Paigah v. Bd. of Trustees of the Cal. State University

Filed 4/10/06 Paigah v. Bd. of Trustees of the Cal. State University CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Affirmed.

Mark Paigah, acting in propria persona, sued San Diego State University (the University), alleging that a conspiracy among 13 members of the University's staff caused the University to breach its admissions contract with him. Paigah appeals from a judgment of dismissal entered after an order was issued sustaining a demurrer to his second amended complaint without leave to amend. The thrust of Paigah's argument on appeal is that the trial court abused its discretion in sustaining the demurrer without leave to amend. We conclude the trial court did not abuse its discretion because Paigah has shown no reasonable possibility that the defects can be cured by amendment. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Paigah originally filed this lawsuit on March 18, 2004, alleging that a conspiracy against him began in January 2003 and continued through February 20, 2004. Paigah alleges the involvement of 13 staff members from the University in a conspiracy against him while he was a graduate student enrolled in the University. While Paigah often characterizes his claim as one of conspiracy, the gravamen of his complaint, including his amended complaints, is the University's alleged breach of a contract between the parties, apparently based on his admission to the University as a student. Indeed, the only causes of action Paigah pleads are for breach of contract by the University. The University filed its response in the form of a demurrer.

On October 29, 2004, the trial court sustained the University's unopposed demurrer to Paigah's first amended complaint with leave to amend because Paigah's complaint failed to show that he complied with the governmental claims presentation requirements outlined in Government Code section 945.4. The court also provided three additional reasons for its ruling. First, the complaint failed to state sufficient facts upon which relief may be granted. (Code Civ. Proc., § 430.10, subd. (e) ["The pleading does not state facts sufficient to constitute a cause of action."]) Second, the complaint was uncertain. (Code Civ. Proc., § 430.10, subd. (f), [" 'uncertain' includes ambiguous and unintelligible"].) Third, the complaint failed to state whether the alleged contract was oral, written, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)

Paigah then filed his second amended complaint (SAC), the subject of this appeal, on January 14, 2005. The caption of the SAC names the University and 13 members of its staff as defendants, yet the only party Paigah served with the SAC was the University. He alleges a breach of contract as shown by 28 attached documents. These 28 attachments include documents covering Paigah's admission to the University, his transcripts and loan papers, as well as correspondence between Paigah and the University.

On February 8, 2005, the University filed its notice of hearing and demurrer to the SAC. In response, the trial court set two dates regarding the demurrer: first, a telephonic for the tentative ruling on March 10, 2005; and second, a hearing on the motion for March 11, 2005. On February 8, 2005, the University duly served its notice and demurrer on Paigah. Proof of service on Paigah was filed with the trial court on February 14, 2005. On February 16, 2005, Paigah filed and served his opposition to the demurrer.

On March 10, 2005, the trial court telephonically issued its tentative ruling to sustain the demurrer to the SAC without leave to amend. On March 11, 2005, the trial court confirmed that tentative ruling and sustained the demurrer to the SAC without leave to amend because Paigah "failed to correct the deficiencies upon which this Court sustained Defendant's previous demurrer." Specifically, the trial court found the SAC failed to show Paigah complied with the claims presentation requirements outlined in Government Code section 945.4. The trial court also found that the SAC failed to state sufficient facts upon which relief may be granted. (Code Civ. Proc., § 430.10, subd. (e).) Finally, the trial court ruled that as a matter of law, under Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 825 (Peter W.), the University owed no duty to Paigah regarding the discharge of its academic functions.

At a hearing on April 1, 2005, the parties appeared and the case was dismissed with prejudice. Judgment of dismissal was then entered and notice given. Paigah appeals.

DISCUSSION

While the pleadings and briefs of Paigah are a confusing jumble of allegations, in this appeal we can discern that Paigah advances three arguments. First, Paigah objects to what he claims is the erroneous alteration of the case caption in the trial court, whereby "San Diego State University" became and appeared as "Board of Trustees of the California State University." Second, Paigah claims that opposing counsel, a deputy attorney general, is "unauthorized" to represent the University. Third and finally, Paigah asserts the trial court abused its discretion in sustaining the demurrer to the SAC without leave to amend, and urges us to reverse on those grounds.

The following discussion applies to all of the alleged causes of action in the SAC, and because they are so similar we address them all at once rather than individually.

I

INTRODUCTION

Paigah first objects to the case captioning but cites no relevant authority, and thus provides no tenable basis in support of this claim. While Paigah alleges the involvement in his case of a number of University employees, acting in their respective roles as employees, the gravamen of this action is truly against the Board of Trustees of the California State University. The University is one campus of the California State University system. Although the University is commonly called San Diego State University, it is within the California State University system, hence it is governed by the Board of Trustees of the California State University. Thus, Paigah's objection to the case captioning is baseless and provides no grounds for reversal of the judgment.

Paigah next objects to the appropriateness of opposing counsel's appearance, but again he cites no relevant authority, and thus provides no tenable basis, in support of this claim. Since our analysis, as next set out, reveals that Paigah cannot state a contract claim against the University, he also lacks standing to contest the appropriateness of opposing counsel. Nevertheless, no error has been shown in the procedure used here, that a deputy attorney general from the California Attorney General's Office, serving as legal counsel to state officers and boards, may properly represent the Board of Trustees of the California State University in legal actions. Thus, Paigah's objection to opposing counsel is also baseless and provides no justification for reversal of the judgment.

Having disposed of these preliminary matters, we move on to address Paigah's major issue on this appeal: whether the trial court abused its discretion in sustaining the demurrer to the SAC without leave to amend.

II

DEMURRER

A. Standard of Review

We review the trial court's ruling sustaining the demurrer without leave to amend under the abuse of discretion standard. " 'When a demurrer . . . 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. [Citations.]' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) "Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]" (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.)

B. There Was No Compliance with the Claims Presentation Requirement

It is well-established that in an action for damages against a public entity, the filing of a proper governmental claim is a condition precedent to maintaining the action. (Gov. Code, § 900 et seq.; Stockett v. Association of Cal. Water Agencies Joint Power Ins. Authority (2004) 34 Cal.4th 441, 445 (Stockett).) Specifically, Government Code section 945.4 provides in pertinent part, "Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board . . . ."^[1] This requirement applies to claims based on contract. (Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298, 304.) It has been repeatedly held that "failure to allege facts demonstrating or excusing compliance with the requirement subjects a complaint to general demurrer for failure to state a cause of action." (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1240-1241, fn. 8 [setting forth additional case authority].)

Reviewing the face of the pleading, we cannot find a single instance in which the SAC shows compliance with the claims presentation requirement. Nor can we find a single instance where the SAC reveals any excuse from compliance with the claims presentation requirement. At any rate, Paigah does not assert on this appeal that he complied with, or was excused from complying with, the claims presentation requirement. Therefore we agree with the University that Paigah did not comply with the claims presentation requirement, and Paigah lacked any excuse for his noncompliance.

Because Paigah failed to meet the well-established condition precedent to maintaining his action against a public entity, the SAC was subject to a general demurrer. (State of California v. Superior Court (Bodde), supra, at p. 1241, fn. 8.)

C. There is Not a Reasonable Possibility That the

Defects Can Be Cured by Amendment

The record reflects that the trial court granted Paigah leave to amend when it sustained the demurrer to his first amended complaint in October 2004. In that ruling, the trial court specifically stated the reasons why the complaint was defective. The trial court then allowed Paigah leave to amend the complaint, creating an opportunity to cure those defects. Paigah then filed his SAC, making what must now be deemed his last, best effort to cure the defects which the demurrer exposed.

In March 2005 the trial court sustained the demurrer to the SAC without leave to amend. In doing so, the trial court ruled that Paigah "failed to correct the deficiencies upon which this Court sustained Defendant's previous demurrer." We agree with that ruling. As previously discussed, the SAC fails to allege even a single fact demonstrating or excusing Paigah's compliance with the claims presentation requirement, one of the specific deficiencies pointed out in the October 2004 demurrer. The condition precedent to maintaining the action has not been met. (Gov. Code, § 945.4; Stockett, supra, 34 Cal.4th at p. 445.)

Moreover, Paigah has failed to provide anything in this appeal to indicate any possibility that this or other defects can be cured. " 'The burden of proving such reasonable possibility is squarely on the plaintiff. [Citations.]' " (Zelig, supra, 27 Cal.4th at p. 1126.) Paigah has never advanced, either in the trial court or before us, any effective allegation which he could now make if further amendment to the complaint were to be permitted. Although Paigah insinuates multiple wrongs by the University, he never points out in what manner those insinuations could be combined to state a cause of action. (See Schultz v. Steinberg (1960) 182 Cal.App.2d 134, 141.)

In an abundance of caution, we next address why the other defects on the face of Paigah's SAC could not be cured by amendment. As noted by the trial court, the SAC is defective on its face because it fails to state sufficient facts upon which relief may be granted. (Code Civ. Proc., § 430.10, subd. (e).) As additionally noted by the trial court, under case authority such as Peter W., supra, 60 Cal.App.3d at page 825, as a matter of law, the University did not owe Paigah a legal duty regarding the discharge of its academic functions.

In Chevlin v. Los Angeles Community College Dist. (1989) 212 Cal.App.3d 382, 390, the court held, "We think it obvious that to permit [appellant] to recover under a breach of contract theory based on educational nonfeasance would be tantamount to permitting [appellant] to sue for negligence which is precluded under the Peter W. decision. Whether framed as a negligence or breach of contract theory the harm which [appellant] seeks to redress is the same." Here, that logic applies and thus the bar of Peter W., supra, 60 Cal.App.3d 814, as explained in Chevlin, precludes Paigah from stating a cause of action against the University, because there simply is no way to state such a cause of action. The harm which Paigah seeks to redress under his breach of contract theory here is the same that is barred by Peter W. under a negligence theory. To allow Paigah to sue the University on his breach of contract claim would be indistinguishable from allowing him to sue for negligence. Either way there is no such recognized cause of action, hence there is no way for Paigah to state one, and therefore there is no reasonable possibility that this defect can be cured by amendment.

D. It Was Not an Abuse of Discretion to Sustain the

Demurrer without Leave to Amend

Because there is not a reasonable possibility on this record that the defects can be cured by amendment, no abuse of discretion has been shown in the order sustaining the demurrer without leave to amend. (Zelig, supra, 27 Cal.4th at p. 1126.)

Finally, we reject Paigah's assertion on appeal that the trial court abused its discretion and improperly sustained the demurrer, based on Warren v. Harootunian (1961) 189 Cal.App.2d 546, 548 (Warren). Warren stands for the notion that it is error to sustain a general demurrer to an answer if the answer raises a material issue of fact. That logic is wholly inapplicable to the procedural context here: a general demurrer to the second amended complaint. "Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff's stated cause of action." (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) In any case, Paigah's reliance on Warren is misplaced because the demurrer to the SAC here did not raise a material issue of fact nor did it challenge the facts pled in the SAC; rather, it attacked the defects discernible on the face of that pleading.

Thus, under the logic of both Warren, supra, 189 Cal.App.2d 546, and Zelig, supra, 27 Cal.4th 1112, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.

DISPOSITION

The judgment of dismissal is affirmed. Each party to bear its own costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Apartment Manager Attorneys.

^[1] Government Code section 946.4 provides relief from the requirement where the public agency has failed to properly register as such. Government Code section 946.6 provides relief from the requirement in limited and specific situations. Paigah does not claim on this appeal that either of these two exceptions applies to him and we agree.