Naghash v. Board of Trustees CA3

Filed 7/29/16 Naghash v. Board of Trustees CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ASHLEY M. NAGHASH, C075207

Plaintiff and Appellant, (Super. Ct.

No. 34201100113923CUPOGDS)

v.

BOARD OF TRUSTEES et al.,

Defendants and Respondents.

Plaintiff, a student at defendant California State University, Sacramento (CSUS),

was allegedly raped by defendant Terry Richards, also a CSUS student, in a CSUS

dormitory. Plaintiff commenced this action to recover damages against, among others,

CSUS, the Board of Trustees of the California State University, the State of California,

the California State University, Alexander Gonzalez, then president of CSUS, and

Michael Speros (collectively, the University defendants).

Plaintiff appeals from a judgment of dismissal entered by the trial court upon

sustaining the University defendants’ demurrer to the second amended complaint without

leave to amend. Plaintiff asserts, among other things, that the trial court erred in

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concluding that her second amended complaint failed to state a cause of action in tort and

in contract insofar as asserted against the University defendants. We conclude that the

trial court correctly determined that none of the causes of action asserted against the

University defendants in the second amended complaint state a cause of action. We

further conclude that there is no reasonable possibility plaintiff could cure the defects by

further amendment.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Allegations in the Complaint

Plaintiff was a student attending CSUS. In or about August 2010, she entered into

a residency agreement with CSUS to live in the Draper Hall residence hall. However, on

or about November 22, 2010, plaintiff, by her attorney, sent a notice of termination of the

residency agreement. Plaintiff stated that, since she entered into the residency agreement,

there had been approximately five instances of sexual assault and rape in and around the

CSUS residence halls. By letter dated December 6, 2010, Speros, “director of Housing

and Residential Life at CSU[S],” rejected plaintiff’s notice of termination.

Days later, at approximately 10:30 p.m. on December 9, 2010, plaintiff went to the

dormitory room of defendant Ariel Campbell in American River Hall, and brought with

her a bottle of vodka. Campbell had several bottles of alcohol in her dorm room.

Plaintiff and Campbell began drinking alcoholic beverages. Campbell contacted

defendant Menard1 and asked him to bring lime to Campbell’s room, which he did.

Menard began drinking with plaintiff and Campbell. Defendant Win Chen subsequently

arrived at Campbell’s room. Menard and Chen invited plaintiff and Campbell to go to

their residence in American River Hall, which they shared with Richards, for drinks and

1 Plaintiff uses only the name “Menard” in referring to this defendant.

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dinner. Although plaintiff did not know Menard, Chen, or Richards, she and Campbell

agreed.

Upon arriving at the residence where Menard, Chen, and Richards resided as

roommates, Menard began giving shots to plaintiff and Campbell. As the evening

continued, Richards began pouring additional drinks for plaintiff, insisting that she drink

them. Richards continued providing drinks to plaintiff, even as she insisted that she did

not want any more. Plaintiff became highly intoxicated and unable to walk.

In the early morning hours of December 10, 2010, Campbell and Menard went

into Menard’s room, and Chen went into his room. At this time, according to plaintiff,

Richards grabbed her around the waist, walked her into his room, and began taking off

her clothes despite her protests. Richards then sexually assaulted and raped plaintiff.

After some time, Campbell came to Richards’s room, knocked on the door, and escorted

plaintiff back to Campbell’s room.

At approximately 10:30 a.m., plaintiff returned to her room in Draper Hall. On the

same day, she called campus security and filed a formal complaint. However, plaintiff

claimed that “Sac State’s security”2 delayed taking her to the hospital for a sexual assault

examination until the morning of December 11, 2010. Additionally, according to

plaintiff, Richards was notified of the complaint against him, and he fled to his mother’s

home in San Francisco. Thereafter, Sac State’s security conducted a phone interview

with Richards, during which he was coached by his mother. Also according to plaintiff,

Sac State’s security contaminated the scene of the assault in conducting its investigation.

Plaintiff claimed that, “[d]ue to [CSUS]’s failure to effectively process the evidence at

2 We understand plaintiff’s references to “Sac State’s security” in her complaint to mean

the Sacramento State Police Department (<http://www.csus.edu/aba/police/index.html>

[as of July 29, 2016]). (See Ed. Code, § 89560.) Nevertheless, we shall use the term

plaintiff used in her complaint.

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the crime scene and refrain from contaminating evidence and refusal to conduct an

effective and unbiased interview with witnesses, the Sacramento County District

Attorney’s Office refused to prosecute Defendants for their criminal acts.”

The 11 Causes of Action

Plaintiff commenced this action by complaint filed November 14, 2011, asserting

11 causes of action. She claimed that, as a result of Richards’s sexual assault, enabled by

the other defendants, she sustained bodily injuries and mental anguish.

In the first cause of action, to recover damages for breach of contract, breach of

the implied warranty of habitability, and breach of the implied warranty of good faith and

fair dealing, plaintiff asserted that CSUS breached its contract with her by, among other

things, failing to provide safe and secure housing, failing to prevent underage drinking on

campus, and failing to enforce its own policies and procedures.

In the second cause of action, to recover damages for sexual assault and battery,

plaintiff asserted that CSUS willfully “facilitated, assisted, and encouraged [d]efendants

to sexually assault and rape” her by refusing to enforce its own policies and procedures,

failing to provide adequate security, and taking action which prevented the prosecution of

criminal activities. Plaintiff maintained that CSUS deliberately and willfully conducted

investigations of criminal complaints in such a manner as to conceal evidence of crime so

as to reduce crime statistics and maintain its reputation within the community. She

further claimed that, since August 2010, there had been no fewer than seven sexual

assaults and rapes on the CSUS campus. However, during that time, no individual had

been charged or prosecuted.

In the third cause of action, to recover damages for willful creation of a dangerous

premises condition, premises liability, and negligence, plaintiff asserted that CSUS

breached its duties to her to provide safe and secure housing and to prevent Richards

from sexually assaulting and raping her.

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The fourth cause of action, to recover damages for negligence and willful refusal

and failure to enforce policies and procedures, essentially duplicated the factual

allegations set forth in prior causes of action.

In the fifth cause of action, plaintiff sought damages for intentional infliction of

emotional distress. Plaintiff reiterated her factual allegations, and asserted that

defendants’ conduct was intentional and outrageous, and that defendants acted with the

intent to harm her or with reckless disregard for her safety and well-being.

In the sixth cause of action, to recover damages for intentional misrepresentation

and concealment, plaintiff alleged that CSUS intentionally misrepresented the safety of

its facilities and concealed the fact that major crimes had occurred on campus. Plaintiff

claimed that her reliance on defendants’ misrepresentations was reasonable.

In the seventh cause of action, to recover damages for negligence and willful

refusal to provide adequate security, plaintiff alleged that CSUS had actual and

constructive notice that its security was inadequate, and that underage drinking was

occurring on campus despite its policies against such conduct. Plaintiff further alleged

that defendants acted with the intent to harm her or with reckless disregard for her safety.

In the eighth cause of action, to recover damages for negligence and facilitating

and encouraging sexual assault and rape, plaintiff alleged that CSUS facilitated, assisted,

and encouraged Richards to rape her by willfully refusing to enforce its own policies and

procedures, including encouraging underage drinking, and by failing to conduct a

competent investigation. Plaintiff again alleged that defendants acted willfully, or with

reckless disregard for her safety. She further alleged that defendants’ conduct was

outrageous, and that CSUS had actual and constructive knowledge of the inadequacy of

its security.

In the ninth (negligence, negligence per se, res ipsa loquitur), tenth (negligence

and willful refusal to properly investigate and prosecute), and eleventh (negligence and

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willful refusal to provide secure housing) causes of action, plaintiff largely duplicated her

prior factual allegations.

The University Defendants’ Demurrer

The University defendants demurred to the plaintiff’s complaint. The University

defendants asserted that the complaint failed to allege a legal duty they owed to plaintiff;

that the complaint failed to identify a statutory basis for public entity liability; that the

complaint failed to allege a viable claim for injury caused by a dangerous condition on

public property; that, pursuant to Government Code section 845,3 they were immune

from liability for failure to provide police protection services; that they were not

vicariously liable for the wrongdoing of students; that the complaint failed to state a

viable claim for breach of contract; and that, pursuant to Business and Professions Code

section 25602, they were immune from liability grounded on allegations of their failure to

prevent underage drinking on campus.

In their memorandum of points and authorities, the University defendants asserted

that well established case law provided that university officials do not guarantee the

safety of students, and do not owe a general duty to protect students from the criminal

wrongdoing of third parties. The University defendants noted that plaintiff did not allege

that they had any specific information suggesting that she was the target of any

particularized threat of harm. They also observed that plaintiff did not allege a physical

defect on public property, or that they breached a mandatory statutory duty. The

University defendants asserted that, because they owed plaintiff no general duty to

protect, all claims based upon the existence of such a duty were fatally defective.

With regard to the duty to warn, the University defendants argued that, generally,

a defendant will only have a duty to warn, or control the conduct of a third party, where

3 Undesignated statutory references are to the Government Code in effect at the time of

the proceedings.

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there is a special relationship between the defendant and the plaintiff, or between the

defendant and the third party. The University defendants noted that plaintiff alleged

neither that they had information about a particular potential assailant which they should

have disclosed to her, nor that they had knowledge of a specific threat by her assailant

against her. The University defendants asserted that plaintiff’s causes of action insofar as

asserted against them were barred under case law providing that neither a university nor

its employees may be vicariously liable for the torts of its students.

As for plaintiff’s breach of contract cause of action, the University defendants

asserted that case law rejected the premise that a college dormitory license agreement

created the type of dependent relationship which could support liability against them for

the acts of third parties. The University defendants further asserted that, inasmuch as the

gravamen of plaintiff’s allegations sounded in tort, she could not avoid the consequences

of the Government Claims Act and its immunity provisions by pleading her claims as a

breach of contract. The University defendants further asserted that the complaint failed

to satisfy the specificity requirement for a breach of contract cause of action. In this

regard, the University defendants noted that the complaint failed to set forth the particular

terms of the contract, and plaintiff failed to attach and incorporate by reference a copy

thereof.

Finally, as for plaintiff’s allegation that the University defendants permitted

consumption of alcohol on campus by underage students, citing Business and Professions

Code section 25602, subdivision (b), they asserted they could not be liable to plaintiff for

the injuries visited upon her by third parties.

Plaintiff’s Opposition to the Demurrer

Plaintiff asserted that, contrary to the University defendants’ contentions, they

owed her a duty of care. Plaintiff relied on the duty a public entity may owe to members

of the public to maintain premises in a safe condition and to maintain premises in a

condition that will not give rise to a foreseeable risk that criminal activity will harm

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others. Plaintiff also asserted that she stated causes of action for vicarious liability based

on the wrongful acts of Speros and Gonzalez, who, at all relevant times, were acting

within the scope of their employment.

Plaintiff asserted specifically that the University defendants owed her a duty to:

(1) warn her “that they have given sanctuary to sexual predators on campus”; (2) provide

safe housing; (3) allow her to terminate her residency agreement; (4) provide alternative

accommodations; (5) take reasonable steps to maintain and supervise residence halls so

as to prevent criminal acts of third parties; (6) prevent underage drinking on campus; and

(7) refrain from selling alcohol on campus. Plaintiff claimed that the University

defendants breached these duties to her. She further asserted that they knew or should

have known of the particular risk of harm posed, and that their relationship to her as a

CSUS student gave rise to a duty of care. She asserted that children of a certain age

cannot be expected to exercise the discretion and judgment associated with full maturity.

Plaintiff also asserted that she successfully pleaded with the requisite particularity every

fact necessary to demonstrate governmental liability, including the existence of a

statutory duty. Plaintiff further claimed that she had alleged a viable claim for injuries

caused by a dangerous condition on public property pursuant to section 835.

Plaintiff asserted that, unlike the cases on which the University defendants relied,

here, the University defendants placed plaintiff in a position of danger which contributed

to the harm she suffered. Plaintiff further asserted that the University defendants should

reasonably have anticipated that she would rely on them to protect her against that harm.

She claimed that the University defendants’ actions constituted willful and deliberate

malfeasance.

Plaintiff asserted that section 845, which provides that public entities and

employees will not be liable for failure to establish a police department or provide

sufficient police protection, did not shield the University defendants from liability.

Plaintiff claimed that she had not alleged failure to provide police protection or failure to

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provide sufficient police protection. Rather, the gravamen of her complaint was that the

University defendants furnished sanctuary to sexual predators and encouraged underage

drinking “to promote [and] facilitate a party atmosphere for these sexual predators to

prowl around the campus and rape female students on campus,” and that the University

defendants breached their contractual obligations to her under the residency agreement.

Finally, plaintiff asserted that, under Business and Professions Code section

25602.1, the University defendants could be subject to liability for furnishing alcohol on

campus.

The University Defendants’ Reply

In reply, the University defendants asserted that plaintiff failed to allege that they

were in possession of any information which would trigger a duty owed to plaintiff.

They asserted that, where the avoidance of harm requires a defendant to control the

conduct of a third party, or to warn of such conduct, liability may be imposed only if the

defendant has a special relationship with that third party or with the potential victim.

Here, according to the University defendants, plaintiff failed to allege facts supporting a

duty owed to warn plaintiff, or that they had a special relationship with a dangerous third

party.

The University defendants asserted that the law treats college students as adults,

and does not impose a duty of supervision on college officials. According to the

University defendants, well established case law rejected the precise sort of claims

asserted by plaintiff here.

With regard to plaintiff’s claim of a dangerous condition on property, the

University defendants emphasized that plaintiff did not allege any physical defect related

to her alleged injuries.

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The Trial Court’s Ruling on the First Demurrer

The trial court sustained the University defendants’ demurrer with leave to amend

on all causes of action pertaining to those defendants.4 The court noted, among other

things, that plaintiff failed to set forth the specific statutes pursuant to which she asserted

her tort claims as required under section 815. The court found the allegations of the

complaint strikingly similar to those in Tanja H. v. Regents of University of California

(1991) 228 Cal.App.3d 434 (Tanja H.), the case on which the University defendants

relied for the principle that a university is generally not liable for the consequences

resulting from the combination of college students and alcohol.

The court concluded that plaintiff failed to allege facts sufficient to support a

breach of contract cause of action. The court noted that the complaint did not allege the

specific terms of the contract, and did not allege facts demonstrating a breach of those

terms. According to the court, plaintiff failed to allege facts supporting the claim that the

University defendants did not provide her with safe and secure housing.

Amended Complaints and Successive Demurrers

Thereafter, plaintiff filed a first amended complaint. The University defendants

again demurred, and the trial court sustained the demurrer with leave to amend all but one

cause of action. Plaintiff filed a second amended complaint, amplifying her factual

allegations. The trial court again sustained the University defendants’ demurrer, with

leave to amend only as to the breach of contract cause of action.

Judgment

Thereafter, the trial court granted, as unopposed, the University defendants’

motion to dismiss the complaint due to plaintiff’s failure to timely file and serve a third

4 The court’s ruling did not involve the second cause of action, which asserted a claim

sounding in sexual assault and battery and was not asserted against the University

defendants.

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amended complaint. In a judgment dated September 25, 2013, the trial court ordered that

judgment of dismissal be entered in favor of the University defendants.

DISCUSSION

I. Generally Applicable Principles

A. Standards of Review

“In reviewing a demurrer order, we independently evaluate the challenged

pleading, construing it liberally, giving it a reasonable interpretation, reading it as a

whole, and viewing its parts in context. [Citation.] We treat the demurrer as admitting

all material facts properly pleaded, but we do not assume the truth of contentions,

deductions or conclusions of law. [Citation.] We determine de novo whether the factual

allegations of the challenged pleading are adequate to state a cause of action under any

legal theory.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 51 (Allen).)

The plaintiff bears the burden of demonstrating that the demurrer was sustained

erroneously. (Allen, supra, 234 Cal.App.4th at p. 52.) We will affirm the judgment if

proper on any grounds stated in the demurrer, whether or not the trial court acted on that

ground. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)

It is the responsibility of the appellant to support claims of error with meaningful

argument and citation to authority. (Allen, supra, 234 Cal.App.4th at p. 52; Cal. Rules of

Court, rule 8.204(a)(1)(B).) “When legal argument with citation to authority is not

furnished on a particular point, we may treat the point as forfeited and pass it without

consideration. [Citations.] In addition, citing cases without any discussion of their

application to the present case results in forfeiture. [Citations.] We are not required to

examine undeveloped claims or to supply arguments for the litigants.” (Allen, at p. 52.)

Where a demurrer to a complaint is sustained with leave to amend and the plaintiff

elects not to amend the complaint, the plaintiff may “test the validity of the order

sustaining the demurrer by filing an appeal from the ensuing judgment of dismissal.”

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(Allen, supra, 234 Cal.App.4th at p. 51.) If the trial court sustained the demurrer without

leave to amend, “we must decide whether there is a reasonable possibility the plaintiff

could cure the defect with an amendment. [Citation.] If we find that an amendment

could cure the defect, we conclude that the trial court abused its discretion and we

reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the

burden of proving that an amendment would cure the defect.” (Schifando v. City of Los

Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)

B. Public Entity Liability

“Under the California Tort Claims Act (Gov. Code, § 810 et seq.), ‘a public entity

is not liable for injury arising from an act or omission except as provided by statute.

(Gov. Code, § 815, subd. (a); [citation].)’ ” (Hoff v. Vacaville Unified School Dist.

(1998) 19 Cal.4th 925, 932 (Hoff), fn. omitted.) “The Legislative Committee Comment

to section 815 states: ‘This section abolishes all common law or judicially declared

forms of liability for public entities, except for such liability as may be required by the

state or federal constitution, e.g., inverse condemnation.’ ” (Miklosy v. Regents of

University of California (2008) 44 Cal.4th 876, 899.) Moreover, the California Supreme

Court’s own decisions “confirm that section 815 abolishes common law tort liability for

public entities.” (Ibid.) “Thus, in California, ‘all government tort liability must be based

on statute [citation].’ [Citation.] ‘ “In the absence of a constitutional requirement, public

entities may be held liable only if a statute . . . is found declaring them to be liable.” ’ ”

(Hoff, at p. 932.)

II. First Cause of Action – Breach of Contract, Implied Warranty of Habitability,

and Implied Covenant of Good Faith and Fair Dealing

Plaintiff asserts that, contrary to the trial court’s determination, the first cause of

action in the second amended complaint stated a cause of action to recover damages for

breach of contract, breach of the implied warranty of habitability, and breach of the

implied covenant of good faith and fair dealing. Plaintiff asserts that she set forth the

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relevant terms of the contract, and successfully alleged facts sufficient to withstand the

University defendants’ demurrer.

We conclude that the trial court properly sustained the University defendants’

demurrer as to the breach of contract cause of action as well as her causes of action for

breach of the implied warranty of habitability and breach of the warranty of good faith

and fair dealing.

A. Breach of Contract

“[T]he elements of a cause of action for breach of contract are (1) the existence of

the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s

breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821.) To prove breach, the plaintiff is required to prove

that the defendant failed to do something the contract required the defendant to do, or the

defendant did something that the contract prohibited the defendant from doing. (See

Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 553, fn. 3; CACI

No. 303.) Section 814 provides that “[n]othing in this part” regarding liability of public

entities and public employees “affects liability based on contract or the right to obtain

relief other than money or damages against a public entity or public employee.” (§ 814.)

In the second amended complaint, plaintiff alleged that she entered into a

residency agreement with the University defendants. According to plaintiff, pursuant to

this agreement, the University defendants promised that they would provide “ ‘a safe,

secured, and private . . . housing accommodations for [p]laintiff . . . during the academic

semesters . . . .’ ” Plaintiff relies on exhibit A to the second amended complaint as setting

forth the relevant terms of the agreement between the parties. This exhibit is not a signed

copy of the alleged residency agreement. In fact, it does not appear to be a copy of that

agreement at all. At the least, it is not a complete copy of that agreement. Annexing the

exhibit to the second amended complaint, plaintiff stated not that she was attaching a

copy of the agreement, but instead that the “[t]rue and correct terms and conditions of the

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Residency Agreement are attached as Exhibit A, and they are incorporated herein by

reference.” The trial court stated that this method of pleading was “highly irregular,” and

noted that the University defendants had raised concerns about the authenticity of the

exhibit through a motion for sanctions pursuant to Civil Procedure Code section 128.7.

Nevertheless, the court stated that, in reviewing the demurrer, it was compelled to accept

the provisions alleged by plaintiff as constituting the terms and conditions of the

residency agreement relevant to plaintiff’s claims.5 (See generally Beck v. American

Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1561 [ordinarily, a written

contract is sufficiently pleaded if it is set out in full or its terms alleged according to their

legal effect], disapproved on another ground in Epic Medical Management, LLC v.

Paquette (2015) 244 Cal.app.4th 504, 516.)

According to plaintiff’s second amended complaint, on the night of December 9,

2010, and the early morning hours of December 10, 2010, she was sexually assaulted and

raped in the American River Hall dormitory after becoming severely intoxicated while

drinking with a number of fellow students in that dormitory. Plaintiff alleged that the

University defendants failed to provide “ ‘a safe, secured, and private . . . housing

accommodations for [p]laintiff . . . during the academic semesters,” and, as a result, she

was raped.

Even accepting the material facts alleged as admitted for purposes of the

University defendants’ demurrer (Allen, supra, 234 Cal.App.4th at p. 51), we conclude

that these allegations fail to state a cause of action for breach of contract. The injuries

alleged by plaintiff were not the result of the University defendants’ breach of a promise

made to plaintiff in the residency agreement, but instead resulted from the criminal acts

5 Thus, the trial court overruled the University defendants’ demurrer to the extent it

asserted that the second amended complaint failed to adequately plead the terms and

conditions of the alleged residency agreement.

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of a third party. Moreover, none of plaintiff’s allegations relate to Draper Hall, the

housing accommodations the University defendants agreed to provide to plaintiff.

Plaintiff alleged that she left Draper Hall, went to a friend’s room in a different

dormitory, American River Hall, voluntarily drank alcoholic beverages, went to another

room in American River Hall where she drank more alcoholic beverages, and then she

was sexually assaulted. Plaintiff has not set forth factual allegations that the University

defendants breached their alleged contractual obligation to provide her with safe and

secure housing in Draper Hall, or any other contractual obligation.

Plaintiff further alleged that the University defendants breached the residency

agreement by failing to prevent underage drinking on campus, failing to enforce its

policies and procedures, failing to implement new policies and procedures to prevent

sexual assaults and rapes on campus, and failing to disclose material facts and crime

statistics. However, plaintiff failed to allege any contractual provisions pursuant to which

the University defendants agreed to perform these acts. Moreover, even accepting the

provisions in exhibit A to plaintiff’s second amended complaint as constituting the terms

of the residency agreement, no provision obligated the University defendants to perform

in this manner. Thus, in this regard too, plaintiff has failed to state a cause of action for

breach of contract.

We also note the case law on which the University defendants rely pertaining to

the breach of contract cause of action. “The breach of the license agreement by one

student imposes no contractual duty upon the Trustees in regard to another student.”

(Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 294 (Baldwin).) Thus, even had plaintiff

alleged provisions of the licensing agreement and that those provisions had been

breached by her attacker or other students, this would not give rise to a cause of action for

breach of contract against the University defendants.

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B. Breach of Implied Warranty of Habitability

The elements of a claim to recover damages based on a breach of the implied

warranty of habitability are: (1) the existence of a material defective condition affecting

the premises’ habitability, (2) notice to the landlord of the condition within a reasonable

time after the tenant’s discovery of the condition, (3) the landlord was given a reasonable

time to correct the deficiency, and (4) resulting damages. (Erlach v. Sierra Asset

Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297 (Erlach).)

“The implied warranty of habitability recognizes ‘the realities of the modern urban

landlord-tenant relationship’ and imposes upon the landlord the obligation to maintain

leased dwellings in a habitable condition throughout the term of the lease.” (Peterson v.

Superior Court (1995) 10 Cal.4th 1185, 1204.) “The implied warranty of habitability . . .

gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling

and corrected any defects disclosed by that inspection that would render the dwelling

uninhabitable. The tenant further reasonably can expect that the landlord will maintain

the property in a habitable condition by repairing promptly any conditions, of which the

landlord has actual or constructive notice, that arise during the tenancy and render the

dwelling uninhabitable. A tenant injured by a defect in the premises, therefore, may

bring a negligence action if the landlord breached its duty to exercise reasonable care.”

(Id. at pp. 1205-1206, fns. omitted.)

Plaintiff alleged in the second amended complaint only that the University

defendants “also breached the warranty of habitability . . . by its breach as alleged

herein.” Plaintiff’s allegation amounted to no more than mere conclusory contentions

and conclusions of law. (See generally Allen, supra, 234 Cal.App.4th at p. 51.) She did

not allege specific facts which would give rise to such a claim. Further, inasmuch as

plaintiff could assert a claim based on the implied warranty of habitability pursuant to her

residency agreement, such a claim necessarily would have to be asserted in connection

with her premises. Here, again, the alleged assault occurred in another dormitory

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altogether. Plaintiff has not alleged a material defective condition, or any condition,

affecting her premises’ habitability. (See generally Erlach, supra, 226 Cal.App.4th at

p. 1297.)

Accordingly, we conclude that plaintiff has failed to state a cause of action to

recover damages based on the implied warranty of habitability.

C. Breach of Covenant of Good Faith and Fair Dealing

“ ‘The law implies in every contract . . . a covenant of good faith and fair dealing.

“The implied promise requires each contracting party to refrain from doing anything to

injure the right of the other to receive the agreement’s benefits.” ’ [Citation.] But there

is no bad faith when a party does that which is explicitly allowed by an agreement, or

declines to renegotiate an agreement.” (Alameda County Flood Control & Water

Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163,

1203, fn. omitted.) “The covenant thus cannot ‘ “be endowed with an existence

independent of its contractual underpinnings.’ ” [Citation.] It cannot impose substantive

duties or limits on the contracting parties beyond those incorporated in the specific terms

of their agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350

(Guz).) Additionally, where the allegations relating to a claimed violation of the implied

covenant of good faith and fair dealing “do not go beyond the statement of a mere

contract breach and, relying on the same alleged acts, simply seek the same damages or

other relief already claimed in a companion contract cause of action, they may be

disregarded as superfluous as no additional claim is actually stated.” (Careau & Co. v.

Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 (Careau).)

In her second amended complaint, plaintiff alleged only that the University

defendants “also breached the . . . implied warranty of good faith and fair dealing by its

breach as alleged herein.”

As with the warranty of habitability claim, plaintiff’s allegation that the University

defendants violated the implied covenant of good faith and fair dealing consisted of no

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more than conclusory assertions and conclusions of law. (See generally Allen, supra, 234

Cal.App.4th at p. 51.) Moreover, we disregard as superfluous plaintiff’s allegations

pursuant to the implied covenant of good faith and fair dealing, as they are premised on

the same acts and seek the same damages as plaintiff’s breach of contract claim.

(Careau, supra, 222 Cal.App.3d at p. 1395.) Furthermore, as we have noted, the subject

of the residency agreement was plaintiff’s tenancy in Draper Hall. Plaintiff’s claims

relate to acts alleged to have occurred in a different dormitory, in rooms housing other

students. “[W]here an implied covenant [of good faith and fair dealing] claim alleges a

breach of obligations beyond the agreement’s actual terms, it is invalid.” (Guz, supra, 24

Cal.4th at p. 327.)

D. Conclusion – First Cause of Action

We conclude that the first cause of action in the second amended complaint failed

to state a cause of action to recover damages for breach of contract, breach of the implied

warranty of habitability, and breach of the implied covenant of good faith and fair

dealing.

III. The Remaining Causes of Action – Negligence-Based Claims

The third, fourth, seventh, eighth, ninth, tenth, and eleventh causes of action are all

grounded in negligence. As for applicable statutory grounds for public entity/public

employee liability which could authorize recovery on these causes of action, section

815.2 authorizes actions for injuries inflicted by public employees within the scope of

their employment, and section 830 et seq., addresses liability for a dangerous conditions

of public property.

We conclude that all negligence-based claims fail to state a cause of action.

A. Elements of Negligence

The elements of a negligence cause of action are: (1) the existence of a legal duty

of care, (2) breach of that duty, and (3) proximate cause resulting in injury. (Castellon v.

U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) With regard to the existence of a legal

18

duty of care, the California Supreme Court has stated: “[A] ‘defendant owes a duty of

care to all persons who are foreseeably endangered by his [or her] conduct, with respect

to all risks which make the conduct unreasonably dangerous.’ ” (Tarasoff v. Regents of

University of California (1976) 17 Cal.3d 425, 434-435 (Tarasoff).) However, in

Tarasoff, our high court further held that “when the avoidance of foreseeable harm

requires a defendant to control the conduct of another person, or to warn of such conduct,

the common law has traditionally imposed liability only if the defendant bears some

special relationship to the dangerous person or to the potential victim.” (Id. at p. 435.)

We now consider several cases which addressed the liability of state colleges and

universities to students for harm resulting from the conduct of third parties.

B. Baldwin, Crow, and Tanja H.

In Baldwin, supra, 123 Cal.App.3d 275, the plaintiff student was a passenger in a

vehicle engaged in a speed contest. (Id. at p. 279.) The driver of the vehicle was a fellow

student who had consumed “ ‘great amounts’ ” of alcohol. (Ibid.) The vehicle collided

with one or more other vehicles and overturned, and the plaintiff sustained severe injuries

as a result. (Ibid.) The plaintiff alleged that the defendants associated with the California

Polytechnic State University, San Luis Obispo, “were negligent in several particulars,

including a failure to perform a mandatory duty to enforce the provisions of the license

agreement [pursuant to which the students lived in the dormitories], and by so doing

‘caused to be furnished’ alcoholic beverages to persons under the age of 21 years and

aided the student defendants to consume alcohol on campus negligently and in

contravention of law which was enacted for the protection of the public from injuries and

that a duty of care existed because of the landlord-tenant relationship.” (Id. at pp. 279-

280.) In additional causes of action, the plaintiff asserted that the defendants negligently

failed to perform their duty to enforce the rules of student conduct; knowingly “ ‘created

an unsafe condition, to wit, a safe haven or enclave where large groups of minors could,

would and did gather and consume alcoholic beverages, to an excess, with complete

19

impunity from any laws or rules and regulations’ ”; and breached the license agreement.

(Id. at p. 280.)

On appeal after a sustained demurrer, the Court of Appeal for the Fifth Appellate

District observed that “[s]chools and their personnel owe a duty to students who are on

school grounds to supervise them and to enforce rules and regulations necessary for their

protection. Either a total lack of supervision or ineffective supervision may constitute a

lack of ordinary care. It is the task of supervisors to anticipate and curb behavior of

students who have not attained full maturity.” (Baldwin, supra, 123 Cal.App.3d at

p. 281.) However, citing Tarasoff, the Baldwin court further observed, “[w]hen the

avoidance of foreseeable harm requires a defendant to control the conduct of another

person, or to warn of such conduct, the common law as a general rule imposes liability

only if the defendant bears some special relationship to the dangerous person or potential

victim.” (Baldwin, at pp. 282-283, citing Tarasoff, supra, 17 Cal.3d at p. 435.) The

plaintiff in Baldwin asserted that she stood in a special relationship with the university

and its personnel based on the license agreement by which she and fellow students

occupied the dormitories. (Baldwin, at p. 284.) That agreement, among other things,

prohibited alcoholic beverages in the residence halls and the consumption of alcohol on

campus. (Id. at p. 285.)

In considering whether it was appropriate to find a duty of care to third persons,

the Baldwin court considered certain factors, set forth in Rowland v. Christian (1968) 69

Cal.2d 108 (Rowland). (Baldwin, supra, 123 Cal.App.3d at p. 286.) These factors

included “ ‘the degree of certainty that the plaintiff suffered injury, the closeness of the

connection between the defendant’s conduct and the injury suffered, the moral blame

attached to the defendant’s conduct, the policy of preventing future harm, the extent of

the burden to the defendant and consequences to the community of imposing a duty to

exercise care with resulting liability for breach, and the availability, cost, and prevalence

of insurance for the risk involved.’ ” (Ibid., quoting Rowland, at p. 113.)

20

The Baldwin court, applying the Rowland factors, found that they militated against

finding the existence of a duty of care. (Baldwin, supra, 123 Cal.App.3d at pp. 286-287.)

The court determined that the circumstances alleged by the plaintiff did not support a rule

establishing a duty of care on the part of the defendants, stating that, notwithstanding the

fact that the plaintiff’s injuries were certain and substantial, “there [was] a lack of a close

connection between the failure of the Trustees and dormitory advisors to control on-

campus drinking and the speed contest.” (Id. at pp. 286-287.)

In addressing the Rowland factor relating to the moral blameworthiness of the

defendants, the Baldwin court considered the role of colleges and universities relative to

their students. The court observed: “the authoritarian role of college administrators is

gone. Students have demanded rights which have given them a new status and abrogated

the role of in loco parentis of college administrators. ‘[¶] Our beginning point is a

recognition that the modern American college is not an insurer of the safety of its

students. Whatever may have been its responsibility in an earlier era, the authoritarian

role of today’s college administrations has been notably diluted in recent decades.

Trustees, administrators, and faculties have been required to yield to the expanding rights

and privileges of their students.’ ” (Baldwin, supra, 123 Cal.App.3d at p. 287, quoting

Bradshaw v. Rawlings (3d Cir. 1979) 612 F.2d 135, 138.) The court noted that the use of

alcohol by college students, while prevalent, “is not so unusual or heinous by

contemporary standards as to require special efforts by college administrators to stamp it

out,” and that, although the university reserved the right to take disciplinary action

against students for on-campus drinking, “this merely follows state law.” (Baldwin, at

p. 288, citing Bus. & Prof. Code, § 25608.) Again quoting Bradshaw, the court stated:

“ ‘A college regulation that essentially tracks a state law and prohibits conduct that to

students under twenty-one is already prohibited by state law does not, in our view,

indicate that the college voluntarily assumed a custodial relationship with its students so

as to [impose a duty of protection.]’ ” (Baldwin, at p. 288, quoting Bradshaw, at p. 141.)

21

The Baldwin court found that the university did not owe a duty of care to the plaintiff.

(Baldwin, at p. 291.)

Almost 10 years after Baldwin, this court decided Crow v. State of California

(1990) 222 Cal.App.3d 192 (Crow). In Crow, the plaintiff, a student at CSUS, was

assaulted by a fellow student at a keg party in, coincidentally, Draper Hall. (Id. at

p. 197.) On the plaintiff’s appeal from the judgment dismissing his complaint after the

trial court awarded the defendants summary judgment, this court affirmed. (Id. at

p. 196.) First, notwithstanding the plaintiff’s efforts to plead causes of action sounding in

breach of contract based on the residence agreement, this court opined, without deciding

the issue: “Given the relief sought in the complaint, we believe [the plaintiff] actually is

suing in tort, using the existence of the contract to provide the necessary duty elements.”

(Id. at p. 198.)

This court in Crow considered the potential liability of a defendant for the conduct

of third parties grounded on the existence of a special relationship. (Crow, supra, 222

Cal.App.3d at pp. 205-206.) In doing so, the Crow court discussed Peterson v. San

Francisco Community College Dist. (1984) 36 Cal.3d 799 (Peterson). In Peterson, the

California Supreme Court noted the distinction between a school’s owing a duty of care

to a high school student versus a college student. (Peterson, at p. 806, fn. 3.) Our high

court stated: “Dailey [v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 (Dailey)]

arose in the context of a secondary school where a 16-year-old was killed while engaging

in a ‘slap boxing match.’ We observed that children of that age ‘should not be expected

to exhibit that degree of discretion, judgment, and concern for the safety of themselves

and others which we associate with full maturity.’ [Citation.] The present case, by

contrast, does not implicate the duty to supervise the activities of students who are too

immature to exercise judgment for their personal safety. Rather, the issue here is the

22

extent of the [college]’s duty to provide safe premises.”6 (Peterson, at p. 806, fn. 3.) In

Crow, elaborating on this “distinction between young, immature schoolchildren in

grammar and high schools on the one hand and adult students in colleges and universities

on the other . . . ,” this court looked to Baldwin and concluded: “We agree with the

assessment of CSUS that it could ‘not have prevented this incident from taking place

except possibly by posting guards in each dorm room on a 24-hour, 365-day per year

basis.’ ” (Crow, at p. 209.) The distinction between younger students and students in

postsecondary school, the goals of postsecondary education, the burden of imposing the

duty advocated by the plaintiff, and the resulting consequences to society all militated

against the imposition of a legal duty on CSUS. (Ibid.)

Finally, in Tanja H., supra, 228 Cal.App.3d 434, the plaintiff was raped by several

fellow students in a university dorm room after a party where alcohol was served. (Id. at

pp. 435-436.) The Court of Appeal, First Appellate District, considered Baldwin and

Crow, and continued the discussion of postsecondary institutions’ duty to protect their

students. (Tanja H., at p. 438.) The Tanja H. court stated: “College students are

generally young adults who do not always have a mature understanding of their own

limitations or the dangers posed by alcohol and violence. However, the courts have not

been willing to require college administrators to reinstitute curfews, bed checks,

dormitory searches, hall monitors, chaperons, and the other concomitant measures which

would be necessary in order to suppress the use of intoxicants and protect students from

each other.” (Ibid.) The court continued: “[A] university in its residual role as the

6 Plaintiff here relies on Dailey for the proposition that younger individuals cannot be

expected to exhibit the degree of discretion, judgment, and concern for their safety and

that of others which is commonly associated with full maturity. However, as set forth

above, these considerations discussed in Dailey have been explicitly determined not to

apply, or not to apply with nearly the same force, to college and university students as

opposed to high school students. (Peterson, supra, 36 Cal.3d at p. 806, fn. 3; Crow,

supra, 222 Cal.App.3d at pp. 208-209.)

23

operator of a dormitory used as living quarters by students is more akin to an innkeeper,

who does not have a duty to search guests for contraband, separate them from each other,

or monitor their private social activities. [Citation.] As campuses have, thus, moved

away from their former role as semimonastic environments subject to intensive regulation

of student lives by college authorities, they have become microcosms of society; and

unfortunately, sexually degrading conduct or violence in general -- and violence against

women in particular -- are all too common within society at large. College administrators

have a moral duty to help educate students in this respect, but they do not have a legal

duty to respond in damages for student crimes.” (Ibid.) The Tanja H. court posed the

question: “Should a duty be imposed which would make colleges liable for damages

caused by third parties, unless colleges impose onerous conditions on the freedom and

privacy of resident students -- which restrictions are incompatible with a recognition that

students are now generally responsible for their own actions and welfare?” (Ibid.) In

affirming the judgment of dismissal following the sustaining of the respondents’

demurrer, the court concluded: “[T]he courts can establish the criminal and civil liability

of the perpetrators of crimes; but the courts with good reason have been unwilling to shift

moral and legal responsibility away from student perpetrators and onto the heads of

college administrators.” (Id. at p. 439.)

C. Duty of Care

Despite plaintiff’s insistence that Baldwin, Crow, and Tanja H. are not relevant,

we conclude that they are on point as to her negligence claims. Accordingly, we

conclude that the University defendants did not owe a duty of care to plaintiff to protect

her from the acts of third parties, to control third parties, or to warn her of third parties’

conduct. Plaintiff insists that her claim is not that the University defendants owed her

such a duty. However, plaintiff does expressly allege, for example, that the University

defendants owed her a duty “to prevent . . . Richards from sexually assaulting and raping”

her, as well as other similar allegations.

24

Plaintiff claims that the University defendants owed her various other duties,

including the duty to provide safe and secure housing, to enforce university policies and

procedures, to prevent underage drinking on campus, to implement procedures to prevent

sexual assaults and rapes on campus, and to disclose material facts and crime statistics.

As in Crow, plaintiff’s trial court opposition papers and her briefs on appeal are replete

with arguments which, at their core, are based on the University defendants’ alleged

“liability . . . for [their] negligent operation and supervision of the dormitories.” (Crow,

supra, 222 Cal.App.3d at pp. 206-207.) Plaintiff’s contentions also bear similarity to the

unsuccessful claims in Baldwin, wherein the plaintiff asserted that the defendants were

negligent for failing to perform their duty to enforce the rules of student conduct and for

knowingly creating an unsafe condition, specifically “ ‘a safe haven or enclave where

large groups of minors could, would and did gather and consume alcoholic beverages, to

an excess, with complete impunity from any laws or rules and regulations.’ ” (Baldwin,

supra, 123 Cal.App.3d at p. 280.)

We are not persuaded that the duties advanced by plaintiff are, in form or

substance, any different from those duties claimed and rejected in Baldwin, Crow, and

Tanja H. We conclude that, based on this line of cases, the University defendants did not

owe an applicable duty to plaintiff to protect her against third parties, and did not stand in

a special relationship with plaintiff so as to give rise to a duty to control or to warn her

against third parties. (Tanja H., supra, 228 Cal.App.3d at p. 444; Crow, supra, 222

Cal.App.3d at pp. 207-208; Baldwin, supra, 123 Cal.App.3d at pp. 286-287.) We note in

this regard that plaintiff has not alleged that the University defendants were aware of a

particularized threat posed by Richards, or a specific threat against plaintiff. As stated

above, “the courts with good reason have been unwilling to shift moral and legal

responsibility away from student perpetrators and onto the heads of college

administrators.” (Tanja H., at p. 439.) And we are unwilling to do so here. In the

absence of a duty of care, plaintiff cannot prevail on her negligence claims.

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D. Section 845

In her seventh cause of action, plaintiff seeks to recover damages for negligence

and “willful refusal to provide adequate security.” Her second amended complaint also

contains numerous allegations related to the failure to ensure a secure campus

environment. Section 845 provides in pertinent part: “Neither a public entity nor a

public employee is liable for failure to establish a police department or otherwise to

provide police protection service or, if police protection service is provided, for failure to

provide sufficient police protection service.” (§ 845.) Thus, insofar as the second

amended complaint seeks to recover damages for the University defendants’ failure to

provide sufficient police protection, in light of section 845, we conclude that it fails to

state a cause of action upon which relief may be granted.

E. Premises Liability

Language relevant to premises liability is pervasive throughout plaintiff’s second

amended complaint. In the third cause of action, plaintiff asserts that the University

defendants are liable for the existence of a dangerous and defective premises condition

existing at American River Hall. The elements of a cause of action for premises liability

are the same as those for negligence: duty, breach, causation, and damages. (Ortega v.

Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Plaintiff asserts that a secluded hallway in American River Hall created a “blind

spot,” facilitating the illicit smuggling of alcohol into the dormitory as well as the

transporting of plaintiff to the room where the sexual assault occurred. She complains

about the lack of video surveillance anywhere on the floor or the stairways. The fatal

flaw in this cause of action is that the condition of the hallway alleged by plaintiff has no

meaningful connection to her injuries.

The plaintiff in Crow also sought to recover damages based on a theory involving

a dangerous property condition at the dormitory. (Crow, supra, 222 Cal.App.3d at

p. 204.) Specifically, the plaintiff asserted that the CSUS dormitories “ ‘were in a

26

dangerous and defective condition in that the University, knowing that [the assailant] was

a danger to other students in the dormitories, failed to control him, failed to warn other

students about him, failed to enforce its own rules and failed to secure the dormitories

from intrusion by persons such as [the assailant] who were known to be a hazard to other

students. As a resident of the dormitory, plaintiff was entitled to that protection pursuant

to the landlord/tenant relationship as well as the unique relationship created by virtue of

his status as a student at [CSUS].’ ” (Ibid.) This court concluded that the trial court was

correct in determining that “ ‘[s]ection 835,’ ” which is the controlling statute for liability

for dangerous conditions on public property, “ ‘does not include an action where the

“dangerous condition” is a third party.’ ” (Crow, at p. 205.) The Crow court

acknowledged that liability may arise where a defect on property abets, or is causally

linked to, an act of a third party. (Ibid.) However, “when there is no causal link between

a dangerous condition and the injury, liability cannot be predicated upon the dangerous

condition of property statute.” (Ibid.) The court further noted that, notwithstanding the

fact that the plaintiff purported to base his theory of liability on the dangerous condition

on property statute, his arguments, like plaintiff’s here, actually appeared to be addressed

to CSUS’s alleged negligent operation and supervision of its dormitories. (Id. at pp. 206-

207.)

Later, in Tanja H., the plaintiff attempted to assert, among other things, a premises

liability claim based on the fact that there was a shattered light bulb on a landing in a

stairwell where part of the sexual assault occurred. (Tanja H., supra, 228 Cal.App.3d at

pp. 436, 439.) The Tanja H. court stated: “We can certainly agree respondents might be

liable if appellant had stumbled in a darkened stairway, or even if she had been assaulted

by someone lying in wait in the darkness. [Citation.] However, there was no meaningful

causal connection here between failing to more quickly fix a shattered light bulb and the

sexual assault which began in one dormitory room, continued on the landing, and

continued in two other rooms. No assailant was lurking in the dark; appellant’s attackers

27

were acquaintances she first encountered in their lighted rooms, where they overcame her

resistance. As a matter of law, respondents’ alleged failure to fix a light bulb on the stairs

was not the legal cause of the assault on appellant.” (Id. at p. 439.) The Tanja H. court

further stated: “In connection with her premises liability allegations as to the shattered

light bulb, appellant also contends that respondents violated express or implied promises

concerning the safety and security of the dormitory premises. However, again, it was not

the lack of safe illumination on the stairs, or the lack of security from outside intruders,

which caused appellant to be assaulted by acquaintances.” (Ibid.)

Here, plaintiff’s alleged injuries consisted of being sexually assaulted by Richards

in his dorm room. Plaintiff alleged that, after she became thoroughly intoxicated in the

living room, Richards stood her up “and walked [p]laintiff . . . to his room, while

[p]laintiff . . . was resting on him as she had difficulties to walk [sic] on her own due to

her severe intoxication.” Even accepting the material factual allegations of the second

amended complaint as true (Allen, supra, 234 Cal.App.4th at p. 51), the fact that there

were no surveillance cameras in the purportedly secluded hallway was not a proximate

cause of her injuries. Analogous to Crow and Tanja H., we conclude that, here, the

absence of a surveillance camera had no meaningful causal connection to Richards’s

alleged sexual assault of plaintiff in his dorm room. Plaintiff does not allege that she was

assaulted in the hallway, or that she drank to excess in the hallway. She does not allege

that Richards came upon her in the hallway. While she does allege that Richards walked

her from the living room to his bedroom via the hallway while she “rest[ed] on him,”

plaintiff advances no allegations from which we can possibly conclude that the absence

of a surveillance camera in the hallway had any meaningful causal connection to the

sexual assault that followed. Similarly, the mere fact that students may have transported

alcohol through this hallway has no meaningful causal connection to the sexual assault.

28

Moreover, as the University defendants observe, “[a] lack of human supervision

and protection is not a deficiency in the physical characteristics of public property.”

(Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1352.)

F. Conclusion - Negligence Based Causes of Action

Based on all of the foregoing, we conclude that the trial court correctly determined

that the third, fourth, seventh, eighth, ninth, tenth, and eleventh causes of action in

plaintiff’s second amended complaint, grounded in negligence, failed to state a cause of

action. Moreover, since the absence of a duty of care and the absence of a dangerous

condition on public property bearing a meaningful causal connection to plaintiff’s

injuries cannot be cured by further amendment, the trial court did not abuse its discretion

in sustaining the demurrer without leave to amend. (See generally Schifando, supra, 31

Cal.4th at p. 1081.)

IV. Nuisance

In connection with several of her claims premised on negligence, plaintiff relies on

Civil Code sections 3479, defining nuisance, and 3480, defining public nuisance.

The definition of nuisance includes, “[a]nything which is injurious to health,

including, but not limited to, the illegal sale of controlled substances, or is indecent or

offensive to the senses, or an obstruction to the free use of property, so as to interfere

with the comfortable enjoyment of life or property . . . .” (Civ. Code, § 3479.) “A public

nuisance is one which affects at the same time an entire community or neighborhood, or

any considerable number of persons, although the extent of the annoyance or damage

inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) The California

Supreme Court has expressly held that section 815 “does not bar nuisance actions against

public entities to the extent such actions are founded on section 3479 of the Civil Code or

other statutory provision that may be applicable.” (Nestle v. City of Santa Monica (1972)

6 Cal.3d 920, 937.)

29

Nevertheless, the second amended complaint fails to state a cause of action for

nuisance. “The elements ‘of a cause of action for public nuisance include the existence

of a duty and causation.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542

(Melton).) We have determined at length, ante, that the University defendants did not

owe an applicable duty to plaintiff here.

Moreover, “ ‘[w]here negligence and nuisance causes of action rely on the same

facts about lack of due care, the nuisance claim is a negligence claim.’ [Citation.] The

nuisance claim ‘stands or falls with the determination of the negligence cause of action’

in such cases.” (Melton, supra, 183 Cal.App.4th at p. 542.) Here, inasmuch as plaintiff

pleads a cause of action for public nuisance, her cause of action “has no independent

vitality, because it merely restates [her] negligence claims ‘using a different label.’ ” (Id.

at p. 543.)

Accordingly, we conclude that the second amended complaint fails to state a cause

of action to recover damages based on nuisance. Furthermore, we conclude that it is not

reasonably possible that plaintiff could cure the defect with an amendment.

V. Intentional Infliction of Emotional Distress

In the fifth cause of action, plaintiff asserted a claim for intentional infliction of

emotional distress.

“ ‘The elements of the tort of intentional infliction of emotional distress are: “ ‘(1)

extreme and outrageous conduct by the defendant with the intention of causing, or

reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s

suffering severe or extreme emotional distress; and (3) actual and proximate causation of

the emotional distress by the defendant’s outrageous conduct . . . .’ Conduct to be

outrageous must be so extreme as to exceed all bounds of that usually tolerated in a

civilized community.” [Citation.] The defendant must have engaged in “conduct

intended to inflict injury or engaged in with the realization that injury will result.” ’ ”

(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896.)

30

The case on which the University defendants rely is instructive. In Davidson v.

City of Westminster (1982) 32 Cal.3d 197 (Davidson), the plaintiff sought to recover

damages for, among other things, intentional infliction of emotional distress. (Id. at

p. 201.) The plaintiff was stabbed by an assailant in a laundromat while police had the

laundromat under surveillance following a rash of similar attacks, including one on the

prior evening. (Ibid.) At the time they were conducting surveillance, the police officers

knew the plaintiff was in the laundromat. (Ibid.) They observed a man on the premises

who closely resembled the attacker from the prior evening, and whom they eventually

identified as the likely perpetrator of that attack. (Ibid.) While the police officers

continued their surveillance of the laundromat, they watched as the suspect entered and

left several times. (Ibid.) They did not warn the plaintiff, and, eventually, she was

stabbed four times. (Ibid.) In affirming the judgment of dismissal following the trial

court’s order sustaining the defendants’ demurrer, the California Supreme Court observed

that the plaintiff failed to allege that the police officers acted or failed to act for the

purpose of causing injury to her. (Id. at p. 210.) Our high court further concluded that

the police officers’ conduct, as alleged by the plaintiff, did not rise to the level of

outrageousness deemed so extreme as to exceed all bounds of that which will be tolerated

in a civilized community. (Ibid.) While acknowledging that the conduct of the police

officers may not have constituted their “finest hour,” our high court concluded that the

failure of the police officers’ surveillance plan “was in no way due to any affirmative

misconduct on the part of the officers who participated in the stake-out. They started as

mere observers and the sum and substance of the criticism directed against them is that

they remained such far too long and were late in becoming active participants. Absent an

intent to injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that

gives rise to liability under the ‘intentional infliction of emotional distress’ tort.” (Ibid.)

Here, notwithstanding plaintiff’s protestations to the contrary, her allegations

essentially amount to a claim that the University defendants failed to prevent harm to her

31

and failed to protect her from third-party actions. At most, the University defendants’

conduct alleged by plaintiff consisted of inaction or willful failure to act. We conclude

that the conduct alleged by plaintiff here falls far short of that which will be deemed “ ‘so

extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ”

(Davidson, supra, 32 Cal.3d at p. 210, quoting Cervantez v. J. C. Penney Co. (1979) 24

Cal.3d 579, 593.)

Accordingly, we conclude that the trial court properly sustained the University

defendants’ demurrer with respect to plaintiff’s fifth cause of action sounding in

intentional infliction of emotional distress. Furthermore, we conclude that it is not

reasonably possible that plaintiff could cure the defects with further amendment.

VI. Intentional Misrepresentation and Concealment

Plaintiff’s sixth cause of action sounds in fraud, specifically intentional

misrepresentation and concealment.

A. Pleading with Particularity

As to both intentional misrepresentation and concealment, we conclude that

plaintiff’s allegations failed to satisfy California’s pleading requirements for causes of

action sounding in fraud. “In California, fraud must be pled specifically; general and

conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,

645 (Lazar).) “ ‘This particularity requirement necessitates pleading facts which “show

how, when, where, to whom, and by what means the representations were tendered.” ’ ”

(Ibid.)

In the sixth cause of action, plaintiff alleged: “Prior to entering into an agreement,

[CSUS] represented that it has a safe and secure campus for incoming student[s] to reside

on campus. [¶] [] Prior to entering into an agreement, [CSUS] falsely represented that

there was NO major crime taken place on campus and the Dangerous Conditions did

NOT exist. . . . [¶] [] Defendant, [CSUS] concealed the true facts about the past sexual

assault and Sac State’s security’s inability to conduct proper and competent investigation

32

to prosecute perpetrators.” Plaintiff further asserted: “Plaintiff . . . relied on [CSUS]’s

misrepresentation and concealment. Plaintiff[’s] . . . reliance was reasonable.” Plaintiff

alleged that, as “a proximate result of sexual assault and battery, [p]laintiff has suffered

damages . . . .”

Plaintiff has not pleaded facts asserting how, when, where, by whom, and by what

means the alleged representations were made or true facts were concealed. Accordingly,

plaintiff has failed to satisfy California’s requirement that causes of action sounding in

fraud be pleaded with particularity. (See generally Lazar, supra, 12 Cal.4th at p. 645.)

B. Intentional Misrepresentation

“The elements of intentional misrepresentation, or actual fraud, are: ‘(1)

misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of

falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance;

and (5) resulting damage.’ ” (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th

1468, 1474.)

Plaintiff’s second amended complaint fails to adequately allege that she justifiably

relied on any misrepresentation made by the University defendants. She does assert the

legal conclusion that she justifiably relied on their alleged representations that there had

been no major crimes on campus, and that CSUS had a safe and secure campus. Yet she

also alleges, with greater particularity, that, “[o]n or about November 22, 2010, with

serious concerns about her safety and security at [CSUS], [p]laintiff . . . through her

attorney of record, prepared and forwarded ‘Notice of termination of Residency

Agreement,’ due to lack of security, giving sanctuary to sexual predators, contemning

and/or removing evidence related to criminal activities so as to prevent, investigation,

arrest and conviction of any criminal activities on campus, and [CSUS]’s refusal to

enforce its own policies and procedures.” According to plaintiff, on or about

December 6, 2010, mere days before the attack, the University defendants rejected

plaintiff’s demand to terminate her residency agreement.

33

Plaintiff’s specific factual allegations that she demanded to be released from the

residence agreement in November 2010 because of grave concerns about inadequate

security and sexual predators on campus negates her conclusory assertion that, as of

December 9 and 10, 2010, she justifiably relied on alleged misrepresentations that the

campus was safe and secure, and that no major crimes had occurred on campus. (See

generally Allen, supra, 234 Cal.App.4th at p. 51 [we treat the demurrer as admitting all

material facts properly pleaded].) In the absence of the justifiable reliance element,

plaintiff failed to state a cause of action based on intentional misrepresentation. (See

Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 [the

absence of any one of the required elements of an action in fraud or deceit will preclude

recovery].)

Moreover, under the circumstances of this case, in light of the absence of

justifiable reliance, plaintiff cannot establish the fifth element set forth above, that she

sustained damages as a result of the University defendants’ alleged misrepresentation.

Accordingly, we conclude that plaintiff’s second amended complaint failed to

state a cause of action for intentional misrepresentation.

C. Concealment

“ ‘[T]he elements of an action for fraud and deceit based on concealment are: (1)

the defendant must have concealed or suppressed a material fact, (2) the defendant must

have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have

intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4)

the plaintiff must have been unaware of the fact and would not have acted as he did if he

had known of the concealed or suppressed fact, and (5) as a result of the concealment or

suppression of the fact, the plaintiff must have sustained damage.’ ” (Lovejoy v. AT&T

Corp. (2004) 119 Cal.App.4th 151, 157-158.)

Plaintiff’s claim for concealment fails to state a cause of action for the same

reason as her claim for intentional misrepresentation. Despite the alleged concealment of

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facts related to the safety of the CSUS campus, crimes occurring thereon, and

occurrences of past sexual assault on campus, at some point prior to Richards’s attack,

plaintiff learned of alleged prior sexual assaults and demanded to be released from the

residence agreement. Based on plaintiff’s own factual allegations, she cannot allege that

she was unaware of these facts and that she would not have acted as she did if she had

known of the concealed facts. Similarly, since she possessed this knowledge well before

Richards’s alleged attack, she cannot claim that, as a result of the University defendants’

concealment, she sustained damages.

Accordingly, we conclude that plaintiff’s second amended complaint failed to

state a cause of action for concealment.

D. Conclusion - Intentional Misrepresentation and Concealment

Based on the foregoing, we conclude that plaintiff failed to state a cause of action

sounding in fraud, specifically premised on intentional misrepresentation and

concealment. Additionally, the defects in the sixth cause of action could not be cured by

further amendment, and, accordingly, the trial court did not abuse its discretion in

sustaining the demurrer without leave to amend.

VII. Additional Statutory Grounds for Liability

As previously stated, “[u]nder the California Tort Claims Act (Gov. Code, § 810 et

seq.), ‘a public entity is not liable for injury arising from an act or omission except as

provided by statute. (Gov. Code, § 815, subd. (a); [citation].)’ ” (Hoff, supra, 19 Cal.4th

at p. 932, fn. omitted.) We have discussed liability premised on sections 814, 815.2, and

830 et seq., and Civil Code sections 3479 and 3480. Plaintiff sets forth several additional

statutory bases for liability in the second amended complaint.

Section 815.4 provides that a “public entity is liable for injury proximately caused

by a tortious act or omission of an independent contractor of the public entity to the same

extent that the public entity would be subject to such liability if it were a private

person. . . .” (§ 815.4.) This section has no relevance to the allegations in plaintiff’s

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second amended complaint, as she makes no allegations concerning any independent

contractor.

Section 815.6 provides that, “[w]here 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.” (§ 815.6.) “ ‘ “[Section] 815.6 contains a

three-pronged test for determining whether liability may be imposed on a public entity:

(1) an enactment must impose a mandatory, not discretionary, duty . . . ; (2) the

enactment must intend to protect against the kind of risk of injury suffered by the party

asserting section 815.6 as a basis for liability . . . ; and (3) breach of the mandatory duty

must be a proximate cause of the injury suffered.” [Citation.] Whether an enactment is

intended to impose a mandatory duty is a question of law for the court.’ ” (County of Los

Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-639, disapproved on another

ground in Martinez v. County of Sonoma (N.D.Cal. Sept. 12, 2015, No. 15-cv-10953-

JST) 2015 U.S. Dist. LEXIS 122427, *36-37.) Plaintiff does not specifically identify any

mandatory duty imposed by an enactment.

To the extent that plaintiff relies on Civil Code section 1572, that section merely

defines five acts which constitute actual fraud, and imposes no mandatory duty on public

entities. Similarly, Civil Code section 1710, which plaintiff also cites, merely defines

deceit, and imposes no mandatory duty on public entities. Civil Code section 1709, also

cited by plaintiff, provides that “[o]ne who willfully deceives another with intent to

induce him to alter his position to his injury or risk, is liable for any damage which he

thereby suffers,” and likewise imposes no mandatory duty on public entities.

As the University defendants point out, the California Supreme Court has

expressly held that Civil Code section 1714 (“Responsibility for willful acts or

negligence; Proximate cause of injuries resulting from furnishing alcohol to intoxicated

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person; Liability of social hosts; Provision of alcoholic beverages to persons under 21

years of age”), also cited by plaintiff, may not alone serve as the basis for public entity

liability. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183

[“direct tort liability of public entities must be based on a specific statute declaring them

to be liable, or at least creating some specific duty of care, and not on the general tort

provisions of Civil Code section 1714”].)

Plaintiff also cites Civil Code section 3294, which addresses exemplary damages.

However, in addition to the fact that that section does not impose a mandatory duty on

public entities, section 818 specifically provides: “Notwithstanding any other provision

of law, a public entity is not liable for damages awarded under Section 3294 of the Civil

Code or other damages imposed primarily for the sake of example and by way of

punishing the defendant.”

Finally, plaintiff asserts that, while the University defendants claim they are

immune from liability under Business and Professions Code section 25602,

subdivision (b), addressing civil liability for the furnishing of alcoholic beverages to an

intoxicated person, they fall under the exception to immunity set forth in Business and

Professions Code section 25602.1. That section provides: “Notwithstanding

subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any

person who has suffered injury or death against any person licensed, or required to be

licensed, pursuant to Section 23300, or any person authorized by the federal government

to sell alcoholic beverages on a military base or other federal enclave, who sells,

furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage, and

any other person who sells, or causes to be sold, any alcoholic beverage, to any obviously

intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the

proximate cause of the personal injury or death sustained by that person.”

This section, however, does not impose a mandatory duty on public entities.

Furthermore, there are no allegations in plaintiff’s second amended complaint suggesting

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that the University defendants sold or caused to be sold any alcoholic beverages to

anyone, let alone sold them to an obviously intoxicated minor. To the extent that the

second amended complaint can be deemed to allege that the University defendants, by

failing to curtail drinking on campus, come within the scope of Business and Professions

Code section 25602.1, we disagree. Business and Professions Code “[s]ection 25602.1 is

a narrow exception to the Legislature’s enactment of what our Supreme Court has termed

‘sweeping civil immunity’ from liability for injuries to third persons resulting from the

furnishing of alcohol to another. [Citations.] As the sole exception to statutory

immunity, section 25602.1 must be strictly construed to effect the Legislature’s intent.”

(Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1281.)

Interpreting the phrase “causes to be sold” in Business and Professions Code section

25602.1, this court held in Hernandez that the ordinary use of this language, “and the fact

that section 25602.1 articulates no duty to act affirmatively to prevent others, over whom

one has no control, from selling alcohol to an obviously intoxicated minor, compel us to

construe the statute to require malfeasance, not acquiescence; mere inaction is not

sufficient.” (Hernandez, at p. 1282.) “[T]he phrase ‘causes to be sold’ requires an

affirmative act directly related to sale of alcohol, which necessarily brings about the

resultant action to which the statute is directed, i.e., the sale of alcohol to an obviously

intoxicated minor. For example, one who, having control over the alcohol, directs or

explicitly authorizes another to sell it to a minor who is clearly drunk falls within the

statutory language. On the other hand, merely providing a room where alcoholic

beverages will be sold by others is not sufficient to satisfy section 25602.1’s phrase,

‘causes [alcohol] to be sold.’ ” (Ibid.)

Here, plaintiff’s factual allegations concerning the provision of alcohol, inasmuch

as they can be attributed to the University defendants, allege, at most, acquiescence or

inaction rather than malfeasance. On a related note, in Baldwin, while the court did not

directly address Business and Professions Code section 25602.1, it did discuss the

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“obvious distinction” between giving or furnishing alcohol and the failure to stop a

drinking party. (Baldwin, supra, 123 Cal.App.3d at p. 289.)

Accordingly, even assuming Business and Professions Code section 25602.1 could

serve as a statutory predicate for liability by a public entity, the University defendants’

conduct as alleged by plaintiff does not fall within the scope of that section.

VIII. Title IX

Plaintiff asserts that she has a cause of action under Title IX of the Education

Amendments of 1972 (20 U.S.C. § 1681 et seq. (Title IX))7 and related enactments.

However, according to plaintiff, the trial court’s threat of sanctions prevented her from

amending her complaint to allege such a cause of action. We decline to address this

contention because plaintiff has forfeited it.8

In her opening brief, plaintiff asserts, for the first time in this case and in

conclusory fashion, that her second amended complaint contains facts which demonstrate

that she has a cause of action pursuant to Title IX. However, she does not furnish any

analysis or argument as to how the facts set forth in the second amended complaint would

support such a cause of action, and cites no authority to support her position. California

Rules of Court, rule 8.204(a)(1)(B), requires that all briefs must support each point “by

argument and, if possible, by citation of authority.” Thus, plaintiff has forfeited this

contention. (Allen, supra, 234 Cal.App.4th at p. 52 [when legal argument with citation to

authority is not furnished on a particular point, we may treat the point as forfeited and

7 Plaintiff cites Title IX of the Civil Rights Act of 1964. It is clear, however, that she is

relying upon Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681 provides

that, with limited exceptions, no person shall be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any education program or activity

receiving federal financial assistance on the basis of sex.

8 Plaintiff has requested that we take judicial notice of certain documents related to her

claim that she has a cause of action pursuant to Title IX. In light of our determination,

we deny as moot plaintiff’s request for judicial notice.

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pass it without consideration]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th

1043, 1045, fn. 1 [plaintiffs’ contention in opening brief forfeited because plaintiffs failed

to provide any argument or citation to authority in support].)

IX. Conclusion

We conclude that the trial court did not err in sustaining the University

defendants’ demurrer to plaintiff’s second amended complaint. We further conclude that

the trial court did not abuse its discretion in sustaining the demurrer without leave to

amend as to all but the first cause of action because it is not reasonably possible that

plaintiff could cure the defects with further amendments. Additionally, the trial court

properly granted the University defendants’ unopposed motion to dismiss the complaint

upon plaintiff’s failure to timely file and serve a third amended complaint, and properly

entered judgment to that effect.9

9 In light of our determination, we need not discuss any additional grounds for immunity

raised by the University defendants.

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DISPOSITION

The judgment is affirmed. The University defendants shall recover their costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

MURRAY , J.

We concur:

HULL , Acting P. J.

DUARTE , J.

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