# Lema v. The Board of Trustees of the California State University System

> District Court, S.D. California · May 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10087641

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087641

## How later opinions describe it (automated extraction)

- explaining that a 22 claimant must plead specific facts showing that the misrepresentation was motivated by 23 actual malice
- holding that compliance with the procedural 14 requirements of the CTCA are “mandatory” and are “substantive elements” of a cause of 15 action

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JOHN LEMA, Case No.: 3:21-cv-02131-JAH-KSC

12 Plaintiff,
(1) GRANTING IN PART AND
13 v. DENYING IN PART
DEFENDANTS’ MOTION TO
14 THE BOARD OF TRUSTEES OF THE
DISMISS;
CALIFORNIA STATE UNIVERSITY
15
SYSTEM, through its subdivision San
(2) DENYING DEFENDANTS’
16 Diego State University, ANDREA
REQUEST FOR JUDICIAL
PARASHOS (in her individual capacity),
17 NOTICE;
LEE MINTZ (in her individual capacity),

18 and DOES 1-20 (in their individual
(3) DENYING DEFENDANTS’
Capacities),
19 SPECIAL MOTION TO STRIKE.
Defendants.
20
[ECF Nos. 6-1, 6-2, 7]
21
22 Pending before the Court is Defendants The Board of Trustees of the California State
23 University System, Andrea Parashos, and Lee Mintz’s (collectively, “Defendants”) Motion
24 to Dismiss the Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and
25 12(b)(6). (“MTD”, ECF No. 6). Plaintiff John Lema (“Lema” or “Plaintiff”) filed a
26 Response in Opposition to the Motion, (“Opp’n to MTD”, ECF No. 8), and Defendants
27 filed a Reply in Support of the Motion. (“Reply to MTD”, ECF No. 9).
28
1 Additionally before the Court is Defendants’ Request for Judicial Notice, (“RJN”,
2 ECF No. 6-2), and Defendants’ Special Motion to Strike. (“MTS”, ECF No. 7). The
3 motions are decided on the briefs without oral argument pursuant to Civil Local Rule
4 7.1.d.1. Having considered the pleadings and the applicable law, and for the reasons set
5 forth below, Defendants’ Motion to Dismiss the Complaint is GRANTED in part and
6 DENIED in part, Defendants’ Request for Judicial Notice is DENIED, and Defendants’
7 Special Motion to Strike is DENIED.
8 I.
9 BACKGROUND1
10 Plaintiff John Lema brings this action against The Board of Trustees of the
11 California State University System (“Board of Trustees”); Andrea Parashos (“Parashos”),
12 San Diego State University’s Title IX Investigator, and; Lee Mintz (“Mintz”), Director for
13 the Center of Student Rights and Responsibilities and Deputy Title IX Coordinator for San
14 Diego State University, alleging Due Process violations under the Fifth2 and Fourteenth3
15 Amendments pursuant to 42. U.S.C. § 19834 (as to all Defendants), and California state
16
17
18 1 The following is a recitation of pleaded facts and is not to be construed as factual
19 findings by the Court.
2 The Fifth Amendment states that the federal government may not deprive a person
20
of “life, liberty, or property, without due process of law; nor shall private property be taken
21 for public use, without just compensation.” U.S. Const. amend. V; Castillo v. McFadden,
399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal
22
government from depriving persons of due process, while the Fourteenth Amendment
23 explicitly prohibits deprivations without due process by the several States[.]”).
3 The Fourteenth Amendment states in pertinent part, “nor shall any State deprive any
24
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
25 § 1. State action is required to trigger the protections afforded citizens by the Fourteenth
Amendment. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295
26
(2001).
27 4 Section 1983 is not itself a source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–
28
1 claims for negligence (as to Defendants Mintz and Parshos), negligent infliction of
2 emotional distress (as to Defendants Mintz and Parshos), negligent misrepresentation (as
3 to Defendants Mintz and Parshos), and fraudulent misrepresentation (as to Defendant
4 Parashos).5 (See generally “Compl”, ECF No. 1). Plaintiff asserts he suffered humiliation,
5 mental anguish, and emotional distress when Defendants investigated him in connection
6 with hazing allegations on San Diego State University’s (“SDSU”) campus, resulting in a
7 delay to Lema’s graduation date. (Id.)
8 While at SDSU, Plaintiff was a member of the Phi Gamma Delta Fraternity. (Id. at
9 ¶ 18). However, Plaintiff contends his attendance and participation at fraternity sponsored
10 activities was infrequent. (Id.) Lema planned to graduate from SDSU in August 2020.
11 (Id. at ¶ 19). In July 2020, Plaintiff was notified by Defendants that the University had
12 opened a student misconduct investigation against him to investigate reports of hazing by
13 members of the Phi Gamma Delta fraternity. (Id. at ¶¶ 21-22). Allegations against Lema
14 included:
15 provid[ing] alcohol to minors, physically assault[ing] members of the
campus community, interfere[ing] with the orderly progress of a
16
student disciplinary proceeding, attempt[ing] to influence impartiality
17 of any participant in a student discipline matter, and encourage[ing],
permit[ing], or assist[ing] another to do any act that could subject them
18
to discipline.
19
20 ///
21 ///
22 ///
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5 The Court notes that although the motion to dismiss raises immunity privileges for
26
Defendant Board of Trustees as to the state law causes of action, the Complaint does not
27 contain any specific factual allegations implicating the Board of Trustees as to the
aforementioned claims. Plaintiff’s response in opposition to Defendants’ motion to dismiss
28
1 (Id. at ¶ 22 (formatting omitted)). Defendants also alleged Plaintiff violated subsections of
2 Title V, Section 41301 of the California Code of Regulations.6 (Id. at ¶ 23).
3 On July 10, 2020, Defendants notified Plaintiff that he would not graduate in August
4 2020 as planned. (Id. at ¶ 26). Around this time, Lema retained counsel to assist him with
5 the pending disciplinary proceedings. (Id. at ¶ 27). On August 20, 2020, Parashos called
6 Plaintiff to further discuss the disciplinary investigation that was being conducted. (Id. at
7 ¶ 28). During this phone call, Parashos informed Lema that the investigation was
8 predicated on his association with the Phi Gamma Delta Fraternity. (Id.)
9 On November 23, 2020, Plaintiff received an email asking him to sign a settlement
10 agreement (“Agreement”) acknowledging responsibility for the alleged disciplinary
11 charges. (Id. at ¶ 29).
12
13
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6 According to the Complaint, the relevant regulations Defendants assert Plaintiff
15 violated are:

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b.7.A – Conduct that threatens or endangers the health or safety of any
17 person within or related to the University community, including
physical abuse, threats, intimidation, or harassment;
18

19 b.8 – Hazing, or conspiracy to haze;

20
b.10 – Use, possession, manufacture, or distribution of alcoholic
21 beverages . . . or public intoxication while on campus or at a
university-related activity;
22

23 b.16 – Violation of any published University policy, rule, regulation,
or presidential order;
24

25 b.19.B – Violations of the Student Conduct Procedures, including
Disruption or interference with the orderly progress of a student
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discipline proceeding;
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b.20 – Encouraging, permitting, or assisting another to do any act that
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1 The Agreement solicited admissions from Lema for:
2 (A) compel[ing] physically demanding activities; . . . (B) compel[ing]
forced alcohol consumption; (C) compel[ing] individuals to drink
3
foreign or unusual substances; (D) compel[ing] acts of servitude; (E)
4 blindfolding; (F) paddling; (G) bullying; (H) intimidation; (I) physical
and emotional degradation and humiliation of other students; (J)
5
compel[ing] pledges to contribute money to pay for alcohol that would
6 be consumed during events.

7
8 (Id. at ¶ 30 (formatting omitted)). Additionally, the Agreement concluded Plaintiff violated
9 the aforementioned subsections from the California Code of Regulations. (Id. at ¶ 31).7
10 The Agreement sought to compel Lema into accepting punishment, in the form of
11 counseling and suspension, for his purported involvement in the fraternity hazing. (Id. at
12 ¶ 33).
13 On December 19, 2020, Defendant Parashos sent Lema a prepared report containing
14 specific accounts of Phi Gamma Delta hazing. (Id. at ¶ 36). Plaintiff’s name is not
15 explicitly mentioned in this report. (Id. at ¶ 37). After pressure from Lema’s retained
16 counsel, the disciplinary proceedings against Plaintiff were concluded. 8 Lema graduated
17 from SDSU in May of 2021. (Id. at ¶ 37). Plaintiff filed the instant Complaint on
18 December 28, 2021.
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25

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27 7 The Complaint does not state Lema signed the Agreement.
8 The Complaint does not indicate the date Defendants dropped the disciplinary
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1 II.
2 DISCUSSION
3 A. Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)9
4 1. Legal Standard
5 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek
6 to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is
7 one of limited jurisdiction. See Gould v. Mut. Life Ins. Co. v. New York, 790 F.2d 769, 774
8 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own
9 subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95
10 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court may hear
11 evidence regarding jurisdiction, resolve factual disputes where necessary, and rule on that
12 issue prior to trial. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
13 In such circumstances, “[n]o presumptive truthfulness attaches to plaintiff's allegations,
14 and the existence of disputed facts will not preclude the trial court from evaluating for itself
15 the merits of jurisdictional claims.” Id. (quoting Thornhill Publ’g Co. v. Gen. Tel. & Elec.
16 Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as the party seeking to invoke
17 jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v.
18
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9 A defendant may pursue a Rule 12(b)(1) motion to dismiss for lack of jurisdiction
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either as a facial challenge to the allegations of a pleading, or as a substantive challenge to
21 the facts underlying the allegations. Savage v. Glendale Union High Sch., Dist. No. 205,
Maricopa County, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). A facial challenge to the
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jurisdictional allegations is one which contends that the allegations “are insufficient on
23 their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035,
1039 (9th Cir. 2004). The success of a facial challenge to jurisdiction depends on the
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allegations in the complaint, and does not involve the resolution of a factual dispute. Wolfe
25 v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In a facial challenge the court must
assume the allegations in the complaint are true and it must “draw all reasonable inferences
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in [plaintiff's] favor.” Id. “By contrast, in a factual attack, the challenger disputes the truth
27 of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe
Air for Everyone, 373 F.3d at 1039. Defendants do not dispute the allegations contained
28
1 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Defendants move to dismiss the
2 action pursuant to Fed. R. Civ. P. 12(b)(1) based upon the doctrine of sovereign immunity.
3 2. Analysis
4 Defendants move to dismiss Plaintiff’s sole federal claim against the Board of
5 Trustees on the ground that the Eleventh Amendment bars private citizens from seeking
6 legal or equitable relief from a state, its agencies, and arms of the state and its departments.
7 (MTD at 9-10). Defendants further argue that Defendant Parashos and Defendant Mintz
8 are also subject to immunity from suit, as the Eleventh Amendment extends to state
9 officials acting in their official capacities. (MTD at 10). Each argument will be discussed
10 in turn.
11 a. Defendant Board of Trustees
12 Plaintiff does not rebut the applicability of sovereign immunity as to the Board of
13 Trustees, and therefore concedes this argument. See Qureshi v. Countrywide Home Loans,
14 Inc., 2010 WL 841669, *6 n. 2 (N.D. Cal. Mar. 10, 2010) (holding that plaintiff's failure to
15 address in opposition brief claims challenged in a motion to dismiss amounts to an
16 “abandonment of those claims”) (citing Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095
17 n.4 (9th Cir. 2005)). However, even on the merits, the Court finds that sovereign immunity
18 applies to the Board of Trustees.
19 “The Eleventh Amendment generally prohibits federal courts from hearing suits
20 brought by private citizens against state governments, unless the state has consented to be
21 sued.” Sofamor Danek Grp., Inc. v. Brown, 124 F.3d 1179, 1183 (9th Cir. 1997). The
22 Eleventh Amendment covers states, as well as state agents and state instrumentalities.
23 Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). When determining whether
24 a state instrumentality may invoke the State's immunity, the Court will “[focus] on the
25 ‘nature of the entity created by state law’ to determine whether it should ‘be treated as an
26 arm of the State.’” Id. at 429-30 (quoting Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S.
27 274, 280 (1977)).
28
1 The Ninth Circuit has found that California State University Trustees “are an arm of
2 the state that can properly lay claim to sovereign immunity.” Stanley v. Trustees of Cal.
3 State Univ., 433 F.3d 1129, 1133 (9th Cir. 2006) (citing Jackson v. Hayakawa, 682 F.2d
4 1344, 1350-51 (9th Cir. 1982)); Armstrong v. Meyers, 964 F.2d 948, 949-50 (9th Cir.
5 1992); Adams v. Linville, 243 F.3d 546, 546 (9th Cir. 2000); Barto v. Miyashori, No. 21-
6 56223, 2022 WL 17729410 (9th Cir. 2022).
7 Because the Board of Trustees of the California State University System are “arms
8 of the state,” for purposes of the Eleventh Amendment, and there is no indication that the
9 Board of Trustees has consented to suit, Plaintiff is barred from bringing suit against the
10 Board of Trustees. Accordingly, the Board of Trustees is entitled to dismissal with
11 prejudice pursuant to the Eleventh Amendment.
12 b. Defendants Mintz and Parshos
13 Relying on Baughman v. State of California, 38 Cal. App. 4th 182 (1995),
14 Defendants Mintz and Parashos briefly assert Eleventh Amendment immunity, arguing
15 their actions occurred while acting in their official capacities. (MTD at 10). Plaintiff rebuts
16 that Defendants Mintz and Parashos are subject to suit because Plaintiff is suing both Mintz
17 and Parashos in their individual capacities, and the Eleventh Amendment does not protect
18 an individual against suit. (Opp’n to MTD at 5-6).
19 The Eleventh Amendment bars suit against a state official in his or her official
20 capacity but does not bar suit in his or her individual capacity. Pena v. Gardener, 976 F.2d
21 469, 472 (9th Cir. 1992). “The deciding factor for ascertaining whether a suit is an official
22 capacity suit or an individual capacity suit is not how the suit is labeled by the plaintiff, but
23 rather the nature of the suit.” Mktg. Info. Masters, Inc. v. Bd. of Trustees of California
24 State Univ. Sys., 552 F. Supp. 2d 1088, 1095 (S.D. Cal. 2008) (quoting Larson v. Domestic
25 & Foreign Com. Corp., 337 U.S. 682 (1948)).
26 The Complaint here names Mintz and Parashos in their individual capacities, and
27 includes allegations that the individual Defendants personally engaged in the infringing
28 behavior. Further, Defendants’ reliance on Baughman is misplaced, as plaintiff there sued
1 defendants in their official capacity. Baughman, 38 Cal. App. 4th at 188. Accordingly,
2 Mintz and Parashos are not entitled to Eleventh Amendment immunity from this suit
3 seeking relief against them in their individual capacities.
4 B. Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
5 Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed
6 against a defendant when the plaintiff fails to state a claim upon which relief may be
7 granted. Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568, 569 (9th
8 Cir. 1985). Dismissal may be based on either the lack of a cognizable legal theory or the
9 absence of sufficient facts alleged under a cognizable theory. Robertson v. Dean Witter
10 Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). When evaluating a motion to dismiss,
11 the court “must presume all factual allegations of the complaint to be true and draw all
12 reasonable inferences in favor of the nonmoving paper.” Usher v. City of Los Angeles, 828
13 F.2d 556, 561 (9th Cir. 1987). The complaint must plead “enough facts to state a claim
14 for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
15 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that
16 allows the court to draw the reasonable inference that the defendant is liable for the
17 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, for a
18 complaint to survive a motion to dismiss, the non-conclusory facts and reasonable
19 inferences from those facts must plausibly suggest the plaintiff is entitled to relief. Moss
20 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
21 Defendants move to dismiss under Rule 12(b)(6) arguing (1) Plaintiff’s § 1983 claim
22 is time-barred; and (2) the state law claims are barred by California Government Code
23 immunities.
24 1. Statute of Limitations
25 “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by
26 the applicable statute of limitations only when ‘the running of the statute is apparent on the
27 face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
28 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th
1 Cir. 2006)). “For actions under 42 U.S.C. § 1983, courts apply the forum state's statute of
2 limitations for personal injury actions, along with the forum state's law regarding tolling .
3 . . .” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (quoting Fink v. Shedler, 192 F.3d
4 911, 914 (9th Cir.1999)). The statute of limitation commences when the plaintiff knows
5 or has reason to know of the injury which is the basis of the action. TwoRivers v. Lewis,
6 174 F.3d 987, 991 (9th Cir. 1999).
7 The parties agree that the applicable statute of limitations for Plaintiff’s § 1983 claim
8 is one year. (MTD at 10-11; Opp’n to MTD at 6). However, they dispute when the clock
9 on the statute of limitations commenced. Despite the parties’ consensus regarding the
10 statute of limitations, “[e]ffective January 1, 2003, the new California statute of limitations
11 for assault, battery, and other personal injury claims is two years instead of one.” Cal. Civ.
12 Proc. Code § 335.1; Jones, 393 F.3d at 927. The Complaint was filed on December 28,
13 2021, thirteen-months, and five days after the earliest cited incident. See generally Compl.
14 This is within the two-year statute of limitations. Therefore, regardless of which theory as
15 to when the action commenced applies, Defendants’ motion to dismiss the § 1983 claim as
16 time-barred is denied.
17 2. Immunity under California Government Code § 821.6
18 Defendants move to dismiss all pendant state claims for negligence, negligent
19 infliction of emotional distress, negligent misrepresentation, and fraudulent
20 misrepresentation pursuant to California Government Code § 821.6. (MTD at 11-12). In
21 rebuttal, Plaintiff attempts to bootstrap the same exception that applies to individual
22 capacity suits under the Eleventh Amendment, arguing that that any immunity afforded by
23 § 821.6 does not extend to Defendants Mintz and Parashos because they were sued in their
24 individual capacities, and because they conducted an investigation with the intent to cause
25 ///
26 ///
27 ///
28 ///
1 harm. (Opp'n to MTD at 6-7).
2 Section 821.6 states that “a public employee is not liable for injury caused by his
3 instituting or prosecuting any judicial or administrative proceeding within the scope of his
4 employment, even if he acts maliciously and without probable cause.” Cal. Gov't Code §
5 821.6. The California Supreme Court, looking to legislative intent, found that § 821.6
6 immunity is limited in application to claims of malicious prosecution. Sullivan v. City of
7 Los Angeles, 12 Cal. 3d 710, 719 (1974) (“the history of section 821.6 demonstrates that
8 the Legislature intended the section to protect public employees from liability only for
9 malicious prosecution.”). Despite this, California appellate courts and Courts within this
10 district have since construed § 821.6 more broadly to include other tortious claims. See
11 e.g., Struk v. Bush, No. 10-CV-0348-MMA-POR, 2011 WL 5827196, at *11 (S.D. Cal.
12 Nov. 18, 2011) (dismissing claim of negligence upon finding immunity under § 821.6
13 applied); Est. of Victorianne v. Cnty. of San Diego, No. 14CV2170 WQH (BLM), 2016
14 WL 411292, at *13 (S.D. Cal. Feb. 3, 2016) (dismissing claim of negligent investigation
15 upon finding immunity under § 826.1 applies); Kayfetz v. State of California, 156 Cal. App.
16 3d 491 (1984) (dismissing claim of defamation upon finding immunity under § 826.1
17 applies). However, the Ninth Circuit has refused to adopt the broad definition of § 821.6
18 that has been adopted by various California appellate courts, holding that federal courts
19 were “bound by the decision of the highest state court[,]” not the immediate courts. Sharp
20 v. Cnty. of Orange, 871 F.3d 901, 921 (9th Cir. 2017).
21
22
23
10 The Court notes that Plaintiff cites to Garcia v. City of Merced, stating that “Under
24
Section 1983, a ‘person’ acting under color of law may be sued for violations of the U.S.
25 Constitution or federal laws . . . . [and] encompasses state and local officials sued in their
individual capacities, private individuals and entities which acted under color of state law,
26
and local government entities.” 637 F. Supp. 2d 731, 760 (E.D. Cal. 2008). Interestingly,
27 Plaintiff does not touch on the relevant argument in Garcia discussing immunity under §
821.6. Id. at 749 (“Section 821.6 immunity is generally perceived as prosecutorial
28
1 The California Supreme Court has extended § 821.6 to public school officials for
2 claims of malicious prosecution. Hardy v. Vial, 48 Cal. 2d 577 (1957). However,
3 Defendants do not provide any support as to why this Court should ignore Ninth Circuit
4 and California Supreme Court case law and adopt the more broad interpretation of § 821.6.
5 Consequently, Defendants cannot overcome prevailing case authority that limits immunity
6 to claims for malicious prosecution. Accordingly, the Court denies Defendants Mintz and
7 Parashos’ motion to dismiss the state law claims for (1) negligence, (2) negligent infliction
8 of emotional distress, (3) negligent misrepresentation, and (4) fraudulent
9 misrepresentation.
10 3. Immunity under California Government Code § 815
11 Defendants further move to dismiss the pendant state law claims for negligence,
12 negligent infliction of emotional distress, negligent misrepresentation, and fraudulent
13 misrepresentation against Defendant Board of Trustees, pursuant to California Government
14 Code § 815 immunity. (MTD at 12). Defendants assert that it is a “matter of well-
15 established law [that] a public entity, such as the University, cannot be liable for common
16 law claims.” (Id. (citations omitted)).11
17 For the reasons previously stated, (see supra n.5), the Court will not discuss whether
18 California Government Code § 815 is applicable to Defendant Board of Trustees as to the
19 state law claims. To the extent that Plaintiff’s Complaint may allege tortious conduct on
20 behalf of Board of Trustees, those allegations are unsustainable, as the Eleventh
21 Amendment bars litigation of state law claims against a state agency in federal court. See
22 Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 120 (“This constitutional bar
23 applies to pendent [state law] claims as well.”); see also Cholla Ready Mix, Inc. v. Civish,
24
25
11 As previously discussed, (see supra n.5), a thorough review of the Complaint fails
26
to make clear whether Plaintiff specifically alleges the various state law claims against the
27 Board of Trustees. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (stating a
complaint requires sufficient allegations to put defendants fairly on notice of the claims
28
1 382 F.3d 969, 973-74 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005) (Eleventh
2 Amendment barred state law claims).
3 4. Immunity For Discretionary Acts Pursuant to California Government
Code § 820.2
4
5 Defendants Mintz and Parashos assert they are immune from liability from the state
6 law claims because the acts or omissions on which the claims are based—that is, the
7 decision to investigate Lema pursuant to Executive Order 1098—is a discretionary act
8 subject to immunity pursuant to California Government Code § 820.2. (MTD at 12).
9 Plaintiff asserts that Defendants acts were not discretionary, but rather willful and wanton,
10 because “Defendants were aware that there was no evidence of Plaintiff’s involvement, yet
11 they continued to deprive Plaintiff of his education and submit him to the emotional trauma
12 of the ongoing investigation[.]” (Opp’n to MTD at 8).
13 Section 820.2 provides:
14 Except as otherwise provided by statute, a public employee is not
liable for an injury resulting from his act or omission where the act or
15
omission was the result of the exercise of the discretion vested in him,
16 whether or not such discretion be abused.
17 Whether a public employee is entitled to immunity for discretionary acts hinges on
18 whether the acts or omissions in dispute constitute “basic policy decisions” or “ministerial”
19 decisions. Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995). Immunity for discretionary
20 acts extends to basic governmental policy decisions entrusted to broad official judgment,
21 and a distinction is drawn between “‘planning’ and ‘operational’ functions of government.”
22 (Id. at 981 (citing Johnson v. State of California, 69 Cal. 2d 782, 783 (1968)). On the one
23 hand, immunity applies where “the responsibility for basic policy decisions has been
24 committed to coordinate branches of government”, (Johnson, 69 Cal. 2d at 783), and on
25 the other hand, immunity is inapplicable to “lower-level, or ministerial, decisions that
26 merely implement a basic policy already formulated.” Caldwell, 10.Cal.4th at 981 (internal
27 citations and quotation marks omitted). There is also no basis for immunizing decisions
28 that are not actually “deliberate and considered.” Caldwell, 10 Cal. 4th at 981. But “to be
1 entitled to immunity the state must make a showing that such a policy decision, consciously
2 balancing risks and advantages, took place.” Johnson, 69 Cal. 2d at 794 n.8. Defendants
3 here bear the burden of demonstrating that statutory immunity applies. Burns v. Reed, 500
4 U.S. 478, 486 (1991).
5 The Court acknowledges that a breadth of case law supports the general proposition
6 that “[d]ecisions by a school’s supervisory personnel regarding disciplinary matters are . .
7 . considered discretionary and within the scope of section 820.2.” Walsh v. Tehachapi
8 Unified Sch. Dist., 827 F.Supp.2d 1107, 1122 (E.D. Cal. 2011) (internal quotation marks
9 omitted); Clifford v. Regents of Univ. of Calif., No. 2:11–CV–02935–JAM–GGH, 2012
10 WL 1565702 (E.D. Cal. Apr. 20, 2012); Thompson v. Sacramento City Unified Sch. Dist.,
11 107 Cal. App. 4th 1352, 1361 (2003); Nicole M. v. Martinez Unified Sch. Dist., 964 F.
12 Supp. 1369, 1389-90 (N.D. Cal. 1997). Although Plaintiff does not allege any misconduct
13 on the part of Mintz or Parashos unrelated to the investigation of the hazing allegations,
14 Defendants have not made a showing that (1) the policy discretion was vested in each of
15 the individual Defendants; and (2) each of the challenged actions resulted from exercise of
16 that policy discretion. See Cal. Gov't. Code § 820.2. Defendants assert EO 1098 forms the
17 basis of their policy decisions in a conclusory fashion, but do not cite to specific portions
18 of the Executive Order, and rely upon generalized arguments to support their claim of
19 discretionary immunity. (See MTD at 12; Mintz Decl. ¶¶ 3-4). This approach requires the
20 Court to make inferences and assume facts in Defendants favor, which is inappropriate at
21 this phase of the proceedings. Moreover, although Plaintiff alleges Mintz and Parashos
22 acted “willfully and wantonly”, (Opp’n to MTD at 8), he also asserts their investigation
23 was conducted negligently, (Compl. at ¶¶ 50-55). The Ninth Circuit has determined that
24 negligence in carrying out an investigation is not protected by § 820.2 immunity. Martinez
25 v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998). Accordingly, the Court finds
26 that Mintz and Parshos have not made a showing that California Government Code § 820.2
27 immunizes Mintz and Parashos from all state law claims.
28 ///
1 5. Immunity For Misrepresentation Pursuant to California Government
Code §§ 822.2 and 818.8
2
3 Next, Defendants argue immunity from the intentional misrepresentation and
4 negligent misrepresentations claims pursuant to California Government Code §§ 822.2 and
5 818.8.12 (MTD at 13). Plaintiff argues that “Defendants acted with deliberate malice when
6 they conducted an all-encompassing investigation into the alleged hazing incident. . . .
7 directly causing harm to Plaintiff through his education.” (Opp’n to MTD at 8).
8 Section 822.2 provides,
9 A public employee acting in the scope of his employment is not liable
for an injury caused by his misrepresentation, whether or not such
10
misrepresentation be negligent or intentional, unless he is guilty of
11 actual fraud, corruption or actual malice.

12
Cal. Gov't Code § 822.2. Immunity under § 822.2 is limited to causes of action that “are
13
forms of the common law tort of deceit . . . and involve interferences with financial or
14
commercial interests.” Doe 1 v. Manhattan Beach Unified Sch. Dist., 2020 WL 2556356
15
(C.D. Cal. May 19, 2020) (citing Finch Aerospace Corp. v. City of San Diego, 8 Cal. App.
16
5th 1248, 1252 (2017) (citations omitted)). “California law generally recognizes four
17
forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment,
18
and failure to perform a promise.” Id. For Plaintiff’s intentional misrepresentation and
19
negligent misrepresentation claims to survive, the Complaint must allege actual malice—
20
that is, “a conscious intent to deceive, vex, annoy or harm the injured party in his business.”
21
Curcini v. County of Alameda. 164 Cal. App. 4th 629, 649 (2008) (explaining that a
22
claimant must plead specific facts showing that the misrepresentation was motivated by
23
actual malice).
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12 Section 818.8 provides absolute immunity to a public entity for a misrepresentation
28
1 As to Defendant Mintz, the Complaint alleges Mintz sent an email to Plaintiff
2 asserting he “engaged and conspired to engage in hazing activities.” (Compl. at ¶ 63).
3 Plaintiff’s allegations rests on the premise that Mintz’s email “clearly indicated to
4 [Plaintiff] that there existed evidence that he has participated in hazing . . . [and] there was
5 no reasonable basis for Mintz to represent . . . that such evidence existed.” (Id. at ¶ 63.A.-
6 B.). Although Plaintiff makes an inferential leap, construing the motion in the light most
7 favorable to Plaintiff and accepting the allegations are true, Plaintiff makes a sufficient
8 showing of an intent to deceive, demonstrating the requisite malice to overcome immunity
9 pursuant to § 822.2.
10 As to Defendant Parashos, the Complaint alleges Parashos sent a Settlement
11 Agreement which included a list of Plaintiff’s hazing related violations. (Id. at ¶¶ 64-68).
12 Plaintiff alleges that “Defendant Parashos was aware that there existed no evidence that
13 could corroborate [Plaintiff’s] involvement in the hazing activities mentioned . . . . [and]
14 the express purpose of the Settlement Agreement was to convey . . . that [Plaintiff] had
15 been found responsible for the hazing activities mentioned[.]” (Id. at ¶ 67.B.-C). The
16 Complaint further alleges that Plaintiff relied on the contents of the settlement agreement.
17 (Id. ¶ 67.D). As previously stated, despite Plaintiff’s inferential leap, at this stage of the
18 proceedings, Plaintiff makes a sufficient showing of an intent to deceive, demonstrating
19 the requisite malice to overcome immunity pursuant to § 822.2.
20 6. Immunity Under the California Tort Claims Act
21 “The California Tort Claims Act requires, as a condition precedent to suit against a
22 public entity, the timely presentation of a written claim and the rejection of the claim in
23 whole or in part.” Mangold v. Cal. Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir.
24 1995) (citations omitted); Cal. Gov't Code §§ 905.2 (setting forth the presentation
25 requirement for any claims for money and damages); 945.4 (prohibition of suit without
26 claim presentation). “Where compliance with the Tort Claims Act is required, the plaintiff
27 must allege compliance or circumstances excusing compliance, or the complaint is subject
28 to general demurrer.” Id. Plaintiff has the burden of pleading compliance with the
1 California Tort Claims Act in the complaint. Wood v. Riverside General Hospital, 25 Cal.
2 App. 4th 1113, 1119 (1994). Finally, a complaint may be properly dismissed against an
3 employee of an agency acting within their express or implied authority, despite the
4 wrongful nature of their act, if a complaint does not allege compliance with the presentation
5 requirement. See Neal v. Gatlin, 35 Cal. App. 3d 871, 877-78 (1973).
6 Although Plaintiff’s opposition asserts “constant written and verbal communications
7 . . . including a direct SDSU form on claims”, (Opp’n to MTD at 8), that is insufficient to
8 overcome the procedural hurdle required, as Plaintiff’s complaint fails to allege compliance
9 with the California Tort Claims Act procedures. Accordingly, the tort claims for
10 negligence, negligent infliction of emotional distress, negligent misrepresentation, and
11 fraudulent misrepresentation are dismissed without prejudice, to allow Plaintiff to properly
12 plead compliance with the California Tort Claims Act. See Hernandez v. McClanahan,
13 996 F. Supp. 975, 979 (N.D. Cal. 1998) (holding that compliance with the procedural
14 requirements of the CTCA are “mandatory” and are “substantive elements” of a cause of
15 action) (citing United States v. California, 655 F.2d 914, 918 (9th Cir. 1980)).
16 B. Defendants’ Request for Judicial Notice
17 Defendants requests the Court take judicial notice of CSU’s Executive Order 1098
18 (“EO 1098”). (RJN at 1). EO 1098 “regulates CSU’s response to alleged student conduct
19 violations and has the full force and effect of the law[,]” and codifies state laws that require
20 the adoption of procedures governing student behavior and disciplinary actions. (RJN at
21 2). Under Federal Rule of Evidence 201(b), a district court may take notice of facts not
22 subject to reasonable dispute that are capable of accurate and ready determination by resort
23 to sources whose accuracy cannot be reasonably questioned. Fed. R. Evid. 201(b); see also
24 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001). Plaintiff does not address nor
25 contest Defendants’ request for judicial notice, however, the Court does not rely upon EO
26 1098 for the purposes of the instant motion. Accordingly, the request for judicial notice is
27 denied.
28
1 C. Defendants’ Special Motion to Strike Pursuant to California Code of Civil
Procedure § 425.16
2
3 Concurrent with a motion to dismiss, Defendants filed a special motion to strike
4 Plaintiff's state law claims, pursuant to California Code of Civil Procedure § 425.16,
5 California's anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute. (See
6 MTS; see also New Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1099–100 (C.D. Cal.
7 2004) (“Defendant properly directs its anti-SLAPP motion only to the pendant state law
8 claims set out in the Complaint.”)).
9 “SLAPP lawsuits are civil lawsuits . . . aimed at preventing citizens from exercising
10 their political rights or punishing those who have done so.” Church of Scientology v.
11 Wollersheim, 42 Cal. App. 4th 628, 645 (1996). The anti-SLAPP statute’s purpose is “to
12 allow early dismissal of meritless first amendment cases aimed at chilling expression
13 through costly, time-consuming litigation.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d
14 1097, 1109 (9th Cir. 2003). In furtherance of that purpose, California law provides that “a
15 prevailing defendant on a special motion to strike shall be entitled to recover his or her
16 attorney's fees and costs.” Cal. Civ. Proc. Code § 425.16(c)(1). “A motion to strike
17 brought under § 425.16 may be based on a defect in a complaint, including legal
18 deficiencies addressable on a motion to dismiss under FRCP 12(b)(6), or a failure to
19 support a stated claim with evidence, analogous to a FRCP 56 summary judgment motion.”
20 Robinson v. Alameda Cnty., 875 F. Supp. 2d 1029, 1047 (N.D. Cal. 2012) (quoting Condit
21 v. National Enquirer, Inc., 248 F. Supp. 2d 945, 952 (E.D. Cal. 2002)). A party may still
22 be considered a prevailing party for purposes of the anti-SLAPP motion, even if
23 unsuccessful in striking every claim. Mann v. Quality Old Time Service, Inc., 139 Cal.
24 App. 4th 328, 329 (2006).
25 The analysis of an anti-SLAPP motion is a two-step burden-shifting process.
26 Navellier v. Sletten, 29 Cal. 4th 82, 88-89 (2002). First, the defendant has the initial burden
27 of making a prima facie showing that the plaintiff's claims arise from an act in furtherance
28 of the defendant's rights of petition or free speech in connection with a public issue.
1 Browne v. McCain, 611 F. Supp. 2d 1062, 1067 (C.D. Cal. 2009). Next, if the defendant
2 meets his initial burden, the plaintiff is then charged with the burden of establishing, by
3 competent and admissible evidence, a probability of prevailing on his or her claims at trial.
4 Robinson, 875 F. Supp. 2d at 1048.
5 However, relevant here, the Ninth Circuit has cautioned that “[p]rocedural state laws
6 are not used in federal court if to do so would result in a direct collision with a Federal
7 Rule of Civil Procedure.” Verizon Delaware, Inc. v. Covad Commc’ns Co., 377 F.3d 1081,
8 1091 (quoting Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 845–46 (9th Cir. 2001)).
9 Specifically, the Ninth Circuit has held that “granting a defendant's anti-SLAPP motion to
10 strike a plaintiff's initial complaint without granting the plaintiff leave to amend would
11 directly collide with Fed. R. Civ. P. 15(a)'s policy favoring liberal amendment.” Id.
12 Plaintiff has an opportunity to re-allege the state law claims against the named
13 Defendants. See supra II.B.6. Accordingly, the Court denies Defendants’ anti-SLAPP
14 motion without prejudice.13 Furthermore, as previously discussed, (supra n.5), because
15 Plaintiff’s Complaint does not contain any allegations against Defendant Board of
16 Trustees, the Court does not make a determination as to whether the Board of Trustees can
17 recover attorneys’ fees for the pendant state law claims pursuant to the California anti-
18 SLAPP statute.
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26
27
13 Defendants may file a renewed motion to strike pursuant to § 425.16 if Plaintiff re-
28
I Il.
2 CONCLUSION
3 For the foregoing reasons, the Court:
4 1. Grants in part and denies in part the motion to dismiss, as detailed above;
5 2. Denies the request for judicial notice; and,
6 3. Denies the Special Motion to Strike Pursuant to California Code of Civil
7 Procedure § 425.16.
8 4. Plaintiff may file an amended complaint with respect to the matters on which
9 the Court has granted leave to amend. The amended pleading must be filed
10 no later than June 9, 2023.
11 IT IS SO ORDERED.
12 || DATED: May 17, 2023 | | | | |
13
14 JOAN A. HOUSTON
UWITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087641. Public record. Not legal advice.