Vang v. Board of Trustees of Cal. State University CA5

Filed 1/19/21 Vang v. Board of Trustees of Cal. State University CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
JIM VANG,
F078787
Plaintiff and Appellant,
(Super. Ct. No. 17CECG04085)
v.
ORDER MODIFYING OPINION AND
BOARD OF TRUSTEES OF CALIFORNIA DENYING REHEARING
STATE UNIVERSITY et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is hereby ordered that the nonpublished opinion filed on December 17, 2020, be
modified as follows:
1. On page 9, the second full paragraph beginning “In accordance with …” is
deleted and the following paragraph is inserted in its place.
In accordance with the principles set forth by our Supreme Court,
the next step of the analysis of legislative intent is to review the statute’s
legislative history. Here, the legislative history for the Donahoe Higher
Education Act referred to by Vang in his opposition to the demurrer does
not refer to private enforcement of the statute. For instance, the Legislative
findings, declarations and statements of purpose set forth in Government
Code sections 3560 and 3561 are general in nature and make no mention of
private enforcement. The references to academic freedom, the free
exchange of ideas, and full freedom of inquiry do not address, directly or
indirectly, the subject of private enforcement. Therefore, we conclude the
legislative history does not clearly demonstrate a legislative intent to create
a private right of action for violations of the Donahoe Higher Education
Act. Consequently, Vang has not carried his burden of persuasion on the
question of whether the legislative history shows the Legislature intended
to create a private right of action. (San Diegans, supra, 8 Cal.5th at p. 739
[burden of persuasion is allocated to party claim a private right of action].)
2. On page 11, at the end of the first paragraph which begins “The legislative
findings”, the following is inserted:
The Legislature also intended that the Equity in Higher Education Act be
interpreted as consistent with specific federal and state statutes addressing
equal opportunity and civil rights, including the Unruh Civil Rights Act.
(Ed. Code, § 66252, subd. (g).)
3. On page 26, at the end of the second to last paragraph which begins “Of
particular significance”, the following is inserted:
The regulation’s exception for certain decisions to appoint, hire, fire,
promote, suspend or take disciplinary action with a financial sanction
against a public official or member of the official’s immediate family
plainly does not apply to the decision on Vang’s EO-1063 complaint
because that matter was decided without considering the hiring, firing or
other disciplinary actions against an official of the University or a family
member of such an official. (Regulation 18702.5, subd. (b)(1).)
4. On page 31, at the end of the first full paragraph beginning “Vang contends
the contract”, the following is inserted:
Thus, even if Government Code sections 3560 and 3561 were incorporated
by operation of law into the alleged contract between Vang and the
University, there would be no enforceable contractual right to “full freedom
of inquiry” (Gov. Code, § 3560, subd. (c)) or “academic freedom” (Gov.
Code, § 3561, subd. (c)).
5. On page 34, the following paragraph is inserted before part IX:
Similarly, the general statements in statutes about “full freedom of
inquiry” and “academic freedom” cannot be interpreted as representations
by the University that Vang would be allowed to choose his own research
topic. (Gov. Code, §§ 3560, subd. (c), 3561, subd. (c).)
2.
6. On page 35, the following section is added immediately before the
Disposition:
C. Costs on Appeal
The award of costs on appeal is governed by the California Rules of
Court. “Except as provided in this rule, the party prevailing in the Court of
Appeal in a civil case other than a juvenile case is entitled to costs on
appeal.” (Cal. Rules of Court, rule 8.278(a)(1).) “The prevailing party is
the respondent if the Court of Appeal affirms the judgment without
modification.” (Cal. Rules of Court, rule 8.278(a)(2).) Here, the
University qualifies as the prevailing party and, therefore, is entitled to an
award of costs on appeal. Vang’s lawsuit was not “brought pursuant to
[Government Code] Section 54960 or 54960.1” and, therefore, the
standards in Government Code section 54960.5 for the award of costs and
reasonable attorney fees to local agencies do not apply.
There is no change in judgment.
Appellant’s petition for rehearing filed on December 31, 2020, is hereby
denied.
FRANSON, Acting P.J.
WE CONCUR:
SNAUFFER, J.
DESANTOS, J.
3.
Filed 12/17/20 Vang v. Board of Trustees of Cal. State University CA5 (unmodified opinion)
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
FIFTH APPELLATE DISTRICT
JIM VANG,
F078787
Plaintiff and Appellant,
(Super. Ct. No. 17CECG04085)
v.
BOARD OF TRUSTEES OF CALIFORNIA OPINION
STATE UNIVERSITY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
Jim Vang, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Ismael A. Castro and Lisa A. Tillman, Deputy Attorneys General, for Defendants and
Respondents.
-ooOoo-
Appellant is a self-represented graduate student who sued a state university and
various university officials after his proposed master’s thesis project in the field of impact
geology was rejected and he was told to work on a new thesis project within the expertise
of one or more faculty members at the university.1 When appellant refused to change his
thesis topic, the university disqualified him from its graduate program. Appellant’s
complaint alleged the defendants violated his right to full freedom of inquiry, violated
various statutes prohibiting discrimination and conflicts of interest, breached an implied
contract, and committed fraud and intentional deceit. The defendants filed a demurrer,
which the trial court sustained without leave to amend.
Appellant contends university officials discriminated against him by not providing
educational services because he is, and associates himself with, impact geologists and
because he is not perceived to be an outstanding student. As explained in detail below,
we conclude the various statutes cited by appellant do not prohibit these types of actions
against a graduate student. Appellant also contends defendants violated his right to full
freedom of inquiry that is protected by state law and the California Constitution. We
conclude the right to full freedom of inquiry does not include the right to choose one’s
own thesis research topic. Also, appellant’s allegations were insufficient to state a cause
of action for breach of contract or fraud. Consequently, the trial court properly sustained
the demurrer.
We therefore affirm the judgment.
FACTS
Parties
Plaintiff Jim Vang is a Hmong-American born and raised in Fresno. He works in
Fresno, is a taxpayer, and paid all the expenses of his graduate education without
assistance from any outside source.
The defendants in this action are (1) the board of trustees of California State
University; (2) the president of California State University, Fresno (University), Joseph I.
1 “Impact geology” has been defined as a branch of geology that deals with the role
of large meteor impacts in earth science. (Kelly and Dachille, Target Earth (1953).)
2.
Castro, Ph.D.; (3) the vice provost, Dennis Nef, Ph.D.; (4) the dean of research and
graduate studies, James E. Marshall, Ph.D.; (5) the graduate coordinator of the Earth and
Environmental Science Department (EES Department), Christopher J. Pluhar, Ph.D.; (6)
the chair of the EES Department, Peter Van De Water, Ph.D.; (7) Keith Putirka, Ph.D., a
senior faculty member of the EES Department; and (8) John Wakabayashi, Ph.D., a
senior faculty member of the EES Department.
Vang’s Participation in Graduate Program
In the fall of 2007, plaintiff Jim Vang entered the graduate program of the EES
Department. Vang took on a thesis project developed by his advisor at the time,
defendant Putirka. Vang lost the thesis project to another graduate student because his
advisor believed he had not shown much progress and there were too many graduate
students in comparison to the number of available thesis research projects.
To avoid having another project taken away from him, Vang developed his own
master’s thesis project involving the study of meteor impact craters. Vang began
working on this thesis research topic in October 2012. Vang went into the field in the
southern Sierra Nevada Mountains, collected rock samples and analyzed the samples with
various scientific tools. Vang alleges these analyses indicated that a crater in the
mountains may have been caused by a meteor impact. Vang believes he may have made
the first discovery of a meteor impact crater in California.
To complete the graduate program, Vang needed to find an advisor and form a
graduate committee. He asked every professor in the EES Department and all of them
turned him down because meteor impact geology was not their interest or because of the
high number of graduate students. Vang decided to attempt to obtain an advisor after
other students graduated, thinking a spot might become open.
In 2014, Putirka agreed to become Vang’s advisor. When Vang presented Putirka
with the findings of his thesis research, Putirka told Vang he could no longer act as
Vang’s advisor.
3.
In January 2016, the EES Department requested its graduate students to prepare a
progress report presentation on their thesis research. On February 8, 2016, Vang
presented a progress talk on his thesis research. Three weeks later, the EES Department
e-mailed Vang its response, which identified seven deficiencies and three required
actions. The EES Department asked Vang (1) for a new thesis proposal within the area
of expertise of one of their faculty, (2) to find an advisor willing to work with him, and
(3) for a presentation of his new thesis proposal towards the end of the semester. Vang
refused.
In May 2016, Vang presented his thesis to the faculty of the EES Department
again. The faculty collaborated and finalized a disapproval. Defendant Pluhar, the
graduate coordinator, wrote a formal letter recommending Vang’s disqualification from
the EES Department. In early July 2016, Vang received the disqualification letter.
Administrative Proceedings
On August 12, 2016, Vang submitted a complaint to the University’s
administration in accordance with Executive Order 1063 (EO-1063). EO-1063
establishes a complaint procedure for the University’s students to allege that the
University has violated one or more state laws.
On December 14, 2016, Nef sent Vang a written response to the complaint. The
final paragraph of the response stated: “While you are commended for taking the
initiative to find a problem of interest to you personally, you were informed a number of
times that in order to complete a degree, you would need to have an advisor and no
faculty member in the department had the requisite expertise to competently mentor in
the project area. It appears you were also informed a number of times that your proposed
work was not sufficient for a Master’s degree project. Rather than restricting academic
freedom or freedom of speech, these are both issues of upholding academic integrity—a
key role faculty must play. I do not believe the allegations are substantiated.”
4.
In May 2017, Vang submitted a 43-page claim to the University in accordance
with the claim presentation requirements of the Government Claims Act (Gov. Code,
§ 810 et seq.). The claim was rejected in a letter dated June 13, 2017.
PROCEEDINGS
In December 2017, Vang filed a complaint against the University and six members
of its administration or faculty. The operative pleading in this appeal is Vang’s 76-page
second amended complaint (SAC), containing seven causes of action, which he filed in
June 2018.
Defendants responded to the SAC by filing a demurrer asserting the SAC failed to
allege facts sufficient to state a cause of action and was uncertain. The trial court issued a
tentative ruling to sustain the demurrer without leave to amend. After hearing argument,
the trial court adopted its tentative ruling and sustained the demurrer to each cause of
action without leave to amend.
In December 2018, the trial court filed a judgment dismissing the action. Vang
timely appealed.
DISCUSSION
I. STANDARD OF REVIEW FOR GENERAL DEMURRERS
A complaint must contain “[a] statement of the facts constituting the cause of
action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).) The
facts needed to properly plead a cause of action are referred to as the essential elements
of the cause of action. The essential elements are determined by the substantive law that
defines the cause of action. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2020) ¶ 6:121, p. 6-36.) The facts constituting these elements
are the facts upon which liability depends. (Id. ¶ 6:123, p. 6-38.)
When a complaint “does not state facts sufficient to constitute a cause of action,” a
defendant may raise that objection by filing a demurrer. (Code Civ. Proc., § 430.10,
5.
subd. (e).) Determining whether a pleading alleges facts sufficient to constitute a cause
of action is a question of law. (Neilson v. City of California City (2005) 133 Cal.App.4th
1296, 1305.)
Appellate courts independently review an order sustaining a general demurrer and
make a de novo determination of whether the pleading “alleges facts sufficient to state a
cause of action under any legal theory.” (McCall v. PacifiCare of Cal., Inc. (2001) 25
Cal.4th 412, 415.) Generally, appellate courts “give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865.) The demurrer is treated as admitting all
material facts properly pleaded, but does not admit the truth of contentions, deductions or
conclusions of law. (Ibid.)
In accordance with the foregoing principles, the pleader’s contentions or
conclusions of law are not controlling because appellate courts must independently
decide questions of law without deference to the legal conclusions of the pleader or the
trial court. (Villery v. Department of Corrections & Rehabilitation (2016) 246
Cal.App.4th 407, 413.) Legal conclusions include (1) the interpretation of a statute and
(2) the application of a statutory provision to facts stated in the pleading and assumed to
be true for purposes of the demurrer. (Ibid.) To illustrate the application of the foregoing
principles, a statement in a complaint that Defendant X arbitrarily discriminated against
Plaintiff Y in violation of the Unruh Civil Rights Act, Civil Code section 51 (Unruh Act)
is a legal conclusion and is not accepted as true. (See Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial, supra, ¶¶ 6:124–6:125, pp. 6-38 to 6-39.)
II. DONAHOE HIGHER EDUCATION ACT
A. Overview of Statute
Vang’s first cause of action asserts a violation of the Donahoe Higher Education
Act, Education Code section 66000 et seq. The act codifies numerous provisions
6.
regarding the responsibilities for higher education in this state provided by California
State University and other colleges and universities. (Legis. Counsel’s Dig., Assem. Bill
No. 617 (1991-1992 Reg. Sess.) 4 Stats. 1991, Summary Dig., p. 490.)
In 1991, the Legislature added Education Code sections 66002 and 66003 to the
Donahoe Higher Education Act to set forth its findings and declarations of intent. (Stats.
1991, ch. 1198, § 1.) In 2010, the Legislature updated its findings and declarations.
(Stats. 2010, ch. 201, §§ 1, 2.) Section 66003 states the Legislature enacted the Donahoe
Higher Education Act “to outline in statute the broad policy and programmatic goals of
the master plan and clear, concise statewide goals and outcomes for effective
implementation of the master plan, attuned to the public interest of the people and State
of California, and to expect the system as a whole and the higher education segments to
be accountable for attaining those goals. However, consistent with the spirit of the
original master plan and the subsequent updates, it is the intent of the Legislature that the
governing boards be given ample discretion in implementing policies and programs
necessary to attain those goals.” (Italics added.)
B. Private Right of Action—General Principles
In Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, the California
Supreme Court summarized the basic principle used by courts in determining whether a
statute authorizes private individuals or entities to bring a lawsuit based on alleged
violations of the statute.
“A violation of a state statute does not necessarily give rise to a
private cause of action. [Citation.] Instead, whether a party has a right to
sue depends on whether the Legislature has ‘manifested an intent to create
such a private cause of action’ under the statute. (Moradi–Shalal v.
Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 305 [250 Cal.Rptr.
116, 758 P.2d 58] (Moradi–Shalal) [no legislative intent that Ins. Code, §§
790.03 & 790.09 create private cause of action against insurer for bad faith
refusal to settle claim]; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54
Cal.App.4th 121, 131, 135 [62 Cal.Rptr.2d 620] (Crusader) [no legislative
intent that Ins. Code, § 1763 gave admitted insurers private right to sue
7.
surplus line brokers].) Such legislative intent, if any, is revealed through
the language of the statute and its legislative history. (See Moradi–Shalal,
supra, 46 Cal.3d at pp. 294–295.)
“A statute may contain ‘ “clear, understandable, unmistakable
terms,” ’ which strongly and directly indicate that the Legislature intended
to create a private cause of action. (Moradi–Shalal, supra, 46 Cal.3d at p.
295.) For instance, the statute may expressly state that a person has or is
liable for a cause of action for a particular violation. (See, e.g., Civ. Code, §
51.9 [‘A person is liable in a cause of action for sexual harassment’ when a
plaintiff proves certain elements]; Health & Saf. Code, § 1285, subd. (c)
[‘Any person who is detained in a health facility solely for the nonpayment
of a bill has a cause of action against the health facility for the detention
….’].) Or, more commonly, a statute may refer to a remedy or means of
enforcing its substantive provisions, i.e., by way of an action. (See, e.g., §
218 [‘Nothing in this article shall limit the right of any wage claimant to
sue directly or through an assignee for any wages or penalty due him under
this article’]; Bus. & Prof. Code, § 17070 [‘Any person ... may bring an
action to enjoin and restrain any violation of this chapter and, in addition
thereto, for the recovery of damages.’]; id., § 6175.4, subd. (a) [‘A client
who suffers any damage as the result of a violation of this article by any
lawyer may bring an action against that person to recover or obtain one or
more of the following remedies.’]; Civ. Code, § 1748.7, subd. (d) [‘Any
person injured by a violation of this section may bring an action for the
recovery of damages, equitable relief, and reasonable attorney’s fees and
costs.’]; see Crusader, supra, 54 Cal.App.4th at p. 136 [listing other
statutes expressly creating cause of action].) If, however, a statute does not
contain such obvious language, resort to its legislative history is next in
order. (Moradi–Shalal, supra, 46 Cal.3d at pp. 300–301; see Crusader,
supra, 54 Cal.App.4th at pp. 133–134, 136 [relying on principles of general
statutory interpretation].)” (Lu v. Hawaiian Gardens Casino, Inc., supra,
50 Cal.4th at pp. 596–597, fn. omitted.)
More recently, the Supreme Court confirmed the foregoing principles in San
Diegans for Open Government v. Public Facilities Financing Authority of City of San
Diego (2019) 8 Cal.5th 733 (San Diegans).) First, whether a statute gives rise to a
private right of action is a question of legislative intent. (Id. at p. 739.) Second, the
Legislature’s intent may be express or implied. (Ibid.) Third, the Legislature’s
manifestation of its intent to create a private cause of action under the statute must be
8.
clear. (Ibid.) Fourth—and importantly for the present appeal—the burden of persuasion
is with the party claiming a right to sue under the statute. (Ibid.)
C. Application of Principles
1. Statutory Language
The provisions of the Donahoe Higher Education Act cited by Vang in his
complaint and appellate briefing (1) do not directly state there is a cause of action for any
violation, (2) do not expressly state that an institution or any official is liable for a
violation of the statute, and (3) do not refer to any student remedy or means of enforcing
the substantive provisions of the Donahoe Higher Education Act. (See Ed. Code, §§
66002, subd. (f)(1), 66003, 66010.2, 66010.4, 66010.5, 66010.9, 66010.91 & 66030.)
Therefore, we conclude the statutory language does not clearly demonstrate a legislative
intent to create a private right of action. (San Diegans, supra, 8 Cal.5th at p. 739.)
2. Legislative History
In accordance with the principles set forth by our Supreme Court, the next step of
the analysis of legislative intent is to review the statute’s legislative history. Here, the
legislative history for the Donahoe Higher Education Act referred to by Vang in his
opposition to the demurrer does not refer to private enforcement of the statute.
Therefore, we conclude it does not clearly demonstrate a legislative intent to create a
private right of action for violations of the Donahoe Higher Education Act.
Consequently, Vang has not carried his burden of persuasion on the question of whether
the legislative history shows the Legislature intended to create a private right of action.
(San Diegans, supra, 8 Cal.5th at p. 739 [burden of persuasion is allocated to party claim
a private right of action].)
3. Precedent Established by Case Law
Published decisions of California’s appellate courts provide the last source of law
we consider in determining whether the Donahoe Higher Education Act authorizes a
9.
private right of action. Vang has not cited, and we have not located, any decision
addressing this issue, much less deciding the statute creates a private right of action.
Thus, judicial decisions do not assist Vang in carrying his burden of persuasion.
In summary, the language in the statute, the legislative history, and the lack of
precedent holding a private right of action exists supports our statutory interpretation that
the Donahoe Higher Education Act does not authorize students to pursue a cause of
action alleging violations of the act’s substantive provisions. Furthermore, the general
principle that pleadings are to be liberally construed when challenged by a demurrer does
not mean a statute referenced in the pleading must be liberally construed. (See Code Civ.
Proc., § 452.) Rather, the statute must be construed in accordance with the principles
established by our Supreme Court and those principles lead to the conclusion that the
Legislature did not intend to create a private right of action. Consequently, the trial court
properly sustained the demurrer to Vang’s first cause of action.2
III. EQUITY IN HIGHER EDUCATION ACT
A. Overview of Statute
The second cause of action asserts a violation of The Equity in Higher Education
Act as set forth in chapter 4.5 of the Donahoe Higher Education Act and consists of
Education Code sections 66250 through 66292.4. The legislative policy underlying the
Equity in Higher Education Act is “to afford all persons … equal rights and opportunities
in the postsecondary educational institutions of the state. The purpose of this chapter is
to prohibit acts that are contrary to public policy and to provide remedies for the
commission of those prohibited acts.” (Ed. Code, § 66251.) This protection is provided
“regardless of disability, gender, gender identity, gender expression, nationality, race or
2 Based on this conclusion, we need not discuss why Vang’s allegations are
insufficient to state a violation of the Donahoe Higher Education Act.
10.
ethnicity, religion, sexual orientation, or any other basis that is contained in the
prohibition of hate crimes …, including immigration status.” (Ed. Code, § 66251.)
The legislative findings and statements of intent for the Equity in Higher
Education Act are set forth in Education Code section 66252, subdivisions (a) through
(g). The Legislature found that “[a]ll students have the right to participate fully in the
educational process, free from discrimination and harassment” and universities “have an
affirmative obligation to combat racism, sexism, and other forms of bias, and a
responsibility to provide equal educational opportunity.” (Ed. Code, § 66252, subds. (a),
(b).) The Legislature also determined “[t]here is an urgent need to teach and inform
students in the public schools about their rights, as guaranteed by the federal and state
constitutions, in order to increase students’ awareness and understanding of their rights
and the rights of others, with the intention of promoting tolerance and sensitivity in
postsecondary educational institutions and in society as a means of responding to
potential harassment and hate violence.” (Ed. Code, § 66252, subd. (e).) Furthermore,
the Legislature intended “that each postsecondary educational institution undertake
educational activities to counter discriminatory incidents on school grounds and, within
constitutional bounds, to minimize and eliminate a hostile environment on school
grounds that impairs the access of students to equal educational opportunity.” (Ed. Code,
§ 66252, subd. (f).)
Article 5 of the Equity in Higher Education Act addresses compliance and
enforcement. (See Ed. Code, §§ 66290–66292.4.) The last section of that article states
the Equity in Higher Education Act “may be enforced through a civil action.” (Ed. Code,
§ 66292.4.) Part II.B. of this opinion set forth the general principles used by courts to
determine whether legislation creates a private right of action. Applying those principles
to Education Code section 66292.4, we conclude the Legislature clearly demonstrated an
intent to create a private right of action “to provide remedies for the commission of …
prohibited acts.” (Ed. Code, § 66251, italics added.)
11.
The next step of our analysis considers the “prohibited acts” identified by the
statute. The substantive provision of the Equity in Higher Education Act that prohibits
certain kinds of discrimination is Education Code section 66270, which provides:
“No person shall be subjected to discrimination on the basis of disability,
gender, gender identity, gender expression, nationality, race or ethnicity,
religion, sexual orientation, or any characteristic listed or defined in Section
11135 of the Government Code or any other characteristic that is contained
in the prohibition of hate crimes set forth in subdivision (a) of Section
422.6 of the Penal Code, including immigration status, in any program or
activity conducted by any postsecondary educational institution that
receives, or benefits from, state financial assistance or enrolls students who
receive state student financial aid.”
Our interpretation of this provision necessarily requires us to determine the
meaning of the word “discrimination” because the definitions set forth in the Equity in
Higher Education Act do not include the term “discrimination.” (See Ed. Code, §§
66260–66264.) “In the absence of a statutory definition, we turn to the ordinary meaning
of the words. Black’s Law Dictionary (9th ed. 2009) defines ‘discrimination’ as
‘[d]ifferential treatment; esp., a failure to treat all persons equally when no reasonable
distinction can be found between those favored and those not favored.’ (Id. at p. 534.)”
(Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 125–126.) Thus, the
discrimination prohibited by the Equity in Higher Education Act encompasses disparate
treatment—that is, treating a protected person, such as a university student, differently
because of a factor listed in Education Code section 66270. (See Wallace, supra, at p.
126; see also, Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 658, fn. 3,
[in the employment context, disparate treatment occurs when an “ ‘ “employer simply
treats some people less favorably than others because of their race, color, religion, sex or
national origin” ’ ”].)
12.
B. Vang’s Allegations
Vang’s second cause of action attempted to state a violation of the Equity in
Higher Education Act by setting forth the assertions3 described in the following five
paragraphs.
The University must pursue excellence in teaching, research, and learning through
the free exchange of ideas among faculty, students, and staff and must respect and
endeavor to preserve academic freedom. Vang’s removal from the graduate program was
unwarranted because, even if defendants disagreed with his thesis, defendants must (1)
provide an environment in which research and professional activity are valued and
supported, (2) allow free and open scholarly inquiry for the exploration and appreciation
of diverse ideas and viewpoints, and (3) be responsive to the needs of California’s
citizens and show respect for and due consideration of the role and contributions that
each member of the university community, including students, makes to the mission of
the university. The University, through its special majors program, accommodates
students interested in a field or degree not offered by the university. In light of the
accommodations made in the special majors program, the University should have been
able to accommodate Vang and his interest in an academic field of impact geology,
which is a legitimate field of an existing department at the University—namely, its EES
Department. Nonetheless, defendants did not accommodate Vang.
A webpage maintained by the University described the admission process to its
geology graduate program. The webpage stated the applicant should contact a potential
advisor before submitting an application and “let them know you are interested in the
work they do and would like to enter the grad program with them as your advisor. Find
3 Here, we use the term “assertions” in a broad sense to include allegations of fact,
contentions of law, and conclusions of law. (See City of Dinuba v. County of Tulare,
supra, 41 Cal.4th at p. 865.) Under the principles that govern the interpretation of a
pleading, we do not accept contentions of law and conclusions of law as true. (Ibid.)
13.
out if your interests are a good match for that advisor, and find out if they have space in
their research group to admit you.” The webpage also stated: “The faculty select
students who will be admitted based on academic qualifications, available resources, and
the match between potential students and advisors. If you already established
communication with a potential advisor about working with them, you are more likely to
be accepted.” Vang interprets these statements to mean that if he “does not fit into their
social group, he is not accepted and welcomed in a public education institution that
receives state funds.”
Defendants openly identified and acknowledged that Vang associates himself with
impact geologists, which Vang refers to as a “distinction group,” and openly stated they
would not provide public service to him because he associates himself with impact
geologists. Defendants disqualified Vang from the graduate program because he
associates with impact geologists. If defendants had followed their statutory duty and
provided educational equity, Vang would not have been disqualified from the graduate
program based on his association with impact geologists.
Defendant Pluhar, the EES Department’s graduate coordinator, had a duty to
provide educational equity for all students and the opportunity for them to address issues
that are central to their full development as responsible citizens. Contrary to this duty,
Pluhar openly distinguished between students he regarded as outstanding and those he
considered not outstanding and provided certain public services and accommodations
only to students within the favored group—that is, students perceived to be outstanding.
For instance, Pluhar’s January 21, 2016 e-mail to Vang stated: “You ask for advisement,
which I cannot provide, but I can offer advice: do not go it alone and then try to get an
advisor on board afterwards. That only works for the truly outstanding students. The rest
of people find an advisor in their general area of interest, and then accept direction.”
Pluhar’s statements were contrary to educational equity at a public educational
institution and imply that public services are available only for outstanding students.
14.
Pluhar’s statements demonstrate he did not consider Vang an outstanding student and that
he denied public services to Vang based on this perception. This refusal of public
services hindered Vang’s progress through the graduate program and Pluhar then used the
lack of progress to remove Vang from the graduate program. Pluhar’s acts and omissions
breached his statutory duties. A reasonably foreseeable result from these breaches was an
injury to Vang that caused damages. This injury to Vang and the resulting damages were
the type the Equity in Higher Education Act was specifically designed to prevent.
C. Analysis of the Sufficiency of Vang’s Allegations
1. Vang’s Contentions
On appeal, Vang interprets the Equity in Higher Education Act as “preventing
discrimination and harassment by providing equal rights, opportunities, and full
participation in the educational process.” Vang asserts his second cause of action—
specifically, paragraph 81 of the SAC—“is in regards to a mandatory duty to provide the
full and equal services …, not a ‘mandatory duty with regard to matriculation of master’s
degree students in a particular research topic’ as incorrectly interpreted by the superior
court.” Restating his view of the statutory duties, Vang argues defendants “have a
mandatory duty to provide him the full, equal rights, services, and opportunities at [the
University]” and he “suffered discrimination (arbitrary), since he is and associates
himself with impact geologist[s].”
The trial court’s order stated Vang “does not allege—or intend to allege—any
ethnicity-based discrimination, or any other type of discrimination within the obvious
ambit of the [Equity in Higher Education] Act.” Vang’s disagreement with the trial
court’s statement is, in effect, an argument that the trial court erred by interpreting the
statute too narrowly. Vang supports his view by quoting Education Code sections 66251
and 66252, which contain the Legislature’s statement of purpose and its findings and
declaration of intent. In his view, his “right to participate fully in the educational process,
15.
free from discrimination” (Ed. Code, § 66252, subd. (a)) means he is protected from any
arbitrary discrimination. Vang summarizes his second cause of action under the Equity
in Higher Education Act by asserting he associates himself with impact geologists and
was injured when defendants “discriminated against him by violating his access to the
full, equal rights, services, and opportunities at [the University] due to exercising his full
freedom of inquiry.”
2. Equity in Higher Education Act’s Scope
Vang’s contentions raise a fundamental question about the scope of the Equity in
Higher Education Act. Specifically, does the statute prohibit “arbitrary” discrimination,
as Vang contends, or does it only prohibit discrimination based on the factors listed in
Education Code section 66270? We adopt the latter interpretation.
First, the scope of the statute is not defined exclusively by the Legislature’s
statement of purpose and its findings and declaration of intent in Education Code sections
66251 and 66252. Instead, the Legislature’s statements of purpose and intent are useful
in interpreting the substantive provisions of the act, but are not substantive provisions
themselves. For instance, Education Code section 66251 states the Equity in Higher
Education Act’s purpose “is to prohibit acts that are contrary to that policy and to provide
remedies for the commission of those prohibited acts.” (Italics added.) This language
demonstrates the act is designed to perform two functions—first it prohibits acts and,
second, it provides remedies when a prohibited act is committed. Consequently, a
determination of the scope of the Equity in Higher Education Act requires an
examination of the acts that are prohibited by the substantive provisions of the statute.
Those prohibitions are contained in Education Code section 66270, which makes
unlawful “discrimination on the basis of disability, gender, gender identity, gender
expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic
listed or defined in Section 11135 of the Government Code or any other characteristic
16.
that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section
422.6 of the Penal Code.” Adopting the plain meaning of the words used, we interpret
the statute to prohibit discrimination based on the factors listed. If the Legislature had
intended the act to have a broader application, it would not have gone to the trouble of
providing a specific list of prohibited types of discrimination or it would have used
language demonstrating the list was not exclusive.
Applying this statutory interpretation to the allegations set forth in the second
cause of action leads to the conclusion that it fails to allege facts sufficient to constitute a
cause of action under the Equity in Higher Education Act. Based on a liberal reading of
Vang’s pleading, he alleged defendants discriminated against him because (1) he
associated with impact geologists and (2) he was not an outstanding student, or at least
defendants did not perceive him to be such a student. Neither of these types of
discrimination are based on factors listed in Education Code section 66270. Therefore,
the types of discrimination alleged by Vang fail to state a violation of the Equity in
Higher Education Act. In other words, a statutory violation is not alleged by stating the
discrimination was arbitrary. Furthermore, a statutory violation is not alleged by stating
the discrimination was based on his association with impact geologists or the University
official’s perception of him as a student who was not outstanding. Accordingly, the trial
court correctly sustained the demurrer to Vang’s second cause of action.
IV. GOVERNMENT CODE SECTIONS 11135 THROUGH 11139.8
A. Statutory Text
Vang’s third cause of action attempted to state a violation of Government Code
sections 11135 through 11139.8. The article in the Government Code containing sections
11135, 11136, 11137, 11139 and 11139.8 addresses discrimination by state agencies.
Government Code section 11135 applies to the California State University and its
subdivision (a) states:
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“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 agency, is funded directly by the state, or
receives any financial assistance from the state.”
Government Code section 11136 addresses the enforcement of this anti-
discrimination provision by stating that “[w]henever a state agency that administers a
program … funded directly by the state … has reasonable cause to believe that a … local
agency has violated the provisions of Section 11135 [or certain other statutes], the head
of the state agency, or his or her designee, shall notify the … local agency of such
violation and shall submit a complaint detailing the alleged violations to the Department
of Fair Employment and Housing for investigation and determination pursuant to Article
1 (commencing with Section 12960) of Chapter 7 of this code.” (Gov. Code, § 11136.)
In addition, Government Code, section 11137 states that “[i]f it is determined that a …
local agency has violated the provisions of this article, pursuant to the process described
in Section 11136, the state agency that administers the program … involved shall take
action to curtail state funding in whole or in part to such … local agency.”
Government Code section 11139 clarifies the remedies available by stating that
“[t]he prohibitions and sanctions imposed by this article are in addition to any other
prohibitions and sanctions imposed by law.” It also states that “[t]his article and
regulations adopted pursuant to this article may be enforced by a civil action for equitable
relief, which shall be independent of any other rights and remedies.” (Ibid.) The term
“equitable relief” includes injunctive relief and excludes money damages. (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 594–595.) Thus, on the
threshold question of whether the Legislature intended to create a private right of action,
Government Code section 11139 demonstrates a clear legislative intent to allow private
18.
enforcement of the statute and to limit the private remedies to injunctive relief.
(Donovan, supra, at p. 595.)
B. Analysis of the Sufficiency of Vang’s Allegations
The trial court determined Vang’s claim of discrimination was not based on any of
the protected characteristics set forth in the statute and, therefore, he failed to allege a
violation of Government Code section 11135. Vang contends violations of Government
Code section 11135 occurred because he was “unlawfully denied full and equal access to
the benefits of [a] program … administered by [the University]” and he also was
“unlawfully subjected to discrimination” in a program administered by the University.
(Gov. Code, § 11135.)
Not all denials of access to the benefits of a graduate program are unlawful for
purposes of Government Code section 11135. Similarly, not every type of alleged
discrimination is unlawful for purposes of Government Code section 11135. The types
of denials of access and discrimination made unlawful by Government Code section
11135 are identified by the phrase “on the basis of” and the list of personal characteristics
set forth after that phrase. Identifying oneself as an impact geologist and associating with
impact geologists are not among the characteristics listed in the statute. Furthermore, the
statute does not expressly make it unlawful to distinguish between students who are
outstanding (or perceived to be outstanding) and those that are not.
The plain meaning of the words used in Government Code section 11135 do not
reach the denial of access and discrimination alleged by Vang. (Hughes v. Board of
Architectural Examiners (1998) 17 Cal.4th 763, 775 [courts usually adopt the plain
meaning of statutory language].) Our inquiry does not end at the statute’s plain meaning
because in certain situations statutory language is not given its literal or plain meaning.
For instance, a statute is not to be given its plain meaning if doing so would result in
absurd consequences. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) The
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rationale for this rule of statutory construction is that the Legislature did not intend to
create absurdities. (Ibid.) In this case, Vang has not demonstrated that the plain meaning
of the statute produces absurd consequences. Therefore, we adopt the plain meaning of
Government Code section 11135 and conclude the discrimination and denial of access
alleged by Vang do not violate that statute. Accordingly, Vang’s third cause of action
fails to state a cause of action.
V. UNRUH CIVIL RIGHTS ACT
A. Legal Principles
Vang’s fourth cause of action alleged a violation of the Unruh Act. The
Legislature enacted the Unruh Act in 1959 to secure equal access to public
accommodations and prohibit discrimination by business establishments. (Harris v.
Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1150 (Harris).) The Unruh Act
provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no
matter what their sex, race, color, religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, sexual orientation, citizenship, primary
language, or immigration status are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments of every kind
whatsoever.” (Civ. Code, § 51, subd. (b).) The breadth of this provision is limited by the
next subdivision, which states: “This section shall not be construed to confer any right or
privilege on a person that is conditioned or limited by law or that is applicable alike to
persons of every sex, color, race, religion, ancestry, national origin, disability, medical
condition, marital status, sexual orientation, citizenship, primary language, or
immigration status, or to persons regardless of their genetic information.” (Civ. Code, §
51, subd. (c).)
The Unruh Act’s fundamental purpose is “to secure to all persons equal access to
public accommodations ‘no matter’ ” their personal characteristics. (Harris, supra, 52
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Cal.3d at p. 1169.) It seeks to accomplish this purpose by prohibiting “arbitrary
discrimination by business establishments.” (In re Cox (1970) 3 Cal.3d 205, 216.) The
particular kinds of discrimination identified in the Unruh Act’s text are regarded by
California courts as illustrative and the proscription against arbitrary discrimination
extends beyond these enumerated classes. (Id. at p. 212.) Nonetheless, the listed factors
bear the common element of being personal characteristics of an individual and,
therefore, the Unruh Act is construed to confine its reach to forms of discrimination
similar to the statutory characteristics—such as a person’s physical attributes, personal
beliefs or geographical origin. (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138,
1145.) Consequently, California courts recognize that the Unruh Act does not prohibit
all discrimination. (Ibid.) For example, business establishments may treat people
differently based on their “financial status or capability.” (Harris, supra, at p. 1161.)
In Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824 (Koebke), the
Supreme Court noted Harris did not define the phrase “personal characteristic.”
(Koebke, supra, at p. 842.) Instead, the court “indicated that, at minimum, it
encompassed both the categories enumerated in the [Unruh] Act and those categories
added to the [Unruh] Act by judicial construction.” (Ibid.) The protected categories
“represent traits, conditions, decisions, or choices fundamental to a person’s identity,
beliefs and self-definition.” (Id. at pp. 842–843.)
Broadly stated, the issue presented is whether one or both of the traits alleged by
Vang are protected from discrimination by the University. Under the multiple prong
approach adopted by our Supreme Court, this issue can be restated as whether Vang’s
“claim of discrimination under the [Unruh] Act is based on a classification that involves
personal characteristics.” (Koebke, supra, 36 Cal.4th at p. 841.) There are three ways a
personal characteristic may be protected by the Unruh Act. First, it may be explicitly
listed in the statutory text. Second, it may have been “added to the [Unruh] Act by
judicial construction.” (Koebke, supra, at p. 842.) Third, if not previously identified by
21.
statute or judicial decisions, a court might construe the statute to reach the new
characteristic and add that characteristic to those already recognized.
B. Application of Principles
First, the text of the Unruh Act does not list impact geologists or students who are
not perceived to be outstanding as being “entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments of every kind
whatsoever.” (Civ. Code, § 51, subd. (b).) Second, the parties have not cited, and we
have not located, any judicial decision adding impact geologists or students who are not
perceived to be outstanding to the personal characteristics list explicitly set forth in the
Unruh Act.
Consequently, the question comes down to whether this court, as a matter of
statutory construction, should add one or both of those traits to the list of personal
characteristics protected by the Unruh Act. We conclude neither trait should be protected
by the Unruh Act.
First, whether a student is, or is perceived to be, outstanding, provides a university
with a legitimate business reason for providing different treatment to students. We agree
with the trial court that the University “has significant pedagogical, academic and
reputational interests which are served by differentiating between students seeking
degrees based on their academic accomplishments and (for masters students) peer-
reviewed research topics.” Consequently, we will not construe the Unruh Act as
requiring universities to provide equal advantages and services to all master’s students by
allowing each student to select his or her own research thesis topic.
Second, universities have a legitimate business reason for treating a student
differently for being an impact geologist and associating with impact geologists. If the
Unruh Act made such a distinction unlawful, every campus of the California State
University and the University of California would be required to allow graduate students
22.
to pursue thesis topics relating to impact geology regardless of whether the faculty at that
campus had any interest or expertise in the area. Such a requirement would undermine
the quality of the graduate program, including the quality of instruction and guidance
received by the graduate student. Therefore, University had legitimate reasons for
discriminating against Vang based on his status as an impact geologist or his association
with impact geologists and the consequences to deeming such discrimination unlawful
would harm rather than improve higher education in California.
Based on the foregoing, we conclude the type of discrimination alleged by Vang is
not arbitrary or unlawful for purposes of the Unruh Act. Thus, the trial court properly
sustained the demurrer to Vang’s fourth cause of action.
VI. POLITICAL REFORM ACT
A. Allegations
Vang’s fifth cause of action alleged a violation of the Political Reform Act of
1974, Government Code sections 81000 through 91014. Vang alleged defendant Nef, the
vice provost, was paid with state monies and must be loyal to his employer, the
University. Vang alleged Nef participated in making a decision on Vang’s EO-1063
complaint, Nef had an economic interest in that decision, and, thus, Nef had a conflict of
interest.
Vang alleged Nef had at least two identifiable economic interests for purposes of
the Political Reform Act because (1) Nef held the position of vice provost at the
University and (2) his source of earned income came from the University. Vang alleged
Nef “will not openly admit any wrongdoing that will put his superiors in a vulnerable
position in a potential lawsuit, because a loss in the university’s finances may mean a cut
to his income.” In addition, Vang alleged Nef’s promotional possibilities to the position
of provost and vice president were implicated by his decision on the EO-1063 complaint
23.
and “[t]hat promotion may not be possible if he places his superiors in a legally
indefensible position. (e.g. quid pro quo).”
Reiterating these points, Vang alleged “Nef’s executive decision [regarding the
EO-1063 complaint] has a material financial effect on his economic interests” and “[i]t is
reasonably foreseeable that … Nef’s economic interest is materially affected.” Vang
alleged Nef knew his participation in the decision was a violation of the Political Reform
Act and, to comply with the act, Nef should have recused himself.
B. Overview
1. Statutory Provisions
Chapter 7 of the Political Reform Act addresses conflicts of interest by public
officials. This chapter contains Government Code section 87100, which states: “No
public official at any level of state or local government shall make, participate in making
or in any way attempt to use his official position to influence a governmental decision in
which he knows or has reason to know he has a financial interest.”
Government Code section 87103 provides in relevant part: “A public official has
a financial interest in a decision within the meaning of Section 87100 if it is reasonably
foreseeable that the decision will have a material financial effect, distinguishable from its
effect on the public generally, on the official [or] a member of his or her immediate
family ....” The Political Reform Act does not define the term “reasonably foreseeable.”
In Smith v. Superior Court (1994) 31 Cal.App.4th 205, the court determined an event is
“reasonably foreseeable” if there is a substantial likelihood it will occur. (Id. at p. 212.)
This definition does not require certainty and it does not encompass a mere possibility.
(Ibid.)
2. Regulations
Regulations have been promulgated to help explain the application of the conflict
of interest provisions in the Political Reform Act. (See Cal. Code Regs., tit. 2, §§ 18700–
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18760 (Regulations).)4 For instance, the steps undertaken to determine whether a public
official has a prohibited conflict of interest are set forth in subdivision (d) of Regulation
18700, which provides in relevant part:
“(1) Step One: Is it reasonably foreseeable that the governmental decision
will have a financial effect on any of the public official’s financial
interests? To determine if the financial effect is reasonably foreseeable,
apply Regulation 18701. If the answer is no, there is no conflict of interest
under the Act. If the answer is yes, proceed to Step Two.
“(2) Step Two: Will the reasonably foreseeable financial effect be
material? To determine if the reasonably foreseeable financial effect is
material, apply Regulation 18702. If the answer is no, there is no conflict
of interest under the Act. If the answer is yes, proceed to Step Three.”
Regulation 18701, subdivision (b) sets forth the general principle that where “the
financial effect can be recognized as a realistic possibility and more than hypothetical or
theoretical, it is reasonably foreseeable.” In contrast, “[i]f the financial result cannot be
expected absent extraordinary circumstances not subject to the public official’s control, it
is not reasonably foreseeable.” (Ibid.) The Regulation also provides a nonexclusive list
of factors to consider in determining whether a financial effect is reasonably foreseeable:
“(1) The extent to which the occurrence of the financial effect is contingent
upon intervening events, not including future governmental decisions by
the official’s agency, or any other agency appointed by or subject to the
budgetary control of the official’s agency.
“(2) Whether the public official should anticipate a financial effect on his or
her financial interest as a potential outcome under normal circumstances
when using appropriate due diligence and care.
“(3) Whether the public official has a financial interest that is of the type
that would typically be affected by the terms of the governmental decision
or whether the governmental decision is of the type that would be expected
to have a financial effect on businesses and individuals similarly situated to
4 The parties’ appellate briefing does not mention the existence of the Regulations
and, consequently, does not analyze their application to the facts alleged in the SAC.
25.
those businesses and individuals in which the public official has a financial
interest.
“(4) Whether a reasonable inference can be made that the financial effects
of the governmental decision on the public official’s financial interest
might compromise a public official’s ability to act in a manner consistent
with his or her duty to act in the best interests of the public.
“(5) Whether the governmental decision will provide or deny an
opportunity, or create an advantage or disadvantage for one of the official’s
financial interests, including whether the financial interest may be entitled
to compete or be eligible for a benefit resulting from the decision.
“(6) Whether the public official has the type of financial interest that would
cause a similarly situated person to weigh the advantages and disadvantages
of the governmental decision on his or her financial interest in formulating
a position.” (Regulation 18701, subd. (b).)
Of particular significance in this appeal is the guidance the Regulations provide as
to the meaning of the phrase “material financial effect” that appears in Government Code
section 87103. The financial interests identified in Vang’s allegations involve Nef’s
personal finances—specifically, his interests in avoiding a decrease in his compensation
as vice provost and the prospect for an increase in compensation due to a promotion.
Regulation 18702.5, subdivision (b) states that “a personal financial effect is not material
if the decision would: [¶] … [a]ffect only the salary, per diem, or reimbursement for
expenses the public official … receives from a … government agency .…” (Italics
added.)
Based on Regulation 18702.5, subdivision (b), we need not decide whether Nef’s
decision on the EO-1063 complaint had a reasonably foreseeable effect on Nef’s
financial interest in his personal finances. The Regulation establishes that the alleged
personal financial effect would not be “material” for purposes of the Political Reform
Act. Consequently, the answer to step two of the conflict of interest analysis is “No.”
(See Regulation 18700, subd. (d)(2).) This answer establishes that “there is no conflict of
interest under the [Political Reform] Act.” (Ibid.)
26.
Consequently, Vang’s theory about a conflict of interest does not set forth a
violation of the Political Reform Act. Therefore, the trial court properly sustained the
demurrer to the Vang’s fifth cause of action.
VII. BREACH OF CONTRACT
A. Allegations
Vang’s sixth cause of action alleged defendants breached an implied contract. The
content or terms of the contract are identified in Vang’s allegation that implied contracts
are formed between the University and student because the University’s publications and
advertisements are an invitation to enter a contract and an implied contract is created
when a student accepts the University’s offer of enrollment. Vang also alleged the
University formed a contract with him to uphold statutory law and cited the statutes
addressed in parts II through VI of this opinion. Thus, Vang argues the contractual terms
included both University’s publications and the statutes identified in the SAC. One of the
publications cited by Vang is the University’s policy on disruptive classroom behavior.
A paragraph labeled “ACADEMIC FREEDOM” states: “Students and faculty must be
free to pursue truth as well as personal and intellectual development. A necessary
condition of such pursuit is an acceptance of the spirit of inquiry and an appreciation for
diverse ideas, viewpoints, cultures, and life-styles. This condition must exist in both the
classroom and the overall campus environment.” Vang interprets this policy as a promise
of full freedom of inquiry.
As to the “breach” element of his contract claim, Vang contends defendants
“breached their contract with [him] by opposing his full freedom of inquiry at [the
University].” Paragraph 233 of the SAC alleged defendants “broke their promises by
discrimination, by not providing educational equality, accommodation, equity, and
quality, by preventing [Vang] from addressing issues that are central to his full
27.
development as a responsible citizen, and by handling decision-making issues in which
they have conflict[s] of interest.”
B. Trial Court’s Decision
The trial court considered Vang’s breach of contract cause of action and sustained
the special demurrer for uncertainty and the general demurrer for failure to state a cause
of action. The court concluded California law required the claim submitted under
Government Claims Act to fairly reflect the factual basis for recovery and applied this
standard to determine Vang’s claim did not assert any breach of contract claim. Thus, the
court concluded the contract claim was vulnerable to demurrer.
Relying on Kashmiri v. Regents of University of California (2007) 156
Cal.App.4th 809, the trial court also concluded Vang failed to allege a statement by the
University that was sufficiently definite and specific to qualify as a term in a contract. In
Kashmiri, the First District stated: “Universities frequently publish numerous catalogues
and bulletins, but not all statements in these publications amount to contractual
obligations.” (Id. at p. 829.) On the question of which statements might create a
contractual obligation and which statements do not, the First District stated that “courts
have not interpreted general and vague declarations or promises in university publications
as creating contractual obligations.” (Id. at p. 832.)
The trial court also addressed Vang’s theory that the contract included the
University’s promise to follow all statutory laws. The court determined Vang had failed
to state a claim for any violation or breach of any mandatory statutory duty and,
therefore, he also failed to state a contractual claim based on a statutory violation.
C. Basic Principles
1. Contract Formation and Breach
A plaintiff must plead and prove the following elements to establish a cause of
action for breach of contract: (1) the existence of the contract, (2) the plaintiff’s
28.
performance or excuse for nonperformance, (3) the defendant’s breach of a contract term,
and (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821; see CACI No. 303 [breach of contract—essential elements].) In
turn, the first element—the existence of a contract—requires: “1. Parties capable of
contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A sufficient cause or
consideration.” (Civ. Code, § 1550; see CACI No. 302 [contract formation].) “The
consent of the parties to a contract must be: [¶] 1. Free; [¶] 2. Mutual; and, [¶] 3.
Communicated by each to the other.” (Civ. Code, § 1565.) “Consent can be
communicated with effect, only by some act or omission of the party contracting, by
which he intends to communicate it, or which necessarily tends to such communication.”
(Civ. Code, § 1581.) The manifestation of mutual consent often is achieved through the
process of an offer being made and then accepted. (Alexander v. Codemasters Group
Limited (2002) 104 Cal.App.4th 129, 141 (Alexander); see CACI Nos. 307–311 [offer
and acceptance].)
An aspect of mutual consent involves the clarity of the terms of the agreement
made. “To form a contract, an ‘offer must be sufficiently definite … that the
performance promised is reasonably certain.’ ” (Alexander, supra, 104 Cal.App.4th at p.
141.) The terms of a contract must be “reasonably certain” so those terms provide a basis
for determining whether a breach occurred and for giving an appropriate remedy. (Ibid.)
Thus, when a court determines a contract term is too indefinite to be enforceable, it
means the parties did not form an agreement on the matter addressed by that term. (Id. at
p. 142.) The certainty requirement underlies the principle stated in Kashmiri that “courts
have not interpreted general and vague declarations or promises in university publications
as creating contractual obligations.” (Kashmiri, supra, 156 Cal.App.4th at p. 832.)
29.
2. Claims Against a Public Entity
In Stockett v. Association of California Water Agencies Joint Powers Ins.
Authority (2004) 34 Cal.4th 441 (Stockett), the California Supreme Court stated the
principles that, after a claim under the Government Claims Act is rejected and the
plaintiff “files a complaint against the public entity, the facts underlying each cause of
action in the complaint must have been fairly reflected in a timely claim.” (Id. at p. 447.)
In other words, a cause of action in a complaint is subject to demurrer if it alleges a
factual basis for recovery that is not fairly reflected in the written claim. (Ibid.)
D. Application of Principles
1. Scope of Vang’s Claim Document
Vang argues the trial court erred in concluding that the 43-page claim he
submitted under the Government Claims Act did not assert a breach of contract claim.
Vang states the claim used the word “contract” five times and refers to the claim’s
quotation of provisions in Civil Code section 51.7 that used the word “contract” twice.5
Based on these references to the term “contract,” Vang contends “the breach of contract
was not ‘wholly absent’ in the government claims, but spoken for through the statutes
used.” Our review showed that Vang’s claim document alleged statutory violations.
Therefore, to the extent Vang’s breach of contract cause of action is based on violations
of those statutes, that basis was “fairly reflected” in the claim document. (See Stockett,
supra, 34 Cal.4th at p. 447.)
The next question is whether any of the statutory violations alleged in the claim
document constitute a breach of the terms of a contract between Vang and the University.
We assume without deciding that the terms of the statute are incorporated into the alleged
contract between Vang and the University. As a result, we consider whether the
allegations identify a “breach” of those terms. Like the trial court, we have concluded
5 Civil Code section 51.7 “shall be known, and may be cited, as the Ralph Civil
Rights Act of 1976.” (Civ. Code, § 51.7, subd. (a).)
30.
Vang’s allegations do not state a violation of the statutes. It follows that he has failed to
adequately allege the contract was breached as a result of statutory violations.
2. Certainty Requirement
Vang contends the contract he entered with the University includes a term that
promised him full freedom of inquiry at the University. He alleged defendants breached
that term by opposing his full freedom of inquiry. Under the principles of contract law
requiring certainty, as specifically applied to universities, we conclude the promise of full
freedom of inquiry is too indefinite to be enforceable under the facts alleged in Vang’s
SAC. In other words, it is uncertain whether such a promise included the right to choose
a master’s thesis research topic and precluded the University from rejecting the choice
made by Vang. For example, it is possible to interpret the freedom of inquiry as having
been satisfied in the case because Vang (1) was allowed to do his field research and
review authorities on the subject of impact geology, (2) was allowed to work up the
results of his field and academic research, and (3) was allowed to inquire of the faculty
whether any member would act as his advisor. Stated from another perspective, it is
unclear whether a promise of freedom of inquiry includes the more specific promise of
allowing a master’s student to complete a thesis project on a topic chosen by the student.
As a result, under the principle that the reasonableness of the student’s expectation as to
the contractual obligations undertaken by a college or university are “measured by the
definiteness, specificity, or explicit nature of the representation at issue” (Kashmiri,
supra, 156 Cal.App.4th at p. 832), we conclude any promise of full freedom of inquiry is
too indefinite to constitute an enforceable contractual term in the particular circumstances
of this case.
We also conclude the requisite certainty does not exist as the allegations that the
University breached its promises (1) not to discriminate, (2) to provide educational
equality, accommodation, equity and quality, and (3) to allow Vang to address issues
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central to his full development as a responsible citizen. These breaches were alleged in
paragraph 233 of the SAC. Such promises, in the university setting, are too general to
create a reasonable expectation that a graduate would be allowed to choose his or her
own thesis topic. (Kashmiri, supra, 156 Cal.App.4th at p. 832.)
In summary, we conclude Vang failed to allege the breach of an enforceable
contractual obligation. As a result, the trial court properly sustained the demurrer to
Vang’s sixth cause of action.
VIII. ACTUAL FRAUD AND DECEIT
A. Background
The elements of a cause of action for fraud or deceit are (1) misrepresentation, (2)
knowledge of the falsity or scienter, (3) intent to defraud—that is, induce reliance, (4)
justifiable reliance, and (5) resulting damages. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638; see Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092 [plaintiff in
action for deceit must plead common law element of actual reliance]; cf. Civ. Code, §
1572 [actual fraud] with Civ. Code, § 1710 [deceit defined].) These elements “must be
pled specifically; general and conclusory allegations do not suffice.” (Lazar, supra, at p.
645.) The requirement for specific allegations “ ‘necessitates pleading facts which “show
how, when, where, to whom, and by what means the representations were tendered.” ’ ”
(Ibid.; see Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1091 [plaintiff’s
conclusory allegation of reliance was insufficient under rules that require fraud to be pled
specifically].)
B. False Statement of Material Fact
Vang’s seventh cause of action is labeled actual fraud and intentional deceit.
Vang contends the trial court erred in concluding he failed to adequately allege a
statement of material fact which defendants knew to be false. Vang refers to paragraph
251 of the SAC, which alleged defendants promised to “provide an environment in which
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research and professional activity are valued and supported, a free and open scholarly
inquiry for the exploration and appreciation of diverse ideas and viewpoints, be
responsive to the needs of citizens of this state, and show respect for and due
consideration of the role and contributions that each member of the university
community, including the student, makes toward the mission of the university.” Vang
also alleged the University’s conflict of interest handbook includes the promise not to
make decisions where the University employee has a conflict of interest. Vang alleged
that, contrary to these promises, “in a correspondence letter dated February 29, 2016,
Defendants stated that [Vang] is not free to choose a thesis research … and, that [he]
would be removed if he did not choose a thesis research within the existing fields of the
[EES] Department.”
C. Analysis
First, we conclude that Vang has failed to allege sufficient facts to show that he
was made a false promise that decisions about his participation in the graduate program
would be made by University employees who did not have a conflict of interest. As
discussed earlier, Nef did not have a material financial interest in the decisions made
about Vang’s thesis topic and his participation in the graduate program. Because no
conflict of interest existed, a fraud cannot be alleged on the ground defendants broke their
promise not to participate in a decision in which they had a conflict of interest.
Second, the promise to provide free and open scholarly inquiry and to provide an
environment that supports and values research and professional activity were not shown
to have been false by the University’s statement that Vang was not free to choose a thesis
research topic. Moreover, as discussed in the analysis of Vang’s breach of contract
claim, such statement did not create a reasonable expectation that Vang would be allowed
to choose his own thesis research topic. Rephrasing this determination in the language
used to specify the elements of fraud, Vang is unable to allege that he reasonably relied
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on the general statements made in University publications as a representation that he
would be allowed to choose his own research topic.
IX. OTHER ISSUES
A. Appellate Procedure
Defendants contend that Vang’s failure to properly cite the appellate record in his
opening brief constitutes a forfeiture or waiver of his arguments and, therefore, this court
should disregard those arguments. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Based on
our conclusions that Vang has failed to allege facts sufficient to state a cause of action,
we need not reach this issue.
Defendants also contend the appeal should be denied because the appellant’s
appendix is inadequate. For instance, defendants argue the failure to include their
demurrer to the SAC violates the provision stating an appellant’s appendix must contain
“any item that the appellant should reasonably assume the respondent will rely on.” (Cal.
Rules of Court, rule 8.124(b)(1)(B).) We do not reach this issue.
B. Leave to Amend
When a pleading omits an essential allegation, the next step of a trial or appellate
court’s analysis addresses “whether there is a reasonable possibility that the defect can be
cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Generally, the
plaintiff has the burden of demonstrating a reasonable possibility that the defect can be
cured by amendment. (Ibid.) Here, Vang has not carried this burden of demonstrating he
could cure any of the defects in his causes of action. Instead, he argued he “did not bring
this case regarding [defendants’] discretionary action, but under causes of action
regarding violating his full freedom of inquiry that is protected by state
law/Constitution.” He states that if this court determines additional elements are
necessary for the SAC to be complete, he requests leave to amend. This general request
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does not carry his burden of demonstrating a reasonable probability that a particular
defect could be cured if he were granted leave to amend.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
SNAUFFER, J.
DESANTOS, J.
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