Filed 10/1/15 Taft v. American Univ. of the Caribbean School of Medicine CA2/6

                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION SIX

FOSTER TAFT,                                                               2d Civil No. B260943
                                                                  (Super. Ct. No. 56-2014-00447716-CU-
     Plaintiff and Appellant,                                                    FR-VTA)
                                                                              (Ventura County)
v.                                                                           MODIFICATION
                                                                     NO CHANGE IN JUDGMENT
AMERICAN UNIVERSITY OF THE
CARIBBEAN SCHOOL OF MEDICINE,
ET AL,

     Defendants and Respondents.


THE COURT:

         The opinion filed herein on September 22 is modified as follows:
          On page 8 the first names of the attorneys should read Dune and Patricia.
         Attorneys for Respondent then should read McKasson & Klein, Neil B. Klein and
Maria del Rocio Ashby.

         NO CHANGE IN JUDGMENT.
Filed 9/22/15 Taft v. American Univ. of the Caribbean School of Medicine CA2/6 (unmodified version)
                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION SIX


FOSTER TAFT,                                                               2d Civil No. B260943
                                                                  (Super. Ct. No. 56-2014-00447716-CU-
     Plaintiff and Appellant,                                                    FR-VTA)
                                                                              (Ventura County)
v.

AMERICAN UNIVERSITY OF THE
CARIBBEAN SCHOOL OF MEDICINE,
et al.,

     Defendants and Respondents.



         Foster Taft, proceeding in propria persona, appeals from the judgment of dismissal
entered in favor of respondents American University of the Caribbean School of
Medicine (American University) and Yife Tien. The judgment was entered after the trial
court had sustained respondents' demurrer to appellant's third amended complaint
(complaint) without leave to amend.
         The caption of the complaint shows two causes of action: fraud and wrongful
dismissal from American University. But the allegations of the complaint show only a
single cause of action for fraudulently misrepresenting why American University had
dismissed appellant. The complaint alleges, "The dismissal was fraudulent therefore it
[was] wrong."1 In his opening brief appellant states, "Since the wrongful dismissal is
based on the dismissal being fraudulent, [citation] the cause of action referred to must be
the fraud."
       Appellant contends that the trial court erroneously concluded that the cause of
action for fraud is time-barred. Appellant was dismissed from American University in
March 1993, but the action was not filed until January 2014. Appellant argues that the
action was timely filed because the discovery rule delayed accrual of the cause of action
for fraud. We affirm.
                        Complaint's Allegations and Facts Appearing
                        In the 15 Exhibits Attached to the Complaint
       Appellant was enrolled as a student in American University, a medical school on a
Caribbean island. He had completed his first two years of classroom study and "had
begun medical clerkship training" at a hospital in the United States. On March 9, 1993,
the hospital dismissed him from its clerkship program after he had been involved in an
incident requiring the intervention of the hospital's security department. In a letter dated
March 10, 1993, the hospital wrote that faculty "had serious questions about [appellant's]
interpersonal skills with faculty, peers and ultimately patients." They also had "concerns
about his academic suitability for remaining in [the hospital's] program." "[A]round the
time of [his] dismissal," appellant saw the hospital's letter.
       After his dismissal from the clerkship program, respondent Yife Tien, a
representative of American University, told appellant "that he had missed a meeting with
the School's Dean." Tien also "referred to a situation where [appellant] reported another
student for making threats. Yife Tien said that [appellant] had been warned in a letter
that any kind of trouble could get [him] dismissed from [American University]."


1
 "[T]he allegations in the body of the complaint, not the caption, constitute the cause of
action against the defendant. [Citation.]" (Davaloo v. State Farm Ins. Co. (2005) 135
Cal.App.4th 409, 418.)


                                                  2
       In a letter dated March 22, 1993, the assistant dean of American University
informed appellant that he had been dismissed. The letter stated: "This action was taken
as a result of your difficulties at Providence Hospital. You were informed in a letter
dated November 10, 1992, that you may be dismissed if you continued to have academic
or non-academic difficulties." Appellant appealed the dismissal, but the president of
American University upheld it.
       In 2011 appellant applied for admission to the Medical College of Wisconsin,
which required "letters from schools where applicants were subject to disciplinary
action." Appellant requested a letter from American University, but it did not respond to
his request.
       In 2012 appellant made a second request for a letter. In January 2013 American
University's "parent organization," DeVry Inc., replied: "Your request for a letter stating
the purported reasons for your dismissal is respectfully denied." The reply "convinced
[appellant] that the original representation of his dismissal from [American University]
was fraudulent." "This discovery in January 2013, of [American University's] fraudulent
action against plaintiff, tolled . . . the statute of limitation for his action."
       In March 2013 appellant viewed his school records for the first time. He "was
shocked to see criticisms of his religious observations[2] . . . , a statement regarding his
complaints of harassment as trivial . . . , and a[] stunning assortment of derogatory, false,
unqualified and defamatory comments by people that did not know [him] . . . .
[Appellant] considered these [records to be] new discoveries."
       Attached to the complaint is an unsworn statement by Nancy J. Heisel, M.D.,
American University's former assistant dean of students who wrote the letter of dismissal
in 1993. Her statement is dated April 8, 2014. Heisel said that appellant "had destroyed
the relationship [American University] had with one or two hospitals, making it so we

2
  Appellant was apparently referring to a confidential letter from a psychologist noting
that, for religious reasons, appellant had refused to take an anatomy examination on a
Saturday even though he is "apparently a Catholic and not a Seventh Day Adventist or
Jewish." Thus, "his belief about the sanctity of Saturdays seemed rather idiosyncratic."
                                                  3
could no longer place students there." She further stated: "[T]here was no option but for
[appellant] to be dismissed" because "[n]o hospital would accept him into a clerkship and
there is no way to complete medical school without doing two years of successful clinic
clerkships." Appellant alleged that the "no option" reason for dismissing him was "not
communicated to him at the time of his dismissal." If he "had known this was [American
University's] reasoning for dismissing [him], [h]e could and would have sought a position
at the hundreds of hospitals in this country that had residency programs." The omission
of the "no option" reason in the 1993 letter of dismissal is "direct proof of fraudulent
dismissal."
       Appellant claimed that his discovery of the "no option" reason for dismissing him
"was another discovery to start the statute of limitations for this action." But the basis for
his discovery, Heisel's unsworn statement, was made in April 2014, more than two
months after appellant's original complaint had been filed in January 2014.
       Appellant asserted that American University had "dismissed him because he felt
he and others had individual rights and he acted on those beliefs." The dismissal
occurred "after he did not back up a false report by a physician regarding a patient's
death" and after he had made "a formal complaint about a medical student, in a clerkship,
exhibiting threatening behavior." Moreover, respondents made him "get a psychiatric
evaluation because he expressed concern for a psychiatric patient's rights and wanted the
patient's consent before discussing an interview."
       Appellant continued: "The fraudulent dismissal impaired [his] ability to continue
his medical education. [H]e could not continue in [American University's] program, and
it created unwarranted taint on his medical school record alienating other potential
schools." As damages, appellant sought "[t]uition costs of $36,000" and "[l]ost earnings
of $2,500,000."
                                    Trial Court's Ruling
       The trial court ruled that the "statute of limitations has run and [appellant] has not
met [his] burden . . . to demonstrate that the discovery rule delayed the accrual of a cause
of action." The court reasoned: "[Appellant] must have suspected that his dismissal was
                                              4
wrongful because of [his] own allegations in his amended complaint about his dismissals
and treatment. [Appellant] has not alleged any facts that he made a reasonable
investigation because of the dismissal and treatment, and if the investigation had been
done, the facts that [appellant] now alleges and relies on for this suit were in his file, and
the statute of limitations began to run in 1993."
                                     Standard of Review
       "Because the function of a demurrer is to test the sufficiency of a pleading as a
matter of law, we apply the de novo standard of review in an appeal following the
sustaining of a demurrer . . . ." (California Logistics, Inc. v. State (2008) 161
Cal.App.4th 242, 247.) "[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts that may fairly be implied
or inferred from the express allegations. [Citation.] 'We do not, however, assume the
truth of contentions, deductions, or conclusions of fact or law.' [Citation.]" (Cobb v.
O'Connell (2005) 134 Cal.App.4th 91, 95.) "If facts appearing in the exhibits contradict
those alleged [in the complaint], the facts in the exhibits take precedence. [Citation.]"
(Holland v. Morse Diesel International Inc. (2001) 86 Cal.App.4th 1443, 1447.) On
appeal, "[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to
establish every element of the cause of action and overcoming all of the legal grounds on
which the trial court sustained the demurrer . . . ." (Martin v. Bridgeport Cmty. Ass'n,
Inc. (2009) 173 Cal.App.4th 1024, 1031.)
                       The Cause of Action for Fraud is Time-Barred
       A cause of action for fraud must be filed within three years after the cause of
action accrued. (Code Civ. Proc., § 338, subd. (d).) "The cause of action . . . is not
deemed to have accrued until the discovery, by the aggrieved party, of the facts
constituting the fraud . . . ." (Ibid.) "The discovery rule only delays accrual until the
plaintiff has, or should have, inquiry notice of the cause of action. . . . In other words,
plaintiffs are required to conduct a reasonable investigation after becoming aware of an
injury, and are charged with knowledge of the information that would have been revealed
by such an investigation. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-
                                              5
808.) "Simply put, in order to employ the discovery rule to delay accrual of a cause of
action, a potential plaintiff who suspects that an injury has been wrongfully caused must
conduct a reasonable investigation of all potential causes of that injury. If such an
investigation would have disclosed a factual basis for a cause of action, the statute of
limitations begins to run on that cause of action when the investigation would have
brought such information to light." (Id., at pp. 808-809.)
       "In order to rely on the discovery rule for delayed accrual of a cause of action, '[a]
plaintiff whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the time and
manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.' [Citation.] In assessing the sufficiency of the allegations of
delayed discovery, the court places the burden on the plaintiff to 'show diligence';
'conclusory allegations will not withstand demurrer.' [Citation.]" (Fox v. Ethicon Endo-
Surgery, Inc., supra, 35 Cal.4th at p. 808.)
       Appellant alleges he was injured in March 1993 when he was dismissed from
American University. For almost 20 years, he did not investigate why he had been
dismissed. In the 1993 letter of dismissal, American University said that he had been
dismissed because of his "difficulties at Providence Hospital." But at the time of his
dismissal, appellant had cause to suspect that the dismissal was based on other improper
reasons. In his complaint appellant alleged that he had been dismissed "after he did not
back up a false report by a physician regarding a patient's death" and after he had made "a
formal complaint about a medical student, in a clerkship, exhibiting threatening
behavior." Appellant also alleged that respondents had made him "get a psychiatric
evaluation because he expressed concern for a psychiatric patient's rights and wanted the
patient's consent before discussing an interview." Respondent Tien told appellant "that
he had missed a meeting with the School's Dean." But appellant protested that he had not
"received . . . notice of the Dean['s] meeting."
       Appellant's knowledge of the above facts put him on inquiry notice of a potential
cause of action against respondents for misrepresenting why American University had
                                                6
dismissed him. Appellant has not alleged facts showing that, "despite diligent
investigation of the circumstances of the [dismissal], he . . . could not have reasonably
discovered facts supporting the cause of action within the applicable statute of limitations
period." (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 809.)
                 No Abuse of Discretion in Not Granting Leave to Amend
       "[I]t is an abuse of discretion for the [trial] court to sustain a demurrer without
leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be
cured by amendment. [Citation.]" (California Logistics, Inc. v. State, supra, 161
Cal.App.4th at p. 247.) The burden is on appellant to show an abuse of discretion.
(Stanson v. Brown (1975) 49 Cal.App.3d 812, 814.) "[P]laintiff must show in what
manner the complaint could be amended and how the amendment would change the legal
effect of the complaint . . . ." (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 992.)
Appellant has failed to make the required showing.
                                         Disposition
       The judgment is affirmed. Respondents shall recover their costs on appeal.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.
       We concur:



              GILBERT, P. J.



              PERREN, J.




                                                  7
                                      Kent Kellegrew, Judge

                                Superior Court County of Ventura

                              ______________________________


              Foster Taft, in pro per, Plaintiff and Appellant.


              Dane Morris, Patrixcia P. Hollenbeck and Heather U. Guerena, for
American University, Defendant and Respondent.


              McKesson & Klein, Neil B. Klein, for Paul Tien, Defendant and
Respondent.




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