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1 LAW OFFICES OF
WALKUP, MELODIA, KELLY & SCHOENBERGER
2
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET, 26TH FLOOR
3 SAN FRANCISCO, CALIFORNIA 94108-2615
T: (415) 981-7210 · F: (415) 391-6965
4
KHALDOUN A. BAGHDADI (State Bar #190111)
5 kbaghdadi@walkuplawoffice.com
VALERIE N. ROSE (State Bar #272566)
6 vrose@walkuplawoffice.com
CLIFTON N. SMOOT (State Bar #305728)
7 csmoot@walkuplawoffice.com
ATTORNEYS FOR PLAINTIFF
8 A.V., a minor, by and through her Guardian
Ad Litem SANDRA VIVAS
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN MATEO
12
13 A.V., a minor, by and through her Case No.
Guardian Ad Litem SANDRA VIVAS,
14 COMPLAINT FOR DAMAGES
Plaintiff,
15
v. [Amount in controversy exceeds $25,000]
16
SAN BRUNO PARK SCHOOL
17 DISTRICT, JEREMY YEH and DOES 1-
100, DEMAND FOR JURY TRIAL
18
19 Defendants.
20 Plaintiff A.V., a minor by and through her Guardian Ad Litem Sandra Vivas,
21 complains of Defendants, and each of them, and alleges as follows:
22 PARTIES
23 1. At all relevant times herein mentioned, Plaintiff A.V. (hereinafter
24 “Plaintiff”) was a minor residing within the County of San Mateo, in the State of
25 California.
26 2. Sandra Vivas is the natural mother of Plaintiff A.V. and is a resident of
27 San Mateo County. She brings this action on behalf of her minor daughter A.V. as
28 her Guardian ad Litem.
1
COMPLAINT FOR DAMAGES
1 3. At all relevant times herein mentioned, Defendant SAN BRUNO PARK
2 SCHOOL DISTRICT (hereinafter “SBPSD”) was a public entity within the meaning
3 of California Government Code sections 811.2, 900 et seq., duly incorporated and
4 operating under California law as a public school district.
5 4. At all relevant times herein mentioned, Defendant JEREMEY YEH
6 (hereinafter “YEH”) was a natural person residing within the County of San Mateo,
7 in the State of California. All actions taken as alleged herein were taken by YEH in
8 the course and scope of his employment with SBPSD.
9 5. The true names, capacities and/or involvement, whether individual,
10 corporate, governmental, or associate, of the defendants named hereinafter as DOE
11 1-100 are presently unknown to Plaintiff who therefore sues said defendants by
12 fictitious names. Plaintiff prays leave to amend this Complaint to show their true
13 names, capacities, or involvement when they have been determined.
14 6. Plaintiff is informed and believes, and upon such information and belief
15 alleges, that each defendant designated herein as DOE 1-100 is negligently or
16 otherwise legally responsible in some manner for the events and happenings herein
17 referred to, and negligently or otherwise caused injuries and damages proximately
18 thereby to Plaintiff as hereinafter alleged.
19 7. At all times herein mentioned, each and every of the defendants herein
20 was the agent, servant, partner, joint venturer, employee, and/or franchisee of each
21 of the other defendants, and each was at all times acting within the course and scope
22 of such agency, service, employment, joint venture, partnership, and/or franchise.
23 FACTS
24 8. At all relevant times herein, Plaintiff A.V. was a minor residing within
25 the County of San Mateo and was a student at Allen Elementary School (hereinafter
26 “AES”) in the SBPSD.
27 9. During the 2018-2019 school year, when Plaintiff was six years old,
28 SBPSD assigned A.V. to YEH’s second grade class at AES.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
2
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 10. Several times a week, every week of the 2018-2019 school year at AES,
2 while Plaintiff was in the care and supervision of SBPSD, teacher YEH repeatedly
3 sexually battered, molested, assaulted and harassed A.V., holding her behind his
4 teacher’s desk at the front of the classroom and touching and fondling her genitals
5 underneath her underwear.
6 11. Prior to assigning A.V. to YEH’s classroom for the 2018-2019 school
7 year, SBPSD was already on notice, at least as early as the 2016-2017 school year, of
8 YEH’s proclivity to sexually abuse his students and SBPSD knew YEH posed a
9 threat to the safety of A.V. and her classmates but took no steps to prevent YEH’s
10 abuse.
11 12. For example, during the 2016-2017 school year, while YEH taught a
12 first/second grade combined class at El Crystal Elementary School (“ECES”),
13 multiple ECES students told administrators that YEH pulled down a female
14 student’s pants while hugging her and looked down the pants of another female
15 student. Upon receiving the student reports, SBPSD and ECES administrators
16 concealed YEH’s abuse, failed to document, investigate or respond to prevent further
17 incidents and failed to comply with their mandatory duty to report suspected abuse
18 to law enforcement. Compounding the District’s inaction, an ECES administrator
19 who received the reports “reassured [YEH] that he is not a victim, rather the child is
20 troubled” and disciplined the reporting students for “spreading rumors.” These
21 actions amount to ratification of YEH’s misconduct and thereafter YEH continued to
22 sexually molest students, including Plaintiff.
23 13. On information and belief, over the course of YEH’s employment with
24 SBPSD 2016 through 2021, YEH repeatedly engaged in lewd acts with minor
25 students at ECES and AES, subjecting multiple victim students to ongoing sexual
26 battery, assault, molestation and harassment.
27 14. YEH routinely engaged in grooming behaviors with A.V. and other
28 victim students, including offering his classroom to A.V. in the mornings and
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
3
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 encouraging her to wait inside his room when she arrived early, lavishing
2 inappropriate affection on A.V. and other victims and contacting students outside of
3 school via online gaming platforms and other applications. YEH’s grooming conduct
4 was open, obvious, and known or reasonably should have been known, to SBPSD,
5 ECES and AES administrators and staff.
6 15. SBPSD knew, or reasonably should have, that YEH posed a threat to
7 Plaintiff and other students, and that YEH was engaging in sexual misconduct with
8 A.V. and other students, but nonetheless negligently failed to monitor YEH or
9 supervise A.V. and other students to ensure their safety.
10 16. On information and belief, Defendants SBPSD, DOES 1-50, and each of
11 them, knew or reasonably should have known, of YEH’s sexual abuse of Plaintiff
12 while Plaintiff was in the care of Defendant SBPSD.
13 17. Prior to YEH’s sexual, physical and emotional abuse of Plaintiff during
14 the 2018-2019 school year, employees, administrators and agents of SBPSD, ECES
15 and AES, had knowledge of information giving rise to a reasonable suspicion that
16 YEH was engaging in criminal activity on SBPSD campuses but they were
17 deliberately indifferent to it and negligently failed to monitor YEH, supervise
18 students or take intervening action to ensure student safety.
19 18. On information and belief, SBPSD had a long-standing history and a
20 pattern and practice of ignoring and/or mishandling reports of student sexual
21 harassment and of failing to document, investigate or adequately respond to reports
22 alleging SBPSD employees engaged in sexual misconduct with students.
23 19. In April 2023, YEH was arrested and subsequently charged with 22
24 felony counts of PC288(a) Lewd Acts Upon a Child, with multiple felony
25 enhancements, in connection with his sexual assaults of A.V. and other victim
26 students over the course of his employment with SBPSD as a teacher at ECES and
27 AES.
28 20. At no time prior to YEH’s 2023 arrest for child sexual abuse did SBPSD
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
4
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 inform Plaintiff’s parents that A.V. was a victim of YEH, or of the substance or
2 outcome of any investigation(s) of YEH related to his inappropriate misconduct with
3 Plaintiff or other students.
4 21. On information and belief, Defendants SBPSD and DOES 1-50, and
5 each of them, failed to take appropriate action to intervene and stop the abuse,
6 negligently failed to monitor, supervise and/or control YEH, and failed to adequately
7 supervise Plaintiff to protect her from abuse while she was in their care.
8 22. Prior to and during the 2018-2019 school year, Defendants SBPSD and
9 DOES 1-50, and each of them, knew or reasonably should have known of YEH’s
10 proclivity to abuse students, that YEH posed a threat to the safety and welfare of
11 students, and that YEH was likely to abuse A.V. and other students if Defendants
12 did not provide constant and diligent supervision.
13 23. Despite their actual and/or constructive knowledge of the danger YEH
14 posed to A.V. and other AES students during the 2018-2019 school year, Defendants
15 and each of them, negligently failed to monitor, supervise and/or maintain control of
16 YEH and of students and failed to protect Plaintiff from repeated sexual battery,
17 assault, molestation and harassment by YEH while in Defendants’ care.
18 24. As a proximate and legal result of SBPSD’s and its employees’ and
19 agents’ negligence and deliberate indifference to Plaintiff’s safety, their negligent
20 supervision of students and employees on campus during school hours, and their
21 negligent and deliberate indifference to reports of student sexual harassment on its
22 campuses, Plaintiff was sexually battered, assaulted, molested, harassed,
23 discriminated against, deprived of access to the educational opportunities and
24 benefits she was entitled and otherwise harmed.
25 STATUTE OF LIMITATIONS AND TORT CLAIM COMPLIANCE
26 25. California’s Assembly Bill 218, otherwise known as the California Child
27 Victims Act, took effect January 1, 2020 and expanded the statute of limitations for
28 survivors of sexual assault, thus allowing Plaintiff’s claims to proceed. These changes
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
5
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 are codified as California Code of Civil Procedure section 340.1.
2 26. Per section 340.1(a), an action for recovery of damages suffered as a
3 result of childhood sexual assault shall commence within twenty-two years of the
4 date the plaintiff attains the age of majority (effectively on a plaintiff’s fortieth
5 birthday) or within five years of the date the plaintiff discovers or reasonably should
6 have discovered that psychological injury or illness occurring after the age of
7 majority, whichever period expires later.
8 27. Plaintiff’s date of birth is August 9, 2011, and thus, she has filed this
9 action within the statute of limitations set forth in C.C.P. section 340.1(c) as to her
10 claims of childhood sexual assault against all defendants named in this action.
11 28. Defendant SBPSD is, and at all relevant times herein mentioned was, a
12 public entity with the ability to own, operate, and control AES. However, pursuant to
13 Government Code section 905(m), Plaintiff is exempt from the requirement to
14 present a government tort claim to Defendant SBPSD. (See Coats v. New Haven
15 Unified School Dist. (2020) 46. Cal.App.5th 415, 430-31.)
16 29. Nevertheless, on May 3, 2023, a written claim for damages setting forth
17 the matters herein alleged was duly and regularly presented on behalf of Plaintiff to
18 Defendant SBPSD in accordance with the appropriate sections of the California
19 Government Code. SBPSD took no action on Plaintiff’s claim and it was thereafter
20 deemed rejected by operation of law.
21 FIRST CAUSE OF ACTION
22 (Negligence—All Defendants)
23 30. Plaintiff hereby refers to and incorporates by this reference each of the
24 allegations set forth above and makes them part of this cause of action as though
25 fully set forth herein.
26 31. Defendant SBPSD has a duty to supervise students on the premises of
27 AES. (Cal. Ed. Code § 44807.) The standard of care imposed upon school employees in
28 carrying out their duty to supervise is identical to that required in the performance of
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
6
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 their other duties, i.e., that degree of care which a person of ordinary prudence,
2 charged with comparable duties, would exercise under the same circumstances;
3 either a total lack of supervision or ineffective supervision may constitute a lack of
4 ordinary care on the part of those responsible for student supervision. (Hoff v.
5 Vacaville Unified School Dist. (1998) 19 Cal.4th 925.)
6 32. Defendant SBPSD owed a duty of care to Plaintiff due to the “special
7 relationship” between a school and its students. This duty includes supervising and
8 protecting Plaintiff and other students from potential dangers while on school
9 grounds, including protecting students from being subjected to sexual abuse on
10 school grounds, during school hours by a school employee. (CA v. William S. Hart
11 Union High School District (2012) 53 Cal.4th 861, 870.) SBPSD, and its employees and
12 agents, breached this duty to Plaintiff by negligently failing to screen, monitor,
13 supervise, train and/or discipline YEH and recklessly permitting YEH to perpetrate
14 ongoing sexual abuse against multiple students, including Plaintiff, during class.
15 33. Defendants, and each of them, knew or reasonably should have known
16 through prior reports, that YEH posed a risk to Plaintiff and other students.
17 Nonetheless, Defendants negligently failed to supervise YEH to prevent him from
18 abusing Plaintiff on the AES campus while in the care of the SBPSD.
19 34. Defendant SBPSD negligently failed to monitor YEH and further failed
20 to supervise students including Plaintiff to prevent YEH’s ongoing sexual battery,
21 assault, molestation and harassment. SBPSD failed to prevent violation of Plaintiff’s
22 civil rights and discrimination of Plaintiff on the basis of her sex.
23 35. Defendant SBPSD further negligently failed to document, investigate or
24 report earlier incidents of YEH’s prior sexual misconduct with students and failed to
25 retrain, discipline and/or terminate YEH to prevent recurrence, including YEH’s
26 subsequent abuse of Plaintiff.
27 36. At all relevant times during the 2018-2019 school year, Defendant
28 SBPSD had control of YEH, of the AES campus where YEH perpetrated his abuse,
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
7
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 and of Plaintiff A.V. Despite their knowledge of YEH’s prior abuse of students and
2 their knowledge that YEH posed a danger to Plaintiff, SBPSD administrators and
3 staff permitted YEH to have unsupervised and unfettered access to Plaintiff on the
4 AES campus and YEH used those opportunities to sexually batter, assault, molest
5 and harass A.V.
6 37. On information and belief, despite their knowledge that young female
7 students, including Plaintiff, were being sexually battered, assaulted, molested and
8 harassed by YEH on the ECES and AES campuses, responsible administrators and
9 employees of SBPSD, each mandated reporters as defined by Penal Code section
10 11165.7, failed to report YEH’s ongoing child abuse to law enforcement and
11 intentionally concealed YEH’S abuse from victims’ families.
12 38. Further, Defendant SBPSD breached its duty to Plaintiff by violating
13 the SBPSD board policies and regulations intended to prevent student sexual
14 harassment and abuse, including without limitation SBPSD Board Policy (BP)
15 5141.43, 5141.43, and 5145.1. The failures to document, investigate, respond or
16 resolve ongoing student sexual harassment created a hostile environment where
17 pervasive student sexual harassment flourished and led to YEH’s abuse of Plaintiff.
18 39. Defendants, and each of them, are vicariously liable for injuries
19 proximately caused by negligence of school personnel responsible for student
20 supervision.
21 40. Defendant SBPSD is vicariously liable for injuries proximately caused
22 by the negligence of school employees responsible for student supervision under
23 Government. Code section 815.2(a).
24 41. Plaintiff is informed and believes and thereon alleges that, in addition
25 to named Defendants, there are other DOE defendants who were also administrators,
26 board members, teachers, aides, employees and/or agents of Defendants who were
27 responsible for student supervision and who failed to properly supervise, monitor,
28 and control the students and who were responsible for the acts alleged herein.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
8
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 42. Defendants, and each of them, are responsible for student supervision.
2 They had a duty of care toward Plaintiff to prevent the abuse perpetrated against her
3 by YEH while the in care of the SBPSD at AES. Defendants, and each of them,
4 breached their duty by failing to supervise the conduct of employees with students,
5 giving rise to vicarious liability.
6 43. On information and belief, prior to Plaintiff’s abuse, SBPSD failed to
7 comply with BP 5145.7 prohibiting sexual and gender-based harassment of students
8 while on campus. The policy required SBPSD to take prompt action to stop sexual
9 harassment, prevent recurrence, implement remedies and address any continuing
10 effects. The policy also required any SBPSD employee who received a report of
11 sexual harassment of a student to, within one school day, forward the report to the
12 principal or the Title IX Coordinator who in turn shall inform the student or parent
13 of their right to file a formal written complaint under AR 1312.3 Uniform Complaint
14 Procedures (UCP).
15 44. On information and belief, prior to Plaintiff’s abuse, Defendant SBPSD
16 further failed to comply with AR 1312.3 UCP which required SBPSD to investigate
17 and resolve all complaints alleging sexual harassment of a student, maintain a log of
18 all such complaints received, conduct an investigation to include “collection of all
19 available documents and review all available records notes, or statements related to
20 the complaint…interview all available witnesses…prepare and send to the
21 complainant a written investigation report within 60 days of the receipt of the
22 complaint.”
23 45. Defendant SBPSD breached these duties after receiving reports, at least
24 as early as during the 2016-2017 school year, that female students were sexually
25 molested and harassed by YEH.
26 46. Defendant SBPSD negligently and recklessly, in deliberate indifference
27 to Plaintiff’s and other students’ safety, failed to investigate after receiving earlier
28 student reports of YEH’s sexual misconduct and criminal activity, failed to discipline,
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
9
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 retrain and/or terminate YEH, thereby ratifying his misconduct and failed to report
2 the abuse to law enforcement as required. Such reasonable steps would have
3 prevented Plaintiff’s subsequent sexual abuse by YEH.
4 47. SBPSD administrators and staff who were mandated reporters as
5 defined by Penal Code section 11165.7 failed to report known incidents of YEH’s
6 sexual battery, assault, molestation and harassment to an agency defined in Penal
7 Code section 11165.9.
8 48. Further, Defendants breached their duty to Plaintiff in violating board
9 policies 5141.41 and 5145.7, requiring it adequately hire, train, retain and supervise
10 qualified investigators to investigate and report claims of suspected student sexual
11 harassment.
12 49. YEH’s ongoing sexual battery, assault, molestation and harassment of
13 Plaintiff violated Education Code Section 220. Plaintiff was harmed by being
14 subjected to harassment at school because of her sex, gender and age.
15 50. As a proximate result of Defendants’ negligent acts, Plaintiff has
16 incurred damages as alleged heretofore.
17 SECOND CAUSE OF ACTION
18 (Intentional Infliction of Emotional Distress—YEH and DOES 51-70)
19 51. Plaintiff hereby refers to and incorporates by reference each of the
20 allegations set forth above and makes them part of this cause of action as though
21 fully set forth herein.
22 52. The actions of Defendants YEH and DOES 51-70 as alleged herein were
23 outrageous, malicious, made in reckless disregard of the probability that Plaintiff
24 would suffer emotional distress, and intended to and did inflict emotional distress
25 and humiliation upon Plaintiff.
26 53. As a proximate result of Defendants’ acts, Plaintiff has incurred
27 damages as alleged heretofore.
28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
10
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 THIRD CAUSE OF ACTION
2 (Negligent Hiring, Supervision, and Retention—SBPSD and DOES 1-50)
3 54. Plaintiff hereby refers to and incorporates by reference each of the
4 allegations set forth above and makes them part of this cause of action as though
5 fully set forth herein.
6 55. Defendants, and each of them, had a duty not to hire and/or retain YEH,
7 given his known propensity to sexually molest students in his care; to provide
8 adequate supervision of YEH; to use reasonable care in responding to allegations
9 YEH engaged in sexual misconduct with students, including by ensuring all such
10 reports were thoroughly investigated, tracked and resolved; to discipline, retrain or
11 remove YEH from his employment on the basis of his tortious misconduct; to provide
12 adequate supervision and protection to A.V. and other students whom Defendants
13 allowed YEH to access; and to provide adequate warnings to Plaintiff’s parents and
14 AES staff regarding YEH’s prior unfitness, predatory, troubling and abnormal
15 behaviors, dangerous propensities, and proclivities to engage in sexual abuse of
16 minor students.
17 56. Defendants, and each of them, knew or reasonably should have known
18 of YEH’s dangerous and exploitative propensities, that he was an unfit agent, and of
19 his predatory proclivities to engage in sexual misconduct with minor students. It was
20 reasonably foreseeable that if Defendants breached the duty of care owed to Plaintiff,
21 she would be even more vulnerable to abuse by YEH.
22 57. Despite their actual and/or constructive notice of YEH’s predatory
23 propensities to engage in sexual misconduct with minor students, Defendants, and
24 each of them, negligently hired, retained, and failed to supervise YEH, thereby
25 providing him repeated and ongoing opportunities to access Plaintiff to commit
26 ongoing willful criminal sexual acts against her.
27 58. Accordingly, Defendants, and each of them, failed to take reasonable
28 steps to prevent and avoid acts of sexual abuse despite having actual and/or
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
11
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 constructive notice.
2 59. YEH’s unfitness resulted in harm to Plaintiff during a period including
3 the 2018-2019 school year, when YEH used his position as an employee of Defendant
4 SBPSD with unsupervised access to young students at AES, to engage in repeated,
5 ongoing acts of sexual abuse of Plaintiff, resulting in injuries and damages to
6 Plaintiff as alleged herein.
7 60. As a proximate result of Defendants’ negligent acts, Plaintiff has
8 incurred damages as alleged heretofore.
9 FOURTH CAUSE OF ACTION
10 (Sexual Battery—YEH and DOES 51-70)
11 61. Plaintiff hereby refers to and incorporates by reference each of the
12 allegations set forth above and makes them part of this cause of action as though
13 fully set forth herein.
14 62. During the period including the 2018-2019 school year, Defendant YEH
15 used his position as an employee of Defendant SBPSD with unsupervised access to
16 young students at AES, to repeatedly engage in unpermitted, harmful, offensive, and
17 unlawful sexual battery upon the person of Plaintiff, a six-year-old second grade
18 student at the time.
19 63. Plaintiff did not consent to these acts of sexual battery which were
20 committed by YEG against Plaintiff’s will.
21 64. Defendant YEH’s misconduct against Plaintiff constitutes sexual
22 battery within the meaning of California Civil Code Section 1708.5 and Penal Code
23 Section 234.(b) and resulted in significant injuries and damages to Plaintiff.
24 65. As a direct, legal, and proximate cause of the conduct of Defendants,
25 and each of them, as herein alleged above, Plaintiff was harmed as heretofore
26 alleged.
27 66. These acts of Defendants, and each of them, alleged above were done
28 maliciously, oppressively, and/or fraudulently, entitling Plaintiff to recover punitive
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
12
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 damages from Defendants YEH, and DOES 51-70, in an amount to be proven at the
2 time of trial of this action.
3 FIFTH CAUSE OF ACTION
4 (Failure to Perform Mandatory Duties—SBPSD and DOES 1-50)
5 67. Plaintiff hereby refers to and incorporates by this reference each of the
6 allegations set forth above and makes them part of this cause of action as though
7 fully set forth herein.
8 68. Defendants SBPSD and DOES 1 through 50, and each of them, had a
9 mandatory reporting duty imposed by California Penal Code Sections 11164 et seq.
10 at the time of the abuse of Plaintiff.
11 69. Defendants’ mandatory duties owed to Plaintiff pursuant to California
12 Penal Code Sections 11164 et seq. included the requirement that they promptly
13 contact law enforcement and/or other appropriate administrative agencies to report
14 all suspected child abuse upon learning of it.
15 70. Prior to the unlawful sexual battery YEH perpetrated upon Plaintiff,
16 Defendants SBPSD and DOES 1 through 50, and each of them, had actual and/or
17 constructive notice of YEH’s predatory proclivity to sexually abuse minor students,
18 including through multiple student reports during the 2016-2017 school year when
19 students advised ECES administrators that YEH pulled down a female student’s
20 pants while hugging her and looked down the pants of another female student.
21 71. Despite their actual and/or constructive notice of YEH’s predatory
22 proclivity to sexually abuse minor students, these administrators, employees, and
23 staff members, all within the course and scope of their employment with SBPSD and
24 DOES 1 through 50 and each of them, failed to comply with their mandatory duty to
25 promptly notify law enforcement and/or an administrative agency as required by
26 California Penal Code sections 11164 et seq.
27 72. As a direct, legal, and proximate cause of the conduct of Defendants,
28 and each of them, as herein alleged above, Plaintiff was harmed as heretofore
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
13
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 alleged.
2 SIXTH CAUSE OF ACTION
3 (Violation of Ralph Act (Civ. Code § 51.7)—YEH and DOES 51-70)
4 73. Plaintiff hereby refers to and incorporates by this reference each of the
5 allegations set forth above and makes them part of this cause of action as though
6 fully set forth herein.
7 74. Defendant YEH committed an intentional act of violence against
8 Plaintiff A.V., with a substantial motivating reason being her sex.
9 75. As a direct, legal, and proximate cause of the conduct of Defendants,
10 and each of them, as herein alleged above, Plaintiff was harmed as heretofore
11 alleged.
12 SEVENTH CAUSE OF ACTION
13 (Violation of Bane Act (Civ. Code § 52.1)—All Defendants)
14 76. Plaintiff hereby refers to and incorporates by reference each of the
15 allegations set forth above and makes them part of this cause of action as though
16 fully set forth herein.
17 77. Defendants, and each of them, intentionally interfered with Plaintiff’s
18 civil rights, including her right to a public education free from harassment and
19 discrimination, by threats, intimidation and coercion. In so doing, Defendants
20 intended to deprive Plaintiff of her enjoyment of the interests protected by these
21 rights.
22 78. As a direct, legal, and proximate cause of the conduct of Defendants,
23 and each of them, as herein alleged above, Plaintiff was harmed as heretofore
24 alleged.
25 EIGHTH CLAIM FOR RELIEF
26 (Violation of California Education Code §§ 200 et seq.—SBPSD and DOES 1-50)
27 79. Plaintiff hereby refers to and incorporates by this reference each of the
28 allegations set forth above and makes them part of this cause of action as though
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
14
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 fully set forth herein.
2 80. California Education Code section 200 et seq. provides for a private right
3 of action for intentional discrimination on the basis of sex, which includes sexual
4 harassment.
5 81. Section 220 of the Education Code provides: “[n]o person shall be
6 subjected to discrimination on the basis of . . . gender . . . in any program or activity
7 conducted by an educational institution that receives, or benefits from, state financial
8 assistance or enrolls pupils who receive state student financial aid.”
9 82. The California legislature specifically declared its intent that an action
10 under the Education Code shall be interpreted as consistent with Title IX of the
11 Education Amendments of 1972, 20 USC 1681, et seq. (Cal. Ed. Code § 201(g).) A
12 plaintiff may maintain an action for monetary damages against a school district
13 when the plaintiff alleges that he suffered severe, pervasive and offensive
14 harassment that effectively deprived the plaintiff of the right of equal access to
15 educational benefits and opportunities; the school had actual knowledge of the
16 harassment; and the school responded with deliberate indifference. (Donovan v.
17 Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 603-09.)
18 83. The California legislature recognized that all pupils enrolled in the state
19 public schools have the inalienable right to attend classes on school campuses that
20 are safe, secure, and peaceful. (Cal. Ed. Code §32261 (a); Cal. Const., art. I, § 28(c).)
21 84. Defendants SBPSD and DOES 1 through 50 knew YEH was previously
22 reported by his students to have sexually molested them, but nonetheless permitted
23 YEH to have unsupervised access to A.V. for extended periods of time during which
24 YEH sexually battered, assaulted, molested and harassed Plaintiff during school
25 hours on the AES campus.
26 85. This type of sexual harassment is actionable because it is based on
27 A.V.’s gender and was so severe and pervasive that it had detrimental effect on A.V.’s
28 mental health and caused substantial interference with her ability to participate in
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
15
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
COMPLAINT FOR DAMAGES
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 or benefit from the educational programs, opportunities and benefits owed to her.
2 86. YEH’s sexual battery, assault, molestation and harassment of A.V.
3 occurred on the AES campus during the time periods designated as educational
4 hours for A.V. SBPSD permitted YEH to have unsupervised access to A.V. for
5 extended periods of time during which YEH repeatedly sexually abused A.V. and
6 Defendants did not intervene.
7 87. On information and belief, SBPSD and DOES 1 through 50 had actual
8 knowledge of this ongoing harassment but failed act to stop it. The failure to halt
9 harassment of which a school district is aware constitutes intentional discrimination.
10 (Franklin v. Gwinnet County Public Schools (1992) 502 U.S. 112.)
11 88. Defendants’ responsibility to address and respond to sexual harassment
12 applies regardless of the potential application of any harassment prevention policy
13 and regardless of whether a student has complained, asked the school to take action,
14 or identified the harassment as a form of discrimination. (See U.S. Dept. of
15 Education, Office for Civil Rights, Dear Colleagues Letter, Oct. 26, 2010.)
16 89. SBPSD failed in its responsibility to provide A.V. an environment free
17 from discrimination and harassment and A.V. suffered severe psychological trauma
18 as a result.
19 90. SBPSD had control over YEH, the harasser, and the AES campus where
20 the harassment occurred. SBPSD and its officials had authority to take corrective
21 action to end the discrimination and harassment, but failed to do so and ignored prior