Filed 12/2/20 B.Q. v. Mesa Union School Dist. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
B.Q., a Minor, etc., 2d Civ. No. B303351
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00529221-CU-CR-VTA)
(Ventura County)
v.
MESA UNION SCHOOL
DISTRICT,
Defendant and Respondent.
Plaintiff B.Q., a minor by and through his guardian ad
litem, appeals a judgment of dismissal following the sustaining of
a demurrer without leave to amend on his lawsuit against the
Mesa Union School District (District). He alleged he is a Muslim
student and suffered harm due to his teacher’s biased, insulting,
and discriminatory attacks on his religion.
We conclude, among other things, that the trial court
correctly ruled that the Prohibition of Discrimination in
1
Education (PDE) Act (Ed. Code, § 220)1 does not eliminate the
requirement that a plaintiff seeking damages against a public
school district must first file a government tort claim (Gov. Code,
§ 905) before filing a PDE action. Here because the plaintiff did
not file a government tort claim, the trial court properly
sustained a demurrer without leave to amend. We affirm.
FACTS
In 2017, B.Q. was a seventh grade elementary school
student in the District. He was the “only Muslim student” in the
District’s seventh grade language arts and social studies classes.
B.Q.’s social studies teacher passed out a “worksheet” to his
students that contained “false and discriminatory information
about Sharia law and Islamic practices.” The worksheet included
information the teacher obtained from an “Islamophobic website.”
The goal of that website was to “support the growth of
Christianity.”
The worksheet contained “false and offensive” translations
of Sharia law. During one class discussion, B.Q.’s teacher’s
“lesson and comments directly informed his classmates that
Islam permits Muslims to rape with the blessing of Allah.” After
one lesson, B.Q. heard a male student tell a female student that
“if he were Muslim, he could rape her if he wanted to and no one
would care.”
Part of the instructional material the teacher provided
taught students that a “[Muslim] man can marry an infant girl
and consummate the marriage when she is 9 years old.” “A
woman or girl who alleges rape without producing 4 male
witnesses is guilty of adultery.” “A woman or girl found guilty of
All statutory references are to the Education Code unless
1
otherwise stated.
2.
adultery is punishable by death.” “Muslim men have sexual
rights to any woman/girl not wearing the Hijab.”
In one lesson the teacher asked the students to compare
Islamic culture with American culture to “driv[e] home the point
that Muslims are different and a disfavored group.” The teacher
also showed the students videos with “images of Muslims
engaged in violent behavior, fighting with guns, and whipping
and enslaving each other with chains.” He depicted Islam “as a
violent religion that supports and encourages war.” The teacher
had a “personal bias against Islam and Muslims.” He created a
“discriminatory and hostile environment toward Islam” and B.Q.,
a practicing Muslim.
After reviewing the teacher’s worksheet, B.Q.’s classmates
made comments such as, “ ‘This religion is so messed up’ ” and “ ‘I
can’t believe that people actually follow this religion.’ ” B.Q. was
offended and concerned about the way his teacher was
instructing his classmates to think about his religion.
On October 24, 2017, B.Q.’s parents contacted the school to
complain about the content of the class. B.Q.’s mother informed
the school principal that she wanted her representative from the
Council of American-Islamic Relations (CAIR) to meet with the
principal and the teacher to “informally resolve the situation.”
The principal would not agree to this meeting. He directed her to
file “a complaint through the uniform informal complaint
process.”
On October 26, 2017, CAIR filed an administrative
complaint with the District alleging religious discrimination.
CAIR noted that B.Q. had been “bullied because of his Islamic
faith.” It claimed the District had failed to take action to stop
3.
this discrimination. During one incident, a student shouted
“Allahu Akbar” at B.Q. in-between classes.
From October 25, 2017, to November 1, 2017, B.Q. was
absent from school because the District did not take any action on
his request to stop the religious discrimination. B.Q. did not
attend the language and social studies classes because he
believed his teacher “hated all Muslims and may harm him.”
When he came back to school, B.Q. sat in the library during the
language and social studies classes.
On November 27, 2017, the CAIR advocate emailed the
District’s legal counsel indicating concerns about B.Q.’s isolation
and the ineffectiveness of the District’s alternative individual
learning plan for B.Q.
On December 13, 2017, the District board held a closed
session regarding B.Q.’s complaint entitled “Conference with
Legal Counsel - Anticipated Litigation.” CAIR had asked the
District to require that the teacher apologize and the lesson plan
about Islam be discontinued.
The District’s board denied B.Q.’s complaint. The District
issued a report noting that it had determined that the teacher’s
worksheet was not “improperly motivated by religious
discriminatory intent” and it did not create a “hostile
environment.” It also decided that the website the teacher relied
on was “primary source material.”
On January 10, 2018, B.Q.’s attorney filed an appeal to the
State Department of Education (SDE). (§ 262.3.) The 10-page
appeal described the discriminatory behavior of the teacher, the
District, and the harm to B.Q.; counsel made a demand for
monetary damages.
4.
The SDE granted the appeal and ordered the District to
take corrective action. It ruled that the website selected by the
teacher “carried a discriminatory bias against Islam” and that
the District board could not approve such educational instruction
for elementary school students. It said the “lesson constituted
discrimination based on religion in violation of . . . Section 220.”
(Italics added.)
B.Q. had initially filed a federal civil rights action (42
U.S.C. § 1983) against the District in December 2018. He
subsequently dismissed that action and filed the instant first
amended complaint against the District for violation of section
220 and negligence in the Ventura County Superior Court. He
sought general and special damages.
On September 5, 2019, the District filed a demurrer to the
complaint on the ground that the action was “barred for failure to
comply with the Government Claims Act [Government Code]
§§ 910, 945.4.”
The trial court sustained the demurrer without leave to
amend. It said, “The underlying facts as alleged in the complaint
are deplorable. Nonetheless, this is a claim against a public
entity for money damages. Filing a claim before filing a lawsuit
is required in virtually all cases against a public entity. This was
not done here, and there is no area of exception to avoid that
requirement.”
DISCUSSION
A Government Claims Filing Requirement for PDE Actions?
B.Q. contends the trial court erred because he was “not
required to file a separate Government Tort Claim” for his PDE
cause of action. (§ 220.) He claims: 1) his filing of an
administrative appeal under the Education Code’s Uniform
5.
Complaint Procedures (§ 262.3) was all that was required, and 2)
the Legislature intended to exempt PDE causes of action from the
governmental tort claim requirement. We disagree.
“Ordinarily, filing a claim with a public entity pursuant to
the Claims Act [Gov. Code, §§ 905, 910] is a jurisdictional
element of any cause of action for damages against the public
entity [citations] that must be satisfied in addition to the
exhaustion of any administrative remedies . . . .” (Cornejo v.
Lightbourne (2013) 220 Cal.App.4th 932, 938.) Exceptions to this
“[claims] presentation procedure are rarely found.” (Id. at
p. 939.)
The PDE Act (§ 220) prohibits discrimination based on
religion by any “educational institution” that receives state
financial assistance. (§ 220.) “[M]oney damages are available in
a private enforcement action under section 220.” (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 579.)
But this statute does not contain an express exemption from the
requirement that a plaintiff suing a school district for damages
must initially file a claim under the Government Claims Act.
(Gov. Code, §§ 905, 910.) This is some indication that the
Legislature did not intend to eliminate this claims filing
requirement here. (See, e.g., Gay-Straight Alliance Network v.
Visalia Unified School Dist. (E.D.Cal. 2001) 262 F.Supp.2d 1088,
1110.)
“ ‘Exceptions to the filing requirement not specifically
enumerated . . . have occasionally been allowed, but only where
the claim is based on a statute or statutory scheme that includes
a functionally equivalent claim process.’ ” (Bates v. Franchise
Tax Board (2004) 124 Cal.App.4th 367, 383.) These exceptions
involved claims made to state agencies that were created to
6.
evaluate and determine claims for damages under the statute
that created the agency, and the statute contained a detailed
investigative and comprehensive damage claim process. One
example is the Department of Fair Employment and Housing
(DFEH). In Bates, the court noted that the Fair Employment and
Housing Act (FEHA) contained a functionally equivalent claims
process that allowed litigants to use it in lieu of the Government
Claims Act procedure. The court said, “DFEH is empowered to
investigate complaints, issue subpoenas, take depositions, and
serve written interrogatories.” (Bates, at p. 384.) “Among the
remedies DFEH may impose upon a finding of discrimination[]
are cease and desist orders, actual damages, hiring,
reinstatement, or upgrading employees, backpay or frontpay, and
emotional distress damages.” (Ibid.) The DFEH was an agency
specifically created to screen and evaluate damage claims and
provide a damage remedy.
B.Q. contends there is a similar claims process in the
Education Code. We disagree.
Under section 262.3, subdivision (a), “[a] party to a written
complaint of . . . discrimination may appeal the action taken by
the governing board of a school district . . . to the [SDE].” (Italics
added.) This administrative appeal process is not mandatory.
Those who elect to forego this process are not precluded from
filing a PDE action. (§ 262.3, subd. (c).) The mere existence of
this optional administrative remedy does not mean the
administrative participant is automatically excused from
complying with the Government Claims Act when he or she
decides to sue a district for damages. (Bates v. Franchise Tax
Board, supra, 124 Cal.App.4th at p. 385.)
7.
For those who use this administrative appeal process, there
is a provision that delays seeking civil damages. Section 262.3,
subdivision (d) provides, in relevant part, “[A] person who alleges
that he or she is a victim of discrimination may not seek civil
remedies pursuant to this section until at least 60 days have
elapsed from the filing of an appeal to the [SDE].” But there is no
express reference or connection between this time period and the
Government Claims Act requirements. This 60-day period allows
the SDE time to attempt to mediate disputes by parties to the
appeal. (Donovan v. Poway Unified School Dist., supra, 167
Cal.App.4th at p. 608.)
B.Q. suggests this legislation was intended to change
existing law by eliminating the requirement that a government
claim must be filed before filing a PDE damage lawsuit. But the
goal was to provide an optional administrative procedure for
those who wanted to use it and to declare that this process was
not a requirement for filing litigation. Section 262.3, subdivision
(c) provides, “Nothing in this chapter shall be construed to
require an exhaustion of the administrative complaint process
before civil law remedies may be pursued.” (Italics added.) Those
“civil law remedies” would include both the government claim
and the subsequent lawsuit.
Section 262.3 does not specifically address whether a
government tort claim is required. But this very short
administrative appeal statute does not include the type of
requirements that show the Legislature intended it as a
substitute for the detailed rules, time requirements, and
protections of the Government Claims Act. (Bates v. Franchise
Tax Board, supra, 124 Cal.App.4th at p. 385.)
8.
Unlike the Government Claims Act, section 262.3 does not
require the appellant to file a claim for damages against a district
or require the SDE to decide damage claims. It does not
designate the SDE as an expert state agency in evaluating
damage claims or awarding damages. As the District notes, the
regulations relating to the appeals process refer to the SDE’s
ability: 1) to review the actions of the District, and 2) to order
future corrective action to make the District comply with state
policies. But there is nothing that gives the SDE the authority to
consider or decide damage claims or to financially compensate a
student. (Cal. Code Regs., tit. 5, §§ 4632, 4633.)
Consequently, this appeals process is a review of a district’s
compliance with state procedures, not a forum to litigate tort
claims. In B.Q.’s appeal, the SDE decided whether a lesson plan
violated state education policies on religion and it ordered
corrective action by the District. It did not address B.Q.’s
damage claims. The SDE’s “corrective action” included granting
the appeal, requiring the District to give B.Q. five one-hour
counselling sessions, and requiring future training for social
studies teachers and students. But there was no monetary
compensation for the damage B.Q. suffered. In other words, he
could prevail on this appeal, but the SDE could not, and did not,
consider a claim for damages.
Appellants using this appeals process may not wish to sue
a district and may not have a damage claim, and those who have
damage claims are not required to use it. The Government
Claims Act, by contrast, requires all who seek damages to use the
claims filing procedures. Section 262.3 “does not have a claims
procedure functionally equivalent to the Government Claims
Act.” (Bates v. Franchise Tax Board, supra, 124 Cal.App.4th at
9.
p. 385.) It is not a forum equipped to decide damages. Sections
220 and 262.3 contain “no comparable provisions” to DFEH’s
extensive damage remedies and damage claim process “and there
is, therefore, no reason to exempt actions under those statutes
from the claim filing requirement where the primary relief
sought . . . is money damages.” (Gatto v. County of Sonoma
(2002) 98 Cal.App.4th 744, 764.)
B.Q. contends the Legislature intended the Education Code
antidiscrimination provisions be interpreted consistent with
FEHA. He relies on the general purpose language of section 201,
subdivision (g). That provision involving the student’s right to be
free from discrimination shows that substantive right shall be
consistent with FEHA, the federal Civil Rights Act of 1964, title
IX, etc. But, as the District notes, the Legislature did not adopt
the claim procedures of the FEHA statute into the Education
Code. In Donovan, the court said, “[T]here is little or no support
in the legislative history showing the Legislature based the
antidiscrimination provisions in the Education Code on FEHA
and its statutory framework . . . .” (Donovan v. Poway Unified
School Dist., supra, 167 Cal.App.4th at p. 597, italics added.)
B.Q. notes that in Cornejo v. Lightbourne, the court ruled
Whistleblower Protection Act (WPA) claims were a valid
substitute for the Government Claims Act requirements. But for
WPA, and FEHA, the statutes and regulations not only authorize
those agencies to decide damages, but they also specify the types
of damages to be awarded and include comprehensive procedures
to determine the damages. The absence of such provisions in
section 262.3 shows a legislative intent not to consider it to be a
Government Claims Act substitute. The WPA procedure contains
“every function of the presentation procedure” for damage claims
10.
(Cornejo v. Lightbourne, supra, 220 Cal.App.4th at p. 941);
section 262.3, by contrast, does not.
Moreover, the Legislature would not change the claims
filing requirement without considering the impact on the school
districts. (Rubenstein v. Doe. No. 1 (2017) 3 Cal.5th 903, 916.)
But section 262.3 does not provide districts with the procedural
protections of the Government Claims Act. Under that act,
districts are entitled to pre-litigation notice that a claimant is
seeking damages. (Gov. Code, §§ 905, 910.) But section 262.3
does not require appellants to declare whether they are seeking
damages against a district. If that were the case, districts would
not learn claimants were seeking damages until after the
claimants filed a lawsuit. This would deprive districts of their
pre-litigation right to investigate claims. (Lozada v. City and
County of San Francisco (2006) 145 Cal.App.4th 1139, 1151.)
Section 262.3 is not a replacement for the claims filing
requirement.
The parties cite Gay-Straight Alliance Network v. Visalia
Unified School Dist., supra, 262 F.Supp.2d 1088 and note there
the court essentially found section 220 damage actions must be
initiated by complying with the Government Claims Act. The
court found that even though a plaintiff did not file a standard
form government tort claim, he could proceed with his action
because he had otherwise “substantially complied with the claims
presentation requirement.” (Id. at p. 1110, italics added.) B.Q.
claims that this case is distinguishable because there was no
indication that the plaintiff had also filed an appeal under section
262.3. But B.Q. has not shown why the Legislature would create
two classes of section 220 plaintiffs, with one having to file a
claim and the other exempt. Moreover, using or not using the
11.
section 262.3 procedure would not change the result because it is
not a forum for damage claims. Half of B.Q.’s lawsuit also
involves seeking damages for a negligence cause of action. He
has made no showing how that cause of action is exempt from the
claims filing requirement.
Legislative intent may be determined by what the
Legislature declined to place in a statute. (Apple Inc. v. Superior
Court (2013) 56 Cal.4th 128, 146.) Had lawmakers intended to
make a significant change from the normal claims filing
requirement to more easily facilitate a new Education Code cause
of action, they would be expected to have expressly made that
change in section 220 or 262.3. (V.C. v. Los Angeles Unified
School Dist. (2006) 139 Cal.App.4th 499, 511 [where the
Legislature intends a statute to change the Government Claims
Act requirements, it will expressly include that change in the
legislation].) The absence of such an Education Code provision
supports the District’s position.
The Legislature, however, has considered the issue of
exceptions to the claims filing requirement in the Government
Code. (Gov. Code, § 905.) It is well established that “unless
specifically excepted, any action for money or damages . . . may
not be maintained until a claim has been filed with the relevant
public entity and either the public entity acts on it or it is deemed
to have been denied by operation of law.” (Alliance Financial v.
City and County of San Francisco (1998) 64 Cal.App.4th 635, 642,
italics added.)
The Legislature has specified the exceptions to the claims
filing requirement in Government Code section 905, subdivision
(a). That section, which was amended in January 2020, contains
15 exceptions to the claims filing requirement. But causes of
12.
action under section 220 are not included in that list. The
District notes that had the Legislature intended to exempt
section 220 causes of action from the claims filing requirement, it
could have easily added those cases to the list at any time since
1982.
“ ‘The Legislature “is deemed to be aware of statutes and
judicial decisions already in existence, and to have enacted or
amended a statute in light thereof.” ’ ” (County of Los Angeles v.
Superior Court (2005) 127 Cal.App.4th 1263, 1269.) The
Legislature has amended Government Code section 905
numerous times since 1963. The absence of an exception for
Education Code section 220 damage causes of action shows an
intent that such actions must be initiated after the plaintiff has
met the claims filing requirement. (County of Los Angeles,
p. 1269.)
The purpose of the Government Claims Act “ ‘is not to
expand the rights of plaintiffs in suits against governmental
entities, but to confine potential governmental liability to rigidly
delineated circumstances.’ ” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 829.) The claims presentation
requirement is consequently applicable unless the plaintiff can
fall within one of the “statutorily enumerated exceptions” in
Government Code section 905. (Nasrawi v. Buck Consultants,
LLC (2014) 231b Cal.App.4th 328, 338.) Those statutory
exceptions “have been narrowly construed.” (Hanson v. Garden
Grove Unified School Dist. (1982) 129 Cal.App.3d 942, 946, italics
added.) B.Q. has not shown that his case falls within one of
them. “A public entity’s knowledge of an incident and injuries
does not excuse the claim requirement.” (Lowry v. Port San Luis
Harbor Dist. (2020) 56 Cal.App.5th 211, 218.) The trial court
13.
correctly ruled that B.Q. was not exempt from the claims filing
requirement.
B.Q. was represented by counsel at all relevant times.
Because he did not file a government tort claim, the trial court
properly sustained a demurrer without leave to amend. We have
reviewed B.Q.’s remaining contentions and we conclude he has
not shown grounds for reversal.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
14.
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Pachowicz/Goldenring, Mark Pachowicz and Jonny Russell
for Plaintiff and Appellant Minor, by and through his guardian
ad litem.
Woo Houska, Maureen M. Houska; Greines, Martin, Stein
& Richland, Timothy T. Coates and Nadia A. Sarkis for
Defendant and Respondent.
15.