he was being bullied by other 11 students and they failed to take precautions to mitigate that risk. See McIntosh v. Clark Cty. Sch. 12 Dist., No. 217CV00490, 2017 WL 3996399, at *3 (D. Nev. Sept. 11, 2017). Holguin has not 13 sufficiently pled that defendants acted affirmatively with willful, criminal, grossly negligent, 14 reckless misconduct or a conscious, flagrant indifference to overcome the Coverdell Act’s 15 protection. The current record does not rule out the possibility Holguin can cure this pleading 16 deficiency. 17 The court declines to reach defendants’ substantive arguments for dismissal of plaintiff’s 18 tort claims against Gonzalez because the Coverdell Act immunity at this point forecloses 19 plaintiff’s negligence and negligent training and supervision claims against Gonzalez. See M.M., 20 2020 WL 5702265, at *13. 21 Defendants also argue leave to amend the complaint would be futile because it was 22 Holguin’s mother who presented the tort claim on his behalf, instead of Holguin himself. MTD at 23 21–22 (citing Pony v. City of Los Angeles, 433 F.3d 1138, 1142–44 (9th Cir. 2006)). When 24 Holguin’s mother filed the torts claims on his behalf, she was not seeking attorney’s fees for 25 herself. See Pony, 433 F.3d at 1142–44. While Holguin was not a minor at the time the claim 26 was filed, his mother is authorized by statute to file his tort claim on his behalf, see Cal. Gov’t 27 Code § 910 (“A claim shall be presented by the claimant or by a person acting on his or her 28 behalf. . .”). 1 Defendant’s motion is granted as to claims 3 and 4 with leave to amend, if amendment is 2 possible subject to Federal Rule of Civil Procedure 11. See Sonoma Cty. Ass’n of Retired Emps. 3 v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (amendment would not cause undue 4 prejudice or be futile.) 5 IV. CONCLUSION 6 The motion to dismiss is granted in part and denied in part. 7 (1) Defendant’s motion is denied as to plaintiff’s claims 1, 2, and 5 against GPUSD. 8 (2) Defendant’s motion is granted as to claims 3 and 4 against Gonzalez with leave to 9 amend. 10 Plaintiff may file an amended complaint within twenty-one (21) days of this order. 11 This order resolves ECF No. 24. 12 IT IS SO ORDERED. 13 DATED: July 30, 2021.