Leigh v. Stephens Institute CA2/2

Filed 12/20/22 Leigh v. Stephens Institute CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
TINA MARIE VANDELEUR LEIGH, B322623
Plaintiff and Appellant, (Santa Cruz County
Super. Ct. No. CV181380)
v.
STEPHENS INSTITUTE, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Santa
Cruz County. John M. Gallagher, Judge. Affirmed.
Tina Marie Vandeleur Leigh, in pro. per., for Plaintiff and
Appellant.
Vartain Law Group, Michael J. Vartain and Stacey L.
Leask for Defendant and Respondent.
______________________________
Plaintiff and appellant Tina Marie Vandeleur Leigh
appeals from a summary judgment (Code Civ. Proc., § 437c)1
entered in favor of defendant and respondent Stephens Institute,
Inc. On appeal, plaintiff does not dispute the fact that she failed
to oppose the motion. Rather, she asserts that the trial court
erred in denying her request to continue the motion (§ 437c, subd.
(h)).2
We affirm.
1
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
Plaintiff also filed a “motion to allow new evidence and
‘wait and see’ for more.” She asks that we consider evidence
outside the appellate record that purportedly demonstrates why a
continuance should have been granted. That motion is denied. It
is unsupported by any legal authority. (Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852.) To the extent the
motion is a motion to augment the record, under California Rules
of Court, rule 8.155, the appellate record may only be augmented
by matters that were before the trial court, not matters outside
the trial court record. (See Lewis v. YouTube, LLC (2015)
244 Cal.App.4th 118, 124.) While section 909 permits an
appellate court to take evidence and make findings of fact on
appeal, “[t]hat authority should be exercised sparingly . . . and
absent exceptional circumstances, no such findings should be
made. [Citation.] Further, such authority will not be exercised
except to affirm the judgment.” (In re Heather B. (2002)
98 Cal.App.4th 11, 14.)
2
FACTUAL3 AND PROCEDURAL BACKGROUND
Factual Background
Defendant is an art and design university in San Francisco.
Plaintiff matriculated at the university in 2009. At the time she
enrolled, she agreed to the terms of the university’s enrollment
contract, which sets forth all of the terms and conditions of her
matriculation. As is relevant to the issues raised in this appeal,
the contract provides for a grievance procedure to review student
complaints.
During plaintiff’s tenure, she changed her major, took a
leave of absence for personal reasons, challenged one grade she
received, partially utilized the student grievance procedure to
complain about an instructor—but did not attend the grievance
meeting offered by the university, and changed her thesis.
Since spring 2014, plaintiff has not registered for any
courses. She has not completed the nine credits remaining to
finish the masters in fine art program.
Complaint
On March 27, 2015, plaintiff initiated this action. Her
second amended complaint, the operative pleading, alleges eight
causes of action against defendant: fraud, negligent
misrepresentation, negligence, negligent hiring/supervision,
breach of implied contract, breach of implied covenant of good
faith/fair dealing, violation of unfair business practices, and
violation of Consumer Legal Remedies Act. Her claims of fraud
3
In summarizing the factual background of this dispute, we
ignore all matters not supported by the appellate record. We also
disregard plaintiff’s inflammatory hyperbole and unwarranted
attacks on the trial court. There is no evidence of judicial bias.
3
(first, second, seventh, and eighth causes of action) stem from
alleged misrepresentations made by defendant to plaintiff.
In her negligence cause of action, plaintiff alleges that
defendant was negligent “by not disclosing to her [the fact that] it
would not be possible to complete her theses for which
[defendant] did not employ faculty even qualified to teach this
advanced level of work for Plaintiff’s theses. Furthermore, that
Defendant did not adequately compensate its instructors, or
provide proper mechanism(s) or policies for instructors to
properly handle her grievances.”
Plaintiff further alleges that two of defendant’s instructors
were “unfit to perform.”
In the fifth cause of action for breach of implied contract,
plaintiff alleges that she “created an implied contract when she
paid the $120 deposit to secure her placement in the courses
. . . for which she had registered.” Even though she “performed
all conditions in accordance with the terms and policies,”
defendant “failed to secure her placement in courses at the
graduate level.” Her cause of action for breach of the implied
covenant of good faith and fair dealing is based upon the same
allegations.
Motion for Summary Judgment
On April 28, 2020, defendant moved for summary
judgment. It argued that the undisputed material facts showed
that defendant was entitled to judgment as a matter of law.
No Opposition
Plaintiff’s opposition to the motion was due by July 7, 2020,
but none was filed.
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Hearing; Trial Court Order; Judgment
At the July 21, 2020, hearing, plaintiff made an oral
request to continue the motion for summary judgment.
Ultimately, the trial court denied plaintiff’s request for a
continuance and granted defendant’s unopposed motion. In so
doing, it addressed each cause of action asserted and the evidence
offered by defendant, finding: (1) As to the first and second
causes of action, defendant “did not intentionally or negligently
misrepresent a material fact which Plaintiff relied on to her
detriment”; (2) As to the third cause of action, plaintiff failed to
“allege any negligent conduct that is not delivery of student
education in an academic setting, and therefore . . . has not
stated a duty of care”; (3) As to the fourth cause of action, the
challenged instructors “were fit and competent for the position[s]
for which they were hired”; (4) As to the fifth and sixth causes of
action, defendant’s “decisions were based on academic criteria
which is entitled to judicial non-interference” and “[p]laintiff
failed to exhaust administrative remedies and perform under the
contract”; and (5) As to the seventh and eighth causes of action,
defendant “did not make any false[,] [d]eceptive or misleading
material representations relied on by Plaintiff.”
Regarding the request for a continuance, the trial court
determined that plaintiff had not established good cause: “The
plaintiff made this oral request pursuant to CCP 437c(b)(1) based
upon an alleged agreement in 2016 related to a trial continuance
occurring at that time. The oral motion was not made with
reference to CCP 437c(h) and no contention was made that time
was needed to procure additional evidence. The plaintiff also
suggested that a continuance should be granted because of a
dispute regarding scheduling [a] Case Management Conference.
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Plaintiff also mentioned a written motion to continue had been
filed around 5AM, the morning of the summary judgment
hearing.”
Judgment was entered.
Appeal
This timely appeal ensued.
DISCUSSION
I. Standards of review
A party in a civil case is entitled to summary judgment if it
can “show that there is no triable issue as to any material fact
and that [it] is entitled to a judgment as a matter of law.”
(§ 437c, subd. (c).) The party seeking summary judgment bears
the initial burden of establishing that a cause of action has “no
merit” by showing either that the opposing party cannot establish
“[o]ne or more of the elements of [its] cause of action” or by
showing a valid affirmative defense. (§ 437c, subds. (o) & (p)(2).)
If this burden is met, the “burden shifts” to the party opposing
summary judgment “to show that a triable issue of one or more
material facts exists as to that cause of action or [an affirmative]
defense.” (Ibid.; Powell v. Kleinman (2007) 151 Cal.App.4th 112,
123 [court may not grant unopposed summary judgment motion
unless moving party carries its initial burden]; Harman v. Mono
General Hospital (1982) 131 Cal.App.3d 607, 613 [same].) “‘There
is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact
in favor of the party opposing the motion in accordance with the
applicable standard of proof.’” (Burgueno v. Regents of University
of California (2015) 243 Cal.App.4th 1052, 1057.) We review a
trial court’s grant of summary judgment de novo; what matters is
the court’s ruling, not its reasoning. (Id. at p. 1057.)
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“‘In independently reviewing a motion for summary
judgment, we apply the same three-step analysis used by the
superior court. We identify the issues framed by the pleadings,
determine whether the moving party has negated the opponent’s
claims, and determine whether the opposition has demonstrated
the existence of a triable, material factual issue.’ [Citation.]”
(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th
411, 415.)
We review a trial court’s decision regarding a continuance
under section 437c, subdivision (h), for an abuse of discretion.
(Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100.) “Although
precise definition is difficult, it is generally accepted that the
appropriate test of abuse of discretion is whether or not the trial
court exceeded the bounds of reason, all of the circumstances
before it being considered.” (In re Marriage of Connolly (1979)
23 Cal.3d 590, 598.)
II. Trial court properly granted defendant’s motion for summary
judgment
A. No triable issue of material fact
Applying these legal principles, we readily conclude that
the trial court properly granted defendant’s motion for summary
judgment.4
1. Fraud and negligent misrepresentation
The prima facie elements of a cause of action for fraud are
(1) a misrepresentation (false representation, concealment, or
nondisclosure), (2) knowledge of falsity, (3) intent to defraud, i.e.,
4
In reaching this conclusion, we do not consider arguments
raised in plaintiff’s appellate briefs that are outside the scope of
the allegations of plaintiff’s second amended complaint.
7
to induce reliance, (4) justifiable reliance, and (5) resulting
damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The elements of negligent misrepresentation are similar, but this
tort does not require scienter or intent to defraud. (Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 173.)
As demonstrated by the separate statement and supporting
evidence, it is undisputed that defendant did not misrepresent a
material fact upon which plaintiff detrimentally relied. Absent
these key elements, plaintiff’s claims fail.
2. Negligence
The elements of a cause of action for negligence are well-
settled: “(1) facts showing a duty of care in the defendant,
(2) negligence constituting a breach of the duty, and (3) injury to
the plaintiff as a proximate result.” (Peter W. v. San Francisco
Unified School Dist. (1976) 60 Cal.App.3d 814, 820.) The duty of
care is “an essential factor in any assessment of liability for
negligence.” (Id. at p. 822.) “[W]hether a defendant owes the
requisite ‘duty of care,’ in a given factual situation, presents a
question of law which is to be determined by the courts alone.”
(Ibid.)
In this context, we must also be mindful of “[t]he so-called
rule of ‘judicial nonintervention in scholastic affairs.’” (Wong v.
Regents of University of California (1971) 15 Cal.App.3d 823, 830
(Wong).) “‘It has been said that courts do not interfere with the
management of a school’s internal affairs unless “there has been
a manifest abuse of discretion or where [the school officials’]
action has been arbitrary or unlawful,” [citation], or unless the
school authorities have acted “arbitrarily or capriciously,”
[citation], or unless they have abused their discretion, [citation],
or acted in “bad faith.”’” (Wong, supra, at p. 830.)
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Here, plaintiff does not allege any sort of duty owed by
defendant to her. Rather, all she alleges in general terms is that
defendant was negligent “by not disclosing to her that it would
not be possible to complete her theses” and that defendant failed
to “adequately compensate its instructors, or provide proper
mechanism(s) or policies for instructors to properly handle her
grievances.”
These allegations are insufficient to establish a duty of care
as a matter of law. “We find in this situation no conceivable
‘workability of a rule of care’ against which defendant[’s] alleged
conduct may be measured [citation], no reasonable ‘degree of
certainty that . . . plaintiff suffered injury’ within the meaning of
the law of negligence [citation], and no such perceptible
‘connection between the defendant’s conduct and the injury
suffered,’ as alleged, which would establish a causal link between
them within the same meaning. [Citation.]” (Peter W. v.
San Francisco Unified School Dist., supra, 60 Cal.App.3d at
p. 825.)
3. Negligent hiring/supervision
“[I]n California, an employer can be held liable for
negligent hiring if he knows the employee is unfit, or has reason
to believe the employee is unfit or fails to use reasonable care to
discover the employee’s unfitness before hiring him.” (Evan F. v.
Hughson United Methodist Church (1992) 8 Cal.App.4th 828,
843.)
It is undisputed that the two challenged instructors were
fit and competent for the positions for which they were hired.
Thus, this cause of action fails as a matter of law.
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4. Breach of implied contract and breach of the
implied covenant of good faith and fair dealing
In the fifth cause of action, plaintiff alleges that “[she]
created an implied contract when she paid the $120 deposit to
secure her placement in . . . courses.” Aside from the fact that
plaintiff could not unilaterally create an implied contract with
defendant, the undisputed evidence shows that plaintiff and
defendant were parties to the university’s enrollment contract.
That contract provides all of the terms of the student’s
employment, including a grievance procedure to adjudicate
complaints. Although plaintiff submitted a grievance, she
declined to attend the grievance meeting offered by the
university. As such, she failed to exhaust her administrative
remedies, and her contractual claims fail as a matter of law.5
(Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d
465, 475.)
Because the breach of contract claim fails, so too does the
derivative claim for breach of the implied covenant of good faith
and fair dealing. (Bionghi v. Metropolitan Water Dist. (1999)
70 Cal.App.4th 1358, 1370 [where “the claim of breach of the
implied covenant relies on the same acts, and seeks the same
damages, as its claim for breach of contract,” summary
adjudication is affirmed on the ground that “the cause of action
for breach of the implied covenant is duplicative of the cause of
action for breach of contract, and may be disregarded”].)
5
These claims also fail pursuant to the aforementioned “rule
of ‘judicial nonintervention in scholastic affairs.’” (Wong, supra,
15 Cal.App.3d at p. 830.)
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5. Statutory claims
The seventh and eighth causes of action allege violation of
the Unfair Business Practices Act and violation of the Consumer
Legal Remedies Act, respectively. “Business and Professions
Code section 17200 proscribes three types of unfair business
practices—acts or practices which are unlawful, unfair, or
fraudulent.” (People ex rel. Trutanich v. Joseph (2012) 204
Cal.App.4th 1512, 1525.) Similarly, the Consumer Legal
Remedies Act “declares unlawful a variety of ‘unfair methods of
competition and unfair or deceptive acts or practices’ used in the
sale or lease of goods or services to a consumer. (Civ. Code,
§ 1770, subd. (a).)” (Bower v. AT&T Mobility, LLC (2011)
196 Cal.App.4th 1545, 1556.)
As set forth above, in the undisputed separate statement
and in the supporting evidence, defendant did not make any false
or deceptive statements to plaintiff. It follows that these claims
fail.
B. Trial court did not err in denying plaintiff’s oral request
for a continuance
Urging us to reverse, plaintiff does not dispute the fact that
she offered no opposition or opposing evidence in response to
defendant’s motion. Rather, she argues that the trial court erred
in denying her request for a continuance. Specifically, she
argues, without evidentiary support, that there was good cause to
grant a continuance based upon “evidence of federal criminal
obstruction, judicial bias, and collusion.” (Bolding &
capitalization omitted.) Her contention fails.
1. Relevant law
“‘In seeking a continuance of a summary judgment motion,
a plaintiff has essentially two options. The first option is to
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comply with section 437c, subdivision (h), which states, “If it
appears from the affidavits submitted in opposition to a motion
for summary judgment or summary adjudication, or both, that
facts essential to justify opposition may exist but cannot, for
reasons stated, be presented, the court shall deny the motion,
order a continuance to permit affidavits to be obtained or
discovery to be had, or make any other order as may be just. The
application to continue the motion to obtain necessary discovery
may also be made by ex parte motion at any time on or before the
date the opposition response to the motion is due.”’ [Citation.]”
(Levingston v. Kaiser Foundation Health Plan, Inc. (2018)
26 Cal.App.5th 309, 315.)
The declarations of the party seeking the continuance must
show: “‘(1) “Facts establishing a likelihood that controverting
evidence may exist and why the information sought is essential
to opposing the motion”; (2) “The specific reasons why such
evidence cannot be presented at the present time”; (3) “An
estimate of the time necessary to obtain such evidence”; and
(4) The specific steps or procedures the opposing party intends to
utilize to obtain such evidence.”’” (501 East 51st Street, Etc. v.
Kookmin Best Ins. Co., Ltd. (2020) 47 Cal.App.5th 924, 939
(501 East 51st Street).)
“‘Where a plaintiff cannot make the showing required
under section 437c, subdivision (h), a plaintiff may seek a
continuance under the ordinary discretionary standard applied to
requests for a continuance. [Citation.] This requires a showing
of good cause. [Citation.]’ [Citation.]” (Levingston v. Kaiser
Foundation Health Plan, Inc., supra, 26 Cal.App.5th at p. 315.)
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2. Analysis
Here, the trial court properly denied plaintiff’s request for a
continuance under section 437c, subdivision (h). As mentioned,
any request for such a continuance had to be submitted on or
before the opposition was due. That did not happen here.
Moreover, the trial court could reasonably have found that the
essential facts could have been presented—by filing a timely
opposition—but they simply had not been. In fact, plaintiff never
submitted the requisite declaration with reasons why facts
essential to justify the opposition were not presented. (501 East
51st Street, supra, 47 Cal.App.5th at p. 939.) Counsel did not
even mention these reasons in his oral request to continue the
hearing on the motion.
Moreover, the trial court did not abuse its discretion in
denying plaintiff’s request for a continuance. As the trial court
aptly found, she did not demonstrate good cause. Counsel offered
no explanation for the failure to timely file an opposition to
defendant’s motion. He also did not provide any argument as to
what discovery was purportedly required to oppose the motion.
It follows that plaintiff’s due process rights were not
violated.
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DISPOSITION
The judgment is affirmed. Defendant is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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