Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 1 of 11

1

2

McCormick, Barstow, Sheppard,
Wayte & Caruth LLP
Anthony N. DeMari a #177 894
ant hony. de maria@mc

a

J

4

)

c

ormic

kb ar

s t ow. c

om

Ryan W. Pofte #325463
ry an.p orte @m c corm i c kb ar sto w. c o m
7647 North Fresno Street
Fresno, California 93720
Telephone: (559)433-1300
Facsimile: (559) 433-2300

6
7
8

9

Attorneys for Defendants CLOVIS LTNIFIED
SCHOOL DISTRICT; STEPHANIE HANKS
AND ANDREW BOLLS, Individuall/, and as
Employees of City of Clovis and/or Clovis
Llnified School District

10
11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

13

14
15

ANDY E. CASTRO,
Plaintiff,

16

l7 CITY OF CLOVIS; CLOVIS UNIFIED

SCHOOL DISTRICT; STEPHANIE HANKS

& ANDREW BOLLS, IndividuallY,

19

and as
Employees of City of Clovis and/or Clovis
Unified School District,

20

Defendants.

18

2T

Case

No.

1:

17-cv-01063-DAD-BAM

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS
PLAINTIFFOS FIRST, SECOND, THIRD
AND FOURTH CAUSES OF ACTION IN
PLAINTIFF'S COMPLAINT PBR FRCP
RULE 12(bX6)
Date:
Time:
Room
Judge

Action

September 17,2019
9:30 am
5

Hon. Dale A. Drozd

Filed:

June 13.2017

22
23

COMES NOW Defendants CLOVIS LINIFIED SCHOOL DISTRICT ("CUSD"), Ms'

("Bolls") (collectively "Defendants")

and hereby

24

Stephanie Hanks ("Hanks"), and Mr. Andrew Bolls

25

submits the following Memorandum of Points and Authorities in Support of its Motion to Dismiss

26

ANDY E. CASTRO's ("Plaintiff') Complaint.

27
28
IVIcCoRN4IcK, BARSTOW,
SHEPPARD, WAYIE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

MEMORANDUM OF POINTS AND AUTHORI TIES IN SUPPOR T OF DEFENDANTS' MOTION TO DISMISS
PLAINTTFF'S COMPLAINT PER FRCP RULE l2(bx6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 2 of 11

1

I.

2

INTRODUCTION

J

Defendants bring this Motion to Dismiss Plaintiffls Complaint for Failure to State a Claim

4

pursuant to Federal Rules of Civil Procedure ("FRCP") 12(bX6) as to Plaintiffs first, second, third,

5

and fourth causes of action filed on June I 3 , 2019 . Plaintiff s Complaint fails to state facts upon

6

which relief may be granted, and what little is included in Plaintiff s Complaint is conclusory, and

7

need not be accepted by this court. Defendants have not violated

8

free speech, nor have they deprived Plaintiff of his Fifth Amendment Right to Due Process. For the

9

reasons discussed below,

Plaintiff

Plaintiff s Constitutional Right to

s Complaint must be dismissed without leave to amend.

II.

l0

AL ALLEG

11

12

Plaintiff,

a

former student at Clovis High School ("CHS"), was scheduled to participate in his

l3

graduation ceremony on or about May 30, 2019. (Complaint,2:19-22.) On May I4,20I9, Plaintiff

14

tumed 18, and on May 22,2AIg had successfully completed his high school education. (Id,2:23-25.)

15

On an unspecified date in May

2}lg,Plaintiff

used his online social media Twitter accountto'otweet"

t6 a friend. In his "tweet" he used the words "niggt' and "nigger". (Id,2:25-26.) An unspecified
T7

o'nigga" and "nigger" offensive, and reported Plaintiff to
Twitter user found Plaintiff s use of

18

Defendants. (ld, 3:1 .) In response, Defendants denied Plaintiff the opportunity to "participate in his

19

graduation ceremony." (Id.,3:5-6.) Plaintiff filed his Complaint on June 13,2019,alleging four (4)

20
21

causes

of action; l) 1st Amendment Freedom of

California Constitution Art. I $ 2, and 4) California Ed. Code

22

$ 48950(a).

uI.

A.

Standard for Consideration of Motion to Dismiss Pursuant to Rule 12(bX6)

25

The Federal Rules of Civil Procedure, Rule 12(b)(6) permits dismissal for failure of the

26

pleading to state a claim upon which relief can be granted. A motion to dismiss for failure to state a

27

claim is properly granted

28

absence of sufficient facts alleged under acognizaSe legal theory. (Balistreri v. P acifica Police Dept
MEMORANDUM OF P&As IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S
COMPLATNT PER FRCP RULE l2(bx6)

McCoRI,IIcK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO SIREET
FRESNO, CA 93720

2) sth Amendment Due Process; 3)

LAW AND ARGUMENT

23

24

Speech;

ifa

cause

ofaction (1) lacks acognizable legal theory or there is (2) an

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 3 of 11

I

901 F.2d 696, 699 (9th Cir. 1990) ; see also Robertson v. Dean Witter Reynolds, Inc, 7 49 F'2d 530,

2

533-534 (9th Cir. 1984).)

While plaintiff need not prove his claim in the Complaint, plaintiff "must state a claim

J

4

therein," which'orequires more than the mere recitation of boilerplate statutory language'" (Migdal

5

Rowe Price-Fleming Int'1, Inc. 248 F.3d 321,328 (4th Cir. 2001)

6

permitted to proceed to discovery, they 'omust have some factual basis for believing that a legal

7

violation has actually occurred." (ld., at328.) If

8

FRCP 8, then "defendants should not be required to respond to such a pleading either by motion or

9

answer." (Shakespeare v. Wilsorz 40 F.R.D. 500, 504 (1966)

a

.)

v.

Before a plaintiff should be

plaintiff cannot meet the pleading requirements of

.) A pleading

may not simply allege a

10

wrong has been cqmmitted and demand relief. The underlying requirement is that a pleading give

11

o'grounds upon which it rests." (Conley, supra, at47"fair notice" of the claim being asserted and the

T2

48.) The couft need not, however, "accept legal conclusions cast in the form of factual allegations

13

those conclusions cannot reasonably be drawn from the facts allege d." (Clegg v. Cult Awareness

t4 Network

i5 B.
t6

18 F.3d 752 (gth

if

Cir. l99a) ')

Were
To Show Comnlian With The
d Plaintiff Has
t Tort Claims Act.
Gove
8r0-996.6).
a Government Code
Governmen Tort Claims Act (Califo
auses

17
18

Plaintiffs Complaint concedes that Clovis Unified School District is a school district in

t9

Clovis, California. While somewhat in-artfully pled, Stephanie Hanks and Andrew Bolls

20

employees of the Clovis Unified School District (Plaintiff s Complaint is somewhat vague as to the

are

in the case, and otherwise fails to state a cause of action

if

22

plaintiff were to allege that they are not public employees). In California, Plaintiff is required to file

a

ZJ

government tort claim with Clovis Unified School District for any action asserting money or damages

24

before filing an action (Government Code $$ 905 et seq.). Though this is a state statute, the Federal

25

Court has held thataPlaintiff must similarly allege compliance with the California Tort Claims Act

26

(CTCA). (Dowell v, Contra Costa County,, 928 F.Supp.2d 1137 OI.D.CaL.20I3).)

2l role which Defendant Hanks and Bolls play

27

ut

28

lll

McCORN,IICK, BARSTOW,
SHEPPARO, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

3

MEMORANDUM OF P&AS IN SUPPORT OF DEF ENDANTS' MOTION TO DISMISS PLAINTIFF'S
COMPLATNT PER FRCP RULE l2(bX6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 4 of 11

I

Plaintiff s Complaint is for four causes of action, all of which allege money damages

2

(general damages and punitive damages included therein). As such, Plaintiff was required, and is

a

J

required, to allege timely compliance with the Government Tort Claims Statute (see

4

Huntington Beach Union High School District 2 Cal.5th 648, 652 (2017)

5

present a claim for money damages to a California public entity bars a Plaintiff from

6

against that entity. (State of California v. Superior Court 32 Cal.4'1' 1234,1239 (2004).)

).

E. G.,

J.M.

v'

The failure to timely

filing a lawsuit

Plaintiff s Two California State Court Claims, For Violation Of The California
Constitution Under Articles One And Two, And For A Statutory Violation Of
California Education Code $ 4S950(A), Which Are Claims Three And Four Of
Plaintiffs Complaint, Must Be Dismissed For Failure To Comply With The
Government Tort Claims Act.

7
8
9
10
11

In this Federal Court case, Plaintiff alleges two pendant causes of action of State Law tort

I2 claims for money damages, which

are Claims Three and Four (an alleged personal injury for violation

California Educational

t3

of the California Constitution, and an alleged personal injury for violation of

t4

Statute). Those two State Law claims are subject to the Government Tort Claims Act, even though

15

attached is pendant claims to a Federal Court action. (see E.G., Karim-Panahi v. Los Angeles Police

a

with the
t6 Dep't 839 Fed. Sec. 621, 627 (gth Cir 1988).) Plaintiff has not alleged compliance
T7

Government Tort Claims Act, and therefore, Claims Three and Four must be dismissed, without

l8 regard to the Federal filing
t9

2.

status of the case.

Plaintiff s Federal Claimso In The First And Second Claims, Must Be Dismissed
For Failure To comply with The Government Tort Claims Act.

20

2l
22
23

24
25

26
27
28
McCoRMIcK, BARSIoW
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA93720

Plaintiff s First and Second claims in his Complaint are for Federal causes of action, the first
being an alleged violation of the First Amendment for free speech, and the second for a violation of
the Fifth Amendment due process, both of which request tort money damages, which are subject to the

California Government Tort Claims Act. While it is true that some Federal claims are not subject to
the Government Tort Claims Act, namely 42 USC $ 1983, the instant two Federal claims brought by

the Plaintiff are for money damages for the exact allegations found in the State Court claims, and are
not found in the cases as being specifically exempt from the California Government Tort Claims Act
(42 USC $ 1983 claims are exempt, see Donovan v. Reinbold, 433 et seq. 738 (9th Cir 1970)), and
4
MEMORANDUM OF P&As IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S
COMPLATNT PER FRCP RULE l2(bX6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 5 of 11

1

that exemption from the California Tort Claims Act can be extended to other Federal civil right

2

statutes, such as age discrimination and disability discrimination, it does not appear that the exemption

J

has been applied to First Amendment of free speech and Fifth Amendment due process tort claims;

4

see

5

core of Plaintiff s Complaint is for money damages, not an injunction (graduation has passed) or

6

injunctive reliei but rather straight tort money damages. Plaintiff does not allege a specific civil

7

rights statutory violation under Federal statute. As such, it does appear that there is no exemption to

8

the Government Tort Claims Act for Claims One and Two, and they should be dismissed.

California Government Tort Liability Practice, 4th ed., Volume 1, $ 5.55, Page 5-43,5-44)' The

plaintiff

9

has failed to allege that

Plaintiff filed the appropriate government tort claim under the

10

act, which applies to bar plaintiff s Complaint against both Clovis Unified School District and the

1l

enrployees of Clovis Unified School District, Ms. Hanks and Mr. Bolls (Government Code $ 950.2).

12

As such, plaintiff does not have a viable legal claim against Defendants and this Motion to Dismiss

l3

under FRCP 12(b) must be granted.

14

C.

Plaintiff s

Cause of Action

to State a Cause

Action For

a

First

t

Free Speech Violation.

l5
t6

In his first cause of action, Plaintiff alleges that Defendants violated Plaintiff s right to

t7 Freedom of Speech under the First Amendment of the United
18

disciplined plaintiff for using language that is almost universally considered to be profane in nature.

t9 Although the First Amendment of the United
20

States Constitution because Defendants

States Constitution guarantees broad speech liberties to

persons residing within the United States, it is not without

2l pupils at public

limit. Of note, certain

speech activities

of

schools may be limited. The Califomia Education Code $ a8907(a) states that "Pupils

22

of the public schools, including charter schools, shall have the right to exercise freedom of speech and

23

of the press including, but not limited to, the use of bulletin boards, the distribution of printed

24

materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in

25

official publications, whether or not the publications or other means of expression are supported

26

financially by the school or by use of school facilities, except that expression shall be prohibited

27

which is obscene, libelous, or slanderous." (Emphasis added.)

28
McCoRMIcK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

5
MOTION TO DISMISS PLAINTIFF'S
DEFENDANTS'
OF
IN
SUPPORT
P&As
OF
MEMORANDUM
COMPLATNT PER FRCP RULE l2(bX6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 6 of 11

1

In this case, Plaintiff used the word "nigga" and "nigger" which was seen by someone who

2

took offense to the use of Plaintiff s choice of words. So much so, that this (unidentified) person

J

a

reported Plaintiff s speech activities to Defendants. As noted

4

48907(a),Pupils of California schools do not have the right to expression which is obscene, libelous,

5

o'nigger" are universally considered obscene, Plaintiff does
or slanderous. As the words "nigga" and

6

not have Constitutional protection for this expression. Because Plaintiff does not have any First

7

Amendment protection for said obscene language, his First Amendment Right related to this particular

8

expression cannot be violated.

9

D.

A Claim

Cause of

Violation of

in Califomia Education Code

$

Am

Process.

10
11

In his Second

Cause

of Action, Plaintiff alleges that Defendants denied Plaintiff his 5th

t2 Amendment right to due process, specifically his right to notice and

an

opportunity to be heard. Here

13

however, Plaintiff fails to state a claim for relief because his Complaint fails to state sufficient facts to

14

allege a cognizable legal theory. First, Plaintiff s Complaint fails to allege when the offensive tweet

l5 was made by Plaintiff. Was the tweet published shortly after May 22,2019, as Page 2 of the
r6 Complaint suggests? Or was the offensive tweet published on May 30, 2019, shortly before

t7 graduation,
18
19

to suggest? In order for Defendants to appropriately

Plaintiff s allegation, Plaintiffs must allege with some specificity the relevant timeframe.

Second, without a relevant timeframe,

Plaintiff s allegation is conclusory

at best. California

20

Law holds that, "When facing a temporary short-term suspension, a student has minimal procedural

21

due process rights, including the right to a

22

(App.4Dist.2003)l29Cal.Rptr.2d4I0,105.) IfPlaintiffstweetwaspublishedamerethreehours

23

prior to graduation, then by any measure, any action taken by the school district would be short term

24

in nature. Although Plaintiff attempts to make the discipline enacted by Defendants seem like

25

"expulsion" there are no facts indicating that an expulsion ever actually took place... instead, all that

26

is truly alleged is that Plaintiff was prevented from graduation, that he was removed from campus, and

27

that he was required to remove the offensive tweet. (Complaint,3:4-6) Due to Plaintiffs lack of

28

factual allegations in his com plaint, Plaintiff has dai led to state a claim upon which relief may be

IVIcCoRMIcK, BARSTOW,
SHEPPARD, WArIE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

respond to

as Page 3 of the Complaint seems

hearing." (Granowitz v. Redlands Unified School Dist.

MEMORANDUM OF P&As IN SUPPORT OF DEFENDANTS' MOTION TO D ISMISS PLAINTIFF'S
COMPLATNT PER FRCP RULE l2(bX6)

an

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 7 of 11

I

granted, and this motion must be sustained

2

E

Third

State

Cause

tion. Article I.

California Con

A

of

C

S2

J

4

The California Constitution Article I, Section 2 provides broad freedom of speech protections

5

and dovetails the protections afforded by the United States Constitution. However, these protections

6

have been lirnited in very narrow circumstances. One such circumstance is obscene material. "At the

7

lowest rung of the hierarchy of First Amendment values are forms of expression that are accorded no

8

First Amendment protection, such as obscenity and speech calculated to provoke a

9

School Admission Council, Inc. v. State of California (App. 3 Dist. 2014) 166 Cal.Rptt.3d647,222.)

10

In this case, the words that Plaintiff published on a social media website, "nigga" and "nigget" are

11

words that are generally considered to be the most obscene words in the English language. Because

12

First Amendment protection, and therefore California Constitutional Article I, Section 2 protections

13

do not apply to the obscenities published by Plaintiff, Plaintiff cannot state a valid cause of action.

t4

F.

Cause of Action Fails to State
Section 48950(a).
California Education

Plaintiff

s

fight. (Law

on of the

A Claim For A

l5
16

In Plaintiff s Fourlh Cause of Action, he states that Defendants violated protections granted

17

him by the California Education Code Section 48950(a), specifically, Defendants deprived him ofhis

18

'ovested

right to participate in his graduation ceremony without any right to be

heard

t9 administratively or judicially in any form." Additionally, Plaintiff also alleges that this statute
20

guarantees

2t

states,

22

disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when

23

engaged

24

Amendment to the United States Constitution or Section 2 of Article

25

Constitution." (Emphasis

"A

him additional freedom of speech protections. Califomia Ed. Code Section a8950(a)
school district

... shall not make or enforce a rule subjecting

a high school pupil to

in outside of the campus, is protected from governmental restriction by the First

I

of the California

added.)

26

As the Supreme Court noted, although the First Amendment Protects most speech activity,

27

"obscene material is unprotected by the First Amendment." (Miller v. California(1973) 413 U.S. 15,

28

23.)

McCoR[,IcK, BARSToW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

California Mirrors the Supreme Court in Trot recognizi ng any free speech protection for
MEMORANDUM OF P&AS IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
COMPLATNT PER FRCP RULE l2(bX6)

P LAINTIFF'S

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 8 of 11
o'Obscenity is not protected by the First Amendment. (In re Martinez 216 Cal.App.4th

I

obscenity.

2

1141, 1153 (2013) ; see also In re M.S. 10 Cal.4th 698,720 (1995)

J

a

words such as oonigger" and "nigga" are considered obscene, Plaintiff had no Federal or State

4

protections in his use of those words. Therefore, any reasonable action Defendants took in response to

5

Plaintiff

s egregious behavior

.) Due to the fact that the use of

did not contravene California Education Code Section 48950(a).

IV.
PUNITIVE DAMAGES

6
7
8

9
10
11

t2
13

t4
l5
t6
17

l8
I9
20
21

22
23

24
25

26

27
28
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

In Plaintiff

s

prayers for damages, Plaintiffhas improperly asserted punitive damages against

all Defendants. Plaintiff has two California State Law Claims, Claim Three and Claim

Four.

California State Law applies to these state claims, and as discussed below, Plaintiff cannot recover
punitive damages under California damages laws. (Erie R. Co. v. Tompkins 304 U.S. 64,78 (1938) .)

The law governing what damages are recoverable is substantive in Federal Court. (Homoki

v.

Conversion Services, Inc. 717 F.3d 388, 398 (5th Cir. 2013).) Plaintiff seeks state court based
personal injury damages in his Complaint, not subject to the Federal Tort Claims Act, so Defendant
asserts that the State laws of California apply to the Federal Questions Claims one, and two as

well,

and Punitive damages are not recoverable.

First, punitive damages are not allowed against public entities by California express law. In
Government Code Section 818, it is specifically stated that "notwithstanding any other provision

of

law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other
damages imposed

primarily for the sake of example and by way of punishing defendant." Despite the

clear legal bar prohibiting a punitive damage claim against CUSD, Plaintiffhas asserted such punitive
damages in their Complaint. This court must grant the motion to strike punitive damages

as

to CUSD

as a matter of express law.

Under California law, punitive damages are appropriate when plaintiff establishes, by clear
and convincing evidence, that defendant is guilty of fraud, oppression,

ormalice. (Inre First Alliance

Mortg. Co., C.A.9 (Cal.)2006 ,47   F .3d977 .) Inaddition, California law generally does not favor the
imposition of punitive damages, and such punitive damages are justified only in the "clearest" and
Woolstrum v. Mailloux 141 Cal.App.3d Sup. 1,9
,(
MEMORANDUM OF P&AS IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S
COMPLATNT PER FRCP RULE 12(bX6)

"most outrageous" of cases of defendant conduct.

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 9 of 11

I

(1983) ; Eganv. Mutual of Omaha Ins. Co.24 Cal.3d 809, 828 (1979).) To bring a successful action

2

for punitive damages, the allegation of punitive conduct must "not only be wilful in the

a

J

intentional, but it must also be accompanied by aggravating circumstances, amounting to malice."

4

(Ebaugh v, Radkin 22 Cal.App.3d 891 ,894

5

"conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct

6

which is carried on by the defendant with willful and conscious disregard of the rights or safety of

7

others."

sense

of

(1972).) Malice is defined by Civil Code $3294 as

8

Here, Plaintiff s Complaint is completely devoid of any facts showing that either Stephanie

9

Hanks, or Andrew Bolls acted with any fraud, oppression, or malice. As Plaintiff has so utterly failed

10

to meet the heightened pleading standard for punitive damages, this allegation against the individual

11

defendants must also be dismissed.

t2

LEAVE TO
13

V.
SHOULD NOT BE
BE FUTILE

WOULD

WHERE AMEND

14

Where it would be futile to allow Plaintiff to amend their claim because there are no legitimate

15

grounds upon which they can base their cause of action, the Court should grant the Rule 12(b)(6)

l6 motion with prejudice. Leave to amend should be denied if the court determines that allegations of
t7 other facts consistent with the challenged pleading could not possibly cure the deficien
18

cy

. (Schreiber

Distributing Co. v. Serv-Well Furniture Co., lnc.,806 F.2d 1393,1401(9th Cir. 1986).)

19

Here, as discussed throughout this Motion, Plaintiff has failed to plead the factual elements

20

required to maintain any of his claims against Defendants. Instead, he assefis conclusory allegations,

21

devoid of facts, that are wholly insufficient. Therefore, because Plaintiff cannot state any facts that

22

would grant him freedom of speech to use obscene language such as

23

because

24

amend.

Plaintiff

s due process

oonrgga"

and "nigger", and

rights have not been violated, Plaintiff should not be granted leave to

VI.
CONCLUSION

25

26
27

For the above reasons, Plaintiff s Complaint should be dismissed without leave to amend.

28

ill

McCoRft,ilcK, BARsroW
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA93720

s

MEMORANDUM OF P&AS IN SUPPORT OF DEFENDANTS'MOTION TO DISMISS PLAINTIFF'S
COMPLAINT PER FRCP RULE I2(bX6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 10 of 11

1

2

Dated: July 16,2019

a

MoCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH

J

4
5

Anthony N. DeMaria
Ryan W. Porte
Attorneys for Defendants CLOVIS LINIFIED
SCHOOL DISTRICT, STEPHANIE HANKS, ANd
ANDREW BOLLS.

6
7
8

9
10

00s339-0000r2

6 L7 4477 .1

11

t2
l3
t4
15

t6
17
18
19

20

2I
22
23

24
25
26
27
28
McCoRMIcK, BARSTOW,
SHEPPARO, WAYIE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA93720

10

MEMORANDUM OF P&As IN SUPPORT OF DEFENDANTS' MOTION TO DISMIS S PLAINTIFF'S
COMPLAINT PER FRCP RULE 12(bX6)

 Case 1:19-cv-00821-DAD-SKO Document 10 Filed 07/16/19 Page 11 of 11

PROOF OF SERVICE

1

2
J

4
5

6
7

STATE OF CALIFORNIA, COUNTY OF FRESNO

At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Fresno, State of California. My business address is 7647 North Fresno
Street, Fresno, CA 93720.
On July 76, 2019, I served true copies of the follgyln-g^{ogury1l(s)-{e1,qip9{-19
MEMORANUUVT-OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S FIRST, SECOND, THIRD AND FOURTH CAUSES
OF ACTION IN PLAINTIFF'S COMPLAINT PER FRCP RULE 12(B) (6) on the interested
parties in this action as follows:

8

Andy E, Castro

9

Clovis. California

l0

BY

MAIL: I enclosed the document(s)

in a sealed envelope or package addressed to.the

Liii and p.l.qceq the.envelopeJor collection and mailing,
ioitowing our ordinary business practices. I am readily familiar with this business's practice for

persons at the addresses listed in the Service
11

12
13

14

l5

l6
t7

and procesr'ing co.."rpbndence for mailing. On^the same day that the correspondglc." iq
"offl.tinE
piu..d io". coll6ction andmailin!, it i. deposited in tfie oldgnary course of business with the United
'states
Postal Service, in a sealed envelope with postage fully prepaid.

By CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed

the document(s)
who
are registered
case
the
with the Clerk of the Court by using the CM/ECF system. Participants_in
registered
not
who
are
in
the
case
CM/ECF users will be served by th"e CM/ECF system. Participanls
rules.
the
court
permitted
by
CM/ECF users will be served 6y mail or by other means

I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is
true and correct.
Executed on July 16,2079, at Fresno, California.

l8
t9
20

2l
22
ZJ

24
25
26
27
28
McCoR[4rcK, BARsrow,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET

tRESNO, CA 93720

Teri L. Maxwell