Complaint,Petition: Parents of Eagle Peak vs. Michelle Hammons

On September 19, 2022 a Complaint,Petition was filed involving a dispute between Parents Of Eagle Peak, and Does 1 Through 50, Eagle Peak Montessori School, Hammons, Michelle, for 08: Unlimited Civil Rights-eFile in the District Court of Contra Costa County.

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Electronically Filed Superior Court of CA County of Contra Costa 9/19/2022 2:34 PM By: M. Macapinlac, Deputy

1 Tracy L. Henderson, Esq
Law Offices of Tracy L. Henderson, Esq
2 P. O. Box 221562
831.917.1583
3
tlhlaw@protonmail.com Per local Rule, This case is assigned to
4 Judge Douglas, Danielle K, for all purposes.
Attorneys for Plaintiffs
5

6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 FOR THE COUNTY OF CONTRA COSTA
UNLIMITED CIVIL CASE
8

9
PARENTS OF EAGLE PEAK, ) Case No.: C22-01996
10 )
Plaintiff, )
11 ) COMPLAINT FOR TEMPORARY
vs. )
RESTRAINING ORDER,
12 )
EAGLE PEAK MONTESSORI SCHOOL, a ) PRELIMINARY INJUNCTION AND
13 charter school in Mount Diablo Unified School ) PERMANENT INJUNCTION AND
District, and MICHELLE HAMMONS, ) DAMAGES
14 principal of Eagle Peak Montessori, and Does 1 )
through 50, inclusive, )
15 ) Code Civ. Proc. §§ 526, 527,
Defendant. ) Civ. Code § 3422,
16 ) Civ. Code § 3333
)
17

18 PLAINTIFFS PARENTS OF EAGLE PEAK allege as follows:
19
THE PARTIES
20

21 1. PLAINTIFFS PARENTS OF EAGLE PEAK (collectively “POEP” or Plaintiffs) are,

22 and at all times mentioned in this complaint, parents of children who attend Eagle Peak Montessori

23 school in Mount Diablo Unified School District and the children with their principal place of residence
24 located in Contra Costa County California.
25 2. N.S. is a fourth grader who is 9 years old and student attending Eagle Peak Montessori
26 in MDUSD who is a member of POEP. N.S. has an exemption from wearing a mask from a licensed
27 medical professional.
28

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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3. S.S. is 8 years old and a third grade student attending Eagle Peak Montessori in MDUSD
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who is a member of POEP. S.S. has an exemption from wearing a mask from a licensed medical
3
professional.
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4. E.Y. is a sixth grade student attending Eagle Peak Montessori in MDUSD who is a
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member of POEP. E.Y. has an exemption from wearing a mask from a licensed medical professional.
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5. A.Y. is a fifth grade student attending Eagle Peak Montessori in MDUSD who is a
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member of POEP. A.Y. has an exemption from wearing a mask from a licensed medical professional.
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6. N.S, S.S., E.Y., and A.Y. are, and at all times mentioned in this complaint, are students
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enrolled in EPM, been illegally forced to wear a mask1, yet have been perfectly healthy and eager and
10
willing to learn.
11
7. MOUNT DIABLO UNIFIED SCHOOL DISTRICT (“MDUSD”) is, and at all times
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mentioned in this complaint was, is a school district located in Contra Costa County in California.
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8. EAGLE PEAK MONTESSORI (“EPM” and Defendant) is, and at all times mentioned
14

15
in this complaint was, a publicly funded charter school located in MDUSD and governed by a board of

16 trustees. Petitioners are informed and believe EPM’s charter is issued by MDUSD.

17 9. The EPM Board of Directors include Berenice Hernandez, Rachel Smith, Koki

18 Ichiroku, Michelle Hammons, Sibyl Buckner, Laura Lisy-Wagner, Anna-Maria White, Kelly Mannion,

19 Dan Desautel, Rebecca Liskin, and Jennifer Womble.

20 10. Defendant MICHELLE HAMMONS (“HAMMONS”) is, and at all times mentioned

21 in this complaint, was an individual who is the Principal of Eagle Peak Montessori which is a
22 publicly funded charter Montessori school in Mount Diablo School District and an individual who
23 resides in Contra Costa County. HAMMONS is also a member of the Board of Directors for EPM.
24 11. Plaintiff is informed and believes and thereon alleges that, at all times herein mentioned,
25 HAMMONS is an employee of EPM and in doing the things hereinafter alleged, as an agent of EPM
26 and the EPM Board of Directors, and acting within the course and scope of such agency and with the
27
1
28 Business and Professions Code § 2052.

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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permission and consent of EPM’s governing Board of Directors of which she is a member. EPM’s
2
Board of Directors Berenice Hernandez, Rachel Smith, Koki Ichiroku, Michelle Hammons, Sibyl
3
Buckner, Laura Lisy-Wagner, Anna-Maria White, Kelly Mannion, Dan Desautel, Rebecca Liskin, and
4
Jennifer Womble are agents of EPM. In doing the things hereinafter mentioned, these Defendants and
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agents acted under color of their authority under color of law and under the color of the customs and
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usages of Defendant EPM’s Board of Directors and pursuant to the official policies of Defendant EPM
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as enacted and adopted by it's the Governing Board acting under color of its authority as such.
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12. Plaintiff is informed and believe, and thereon alleges, that each of the fictitiously named
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defendants proximately caused damages to Plaintiff as alleged herein and/or is responsible for the acts
10
complained of herein. Plaintiff will seek leave of Court to amend this Complaint when the true
11
identities of such DOE defendants have been ascertained. Plaintiff is informed and believes, and
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thereon alleges that defendants named as
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13. DOES 1 through 50 were the agents, servants and/or employees of their defendants, and
14

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in doing or failing to do the acts alleged herein were acting in the course and scope of their authority

16 and with the permission and consent of their defendants, and each of them.

17 JURISDICTION AND VENUE

18 14. Venue is proper in the county in which “the cause, or some part of the cause, arose,” for

19 a suit against a public officer’s act. (Cal. Code of Civ. Proc. § 393(b).) This Court is the proper venue

20 for this action because the Defendants either reside in or maintain executive offices in this County, a

21 substantial portion of the transactions and wrongs complained of herein took place in this County,
22 including Defendants’ primary participation in the acts detailed herein, and Plaintiff’s injuries occurred
23 in this County.
24 15. This Court has jurisdiction over complaints for injunctive relief under California Code
25 of Civil Procedure (“CCP”) §§ 525 and 526.
26 16. This Court has personal jurisdiction over Defendants. They are governmental actors that
27
conduct business in and maintain operations in Contra Costa County.
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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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17. Plaintiffs have a clear, present, and beneficial right to, and clear, present and beneficial
2
interest in, the proper performance of the law by Defendants.
3
18. Plaintiffs have no plain, speedy, and adequate remedy at law.
4
19. Plaintiffs have not exhausted all administrative remedies because there are no applicable
5
remedies to exhaust. Specifically, there is no adequate unbiased administrative remedy or body to
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appeal to curtail actions of Defendants that are without, or in excess of, their legal jurisdiction and
7
authority. Even if there were such a remedy, an extended delay in resolving this controversy due to
8
utilization of such administrative remedy would result in irreparable injury to Plaintiffs in that they
9
would continue to suffer daily learning loss.
10

11 GENERAL ALLEGATIONS
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20. The opportunity to attend and receive instruction in the public schools is a legal right
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that is enforceable by the same means as any other legal right. Piper v. Big Pine School Dist. (1924)
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193 Cal. 664, 669–670; Ward v. Flood (1874) 48 Cal. 36, 50.
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21. The California Constitution provides that in person instruction in public schools is a
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fundamental right. California Constitution AIX: §5. Public education is a fundamental right under the
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equal protection provisions of the California Constitution. Butt v. State of California (1992) 4 Cal. 4th
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668, 678–680; Serrano v. Priest (1976) 18 Cal. 3d 728, 765–766 cert. denied sub nom., Clowes v.
19
Serrano 432 U.S. 907 (1977); Serrano v. Priest (1971) 5 Cal. 3d 584, 596 n.11.
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22. Attendance at school in California is compulsory according to California law. Cal Ed
21
Code § 48200.
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23. All students are entitled to “equal rights and opportunities” in education (Ed. Code §
23

24
200) and to participate fully in the educational process “free from discrimination and harassment.” Ed.

25
Code § 201, subd. (a). To effectuate this policy, which is guaranteed by the federal and state

26 Constitutions, the Legislature requires California's public schools to take affirmative steps to “combat

27 … forms of bias.” (Ed Code § 201, subd. (b).) They also must “prevent and respond to acts of bias-

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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related incidents” in an “urgent” manner (§ 201, subd. (d)) Donovan v. Poway Unified School Dist.,
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167 Cal. App. 4th 567, 606; Civil Code §51-52 et seq.
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24. School Districts’ authority in California in relation to refusing in person instruction or
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“excluding” children in relation to expulsion or suspension of students is limited to those situations
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where there is a factual basis amounting to “clear and present danger.” Cal Ed Code § 48900.
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25. The only authority a School District has when it comes to issues of public health is to
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send a child with evidence of affliction home until they recover. Ed code §49451
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26. School Districts, like other organizations, cannot adopt policies that violate the law.
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Education Code §35160.
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27. Schools are not allowed to “use a physical restraint technique that obstructs a pupil’s
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respiratory airway” Cal Ed Codes §§48213.
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28. Practicing medicine without a license violates the Business and Professions code §2052.
13
29. School Districts have no authority to enforce health orders. Issuance and enforcement
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of health orders are within the purview of the state and county health officers. See e.g. Health and

16 Safety Code §120140.

17 30. Independent study is voluntary pursuant to California law. Ed. Code § 51747(g)(8 2).

18 31. Entering a child into an IEP or 504 program are voluntary.

19 32. There is no county3, state or federal mask requirement currently.

20 33. President Biden declared the COVID pandemic “over” 4 on or about Sunday September

21 18, 2022.
22 34. Michelle Hammons, principal of EPM, punitively mandated masking on plaintiffs
23 without legal authority to do so. Plaintiffs have medical exemptions from masking and principal
24 Hammons tried to illegally condition acceptance of the exemption on engaging in a 504 education plan
25 and independent study. Both are voluntary and can be declined by the parents.
26

27
2
“Independent study is an optional educational alternative in which no pupil may be required to participate”.
3
28 Contra Costa County guidance: https://www.coronavirus.cchealth.org/health-orders
4
https://www.nbcnews.com/politics/politics-news/-pandemic-biden-says-rcna48266
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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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35. Currently Contra Costa County’s guidance does not mention masking children in
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school at all.
3
36. The previous CDPH guidance for K-12 schools was always only a recommendation
4
schools could disregard as the guidance did not go through the Administrative Procedures Act
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rulemaking process. Gov. Code § 11340.5(a)5; Gov. Code §11370 et seq.
6
37. On April 18, 2022 a federal judge in Tampa Florida, the Honorable Kathern Kimball,
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Mizelle, ordered masks off airplanes in the case Health Freedom Defense Fund, Inc. v. Joseph R. Biden,
8
Jr., Case No: 8:21-cv-1693-KKM-AEP concluding that the CDC “Mask Mandate exceeds the CDC’s
9
statutory authority and violates the procedures for agency rulemaking under the APA.”
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38. It is not the responsibility of a child to protect adults nor is it the responsibility of a child
11
to protect another child.
12
39. The masks have always only been emergency use authorized by the Federal Drug
13
Administration.6
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40. Masks do not stop virus transmission and are harmful to children’s growing brains. 7

16 41. Plaintiffs have a personal right that is of the kind that injunctive relief is available to

17 protect in that they have a fundamental right to in person instruction free from discrimination and

18 harassment per the California Constitution and statutes in California. They are required by the

19 education code to attend school and cannot be forced into independent study as that is voluntary by

20 statute. Further, they have a right to seek medical advice from a licensed medical professional and not

21 be forced or involuntarily subjected to medical directives from the principal of a school who is not
22 trained in medicine nor has the police power of a health officer.
23 42. The Declaration of Lubna Sweis in Support of the Complaint filed concurrently is
24 incorporated herein by this reference.
25
5
26 APA statutes provide that no state agency “shall issue, utilize, enforce, or attempt to enforce” any “guideline”,
“instruction”, or other rule subject to the APA, unless it “has been adopted as a regulation and filed with the Secretary of
27 State pursuant to [the APA]”. Cal. Gov. Code § 11340.5(a).
6
https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-emergency-use-authorization-face-
28 masks-non-surgical
7
https://www.aier.org/article/medical-journal-warns-about-maskss-potentially-devastating-consequences/
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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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43. The Declaration of Tamar Helman Yahud in Support of the Complaint filed
2
concurrently is incorporated herein by this reference.
3
44. The Declaration of Lorien Quirk in Support of the Complaint filed concurrently is
4
incorporated herein by this reference.
5
45. The Declaration of Joseph Sweis in Support of the Complaint filed concurrently is
6
incorporated herein by this reference.
7
46. The Declaration of Tracy L. Henderson, Esq in Support of the Complaint filed
8
concurrently is incorporated herein by this reference.
9

10 FIRST CAUSE OF ACTION
(TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUCTION AND
11 PERMANENT INJUNCTION)
12 47. Plaintiff incorporates, by reference, all the foregoing paragraphs of this complaint as
13 though fully set forth herein.
14 48. Defendants, MICHELLE HAMMONS AND EAGLE PEAK MONTESSORI, each of
15 them, had a duty of ordinary care, statutory and constitutional duties to plaintiffs to provide an
16 education free from discrimination, harassment, bullying, and physical and mental injury. These
17 Defendants, each of them, had a duty to supervise at all times the conduct of staff and other children
18 on the school grounds and to enforce those rules and regulations necessary to ensure the children’s
19
protection and the protection of plaintiffs in particular.
20
49. Beginning on or about August 17, 2022 and continuing to the present time, defendants,
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and each of them, wrongfully and refused and continue to provide in person instruction free from
22
discrimination and harassment by forcing plaintiffs to wear masks against their will and against a
23
doctor’s directive which constitutes the invasion of, infringement on, or interference with plaintiff’s
24
protectible rights and interests to attend public school. See Declarations of Lubna Sweis, Tamar
25
Helman, Joseph Sweis, and Lorien Quirk filed concurrently herein.
26
50. On or about May 2022, and a number of times since then, by and through their parents
27
and by and through counsel, plaintiffs have demanded that defendants stop their wrongful and
28

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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threatened conduct described above. See Cease and Desist letter attached to Declaration of Tracy L.
2
Henderson Esq as Exhibit “1” filed concurrently herein and incorporated herein by this reference.
3
51. Defendants, and each of them, have refused and still refuse to refrain from their conduct.
4
See Declaration of Joseph Sweis filed concurrently herein and incorporated by this reference.
5
52. Defendants’ wrongful conduct, unless and until enjoined and restrained by order of this
6
court, will cause great and irreparable injury to plaintiff as they will continue to suffer daily mental
7
anguish and learning loss for no reason. See Declarations of Lubna Sweis, Tamar Helman, Joseph
8
Sweis, and Lorien Quirk filed concurrently herein.
9
53. Plaintiffs have no adequate remedy at law for the injuries currently being suffered and
10
that are currently threatened to continue on a daily basis. Monetary remedies are inadequate to
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compensate for daily harassment and learning loss plaintiffs have a clear right to. It will also be
12
impossible for plaintiff to determine the precise amount of monetary damage if any that they will suffer
13
if defendants’ conduct is not restrained. Additionally, plaintiffs will be forced to institute a multiplicity
14

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of suits to obtain adequate monetary compensation, if even can be ascertained, for their injuries which

16 will simply result in further learning loss while they wait and can never be recovered.

17 54. As a proximate result of defendants’ wrongful conduct, plaintiffs have been damaged

18 by having to hire and pay for an attorney. Plaintiff will be further damaged in like manner so long as

19 defendants’ conduct continues. The full amount of this damage is not now known to plaintiff, and

20 plaintiff will state this amount on proof of the damages at the hearing for the permanent injunction.

21 WHEREFORE, plaintiff prays judgment as follows:
22 1. For an order requiring defendants to show cause, if any they have, why they should not be
23 enjoined as set forth in this complaint, during the pendency of this action;
24 2. For a temporary restraining order, a preliminary injunction, and a permanent injunction, all
25 enjoining defendants, and each of them, and their agents, servants, and employees, and all
26 persons acting under, in concert with, or for them:
27
a. From forcing plaintiffs wear a mask to school without authority to do so;
28

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION
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3. For damages in the sum to be determined at hearing including but not limited reasonable
2
attorney’s fees per C.C.P. §1021.5 and C.C.P. Section §52;
3
4. For costs of suit herein incurred; and
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5. For such other and further relief as the court may deem proper.
5

7 Dated: September 19, 2022 ___________ ___________________________
8
Tracy L. Henderson, Esq.
Attorney for Plaintiffs
9

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COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT
INJUNCTION

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Douglas, Danielle K Track Judge’s New Case

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September 19, 2022

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September 19, 2022

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Complaint,Petition: Parents of Eagle Peak vs. Michelle Hammons

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