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UC-Berkeley Sex Claims|Must Be Amended

SAN FRANCISCO (CN) - Students must amend their claims that the University of California Berkeley treats sexual assault claims with indifference, leaving students vulnerable and enabling offenders, a federal judge ruled.

Sofie Karasek, Nicoletta Commins and Aryle Butler sued UC Berkeley in Alameda County Court on July 2. All claimed they had been sexually assaulted and that the school responded with "deliberate indifference" when they reported it.

Karasek and Commins say fellow students assaulted them. Butler claims a guest lecturer assaulted her in 2012 on a university research trip to Alaska.

They cite "numerous deficiencies" in university procedures, dating back to 1979, and claim the school underreports the number of sexually violent incidents on campus.

They sought damages for gender discrimination in violation of Title IX and the California Education Code, and for negligence and fraud.

The university removed the case to Federal Court in August and sought dismissal in September, claiming they failed to satisfy the requirement for Title IX claims because they "do not allege that they suffered 'further harassment' after reporting their assailants to the university."

U.S. District Judge William Orrick dismissed most claims on Dec. 11 with leave to amend. He denied the university's motion to dismiss Title IX claims because the students failed to allege that they suffered continuing harassment after they reported the assaults.

"That a student must be harassed or assaulted a second time before the school's clearly unreasonable response to the initial incident becomes actionable, irrespective of the deficiency of the school's response, the impact on the student, and other circumstances of the case run counter to the goals of Title IX," Orrick wrote.

He dismissed, however, the negligent failure to warn, train or educate claim, stating that the university does not have a duty to warn students that they could become victims of sexual assault.

"The general rule in California is that 'one who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from the acts of a third party," Orrick wrote. "There are exceptions to this general rule, such as where the defendant has a 'special relationship' with the plaintiff. But California courts have repeatedly held that a university does not have a special relationship with its students such that it may be held liable for failing to protect them from the wrongful acts of third parties."

The plaintiffs' fraud claims specifically allege that the university makes "false representations" about the safety of the campus and that it underreports incidents of sexual violence to hide the true numbers. Orrick dismissed those claims on procedural requirements.

"This cause of action must be dismissed because it does not satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that claims sounding in fraud or mistake 'state with particularity the circumstances constituting fraud or mistake," Orrick wrote. "The allegations of fraud 'must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done nothing wrong."

He gave the plaintiffs until Feb. 11, 2016 to submit amended complaints on their Title IX claims of harassment and deliberate indifference; their claims of negligent failure to train, warn or educate; and their claim of fraud.

He dismissed without leave to amend their claims under the California Education Code, but granted them leave to amend it under a new cause of action, if they find one.

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