Judge Salvatore Sirna, Case 21PSCV01085 2023-05-17 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV01085, Date: 2023-05-17 Tentative Ruling

Case Number: 21PSCV01085 Hearing Date: May 17, 2023 Dept: G

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

Respondent: Plaintiff Brendan Schultz

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

Respondent: Plaintiff Brendan Schultz

TENTATIVE RULING

Defendant Pomona College’s Demurrer to Plaintiff Brendan Schultz’s Second Amended Complaint is SUSTAINED IN PART with 20 days leave to amend and SUSTAINED IN PART without leave to amend.

Defendant Pomona College’s Motion to Strike Portions of Plaintiff’s Second 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 February 10, 2023, the court sustained Defendant’s demurrer to Plaintiff’s FAC with leave to amend.

On March 2, 2023, Plaintiff filed a Second Amended Complaint (SAC) against the same defendants alleging the following causes of action: (1) intentional misrepresentation, (2) false promise, (3) willful misconduct, (4) reckless misconduct, and (5) negligence.

On April 3, 2023, Defendant filed the present demurrer and motion to strike. Prior to filing on March 20, Defendant’s counsel met and conferred telephonically with Plaintiff and was unable to reach a resolution. (Kha Decl., ¶ 9.)

A hearing on the demurrer and motion to strike is set for May 17, 2023, along with a case management conference.

ANALYSIS

Defendant demurs to Plaintiff’s entire SAC. For the following reasons, the court SUSTAINS Defendant’s demurrer to Plaintiff’s first, second, third, and fourth causes of action with leave to amend and to the fifth cause of action without leave to amend.

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.)

Fraud (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. The court agrees.

Legal Standard

“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 (Manderville).)

“To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159 (Tarmann).) 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.)

Discussion

In this case, Defendant argues Plaintiff’s SAC relies on three 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.” (SAC, ¶ 37, 46.) 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 the contact information for the head of the Academic procedures Committee and the staff member who leads civil rights grievance investigations at Pomona College.” (SAC, ¶ 38, 47.)

In sustaining Defendant’s demurrer to Plaintiff’s FAC, the court found these were statements regarding future events and did not qualify as misrepresentations. (2/10/2023 Ruling, p. 3, citing 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.”].) But while the court finds these are not actionable representations, the court does find Plaintiff has sufficiently alleged they were false promises. “A promise of future conduct is actionable as fraud only if made without a present intent to perform.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481.) Here, Plaintiff alleges Defendant did not fulfill these promises and never intended to. (SAC, ¶ 46-47.)

Third, Plaintiff’s SAC alleges Anthony Reyes also falsely claimed Defendant’s Registrar’s office was the correct place to file a civil rights grievance. (SAC, ¶ 19, 37.) While Plaintiff alleges this statement was false, Plaintiff does not allege Anthony Reyes knew the statement was false or made it recklessly without regards for its veracity. (Manderville, supra, 146 Cal.App.4th at p. 1498.) Thus, Plaintiff’s SAC does not sufficiently allege a cause of action for intentional misrepresentation.

Defendant also argues Plaintiff’s SAC does not establish Defendant intended to defraud Plaintiff. In addition to establishing Defendant did not intent to perform its promises to Plaintiff, Plaintiff must establish the false promises were “intended to deceive or induce the [Plaintiff] to do or not do a particular thing.” (Tarmann, supra, 2 Cal.App.4th at p. 159.) Here, Plaintiff’s SAC fails to allege how Defendant’s alleged false promises regarding grade appeal and civil grievance procedures were intended to induce Plaintiff to do or not do something. Particularly, it is unclear how these allegedly false promises could have induced Plaintiff to pursue a grade appeal or civil grievance when Plaintiff had already intended to go through with such actions before consulting Defendant’s staff. (SAC, ¶ 16-19.)

Last, Defendant argues Plaintiff’s SAC fails to establish how the alleged fraud damaged Plaintiff. “[A]n allegation of a definite amount of damage is essential to stating a cause of action” for fraud. (Abbot v. Stevens (1955) 133 Cal.App.2d 242, 247.) Plaintiff must allege the “damages were caused by the actions [Plaintiff] took in reliance on the defendant's misrepresentations.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1064.) Thus, “[i]f the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.” (Ibid.)

In this case, Plaintiff’s alleges Defendant damaged Plaintiff by unjustly lowering Plaintiff’s grade point average (GPA) during the 2018 fall semester when Plaintiff was applying for scholarships and graduate school. (SAC, ¶ 23-24, 49.) Plaintiff alleges the lowered GPA caused Plaintiff to be rejected from many scholarships and fellowships. (SAC, ¶ 24.) While Plaintiff identifies three different scholarships or fellowships that Plaintiff was a finalist for, Plaintiff does not state when Plaintiff applied and when Plaintiff was denied beyond alleging this process occurred during the 2018 fall semester. (SAC, ¶ 24.)

The gravamen of Plaintiff’s fraud claim appears to be that Defendant failed to timely address Plaintiff’s grade appeal. Plaintiff alleges Defendant promised that Plaintiff’s grade appeal would be resolved in six weeks and finalized by the end of the semester in which the appeal was filed. (SAC, ¶ 46.) However, Plaintiff’s SAC does not specifically state when Plaintiff filed the grade appeal. Furthermore, even if Defendant had resolved Plaintiff’s grade appeal by the end of the fall 2018 semester as Defendant allegedly promised rather than by December 30, Plaintiff would have still allegedly suffered damages if Plaintiff’s scholarship applications were already denied. Thus, Plaintiff’s SAC fails to adequately allege and plead the existence of damages. Similarly, Plaintiff’s allegations concerning promises made by Alban were made the following year and Plaintiff does not establish how those promises contributed to the alleged damages, which had already occurred.

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 contends 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.

Legal Standard

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 (Berkely), 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.)

Discussion

In this case, Plaintiff’s SAC alleges Defendant has a duty to intervene when a student’s work is not fairly evaluated by a professor. (SAC, ¶ 53). In previously sustaining Defendant’s demurrer to Plaintiff’s FAC, the court found Plaintiff’s pleadings failed to establish how Defendant breached this duty. (2/10/2023 Ruling, p. 3-4.) The court found Plaintiff’s FAC established Defendant granted Plaintiff’s grade appeal and changed Plaintiff’s grade from a “B+” to the “A-”. (FAC, ¶ 23.) Furthermore, the court found 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. (2/10/2023 Ruling, p. 3-4.)

Plaintiff’s SAC does not cure these deficiencies. The SAC alleges Defendant breached this duty by refusing to correct the professor’s discriminatory grade. (SAC, ¶ 53, 60.) However, Plaintiff’s FAC and SAC both establish Defendant did grant Plaintiff’s grade appeal. (FAC, ¶ 23; SAC, ¶ 25.) Like the FAC, the SAC also fails to allege why the “A-” grade was improper. Furthermore, Plaintiff’s own notes from the meeting contest Plaintiff’s grade being lowered from “A-” to “B+” and do not request an “A”. (SAC, Exhibits, p. 1.) And even if Plaintiff had alleged breach, Plaintiff has not adequately alleged damages for the same reasons Plaintiff has not sufficiently alleged damages for fraud. As noted above, Plaintiff does not state when Plaintiff originally filed a grade appeal or when Plaintiff’s scholarship applications were denied.

Plaintiff also alleges Defendant breached a duty to properly handle civil rights grievances by failing to open an investigation when requested to do so. (SAC, ¶ 60.) However, Plaintiff fails to allege how Plaintiff was damaged by this failure as the damages Plaintiff points to—decreased GPA and loss of scholarships during the fall semester of 2018—were already remedied by Plaintiff’s successful grade appeal on December 30, 2018, and appear to have occurred before Plaintiff sought to file a civil rights grievance in the spring of 2020, 2021, or 2022. (SAC, ¶ 26, 32, 38, 47.)

Accordingly, because Plaintiff does not adequately allege breach or damages, Defendant’s demurrer to Plaintiff’s third and fourth causes of action is SUSTAINED with leave to amend.

Negligence (Fifth Cause of Action)

Defendant maintains Plaintiff’s fifth cause of action for negligence was improperly added without the court’s permission. The court agrees.

When the court sustains a demurrer with leave to amend, “the plaintiff may amend [their] complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Ibid.)

In this case, the court gave Plaintiff leave to amend the FAC’s first, second, third, and fourth causes of action. (2/10/2023 Ruling.) The court did not give Plaintiff leave to amend the Complaint by adding a fifth cause of action. Furthermore, it appears this fifth cause of action just restates the third and fourth causes of action, which are also based on negligence, without adding any new facts. (See Berkley, supra, 152 Cal.App.4th at p. 526.) Accordingly, Defendant’s demurrer to Plaintiff’s fifth cause of action is SUSTAINED without leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s SAC is SUSTAINED with 20 days leave to amend as to the first, second, third, and fourth causes of action, and without leave to amend as to the fifth cause of action.

Based upon the ruling above, Defendant’s motion to strike portions of Plaintiff’s SAC is deemed MOOT.