Legal Document: Marijana Smailagic vs REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al

On August 25, 2022 a MPA ISO The Regents Demurrer to SAC was filed involving a dispute between Smailagic, Marijana, and Fellows, Susan, Guha Thakurta, Puragra, Prochaska, Xavier, Ramirez-Ruiz, Enrico, Regents Of The University Of California, Robertson, Brant, Rockosi, Constance, Sanchez, Jose, Sugg, David, for (08) Unlimited Civil Rights in the District Court of Santa Cruz County.

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SANDRA L. McDONOUGH (SBN 193308)
sandy.mcdonough@ quarles.com
AARONJ. SCHU (SBN 299701)
aaron.schu@ quarles.com
QUARLES & BRADY LLP
101 West Broadway, Ninth Floor
San Diego, California 92101-8285
Telephone: 619-237-5200
Facsimile: 619-615-0700

Attomeys for Defendants THE REGENTS OF
THE UNIVERSITY OF CALIFORNIA,
XAVIER PROCHASKA, DAVID SUGG,
BRANT ROBERTSON, ENRICO RAMIREZ-
RUIZ, JOSE SANCHEZ, SUSAN FELLOWS,
PURAGRA GUHA THAKURTA,
CONSTANCE ROCKOSI
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SANTA CRUZ
12

13
MARIJANA SMAILAGIC, Case No. 22CV01841
14
Plaintiff, MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT OF
Vv DEFENDANT THE REGENTS OF THE
16 UNIVERSITY OF CALIFORNIA’S
REGENTS OF THE UNIVERSITY OF DEMURRER TO PLAINTIFF’S SECOND
17 CALIFORNIA, Xavier Prochaska, David AMENDED VERIFIED COMPLAINT
Sugg, Brant Robertson, Enrico Ramirez- Ruiz,
18 ose Sanchez, Susan Fellows, Puragra (Raja) Date: December 21, 2023
Guha Thakurta, Constance (Connie) Rockosi, Time: 8:30 am.
19
Defendants. Judge: Timothy Volkmann
20 Dept.:
Action Filed: August 25, 2022
21 Trial Date: Not Set

22 EXEMPT FROM FEES
GOVT. CODE § 6103
23

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
TABLE OF CONTENTS

INTRODUCTION

II RELEVANT PROCEDURAL HISTORY

Il LEGAL STANDARD ON DEMURRER

IV ARGUMENT 10

A Plaintiff's SAC Inappropriately Attempts To Sneak In A Claim For
Harassment Which The Court Already Adjudicated In The Regents’ Favor. 10

1 Plaintiff's Harassment Claim Remains Time-Barred. 10

2 Plaintiff's Harassment Claim Cannot be Based on the Unruh Act 11
The Tort Claims Act Still Bars Plaintiff's Common Law Claims 12
10
Plaintiff's Breach of Contract and Promi sory Estoppel Claims
C Also Lack
11 Sufficiently Concrete Allegations.... 13

12 Misrepresentation Immunity Bars Plaintiff's Promissory Estoppel Claim. 16

13 Plaintiff's IED and Negligence Claims Are Subject to Workers
Compensation Exclusivity 16
14
Plaintiff Continues to Plead Insufficient Facts of “Extreme or Outrageous
15 Conduct” to Support an ITED Claim. 17

16 CONCLUSION 19

18
19

28
2
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
TABLE OF AUTHORITIES

Page(s)
Federal Cases

Rouse v. Duke University
(M.D. N.C. 2012) 869 F.Supp.2d 674 14, 15

State Cases

Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962

Bogard v. Employers Casualty Co.
(1985) 14 Cal.App.3d 602 ........e0 18
10
Brennon B. v. Superior Court
11 (2020) 57 Cal.App.5th 367 10, 11
12
Christensen v. Superior Court
13 (1991) 54 Cal.3d 868 . 17

14 Cochran v. Cochran
(1998) 65 Cal.App.4th 488 .............. 18
15
Cole v. Fair Oaks Fire Prot. Dist.
16
(1987) 43 Cal.3d 148 .......se 16
17
Colome v. State Athletic Comm of Cal.
18 (1996) 47 Cal.App.4th 1444... 12
19 Kashmiri v. The Regents of the Univ. of Calif.
(2007) 156 Cal.A pp.4th 809 ............ 14
20

21 Curcini v. County of Alameda
(2008) 164 Cal.A pp.4th 629 .
22
Davaris v. Cubaleski
23 (1993) 12 Cal.App.4th 1583 ............. 17
24
Davidson v. City of Westminster
25 (1982) 32 Cal.3d 197 wees 17

26 Dryden v. Tri-Valley Growers
(1977) 65 Cal.App.3d 990 ...ssssssee
27

28
3
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Gates v. Trans Video Corp.
(1979) 93 Cal.App.3d 196 ..... 17

Hart v. Cult Awareness Network
(1993) 13 Cal.App.4th 777...... 11

Hinchliffe v. City of San Diego
(1985) 165 Cal.App.3d 722 .... 14

Hughes v. Pair
(2009) 46 Cal.4th 1035 18, 19

In re Groundwater Cases
(2007) 154 Cal.A pp.4th 659 ... 12

Isbister v. Boys’ Club of Santa Cruz
10 (1985) 40 Cal.3d 72 veces 11
11
Johns-Manville Prods. Corp. v. Superior Court
12 (1980) 27 Cal.3d 465 ......... 16

13 Kashmiri v. The Regents of the Univ. of Calif.
(2007) 156 Cal.A pp.4th 809 14, 15
14

15 Kemmerer v. City of Fresno
(1988) 200 Cal.A pp.3d 426 ...........65 14
16
Keyes v. Santa Clara Valley Water Dist.
17 (1982) 128 Cal.A pp.3d 882
18 Lawrence v. Bank of America
19 (1985) 163 Cal.App.3d 431 ..........6 10

20 Miller v. State of California
(1977) 18 Cal.3d 808 . 14
21
Oasis W. Realty, LLC v. Goldman
22
(2011) 51 Cal.4th 811... 13
23
Ochoa v. Superior Court
24 (1985) 39 Cal.3d 159... 17

25 Otworth v. Southern Pacific Transportation Co
(1985) 166 Cal.A pp.3d 452 ..........65 15
26

27 Potter v. Arizona So. Coach Lines, Inc.
(1988) 202 Cal.App.3d 126 .......... 17
28
4
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Robomatic, Inc. v. Vetco Offshore
(1990) 225 Cal.A pp.3d 270 17

Sacramento Mun. Util Dist. v. County of Solano
(1977) 54 Cal.App.4th 1163 11

San Francisco
(1995) 35 Cal.App.4th 1177 12

Scharfv. Regents of the Univ. of Cal
(1991) 234 Cal.A pp.3d 1393 15

Searcy v. Hemet Unified School Dist.
(1986) 177 Cal.App.3d 792 13

Spanish Speaking Citizens’ Found. v. Low
10 (2000) 85 Cal.A pp.4th 1179 11
11
Valenzuela v. State of California
12 (1987) 194 Cal.A pp.3d 916 17

13 Watson v. State of California vert 0of Rehabilitation
(1989) 212 Cal.App.3d 1271.. 14
14

15 Yurickv. Superior Court
(1989) 209 Cal.App.3d 1116 17
16
Zelig v. County of Los Angeles
17 (2002) 27 Cal.4th 1112 13
18 State Statutes
19
Cal. Const., art. IX, § 9, subds. (a) & (f) 12
20
Civ. Code, § 51 10, 11
21
Civil Code § 52 10
22

23 Code Civ. Proc., § 430.10

24 Code Civ. Proc., § 430.30

25 Code Civ. Proc., § 430.70
26
Ed. Code § 220 8, 10
27
Gov. Code, § 811.2 13
28
5
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Gov . Code, § 815 7,12, 16

Gov Code, § 815.2... 13

Gov Code, § 818.8... 16

Gov . Code, §11135

Gov Code, § 12923... 10

Gov. Code, §12940..........000 10

Lab. Code, § 3600... 16

Lab. Code, § 3601... 16
10 Lab. Code, § 3602.0... 16
11

18
19

28
6
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
I INTRODUCTION

Plaintiff Marijana Smailagic (“Plaintiff”) was a graduate student at the University of

California, Santa Cruz (“The Regents” or the “University’’) in the Department of Astronomy and

Astrophysics, who was dismissed for failure to make sufficient academic progress in her graduate

program and after failing to meet the terms of her academic probation. She brings this action

against The Regents and eight of her former professors, advisors, and University

investigators/human resources employees (the “Individual Defendants”).!

Following this Court’s ruling sustaining in part, and overruling in part, The Regents’

demurrer to Plaintiff's First Amended Verified Complaint (FAC”), Plaintiff filed a Second

10 Amended Verified Complaint (“SAC”). The SAC continues to suffer from multiple defects,

11 subject to demurrer:

12 . Plaintiff's FEHA discrimination (COA 6) claim attempts to incorporate by
reference a cause of action for harassment pursuant to FEHA and Unruh, which are
13 time-barred and barred as a matter of law as against The Regents.

3
14 Plaintiff's negligence (COA 12) and intentional infliction of emotional distress
(IIED) (COA 1 claims are barred by the Tort Claims Act and principles of
15 workers’ compensation exclusivity. The Regents is a public entity and pursuant to
Government Code section 815, cannot be held liable for common law claims unless
16 expressly authorized by statute, and the SAC does not compel a different result.

17 Plaintiffs promissory estoppel (COA 11) claim fails based on misrepresentation
immunity.
18
19
Plaintiff breach of contract
f
COA 10) and promissory estoppel (COA 11) claims
also fail because the SAC still fails to allege concrete allegations as required by
law, and by this Court.
20
Plaintiffs SAC still fails to state a claim for intentional infliction of emotional
21 distress (COA 13) on the merits.

22 For the foregoing reasons, and as more fully stated below, The Regents’ demurrer to the

23 SAC should be sustained without leave to amend, as to the 6th, and 10th—13th causes of action, as

24 Plaintiff has failed to overcome these incurable legal defects.

25
! Several claims are also asserted against the Individual Defendants. (See, e.g., SAC § 254-261
26
[negligence], and §{] 262-265 [intentional infliction of emotional distress].) The Individual Defendants
27 have separately and concurrently filed a demurrer to Plaintiffs’ SAC. The Regents join in the Individual
Defendants’ demurrer and the arguments as stated in the Individual Defendants’ memorandum of points
28 and authorities.

7
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
II. RELEVANT PROCEDURAL HISTORY

On August 25, 2022, Plaintiff filed her Complaint. Plaintiff subsequently amended and

filed the FAC on December 14, 2022. The FAC asserted the following claims: a) discrimination

based on mental/physical disabilities under the Fair Employment and Housing Act (“FEHA”)

(COAs 1, 3, 4, 5), the Unruh Civil Rights Act (COAs 8, 9), and Government Code section 11135

(COA 10); b) failure to accommodate under FEHA and the Unruh Civil Rights Act (COA 6); c)

national origin discrimination under FEHA and the Unruh Civil Rights Act (COAs 8, 9); d)

harassment under FEHA, Education Code section 220, and the Unruh Civil Rights Act (COA 7);

) retaliation under FEHA (COA 11); f) failure to prevent discrimination/harassment under FEHA

10 and Education Code section 220 (COA 12); g) breach of contract (COA 13); h) estoppel and

11 reliance (COA 14); i) defamation and false light (COA 15);j) negligence (COA 16); k) intentional

12 infliction of emotional distress (“IIED,” COA 17); and 1) violation of COVID-Supplemental Paid

13 Sick Leave (COA 2).

14 On or about July 14, 2023, this Court issued a tentative ruling regarding The Regents’

15 demurrer to the FAC, which was adopted on or about July 27, 2023, with modifications. (See

16 Court’s July 27, 2023 Order on Demurrer [“Order’’]; see also July 14, 2023 Tentative Ruling

17 (“TR”).) Specifically:

18 . The Regents’ demurrer was sustained (without leave to amend) as to Plaintiff's
claims based on the Unruh Act, Plaintiffs cause of action related to harassment,
19 her claim for violation of COVID-19 supplemental paid sick leave, and her claim
for defamation/false light.
20
The Regents’ demurrer was sustained (with leave to amend) as to:
21

j
The breach of contract and promissory esto} pel claims as confirmed by the
.
22 Court during the hearing that took place on uly 14, 2023, with the
instruction at the amendment to these causes of action must include more
23 concrete allegations as to exactly what the breach of contract is.

24 Plaintiff's negligence claim, on the grounds that her allegations were
insufficient at the pleading stage for negligence against a public entity
25 without providing for the statutory basis.

26 Plaintiff's ITED claim and directed her to eliminate allegations of ITED that
occurred before A ugust 2020 (which are time barred) and to provide facts
27 (not conclusory statements) as to Defendants’ allegedly outrageous conduct.

28 III
8
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
On or about August 14, 2023, Plaintiff filed a SAC asserting the following claims: FEHA

discrimination (COA 1); FEHA failure to engage in the interactive process (COA 2); disparate

impact disability discrimination (COA 3); physical disability discrimination (COA 4); FEHA

failure to reasonably accommodate disability (COA 5); national origin discrimination (COA 6);

discrimination based on status as recipient of state funding (COA 7); FEHA retaliation (COA 8);

FEHA failure to prevent discrimination, retaliation and harassment (COA 9); breach of contract

(COA 10); promissory estoppel and reliance (COA 11); negligence (COA 12); and IIED (COA

13)?
Ill. LEGAL STANDARD ON DEMURRER
10 A demurrer tests the legal sufficiency of a complaint. (Code Civ. Proc., § 430.10; Curcini

11 v. County of Alameda (2008) 164 Cal.App.4th 629, 637.) In determining the sufficiency of a

12 complaint—for the purposes of demurrer—the parties and the Court must accept as true all

13 material facts that are properly pled, but need not “assume the truth of contentions, deductions or

14 conclusions of law.” (See, e.g., Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

15 However, a demurrer may be based on matters upon which a court may take judicial notice, and a

16 complaint is read to include those judicially noticed matters. (Code Civ. Proc., §§ 430.30(a),

17 430.70; Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 997.)

18 Because of the important role public entities such as The Regents play in the orderly
19 administration of our government, a plaintiff who wishes to sue a public entity must plead facts

20 with sufficient particularity to show that her causes of action lie outside any possible immunity.

21 (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 885-886.)

22 The Court should sustain a demurrer and deny a plaintiff leave to amend where no liability

23 exists under substantive law, and a plaintiff cannot successfully amend her deficient complaint.

24 (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

25 III
26

27 ? All thirteen claims are brought against The Regents; only COAs 12-13 are also brought against Individual
Defendants. However, COAs 10-11 are impliedly brought against Individual Defendant Ruiz by reference
28 only.

9
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
IV ARGUMENT

A Plaintiff's SAC Inappropriately Attempts To Sneak In A Claim For

Harassment Which The Court Already Adjudicated In The Regents’ Favor.

This Court previously ruled that:

Plaintiff’s claims based in the Unruh Act (Civil Code §§ 51, 52) fail since Regents
is not a business entity covered by the statutory scheme. Brennon B. v. Superior
Court (2020) 57 Cal.A pp.5th 367, 379. The Court sustains the demurrer as to the
9th cause of action without leave to amend. Plaintiff's cause of action related to
harassment by the University is time-barred...the FAC fails to show any allegations
related to harassment past early 2019. Therefore, the Court sustains the demurrer
without leave to amend. (TR at p. 12.)

Despite this clear order, Plaintiff realleges her claim for harassment (stemming partly from
10 the Unruh Act) embedded within her claim for national origin discrimination (COA 6) as follows:

11 “(If Plaintiffs experiences raise to the level of national origin harassment, Plaintiff also pleads

12 cause of action Harassment Because of National Origin, Gov. Code, § 12923; Gov. Code, §

13 12940(j); Ed. Code, §§ 220 and 66270 et seq.; Unruh Civil Rights Act — Civ. Code, §§ 51, 52. In

14 such case, Plaintiff also includes (c) and (i) events from the cause of action Harassment Because

15 of Disability.)” (SAC 4 205.) The harassment claims fail based on statute of limitations, as they

16 did with the last demurrer, and they also fail to the extent they incorporate the Unruh Act because,

17 as this Court has already ruled, The Regents is not a business establishment under the Unruh Act.

18 1 Plaintiff’s Harassment Claim Remains Time-Barred

19 The Court previously ruled on The Regents’ demurrer to the FAC that the harassment

20 claim was time-barred, but the Court gave Plaintiff leave to amend to cure that time bar. Rather

21 than cure the deficiency, Plaintiff's SAC describes the same alleged harassing conduct at SAC 4

22 53-66 (details include dates of conduct), which allegedly occurred in Fall 2017 and Winter 2018.

23 Plaintiff was required to file a FEHA complaint within one year of that time period, which would

24 have been Winter 2019 at the latest. (Gov. Code, §12940(d).) Her FEHA claim was instead filed

25 on August 25, 2022. Therefore, her harassment claims are time barred (just as it was in the FAC)

26 —and her SAC does not compel a different result.

27 III
28 III
10
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
2 Plaintiff's Harassment Claim Cannot be Based on the Unruh Act

Plaintiff's harassment claims, COAs 5 and 6, are brought in part, based on the Unruh Civil

Rights Act, which requires Plaintiff to prove that The Regents is a “business establishment” for

purposes of the Unruh Act. (Civ. Code, § 51; SAC $180, 205.) As this Court has recognized,

however, The Regents, is not “business establishment” under the Unruh Act and is thus not liable

under its provisions. (Brennon, 57 Cal.App.5th at p. 397, aff'd sub nom, 13 Cal.5th 662, reh’g

denied (Aug. 31, 2022) [public school districts are not “business establishments” under the Unruh

Act]; Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 788-789 [group that educates

the public about cults is not a “business”; membership was “largely discretionary, highly restricted

10 and selective”].) The Unruh Act prohibits discrimination by “business establishments.” (Civ.

11 Code, § 51(a).) Although the term “business” is “not necessarily limited to activities engaged in

12 for profit . . . , it is nevertheless confined to activities engaged in by private entities, unless a

13 contrary intent is apparent from the statutory language.” (Sacramento Mun. Util Dist. v. County of

14 Solano (1977) 54 Cal.App.4th 1163, 1169.)

15 The Unruh Act makes no mention of application to public entities, and does nothing to

16 rebut the presumption that it is inapplicable to public entities. Indeed, the Court of A ppeal has

17 specifically found that “there is nothing in the legislative history of the Unruh Acct, itself, that

18 suggests the A ct was intended to reach discriminatory conduct by state agents, such as public
19 school districts and, again, there is much to indicate otherwise.” (Brennon, 57 Cal.App.5th at

20 379.) Further, courts have routinely suggested the Unruh Act was only intended to cover private

21 business establishments. (/sbister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72, 75 [“The Act

22 is this state’s bulwark against arbitrary discrimination in places of public accommodation. Absent

23 the principle it codifies, thousands of facilities in private ownership, but otherwise open to the

24 public, would be free under state law to exclude people for invidious reasons like sex, religion,

25 age, and even race”’].)

26 What’s more, various Courts of Appeal have held that Unruh Act claims against specific

27 public entities failed, concluding those particular public entities were not business establishments

28 within the meaning of the Unruh Act. (Spanish Speaking Citizens’ Found. v. Low (2000) 85
11
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Cal.App.4th 1179, 1240 [holding that “the Department [of Insurance] is not a ‘business

establishment’ within the meaning of the Unruh Civil Rights Act”]; Burnett v. San Francisco

Police Dep’t (1995) 35 Cal.App.4th 1177, 1191-1192 [Unruh Act cannot be used to state a claim

against “legislative bodies”].)

Thus, because the Unruh Act is inapplicable to public entities, and because The Regents is

not a “business establishment” under the Unruh Act, Plaintiff's COAs 5-6 against The Regents

alleging Unruh Act violations still fail as a matter of law. In the alternative, Paragraph 205 should

be stricken from the SAC.

B. The Tort Claims Act Still Bars Plaintiff's Common Law Claims.

10 Plaintiff continues to assert common law claims against The Regents: negligence (COA

11 12), and IIED (COA 13), which fail because The Regents is immune from liability for common

12 law tort claims.

13 As a matter of well-established law, a public entity cannot be directly liable for injury

14 unless the liability is specifically imposed by statute or the California Constitution. (Gov. Code, §

15 815, subd. (a); Colome v. State Athletic Comm of Cal. (1996) 47 Cal.App.4th 1444, 1454.)

16 “Public entity” liability is limited because “[s]overeign immunity is the rule in California.”

17 (Colome, 47 Cal.A pp.4th at 1454-1455.) Thus, the Tort Claims Act provides that all public

18 entities, including The Regents, are immune from liability unless the Legislature expressly
19 provides for such liability. (Gov. Code, § 815.) Therefore, a common law claim may not, as a

20 matter of law, be brought against a public entity. (See, e.g., In re Groundwater Cases (2007) 154

21 Cal.App.4th 659, 688 [“Of course there is no common law tort liability for public entities in

22 California; such liability is wholly statutory.”].)

23 The Regents is a state entity established by the California Constitution. (See Cal. Const.,

24 art. IX, § 9, subds. (a) & (f).) As a “public entity” subject to the Tort Claims Act, The Regents

25 cannot be directly liable for Plaintiffs common law tort claims—her twelfth and thirteenth causes

26 of action—which fail as a matter of law. (Gov. Code, § 811.2.)°

28 3 Although The Regents may, in some instances, he vicariously liable for the torts of its employees, as set

12
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
The negligence cause of action is subject to demurrer because Plaintiff fails to allege a

statute authorizing her claim or compliance with the Claims Act. (“Since the duty ofa

governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’

claimed to establish the duty must at the very least be identified” in a complaint against a public

entity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Plaintiff's

allegations are insufficient at the pleading stage for negligence against a public entity without

providing for the statutory basis. (SAC ff 254-261.)

For these reasons, the Court should also sustain The Regents’ demurrer as to Plaintiff's

claim for breach of contract (COA 10) and promissory estoppel/reliance (COA 11).
10 Cc Plaintiff's Breach of Contract and Promissory Estoppel Claims Also Lack

11 Sufficiently C oncrete Allegations.

12 Plaintiff's claims for breach of contract (COA 10) and promissory estoppel (COA 11)

13 separately fail because the allegations are too vague to survive a demurrer.*

14 As to breach of contract, the SAC fails to plead the elements of a contract, or breach

15 thereof. To state a claim for breach of contract under California law, a plaintiff must allege facts

16 showing “‘(1) the existence of the contract, (2) plaintiff's performance or excuse for

17 nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis W.

18 Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
19 Although the relationship between student and university has been characterized as

20 contractual, courts “have recognized that contract law should not be strictly applied” to a

21
forth below and in the Individual Defendants’ demurrer, those claims are also barred. Because The
22 Regents is only liable for common law torts under a vicarious liability theory if an employee is otherwise
liable, it is not liable for these claims. (See Gov. Code, § 815.2, subds. (a)-(b).) Regardless, Plaintiff fails
23 to meet her burden of alleging, with particularity, specific facts demonstrating The Regents’ liability under
such a theory. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1130-1131.)
24
4 The tentative ruling (items 13-14) provided that The Regents’ demurrer as to the FAC’s breach of contract
25
and promissory estoppel claims are sustained with leave to amend, and this was confirmed by the Court
26 during the hearing that took place on July 14, 2023. (See Demurrer Hearing Transcript at page 6, line 6 to
page 7, line 13; page 9, lines 12-26 [“I intend to agree with The Regents that, as to the breach of contract,
27 my reference to ‘sustained with leave to amend’ will remain. . .. And the amendment as to that cause of
action will include more concrete allegations as to exactly what the breach of contract is.”]; and page 19,
28 lines 7-15.) The SAC has not abided by this ruling.

13
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
university. (Kashmiri v. The Regents of the Univ. of Calif. (2007) 156 Cal.App.4th 809, 824.)

Flexibility is key because “[uJniversities are entitled to some leeway in modifying their programs

from time to time to exercise their educational responsibility properly.” Thus, courts “have been

reluctant to apply contract law to general promises or expectations.” (Id. at 826.) Instead, courts

look to the reasonable expectation of the student at the time of contracting, “measured by the

definitiveness, specificity, or explicit nature of the representations at issue.” (Id. at 832.)

Courts will not entertain complaints regarding the adequacy of services provided pursuant

to general promises, such as promises that “efforts will be made.” (Kashmiri, 156 Cal.App.4th

809 [upholding claim based on breach of promise that professional degree fee “is $6,000 per year,

10 and it will remain at that level for [plaintiffs’] three years in the J.D. program”], with Rouse v.

11 Duke University (M.D. N.C. 2012) 869 F.Supp.2d 674, 683 [rejecting assurances that university

12 would “prohibit discrimination and harassment, «6, not tolerate harassment of any kind,” would

13 “prevent or aid in preventing ongoing harassment,” and that “expressly forbid[]” “harassment”

14 “too general to be enforceable as a matter of contract”].)

15 Here, as in Rouse, the alleged promises are too vague and general to constitute an

16 actionable contract claim against The Regents. For example, Plaintiff identifies as “promises”:

17 “financial support . . . if she makes normal academic progress and is qualified for the form of

18 support available” (SAC 4 4); “that students in Astronomy and Astrophysics typically have full

19 tuition covered and salary of $31,807” (which, according to Plaintiff, “implied 100% Summer

20 funding and regular 50% funding during Fall, Winter and Spring”) (id. 19 2, 4, 10, 43-44, 173,

21 emphasis added); “research opportunities, access to the best telescopes, funding, friendly and

22 helpful department” (id. 251); and various statements from the University’s website regarding

24 5 Moreover, as a public employee, Plaintiff is a statutory employee and cannot bring a breach of contract
claim or any derivative claims based on breach of contract. Specifically, public employees are employed
25
pursuantto statute, not contract. (Miller v. State of California (1977) 18 Cal.3d 808, 813-814.) A public
26 employee thus can have no vested contractual right to any terms of employment. (Hinchliffe v. City of San
Diego (1985) 165 Cal.App.3d 722, 725.) Courts, therefore, may dismiss a public employee’s breach of
27 contract claims, and any claims based on the existence of an employment contract. (Kemmerer v. City of
Fresno (1988) 200 Cal.A pp.3d 426; Watson v. State of California Dept. of Rehabilitation (1989) 212
28 Cal.App.3d 1271, 1287-1288.)

14
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
research and its policies (id. | 242-248). More specifically, Plaintiff premises her breach of

contract claim on the following:
. officially extended time to complete studies by
2
“Because of covid, the Universi! t
one year (https://news.ucsc.edu/' (020/05/covid- 19-impacts-on- luate-
education.html), but did not apply this extension to Plaintiff...” (SAC § 242(a))

While the University advertised e. “everyone in the UC Santa Cruz communi
entitled to work in an atmosphere fre e from bullying... The University not only did
not try to protect Plaintiff from bullying, but was also questioning why Plaintiff
wanted not to be bullied.” (SAC 245.)

“Here, on one side, Department
h
promised extraordinar' research opportunities and
department in which students help each other and in w ich she can ask anyone for
help. In contrast, after a few years, Plaintiff received below standards research
opportunities (e.g., not being included in any new projects, not having advising
relations with professors, not having access to telescopes that students have through
10 faculty) and an environment that was not only not supportive, but in which she was
bullied and told not to ask questions.” (SAC 4 243.)
11
But promises that people would be “friendly” and “willing to help” are too vague to
12
establish a contract or promissory estoppel. These alleged representations are insufficient to
13
establish a “clear and explicit” and “express” contractual promise needed. (See Rouse, 869
14
F.Supp.2d at 683; see also Kashmiri, 156 Cal.App.4th at 826 [permitting claim because case “does
15
not involve a general statement or expectation regarding the [professional degree fee]’”].) Further,
16
The Regents has virtual autonomy in how it manages the University, particularly with regards to
17
academic questions such as these. (Scharfv. Regents of the Univ. of Cal. (1991) 234 Cal. App.3d
18
1393, 1405.) Even if the promises were “clear and explicit”—they are not—Plaintiff fails to set
19
forth the promises in required detail or attach the referenced written promises to her FAC.
20
(Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459 [where action is
21
“based on an alleged breach of a written contract, the terms must be set out verbatim in the body
22
of the complaint or a copy of the written instrument must be attached and incorporated by
23
reference”].)
24
As an alternative to her breach of contract claim, Plaintiffs fourteenth cause of action
25
asserts a claim for promissory estoppel and reliance. (SAC {ff 249-253.) But this claim is
26
likewise premised on hopelessly general and nonactionable statements (for example, SAC | 251
27
[“Department will be friendly’ 2. 5 €6 she should not go to Berkeley because of sexual harassment”;
28
15
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
“Caltech students are busy with homework”; “students in Department do not struggle with

funding m9. 5 66 ‘that the University will address discrimination and harassment”].) Plaintiff did not add

any allegations of substance to her cause of action in her SAC, to distinguish it as pled in her FAC.

D Misrepresentation Immunity Bars Plaintiff’s Promissory Estoppel Claim.

In addition to The Regents’ broad immunity from common law claims under Section 815,

The Regents is also immune with respect to claims premised on misrepresentations. Section 818.8

provides The Regents an absolute immunity “for an injury caused by misrepresentation by an

employee of the public entity,” whether it is negligent or intentional. (Gov. Code, § 818.8.)

Here, Plaintiffs promissory estoppel (COA 11) claim is premised on alleged
10 misrepresentations under Government Code section 818.8. A key element of this claims is that

11 The Regents are responsible based on “misrepresent[ations]” to or “false” statements about

12 Plaintiff. (E.g., SAC 999-10, 74, 92.) Indeed, Plaintiff's promissory estoppel claim is based

13 entirely on promises Plaintiff alleges The Regents failed to keep. (Id. 4251.)

14 Because The Regents is absolutely immune from any allege misrepresentation, the

15 demurrer to COA 11, to the extent it relies on alleged misrepresentations, should be sustained

16 without leave to amend on this ground as well.

17 E Plaintiff’s IED and Negligence Claims Are Subject to Workers’

18 Compensation Exclusivity.
19 In addition to the above immunities, Plaintiff's negligence (COA 12) and ITED (COA 13)

20 claims are barred by the California Workers’ Compensation Act, which provides the exclusive

21 remedy “for any injury sustained by . . . employees arising out of and in the course of employment

22 ....” (Lab. Code, §§ 3600; 3601(a); 3602(a).) This “exclusive remedy doctrine” reflects a clear

23 legislative decision to balance the respective rights of the employer and employee. (J ohns-

24 Manville Prods. Corp. v. Superior Court (1980) 27 Cal.3d 465, 474.) As the Supreme Court has

25 long held, the exclusivity rule applies to misconduct that is a “normal part of the employment

26 relationship, such as demotions, promotions, criticism of work practices, and frictions in

27 negotiations as to grievances,” even if these actions are “manifestly unfair, outrageous,

28 harassment, or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks
16
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Fire Prot. Dist. (1987) 43 Cal.3d 148, 160.)

Courts have applied the doctrine to claims for IED. (Davaris v. Cubaleski (1993) 12

Cal.App.4th 1583, 1588 [exclusivity applies to NIED and IIED claims]; see also Valenzuela v.

State of California (1987) 194 Cal.A pp.3d 916, 922 [affirming sustained demurrer against ITED

claim]; Gates v. Trans Video Corp. (1979) 93 Cal.App.3d 196, 204 [reversed trial court judgment

on ITED claim because Workers’ Compensation system was sole remedy].)

Similarly, negligence claims, by their very definition, allege conduct that falls within the

course and scope of employment, and are thus preempted by the Act. (Robomatic, Inc. v. Vetco

Offshore (1990) 225 Cal.A pp.3d 270, 273-275; Potter v. Arizona So. Coach Lines, Inc. (1988) 202

10 Cal.App.3d 126, 133-135.)

11 Based on the above, this Court should sustain Defendants’ demurrer to COAs 12-13

12 without leave to amend.

13 F Plaintiff Continues to Plead Insufficient Facts of “Extreme or Outrageous

14 Conduct” to Support an ITED Claim.

15 Even assuming that the above immunities do not apply, the SAC allegations do not satisfy

16 the pleading requirements for a claim of IIED on the merits because the only allegations pled are

17 conclusory statements as opposed to facts, and do not give rise to extreme and outrageous conduct,

18 even taken as true.
19 To prevail on a cause of action for IIED, Plaintiff must plead: (1) extreme and outrageous

20 conduct, (2) with the intent to cause (or reckless disregard for the probability of causing)

21 emotional distress, (3) that Plaintiff has suffered severe or extreme emotional distress, and (4)

22 actual and proximate causation of the emotional distress by the outrageous conduct. (Davidson v.

23 City of Westminster (1982) 32 Cal.3d 197, 209.)

24 Under the first prong of the IIED claim, a plaintiff must allege conduct so outrageous as to

25 exceed all bounds of decency usually tolerated in a civilized society. (Christensen v. Superior

26 Court (1991) 54 Cal.3d 868, 904-906; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5;

27 Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) Actionable outrageous conduct

28 must be more than “objectively offensive and in breach of common standards of civility.” (Yurick,
17
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
209 Cal.App.3d at 1129.) Rather, the conduct must be “egregiously outside the realm of civilized

conduct.” (Id.) This is a high standard: “Mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities” do not qualify. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

In California, “appellate courts have affirmed orders which sustained demurrers on the ground that

the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran v. Cochran (1998) 65

Cal.App.4th 488, 495.)
Here, Plaintiff's allegations, even if taken as true, do not rise to the level of “extreme and

outrageous conduct.” Plaintiff alleges that The Regents (and Individual Defendants) engaged in

the following purported “extreme and outrageous conduct:”

10 . Plaintiff's time to complete her studies was shortened, pressuring Plaintiff
to graduate within approximately one quarter, with only “approximately
11 half tuition covered” while Plaintiff was evacuated because of wildfires and
was affected by stress and trauma because of discriminatory events in the
12 University. (SAC § 264(a).)

13 Plaintiff was put on probation without an interactive accommodation
process...[because] Department chair (Raja Guha Thakurta) and graduate
14 dean did not have time to respond to Plaintiffs question and, instead of
engaging in an interactive process, put Plaintiff on probation. (SAC 4]
15 264(b).)

16 The Department chair declined to extend Plaintiff's visa (although Plaintiff
acknowledges that it was in fact later extended for a quarter), trie
17 pressuring Plaintiff to complete her requirements sooner than the probation
letter stated. (SAC § 264(b).)
18
The Department chair proposed putting one more professor Plaintiff was
19 not comfortable with on her advising committee. (SAC § 264(b).)

20 These alleged facts are insufficient to demonstrate that The Regents’ actions were so

21 “outrageous” as to exceed all bounds of decency usually tolerated in a civil society. (Hughes, 46

22 Cal.4th at 1050.)

23 Plaintiff also fails to allege facts sufficient to demonstrate she suffers severe emotional

24 distress “of such substantial quantity or enduring quality that no reasonable man in a civilized

25 society should be expected to endure it.” (Bogard v. Employers Casualty Co. (1985) 14

27 5 Plaintiff notes “I have difficulty with remembering (a) and (b) and with explaining what happened. Please
let me know if some specific parts of it are unclear.” (SAC 4 264(c).) Plaintiff has had ample time to
28 articulate her allegations.

18
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Cal.App.3d 602, 617.) Here, at best, Plaintiff describes her emotional distress as “severe

emotional distress and lack of sleep...[to] feel depressed.. having difficulty focusing, completing

work, and doing everyday life activities...experiencing chest pain or stomach pain when thinking

about stressful events, and more.” (SAC § 265.) This is not enough. (Hughes, 46 Cal. 4th at 1051

[allegations of “discomfort, worry, anxiety, upset stomach, concern, and agitation” do not, as a

matter of law, establish emotional distress].)

7 Vv CONCLUSION

For the foregoing reasons, The Regents’ demurrer to Plaintiff's SAC as to the sixth, and

tenth-thirteenth causes of action set forth therein should be sustained without leave to amend.
10 Dated: November 27, 2023 QUARLES & BRADY LLP

wy. Coan) Sore
11

12
SANDRA L. MCDONOUGH
13 AARONJ. SCHU
Attomeys for Defendants THE REGENTS OF THE
14 UNIVERSITY OF CALIFORNIA, XAVIER
PROCHASKA, DAVID SUGG, BRANT

Case Info

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Schmal, Timothy Track Judge’s New Case

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Document Filed Date

November 28, 2023

Case Filing Date

August 25, 2022

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Parties

Fellows, Susan Defendant
Guha Thakurta, Puragra Defendant
McDonough, Sandra Lynn Attorney for the Defendant
Prochaska, Xavier Defendant
Pro Se Attorney for the Plaintiff
Ramirez-Ruiz, Enrico Defendant
REGENTS OF THE UNIVERSITY OF CALIFORNIA Defendant
Robertson, Brant Defendant
Rockosi, Constance Defendant
Sanchez, Jose Defendant
Smailagic, Marijana Plaintiff
Sugg, David Defendant
Aaron Schu Attorneys for Defendants
Charles Robinson Attorneys for Defendants

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