Filed 3/23/20 Hicks v. Board of Trustees of the Cal. State University CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ANGELA HICKS,

Plaintiff and Appellant,

v.

BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY,

Defendant and Respondent.

B286336

Los Angeles County
Super. Ct. No. BC631669

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed.

Law Offices of Angela Swan and Angela Swan; Travis M. Poteat for Plaintiff and Appellant.

California State University Office of General Counsel and Katherine A. Winder for Defendant and Respondent.

_________________________

INTRODUCTION

Plaintiff appeals a judgment on the pleadings in favor of defendant the Board of Trustees of the California State University and its agents (CSU or the Board). In her operative first amended complaint, plaintiff asserted several causes of action for gender discrimination under state and federal statutes, based on the Board’s decision to suspend her from the California State University system for one year after she discharged pepper spray in her dorm room during an altercation with two of her roommates. The trial court concluded plaintiff failed to allege sufficient facts to state a claim for relief on any legal theory. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Consistent with the applicable standard of review, we draw our statement of facts from the allegations of plaintiff’s operative first amended complaint and other matters properly subject to judicial notice. (Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 764 (Orange Unified); Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.) “[W]e treat as true all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 178, fn. 3.)

Plaintiff began attending California State University, Los Angeles in the fall of 2015. She lived in the campus dorms with at least two other female roommates, J.H. and T.M.

In November 2015, one of plaintiff’s roommates, J.H., began yelling at plaintiff, who was in her dorm room, calling plaintiff “ ‘bitches’ ” [sic] and telling plaintiff she needed to come out of the room to talk. Plaintiff feared for her safety and attempted to close her bedroom door, but J.H. forced her way inside before plaintiff could do so. J.H. began “swinging her arms” at plaintiff, at which point plaintiff sprayed pepper spray to “protect herself.” J.H. continued “wildly swinging her arms,” as plaintiff’s other roommate, T.M., rushed into the room to help J.H. in the alleged assault. Plaintiff escaped the attack and immediately called the police.

In March 2016, after an unsuccessful effort to evict plaintiff from the campus dorms, CSU informed plaintiff that it intended to initiate disciplinary proceedings against her. CSU’s general counsel advised plaintiff that its “concern was to make sure that [the university] was not sued in the future because [plaintiff] had used pepper spray on campus.” Plaintiff requested “discovery” from CSU’s judicial affairs officer, but was informed “she would need to wait or that she could only briefly view witness statements.” CSU also denied plaintiff’s request to have an attorney present during the disciplinary hearing.

In June 2016, after the disciplinary hearing, CSU informed plaintiff that she had been suspended from the university for one year. After plaintiff enrolled in California State University, Dominguez Hills, she received a notification that she had been suspended from the entire California State University system.

On August 29, 2016, plaintiff filed a claim with CSU through its Risk Management and Public Safety Division. The claim form stated, under penalty of perjury, plaintiff had been attacked by her roommates, but, rather than provide her with “assistance,” the university “treated [her] as the aggressor in the incident and wrongfully kicked [her] out of [her] dorm, and suspended [her] from school.” Plaintiff’s claim did not charge CSU or the university with gender or any other form of discrimination.

On August 30, 2016, plaintiff filed her original complaint against CSU, asserting several causes of action, including gender discrimination in violation of Title IX of the Education Amendments of 1972. In connection with filing the action, plaintiff petitioned for a preliminary injunction enjoining CSU from enforcing the one-year suspension. On September 27, 2016, the trial court denied plaintiff’s preliminary injunction application. And, on May 1, 2017, the court granted CSU’s motion for judgment on the pleadings against the original complaint, with leave to amend.

On May 11, 2017, plaintiff filed her operative first amended complaint, asserting seven causes of action for (1) injunctive relief; (2) violation of Title IX of the Education Amendments of 1972; (3) violation of Title IV of the Civil Rights Act of 1964; (4) violation of VAWA/Campus Save Act; (5) violation of California Education Code section 66250; (6) violation of California Government Code section 11135; and (7) violation of Title VII of the Civil Rights Act of 1964.

CSU moved for judgment on the pleadings, arguing plaintiff’s damages claims were barred under the exhaustion of judicial remedies doctrine and, alternatively, plaintiff’s amended complaint failed to state a claim for relief on any legal theory.

The trial court granted CSU’s motion, without leave to amend, “for the reasons set forth in the moving papers.” In its written ruling, the court observed the “same issues were raised in the first motion for judgment on the pleadings, and appear uncorrectable.” The court entered judgment and plaintiff filed a timely notice of appeal.

DISCUSSION

1. Standard of Review

On appeal from a judgment on the pleadings, “the standard of review is the same as for a judgment of dismissal following the sustaining of a general demurrer.” (Orange Unified, supra, 54 Cal.App.4th at p. 764.) “[W]e review the complaint de novo to determine whether it alleges facts stating a cause of action on any possible legal theory. [Citation.] ‘ “ ‘We treat the [motion] as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” [Citations.]’ [Citation.] ‘Further, “we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” ’ ” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490 (Rossberg).)

When the trial court denies leave to amend, “we also must decide whether there is a reasonable possibility that the defect can be cured by amendment.” (Koszdin v. State Comp. Ins. Fund (2010) 186 Cal.App.4th 480, 487.) “The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] . . . [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ ” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) The requisite showing can be made for the first time on appeal. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.)

2. Plaintiff Concedes Her Request for Injunctive Relief Is Moot

Plaintiff’s first cause of action sought “injunctive relief that enjoins [CSU] from suspending [plaintiff] from enrollment as a student at Cal State University campuses or attempting to remove [plaintiff] from on[-]campus housing.” In her appellant’s reply brief, plaintiff explains that the reason she did not seek mandamus relief from CSU’s disciplinary decision was because such a petition would have “addressed a moot issue, namely [plaintiff’s] suspension from [California State University, Los Angeles] and [the California State University system] and prevention from residing at the dorms of [California State University, Los Angeles] and other dorms of [the California State University system].” (Italics added.) Because plaintiff effectively concedes her request for injunctive relief is moot, she cannot demonstrate prejudice from the dismissal of the claim. (Code Civ. Proc., § 475 [“No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed.”]; Cal. Const., art. VI, § 13.)

3. There Is No Private Right of Action for Damages under Title IV, the Violence Against Women Act, or Government Code section 11135

As CSU established in its motion for judgment on the pleadings, neither Title IV of the Civil Rights Act of 1964 nor the Violence Against Women Act provides a private right of action for civil damages. (See 42 U.S.C.A. §§ 2000c-6 & 2000c-8 [authorizing United States Attorney General to initiate action to desegregate public schools, and providing Title IV does not affect the right of private persons to sue for relief against discrimination in public education]; United States v. Morrison (2000) 529 U.S. 598, 626–627 [declaring civil remedies provision of Violence Against Women Act unconstitutional].) Plaintiff does not dispute that she has no private right to relief under these federal statutes. The trial court properly granted judgment in favor of CSU on the Title IV and Violence Against Women Act claims.

Similarly, an alleged violation of Government Code section 11135, which prohibits discrimination on the basis of sex by any program or activity that receives financial assistance from the state, does not support a private right of action for damages. As the court explained in Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 594–595 (Donovan): “When originally enacted in 1977, Government Code section 11135 . . . did not include an express private right of action. In Arriaga v. Loma Linda University (1992) 10 Cal.App.4th 1556 [ ] (Arriaga), the court declined to imply a private right of action under Government Code section 11135 and affirmed summary judgment for the defendant. . . . [¶] In response to Arriaga, the Legislature, in Assembly Bill No. 1670 (1999–2000 Reg. Sess.) amended Government Code section 11139 to expressly provide for a private right of action, but expressly limited enforcement to a ‘civil action for equitable relief.’ . . . [¶] [¶] Government Code section 11139 demonstrates that when the Legislature wanted to limit the remedies available in a private enforcement action to equitable or injunctive relief, it clearly knew how to do so.” (Italics omitted.) Because plaintiff concedes her former request for injunctive relief is moot, she cannot establish prejudice from the dismissal of her Government Code claim. (Code Civ. Proc., § 475; Cal. Const., art. VI, § 13.)

4. Plaintiff Failed to Allege Sufficient Facts to Support a Claim for Gender Discrimination under Title IX or the Education Code

Title IX of the Education Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (20 U.S.C.A. § 1681(a).) To state a claim for gender discrimination under Title IX, a plaintiff must allege sufficient facts to show (1) discrimination on the basis of sex; (2) an official of a covered institution had actual knowledge of the alleged discrimination; and (3) the official responded to that knowledge with deliberate indifference. (Gebser v. Lago Vista School Dist. (1998) 524 U.S. 274, 288–290 (Gebser) [rejecting claim that vicarious liability can support damages action under Title IX].) To establish actionable deliberate indifference, the alleged discrimination must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” (Davis v. Monroe County Bd. of Ed. (1999) 526 U.S. 629, 633 (Davis); Parker v. Franklin County Community School Corp. (7th Cir. 2012) 667 F.3d 910, 921–922.)

Like Title IX, our state’s Education Code prohibits discrimination on the basis of gender by any educational institution that receives financial assistance from the state. (Ed. Code, § 66270; see also Ed. Code, § 220.) Because the Education Code’s anti-discrimination provisions, like Title IX, “are designed primarily to prevent recipients of state funding from using such funds in a discriminatory manner” (Donovan, supra, 167 Cal.App.4th at p. 603), a plaintiff asserting a damages claim under the statutes must similarly allege “(1) he or she suffered ‘severe, pervasive and offensive’ harassment that effectively deprived plaintiff of the right of equal access to educational benefits and opportunities; (2) the [educational institution] had ‘actual knowledge’ of that harassment; and (3) the [institution] acted with ‘deliberate indifference’ in the face of such knowledge.” (Id. at pp. 579, 603–605 [following Gebser and Davis in action for damages under Ed. Code, § 220]; Videckis v. Pepperdine University (C.D.Cal. 2015) 100 F.Supp.3d 927, 935 [applying Donovan elements to claim under Ed. Code, § 66270].)

Plaintiff’s operative complaint states the following allegations in support of her Title IX claim: “Defendants discriminated against Plaintiff by instituting disciplinary charges against Plaintiff and causing her to be suspended from school because of her gender, and because she complained about being a victim of harassment. [¶] As [a] result of her gender, Plaintiff was subjected to being evicted from her dorm and placed . . . in an isolation dorm[,] [subjected to] disciplinary proceedings, suspended from all Cal State Universities[,] and subjected to criminal proceedings. This occurred as a result of the Plaintiff being in possession of pepper spray. [¶] This was unlawful discrimination based on gender. Such conduct comprised a practice of discrimination against Plaintiff.” The complaint continues with a series of allegations regarding causation and damages, but no other facts are alleged to support the claim of gender discrimination.

In her appellate briefs, plaintiff maintains the above allegations were sufficient to state a claim under Title IX because she “alleges that she suffered discrimination due to her gender.” While we must treat an attack on the pleadings “ ‘ “ ‘as admitting all material facts properly pleaded,’ ” ’ ” we do not blindly credit “ ‘ “ ‘contentions, deductions or conclusions of fact or law.’ ” ’ ” (Rossberg, supra, 219 Cal.App.4th at p. 1490, italics added.) The charge of gender discrimination is a legal conclusion that plaintiff must support with factual allegations satisfying the elements in Gebser and Davis to state a claim under Title IX. (See Gebser, supra, 524 U.S. at pp. 289–290; Davis, supra, 526 U.S. at p. 633.) None of the facts alleged in plaintiff’s complaint supports an inference that CSU based its disciplinary decision on plaintiff’s gender or that officials at CSU responded to actual knowledge of gender discrimination with deliberate indifference.

Furthermore, to the extent plaintiff identifies a specific factual basis for CSU’s decision, her complaint admits CSU took disciplinary action against her “as a result of the Plaintiff being in possession of pepper spray.” “California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) Thus, when a complaint makes both general and specific allegations, and a conflict or inconsistency exists between them, the specific allegation controls over the inconsistent general one and may render the complaint defective, particularly where the general allegation is one of ultimate fact. (Id. at pp. 1235–1236.) Here, the specific allegation that CSU suspended plaintiff because she was “in possession of pepper spray” in her dorm room, controls over the general and conclusory allegation that it “caus[ed] her to be suspended from school because of her gender.” Giving the complaint its most reasonable interpretation in light of these inconsistencies, it is apparent that plaintiff cannot allege discriminatory conduct “so severe, pervasive, and objectively offensive” that it effectively barred her from access to educational opportunities. (Davis, supra, 526 U.S. at p. 633; see also Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 618–619 [allegation that defendant published “ ‘untrue and false statements’ ” about plaintiff’s product on Facebook could not be considered in determining whether plaintiff’s libel and false light claims arose from protected activity under anti-SLAPP statute because general allegation was inconsistent with more specific allegation that several months later defendant wrote an article critical of plaintiff’s product and published it on co-defendant’s website].)

The same reasoning applies to plaintiff’s Education Code claim. As with her Title IX claim, plaintiff alleges CSU violated Education Code section 66250 by “instituting disciplinary charges against Plaintiff and causing her to be suspended from school because of her gender, and because she complained about being a victim of harassment.” She alleges, “[a]s a result of her gender,” she was “evicted from her dorm” and “suspended from all Cal State Universities,” and “[t]his occurred as a result of the Plaintiff being in possession of pepper spray.”

Plaintiff’s bare invocation of her gender is insufficient. To state a claim she must allege facts that establish the required elements of gender discrimination under the Education Code. (See Donovan, supra, 167 Cal.App.4th at p. 579.) Neither her operative complaint, nor her appellate briefs, supply these facts. And, because plaintiff’s possession of pepper spray is the only specific fact the complaint alleges to explain CSU’s disciplinary decision, the trial court properly granted judgment in favor of CSU on the Title IX and Education Code claims.

5. Plaintiff Cannot State a Claim Under Title VII Because She Is Not a CSU Employee

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees. (42 U.S.C.A. § 2000e et seq.) Because the complaint admits plaintiff was a student of CSU, and not its employee, she cannot state a claim for relief under Title VII. The trial court properly granted judgment in favor of CSU on the claim.

6. Plaintiff Has Not Met Her Burden to Show How the Complaint Could Be Amended to State a Viable Claim for Relief

As discussed, when the trial court grants a motion for judgment on the pleadings, “[t]he plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw, supra, 81 Cal.App.4th at p. 43.) “To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Id. at pp. 43–44.) “Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it [granted judgment on the pleadings] without leave to amend.” (Id. at p. 44.)

Plaintiff contends the complaint’s defects “could be reasonably cured by amendment, namely the addition of facts that indicate that [she was] discriminated against on the basis of her gender by CSU when [plaintiff] reported her attacks at the hands of [her roommates].” She does not disclose what those additional facts would be, nor does she make any effort to connect them to the required elements of her causes of action. We cannot conclude the trial court abused its discretion based on such an inadequate showing. (See HFH, Ltd. v. Superior Court of Los Angeles County (1975) 15 Cal.3d 508, 513, fn. 3 [nothing in the policy of liberally allowing amendment “requires an appellate court to hold that the trial judge has abused his discretion if on appeal the plaintiffs can suggest no legal theory or state of facts which they wish to add by way of amendment”].)

DISPOSITION

The judgment is affirmed. The Board of Trustees of the California State University is entitled to its costs, if any.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J. DHANIDINA, J.