Judge Salvatore Sirna, Case Number: 21PSCV01085, Date: 2023-08-30 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV01085, Date: 2023-08-30 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: August 30, 2023 Dept: G

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

Respondent: Plaintiff Brendan Schultz

Defendant Pomona College’s Motion to Strike Portions of Plaintiff Brendan Schultz’s Third Amended Complaint

Respondent: Plaintiff Brendan Schultz

TENTATIVE RULING

Defendant Pomona College’s Demurrer to Plaintiff Brendan Schultz’s Third Amended Complaint is SUSTAINED without leave to amend.

Defendant Pomona College’s Motion to Strike Portions of Plaintiff Brendan Schultz’s Third 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, Schultz enrolled in a sociology course at Defendant Pomona College taught by Dr. Brady Potts. During this time, Schultz received academic accommodations from Pitzer College for a disability. As a result of these accommodations, Dr. Potts allegedly agreed to provide Schultz with indefinite extensions on written work, excused absences at the height of Schultz’s medical symptoms, and continued excused absences for medical treatment.

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

On December 29, 2021, Schultz filed a complaint against Pomona College 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 Pomona College’s demurrer to Schultz’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, Schultz 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 Pomona College’s demurrer to Schultz’s FAC with leave to amend.

On March 2, 2023, Schultz 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 May 17, the court sustained Pomona College’s demurrer to Schultz’ SAC with leave to amend as to causes of action 1-4 and without leave to amend as to the fifth cause of action.

On June 6, 2023, Schultz filed a Third Amended Complaint (TAC) against the same defendants alleging the same causes of action minus the fifth cause of action.

On August 4, 2023, Pomona College filed the present demurrer and motion to strike. Prior to filing on July 13, Pomona College’s counsel met and conferred telephonically with Schultz and was unable to reach a resolution. (Kha Decl., ¶ 11.)

A hearing on the demurrer and motion to strike is set for August 30, 2023, along with a case management conference.

REQUESTS FOR JUDICIAL NOTICE

Pomona College requests the court take judicial notice of court filings in separate actions by Schultz. Pomona College also requests the court take judicial notice of California Secretary of State records for a party not involved in the present action. Because none of the requests have any relevance or relation to the present action between Schultz and Pomona College, the request for the court to take judicial notice is DENIED.

ANALYSIS

Pomona College demurs to Schultz’s entire TAC. For the following reasons, the court SUSTAINS Pomona College’s demurrer 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)

Pomona College argues Schultz’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.)

Alleged Intentional Misrepresentations

In this case, Pomona College argues Schultz still fails to allege actionable misrepresentations. Schultz alleges Anthony Reyes, an assistant registrar for Pomona College, verbally informed Schultz that “civil rights grievances are handled through the registrar’s grievance process” and that Schutlz “was in the correct office to initiate a civil rights grievance.” (TAC, ¶ 23, 38.) Schultz further alleges that these representations were false as Pomona College’s registrar office is not responsible for processing civil rights grievances. (TAC, ¶ 23.) In response, Pomona College argues Schultz fails to explain how Schultz knows these statements were false. But because Schultz alleges the registrar’s office is not the correct place to file such complaints, the court treats that allegation as true for the purposes of a demurrer and necessarily finds Reyes’s contrary representation to be false.

Pomona College next argues Schultz fails to establish knowledge of falsity and intent to induce reliance. Schultz alleges Reyes knew the misrepresentation was false or made it recklessly without regards for veracity. (TAC, ¶ 40.) Schultz also alleges Pomona College intended for Schultz to rely on this misrepresentation with the goal of pacifying Schultz and preventing Schultz from filing a complaint with another agency. (TAC, ¶ 41.) Pomona College argues Schultz failed to plead with specificity how Reyes knew the misrepresentation was false and how Pomona College intended to pacify Schultz. However, the court finds these allegations of intent and knowledge sufficient, especially when the specificity demanded by Pomona College is relaxed in cases where the defendant has better knowledge of the facts. (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.)

Pomona College next argues Schultz failed to establish justifiable reliance. Schultz alleges Schultz reasonably relied on Pomona College’s representation, and claims this reliance is established by the fact that Schultz waited for Pomona College to resolve the issue. (TAC, ¶ 42.) The court finds this sufficient to establish justifiable reliance. While Pomona College claims these allegations are “nonsensical,” the court must accept all well-pleaded allegations as true.

Last, Pomona College argues Schultz failed to establish damages. “[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, Schultz alleges damages in the form of lost scholarship and graduate school opportunities. (TAC, ¶ 45.) But it remains unclear how Reyes’s alleged misrepresentation caused these alleged damages. When Schultz met with Reyes on November 2, 2018, the application deadlines for three of the five scholarships or fellowships that Schutlz applied for had already passed. (TAC, ¶ 22, 25.) Schultz failed to allege how a grade change at this time would have affected applications that had already been submitted. Schultz argues that Reyes’ alleged misrepresentation prevented Schutlz from filing a civil rights grievance elsewhere. But even if Reyes had not made such a misrepresentation, Schultz fails to allege how Schultz would have sufficient time from that date to lodge a civil rights grievance elsewhere and receive a grade change by the deadline for the last available scholarship on November 20. (TAC, ¶ 25.)

Accordingly, Schultz failed to adequately allege causation. Furthermore, the court has given Schultz leave to amend the complaint more than three times, each to no avail. The court finds Schultz failed to demonstrate a reasonable possibility that further amendment can cure the defects noted above, and therefore SUSTAINS the demurrer to the first cause of action without leave to amend, pursuant to Code of Civil Procedure, § 430.41 (e)(1).

False Promise

In ruling on Pomona College’s previous demurrer to Schultz’s SAC, the court already found Schultz had adequately alleged Pomona College did not intend to fulfill its alleged promises regarding the grade appeal process. (5/17/2023 Ruling, p. 3.) But, the court previously found Schultz failed to allege Pomona College “intended to deceive or induce the [Plaintiff] to do or not do a particular thing.” (5/17/2023 Ruling, p. 3, quoting Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.)

In this case, Schultz alleges that on November 2, 2018, Reyes made verbal promises to Schultz regarding the grade appeal process, including when it would be resolved and how it would be conducted. (TAC, ¶ 51.) As the court previously noted, however, Schultz failed to argue how these alleged false promises induced Schultz to do anything as Schultz alleges a complaint was already made prior to this meeting in October or September. (TAC, ¶ 25, 51.) To the extent Schultz alleges the false promises were intended to induce Schultz to not file a civil rights grievance elsewhere, that allegation fails to establish causation for the same reasons noted above with regards to Schultz’s first cause of action. (TAC, ¶ 55.)

Accordingly, the court finds Schultz failed to adequately allege a cause of action for false promise. Therefore, the court SUSTAINS Pomona College’s demurrer to Schultz’s second cause of action. Since Schultz has amended the complaint more than three times and has failed to demonstrate a reasonable possibility that further amendment can cure the defects noted above, the court SUSTAINS the demurrer to the second cause of action without leave to amend, pursuant to Code of Civil Procedure, § 430.41(e)(1).

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

Pomona College contends Schultz’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 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, the court previously sustained Pomona College’s demurrers to these causes of action on the grounds that Schultz did not allege adequate facts to establish Pomona College breached a duty to cure an allegedly discriminatory grade or properly handle a civil rights grievance. (5/17/2023 Ruling, p. 4.) The present TAC, however, fails to address these deficiencies and appears to be identical to the SAC. And Schultz fails to address Pomona College’s demurrer on these grounds in Schultz’s opposition.

Accordingly, the court SUSTAINS Pomona College’s demurrer to Schultz’s third and fourth causes of action. Since Schultz has amended the complaint more than three times and has failed to demonstrate a reasonable possibility that further amendment can cure the defects noted above, the court SUSTAINS the demurrer to the third and fourth causes of action without leave to amend, pursuant to Code of Civil Procedure, § 430.41(e)(1).

CONCLUSION

Based on the foregoing, Pomona College’s demurrer to Schultz’s TAC is SUSTAINED without leave to amend as to all causes of action.

Based upon the recommendations made on the demurrer, Pomona College’s motion to strike portions Schultz’s TAC is MOOT.