Judge Salvatore Sirna, Case 21PSCV01085 2023-02-10 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV01085, Date: 2023-02-10 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 21PSCV01085 Hearing Date: February 10, 2023 Dept: G

Defendant Pomona College’s Demurrer to Plaintiff Brendan Schultz’s First Amended Complaint

Respondent: Plaintiff Brendan Schultz

Defendant Pomona College’s Motion to Strike Portions of Plaintiff’s First
Amended Complaint

Respondent:
Plaintiff Brendan Schultz

TENTATIVE RULING

Defendant Pomona College’s Demurrer to Plaintiff Brendan Schultz’s First Amended Complaint is SUSTAINED with twenty (20) days leave to amend.

Defendant Pomona College’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is deemed MOOT.

BACKGROUND

This is a disability rights action. From 2016 to 2019, Plaintiff Brendan Schultz was a student at Pitzer College, part of the consortium of Claremont Colleges. In the 2018 spring semester, Plaintiff enrolled in a sociology course at Defendant Pomona College taught by Dr. Brady Potts (Potts). During this time, Plaintiff received academic accommodations from Pitzer College for a disability. As a result of these accommodations, Potts allegedly agreed to provide Plaintiff with indefinite extensions on written work, excused absences at the height of Plaintiff’s medical symptoms, and continued excused absences for medical treatment.

When Plaintiff’s grades for the 2018 spring semester were posted, Plaintiff’s “marks were lower than expected” and the “lowest he had received in college.” On September 26, 2018, Plaintiff met with Potts to discuss Plaintiff’s grade and alleges Potts attributed Plaintiff’s grade to Plaintiff’s disability accommodations. After this meeting, Plaintiff filed a grade appeal and civil rights grievance with Defendant. On December 30, Plaintiff received notice that Defendant found cause for a grade change and raised Plaintiff’s grade from a “B+” to an “A-”. Plaintiff then requested the grade appeal be reassessed on the ground that Plaintiff had not been provided due process but was unsuccessful in obtaining a second appeal.

On December 29, 2021, Plaintiff filed a complaint against Defendant and Does 1-100, alleging the following causes of action: (1) violations of the Unruh Civil Rights Act (UCRA), (2) intentional infliction of emotional distress, (3) breach of contract, (4) breach of implied covenant of good faith and fair dealing, (5) intentional misrepresentation, (6) false promise, (7) willful misconduct, and (8) reckless misconduct. On September 9, 2022, the court sustained Defendant’s demurrer Plaintiff’s complaint without leave to amend as to causes of action 1-4 and with leave to amend as to causes of action 5-8.

On September 29, 2022, Plaintiff filed a First Amended Complaint (FAC) against same defendants alleging the following causes of action: (1) intentional misrepresentation, (2) false promise, (3) willful misconduct, and (4) reckless misconduct.

On December 1, 2022, Defendant filed the present demurrer and motion to strike. Prior to filing on November 1, Defendant’s counsel met and conferred telephonically with Plaintiff and was unable to reach a resolution. (Kha Decl., ¶ 11.)

A hearing on the demurrer and motion to strike as well as a case management conference are set for February 10, 2023.

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice of the two complaints filed in this action, as well as the court’s previous order on September 29, 2022, is GRANTED.

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿

DISCUSSION

Defendant demurs to Plaintiff’s first cause of action (intentional misrepresentation), second cause of action (false promise), third cause of action (willful conduct), and fourth cause of action (reckless misconduct). For the following reasons, the court SUSTAINS Defendant’s demurrer to all four of Plaintiff’s causes of action.

Intentional Misrepresentation and False Promise (First and Second Causes of Action)

Defendant argues Plaintiff’s first cause of action for intentional misrepresentation and second cause of action for false promise fail to plead sufficient facts to state a claim and are vague and uncertain. The court agrees.

“California law generally recognizes four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment, and failure to perform a promise.” (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1252, citing Civ. Code, §§ 1572, 1710.) Furthermore, the facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven¿essential elements: (1) the¿defendant¿represented¿to the¿plaintiff¿that an¿important¿fact¿was¿true; (2) that¿representation¿was¿false; (3) the¿defendant¿knew¿that the¿representation¿was¿false¿when the¿defendant¿made¿it, or the¿defendant¿made¿the¿representation¿recklessly¿and without¿regard¿for¿its¿truth; (4) the¿defendant¿intended¿that the¿plaintiff¿rely¿on the¿representation; (5) the plaintiff¿reasonably relied on the representation;¿(6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.)

A false promise “is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 632, 638.)

Here, Defendant contends Plaintiff’s FAC relies on two alleged misrepresentations that are not actionable. First, Plaintiff alleges Anthony Reyes, an assistant registrar for Defendant, verbally informed Plaintiff “that the Plaintiff would have a grade appeal hearing with the Academic Procedures Committee, that the Plaintiff could choose not to consent to students on the Academic Procedures Committee reviewing the complaint, that the Plaintiff’s grade appeal would be resolved in six weeks, and that the Plaintiff’s grade appeal would be finalized by the end of the semester in which the appeal was filed.” (FAC, ¶ 34, 43.) However, as this court previously noted in the September 9, 2022 order, these merely constitute statements regarding future events, which are deemed opinions and not representations. (San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 44 [“an actionable misrepresentation must be made about past or existing facts; statements regarding future events are merely deemed opinions.”].)

Second, Plaintiff alleges Defendant’s registrar, Elisa Alban, in a series of emails, promised that “Defendant would allow the Plaintiff to initiate a civil rights grievance process regarding the Plaintiff’s grade dispute with [Potts] by the Defendant providing the Plaintiff with the contact information for the head of the Academic procedures Committee and the staff member who leads civil rights grievance investigations at Pomona College.” (FAC, ¶ 35, 44.) As with the first alleged representation, this too is merely a statement of opinion regarding a future event and not an actionable representation on a past or present fact. (Ibid.) Thus, because Plaintiff has not pled any actionable representations and only continues to allege opinion statements by Defendant’s staff, the FAC fails to a state a claim for intentional misrepresentation or false promise.

Accordingly, Defendant’s demurrer to Plaintiff’s first and second causes of action is SUSTAINED with leave to amend.

Willful and Reckless Misconduct (Third and Fourth Causes of Action)

Defendant maintains Plaintiff’s third cause of action for willful misconduct and fourth cause of action for reckless misconduct fail to plead sufficient facts to state a claim. The court agrees.

Willful misconduct “is not a separate tort, but simply ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’” with stricter pleading requirements. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526, quoting Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360.) The basic of elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) In addition to the requirements of negligence, willful misconduct requires “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1012.) Reckless misconduct is simply another name for willful misconduct. (Id., at p. 1011.)

Here, Plaintiff first alleged that a professor as a duty “to fairly evaluate a student’s work free from discrimination” and a school “has to intervene when a student’s work is not evaluated properly in the case of discrimination.” (FAC, ¶ 50, 57.) However, even if Plaintiff adequately pled duties owed by Defendant, Plaintiff has not pled facts establishing a breach of that duty. While Plaintiff asserts Defendant breached these duties by basing Plaintiff’s grade on a disability and refusing to correct such discrimination, Plaintiff’s own pleadings contradict this conclusion. (FAC, ¶ 50.) Instead, Plaintiff’s FAC establishes Defendant granted Plaintiff’s grade appeal and changed Plaintiff’s grade from a “B+” to the “A-”. (FAC, ¶ 23.) Plaintiff’s FAC does not allege a higher grade was proper or describe what Plaintiff’s requested grade was in the grade appeal to Defendant.

Furthermore, even if the grade or semester-long appeal process constituted a breach of duty, Plaintiff does not sufficiently plead facts establishing damages. Instead, Plaintiff alleges the grade “was the lowest he received in college” and “lower than expected.” (FAC, ¶ 14.) Plaintiff claims the grade harmed Plaintiff by “unjustly lowering the Plaintiff’s grade point average during the semester (the fall semester of 2018) in which he was applying for graduate school and scholarships.” (FAC, ¶ 50.) Plaintiff does not establish the actual effect of the grade on Plaintiff’s grade point average or how many scholarships and graduate school applications were actually unsuccessful beyond the vague quantifier of “many.” Plaintiff also claims the breach damages Plaintiff through demotivation, resulting in lowered academic performance. (FAC, ¶ 50.) However, this too is vaguely pled.

Lastly, Plaintiff’s pleadings fail to meet the stricter pleading requirements for claims of willful misconduct. While the FAC recites the elements for willful misconduct, it does not identify any facts to establish Defendant knew or had constructive knowledge of Plaintiff being harmed, that Defendant knew or had constructive knowledge that injury to Plaintiff was probable rather than possible, and that Defendant intentionally failed to act to prevent harm to Plaintiff. Thus, Plaintiff’s pleadings are insufficient to establish a cause of action for willful or reckless misconduct.

Accordingly, Defendant’s demurrer to Plaintiff’s third and fourth causes of action is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with twenty (20) days leave to amend.

Based upon the recommendations made on the demurrer, Defendant’s motion to strike portions of Plaintiff’s First Amended Complaint is MOOT.