Opinion
A163690
04-06-2023
MAHDI FUGFUGOSH, Plaintiff and Appellant, v. TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. RG20073027)
Jackson, P. J.
This is an appeal from judgments entered against plaintiff Mahdi Fugfugosh after the trial court sustained the demurrers of defendants Trustees of the California State University (Trustees); Associated Students, Inc., California State University, East Bay (ASI); California State University, East Bay (CSU-EB); and five individual defendants. Plaintiff brought this lawsuit to challenge his loss of an election for the office of student body president. We conclude plaintiff waived his right to challenge matters relating to his candidacy in court and thus affirm.
Individual defendants are Leroy M. Morishita, Ed.D., in his former capacity as president of CSU-EB (Dr. Morishita); Derek Aitken in his capacity as CSU-EB chief of staff (Aitken); Suzanne Espinoza, Ph.D., in her capacity as CSU-EB vice-president of student affairs (Dr. Espinoza); Martin Castillo, Ed.D., in his capacity as CSU-EB associate vice-president of campus life (Dr. Castillo); and James Carroll in his former capacity as CSU-EB director of student conduct, rights and responsibilities (Carroll).
FACTUAL AND PROCEDURAL BACKGROUND
I. The 2020 Spring Election.
In the spring of 2020, plaintiff, a student enrolled at CSU-EB, ran for student body president of ASI, the incorporated student organization of CSU-EB, for the 2020-2021 academic term. To qualify for candidacy, plaintiff and his two opponents, E. Sanchez and D. Cuevas, were required to meet certain conditions, including having served at least two consecutive semesters in an ASI governance position and attending the mandatory candidates meeting. Plaintiff met these conditions by serving two consecutive semesters as ASI vice-president of finance during the 2018-2019 school year and attending the mandatory candidates meeting conducted by defendant Carroll on March 3, 2020.
At the March 3, 2020 mandatory candidates meeting, Carroll informed the candidates that, among other rules, the election was subject to a "50% +1" rule, pursuant to which a candidate would not be certified as the winner unless he or she received a majority of the total number of votes cast. If none of the three candidates received a majority of the vote, a runoff election would be held to determine the winner. Carroll also instructed that the ASI Elections Code (Elections Code) would govern the election, although the "50% +1" rule was not codified. Nevertheless, Carroll orally transmitted this rule to the candidates.
Also at the March 3, 2020 meeting, plaintiff signed the ASI election 2020 candidate acknowledgement form (Candidate Form), which was then countersigned by a member of ASI's elections committee. The elections committee was comprised of nine members appointed by the ASI board of directors, four of whom were students. The Candidate Form stated in relevant part that all candidates are responsible for complying with the provisions of the Elections Code and California State University Student Conduct Codes, which were incorporated by reference. Just above the candidate's signature line, the Candidate Form confirmed: "My signature below affirms that I have read and understand the ASI Elections Code . . . and I have attended the Mandatory Candidates Meeting. To the best of my ability, I will follow all processes and procedures as a candidate for ASI...."
The Elections Code contained article IV, section C, which provided: "When signed, the declaration of candidacy is binding and shall constitute the candidate's waiver of their opportunities and or rights to file a lawsuit or seek other redress related to their candidacy beyond that available through the Elections Committee and the Board of Directors." Article IV, section D, then provided: "By signing the declaration of candidacy the candidate enters into an agreement: [¶] 1. To observe the provisions of the Elections Code and rules. [¶] 2. Authority to resolve any election complaint(s) or dispute(s) shall rest with the Elections Committee, but appeals may be made to the ASI Board of Directors."
The Elections Code also contained one provision addressing runoff elections, article VIII, section B, which stated: "In the event of a tie, all candidates receiving the same number of votes shall be part of a runoff election which will be scheduled immediately by the Elections Committee and held for strictly two (2) days."
Voting for the 2020 spring election took place March 23-25, 2020. The results were posted on March 30, 2020. Plaintiff garnered the best result, receiving 43.28 percent of the total votes. His opponents, Sanchez and Cuevas, received 39.80 percent and 16.92 percent of the vote, respectively. The elections committee thereafter informed the candidates that, based on the "50% +1" rule, a runoff election would be held. Plaintiff participated in this runoff election, the results of which were posted on April 17, 2020. Sanchez was declared the winner with more than a majority of the votes.
II. Plaintiff's Administrative Grievances.
On April 20, 2020, after receiving the election results, plaintiff emailed several of the defendants, including Dr. Morishita, Aitken, and Dr. Espinoza, to complain about the "improper application of the >50% +1 rule" for the 2020 spring election. Shortly thereafter, on April 27, 2020, plaintiff retained counsel to send a demand letter to CSU-EB and ASI, outlining his grievances. On May 1, 2020, Dr. Espinoza responded, advising plaintiff that he had waived his right to commence litigation and urging him to exhaust his administrative remedies with the elections committee and the ASI board of directors.
On May 13, 2020, the elections committee held a hearing to consider plaintiff's grievances. With respect to the "50% +1" rule, the committee acknowledged it was not written in the Elections Code. Nonetheless, the committee determined the "50% +1" rule was valid because (1) runoff elections had been practiced at CSU-EB for over 10 years; (2) the candidates were told at the mandatory candidates meeting that the rule would apply during the election; and (3) plaintiff had experience with ASI elections and was, thus, aware of its runoff practices. Accordingly, the elections committee rejected his grievances and upheld the election result.
On May 14, 2020, plaintiff sent an email to Dr. Castillo to give notice that he was appealing the elections committee's ruling. Shortly thereafter, plaintiff's administrative appeal was heard and denied by the ASI board of directors.
III. This Lawsuit.
A. Complaint.
On September 9, 2020, plaintiff filed a civil complaint against ASI and individual defendants Dr. Morishita, Aitkin, Dr. Espinoza, Dr. Castillo, and Carroll. The complaint asserted one cause of action for breach of contract based on the March 3, 2020 Candidate Form, which was attached to the complaint, and one cause of action for declaratory relief. By way of relief, plaintiff sought a declaration that he won the 2020-2021 ASI election for student body president.
On October 1, 2020, plaintiff moved for a preliminary injunction enjoining Sanchez from continuing to serve as ASI president for the 2020- 2021 academic term and installing him in that role. After a contested hearing, this motion was denied for failure to demonstrate a likelihood of prevailing on the merits.
On December 8, 2020, the individual defendants demurred to the complaint on the primary ground that plaintiff failed to allege having entered into a contract with them as the agreement identified in the complaint, the Candidate Form, was between him and ASI. The trial court agreed and, on March 26, 2021, sustained the demurrer with leave to amend.
B. First Amended Complaint.
On April 30, 2021, plaintiff filed the operative first amended complaint (FAC), acting in propria persona, against the defendants named in his original complaint as well as the Trustees. The FAC asserted seven causes of action: (1) "Breach of Contract with the Board[,] Promissory Estoppel and Specific Performance"; (2) "Breach of Contract with the ASI[,] Promissory Estoppel and Specific Performance"; (3) "Breach of Contract with the Board[,] Declaratory Relief"; (4) "Breach of Contract with ASI[,] Declaratory Relief"; (5) "Third-Party Beneficiary for Breach Defendants as Board Employees[,] Cal. Civ. Code §1559" (against individual defendants only); (6) "Third-Party Beneficiary for Breach Defendants as ASI Agents[,] Cal. Civ. Code §1559" (against individual defendants only); and (7) "Cal. Consumers Legal Remedies Act-the Board (Civ. Code §§1750-1784)." In his prayer for relief, plaintiff sought: (1) a declaration that he won the 2020-2021 ASI election for office of student body president; (2) an order requiring defendants to perform under the applicable contracts by installing him as student body president; (3) general and compensatory damages in an amount subject to proof; and (4) litigation costs.
On May 12, 2021, plaintiff moved ex parte for a preliminary injunction enjoining defendants from refusing to certify him as ASI president-elect for the 2020-2021 academic term. Again, plaintiff's motion was denied.
The individual defendants, the Trustees, and ASI filed separate demurrers to the FAC on May 27, 2021, June 23, 2021, and July 1, 2021, respectively. Each was sustained without leave to amend.
Specifically, on July 9, 2021, in sustaining the individual defendants' demurrer, the court ruled that plaintiff's first through fourth causes of action for breach of contract failed to state valid claims because the facts were insufficient to establish the existence of a contract between the individual defendants and plaintiff. Further, the court found the third and fourth causes of action for breach of contract and declaratory relief were moot as there was no longer an actual live controversy given that the 2020-2021 academic term had ended. As to the fifth and sixth causes of action, brought by plaintiff as a third party beneficiary, the trial court found the facts were insufficient to establish a contract was formed between each individual defendant and ASI that, by its express terms, was made for plaintiff's benefit. Lastly, the court found that the seventh cause of action failed to state a valid claim because the ASI election was not a commercial transaction or service within the meaning of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). (Civ. Code, § 1761.)
Next, on July 30, 2021, the trial court issued its order sustaining ASI's demurrer to the FAC without leave to amend. The trial court found plaintiff waived his right to bring this lawsuit by, admittedly, signing the Candidate Form, which incorporated by reference the Elections Code, which provides:" '[W]hen signed, the declaration of candidacy is binding and shall constitute the candidate's waiver of their opportunities and or rights to file a lawsuit or seek other redress related to their candidacy beyond that available through the Elections Committee and the Board of Directors.'" Further, as to the seventh cause of action, the court found the CLRA applies only to a "limited set of commercial transactions and services" that does not include the ASI election.
Similarly, on August 25, 2021, the trial court sustained the Trustees' demurrer, finding that plaintiff waived his right to bring this lawsuit when he signed the Candidate Form and, thereby, agreed to be bound by the Elections Code. The trial court also found, in the alternative, that (1) plaintiff's requests for specific performance and declaratory relief were moot given that the 2020-2021 academic term had ended; (2) plaintiff's request for monetary relief failed because he did not allege compliance with the provisions of the Government Claims Act (Gov. Code, § 810 et seq.; see id., §§ 911.2, 905, 945.4) requiring presentation of a timely claim to the public entity prior to filing a lawsuit; (3) the second, fourth and sixth causes of action contained no allegations against the Trustees; (4) the fifth cause of action did not allege a breach by the Trustees; and (5) the seventh cause of action failed to state a claim because the CLRA does not apply to the Trustees or ASI.
Accordingly, the trial court entered judgments against plaintiff, prompting this appeal.
DISCUSSION
Plaintiff contends the trial court erroneously sustained defendants' demurrers because the FAC adequately pleads facts to support each of his causes of action. Alternatively, plaintiff contends the trial court erred by not allowing him to amend the FAC to cure any defects.
I. Standard of Review.
We review de novo an order sustaining a demurrer. (Bichai v. Dignity Health (2021) 61 Cal.App.5th 869, 876.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Bichai, supra, at p. 877.) We also consider matters that may be judicially noticed. (Blank v. Kirwan, supra, at p. 318.) We affirm if there is any ground upon which a demurrer may be sustained, regardless of the specific grounds relied upon by the trial court. (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031 (Martin).) We reverse if the facts alleged would entitle plaintiff to relief under a possible legal theory. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)
Once a demurrer is sustained, we review an order denying leave to amend for abuse of discretion. (Ashlan Park Center LLC v. Crow (2015) 233 Cal.App.4th 1274, 1278.) We must decide whether there is a reasonable possibility that the defect in the pleading can be cured by amendment. If no such possibility exists, there was no abuse of discretion. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Plaintiff bears the burden on appeal of proving a reasonable possibility the defect can be cured. (Ibid.)
II. Plaintiff waived his litigation rights.
According to the FAC, plaintiff met all necessary terms and conditions for running in the ASI election. This included signing the Candidate Form on March 3, 2020, when plaintiff attended the mandatory candidates meeting. The Candidate Form expressly states at the top of page 1: "All candidates (and [sic] slates are responsible for complying with all provisions of the ASI Elections Code ...." The Elections Code, incorporated by reference into the Candidate Form, provides in article IV: "3. When signed, the Declaration of Candidacy Form is binding and shall constitute the candidate's waiver of his/her opportunities and or rights to file a lawsuit or seek other redress related to his/her candidacy beyond that available through the Elections Committee and the Board of Directors. [¶] 4. By signing the Declaration of Candidacy Form the candidate enters into an agreement: [¶] a. To observe the provisions of the Elections Code and rules. [¶] b. Authority to resolve any election complaint(s) or dispute(s) shall rest with the Elections Committee, but appeals may be made to the ASI Board of Directors." (Italics added.)
Plaintiff attached the Candidate Form to the complaint. He did not attach the Candidate Form to the FAC. However, the FAC nonetheless makes reference to the above quoted provision. In any event, the document remains part of our record on demurrer. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173 [" '" '[A] plaintiff may not discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding, amended pleading'"' "].)
This language unequivocally states that all candidates competing in ASI elections agree to resolve disputes, such as plaintiff's, "related to [their] candidacy," through ASI channels and not through the court system. And plaintiff did just that. The FAC alleges that following plaintiff's loss to Sanchez in the 2020 runoff election, plaintiff filed a grievance with the elections committee, which was heard and then denied. The FAC further alleges that, after the elections committee ruled against him, plaintiff appealed the matter to the ASI board of directors, which likewise heard and denied his appeal.
The trial court relied on these allegations in finding plaintiff waived his litigation rights. Plaintiff, however, ignored the court's finding in his appellate briefs. Plaintiff also failed to answer the waiver arguments raised in the respondents' briefs. Instead, plaintiff argued more generally that the court erred by resolving disputed issues of fact on demurrer. However:" 'Our Supreme Court long ago established "[t]he interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citations.]'" (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444 (Morrow).)
Accordingly, we may look to the Candidate Form and the Elections Code to determine whether or not there is any disputable fact as to whether plaintiff waived his right to litigate his election-related claims. In doing so, under the generally accepted canons of interpretation, we must" 'give effect to the parties' mutual intent at the time of contracting'" and interpret the words of these instruments according to their"' "ordinary and popular" '" meaning. (Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair &Remodel, LLC (2011) 192 Cal.App.4th 1183, 1198, fn. 3.) Moreover, since the FAC" 'fails to allege that the terms of the [instruments] have any special meaning, [we] will construe the language of the [instruments] on [their] face to determine whether, as a matter of law, the [instruments are] reasonably subject to a construction sufficient to sustain a cause of action for breach.' [Citation.] [In other words], '[t]he rule on demurrer is simply a variation on the well-recognized theme that "[i]t is . . . solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence." [Citations.]' [Citation.]" (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1091, 1st-4th &6th-7th bracketed insertions added; see Morrow, supra, 149 Cal.App.4th at p. 1444.)
Here, the relevant language, set forth ante, is clear as day. Giving each word its ordinary, commonsense meaning, the Candidate Form and article IV of the Elections Code, read together, directly preclude candidates in ASI elections from challenging matters related to their candidacy in court.
Apparently conceding the straightforward meaning of the relevant language, the FAC instead alleges: "The Candidate Form only made a general reference to the ASI Elections Code, not specifically to any provision that gave plaintiff notice that he was waiving my [sic] right to initiate litigation, especially with respect to violations of the Elections Code on the part of [defendant] to disqualify his candidacy. The limiting language in the Elections Code (Art. 4, Section C, page 5) was specifically and deceptively omitted from the Candidate Form." However, just above the signature line that plaintiff admittedly signed, the Candidate Form reiterates: "My signature below affirms that I have read and understand the ASI Elections Code . . . and I have attended the Mandatory Candidates Meeting. To the best of my ability, I will follow all processes and procedures as a candidate for ASI. . . ." Plaintiff cannot avoid his signed affirmation. "A cardinal rule of contract law is that a party's failure to read a contract, or to carefully read a contract, before signing it is no defense to the contract's enforcement. [Citations.]" (Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872.)
Moreover, the FAC does not provide any other basis for avoiding the provisions of the Candidate Form and Elections Code that expressly bar plaintiff from bringing this lawsuit. Specifically, the FAC does not allege fraud, unconscionability or any theory that would permit us to ignore the binding nature of his waiver on appeal. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 563 [a release of liability will generally be deemed invalid only if "it is procured by misrepresentation, overreaching, deception, or fraud"]; Kessler v. Lauretz (1974) 39 Cal.App.3d 441, 448-449.)
Finally, plaintiff has presented us with no facts that demonstrate a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Instead, he argues, "The trial court erred by sustaining the demurrer without leave to amend instead of exploring whether any defect in the pleading could have been cured by further amendment." In doing so, plaintiff disregards the well-established principle that the "burden of proving such reasonable possibility is squarely on the plaintiff," not on the trial court. (Blank v. Kirwan, at p. 318.) He has not met this burden of proof.
We thus conclude plaintiff has alleged an enforceable agreement to waive his right to initiate litigation against defendants with respect to matters related to his candidacy, thereby defeating each of his causes of action. As the FAC itself makes clear on page 2: "This case . . . is about an institution that has completely abandoned [its] traditional values by allowing its agents to knowingly and repeatedly ignore its own student election rules, as a means to deny Plaintiff the right to become certified as the (ASI) student president-elect." Accordingly, because plaintiff waived his right to assert these issues in court, we need not address his alternative arguments for reversing the judgments. As stated ante, we affirm if there is any ground upon which a demurrer may be sustained, regardless of the grounds relied upon by the trial court. (Martin, supra, 173 Cal.App.4th at p. 1031.)
Defendants' request for judicial notice of June 6, 2022, is denied as moot.
DISPOSITION
The judgments are affirmed.
WE CONCUR: BURNS, J., LANGHORNE, J. [*]
[*] Judge of the Superior Court of Napa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.