Case Number: 17STLC01411 Hearing Date: May 29, 2018 Dept: 94

Defendants’ Motion for Judgment on the Pleading is GRANTED. The Court DENIES leave to amend, absent a showing from Plaintiff as to the means by which the complaint could be successfully amended.

Background

On February 9, 2017, Plaintiff Simaalsadat Masajedian (“Plaintiff”) filed, in pro per, this action based on promissory estoppel against Defendants Los Angeles Community College District (“LACC”), Eric C. Kim (“Kim”), Bernadette Tchen (“Tchen”), Reneé D. Martine (“Martine”), Scott J. Svonkin, Sydney K. Kamlager, Mike Fong, Mike Eng, Andra Hoffman, Ernest H. Moreno, Nancy Pearlman, Michael J. Farrell (“Farrell”), and Thelma Day (“Day”) (collectively, “Defendants”). The complaint asserts three causes of action for promissory estoppel, and one cause of action for civil conspiracy. Shortly thereafter, Plaintiff filed a “First Amendment to Complaint,” providing additional factual allegations, although it does not appear to assert any additional cause of action.

On April 17, 2018, the instant motion came on for hearing. The Court continued the matter to May 29, 2018, in order to compel Defendants to meet and confer with Plaintiff regarding the motion. As ordered by the Court, Defendants’ filed a meet and confer declaration on May 17, 2018, wherein they indicated the parties were unable to resolve their dispute.

Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Discussion

Request for Judicial Notice

Defendants request judicial notice of (1) Plaintiff’s governmental claim; (2) Defendants’ response to that claim, and (3) the Fall 2015 class calendar for East Los Angeles College (“ELAC”). Judicial notice is GRANTED as to the first two documents. As to the third, the Court DENIES judicial notice as to the document itself, but agrees to take judicial notice of the fact that ELAC’s fall semester lasted from August 21, 2015, to December 20, 2015, on the ground such dates are not reasonably subject to dispute.

Plaintiff requests that the Court judicially notice (1) the text of CCP § 439; (2) the fact that she filed two claims with LACCD; (3) the fact that LACCD is supposed to require forms for complaints based on personal injury and those based on harms other than personal injury, and that LACCD has wrongfully only provided the former, thus requiring Plaintiff to handwrite her form; (4) the fact that Judge Michelle Williams Court (Dept. 74) and Monica Bachner (Dept. 71) have concluded that Plaintiff’s government claims were timely filed; (5) the fact that Judge Court has ruled that the California Code of Regulations applies to LACCD; (6) the text of Gov. Code §§ 910.8 and 911.2.

Plaintiff’s request is GRANTED as to the text of CCP § 439 and Gov. Code §§ 910.8 and 911.2. In all other respects, Plaintiff’s request is DENIED, because Plaintiff has not provided any evidence of the facts for which judicial notice is sought (i.e., there is no evidence Defendants do not have two different forms, Plaintiff has not provided a copy of her two claims, and Plaintiff has not provided copies of (or even case numbers and dates for) any other rulings by other judges for this Court to review).

Government Claims Act

Defendants argue that Plaintiff did not comply with Government Code § 911.2. Plaintiff filed a claim with Defendant LACCD, dated July 6, 2016, and received by LACCD general counsel on July 12, 2016. (Amendment to Compl. Exh. B; Defendants’ RJN Exh. A.) LACCD rejected some of the claims as untimely, and as to the portions that were timely, LACCD rejected them as well. (Defendants’ RJN Exh. B.) The notice of rejection does not specify which claims were timely and which were not. Plaintiff’s first cause of action relates to events from the fall of semester of 2015. (Compl. ¶ 59.) The second cause of action relates to events from February 19, 2016, or later. (Compl. ¶ 101.) The third cause of action relates to events from the spring semester of 2015. (Compl. ¶ 118.)

Defendants argue that Government Code § 911.2(a) provides that claims against the government arising in tort must be filed within six months and claims arising in contract must be filed within one year. Defendants assert that Plaintiff’s causes of action for promissory estoppel sound in tort, not contract, and as such, are subject to the six-month filing deadline.

Government Code § 911.2(a) provides, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.”

“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” (U.S. Ecology, Inc. v. State (2005) 129 Cal.App.4th 887, 905.)

“[A] claim for promissory estoppel is an equitable theory rooted in contract, not tort.” (Piccinini v. California Emergency Management Agency (2014) 226 Cal.App.4th 685, 689.) However, a claim for promissory estoppel may arise in tort if the claim is based on a noncontractual duty. (Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.) “If unclear, the action will be considered based on contract rather than tort.” (Id.; see also Roe v. State of California (2001) 94 Cal.App.4th 64, 69.)

Here, Plaintiff’s claims appear to arise out of Defendants course catalog and the descriptions therein. (Compl. ¶¶ 58, 114, 118.) Defendants argue that “[s]ince Plaintiff has not alleged any promise made by Defendants, or a breach of any such promise, the three causes of action for promissory estoppel, if any remain, must be based on tort.” (JOP p.7.) The court disagrees.

Plaintiff alleges that “[t]here were a [sic] clear promises in the LACC catalog about the class and even in the course description about the E 67 class. None of those promised were true…Plaintiff justifiably relied to LACC College…” (Compl. ¶¶ 78-79; see also ¶¶ 114, 118.) Defendants allege that the course catalog is not a promise, but merely information regarding classes. Defendants also argue that the course catalog is subject to change. Defendants cite no legal authority and provide no judicially noticeable documents in support of this argument.

As discussed above, promissory estoppel generally sounds in contract, not tort. If is it unclear, the action will be considered to arise under contract. Here, Plaintiff’s claims arise from representations in a course catalog. Defendants argue that this is not a contract but provide no authority for this claim. Further, Defendants do not present a noncontractual duty for which the claim is predicated upon. As such, the court finds that the claims for promissory estoppel sound in contract. At the very least, it is unclear, and as such, the court will consider it under contract.

Based on the foregoing, the court finds that Plaintiff’s claims were required to be filed within one year of their occurrence, rather than six months. As such, insofar as Plaintiff’s claims relate to events from the Fall Semester 2015, which began on August 21, 2015, or to events from February 2016, the July 2016 claim was timely. As to events from spring semester 2015, the Court lacks evidence regarding when, precisely that semester ended. It is therefore not clear from the face of the complaint when these allegations became untimely. Granting a motion for judgment on the pleadings on this ground would therefore be inappropriate.

Merits

Plaintiff’s complaint contains three causes of action for promissory estoppel, and one cause of action for civil conspiracy.

At some point, Plaintiff filed a “First Amendment to complaint.” Therein, Plaintiff alleges that she had a problem with one of her grades from a course taken at East Los Angeles College (ELAC), one of LACCD’s campuses. ELAC arranged for Plaintiff to speak with a representative who spoke her native language, Farsi, and just a few hours after the meeting, he emailed Plaintiff to confirm that he had spoken to the professor, and that Plaintiff’s grade had been raised. (Amendment ¶¶ 10-16, 19.) However, Plaintiff still complains about this issue because the procedure used to change her grade at ELAC was different from a procedure used to change her grade when she took a course at Los Angeles Trade Tech College (LATTC), another LACCD campus. (Amendment ¶ 17.) Plaintiff argues the foregoing provides additional confirmation that LACCD is not consistent in its application of rules and procedures across various campuses.

The Court concludes the foregoing does not constitute an independent cause of action. Plaintiff’s allegations seek generally to demonstrate that Defendants are lawless, but it does not assert any apparent harm or basis for liability.

Accordingly, the Court concludes Plaintiff’s claim is limited to the four causes of action asserted in the Complaint.

First Cause of Action

“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” (U.S. Ecology, Inc. v. State (2005) 129 Cal.App.4th 887, 905.)

The first cause of action asserts that Defendants, through the LACCD course description and course catalog, represented that English 67 and English 28 are corequisites, meaning they must be taken simultaneously, and if one is not passed, the student fails both. (Compl. ¶¶ 58-63.) Though not entirely clear, it appears Plaintiff passed both classes. (Compl. ¶¶ 55, 88.) However, Plaintiff alleges English 67 was a waste of time, because rather than provide a teacher and classroom experience, as promised, English 67 simply involved students sitting in a classroom with a tutor available to answer questions. (Compl. ¶¶ 60-61, 70-76.) Plaintiff argues this did not match the course description. Plaintiff argues it was illegal for Defendants to give her a grade based on the amount of time spent in a room, rather than based on a final exam, and she further alleges she was traumatized by witnessing her classmates fail this class based solely on the lack of time spent in the room, rather than on any failed exam. (Compl. ¶¶ 89-91, 93-95, 99.)

The Court concludes the foregoing is insufficient to state a cause of action for promissory estoppel. The first promise alleged are that English 67 and English 28 are corequisites. Plaintiff relied on this promise in taking both courses. It does not appear, however, that Plaintiff was injured by relying on this promise. Plaintiff took both courses, and passed both courses, which was in fact a requirement asserted by Defendants. There is no allegation as to how Plaintiff was injured by the fact that these were corequisites other than that she felt one of the causes of action was a waste of time. The Court concludes feeling that time was wasted is not a cognizable injury here.

The second promise alleged is, essentially, that English 67 did not match Plaintiff’s expectations based on the course description. The course description states that English 67 is a “Writing Laboratory” where “Students practice the writing skills presented in English 28.” (Compl., Exh. B.) Nothing in Plaintiff’s description of the course—a large room where students were required to spend their time and, if necessary, ask questions of a tutor—departs from that description. Accordingly, once again, there is no cognizable injury from Plaintiff relying on the representations in the course description and deciding to take this class.

Plaintiff also argues Defendants were required to provide grades based on an examination, rather than (apparently) the number of hours spent in the room. This is not really a claim for promissory estoppel; rather it is a claim for violation of Cal. Code Regs. § 55050, which governs examinations at community colleges. (See Compl. ¶ 90.) While Cal. Code Regs. § 55050 provides that a community college “may grant credit to any student who satisfactorily passes an examination approved or conducted by proper authorities of the college,” nothing therein purports to require that credit only be granted based on an examination in every course offered. On the contrary, Cal. Code Regs. § 55021 provides broad authority for the “governing board of each community college” to “establish a uniform grading policy,” and requires that “[t]he grading policy shall require that all work in all . . . credit courses shall be graded in accordance with a grading system,” which at least arguably requires that a grade be based on all work done in a given class, rather than on a final examination alone. (Cal. Code Regs. §§ 55021(a)-(b).) Indeed, the examination provision cited by Plaintiff is contained in an article of the subchapter titled “Alternative Methods of Awarding Credit,” together with certain qualified high school courses and advanced placement examinations, suggesting that grades based solely on a final examination are an alternative to the standard grading system to be adopted by governing board.

For the foregoing reasons, the Court concludes Plaintiff’s first cause of action fails to allege sufficient facts to state a cause of action.

Second Cause of Action

The second cause of action, which is also for promissory estoppel, involves three incidents relating to a chemistry course. First, Plaintiff argues she was on a waitlist to take Chemistry 60 when she learned that, rather than take students off of the waitlist by lottery, as promised, the professor had individually added five students who emailed her directly requesting to add the course. She attaches emails showing that the department chair and the professor agreed this was wrong, and offering to permit Plaintiff to add the course, which Plaintiff argues is simply more evidence of LACCD’s lack of proper procedures. (Compl. ¶¶ 100-102.) Second, as part of that course, Plaintiff had to either purchase a textbook from the school (which would include access to various online features) or purchase a separate access code for certain online features, if she chose to purchase the textbook elsewhere. (Compl. ¶¶ 103-104.) Online access was essential to take required quizzes. (Compl. ¶ 105.) Plaintiff argues Defendants had no right to impose these additional costs on their students. Finally, Plaintiff argues Defendants misrepresented that Chemistry 65 would be worth 5 units of credit, rather than the 4 units actually received.

As to the first argument, the Court once again concludes Plaintiff has not alleged any cognizable injury. Defendants allegedly laid out a particular system for getting on a waitlist once a class was full. Plaintiff relied on that promise, and was placed on the waitlist. Plaintiff was very briefly injured when Defendants allowed other students to join the class through a procedure other than the waitlist procedure outlined. However, when Plaintiff raised the issue, Defendants apologized and agreed to allow Plaintiff to take the course. (Compl., Exh. M2.) Accordingly, per the evidence attached to Plaintiff’s own complaint, Defendants immediately remedied Plaintiff’s injury. There is accordingly no basis for Plaintiff to seek any recourse from the courts for this injury.

As to the second argument, Plaintiff fails to allege that Defendants have ever promised that there would be no additional costs to taking any course, such as by requiring that textbooks or online access codes be purchased. Once again, although labelled a cause of action for promissory estoppel, Plaintiff is not actually alleging that there was a breach of any promise. Rather, Plaintiff argues Defendants breached Cal. Code Regs. § 58102, which states, “A course description may indicate that the course is designed to meet certain specialized needs. If so indicated, the availability of the course to all qualified students must also be affirmed.” Plaintiff argues a course that requires additional purchases, such as a textbook or access code, constitutes a “specialized need” that must be disclosed in the course description.

The Court disagrees that this provision is in anyway related to Plaintiff’s situation. If nothing else, the provision is entirely permissive, rather than mandatory: A course description may indicate it is designed to meet certain specialized needs. Assuming, in some way, that requiring the use of online resources demonstrates that the course was designed to meet students specialized needs, Defendants were under no obligation to include that information in the course description.

Plaintiff also cites to Cal. Code Regs. § 51012, which states, “The governing board of a community college district may only establish such mandatory student fees as it is expressly authorized to establish by law.” Plaintiff implies that books and other costs constitute improper “fees.” The Court disagrees. Other provisions specifically provide for the creation of loans or scholarships to cover the costs of books and other supplies. (See, e.g., Cal. Code Regs. §§ 56608, 56258.) Based on this, the Court concludes such costs do not constitute an unauthorized fee under Cal. Code Regs. § 51012.

As to the final argument, Plaintiff appears to have conflated two unrelated courses. Plaintiff attaches as an exhibit a copy of the course guide showing that Chemistry 60 is a five-credit course, and a copy of her own schedule showing that she received four credits for Chemistry 65. (Compare Compl. Exh. H with Compl. Exh. N.) The Court concludes no promissory estoppel claim exists based on discrepancies related to these two different courses.

For the foregoing reasons, the Court concludes Plaintiff’s second cause of action fails to allege sufficient facts to state a cause of action.

Third Cause of Action

The third cause of action (which is mislabeled the “fourth cause of action” in the complaint) asserts that Defendants required Plaintiff to purchase a calculator for her Physics 7 course, without providing advance notice in the course catalog that such would be necessary. (Compl. ¶¶ 117-123.)

This argument fails for the same reason as the above arguments relating to the purchase of a textbook and online access code.

Fourth Cause of Action

Finally, in the fourth cause of action, Plaintiff argues that all Defendants should be jointly and severally liable for the foregoing, because they all worked in concert to violate her rights. (Compl. ¶¶ 125-126, 130, 133, 135, 149.)

Conspiracy is not a cause of action but a theory of liability. (See Moran v. Endres (2006) 135 Cal.App.4th 952, 954-55.) “Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out.” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323.) “The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design.” (Id.)

Because each of Plaintiff’s other causes of action have failed, there are no claims left to be subject to Plaintiff’s claim of a civil conspiracy.

Leave to Amend

Although leave to amend must be allowed where there is a reasonable possibility of successful amendment (see Goodman v. Kennedy (1976) 18 Cal.3d 335, 348), the burden is on Plaintiff to show the Court that a pleading can be amended successfully. (Id.) Based on her opposition and sur-reply, the Court sees no means by which Plaintiff could successfully amend the complaint to resolve the foregoing issues. Plaintiff’s claims failed either because she misunderstood the various regulations cited, or because she was not actually injured. It is unclear how she could rectify these problems.

The Court therefore denies leave to amend. However, the Court will permit Plaintiff an opportunity at the hearing to explain how she could successfully amend the complaint to fix the problems listed above.

Conclusion

Defendants’ motion for judgment on the pleadings is GRANTED.