Judge: Ronald F. Frank, Case: 22STCV06115, Date: 2024-11-19 Tentative Ruling
Case Number: 22STCV06115 Hearing Date: November 19, 2024 Dept: 8
Tentative
Ruling¿¿
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HEARING DATE: November 19, 2024
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CASE NUMBER: 22STCV06115
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CASE NAME: John Doe v. Loyola
Marymount University, et al.
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MOVING PARTY: Defendant, Loyola Marymount University
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RESPONDING PARTY: Plaintiff,
John Doe
TRIAL DATE: Not Set.
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MOTION:¿ (1) Demurrer to First Cause of
Action
(2) Motion to Strike
(3) Informal Discovery
Conference
Tentative Rulings: (1) SUSTAINED without leave
to amend
(2) Motion to Strike
is MOOTED
(3) The Court will recess its jury trial to hear brief
oral argument on the Demurrer, but will need to postpone the IDC
I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
February 17, 2022, John Doe (“Plaintiff”) filed this action. On March 16, 2022,
Plaintiff filed a First Amended Complaint against Defendants, Loyola Marymount
University (“LMU”) and Michael Mozilo (“Mozilo”). On July 8, 2024, Plaintiff
filed a Second Amended Complaint (“SAC”). On September 3, 2024, this court
sustained a demurrer, with leave to amend, as to the SAC on the grounds that
Plaintiff’s SAC failed to allege that he filed a complaint with a local
educational agency before commencing this action.
On
September 19, 2024, Plaintiff filed a Third Amended Complaint(“TAC”) alleging
the following causes of action: (1) Discrimination under Education Code §
66251, 66252, 66270, 66294.2 against LMU; (2) Discrimination in Violation of
the Unruh Civil Rights Act against LMU; (3) Breach of Contract against LMU; (4)
Negligence against Michael Mozilo and Does 50-99; (5) California Civil Code §
1708.85 “Revenge Porn Statute” against Michael Mozilo and DOES 50-99; (6)
Intentional Infliction of Emotional Distress against Michael Mozilo and DOES
50-99; and (7) Injunctive Relief.
Plaintiff
brought this lawsuit against LMU and Mozilo alleging that LMU failed to take
appropriate action to investigate, and remedy alleged abusive conduct by
Plaintiff’s fellow student Mozilo. Among other things, Plaintiff alleges that
(a) Mozilo unlawfully took and distributed a video recording of Plaintiff to
fellow students; (b) that Mozilo and fellow students tormented and bullied
Plaintiff based on the illicit video; (c) Plaintiff’s fellow students
threatened and harassed Plaintiff; (d) that LMU’s employees, despite being
aware of the misconduct, failed to investigate or take action to prevent or
remedy the abuse; and (e) Plaintiff was forced to leave school, surrender an
athletic scholarship, and sustained substantial damages as a result of the misconduct
and LMU’s failures to follow its legal obligations and duties.
LMU
files a demurrer to the 1st cause of action and a motion to strike
portions of Plaintiff’s TAC.
B. Procedural¿¿¿
On October 22, 2024, LMU filed a
demurrer and motion to strike. On November 5, 2024, Plaintiff filed opposition
briefs to both motions. On November 12, 2024, LMU filed reply briefs to both
oppositions.
II. REQUEST FOR JUDICIAL
NOTICE
LMU requested this court take judicial notice of the
following:
1.
An excerpted portion of Plaintiff’s sworn
deposition testimony and Exhibit 66 to Plaintiff’s deposition. (Declaration of
Karen J. Pazzani, Exhibit 2)
The court
grants this request and takes judicial notice of the above pursuant to
California Evidence Code section 452, subdivision (h).
III. ANALYSIS¿
¿
A.
Demurrer
i.
Legal
Standard
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.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of
testing the sufficiency of the cause of action, the demurrer admits the truth
of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain
if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may
lie if the failure to label the parties and claims renders the complaint so
confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
However, “[a] demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified
under modern discovery procedures.” (Khoury v. Maly's of California, Inc.
(1993) 14 Cal.App.4th 612, 616.)¿
ii.
Discussion
Similar
to their challenge tot eh first cause of action in the SAC, LMU again demurs to
Plaintiff’s TAC on the grounds that the first cause of action (1) fails to establish
that the Court has subject matter jurisdiction over the cause of action; and
(2) fails to allege he filed a discrimination complaint with a local
educational agency 90 days before initiating this action. As noted above, this
court previously sustained LMU’s demurrer to the first cause of action in the SAC
on the grounds that Plaintiff failed to include any allegations that he filed a
complaint with a local agency prior to commencing this action. As such, the
court will be analyzing whether Plaintiff’s TAC remedies the deficiencies
previously identified by this court. Moreover, as this court has previously
provided a detailed analysis of the issues presented on demurrer, in the
interest of judicial efficiency, the court will provide an abridged analysis.
Discrimination under Education Code Sections 66251,
66252, 66270, & 66294.2
Preliminarily, this court
acknowledges that Plaintiff has not included any new allegations in the TAC
that he filed a complaint with a local agency prior to commencing this action.
Instead, the TAC adds additional allegations that Plaintiff was not required to
exhaust his administrative remedies (TAC, ¶ 60), and bases this position on
arguments made in his prior opposition brief (i.e., the exhaustion requirement
does not apply to private post-secondary institutions and that exhaustion is
excused here and futile. (TAC, ¶¶ 61, 62-66.) Moreover, Plaintiff’s TAC also
states LMU waived this defense. (TAC, ¶¶ 67-69.) The court addresses each issue
in turn.
First, this court already found that
Education Code section 66292.3, subdivision (d) applies to Private
Universities. The court understands that Plaintiff disagrees with this reading
of the statute, however, Plaintiff nonetheless does not provide any support for
its arguments. On the other hand, LMU again cites to Doe 1 v. Univ. of San
Francisco (N.D. Cal. 2023) 685 F.Supp.3d 882, as well as this court’s
previous analysis of Education Code section 66292.3, subdivision (c) specifying
a carve-out exemption for public students. The court does not believe LMU is asking
it to read words into the statute. Instead, the court makes its holding based
on the plain language of the statute itself. By creating an exemption that
specifically applies to “public” students, the statute’s plain language
suggests that it applies to both public and private schools. As such, the court
finds Section 66292.3 applies to private universities.
Second, Plaintiff’s TAC states that
the exhaustion requirement is excused (TAC, ¶¶ 62-66) as there is no agency
that can hear and judicially resolve the complaint, relying again on Coachella
Valley Mosquito & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072. For the same reasons identified in
this court’s September 3, 2024 tentative ruling, the court disagrees with
Plaintiff’s arguments. The administrative exhaustion requirement is not only
imposed to resolve or adjudicate administrative claims. Sometimes an exhaustion
requirement is imposed to enable an agency to decide whether to intervene, or
to bring an action in its own name, or to monitor the nature of discrimination
claims in different schools or geographic areas. Here, LMU has identified local
educational agencies to which Plaintiff could have submitted a complaint.
Lastly, Plaintiff argues that none
of the agencies identified by LMU have jurisdiction to hear and resolve
Plaintiff’s state law claims. For example, Plaintiff’s TAC and opposition
assert that the California Bureau for Private and Post-secondary Education
(“Bureau”) confirmed to Plaintiff that it does not hear and does not have
jurisdiction over claims brought under Education Code Sections 66251, 66252,
66270, or 66292.4. (TAC, ¶ 65.) Instead, Plaintiff argues the Bureau’s
authority is statutorily limited to enforcing the consumer protection
provisions of the California Private Postsecondary Education Act of 2009. Plaintiff
also states that the United States Department of Education Office of Civil
Rights (“OCR”) also does not have jurisdiction over Plaintiff’s claims, noting
OCR’s work is directed at enforcement of “federal laws,” such as Title IX and
the Age Discrimination Act.
In LMU’s reply brief, it argues
Education Code section 66292.3, subdivision (d) does not state that the local
education agency to which Plaintiff must submit a complaint needs to be able to
address the exact legal claim at issue in this matter. LMU asserts that there
is no dispute that OCR could and does investigate allegations of discrimination
based on sex or gender in higher education, as Plaintiff is alleging. However,
instead of the state statutory violations alleged in Plaintiff’s pleadings,
Plaintiff’s claims would be evaluated under the same framework as Title IX
cases. The court agrees and emphasizes that the issue with Plaintiff’s argument
is that the agencies would not need to be able to address the issues presented
under the lens of a state law violation. Plaintiff’s complained-of violations
could be submitted to said agencies and still be analyzed by such agencies in
the context of federal violations. There is no legal support from Plaintiff
that the exhaustion requirement be met by pleading state versus federal
violations. While the Court has
considered Plaintiff’s argument, in the Court’s view LMU has the better of the argument. This court’s tentative ruling is thus to
SUSTAIN the demurrer tot eh first cause of action without leave to amend.
B. Motion
to Strike
¿
i.
Legal Standard
The court may, upon a motion, or at any time in its discretion, and upon
terms it deems proper, strike any irrelevant, false, or improper matter
inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The court may also
strike 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(b).)¿ The grounds for a motion to strike are that the pleading has
irrelevant, false improper matter, or has not been drawn or filed in conformity
with laws.¿ (Id., § 436.)¿ The grounds for moving to strike must appear
on the face of the pleading or by way of judicial notice.¿ (Id., §
437.)¿ “When the defect which justifies striking a complaint is capable of
cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768.)
ii.
Discussion
Here, because LMU’s motion to strike seeks to strike
Plaintiff’s first cause of action, which is sustained on demurrer above, LMU’s
motion to strike is MOOTED.
IV.
CONCLUSION
For the foregoing reasons, this
Court tentatively SUSTAINS Defendant LMU’s demurrer to the first cause of
action, without leave to amend. The motion to strike is mooted. Defendant LMU is ordered to provide notice.