The opinion
Filed 3/18/25 Faria v. Regents of the University of California CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
HENRIQUE LAVALLE DA SILVA
FARIA, A168048
Plaintiff and Appellant,
(Alameda County
v. Super. Ct. No. RG20056679)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
Plaintiff Henrique LaValle Da Silva Faria (Faria) appeals from the
trial court’s entry of judgment in favor of defendant The Regents of the
University of California (Regents) after the court sustained in part the
Regents’s demurrer without leave to amend and granted their Code of Civil
Procedure section 437c motion (the Section 437c motion). The Regents’s
victory on both motions, taken together, resolved all causes of action in
Faria’s Second Amended Complaint (SAC), resulting in dismissal of the
case.
In the SAC, Faria sued the Regents for, among other things, breach
of implied contract and negligence, the latter under different statutes in
two different causes of action. These causes of action are the subject of this
appeal. They relate to his allegations that the Regents failed in their
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duties to him, as a foreign student in the Master of Laws (LL.M.) program
at the University of California, Berkeley School of Law (Berkeley Law), to
guide and assist him in applying for and obtaining authorization from the
United States Citizen and Immigration Services (USCIS) to work for Ernst
& Young in New York. The trial court sustained the Regents’s demurrer to
Faria’s negligence causes of action, and having disposed of those claims,
granted the Regents’s Section 437c motion, finding that Faria’s implied
contract cause of action is unsustainable as a matter of law.
We will affirm the judgment as to Faria’s negligence causes of action
because the gravamen of these claims is rooted in negligent
misrepresentation, which bars them on government immunity grounds
under Government Code sections 818.8 and 822.2. We will reverse the
summary disposition of Faria’s breach of implied contract cause of action,
on two grounds: first, because the trial court erred in ruling that that
cause of action is barred by the statute of frauds, and second, because none
of the asserted alternative bases for affirmance offered by the Regents—
indefiniteness of the alleged contractual terms, failure to raise a triable
issue of fact on breach, and inconsistency with federal law—has any merit.
I. BACKGROUND
Faria filed a First Amended Complaint (FAC) against the Regents on
October 5, 2020. The Regents demurred to the FAC and moved to strike
portions of it. After granting the motion to strike and partially overruling
and partially sustaining the demurrer, the trial court granted leave to
amend. This led to the filing of the SAC on October 15, 2021, which in turn
prompted the Regents to file a demurrer and a Section 437c motion seeking
summary judgment or in the alternative summary adjudication. Those
motions generated the orders at issue in this appeal.
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A. Faria’s Second Amended Complaint
The narrative Faria sets forth in his SAC ends with agents of the
United States Immigration and Customs Enforcement service arresting
him in New York, handcuffing him, shackling him, and frog marching him
to a plane bound for Brazil. Faria alleges that this traumatic and
undignified deportation from the United States brought to an abrupt end
to a promising career as a freshly minted LL.M graduate of Berkeley Law.
How this sudden end to Faria’s budding career as a Wall Street tax lawyer
came about is the common denominator to each of the causes of action
alleged in the SAC.
The story unfolds chronologically as follows.
Faria had a successful nine-year career as a corporate, business, and
tax attorney in Brazil when he applied in 2016 to attend the LL.M.
program at the Regents’s prestigious law school, Berkeley Law, in order “to
strengthen his knowledge of international and comparative corporate and
business law.” He “accepted Berkeley Law’s admission offer in April 2017
for the 2017–2018 academic year and paid $1,000 as his admission
deposit.” He later paid more than $60,000 in tuition and fees.
Faria was an outstanding student at Berkeley Law. After
distinguishing himself in the LL.M program, he obtained a job with Ernst
& Young at its New York City headquarters as a Senior Advisor in its
International Tax Services Practice at an annual salary of $120,000, and
was eligible for additional, performance-based compensation. He was to
start in August 2018, soon after his graduation from the LL.M program in
May 2018. He leased an apartment in New York, purchased furniture,
furnishings, and appliances for it, and submitted forms necessary to take
the New York State bar examination.
3
In order to work at Ernst & Young, Faria, as a foreign national, was
required to apply to the USCIS via the University of California, Berkeley
(UC Berkeley) to participate in Optional Practical Training (OPT). In
order to participate in OPT, he needed the USCIS to issue him an
Employment Authorization Document (EAD).
The USCIS routinely issues EAD’s to students applying to
participate in OPT upon their graduation from an institution approved by
the Department of Homeland Security’s (DHS) Student and Exchange
Visitor Program (SEVP), such as UC Berkeley. As an SEVP-certified
institution, UC Berkeley was required to employ a Designated School
Official (DSO) to work on OPT and EAD matters, and the Regents were
required to certify that UC Berkeley and its DSO would comply with all
federal regulations relating to EAD applications.
The Regents advised Faria via an LL.M Student Handbook (Student
Handbook) that their Berkeley International Office (BIO), whose director
was the school’s principal DSO, was expert in navigating the OPT process
and that students such as Faria should follow the BIO’s instructions. It
further advised, “The BIO office is your primary point of contact for
questions regarding your visa status.”
The BIO, the DSO, and OPT-eligible students followed a step-by-step
process regarding OPT and EAD applications as outlined in Title 8 of the
Federal Code of Regulations. A graduating student could submit an EAD
application to the USCIS no more than 90 days before and no more than 60
days after graduation. A student began this process by completing an OPT
request form to the BIO.
The DSO ensured the student was OPT-eligible and aware of his or
her responsibilities for maintaining OPT status. Upon receiving an eligible
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student’s OPT request form, the DSO recommended the student for OPT
and requested an I-20 Certificate of Eligibility from the USCIS through the
Student and Exchange Visitor Information System (SEVIS), an online,
secured server maintained by the USCIS. Berkeley’s DSO was the only
one who knew the date of this submission to the USCIS. The date was
particularly important because the student had to file the EAD application
with the USCIS within 30 days of the date the DSO requested an I-20
Certificate of Eligibility from it.1
The step-by-step process the DSO was to follow, as outlined in
section 214.2 of Title 8 of the Federal Code of Regulations, was set forth in
a chapter of the SEVIS User Manual and the Department of Homeland
Security’s webpage. The SEVIS User Manual stated the DSO was required
to submit the OPT request through SEVIS and then review the
information; save the OPT request, which submitted it to the USCIS and
began the 30-day deadline period; print the OPT request; sign the I-20
form; and give the printed I-20 form to the student. The student was
required to sign the I-20 form and submit it to the USCIS with an EAD
application within the 30-day deadline period.
The Student Handbook provided to Faria contained a link to the BIO
website, which in turn contained detailed information about OPT. One of
the website’s links was to a tutorial that explained in detail each step
Faria was to take to obtain his EAD. The tutorial directed Faria to
complete the Regents-prepared OPT request form and submit it to the BIO.
1 It appears to be undisputed that Faria was only eligible for OPT
and an EAD if he completed the LL.M. program. Had he not completed the
program, as we understand the factual allegations here, he would not have
been entitled to rely on the primary document forming the basis of his
breach of contract allegations—the I-20 Certificate of Eligibility.
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The BIO would provide Faria with an I-20 Certificate of Eligibility within
three days of his submission. An instruction and illustration on a page of
the tutorial indicated the USCIS needed to receive a student’s OPT
application no later than 30 days from the date stated on the certificate in
a place indicated in the illustration.
According to Faria, the Regents breached certain duties to him by
erring in their handling of his OPT request and EAD application to the
USCIS, and by failing to monitor his EAD application. On April 4, 2018, in
accordance with the Regents’s tutorial, he submitted an OPT request form
to BIO with the required fee, thereby accepting the Regents’s contract
offer. The Regents prepared and delivered to him an I-20 Certificate of
Eligibility that set May 9, 2018 as the deadline for Faria to file his EAD
application with the USCIS. The date on the certificate was the date the
Regents had completed their submission to the USCIS. In actuality,
however, and unbeknownst to Faria, the Regents had “prematurely”
recommended his EAD to the USCIS via SEVIS on April 6, 2018, thereby
setting the actual deadline for the USCIS to receive Faria’s EAD
application as May 6, 2018.
Moreover, the Regents and their agents failed to monitor the status
of Faria’s EAD application pursuant to the Federal Code of Regulations,
the SEVIS User Manual, DHS’s Study in the States webpage, and section
1372 of Title 8 of the United States Code. The Regents had a “grace
period” of 60 days after May 9, 2018, when Faria completed his LL.M
studies, to discover and cure their error, which grace period ended on July
8, 2018. No one discovered that the status of Faria’s EAD application as
indicated on SEVIS as of May 7, 2018 had not been converted to “pending”
from “requested,” “signaling the EAD application had not timely arrived
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and therefore would be denied.” Nothing was done within the grace period
to correct the deadline error that was made.
Faria contacted a BIO staff person about the status of his EAD
application on June 8, 2018, and contacted another BIO staff person about
his application’s status on June 21, 2018, telling the latter his EAD
application had arrived at the USCIS on May 8, 2018. The staff person
could have determined his submission was untimely by checking the date
of the DSO’s recommendation to the Immigration Service.
The Regents did not notify Faria of any problem with the status of
his EAD application until July 24, 2018. Even after communications with
Faria, the Regents’s agents failed to check SEVIS for the date on which
they had recommended Faria for OPT to the USCIS. Faria further alleged
on information and belief that the Regents through their agents failed to
reopen SEVIS until approximately August 6, 2018, when they discovered
their error regarding Faria’s application deadline. They then submitted a
request for correction to the USCIS that was beyond the 60-day grace
period, “and Faria’s EAD application would therefore be denied.”
On August 20, 2018, the USCIS informed Faria that it had denied
his application. The Regents admitted making the error that caused this
denial in two letters the principal DSO sent, one to Ernst & Young and the
other to the USCIS, in late August 2018. The letters included statements
that “an erroneous slide on a powerpoint [sic] presentation providing
instructions to students on how to complete the [EAD] application
contributed to the denial of [Faria’s] application for OPT,” and that Faria
“was following the guidelines provided by the [BIO],” which included “a box
with instructions [that] erroneously pointed to the date on page two of the
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I-20 as the deadline date by which students needed to have their completed
application at [the USCIS].”
Faria alleged he “performed each and every term and covenant of the
agreement [with the Regents] he was obligated to perform.” Nonetheless,
due to the Regents’s breach of their agreement, he “lost the opportunity to
use his year with Ernst & Young as a steppingstone for a lateral move to
other international law and accounting firms or to . . . international
companies . . . ,” lost his opportunity to take the New York State bar
examination, accumulated more than $48,000 in debt to pay his living
expenses in Berkeley and his job-related expenses in New York City, and
was arrested and deported.
Faria wrote to the BIO on September 7, 2018, informing it that he
had exhausted all of his funds and would soon lose his job, and asking for
help. The principal DSO wrote back the next day that “we do not have the
resources to support you any further,” and advised Faria “to look at options
that are least costly to you including going home and waiting for any
further decisions.” The Regents also modified the documents on the
Berkeley Law and BIO websites regarding OPT, impliedly admitting their
liability to Faria by doing so.
Based on all or almost all of these factual allegations,2 Faria sought
damages from the Regents in six tort causes of action and a breach of
implied contract cause of action. Three are the subjects of this appeal:
2 Faria excluded from his second cause of action, for negligence under
Government Code section 815.2, and his fifth cause of action, for negligence
under Government Code section 815.6 (two of the three causes of action
that are the subject of this appeal), two paragraphs that referred to the
school’s tutorial illustration indicating that a student’s application had to
be received by the USCIS no later than 30 days from a date stated in a
particular place on the I-20 Certificate of Eligibility.
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Faria’s breach of implied contract cause of action (his first cause of action),
his negligence cause of action under Government Code section 815.2 (his
second), and his negligence cause of action under Government Code section
815.6 (his fifth).
The theory of damages underlying these three causes of action is that
the Regents’s various breaches of duty and failures to act were the
proximate cause of Faria’s arrest, deportation, loss of his job at Ernst &
Young, loss of future earnings, severe emotional distress, and of ongoing
and permanent damage to his reputation.
B. The Regents’s Demurrer to Faria’s Second Amended
Complaint
The Regents demurred to Faria’s SAC, which Faria opposed. On
April 22, 2022, the trial court overruled the demurrer to the breach of
implied contract cause of action, concluding it was an improper motion for
reconsideration of the court’s previous demurrer ruling regarding Faria’s
FAC. The court sustained without leave to amend the Regents’s demurrer
to all of the negligence causes of action.
Regarding the second cause of action, for negligence under
Government Code section 815.2, the court ruled Faria did not identify a
statutory “enactment” as a basis for imposing a mandatory duty on the
Regents’s agents. It concluded the subject regulations in Title 8 of the
Federal Code of Regulations and the SEVIS User Manual did not require
DSOs to set forth the correct date in the I-20 Certificate of Eligibility by
which an applicant had to file his EAD application with the USCIS,
thereby indicating “that Congress did not intend to create a right to sue
should the individuals make errors in discharging their obligations.”
The court sustained the demurrer to the third cause of action, for
negligent misrepresentation under Government Code section 815.2,
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concluding it was barred by government immunity under Government
Code sections 818.8 and 822.2.
For the same reasons the court sustained the demurrer to the second
and third causes of action, it sustained the Regents’s demurrer to the
fourth, through seventh causes of action, which included the fifth cause of
action for negligence under Government Code section 815.6, as well as
negligent misrepresentation and negligent interference causes of action.
The Regents also moved to strike the tort damages alleged in the
SAC. The court granted this motion.
C. The Regents’s Section 437c Motion
The Regents subsequently moved under Code of Civil Procedure
section 437c for summary judgment or in the alternative for summary
adjudication on Faria’s implied contract cause of action. It argued that
Faria cannot establish the Regents’s liability on an implied contract theory
because (1) the statute of frauds, Civil Code section 1624, renders the
implied contract unenforceable as an oral contract that cannot be
completed within a year and for which no exception to the statute applies,
(2) the terms of the contract are not reasonably certain; (3) Faria cannot
not establish a material breach; and (4) federal law preempts his claim.
Opposing in all respects, Faria took the position that the statute of
frauds does not apply to the parties’ implied contract because it consists of
multiple material terms that were not all agreed to until April 2018, within
a year of full performance of the agreement, and that, in any event, the
alleged contract can be performed within a year, which is an exception to
the statute of frauds. Faria also disputed a number of the material facts
on which the Regents’s Section 437c motion was based, and objected to
some of the evidence the Regents submitted in support of those facts. The
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Regents’s reply included objections to some of the evidence Faria submitted
to the court as well.
In a written order filed March 17, 2023, the trial court granted the
Regents’s Section 437c motion on the ground that the implied contract
cause of action is barred by the statute of frauds as an oral agreement that
cannot be performed within a year of its making in April 2017, when Faria
accepted the Regents’s enrollment offer. The court rejected Faria’s
contention that the agreement was amended multiple times, including as
late as April 2018, as contradicted by his SAC allegations and because he
did not submit any admissible evidence in support of this contention. It
also concluded that, as the Regents argued, Faria’s full performance
amounted to the mere payment of money and so did not qualify as an
exception to the statute of frauds.
The court chose not to address the other grounds the Regents
asserted in support of their Section 437c motion, but noted “that summary
judgment is rare in cases involving an alleged breach of contract because
triable issues of material fact are easy to find as to the terms of the
contract and its alleged breach.” The court also stated it would not rule on
Faria’s evidentiary objections because they were not material to the
disposition of the motion. It sustained five of the Regents’s 11 evidentiary
objections, all related to Faria’s allegations that the implied contract was
constituted of several material terms that were not agreed to in full until
April 2018.
The trial court entered judgment in favor of the Regents. Faria filed
a timely notice of appeal from this judgment.
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II. DISCUSSION
A. The Statute of Frauds Does Not Bar Faria’s Breach of Implied
Contract Cause of Action
Faria first argues the trial court erred for multiple reasons in
granting the Section 437c motion. We agree. Drawing all inferences for
Faria as the party opposing the motion, and exercising de novo review, we
conclude as a matter of law that the earliest point in time the contract
could have incepted is September 2017, when Faria arrived at school and
began paying tuition, and as a result, the contract could have been
performed within a year. The Regents’s statute of fraud defense is
therefore meritless.
1. Legal Standards
a. Standard of Review
Our review is de novo. As a panel of this appellate division recently
explained, “If, on a motion for summary judgment or summary
adjudication, ‘all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law,’ then a grant of the motion is warranted. ([Code Civ.
Proc., ]§ 437c, subd. (c); see Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826 (Aguilar).) ‘We independently review the parties’ papers
supporting and opposing the motion, using the same method of analysis as
the trial court. Essentially, we assume the role of the trial court and apply
the same rules and standards.’ ” (Apex Solutions, Inc. v. Falls Lake Ins.
Management Co., Inc. (2024) 100 Cal.App.5th 1249, 1256 (Apex).)
“Under Aguilar, the movant initially carries the burden of making a
prima facie showing in its favor. ([Code Civ. Proc., ] § 437c, subd. (p)(1);
see Aguilar, supra, 25 Cal.4th at p. 849.) ‘The prima facie showing by the
moving party must be such that it would, if uncontradicted, entitle the
12
moving party to judgment as a matter of law. [Citation.] That is, “a
moving defendant must present evidence which, if uncontradicted, would
constitute a preponderance of evidence [i.e., show it is more likely than not]
that an essential element of the plaintiff's case cannot be established.” ’
[Citation.] Upon an adequate prima facie showing by the movant, ‘the
opposing party is then subjected to a burden of production of his own to
make a prima facie showing of the existence of a triable issue of material
fact.’
“Upon a showing that ‘one or more elements of the cause of action
cannot be established,’ the burden shifts to the nonmovant to ‘demonstrate
a triable issue of material fact exists.’ [Citations.] ‘In evaluating whether
there is a triable issue of material fact, we must view the evidence in the
light most favorable to the opposing party by “strictly constru[ing]” the
evidence of the moving party, “liberally constru[ing]” that of the opposing
party, and resolving any doubts’ ” against summary disposition. (Apex,
supra, 100 Cal.App.5th at pp. 1256–1257.)
b. Statute of Frauds
“ ‘ “The primary purpose of the Statute [of Frauds] is evidentiary, to
require reliable evidence of the existence and terms of the contract and to
prevent enforcement through fraud or perjury of contracts never in fact
made.” ’ ” (Estate of Duke (2015) 61 Cal.4th 871, 889.) Consistent with this
purpose, Civil Code section 1624 provides in relevant part that a “contract
[is] invalid, unless [it], or some note or memorandum thereof, [is] in
writing and subscribed by the party to be charged or by the party’s agent,”
if the contract “by its terms is not to be performed within a year from the
making thereof.” (Civ. Code, § 1624, subd. (a)(1).)
“It is a well-established rule in California that an oral contract is
invalid under [Civil Code section 1624] only where by its very terms it
13
cannot be performed within a year from the date it is made.” (Plumlee v.
Poag (1984) 150 Cal.App.3d 541,548, original italics.) “ ‘In its actual
application . . . the courts have been perhaps even less friendly to this
provision [the “one year” section] than to the other provisions of the statute
[of frauds]. They have observed the exact words of this provision and have
interpreted them literally and very narrowly. . . . To fall within the words
of the provision, therefore, the agreement must be one of which it can truly
be said at the very moment it is made, “This agreement is not to be
performed within one year”; in general, the cases indicate that there must
not be the slightest possibility that it can be fully performed within one
year.’ ” (White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343, fn. 2,
original italics (White Lighting Co.); accord, Foley v. Interactive Data Corp.
(1988) 47 Cal.3d 654, 674, fn. 18 (Foley).)
2. The Statute of Frauds Did Not Bar Faria’s Breach of
Implied Contract Cause of Action Because the Contract
Could Be Performed Within a Year
The pivotal issue on which the statute of frauds analysis turns is the
date the implied contract alleged by Faria incepted. In the Regents’s
framing—which they contend rests on a legal position Faria took in
answering a contention interrogatory presented to him in discovery—the
contract was formed in April 2017, when Faria accepted a written offer of
admission into the LL.M. program and paid tuition. In Faria’s framing, on
the other hand, the formation of the contract is evidenced by a series of
transactions, starting in April 2017 with an offer of admission, Faria’s
acceptance, and Faria’s payment of a $1,000 deposit; and Faria’s receipt of
a Student Handbook in July 2017 detailing by cross-reference to other
published materials, including a tutorial describing the OPT application
process. According to Faria’s evidence, the tutorial he received in July
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2017 described in detail (i) how and when Faria was to submit an OPT
application to the BIO, (ii) how and when Faria’s OPT application would
then be submitted by the BIO to the USCIS, with BIO’s recommendation
that USCIS accept Faria for OPT, and (iii) how and when, once the USCIS
accepted the BIO’s recommendation—thereby producing an I-20 Certificate
of Eligibility—Faria would be able to complete the final step in the process,
the submission of his EAD application directly to the USCIS.
Under Faria’s view of the evidence, there was a narrow window of
time—30 days—for the timely completion of the elaborate, multistep EAD
application process, starting from the date the BIO made its submission to
USCIS, a date Faria claims was known only to the BIO. Because the BIO
was in sole control of its own steps in the process, Faria claims that, until
the BIO gave him the deadline for submission of his EAD application to the
USCIS, he did not know and was not in a position to know the status of the
process after initiating everything by submitting his OPT application to
BIO at the front end of the process. The gist of Faria’s theory, as we
understand the evidence, is that it was absolutely critical for the BIO to
give him the correct deadline to submit his EAD application to the USCIS,
but due to the BIO’s negligence, he was given an incorrect date, which
caused the rejection of the application and ultimately his deportation.
The Regents persuaded the trial court to accept its theory that Faria
is bound by the legal position he took in discovery about the inception date
of the alleged implied contract. Under this view of the evidence, the
Regents had no contractual obligation to assist Faria with his OPT and
EAD applications unless he completed the LL.M program in May 2018,
which was beyond the first year of the parties’ contract as Faria alleges it.
Critically, this theory turns on an argument that, to quote from the
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Regents’s Separate Statement of Undisputed Material Facts Number 10
(SSUMF No. 10), Faria “entered into an ‘implied’ contract with The
Regents when he accepted Berkeley Law’s admission offer in April 2017 for
the 2017-2018 academic year and paid tuition.” But that is not what the
interrogatory answer on which the Regents rely in SSUMF No. 10 actually
says. The answer in question says nothing about payment of tuition.
According to a declaration submitted in opposition to the Regents’s section
437c motion, Faria did not pay tuition until he arrived at school in
September 2017.3 He paid Fall Semester tuition of $30,066.50 on
September 7, 2017, and Spring Semester tuition of $28,750.50 in “early
January 2018.” All he paid in April was a small deposit of $1,000 to secure
his place in the 2017–2018 LL.M. program upon arrival at school, and for
which he was credited as part of his total tuition payment.
On the strength of this evidence, Faria disputed SSUMF No. 10 and
offered a legal theory based on his “series of transactions” framing of the
facts. He contended that there was an “original agreement” in April 2017
followed by three more agreements at later points in time, one of which
was when he enrolled in September 2017, another in January 2018 when
3 The court sustained various objections to statements in this
declaration. To the extent the declaration purported to offer legal
conclusions about the contract at issue, those rulings were of course proper
and appropriate. But the declaration makes statements on Faria’s
personal knowledge and attaches documentary receipts confirming that he
made various payments to the Regents on various dates (i.e., his initial
deposit in April 2017 and his tuition payments in September 2017 and
January 2018). This proffered evidence was plainly admissible. To the
extent the trial court sustained objections to Faria offering his own
percipient knowledge of facts and documentary proof supporting it on
matters that are directly relevant to the issue of contract formation, its
ruling was an abuse of discretion.
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he paid his Spring Semester tuition, and another was in April 2018 when
he submitted his OPT request to BIO along with a $100 check for the
processing of that request. He also contended that the terms of the
“original agreement” did not include the specific contractual commitments
that were breached, and that those terms did not become a part of the
contract until he paid tuition later.
The Regents do not dispute that, on Faria’s side of the contract that
was allegedly breached, the payment of tuition is the only contractual term
obligating Faria to perform. Indeed, by their own theory, as articulated in
their argument that Faria is bound by his interrogatory answer
“admitting” that the implied contract he alleged was formed in April 2017,
that is the only consideration on his side of the bargained for exchange. If
a mutually binding contract was formed at that point, it cannot have been
the contract that was allegedly breached here. Imagine, for example, that
in the summer of 2017 Faria had decided to attend some other LL.M.
program and opted not to show up for school at Berkeley in the Fall; under
those circumstances, the Regents would have no viable argument that
Faria owed them tuition, nor would Faria have had any viable argument
that the Regents breached some obligation to assist him with an EAD
application, since he never attended their LL.M. program.
Even if we accept the Regents’s core idea—that Faria himself has
taken the position he entered into some form of implied contract in April
2017—we cannot rule out the possibility that Faria might be able to
overcome the Regents’s statute of frauds defense at trial, whether under a
theory that the parties entered into more than one contract, or under some
other theory. It may be, for example, that legally what we have is an
option contract, with a firm offer having been made in April 2017 (secured
17
by a $1,000 deposit), followed by the acceptance of the offer and the
exchange of mutual consideration (Faria making his first tuition payment,
and Berkeley Law beginning to deliver educational services) in September
2017.
The bottom line is that, no matter how the facts are interpreted
legally, we believe the undisputed evidence in the record shows that, as a
matter of law, under both sides’ characterization of the implied contract at
issue, the inception date of the allegedly breached contract was September
2017 at the earliest, when Faria arrived at school and began paying his
tuition. At this procedural juncture in the case, it is too early to say
whether, at trial, Faria will be able to advance a viable legal theory of
contract that is consistent with the position he took in discovery. All we
hold here is that he should not be foreclosed from trying to do so based on a
factual mischaracterization of the position he took in discovery.4
B. The Regents’s Other Grounds for Affirming the Grant of Their
Section 437c Motion Lack Merit
The Regents argue in the alternative that we should also affirm the
judgment based on the other grounds they asserted in support of their
Section 437c motion, even though the trial court declined to rule on them.
We conclude these other grounds lack merit.
1. Faria Pleaded the Implied Contract’s Terms with
Reasonable Certainty
The Regents first argue Faria could not establish that the parties
agreed to any enforceable implied contract because he did not allege the
4 Faria asserts various other grounds in support of his argument that
the trial court erred in concluding the statute of frauds bars his implied
contract cause of action. We have no occasion to pass upon these other
asserted grounds of error.
18
terms of that contract with any reasonable certainty. The trial court
declined to address this issue, merely noting that summary disposition is
rare in breach of contract actions because triable issues of fact are
relatively easy to find, but rejected a version of it in overruling in part the
Regents’s demurrer to Faria’s First Amended Complaint. Although Faria
does not expressly address this “reasonable certainty” argument, he cites to
the trial court’s rejection of that argument in its demurrer ruling. We
conclude the Regents’s argument is unpersuasive.
“An implied contract is one, the existence and terms of which are
manifested by conduct.” (Civ. Code, § 1621.) “ ‘[C]ourts seek to enforce the
actual understanding of the parties to a contract, and in so doing may
inquire into the parties’ conduct to determine if it demonstrates an implied
contract.’ [Citation.] . . . Whether the parties’ conduct creates such implied
agreements is generally ‘a question of fact.’ [Citation.] Implied contractual
terms ‘ordinarily stand on equal footing with express terms.’ ” (Scott v.
Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 463.)
The law of contracts as applied to student-public university
relationships was neatly summarized by Division Two of this district in
Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809
(Kashmiri). “[T]he basic legal relationship” between a student and state
university “is contractual in nature.” (Id. at p. 823–824.) “ ‘ “[B]y the act of
matriculation, together with payment of required fees, a contract between
the student and the institution is created . . . .” ’ [Citations.] When a
student is attending a publicly financed institution of higher education, . . .
attendance is regarded as a benefit somewhat analogous to that of public
employment. [Citations.]
19
“Although courts have characterized the relationship between the
student and educational institution as contractual, they have recognized
that contract law should not be strictly applied. ‘ “The student-university
relationship is unique, and it should not be and can not be stuffed into one
doctrinal category. . . .” ’ [Citation.] Universities are entitled to some
leeway in modifying their programs from time to time to exercise their
educational responsibility properly. [Citation.] Additionally, courts have
often deferred to any challenge based in contract to universities’ academic
and disciplinary decisions.” (Kashmiri, supra, 156 Cal.App.4th at pp. 824–
825, fn. omitted.)
“Courts have applied contract law flexibly to actions involving
academic and disciplinary decisions by educational institutions because of
the lack of a satisfactory standard of care by which to evaluate these
decisions. [Citations.] Courts also have been reluctant to apply contract
law to general promises or expectations. [Citation.] Courts have, however,
not been hesitant to apply contract law when the educational institution
makes a specific promise to provide an educational service, such as a
failure to offer any classes or a failure to deliver a promised number of
hours of instruction. [Citations.] Courts have uniformly held that a
contract between an educational institution and a student ‘confers duties
upon both parties which cannot be arbitrarily disregarded and may be
judicially enforced.’ ” (Kashmiri, supra, 156 Cal.App.4th at p. 826, fn.
omitted.)
“In interpreting the contract, we must ‘give effect to the mutual
intention of the parties as it existed’ at the time the contract was
executed.” (Kashmiri, supra, 156 Cal.App.4th at p. 831, quoting Civ. Code,
§ 1636.) “[W]e look to the reasonable expectation of the parties at the time
20
of contract. To determine the reasonable expectation of the parties we
examine ‘the totality of the circumstances . . . . Agreement may be “ ‘shown
by the acts and conduct of the parties, interpreted in the light of the
subject matter and of the surrounding circumstances.’ ” ’ ” (Kashmiri, at p.
832.) “The reasonableness of the student’s expectation is measured by the
definiteness, specificity, or explicit nature of the representation at issue.”
(Ibid.)
The Regents rely heavily on the reference in Kashimiri and other
appellate opinions to the flexibility required in analyzing contracts
between students and universities regarding academic and disciplinary
matters. They contend the terms of such contracts “generally contain only
two implied conditions: the student will not be arbitrarily expelled, and
the student will submit himself to reasonable rules and regulations.” This
goes too far. As the Kashmiri court made clear, such flexibility is to be
employed primarily regarding academic and disciplinary matters, and
courts “have not been hesitant to apply contract law when the educational
institution makes a specific promise to provide an educational service.”
(Kashmiri, supra, 156 Cal.App.4th at p. 826.)
The Regents also argue that Faria’s breach of implied contract claim
fails for lack of reasonable certainty because he only “refers to various
unidentified documents, websites, and verbal information to support his
claim that an implied contract existed, but he acknowledges that it was the
‘totality of these communications’ that set the terms of the alleged implied
contract, and he does not identify a single specific promise made by anyone
on behalf of The Regents related to his specific claim that Berkeley Law
either (1) promised to provide him with accurate information (or any
information) related to his I-20 Certificate of Eligibility, or (2) promised
21
him anyone would ‘monitor’ SEVIS in the way he allegedly expected.
Rather, he seeks to have the terms of the alleged contract imposed in
retrospect.”
As Kashmiri also makes clear, there is nothing wrong with Faria
basing his breach of implied contract claim on the totality of
communications between the parties. (Kashmiri, supra, 156 Cal.App.4th
at p. 832.) And we disagree with the Regents’s contention that Faria’s
breach of implied contract allegations were too vague to support such a
claim. Faria alleged in the SAC that he attended the LL.M. program in
order to advance his already successful legal career, that he obtained a job
in the United States, and that the Regents included as part of their LL.M.
program the assistance of an office, the BIO, and its DSO, to assist eligible
foreign students in participating in OPT and obtaining the EAD from the
USCIS needed for them to work in the United States after their completion
of the LL.M. program. Further, Faria alleged that the Regents advised
him via the Student Handbook that the BIO, led by the principal DSO, was
expert in navigating the OPT/EAD process and that students such as Faria
should follow the BIO’s instructions. It further advised, “The BIO office is
your primary point of contact for questions regarding your visa status.”
Faria further alleged that the Regents agreed that the DSO, upon
receiving an eligible student’s OPT request form, recommended the
student for OPT and requested an I-20 Certificate of Eligibility from the
USCIS through SEVIS, the online, secured server maintained by the
USCIS. UC Berkeley’s DSO was the only one who knew the date of this
submission to the USCIS. The date was particularly important because
the student had to submit the EAD application to the USCIS within 30
22
days of the date the DSO requested an I-20 Certificate of Eligibility from
the USCIS.
Most importantly, the Student Handbook provided to Faria
contained a link to the BIO website, which in turn contained detailed
information about OPT. One of the website’s links was to a tutorial that
explained in detail each step Faria was to take to obtain his EAD. The
tutorial directed Faria to complete the Regents-prepared OPT request form
and submit it to the BIO. The BIO would provide Faria with an I-20
Certificate of Eligibility within three days of his submission. An
instruction and illustration on a page of the tutorial indicated the USCIS
needed to receive a student’s OPT application no later than 30 days from
the date stated on the certificate, as indicated in the illustration.
These allegations are sufficiently certain to raise triable issues of fact
as to whether the Regents had agreed to provide Faria with accurate
information on his I-20 Certificate of Eligibility. It is arguable that implied
in the agreement between the parties was that foreign students were to
rely entirely on the BIO, which would use its considerable expertise and
unique access to information, such as the deadline for a student’s
submission of an EAD application to the USCIS, to guide foreign students
through the OPT/EAD process. Most significantly, the totality of these
alleged communications indicates the Regents specifically instructed the
student, in a website the link for which was provided in the Student
Handbook, to submit his EAD application within 30 days of the date stated
by the Regents in the I-20 Certificate of Eligibility the Regents’s agents
filled out and gave to the student. Arguably, it was reasonable for Faria to
rely on this communication as a part of the parties’ implied contract. (See
Kashmiri, supra 156 Cal.App.4th at p. 832 [“Cases involving contractual
23
obligations of colleges based on language in catalogues or handbooks focus
on what is reasonable.”].) Moreover, Faria alleges that the school’s
principal DSO acknowledged in a letter to Ernst & Young that the school’s
error in its illustrated instructions to Faria contributed to the USCIS’s
denial of his application, arguably suggesting by this action that the
Regents recognized they had a contractual obligation to provide accurate
information.
Also, Faria’s allegations and the Regents’s contentions raise triable
issues of fact regarding whether the Regents’s assistance included
monitoring a student’s EAD application in order to aid an eligible student
to obtain an EAD. Faria’s allegations of the parties’ conduct suggests
this—he alleges that after he filed his EAD application he twice called the
BIO and spoke to staff people there about the status of his application.
Moreover, in their brief in support of their Section 437c motion, the
Regents asserted in arguing that Faria could not show a material breach
(an issue we will next discuss), “There is no dispute that BIO used SEVIS
to create the deadline conveyed to Mr. Faria in connection with his EAD
application and that BIO monitored SEVIS to track his application. . . .
Further, he contacted BIO multiple times to inquire about his SEVIS
records and each time BIO was able to access his information (which they
were maintaining through SEVIS) to provide him with the requested
information. BIO supported Mr. Faria in all his endeavors, both before
and after his application was declined.” The Regents repeat these
contentions on appeal.
In short, the Regents fail to establish that their arguments do
anything more than dispute issues of fact regarding the implied contract’s
24
terms, which is not a basis for summary disposition by Section 437c
motion.
2. There Are Triable Issues of Facts Regarding Whether the
Regents Materially Breached the Implied Contract
The Regents next argue that even if we conclude Faria alleges the
terms of an enforceable implied contract between the parties, he “has not
established a question of fact as to any material breach,” a separate and
independent ground for affirming the trial court’s judgment regarding
Faria’s breach of implied contract cause of action that the Regents raised
below and the trial court did not address. This argument is also
unpersuasive.
According to the Regents’s papers below, Faria’s interrogatory
responses indicate he in fact received the correct information from the BIO
about his EAD filing deadline. In their separate statement of undisputed
facts in support of their Section 437c motion, the Regents asserted that
Faria contended the I-20 Certificate of Eligibility he received “reflected two
different dates from which his thirty-day deadline to submit his application
was to be calculated” but that Faria “never questioned the discrepancy,”
and that in any event the Federal Code of Regulations indicates the
student is responsible ultimately to ensure that the information he receives
is correct and his application is submitted properly. These contentions
raise nothing more than issues of fact in light of Faria’s allegation,
unchallenged by the Regents, that the Student Handbook led him to an
online illustration of where a date was stated on the I-20 Certificate of
Eligibility by which he was to calculate his EAD filing deadline, and that
the date listed on the certificate he received was incorrect, all of which the
Regents’s principal DSO admitted in a letter to Ernst & Young.
25
The Regents further contend regarding their monitoring obligation
that, as we have already indicated, they tracked Faria’s application,
accessed his information upon his inquiries and provided him with the
requested information and, accordingly, “performed [their] obligations
related to the implied contract.” Once again, the Regents are merely
raising disputed issues of fact in light of Faria’s allegations that the
Regents failed to properly monitor his application by not discovering in
time for a correction to be made that, according to SEVIS, his application
was merely “requested” rather than “pending” before the USCIS.
The Regents also contend, regarding Faria’s negligence claims, that,
based on their reading of certain provisions of the Federal Code of
Regulations and the SEVIS manual attached to the SAC, Faria incorrectly
alleged they could correct their error with the USCIS during a post-EAD
application filing “grace period.” Faria contests this contention on various
legal and factual grounds. We need not resolve this dispute, however,
because the Regents do not contest Faria’s allegation in his breach of
implied contract cause of action that, “[h]ad the DSOs and the Regents
discovered” on May 7, 2018 that Faria’s application was not “pending”
before the USCIS, “as they were obligated to do, Faria would have had
numerous options to preserve his career path . . . .” Regardless of the
Regents’s ability to take corrective measures (and the Regents do not
contest Faria’s SAC allegation that they did just that, “submitt[ing] a
request for correction to [the USCIS] in relation to Faria’s EAD application
. . . beyond the 60-day grace period”), they do not dispute that Faria had
options if the BIO had monitored his application and told him it was filed
late.
26
For these reasons, the Regents’s “lack of a material breach”
argument also is not a basis for summary disposition by Section 437c
motion.
3. The Regents Fail To Establish Faria’s Breach of Implied
Contract Claim is Inconsistent with Federal Law
Finally, the Regents argue in a somewhat summary fashion that we
must affirm the trial court’s grant of their Section 437c motion because
Faria relies on certain provisions in the Federal Code of Regulations for
the terms of the parties’ implied contract, but these sections do not include
“any provisions related to a university’s obligation to correctly set the
deadline, or monitor a student’s status; rather, they require the university
to perform administrative actions related to the student’s application . . . .”
Accordingly, the Regents argue, “Mr. Faria’s theory of liability rewrites the
statutory requirements and shifts the responsibilities inconsistent with
actual federal law,” thereby “creating a conflict with federal law” and
interfering with the “federally regulated scheme related to immigration
control: the sole jurisdiction of the federal government.” They suggest
Faria should have sued “the entity that put him in his current position,”
the USCIS.
This argument is unpersuasive because it is based on the incorrect
premise that Faria bases the terms of the parties’ implied contract on the
Regents’s obligations under federal law. True, Faria cites federal
regulations in discussing what the Regents were required to do for
students such as him who sought OPT training and an EAD. But he also
alleges what the Regents agreed to do contractually on his behalf: to give
him the correct date for his EAD application deadline and to monitor his
application after he filed it with USCIS. He provides a basis for these
allegations on things that stand separate from any federal law, such as the
27
Student Handbook’s instructions and the parties’ conduct, e.g., that the
Regents stated in the Handbook that students such as Faria were to look
to the BIO office as a “primary point of contact for questions regarding
your visa status” and follow the BIO’s instructions; that the Student
Handbook indicated that the BIO would give him an I-20 Certificate of
Eligibility and where on it the BIO would state the date from which he was
to calculate his EAD application deadline; that the BIO gave him an I-20
Certificate of Eligibility with the wrong date stated on it; and that the
Regents through its agents failed in their contractual duty to monitor his
application after he filed it, including despite his inquiries into it.
The Regents fail to explain why, or cite any law establishing that,
federal law prohibited the parties from entering into such contractual
agreements. The case law they cite goes to general propositions regarding
conflicts between state and federal laws, the application of which to the
particular circumstances of this case they do not meaningfully explain (see
Altria Group, Inc. v. Good (2008) 555 U.S. 70, 76–77 [“[p]re-emptive intent
may . . . be inferred if the scope of the [federal] statute indicates that
Congress intended federal law to occupy the legislative field, or if there is
an actual conflict between state and federal law”]; Hines v. Davidowitz
(1941) 312 U.S. 52, 66–67 [“states cannot, inconsistently with the purpose
of Congress, conflict or interfere with, curtail or complement, the federal
law, or enforce additional or auxiliary regulations” where the federal
government “has enacted a complete scheme of regulation and has therein
provided a standard for the registration of aliens”]; Fiallo v. Bell (1977) 430
U.S. 787, 792 [Supreme Court “has repeatedly emphasized that ‘over no
conceivable subject is the legislative power of Congress more complete than
it is over’ the admission of aliens”]). And the fact remains that, regardless
28
of what the Regents’s obligations under federal law might or might not
have been, Faria’s breach of implied contract claim does not ultimately rest
on, as the Regents contend, his “effort to read into the federal regulations
specific requirements that do not explicitly exist and to incorporate them
into an alleged implied contract,” thereby “seek[ing] to modify federal
regulations regarding immigration in a way unsupported by federal
preemption law because he is requesting the Court to impose a contractual
remedy inconsistent with specific federal regulations on the same issues,
conflicting with the federal government’s exclusive control related to
immigration.” Faria seeks damages for the breach of contractual terms he
alleges were agreed to by the parties, not for a ruling that his
interpretation of federal regulation requirements should be incorporated
into the parties’ contract. Therefore, the Regents do not establish that
their federal law preemption claim is a basis for summary disposition.
C. The Negligence Causes of Action Are Barred by Government
Immunity
Faria next argues the trial court erred in sustaining the Regents’s
demurrer to his two negligence causes of action, including because they are
not barred by the government immunity provided in Government Code
sections 818.8 and 822.2. We conclude the trial court did not err because
his two negligence causes of action are barred by those provisions.
4. Legal Standards
“ ‘A demurrer is properly sustained when “[t]he pleading does not
state facts sufficient to constitute a cause of action.” (Code Civ. Proc., §
430.10, subd. (e).) On appeal, a resulting judgment of dismissal is
reviewed independently. [Citation.] “ ‘ “[W]e accept as true all the
material allegations of the complaint” ’ ” [citation], but do not “assume the
truth of contentions, deductions or conclusions of law” [citation].’
29
[Citation.] ‘We liberally construe the pleading with a view to substantial
justice between the parties.’ [Citations.] ‘If the complaint states a cause of
action under any theory, regardless of the title under which the factual
basis for relief is stated, that aspect of the complaint is good against a
demurrer.’ ” (Thomas v. Regents of University of California (2023) 97
Cal.App.5th 587, 605.)
“ ‘ “We affirm if any ground offered in support of the demurrer was
well taken but find error if the plaintiff has stated a cause of action under
any possible legal theory. [Citations.] We are not bound by the trial
court’s stated reasons, if any, supporting its ruling; we review the ruling,
not its rationale.” ’ ” (California Resources Production Corp. v. Antioch
City Council (2024) 107 Cal.App.5th 481, 489.)
Also, “ ‘[w]hen a demurrer is sustained without leave to amend, it is
the duty of the reviewing court to decide whether there is a reasonable
possibility that the defect can be cured by amendment. . . . It is the
plaintiff’s burden to show the reviewing court how the complaint can be
amended to state a cause of action.’ ” (Thomas v. Regents of University of
California, supra, 97 Cal.App.5th at p. 605.)
The parties agree that the Regents are a “public entity” as defined by
Government Code section 811.2.5 “Tort claims may not be maintained
against a public entity unless they are based on a statute or are required
by the federal or state constitutions. [Citation.] Except as otherwise
provided by statute, a public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a public
employee or other person, and any such liability established is subject to
5 Government Code section 811.2 provides in relevant part, “ ‘Public
entity’ includes . . . the Regents of the University of California . . . .”
30
the immunity provisions of the Government Code. (Gov. Code, § 815.) A
public entity is liable for injury proximately caused by an act or omission of
an employee of the public entity within the scope of his or her employment
if the act or omission would have given rise to a cause of action against the
employee, unless the employee is immune from liability. (Gov. Code, §
815.2.) Government Code section 818.8 provides public entities immunity
from liability for intentional or negligent misrepresentations of
government employees.” (Lundeen Coatings Corp. v. Department of Water
& Power (1991) 232 Cal.App.3d 816, 832 (Lundeen Coatings Corp.).)
Specifically, Government Code section 818.8 provides, “A public
entity is not liable for an injury caused by misrepresentation by an
employee of the public entity, whether or not such misrepresentation be
negligent or intentional.” Further, Government Code section 822.2
provides, “A public employee acting in the scope of his employment is not
liable for an injury caused by his misrepresentation, whether or not such
misrepresentation be negligent or intentional, unless he is guilty of actual
fraud, corruption or actual malice.” Also, subdivision (b) of Government
Code section 815.2, upon which Faria relies for one of his negligence
claims, provides, “Except as otherwise provided by statute, a public entity
is not liable for an injury resulting from an act or omission of an employee
of the public entity where the employee is immune from liability.”
“ ‘ “[M]isrepresentation” as a tort distinct from the general milieu of
negligent and intentional wrongs, applies to interferences with financial or
economic interest. The Legislature designed section 818.8 to exempt the
governmental entity from this type of liability.’ (Johnson v. State of
California (1968) 69 Cal.2d 782, 800.) Immunity will prevail . . . even if
the misinformation relied upon is gratuitously disseminated or the
31
allegations of the complaint are couched in terms of code violations by the
government entity and not misrepresentations per se. ([Tokeshi v. State of
California (1990) 217 Cal.App.3d 999,] 1006–1007.)” (Lundeen Coatings
Corp., supra, 232 Cal.App.3d at p. 832.)6
5. Proceedings Below
In his SAC, Faria alleged both “negligence” and “negligent
misrepresentation” causes of action. In his second cause of action, for
“negligence” under Government Code section 815.2,7 Faria incorporated by
reference almost all of the preceding allegations in the SAC (again,
excluding only the two paragraphs referring to the tutorial illustration of
how to calculate his EAD application deadline from a date stated in a
particular place on the I-20 Certificate of Eligibility) and alleged that the
6 The Lundeen court went on to cite numerous cases in which
immunity was found to bar misrepresentation claims, such as where “the
department of building and safety erroneously notified an individual that
her activities violated a zoning ordinance (Brown v. City of Los Angeles
(1968) 267 Cal.App.2d 849; the DMV negligently provided a certificate of
ownership for a stolen automobile (Hirsch v. Department of Motor Vehicles
(1974) 42 Cal.App.3d 252); a city misstated that dwellings on real property
were legally authorized (Grenell v. City of Hermosa Beach (1980) 103
Cal.App.3d 864); and city inspectors misrepresented and suppressed facts
concerning a structure’s compliance with the building code (Harshbarger v.
City of Colton (1988) 197 Cal.App.3d 1335).” (Lundeen Coatings Corp.,
supra, 232 Cal.App.3d at p. 833.)
7 Government Code section 815.2 states:
“(a) A public entity is liable for injury proximately caused by an act
or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have
given rise to a cause of action against that employee or his personal
representative.
“(b) Except as otherwise provided by statute, a public entity is not
liable for an injury resulting from an act or omission of an employee of the
public entity where the employee is immune from liability.”
32
Regents and their agents, such as the school’s DSOs, owed Faria “a duty to
prepare his I-20 and his EAD application with due care, monitor the status
of his EAD application on SEVIS, and warn him if it placed his F-1 status
in peril.” Further, Faria alleged, “[b]y prematurely recommending Faria’s
EAD on April 6, 2018 . . . to [the USCIS] and thereby setting a deadline of
May 6, 2018, for the filing of Faria’s EAD application with [the USCIS],
while setting a different date on Faria’s I-20 certificate of eligibility,
Defendant breached its duty of care pursuant to 8 C.F.R. § 214.2(f)(11), the
SEVIS User Manual, and DHS’s mandates on its Study in the States
webpage. According to Defendant’s own records, it did not complete Faria’s
I-20 Certificate of Eligibility until April 9, 2018, and therefore should have
set the deadline for Faria to file his EAD application with USCIS for May
9, 2018.” He further alleged that the Regents, through their agents, failed
to monitor his EAD application and thereby detect their error, and timely
correct it with the USCIS. Faria contended that the Regents’s negligence
was the proximate cause of the resulting harm suffered by him, including
his arrest, deportation, loss of his job, and loss of future earnings.
In his fifth cause of action, for negligence under Government Code
section 815.6,8 Faria again incorporated by reference almost all of the
preceding allegations in the SAC (with the exception of the two paragraphs
discussing the tutorial illustration) and alleged that the Regents, pursuant
to certain federal regulatory requirements, had mandatory duties to him
8 Government Code section 815.6 states, “Where a public entity is
under a mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the public entity is
liable for an injury of that kind proximately caused by its failure to
discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.”
33
that were essentially the same as those duties of care he alleged in his
second cause of action, for negligence under Government Code section
815.2, resulting in the same harm.
In support of their demurrer, the Regents argued, among other
things, that all of Faria’s negligence causes of action were barred by the
government immunity provided in Government Code sections 818.8 and
822.2. The trial court sustained the demurrer to Faria’s fifth cause of
action, for negligence under Government Code section 815.6, including
because it was barred by government immunity, but asserted a different
ground for sustaining the demurrer to his second cause of action, for
negligence under Government Code section 815.2.
6. Analysis
Faria argues his two negligence causes of action are not barred by
Government Code sections 818.8 and 822.2 because they do not rely on any
misrepresentations, and that any misrepresentations alleged in the SAC
are collateral to these claims. Relying almost entirely on federal case law
recognizing federal tort claims based on negligence in the performance of
operational tasks where misrepresentations are not considered to be the
gravamen of the claims (see Guild v. United States (9th Cir. 1982) 685 F.2d
324, 325–326; Mundy v. United States (9th Cir. 1993) 983 F.2d 950, 952;
Saraw Partnership v. United States (5th Cir. 1995) 67 F.3d 567, 570; Abbey
v. United States (9th Cir. 2024) 112 F.4th 1141, 1151; Estate of Rideout By
and Through Woods v. United States (S.D.Cal. 2023) 677 F.Supp.3d 1112,
1120–1121; Dalgic v. Misericordia Univ. (M.D.Pa., July 3, 2019, No. 3:16-
CV-0443) 2019 U.S.Dist. Lexis 111203, pp. *81–*83 [involving a school’s
negligence in the handling of a foreign student’s OPT application, but not
involving any negligent misrepresentations allegations]; Ilczyszyn v.
Southwest Airlines Co. (2022) 80 Cal.App.5th 577, 614), he asserts his two
34
negligence claims allege seven failures in the performance of operational
tasks by the Regents that violated their duty of care to him under section
815.2 and their mandatory duty to him under section 815.6. That is, he
contends, the Regents prematurely requested OPT for Faria in SEVIS on
April 6, 2018; posted April 9, 2018 as the day of recommendation, thereby
setting May 9, 2018 as Faria’s filing deadline; did not have a system to
monitor, detect, or report their error; failed to check SEVIS regarding
Faria’s application, even when he twice requested updates; did not check
SEVIS until long after deadlines had passed and the “grace period” had
ended; and notified Faria that it could provide no further assistance.
The Regents contend that Faria’s argument fails regardless of his
characterization of his two negligence causes of action because at the core
of these causes of action are allegations of negligent misrepresentation.
We agree. Faria’s allegations rest on, and the gravamen of these causes of
action is, his contention that the Regents misrepresented to him the date of
their submission regarding him to the USCIS, thereby causing him to miss
the deadline for his filing of his EAD application with the USCIS and
dooming the chances of his application being accepted.
This gravamen is indicated by the numerous allegations Faria made
and relied on in both of his negligence causes of action. Notably, for both
causes of action, Faria incorporated all of the preceding allegations in the
SAC “as though fully set forth” in these causes of action, with the exclusion
of two paragraphs referring to the school’s tutorial illustration. Therefore,
both causes of action include the allegations that: the Regents advised
Faria via the Student Handbook to follow the BIO’s instructions regarding
the OPT and EAD application; the DSO was the only person who knew the
date when the DSO submitted a student recommendation to the USCIS via
35
SEVIS; the DSO was required to prepare and give Faria the I-20
Certificate of Eligibility within three days after submitting the
recommendation to the USCIS; the Regents gave him an I-20 Certificate of
Eligibility stating May 9, 2018 as his deadline for filing his EAD
application with the USCIS when the actual deadline the Regents had
created by their recommendation submission was May 6, 2018, from which
Faria had 30 days for his application to be filed with the USCIS; and the
principal DSO acknowledged in letters to Ernst & Young and the USCIS
that the school’s erroneous instructions to students on how to complete the
EAD application, which instructions Faria had followed, “contributed to
the denial” of Faria’s application by the USCIS.
These allegations—which, again, are all incorporated by reference
into his two negligence causes of action as if they were set forth fully in
them—indicate those causes of action are firmly rooted in allegations of
negligent misrepresentation; the premise of both is that the Regents caused
harm to Faria by negligently representing to him the wrong deadline by
which he was required to file his EAD application with the USCIS. And
there are more allegations. That is, Faria alleged in his second cause of
action, for negligence under Government Code section 815.2, that the DSO
breached a duty of care to him by setting the wrong date on Faria’s I-20
Certificate of Eligibility for the filing of his EAD application with the
USCIS. Faria repeats this allegation in the latter negligence cause of
action, recasting it as a breach of a mandatory duty. The sum of these
allegations indicates negligent misrepresentation lies at the heart of both
negligence claims, however Faria has characterized them. As such they
are barred by the government immunity provided in Government Code
sections 818.8 and 822.2.
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Our conclusion that we are to be guided by this gravamen of Faria’s
causes of action is well-supported by case law. For example, in Brown v.
Compton Unified School Dist. (1998) 68 Cal.App.4th 114 (Brown), a case
the Regents heavily rely on, a college student sued his high school
counselor and the school district after he lost his college scholarship. (Id.
at p. 115.) The student alleged he had transferred to a district high school
with the express purpose of satisfying NCAA basketball eligibility
requirements and had followed certain advisements by the defendants that
led to his college basketball ineligibility. (Id. at p. 116.) Brown’s complaint
incorporated by reference a letter from Brown’s high school principal
acknowledging Brown’s failure was “ ‘completely the result of
misadvisement on the part of one of our school’s academic counselors’ ”
(ibid), an allegation strikingly similar to Faria’s recounting of his school’s
principal DSO acknowledging to Ernst and Young and the USCIS that
Faria was misled by the school’s erroneous instructions. The trial court in
Brown granted the defendants’ motion for judgment on the pleadings and
Brown appealed. (Ibid.)
The appellate court affirmed. (Brown, supra, 68 Cal.App.4th at p.
118.) On appeal, Brown combined his actions for negligence and breach of
contract, but the court concluded both sought redress for the same harm.
(Id. at p. 117.) The “critical allegation” was that Brown lost his scholarship
because of defendants’ misadvisements. (Ibid.) Assuming a duty owed to
Brown (an issue not relevant here), the court concluded the defendants
were immune from liability for misrepresentation under Government Code
sections 818.8 and 822.2. (Brown, at pp. 117–118.) Wrote the court,
“Brown pled, in essence, that [the counselor] negligently misrepresented
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that the science class in which she counselled him to enroll would meet
NCAA eligibility guidelines.” (Id. at p. 117.)
Similarly, in Lundeen Coatings Corp., supra, 232 Cal.App.3d 816,
relied on by the Brown court (Brown, supra, 68 Cal.App.4th at pp. 117–
118), the plaintiff filed suit for money due for construction services
rendered, and one of the defendants, the Department of Water & Power
(DWP), argued that, as a public entity, it was immune from the plaintiff’s
tort claims. (Lundeen Coatings Corp. at p. 822.) The plaintiff appealed
from the trial court’s sustaining of DWP’s demurrer without leave to
amend. (Ibid.)
The plaintiff argued its tort claims were not based on any
misrepresentation after the trial court had struck references to fraud and,
therefore, were not subject to government immunity. (Lundeen Coatings
Corp., supra, 232 Cal.App.3d at pp. 832–833.) The court rejected this
argument because “[c]learly the hybrid nature of the pleaded claims, which
used the terms ‘fraud’ or ‘fraudulently’ repeatedly until the trial court
struck those terms from the pleading, reveals that the very essence of
these claims was misrepresentation. Plaintiff cannot now represent that
those tort claims were based on conduct other than misrepresentation
simply because the trial court has excised that language from the
complaint.” (Id. at p. 833, original italics.)
These cases establish that, regardless of how Faria has characterized
his negligence causes of action, they are barred by government immunity
under Government Code sections 818.8 and 822.2. As we have discussed,
Faria argues his negligence causes of action must survive demurrer
because they include the allegations that the Regents’s agents failed in
performing their “operational tasks” that did not include
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misrepresentations. For example, he contends the Regents failed in their
duty to monitor his application during a post-EAD application submission
“grace period” and, as a result, did not discover their error, inform him of
it, and take timely steps to correct it. But this alleged additional
negligence extends from and is secondary to the Regents’s “original sin,”
their negligent misrepresentation to Faria about the EAD application
deadline, as no further action would have been necessary and no additional
alleged negligence would have occurred but for that negligent
misrepresentation. As a result, the “operational tasks” negligence Faria
alleges is neither the gravamen of the negligence causes of action nor
separable from the negligent misrepresentation. Negligent
misrepresentation is the gravamen, and it precludes reversal here.
To sum up, Faria’s creative pleading and argument cannot save his
two negligence causes of action because they are rooted in allegations of
negligent misrepresentation. Because the gravamen of Faria’s negligence
causes of action is negligent misrepresentation, the trial court did not err
in sustaining the Regents’s demurrer to those causes of action.9
III. DISPOSITION
The trial court’s order granting the Regents’s Section 437c motion
summarily adjudicating Faria’s implied contract cause of action is
reversed, and the order sustaining the Regents’ demurrer to the negligence
9 In light of our conclusion, we have no need to discuss the other
issues debated by the parties regarding whether the trial court’s demurrer
ruling should be affirmed or reversed.
We also note that Faria does not seek leave to amend his complaint
or argue that he can cure the defects we have discussed in Section II.C. by
such amendment, and we see no such possibility.
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causes of action is affirmed. The parties are to bear their own costs of
appeal.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
SIMONDS, J.*
* Judge of the Superior Court of California, County of Sonoma,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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