Judge Kerry Bensinger, Case Number: 23STCV04603, Date: 2024-11-07 Tentative Ruling

This case arises from the alleged unauthorized use of photographic images. On March 2, 2023, Plaintiff, Arami Cheyenne Walker,[1] filed a Complaint against Defendant, The Regents of the University of California (erroneously sued as Board of Regents, University of California), alleging causes of action for: (1) Appropriation (Civil Code section 3344); (2) Breach of Contract; and (3) Negligent Infliction of Emotional Distress.¿

As alleged, Plaintiff was a student University of California, Los Angeles (UCLA). On May 28, 2015, Plaintiff was approached by a photographer at UCLA to take images of her. Plaintiff agreed and the photographer, Elena Zhukova, took a few images and asked for Plaintiff to sign a release. The release authorized use of the images so long as they were not defamatory. Years later, on March 20, 2020, Plaintiff learned that UCLA Giving was using her photographic image as part of a funding campaign in response to Covid-19. Plaintiff claims this use of her likeness was unauthorized and defamatory within the meaning of the release.

Defendant demurred to all three causes of action in the Complaint. On September 12, 2023, the Court sustained the demurrer in its entirety with leave to amend.

On September 26, 2023, Plaintiff timely filed the First Amended Complaint (FAC).

Defendant demurred to the FAC. On December 15, 2023, the court sustained Defendant’s demurrer. The court granted leave to amend as to Plaintiff’s breach of contract claim. Leave to amend was denied as to Plaintiff’s appropriation and negligent infliction of emotional distress claims.

On January 3, 2024, Plaintiff timely filed the Second Amended Complaint (SAC). The SAC asserts causes of action for Breach of Contract (Promissory Estoppel), and an “Appropriation and Invasion of Privacy 2022” claim.

On February 5, 2024, Defendant filed a Demurrer to the SAC and concurrently filed a Motion to Strike the “Appropriation and Invasion of Privacy 2022” claim in the SAC.

On April 10, 2024, the court overruled the demurrer and granted the motion to strike without leave to amend.

On April 23, 2024, Plaintiff filed the Third Amended Complaint (TAC) alleging causes of action for Promissory Estoppel and Unjust Enrichment.

On July 31, 2024, the court granted the motion to strike the TAC. Plaintiff was directed to serve and file an amended pleading which conformed with the court’s April 10, 2024, order.

On July 31, 2024, Plaintiff filed the operative Fourth Amended Complaint which alleges the sole cause of action for Promissory Estoppel.

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 1064.) The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.) “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. [Citation.]” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) “The common law ground for a motion for judgment on the pleadings is identical to the statutory ground[.]” (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1055.) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc., § 438, subd. (h)(1).) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852 (emphasis added).)

Plaintiff’s promissory estoppel claim is barred as a matter of law. “Promissory estoppel cannot be asserted against a public entity to bypass rules that require contracts to be in writing or be put out for bids, rules which reflect a public policy to preclude oral contracts or other exposures to liability, including claims of promissory estoppel.” (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556; see also Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1476 (“promissory estoppel may not be raised against a public entity when it would defeat the public policy of requiring adherence to statutory procedures for entering into contracts”]; First Street Plaza Partners v. City of Los Angeles (1998) 65 Cal.App.4th 654, 669 (“No case has ever held that a city may be bound to a contract by estoppel.”); Dynamic Industries Co. v. City of Long Beach (1958) 159 Cal.App.2d 294, 299 (“When the charter provision has not been complied with, the city may not be held liable in quasi contract, and it will not be estopped to deny the validity of the contract.”); see also Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 308, 316 (“‘neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public’”).

Here, Defendant is a public entity. “‘Public entity’” includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Gov. Code, § 811.2.) Plaintiff cannot maintain her promissory estoppel claim against Defendant. Further, having so concluded, it is clear from the face of the pleading that Plaintiff cannot successfully amend her pleading. (See Virginia G., supra, 15 Cal.App.4th at p. 1852.)

Based on the foregoing, the Motion for Judgment on the Pleadings is GRANTED. Leave to amend is DENIED.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff is self-represented.