Moran v. Regents of the U. of Cal. CA2/7 ( 2021 )

Filed 5/13/21 Moran v. Regents of the U. of Cal. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARISOL MORAN, B298898
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SS029157)
v.
REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed.
The Appellate Law Firm, Corey Evan Parker, Berangere
Allen-Blaine, for Plaintiff and Appellant.
Reed Smith, Raymond A. Cardozo; Maranga Morgenstern,
Kenneth A. Maranga, Patricia E. Ellyatt, Morgan A. Metzger, for
Defendant and Respondent.
_______________________
INTRODUCTION
Marisol Moran appeals from a judgment of dismissal
entered after the superior court sustained without leave to
amend the demurrer of the Regents of the University of
California (Regents) to Moran’s third amended petition for writ of
mandate or, in the alternative, writ of administrative mandamus.
Moran contends the trial court erred in finding that she had not
exhausted her administrative remedies and did not allege
sufficient facts to state a disability discrimination cause of action.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1
A. Factual Allegations
Moran is a former medical student at the David Geffen
School of Medicine at the University of California, Los Angeles
(UCLA). Moran has been diagnosed with Attention Deficit
Hyperactivity Disorder Inattentive Type and major depression.
Moran registered her disabilities with the appropriate UCLA
department.
Moran struggled academically, causing her to repeat her
first and third years of medical school. In November 2014,
during her repeated third year, the Clerkship Chairs Committee
informed Moran that it had “decided to send a recommendation of
dismissal to the Faculty Executive Committee . . . on the basis of
two failed clerkships in the repeat year.” Moran had failing
1 “In considering whether a demurrer should have been
sustained, ‘we accept as true the well-pleaded facts in the
operative complaint.’” (Beacon Residential Community Assn. v.
Skidmore, Owings, & Merrill LLP (2014) 59 Cal.4th 568, 571.)
2
scores on the Inpatient Internal Medicine and Neurology written
exams. Moran appealed the dismissal recommendation to the
Committee on Academic Standing, Progress, and Promotion of
Medical Students (CASPP).
In February 2015 CASPP referred Moran “back” to the
Academic Performance Committee,2 with a recommendation that
Moran continue in the program with a remediation plan that
specified the circumstances “that will result in a recommendation
for dismissal (i.e., a third failed clerkship exam).” CASPP
informed Moran that she could be referred back to CASPP if she
was unable to meet the academic and professional standards
detailed in the remediation plan. Moran signed an Academic
Performance Committee remediation plan on March 5, 2015.
In October 2015 the Academic Performance Committee
notified Moran that it would recommend her dismissal. Moran
again appealed to CASPP. At a meeting with CASPP in
November 2015, Moran requested a leave of absence from the
medical school, stating that her father’s recent death had
exacerbated her disabilities. CASPP denied Moran’s appeal and
affirmed the dismissal recommendation. CASPP’s letter does not
address Moran’s requested leave of absence, but Moran alleges
CASPP denied it. CASPP informed Moran that she could appeal
its decision to the Vice Dean for Education, and if the Vice Dean
for Education upheld CASPP’s decision, Moran could further
appeal to the Faculty Executive Committee.
Moran appealed CASPP’s decision to the Vice Dean of
Education, Dr. Clarence Braddock III. In January 2016,
2 Moran’s petition appears to refer to the Clerkship Chairs
Committee and the Academic Performance Committee
interchangeably.
3
Braddock denied Moran’s appeal. Braddock noted that Moran
alleged that the Academic Performance Committee and CASPP
had discriminated against her because they had not
accommodated her disabilities by “reconstruct[ing]” her
remediation plan; Braddock found no evidence Moran had
requested a modification of her remediation plan. Braddock also
concluded that the Academic Performance Committee and
CASPP followed proper procedures, that neither committee acted
arbitrarily or capriciously, and that both committees considered
Moran’s personal situation and “stressors” in making their
decisions.
Braddock advised Moran that the dismissal
recommendation was “subject to one final appeal, to the Faculty
Executive Committee.” Braddock told Moran that an appeal to
the Faculty Executive Committee “must be solely based on:
• Evidence of discrimination as determined by the
appropriate institutional office[;]
• Evidence of a procedural error in CASPP’s review that
prejudiced [Moran’s] ability to receive a fair hearing[; or]
• Evidence that CASPP acted in an arbitrary and
capricious manner[.]”
In a “simultaneous appellate effort,” Moran met in
February 2016 with UCLA’s Vice Chancellor for Students Affairs
Monroe Gorden, Jr. Moran alleged that the Academic
Performance Committee, CASPP, and Braddock had
discriminated against her by not considering her disabilities
when deciding to dismiss her.
Moran also appealed Braddock’s decision to the Faculty
Executive Committee. In March 2016 the Faculty Executive
Committee denied Moran’s appeal. The committee “found no
4
evidence of any of the three conditions that would allow [the]
committee to reverse the decision of either Dean Braddock or
CASPP.”
In July 2016 Gorden upheld Moran’s dismissal.3
B. Moran’s Petitions and the Trial Court’s Rulings on the
Regents’s Demurrers
On July 6, 2017 Moran filed a petition for writ of mandate
or, in the alternative, writ of administrative mandamus
challenging the medical school’s dismissal decision. The trial
court sustained the Regents’s demurrer to the petition with leave
to amend. The court found that Moran’s allegations were
conclusory and that Moran did not allege facts “explaining why
the dismissal hearing was unfair, nor [did Moran] provide any
specific allegations indicating she was discriminated against on
the basis of a disability.” The court also ruled that Moran had
not alleged sufficient facts demonstrating she had exhausted
administrative remedies.
Moran filed an amended petition.4 The trial court
sustained the Regents’s demurrer to the amended petition with
leave to amend. The court ruled that Moran must clarify
whether the medical school dismissed her for academic
performance, discriminated against her based on disability, or
both.
3 Moran alleges she appealed the Faculty Executive
Committee’s decision to Gorden on February 12, 2016. Moran
also alleges the Faculty Executive Committee notified her of its
decision a month later, on March 15, 2016. This discrepancy does
not affect the issues on appeal.
4 Moran’s amended petition is not in the record.
5
Moran filed a second amended petition. The trial court
sustained the Regents’s demurrer to the second amended petition
with leave to amend. The court ruled that Moran had not
adequately alleged whether her dismissal was due to disability
discrimination or other reasons. The court explained that Moran
had not alleged sufficient facts to state a disability discrimination
cause of action because Moran did not allege that she requested
an accommodation the medical school denied before dismissing
her, and Moran did not allege specific facts showing a flawed
dismissal decision. The court gave Moran “one final chance” to
amend her petition.
Moran filed a third amended petition. The trial court
sustained the Regents’s demurrer to the third amended petition.
The court ruled that because Moran alleged the Regents “violated
anti-discrimination laws” by dismissing her based on her
disabilities, Moran must allege she had exhausted the Regents’s
discrimination grievance procedure, and Moran had not done so.
The court observed that the parties disagreed about whether the
Academic Performance Committee’s dismissal recommendation
was conclusive or interim, but found that Moran did not in any
event allege sufficient facts to state a disability discrimination
cause of action. Moran did not allege that she had requested a
leave of absence before the medical school decided to dismiss her,
nor did she allege facts demonstrating that a leave of absence
would have allowed her to meet the medical school’s eligibility
requirements. Because Moran had had several opportunities to
amend her petition without success, the trial court sustained the
Regents’s demurrer without leave to amend.
Moran timely appealed the trial court’s judgment of
dismissal.
6
DISCUSSION
A. Governing Law and Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint or petition. (Stella v. Asset
Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190.)
We independently review the superior court’s ruling on a
demurrer and determine de novo whether the complaint or
petition alleges facts sufficient to state a cause of action or
discloses a complete defense. (Ibid.; see also Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1100 (Loeffler); SJJC Aviation
Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043,
1051 [“[w]e review the petition and complaint de novo ‘to
determine whether it alleges facts stating a cause of action under
any legal theory’”]; Jones v. Omnitrans (2004) 125 Cal.App.4th
273, 277 [“[o]n appeal from a dismissal entered after an order
sustaining a demurrer to a petition for writ of mandate, we
review the order de novo, determining independently whether the
petition states a cause of action as a matter of law”].)
We assume the truth of the properly pleaded factual
allegations, facts that reasonably can be inferred from those
expressly pleaded, and matters of which judicial notice has been
taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20.) We
liberally construe the pleading with a view to substantial justice
between the parties. (Code Civ. Proc., § 452; Gilkyson v. Disney
Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1340;
see Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081
[complaint must be read in context and given a reasonable
interpretation].)
7
B. The Trial Court Did Not Err in Sustaining the Regents’s
Demurrer to Moran’s Third Amended Petition Without
Leave To Amend
Moran alleges the medical school discriminated against her
by failing to consider her disabilities when deciding to dismiss
her. Moran does not identify in her petition or briefs the statute
or other law on which she premises her discrimination claim.
Moran asserts, however, and the Regents agrees, that to state a
cause of action for disability discrimination in the medical
school’s dismissal decision Moran must allege facts supporting
the elements identified in Zukle v. Regents of University of
California (9th Cir. 1999) 166 F.3d 1041 (Zukle).
The plaintiff in Zukle, a learning disabled student, alleged
that the University of California, Davis School of Medicine
violated the Americans with Disabilities Act (ADA) and the
Rehabilitation Act when it dismissed her for failure to meet the
school’s academic standards.5 We infer from Moran’s reliance on
Zukle that Moran contends the medical school violated the ADA
and/or the Rehabilitation Act in dismissing her.6 The Zukle court
explained that “[t]o make out a prima facie case under either the
ADA or [the] Rehabilitation Act [a plaintiff] must show that (1)
5 The Zukle court observed that “[t]here is no significant
difference in analysis of the rights and obligations created by the
ADA and the Rehabilitation Act” and applied the same analysis
to the plaintiff’s claims under both statutes. (Zukle, supra, 166
F.3d at p. 1045, fn. 11.)
6 The other case Moran cites in support of her argument that
she sufficiently alleged disability discrimination also addresses
ADA and Rehabilitation Act claims. (See Wong v. Regents of
University of California (9th Cir. 1999) 192 F.3d 807.)
8
she is disabled under the Act; (2) she is ‘otherwise qualified’ to
remain a student at the Medical School, i.e., she can meet the
essential eligibility requirements of the school, with or without
reasonable accommodation; (3) she was dismissed solely because
of her disability; and (4) the Medical School receives federal
financial assistance (for the Rehabilitation Act claim), or is a
public entity (for the ADA claim).”7 (Zukle, supra, 166 F.3d at
p. 1045.)
Moran alleges she “is a student with a documented
disability, having been diagnosed with Attention Deficit
Hyperactivity Disorder Inattentive Type and Major Depression,”
and that with reasonable accommodations she would be able to
meet the medical school’s eligibility requirements. Moran alleges
that before “final dismissal” from the medical school, she
requested a “short leave of absence in order to cope with her
father’s death, which had exacerbated her documented
disabilities,” and the leave of absence “would have allowed [her]
to meet [the medical school’s] eligibility requirements.” Moran
further alleges the medical school denied her requested leave of
7 In Zukle, the Regents did not dispute that Zukle was
disabled or that the medical school received federal financial
assistance and was a public entity. (Zukle, supra, 166 F.3d at
p. 1045.) Zukle argued she was “otherwise qualified” with the aid
of reasonable accommodations to remain at the medical school
and the medical school failed to reasonably accommodate her.
(Id. at p. 1046.) The appellate court affirmed the district court’s
order granting summary judgment to the Regents, finding that
Zukle had not established that she could meet the medical
school’s essential eligibility requirements with the aid of
reasonable accommodations, and that she therefore had not
established a prima facie case of disability discrimination under
the ADA or the Rehabilitation Act. (Id. at p. 1051.)
9
absence, and the denial rendered Moran unable to meet the
medical school’s eligibility requirements and caused her
dismissal.
These allegations do not state a cause of action for
disability discrimination in the medical school’s dismissal
decision. Moran alleges she requested a leave of absence as an
accommodation of her disabilities during a November 2015
meeting with CASPP after the Academic Performance Committee
recommended her dismissal. Whether the Academic Performance
Committee’s recommendation was a final decision subject to
appeal or a first step in the dismissal process, its
recommendation was the event that caused Moran’s ultimate
disenrollment from the medical school, and that event had
already occurred when Moran requested a leave of absence.
Moran alleges no facts indicating that CASPP, Braddock, or the
Faculty Executive Committee would have initiated or considered
her dismissal without an initial recommendation from the
Academic Performance Committee. Thus, because the Academic
Performance Committee recommended Moran’s dismissal before
she requested a leave of absence, neither Moran’s request for a
leave of absence nor the medical school’s refusal to grant one
could have caused the Academic Performance Committee to
recommend Moran’s dismissal.
Moran’s allegations are also insufficient because she does
not allege any facts demonstrating that a leave of absence would
have enabled her to meet the medical school’s eligibility
requirements. When Moran requested a leave of absence, she
had failed two clerkships in her repeated third year and had not
complied with the terms of her remediation plan. Moran does not
allege any facts explaining how a leave of absence would have
10
permitted her to remedy the two failed clerkships or otherwise
meet the requirements of her remediation plan. In the absence of
factual allegations showing that with the accommodation Moran
requested she could meet the medical school’s eligibility
requirements, Moran cannot state a cause of action for disability
discrimination in the medical school’s dismissal decision.
A trial court abuses its discretion by sustaining a demurrer
without leave to amend where “‘there is a reasonable possibility
that the defect can be cured by amendment.’” (Loeffler, supra,
58 Cal.4th at p. 1100; accord, City of Dinuba v. County of Tulare
(2007) 41 Cal.4th 859, 865.) “‘The plaintiff has the burden of
proving that [an] amendment would cure the legal defect, and
may [even] meet this burden [for the first time] on appeal.’”
(Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill
Extension Construction Authority (2018) 19 Cal.App.5th 1127,
1132; accord, Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 971.)
Moran does not argue that she could allege any additional
facts supporting her claim nor does she identify any such facts.
Moran therefore has not demonstrated any reasonable possibility
that the deficiencies in her petition could be cured by
amendment. The trial court did not err in sustaining the
Regents’s demurrer without leave to amend.8
8 Because Moran does not allege sufficient facts to state a
cause of action, we need not address Moran’s contention that the
trial court erred in finding that she had not sufficiently alleged
exhaustion of administrative remedies.
11
DISPOSITION
The judgment of dismissal is affirmed. The Regents shall
recover its costs on appeal.
McCORMICK, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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