Jason Tecza v. University of San Francisco

FILED
NOT FOR PUBLICATION JUN 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JASON TECZA, No. 10-16270
Plaintiff - Appellant, D.C. No. 3:09-cv-03808-RS
v.
MEMORANDUM *
UNIVERSITY OF SAN FRANCISCO,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted June 12, 2013
San Francisco, California
Before: BERZON and BYBEE, Circuit Judges, and MARSHALL, Senior District
Judge.**
Jason Tecza (“Tecza”) appeals the district court’s dismissal of his complaint
against the University of San Francisco (“USF”) for failure to state a claim under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. §
1291. We affirm in part, and reverse and remand in part.
We review de novo a dismissal for failure to state a claim pursuant to Rule
12(b)(6). Coal. for ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501
(9th Cir. 2010). Where, as here, the complaint was drafted by a pro se plaintiff, we
construe the complaint liberally. Wolfe v. Strankman, 392 F.3d 358, 362
(9th Cir. 2004). In addition, where claims involve questions of state law, we are
“bound by the decision of the highest state court,” and, “[i]n the absence of such a
decision, [we] must predict how the highest state court would decide the issue
using intermediate appellate court decisions, decisions from other jurisdictions,
statutes, treatises, and restatements as guidance.” In re Kirkland, 915 F.2d 1236,
1238–39 (9th Cir. 1990).
1. With regard to Tecza’s negligence claim, we agree with the district court
that Tecza failed to allege sufficient facts showing that USF owed him a duty of
care. See J’Aire Corp. v. Gregory, 598 P.2d 60, 62 (Cal. 1979). Tecza has not
shown that the California Supreme Court would recognize a common-law duty of
care here, see O'Neil v. Crane Co., 266 P.3d 987, 1006 (Cal. 2012), and to the
extent Tecza argues that USF had a duty based on its contractual relationship with
him, any such duty is better enforced through Tecza’s claim for breach of contract,
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Erlich v. Menezes, 981 P.2d 978, 983–84 (Cal. 1999); see also Aas v. Super. Ct., 12
P.3d 1125, 1135 (Cal. 2000). Accordingly, we affirm the district court’s dismissal
of Tecza’s negligence claim.
2. We also agree that Tecza failed to state a claim under California’s Unfair
Competition Law. See Cal. Bus. & Prof. Code § 17200 et seq. Even assuming that
Tecza’s complaint should be read to allege that this claim is based on USF’s
violation of policies in its handbooks, Tecza has failed to allege any actions by
USF that would constitute a business practice. Cf. Barquis v. Merchs. Collection
Ass’n of Oakland, Inc., 496 P.2d 817, 831 (Cal. 1972) (in bank). Accordingly, we
affirm the district court’s dismissal of Tecza’s California Unfair Competition Law
claim.
3. We conclude, however, that the district court erred in dismissing Tecza’s
contract claim. Under California law, to assert a claim for breach of contract a
plaintiff must show: “(1) a contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) damage to plaintiff.” Walsh v. W.
Valley Mission Cmty. Coll. Dist., 78 Cal. Rptr. 2d. 725, 733 (Ct. App. 1998).
The district court concluded that Tecza failed to allege the first element—the
existence of a contract. But USF effectively conceded at oral argument that such a
contract existed. And, in any event, the California Supreme Court likely would
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conclude that a general contractual relationship existed between Tecza and USF,
and that the contract included the terms Tecza quoted out of USF’s Student
Disability Services Handbook, including USF’s promise to keep all information
pertaining to Tecza’s disability confidential. See Kashmiri v. Regents of Univ. of
Cal., 67 Cal. Rptr. 3d 635, 646–47 (Ct. App. 2007); Zumbrun v. Univ. of S. Cal.,
101 Cal. Rptr. 499, 504 (Ct. App. 1972); cf. Paulsen v. Golden Gate Univ., 602
P.2d 778, 783 (Cal. 1979) (in bank).
We thus reverse the district court’s dismissal of Tecza’s breach of contract
claim. Since the district court did not consider the other elements of this claim,
beyond the existence of a contract, we remand to the district court for its
consideration of the remaining elements in the first instance.
4. We also conclude that the district court erred in dismissing Tecza’s
common-law invasion of privacy claim for public disclosure of private facts. To
establish the tort of public disclosure of private facts, a plaintiff must show “(1)
public disclosure (2) of a private fact (3) which would be offensive and
objectionable to the reasonable person and (4) which is not of legitimate public
concern.” Shulman v. Grp. W Prods., Inc., 955 P.2d 469, 478 (Cal. 1998). The
district court concluded that Tecza failed to allege the second element—that the
facts disclosed were private. We disagree. Tecza sufficiently alleged that
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information disclosed by USF regarding his accommodations was not already
public knowledge. See Gill v. Hearst Pub. Co., 253 P.2d 441, 444 (Cal. 1953) (in
bank); Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665, 669 (Ct. App. 1984).
Moreover, to the extent that USF’s disclosure indirectly revealed some underlying
medical information—that Tecza likely had a disability and some additional
information that might allow a person to make inferences about the general nature
of Tecza’s disability—California courts have considered medical information to be
a private fact. See Jeffrey H. v. Imai, Tadlock & Keeney, 101 Cal. Rptr. 2d 916,
920–21 (Ct. App. 2001); cf. Hill v. Nat'l Collegiate Athletic Assn., 865 P.2d 633,
657–58 (Cal. 1994).
We thus reverse the district court’s dismissal of Tecza’s claim of public
disclosure of private facts. Since the district court did not consider the other
elements of this claim, we remand to the district court for its consideration of the
remaining elements in the first instance.
5. With regard to Tecza’s claim for invasion of privacy under the California
Constitution, the district court failed to address this claim in its decision. Although
Tecza did not allege constitutional privacy as a separate cause of action in his
complaint, he did specifically allege the claim. Since we construe complaints
drafted by pro se plaintiffs liberally, see Wolfe, 392 F.3d at 362, the district court
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should have considered Tecza’s constitutional privacy claim. We thus remand to
the district court for its consideration of this claim in the first instance.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED and REMANDED in part.
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