# Rassaii v. The Board of Trustees of the Cal. State University CA6

> California Court of Appeal · February 23, 2023

URL: https://www.frixlaw.com/law-library/cases/9374702

## Case

- **Court:** California Court of Appeal
- **Decided:** February 23, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 2/23/23 Rassaii v. The Board of Trustees of the Cal. State University CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

FRED RASSAII, H049561
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 20CV374092)

v.

THE BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY,

Defendant and Respondent.

Plaintiff Fred Rassaii petitioned for writ of mandate challenging the decision of
the Board of Trustees of the California State University (Trustees) to permanently
disqualify him from a graduate program at San Diego State University for failing to meet
the program’s GPA requirements. Rassaii appeals the trial court’s orders sustaining a
demurrer as to certain claims and granting judgment on the pleadings as to the remaining
claims. Rassaii contends the trial court was incorrect in finding that he failed to comply
with the Government Claims Act before filing suit for damages and in determining that
the Trustees’ decision was not arbitrary or capricious. Finding no error, we will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are undisputed. Rassaii enrolled in the Medical Physics
program at San Diego State University in fall 2018, seeking a Master of Science degree.
A Graduate Bulletin in the record sets out relevant university policies. The university
requires a minimum 3.0 GPA in all courses listed on the official Master’s degree program
and a minimum overall 2.85 GPA. A student who does not earn at least a 2.85 GPA is
placed on academic probation. A student failing to achieve at least a 2.85 term GPA
during the first semester on academic probation is disqualified from the university. An
academically disqualified graduate student cannot attend the university for one full
semester, but may apply for readmission, which is not guaranteed. In addition to
academic disqualification, the policy provides for administrative disqualification, under
which “the university may recommend that the graduate dean dismiss from the program
any graduate student whose performance in a degree, certificate, or credential program is
judged unsatisfactory with respect to the scholastic or professional standards of the
program other than GPA.” Also filed in the trial court was California State University
Executive Order 1038, which provides that disqualification of graduate students is subject
to section 41300, subdivisions (d), (e), and (f) of Title 5 of the California Code of
Regulations and campus criteria.
Rassaii was placed on academic probation after his first semester in the program
because he failed to earn the minimum 2.85 GPA. When Rassaii’s term GPA and
cumulative GPA remained below 2.85 after the spring 2019 semester (his second
semester in the program), he was academically disqualified from the graduate program.
Rassaii sought immediate reinstatement to the program. The university denied Rassaii’s
request because he had neither proposed to sufficiently raise his GPA nor provided a
“solid plan for degree completion.” The university suggested that Rassaii instead apply
for readmission the following school year.
Rassaii petitioned for readmission in December 2019 for the fall 2020 semester.
Rassaii proposed an academic plan in which he would repeat a course in each of the
fall 2020 and spring 2021 semesters and earn a cumulative GPA of 2.71 and 2.85 in each
of those respective semesters. An assistant dean notified Rassaii that his proposed plan
would not lead to graduation with the minimum required 3.0 GPA. The assistant dean
indicated he would approve readmission on academic probation and administrative
probation, subject to multiple conditions. One condition was that “[u]nder administrative

2
probation, your Fall 2020 term GPA must be 3.633 or higher, (assuming you take three
graded courses for use on the Program of Study). If the Fall GPA is lower, you would be
administratively disqualified without the possibility of readmission.” Rassaii was
readmitted in March 2020, subject to those conditions.
Rassaii reenrolled in the graduate program in fall 2020. He received a 2.56 term
GPA that semester, resulting in a 2.42 cumulative GPA. Rassaii was then permanently
disqualified from the graduate program. Representing himself, Rassaii sued the Trustees
in December 2020. Styled as a motion to order the Trustees to take certain actions, the
trial court and parties treated the filing as a petition for writ of mandate. The petition
alleged that the condition imposing a higher GPA than the 2.85 requirement listed on the
readmission form was arbitrary and capricious, violated the university’s applicable
policies, interfered with Rassaii’s prospective economic advantage, negligently and
intentionally inflicted emotional distress, violated his right to education, and that the
action was retaliatory. The petition sought an order compelling the Trustees to remove
him from administrative probation; remove the requirement to attain a 3.633 GPA in the
first semester of readmission; and reverse its decision to permanently disqualify him from
the graduate program. The petition requested $10,650,000 in compensatory and punitive
damages. Rassaii did not submit a claim under the Government Claims Act (Gov. Code,
§ 810 et seq.) with any state entity before filing suit. (Unspecified statutory references
are to the Government Code.)
The Trustees demurred, arguing that the petition failed to state a cause of action
because it was barred by the doctrines of claim and issue preclusion in light of Rassaii’s
prior unsuccessful suit.1 The Trustees further argued that it did not owe Rassaii a

1
Rassaii’s previous suit sought to have section 41300, subdivision (f) of title 5 of the
California Code of Regulations declared unconstitutional. There the trial court sustained the
Trustees’ demurrer because the complaint failed to state a cause of action, which we affirmed on
appeal. (Rassaii v. Board of Trustees of California State University (June 17, 2022, H048281)
[nonpub. opn.].) We take judicial notice of the opinion issued in case No. H048281.

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ministerial duty of reinstatement and that the Government Claims Act barred his claims
for monetary relief.
The trial court sustained the demurrer without leave to amend as to Rassaii’s
claims for compensatory and punitive damages, finding that Rassaii had not alleged
compliance with the Government Claims Act by timely presenting a written claim to the
Trustees, nor had Rassaii actually presented such a claim to any state entity. The court
denied Rassaii leave to amend because the one-year deadline to present the claim to the
Trustees had already expired. (Citing § 911.2.) The court overruled the demurrer as to
the balance of Rassaii’s claims, reasoning that the issues presented were distinct from
those raised in, and therefore were not precluded by, Rassaii’s prior unsuccessful suit.
The court further declined to abate the case pending disposition of Rassaii’s appeal of his
prior suit, finding that the two cases asserted different injuries and causes of action.
(Rassaii appealed that order, which we dismissed as premature.
The Trustees thereafter moved for judgment on the pleadings. The trial court
granted the Trustees’ motion by written order, denying the entire petition with prejudice.
The trial court concluded it could not order Rassaii’s reinstatement in the graduate
program because he “failed to meet [the] minimum grade point average” requirements.
The court determined that the university acted within its discretion when it required a
3.633 term GPA as a condition for Rassaii’s readmission to the fall 2020 semester
because that GPA was necessary to place Rassaii on a path to earn the minimum 3.0
cumulative GPA required to graduate. The court also noted the petition was moot to the
extent Rassaii sought “readmission to a semester which he has already completed and for
which he earned a GPA lower than the 2.85 term GPA requirement that he seeks to
impose as a remedy.”2

2
We accept the trial court’s order as ripe for appeal. (See Public Defenders’
Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409 [“[A]n order

4
II. DISCUSSION
A. Standard of Review
Both issues on appeal are subject to a de novo standard of review. We exercise
“our independent judgment to determine whether a cause of action has been stated under
any legal theory.” (Sierra Club v. Department of Parks & Recreation (2012)
202 Cal.App.4th 735, 740 [demurrer]; Kempton v. City of Los Angeles (2008)
165 Cal.App.4th 1344, 1347 [judgment on the pleadings].) We will affirm if the petition
fails to plead an essential element, or if the allegations clearly disclose some defense or
bar to recovery. (Brown v. Crandall (2011) 198 Cal.App.4th 1, 8.) “In determining these
issues, we accept as true all facts properly pleaded or subject to judicial notice, but not
contentions, deductions, or conclusions of fact or law.” (Ibid.)
B. The Trial Court Properly Sustained the Demurrer
Rassaii appears to argue that his email communications to university
administrators satisfied the Government Claims Act’s claim presentation requirement.
“As a general rule, a plaintiff must present a public entity with a timely written claim for
damages before filing suit against it. [Citation.] If a complaint does not allege facts
showing that a claim was timely made, or that compliance with the claims statutes is
excused, it is subject to demurrer.” (J.M. v. Huntington Beach Union High School Dist.
(2017) 2 Cal.5th 648, 652; see also §§ 905, 945.4.) The purpose of the claim requirement
is “ ‘to provide the public entity sufficient information to enable it to adequately
investigate claims and to settle them, if appropriate, without the expense of litigation.’ ”
(Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34
Cal.4th 441, 446.)

granting or denying a petition for an extraordinary writ constitutes a final judgment for
purposes of an appeal, even if the order is not accompanied by a separate formal
judgment.”].) We deny Rassaii’s request for judicial notice, as the subject documents are
already in the record on appeal or were created after the events at issue.

5
Claims for personal injury or property damage must be presented within six
months of accrual, and all other claims must be presented within one year of accrual.
(Andrews v. Metropolitan Transit System (2022) 74 Cal.App.5th 597, 604; § 911.2,
subd (a).) A claim must include, among other things, the claimant’s mailing address, a
description of the injury or damage incurred, whether the claim would be a limited civil
case, and the amount claimed if less than $10,000. (§ 910.) The doctrine of substantial
compliance may validate a deficient claim “if it substantially complies with all of the
statutory requirements ... even though it is technically deficient in one or more
particulars.” (Santee v. Santa Clara County Office of Education (1990)
220 Cal.App.3d 702, 713.) But substantial compliance “cannot cure total omission of an
essential element from the claim or remedy a plaintiff’s failure to comply meaningfully
with the statute.” (Loehr v. Ventura County Community College Dist. (1983)
147 Cal.App.3d 1071, 1083.)
Rassaii relies on email communications he sent to university professors in
August 2019. Those communications did not substantially comply with the Government
Claims Act. They relate not to his fall 2020 readmission or December 2020 permanent
disqualification, but rather to his efforts to be immediately reinstated in August 2019.
They do not describe the injuries Rassaii seeks to redress in this action. Nor do they
provide an address for contact by mail, specify the amount of damages sought, or indicate
whether the claim would be a limited civil case. Importantly, the communications were
made to university professors rather than to the Trustees’ or even the university’s
designated agent. (See §§ 910, 915, subd. (a)(1)–(2), 935.9; Wood v. Riverside General
Hospital (1994) 25 Cal.App.4th 1113, 1118.) Though Rassaii stated in one email that he
would “pursue the matter through other avenues,” that language was inadequate to put the
Trustees on notice that Rassaii would commence litigation. (Compare Simms v. Bear
Valley Community Healthcare Dist. (2022) 80 Cal.App.5th 391, 401–402 [letter
communicating that plaintiff “felt he had compensable claims” and that expressly

6
threatened litigation, while an incomplete claim, was sufficient to trigger duty to provide
notice of the insufficiencies.].)
Rassaii has not asked on appeal for leave to amend his complaint, nor
demonstrated a reasonable possibility that an amendment would cure the defects that
caused the demurrer to be sustained. (Smith v. BP Lubricants USA Inc. (2021)
64 Cal.App.5th 138, 145.)
C. The Trial Court Properly Granted Judgment on the Pleadings
We interpret the trial court’s order granting the Trustees’ motion for judgment on
the pleadings as finding the petition moot as to Rassaii’s request to be readmitted to a
semester that had already ended. As for Rassaii’s request to be reinstated (which we
interpret as a challenge to his permanent disqualification), the trial court concluded it
could not order Rassaii’s reinstatement in the graduate school program because he “failed
to meet [the] minimum grade point average” requirements.
Regarding mootness, Rassaii’s petition asked the court to “reinstitute the GPA of
2.85 for the first semester after readmission and cumulative GPA of 2.85 at the end of the
second semester after readmission.” But Rassaii was allowed to return to the graduate
school in the fall 2020 semester, and earned only a 2.56 term GPA. Because the petition
requested relief for a semester that had already occurred—and for which Rassaii earned
below even his own proposed minimum GPA—the trial court properly concluded the
petition was moot as to that claim.
As to Rassaii’s permanent disqualification, “[t]here is a widely accepted rule of
judicial nonintervention in the academic affairs of schools.” (Paulsen v. Golden Gate
University (1979) 25 Cal.3d 803, 808; see also Perez v. Hastings College (1996)
45 Cal.App.4th 453.) We will overturn a university’s decision only where we conclude it
is arbitrary or capricious, not based on academic criteria, and the result of irrelevant or
discriminatory criteria. (Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551
(Banks).)

7
The university was under no obligation to reinstate Rassaii following his
disqualification. Contrary to Rassaii’s belief, the California Constitution does not create
a constitutional right to a university education. (Levi v. O’Connell (2006)
144 Cal.App.4th 700, 708 [“the common schools of California under section 5 [of article
IX of the California Constitution] are the schools that provide what has become known as
grades K through 12. […] Colleges and universities are not included.”].) A decision to
reenroll a previously disqualified university student is discretionary. “A student
disqualified for scholarship deficiency may not enroll in any regular session of the
[California State University] campus without permission from the appropriate campus
authority, and may be denied admission to other educational programs operated or
sponsored by the campus.” (Cal. Code Regs., tit. 5, § 41300.) As stated more plainly in
the university’s policies: “Readmission to the university is NOT automatic.”
Having exercised its discretion to reinstate Rassaii, the university was permitted to
impose conditions to ensure he would graduate with the required minimum GPA. State
regulations require graduate students at a state university to maintain a cumulative GPA
of at least 3.0 or be subject to academic probation. (Cal. Code Regs., tit. 5, § 41300,
subd. (d).) If placed on academic probation, a graduate student is subject to
disqualification if he or she “fails to earn sufficient grade points to be removed from
probationary status.” (Id., at subd. (f).) The university’s policies are consistent with
those regulations, requiring students in a Master’s degree program to maintain a GPA of
at least 3.0 in the degree program and an overall GPA of at least 2.85.
The GPA condition the university imposed here—earn a GPA of at least 3.633 in
the first semester following reinstatement or be permanently disqualified—was based on
the foregoing academic criteria. The identified minimum GPA was necessary for Rassaii
to raise his cumulative GPA to the 3.0 required by state regulations and university policy
to remain enrolled and progress toward a degree in his graduate program. Because the
condition was based on academic criteria and was clearly communicated to Rassaii

8
before he was reinstated, it was neither arbitrary nor capricious. (See Banks, supra,
35 Cal.App.4th at p. 1551.) And because Rassaii failed to comply with the conditions
placed of his readmission, the university’s decision to permanently disqualify him was
likewise not arbitrary or capricious. (See also Cal. Code Regs., tit. 5, § 41300.1
[“graduate student ... may be disqualified by appropriate campus authorities for
unsatisfactory scholastic progress regardless of cumulative grade point average or
progress points”].)
Rassaii’s remaining contentions have been forfeited. He asserts the university
imposed specific readmission conditions in retaliation for his complaints about the
university’s handling of financial aid disbursements. Rassaii forfeited that issue by
failing to support it with reasoned argument in his appellate briefing. (Sviridov v. City of
San Diego (2017) 14 Cal.App.5th 514, 521.) As for his poor academic performance
being due to indigency and the COVID-19 pandemic, he forfeited those arguments by
raising them for the first time on appeal. (Santa Clara Waste Water Co. v. Allied World
National Assurance Co. (2017) 18 Cal.App.5th 881, 888.)
III. DISPOSITION
The trial court’s orders of June 14, 2021 and October 18, 2021 are affirmed. In
the interest of justice, each party shall bear its own costs on appeal.

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____________________________________
Grover, J.

WE CONCUR:

____________________________
Greenwood, P. J.

____________________________
Wilson, J.

H049561 - Rassaii v. The Board of Trustees of the California State University

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9374702. Public record. Not legal advice.