Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. BC325869. Mary Thornton House, Judge.
Trygstad, Schwab & Trygstad, Lawrence B. Trygstad and Shanon D. Trygstad for Plaintiff and Appellant.
Carlson & Messer, Jeffery J. Carlson, Edgar N. De Vera and Charles R. Messer for Defendants and Respondents.
WILLHITE, P. J.
Plaintiff Behzad Amini appeals from a summary judgment entered in his lawsuit against defendants Southern California University of Health Sciences (the University) and various entities, administrators, and faculty members of the University. Amini, who was a first-year chiropractic student, alleged that defendants discriminated against him in grading his midterm examinations in one of his classes, failed to follow the procedures set forth in the Student Handbook when investigating his discrimination complaint, retaliated against him by suspending him, and failed to follow proper procedures when they suspended him. The undisputed evidence before the trial court showed, however, that Amini cannot establish discriminatory animus or retaliation by defendants, and that Amini was not injured by any failure by defendants to follow proper procedures. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
Amini enrolled in the University’s three-year program leading to a Doctor of Chiropractic degree in September 2004. One of his first-term classes was Palpation I, a clinical class taught by defendant Dr. Mary Kate Connolly, in which students are taught and tested on certain chiropractic techniques.
On October 5, 2004 -- three and a half weeks into the first term -- Amini took his first of two midterm exams in Palpation I. Students were paired up for the exam, during which an examiner asked each student to identify the components of one of two different series, and to perform certain chiropractic techniques. The examiner was given a “check sheet” created by Connolly that listed the points to be awarded for every correct answer and/or properly performed technique. Dr. Ya-Wen Cheng administered the exam to Amini and his partner and recorded Amini’s score on the check sheet. Cheng asked Amini to identify the components of the “weight bearing SI” series, and awarded him zero out of five points because he identified the components of both the prone and weight bearing series. Cheng also deducted four points from Amini’s score because he failed to perform properly certain parts of one of the procedures he was asked to perform. Amini’s total score was 30 out of 39, which resulted in a “C” grade for the exam.
Upon receiving his grade, on Friday, October 8, Amini telephoned defendant Dr. Gene Tobias, Dean of Pre-Clinical Education at the University, to complain about Cheng and his grade. Tobias suggested to Amini that he first discuss the matter with Connolly and, if that was not productive, he should talk to defendant Dr. Paige Morgenthal, Chair of Pre-Clinical Education. At nine o’clock the following Monday morning, Amini went to Tobias’s office and told him that he was very angry because he had been graded by a person who was racially prejudiced against him, and that he would sue the University. When Tobias asked whether he had spoken to Connolly, Amini told him that Connolly was off campus that week. At ten o’clock that same morning, Amini, accompanied by his wife (Lisa Soo, who is an attorney) met with defendant Dr. Reed B. Phillips, President of the University, to complain about his treatment. Phillips suggested Amini talk to the Chair of the department, Morgenthal. Amini met with Morgenthal later that day. Morgenthal told him that his allegations would be investigated, but that nothing could be done until after Connolly returned to campus on October 18.
Sometime during the week of October 11, Amini submitted several documents to Tobias and Morgenthal, which Tobias accepted as a written complaint of racial bias by Cheng affecting her evaluation of Amini during his Palpation I midterm. In those documents, Amini discussed two comments that Cheng made to him during the first two weeks of class, which he believed were inappropriate. He also described Cheng’s conduct during the midterm exam, and noted the differences in the way the exam was administered to him, his partner, and other class members. Finally, he noted that his grade in the Palpation I midterm was inconsistent with his grades in his other courses (in which he received “A’s”), whereas the other students who received “C’s” in the Palpation I midterm generally received below average grades in their other courses.
The first comment was made during a Biochemistry lab in which Cheng was performing a blood glucose test on the students. Cheng asked Amini if he was Arabian. Amini told her that he was not Arab, but Persian, born in Iran. She responded that “it’s the same thing” and gave him a look that Amini described as “unfriendly.” Although Amini conceded that her question may have been for the purpose of categorizing his blood glucose sample, he nevertheless believed her comment was inappropriate.
Amini stated that Cheng asked him more difficult questions than she asked his partner, gave his partner hints during his exam, and used her hand to verify that Amini properly located various landmarks but did not do so when testing Amini’s partner. He also asserted that other examiners had given hints to students during their exams.
Amini met with Tobias, Morgenthal, and Connolly on October 19 to discuss his midterm exam. Tobias told Amini during that meeting that he would investigate Amini’s complaint. The meeting apparently became very contentious.
The Palpation I faculty met on October 21 to discuss the administration of the Palpation I midterm. The examiners were asked what they said to the students during the exam. None of the examiners said they gave hints to the students. That same day, Amini met with his Biochemistry instructor, Dr. David Lin, who had been asked by Tobias to investigate Amini’s complaint regarding Cheng’s comment during the first week of class. Lin asked Amini if Amini would meet with Lin and Cheng together, but Amini declined. Lin spoke with Cheng the following day, and asked her about her comment. Cheng could not remember any conversation with Amini, and told Lin that the only thing she did was remind the students to fill in the ethnicity item on the report form, because one of the purposes of the testing they were doing was to see if there was a correlation between ethnicity and blood glucose levels. Lin saw Amini the morning of October 26 and told him what Cheng said to him.
One of the examiners who did not attend the meeting later told Tobias that she gave hints to two students who asked about the weight bearing series they were asked to identify.
Tobias met with Amini in the afternoon of October 26 to discuss his complaint. Tobias told him that Connolly had interviewed all of the examiners who gave the Palpation I midterm and that none reported giving students any hints during the exam. Tobias said, however, that he would be interested in interviewing (confidentially) any students who said they received hints. Tobias also told Amini that Connolly would not change Amini’s grade on the midterm. He asked Amini whether he was satisfied with the outcome of his meeting with Lin, and Amini responded by saying that Cheng’s behavior in the Biochemistry lab was consistent with her bias against him. Finally, Tobias expressed his concerns about Amini’s “aggressive and argumentative behavior” during their meeting with Morgenthal and Connolly the previous week and suggested they meet again to discuss that issue and the kind of behavior expected from a Doctor of Chiropractic. Less than two hours after the meeting ended, Soo (Amini’s wife) faxed a letter to Tobias, requesting a written copy of the department’s conclusions, findings, and reasoning pertaining to the investigation, explaining that she needed “full disclosure of these materials in order to proceed to the President’s office and any other administrative or civil proceedings, if warranted.”
The next afternoon, on October 27, Tobias emailed Amini, summarizing their meeting the previous afternoon. Tobias stated that he was continuing to address the issues Amini raised in his written complaint. He informed Amini that the University would be following the process described in the Student Handbook, noting that Amini’s written complaint constituted an incident report. He explained that once he completed the review process, he would produce a written response to the complaint and his recommendation, which would be sent to defendant Dr. Gary Schultz, Vice President of Academic Affairs. Schultz would decide whether to accept Tobias’s recommendation, and Amini would be provided with the final written outcome. Amini then would have the option to accept the outcome, appeal to Schultz or Phillips (the University President), or request a hearing by the Student Judicial Board. If he chose to request a hearing by the Student Judicial Board, he would then have the option to accept the Board’s outcome or appeal it to Schultz or Phillips.
While Tobias was writing his email to Amini, he received a telephone call from Soo, who told Tobias that she and Amini expected to receive a written report from him. Tobias told her that he could not discuss the investigation with her, but that he would be communicating with her husband. Amini responded to Tobias’s email a few hours after it was sent. In his response, he disputed portions of Tobias’s summary of their meeting and stated that he would be sending Tobias a formal complaint against Connolly and Morgenthal.
A few days later, on November 2, Connolly emailed Amini regarding Amini’s request to allow him to change the date of his second Palpation midterm. Connolly noted that the University accommodated his request to change his small group assignment due to his difficulties with Cheng, and said that it would grant his request to take his second midterm on the same date as his original small group. Amini responded with an angry email, disputing that he requested to change his small group, complaining that Connolly and Tobias had not yet resolved his “grade complaint issue,” and stating that he was going to file a federal lawsuit against her and the University “for discrimination, racial bias, and unfair and prejudicial academic practices against foreign student [sic].”
Tobias completed his investigation and submitted his written report to Schultz on November 5. In his report, Tobias addressed all of Amini’s assertions set forth in the documents he submitted to Tobias. Tobias found that (1) “Connolly and her lab instructors provided a fair, content-appropriate and unbiased evaluation of students’ performances during the Palpation I midterm . . . with the exception of the extra hints provided to two students by [one of the examiners] on the weight-bearing SI series”; (2) “Connolly and her lab instructors made every appropriate effort to inform students in advance of the midterm of its content[,] scope and style of evaluation”; and (3) Connolly and Morgenthal “made appropriate efforts after the midterm to provide feedback to students on their performance and to arrange extra help for students who performed poorly.” He concluded that there was “no basis for Mr. Amini’s allegation that his evaluation by Dr. Cheng during his Palpation I midterm was biased in any way, including but not limited to any claim of racial bias.” He recommended that Amini be informed of the outcome of the investigation and encouraged to accept his midterm evaluation as a true assessment of his performance on that day. He also recommended that Connolly consider re-scoring the exams of those students who were asked to identify the weight-bearing series and did not receive hints from their examiners (noting that Amini would be one of those students).
After receiving Tobias’s report, Schultz prepared a memorandum to Amini addressing his complaint. He explained that he spent considerable time reviewing Tobias’s report and the supporting documents, and concluded that Amini’s allegations of bias were unsupported. Before that memorandum was sent, however, Amini took his second Palpation I midterm. This time, his exam was graded by defendant Dr. Rocky Comberiati. Comberiati deducted six points from Amini’s score because Amini did not properly perform parts of two procedures. Amini received a “B” grade for the midterm as a result of those deductions.
Amini learned of his grade in the second midterm on November 15, and learned that his exam partner, Christina Johnson, received a higher grade. Later that day he saw Johnson, who was standing at her locker with another student, Ginger Austin, and angrily confronted her, demanding to know what he did wrong during the exam. During the confrontation, Amini repeatedly called Connolly a racist and threatened to subpoena Johnson. The two women left when Amini made or received a call on his cell phone, and went to another building to check on their grades. While they were there, Amini approached them again, yelling that Connelly was racist. These encounters frightened Austin, who filed an incident report against Amini that same day, describing the confrontation as “violent.”
We note that Amini submitted a declaration from Johnson that downplayed the incident and stated that Amini did not raise his voice during his conversation with her. Defendants submitted a subsequent declaration from Johnson in which Johnson explained that she signed her earlier declaration because of threats made by a paralegal representing Amini, who filed a defamation lawsuit against her and threatened to garnish her wages unless she signed the declaration. Although the trial court imposed sanctions against Amini and his counsel for intimidating and tampering with witnesses (among other discovery abuses), it did not consider the subsequent declaration because it was submitted with the reply in support of the summary judgment motion. We are bound by the trial court’s ruling, and therefore do not consider Johnson’s account of her November 15 encounter with Amini as set forth in her later declaration. Instead, we base our description of that encounter on the incident report Austin filed with the University, since the University relied in part upon that report in making its decision to suspend Amini.
Shortly after his confrontation with Johnson, Amini walked into Phillips’s office, interrupting a closed cabinet meeting, and began yelling at the participants (one of whom was Schultz). He accused the school of racism and said he was going to sue. When he finished his tirade, he walked out, slamming the door behind him. One of the participants in the meeting filed an incident report against Amini on her own behalf and on behalf of another participant, who was frightened by Amini’s behavior. Later that same night, Amini sent an angry email to Phillips, stating that “[f]or the second time, my midterm mark has been manipulated by Dr Connolly and her staff.” He told Phillips, “I will do everything in my power, as long as it takes and at any cost, to put a stop to your current policy through any legal process available and I personally hold you legally responsible for the conduct of Dr Connolly’s conduct [sic]. I’ll make sure that everyone in this state and in this country will know about what took place in your collage [sic] and your support of discriminatory conduct by Dr Connolly. [¶] Dr Phillips, you are a man with no dignity, integrity or decency. I have never met anyone as vain as you are. For a Mormon, you are shame to your religion and the Mormon Church. Shame on you and what you stand for.”
When Schultz learned of Amini’s confrontation with Austin and Johnson, he made the decision to immediately suspend Amini based upon that incident and the incident in which Amini interrupted the cabinet meeting. He drafted a memorandum to Amini, informing him of his suspension based upon those two incidents, which Schultz said raised concerns for the safety of the students, faculty, and facilities. Schultz told Amini in that memorandum that he was not to come on campus or contact any student, staff, faculty, or administrator other than Schultz or Roger Scranton, the Assistant Dean of Student Affairs.
On November 16, Scranton attempted to locate Amini to give him Schultz’s memorandum and escort him off campus grounds, but Amini did not attend his classes that day. Amini learned that Scranton was looking for him, and called him that afternoon. Scranton told Amini that he had a letter (Schultz’s memorandum) he needed to give him, and asked Amini to come to his office to pick it up. Amini told him he was too distraught to come to the campus, so Scranton asked for Amini’s current address so he could mail it to him. Amini gave Scranton his address, and Amini received Schultz’s memorandum the following day, on November 17.
Schultz began his investigation of Austin’s incident report by meeting with Austin and Johnson on November 19 to discuss their encounter with Amini. Although the University Code of Ethics states that a suspended student shall be given a hearing regarding the immediate suspension within 10 calendar days of the commencement of the suspension (unless essential witnesses are unavailable within that time frame), it appears that no one from the University attempted to contact Amini to arrange a hearing or interview him regarding the incidents that led to his suspension until November 30. On that day, Schultz sent a memorandum to Amini at the address Amini had given Scranton on November 16, asking Amini to contact him to schedule an appointment for Schultz to interview Amini regarding the allegations against him.
We note that Thanksgiving was on November 25 in 2004, nine days after Amini was suspended.
On November 18, Amini’s attorney, Lawrence B. Trygstad, sent Scranton a letter stating that he had received a copy of Schultz’s November 16 memorandum to Amini. He said he intended to represent Amini at any Judicial Board hearing, and he requested copies of the procedures to be followed at the hearing and all documents and reports regarding any investigation the University conducted regarding Amini’s suspension. We note, however, that the University Code of Ethics, which is set forth in the Student Handbook, states that individuals “may not be represented by legal counsel in any University conduct proceeding.” Although it does not appear that the University expressly told him about this restriction, Trygstad had told Schultz in a November 11 letter that he had reviewed the Student Handbook.
Also on November 30, Trygstad, Amini’s attorney, sent a letter to the University’s attorney to advise him of Amini’s “settlement demands.” In that letter, Trygstad quoted from the “Immediate Suspension” section of the Code of Ethics in the Student Handbook regarding the timeframe for a hearing, and noted that Amini had been suspended for more than 11 calendar days at that time. He said that Amini intended to seek all “legal and equitable remedies” for his injuries, which included “emotional, psychological, and mental injuries,” and demanded $1,000,000 to compensate Amini for his present and future damages. He also enclosed a report by a psychologist who recently examined Amini. That report by Dr. Ronald F. Hilding, which is dated November 22, 2004, states that Hilding met with Amini in Phoenix, Arizona, on November 19, 20, and 22. Hilding found that Amini “requires immediate acute and ongoing treatment” and concluded that “there is no way that [Amini] could adequately represent himself at the Judicial Board Hearing.”
The University did not respond to Trygstad’s letter. Instead, Schultz continued to send memoranda to Amini at his local address, asking Amini to contact him to arrange a time to meet with him for an interview. On December 8, Tobias emailed Schultz to ask about Amini’s status, and to ask what should be done with regard to his first term grades. Schulz told Tobias that he had been attempting to contact Amini to arrange an interview, but had not heard back from him. He noted that he was going to set a hearing date in early January if he did not hear from Amini by Christmas. He suggested that Amini be given “incompletes” in his classes, which would convert to “F’s” if Amini did not appear at the hearing.
On January 15, 2005, Schultz sent a memorandum to Scranton reporting on his investigation of the two November 15 incidents. He noted that he had tried to contact Amini at his local address, but had not received any communication from him. On January 24, Trygstad wrote to the University’s attorney that Amini had received notices to pick up certified mail from the University. Trygstad complained that the University was sending notices to Amini’s California address despite Trygstad’s request to the University to direct all communications to his office. The next day, Scranton sent a letter to Amini at his local address, informing him that a hearing before the Student Judicial Board would take place on February 4, 2005, to address the incident reports against him. Scranton told Amini that his attendance at the hearing was strongly advised, although not mandatory, and that legal counsel or advisors would not be allowed into the hearing. Amini did not attend the hearing.
Trygstad made his request in a letter sent November 11. However, when Amini interrupted the President’s cabinet meeting on November 15, he told the participants (including Schultz) to ignore his attorney’s letter.
The decision of the Student Judicial Board was sent to Amini at his local address on February 11. After reviewing the incident report filed by Austin and Schultz’s letter regarding the events he witnessed, the Board concluded that Amini’s actions “resulted in concern for the personal safety of [his] fellow students, the faculty, and administration” of the University. The Board recommended that Amini be permanently dismissed. On February 17, however, Schultz sent a memorandum to Amini informing him that he had chosen to impose a sanction of remediation rather than dismissal.
PROCEDURAL BACKGROUND
Amini filed the instant lawsuit on December 14, 2004 -- prior to the hearing before the Student Judicial Board (in fact, before the hearing was even scheduled). The original complaint is not in the record on appeal, but the first amended complaint (which was filed on Jan. 26, 2005), alleges nine causes of action, for breach of contract, discrimination, retaliation, intentional and negligent infliction of emotional distress, and violation of due process.
Defendants moved for summary judgment or, in the alternative, summary adjudication. They argued that the undisputed evidence showed that Amini’s grades on the Palpation I midterms were the result of his own performance on the exams and not the result of any discrimination, that the University properly investigated Amini’s claims of discrimination, that the University properly handled Amini’s suspension, and that the University could not be held liable for violating Amini’s due process rights because it is not a public entity.
The trial court granted summary judgment to defendants. The court found there was no admissible evidence that Amini’s grades in the Palpation I midterms were motivated by discriminatory animus, or that the University’s investigation into Amini’s complaint resulted in discriminatory action being taken against him. The court also found that the University properly investigated Amini’s complaint and reasonably concluded there was insufficient evidence to support his claim of discrimination, and that the University suspended Amini due to concerns about his conduct and the need to protect the students and staff. Finally, the court found that Amini was not injured by any breach by the University of any duty owed to Amini regarding holding a hearing on his suspension because Amini made clear that he did not intend to return to school due to his emotional upset caused by his perception of discrimination.
Amini timely filed a notice of appeal from the judgment.
DISCUSSION
On appeal, Amini first contends the motion for summary judgment/summary adjudication was improperly granted because it was procedurally defective. He next contends there were disputed issues of material fact regarding whether defendants discriminated against him by (1) not testing and grading him fairly; (2) not complying with their procedure for investigating his complaint of discrimination; (3) falsely accusing him of behaving unprofessionally in order to suspend him; and (4) denying him a hearing after his suspension in violation of University policy. Finally, he contends there were disputed issues of material fact regarding whether defendants retaliated against him and breached their contract with him by (1) failing to hold a hearing on his suspension within 10 days; (2) sending notices regarding his suspension to an invalid address; and (3) failing to process his complaints of discrimination in accordance with the procedures set forth in the Student Handbook. None of his contentions prevails.
A. Standard for Summary Judgment
The standard for summary judgment motions is well established. A defendant moving for summary judgment must present evidence that one or more elements of the plaintiff’s claim cannot be established or that there is a complete defense to the claim. If the defendant meets that burden of production, the burden shifts to plaintiff to show that a triable issue of material fact exists as to that claim or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The plaintiff shows that a triable issue of material fact exists by pointing to evidence that would allow a reasonable trier of fact to find that fact in favor of the plaintiff. (Ibid.) On appeal from a summary judgment, we apply a de novo standard of review. “[T]he issue on appellate review is simply whether, and to what extent, the evidence submitted for and against the motion for summary judgment discloses issues warranting a trial.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7.)
B. The Alleged Procedural Defects Do Not Preclude Summary Judgment
As he did in the trial court, Amini contends on appeal that defendants’ motion was defective because it did not comply with former rule 342 of the California Rules of Court (currently, rule 3.1350), which includes format requirements for the separate statement of undisputed material facts. Amini also contends that summary judgment was improper because defendants’ motion did not address all of the causes of action alleged in the complaint. Amini’s first contention does not warrant reversal, and his second contention is incorrect.
In their notice of motion, defendants explained that all of Amini’s causes of action arise from one or more of four claims: (1) that he was discriminated against (all nine causes of action); (2) that the University did not properly follow University procedures in the handling of his discrimination claim (the first, sixth, and seventh causes of action); (3) that the University did not properly follow University procedures in the handling of his suspension (the first, sixth, and seventh causes of action); and (4) that the University denied him due process (the ninth cause of action). Defendants stated they were entitled to judgment on each of the causes of action because there was no merit to any of the four claims upon which the causes of action are based. In their separate statement, defendants stated each of the four claims (albeit not verbatim from their notice of motion) and set forth the relevant material facts and supporting evidence under each claim. Thus, Amini’s assertion that defendants’ motion did not address all of the causes of action is simply wrong.
We note that Amini made this assertion in his opposition to defendants’ motion, and purported to address only the discrimination causes of action in his brief. At the initial hearing on the motion, Amini’s counsel disagreed with the trial court’s finding that defendants’ motion addressed all of the causes of action, and argued that Amini would have submitted a different opposition had counsel believed the motion was addressed to all of the causes of action. The trial court gave Amini an opportunity to file a supplemental brief on the causes of action he did not address, and held another hearing on the motion, at which it granted the motion.
Amini is correct that defendants’ separate statement did not comply with the requirement that when “summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, former rule 342(b) [currently rule 3.1350(b)].) But that defect did not require the trial court to deny defendants’ motion. The purpose of the separate statement is “to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) There is no question that defendants’ separate statement gave Amini notice of the 14 facts that defendants asserted were undisputed, and identified the claims to which each of those facts related. Moreover, the notice of motion clearly stated how the four claims related to each cause of action alleged in the first amended complaint. Because defendants’ papers gave Amini notice of the facts at issue, the trial court had the discretion to overlook the relatively minor defect in defendants’ separate statement and rule on the merits of their motion. (Id. at p. 1212.)
C. There Was No Admissible Evidence To Show Discrimination
The second, third, fourth, and fifth causes of action of the first amended complaint allege that defendants discriminated against Amini on the basis of race when they graded him in the Palpation I midterms. Regardless of the statute under which Amini asserts discrimination causes of action -- Title 42 United States Code sections 1981 or 2000d (the second and fourth causes of action), the Unruh Civil Rights Act (Civ. Code, § 51)(the third cause of action), or California Education Code sections 200 et seq., 66252, 66030 (the fifth cause of action) – he cannot prevail unless he can establish that he was treated differently than others because of his race or national origin. (See, e.g., General Bldg. Contractors Assn. v. Pennsylvania (1982) 458 U.S. 375, 395 [discrimination under 42 U.S.C. § 1981]; Alexander v. Choate (1985) 469 U.S. 287, 292-293 [discrimination under 42 U.S.C. § 2000d]; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1163, 1172, 1175 [discrimination under the Unruh Civil Rights Act].)
The third, fourth, and fifth causes of action also allege that defendants discriminated against Amini by failing to follow the proper procedures in investigating his complaints of discrimination. We need not address that aspect of the discrimination causes of action, however, because as we discuss in section E., post, the undisputed evidence establishes that defendants did follow the proper procedures.
In moving for summary judgment, defendants presented evidence that Amini’s grades on his Palpation I midterms were the result of deductions taken due Amini’s failure to properly identify the elements of the weight bearing SI joint series and his failure to properly perform certain chiropractic techniques. They argued that this evidence established that defendants did not discriminate against Amini when awarding his Palpation I grades.
Amini did not dispute that he answered incorrectly the question regarding the elements of the weight bearing series and that he failed to properly perform some of the techniques. Instead, he asserted that he was treated differently than other students during the first Palpation I midterm because some students were given hints by examiners (other than Cheng) and because Cheng used her hand to verify whether he correctly located requested landmarks during the exam but did not do so with his partner. He asserted that this different treatment was motivated by discrimination. Although he did not assert he was treated differently during his second Palpation I midterm, he stated he believes he received grades that were not reflective of his performance due to discrimination by Cheng, Connolly, and Morgenthal (none of whom was the examiner on that midterm).
We need not address his assertion that he was treated differently, because even assuming he presented sufficient evidence to show a triable issue of fact regarding his treatment, he did not do so with regard to defendants’ motivation.
The only evidence Amini presented to show defendants’ alleged discriminatory motivation was his account of the two comments Cheng made during the first two weeks of classes -- when she said that Arabian and Persian were “the same thing” and when she told Amini’s classroom partner that he should find another partner -- and his subjective belief that Cheng and the other defendants were racially biased. But Cheng’s comments must be considered in the context of the circumstances in which they were made. By Amini’s own account, the first comment was made in the context of specifying ethnicity for the purposes of the blood glucose test being conducted on the class, and the second comment was made after Amini’s partner told Cheng that Amini was not relaxing his head to allow his partner to locate a point on Amini’s spine. No reasonable trier of fact could infer from Cheng’s two comments under those circumstance that Cheng had any racial bias against Amini (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850), and Amini’s subjective belief that Cheng and the other defendants were biased is not evidence of discriminatory motivation (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433). Therefore, the trial court properly found that defendants were entitled to summary judgment on Amini’s discrimination claims.
We note that, in addition to the discrimination alleged in the complaint, Amini argued in opposition to the summary judgment motion (and argues here) that defendants also discriminated against him by falsely accusing him of behaving unprofessionally in order to suspend him and by denying him a hearing after his suspension. Those arguments fail for the same reason his assertion of discrimination in grading fails: He presented no evidence from which a reasonable trier of fact could infer that any of the defendants had discriminatory animus.
D. Amini’s Contention Regarding His Purported Retaliation Claim
Amini contends on appeal that there were disputed issues of material fact regarding whether defendants retaliated against him in violation of the Unruh Civil Rights Act for filing a complaint of discrimination with the University. Amini first made this contention in his supplemental brief in opposition to defendants’ motion following the initial hearing on the motion. There was no such cause of action alleged in the operative complaint. The only retaliation claim in the complaint was set forth in the eighth cause of action, which referred to Title 42 United States Code section 2000d et seq. and California Education Code section 94367 and alleged that defendants retaliated against Amini by suspending him based on comments he made to classmates. Amini makes no argument regarding this cause of action on appeal. Because our review “‘is limited to addressing those issues or theories of liability raised in plaintiff’s complaint,’” we decline to address Amini’s contention regarding retaliation. (Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal.App.3d 1608, 1613.)
E. The Undisputed Evidence Shows That The University Followed Its Procedure To Investigate Amini’s Complaint
Several of the causes of action Amini alleged are based in part on his assertion that defendants failed to properly investigate his discrimination claims. In their summary judgment motion, defendants presented evidence to show that the University fully complied with its review process in investigating Amini’s complaint.
First, defendants submitted evidence of the University’s review process. That evidence included deposition testimony by Scranton, the Assistant Dean of Student Affairs, describing the process: When an incident report is filed, an investigator is assigned. The investigator submits a written report of his or her findings to the Vice President of Academic Affairs. If the Vice President decides there is not enough evidence to proceed further, he or she will send a letter to the complainant with his or her conclusions. If the Vice President finds there is sufficient evidence, the matter proceeds to a hearing before the Student Judicial Board or an individual hearing officer, at which point the responding party will receive the incident report and the investigation report.
We note that there are some minor differences between the procedure described above and the procedure described in the Student Handbook, which sets forth the procedure for incident reports filed against a student. For example, in the latter procedure, the investigator makes a recommendation whether to sanction the student and if the Vice President approves the sanction, the student is given the option to accept it or have the matter heard before the Student Judicial Board.
Next, defendants submitted evidence that an investigation was conducted and a report was submitted to the Vice President. That evidence showed that after Amini submitted his discrimination complaint on October 11, Tobias, Dean of Pre-Clinical Education, investigated the incident by, among other things, speaking with Amini, Morgenthal, Connolly, all of the instructors who presided over the Palpation I first midterm, and a palpation mentor who had tutored Amini. Tobias also asked Cheng’s supervisor in the Biochemistry laboratory to speak with Cheng and Amini about the comment Cheng allegedly made during the first week of class and report back to him. Although Tobias’s investigation was delayed for a week because Connolly was out of town until October 18, he completed his investigation and submitted his report to Schultz, the Vice President of Academic Affairs, less than three weeks after Connolly returned. Tobias concluded that there was no basis for Amini’s allegation that Cheng’s evaluation was biased in any way.
Finally, defendants produced evidence that the Vice President concluded there was not enough evidence to proceed further and was in the process of preparing a written report to Amini of his conclusions when Amini was suspended for the November 15 incidents.
Amini’s response to defendants’ separate statement of material facts did not truly dispute defendants’ facts. Instead, Amini set forth numerous facts regarding issues that were irrelevant to the question whether defendants properly followed the University’s procedure for investigating complaints. For example, he cited to evidence (primarily his own declaration) that no one told him the purpose of the October 19 meeting he had with Tobias, Connolly, and Morgenthal, and that the focus of the meeting was on the Palpation I midterm rather than Cheng’s comments. He also cited to evidence that the entire Chiropractic Procedures Department met on October 26 to discuss Amini’s complaint, and that Schultz told everyone there that they needed to call security immediately if Amini’s behavior became threatening or violent.
The evidence Amini cites shows that Schultz made this comment after some faculty members expressed some concern about Amini’s behavior.
In addition to that evidence, Amini makes much of the fact that he did not receive any written report from Connolly, Morgenthal, or Tobias on the results of the investigation, and the fact that his complaint was not resolved in the five weeks between its filing and his suspension, while an incident report filed by Cheng against him was investigated and resolved within 24 hours. Those facts do not, however, raise a triable issue regarding whether defendants properly followed the procedure for investigating Amini’s discrimination complaint.
First, Amini was not entitled to receive a written report from Connolly, Morgenthal, or Tobias. The only written report required to be given to Amini under the University’s investigation and review process was Schultz’s report stating his conclusion that Amini’s allegations of bias were not supported. The undisputed evidence shows that Schultz had prepared his report to give to Amini, but Amini was suspended before he sent it.
Second, the speed of the investigation of Cheng’s incident report compared to the speed of the investigation into Amini’s complaint is irrelevant to whether the University followed its procedures in reviewing Amini’s complaint. In her incident report, Cheng complained that Amini was conducting a public slander campaign against her, and she stated that she feared for her safety because of Amini’s hostile attitude toward her. Given her expressed concern for her safety, it is not surprising that Schultz directed Tobias to interview Cheng as quickly as possible to determine whether safety measures needed to be imposed. After interviewing Cheng, Tobias concluded that nothing needed to be done. Tobias reported his conclusions to Schultz, and no further action was taken on the incident report. Moreover, there is no evidence that Cheng’s incident report, or the investigation of it, had any effect on the investigation of Amini’s complaint. That Cheng’s complaint, which involved only two people (Cheng and Amini) and expressed safety concerns, was resolved more quickly than Amini’s complaint, which involved many people and multiple claims, proves nothing about defendants’ compliance with the review process.
In short, the undisputed evidence shows that defendants properly followed the University’s procedures for investigating and resolving Amini’s discrimination complaint.
F. To The Extent The University Did Not Follow Proper Procedures After Amini Was Suspended, The Undisputed Evidence Shows That Amini Was Not Injured
Amini alleged that defendants breached their contract with him, intentionally and negligently inflicted emotional distress on him, and violated his right to due process by suspending him without following proper procedures.
In moving for summary judgment, defendants presented evidence to show they followed the University’s suspension procedures to the extent they were able to do so. That evidence included the portion of the Student Handbook regarding immediate suspensions. It provides that the University may immediately suspend a student “whenever it is determined such action is required in order to protect well being or property or to insure the maintenance of order,” and that the suspended student “shall be afforded an opportunity for a hearing with respect to the immediate suspension, normally within two (2) working days of the suspension, but in any event, not later, than ten (10) calendar days of the commencement of the suspension, unless essential witnesses are unavailable within this time frame.”
Defendants’ evidence also included Schultz’s report to Scranton on his investigation of the incidents that led to Amini’s suspension. Schultz reported that he made the decision to immediately suspend Amini based upon Amini’s conduct in interrupting the President’s cabinet meeting on November 15 (an incident to which Schultz was a witness), and Austin’s report of Amini’s encounter with her that same day (which was relayed to Schultz by Scranton that same evening). Schultz stated that Scranton expressed concern for student safety and, based upon Scranton’s concerns and his own observation of Amini, Schultz suspended Amini pending investigation of the incidents. Schultz also reported that he interviewed Austin and Johnson two days after Amini received notification of his suspension, but he was unable to interview Amini because Amini did not provide a proper address in California. Schultz also testified at his deposition that the hearing on the suspension could not go forward immediately because Schultz and Scranton could not locate Amini, who was a necessary witness.
In opposition to defendants’ motion, Amini presented his own account of his interaction with Johnson and Austin, asserting that he spoke to Johnson in a non-threatening tone. He based his account on Johnson’s declaration, in which she stated that Amini did not raise his voice during that conversation. He did not, however, present any evidence to dispute Schultz’s statement that Schultz based his decision to immediately suspend Amini on Austin’s report of the interaction, or that Schultz had any reason to believe that Austin’s report was inaccurate, especially in light of Schultz’s own observation of Amini shortly after that interaction. Thus, the undisputed evidence showed that Schultz believed in good faith that Amini’s suspension was necessary to protect the students and staff.
See footnote 4, ante.
Amini did, however, present evidence from which a reasonable trier of fact could conclude that defendants did not properly follow the University’s procedures after he was suspended because they did not give him actual notice of the hearing on his suspension. He presented evidence that the University received notice that Amini had left California and was living in Phoenix, Arizona, but that defendants sent all notices to his address in California. He also showed that documents in his University records listed his permanent address in Phoenix and his telephone number, and presented evidence that neither Schultz nor Scranton attempted to send notices to his Phoenix address or to telephone him despite a provision in the Student Handbook that the University was to contact the student by telephone if the student could not be reached by mail.
But Amini’s apparent success in raising a disputed issue as to whether defendants followed proper procedure after they suspended him does not defeat summary judgment. As the trial court found, Amini’s own evidence shows that defendant’s alleged failure to follow proper procedures to contact Amini did not cause any injury to him. The evidence shows that Amini left California for Arizona on November 19, two days after he received notice of his suspension, and immediately came under the care of a psychiatrist. By November 22, his psychiatrist concluded that he required immediate acute and ongoing treatment and that he was “mentally paralyzed and unable to function normally.” The psychiatrist also opined that Amini was at that time unable to represent himself at any hearing. Three weeks later, Amini filed the instant lawsuit.
As we note in footnote 6, ante, the University Code of Ethics does not allow a student to be represented by legal counsel at any University conduct proceeding.
In short, the evidence shows that even if defendants had properly contacted Amini and scheduled a hearing within 10 days of his suspension, the hearing could not have gone forward due to Amini’s inability to participate because he was so emotionally upset. Moreover, Amini made it clear that he did not intend to resolve his suspension through the hearing process, and instead filed a lawsuit. Thus, the trial court properly found that Amini was not injured by the failure to hold a timely hearing on his suspension.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.
The second comment was made the following week during Palpation I class. Amini was lying on the bench while his partner tried to locate a point on his spine. The partner was having difficulty, and asked Cheng for assistance. Cheng told the partner to lift Amini’s head. The partner told Cheng that Amini was not relaxing his head, so Cheng told the partner that he “should find another partner because [Amini is] not cooperating.” Amini thought that this comment also was inappropriate. His wife, however, advised him that the two comments did not warrant filing a complaint with the administration at that time.