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

> District Court, S.D. California · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10089262

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 28, 2024
- **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/10089262

## How later opinions describe it (automated extraction)

- explaining that a claimant must plead 26 specific facts showing that the misrepresentation was motivated by actual malice

## 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,
ORDER GRANTING
13 v. DEFENDANTS’ SPECIAL
MOTION TO STRIKE THE
14 THE BOARD OF TRUSTEES OF THE
AMENDED COMPLAINT
CALIFORNIA STATE UNIVERSITY
15
SYSTEM, through its subdivision San
16 Diego State University, ANDREA
PARASHOS (in her individual capacity),
17 ECF No. 18
LEE MINTZ (in her individual capacity),
18 and DOES 1-20 (in their individual
Capacities),
19
Defendants.
20
21 I. INTRODUCTION
22 Pending before the Court is Defendants Andrea Parashos and Lee Mintz’s
23 (collectively, “Defendants”) Special Motion to Strike. (“Mot.,” ECF No. 18). Plaintiff
24 John Lema (“Lema” or “Plaintiff”) filed a Response in Opposition to the Motion, (“Opp’n,”
25 ECF No. 22), and Defendants filed a Reply, (“Reply,” ECF No. 23). The motion is decided
26 on the submissions without oral argument pursuant to Civil Local Rule 7.1.d.1. Having
27 considered the pleadings and the applicable law, and for the reasons set forth below,
28 Defendants’ Special Motion to Strike is GRANTED.
1 II. BACKGROUND
2 Plaintiff John Lema brings this action against Andrea Parashos (“Parashos”), San
3 Diego State University’s Title IX Investigator, and Lee Mintz (“Mintz”), Director for the
4 Center of Student Rights and Responsibilities and Deputy Title IX Coordinator for San
5 Diego State University, alleging Due Process violations under the Fifth2 and Fourteenth3
6 Amendments pursuant to 42 U.S.C. § 19834, and California state claims for negligence (as
7 to Parashos and Mintz), negligent infliction of emotional distress (as to Parashos and
8 Mintz), negligent misrepresentation (as to Parashos and Mintz), and fraudulent
9 misrepresentation (as to Parashos only). (“FAC,” ECF No. 15). In his amended complaint,
10 Plaintiff asserts he suffered humiliation, mental anguish, and emotional distress when
11 Defendants investigated him in connection with hazing allegations on San Diego State
12 University’s (“SDSU”) campus, resulting in a delay to Lema’s graduation date. (Id. at ¶¶
13 25, 36, 47, 49).
14 While at SDSU, Plaintiff was a member of the Phi Gamma Delta Fraternity. (Id. at
15 ¶ 17). However, Plaintiff contends his attendance and participation at fraternity sponsored
16
17
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1 Page numbers referenced herein refer to the page numbers generated by the CM/ECF
19 system.
2 The Fifth Amendment states that the federal government may not deprive a person of
20
“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 with 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 activities was infrequent. (Id.) Lema planned to graduate from SDSU in August 2020.
2 (Id. at ¶ 18). In July 2020, Plaintiff was notified by Defendants that the University had
3 opened a student misconduct investigation against him to investigate reports of hazing by
4 members of the Phi Gamma Delta fraternity. (Id. at ¶¶ 20-21). Allegations against Lema
5 included:
6 provid[ing] alcohol to minors, physically assault[ing] members of the
campus community, interfere[ing] with the orderly progress of a
7
student disciplinary proceeding, attempt[ing] to influence impartiality
8 of any participant in a student discipline matter, and encourag[ing],
permit[ing], or assist[ing] another to do any act that could subject them
9
to discipline.
10
11 (Id. at ¶ 21 (formatting altered)). Defendants also alleged Plaintiff violated subsections of
12 Title V, section 41301 of the California Code of Regulations.5 (Id. at ¶ 22).
13

14
15 5 According to the Complaint, the relevant regulations Defendants assert Plaintiff
violated are:
16
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
26
discipline proceeding;
27
b.20 – Encouraging, permitting, or assisting another to do any act that
28
1 On July 10, 2020, Defendants notified Plaintiff that he would not graduate in August
2 2020 as planned. (Id. at ¶ 25). Around this time, Lema retained counsel to assist him with
3 the pending disciplinary proceedings. (Id. at ¶ 26). On August 20, 2020, Parashos called
4 Plaintiff to further discuss the disciplinary investigation that was being conducted. (Id. at
5 ¶ 27). During this phone call, Parashos informed Lema that the investigation was
6 predicated on his association with the Phi Gamma Delta Fraternity. (Id.)
7 On November 23, 2020, Plaintiff received an email asking him to sign a settlement
8 agreement (“Agreement”) acknowledging responsibility for the alleged disciplinary
9 charges. (Id. at ¶ 28). The Agreement solicited admissions from Lema for:
10
(A) compel[ing] physically demanding activities; . . . (B) compel[ing]
11 forced alcohol consumption; (C) compel[ing] individuals to drink
foreign or unusual substances; (D) compel[ing] acts of servitude; (E)
12
blindfolding; (F) paddling; (G) bullying; (H) intimidation; (I) physical
13 and emotional degradation and humiliation of other students; (J)
compel[ing] pledges to contribute money to pay for alcohol that would
14
be consumed during events.
15
16 (Id. at ¶ 29 (formatting altered)). Additionally, the Agreement concluded Plaintiff violated
17 the aforementioned subsections from the California Code of Regulations, supra fn. 5. (Id.
18 at ¶ 30).6 The Agreement sought to compel Lema into accepting punishment, in the form
19 of counseling and suspension, for his purported involvement in the fraternity hazing. (Id.
20 at ¶ 32).
21 On December 19, 2020, Defendant Parashos sent Lema a prepared report containing
22 specific accounts of Phi Gamma Delta hazing. (Id. at ¶ 35). Plaintiff’s name is not
23 explicitly mentioned in this report. (Id.) After pressure from Lema’s retained counsel, the
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1 disciplinary proceedings against Plaintiff were abandoned. (Id. at ¶ 36). Lema graduated
2 from SDSU in May of 2021. (Id.)
3 III. DISCUSSION
4 A. Legal Standard
5 Defendants filed a special motion to strike Plaintiff's state law claims, pursuant to
6 California Code of Civil Procedure section 425.16, California's anti-SLAPP (“Strategic
7 Lawsuit Against Public Participation”) statute. New Net, Inc. v. Lavasoft, 356 F.Supp.2d
8 1090, 1099 (C.D. Cal. 2004) (“Defendant properly directs its anti-SLAPP motion only to
9 the pendant state law claims set out in the Complaint.”).
10 SLAPP lawsuits are “civil lawsuits . . . aimed at preventing citizens from exercising
11 their political rights or punishing those who have done so.” Church of Scientology v.
12 Wollersheim, 42 Cal.App.4th 628, 645 (1996). The anti-SLAPP statute’s purpose is “to
13 allow early dismissal of meritless first amendment cases aimed at chilling expression
14 through costly, time-consuming litigation.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d
15 1097, 1109 (9th Cir. 2003) (quoting Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 839
16 (9th Cir. 2001)). In furtherance of that purpose, California law provides that a prevailing
17 defendant shall be entitled to recover attorney's fees and costs. Cal. Civ. P. Code
18 § 425.16(c)(1). When, as here, “an anti-SLAPP motion to strike challenges only the legal
19 sufficiency of a claim, a district court should apply the Federal Rules of Civil Procedure
20 12(b)(6) standard and consider whether a claim is properly stated.” Planned Parenthood
21 Fed’n of Am. Inc. v. Ctr. For Med. Progress, 890 F.3d 828, 834 (9th Cir. 2018). A party
22 may still 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 Serv., Inc., 139
24 Cal.App.4th 328, 333-34 (2006).
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7 The Complaint does not indicate the date Defendants dropped the disciplinary
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1 The analysis of an anti-SLAPP motion is a two-step burden-shifting process.
2 Navellier v. Sletten, 29 Cal. 4th 82, 88-89 (2002). First, the defendant has the initial burden
3 of making a showing that the plaintiff's claims arise from protected activity under the anti-
4 SLAPP statute. Id. “[I]f the defendant meets its initial burden, the plaintiff is then charged
5 with the burden of establishing, by competent and admissible evidence, a probability of
6 prevailing on his or her claims at trial.” Robinson v. Alameda Cnty., 875 F.Supp.2d 1029,
7 1048 (N.D. Cal. 2012) (citation omitted).
8 B. Analysis
9 1. Step One: Arising from Protected Activity
10 To satisfy step one, the Court determines “(1) whether the Complaint alleges activity
11 protected by section 425.16 and (2) whether the cause or causes of action alleged arise from
12 those activities.” Gunn v. Drage, 65 F.4th 1109, 1120-21 (9th Cir. 2023) (citations
13 omitted).
14 a. The Complaint Alleges Activity Protected by Section 425.16
15 Defendants argue that their actions fall within subsections (e)(1), (2), and (4) in
16 section 425.16, which apply to: “(1) any written or oral statement or writing made before
17 a legislative, executive, or judicial proceeding, or any other official proceeding authorized
18 by law,” “(2) any written or oral statement or writing made in connection with an issue
19 under consideration or review by a legislative, executive, or judicial body, or any other
20 official proceeding authorized by law,”8 and “(4) any other conduct in furtherance of the
21 exercise of the constitutional right of petition or the constitutional right of free speech in
22 connection with a public issue or an issue of public interest.” (Mot. at 12).
23
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8 Subparagraphs (1) and (2), “both defining acts in furtherance of the rights of petition
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and of free speech[,] differ in that subparagraph (1) is limited to oral and written statements
27 and writings actually made in the course of certain specified proceedings, while
subparagraph (2) includes statements made ‘in connection with’ those proceedings.” Kibler
28
1 Defendants assert that the university’s discipline proceedings are quasi-judicial
2 proceedings that are covered by the “other official proceedings” clause in the subsections
3 (e)(1) and (2), arguing that “all aspects of the [CSU Executive Order] 1098 proceeding of
4 which [Plaintiff] complains are protected,” including the decision to investigate Plaintiff
5 as part of the official hazing investigations, the communications with Plaintiff about the
6 investigation process, and the findings and proposed compromised discipline as part of a
7 settlement agreement. (Id. at 20). Defendants further assert “Dr. Mintz’s July 8, 2020
8 email providing [Plaintiff] with notice of the hazing allegations and Ms. Parashos’
9 November 23, 2020 letter informing [Plaintiff] of the investigation findings and charges
10 are both protected communications made in connection with an official proceeding
11 authorized by law.” (Id.)
12 Plaintiff’s sole argument is that he is unaware of any authority that shows this type
13 of investigation, and its accompanying communications, is a matter of public concern, and
14 accordingly, Defendants have failed to make a prima facie showing that the conduct arises
15 under protected First Amendment activity. (Opp’n at 10).
16 An “official proceeding authorized by law” under subsections (e)(1) and (2) includes
17 proceedings required by law, even if conducted by private parties. Kibler, 39 Cal.4th at
18 199 (holding that “a hospital’s peer review procedure qualifies as ‘an official proceeding
19 authorized by law’ under section 425.16, subdivision (e)(2) because that procedure is
20 required under Business and Professions Code section 805[.]”). “These first two clauses
21 of subdivision (e) of section 425.16 safeguard free speech and petition conduct aimed at
22 advancing self-government, as well as conduct aimed at more mundane pursuits.” Laker
23 v. Bd. of Trs. of Cal. State Univ., 32 Cal.App.5th 745, 764 (2019) (citation omitted).
24 Furthermore, courts have routinely found that internal university investigations made
25 pursuant to university policy are considered “official proceedings authorized by law.” See
26 Laker, 32 Cal.App.5th at 764 (a university investigation into claims of harassment based
27 on sex and race qualified as an official proceeding within the meaning of the anti-SLAPP
28 statute because the investigation was statutorily authorized by section 89030 of the
1 California Education Code); Ross v. Seyfarth Shaw LLP, 96 Cal.App.5th 722 (2023)
2 (statements made during an internal CSU investigation is an “official proceeding
3 authorized by law” under California Civil Procedure Code sections (e)(1) and (2)).
4 Here, section 41301 sets the standards for student conduct, and enumerates various
5 grounds for student discipline, including hazing. Cal. Code Reg., tit. 5, § 41301(b)(8). The
6 enforcement mechanism under this statute, and thereby Defendants’ authority to
7 implement disciplinary measures, is expressly promulgated to the Chancellor pursuant to
8 section 41301(c) of the California Code of Regulations vis-à-vis Executive Order 1098.
9 Defendants Mintz and Parashos’ allegedly infringing communications and investigation
10 occurred while acting pursuant to the authority provided by Executive Order 1098. See
11 EO 1098 III.A.-B. For these reasons, the Court finds that the investigation and
12 communications at issue occurred during the course of an official proceeding authorized
13 by law. Because Defendants have properly invoked subsections (e)(1) and (2), they “need
14 not separately demonstrate that the statement concerned an issue of public significance.”
15 Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106,1123 (1999) (italics in
16 original).
17 b. The Causes of Action Alleged Arise From Those Activities
18 Defendants must make a prima facie case to “identify what acts each challenged
19 claim rests on[.]” Gunn, 65 F.4th at 1121. Here, Defendants Mintz and Parashos’
20 investigation and communications during the investigation underpin Plaintiff’s claims for
21 negligence, negligent infliction of emotional distress, negligent misrepresentation, and
22 fraudulent misrepresentation. Park v. Bd. of Trs. of Cal. State Univ., 2 Cal.5th, 1057, 1062
23 (2017) (“A claim arises from protected activity when that activity underlies or forms the
24 basis for the claim.”); cf. Heineke v. Santa Clara Univ., No. 17-CV-05285-LHK, 2017 WL
25 6026248, *7 (N.D. Cal. Dec. 5, 2017) (denying anti-SLAPP where defendants’ alleged
26 actions, not protected speech, form the basis of plaintiff’s claim). The critical primary
27 conduct here that forms the basis of Plaintiff’s complaints includes the investigation; the
28 July 8, 2020 email from Mintz to Lema; the phone call on or about August 30, 2020
1 between Parashos and Lema; the November 23, 2020 email containing the Agreement; the
2 December 19, 2020 report from Parashos to Lema, and the investigation itself. (FAC ¶¶
3 20-35). As such, the investigation and communications “at issue [here] is explicitly alleged
4 to be the injury-producing conduct.” Okorie v. Los Angeles Unified Sch. Dist., 14
5 Cal.App.5th 574, 491 (2017).
6 Accordingly, the Court finds the challenged claims arise from the official protected
7 activity described above, and the burden now shifts to Plaintiff to demonstrate a probability
8 of success on the merits of his claims.
9 2. Step Two: Probability of Prevailing on the Merits
10 a. Evidentiary Objections
11 Defendants object to Exhibits A and B attached to Plaintiff’s opposition to
12 Defendant’s special motion to strike. (“Evid. Obj.”, ECF No. 23-1 at 2). The Court must
13 first rule on evidentiary objections before considering whether the admissible evidence
14 demonstrates a probability of Plaintiff prevailing on the merits of his claims. Martin v.
15 Inland Empire Utilities Agency, 198 Cal.App.4th 611, 630 (2011) (quoting Hall v. Time
16 Warner, Inc., 153 Cal.App.4th 1337, 1347-48 (2007)). In fact, “the plaintiff cannot rely
17 on the allegations of the complaint, but must produce evidence that would be admissible at
18 trial.” Nguyen-Lam v. Cao, 171 Cal.App.4th 858, 866-67 (2009) (quoting Integrated
19 Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.App.4th 515, 527 (2006)); Cross v.
20 Cooper, 197 Cal.App.4th 357, 370 (2011) (quoting Hall v. Time Warner, Inc., 153
21 Cal.App.4th 1337, 1346 (2007)).
22 In this case, Plaintiff submits two exhibits: Exhibit A is entitled Case Notes,
23 purportedly drafted by Defendants Mintz and Parashos and appears to contain information
24 gathered from individual pledges or members from Phi Gamma Delta Fraternity. Exhibit
25 B appears to be the Settlement Agreement addressed to Plaintiff and signed by Defendant
26 Parashos. Plaintiff cites Exhibit A to illustrate Plaintiff’s culpability by arguing that
27 Plaintiff’s name, which for an unexplained reason appears as “Travis” in the Exhibit, only
28 appears in the investigate report once. (Opp’n at 7). Exhibit B is used to detail the specific
1 violative conduct Plaintiff was alleged to have participated in. (Id. at 14-15). Defendants
2 object to both exhibits on the basis that they were not properly authenticated, are
3 inadmissible hearsay, and because they lack foundation. (Evid. Obj. at ¶¶ 1-2). Although
4 the Court does not rely on the Exhibits attached to Plaintiff’s opposition, the Court notes
5 that the evidentiary objections are unpersuasive. See e.g., Stewart v. Kodiak Cakes, LLC,
6 537 F.Supp.3d 1103, 1119 (S.D. Cal. 2021) (“Plaintiffs raise the specter of an authenticity
7 dispute ... [but] Plaintiffs do not detail how [the disputed documents] are inauthentic,
8 inaccurate, or disputed; instead, they merely question the manner in which they are
9 presented before the Court. Therefore, Plaintiffs do not genuinely question the authenticity
10 of the exhibits.”). However, because the Court does not rely on Plaintiff’s exhibits, the
11 evidentiary objections are denied as moot.
12 b. Legal Standard
13 In the second step of the anti-SLAPP analysis, the burden shifts to the plaintiff to
14 demonstrate that each challenged claim based on protected activity is legally sufficient and
15 factually substantiated. Baral v. Schnitt, 1 Cal.5th 376, 396 (2016). The plaintiff must
16 demonstrate this probability of success with admissible evidence. Sheley v. Harrop, 9
17 Cal.App.5th 1147, 1162 (2017). Moreover, in supporting those claims, “[t]he plaintiff may
18 not rely solely on its complaint, even if verified[.]” Paiva v. Nichols, 168 Cal.App.4th
19 1007, 1017 (2008) (quoting ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1010
20 (2001)).
21 Here, Plaintiff alleges claims against Defendants for negligence (as to Parashos and
22 Mintz), negligent infliction of emotional distress (as to Parashos and Mintz), negligent
23 misrepresentation (as to Parashos and Mintz), and fraudulent misrepresentation (as to
24 Parashos only). Plaintiff argues Defendants actions are not immunized for their
25 discretionary acts or from the misrepresentation claims because their actions were “willful
26 and wonton” and done with deliberate malice. (Opp’n at 12-13). Plaintiff further claims
27 he is likely to succeed on his claims because Defendants “intentionally and willfully went
28 outside of the judicial investigation, misrepresented the judicial process and investigation
1 to Plaintiff and sought discipline against the Plaintiff with the intention of causing injury
2 to Plaintiff.” (Opp’n at 22). Each argument will be discussed in turn.
3 c. Analysis
4 i. Discretionary Immunity Pursuant to California Government Code
§ 820.2
5

6 Without citing to authority, Plaintiff argues Defendants actions were not
7 discretionary, but were willful and wanton, and Defendants were aware there was no
8 evidence of Plaintiff’s involvement in any hazing activity. (Opp’n at 13). Plaintiff avers
9 that “[w]hether the Defendants actions were discretionary is a question for the Court.”
10 (Id.) Defendants assert that they are immune from all claims for their discretionary acts
11 because they were vested with authority under EO 1098 to “discipline students and
12 investigate complaints.” (Mot. at 23). Furthermore, Defendants argue Mintz notifying
13 Plaintiff of the hazing allegations, and Parashos notifying Plaintiff of the proposed charges
14 and offering a settlement “directly arise” from the discretion vested in them under EO 1098.
15 (Id.)
16 Section 820.2 creates immunity for public employees acting within discretion vested
17 in them through their office:
18
“Except as otherwise provided by statute, a public employee is not
19 liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him,
20
whether or not such discretion be abused.”
21
22 Cal. Gov’t Code § 820.2. Public employees are entitled to immunity for discretionary acts
23 that constitute “basic policy decisions,” but they are not entitled to immunity if those acts
24 are purely “ministerial.” Caldwell v. Montoya, 10 Cal.4th 972, 981 (1995). Immunity for
25 discretionary acts extends to basic governmental policy decisions entrusted to broad
26 official judgment, (id. at 976), and a distinction is drawn between “ ‘planning’ and
27 ‘operational’ functions of government.” Id. at 981 (citing Johnson v. State of California,
28 69 Cal. 2d 782, 793 (1968)). On the one hand, immunity applies where “the responsibility
1 for basic policy decisions has been committed to coordinate branches of government”,
2 Johnson, 69 Cal.2d at 783, and on the other hand, immunity is inapplicable to “lower-level,
3 or ministerial, decisions that merely implement a basic policy already formulated.”
4 Caldwell, 10 Cal.4th at 981 (citations and quotation marks omitted). There is also no basis
5 for immunizing decisions that are not actually “deliberate and considered.” Caldwell, 10
6 Cal.4th at 981. But “to be entitled to immunity the state must make a showing that such a
7 policy decision, consciously balancing risks and advantages, took place.” Johnson, 69
8 Cal.2d at 794 n.8.
9 There is a breadth of case law that supports the general proposition that “[d]ecisions
10 by a school’s supervisory personnel regarding disciplinary matters are . . . considered
11 discretionary and within the scope of section 820.2.” Walsh v. Tehachapi Unified Sch.
12 Dist., 827 F.Supp.2d 1107, 1122 (E.D. Cal. 2011) (quotation marks omitted); Clifford v.
13 Regents of Univ. of Calif., No. 2:11–CV–02935–JAM–GGH, 2012 WL 1565702 (E.D. Cal.
14 Apr. 20, 2012); Thompson v. Sacramento City Unified Sch. Dist., 107 Cal.App.4th 1352,
15 1361 (2003); Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1389-90 (N.D.
16 Cal. 1997). Plaintiff’s conclusory allegations do not sufficiently demonstrate the
17 inapplicability of section 820.2. On the other hand, Defendants cite to portions of EO 1098
18 in asserting their authority and discretion to investigate Lema, charge him with violations
19 of the code of conduct, and offer him a settlement for his charge. (Mot. at 23). As such,
20 Defendants are immune from the state law claims for their discretionary acts pursuant to
21 California Government Code section 820.2. See McCorkle v. City of Los Angeles, 70
22 Cal.2d 252, 261 (1969) (the applicability of discretionary immunity requires “judicial
23 determination of the category into which the particular act falls: i.e., whether it was
24 ministerial because it amounted only to an obedience to orders, or the performance of a
25 duty in which the officer is left no choice of his own, or discretionary because it required
26 ‘personal deliberation, decision and judgment.’ ”) (quotations omitted).
27 ///
28 ///
1 ii. Immunity from Misrepresentation Claims Pursuant to California
Government Code § 822.2
2

3 Plaintiff contends Defendants’ investigation “was maliciously conducted to harm all
4 students that chose to be part of the fraternity,” and Plaintiff was offered a settlement
5 despite the University having no evidence linking him to the hazing incident. (Opp’n at
6 13-14). First, Defendants argue that they are entitled to immunity pursuant to California
7 Government Code section 822.2 because Plaintiff’s misrepresentation claims involve
8 “interference with financial or commercial interest.” (Mot. at 24). Second, Defendants
9 argue that Plaintiff cannot demonstrate any “actual fraud, corruption, or actual malice”
10 against them to defeat immunity. (Id.)
11 Section 822.2 provides,
12
A public employee acting in the scope of his employment is not liable
13 for an injury caused by his misrepresentation, whether or not such
misrepresentation be negligent or intentional, unless he is guilty of
14
actual fraud, corruption or actual malice.
15
16 Cal. Gov't Code § 822.2. Immunity under section 822.2 is limited to causes of action that
17 “are forms of the common law tort of deceit . . . and involve interferences with financial or
18 commercial interests.” Doe 1 v. Manhattan Beach Unified Sch. Dist., 2020 WL 2556356
19 (C.D. Cal. May 19, 2020) (citing Finch Aerospace Corp. v. City of San Diego, 8
20 Cal.App.5th 1248, 1252 (2017) (citations omitted)). “California law generally recognizes
21 four forms of deceit: intentional misrepresentation, negligent misrepresentation,
22 concealment, and failure to perform a promise.” Id. For Plaintiff’s negligent
23 misrepresentation claim to survive, he must allege actual malice—that is, “a conscious
24 intent to deceive, vex, annoy or harm the injured party in his business.” Curcini v. Cnty.
25 of Alameda, 164 Cal.App.4th 629, 649 (2008) (explaining that a claimant must plead
26 specific facts showing that the misrepresentation was motivated by actual malice).
27 Plaintiff’s general allegations that the investigation was conducted to harm all
28 members of the fraternity, and Defendants continued to harm Plaintiff despite awareness
1 that he did not participate in any hazing activities is insufficient to support malice and
2 overcome immunity under section 822.2 at this juncture. See California Pub. Emps.’ Ret.
3 Sys. v. Moody’s Invs. Serv., Inc., 226 Cal.App.4th 643, 677 (2014).
4 iii. Merits of the Claims
5 Notwithstanding the applicability of statutory immunity under California
6 Government Code sections 820.2 and 822.2 to all of the state law claims, Plaintiff also fails
7 to meet his burden of showing a likelihood of success on the merits.
8 A. Negligence
9 In order to sustain a claim for negligence, Plaintiff must plead duty, breach of duty,
10 proximate cause, and damages. Artiglio v. Corning, Inc., 18 Cal.4th 604, 614 (1998).
11 Plaintiff’s negligence claim is based on Defendants’ investigation, which allegedly “lacked
12 evidence.” (FAC at ¶ 52). Plaintiff alleges Mintz was specifically culpable as Title IX
13 Coordinator for the July 8, 2020, email, and for “allow[ing] Parashos to send Lema the
14 settlement agreement[.]” (Id. at ¶ 53) (capitalization normalized). According to the
15 Complaint, Parashos is similarly culpable for negligence for the settlement agreement,
16 which not only failed to provide evidence of hazing conduct, but which Parashos knew
17 there was no evidence of. (Id. at ¶ 54).
18 Plaintiff’s Complaint only provides conclusory averments of the requisite elements,
19 and his opposition to the instant motion fares no better. Without a single citation to support
20 his theory, Plaintiff asserts “Defendants had a duty to not levy disciplinary charges against
21 Plaintiff that Defendants knew or should have known lacked evidence.” (Opp’n at 14).
22 Plaintiff heavily relies on Defendants pursuit of the investigation despite the alleged lack
23 of evidence as the basis for his negligence claim. (Id. at 14-15). Plaintiff fails to cite to
24 any authority or even attempt to establish Defendants’ have a duty to Plaintiff in the course
25 of their investigation. Cf. Regents of University of California v. Superior Court, 4 Cal.5th
26 607, 626 (2018) (university has special relationship with students imposing duty to protect
27 them from foreseeable violence during curricular activities). Notwithstanding the
28 deficiencies stated above, Lema’s opposition also fails to demonstrate any damages
1 stemming from Defendants’ investigation or the statements beyond “extreme emotional
2 distress.” (Opp’n at 15).9 Accordingly, Defendants’ motion to strike the negligence claim
3 is GRANTED.
4 B. Negligent Infliction of Emotional Distress
5 “The negligent causing of emotional distress is not an independent tort but the tort
6 of negligence, involving the usual duty and causation issues.” Hecimovich v. Encinal Sch.
7 Parent Teacher Org., 203 Cal.App.4th 450, 477 (2012); see also Lawson v. Management
8 Activities, Inc., 69 Cal.App.4th 652, 656 (1999) (“[A]s our Supreme Court has made
9 abundantly clear, there is no such thing as the independent tort of negligent infliction of
10 emotional distress.” (emphasis in original)). To maintain a cause of action for negligent
11 infliction of emotional distress “where there is no accompanying personal, physical injury,
12 the plaintiff must show that the emotional distress was ‘serious[,]’ . . . [Such that a
13 reasonable person,] normally constituted, would be unable to adequately cope with the
14 mental stress[.]” Wong v. Jin, 189 Cal.App.4th 1354, 1377-78 (2010) (citing Molien v.
15 Kaiser Foundation Hospitals, 27 Cal.3d 916 (1980)).
16 As stated above, Plaintiff only provides the conclusory statement that he “suffered
17 emotional distress[,]” as a result of Defendants’ negligence. (Opp’n at 15).10 Plaintiff’s
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9 Lema’s Complaint asserts he “suffered from emotional injury and humiliation” and
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was forced to “expend a significant amount of money in attorney’s fees” as a result of
21 Defendants’ actions. (FAC at ¶ 49). These allegations are insufficient to support a finding
damages. Zumbrun v. Univ. of S. Cal., 25 Cal.App.3d 1, 11-12 (1975) (holding, in a
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negligence cause of action, the pleading must inform the defendant of the causal connection
23 between defendant’s alleged conduct and damages, and damages must allege facts to
support them or else they are conclusory and unsatisfactory) (citing D’Andrea v. Pringle,
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243 Cal.App.2d 689, 696 (1966)); Moore v. Centrelake Medical Grp., Inc., 83 Cal.App.5th
25 515, 523 (2022) (generally, the economic loss rule “bars recovery in negligence for purely
economic losses, meaning financial harm unaccompanied by personal injury or property
26
damage.”).
27 10 Lema’s Complaint alleges that it was foreseeable that Defendants hazing accusations
would “cause him serious emotional distress” and would “cause an imminent threat to [his]
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1 allegations in support of this claim are perfunctory, and do not meet his burden in
2 demonstrating any range of emotions that would indicate serious distress, such as “fright,
3 nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity.” Thing.
4 v. La Chusa, 48 Cal.3d 644, 648-49 (1989); see also San Joaquin Deputy Sheriffs’ Ass’n.
5 v. Cnty. of San Joaquin, 898 F.Supp.2d 1177, 1192-93 (E.D. Cal. 2012) (dismissing
6 conclusory allegations of severe emotional distress); Brotherhood Mut. Ins. Co. v. Vinvok,
7 Case No.: EDCV 19-01821-CJC(SPx), 2020 WL 2735623, *5 (C.D. Cal. 2020) (same).
8 Accordingly, Defendants’ motion to strike the negligent infliction of emotion distress claim
9 is GRANTED.
10 C. Negligent Misrepresentation
11 Negligent misrepresentation requires a showing that (1) the defendant made a
12 misrepresentation as to a past or existing material fact; (2) the defendant made the
13 representation without reasonable ground for believing it to be true; (3) with the intention
14 of deceiving the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5)
15 the plaintiff suffered damages. West v. JPMorgan Chase Bank, N.A., 214 Cal.App.4th 792
16 (2013). A defendant who makes a statement without reasonable grounds, and honestly
17 believes the misrepresentations are true can still be liable for negligent misrepresentation.
18 Apollo Cap. Fund, LLC v. Roth Cap. Partners, LLC, 158 Cal.App.4th 226, 243 (2007).
19 As with the preceding claims, Plaintiff asserts that the email from Defendants Mintz’
20 “clearly indicated to Plaintiff that there existed evidence that he had participated in hazing
21 and that he was being accused of hazing based on this evidence.” (Opp’n at 15). Plaintiff
22 states, without further explanation, that he “detrimentally relied on the assertions of the
23 Defendants resulting in injury[.]” Even accepting Plaintiff’s conclusory statements that
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that any emotional injury is foreseeable is not dispositive, or even supportive, of this claim.
27 See Krupnick v. Hartford Accident & Indemnity Co., 28 Cal.App.4th 185, 201 (1994)
(finding that when a claim is based on purely emotional distress, “foreseeability is
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1 Defendants made misrepresentations of material facts with the intention of deceiving
2 Plaintiff and without reasonable grounds to believe it to be true, the Court strains to find
3 how Plaintiff detrimentally relied on any of Defendants statements. In fact, the facts
4 suggest the opposite. After Lema received the email from Defendant Mintz detailing the
5 hazing allegations lodged against him, Plaintiff retained counsel. (FAC at ¶ 26). Plaintiff
6 does not allege any further engagement with either Defendants Mintz or Parashos. Even
7 after receiving the Settlement Agreement, Plaintiff does not allege he signed the
8 Agreement, and was able to graduate in May of 2021. (Id. at 36). The disciplinary charges
9 were dropped and Lema’s academic record does not contain any disciplinary charges.
10 (Declaration of Lee Mintz, “Mintz Decl.”, ECF No. 18-2 at ¶ 20). It is difficult to
11 extrapolate any reliance by Plaintiff upon Defendants’ alleged misrepresentations.
12 Plaintiff’s allegations to support reliance and damages under this claim are similarly
13 conclusory, merely stating Plaintiff’s reliance on Defendants’ assertions resulted in injury.
14 (Opp’n at 16). As stated, Plaintiff does not appear to suffer damages based on the
15 investigation or the communications derived thereof, as disciplinary charges were dropped
16 and he was able to graduate. Accordingly, Defendants’ motion to strike the negligent
17 misrepresentation claim is GRANTED.
18 D. Fraudulent Misrepresentation
19 Under California law the elements of fraudulent misrepresentation are: “(1) the
20 defendant misrepresents material facts; (2) with knowledge of the falsity of the
21 representations or the duty of disclosure; (3) with intent to defraud or induce reliance; (4)
22 which induces justifiable reliance by the plaintiff; (5) to his or her detriment.” Terra Ins.
23 Co. v. N.Y. Life Inv. Mgmt. LLC, 717 F.Supp.2d 883, 890 (N.D. Cal. 2010) (citing Hahn v.
24 Mirda, 147 Cal.App.4th 740, 748 (2007)).
25 In support of this claim, Plaintiff relies on the contents of the email from Defendant
26 Mintz, which “clearly indicated to Plaintiff that there existed evidence that he had
27 participated in hazing and that he was being accused of hazing based on this evidence.”
28 (Opp’n at 16). Plaintiff also relies on the Settlement agreement as evidence of Defendants’
1 fraudulent misrepresentation because “Defendants knew or should have known that the
2 settlement agreement was a misrepresentation of the facts and determination of the
3 investigation.” (Id.) Plaintiff asserts he detrimentally relied on these misrepresentations,
4 resulting in injury.
5 Plaintiff only provides conclusory allegations to support his proposition that
6 Defendants’ conduct induced justifiable reliance to his detriment. As previously discussed,
7 any disciplinary charges against Plaintiff were dropped with no negative remarks on his
8 transcript, and he subsequently graduated. Accordingly, Defendants’ motion to strike the
9 fraudulent misrepresentation claim is GRANTED.
10 3. Attorney’s Fees and Costs
11 Defendants request the Court award their fees and costs incurred in bringing this
12 motion. Subdivision (c)(1) of section 425.16 provides in relevant part, “in any action
13 subject to subdivision (b), a prevailing defendant on a special motion to strike shall be
14 entitled to recover his or her attorneys’ fees and costs.” Cal. Civ. P. Code § 425.16(c)(1).
15 As discussed, Defendants have demonstrated that Plaintiff’s state law claims are
16 based on protected activity, thereby falling within the anti-SLAPP statute, and Plaintiff has
17 failed to demonstrate a probability of prevailing on those claims. Accordingly, Defendants
18 are entitled to attorneys’ fees and costs. Barry v. State of California, 2 Cal.5th 318, 327
19 (2017) (“A defendant that successfully moves to strike a plaintiff’s cause of action,
20 whether on merits or nonmerits grounds, has ‘prevailed’ on the motion, and therefore is
21 entitled to attorney’s fees and costs.”). The Parties are ordered to confer as to the amount
22 of attorneys’ fees to be awarded and submit a stipulation within thirty (30) days from the
23 date of this Order. Should the Parties be unable to reach an agreement, they shall file a
24 joint status report to that effect within thirty (30 days) from the date of this Order and file
25 a noticed motion.
26 ///
27 ///
28 ///
l IV. CONCLUSION
2 For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Special
3 ||Motion to Strike Pursuant to California Code of Civil Procedure section 425.16 is
4 || GRANTED.
5 IT IS SO ORDERED.
6 |} DATED: March 28, 2024
7
. Yb Mh
9 JOHN A. HOUSTON
UWNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10089262. Public record. Not legal advice.