Judge Maurice A. Leiter, Case Number: 24STCV11955, Date: 2024-08-07 Tentative Ruling

T/R: DEFENDANT’S DEMURRER IS SUSTAINED WITH 30 DAYS LEAVE TO AMEND. THE MOTION TO STRIKE IS DENIED.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

On February 1, 2023, Plaintiff Catherine Elizabeth Graham filed a complaint against Defendant Western University of Health Sciences, alleging these causes of action:

On June 12, 2024, Defendant filed a demurrer to the complaint with motion to strike. On July 1, 2024, Plaintiff filed a notice of supplement to the complaint[1]. On July 30, 2024, Plaintiff filed an opposition. On July 26, 2024, Defendant filed a reply.

Plaintiff applied to Western University of Health Sciences in the 2017-2018 application cycle, having graduated from UCLA and UC Irvine with three majors, a minor, and a master’s degree. In the fall of 2018, Plaintiff encountered a grade discrepancy due to conflicting instructions from Naida Jakirlic, College of Optometry instructor, and Tobias Boehm, College of Dental Medicine instructor, leading to a formal grade appeal in April 2019. (Compl. ¶¶ 14-15.) She alleges that in retaliation for her grade appeal, she was placed on academic probation by Ida Chung in May 2019, which she claims was unjust. (Compl. ¶¶ 16-17.) Upon resuming classes in the fall, she faced additional tensions and allegations of unprofessionalism, leading to further academic probation and eventually her dismissal in January 2020 after a Student Performance Committee hearing. (Compl. ¶¶ 18-23.)

In February 2020, Plaintiff met with Elizabeth Hoppe, Dean of the College of Optometry, and Andrea Quezada, where she was pressured to either repeat the second year or withdraw. She alleges that this was part of continued harassment and discrimination due to her affiliation with ophthalmology and her ambitions. (Compl. ¶¶ 24-27.) Upon reapplying, Plaintiff’s request to resume her studies was denied by Hoppe, who claimed the decision was made by the Admissions Committee. She further alleges covert involvement by Hoppe in subsequent meetings and continued harassment. (Compl. ¶¶ 32-39.) In August 2021, Plaintiff reported a violation of the Family Education Rights and Privacy Act (FERPA) and stalking by Hoppe to the Office of the Provost, David Baron, who acknowledged her intent to transfer. (Compl. ¶¶ 40-41.)

Plaintiff alleges that from August 2021 to June 2022, WesternU operated under a “cult-like” covert culture, engaging in harassment, unauthorized use of her data, and false advertising practices. (Compl. ¶¶ 42-57.) In May 2022, she filed multiple Title IX complaints and reported various incidents, including unauthorized processing of her information by Andrea Quezada and cyber law violations to the Board of Trustees. (Compl. ¶¶ 85-86.) She continued to face retaliation, including being locked out of university facilities and having her withdrawal mishandled. (Compl. ¶¶ 87-98.) In September 2022, she notified the Office of the Attorney General about her complaints, alleging ongoing issues and seeking redress. (Compl. ¶¶ 99-100.)

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist.¿(1996) 50 Cal. App. 4th 726, 732.) The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice. . . .This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal. 4th at 645 [internal quotation marks and ellipses omitted].) The law holds plaintiffs to a higher stand where there is a corporate defendant. In that case plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Id. at p. 645; See also Wald v. TruSpeed Motorcars, LLC (2010) 184 Cal.App.4th 378 [applying the heightened corporate pleading standing to an LLC].)

Plaintiff alleges that WesternU failed to inform prospective applicants, including herself, about the existence of a covert entity and culture at WesternU and defects in the university’s design and leadership, which would lead to harassment of students pursuing academic rather than cult objectives. (Compl., ¶ 106.) Plaintiff also claims that WesternU representatives provided misleading information that obscured an accurate evaluation of the programs offered. (Compl., ¶¶ 103, 105-106.)

The claim is unclear; Plaintiff does not specify whether the claim is for fraudulent concealment, intentional misrepresentation, or both. Plaintiff’s allegations also lack the necessary specificity regarding what facts were misrepresented or concealed, by whom, and when. Nor does Plaintiff show Defendant has a duty to disclose details about the enthusiasm of its administration and alumni.

Even if the Supplement to Complaint were properly before the Court, Plaintiff does not plead sufficient facts concerning what was allegedly misrepresented, when or by whom. Nor does Plaintiff show a duty to disclose the purportedly withheld facts.

B. Second Cause of Action for Strict Liability (Ultrahazardous Activity; Nuisance)

Under California law, an activity is considered ultrahazardous if it necessarily involves a risk of serious harm that cannot be eliminated by the exercise of utmost care and is not a matter of common usage. (Lipson v. Super. Ct., (1982) 31 Cal.3d 362; Luthringer v. Moore (1948) 31 Cal.2d 489, 498.)

According to California Civil Code § 3479, a nuisance is defined as anything injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property. A public nuisance affects an entire community or a considerable number of persons, while a private nuisance affects an individual's use and enjoyment of their land. (Cal. Civ. Code §§ 3480, 3481.)

Defendant argues that the operation of a university with a culture of encouraging a lifelong association with the school does not meet the criteria for ultrahazardous activity, as it does not inherently involve a risk of harm to persons or property that cannot be mitigated through due care. Defendant also contends there is no legal authority to support Plaintiff’s allegation that emails, regardless of their frequency, can interfere with the use and enjoyment of land. And Defendant argues that Plaintiff has not demonstrated an injury different from that of the public, as required to maintain a claim for public nuisance. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App. 3d 116, 124.)

The Court agrees with Defendant’s arguments. Plaintiff concedes that her commercial stock at the University of California, Berkeley, and her website Review of Optology, do not involve ultrahazardous activity or nuisance. (Supplement to Complaint, p. 6.) Plaintiff provides no facts showing that the ultrahazardous activities described in her Complaint originated at Western University of Health Sciences. (Supplement to Complaint, p. 14.)

As to nuisance, frequent and numerous communications sent to Plaintiff’s WesternU email address are insufficient to state a claim.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Plaintiff fails to allege a specific contractual promise. Courts have recognized the relationship between a student and an educational institution as contractual but have been reluctant to strictly apply contract law to general promises or expectations. (Kashmiri v. Regents of University of California (2007) 156 Cal. App. 4th 809, 824-26.) To state a claim for breach of contract, Plaintiff must point to an identifiable contractual promise that Defendant failed to honor. (Ross v. Creighton University, 957 F.2d 410, 416-17 (7th Cir. 1992).) Plaintiff has not pointed to any express promise made to her by WesternU. Instead, she relies on provisions of the “University Catalog” and “Enrollment Agreement,” by which she agreed to abide by WesternU’s “policies and procedures” as outlined in the catalog and WesternU’s policies on Network Acceptable Use, Non-discrimination, Anti-Harassment and Anti-Retaliation, Title IX, Tuition Refund, and the Standards of Academic Integrity, Professionalism and Student Conduct. Plaintiff acknowledges that these policies are “broad” (Compl., ¶¶146, 159) and admits that she was advised in her Application Agreement that”"[t]he only document that can be relied upon is the University Catalog for general information purposes, and this document is subject to change at any time.” (Compl., ¶27 and Ex. 2, Par. 8.) The catalog itself states that it “does not constitute a contract, or terms or conditions of contract between the student, staff, and/or faculty and Western University of Health Sciences.” (Compl., ¶142.)

Plaintiff has not alleged any promises that would constitute an implied-in-fact contract. None of the statements cited by Plaintiff, such as WesternU’s statement in the Network Acceptable Use Policy that “it will take appropriate, necessary steps to ensure its ongoing compliance with all State and Federal law,” or the statement in the Non-discrimination, Anti-Harassment and Anti-Retaliation Policy that WesternU “recognizes that unlawful treatment and harassment, on the basis of an individual's protected characteristic (or status), is a form of discrimination,” are specific promises. These are general declarations of the school’s values, procedures, and compliance with applicable laws.

“The elements for negligence cause of action are duty, breach, causation and damages.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) “However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [internal brackets omitted].)

Defendant asserts that “negligence per se” is an evidentiary doctrine, not a separate cause of action, which creates a rebuttable presumption of negligence if certain elements are met: violation of a statute, causation of injury, the statute’s purpose to prevent such injury, and protection of the injured party by the statute. Even if the presumption applies, Plaintiff still must plead all elements of a negligence cause of action, including the existence of a legal duty of care owed by WesternU. Defendant argues that universities do not have a special relationship with students that imposes an affirmative duty to protect students from harm, except in specific academic settings where physical safety is at issue. (Regents of Univ. of California v. Superior Ct. (2018) 4 Cal. 5th 607, 624-25.) Plaintiff does not allege any foreseeable threat of violence or actual violence in a curricular setting. Nor does Plaintiff dispute that “negligence per se” is not a separate cause of action. And Plaintiff does not address her failure to allege facts establishing a legal duty of care.

Similarly, res ipsa loquitor creates an inference of negligence in certain cases and affects the burden of producing evidence, but it is not a cause of action imposing liability in the absence of negligence. The presumption only addresses causation, and Plaintiff still must plead all other elements of a negligence cause of action, which she has not done.

Finally, the elements of a professional negligence cause of action include a duty to use professional skill, breach of that duty, causation, and resulting injury. Defendant argues that WesternU is not a “professional” but an institution of higher learning and a corporation, and thus cannot be held liable for professional negligence. Plaintiff concedes that WesternU, as defined in the pleadings, is not “a person or a professional.” (Supplement to Complaint, p. 21). WesternU cannot be liable for professional negligence. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.)

To state a claim for IIED, plaintiff must allege (1) defendant’s outrageous conduct; (2) intentional or reckless causing of emotional distress; (3) severe emotional distress resulting from the defendant’s conduct; and (4) causation. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Conduct is outrageous if it is of “such substantial quantity or enduring quality” that an individual in civilized society should not be expected to endure it. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227; see also Cochran v. Cochran (1998) 65 Cal App.4th 488, 494 [stating that the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious. . .”].) The pleading must include “specific facts that establish severe emotional distress resulting from [a] defendant's conduct.” (Michaelian v. State Comp. Ins. Fund (Michaelian) (1996) 50 Cal.App.4th 1093, 1114; see, e.g., Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 474-77 (finding facts supporting IIED claim where plaintiff plead resulting “depression, anxiety, and physical illness,” which manifested as “vomiting, stomach cramps, and diarrhea”].)

The conduct described, such as communicating about academic performance and processing a withdrawal application, does not meet the threshold for extreme and outrageous conduct. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Regarding harassment, Plaintiff alleges under CCP § 527.6 that she was subjected to excessive communications, coerced into unpaid work, had her commercial interactions disrupted, and had her likeness appropriated. But section 527.6 provides only for a temporary restraining order and injunction against harassment, not monetary damages or other relief sought by Plaintiff.

For trespass to chattels, Plaintiff claims that WesternU intruded on her personal computers and networks. Under California law, this requires showing intentional and unauthorized interference with personal property that proximately causes injury. Plaintiff does not allege that the intrusion caused any harm or impairment to her computer systems.

As to invasion of privacy: misappropriation, Plaintiff alleges that WesternU posted her photograph on the College of Optometry’s Facebook page without permission, identifying her as a member of the class of 2024. The elements of this claim include using the plaintiff’s likeness without permission, gaining a commercial benefit or advantage, causing harm, and the use of likeness being a substantial factor in causing harm. (CACI No. 1803; Gionfriddo v. Major League Baseball (2021) 94 Cal. App. 4th 400, 409 (2001).) Plaintiff does not allege that WesternU gained a commercial benefit from using her likeness, which is an essential element of the claim.

Conversion is “the wrongful exercise of dominion over the property of another.” (Lee v. Hanley (2015) 61 Cal. 4th 1225 (quotations omitted).) To establish a claim for conversion, a plaintiff must plead: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Id. (quotations omitted).)

Plaintiff’s sixth cause of action for products liability and conversion fails to state a claim. In a products liability case, recovery can be sought based on defects in a product under theories of both negligence and strict liability. (Johnson v. United States Steel Corporation (2015) 240 Cal. App. 4th 22, 30-31 (2015).) Plaintiff does not allege that her academic transcript, which she describes as a “unique product,” was defective. Instead, she claims that WesternU “converted” her transcript by fraudulently changing her failing grades for the Spring 2022 semester to “W,” making the transcript invalid and useless as a reflection of her academic record (Compl., ¶201.) There are no facts to allege conversion, which requires interference with tangible property. Plaintiff’s academic transcript is considered information and not tangible property. The failure to accurately reflect her failing grades cannot support a cause of action for conversion.

[1] To the extent Plaintiff wishes to file an amended complaint and name additional parties, she has failed to make a proper motion for leave to amend her complaint. (Code Civ. Pro. §473(a)(1); Cal. Rules of Court, rule 3.1324(a).) Her allegations against those individuals are not before the court.