2017-00213972-CU-PO

Nicholas B. vs. River Delta Joint Unified School District

Nature of Proceeding: Motion to File Second Amended Complaint

Filed By: Meleyco, Kenneth N.

Plaintiff Nicholas B.’s motion for leave to file a second amended complaint (“SAC”) is ruled upon as follows.

Overview

This is a personal injury and Title IX action associated with a sexual assault at Delta High School. The action is brought Plaintiff is Nicholas B., by and through is guardian ad litem. Plaintiff filed his complaint on 6/12/2017, and a first amended complaint on 10/22/2018. Plaintiff alleges that he joined the basketball team in September 2015. During practice, at huddles and conferences on the basketball court, Kayden N. and defendant coach Stephen Bunch (“Bunch”) would not only, condone, encourage, and allow, but actually also authorize, encourage, and “join in on”, and openly engage in such sexual banter. He alleges that on February 1, 2016, three fellow students pinned him down in a locker room while one of them rubbed his penis in Nicholas’ face.

Plaintiff also asserts violations of Title IX and violations of 42 U.S.C. §1983 (“Federal Claims”). With respect to the Federal Claims, Plaintiff alleges that after the incident in the locker room, defendant River Delta Joint Unified School District (“District”) failed to address bullying and harassment by other students, which forced Plaintiff to move to a different high school. Plaintiff asserts the following Federal Claims: Violation of Title IX (20 U.S.C. § 1681 Et Seq.) Due to District’s Deliberate Indifference to Alleged Sex-Based Harassment (as against DISTRICT); Violation of Title IX (20 U.S.C. § 1681 et seq.) Due to District’s Retaliation by Withholding Title IX Protections (as against District only); Violation of Civil Rights (42 U.S.C. § 1983) (as against District, and All Individual Defendants); and, Monell Liability for Failure to Train and Supervise as to Response to Sexual Assault and/or Harassment and/or Sex-Based Harassment (42

U.S.C. § 1983) (as to District).

Trial was initially scheduled for February 11, 2019. Trial is now set for October 21, 2019.

Plaintiff moves to amend the complaint to add a new plaintiff, John D. (“John D.”) John D. “is also a former student at the same school, and was also forced to leave, before graduating, by the same sex-based hostile and retaliatory educational environment. JOHN D. also seeks to assert the same federal theories of recovery for violations of Federal Title IX and other Federal Civil Rights, against the same Defendants, based on a common nexus of overlapping, operative material facts.” (Declaration of Kenneth Meleyco (“Meleyco Decl.”), ¶ 2.)

John D. attended the school in the fall of 2015, with his last day being September 26, 2015. He was a member of the football team which was also coached by Bunch. John D. alleges that he also experienced sex-based hazing and bullying from members of the football team and Bunch, and that the District knew, encouraged, allowed the conduct. Ryan T. and Jayden N. (two of the three assailants in the Nicholas B. incident) were also on the football team and engaged in such conduct. Due to the harassment and bullying, John D. left the school after only a few weeks.

John D. was recently deposed as a percipient witness to the events. His parents

became interested in the existing lawsuit and entered into discussions with Meleyco regarding his representation and filing of an action on his behalf. (Meleyco Decl., ¶ 8D.) Melecyo has just retained John D. as a client. (Id.)

The amendments will “assert the same patterns, practice, and customs of Defendant DISTRICT and its administrative Defendants Superintendent BENO and PRINCIPAL USLAN, in knowingly allowing Defendant Coach BUNCH to engage in very sexually explicit discussions with minors on his teams, and condoning and indeed encouraging his minor student athletes, to do the same, with both retaliating against any student athlete who raised objections thereto.” (Id. ¶ 8A.)

According to Plaintiff, the proposed amendments are necessary and proper to conserve judicial resources in not having to conduct two trials with “(i) with overlapping witnesses as to the same nexus of operative facts; (ii) on the same underlying legal issues ~ Federal Title IX and Federal Civil Rights; (iii) against the same Defendants;

(iv) to determine exactly the same underlying, common, material issue of whether Defendant Coach Bunch’s long and storied history . . . violated those Federal rights over years.” (Meleyco Decl. ¶8B.)

The River Delta Joint Unified School District, Don Beno, Laura Uslan, and Bunch (collectively “Defendants”) oppose the motion.

Analysis

Defendants oppose the motion on the ground that Plaintiff fails to satisfy the requirements of CCP §378 – the permissive joinder statute. None of the cases which District and Bunch rely upon are on point since the cases did not involve a motion for leave to amend. Instead, the cases involved demurrers on the ground of misjoinder

pursuant to CCP §378 and CCP §430.10(d), or post-trial issues. District and Bunch tender no legal authority that on a motion for leave to amend, the Plaintiff must satisfy the requirements of CCP §378. Indeed, CCP §473 expressly allows a party to amend a pleading to add a new party. (CCP §473(a)(1) [“the court may, in the furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party. . .”].) A challenge to the pleadings on the ground for misjoinder is the appropriate procedure to object to the misjoinder of parties.

Defendants insist that adding a new plaintiff is prejudicial since many of the witnesses will likely need to be re-deposed, would require written discovery and new depositions. This is not the type of prejudice which otherwise justifies denial of leave to amend especially since Defendants have adequate time to complete appropriate discovery and file any additional motions they find appropriate. Moreover, Defendants fail to tender any evidence showing what new discovery will be required, or which witnesses will need to be re-deposed.

Nor have Defendants convinced that Court that the motion should be denied because it “interjects new claims, and entirely new set of circumstances and an additional plaintiff into a case for which trial was originally set to commence prior to this hearing.” (Bunch’s opposition, 14:16-18.) The cases upon which Defendants rely are inapposite. In Lewis and Queen v. S. Edmondson & Sons (1952) 113 Cal.App.2d 705, the motion was brought at the time of trial. Bonded Prod Co. v. R.C. Gallyon (1964) 228 Cal.App.2d 186 concerned the relation-back doctrine. In Wood v. DeLuca (1963) 211 Cal.App.2d 507, after trial, the defendant argued that the amended complaint alleged an entirely new cause of action at a time when such new cause of action was barred by the statute of limitations. The Court of Appeal acknowledged that “[i]t is perfectly true that an entirely different cause of action should not be permitted, especially after the statute of limitations on such new cause has run.” (Wood, supra, 211 Cal.App.2d at 514.) Notably, the court explained that “[t]he test is not whether under technical rules of pleading a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant. The power to permit amendment is denied only if a change is made in the liability sought to be enforced against the defendant.” (Id. at 511.) Here, the Court cannot conclude that the amendments give rise to a “wholly distinct and different legal obligation” against the Defendants. John D. and Nicholas B. were both coached by Bunch, with some of the same players, and experienced similar sexually-charged and harassing environments/conduct. Both left school early based on the conduct.

Defendants further argue that allowing the amendments will ensure a more complicated trial which will result in jury confusion. According to Defendants, since the jury would have to examine each factual claim of harassment against John D. and Nicholas B., “the scope of the issues the jury will be required to decide will more than double . . . [which] will not only require undue consumption of time but presents a very real risk that the jury will be confused about the distinction between the claims to the almost certain prejudice to all Defendants.” (Bunch’s Opposition, 12:21-24.) Defendants have not persuaded the Court that this potential for confusion gives causes the sort of prejudice that outweighs the “strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Mgmt. Co. (1985) 39 Cal. 3d 290, 296; Dye v. Caterpillar, Inc. (2011) 195 Cal. App. 4th 1366, 1380.) Additionally, the trial court is the best position to control the trial to avoid any potential confusion.

Defendants lastly question Plaintiff’s delay in bringing the motion. According to Defendants, Plaintiff’s counsel has been aware John D. since March 2018, yet delayed bringing filing the motion. While there may have been some delay, Defendants have not demonstrated any prejudice by the delay.

The motion for leave to file the SAC is GRANTED. By granting leave to amend, the Court expresses no opinion as to whether John D. is properly joined as a plaintiff or the merits of the causes of action raised by John D.

Plaintiff may file and serve a second amended complaint (“SAC”) by no later than February 22, 2019, Response to be filed and served within 30 days thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.