Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Jane D. Myers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 04CC09107.
Alison Minet Adams and Robert J. Wheeler for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Keri Lynn Bush and Jeffry A. Miller for Defendant and Respondent.
O’LEARY, ACTING P. J.
Hao Jian appeals from a judgment of dismissal entered after the trial court sustained the Regents of the University of California’s (the Regents) demurrer to his third amended complaint without leave to amend. Jian was acting without the benefit of counsel below, and the trial court had difficulty deciphering his allegations. On appeal, Jian wisely retained counsel to assist him, alleging he should be given leave to amend his complaint one more time. We agree only with respect to his breach of academic contract claim. Judgment was properly entered as to his other causes of action. Accordingly, we reverse the judgment only as to the breach of contract claim, and in all other respects, affirm the judgment.
I
FACTS
Because this appeal arises from the sustaining of a demurrer, we accept as true all material facts pleaded in Jian’s third amended complaint. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.) Briefly summarized, the alleged material facts are as follows: Jian, a Chinese national, applied for and was accepted in 1999 to the history Ph.D. program at the University of California, Irvine (UCI). In September 2001, Jian was informed he would be given a terminal master’s degree (MA), effectively terminating him from the Ph.D. program. He also lost his teaching assistant position and was evicted from the graduate student housing.
In his complaint, Jian asserts UCI failed to follow any of its academically-related procedures before dismissing him from the program. He was never given advance written notice of any academic deficiencies, or an opportunity to address them. He did not receive a written statement giving the reasons for his dismissal from the Ph.D. program. He claims his dismissal was due to (1) discrimination and retaliation based on his race, nationality, and age (46 years old), and (2) arbitrary and bad faith conduct by the history department professors. He asserts the primary source of his mistreatment was his faculty advisor, and chair of the History Department, Kenneth Pomeranz. Jian maintains Pomeranz lacked the authority to terminate him, and he was denied access to any of UCI’s grievance procedures to appeal Pomeranz’s decision.
Jian’s original complaint was filed on September 1, 2004. The court sustained the Regents’ demurrer and gave Jian 30-days leave to amend. The Regents’ demurrer to his amended complaint was sustained with leave to amend in May 2005. The court also struck Jian’s request for punitive damages. In July 2005, the court sustained the Regents’ demurrer to Jian’s second amended complaint and gave him 20-days leave to amend “for the last time.” It strongly advised Jian to retain counsel.
Jian’s third amended complaint alleged (1) breach of an academic contract, (2) fraud, (3) violation of Title VI (42 U.S.C.A. § 2000d), (4) violations of the First and Fourteenth Amendments addressed through an action under title 42 U.S.C.A. section 1983, and (5) violation of Title VII (42 U.S.C.A. § 2000e-2(a)), and California’s Fair Employment and Housing Act (FEHA). He sought damages in excess of $1 million. The Regents’ demurrer was sustained without leave to amend as to all causes of action except the breach of contract count. The court requested additional briefing, and after considering the parties’ arguments, it sustained the demurrer without leave to amend as to the breach of contract claim as well. The Regents obtained a dismissal and Jian appealed.
II
LEGAL DISCUSSION
1. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court. [Citations.]” (William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) “A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. [Citations.]” (Young v. Gannon (2002) 97 Cal.App.4th 209, 220.)
2. Breach of Contract Cause of Action
The Regents assert the trial court properly sustained the demurrer to the breach of contract action because: (1) Jian was required to seek review via a writ of administrative mandate; and (2) there was evidence Jian was terminated from the Ph.D. program for academic deficiencies after receiving proper notice and adequate due process. We will address each contention in turn.
A. A Petition for a Writ of administrative mandamus was not required.
The Regents argued, and the trial court agreed, Jian was required to challenge UCI’s decision through a writ of administrative mandate under Code of Civil Procedure section 1094.5. They maintain that unless a party to a quasi-judicial proceeding challenges the agency’s adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484.) The Regents argue Jian’s complaint and exhibits “acknowledge the University’s student grievance procedure and the taking of evidence, which triggers the requirement of mandamus review.” Jian argues the matter was not subject to review by a writ of administrative mandate because in this case there was neither a hearing nor a decision by a university agency. He is right.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
We begin our analysis by briefly addressing the difference between an administrative mandamus under section 1094.5, and an ordinary writ of mandate under section 1085. “Administrative mandamus under section 1094.5 is appropriate to inquire ‘into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal. . . .’ (. . . § 1094.5, subd. (a).) By comparison, a writ of mandate under section 1085 is available where the petitioner has no plain, speedy and adequate alternative remedy; the respondent has a clear, present and usually ministerial duty to perform; and the petitioner has a clear, present and beneficial right to performance. [Citations.]” (Conlan v. Bonta´ (2002) 102 Cal.App.4th 745, 751-752 (Conlan).) “[Ordinary] mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing. [Citation.]” (Bunnett v. Regents of the University of California (1995) 35 Cal.App.4th 843, 848 (Bunnett).) And, “[w]here a petition challenges an agency’s failure to perform an act required by law rather than the conduct or result of an administrative hearing, the remedy is by ordinary mandate pursuant to . . . section 1085, not by administrative mandate pursuant to section 1094.5. [Citation.]” (Conlan, supra, 102 Cal.App.4th at p. 752.)
We recognize, “This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.] Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding ‘effect to the administrative agency’s decision, because that decision has achieved finality due to the aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing administrative action.’ [Citations.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70, italics omitted.)
To support the Regents’ contention Jian was required to file a writ of administrative mandamus, it focuses on exhibit No. 20 of Jian’s complaint, which provides a copy of the 13-page appendix to the manual of the Irvine Division of the Academic Senate, entitled “Student Academic Grievance Procedures[.]” This document outlines the procedures to be followed by the Academic Senate to resolve “academic-related” student grievances alleging an “act of discrimination[.]” Discrimination is defined as “disparate treatment given equal performance[]” based on race, color, religion, marital status, national origin, sex, age, or citizenship.
According to the grievance procedures, the student is required within 20 days of the alleged violation to file a complaint with the Affirmative Action Officer, who will transmit the relevant information to the Office of Academic Affairs, who in turn informs the respondent (the person alleged to have committed the act of discrimination) of the alleged violation. The student and respondent are first required to participate in informal mediation. If this proves unsuccessful, the student may file a formal complaint, and after the Office of Academic Affairs investigates the case, the student may request a formal hearing on the matter. A five person Academic Grievance Panel (also called the Ad Hoc Hearing Subcommittee) is selected to consider evidence (including witness testimony) and determine if there has been a violation of Title IX or other federal, state, or university regulations prohibiting discrimination. The panel then submits a report containing its factual findings and selects, if appropriate, a remedy to be implemented by the chair of the Irvine Division. The student or respondent may file an appeal.
Moreover, the above grievance procedure includes a hearing and the taking of evidence. Certainly, a challenge to any decision made by the panel/chair of the Irvine Division would be subject to review by administrative mandamus. As noted above, “[W]hen review is sought by means of administrative mandate the inquiry is directed to whether substantial evidence supports the decision. [Citation.]” (Bunnett, supra, 35 Cal.App.4th at p. 849.)
We agree with the Regents’ argument that when an agency fails to hold a required hearing, review of the agency’s decision must also be reviewed by a writ of administrative mandamus. “Section 1094.5 expressly provides that it is the requirement of a hearing and taking of evidence – not whether a hearing is actually held and evidence actually taken – that triggers the availability of mandamus review. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484.)” (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1729 [administrative mandamus is exclusive remedy to challenge denial of academic tenure despite allegations college failed to follow its handbook’s requirement for a hearing and consideration of evidence].)
But here, Jian alleges he received neither an evidentiary hearing nor a decision on his discrimination claim by the Academic Senate’s Ad Hoc Hearing Subcommittee or the chair of the Irvine Division. Traditional mandamus under section 1085 is usually the proper method to compel the agency to hold the hearing. (Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 1365.) Stated another way, challenges to an “agency’s failure to perform an act required by law rather than the conduct or result of an administrative hearing, the remedy is by ordinary mandate pursuant to . . . section 1085, not by administrative mandate pursuant to section 1094.5. [Citation.]” (Conlan, supra, 102 Cal.App.4th at p. 752.)
Attached to Jian’s complaint is a 2004 letter from the chair of the Irvine Division of the Academic Senate. The letter states Jian’s October 2003 discrimination complaint letter was forwarded to the Senate’s Council on Graduate Affairs, who investigated the case and found no basis to support the charges. Based on this record, it does not appear the Council on Graduate Affairs is the same committee as the Academic Grievance Panel/Ad Hoc Hearing Subcommittee described in exhibit No. 20. There is no decision from the Academic Grievance Panel in our record.
Jian asserts the court could have construed the discrimination related claims in his third amended complaint as a writ of ordinary mandate to compel the agency to hold the hearing. (Bunnett, supra, 35 Cal.App.4th at p. 849.) In Bunnett, a professor sued his university employer after it rejected his application to enroll in an early retirement program. (Id. at pp. 847-848.) The court determined the professor’s remedy was an action for ordinary mandate, not a civil action, and concluded it would “treat the . . . causes of action as such.” (Id. at p. 849.) Jian acknowledges he did not affirmatively ask the court to do this below, but now maintains the issue raises a question of law that can be reviewed in the first instance on appeal. (See State of California Ex Rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1023-1024.)
We agree that if Jian’s complaint is liberally construed, it lends itself to treatment as a petition for ordinary mandamus. Jian described all the UCI officials and agencies he contacted in his efforts to obtain relief from the alleged discriminatory dismissal from the Ph.D. program. He repeatedly stated he was not afforded a hearing or a decision from these officials. He sought equitable and declaratory relief in addition to monetary damages. Nothing more was required to petition the trial court’s help in securing a hearing and decision from the Academic Grievance Panel. We are not saying such a petition has merit, we only conclude there were sufficient allegations pled to survive demurrer.
Moreover, Jian’s desire to have an evidentiary hearing before the Academic Senate regarding his discrimination claims is but one facet of his complaint. The crux of Jian’s lawsuit is to challenge his improper dismissal from the Ph.D. program for purported academic deficiencies. To challenge an academic dismissal, a student is not required to file a writ of ordinary or administrative mandamus. To the extent Jian asserts the history professors acted in bad faith, he may seek review through a civil action. (See, e.g., Banks v. Dominican College (1995) 35 Cal.App.4th 1545 (Banks) [summary judgment in breach of contract and tort action following an academic dismissal].) This is because “dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school’s decisionmaking body. [Citations.]” (Bd. of Curators University of Mo. v. Horowitz (1978) 435 U.S. 78, 87-88.) “A school is an academic institution, not a courtroom or administrative hearing room.” (Id. at p. 88.)
Jian attached to his complaint a copy of the Graduate Advisor’s Handbook, which contains guidelines about academic disqualifications, a list of due process requirements, and a description of the student appeal process. It provides, students must be given early warning of unsatisfactory progress and be given an outline for future expectations of academic progress. “The purpose of the notice . . . is to provide the student with a period of time (usually at least one academic quarter) in which to make the necessary improvement in their academic status, and successfully complete their graduate study.”
The handbook further explains, “Upon recommendation of academic disqualification by the graduate program, the student’s academic record is reviewed carefully by the Graduate Dean in consultation with the student’s faculty graduate advisor. Unless there are indications of procedural error or other substantive mitigating factors . . . the Graduate Dean will notify the student of the impending action in writing, and will provide a reasonable opportunity for the student to correct erroneous or outdated academic records, to submit other information or comments in writing, or to request a second review of academic performance.”
The handbook states students are afforded 30 days “to respond in writing to the recommendation for disqualification. Student appeals will be considered only if based upon appropriate cause, such as: (1) procedural error; (2) judgments based on non-academic criteria; (3) personal bias; (4) specific mitigating circumstances affecting academic performance; or (5) discrimination on the basis of race, gender, or handicap not pertaining to required academic performance. Following this period of time, if the student does not respond, a formal/final notice of academic disqualification will be sent to the student by the Graduate Dean. [¶] Following final notice of disqualification, the student may appeal to the Graduate Dean only on the basis of procedural error.”
To summarize, a student’s right to challenge an academic dismissal is limited to a restricted review by the Graduate Dean for five predesignated nonacademic causes. Because there is no legal requirement for an evidentiary hearing before termination for academic deficiencies, review by administrative mandamus under section 1094.5 would not be appropriate, and was not required. As correctly noted by Jian, the cases concerning academic dismissals involve a review for arbitrariness, capriciousness, or bad faith in the context of an appeal from a judgment. (See Banks v. Dominican College, supra, 35 Cal.App.4th 1545 [summary judgment in breach of contract and tort action following an academic dismissal]; Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 806 (Paulsen) [judgment for declaratory relief by law student denied degree due to academic deficiencies]; Regents of the University of Michigan v. Ewing (1985) 474 U.S. 214 [judgment following litigation of constitutional and contract claims raised by academically disqualified medical student].)
We recognize that if the school holds a hearing, but the hearing was not required by law, then a student may use ordinary mandate to review the decision. (Coelho v. State Personnel Bd. (1989) 209 Cal.App.3d 968.) But, such was not the case here. According to Jian’s complaint, he was not afforded any sort of hearing.
B. The breach of the academic contract claim was adequately pled.
Contrary to the Regents’ contention, Jian adequately pled allegations to support his cause of action for breach of contract to defeat the demurrer. Both parties agree contract law can be applied to describe the student-university relationship. (Paulsen, supra, 25 Cal.3d at p. 811.) The parties also recognize there is a “‘widely accepted rule of judicial nonintervention into the academic affairs of schools.’” (Banks, supra, 35 Cal.App.4th at p. 1551.)
Jian also asserted breach of his employment and housing contract. Because he fails to discuss these claims on appeal, they are waived and we need not discuss them.
“‘[C]ourts do not interfere with the management of a school’s internal affairs unless “there has been a manifest abuse of discretion or where [the school officials’] action has been arbitrary or unlawful,” [citation], or unless the school authorities have acted “arbitrarily or capriciously,” [citation], or unless they have abused their discretion, [citations].’ [¶] ‘The effect of these decisions is to give the school authorities absolute discretion in determining whether a student has been delinquent in his studies, and to place the burden on the student in showing that his dismissal was motivated by arbitrariness, capriciousness[,] or bad faith.’” (Wong v. Regents of University of California (1971) 15 Cal.App.3d 823, 830.)
Jian alleged facts from which it can be inferred the faculty acted arbitrarily or in bad faith in their decision to dismiss him from the Ph.D. program and award him a terminal MA. For example, Jian asserts his termination was caused primarily by one person, Pomeranz. He claimed Pomeranz fraudulently and secretly changed his recorded grades and falsely indicated he had failed to complete courses. He asserted that despite his 3.7 grade point average, and long career as a university lecturer, Pomeranz required Jian to take a second Test of Spoken English (TSE test). Jian claims he was legally exempt from taking the TSE test and had passed it once before. Jian believes Pomeranz used the test to force him out of his teaching job, which precipitated his dismissal from the Ph.D. program. In addition, Jian claims Pomeranz persuaded him to accept a MA, but it was never disclosed the degree would be terminal.
The Regents, recognizing that factual allegations properly pleaded must be presumed as true, focus their argument on the relevance of six exhibits attached to the complaint. The Regents maintain facts revealed in these exhibits must be given precedence over inconsistent allegations in the complaint. (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“to the extent the factual allegations conflict with the contents of the exhibits to the complaint, we rely on and accept as true the content of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].) It maintains the exhibits “establish that the University did not act arbitrarily in its decision” to find Jian academically deficient and award a terminal MA.
The first exhibit (No. 17) the Regents rely upon is a professor’s review analysis of one of Jian’s first year papers. The Regents cite language in the review criticizing the paper, arguing it is proof Jian’s academic deficiencies warranting dismissal. However, after reading the entire document, we find the Regents have omitted many positive comments the professor made about the paper, including the final paragraph which states, “The bottom line, though, is that the paper shows what we want a first year paper to show. This is clearly somebody capable of formulating a research topic and a series of hypotheses about it, doing a very impressive amount of research in sources that are not terribly accessible, and putting what he finds together in a coherent story that bears on both [his] own interests and more general issues in the literature. It is not a highly polished paper, but it is a very worthy one nonetheless. [¶] Grade: A.” This exhibit does not contain facts that are inconsistent with allegations in the complaint. It does not prove Jian should have been academically disqualified. Rather, it support’s Jian’s assertion he was a good student and maintained the required grade point average to remain in the Ph.D. program at UCI.
The second exhibit relied on by the Regents does not assist them. Exhibit No. 6 is an electronic e-mail from Pomeranz to Jian stating, “I have been asked to write you to restate what we have said on a number of other occasions: that the Master’s degree we are conferring on you is a terminal degree, and marks the end of your program at UCI. We are sorry that things did not work out in a way that would have allowed you to complete the Ph.D. program here, but as we discussed earlier, neither Prof[essor] Wong nor myself could see any way in which that remained a realistic option.” Pomeranz wrote the e-mail after dismissing Jian from the Ph.D. program. Consequently, the e-mail cannot be construed as an admission by Jian that there were prior discussions, conferences, or even an understanding about the reasons Jian was being terminated from the program. It is Pomeranz’s recollection of events, not Jian’s. The exhibit may be relevant evidence for a future motion for summary judgment, but it does not aid the Regents at this early demurrer stage of the proceedings.
Similarly, exhibit Nos. 12 and 16 were written after Jian learned he was to receive a terminal MA. Both exhibits were written by a university administrator, Carol Roberts, in response to Jian’s questions about who had made the decision he was to receive a MA, and whether that degree precluded him from paying the fee to remain in the Ph.D. program. At best, these exhibits establish when Jian should have suspected something was amiss. They shed no light on whether Jian knew the reasons why he was being given a terminal MA or that he accepted the determination he was academically disqualified.
Finally, exhibit No. 11 fails to contradict Jian’s allegation UCI’s professors made an arbitrary or bad faith decision. This exhibit contains a lengthy letter written by Jian to Pomeranz and Wong in July 2001, which was approximately one month after Jian received notice he was to receive a MA (contained in exhibit No. 5). Jian claims he received official notice of the MA when he received a printed form entitled “Advancement to Candidacy/Final Report for the Masters Degree.” After his signature, Jian wrote, “I’d like to stay in the Ph.D. program after MA [sic].” His subsequent letter (exhibit No. 11) to the professors concerns his desire to remain in the Ph.D. program after receiving his MA. Jian reiterated he had finished all the required courses in good academic standing and his teaching evaluations from students and colleges demonstrated progress. He thanked the professors for giving him advice on how to deal with an unexpected TSE test, a difficult family matter, “plus some other things [that had] over-burdened [him].” He stated, “Though the last quarter was the most challenging quarter with the heaviest workload ever, again with your guidance, I managed well. Taking this and many other factors, I hope to continue to have your guidance and finish the Ph.D. program, instead of wasting time and taking [a] leave of absence, or changing [my] program because I admire my advisors who are brilliant stars in our academic field.” These statements indicate his professors may have advised him to take a break to deal with personal problems, but it cannot be inferred Jian admitted he was failing academically or that he had been warned he was in danger of being academically disqualified from the Ph.D. program. To the contrary, after reading the letter, one is left with the impression Jian does not understand the MA was terminal, and he still believed the option of pursuing his Ph.D. was available.
3. The Fraud Cause of Action
Jian’s fraud cause of action alleges Pomeranz secretly and improperly changed some of the titles of courses he took and also changed and downgraded some of his grades in completed courses. He claims Pomeranz also altered the advancement to candidacy form. Jian asserts Pomeranz fraudulently induced him to apply for what he believed was a non-terminal MA. As for UCI, Jian asserts it ratified Pomeranz’s actions and concealed the proper grievance process.
Jian argues the record shows the Regents did not specifically demur to his fraud cause of action, and he did not discuss it in his opposition. Nevertheless, the court sustained the demurrer, stating Jian had failed to state a cause of action. Jian contends the trial court lacked jurisdiction to rule on the claim. Not so.
As noted by the Regents in supplemental briefing, the fraud cause of action was not separately labeled as a distinct cause of action, but rather was included as a subdivision of the breach of contract action. The Regents’ general demurrer asked the trial court to consider whether the pleading stated any cause of action. (Saunder v. Cariss (1990) 224 Cal.App.3d 905, 908.) It is well settled a court’s ruling should be affirmed if correct on any legal theory. (Cline v.Yamaga (1979) 97 Cal.App.3d 239, 246-247.) We conclude Jian failed to state a viable cause of action.
In Jian’s third amended complaint, as noted above, the fraud allegations primarily related to Pomeranz, who was not a named defendant in the lawsuit. Jian had many opportunities to name Pomeranz as one of the Doe defendants, and offers no excuse as to why he did not. The fraud allegations relating to a nonparty, Pomeranz, were properly resolved by demurrer.
To the extent Jian asserts the Regents are vicariously liable for the misconduct of its employee, the claim also fails. Government Code section 818.8 states the Regents are immune from liability for any purported fraudulent misrepresentation or fraudulent concealment by an employee acting in the scope of his employment. The Regents correctly assert, “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” (Gov. Code, § 818.8.) “This statute provides an absolute immunity from liability for misrepresentation of any sort. A similar immunity is provided to public employees by [Government Code section ] 822.2 . . . except that an employee may be held liable where guilty of actual fraud, corruption, or actual malice. [Citations.]” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 241, p. 395; Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 C.A.4th 30, 42-43 [although immunity of public employee under Gov. Code, § 822.2 for misrepresentation is qualified, immunity of public entity under Gov. Code, § 818.8 for misrepresentation by employee is absolute].)
In addition, Jian’s allegation UCI’s officials somehow concealed the appropriate grievance and appeals process fails to meet the specificity required for a fraud cause of action. “‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “‘Th[e] particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.”’ [Citation.]” (Id. at p. 645.) Jian must allege facts, and not just conclusory statements, that show UCI’s officials’ representations or omissions were false, material, and committed with the intent to defraud; that he justifiably relied upon the representations or he would have behaved differently had the omitted information been disclosed; and that there was resulting damage. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) He failed to do so.
4. Title VI and VII of the Civil Rights Act of 1964
Title VI of the Civil Rights Act (42 U.S.C.A. § 2000d, hereafter, Title VI) forbids any person or institution which receives federal funds to discriminate on the basis of race, color, or national origin. Jian’s Title VI claim relates to his claims of discrimination as a student rejected from the Ph.D. program.
Title 42 U.S.C.A. section 2000d, provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Title VII of the Civil Rights Act (42 U.S.C.A. § 2000e-2(a), hereafter, Title VII) prohibits employment discrimination. Jian’s claim concerns the loss of his promised teaching assistant’s position.
The Regents argued, and the court agreed, California’s one-year statute of limitations for personal injury actions also applied to Jian’s Title VI claim. (See Taylor v. Regents of University of California (9th Cir. 1993) 993 F.2d 710, 712 (Taylor).) There was a similar timeline for Jian’s claim under Title VII. He was required to file charges “with the [Equal Employment Opportunity Commission] EEOC within 180 days of the last act of alleged discrimination,” unless he first instituted “proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days.” (Santa Maria v. Pacific Bell (9th Cir. 2000) 202 F.3d 1170, 1176.) Jian pled facts in his complaint showing he missed both deadlines.
In 2001, California had a one-year statute of limitations period for personal injury actions.
Jian learned he was being awarded a terminal MA in September 2001. He did not file his complaint until September 2004 – three years later. Thereafter, in July 2005, Jian filed an employment discrimination complaint with the Department of Fair Employment and Housing (DFEH), and he was issued a right to sue letter a few days later on July 29, 2005. Based on these facts, we conclude his Title VI and VII claims are barred by the statute of limitations.
Jian asserts the continuing violation doctrine saves his untimely claims. He argues UCI’s acts of discrimination were continuous until he completed the university’s mediation program in October 2003, or when the Chair of Academic Senate wrote him a letter rejecting his complaints 2004. He misunderstands the doctrine.
If discriminatory acts occurring within the limitations period are not isolated or unique, but reflect a continuation of prior discriminatory practices or policies, the injured party may, in certain circumstances, sue for all injuries incurred from the inception of the practice or policy. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812-818 (Richards).) In Richards, a disabled employee brought a FEHA action for disability harassment and discrimination, alleging that over a four-year period, her employer harassed her and failed to reasonably accommodate her disability. (Id. at pp. 802-810.) The court held the continuing violation “doctrine . . . allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Id. at p. 802.) It explained an employer’s conduct over a period of time that extends within the limitations period is deemed a continuing violation “if the employer’s unlawful actions are (1) sufficiently similar in kind . . . [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]” (Id. at p. 823.) Where the continuing violation doctrine is applicable, the statute of limitations will begin to run when the discrimination or harassment ends or the employee should know the employer will not remedy the discrimination or harassment. (Ibid.)
Jian’s action accrued when he learned in September 2001 he was to receive a terminal MA. Thereafter, Jian alleged various offices and agencies at UCI failed to properly investigate or redress his grievance, which constituted a continuation of harassment. Not so. UCI’s purported harassing conduct outside the limitations period was not “sufficiently similar in kind” to its conduct within the limitations period. (Richards, supra, 26 Cal.4th at p. 823.) There is no sufficient similarity between Jian’s history professors’ purported discriminatory treatment towards Jian while he was still a student at UCI, and the administration’s subsequent failure to properly investigate or reprimand the professors. They involved different conduct, different actors, and different duties. Consequently, UCI’s officials’ failure to provide a grievance process to Jian does not serve as a continuation of Pomeranz’s, and the other history professor’s, earlier harassment.
Alternatively, Jian asserts his Title VII claim should be remanded “to give him another opportunity to see if he can” invoke equitable estoppel to excuse his failure to file an EEOC charge within the requisite time. However, he does not suggest what new allegations he would make on remand. (Cf. Santa Maria v. Pacific Bell (9th Cir. 2000) 202 F.3d 1170, 1176 [three acts of deception alleged to equitably estop employer from asserting the statute of limitations].)
5. Jian’s title 42 U.S.C.A. section 1983 Claim
Jian alleged violations of his First and Fourteenth Amendment rights. Title 42 U.S.C.A. section 1983 permits “citizen[s]” and “other person[s] within the jurisdiction” of the United States to seek legal and equitable relief from “person[s]” who, under color of state law, deprive them of federally protected rights. The word “person” does not include a state. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 64.) The Regents argued, and the court agreed, the University of California and the Regents “‘are considered to be instrumentalities of the state.’” (BV Engineering v. University of California, Los Angeles (9th Cir. 1988) 858 F.2d 1394, 1395.) The court properly dismissed the title 42 U.S.C.A. section 1983 claim because the Regents are considered an arm of the State of California and are immune from liability under the Eleventh Amendment.
Jian asserts for the first time on appeal that the Regents waived its immunity defense. He asserts it is an issue of first impression whether Article II, section 5 of the California Constitution and/or Government Code section 954 waive a state’s immunity defense. However, other than reciting the content of these provisions, Jian offers no reasoned analysis or discussion on this purported new waiver theory. The Regents assert Jian’s argument is hard to comprehend given the lack of legal analysis, and we should treat the point as waived. (Citing Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).) We agree. “[I]t is not this court’s function to serve as . . . backup appellate counsel[.]” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546.) Even when our standard of review is de novo, the scope of review is limited to issues that have been adequately raised and are supported by analysis. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Jian also asserts the Regents waived immunity by demurring to his complaint and by mailing him a letter explaining the Government Tort Claims Act is not necessary when suing the Regents. Again, Jian leaves it up to this court to figure out why these acts constitute a waiver, by failing to provide reasoned argument or citations to support his claim. We will treat these points as waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Moreover, it appears the title 42 U.S.C.A. section 1983 claim is time-barred. (Taylor, supra, 993 F.2d at p. 712 [California’s one-year statute of limitations for personal injury actions governs claims brought pursuant to title 42 U.S.C.A. §§ 1981, 1983, & 1985].) As discussed above, Jian waited three years to file his claim.
III
DISPOSITION
The judgment is affirmed as to all causes of action, except Jian’s breach of academic contract claim, which is reversed and remanded for further consideration. Both sides shall bear their own costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.