Operative Complaint - Varela v. McCluskey 03-14-18 CONFORMED

To: Pag~ 4 of 27,
n 2018·03·0919:27:39 (GMD 16193301866 From: Craig Nicholas
F i lED
1 NICHOLAS & TOMASEVlC, LLP SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN ilERNARDINO
Craig M. Nicholas (SBN 178444) SAN BERNARDINO DISTRICT
2 David G. Greco (SBN 299635)
225 Broadway, 19th Floor MAR 14 2018
3 San Diego, California 9210 I
Tel: (619) 325-0492
4 Fax: (619) 325-0496
Email: cnicholas@nicholaslaw.org
BY ,2/\ ~
NANCY LlEMSITHISAK, DEPUlY
5 Email: dgreco@nicholaslaw org
6 POWERS GREWAL
Michelle B. Powers (SBN 250335)
7 Punam P. Grewal (SBN 231524)
3200 East Guasti Road, Suite 1.00
8 Ontario, California 91761-8661
Tel: (415) 786-4226, (909) 243-2239
9 Fax: (888) 505-3353 .
Email: powersgrewal@gmail.com
10
Attorneys for Plaintiffs
Jl
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN BERNARDINO
]4 ALEXANDRA VARELA, all incompetent adult, Case No. CJVDSI707888

by and through her Guardian Ad Litem,
15 GuiIJermina Varela; GUILLERMlNA VARELA, THIRD AMENDED COMPLAINT FOR:
individually and as Guardian Ad Litem for
]6 Alexandra Varela; and HUGO VARELA, an (1) BATTERY:
individual,
17 (2) NEGLIGENCE;
Plaintiffs,
18 vs. (3) NEGLIGENT HIRING,
RETENTION, AND SUPERVISION;
19 PAUL MCCLUSKEY, an individual;
SNOWLINE JOINT UNIFIED SCHOOL (4) INTENTIONAL INFLICTION OF
20 DISTRICT, a governmental public entity; SAN EMOTIONAL DISTRESS;
BERNARDTNO COUNTY SUPERINTENDENT
21 OF SCHOOLS, a governmental public entity; (5) NEGLIGENT INFLICTION OF
VICTOR VALLEY UNIFIED SCHOOL EMOTIONAL DISTRESS; and
22 DISTRICT, a governmental public entity;
THOMAS HANNETT, an individual; and DOES (6) .PREMISES LIABILITY
23 2 through 100, inclusive;
DEMAND FOR JURY TRIAL
24 Defendants,
25
26
27
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THIRD AMENDED COMPLAINT
1 Plaintiffs, HUGO VARELA, an individual; GUILLERMINA VARELA, an individual; and
2 ALEXANDRA VARELA, an individual (collectively “Plaintiffs” or “the Varelas”), bring this
3 action against Defendants, PAUL MCCLUSKEY, an individual; SNOWLINE JOINT UNIFIED
4 SCHOOL DISTRICT, a governmental public entity; SAN BERNARDINO COUNTY
5 SUPERINTENDENT OF SCHOOLS, a governmental public entity; VICTOR VALLEY UNIFIED
6 SCHOOL DISTRICT, a governmental public entity; THOMAS HANNETT, an individual; and
7 DOES 2 through 100, inclusive (collectively “Defendants”), and allege on information and belief
8 as follows:
9 I.
INTRODUCTION
10
11 1. This case arises from the physical abuse and neglect of Alexandra Varela, (“Alex”)
12 an eighteen-year-old disabled Hispanic female student in the twelfth grade. Alex suffers from
13 multiple severe disabling conditions, including Cerebral Palsy with spastic quadriplegia. Alex has
14 no functional communication due to her severe receptive/expressive/pragmatic language deficits.
15 She lives at home with her adoptive legal guardians, Hugo and Guillermina Varela (“Parents”).
16 (Alex and Parents are collectively referred to as “the Varelas.”).
17 2. Alex’s education and related services are administered, managed, and overseen by
18 Snowline Joint Unified School District (“Snowline”), the San Bernardino County Superintendent
19 of Schools (“Superintendent”), and Victor Valley Unified School District (“Victor Valley”)
20 (together, referred to as “Entity Defendants”). Paul McCluskey (“McCluskey”) was Alex’s special
21 education teacher during the 2015–2016 school year. Thomas Hannett (“Hannett”) was the
22 principal of the school where Alexandra received her education.
23 3. During the 2015–2016 school year, Alex suffered no fewer than seven separate and
24 unexplained incidents of harm in her classroom. These incidents included bruising, cuts, abrasions,
25 lacerations, and scarring. Alex is non-verbal; she could not, and cannot, tell anyone what happened.
26 4. Eventually, this neglect and abuse culminated in a severe broken leg which occurred
27 in class on May 6, 2016. On that date, Alex suffered a broken leg while in the care of Defendants
28 and while on school grounds. Instead of reporting the incident or seeking medical attention for
1
1 Alex, Defendants allowed her to be placed on the bus and sent home. She disembarked the school
2 bus in her wheelchair with a broken leg, swollen foot, severe contusions, and fever. She was
3 screaming in pain.
4 5. Despite his obligation as a mandatory reporter, McCluskey did not report these
5 repeated injuries until after the Varelas brought the broken leg to Defendants’ attention. Nor did
6 Hannett—the school’s principal. Defendants’ other employees likewise failed to report any of these
7 injuries until it was too late.
8 6. Alex’s leg may never heal due to her other medical conditions. She will remain in
9 constant pain for the rest of her life.
10 II.
JURISDICTION AND VENUE
11
12 7. This Court has jurisdiction under California Code of Civil Procedure section 410.50
13 and Article VI, Section 10 of the California Constitution.
14 8. Venue is proper in this Court, under California Code of Civil Procedure sections
15 393 and 395(a), because the causes of action, injuries, and conduct giving rise to this suit occurred
16 in San Bernardino County.
17 III.
PARTIES
18
19 9. Plaintiff Hugo Varela is, and at all times relevant herein was, a citizen and resident
20 of the State of California, County of San Bernardino.
21 10. Plaintiff Guillermina Varela is, and at all times relevant herein was, a citizen and
22 resident of the State of California, county of San Bernardino. She proceeds individually and as
23 Guardian Ad Litem on behalf of her daughter, Alexandra Varela.
24 11. Plaintiff Alexandra Varela is, and at all times relevant herein was, a citizen and
25 resident of the State of California, County of San Bernardino. Her mother, Guillermina Varela,
26 holds a conservatorship on Alexandra’s behalf.
27 12. On information and belief, Defendant Paul McCluskey is, and at all times relevant
28 herein was, a citizen and resident of the State of California, County of San Bernardino.
2
1 13. Defendant Snowline Joint Unified School District is, and at all times relevant herein
2 was, a governmental public entity in the County of San Bernardino, California.
3 14. Defendant San Bernardino County Superintendent of Schools is, and at all times
4 relevant herein was, a governmental public entity in the County of San Bernardino, California.
5 15. Defendant Victor Valley Unified School District is, and at all times relevant herein
6 was, a governmental public entity in the County of San Bernardino, California.
7 16. On information and belief, Defendant Thomas Hannett is, and at all times relevant
8 herein was, a citizen and resident of the State of California, County of San Bernardino.
9 17. The true names and capacities—whether individual, corporate, associate, or
10 otherwise—of Defendants DOES 1 through 100, inclusive, are unknown to the Varelas. The
11 Varelas therefore sue said Defendants by such fictitious names. The Varelas are informed and
12 believe, and thereon allege, that each of the Defendants designated as a DOE is responsible in
13 some manner for the events alleged, and caused injury and damages to the Varelas as alleged.
14 18. Each reference in this complaint to “Defendant,” “Defendants,” or a specifically
15 named Defendant refers also to all Defendants sued under fictitious names.
16 19. At all times herein mentioned, each of the Defendants was the agents and
17 employees of each of the remaining Defendants and, in doing the things alleged, was at all times
18 acting within the purpose, course, and scope of said agency or employment with the knowledge,
19 consent, permission, and subsequent ratification of each of the other Defendants.
20 IV.
FACTS
21
22 20. Alex lives at home with her parents, Hugo and Guillermina Varela. She was
23 abandoned in a Mexican hospital by her biological mother at birth, and her adoptive grandparents
24 brought her to the United States.
25 21. Alex suffers from multiple and severe disabling conditions, including Cerebral
26 Palsy with spastic quadriplegia. She is non-ambulatory, requiring full leg braces to stand, but she is
27 confined to a wheelchair for most the day. Alex also suffers Seizure Disorder, Orthopedic
28 Impairments, Global Developmental Delays, fine/gross motor skills deficits, low adaptive skills,
3
1 impaired sensory processing skills, and socialization problems. Most notably, Alex has no
2 functional communication due to her severe receptive/expressive/pragmatic language deficits.
3 Considering the breadth and complexity of Alex’s disabilities, she experiences significant
4 challenges accessing the curriculum and requires extensive services and accommodations to make
5 progress in her many areas of need.
6 22. Alex is a special needs student who is protected under the federal law, Individual
7 Disability and Education Action (“IDEA”). The IDEA requires schools to serve the educational
8 and related needs of students like Alex who are eligible and have disabilities.
9 23. Prior to the 2015–2016 school year, Alex had no history of unexplained injuries, at
10 school or otherwise. Then, in a single school year, she suffered no less than seven severe injuries,
11 all while in Defendants’ hands.
12 24. In or around November of 2015, Alex suffered unexplained bruising and cuts to her
13 right arm. The bruising was extremely large and spanned from the upper quarter of Alex’s forearm
14 all the way down to her wrist. These injuries began a span of continuing neglect and abuse, about
15 which Defendants did nothing.
16 25. In or around December of 2015, Alex suffered mysterious bruising to her right arm.
17 26. On or around January 19, 2016, Alex came home with bruising to her right hand.
18 27. On or around February 11, 2016, Alex suffered unexplained bruising and large
19 scratches on her right forearm. The scratches have resulted in permanent, disfiguring scars.
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1 28. After each injury, Mrs. Varela immediately called Hannett and/or visited
2 McCluskey’s classroom to determine how Alex had been injured. By December of 2015, Mrs.
3 Varela had repeatedly informed Hannett that she was concerned for her daughter’s safety in
4 McCluskey’s classroom. At times, McCluskey admitted to having inappropriately grabbed Alex’s
5 hands. At other times, he would blame the classroom aide or another disabled student in his
6 classroom.
7 29. The next month, Mrs. Varela asked Hannett to take immediate action and remove
8 Alex from McCluskey’s classroom. She asked Hannett for in-home hospital services because of the
9 escalating injuries. Mrs. Varela was worried about Alex’s physical safety in McCluskey’s
10 classroom. Hannett denied the interim placement request, refused to discuss alternative interim
11 classroom placement options, and did not meet with the parents to discuss their concerns for
12 Alex’s injuries and safety in McCluskey’s classroom.
13 30. Instead of investigating, responding to or otherwise taking seriously Mrs. Varela’s
14 worries, Defendants and their staff mocked and chastised Mrs. Varela for expressing her concern
15 over her daughter’s safety and wellbeing. They also placed Alex back into the classroom where
16 they knew Alex had suffered abuse and neglect. In addition, Defendants did not take any
17 precautions to protect Alex from future harm. They withheld critical therapies and services,
18 including speech and language therapy, occupational therapy, adaptive physical therapy and
19 augmentative and alternative communication services without explanation. They then discontinued
20 Alex’s necessary physical therapy without explanation.
21 31. On April 8, 2016, Parents attended an IEP1 meeting. At the meeting, Parents
22 presented numerous concerns they had with the quality of the education and related services they
23 believe Defendants were providing. Specifically, Parents identified several key areas where
24 Defendants had failed to fulfill their obligations under the applicable state and federal statutes
25 governing special education of students with disabilities. Despite Mrs. Varela’s attempts to notify
26 1
IEP refers to “Individualized Education Program,” which requires school districts provide
27 students with programs that tailor to their specific needs and abilities. The law requires that
these meetings occur regularly, to assess a students’ progress and ongoing needs. The Varelas
28 have resolved the outstanding issues with Alex’s educational program.
5
1 Defendants of Alex’s injuries, and despite the law requiring that IEP meetings address the safety of
2 the student, the IEP meeting agenda and the IEP itself did not mention of any of Alex’s injuries.
3 32. On May 3, 2016, Alex arrived home with five deep scratches to her arm. Mrs.
4 Varela contacted law enforcement. A police investigation commenced. Police interviewed, among
5 other witnesses, McCluskey. The police report was filed on May 5, 2016.
6 33. On May 6, 2016, one day after the police had filed a report that contained
7 McCluskey’s interview, a classroom aide heard Alex cry out very loudly while in McCluskey’s
8 care. McCluskey told the aide that he “bumped” Alex’s leg against the table. McCluskey removed
9 Alex’s footwear, claimed that he could see no injury, replaced her footwear, and delivered Alex to
10 the bus driver. Classroom nurse Cindy Edeza inquired whether she should check Alex’s leg.
11 McCluskey declined to allow Edeza to examine Alex for injuries. Edeza did not follow up and
12 made no further efforts to evaluate Alex. Alex cried and screamed the entire time.
13 34. Despite the fact that Alex continued to scream, no one called Parents or the school
14 nurse. McCluskey placed Alex on the bus and sent her home, in agonizing pain. McCluskey
15 completed no incident report.
16 35. That afternoon, Alex disembarked the school bus. She was still screaming in pain.
17 Mrs. Varela was home at the time with her friend, who was styling Mrs. Varela’s hair. Though they
18 were inside, Mrs. Varela and her friend could hear Alex screaming in pain from the bus. Mrs.
19 Varela rushed outside and asked the bus driver why Alex was crying. The bus driver, who was pale
20 white, informed Mrs. Varela that Alex’s teacher had delivered Alex to the bus like that. The bus
21 driver told Mrs. Varela that she had to stop the bus in the middle of the route, despite it being a
22 short drive, to check on Alex, who had suffered a seizure brought on by the pain of the broken leg
23 and exertion of crying out.
24 36. Normally, Snowline and Superintendent maintain video footage of the bus that Alex
25 takes home every day. Despite Parents’ requests for all records concerning this injury, no
26 Defendant has produced this footage, if it even still exists.
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1 37. After receiving Alex from the bus driver, Mrs. Varela found a note, signed by
2 McCluskey, in Alex’s backpack that read: “Alex’s right foot caught the leg of a table on the way
3 out of the classroom. She was very startled. There appears to be no damage or mark on her foot.”
4 38. Defendants worsened Alex’s injury by failing to provide immediate care and
5 medical attention. From the time the initial trauma occurred to the time that she arrived at her
6 home, the leg injury continued to worsen with every second it went untreated. Thus, the harm from
7 the initial injury occurred up to and until, at least, the time when Alex returned to her mother’s
8 care.
9 39. Parents immediately sought emergency medical care. Doctors determined that Alex
10 had suffered a severe fracture to the bone in her right leg as a result of blunt force trauma.
11 40. After the leg injury, Alex remained in bed for days, unable to do anything because
12 of the excruciating pain she was suffering. Alex’s health deteriorated.
13 41. Parents contacted Hannett and requested an incident report and investigation into
14 Alex’s injuries. None were provided. Defendants failed to schedule an emergency IEP meeting in
15 response to Parents’ reporting of the injuries and of their concern for Alex’s safety in the current
16 classroom setting.
17 42. Parents again contacted law enforcement and obtained the services of a professional
18 educational advocate who immediately renewed Parents’ requests for an emergency IEP meeting.
19 The purpose of this meeting was to again request an investigation into the injuries and to request an
20 immediate change of placement to home hospital care for the remainder of the 2015–2016 school
21 year and summer, pending the completion of an investigation by law enforcement of abuse and
22 neglect.
23 43. The IEP meeting occurred on June 9, 2016. In addition to the above-mentioned
24 requests, Parents requested information regarding Alex’s injuries, but Defendants flatly refused to
25 provide any data to them, including a copy of the video from Alex’s bus ride home on May 6,
26 2016. Parents requested a complete copy of Alex’s record, including all incident reports.
27 Defendants refused.
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1 44. The meeting was not completed. Alex was denied interim in-home hospital
2 services.
3 45. Shortly thereafter, Alex’s physicians wrote to Defendants to inform them that Alex
4 needed interim in-home hospital services due to the severity of her injury. Defendants never
5 bothered to change their determination. They affirmed their decision to deny Alex the in-home
6 hospital care that her doctors recommended.
7 46. After Defendants denied Alex interim at-home care, Parents kept her home from
8 school out of fear for her safety and because she was suffering from such severe trauma that she
9 could barely function.
10 47. In November of 2016, Superintendent—knowing Alex had requested and was
11 denied in-home care after her leg injury—sent a notice to the Varelas indicating that Alex had been
12 excessively truant “without a valid reason.”
13 48. Defendants engaged an internal investigator, Nicole Miller, to investigate Alex’s
14 injuries. Parents made themselves available for a lengthy interview on July 11, 2016. At the
15 interview, Parents recounted for Miller the seven separate unexplained incidents of harm in her
16 classroom during the past school year. They shared photographs and medical information. They
17 recounted names, dates, and times. They related specifics of Parents’ repeated requests to Hannett
18 to address the classroom safety concerns and the escalation in injuries. Parents believed that Miller
19 would be reviewing the student records and interviewing school personnel such McCluskey, the
20 classroom aides, the classroom nurse, the bus driver, the bus aid, Hannett, and Hannett’s wife (the
21 Director of Special Education in charge of Alex’s special education program).
22 49. To date, at the time of filing this Complaint, Defendants continue to fail to provide
23 Parents with Miller’s investigative report or any documentation of Defendants’ investigation
24 whatsoever. Parents promptly requested a copy of all of Alex’s records, including a copy of
25 Miller’s investigation, a copy of the June 9, 2016 IEP notes, all incident reports, assessments,
26 assessment plans, test protocols, progress reports, service logs, grade reports, attendance reports,
27 procedural safeguards, and IEPs. Defendants refused.
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1 50. Throughout the entirety of the 2015–2016 school year, Defendants and their staff
2 repeatedly failed to fulfill their obligations as mandated reporters to report and respond to
3 suspected child neglect and abuse. Defendants knew that Alex repeatedly suffered severe,
4 unexplained injuries while on school grounds and while in the care of McCluskey and other staff
5 members.
6 51. Only after Parents notified Defendants of Alex’s broken leg did Defendants
7 retroactively attempt to generate a record of some of Alex’s injuries and initiate an investigation,
8 feigning their compliance with the mandatory reporting laws and other legal obligations. Had
9 Defendants promptly investigated and responded to early injuries, of which Mrs. Varela had
10 notified them, Alex would not have suffered the severe tibia fracture and the ensuing emotional
11 and physical trauma.
12 52. After the May 6, 2016 leg injury, another police investigation commenced. The
13 Crimes Against Children unit investigated. Detectives interviewed numerous witnesses and filed a
14 complete police report. The police report was submitted for prosecution to the office of the District
15 Attorney.
16 53. As part of the police report, detectives engaged the Office of Emergency Services to
17 perform a suspected child abuse exam on Alex on June 13, 2016. The report found, among other
18 things, that Alex had lost eight pounds since her leg injury. It also stated:
19 Of particular concern however is the numerous reports of
injuries . . . . In particular, is an episode of significant forearm
20 bruising and another incident of significant abrasions to the
forearm . . . . Not plausible . . . to have been self-inflicted.
21
22 54. The Varelas repeatedly attempted to obtain a copy of this police report and of
23 Nicole Miller’s internal investigation from Defendants. Defendants never provided the complete
24 police report and have failed to produce even one page of Miller’s report.
25 55. This could have been prevented. But, at all times, Defendants failed to adequately
26 fulfill their obligations to report suspected abuse and provide a safe environment in which Alex
27 could learn. They instead chose to cover up the abuse and neglect that Alex suffered, in an effort to
28 shield themselves from responsibility for the harm they caused to Alex.
9
1 56. Even after this lawsuit was originally filed, the abuse continued. On or around
2 September 12, 2017, Alexandra suffered further injury to her legs after Defendants applied her leg
3 braces backward, putting additional pressure on her already-sensitive joints and causing severe
4 injuries to the skin.
5 57. Since May 6, 2016, Alexandra has become increasingly anxious and depressed.
6 Once happy and joyful, she is now unable to enjoy life as she used to. She has been referred to a
7 mental health practitioner specializing in people with her needs, in the hopes of regaining the
8 happiness she once had. Because of the occurrences, Alex has changed from a happy student eager
9 to attend school to a student manifesting a desire to avoid school and avoid McCluskey’s
10 classroom. Because of these injuries, at the hand of her own teacher, Alex did not attend school
11 from May 6 to December 8, 2016. She refused to return to McCluskey’s classroom. Parents are
12 terrified of allowing their child into a classroom where she would be exposed to further harm at the
13 hands of Defendants’ staff. Alex was out of placement after May 6, 2016, and was denied access to
14 her education for seven months. Having been denied access to the curriculum due to repetitive
15 disabling injuries, Alex has failed to make progress in her educational program, and her skills and
16 abilities have regressed in almost all areas.
17 58. At the time Alex was out of placement and not attending school, Defendants
18 continued to deprive Alex the use of her orthotic devices known as “HKFOs,” which are in the
19 Defendants’ exclusive possession. These orthotic devices are essential to Alex (as a person with
20 Cerebral Palsy) for regaining body strength, balance, and stability, without which her physical
21 condition deteriorates at a rapid pace. Sadly, Alex’s foot has not yet healed and cannot heal
22 because Defendants have failed to timely return the necessary orthotic devices to her. Moreover,
23 Alex has permanent scarring on her arm. The full extent of any further or lasting physical, mental,
24 and emotional harm has yet to be determined.
25 59. Throughout Alex’s time in Defendants’ care, Entity Defendants and all their agents,
26 employees, and contractors stood in a special relationship with Alex and her parents.
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1 a. As to Alex, Defendants and their agents had the special relationship
2 that all educators share with students. Specifically, they were entrusted with providing care
3 and ensuring safety to Alex because they were acting in loco parentis.
4 b. Defendants and their agents shared a special relationship with
5 parents because they were entrusted with caring for and ensuring the safety of Alex.
6 60. Rather than correcting the cause of the injuries, Defendants and their agents misled
7 the Varelas into believing that the issues would be addressed, that Alex would be cared for in a
8 more appropriate way, that Alex’s classroom would be more sufficiently monitored, and that
9 Alex’s safety would have been more adequately assured.
10 61. Had Defendants notified Alex’s parents that they intended to do nothing about the
11 complaints that parents made, or about the injuries they knew that Alex had suffered at school, the
12 Varelas would have moved Alex out of school prior to the incident which led to Alex’s broken leg.
13 62. Had Defendants not misled the Varelas into believing that the injuries would have
14 been redressed, the Varelas would have taken affirmative steps of their own to prevent further
15 injury, including the broken leg, to Alex.
16 63. Had Defendants adequately disciplined and corrected the behavior of the person(s)
17 entrusted to care for Alex, and had not misled the Varelas into believing such discipline and
18 correction would occur, Alex would not have suffered the ongoing injuries or the spiral fracture to
19 her tibia.
20 64. The emotional distress that parents suffered was a reasonable and foreseeable result
21 of Defendants’ and their agents’ breach of the duty to Alex’s parents.
22 a. Alex’s parents were taken by complete surprise when they learned
23 that Alex had suffered a spiral fracture in her tibia, because they believed that Defendants
24 had made efforts to have Alex’s school safety improved.
25 b. Defendants and their agents engaged in a cover-up scheme designed
26 to shield themselves from liability and to hide the severe abuse that Alex was suffering at
27 school. Defendants affirmatively attempted to prevent the Varelas from knowing the truth
28
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1 of how Alex’s injuries occurred or that Alex’s caregivers had not been adequately vetted,
2 disciplined, retrained, corrected, or removed.
3 c. This cover up, and the surprise of Alex’s spiral fracture, caused great
4 emotional distress to Alex’s parents. It also caused financial damages as outlined in this
5 complaint.
6 d. Additionally, the Varelas suffered and continue to suffer severe
7 foreseeable emotional distress as they witness Alex struggle with her ongoing emotional
8 and physical suffering.
9 65. On November 11, 2016, the Varelas filed their claims with Snowline pursuant to the
10 California Government Claims Act. Snowline rejected all claims on November 15, 2016.
11 66. On November 11, 2016, the Varelas filed their claims with Superintendent pursuant
12 to the California Government Claims Act. Superintendent rejected all claims on January 3, 2017.
13 67. On November 11, 2016, the Varelas filed their claims with Victor Valley Unified
14 School District. Victor Valley rejected all claims on or around November 17, 2016.
15 V.
APPLICABLE LAW
16
17 68. The Varelas re-allege and incorporate by reference all preceding paragraphs.
18 A. Statutes Imposing Mandatory Duties and Liability on Entity Defendants
19 69. Government Code § 815.6. “Where a public entity is under a mandatory duty
20 imposed by an enactment that is designed to protect against the risk of a particular kind of injury,
21 the public entity is liable for an injury of that kind proximately caused by its failure to discharge
22 the duty unless the public entity establishes that it exercised reasonable diligence to discharge the
23 duty.”
24 70. Government Code § 818.6. Government entities are liable for a failure to safely
25 maintain their own property. Entity Defendants failed to make Alexandra’s classroom safe,
26 resulting in her injury.
27 71. Education Code § 44807. This section mandates that school employees exercise
28 over students a level of care sufficient to prevent injury. (See Jennifer C. v. Los Angeles Unified
12
1 School District (2008) 168 Cal.App.4th 1320.) Entity Defendants failed to exercise the supervision
2 and control required to prevent injury to Alex.
3 72. Penal Code § 11166.5. “[A]ny mandated reporter as specified in Section 11165.7, . .
4 prior to commencing his or her employment, and as a prerequisite to that employment, shall sign a
5 statement on a form provided to him or her by his or her employer to the effect that he or she has
6 knowledge of the provisions of Section 11166 and will comply with those provisions. The
7 statement shall inform the employee that he or she is a mandated reporter and inform the employee
8 of his or her reporting obligations under Section 11166 and of his or her confidentiality rights
9 under subdivision (d) of Section 11167. The employer shall provide a copy of Sections 11165.7,
10 11166, and 11167 to the employee.” (Penal Code, § 11166.5(a) [emphasis added].) “The signed
11 statements shall be retained by the employer or the court, as the case may be. The cost of printing,
12 distribution, and filing of these statements shall be borne by the employer or the court.” (Ibid.)
13 a. Entity Defendants failed to enforce the policy requiring its
14 employees, including but not limited to McCluskey and Hannett, review and sign the
15 statements required under Penal Code section 11166.5.
16 b. Entity Defendants failed to provide copies of Penal Code sections
17 11165.7, 11166, and 11167 to its employees, including but not limited to McCluskey and
18 Hannett.
19 c. By extension, the signed statements were not retained by Entity
20 Defendants or any court, because they did not exist.
21 d. Theses failures caused Hannett and McCluskey to be uneducated
22 about their duties as mandatory reporters. That lack of education led to McCluskey’s and
23 Hannett’s failure to report injuries to Alex, which eventually led to Alex suffering a spiral
24 fracture in her tibia at the hands of McCluskey.
25 73. Government Code § 815.4. “A public entity is liable for injury proximately caused
26 by a tortious act or omission of an independent contractor of the public entity to the same extent
27 that the public entity would be subject to such liability if it were a private person.”
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1 a. Entity Defendants employed independent contractors, including
2 classroom nurse Cindy Edeza. Edeza failed to act reasonably under the circumstances
3 when, among other things, she failed to insist that she check Alex’s leg and failed to follow
4 up regarding Alex’s injury.
5 b. Edeza also failed to act reasonably when she failed to report the
6 physical and emotional abuse that she should have reasonably known Alex was suffering.
7 c. These descriptions of Edeza’s failures are not exhaustive.
8 d. Under Government Code section 815.4, Entity Defendants are liable
9 for Edeza’s tortious conduct.
10 74. Government Code §§ 815.2, 820(a). A public employee bears liability “for injury
11 caused by his act or omission to the same extent as a private person.” A government entity is liable
12 for injury that the government employee causes “within the scope of his employment” if the act or
13 omission would “have given rise to a cause of action against that employee.” As such, Entity
14 Defendants are vicariously liable for McCluskey’s and Hannett’s tortious conduct.
15 75. The statutory violations complained of herein are not exclusive, and the Varelas
16 reserve the right to identify additional legal violations and/or additional acts that give rise to
17 liability under the statutes discussed below, or other statutes, the applicability of which becomes
18 apparent through discovery.
19 B. Statutes Applicable to McCluskey and Hannett
20 76. Government Code §§ 820. A public employee bears liability “for injury caused by
21 his act or omission to the same extent as a private person.” As such, to establish liability, the
22 Varelas need not plead specific statutory duties imposed on McCluskey or Hannett. Nevertheless,
23 the Varelas plead these statutes as illustrations of some of the various standards of care that
24 McCluskey and Hannett breached. (Cf. Evid. Code, § 669.)
25 77. Penal Code §§ 11165.7, 11165.9, 11166, 11166.01, 11166.05. Teachers and school
26 supervisors are mandated reporters. (Pen. Code, § 11165.7.) This includes McCluskey and Hannett.
27 Reporting suspected or known child abuse falls within the scope of mandated reporters’
28 employment. (Pen. Code, § 11166; D.K. ex Rel. G.M. v. Solano County Office of Education (N.D.
14
1 Cal. 2009) 667 F.Supp.2d 1184, 1193.) Mandated reporters must report suspected or actual child
2 abuse, whether physical or emotional, to any of the authorities identified in the Penal Code. (Pen.
3 Code, §§ 11165.9, 11166.05.) Moreover, Penal Code section 11166.01 criminalizes a supervisors’
4 failure to report suspected or actual abuse, where that failure leads to great bodily injury.
5 a. At every juncture, McCluskey and Hannett failed to report the
6 injuries to Alex, despite that a reasonable person objectively would have done so.
7 b. This failure led to continued abuse and eventual severe body injury
8 of Alexandra.
9 78. The Varelas rest their causes of action against McCluskey and Hannett not only on
10 their conduct that violated these statutes, but also on all the acts described above, as well as any
11 further wrongful acts that come to light through discovery.
12 VI.
CAUSES OF ACTION
13
FIRST CAUSE OF ACTION
14 BATTERY
(BY ALEX VARELA, AGAINST ALL DEFENDANTS)
15
17 80. McCluskey touched Alex in an objectively and subjectively offensive and harmful
18 way, with the intent to harm her. Alex did not, and could not have, consented to this touching.
19 81. Defendants actually and proximately caused Alex to suffer damages, including but
20 not limited to medical costs, pain and suffering, severe emotional distress, shock, fright, anxiety,
21 horror, grief, worry, and loss of enjoyment of life.
22 82. Defendants’ conduct was fraudulent, malicious, and/or oppressive within the
23 meaning of Civil Code section 3294. Defendants subjected Alex to cruel and unjust hardship and a
24 willful disregard of their rights and safety. These actions warrant an award of punitive damages.
25 However, pursuant to California Government Code section 818, the Varelas do not seek punitive
26 damages against Snowline, Victor Valley, or Superintendent.
27
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15
1 SECOND CAUSE OF ACTION
NEGLIGENCE
2 (BY ALL PLAINTIFFS, AGAINST ALL DEFENDANTS)
4 84. Defendants were negligent in their physical handling of Alex throughout the 2015–
5 2016 school year.
6 85. Defendants were negligent in their management of and response to Mrs. Varela’s
7 repeated complaints of injuries Alex suffered while in the school’s hands.
8 86. Defendants knew, or reasonably should have known, of the harm that Alex would
9 continue to suffer by being repeatedly placed in the classroom where she had previously suffered
10 injuries. Alex did in fact suffer that harm.
11 87. Defendants knew, or reasonably should have known, of the harm that Alex would
12 continue to suffer when they failed to properly document, report, and investigate the repeated
13 physical abuse and neglect of Alex, as is required by law. Alex did in fact suffer that harm.
14 88. Defendants violated the laws mandating they report and respond to allegations or
15 evidence of physical abuse. (See, e.g., Pen. Code, § 11165.7.) These laws are designed to protect
16 Alex and other children from abuse and neglect, and Alex did in fact suffer the harm against which
17 those laws are designed to protect.
18 89. Defendants actually and proximately caused the Varelas to suffer damages,
19 including but not limited to medical costs, pain and suffering, severe emotional distress, shock,
20 fright, anxiety, horror, grief, worry, loss of enjoyment of life, and lost wages (lost wages are as to
21 Parents).
23 meaning of Civil Code section 3294. Defendants subjected the Varelas, especially Alex, to cruel
24 and unjust hardship and a willful disregard of their rights and safety. These actions warrant an
25 award of punitive damages. However, pursuant to California Government Code section 818, the
26 Varelas do not seek punitive damages against Snowline, Victor Valley, or Superintendent.
27
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16
1 THIRD CAUSE OF ACTION
NEGLIGENT HIRING, RETENTION, & SUPERVISION
4 92. McCluskey was unfit to perform the work for which he was hired.
5 93. Defendants knew or should have known that McCluskey was unfit and that this
6 unfitness created a particular risk to children in his care.
7 94. Defendants failed to competently supervise McCluskey and their other employees
8 while Alex was in McCluskey’s care.
9 95. Defendants actually and proximately caused the Varelas to suffer damages through
10 their negligent hiring, retention, and supervision of McCluskey. These damages include but are not
11 limited to medical costs, pain and suffering, severe emotional distress, shock, fright, anxiety,
12 horror, grief, worry, loss of enjoyment of life, and lost wages (as to Parents).
13 FOURTH CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
16 97. Defendants acted outrageously in, among other things, their physical handling of
17 Alex throughout the 2015–2016 school year, their management of and response to Mrs. Varela’s
18 repeated complaints of injuries Alex suffered while in the school’s hands, and their attempts to
19 cover up and downplay the severity of Alex’s injuries and blame the Varelas for Alex missing
20 school after she broke her leg.
21 98. Defendants acted intentionally and/or with reckless disregard to the possibility that
22 the Varelas would suffer emotional distress.
23 99. Defendants actually and proximately caused the Varelas to suffer severe emotional
24 damages, including but not limited to pain and suffering, shock, fright, anxiety, horror, grief,
25 worry, and loss of enjoyment of life.
28 and unjust hardship and a willful disregard of their rights and Alex’s safety. These actions warrant
17
1 an award of punitive damages. However, pursuant to California Government Code section 818, the
3 FIFTH CAUSE OF ACTION
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
4 (BY MRS. VARELA & ALEX, AGAINST ALL DEFENDANTS)
6 102. Defendants were negligent in, among other things, their physical handling of Alex
7 throughout the 2015–2016 school year and their management of and response to Mrs. Varela’s
8 repeated complaints of injuries Alex suffered while on school grounds.
9 103. Defendants knew or reasonably should have known of the harm that Alex would
10 continue to suffer by being repeatedly placed in the classroom where she had previously suffered
11 injuries. Alex did in fact suffer that harm.
12 104. Defendants knew or reasonably should have known of the harm that Alex would
13 continue to suffer when they failed to properly document, report, and investigate the repeated
14 physical abuse and neglect of Alex, as required by law.
15 105. Defendants actually and proximately caused the Varelas to suffer severe emotional
16 damages, including but not limited to pain and suffering, shock, fright, anxiety, horror, grief,
17 worry, and loss of enjoyment of life.
18 106. Alex’s emotional damages arise, at least in part, from the physical trauma and
19 neglect she faced at the hands of her trusted caregivers.
20 107. Mrs. Varela’s emotional trauma arises, in part, from witnessing and hearing the
21 worsening of Alex’s injury while she received Alex from the bus driver. Alex’s injury continued to
22 worsen with every second that Defendants and their employees failed to tend to Alex, and so Alex
23 continued to suffer injury at least up and until she was delivered into Mrs. Varela’s care.
18
1 SIXTH CAUSE OF ACTION
PREMISES LIABILITY
2 (BY ALEXANDRA VARELA, AGAINST ALL DEFENDANTS)
4 110. Defendants created a dangerous condition on the premises where Alexandra Varela
5 went to learn and receive an appropriate public school education. Defendants knew or should have
6 known that this condition existed, but they failed to reasonably attempt to correct the defect.
7 111. Defendants’ failures actually and proximately caused the injuries discussed herein.
13 VII.
PRAYER FOR RELIEF
14
15 Against all Defendants, the Varelas demand judgment as follows:
16 1. For past and future general, economic, non-economic, compensatory, consequential,
17 special, and incidental damages, according to proof;
18 2. For all other recoverable damages, according to proof;
19 3. For post-judgment interest;
20 4. For the costs of suit incurred;
21 5. For attorneys’ fees, pursuant to California Code of Civil Procedure section 1021.5
22 and all other applicable statutes; and
23 6. All other relief this Court may deem just and proper.
24 Additionally, against defendants McCluskey and Hannett only, the Varelas demand an
25 award of punitive and exemplary damages under California Civil Code section 3294.
26 JURY DEMAND
27 The Varelas demand a jury on all triable issues.
28 [signature of counsel appears on following page]

19
1 DATED: March 9, 2018 NICHOLAS & TOMASEVIC, LLP
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By: _________________________
5
David Greco
6
Attorneys for Plaintiffs
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Operative Complaint - Varela v. McCluskey 03-14-18 CONFORMED

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To: Pag~ 4 of 27,

n 2018·03·0919:27:39 (GMD 16193301866 From: Craig Nicholas

12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 IN AND FOR THE COUNTY OF SAN BERNARDINO

]4 ALEXANDRA VARELA, all incompetent adult, Case No. CJVDSI707888

5 2016 school year.

7 repeated complaints of injuries Alex suffered while in the school’s hands.

10 injuries. Alex did in fact suffer that harm.

17 those laws are designed to protect.

6 unfitness created a particular risk to children in his care.

8 while Alex was in McCluskey’s care.

13 FOURTH CAUSE OF ACTION

20 school after she broke her leg.

22 the Varelas would suffer emotional distress.

25 worry, and loss of enjoyment of life.

15 Against all Defendants, the Varelas demand judgment as follows:

16 1. For past and future general, economic, non-economic, compensatory, consequential,

17 special, and incidental damages, according to proof;

18 2. For all other recoverable damages, according to proof;

19 3. For post-judgment interest;

20 4. For the costs of suit incurred;

22 and all other applicable statutes; and

27 The Varelas demand a jury on all triable issues.

28 [signature of counsel appears on following page]

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