Steshenko v. Foothill-De Anza Community College Dist. CA6 ( 2023 )

Filed 7/26/23 Steshenko v. Foothill-De Anza Community College Dist. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
GREGORY STESHENKO, H049871
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 17CV317602)
v.
FOOTHILL-DE ANZA COMMUNITY
COLLEGE DISTRICT, et al.,
Defendants and Respondents.
Plaintiff Gregory Steshenko was a student in the medical laboratory technician
program (MLT program) at De Anza College. He sued the Foothill-De Anza Community
College District (the District) and certain of its employees, alleging that they subjected
him to age discrimination that prevented him from securing a required six-month clinical
externship. As a result of the discrimination and in breach of a putative implied contract,
he alleged that he was unable to graduate, secure licensing, or obtain employment as a
medical laboratory technician, and that he suffered emotional distress from defendants’
conduct.
The trial court granted defendants’ motion for summary judgment and denied
Steshenko’s ensuing motion for a new trial. Finding no error, we affirm.
I. BACKGROUND1
In the operative complaint, as relevant here, Steshenko alleged causes of action for
(1) age discrimination (against the District); (2) breach of contract (against all
defendants); and (3) intentional infliction of emotional distress (against the District).2
Seeking (among other remedies) compensatory and punitive damages as well as specific
performance “enabling plaintiff’s graduation from the MLT program,” he alleged that
interviewers at program-affiliated laboratories at Natividad Medical Center (Natividad),
Community Hospital of the Monterey Peninsula (CHOMP), and Spectra Laboratories
(Spectra) denied him externships on the basis of his age and that defendants—in violation
of state law and their contractual duties to him as an enrolled MLT student—authorized
or acquiesced in the laboratories’ discrimination.
A. Defendants’ Motion for Summary Judgment
In July 2021, defendants filed an amended notice for a motion for summary
judgment and, in the alternative, summary adjudication of issues. Steshenko opposed
defendants’ motion and filed his own motion for summary judgment or summary
adjudication, the denial of which he has not appealed.
The following evidence was before the trial court on defendants’ motion:3
1
Noting that the Clerk’s Transcript is missing relevant documents, defendants
filed a request for judicial notice on appeal which includes all of the documents related to
the motions for summary judgment. We deem the request a motion to augment the
record and grant the motion.
2
Other causes of action, disposed of by demurrer prior to the summary judgment
litigation, are not at issue in this appeal.
3
We take the following facts from the parties’ separate statements of undisputed
facts, evidence admitted in conjunction with defendants’ motion for summary judgment,
and admissions in the parties’ briefs. (See Thompson v. Ioane (2017) 11 Cal.App.5th
1180, 1186, fn. 4.)
2
The District operates the state-approved MLT program at De Anza College in
Santa Clara County. In 2016, Steshenko, a self-described “long-term unemployed
[e]lectrical [e]ngineer” over the age of 50, enrolled in the MLT program in the fall
quarter of 2016. To graduate from the program,4 each MLT student must complete a
six-month externship comprising four “clinical practicum” courses with “Clinical
Affiliates” in Santa Clara and surrounding counties. (See Cal. Code Regs., tit. 17,
§ 1035.1, subd. (b)(2) [approved MLT training programs must include “at least 26 weeks,
consisting of at least 1040 hours, of instruction and practical experience in moderate
complexity testing in chemistry . . . ; hematology; microbiology . . . ; and immunology”].)
According to the MLT program student handbook, which defendants twice provided to
Steshenko, “securing placement in the clinical training portion of De Anza College’s
MLT program is a competitive process. Students must interview with clinical affiliates
for clinical training positions and are not guaranteed placement. If an MLT student
interviews for clinical placement and is not chosen by a clinical training facility, the MLT
program director will contact the Education Coordinator(s) for feedback on the MLT
student. The MLT program director will work with the student to improve or alleviate
any concerns brought forth by the clinical sites. The student may be referred to De Anza
College’s Occupational Technical Institute where interview and resume assistance is
available. The student may continue to interview for clinical placement. If within two
years of completing the academic portion of the MLT program, the student has been
unable to secure clinical training, they will no longer be eligible to compete for
placement.”
4
Although the program is in theory two years in duration, the first year of the
program may be satisfied by general education requirements for De Anza’s related
Associate of Arts degree in Medical Laboratory Technology. Admission to the MLT
program’s “[p]rofessional [y]ear” requires a phlebotomy certification.
3
During Steshenko’s time as a student, defendant Patricia Buchner was the MLT
program director. In connection with the program, the District enters into agreements
with local clinical laboratories to provide externship opportunities to students. Buchner
informed students in the program that they needed to interview with the clinical affiliates
to obtain an externship for the practicum courses.
In May 2017, Steshenko was informed of available externships at CHOMP and
Natividad. Early the next month, Steshenko submitted his resume and application
materials to both, requesting an interview. Steshenko’s resume disclosed, among other
qualifications, that he had obtained a postgraduate degree 23 years earlier. The following
month, Steshenko was invited to interview with Linda Delcambre, lab educator at
Natividad, and Un Sil Lee, supervisor of laboratory services at CHOMP, respectively.
After each interview, he was informed that he would not be accepted to placement.
After Steshenko’s rejection from CHOMP, Buchner e-mailed CHOMP’s
laboratory supervisor Un Sil Lee for feedback on Steshenko’s interview. Lee responded
that the laboratory “had some reservation[s] regarding [Steshenko’s] answers. He
showed small interest regarding [the] whole laboratory (for example, phlebotomy area:
reason we have to have CPT license)[.] Most concerning us was that he emphasized his
area of expertise, i.e.[,] electrical engineer; laudatory as the major may be, it will not help
us in hospital setting.” Buchner informed Steshenko by e-mail of the feedback Lee had
provided, specifically the perception that he “lacked enthusiasm/interest in working in all
areas of the laboratory.” She suggested that he “keep in mind the needs of the clinical
site” and “[s]peak to [his] audience.” She invited him to participate in interview
coaching, but he declined.
Steshenko responded, “[T]hey were looking for a phlebotomist. The only interest
they demonstrated was in getting someone who would do phlebotomy for them
without . . . pay for 6 month[s]. . . . My statement that pure phlebotomy has never been
my career aspiration was the breaker. [¶] . . . I for one am not looking for a phlebotomy
4
externship. [¶] . . . Are you seeking for the sites that would be less interested in
exploitation of the phlebotomy skills of your students and more in giving the MLT
training?” Steshenko also wrote Buchner that with Natividad as well, “the breaker” was
Natividad’s expectation that he perform phlebotomy duties without pay.
At the end of June 2017, Steshenko wrote to Buchner that the Natividad and
CHOMP interviewers had discriminated against him on the basis of his age. He also
complained in an August 2017 e-mail to Buchner that the externships were a
“circumvention of labor law through the unpaid employment of the already licensed and
experienced phlebotomists under the guise of ‘clinical training.’ Under that scheme, only
the experienced phlebotomists willing to donate their labor to the clinical agencies are
afforded an opportunity to graduate from your school. Because of that conspiracy and
because of my age, I am precluded from graduation.” He added: “I request an immediate
assignment to a clinical agency within a commuting distance from my residence, or any
form of alternative training that would allow for my timely graduation from your school.
Barring that, I would have no choice but to take an action for recovery of damages.”
In August 2017, Steshenko filed an administrative complaint alleging age
discrimination by the District. Defendant Lorrie Ranck, De Anza’s associate vice
president of instruction, informed Steshenko that “the College MLT program has no
power or authority to force a participating clinical site to accept any particular student for
an externship” and that “[o]nce the school selects students who are able to advance to the
externship portion (selection of trainees), the decision on whether to accept or reject any
of our students for an externship is entirely that of the site.” Ranck also informed
Steshenko that “[a]llegations of discrimination are taken seriously” and that his complaint
had been referred to the Dean of Student Development: “[S]hould you wish to pursue
this claim further you will need to communicate with the Dean of Student
Development, . . . as she is the campus contact.”
5
Also in August 2017, Steshenko submitted his resume and application materials to
Crystal Green, human resources manager at Spectra. Steshenko interviewed with Spectra
in September and later alleged that the Spectra interviewer said, “Look around, does
anyone here look like you?” Steshenko saw the laboratory was staffed only by young
people. Later that month, Spectra notified Steshenko that they had accepted another
candidate.
Defendants notified Steshenko of further opportunities for clinical placements, but
he told Buchner in mid-December 2017 that he would no longer pursue clinical
placements because “as a result of your actions, I lost my funding. Hence, I no longer
can perform an [sic] unpaid full-time work for half a year that you conditioned graduation
from your school upon, unless it is funded. . . . [¶] In the meantime, the damages grow
with every passing day, and the window for an uncomplicated settlement is closing fast.”5
He also objected that the commute from his home to three of the proposed placements
was prohibitive. He later added: “Please, do not contact me unless you have a realistic
solution for my graduation from your school. Such a solution could be discussed only
before the end of this year, because the next year the damages related to the lost earnings
will become extremely prominent and my graduation would not be sufficient to end
litigation.”
Steshenko did not complete the clinical practicum courses required for graduation
from the MLT program.
B. Ruling on the Motion for Summary Judgment and Steshenko’s Motion for New
Trial
The trial court granted defendants’ motion for summary judgment. On the first
cause of action, the court found there was no triable issue of material fact as to either age
5
According to Steshenko, the delay in his anticipated graduation date had resulted
in the County of Santa Cruz terminating certain job-retraining benefits he had been
reliant on.
6
discrimination by the District or the existence of an employment relationship subject to
the Fair Employment and Housing Act (FEHA). On the breach of contract cause of
action, the court concluded there was neither an implied contract between the parties nor
any evidence to support breach of such a contract. On the cause of action for intentional
infliction of emotion distress, the court found there was no extreme and outrageous
conduct by the District to support the claim.
Steshenko moved for a new trial, which the trial court denied.
Steshenko timely appealed.
II. DISCUSSION
A. Defendants’ Motion for Summary Judgment
Where a defendant has prevailed on summary judgment, “ ‘ “we review the record
de novo to determine whether [they have] conclusively negated a necessary element of
the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of
fact that requires the process of trial.” [Citation.]’ [Citation.]” (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 767; Genisman v. Carley (2018) 29 Cal.App.5th 45, 49
[defendant moving for summary judgment bears “ ‘the burden of showing that . . . one or
more elements of the cause of action cannot be established’ ”].) The moving defendant
“bears the burden of persuasion that there is no triable issue of material fact and that [it]
is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850, fn. omitted.) Upon a defendant’s prima facie showing of the
nonexistence of a triable issue of material fact, the plaintiff “is then subjected to a burden
of production of his own to make a prima facie showing of the existence of a triable issue
of material fact.” (Ibid.) “We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor of that
party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Hampton v.
County of San Diego (2015) 62 Cal.4th 340, 347.)
7
1. Age Discrimination
In his cause of action for age discrimination, Steshenko alleged that the District’s
administration of the MLT program’s clinical externship requirement violates the Fair
Employment and Housing Act (Government Code section 12900, et seq.) (FEHA),6
section 11135, and Education Code section 66292. All three statutes target
discrimination in different ways. FEHA concerns unlawful employment practices, such
as discrimination in hiring. (§ 12940; Donovan v. Poway Unified School Dist. (2008)
167 Cal.App.4th 567, 603 (Donovan).) Section 11135 prohibits discrimination by a
program or activity that receives state funding. (§ 11135; see also Donovan, supra, 167
Cal.App.4th at p. 603.) Education Code section 66292 requires community college
districts to ensure equal access to education. In our independent judgment, the District
negated at least one element necessary to maintaining a cause of action under each
statute.
a. FEHA
FEHA makes it an unlawful employment practice for “an employer, because of . . .
age . . . to refuse to hire or employ [a] person or to refuse to select [a] person for a
training program leading to employment . . . .” (§ 12940, subd. (a).) “FEHA requires
‘some connection with an employment relationship,’ although the connection ‘need not
necessarily be direct.’ [Citation.] ‘If there is no proscribed “employment practice,” the
FEHA does not apply.’ [Citation.]” (Vernon v. State of California (2004) 116
Cal.App.4th 114, 123 (Vernon); Talley v. County of Fresno (2020) 51 Cal.App.5th 1060,
1091; Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842
(Shephard).)7
6
Undesignated statutory references are to the Government Code.
7
With two exceptions not applicable here, FEHA tautologically defines an
“employer” as “any person regularly employing five or more persons, or any person
acting as an agent of an employer, directly or indirectly, the state or any political or civil
8
As we will discuss, we conclude that the District carried its initial burden of
negating an essential element of Steshenko’s FEHA theory by making a prima facie
showing that it neither employed him nor controlled the relationship between the clinical
affiliates and MLT students.8 The District also met its initial burden of showing that the
MLT program is not a “training program leading to employment” within the meaning of
section 12940 but an educational prerequisite to examination and licensure, themselves
prerequisites to employment as a medical laboratory technician. (See Bus. & Prof. Code,
§ 1260.3; see also Cal. Code Regs., tit. 17, § 1030.6 [“[g]raduating from a medical
laboratory technician training program” and “pass[ing] a written examination for medical
laboratory technicians” allows one “to qualify for licensure as a medical laboratory
technician.”].) Steshenko raised no triable issue of material fact in response.
i. Employment relationship
Although Steshenko alleged generally the existence of an employment relationship
between defendants and himself, he pleaded none of the customary hallmarks of an
employment relationship—remuneration or control over students’ performance of
employment duties. (See Vernon, supra, 116 Cal.App.4th at pp. 124-126 [considering
“ ‘totality of circumstances’ . . . with emphasis upon the extent to which the defendant
controls the plaintiff’s performance of employment duties” and particularly “the absence
of any direct or indirect remuneration from the defendant to the plaintiff”].)9 To the
subdivision of the state, and cities . . . .” (§ 12926, subd. (d).) “Employee” is defined by
exclusion: “ ‘employee’ does not include any individual employed by that person’s
parent, spouse, or child or any individual employed under a special license in a nonprofit
sheltered workshop or rehabilitation facility.” (§ 12926, subd. (c).)
8
We express no opinion as to whether the external affiliates could be considered
employers.
9
Relevant factors include “the ownership of the equipment necessary to
performance of the job, the location where the work is performed, the obligation of the
defendant to train the employee, the authority of the defendant to hire, transfer, promote,
discipline or discharge the employee, the authority to establish work schedules and
9
contrary, he noted that participation in the MLT program’s clinical component is “unpaid
and unregulated” and “unrelated to Program coursework,” and that MLT students “work
under the supervision of the [clinical affiliates’] laboratory personnel” to whom he asserts
the District “unlawfully delegated control” over selection of students.
As a general matter, Steshenko’s status as a student does not make him an
employee of the District. It is true that “a student may at times be an employee of a
school; for instance, when a student works in the school’s cafeteria or library for wages in
addition to attending classes. Or, . . . a student may be an employee of a third party
engaged by the school to provide the student with practical training in addition to the
academic instruction offered by the school where the student renders services that are of
economic benefit to the third party.” (Land v. Workers’ Comp. Appeals Bd. (2002) 102
Cal.App.4th 491, 496.) Absent such circumstances, however, “[t]he students of a
school . . . are not employees, but consumers of its product, education.” (Ibid.)
Even a student athlete, for example, is not a school employee despite the school’s
provision of athletic equipment, uniforms, transportation, and scholarships. (See
Shephard, supra, 102 Cal.App.4th at p. 845; see also Lab. Code, § 3352, subd. (a)(11).)
The Legislature expressly excluded student athletes from the definition of “employee” in
Labor Code section 3352, subdivision (a)(11) to abrogate the holding of Van Horn v.
Industrial Accident Commission (1963) 219 Cal.App.2d 457, that a student athlete who
received scholarship funds could be entitled to workers’ compensation benefits. But even
in Van Horn, the court made clear: “It cannot be said as a matter of law that every
student who receives an ‘athletic scholarship’ and plays on the school athletic team is an
assignments, the defendant’s discretion to determine the amount of compensation earned
by the employee, the skill required of the work performed and the extent to which it is
done under the direction of a supervisor, whether the work is part of the defendant’s
regular business operations, the skill required in the particular occupation, the duration of
the relationship of the parties, and the duration of the plaintiff’s employment.” (Vernon,
supra, 116 Cal.App.4th at p. 125.)
10
employee of the school. . . . Only where the evidence establishes a contract of
employment is such inference reasonably to be drawn.” (Id. at p. 467.) Absent
legislative recognition of student athletes as school employees—despite the provision of
scholarships, equipment, travel expenses, etc., for their physical labor on behalf of their
school—we are hard pressed to find that a non-athlete student, receiving nothing that
could be construed as remuneration, would be considered a school employee.
Even assuming, as Steshenko maintains, the clinical practicum would have him
performing uncompensated duties10 for a clinical affiliate, this would not render him an
employee of the District, given the clinical affiliates’ unimpeded supervision and control
over students’ work performance, work schedule, and working conditions.
As Steshenko noted in the operative complaint, “California law recognizes the
doctrine of a joint employer relationship.” But “[t]here is no magic formula for
determining whether an organization is a joint employer. Rather, the court must analyze
‘myriad facts surrounding the employment relationship in question.’ [Citation.] No one
factor is decisive. [Citation.]” (Vernon, supra, 116 Cal.App.4th at pp. 124-125.) Of the
relevant factors, however, “ ‘the extent of the defendant’s right to control the means and
manner of the workers’ performance is the most important.’ ” (Id. at p. 126.) Steshenko
in his complaint makes no allegation that the District exercises any actual control over
students’ work for the clinical affiliates; to the contrary, he specifically alleged that the
District unlawfully ceded control to the clinical affiliates and that it is the “laboratories
[that] select [the] students” for externships and that the students “work under the
supervision of the laboratory personnel.” Steshenko instead relies solely on an allegation
that the District “indirectly exercise[s] control over working conditions,” in that it is
“legally entitled to the direct control at any moment through revocation of [its]
10
A state-approved MLT program must provide its “students” with “practical
experience” and “practical training.” (Cal. Code Regs., tit. 17, § 1035.1.)
11
delegation” of control to the clinical affiliates. The evidence, however, refutes
Steshenko’s allegations of any right of control by the District, whether direct, indirect, or
through an agency relationship with the clinical affiliates.
To begin, the “Education Agreement” between the District and Natividad, by its
plain terms, “shall not be construed to create the relationship of agent, servant, employee,
partnership, joint venture or association between the SCHOOL and the CLINICAL
FACILITY, but is rather an agreement between independent contractors for the sole
purpose of establishing a clinical experience component to the SCHOOL’S Program of
instruction.”11 The agreement further provides that the number of students placed at
Natividad requires Natividad’s agreement, that Natividad may decline to work with any
District student, and that a Natividad employee “directly supervises the Student in his/her
clinical practicum.”
The District’s contracts with CHOMP and Spectra likewise demonstrate the
District’s inability to control the ultimate placement of students with the laboratories.12
The CHOMP agreement provides that “at any time and for any reason or no reason,
[CHOMP] may direct that the trainee(s) be removed from training within the facilities.”
In a similar vein, the Spectra agreement states that Spectra “shall have the authority to
approve or disapprove any and all aspects of the Program as conducted pursuant to this
Agreement . . . .” These provisions demonstrate that, even if the District had some ability
to select the pool of candidates, or even one specific candidate, to send to the clinical
11
Steshenko attached the Natividad contract to the operative complaint as
typifying the District’s agreements with clinical affiliates.
12
At oral argument, the parties agreed to our taking judicial notice of these
contracts, given their relevance; there is no factual dispute that the documents—proffered
by Steshenko—are genuine and accurate. (Evid. Code, § 452, subd. (h); Chacon v. Union
Pacific Railroad (2020) 56 Cal.App.5th 565, 572.)
12
affiliates, the affiliates had the final say in selecting students for placement in their
facilities.
Moreover, the student handbook, which Steshenko received and acknowledged
before interviewing with any clinical affiliate, also made clear that the clinical affiliates
ultimately decide which of the MLT students to accept for placement—selection for the
externship requirement was “competitive,” students needed to “interview with clinical
affiliates for clinical training positions and are not guaranteed a position.” Buchner
herself, on welcoming the students to “the externship stage,” warned them: “Be aware
that a particular site may want a background check, drug testing, proof of vaccination
and/or other information for that particular site. . . . They may require different shift
work, for example[,] Livermore does require most of your training [in the] evening, a rare
graveyard and some days.”
Beyond these characterizations of the relationship between the District and the
clinical affiliates, the conduct of the parties further confirms the affiliates’ independent
control over selection from among the District’s admitted MLT students. Upon learning
of a clinical placement opportunity, Buchner notified all eligible MLT students of the
opening and the laboratory’s application process. She specifically counseled Steshenko
“that Natividad and CHOMP are looking to ‘take’ people with the recent ‘customer
service’ experience; therefore [he] must emphasize that experience in [his] resume.” She
provided remedial assistance to those students who encountered difficulty securing a
clinical placement. Buchner attempted to contact each of the laboratories that rejected
Steshenko for placement “to solicit feedback . . . regarding his interviews.” For example,
upon learning that CHOMP was declining to offer Steshenko a placement, she wrote the
CHOMP laboratory supervisor, noting CHOMP’s “unfortunate” decision and asking
about Steshenko’s interview “and how he can improve his efforts in the future . . . .”
While the program director would work with students to optimize their prospects for
placement, the clinics themselves would decide whether to choose a student for an
13
externship and there was a possibility a student might be “unable to secure clinical
training.”
For his part, Steshenko, on first requesting the District refer him for a clinical
placement, acknowledged in writing the clinical affiliates’ interview requirement and the
associated risk that he might be denied his preferred placement. And upon being
informed by the District of available clinical openings, he duly sent his resume and
application materials directly to the clinical laboratories—CHOMP, Natividad, and later
Spectra—each of which responded by inviting him to interview. He sent a thank-you
note to his Natividad interviewers pending news of their decision, which demonstrates
acknowledgement of Natividad’s control over his selection for the externship.
Notwithstanding Steshenko’s objections that these facts are “nonsensical,”
“immaterial,” “irrelevant,” “improper and unintelligible,” “false and incompetent,” or
“omit material information,” he raises no triable issue of material fact to counter the
District’s prima facie showing that it had no employment relationship with him, whether
directly or via agents it controlled.
ii. Training program leading to employment
Steshenko alternatively predicates his claim of FEHA liability13 on the allegation
that the District itself discriminated against him by refusing to select him for “a training
program leading to employment.” (§ 12940, subd. (a).) Steshenko relies on the District’s
reference to students in the MLT program as “trainees” and defendant Ranck’s statement
that the intent of the MLT program is to prepare students for employment in medical,
clinical, research and public health laboratories. This theory is unavailing on the record
before us.
13
To the extent Steshenko’s first cause of action had included an allegation against
the individual defendants under section 12940, subdivision (c), the trial court sustained
the individual defendants’ demurrer to this cause of action.
14
The District provided evidence that Steshenko was a student in the MLT program,
which was accredited by the National Accrediting Agency for Clinical Laboratory
Sciences and approved by the Laboratory Field Services unit of the California
Department of Health Services, and therefore intended to satisfy the educational
requirement for licensure and to prepare students for the written examination likewise
required for licensure. (See Bus. & Prof. Code, § 1260.3; see also Cal. Code Regs.,
tit. 17, § 1030.6, subd. (a)(2)(A).) The student handbook sets forth the program’s goals,
one of which is to provide students with instruction and training to meet employment
needs of “the local health care industry and surrounding communities,” not the District
itself. Further, the contracts between the District and Natividad, CHOMP, and Spectra,
respectively, specifically disclaim any employment relationship between the students and
the affiliates, and the Natividad contract expressly disavows any intention to provide any
“offer or obligation of permanent employment.”
Any vocational or professional education program is “intended” to prepare (or
“train”) students for employment. To construe “leading to employment” so broadly
would render that language superfluous, in violation of the contrary canon of statutory
construction. (See Reno v. Baird (1998) 18 Cal.4th 640, 658 [“ ‘[c]ourts should give
meaning to every word of a statute if possible, and should avoid a construction making
any word surplusage’ ”]; see Burks v. Kaiser Foundation Health Plan, Inc. (2008) 160
Cal.App.4th 1021, 1027.) Here, the contingencies necessary for a student to parlay MLT
program completion into eventual employment as a medical laboratory technician are not
insignificant.14 Instead, completion of an approved MLT program is just one requirement
for licensure as a medical laboratory technician; successful completion of a written
14
We have no occasion to address whether an MLT program administered by a
licensed clinical laboratory—rather than an accredited college or university that has no
medical laboratory of its own—might constitute a “training program leading to
employment.” (See, e.g., Cal. Code Regs., tit. 17, § 1035.1, subd. (a)(1).)
15
examination is also necessary. (See Cal. Code Regs., tit. 17, § 1035.1, subd. (a)(3).)
Licensure, in turn, is a requirement to perform the duties of a medical laboratory
technician, including supervision of certified phlebotomy technicians at the level
Steshenko was upon admission to the MLT program. But licensure does not ensure
employment.15
Steshenko raised no triable issue of material fact on this issue, himself asserting
that he had no intention of applying for employment with any clinical affiliate. To the
extent Steshenko argues that the MLT program’s requirement of clinical education
renders it an unlawful apprenticeship (Lab. Code, § 3075 et seq. & Cal. Code Regs., tit. 8,
§ 205 et seq.) or internship (Ed. Code, § 79140 et seq.), he ignores the very specific
regulatory scheme to which training and licensure of medical laboratory technicians are
subject. (See, e.g., Cal. Code Regs., tit. 17, §§ 1035.1 [referring to MLT program
participants as “students”] & 1030.6.)
b. Section 11135 and Education Code Section 66292
Although we understand Steshenko’s age discrimination cause of action to rely
principally on FEHA, Steshenko in pleading this first cause of action further cited
section 11135 and Education Code section 66292, alleging that on August 10, 2017 he
filed an administrative claim with De Anza College for age discrimination and unlawful
operation of the MLT program, and that the District failed to remedy the discrimination.
Because “De Anza College is a part of California government directly funded by the
state” and is further part of California’s public education system, Steshenko appears to
assert that his claim of age discrimination is independently cognizable—against the
District, not the clinical affiliates—under section 11135’s prohibition on discrimination
15
As further stated in the student handbook, completion of both the classroom and
clinical components of the MLT program entitles “a student to sit for a national Medical
Laboratory Technician certification examination.”
16
by state-run or state-funded programs and the Equity in Higher Education Act (Ed. Code,
§ 66250 et seq.) (the Act).
Under these anti-discrimination statutes, the District had the obligation not to act
with “deliberate indifference” to any known act of discrimination. (See Donovan, supra,
167 Cal.App.4th at p. 605.) The evidence in the record is sufficient for the District to
meet its initial burden of demonstrating that it did not act with deliberate indifference to
Steshenko’s complaint of age discrimination. There is evidence that Buchner offered to
provide Steshenko with interview coaching, which he rejected, and also continued to
present Steshenko with opportunities to interview at additional placement sites, which he
also rejected. Further, the evidence shows that in response to Steshenko’s complaint,
Ranck communicated to Steshenko that his complaint was being taken seriously and that
he should follow up with the Dean of Student Development to whom his complaint had
been elevated. In addition to these actions taken by the District, we observe that the
feedback received regarding Steshenko’s interviews, his reluctance to prepare more
thoroughly for them, and his complaints about performing phlebotomy tasks as well as
unpaid labor in the form of an externship would have given the District reason to temper
its response based on the belief that age discrimination might not be the actual cause for
Steshenko’s inability to get a placement. Taken together, this evidence shifts the burden
to Steshenko to raise a triable issue of material fact as to the adequacy of the District’s
response, which he fails to do.
i. Applicable Legal Principles
Section 11135, subdivision (a) states, in relevant part: “No person in the State of
California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic
group identification, age, mental disability, physical disability, medical condition, genetic
information, marital status, or sexual orientation, be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to discrimination under, any program
or activity that is conducted, operated, or administered by the state or by any state
17
agency, is funded directly by the state, or receives any financial assistance from the
state.” Where a state agency “has reasonable cause to believe that a contractor . . . has
violated the provisions of Section 11135 . . . , the head of the state agency, or that
person’s designee, shall notify the contractor . . . of such violation and shall submit a
complaint detailing the alleged violations to the Civil Rights Department for investigation
and determination” pursuant to section 12960 et seq. (§ 11136.)
As a threshold matter, we reject the District’s contention that section 11135 does
not apply because the clinical component of the MLT program was not funded by the
state. (See Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th
1116, 1130 [concluding that state funding to a city’s local enforcement agency for its
waste management programs did not constitute state support to the entire city]; but see id.
at p. 1136 (dis. opn. of Rubin, J.) [citing legislative mandate to construe section 11135
broadly].) Even under the District’s construction of the statute, the District has not met
its initial burden of production on this issue: the District’s separate statement and other
evidence fail to address in any way whether the MLT program’s required clinical training
receives state funding.
We take note that the gravamen of Steshenko’s claim is that the clinical affiliates
were “acting on behalf of De Anza College” in their discrimination and that the District
continued to require Steshenko’s uncompensated employment via the clinical practice
component of the MLT program, rather than accept as fact Steshenko’s allegations of
discrimination and enable him to graduate without the burden of the unpaid clinical
practicum work. Although not dispositive, we observe that while the statutory scheme
that includes section 11135 creates a private right of action, it does not contemplate an
action for damages (see § 11139 [private right of action limited to equitable relief]), nor
does it supply authority for Steshenko’s position that the District must permit him to
graduate without completion of the clinical practice requirements imposed as a matter of
state regulation. (See, e.g., Collins v. Thurmond (2019) 41 Cal.App.5th 879, 905 [private
18
litigants’ relief “would only require the state-level defendants to ‘submit a complaint
detailing the alleged violations . . . for investigation and determination’ ”]; see also Cal.
Code Regs., tit. 17, § 1035.1, subd. (b)(2) [requiring “at least 26 weeks, consisting of at
least 1040 hours, of instruction and practical experience,” as well as didactic training and
practical training in phlebotomy].)
Like section 11135 et seq. in the state funding context, the Act prohibits invidious
discrimination in the educational context and establishes an administrative scheme for
enforcement of the prohibition. (Ed. Code, §§ 66290, 66292.3.) Also like section 11135
et seq., the Act establishes an administrative enforcement mechanism: as is pertinent
here, the governing board of a community college district has “primary responsibility”
for ensuring compliance. (Ed. Code, §§ 66292.) Unlike section 11139, however, the
private right of action established by the Act is not limited to equitable relief. (See Ed.
Code, § 66292.4; Donovan, supra, 167 Cal.App.4th at p. 595.)
In Donovan, the court analogized the California Education Code’s
antidiscrimination law to Title IX of the federal Education Amendments of 1972,
20 U.S.C. § 1681 et seq. as interpreted by the United States Supreme Court and rejected
plaintiffs’ urging to follow FEHA’s imposition of liability against an employer for the
wrongful acts of a third party based on the doctrine of respondeat superior. (Donovan,
supra, 167 Cal.App.4th at pp. 604-605.) Although Donovan addressed sexual orientation
harassment under another antidiscrimination provision of the Education Code,
section 220 (applicable in general education), we consider its well-reasoned analysis
applicable here. For our purposes, Education Code sections 200 et seq. and 66290 et seq.
are largely parallel in their structure, their administrative enforcement focus, their
language establishing the private right of action, and the legislative declaration of
purpose and intended construction. (Compare Ed. Code, § 66251 with id., § 200;
compare id., § 66252, subd. (g) with id., § 201, subd. (g); compare id., § 66292.3 with id.,
19
§ 220.) Consistent with Donovan, we see no basis to impose liability on the District for
the acts of the clinical affiliates on the basis of respondeat superior.
Contrary to the District’s contention, however, Donovan’s refusal to impose
liability on a school for the discriminatory acts of third parties does not end our inquiry.
It is well established that the pleadings “ ‘set the boundaries of the issues to be resolved
at summary judgment.’ ” (Conroy v. Regents of University of California (2009) 45
Cal.4th 1244, 1250; see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 381 (FPI Development) [the pleadings serve “as the outer measure of materiality in
a summary judgment proceeding”].)
Steshenko’s age discrimination cause of action seeks to hold the District liable not
only on an agency theory but on the theory that it had “conceived, created and operat[ed]
the system that discriminates against the students on the basis of their age in access to
their training program, and predicates graduation from the program upon the student’s
age[,]” if only passively. We look to whether liability for money damages under the
Education Code’s antidiscrimination provisions may properly be “based on [a publicly
funded school’s] own misconduct, determined by its own deliberate indifference to
known acts” of prohibited discrimination. (Donovan, supra, 167 Cal.App.4th at p. 605.)
As in Donovan, we must consider whether the District is liable for misconduct of its own,
once on actual notice of Steshenko’s claim of discrimination.16
The Donovan court applied the deliberate indifference standard to Education Code
section 220. (Donovan, supra, 167 Cal.App.4th at p. 605.) We have already noted the
similarities between that statute and the Education Code provisions at issue here. We
16
To the extent the trial court granted summary judgment of Steshenko’s age
discrimination claims in reliance on defendant’s state-funding assertions and the absence
of an agency relationship between the District and the clinical affiliates, we invited the
parties to address in supplemental briefing the application of Donovan and the standard
of deliberate indifference. (See Code Civ. Proc., § 437c, subd. (m)(2).)
20
also note that Education Code section 220 is intended to be “interpreted as consistent”
with section 11135. (Ed. Code, § 201, subd. (g).) In a similar vein, we observe that the
deliberate indifference standard applies to the Rehabilitation Act, and “[s]ection 11135 ‘is
identical to the Rehabilitation Act except that the entity must receive State financial
assistance rather than Federal financial assistance.’ ” (Bassilios v. City of Torrance, CA
(C.D. Cal. 2015) 166 F.Supp.3d 1061, 1084; Y.G. v. Riverside Unified School Dist. (C.D.
Cal. 2011) 774 F.Supp.2d 1055, 1065, fn. 6; D.K. ex rel. G.M. v. Solano County Office of
Educ. (E.D. Cal. 2009) 667 F.Supp.2d 1184, 1190; T.B. ex rel. Brenneise v. San Diego
Unified School Dist. (9th Cir. 2015) 806 F.3d 451, 466 [“To establish a claim for
damages under the Rehabilitation Act and [Americans with Disabilities Act (ADA)], a
plaintiff must prove that the defendant intended to discriminate on the basis of his or her
disability, or was deliberately indifferent to the disability.”]; Meister v. City of
Hawthorne (C.D. Cal. 2015) 2015 WL 12762058, at *9, 11 [stating that “[b]ecause Title
II of the ADA and Section 504 of the Rehabilitation Act are nearly identical, courts have
determined that claims brought under the ADA and Rehabilitation Act should be
analyzed together and case law interpreting each statute is applicable to both” and also
that because section 11135, subdivision (a) “parallel[s] Title II of the ADA and Section
504 of the Rehabilitation Act, the same analysis applies”].) We therefore conclude the
deliberate indifference standard applies to both section 11135 and the Act and we address
whether the District has met its burden on summary judgment of conclusively negating
deliberate indifference.
“[D]eliberate indifference is a ‘ “very high standard.” ’ [Citation.] Actions that in
hindsight are ‘unfortunate’ or even ‘imprudent’ will not suffice. [Citation.]” (Donovan,
supra, 167 Cal.App.4th at p. 610.) In the context of student-on-student harassment,
where the school has disciplinary authority over the student wrongdoer, “[t]he deliberate
21
indifference standard ensures that the disciplinary actions of school officials will not be
second-guessed by the courts.”17 (Id. at p. 610.)
ii. Absence of “Deliberate Indifference”
The District’s insistence that it did not itself discriminate would not, without more,
adequately respond to Steshenko’s contention that the District itself engaged in
wrongdoing by not merely tolerating the clinical affiliates’ alleged discrimination but
enabling it to cause him the injury of not timely graduating. But neither section 11135 et
seq. nor the Act obligates the District to relieve students of established educational
requirements, particularly where doing so would jeopardize the MLT program’s
eligibility to train MLT students for certification under California Code of Regulations,
title 17, section 1035.1, which mandates the practical training and its content and
minimum hours, including minimum required phlebotomy labor. We do not construe the
“ ‘ “very high standard” ’ ” of deliberate indifference (Donovan, supra, 167 Cal.App.4th
at p. 610) to be satisfied by the District’s mere acceptance of the limits of its contractual
authority, on the one hand, and the demands of state approval, on the other.
On this record, the District has shown it did not ignore Steshenko’s discrimination
complaint. Ranck told him his complaint had been elevated to the Dean of Student
Development and instructed him to contact that dean as the District representative
responsible for these issues. Buchner gave him tactical advice for tailoring his
presentation to the clinical sites and offered him interview coaching, while continuing to
forward notices of clinical placements as they emerged, in spite of his mounting
exasperation. We recognize that these measures do not substantively redress alleged
discrimination at its source, and we express no opinion on the factual merits of
Steshenko’s allegations of age discrimination by CHOMP, Natividad, and Spectra,
17
In another context, it has been noted that “[m]ere negligence is insufficient to
meet this standard which describes a state of mind more blameworthy.” (Lucas v. County
of Los Angeles (1996) 47 Cal.App.4th 277, 287.)
22
because our focus here is not on third-party conduct but the existence or not of a triable
issue of material fact as to whether the District was deliberately indifferent to the
allegations of age discrimination. And through that lens, we are obliged to consider the
constraints—contractual and regulatory—on the District’s options.
That the District did not accede to Steshenko’s demands—in July 2017 for
“alternative training,” in August 2017 for “an immediate assignment to a clinical agency
within a commuting distance from my residence,” and in September 2017 for immediate
resolution of his discrimination complaint—does not reflect deliberate indifference here.
The record establishes that the District—unlike the school principal and, by extension,
the school district in Donovan—lacked the means to unilaterally override a clinical
affiliate’s refusal of an MLT student. Notwithstanding Steshenko’s interpretation of
decontextualized language from the District’s contracts with the affiliates, we see nothing
in the operative language of the Natividad contract in the record—which Steshenko
characterizes as representative—that empowers the District to compel an affiliate to
accept an MLT student into their laboratory facilities and patient care, despite that
affiliate’s objection, however ill-considered or invidious the true reason for the objection
might be. To be sure, the District could treat a clinical affiliate’s alleged discrimination
as a violation of the contract’s nondiscrimination clause, but Steshenko does not explain
how the District would have been entitled to extrajudicial specific performance, as
opposed to merely reporting the affiliate to the Civil Rights Department under
section 11135 et seq. once it had “reasonable cause to believe” that Steshenko’s
allegations of age discrimination had merit.18
18
We express no opinion on the adequacy of the District’s administrative
compliance, where the record does not make clear what action the District took after
Ranck advised Steshenko to contact the dean responsible for responding to administrative
complaints of discrimination. But we note, as did the Donovan court, that the United
States Supreme Court in the analogous Title IX context has held that a district’s lack of
administrative compliance is not privately actionable under the legislative scheme, but
23
We note as well that the record of Steshenko’s own conduct—his resistance to
performing phlebotomy tasks;19 his indignation at the lack of compensation; his
concurrence with the central aspects of Lee’s account of a mutually unsatisfying
interview; his initial statement that he would accept a placement in Santa Clara County
followed by his refusal to apply for an available placement at Stanford—also gave the
District reason to proceed cautiously when Steshenko only later added the claim of age
discrimination to his e-mail tally of grievances suffered in his interviews at CHOMP and
Natividad. Evidence presented by the District supports its contention that it was
Steshenko’s uncompromising approach to the interview process that might have created
difficulties that he did not or would not fully acknowledge; at the same time, the District
had reason to know that Steshenko’s approximate age would have been apparent to the
clinical affiliates before the affiliates invited Steshenko to interview.
Taken together, the District’s evidence is sufficient for the District to meet its
burden of showing that it was not deliberately indifferent to Steshenko’s stated belief that
his rejection by clinical affiliates was due to his age. It escalated his administrative
complaint to the relevant dean; it attempted to assist him in marketing himself to
interviewers; it continued to forward information on potential placements, however
unattractive, until Steshenko expressed that no unpaid placement would be acceptable to
him.
Steshenko fails to raise a triable issue of material fact as to deliberate indifference.
In his opposing declaration, he states that he “did not agree to donate [his] labor to the
subject to administrative enforcement by the Department of Education. (Donovan, supra,
167 Cal.App.4th at p. 601.)
19
As a matter of law, the MLT program was required not only to provide practical
training in phlebotomy (compare Cal. Code Regs., tit. 17 § 1035.1, subd. (b)(4)(A) with
id., § 1035(f)) but to prepare its graduates for eventual employment that could include
both phlebotomy and supervision of certified phlebotomy technicians (see Cal. Code
Regs., tit. 17, § 1030.6, subd. (b)(2) & (b)(5)).
24
external corporations in exchange for … permission to enroll into a college course.” He
complains about the demand placed on him “to perform . . . unpaid service work as a
phlebotomist for the benefit of Natividad.” Steshenko’s indignation at the nature and
extent of the clinical requirements as allegedly interpreted by the clinical affiliates—
together with his confirmation that phlebotomy was the “breaker” for both the CHOMP
and Natividad interviews—could reasonably cause the District to conclude that it was not
Steshenko’s age that resulted in his rejections for placement in an externship.
2. Breach of Contract
Steshenko alleged in the sixth cause of action that an implied contract obligated
defendants to ensure his “timely graduation from their MLT program in consideration of
[Steshenko’s] satisfactory performance, payment of the required fees and compliance
with the disciplinary requirements.” He further alleged: “Any and all legitimate
agreements and contracts between defendants and the external entities, which provide
their facilities for such courses, are included in the contract between plaintiff and
defendants.” Defendants argue that any contractual duty fell short of a guarantee that
Steshenko would graduate; they further contend that defendants did not breach any
contractual duty owed him. We agree with the District, which met its initial burden by
presenting evidence that graduation was contingent on completion of MLT program
requirements and that there was no contrary implied contract. Steshenko fails to raise a
triable issue of material fact regarding the existence of an implied contract of the type he
alleged.
“A contract is either express or implied. (Civ. Code, § 1619.) The terms of an
express contract are stated in words. (Civ. Code, § 1620.) The existence and terms of an
implied contract are manifested by conduct. (Civ. Code, § 1621.) The distinction reflects
no difference in legal effect but merely in the mode of manifesting assent. (1 Witkin,
Summary of Cal. Law (10th ed. 2005) Contracts, § 102, p. 144.) Accordingly, a contract
implied in fact ‘consists of obligations arising from a mutual agreement and intent to
25
promise where the agreement and promise have not been expressed in words.’ ” (Retired
Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171,
1178.)
We agree that, generally speaking, “[t]he basic legal relation between a student
and a private university or college is contractual in nature.” (Zumbrun v. University of
Southern California (1972) 25 Cal.App.3d 1, 10 (Zumbrun).) It has therefore been held
that in certain circumstances a contract could exist that obligates a private university to
deliver the anticipated number of lectures and normal type of final examination in
consideration of the tuition and fees for a course paid by the plaintiff. (Id. at pp. 10-11.)
As we have discussed at II.A.1.a., ante, however, the District’s evidence of the
parties’ conduct established there were no guarantees as to the availability of clinical
placements with third parties or the timing of those opportunities. Nor could their
conduct establish obligations exceeding what is described in the student handbook. The
language of the student handbook makes clear that placement with a clinical affiliate was
not guaranteed, that students needed to interview, and that the selection of students for
clinical training would be made by the clinics themselves. The handbook also provided
that students who are unable to secure clinical training within two years would no longer
be eligible to compete for placement. Buchner sent a welcome e-mail in which she told
students that the handbook “explains the program and the externship,” and that “there is
an interview process for the externship so I highly recommend that you get your resume
and interview skills in order,” thereby reinforcing the statements in the handbook
regarding the externship requirement. This evidence shows the District’s expectation that
students complete an externship as a requirement for graduation from the program.
Steshenko presented no contrary evidence of conduct by the parties from which
any implied contract would arise or run counter to the expectations demonstrated by the
District’s evidence. Indeed, in his appellate briefing, he disclaims the implied contract
theory and asserts that his sixth cause of action is “not for breach of an implied contract”
26
and that “the implied contract theories . . . are fully irrelevant to the instant case in view
of the lately discovered evidence of respondents’ obligations under the operation of law
and their express contract with appellant.” (Italics added.)
In his opening brief, Steshenko would have us rely on the college catalog as
defining the legal and contractual obligations of the parties, but he identifies nothing in
the catalog or the record that would suggest that the District ever implied an offer to
provide the state-mandated clinical experience other than in a clinical laboratory, or to
guarantee a particular location for that clinical experience. Moreover, because he has
alleged in the operative pleading only an implied contract, the express terms of the
college catalog are not relevant to whether or not he can maintain this cause of action.20
(FPI Development, supra, 231 Cal.App.3d at p. 381 [the pleadings delimit the scope of
the issues in a motion for summary judgment].) Instead, the District’s obligations under
an implied contract theory must arise from evidence of the parties’ conduct.
Notwithstanding the existence of a general contractual relationship between Steshenko
and the District, nothing in Steshenko’s allegations would, if true, establish that
defendants were obligated to ensure his timely graduation despite his objections to the
clinical practice requirement.
We note that although Steshenko asserts the contracts between the District and the
clinical laboratories were included in the contract between him and defendants, he does
not elaborate. He states the external contracts were established for the benefit of the
students as intended beneficiaries but provides no reasoned argument or citation to
authority for this point. “When an appellant asserts a point but fails to support it with
reasoned argument and citations to authority, we treat the point as forfeited.” (Tellez v.
Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.) And the one such contract
20
Likewise, plaintiff’s contention that defendants breached their contracts with
their clinical affiliates is not part of the cause of action and is not relevant.
27
he has attached in support of the complaint expressly provides: “This Agreement is not
intended to, and shall not be construed to, create rights or benefits of any kind or type in
any third parties such as those students who participate in the clinical experience program
except and unless specifically set forth herein.” Moreover, the only contract actually
addressed in his breach of contract cause of action is the alleged implied contract between
him and defendants.21
Chevlin v. Los Angeles Community College Dist. (1989) 212 Cal.App.3d 382(Chevlin) is instructive. In Chevlin, the plaintiff was a student in a nuclear medicine
technology program at Los Angeles City College. (Id. at p. 386.) Graduates of the two-
year program were eligible to sit for a national registry exam required for employment in
the field, but were first required to complete the final course in the program: a one-year,
paid internship in the nuclear medicine department of a local hospital. (Ibid.)
Although the plaintiff in Chevlin was able to begin her clinical studies at the
hospital, she was eventually moved to a different medical center, and then terminated
from both the internship and the program. (Chevlin, supra, 212 Cal.App.3d at p. 387.) In
her lawsuit, the plaintiff sought money damages for breach of contract, negligence,
fraudulent concealment, inducing breach of contract, interference with prospective
business advantage, and violation of federal civil rights. (Id. at p. 388.)
The Chevlin court stated that “the law refuses to hold a public school system liable
to a student who claims he was inadequately educated” and that, “[w]hether framed as a
negligence or breach of contract theory the harm which [the plaintiff sought] to redress
[was] the same.” (Chevlin, supra, 212 Cal.App.3d at pp. 389-390.) It distinguished
Zumbrun, supra, 25 Cal.App.3d 1, which “involved a private university, and the plaintiff
there was only permitted to seek recovery for tuition and other fees,” as opposed to the
21
Plaintiff states that he attempted to amend the complaint, but his request was
denied. His motion to amend the complaint is not before us on appeal.
28
plaintiff in Chevlin, who sought to recover damages for her inability to find employment
as a nuclear medicine technologist. (Chevlin, supra, at p. 390.)
Steshenko’s claim for breach of contract closely resembles that discussed in
Chevlin, supra, 212 Cal.App.3d 382. Similar to the plaintiff in Chevlin, Steshenko seeks
to recover for his inability to obtain required clinical experience to graduate from his
school program, and his inability to enter the job market.
We conclude that the District has met its initial burden by presenting evidence that
no implied contract existed, and Steshenko fails to provide evidence sufficient to raise a
triable issue of material fact in this regard.22
3. Intentional Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional distress
are: “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct . . . . ”
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.’ ” (Christensen v. Superior Court (1991) 54 Cal.3d
868, 903.) “In evaluating whether the defendant’s conduct was outrageous, it is ‘not . . .
enough that the defendant has acted with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or even that his conduct has been
22
Even if we were to conclude an implied contract existed under which the
District was obligated to assure Steshenko’s graduation from the program, there is
evidence that the District offered to help Steshenko with the interview process and
provide other opportunities to apply for an externship, but he refused the offers and
declined to continue interviewing at any additional clinical laboratories after his third
interview. We therefore would conclude that the District met its initial burden to show it
did not breach its obligation under the purported implied contract and that Steshenko has
failed to raise a triable issue of material fact as to the alleged breach.
29
characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.’ ” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)
Steshenko does not specify in his operative complaint what conduct forms the
basis for this cause of action, alleging only that the “foregoing conduct of defendants is
extreme and outrageous.” In their briefs, however, the parties agree on the conduct at
issue—the denial of enrollment in the clinical practicum courses requiring acceptance
into a clinical affiliate’s laboratory, and the resulting denial of graduation. What they
dispute is whether defendants acted in an extreme and outrageous manner and, for our
purposes, whether defendants have met their burden of negating that element of
Steshenko’s claim.
As we have discussed, the District presented evidence that acceptance by a clinical
affiliate was a precondition to the clinical practicum, that completion of the practicum
courses was in turn a requirement of the MLT program, and that students were informed
of these requirements both by the student handbook and by Buchner. The District also
presented evidence of its offers to help Steshenko navigate the selection process and to
identify alternative clinical placements. The District met its initial burden with this
evidence because it demonstrates that denial of graduation was an expected consequence
(i.e., neither extreme nor outrageous) of a student’s failure to complete the required
clinical practicum courses, which depended on acceptance into a clinical placement with
an affiliate. The evidence also shows that the District tried to mitigate Steshenko’s
difficulties with the clinical selection process, not that it denied his requests with the
intent of causing any distress, severe or otherwise.
Steshenko alleged that defendants denied him enrollment in the practicum courses
due to his age but, as we concluded in connection with the age discrimination cause of
30
action, the District neither directly discriminated against Steshenko (through the clinical
affiliates) nor acted with deliberate indifference to his claims against the clinical
affiliates. Steshenko has not provided evidence that would raise a triable issue of
material fact as to these issues. Even assuming the District could have done more to
intercede on Steshenko’s behalf with his preferred clinical affiliates, we are unable to
conclude that any inadequacy in its efforts was extreme or outrageous.
Steshenko contends defendants’ conduct was outrageous because they knew that
he was undergoing professional retraining after a protracted period of unemployment and
his ability to make a living depended on completion of that training; he argues, therefore,
that their denial of “his graduation, his professional license and his ability to make [a]
living” in addition to “the baseless and nonsensical allegation that [plaintiff’s] job
interviewing skills are deficient” was “extreme and outrageous conduct.”
In Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 534
(Ankeny), the plaintiff’s employer allegedly deprived him of stewardship in his union and
transferred him from one job to another; he was also subject to “personal verbal insults”
by his fellow workers; he was passed over for promotion, assigned to work tasks not
appropriate to his labor grade, and ultimately terminated. The Ankeny court concluded
these allegations were insufficient to show outrageous conduct on the part of the
defendants. (Id. at p. 536.)
Steshenko’s claims as to the defendants’ conduct—particularly given our
conclusions as to his other causes of action—are no more extreme or outrageous than
those experienced by the plaintiff in Ankeny, supra, 88 Cal.App.3d 531. To be sure,
defendants did not relieve him of the hardship he claims as a result of age discrimination
he alleged three clinical affiliates subjected him to. But under the terms of the state
regulatory scheme for approving MLT programs, defendants had no legal authority to
waive the requirement of practical training; defendants had no obligation under any
agreement with Steshenko to ensure that his clinical opportunities were convenient to his
31
residence or to otherwise guarantee him placement with his preferred choice among the
District’s identified clinical affiliates. Under the terms of the District’s contract with the
clinical affiliates, defendants had no authority to override a clinical affiliate’s veto of a
particular student. Accordingly, even if defendants could be found to have engaged in
wrongdoing, the conduct Steshenko complains of does not rise to the level of “extreme
and outrageous.”23
B. Plaintiff’s Motion for a New Trial
“Because resolution of a summary judgment motion involves the trial of an issue
of law, a decision granting a motion for summary judgment may be challenged by a
motion for new trial.” (Scott v. Farrar (1983) 139 Cal.App.3d 462, 467.) In moving for
a new trial, Steshenko invoked all seven potential grounds for such a motion as set forth
in Code of Civil Procedure section 657. In his memorandum of points and authorities,
however, he argued only that the trial court made errors and that defendants’ motion for
summary judgment was “granted without any valid factual or legal basis.”24 On appeal,
he only contends that defendants’ opposition to the motion was untimely and should not
have been considered and that the trial court’s decision is not supported by the law or any
evidence.
At bottom, Steshenko’s motion for a new trial sought reconsideration of the order
granting summary judgment, on the sole ground that summary judgment remained as
wrong as Steshenko had originally argued. The arguments are encompassed by the
appeal of the order on the motion for summary judgment, which we have concluded
23
Defendants’ alleged breach of contract regardless could not support a cause of
action for intentional infliction of emotional distress. (See Freeman & Mills, Inc. v.
Belcher Oil Co. (1995) 11 Cal.4th 85, 102 [imposing a general rule precluding tort
recovery for noninsurance contract breach in the absence of a violation of an independent
duty arising from principles of tort law].)
24
Plaintiff also claimed the trial judge was biased and should be reassigned. This
is not a ground for a new trial.
32
should be affirmed. We therefore discern no abuse of discretion in the trial court’s denial
of the new trial motion.
III. DISPOSITION
The trial court’s orders are affirmed. Costs on appeal are awarded to defendants.
33
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
Steshenko v. Foothill-DeAnza Community College
H049871