Opinion
B229101
10-26-2011
CHIBUZO AZINGE-WALTON, Plaintiff and Appellant, v. PEPPERDINE UNIVERSITY, Defendant and Respondent.
Moses O. Onyejekwe and George E. Omoko for Plaintiff and Appellant. Musick, Peeler & Garrett, Stuart W. Rudnick, and Kirsten C. Love for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC419517)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed.
Moses O. Onyejekwe and George E. Omoko for Plaintiff and Appellant.
Musick, Peeler & Garrett, Stuart W. Rudnick, and Kirsten C. Love for Defendant and Respondent.
INTRODUCTION
Chibuzo Azinge-Walton appeals from a judgment of dismissal of her second amended complaint (SAC) after the trial court sustained the demurrer to the SAC without leave to amend. She contends the superior court erred when it concluded her claims against respondent Pepperdine University were barred by the applicable statute of limitations. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The following facts are undisputed: In September 1999, appellant enrolled in Pepperdine's doctoral program for education, leadership, administration and policy (ELAP). In October 2000, she was taking three courses when she was notified of a two-week mandatory military duty to commence no later than December 2000. She informed her professors, who provided some accommodations for her military duty. After she returned from military duty, she received poor grades from those professors, which resulted in her dismissal from the ELAP program at the end of the winter 2001 trimester.
She appealed the dismissal, participating in a three-step process set forth in the "procedure for the resolution of student academic complaints" contained in Pepperdine's academic catalog (Resolution Procedure). In a letter dated March 5, 2002, appellant was informed her appeal was denied.
Thereafter, on a date not specified in the SAC, she sought readmission to the ELAP program. On August 28, 2007, she was informed by the program director that readmission was denied.
1. Original Complaint
On August 10, 2009, appellant filed a verified complaint alleging 16 causes of action against Pepperdine and seven of its current or former faculty and staff members. In her complaint, she alleged her professors unduly penalized her and gave her poor or "Incomplete" grades which lowered her grade point average below the minimum required to remain in the ELAP program. One professor gave appellant a C- because her seminar paper allegedly was "substandard," "submitted without any references," did not follow the proper writing style, and was written in the first person. The second professor allegedly penalized appellant's overall grade by 25 percent for not working with her group. The last professor allegedly did not provide appellant with additional time to complete the coursework. Appellant further alleged she had exhausted all of her administrative remedies.
On January 19, 2010, defendants filed a demurrer, contending the claims in the complaint were barred by the applicable statutes of limitations because (1) appellant "was aware of her dismissal from the program in or around April 2001," (2) she filed her complaint in August 2009, and (3) all of the applicable limitations periods were four years or shorter. On March 22, 2010, the trial court sustained the demurrer to the complaint in its entirety with leave to amend. The trial court told appellant that she "must plead specific facts including dates to establish, among other things, that this action [was] not barred by the statute of limitations."
II. First Amended Complaint
On April 22, 2010, appellant filed a first amended verified complaint, asserting the same 16 causes of action. She further alleged that:
"The final act of [appellant's] exhaustion of the prescribed administrative remedies occurred on or about August 28, 2007 as indicated in [respondent's] notice to [appellant] that [appellant's] appeal was considered by [respondent] and denied. [Respondent] stated in part, 'Upon review of your recently submitted appeal letter and the documented account of your previous program dismissal, it has been determined that your appeal for readmission to PEPPERDINE be denied. In keeping with the terms of your original program dismissal, it has been determined that no other appeal for admission will be considered.'" Appellant alleged that this notice "open[ed] the door for the first time for [appellant] to have a right to seek relief in the Superior Court of the State of California."
Defendants filed another demurrer. In appellant's opposition to this demurrer, she requested leave to file a SAC. Appellant also alleged that her causes of action were not time barred because "they were tolled while she exhausted Pepperdine's internal procedures." She asserted that the statute of limitations began to run on or about August 28, 2007.
On July 13, 2010, the trial court sustained the demurrer and gave appellant 25 days to amend. In the minute order, the court instructed that:
"The claim of tolling must be established by specific facts and the dates on which each event occurred, and must specify, if applicable, what contractual legal basis for each succeeding step was.
"To the extent that there was a denial of readmission at some point, that claim must be separately pleaded as to a legal basis and as to timeliness. Plaintiff is strongly encouraged to be as complete as possible about the necessary facts."
III. Second Amended Complaint
On August 5, 2010, appellant served a SAC asserting six causes of action against Pepperdine only. The applicable limitations periods for the causes of action ranged from one year to four years. In the SAC, appellant alleged that she was "dismissed from the doctoral program" because her grade point average fell below the minimum requirement when she received "arbitrary" grades from two of her professors and a third professor refused to give her a "reasonable extension of time to complete the course requirements."
Appellant also alleged that at the relevant times, as stated in Pepperdine's "Graduate School of Education and Psychology['s] 1999-2000 Academic Catalog," "'[t]he procedure for the resolution of student academic complaints [was] a three-step process," consisting of "[(]1) an informal discussion between the disagreeing parties; (2) the formal filing of a written complaint and help of an ombudsperson to facilitate resolution; and (3) if recommended by the ombudsperson, a hearing by an impartial panel.'" The three-step Resolution Procedure also provided that "[t]he involved parties may return to the informal stage of resolution at any time during the process. If either party alleges that the procedure as outlined above has not been followed, he/she may request a review of the procedure by the dean."
Appellant further alleged the three steps of the student academic complaint resolution process were completed as follows: First, she had several discussions with her professors. Second, she wrote a letter dated June 8, 2001 to the ombudsperson, Dr. Kent Rhodes. Third, Dr. Rhodes convened a hearing panel sometime in February 2002. On March 5, 2002, Dr. Rhodes sent appellant a letter in which he stated that her grades would not be changed. In the penultimate paragraph of the letter, Dr. Rhodes wrote: "'If you have other questions regarding these decisions, please don't hesitate to contact me."
Appellant alleged that she then "began a series of communications, both verbal and written, with the dean and the associate deans of education, to request reviews of the procedures and decision. At various times between 2002 after Dr. Rhodes'[s] letter to [appellant], [appellant] started requesting a review of the procedures by complaining to Associate Dean Paull in 2002 to 2004, [A]ssociate Dean Mc[C]all from 2005 to 2006, and Associate Dean Ramirez from 2006 to 2007. When [appellant] requested to see . . . Dean Webber between 2002 through 2007, [appellant] was directed by the Dean's office to contact the Associate Deans previously named. . . . Associate Deans Paull and McCall informed [appellant] that they would look into her requests for review." Appellant further alleged that at no point prior to August 28, 2007 was she ever informed by Pepperdine that she had exhausted every means of appeal open to her. According to appellant, she was "led to believe that the post-panel hearing appeal process indicated as part of step three was alive at all times prior to August 28, 2007."
Respondent Pepperdine filed a demurrer to the entire SAC. In the demurrer, respondent asserted that: "This time, [in the SAC, appellant] followed the Court's instructions and stated the specific facts, including dates, supporting her belief that equitable tolling applied to this case. However, [appellant's] own allegations in the SAC established that equitable tolling does not apply and all of her claims are time barred as a matter of law because she had completed Pepperdine's three-step Resolution Procedure and had notice of Pepperdine's decision by March 5, 2002." Respondent contended appellant's subsequent written and verbal communications did not toll the applicable statutes of limitations because there were no specific allegations that respondent did not follow the three-step Resolution Procedure. Finally, respondent argued the August 28, 2007 letter did not revive appellant's claims because although the letter may support a claim based upon denial of readmission, that claim is separate and distinct from claims based upon academic dismissal due to poor grades.
On October 14, 2010, the trial court held a hearing on the demurrer. At the hearing, the court noted that despite three attempts, appellant had not pleaded specific facts to establish equitable tolling. The court noted appellant had alleged that she began a series of communications, both verbal and written, with the dean and associate deans, but had provided no specific facts about the dates and had attached none of the referenced written communications. In response, appellant's counsel admitted, "There are no more facts to be given." The court also stated that appellant could not rely on the August 28, 2007 letter to toll the statute of limitations because the letter was a denial of readmission, and the "denial of [a] request for readmission . . . is not a denial of [a] request for a grade change."
On November 3, 2010, the trial court issued an order sustaining the demurrer without leave to amend on the ground that despite multiple attempts, appellant had failed to plead specific facts establishing that equitable tolling applied to save her time-barred claims. The same day, a judgment of dismissal of the SAC was entered. Appellant timely filed an appeal.
DISCUSSION
We review a judgment of dismissal entered after an order sustaining a demurrer de novo. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We review the trial court's decision denying leave to amend for an abuse of discretion. A court abuses its discretion if there is a reasonable possibility that the defect in the complaint can be cured by an amendment. "'The burden of proving such reasonable possibility is squarely on the plaintiff.'" (Ibid.)
Appellant contends the trial court erred in sustaining the demurrer without leave to amend because: (1) the trial court improperly converted the demurrer into a motion for summary judgment by resolving the factual issues of equitable tolling and statute of limitations; (2) the court unduly focused on the fact that the SAC did not attach written communications between appellant and respondent; (3) the respondent conceded that appellant complied with the instructions by the court to provide specific facts; (4) equitable tolling applied to toll her claims because the three-step Resolution Procedure allowed appellant to return to the informal stage of resolution at any time during the process; and (5) the court abused its discretion in denying leave to amend because "there existed the reasonable probability that [a]ppellant could at least have attached the copies of the written communication[s], which she alleged in . . . the SAC." We address each contention in turn.
I. The Trial Court Properly Sustained the Demurrer to Appellant's SAC
Initially, we reject appellant's contention that the trial court improperly resolved questions of fact. A trial court may properly sustain a demurrer and dismiss a complaint on the ground that the causes of action in a complaint are time-barred by the statute of limitations. (See, e.g., Kunstman v. Mirizzi (1965) 234 Cal.App.2d 753, 754 [affirming judgment dismissing third amended complaint after demurrer was sustained without leave to amend on the ground that the action was barred by the one-year statute of limitations].) Moreover, where the facts are undisputed or would support only one legitimate inference, issues related to the operation of statutes of limitations are questions of law and may be resolved on demurrer. (See, e.g., CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1537 ["Arguments that discovery-rule issues are necessarily factual and cannot be resolved on demurrer have been rejected"]; Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 299 [demurrer was appropriate means to test plaintiff's allegations of delayed discovery and its effect on statute of limitations].)
We further conclude the trial court did not unduly focus on the fact that the SAC did not attach written communications between appellant and the dean and associate deans of Pepperdine. Because the allegations in the SAC revealed that the claims were time-barred by the applicable statutes of limitations, appellant was required to "'"plead around" the defense, by alleging specific facts that would avoid the apparent defense.'" (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) Here, appellant sought to "'plead around'" the applicable statutes of limitations by alleging that she had engaged in verbal and written communications with the dean and associates deans. At the hearing, the trial court focused on this allegation and asked defense counsel why appellant had not pled specific facts such as dates and contents of the verbal communications and why she had not attached written communications. The court's inquiry was not limited to the lack of attached written communications, but focused rather on the absence of specific allegations of fact that would demonstrate why the otherwise applicable statutes of limitations had not run.
Contrary to appellant's contention, respondent did not concede that appellant had pled facts sufficient to toll the statute of limitations. In its demurrer to the SAC, respondent stated that "This time, [appellant] followed the Court's instructions and stated the specific facts, including dates, supporting her belief that equitable tolling applied to this case. However, [appellant's] own allegations in the SAC established that equitable tolling does not apply and all of her claims are time barred as a matter of law because she had completed Pepperdine's three-step Resolution Procedure and had notice of Pepperdine's decision by March 5, 2002." Far from conceding that appellant had pled specific facts sufficient to support her allegation that the applicable statutes of limitations were tolled, respondent contended she had failed to do so.
We agree that appellant has failed to state facts sufficient to establish that equitable tolling applied to revive her time-barred claims against respondent. "The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. [Citations.] It is 'designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations --timely notice to the defendant of the plaintiff's claims -- has been satisfied.' [Citation.] Where applicable, the doctrine will 'suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.' [Citation.]" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) "Broadly speaking, the doctrine applies '"[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one."'" (Id. at p. 100.) Equitable tolling requires a showing of timely notice, lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff. (Id. at p. 102). "Obviously, the statute of limitations is not normally tolled merely by correspondence between the parties in which the defendant is requested to reconsider its position." (Peles v. LaBounty (1979) 90 Cal.App.3d 431, 437 [statute of limitations not tolled by written requests for reconsideration that did not trigger any administrative remedies].)
Here, appellant's claims of "improper dismissal . . . accrued on the date of the actual dismissal, and . . . the statute[s] of limitations [were] tolled while [appellant] pursued available administrative remedies." (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 894.) According to respondent, appellant's claims accrued at the end of the 2001 winter trimester when she was actually dismissed from the ELAP program, and the applicable statutes of limitations were tolled, at most, until March 5, 2002, when appellant received a letter from Dr. Rhodes, stating that appellant's grades would not be changed. Appellant contends, however, that her claims continued to be tolled because she sought to return to the informal stage of the Resolution Procedure and requested a review of the three-step process. We agree with respondent.
As detailed previously, the three-step Resolution Procedure provided that "[t]he involved parties may return to the informal stage of resolution at any time during the process. If either party alleges that the procedure as outlined above has not been followed, he/she may request a review of the procedure by the dean." As the first sentence makes clear, a party may return to the informal stage of resolution -- step one of the procedure -- only "during the process." As appellant has admitted she was dismissed from the ELAP program and the hearing panel denied her appeal of the dismissal, the process had concluded on March 5, 2002. Thus, appellant had no right to return to step one of the process -- the informal stage of resolution -- because the process had concluded.
Appellant suggests the process had not concluded because she requested review of the entire procedure. We are not persuaded. First, appellant has never stated how the three-step Resolution Procedure was not followed. Indeed, she alleged that the parties followed the three-step Resolution Procedure. In her SAC, she alleged that she complied with steps one and two by having informal discussions with her professors and writing a letter to Dr. Rhodes. She alleged that Dr. Rhodes complied with step three by convening a hearing panel. Nowhere did appellant identify any procedural irregularity in the process; rather, the gravamen of her complaint went to the merits of the decision to dismiss her from the ELAP program. That decision was made in 2001 and her challenge to the decision was rejected in March 2002.
Furthermore, none of appellant's other allegations support equitable tolling of the applicable statutes of limitations. (See McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at p. 102 [equitable estoppel requires reasonable and good faith conduct on the part of plaintiff]; Peles v. LaBounty, supra, 90 Cal.App.3d at p. 437 [statute of limitations not tolled by written requests for reconsideration that did not trigger any administrative remedies].) Dr. Rhodes's statement that appellant could contact him if she had any questions regarding the decisions about her grades does not establish that appellant was entitled to tolling. No person could reasonably believe that Dr. Rhodes's statement indicated the statutes of limitations would be tolled during any such contact.
Similarly, the representations allegedly made by the associate deans to "look into [appellant's] requests for review" do not support tolling. Such statements would not establish that the three-step Resolution Procedure was not completed, that the associate deans were acting on appellant's requests for review, or that the statute of limitations would be tolled. Moreover, it was not reasonable for appellant to do nothing while waiting for the associate deans to look into her requests for review.
Finally, we reject appellant's contention that the August 28, 2007 letter from the ELAP program director denying appellant's readmission demonstrated that the applicable statutes of limitations on her claims based upon dismissal due to poor grades had been tolled. That letter addressed appellant's "recently submitted" letter seeking "readmission." Nowhere did it suggest that appellant's dismissal five years earlier had been under reconsideration. As respondent notes, a request for readmission is governed by a different procedure than the three-step Resolution Procedure governing student "academic complaints" about "student grades and status in a program." The academic catalog directs students "seeking readmittance" to a program to make their request "directly to the program administrator or director" instead of following the three-step Resolution Procedure. The August 2007 letter rejecting appellant's "appeal for readmission" was authored by the program director. In short, appellant has failed to plead facts sufficient to establish that she was entitled to equitable tolling after March 5, 2002.
II. The Trial Court Did Not Abuse its Discretion in Denying Appellant Leave to Amend
We conclude the trial court did not abuse its discretion in denying appellant leave to amend. Appellant filed three complaints, and had two chances to amend after being specifically advised by the trial court to address the applicable statutes of limitations. At the hearing on the demurrer to her SAC, appellant's counsel admitted, "There are no more facts to be given."
Although appellant now contends that this statement did not constitute an admission that the SAC could not be amended, she does not assert how she could amend to establish equitable tolling. She merely asserts that "there existed the reasonable probability that [appellant] could at least have attached the copies of the written communication[s]." Notably, aside from the allegation in her SAC, appellant has never represented that such communications exist. More important, as noted above, the existence of communications after the March 5, 2002 letter would not, standing alone, suffice to demonstrate tolling. (See Peles v. LaBounty, supra, 90 Cal.App.3d at p. 437.) On this record, the trial court did not abuse its discretion in denying leave to amend.
DISPOSITION
The judgment of dismissal is affirmed. Costs are awarded to respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.