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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHELLE M., DONALD M., SR.,

and DONALD M., JR., by and

through his guardian ad litem,

DONALD M., Sr.,

No. 2:04-cv-2411-MCE-PAN

Plaintiffs,

v. MEMORANDUM AND ORDER

DUNSMUIR JOINT UNION SCHOOL

DISTRICT, ROBERT MORRIS,

individually, CHRISTOPHER

RAINE, individually, ANTHONY

PAGANINI, individually, PAULA

SCHMITT, individually, and

DOES 1 through 15, inclusive, 

Defendants.

----oo0oo----

In this action, Plaintiff Donald M., Jr., a minor

(“Donnie”), through his guardian ad litem, Donald M., Sr., seeks

both damages and appropriate injunctive and declaratory relief

from Defendant Dunsmuir Joint Union School District (“DJUSD”). 

///

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Unless otherwise specified, all three Plaintiffs will be 1

collectively referred to as “Plaintiffs” in the remainder of this

Order.

While the Court generally uses the term “Defendants” to 2

refer collectively to all named defendants in this matter, as set

forth below the liability of Defendants Raine and Paganini will

be separately considered.

Because oral argument would not be of material assistance, 3

this matter was deemed suitable for decision without oral

argument. E.D. Local Rule 78-230(h).

2

The minor Plaintiff’s parents, Michelle M. and Donald M., Sr.,

are also named parties to the lawsuit, as are certain 1

individuals associated with DJUSD.

Plaintiffs allege that Donnie was subject to peer sexual

harassment, and that Defendants’ failure to protect Donnie from

that activity deprived Plaintiffs of their rights under 20 U.S.C.

§ 1681 (“Title IX”) as well as their rights under 42 U.S.C. §§

1983 and 1985(3). In addition, California statutory claims

pursuant to the Unruh Civil Rights Act, Civil Code § 51, et seq.,

are asserted.

Defendants now move for summary judgment, of alternatively 2

for summary adjudication of witnesses. As set forth below, while

summary judgment is denied, Defendants’ request for partial

summary judgment will be granted in part and denied in part.

For the reasons set forth below, Defendants’ Motion is

granted in part and denied in part.3

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The facts recited below, and those mentioned elsewhere 4

within the body of this Memorandum and Order, are the only facts

relied upon by the Court in ruling on Defendants’ Motion herein. 

The Court need not rule on extensive evidentiary objections to

facts not deemed essential in disposing of this motion, and

declines to do so unless otherwise noted. To the extent

objections have been made to the factual matters set forth in

this section, those objections are overruled.

3

BACKGROUND4

Donnie, then a freshman at Dunsmuir High School, claims he

was sexually harassed at school by another classmate, Jordan S.,

beginning in approximately October of 2003. During math class,

Jordan S. asked Donnie to expose his penis on numerous occasions

through messages typed into a graphing calculator, and through

several follow up entreaties questioning why Donnie wouldn’t

“show” him. Donnie’s rejections caused Jordan S. to frequently

twist Donnie’s arm during class over a two to three week period,

particularly during periodic occasions when the instructor was

out of the classroom. (See Donnie Dep., pp. 42-54) In addition,

Donnie contends he had two additional confrontations with Jordan

S. while walking through the high school gym enroute to band

class. On both of those occasions, according to Donnie, Jordan

S. repeated words to the effect of “who won’t you show me” and

proceeded to grab and twist Donnie’s arm when he refused to

assent to Jordan’s propositions. (Defs.’ Undisputed Fact (“UF”)

No. 23).

Donnie also alleges that prior to the commencement of Jordan

S.’ taunts in math class, during a visit to Jordan’s house in

mid-October of 2003, Jordan had offered to give Donnie some magic

cards if Donnie would show Jordan his penis. 

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See Donnie Dep., 62:3-11; 71:20-23. 5

While Donnie did testify generally in his deposition about 6

other Dunsmuir High School students teasing him about his

(continued...)

4

(Donnie Dep., 27:8-15). Donnie further claims that Jordan ran a

knife over his body when Donnie did not consent to Jordan’s

advance, which Jordan reiterated at least five times. (Donnie

Dep., 32:21-36:6). 

On or about October 22, 2003, Donnie’s mother, Plaintiff

Michelle M., reported Jordan S.’s conduct to Donnie’s school

counselor, Defendant Paula Schmitt, who told Michelle M. that she

would report the alleged harassment to DJUSD Superintendent (and

Dunsmuir High School Principal) Robert Morris, who also has been

named as a Defendant in this action. Neither Donnie or his

parents had previously reported Jordan S.’s conduct to school

personnel. There is no competent evidence that any teacher or

other school employee witnessed the alleged harassment. 

Moreover, there is no dispute that any direct verbal or physical

harassment directed to Donnie from Jordan S. had stopped by the

time the alleged harassment was reported to school authorities.5

At most, the only continuing harassment was described by Donnie

in his deposition as consisting of Jordan following him around,

and relaying purported threats through others. (Donnie Decl., ¶¶

2-3) In addition, Donnie claims that other students teased him 

after finding out about the accusations Donnie leveled against

Jordan S. This additional indirect harassment was not reported

to the school, and for the most part was not even mentioned by

Donnie during his deposition.6

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(...continued) 6

interaction with Jordan S. (See Donnie Dep., 90:20-91:8), Donnie

did not testify about the alleged stalking and indirect threats

he now identifies by way of declaration filed in opposition to

Defendants’ Motion. Defendants urge the Court to disregard

Donnie’s declaration on grounds that inconsistencies between

sworn deposition testimony and subsequent declarations should be

resolved by striking the inconsistent declaration. See Cleveland

v. Policy Mgt. Sys. Corp., 526 U.S. 795, 806 (1999); Block v.

City of L.A., 253 F.3d 410, 419 n. 2 (9th Cir. 2001). As set

forth below, however, because disposition of the instant motion

does not hinge on the contents of Donnie’s declaration, it is not

necessary to rule on any inconsistencies it may contain at this

juncture.

According to Defendants, the small size of Dunsmuir High 7

School made it all but impossible to make the necessary transfers

beforehand.

5

Defendants contend that after learning of Jordan’s alleged

harassment, they took various measures to prevent further

incidents from occurring, including meeting with the involved

parties, advising the teaching staff of the potential problem,

and eventually preventing Jordan and Donnie from sharing any

classes at the end of the semester when it became practicable to

do so. Defendants argue that these measures were successful 7

given Donnie’s admission at deposition that he suffered no

further harassment at Jordan’s hands after school authorities

were notified of the issue. 

 School authorities nonetheless took no direct action

against Jordan aside from a suggestion, by Defendant Morris, that

Plaintiffs report the harassment in question to the Siskiyou

County Sheriff for investigation. 

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Ultimately Mr. Edwards and his wife did obtain a temporary 8

restraining order against Jordan S. (Pls.’ UF No. 92).

6

Although Donnie’s parents demanded that Jordan S. be removed from

the school, Defendant Morris allegedly refused, even though

another parent, Allen Edwards Sr., had made the same request

during the previous 2002-03 school year as a result of harassment

from Jordan directed to his son, Allen Edwards Jr. (Allen Edwards

Sr. Dep., pp. 60-62). Mr. Edwards told Morris that he intended

to obtain a restraining order against Jordan S. due not only to

Jordan’s continual stalking of his son, but also because Jordan

had threatened his son’s life. (Id. at 60-62, 65). 8

The evidence further suggests that school counselor Schmitt

was similarly aware of prior problematic behavior on Jordan’s

part. Allen Edwards Sr. testified that he had also discussed

Jordan S.’ interaction with his son with Ms. Schmitt on one or

two occasions. (Id. at 33:8-22). Defendant Schmitt told Mr.

Edwards that there was an “ongoing problem” involving Jordan S.

and that his son “wasn’t the only one experiencing this.” (Id.

at 35:1-4). 

Despite school personnel’s knowledge of Jordan’s apparent

proclivity to obsessive behavior towards other students of the

same sex, the school refrained from including within the parent

handbook its own previously adopted sexual harassment policy

prior to commencement of the 2003-04 school year, just after

which Jordan’s unsatisfactory interaction with Donnie began. 

///

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7

The sexual harassment policy specifically required that a copy of

the policy and accompanying regulations “[b]e included in the

notifications that are sent to parents/guardians at the beginning

of each school year.” (See Sexual Harassment Policy, Ex. 2 to

Dep. of Robert Morris, as attached within Ex. 5 to the Decl. of

Gay Carroll). Plaintiff Michelle M. states that as a parent of a

Dunsmuir High School student for the 2003-04 school year, the

handbook she received did not include either the DJUSD sexual

harassment policy or administrative regulations. (Decl. Of

Michelle M., ¶ 7). In fact, the handbook she received stated on

its back cover that certain policies, including the sexual

harassment policy, were not included within the handbook for

budgetary reasons. (See id., ¶ 8). This failure to furnish

copies of the sexual harassment policy was also brought to

Defendant Morris’ attention by at least one parent during 2003,

but no apparent action to rectify the situation was taken.

Despite Morris’ admission that the policy was not included within

the handbook. (Morris Dep., 112:11-114:17). 

 Juvenile court proceedings instituted against Jordan S. in

the Siskiyou County Superior Court ultimately resulted in a

restraining order against Jordan S. (Pls.’ UF No. 47). 

Michelle M. again requested that Jordan S. be removed from school

at that point, but Morris failed to do so. (See id. at No. 46). 

Plaintiffs thereafter took their son out of school and enrolled

him in an at-home independent study program. Only after that

time, according to Plaintiffs, did Defendants finally transfer

Jordan S. out of the high school and into a community day school. 

(See Michelle M. Decl., ¶ 6).

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8

STANDARD

The Federal Rules of Civil Procedure provide for summary

judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 

In considering a motion for summary judgment, the court must

examine all the evidence in the light most favorable to the nonmoving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). 

///

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All references to Plaintiffs’ claims in this Memorandum and 9

Order refer to the Claims for Relief asserted in Plaintiffs’

First Amended Complaint for Damages, filed January 10, 2005.

9

Once the moving party meets the requirements of Rule 56

by showing that there is an absence of evidence to support the

non-moving party’s case, the burden shifts to the party resisting

the motion, who “must set forth specific facts showing that there

is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986). Genuine factual issues must exist that

“can be resolved only by a finder of fact, because they may

reasonably be resolved in favor of either party.” Id. at 250. 

In judging evidence at the summary judgment stage, the court does

not make credibility determinations or weigh conflicting

evidence. See T.W. Elec. v. Pacific Elec. Contractors Ass’n, 809

F.2d 626, 630-631 (9th Cir. 1987), citing Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

ANALYSIS

1. Title IX Claims

In their Third Claim, Plaintiffs allege that DJUSD violated 9

the provisions of Title IX, 20 U.S.C. § 1681, in subjecting

Donnie to sexual harassment. Plaintiffs allege the same

violations, with respect to the individual defendants. in their

First Claim through 42 U.S.C. § 1983.

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10

Title IX provides, with certain exceptions not relevant

here, that “[n]o person in the United States shall, on the basis

of sex, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education program

or activity receiving federal financial assistance.” 20 U.S.C. §

1681(a). There is no dispute that DJUSD receives federal funds

for Title IX purposes, and hence is subject to its provisions.

In Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999),

the Supreme Court addressed the applicability of Title IX to

cases of student-on-student sexual harassment. In Davis, a fifth

grade girl alleged numerous instances of sexual harassment

perpetrated by another student. In analyzing the scope of the

school’s liability, the Supreme Court found that a school

district “may be liable in damages under Title IX only for its

own misconduct” as a result of which its students are subjected

to harassment. Id. at 640-41. Actionable misconduct, according

to Davis, is present where a school’s “deliberate indifference”

fosters an environment where harassment can occur. Id. at 642. 

The deliberate indifference threshold is met only where the

school’s “response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.” Id. at 648.

In Reese v. Jefferson Sch. Dist., 208 F.3d 736 (9th Cir.

2000), the Ninth Circuit applied the criteria set forth in Davis

to incidents of alleged harassment that were unknown to the

school district in question before a group of high school girls

were suspended after hiding in the boy’s bathroom during a

school-sponsored trip at the end of the academic year. 

///

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11

After the girls were barred from participating in the school’s

commencement ceremony, they filed suit under Title IX and 42

U.S.C. § 1983, alleging that their actions were in response to

earlier harassment directed against them for which the school did

nothing. In assessing the school district’s potential liability,

the Reese court pointed to four prerequisites established by

Davis. The district must first have “actual knowledge” of the

harassment. Second, the harassment must occur under

circumstances where the district exercises substantial control

over both the harasser and the context in which the harassment

took place. Third, the harassment must be severe enough to have

deprived the victim to educational opportunities or benefits

provided by the school. Finally, a school may not be liable for

indirect harassment in which it has no direct participation

unless, its deliberate indifference, as defined by Davis,

subjects the a student to harassment. Id. at 739.

In arguing that the circumstances of the present case cannot

survive this scrutiny, Defendants argue they had no “actual

knowledge” of the harassment because it ended by the time

Michelle M. told school officials what was transpiring. In

addition, Defendants assert that even were the requisite

knowledge to be conceded, their response cannot be considered

deliberately indifferent in any event given the measure Defendant

Morris and Defendant Schmitt took to ensure against any further

harassment, which purportedly included interviews with the

involved parties, advising staff to monitor/observe interaction

between the two boys, and separating Jordan and Donnie from any

joint classes by the end of the semester.

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As aforestated, Paula Schmitt also admitted to Allen 10

Edwards, Sr. that she was aware of an “ongoing problem” involving

Jordan

12

Defendants’ arguments in this regard fail because

Plaintiffs’ Title IX claims survive on other grounds. Defendants

focus solely on the school’s knowledge of any harassment directed

from Jordan S. to Donnie, and whether remedial measures taken

once such knowledge were obtained were reasonable as opposed to

deliberately indifferent. Plaintiffs also allege, however, that

irrespective of the school’s response to Donnie’s particular

harassment (and whether or not any such harassment may have

continued in any way after the school was initially informed of

the problem), school officials did have knowledge of questionable

behavior on Jordan’s part beforehand, and nonetheless elected for

whatever reason not to disseminate its own sexual harassment

policy in the parent handbook as required by the policy itself as

well as applicable California law.

As stated above, there is evidence that both Defendants

Morris and Schmitt knew about problems involving Jordan S. and

Allen Edwards Jr. that occurred during the school year preceding

the Fall of 2003 when Donnie alleges that he was sexually

harassed by Jordan S. Paula Schmitt knew about an “ongoing

problem” involving Jordan and told Allen’s father that his son

“wasn’t the only one experiencing this.” Mr. Morris was told

that Jordan had allegedly stalked Allen and had threatened his

life. Morris also knew that Allen’s parents ultimately obtained

a temporary restraining order against Jordan S. 

10

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Defendant Morris identified Exhibit 2 to his Deposition as 11

the school’s sexual harassment policy. He indicated the policy

was in effect during the 2003-04 school year, and went on to

indicate that the policy was posted “in every classroom” of the

high school. Morris further testified that as a Board policy,

the school’s sexual harassment policy is kept within the board

policy manual maintained at the district office. (See Morris

(continued...)

13

Even if not unequivocally sexual in nature, this disturbing

behavior had the hallmarks of sexually rooted obsessive behavior. 

In the face of that knowledge, DJUSD elected to not send its own

policy of sexual harassment to students and their families, even

though that policy unambiguously required such notification.

The District’s Sexual Harassment Policy contained the

following provisions concerning notification:

Notifications

A copy of the district’s sexual harassment policy and regulation

shall:

1. Be included in the notifications that are sent to 

 parents/guardians at the beginning of each school year 

 (Education Code 48980; 5 CCR 4917)

2. Be displayed in a prominent location in the main 

 administrative building or other area where notices of 

 district rules, regulations, procedures and standards of 

 conduct are posted (Education Code 231.5)

3. Be provided as part of any orientation program conducted 

 for new students at the beginning of each quarter, 

 semester or summer session (Education Code 231.5)

4. Appear in any school or district publication that sets 

 forth the school’s or district’s comprehensive rules, 

 regulations and standards of conduct (Education Code 

 231.5)

5. Be provided to employees and employee organizations 

Sexual Harassment Policy, Ex. 2 to Dep. of Robert Morris, as

attached within Ex. 5 to the Decl. of Gay Carroll.11

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(...continued) 11

Dep., 84-86). Consequently it is disingenuous for Defendants to

claim that no proper foundation for consideration of the policy

has been established. Moreover, as a public record of Defendant

DJUSD, judicial notice of the policy is taken pursuant to Federal

Rule of Evidence 201(b). The Court need not rule on the

remainder of Plaintiffs’ request for judicial notice since the

items at issue were not utilized in rendering its decision in

this matter.

14

There is evidence, in the form of language employed within

the parent handbook received by Michelle M. at the beginning of

the 2003-04 school year (just before Jordan’s alleged harassment

of Donnie commenced), that the school district decided not to

disseminate copies of the sexual harassment policy for budgetary

reasons. There is also evidence that Defendant Morris knew about

that omission at some point during the 2003-04 school year,

although the precise date when he was told by another parent of

such omission is unclear from his deposition testimony. 

Moreover, the school’s own sexual harassment policy, as

referenced above, cites to the California Education Code, as well

as the California Code of Regulations, with respect to the

requirement to provide copies. California Education Code §

48980(g) provides that the notification sent to parents at the

beginning of the school term shall “include a copy of the

district’s written policy on sexual harassment established

pursuant to Section 212.6, as it relates to pupils.” The

California Code of Regulations, at 5 CCR § 4917, similarly

provides that “local agencies are required to notify students,

employees, and parents of their written policy prohibiting sexual

harassment...”

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This assertion is disputed by Pamela Padula, who testified 12

that she walked through Dunsmuir High School’s main classrooms in

May or early June of 2004 and found that none of the classrooms

were posted with the sexual harassment policy. (Dep. Of Pamela

Padula, 84:2-87:21). 

While Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 13

291-92 (1998), cited by Defendants, does stand for the

proposition that the failure to promulgate a sexual harassment

policy alone does not establish either notice or deliberate

indifference for purposes of satisfying the prerequisites for

Title IX liability, that case is distinguishable from the

circumstances of the instant matter. Here, unlike Gebser, we are

not faced with an attempt to attach liability on a school for

previously unknown sexual harassment based simply on failure to

establish a policy against sexual harassment. Rather, this case

involves the school’s decision to refrain from disseminating its

own previously promulgated policy, in violation of both the

policy itself and California law, despite knowledge of behavior

on Jordan’s part constituting potential sexual harassment.

15

Although Defendant Morris asserts that copies of the sexual

harassment policy were posted in virtually every classroom (see 

Morris Dep., 85:18-25; 94:9-11)), and while Paula Schmitt 12

testified that she went over sexual harassment guidelines during

a freshman orientation she provided, the fact remains that a copy

of the policy was not provided in each parent handbook as

required by the school’s own sexual harassment policy and the

California Education Code. In view of Defendants’ knowledge of

Jordan’s prior behavior, this Court cannot say as a matter of law

that this shortcoming does not amount to deliberate indifference

giving rise to Title IX liability. Summary Adjudication as to 13

the First and Third Claims is therefore denied.

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16

2. Equal Protection Claim

In their Second Claim for Relief, Plaintiffs allege that the

individually named Defendants intentionally deprived them of

equal protection in violation of the Fourteenth Amendment of the

United State Constitution. To state a claim of that nature

through 42 U.S.C. § 1983, Plaintiffs must show that Defendants,

under color of state law, discriminated against Donnie on the

basis of his sex, and that such discrimination was either

intentional or occasioned by deliberate indifference. Flores v.

Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135 (9th Cir.

2003). In addition, Plaintiffs must put forward specific factual

allegations that establish improper motive. Id. 

Plaintiffs allege that Defendants “purposefully permitted

unlawful peer sexual harassment by failing to take remedial

action upon notice of the unlawful harassment.” (Pls.’ Opp.,

14:4-6). Plaintiffs refer to the arguments submitted in support

of their Title IX claims, which include Defendants’ purported

failure to properly disseminate the school’s sexual harassment

policy as described above. Those arguments are sufficient to

survive summary judgment on both equal protection and Title IX

grounds.

In Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp.

1369 (N.D. Cal. 1997), the minor plaintiff argued that the school

principal, Guzman, failed to take appropriate steps to prevent

her harassment at the hands of another student. 

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The court rejected Guzman’s argument that no intentional

discrimination had been demonstrated by such inaction, stating

that a decision not to take steps to remedy known harassment may

constitute evidence of an intent to discriminate on the basis of

sex, which in turn would violate the victim’s equal protection

rights. Id. at 1383. In addition, Flores makes clear that

deliberate indifference may also satisfy the improper motive

prong of a cognizable equal protection claim. The Court cannot

say as a matter of law that Defendants’ conduct in not properly

publishing the school’s sexual harassment policy does not amount

to deliberate indifference, for the same reasons discussed above

with respect to Plaintiffs’ Title IX claims. Consequently

Summary Adjudication as to the Second Claim for Relief is denied.

3. Conspiracy Claims

Plaintiffs’ Fourth Cause of Action alleges a conspiracy in

violation of 42 U.S.C. § 1985(3) and 1986. In order to

successfully bring a claim under § 1985(3), a plaintiff must

allege and prove four elements. First, a conspiracy must be

established. Second, that conspiracy must be formed for purposes

of depriving a plaintiff of equal protection and/or equal

privileges and immunities. Third, an act in furtherance of the

purported conspiracy has to be shown and fourth, that act must

result in injury or damage to the plaintiff. Sever v. Alaska

Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1999). 

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Plaintiffs suggest, for example, that discussions in 14

closed door School Board sessions may support a conspiracy

without any evidence with which to buttress that assertion. (See

Pls.’ Opp., p. 17-18). Plaintiffs further assert, in an effort

to bolster their claim, that the decision to not publish the

sexual harassment policy was somehow conspiratorial in nature,

although no evidence has been presented as to who made that

decision, let alone whether the decision was in consort with

others pursuant to a conspiracy. Finally, even if one assumes

that the individually named Defendants failed to take appropriate

protective action on Donnie’s behalf, that does not mean there

was a conspiracy in that regard, as Plaintiffs suggest without

any supporting evidence. 

While Plaintiffs allege a violation of § 1986 in addition 15

to § 1985(3), § 1986 simply imposes liability on anyone who knows

of an impending violation of § 1985 but neglects or refuses to

prevent the violation. Hence a claim can be stated under § 1986

only if a valid claim is brought under § 1985. Karim-Panahi v.

L.A. Police Dept., 839 F.2d 621, 626 (9th Cir. 1988). The same

criteria therefore apply to claims brought under both statutes.

18

The second requirement for establishing an actionable conspiracy

under § 1985(3) also carries with it the requirement that

plaintiff show the conspiracy to be motivated by discriminatory

animus towards a protected class. Id.

No evidence has presented in this case, beyond speculation

and conjecture, that any of the Defendants entered into a 14

conspiracy designed to deprive Donnie of his equal protection

rights. Conspiracy claims must be supported by factual 15

specificity and here no such specificity is present. Karim

Panahi v. L.A. Police Dept., 839 F.2d at 626. 

Because Plaintiffs have not established a viable conspiracy

claim under §§ 1985(3) and 1986, Summary Adjudication as to

Plaintiff’s Fourth Cause of Action will also be granted. 

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Although Plaintiffs also allege a violation of Civil Code 16

§ 52, that statute merely provides for damages if a violation of

§ 51 is established.

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4. State Law Claims

In their Fifth and Sixth Causes of Action, respectively,

Plaintiffs assert state claims under California’s Unruh and Ralph

Civil Rights Acts. Turning first to the Unruh Act, California

Civil Code § 51 is a general civil rights statute providing that

“[A]ll persons... are entitled to the full and equal

accommodations, advantages, facilities, privileges, or services 

in all business establishments of every kind whatsoever.” In 16

accord with the broad sweep of the statutory language itself, the

California Supreme Court has directed that the term “business

establishment” be interpreted “in the broadest sense reasonably

possible. Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal. 3d

72, 78 (1985). Also consistent with this expansive

interpretation is the consensus that public schools must be

deemed business establishments within the purview of the Unruh

Act. See Nicole M., 964 F. Supp. at 1388; Sullivan v. Vallejo

Unified Sch. Dist., 731 F. Supp. 947, 952 (E.D. Cal. 1990)

(relying on Isbister, the Eastern District held that public

schools are “business establishments” within the meaning of the

Unruh Act).

In Nicole M., the Northern District construed an inadequate

response to complaints of sexual harassment as a denial of

“advantages, facilities, privileges or services” protected by the

Unruh Act. 

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In fact, the Ralph Civil Rights Act, while enacted later 17

than the original portion of the Unruh Act at Cal Civ. Code § 51,

is considered to be a component of the Unruh Act. McCalden v.

Cal. Library Ass’n, 955 F.2d 1214, 1220-21 (9th Cir. 1990).

20

Although the Unruh Act prohibits only intentional discrimination

and not practices merely having a disparate impact on one class

of persons (Harris v. Capital Growth Investors XIV, 52 Cal. 3d

1142, 1149, 1172 (1991), the Nicole M. court rejected any

argument that allegations of inadequate action in response to

complaints of sexual harassment cannot rise to the level of

intentional discrimination for purposes of the Unruh Act. Nicole

M., 964 F. Supp. at 1389.

As detailed above in connection with Plaintiffs’ Title IX

claims, Plaintiffs do have a viable claim that Defendants

responded inadequately to previous incidents involving Jordan S.

by refraining from disseminating a sexual harassment policy, as

required by the school’s own policy and California law that could

potentially have protected Donnie against harassment. Those same

arguments support an Unruh Act claim as well, and mandate that

Defendants’ request for Summary Adjudication as to the

Plaintiffs’ Fifth Claim be denied.

 Plaintiffs’ Sixth Claim for Relief, for violation of the

Ralph Civil Rights Act (Cal. Civ. Code § 51.7), similarly

survives scrutiny on summary judgment. Section 51.7 expands upon

the Unruh Act by specifying that individuals should not only be 17

afforded unfettered access to public accommodations but should

also be free from any violence, or threat thereof, because of

their particular characteristics. Section 51.7 provides, in

pertinent part, as follows:

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“All persons... have the right to be free of any violence,

or intimidation by threat of violence, committed against

their persons or property because of their race, color,

religion, ancestry, national origin, political affiliation,

sex, sexual orientation, age, disability or position in a

labor dispute, or because another person perceives them to

have one or more of those characteristics. The

identification in this subdivision of particular bases of

discrimination is illustrative rather than restrictive.”

In the instant matter, Donnie was physically accosted by

Jordan S., who he claims twisted his arm on numerous occasions

when Donnie refused Jordan’s request that Donnie expose himself. 

Those actions may be considered either violent, intimidating, or

both for purposes of liability under the Ralph Civil Rights Act. 

Defendants’ failure to follow its own internal policy, not to

mention California law, in properly disseminating a sexual

harassment policy may have contributed to the environment in

which Donnie was harassed. This is enough to survive summary

judgment.

5. Claims Against Defendants Paganini and Raine 

Defendants Paganini and Raine were two of the five members

of the School Board who oversaw Defendant DJUSD during the 2003-

04 academic year in which Donnie claims he was harassed. Both

are named as individual defendants in Plaintiffs’ lawsuit, along

with Defendants Morris and Schmitt. There is no evidence,

however, that either Paganini or Raine knew about Donnie’s

harassment until after his mother reported it to Morris and

Schmitt. As stated above, Donnie testified in his deposition

that no further direct harassment occurred at school after the

problem was reported to school officials. 

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Any testimony from Donnie that Andrew Paganini indicated 18

otherwise is sheer hearsay.

Defendant Raine testified that the handbook disseminated 19

at the beginning of the year is prepared by school staff. (Raine

Dep., 61:23-25).

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There also is no evidence that either Paganini or Raine knew

about any previous harassment perpetrated by Jordan. Although

Defendant Paganini did testify that his son Andrew told him had

been approached by Jordan in the high school locker room about

drugs, there was no indication from Andrew that the encounter had

any sexual component. (Paganini Dep., 23:2-14; 24:19-25). 18

Moreover, and in any event, there is no evidence that the School

Board or its members exercised authority over the scope of

discipline meted students. That responsibility is delegated to

members of the school administration like Defendant Morris. 

There is also no evidence that either Paganini or Raine had

any personal role in the decision to refrain from publishing the

school’s sexual harassment policy in the parent’s handbook sent

to all school families at the beginning of the academic year.19

Because here is simply no basis for their individual inclusion in

this lawsuit, summary judgment in favor of Defendants Paganini

and Raine will be granted. 

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CONCLUSION

For all the foregoing reasons, Summary Judgment is DENIED

as to Defendants DJUSD, Morris and Schmitt but GRANTED as to

Defendants Paganini and Raine. Summary Adjudication is GRANTED

as to Plaintiffs’ Fourth Claim for Relief based upon

conspiracy, but is otherwise DENIED.

IT IS SO ORDERED.

DATED: October 12, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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