Filed 7/29/16 Naghash v. Board of Trustees CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



ASHLEY M. NAGHASH,                                                                         C075207

                   Plaintiff and Appellant,                                        (Super. Ct.
                                                                         No. 34201100113923CUPOGDS)
         v.

BOARD OF TRUSTEES et al.,

                   Defendants and Respondents.




         Plaintiff, a student at defendant California State University, Sacramento (CSUS),
was allegedly raped by defendant Terry Richards, also a CSUS student, in a CSUS
dormitory. Plaintiff commenced this action to recover damages against, among others,
CSUS, the Board of Trustees of the California State University, the State of California,
the California State University, Alexander Gonzalez, then president of CSUS, and
Michael Speros (collectively, the University defendants).
         Plaintiff appeals from a judgment of dismissal entered by the trial court upon
sustaining the University defendants’ demurrer to the second amended complaint without
leave to amend. Plaintiff asserts, among other things, that the trial court erred in

                                                             1
concluding that her second amended complaint failed to state a cause of action in tort and
in contract insofar as asserted against the University defendants. We conclude that the
trial court correctly determined that none of the causes of action asserted against the
University defendants in the second amended complaint state a cause of action. We
further conclude that there is no reasonable possibility plaintiff could cure the defects by
further amendment.
        We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
                           Factual Allegations in the Complaint
        Plaintiff was a student attending CSUS. In or about August 2010, she entered into
a residency agreement with CSUS to live in the Draper Hall residence hall. However, on
or about November 22, 2010, plaintiff, by her attorney, sent a notice of termination of the
residency agreement. Plaintiff stated that, since she entered into the residency agreement,
there had been approximately five instances of sexual assault and rape in and around the
CSUS residence halls. By letter dated December 6, 2010, Speros, “director of Housing
and Residential Life at CSU[S],” rejected plaintiff’s notice of termination.
        Days later, at approximately 10:30 p.m. on December 9, 2010, plaintiff went to the
dormitory room of defendant Ariel Campbell in American River Hall, and brought with
her a bottle of vodka. Campbell had several bottles of alcohol in her dorm room.
Plaintiff and Campbell began drinking alcoholic beverages. Campbell contacted
defendant Menard1 and asked him to bring lime to Campbell’s room, which he did.
Menard began drinking with plaintiff and Campbell. Defendant Win Chen subsequently
arrived at Campbell’s room. Menard and Chen invited plaintiff and Campbell to go to
their residence in American River Hall, which they shared with Richards, for drinks and




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

                                              2
dinner. Although plaintiff did not know Menard, Chen, or Richards, she and Campbell
agreed.
       Upon arriving at the residence where Menard, Chen, and Richards resided as
roommates, Menard began giving shots to plaintiff and Campbell. As the evening
continued, Richards began pouring additional drinks for plaintiff, insisting that she drink
them. Richards continued providing drinks to plaintiff, even as she insisted that she did
not want any more. Plaintiff became highly intoxicated and unable to walk.
       In the early morning hours of December 10, 2010, Campbell and Menard went
into Menard’s room, and Chen went into his room. At this time, according to plaintiff,
Richards grabbed her around the waist, walked her into his room, and began taking off
her clothes despite her protests. Richards then sexually assaulted and raped plaintiff.
After some time, Campbell came to Richards’s room, knocked on the door, and escorted
plaintiff back to Campbell’s room.
       At approximately 10:30 a.m., plaintiff returned to her room in Draper Hall. On the
same day, she called campus security and filed a formal complaint. However, plaintiff
claimed that “Sac State’s security”2 delayed taking her to the hospital for a sexual assault
examination until the morning of December 11, 2010. Additionally, according to
plaintiff, Richards was notified of the complaint against him, and he fled to his mother’s
home in San Francisco. Thereafter, Sac State’s security conducted a phone interview
with Richards, during which he was coached by his mother. Also according to plaintiff,
Sac State’s security contaminated the scene of the assault in conducting its investigation.
Plaintiff claimed that, “[d]ue to [CSUS]’s failure to effectively process the evidence at




2 We understand plaintiff’s references to “Sac State’s security” in her complaint to mean
the Sacramento State Police Department (<http://www.csus.edu/aba/police/index.html>
[as of July 29, 2016]). (See Ed. Code, § 89560.) Nevertheless, we shall use the term
plaintiff used in her complaint.

                                             3
the crime scene and refrain from contaminating evidence and refusal to conduct an
effective and unbiased interview with witnesses, the Sacramento County District
Attorney’s Office refused to prosecute Defendants for their criminal acts.”
                                The 11 Causes of Action
       Plaintiff commenced this action by complaint filed November 14, 2011, asserting
11 causes of action. She claimed that, as a result of Richards’s sexual assault, enabled by
the other defendants, she sustained bodily injuries and mental anguish.
       In the first cause of action, to recover damages for breach of contract, breach of
the implied warranty of habitability, and breach of the implied warranty of good faith and
fair dealing, plaintiff asserted that CSUS breached its contract with her by, among other
things, failing to provide safe and secure housing, failing to prevent underage drinking on
campus, and failing to enforce its own policies and procedures.
       In the second cause of action, to recover damages for sexual assault and battery,
plaintiff asserted that CSUS willfully “facilitated, assisted, and encouraged [d]efendants
to sexually assault and rape” her by refusing to enforce its own policies and procedures,
failing to provide adequate security, and taking action which prevented the prosecution of
criminal activities. Plaintiff maintained that CSUS deliberately and willfully conducted
investigations of criminal complaints in such a manner as to conceal evidence of crime so
as to reduce crime statistics and maintain its reputation within the community. She
further claimed that, since August 2010, there had been no fewer than seven sexual
assaults and rapes on the CSUS campus. However, during that time, no individual had
been charged or prosecuted.
       In the third cause of action, to recover damages for willful creation of a dangerous
premises condition, premises liability, and negligence, plaintiff asserted that CSUS
breached its duties to her to provide safe and secure housing and to prevent Richards
from sexually assaulting and raping her.



                                             4
       The fourth cause of action, to recover damages for negligence and willful refusal
and failure to enforce policies and procedures, essentially duplicated the factual
allegations set forth in prior causes of action.
       In the fifth cause of action, plaintiff sought damages for intentional infliction of
emotional distress. Plaintiff reiterated her factual allegations, and asserted that
defendants’ conduct was intentional and outrageous, and that defendants acted with the
intent to harm her or with reckless disregard for her safety and well-being.
       In the sixth cause of action, to recover damages for intentional misrepresentation
and concealment, plaintiff alleged that CSUS intentionally misrepresented the safety of
its facilities and concealed the fact that major crimes had occurred on campus. Plaintiff
claimed that her reliance on defendants’ misrepresentations was reasonable.
       In the seventh cause of action, to recover damages for negligence and willful
refusal to provide adequate security, plaintiff alleged that CSUS had actual and
constructive notice that its security was inadequate, and that underage drinking was
occurring on campus despite its policies against such conduct. Plaintiff further alleged
that defendants acted with the intent to harm her or with reckless disregard for her safety.
       In the eighth cause of action, to recover damages for negligence and facilitating
and encouraging sexual assault and rape, plaintiff alleged that CSUS facilitated, assisted,
and encouraged Richards to rape her by willfully refusing to enforce its own policies and
procedures, including encouraging underage drinking, and by failing to conduct a
competent investigation. Plaintiff again alleged that defendants acted willfully, or with
reckless disregard for her safety. She further alleged that defendants’ conduct was
outrageous, and that CSUS had actual and constructive knowledge of the inadequacy of
its security.
       In the ninth (negligence, negligence per se, res ipsa loquitur), tenth (negligence
and willful refusal to properly investigate and prosecute), and eleventh (negligence and



                                               5
willful refusal to provide secure housing) causes of action, plaintiff largely duplicated her
prior factual allegations.
                             The University Defendants’ Demurrer
       The University defendants demurred to the plaintiff’s complaint. The University
defendants asserted that the complaint failed to allege a legal duty they owed to plaintiff;
that the complaint failed to identify a statutory basis for public entity liability; that the
complaint failed to allege a viable claim for injury caused by a dangerous condition on
public property; that, pursuant to Government Code section 845,3 they were immune
from liability for failure to provide police protection services; that they were not
vicariously liable for the wrongdoing of students; that the complaint failed to state a
viable claim for breach of contract; and that, pursuant to Business and Professions Code
section 25602, they were immune from liability grounded on allegations of their failure to
prevent underage drinking on campus.
       In their memorandum of points and authorities, the University defendants asserted
that well established case law provided that university officials do not guarantee the
safety of students, and do not owe a general duty to protect students from the criminal
wrongdoing of third parties. The University defendants noted that plaintiff did not allege
that they had any specific information suggesting that she was the target of any
particularized threat of harm. They also observed that plaintiff did not allege a physical
defect on public property, or that they breached a mandatory statutory duty. The
University defendants asserted that, because they owed plaintiff no general duty to
protect, all claims based upon the existence of such a duty were fatally defective.
       With regard to the duty to warn, the University defendants argued that, generally,
a defendant will only have a duty to warn, or control the conduct of a third party, where



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

                                                6
there is a special relationship between the defendant and the plaintiff, or between the
defendant and the third party. The University defendants noted that plaintiff alleged
neither that they had information about a particular potential assailant which they should
have disclosed to her, nor that they had knowledge of a specific threat by her assailant
against her. The University defendants asserted that plaintiff’s causes of action insofar as
asserted against them were barred under case law providing that neither a university nor
its employees may be vicariously liable for the torts of its students.
       As for plaintiff’s breach of contract cause of action, the University defendants
asserted that case law rejected the premise that a college dormitory license agreement
created the type of dependent relationship which could support liability against them for
the acts of third parties. The University defendants further asserted that, inasmuch as the
gravamen of plaintiff’s allegations sounded in tort, she could not avoid the consequences
of the Government Claims Act and its immunity provisions by pleading her claims as a
breach of contract. The University defendants further asserted that the complaint failed
to satisfy the specificity requirement for a breach of contract cause of action. In this
regard, the University defendants noted that the complaint failed to set forth the particular
terms of the contract, and plaintiff failed to attach and incorporate by reference a copy
thereof.
       Finally, as for plaintiff’s allegation that the University defendants permitted
consumption of alcohol on campus by underage students, citing Business and Professions
Code section 25602, subdivision (b), they asserted they could not be liable to plaintiff for
the injuries visited upon her by third parties.
                         Plaintiff’s Opposition to the Demurrer
       Plaintiff asserted that, contrary to the University defendants’ contentions, they
owed her a duty of care. Plaintiff relied on the duty a public entity may owe to members
of the public to maintain premises in a safe condition and to maintain premises in a
condition that will not give rise to a foreseeable risk that criminal activity will harm

                                                  7
others. Plaintiff also asserted that she stated causes of action for vicarious liability based
on the wrongful acts of Speros and Gonzalez, who, at all relevant times, were acting
within the scope of their employment.
       Plaintiff asserted specifically that the University defendants owed her a duty to:
(1) warn her “that they have given sanctuary to sexual predators on campus”; (2) provide
safe housing; (3) allow her to terminate her residency agreement; (4) provide alternative
accommodations; (5) take reasonable steps to maintain and supervise residence halls so
as to prevent criminal acts of third parties; (6) prevent underage drinking on campus; and
(7) refrain from selling alcohol on campus. Plaintiff claimed that the University
defendants breached these duties to her. She further asserted that they knew or should
have known of the particular risk of harm posed, and that their relationship to her as a
CSUS student gave rise to a duty of care. She asserted that children of a certain age
cannot be expected to exercise the discretion and judgment associated with full maturity.
Plaintiff also asserted that she successfully pleaded with the requisite particularity every
fact necessary to demonstrate governmental liability, including the existence of a
statutory duty. Plaintiff further claimed that she had alleged a viable claim for injuries
caused by a dangerous condition on public property pursuant to section 835.
       Plaintiff asserted that, unlike the cases on which the University defendants relied,
here, the University defendants placed plaintiff in a position of danger which contributed
to the harm she suffered. Plaintiff further asserted that the University defendants should
reasonably have anticipated that she would rely on them to protect her against that harm.
She claimed that the University defendants’ actions constituted willful and deliberate
malfeasance.
       Plaintiff asserted that section 845, which provides that public entities and
employees will not be liable for failure to establish a police department or provide
sufficient police protection, did not shield the University defendants from liability.
Plaintiff claimed that she had not alleged failure to provide police protection or failure to

                                              8
provide sufficient police protection. Rather, the gravamen of her complaint was that the
University defendants furnished sanctuary to sexual predators and encouraged underage
drinking “to promote [and] facilitate a party atmosphere for these sexual predators to
prowl around the campus and rape female students on campus,” and that the University
defendants breached their contractual obligations to her under the residency agreement.
         Finally, plaintiff asserted that, under Business and Professions Code section
25602.1, the University defendants could be subject to liability for furnishing alcohol on
campus.
                              The University Defendants’ Reply
         In reply, the University defendants asserted that plaintiff failed to allege that they
were in possession of any information which would trigger a duty owed to plaintiff.
They asserted that, where the avoidance of harm requires a defendant to control the
conduct of a third party, or to warn of such conduct, liability may be imposed only if the
defendant has a special relationship with that third party or with the potential victim.
Here, according to the University defendants, plaintiff failed to allege facts supporting a
duty owed to warn plaintiff, or that they had a special relationship with a dangerous third
party.
         The University defendants asserted that the law treats college students as adults,
and does not impose a duty of supervision on college officials. According to the
University defendants, well established case law rejected the precise sort of claims
asserted by plaintiff here.
         With regard to plaintiff’s claim of a dangerous condition on property, the
University defendants emphasized that plaintiff did not allege any physical defect related
to her alleged injuries.




                                                9
                    The Trial Court’s Ruling on the First Demurrer
       The trial court sustained the University defendants’ demurrer with leave to amend
on all causes of action pertaining to those defendants.4 The court noted, among other
things, that plaintiff failed to set forth the specific statutes pursuant to which she asserted
her tort claims as required under section 815. The court found the allegations of the
complaint strikingly similar to those in Tanja H. v. Regents of University of California
(1991) 228 Cal.App.3d 434 (Tanja H.), the case on which the University defendants
relied for the principle that a university is generally not liable for the consequences
resulting from the combination of college students and alcohol.
       The court concluded that plaintiff failed to allege facts sufficient to support a
breach of contract cause of action. The court noted that the complaint did not allege the
specific terms of the contract, and did not allege facts demonstrating a breach of those
terms. According to the court, plaintiff failed to allege facts supporting the claim that the
University defendants did not provide her with safe and secure housing.
                    Amended Complaints and Successive Demurrers
       Thereafter, plaintiff filed a first amended complaint. The University defendants
again demurred, and the trial court sustained the demurrer with leave to amend all but one
cause of action. Plaintiff filed a second amended complaint, amplifying her factual
allegations. The trial court again sustained the University defendants’ demurrer, with
leave to amend only as to the breach of contract cause of action.
                                          Judgment
       Thereafter, the trial court granted, as unopposed, the University defendants’
motion to dismiss the complaint due to plaintiff’s failure to timely file and serve a third



4 The court’s ruling did not involve the second cause of action, which asserted a claim
sounding in sexual assault and battery and was not asserted against the University
defendants.

                                              10
amended complaint. In a judgment dated September 25, 2013, the trial court ordered that
judgment of dismissal be entered in favor of the University defendants.

                                       DISCUSSION
                            I. Generally Applicable Principles
                                  A. Standards of Review
       “In reviewing a demurrer order, we independently evaluate the challenged
pleading, construing it liberally, giving it a reasonable interpretation, reading it as a
whole, and viewing its parts in context. [Citation.] We treat the demurrer as admitting
all material facts properly pleaded, but we do not assume the truth of contentions,
deductions or conclusions of law. [Citation.] We determine de novo whether the factual
allegations of the challenged pleading are adequate to state a cause of action under any
legal theory.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 51 (Allen).)
       The plaintiff bears the burden of demonstrating that the demurrer was sustained
erroneously. (Allen, supra, 234 Cal.App.4th at p. 52.) We will affirm the judgment if
proper on any grounds stated in the demurrer, whether or not the trial court acted on that
ground. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
       It is the responsibility of the appellant to support claims of error with meaningful
argument and citation to authority. (Allen, supra, 234 Cal.App.4th at p. 52; Cal. Rules of
Court, rule 8.204(a)(1)(B).) “When legal argument with citation to authority is not
furnished on a particular point, we may treat the point as forfeited and pass it without
consideration. [Citations.] In addition, citing cases without any discussion of their
application to the present case results in forfeiture. [Citations.] We are not required to
examine undeveloped claims or to supply arguments for the litigants.” (Allen, at p. 52.)
       Where a demurrer to a complaint is sustained with leave to amend and the plaintiff
elects not to amend the complaint, the plaintiff may “test the validity of the order
sustaining the demurrer by filing an appeal from the ensuing judgment of dismissal.”



                                              11
(Allen, supra, 234 Cal.App.4th at p. 51.) If the trial court sustained the demurrer without
leave to amend, “we must decide whether there is a reasonable possibility the plaintiff
could cure the defect with an amendment. [Citation.] If we find that an amendment
could cure the defect, we conclude that the trial court abused its discretion and we
reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the
burden of proving that an amendment would cure the defect.” (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)
                                 B. Public Entity Liability
       “Under the California Tort Claims Act (Gov. Code, § 810 et seq.), ‘a public entity
is not liable for injury arising from an act or omission except as provided by statute.
(Gov. Code, § 815, subd. (a); [citation].)’ ” (Hoff v. Vacaville Unified School Dist.
(1998) 19 Cal.4th 925, 932 (Hoff), fn. omitted.) “The Legislative Committee Comment
to section 815 states: ‘This section abolishes all common law or judicially declared
forms of liability for public entities, except for such liability as may be required by the
state or federal constitution, e.g., inverse condemnation.’ ” (Miklosy v. Regents of
University of California (2008) 44 Cal.4th 876, 899.) Moreover, the California Supreme
Court’s own decisions “confirm that section 815 abolishes common law tort liability for
public entities.” (Ibid.) “Thus, in California, ‘all government tort liability must be based
on statute [citation].’ [Citation.] ‘ “In the absence of a constitutional requirement, public
entities may be held liable only if a statute . . . is found declaring them to be liable.” ’ ”
(Hoff, at p. 932.)

 II. First Cause of Action – Breach of Contract, Implied Warranty of Habitability,
               and Implied Covenant of Good Faith and Fair Dealing
       Plaintiff asserts that, contrary to the trial court’s determination, the first cause of
action in the second amended complaint stated a cause of action to recover damages for
breach of contract, breach of the implied warranty of habitability, and breach of the
implied covenant of good faith and fair dealing. Plaintiff asserts that she set forth the


                                               12
relevant terms of the contract, and successfully alleged facts sufficient to withstand the
University defendants’ demurrer.
       We conclude that the trial court properly sustained the University defendants’
demurrer as to the breach of contract cause of action as well as her causes of action for
breach of the implied warranty of habitability and breach of the warranty of good faith
and fair dealing.
                                  A. Breach of Contract
       “[T]he elements of a cause of action for breach of contract are (1) the existence of
the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 821.) To prove breach, the plaintiff is required to prove
that the defendant failed to do something the contract required the defendant to do, or the
defendant did something that the contract prohibited the defendant from doing. (See
Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 553, fn. 3; CACI
No. 303.) Section 814 provides that “[n]othing in this part” regarding liability of public
entities and public employees “affects liability based on contract or the right to obtain
relief other than money or damages against a public entity or public employee.” (§ 814.)
       In the second amended complaint, plaintiff alleged that she entered into a
residency agreement with the University defendants. According to plaintiff, pursuant to
this agreement, the University defendants promised that they would provide “ ‘a safe,
secured, and private . . . housing accommodations for [p]laintiff . . . during the academic
semesters . . . .’ ” Plaintiff relies on exhibit A to the second amended complaint as setting
forth the relevant terms of the agreement between the parties. This exhibit is not a signed
copy of the alleged residency agreement. In fact, it does not appear to be a copy of that
agreement at all. At the least, it is not a complete copy of that agreement. Annexing the
exhibit to the second amended complaint, plaintiff stated not that she was attaching a
copy of the agreement, but instead that the “[t]rue and correct terms and conditions of the

                                             13
Residency Agreement are attached as Exhibit A, and they are incorporated herein by
reference.” The trial court stated that this method of pleading was “highly irregular,” and
noted that the University defendants had raised concerns about the authenticity of the
exhibit through a motion for sanctions pursuant to Civil Procedure Code section 128.7.
Nevertheless, the court stated that, in reviewing the demurrer, it was compelled to accept
the provisions alleged by plaintiff as constituting the terms and conditions of the
residency agreement relevant to plaintiff’s claims.5 (See generally Beck v. American
Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1561 [ordinarily, a written
contract is sufficiently pleaded if it is set out in full or its terms alleged according to their
legal effect], disapproved on another ground in Epic Medical Management, LLC v.
Paquette (2015) 244 Cal.app.4th 504, 516.)
       According to plaintiff’s second amended complaint, on the night of December 9,
2010, and the early morning hours of December 10, 2010, she was sexually assaulted and
raped in the American River Hall dormitory after becoming severely intoxicated while
drinking with a number of fellow students in that dormitory. Plaintiff alleged that the
University defendants failed to provide “ ‘a safe, secured, and private . . . housing
accommodations for [p]laintiff . . . during the academic semesters,” and, as a result, she
was raped.
       Even accepting the material facts alleged as admitted for purposes of the
University defendants’ demurrer (Allen, supra, 234 Cal.App.4th at p. 51), we conclude
that these allegations fail to state a cause of action for breach of contract. The injuries
alleged by plaintiff were not the result of the University defendants’ breach of a promise
made to plaintiff in the residency agreement, but instead resulted from the criminal acts



5 Thus, the trial court overruled the University defendants’ demurrer to the extent it
asserted that the second amended complaint failed to adequately plead the terms and
conditions of the alleged residency agreement.

                                               14
of a third party. Moreover, none of plaintiff’s allegations relate to Draper Hall, the
housing accommodations the University defendants agreed to provide to plaintiff.
Plaintiff alleged that she left Draper Hall, went to a friend’s room in a different
dormitory, American River Hall, voluntarily drank alcoholic beverages, went to another
room in American River Hall where she drank more alcoholic beverages, and then she
was sexually assaulted. Plaintiff has not set forth factual allegations that the University
defendants breached their alleged contractual obligation to provide her with safe and
secure housing in Draper Hall, or any other contractual obligation.
       Plaintiff further alleged that the University defendants breached the residency
agreement by failing to prevent underage drinking on campus, failing to enforce its
policies and procedures, failing to implement new policies and procedures to prevent
sexual assaults and rapes on campus, and failing to disclose material facts and crime
statistics. However, plaintiff failed to allege any contractual provisions pursuant to which
the University defendants agreed to perform these acts. Moreover, even accepting the
provisions in exhibit A to plaintiff’s second amended complaint as constituting the terms
of the residency agreement, no provision obligated the University defendants to perform
in this manner. Thus, in this regard too, plaintiff has failed to state a cause of action for
breach of contract.
       We also note the case law on which the University defendants rely pertaining to
the breach of contract cause of action. “The breach of the license agreement by one
student imposes no contractual duty upon the Trustees in regard to another student.”
(Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 294 (Baldwin).) Thus, even had plaintiff
alleged provisions of the licensing agreement and that those provisions had been
breached by her attacker or other students, this would not give rise to a cause of action for
breach of contract against the University defendants.




                                              15
                    B. Breach of Implied Warranty of Habitability
       The elements of a claim to recover damages based on a breach of the implied
warranty of habitability are: (1) the existence of a material defective condition affecting
the premises’ habitability, (2) notice to the landlord of the condition within a reasonable
time after the tenant’s discovery of the condition, (3) the landlord was given a reasonable
time to correct the deficiency, and (4) resulting damages. (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297 (Erlach).)
       “The implied warranty of habitability recognizes ‘the realities of the modern urban
landlord-tenant relationship’ and imposes upon the landlord the obligation to maintain
leased dwellings in a habitable condition throughout the term of the lease.” (Peterson v.
Superior Court (1995) 10 Cal.4th 1185, 1204.) “The implied warranty of habitability . . .
gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling
and corrected any defects disclosed by that inspection that would render the dwelling
uninhabitable. The tenant further reasonably can expect that the landlord will maintain
the property in a habitable condition by repairing promptly any conditions, of which the
landlord has actual or constructive notice, that arise during the tenancy and render the
dwelling uninhabitable. A tenant injured by a defect in the premises, therefore, may
bring a negligence action if the landlord breached its duty to exercise reasonable care.”
(Id. at pp. 1205-1206, fns. omitted.)
       Plaintiff alleged in the second amended complaint only that the University
defendants “also breached the warranty of habitability . . . by its breach as alleged
herein.” Plaintiff’s allegation amounted to no more than mere conclusory contentions
and conclusions of law. (See generally Allen, supra, 234 Cal.App.4th at p. 51.) She did
not allege specific facts which would give rise to such a claim. Further, inasmuch as
plaintiff could assert a claim based on the implied warranty of habitability pursuant to her
residency agreement, such a claim necessarily would have to be asserted in connection
with her premises. Here, again, the alleged assault occurred in another dormitory

                                             16
altogether. Plaintiff has not alleged a material defective condition, or any condition,
affecting her premises’ habitability. (See generally Erlach, supra, 226 Cal.App.4th at
p. 1297.)
       Accordingly, we conclude that plaintiff has failed to state a cause of action to
recover damages based on the implied warranty of habitability.
                C. Breach of Covenant of Good Faith and Fair Dealing
       “ ‘The law implies in every contract . . . a covenant of good faith and fair dealing.
“The implied promise requires each contracting party to refrain from doing anything to
injure the right of the other to receive the agreement’s benefits.” ’ [Citation.] But there
is no bad faith when a party does that which is explicitly allowed by an agreement, or
declines to renegotiate an agreement.” (Alameda County Flood Control & Water
Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163,
1203, fn. omitted.) “The covenant thus cannot ‘ “be endowed with an existence
independent of its contractual underpinnings.’ ” [Citation.] It cannot impose substantive
duties or limits on the contracting parties beyond those incorporated in the specific terms
of their agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350
(Guz).) Additionally, where the allegations relating to a claimed violation of the implied
covenant of good faith and fair dealing “do not go beyond the statement of a mere
contract breach and, relying on the same alleged acts, simply seek the same damages or
other relief already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated.” (Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 (Careau).)
       In her second amended complaint, plaintiff alleged only that the University
defendants “also breached the . . . implied warranty of good faith and fair dealing by its
breach as alleged herein.”
       As with the warranty of habitability claim, plaintiff’s allegation that the University
defendants violated the implied covenant of good faith and fair dealing consisted of no

                                             17
more than conclusory assertions and conclusions of law. (See generally Allen, supra, 234
Cal.App.4th at p. 51.) Moreover, we disregard as superfluous plaintiff’s allegations
pursuant to the implied covenant of good faith and fair dealing, as they are premised on
the same acts and seek the same damages as plaintiff’s breach of contract claim.
(Careau, supra, 222 Cal.App.3d at p. 1395.) Furthermore, as we have noted, the subject
of the residency agreement was plaintiff’s tenancy in Draper Hall. Plaintiff’s claims
relate to acts alleged to have occurred in a different dormitory, in rooms housing other
students. “[W]here an implied covenant [of good faith and fair dealing] claim alleges a
breach of obligations beyond the agreement’s actual terms, it is invalid.” (Guz, supra, 24
Cal.4th at p. 327.)
                         D. Conclusion – First Cause of Action
       We conclude that the first cause of action in the second amended complaint failed
to state a cause of action to recover damages for breach of contract, breach of the implied
warranty of habitability, and breach of the implied covenant of good faith and fair
dealing.
           III. The Remaining Causes of Action – Negligence-Based Claims
       The third, fourth, seventh, eighth, ninth, tenth, and eleventh causes of action are all
grounded in negligence. As for applicable statutory grounds for public entity/public
employee liability which could authorize recovery on these causes of action, section
815.2 authorizes actions for injuries inflicted by public employees within the scope of
their employment, and section 830 et seq., addresses liability for a dangerous conditions
of public property.
       We conclude that all negligence-based claims fail to state a cause of action.
                                A. Elements of Negligence
       The elements of a negligence cause of action are: (1) the existence of a legal duty
of care, (2) breach of that duty, and (3) proximate cause resulting in injury. (Castellon v.
U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) With regard to the existence of a legal

                                             18
duty of care, the California Supreme Court has stated: “[A] ‘defendant owes a duty of
care to all persons who are foreseeably endangered by his [or her] conduct, with respect
to all risks which make the conduct unreasonably dangerous.’ ” (Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 434-435 (Tarasoff).) However, in
Tarasoff, our high court further held that “when the avoidance of foreseeable harm
requires a defendant to control the conduct of another person, or to warn of such conduct,
the common law has traditionally imposed liability only if the defendant bears some
special relationship to the dangerous person or to the potential victim.” (Id. at p. 435.)
We now consider several cases which addressed the liability of state colleges and
universities to students for harm resulting from the conduct of third parties.
                             B. Baldwin, Crow, and Tanja H.
       In Baldwin, supra, 123 Cal.App.3d 275, the plaintiff student was a passenger in a
vehicle engaged in a speed contest. (Id. at p. 279.) The driver of the vehicle was a fellow
student who had consumed “ ‘great amounts’ ” of alcohol. (Ibid.) The vehicle collided
with one or more other vehicles and overturned, and the plaintiff sustained severe injuries
as a result. (Ibid.) The plaintiff alleged that the defendants associated with the California
Polytechnic State University, San Luis Obispo, “were negligent in several particulars,
including a failure to perform a mandatory duty to enforce the provisions of the license
agreement [pursuant to which the students lived in the dormitories], and by so doing
‘caused to be furnished’ alcoholic beverages to persons under the age of 21 years and
aided the student defendants to consume alcohol on campus negligently and in
contravention of law which was enacted for the protection of the public from injuries and
that a duty of care existed because of the landlord-tenant relationship.” (Id. at pp. 279-
280.) In additional causes of action, the plaintiff asserted that the defendants negligently
failed to perform their duty to enforce the rules of student conduct; knowingly “ ‘created
an unsafe condition, to wit, a safe haven or enclave where large groups of minors could,
would and did gather and consume alcoholic beverages, to an excess, with complete

                                             19
impunity from any laws or rules and regulations’ ”; and breached the license agreement.
(Id. at p. 280.)
       On appeal after a sustained demurrer, the Court of Appeal for the Fifth Appellate
District observed that “[s]chools and their personnel owe a duty to students who are on
school grounds to supervise them and to enforce rules and regulations necessary for their
protection. Either a total lack of supervision or ineffective supervision may constitute a
lack of ordinary care. It is the task of supervisors to anticipate and curb behavior of
students who have not attained full maturity.” (Baldwin, supra, 123 Cal.App.3d at
p. 281.) However, citing Tarasoff, the Baldwin court further observed, “[w]hen the
avoidance of foreseeable harm requires a defendant to control the conduct of another
person, or to warn of such conduct, the common law as a general rule imposes liability
only if the defendant bears some special relationship to the dangerous person or potential
victim.” (Baldwin, at pp. 282-283, citing Tarasoff, supra, 17 Cal.3d at p. 435.) The
plaintiff in Baldwin asserted that she stood in a special relationship with the university
and its personnel based on the license agreement by which she and fellow students
occupied the dormitories. (Baldwin, at p. 284.) That agreement, among other things,
prohibited alcoholic beverages in the residence halls and the consumption of alcohol on
campus. (Id. at p. 285.)
       In considering whether it was appropriate to find a duty of care to third persons,
the Baldwin court considered certain factors, set forth in Rowland v. Christian (1968) 69
Cal.2d 108 (Rowland). (Baldwin, supra, 123 Cal.App.3d at p. 286.) These factors
included “ ‘the degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral blame
attached to the defendant’s conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.’ ” (Ibid., quoting Rowland, at p. 113.)

                                              20
       The Baldwin court, applying the Rowland factors, found that they militated against
finding the existence of a duty of care. (Baldwin, supra, 123 Cal.App.3d at pp. 286-287.)
The court determined that the circumstances alleged by the plaintiff did not support a rule
establishing a duty of care on the part of the defendants, stating that, notwithstanding the
fact that the plaintiff’s injuries were certain and substantial, “there [was] a lack of a close
connection between the failure of the Trustees and dormitory advisors to control on-
campus drinking and the speed contest.” (Id. at pp. 286-287.)
       In addressing the Rowland factor relating to the moral blameworthiness of the
defendants, the Baldwin court considered the role of colleges and universities relative to
their students. The court observed: “the authoritarian role of college administrators is
gone. Students have demanded rights which have given them a new status and abrogated
the role of in loco parentis of college administrators. ‘[¶] Our beginning point is a
recognition that the modern American college is not an insurer of the safety of its
students. Whatever may have been its responsibility in an earlier era, the authoritarian
role of today’s college administrations has been notably diluted in recent decades.
Trustees, administrators, and faculties have been required to yield to the expanding rights
and privileges of their students.’ ” (Baldwin, supra, 123 Cal.App.3d at p. 287, quoting
Bradshaw v. Rawlings (3d Cir. 1979) 612 F.2d 135, 138.) The court noted that the use of
alcohol by college students, while prevalent, “is not so unusual or heinous by
contemporary standards as to require special efforts by college administrators to stamp it
out,” and that, although the university reserved the right to take disciplinary action
against students for on-campus drinking, “this merely follows state law.” (Baldwin, at
p. 288, citing Bus. & Prof. Code, § 25608.) Again quoting Bradshaw, the court stated:
“ ‘A college regulation that essentially tracks a state law and prohibits conduct that to
students under twenty-one is already prohibited by state law does not, in our view,
indicate that the college voluntarily assumed a custodial relationship with its students so
as to [impose a duty of protection.]’ ” (Baldwin, at p. 288, quoting Bradshaw, at p. 141.)

                                              21
The Baldwin court found that the university did not owe a duty of care to the plaintiff.
(Baldwin, at p. 291.)
       Almost 10 years after Baldwin, this court decided Crow v. State of California
(1990) 222 Cal.App.3d 192 (Crow). In Crow, the plaintiff, a student at CSUS, was
assaulted by a fellow student at a keg party in, coincidentally, Draper Hall. (Id. at
p. 197.) On the plaintiff’s appeal from the judgment dismissing his complaint after the
trial court awarded the defendants summary judgment, this court affirmed. (Id. at
p. 196.) First, notwithstanding the plaintiff’s efforts to plead causes of action sounding in
breach of contract based on the residence agreement, this court opined, without deciding
the issue: “Given the relief sought in the complaint, we believe [the plaintiff] actually is
suing in tort, using the existence of the contract to provide the necessary duty elements.”
(Id. at p. 198.)
       This court in Crow considered the potential liability of a defendant for the conduct
of third parties grounded on the existence of a special relationship. (Crow, supra, 222
Cal.App.3d at pp. 205-206.) In doing so, the Crow court discussed Peterson v. San
Francisco Community College Dist. (1984) 36 Cal.3d 799 (Peterson). In Peterson, the
California Supreme Court noted the distinction between a school’s owing a duty of care
to a high school student versus a college student. (Peterson, at p. 806, fn. 3.) Our high
court stated: “Dailey [v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 (Dailey)]
arose in the context of a secondary school where a 16-year-old was killed while engaging
in a ‘slap boxing match.’ We observed that children of that age ‘should not be expected
to exhibit that degree of discretion, judgment, and concern for the safety of themselves
and others which we associate with full maturity.’ [Citation.] The present case, by
contrast, does not implicate the duty to supervise the activities of students who are too
immature to exercise judgment for their personal safety. Rather, the issue here is the




                                             22
extent of the [college]’s duty to provide safe premises.”6 (Peterson, at p. 806, fn. 3.) In
Crow, elaborating on this “distinction between young, immature schoolchildren in
grammar and high schools on the one hand and adult students in colleges and universities
on the other . . . ,” this court looked to Baldwin and concluded: “We agree with the
assessment of CSUS that it could ‘not have prevented this incident from taking place
except possibly by posting guards in each dorm room on a 24-hour, 365-day per year
basis.’ ” (Crow, at p. 209.) The distinction between younger students and students in
postsecondary school, the goals of postsecondary education, the burden of imposing the
duty advocated by the plaintiff, and the resulting consequences to society all militated
against the imposition of a legal duty on CSUS. (Ibid.)
       Finally, in Tanja H., supra, 228 Cal.App.3d 434, the plaintiff was raped by several
fellow students in a university dorm room after a party where alcohol was served. (Id. at
pp. 435-436.) The Court of Appeal, First Appellate District, considered Baldwin and
Crow, and continued the discussion of postsecondary institutions’ duty to protect their
students. (Tanja H., at p. 438.) The Tanja H. court stated: “College students are
generally young adults who do not always have a mature understanding of their own
limitations or the dangers posed by alcohol and violence. However, the courts have not
been willing to require college administrators to reinstitute curfews, bed checks,
dormitory searches, hall monitors, chaperons, and the other concomitant measures which
would be necessary in order to suppress the use of intoxicants and protect students from
each other.” (Ibid.) The court continued: “[A] university in its residual role as the


6 Plaintiff here relies on Dailey for the proposition that younger individuals cannot be
expected to exhibit the degree of discretion, judgment, and concern for their safety and
that of others which is commonly associated with full maturity. However, as set forth
above, these considerations discussed in Dailey have been explicitly determined not to
apply, or not to apply with nearly the same force, to college and university students as
opposed to high school students. (Peterson, supra, 36 Cal.3d at p. 806, fn. 3; Crow,
supra, 222 Cal.App.3d at pp. 208-209.)

                                             23
operator of a dormitory used as living quarters by students is more akin to an innkeeper,
who does not have a duty to search guests for contraband, separate them from each other,
or monitor their private social activities. [Citation.] As campuses have, thus, moved
away from their former role as semimonastic environments subject to intensive regulation
of student lives by college authorities, they have become microcosms of society; and
unfortunately, sexually degrading conduct or violence in general -- and violence against
women in particular -- are all too common within society at large. College administrators
have a moral duty to help educate students in this respect, but they do not have a legal
duty to respond in damages for student crimes.” (Ibid.) The Tanja H. court posed the
question: “Should a duty be imposed which would make colleges liable for damages
caused by third parties, unless colleges impose onerous conditions on the freedom and
privacy of resident students -- which restrictions are incompatible with a recognition that
students are now generally responsible for their own actions and welfare?” (Ibid.) In
affirming the judgment of dismissal following the sustaining of the respondents’
demurrer, the court concluded: “[T]he courts can establish the criminal and civil liability
of the perpetrators of crimes; but the courts with good reason have been unwilling to shift
moral and legal responsibility away from student perpetrators and onto the heads of
college administrators.” (Id. at p. 439.)
                                       C. Duty of Care
       Despite plaintiff’s insistence that Baldwin, Crow, and Tanja H. are not relevant,
we conclude that they are on point as to her negligence claims. Accordingly, we
conclude that the University defendants did not owe a duty of care to plaintiff to protect
her from the acts of third parties, to control third parties, or to warn her of third parties’
conduct. Plaintiff insists that her claim is not that the University defendants owed her
such a duty. However, plaintiff does expressly allege, for example, that the University
defendants owed her a duty “to prevent . . . Richards from sexually assaulting and raping”
her, as well as other similar allegations.

                                               24
       Plaintiff claims that the University defendants owed her various other duties,
including the duty to provide safe and secure housing, to enforce university policies and
procedures, to prevent underage drinking on campus, to implement procedures to prevent
sexual assaults and rapes on campus, and to disclose material facts and crime statistics.
As in Crow, plaintiff’s trial court opposition papers and her briefs on appeal are replete
with arguments which, at their core, are based on the University defendants’ alleged
“liability . . . for [their] negligent operation and supervision of the dormitories.” (Crow,
supra, 222 Cal.App.3d at pp. 206-207.) Plaintiff’s contentions also bear similarity to the
unsuccessful claims in Baldwin, wherein the plaintiff asserted that the defendants were
negligent for failing to perform their duty to enforce the rules of student conduct and for
knowingly creating an unsafe condition, specifically “ ‘a safe haven or enclave where
large groups of minors could, would and did gather and consume alcoholic beverages, to
an excess, with complete impunity from any laws or rules and regulations.’ ” (Baldwin,
supra, 123 Cal.App.3d at p. 280.)
       We are not persuaded that the duties advanced by plaintiff are, in form or
substance, any different from those duties claimed and rejected in Baldwin, Crow, and
Tanja H. We conclude that, based on this line of cases, the University defendants did not
owe an applicable duty to plaintiff to protect her against third parties, and did not stand in
a special relationship with plaintiff so as to give rise to a duty to control or to warn her
against third parties. (Tanja H., supra, 228 Cal.App.3d at p. 444; Crow, supra, 222
Cal.App.3d at pp. 207-208; Baldwin, supra, 123 Cal.App.3d at pp. 286-287.) We note in
this regard that plaintiff has not alleged that the University defendants were aware of a
particularized threat posed by Richards, or a specific threat against plaintiff. As stated
above, “the courts with good reason have been unwilling to shift moral and legal
responsibility away from student perpetrators and onto the heads of college
administrators.” (Tanja H., at p. 439.) And we are unwilling to do so here. In the
absence of a duty of care, plaintiff cannot prevail on her negligence claims.

                                              25
                                       D. Section 845
       In her seventh cause of action, plaintiff seeks to recover damages for negligence
and “willful refusal to provide adequate security.” Her second amended complaint also
contains numerous allegations related to the failure to ensure a secure campus
environment. Section 845 provides in pertinent part: “Neither a public entity nor a
public employee is liable for failure to establish a police department or otherwise to
provide police protection service or, if police protection service is provided, for failure to
provide sufficient police protection service.” (§ 845.) Thus, insofar as the second
amended complaint seeks to recover damages for the University defendants’ failure to
provide sufficient police protection, in light of section 845, we conclude that it fails to
state a cause of action upon which relief may be granted.
                                   E. Premises Liability
       Language relevant to premises liability is pervasive throughout plaintiff’s second
amended complaint. In the third cause of action, plaintiff asserts that the University
defendants are liable for the existence of a dangerous and defective premises condition
existing at American River Hall. The elements of a cause of action for premises liability
are the same as those for negligence: duty, breach, causation, and damages. (Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
       Plaintiff asserts that a secluded hallway in American River Hall created a “blind
spot,” facilitating the illicit smuggling of alcohol into the dormitory as well as the
transporting of plaintiff to the room where the sexual assault occurred. She complains
about the lack of video surveillance anywhere on the floor or the stairways. The fatal
flaw in this cause of action is that the condition of the hallway alleged by plaintiff has no
meaningful connection to her injuries.
       The plaintiff in Crow also sought to recover damages based on a theory involving
a dangerous property condition at the dormitory. (Crow, supra, 222 Cal.App.3d at
p. 204.) Specifically, the plaintiff asserted that the CSUS dormitories “ ‘were in a

                                              26
dangerous and defective condition in that the University, knowing that [the assailant] was
a danger to other students in the dormitories, failed to control him, failed to warn other
students about him, failed to enforce its own rules and failed to secure the dormitories
from intrusion by persons such as [the assailant] who were known to be a hazard to other
students. As a resident of the dormitory, plaintiff was entitled to that protection pursuant
to the landlord/tenant relationship as well as the unique relationship created by virtue of
his status as a student at [CSUS].’ ” (Ibid.) This court concluded that the trial court was
correct in determining that “ ‘[s]ection 835,’ ” which is the controlling statute for liability
for dangerous conditions on public property, “ ‘does not include an action where the
“dangerous condition” is a third party.’ ” (Crow, at p. 205.) The Crow court
acknowledged that liability may arise where a defect on property abets, or is causally
linked to, an act of a third party. (Ibid.) However, “when there is no causal link between
a dangerous condition and the injury, liability cannot be predicated upon the dangerous
condition of property statute.” (Ibid.) The court further noted that, notwithstanding the
fact that the plaintiff purported to base his theory of liability on the dangerous condition
on property statute, his arguments, like plaintiff’s here, actually appeared to be addressed
to CSUS’s alleged negligent operation and supervision of its dormitories. (Id. at pp. 206-
207.)
        Later, in Tanja H., the plaintiff attempted to assert, among other things, a premises
liability claim based on the fact that there was a shattered light bulb on a landing in a
stairwell where part of the sexual assault occurred. (Tanja H., supra, 228 Cal.App.3d at
pp. 436, 439.) The Tanja H. court stated: “We can certainly agree respondents might be
liable if appellant had stumbled in a darkened stairway, or even if she had been assaulted
by someone lying in wait in the darkness. [Citation.] However, there was no meaningful
causal connection here between failing to more quickly fix a shattered light bulb and the
sexual assault which began in one dormitory room, continued on the landing, and
continued in two other rooms. No assailant was lurking in the dark; appellant’s attackers

                                              27
were acquaintances she first encountered in their lighted rooms, where they overcame her
resistance. As a matter of law, respondents’ alleged failure to fix a light bulb on the stairs
was not the legal cause of the assault on appellant.” (Id. at p. 439.) The Tanja H. court
further stated: “In connection with her premises liability allegations as to the shattered
light bulb, appellant also contends that respondents violated express or implied promises
concerning the safety and security of the dormitory premises. However, again, it was not
the lack of safe illumination on the stairs, or the lack of security from outside intruders,
which caused appellant to be assaulted by acquaintances.” (Ibid.)
       Here, plaintiff’s alleged injuries consisted of being sexually assaulted by Richards
in his dorm room. Plaintiff alleged that, after she became thoroughly intoxicated in the
living room, Richards stood her up “and walked [p]laintiff . . . to his room, while
[p]laintiff . . . was resting on him as she had difficulties to walk [sic] on her own due to
her severe intoxication.” Even accepting the material factual allegations of the second
amended complaint as true (Allen, supra, 234 Cal.App.4th at p. 51), the fact that there
were no surveillance cameras in the purportedly secluded hallway was not a proximate
cause of her injuries. Analogous to Crow and Tanja H., we conclude that, here, the
absence of a surveillance camera had no meaningful causal connection to Richards’s
alleged sexual assault of plaintiff in his dorm room. Plaintiff does not allege that she was
assaulted in the hallway, or that she drank to excess in the hallway. She does not allege
that Richards came upon her in the hallway. While she does allege that Richards walked
her from the living room to his bedroom via the hallway while she “rest[ed] on him,”
plaintiff advances no allegations from which we can possibly conclude that the absence
of a surveillance camera in the hallway had any meaningful causal connection to the
sexual assault that followed. Similarly, the mere fact that students may have transported
alcohol through this hallway has no meaningful causal connection to the sexual assault.




                                              28
       Moreover, as the University defendants observe, “[a] lack of human supervision
and protection is not a deficiency in the physical characteristics of public property.”
(Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1352.)
                  F. Conclusion - Negligence Based Causes of Action
       Based on all of the foregoing, we conclude that the trial court correctly determined
that the third, fourth, seventh, eighth, ninth, tenth, and eleventh causes of action in
plaintiff’s second amended complaint, grounded in negligence, failed to state a cause of
action. Moreover, since the absence of a duty of care and the absence of a dangerous
condition on public property bearing a meaningful causal connection to plaintiff’s
injuries cannot be cured by further amendment, the trial court did not abuse its discretion
in sustaining the demurrer without leave to amend. (See generally Schifando, supra, 31
Cal.4th at p. 1081.)
                                        IV. Nuisance
       In connection with several of her claims premised on negligence, plaintiff relies on
Civil Code sections 3479, defining nuisance, and 3480, defining public nuisance.
       The definition of nuisance includes, “[a]nything which is injurious to health,
including, but not limited to, the illegal sale of controlled substances, or is indecent or
offensive to the senses, or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property . . . .” (Civ. Code, § 3479.) “A public
nuisance is one which affects at the same time an entire community or neighborhood, or
any considerable number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) The California
Supreme Court has expressly held that section 815 “does not bar nuisance actions against
public entities to the extent such actions are founded on section 3479 of the Civil Code or
other statutory provision that may be applicable.” (Nestle v. City of Santa Monica (1972)
6 Cal.3d 920, 937.)



                                              29
       Nevertheless, the second amended complaint fails to state a cause of action for
nuisance. “The elements ‘of a cause of action for public nuisance include the existence
of a duty and causation.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
(Melton).) We have determined at length, ante, that the University defendants did not
owe an applicable duty to plaintiff here.
       Moreover, “ ‘[w]here negligence and nuisance causes of action rely on the same
facts about lack of due care, the nuisance claim is a negligence claim.’ [Citation.] The
nuisance claim ‘stands or falls with the determination of the negligence cause of action’
in such cases.” (Melton, supra, 183 Cal.App.4th at p. 542.) Here, inasmuch as plaintiff
pleads a cause of action for public nuisance, her cause of action “has no independent
vitality, because it merely restates [her] negligence claims ‘using a different label.’ ” (Id.
at p. 543.)
       Accordingly, we conclude that the second amended complaint fails to state a cause
of action to recover damages based on nuisance. Furthermore, we conclude that it is not
reasonably possible that plaintiff could cure the defect with an amendment.
                      V. Intentional Infliction of Emotional Distress
       In the fifth cause of action, plaintiff asserted a claim for intentional infliction of
emotional distress.
       “ ‘The elements of the tort of intentional infliction of emotional distress are: “ ‘(1)
extreme and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct . . . .’ Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.” [Citation.] The defendant must have engaged in “conduct
intended to inflict injury or engaged in with the realization that injury will result.” ’ ”
(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896.)

                                              30
       The case on which the University defendants rely is instructive. In Davidson v.
City of Westminster (1982) 32 Cal.3d 197 (Davidson), the plaintiff sought to recover
damages for, among other things, intentional infliction of emotional distress. (Id. at
p. 201.) The plaintiff was stabbed by an assailant in a laundromat while police had the
laundromat under surveillance following a rash of similar attacks, including one on the
prior evening. (Ibid.) At the time they were conducting surveillance, the police officers
knew the plaintiff was in the laundromat. (Ibid.) They observed a man on the premises
who closely resembled the attacker from the prior evening, and whom they eventually
identified as the likely perpetrator of that attack. (Ibid.) While the police officers
continued their surveillance of the laundromat, they watched as the suspect entered and
left several times. (Ibid.) They did not warn the plaintiff, and, eventually, she was
stabbed four times. (Ibid.) In affirming the judgment of dismissal following the trial
court’s order sustaining the defendants’ demurrer, the California Supreme Court observed
that the plaintiff failed to allege that the police officers acted or failed to act for the
purpose of causing injury to her. (Id. at p. 210.) Our high court further concluded that
the police officers’ conduct, as alleged by the plaintiff, did not rise to the level of
outrageousness deemed so extreme as to exceed all bounds of that which will be tolerated
in a civilized community. (Ibid.) While acknowledging that the conduct of the police
officers may not have constituted their “finest hour,” our high court concluded that the
failure of the police officers’ surveillance plan “was in no way due to any affirmative
misconduct on the part of the officers who participated in the stake-out. They started as
mere observers and the sum and substance of the criticism directed against them is that
they remained such far too long and were late in becoming active participants. Absent an
intent to injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that
gives rise to liability under the ‘intentional infliction of emotional distress’ tort.” (Ibid.)
       Here, notwithstanding plaintiff’s protestations to the contrary, her allegations
essentially amount to a claim that the University defendants failed to prevent harm to her

                                                31
and failed to protect her from third-party actions. At most, the University defendants’
conduct alleged by plaintiff consisted of inaction or willful failure to act. We conclude
that the conduct alleged by plaintiff here falls far short of that which will be deemed “ ‘so
extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ”
(Davidson, supra, 32 Cal.3d at p. 210, quoting Cervantez v. J. C. Penney Co. (1979) 24
Cal.3d 579, 593.)
          Accordingly, we conclude that the trial court properly sustained the University
defendants’ demurrer with respect to plaintiff’s fifth cause of action sounding in
intentional infliction of emotional distress. Furthermore, we conclude that it is not
reasonably possible that plaintiff could cure the defects with further amendment.
                    VI. Intentional Misrepresentation and Concealment
          Plaintiff’s sixth cause of action sounds in fraud, specifically intentional
misrepresentation and concealment.
                                A. Pleading with Particularity
          As to both intentional misrepresentation and concealment, we conclude that
plaintiff’s allegations failed to satisfy California’s pleading requirements for causes of
action sounding in fraud. “In California, fraud must be pled specifically; general and
conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,
645 (Lazar).) “ ‘This particularity requirement necessitates pleading facts which “show
how, when, where, to whom, and by what means the representations were tendered.” ’ ”
(Ibid.)
          In the sixth cause of action, plaintiff alleged: “Prior to entering into an agreement,
[CSUS] represented that it has a safe and secure campus for incoming student[s] to reside
on campus. [¶] [] Prior to entering into an agreement, [CSUS] falsely represented that
there was NO major crime taken place on campus and the Dangerous Conditions did
NOT exist. . . . [¶] [] Defendant, [CSUS] concealed the true facts about the past sexual
assault and Sac State’s security’s inability to conduct proper and competent investigation

                                                32
to prosecute perpetrators.” Plaintiff further asserted: “Plaintiff . . . relied on [CSUS]’s
misrepresentation and concealment. Plaintiff[’s] . . . reliance was reasonable.” Plaintiff
alleged that, as “a proximate result of sexual assault and battery, [p]laintiff has suffered
damages . . . .”
       Plaintiff has not pleaded facts asserting how, when, where, by whom, and by what
means the alleged representations were made or true facts were concealed. Accordingly,
plaintiff has failed to satisfy California’s requirement that causes of action sounding in
fraud be pleaded with particularity. (See generally Lazar, supra, 12 Cal.4th at p. 645.)
                              B. Intentional Misrepresentation
       “The elements of intentional misrepresentation, or actual fraud, are: ‘(1)
misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of
falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance;
and (5) resulting damage.’ ” (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th
1468, 1474.)
       Plaintiff’s second amended complaint fails to adequately allege that she justifiably
relied on any misrepresentation made by the University defendants. She does assert the
legal conclusion that she justifiably relied on their alleged representations that there had
been no major crimes on campus, and that CSUS had a safe and secure campus. Yet she
also alleges, with greater particularity, that, “[o]n or about November 22, 2010, with
serious concerns about her safety and security at [CSUS], [p]laintiff . . . through her
attorney of record, prepared and forwarded ‘Notice of termination of Residency
Agreement,’ due to lack of security, giving sanctuary to sexual predators, contemning
and/or removing evidence related to criminal activities so as to prevent, investigation,
arrest and conviction of any criminal activities on campus, and [CSUS]’s refusal to
enforce its own policies and procedures.” According to plaintiff, on or about
December 6, 2010, mere days before the attack, the University defendants rejected
plaintiff’s demand to terminate her residency agreement.

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       Plaintiff’s specific factual allegations that she demanded to be released from the
residence agreement in November 2010 because of grave concerns about inadequate
security and sexual predators on campus negates her conclusory assertion that, as of
December 9 and 10, 2010, she justifiably relied on alleged misrepresentations that the
campus was safe and secure, and that no major crimes had occurred on campus. (See
generally Allen, supra, 234 Cal.App.4th at p. 51 [we treat the demurrer as admitting all
material facts properly pleaded].) In the absence of the justifiable reliance element,
plaintiff failed to state a cause of action based on intentional misrepresentation. (See
Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 [the
absence of any one of the required elements of an action in fraud or deceit will preclude
recovery].)
       Moreover, under the circumstances of this case, in light of the absence of
justifiable reliance, plaintiff cannot establish the fifth element set forth above, that she
sustained damages as a result of the University defendants’ alleged misrepresentation.
       Accordingly, we conclude that plaintiff’s second amended complaint failed to
state a cause of action for intentional misrepresentation.
                                      C. Concealment
       “ ‘[T]he elements of an action for fraud and deceit based on concealment are: (1)
the defendant must have concealed or suppressed a material fact, (2) the defendant must
have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have
intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4)
the plaintiff must have been unaware of the fact and would not have acted as he did if he
had known of the concealed or suppressed fact, and (5) as a result of the concealment or
suppression of the fact, the plaintiff must have sustained damage.’ ” (Lovejoy v. AT&T
Corp. (2004) 119 Cal.App.4th 151, 157-158.)
       Plaintiff’s claim for concealment fails to state a cause of action for the same
reason as her claim for intentional misrepresentation. Despite the alleged concealment of

                                              34
facts related to the safety of the CSUS campus, crimes occurring thereon, and
occurrences of past sexual assault on campus, at some point prior to Richards’s attack,
plaintiff learned of alleged prior sexual assaults and demanded to be released from the
residence agreement. Based on plaintiff’s own factual allegations, she cannot allege that
she was unaware of these facts and that she would not have acted as she did if she had
known of the concealed facts. Similarly, since she possessed this knowledge well before
Richards’s alleged attack, she cannot claim that, as a result of the University defendants’
concealment, she sustained damages.
       Accordingly, we conclude that plaintiff’s second amended complaint failed to
state a cause of action for concealment.
           D. Conclusion - Intentional Misrepresentation and Concealment
       Based on the foregoing, we conclude that plaintiff failed to state a cause of action
sounding in fraud, specifically premised on intentional misrepresentation and
concealment. Additionally, the defects in the sixth cause of action could not be cured by
further amendment, and, accordingly, the trial court did not abuse its discretion in
sustaining the demurrer without leave to amend.
                    VII. Additional Statutory Grounds for Liability
       As previously stated, “[u]nder the California Tort Claims Act (Gov. Code, § 810 et
seq.), ‘a public entity is not liable for injury arising from an act or omission except as
provided by statute. (Gov. Code, § 815, subd. (a); [citation].)’ ” (Hoff, supra, 19 Cal.4th
at p. 932, fn. omitted.) We have discussed liability premised on sections 814, 815.2, and
830 et seq., and Civil Code sections 3479 and 3480. Plaintiff sets forth several additional
statutory bases for liability in the second amended complaint.
       Section 815.4 provides that a “public entity is liable for injury proximately caused
by a tortious act or omission of an independent contractor of the public entity to the same
extent that the public entity would be subject to such liability if it were a private
person. . . .” (§ 815.4.) This section has no relevance to the allegations in plaintiff’s

                                              35
second amended complaint, as she makes no allegations concerning any independent
contractor.
       Section 815.6 provides that, “[w]here a public entity is under a mandatory duty
imposed by an enactment that is designed to protect against the risk of a particular kind of
injury, the public entity is liable for an injury of that kind proximately caused by its
failure to discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.” (§ 815.6.) “ ‘ “[Section] 815.6 contains a
three-pronged test for determining whether liability may be imposed on a public entity:
(1) an enactment must impose a mandatory, not discretionary, duty . . . ; (2) the
enactment must intend to protect against the kind of risk of injury suffered by the party
asserting section 815.6 as a basis for liability . . . ; and (3) breach of the mandatory duty
must be a proximate cause of the injury suffered.” [Citation.] Whether an enactment is
intended to impose a mandatory duty is a question of law for the court.’ ” (County of Los
Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-639, disapproved on another
ground in Martinez v. County of Sonoma (N.D.Cal. Sept. 12, 2015, No. 15-cv-10953-
JST) 2015 U.S. Dist. LEXIS 122427, *36-37.) Plaintiff does not specifically identify any
mandatory duty imposed by an enactment.
       To the extent that plaintiff relies on Civil Code section 1572, that section merely
defines five acts which constitute actual fraud, and imposes no mandatory duty on public
entities. Similarly, Civil Code section 1710, which plaintiff also cites, merely defines
deceit, and imposes no mandatory duty on public entities. Civil Code section 1709, also
cited by plaintiff, provides that “[o]ne who willfully deceives another with intent to
induce him to alter his position to his injury or risk, is liable for any damage which he
thereby suffers,” and likewise imposes no mandatory duty on public entities.
       As the University defendants point out, the California Supreme Court has
expressly held that Civil Code section 1714 (“Responsibility for willful acts or
negligence; Proximate cause of injuries resulting from furnishing alcohol to intoxicated

                                              36
person; Liability of social hosts; Provision of alcoholic beverages to persons under 21
years of age”), also cited by plaintiff, may not alone serve as the basis for public entity
liability. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183
[“direct tort liability of public entities must be based on a specific statute declaring them
to be liable, or at least creating some specific duty of care, and not on the general tort
provisions of Civil Code section 1714”].)
       Plaintiff also cites Civil Code section 3294, which addresses exemplary damages.
However, in addition to the fact that that section does not impose a mandatory duty on
public entities, section 818 specifically provides: “Notwithstanding any other provision
of law, a public entity is not liable for damages awarded under Section 3294 of the Civil
Code or other damages imposed primarily for the sake of example and by way of
punishing the defendant.”
       Finally, plaintiff asserts that, while the University defendants claim they are
immune from liability under Business and Professions Code section 25602,
subdivision (b), addressing civil liability for the furnishing of alcoholic beverages to an
intoxicated person, they fall under the exception to immunity set forth in Business and
Professions Code section 25602.1. That section provides: “Notwithstanding
subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any
person who has suffered injury or death against any person licensed, or required to be
licensed, pursuant to Section 23300, or any person authorized by the federal government
to sell alcoholic beverages on a military base or other federal enclave, who sells,
furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage, and
any other person who sells, or causes to be sold, any alcoholic beverage, to any obviously
intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the
proximate cause of the personal injury or death sustained by that person.”
       This section, however, does not impose a mandatory duty on public entities.
Furthermore, there are no allegations in plaintiff’s second amended complaint suggesting

                                              37
that the University defendants sold or caused to be sold any alcoholic beverages to
anyone, let alone sold them to an obviously intoxicated minor. To the extent that the
second amended complaint can be deemed to allege that the University defendants, by
failing to curtail drinking on campus, come within the scope of Business and Professions
Code section 25602.1, we disagree. Business and Professions Code “[s]ection 25602.1 is
a narrow exception to the Legislature’s enactment of what our Supreme Court has termed
‘sweeping civil immunity’ from liability for injuries to third persons resulting from the
furnishing of alcohol to another. [Citations.] As the sole exception to statutory
immunity, section 25602.1 must be strictly construed to effect the Legislature’s intent.”
(Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1281.)
Interpreting the phrase “causes to be sold” in Business and Professions Code section
25602.1, this court held in Hernandez that the ordinary use of this language, “and the fact
that section 25602.1 articulates no duty to act affirmatively to prevent others, over whom
one has no control, from selling alcohol to an obviously intoxicated minor, compel us to
construe the statute to require malfeasance, not acquiescence; mere inaction is not
sufficient.” (Hernandez, at p. 1282.) “[T]he phrase ‘causes to be sold’ requires an
affirmative act directly related to sale of alcohol, which necessarily brings about the
resultant action to which the statute is directed, i.e., the sale of alcohol to an obviously
intoxicated minor. For example, one who, having control over the alcohol, directs or
explicitly authorizes another to sell it to a minor who is clearly drunk falls within the
statutory language. On the other hand, merely providing a room where alcoholic
beverages will be sold by others is not sufficient to satisfy section 25602.1’s phrase,
‘causes [alcohol] to be sold.’ ” (Ibid.)
       Here, plaintiff’s factual allegations concerning the provision of alcohol, inasmuch
as they can be attributed to the University defendants, allege, at most, acquiescence or
inaction rather than malfeasance. On a related note, in Baldwin, while the court did not
directly address Business and Professions Code section 25602.1, it did discuss the

                                              38
“obvious distinction” between giving or furnishing alcohol and the failure to stop a
drinking party. (Baldwin, supra, 123 Cal.App.3d at p. 289.)
       Accordingly, even assuming Business and Professions Code section 25602.1 could
serve as a statutory predicate for liability by a public entity, the University defendants’
conduct as alleged by plaintiff does not fall within the scope of that section.
                                        VIII. Title IX
       Plaintiff asserts that she has a cause of action under Title IX of the Education
Amendments of 1972 (20 U.S.C. § 1681 et seq. (Title IX))7 and related enactments.
However, according to plaintiff, the trial court’s threat of sanctions prevented her from
amending her complaint to allege such a cause of action. We decline to address this
contention because plaintiff has forfeited it.8
       In her opening brief, plaintiff asserts, for the first time in this case and in
conclusory fashion, that her second amended complaint contains facts which demonstrate
that she has a cause of action pursuant to Title IX. However, she does not furnish any
analysis or argument as to how the facts set forth in the second amended complaint would
support such a cause of action, and cites no authority to support her position. California
Rules of Court, rule 8.204(a)(1)(B), requires that all briefs must support each point “by
argument and, if possible, by citation of authority.” Thus, plaintiff has forfeited this
contention. (Allen, supra, 234 Cal.App.4th at p. 52 [when legal argument with citation to
authority is not furnished on a particular point, we may treat the point as forfeited and


7 Plaintiff cites Title IX of the Civil Rights Act of 1964. It is clear, however, that she is
relying upon Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681 provides
that, with limited exceptions, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or activity
receiving federal financial assistance on the basis of sex.
8 Plaintiff has requested that we take judicial notice of certain documents related to her
claim that she has a cause of action pursuant to Title IX. In light of our determination,
we deny as moot plaintiff’s request for judicial notice.

                                               39
pass it without consideration]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th
1043, 1045, fn. 1 [plaintiffs’ contention in opening brief forfeited because plaintiffs failed
to provide any argument or citation to authority in support].)
                                      IX. Conclusion
       We conclude that the trial court did not err in sustaining the University
defendants’ demurrer to plaintiff’s second amended complaint. We further conclude that
the trial court did not abuse its discretion in sustaining the demurrer without leave to
amend as to all but the first cause of action because it is not reasonably possible that
plaintiff could cure the defects with further amendments. Additionally, the trial court
properly granted the University defendants’ unopposed motion to dismiss the complaint
upon plaintiff’s failure to timely file and serve a third amended complaint, and properly
entered judgment to that effect.9




9 In light of our determination, we need not discuss any additional grounds for immunity
raised by the University defendants.

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                                       DISPOSITION
       The judgment is affirmed. The University defendants shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)



                                                        MURRAY             , J.



We concur:



      HULL                  , Acting P. J.



      DUARTE                , J.




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