Judge: Lynette Gridiron Winston, Case: 24PSCV00393, Date: 2024-10-24 Tentative Ruling

Case Number: 24PSCV00393    Hearing Date: October 24, 2024    Dept: 6

CASE NAME:  Melissa Clark v. University of La Verne

1 – Defendant University of La Verne’s Demurrer to First Amended Complaint of Plaintiff Melissa Clark; and

2 – Defendant University of La Verne’s Motion to Strike Portions of Plaintiff Melissa Clark’s First Amended Complaint 

TENTATIVE RULING 

The Court OVERRULES Defendant University of Laverne’s demurrer as to all causes of action of the First Amended Complaint. The Court SUSTAINS the demurrer as to the Third and Fourth Causes of Action with 20 days leave to amend. 

The Court GRANTS Defendant University of La Verne’s motion to strike. The Court hereby strikes the following portions of the FAC, with 20 days’ leave to amend: 

-          page 30, line 12 through page 31, line 11 of the FAC; and

-          the words “exemplary damages” from the Prayer for Relief, located at page 31, line 15, of the FAC. 

            Defendant University of La Verne is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is an academic dispute. On February 7, 2024, plaintiff Melissa Clark (Plaintiff) filed this action. On July 3, 2024, Plaintiff filed the operative First Amended Complaint (FAC) against defendants University of La Verne, Devorah Lieberman, Karop Janoyan, Leo Berrera, Kathy Elderson, Maria Garcia, Lily Damon, Kimberly A. White-Smith, Victoria Escoffery-Runnels, and Does 1 through 50, alleging causes of action for breach of contract (two counts), negligence (NIED), intentional infliction of emotional distress (IIED), and exemplary damages. 

On September 20, 2024, defendant University of La Verne (University) demurred to and moved to strike portions of the FAC. On October 11, 2024, Plaintiff opposed both motions. On October 17, 2024, University replied to both motions. 

LEGAL STANDARD 

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at pp. 993-994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].) 

A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.) 

REQUESTS FOR JUDICIAL NOTICE – Demurrer 

            The Court GRANTS University’s request for judicial notice. (Evid. Code, § 452, subd. (d).) The Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.) 

PRELIMINARY ISSUE 

            The Court notes that opposition to the demurrer is over ten pages long, but contains no table of contents or authorities as required under Rule 3.1113, subdivision (f), of the California Rules of Court. (Cal. Rules of Court, rule 3.1113, subd. (f).) The Court will still consider the opposition, but nevertheless admonishes Plaintiff to comply with the requirements of the California Rules of Court going forward. 

            The Court further notes that Plaintiff’s opposition is not signed by her or her counsel, which is required under Section 128.7, subdivision (a), of the Code of Civil Procedure. (Code Civ. Proc., § 128.7, subd. (a).) The Court will still consider the opposition, but only on the condition that Plaintiff’s counsel corrects this error by the time of the hearing on this demurrer and the motion to strike; otherwise, the Court must strike the opposition. (Ibid.) 

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), University was required to meet and confer with Plaintiff in person, telephonically, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds University’s efforts to meet and confer sufficient. (Rosetti Decl., ¶ 4.) 

All Causes of Action – Writ of Mandate 

University demurs to all causes of action in the FAC on the grounds that they fail to state a cause of action. Specifically, University contends the FAC is procedurally improper because Plaintiff’s claims should have been raised via petition for writ of mandate. In opposition, Plaintiff contends the FAC is procedurally proper because she is not seeking an order for University to give Plaintiff a fair hearing in this matter, but rather is seeking monetary damages for the harms she allegedly suffered from University improperly dismissing her. 

The Court does not find Plaintiff’s claims need to have been brought via petition for writ of mandate. In Banks v. Dominican Coll. (1995) 35 Cal.App.4th 1545 (Banks), the Court of Appeal affirmed the trial court’s grant of summary judgment against the former student’s complaint, which included claims for breach of contract and intentional and negligent infliction of emotional distress, among others. (Id. at pp. 1553-1555.) The Court held that the trial court properly granted defendants' motion for summary judgment because the evidence submitted demonstrated without any dispute of material fact that the student's dismissal was unquestionably related to her unacceptable academic performance in the clinical teaching program; the decision had a rational basis; and the dismissal was not arbitrary and capricious, discriminatory, or otherwise wrongful. Although this was decided on a motion for summary judgment, such claims were adjudicated via a civil complaint and not via a petition for writ of mandate. 

Moreover, “[t]he basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract. [Citations.]” (Zumbrun v. Univ. of S. California (1972) 25 Cal.App.3d 1, 10 (Zumbrun).) The FAC alleges University provided certain procedures “for addressing issues that may arise during the course of a student’s education.” (FAC, pp. 7-8.) The FAC alleges that University did not follow those procedures before dismissing Plaintiff from the University’s counseling program. (FAC, pp. 13-14.) The Court believes that Plaintiff’s claims can be adjudicated “without second-guessing the professional judgment of the University faculty on academic matters.” (Ross v. Creighton University (7th Cir. 1992) 957 F.2d 410, 417.) 

Furthermore, in 300 DeHaro St. Invs. v. Dep't of Hous. & Cmty. Dev. (2008) 161 Cal.App.4th 1240 (300 DeHaro), the Court of Appeal held that mandamus is generally not an appropriate remedy for a breach of contract claim against a public entity. (Id. at p. 1254.) If mandamus is generally not appropriate for a contract claim involving a public entity, then it only stands to reason that Plaintiff’s claim against University, a private entity with whom Plaintiff’s relation was contractual in nature, would also not be subject to mandamus. (See 300 DeHaro, supra, 161 Cal.App.4th at p. 1254; Zumbrun, supra, 25 Cal.App.3d at p. 10.) 

Finally, as Plaintiff argues in her opposition, the FAC does not seek relief by way of setting aside Plaintiff’s dismissal from University’s counseling program. (FAC, p. 31.) The Court would not be reviewing the underlying basis of University’s decision, but rather whether University followed its policies and procedures. (Ross, supra, 957 F.2d at p. 417.) 

All Causes of Action –  Judicial Nonintervention 

“It has been said that courts do not interfere with the management of a school's internal affairs unless 'there has been a manifest abuse of discretion or where [the school officials'] action has been arbitrary or unlawful,' [citation], or unless the school authorities have acted 'arbitrarily or capriciously', [citation], or unless they have abused their discretion, [citations], or acted in 'bad faith', [citations].” (Wong v. Regents of Univ. of California (1971) 15 Cal.App.3d 823, 830.) “Mandamus lies to set aside the dismissal of a [university] student if such dismissal was arbitrary, capricious or in bad faith. [Citation.]” (Valvo v. Univ. of S. California, supra, 67 Cal.App.3d at p. 896.) 

University contends that all causes of action in the FAC are also subject to demurrer because Plaintiff’s claims would violate the rule of judicial nonintervention in the decision making process of educational institutions. University contends the FAC alleges Plaintiff was dismissed from the counseling program because Plaintiff failed to recognize and report the needs of a depressed elementary school student who allegedly attempted suicide and that Plaintiff was training to work with children. University contends courts generally defer to educational institutions in areas of specialized knowledge because courts are not expected to be experts on such matters. University contends Plaintiff’s alleged failure to help the aforementioned elementary school student is not an arbitrary or capricious reason for dismissal. 

In opposition, Plaintiff contends her claims are not barred by the rule of judicial nonintervention. Plaintiff contends the FAC shows University’s conduct in dismissing Plaintiff in this matter was arbitrary, capricious, or in bad faith. 

The Court finds the FAC alleges sufficient facts demonstrating that Plaintiff’s causes of action fall within the arbitrary and capricious exception of the judicial nonintervention rule. The issue here is not necessarily the mistake Plaintiff purportedly made in connection with the elementary school student who attempted to commit suicide; rather, the issue is University’s alleged failure to follow its own procedures in handling Plaintiff’s purported mistake when it dismissed her from the counseling program. The FAC alleges that University’s procedure for matters like this entails an opportunity to review information that will be used in determining whether a student violated a policy warranting dismissal, among other things. (FAC, pp. 7-8.) The FAC alleges that University did not provide Plaintiff with the evidence, details, or even a report upon which University relied when it decided to dismiss Plaintiff from the counseling program. (FAC, pp. 13-14.) Since the allegations are assumed to be true on a demurrer, the Court finds these allegations sufficient to demonstrate that University’s conduct fell within the arbitrary and capricious exception to the judicial nonintervention rule. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Valvo v. Univ. of S. California, supra, 67 Cal.App.3d at p. 896.) 

Based on the foregoing, the Court OVERRULES the demurrer with respect to all causes of action. 

Third Cause of Action – Negligent Infliction of Emotional Distress 

To state a cause of action for negligent infliction of emotional distress, the plaintiff must allege facts that would support a claim for negligence, namely duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.) 

University demurs to the Third Cause of Action for negligent infliction of emotional distress on the grounds that it essentially restates Plaintiff’s breach of contract claim, as it arises out of University’s policies and procedures related to its students, and thus fails to establish a duty beyond the contractual obligations. 

In opposition, Plaintiff contends the FAC states sufficient facts to support a claim for negligent infliction of emotional distress. Plaintiff cites the allegations of the FAC indicating that University is an institution of higher education and therefore assumes a duty of care, especially in this case which involved a department of other psychologists and Plaintiff’s known mental health issues. Plaintiff contends University owed her a duty of care through University’s handbooks, advertisements, and marketing materials. 

The Court finds the FAC fails to allege sufficient facts to state a cause of action for negligent infliction of emotional distress. University correctly argues that Plaintiff’s claim of duty is based on the same policies and procedures that support Plaintiff’s breach of contract claims and therefore arise out of contractual obligations, not duties of care imposed by operation of law. (FAC, p. 22.) “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal.App.4th 1036, 1041, internal quotation marks omitted.) Moreover, to the extent this cause of action is duplicative of Plaintiff’s breach of contract claim, that is also a basis for sustaining a demurrer. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action with leave to amend. 

Fourth Cause of Action – Intentional Infliction of Emotional Distress[1]

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts demonstrating, “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 (Berry).) “Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534; but see Berry, supra, 90 Cal.App.5th at p. 1273 [“’[W]hether conduct is ‘outrageous’ is usually a question of fact.’ [Citation]”.)

University demurs to the Fourth Cause of Action for intentional infliction of emotional distress on the grounds that it fails to state a cause of action. University contends the FAC does not allege facts demonstrating extreme and outrageous conduct, but at worst shows University sought to ensure that the individuals who work with vulnerable children are responsible, ethical people who would never fail to report suicidal ideations in a young child. 

In opposition, Plaintiff contends the facts upon which Plaintiff’s dismissal was based are still unknown. Plaintiff contends the FAC alleges University had direct knowledge of Plaintiff’s dedication to pursue her chosen career, knew how closely Plaintiff identified as a future child counselor, and knew of Plaintiff’s disability that made it probable she would suffer serious emotional harm if summarily dismissed in a callous manner without explanation or factual evidence to support the dismissal. Plaintiff contends University’s position of power over her makes its actions extreme and outrageous here. 

The Court finds the FAC fails to allege facts sufficient to state a cause of action for intentional infliction of emotional distress (IIED). “A defendant's conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal citation and quotation marks omitted.) “Liability for intentional infliction of emotional distress does not extend to mere… indignities…” (Ibid., internal citation and quotation marks omitted.) Distressing conduct in and of itself is not actionable. (Okorie v. Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th 574, 597, disapproved on other grounds by Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995.) Dismissal from a university program, while unfortunate and understandably distressing, is a common occurrence, and does not as a matter of law rise to the level of extreme and outrageous conduct. 

Accordingly, the Court SUSTAINS the demurrer to the Fourth Cause of Action with leave to amend.
 

LEGAL STANDARD – Motion to Strike 

            “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.) 

DISCUSSION – Motion to Strike 

Meet and Confer 

Per Code of Civil Procedure section 435.5, subdivision (a), University was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds University’s efforts to meet and confer sufficient. (Rosetti Decl., ¶ 4.) 

Exemplary Damages

A claim for exemplary damages (or punitive damages) is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) 

University moves to strike the portions of the FAC seeking exemplary damages on the grounds that it fails to allege sufficient facts to support a request for exemplary damages. University contends the FAC at most alleges a dismissal from the counseling program that was unwarranted or hastily made. University contends the FAC does not allege any facts evidencing malicious or willfully harmful conduct directed towards Plaintiff, intent to harm Plaintiff, or criminal indifference to Plaintiff’s rights. University contends the FAC demonstrates University was concerned about protecting innocent children. 

In opposition, Plaintiff contends that she has presented sufficient facts to support a claim for punitive damages. Plaintiff cites various allegations in the FAC to support this contention, and contends that University abused its position of power over Plaintiff, who had a known mental health problem. Plaintiff contends the FAC alleges University callously dismissed her from University’s counseling program without the necessary evidence to support that dismissal, which effectively ended her career path towards becoming a mental health professional. 

Given the Court sustained the demurrer to the Third and Fourth Causes of Action for negligent and intentional infliction of emotional distress, the only remaining causes of action are for breach of contract, which do not support claims for punitive damages. (Civ. Code, § 3294, subd. (a), italics added [“In an action for the breach of an obligation not arising from contract…”].) Accordingly, there is no basis for Plaintiff’s punitive damages claim. 

Based on the foregoing, the Court GRANTS Defendant University of La Verne’s motion to strike. The Court hereby strikes the following portions of the FAC, with 20 days’ leave to amend: 

-          page 30, line 12 through page 31, line 11 of the FAC; and

-          the words “exemplary damages” from the Prayer for Relief, located at page 31, line 15, of the FAC. 

CONCLUSION 

The Court OVERRULES Defendant University of Laverne’s demurrer as to all causes of action of the First Amended Complaint. The Court SUSTAINS the demurrer as to the Third and Fourth Causes of Action with 20 days leave to amend. 

The Court GRANTS Defendant University of La Verne’s motion to strike. The Court hereby strikes the following portions of the FAC, with 20 days’ leave to amend: 

-          page 30, line 12 through page 31, line 11 of the FAC; and

-          the words “exemplary damages” from the Prayer for Relief, located at page 31, line 15, of the FAC. 

            Defendant University of La Verne is ordered to give notice of the Court’s ruling within five calendar days of this order.