Judge: Curtis A. Kin, Case: 20STCV45853, Date: 2022-09-20 Tentative Ruling
Case Number: 20STCV45853 Hearing Date: September 20, 2022 Dept: 72
DEMURRER
Date: 9/20/22
(9:30 AM)
Case: Evelyn Howell Massey v. Biola
University, Inc. (20STCV45853)
Defendant Biola University’s Demurrer to Complaint with
respect to the first cause of action for breach of contract is OVERRULED.
Defendant Biola University’s request for judicial notice of
the Second Amended Complaint filed in Massey v. Biola University, Inc.
No. 2-19-cv-09626-CJC-JDE (U.S. Dist. Ct., C.D. Cal.) (Exhibit 1) is GRANTED,
but only for the existence of the document, not the truth of the matters
asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1564-69.)
Defendant’s request for judicial notice of the Report and
Recommendation of United States Magistrate Judge filed August 21, 2020 (Exhibit
2), Order Accepting Report and Recommendation of United States Magistrate Judge
filed October 20, 2020 (Exhibit 3), and Judgment filed October 20, 2020
(Exhibit 4) is GRANTED, pursuant to Evidence Code § 452(d).
Defendant’s request for judicial notice of Plaintiff’s
Notice of Appeal filed October 23, 2020 (Exhibit 5) and Copy of Unpublished
Opinion in Alexander v. Biola, 2010 WL 2584974 (Exhibit 6) is DENIED as
“unnecessary to the resolution” of the issues before the Court. (Martinez v.
San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)
As background, this demurrer concerns the first cause of
action for breach of contract, which plaintiff asserted in the original
Complaint filed on December 2, 2020. On March 25, 2021, the Court, Hon. Ruth
Ann Kwan presiding, heard defendant’s demurrer to the original Complaint, which
had been fully briefed. The Court stayed the breach of contract cause of action
pending plaintiff’s appeal of the U.S. District Court’s dismissal of a federal
action brought by plaintiff against defendant, entitled Massey v. Biola
University, Inc. No. 2-19-cv-09626-CJC-JDE (U.S. Dist. Ct., C.D. Cal.).
On August 19, 2022, during a status conference, the Court,
Hon. Curtis A. Kin presiding, noted that the U.S. Court of Appeal for the Ninth
Circuit denied plaintiff’s appeal and issued its mandate. The Court lifted the
stay on the breach of contract cause of action and set the hearing on the
demurrer thereto.
As a preliminary matter, the Court strikes “Plaintiff’s
Request Motions 1. Motion to Amend Complaint: If Demurrer is Sustained 2.
Motion To Dismiss Demurrer 3. Motion To Dismiss Strikes. 4. Motion To Go To
Jury Trial” filed on August 26, 2022 and “Plaintiff’s Request: Deny Defendant’s
Opposition to Plaintiff’s Motions filed on August 26, 2022. Biola’s opposition
is based on a Lack of Merit and Legal Justification, Lies, Fraud, Deception and
Judicial Corruption by Biola’s Attorneys including the representative Law
Firms” as unauthorized sur-replies. (CCP § 1005(b) [only motion, opposition,
and reply to opposition allowed under Code of Civil Procedure].) As noted
above, the demurrer heard on March 25, 2021 was fully briefed. Plaintiff Evelyn
Howell Massey filed an opposition on February 17, 2021. Plaintiff did not seek
leave to file further briefing. Accordingly, plaintiff’s filings on August 26,
2022 and September 12, 2022 are STRICKEN. Because plaintiff’s August 26, 2022
filing is stricken, defendant’s response to said filing filed on September 7,
2022 is disregarded.
Defendant demurred to the breach of contract cause of action
on the ground that it is time-barred.
The parties dispute what statute of limitations applies. The
statute of limitations based on a written contract is four years. (CCP §
337(a).) The statute of limitations based on a contract not in writing, i.e.,
an implied-in-fact contract, is two years. (CCP § 339(1); Barton v. New
United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1206 [CCP §
339(1) “applies not only to actions for breach of oral or implied contracts . .
. .”].)
“The basic legal relation between a student and a private
university or college is contractual in nature.” (Zumbrun v. University of
Southern California (1972) 25 Cal.App.3d 1, 10.) Plaintiff is suing Biola
University, a private, religious university. (Compl. 1:16-17, 2:18.)
Plaintiff alleges the terms of the contract that defendant
violated were contained in defendant’s policies and procedures, including the
catalog for the Talbot School of Theology, a Talbot Graduate Handbook, and a
Faculty Handbook. (Compl. 21:9-14, 23:4-5, 24:25-25:1, 27:13-15, 27:21-22,
44:6, 45:14-17, 48:7, 48:15-16, 48:20, 55:18-22.)
In Zumbrun, cited by plaintiff, the Court of Appeal
stated: “The catalogues, bulletins, circulars, and regulations of the
institution made available to the matriculant become a part of the contract.” (Zumbrun,
25 Cal.App.3d at 10.) However, the Zumbrun decision never discusses
whether the stated documents are part of an express, written contract or an
implied contract. “[A] case is not authority for a proposition not considered
therein or an issue not presented by its own particular facts.” (Satten v.
Webb (2002) 99 Cal.App.4th 365, 383.)
In Kashmiri v. Regents of University of California (2007)
156 Cal.App.4th 809, the Court of Appeal found that documents issued by a
school, including catalogues and websites, that do not expressly state that the
university intends to be bound by the statements contained in the documents
become “part of the enrollment agreement only if they are ‘implied-in-fact’
contract provisions.” (Kashmiri, 156 Cal.App.4th at 829.) Comparing
Civil Code § 1620 to Civil Code § 1621, the Kashmiri court stated
the terms of express contracts are “stated in words,” whereas the terms of
implied contracts “are manifested by conduct.” (Id. at 827, quoting Civ.
Code §§ 1620, 1621.) Plaintiff makes no attempt to distinguish Kashmiri.
Here, plaintiff does not allege the existence of any
statements in defendant’s policies and procedures evidencing defendant’s
intention to be bound by the policies or procedures. (See Kashmiri, 156
Cal.App.4th at 827 [“There were no formal agreements between the students and
University and, therefore, their agreements were implied-in-fact contracts.
Respondents have not pointed to any express promise between the University and
the professional student subclass that the University intended the terms in the
catalogues or on the website to be binding”].) Put another way, the fact that
the policies and procedures are written does not mean the policies and
procedures are express contracts. Rather, what is dispositive is whether
defendant stated that it intended to be bound by its policies and procedures.
While plaintiff alleges the existence of a written
contractual relationship with defendant (Compl. 44:26-27; 45:17-18; 46:20-21),
this is a legal conclusion that is disregarded on demurrer. (Rodas v.
Spiegel (2001) 87 Cal.App.4th 513, 517 [“In determining the merits of a
demurrer, all material facts pleaded in the complaint and those that arise by
reasonable implication, but not conclusions of fact or law, are deemed admitted
by the demurring party”].)
Because plaintiff does not state the existence of an express,
written contract in the Complaint, the breach of contract cause of action is
subject to a two-year statute of limitations.
Plaintiff’s breach of contract cause of action arises from
the administrative withdrawal from enrollment taking place on November 8, 2018.
(Compl. 28:11-12 [“In summary, these numerous Breach of Contract violations by
Biola University caused the Wrongful Administrative Withdrawal against
Plaintiff’s wishes”]; 20:16-19 [administrative withdrawal took place on
November 8, 2018].) All the other alleged breaches of contract taking place
from the fall 2015 semester to the administrative withdrawal occurred before
plaintiff was expelled from the university. (Compl. 16:3-28:9, 41:4-42:13.)
“[S]tatutes of limitation do not begin to run until a cause
of action accrues. [Citation.] Generally speaking, a cause of action accrues at
‘the time when the cause of action is complete with all of its elements.’
[Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
806.) Because plaintiff alleges damages arising from the withdrawal of
enrollment, the breach of contract cause of action accrued on November 8, 2018.
In its demurrer, defendant argues that tolling of the
statute of limitations is unavailable to plaintiff—though defendant erroneously
cites 42 U.S.C. § 1357(d) as the tolling provision it seeks to avoid. (Demurrer at 13:14-17.) Rather, 28 U.S.C. §
1367(d) provides: “The period of limitations for any claim asserted under
subsection (a) [pertaining to state claims to which federal districts have
supplemental jurisdiction], and for any other claim in the same action that is
voluntarily dismissed at the same time as or after the dismissal of the claim
under subsection (a), shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides for a longer
tolling period.” “Section 1367(d) is phrased as a tolling provision. It
suspends the statute of limitations for two adjacent time periods: while the
claim is pending in federal court and for 30 days postdismissal.” (Artis v.
District of Columbia (2018) 138 S.Ct. 594, 603.)
Plaintiff’s breach of contract claim before the U.S.
District Court was a supplemental state law claim. (RJN Ex. 2 at 23:13-22; RJN
Ex. 3 at 2:13-15.) Under 28 U.S.C. § 1367(d), the statute of limitations on
plaintiff’s breach of contract cause of action was suspended from June 11, 2020
while the federal case was pending (RJN Ex. 1, Ex. 2 at 2:14-19 [stating Second
Amended Complaint with breach of contract cause of action was filed on June 11,
2020] to November 19, 2020, i.e., to 30 days after October 20, 2020 (when the
federal case was dismissed) (RJN Ex. 4).
This tolling period from June 11, 2020 to November 19, 2020 consisted of
161 days. Accordingly, plaintiff had an additional 161 days to assert her breach
of contract claim in this action. Plaintiff filed the instant Complaint on
December 2, 2020, which was well within 161 days from November 8, 2020, when
the limitations period would have ended without tolling.
Defendant cites to Centaur Classic Convertible Arbitrage
Fund Ltd. v. Countrywide Financial Corp. (C.D. Cal. 2011) 878 F.Supp.2d
1009 for the assertion that tolling of state claims as supplemental to federal
question claims does not apply under California law. That is a gross
mischaracterization of what that case held and entirely misapprehends the
applicability of 28 U.S.C. § 1367(d). The
Centaur Classic court held that 28 U.S.C. § 1367(d) applies “only where,
pursuant to § 1367(c), a federal court declines to exercise supplemental
jurisdiction over state law claims after dismissing the federal claims.” (Centaur
Classic, 878 F.Supp.2d 1009, 1019.) Here, the U.S. District Court declined
to exercise supplemental jurisdiction over plaintiff’s breach of contract
claim. (RJN Ex. 3 at 2:13-15.) Accordingly, 28 U.S.C. § 1367(d) applies.
As an additional ground for demurrer, defendant argues that
plaintiff does not sufficiently allege terms of the implied contract.
“Universities frequently publish numerous catalogues and bulletins, but not all
statements in these publications amount to contractual obligations . . . [T]he
case law recognizes that, like all obligations imposed pursuant to implied
contractual terms, the contractual obligations imposed by the language in
catalogues ‘center around what is reasonable.’ [Citations].” (Kashmiri,
156 Cal.App.4th at 829.) The terms of an implied contract are based on “the
reasonable expectation of the parties at the time of contract.” (Id. at
832, citing Civ. Code § 1649.) “The reasonableness of the student's expectation
is measured by the definiteness, specificity, or explicit nature of the
representation at issue.” (Kashmiri, 156 Cal.App.4th at 832.)
Plaintiff cites the policies and procedures forming the
basis of a breach of contract cause of action. (Compl. 36:7-40:21.) Plaintiff
alleges that defendant failed to consult with her prior to her withdrawal from
enrollment, in violation of Section 9.12 of the Faculty Handbook and the Talbot
Handbook. (Compl. 39:17-40:21.) “The existence of a contract between the
students and the university is implied-in-fact, and the question whether the
parties’ conduct creates such an implied agreement is generally a question of
fact.” (Kashmiri, 156 Cal.App.4th at 829, internal quotations omitted.) Assuming
them to be true, plaintiff’s allegations of a contract are sufficient to
withstand demurrer. Ultimately, whether
such a contract was ever formed (or even breached) is a disputed question that
must be determined on summary judgment or trial.
The demurrer is OVERRULED.
The Court inquires from the parties whether this action belongs in the writs and receivers department. “The remedy of administrative mandamus is available to review adjudicatory decisions of private organizations, including universities.” (Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 32, fn. 1.) Here, plaintiff seeks the rescission of administrative withdrawal against her. (Compl. 74:4-6.)