                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 25 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JASON TECZA,                                      No. 10-16270

              Plaintiff - Appellant,              D.C. No. 3:09-cv-03808-RS

  v.
                                                  MEMORANDUM *
UNIVERSITY OF SAN FRANCISCO,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                        Argued and Submitted June 12, 2013
                             San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and MARSHALL, Senior District
Judge.**

       Jason Tecza (“Tecza”) appeals the district court’s dismissal of his complaint

against the University of San Francisco (“USF”) for failure to state a claim under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. §

1291. We affirm in part, and reverse and remand in part.

      We review de novo a dismissal for failure to state a claim pursuant to Rule

12(b)(6). Coal. for ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501

(9th Cir. 2010). Where, as here, the complaint was drafted by a pro se plaintiff, we

construe the complaint liberally. Wolfe v. Strankman, 392 F.3d 358, 362

(9th Cir. 2004). In addition, where claims involve questions of state law, we are

“bound by the decision of the highest state court,” and, “[i]n the absence of such a

decision, [we] must predict how the highest state court would decide the issue

using intermediate appellate court decisions, decisions from other jurisdictions,

statutes, treatises, and restatements as guidance.” In re Kirkland, 915 F.2d 1236,

1238–39 (9th Cir. 1990).

      1. With regard to Tecza’s negligence claim, we agree with the district court

that Tecza failed to allege sufficient facts showing that USF owed him a duty of

care. See J’Aire Corp. v. Gregory, 598 P.2d 60, 62 (Cal. 1979). Tecza has not

shown that the California Supreme Court would recognize a common-law duty of

care here, see O'Neil v. Crane Co., 266 P.3d 987, 1006 (Cal. 2012), and to the

extent Tecza argues that USF had a duty based on its contractual relationship with

him, any such duty is better enforced through Tecza’s claim for breach of contract,


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Erlich v. Menezes, 981 P.2d 978, 983–84 (Cal. 1999); see also Aas v. Super. Ct., 12

P.3d 1125, 1135 (Cal. 2000). Accordingly, we affirm the district court’s dismissal

of Tecza’s negligence claim.

         2. We also agree that Tecza failed to state a claim under California’s Unfair

Competition Law. See Cal. Bus. & Prof. Code § 17200 et seq. Even assuming that

Tecza’s complaint should be read to allege that this claim is based on USF’s

violation of policies in its handbooks, Tecza has failed to allege any actions by

USF that would constitute a business practice. Cf. Barquis v. Merchs. Collection

Ass’n of Oakland, Inc., 496 P.2d 817, 831 (Cal. 1972) (in bank). Accordingly, we

affirm the district court’s dismissal of Tecza’s California Unfair Competition Law

claim.

         3. We conclude, however, that the district court erred in dismissing Tecza’s

contract claim. Under California law, to assert a claim for breach of contract a

plaintiff must show: “(1) a contract, (2) plaintiff’s performance or excuse for

nonperformance, (3) defendant’s breach, and (4) damage to plaintiff.” Walsh v. W.

Valley Mission Cmty. Coll. Dist., 78 Cal. Rptr. 2d. 725, 733 (Ct. App. 1998).

The district court concluded that Tecza failed to allege the first element—the

existence of a contract. But USF effectively conceded at oral argument that such a

contract existed. And, in any event, the California Supreme Court likely would


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conclude that a general contractual relationship existed between Tecza and USF,

and that the contract included the terms Tecza quoted out of USF’s Student

Disability Services Handbook, including USF’s promise to keep all information

pertaining to Tecza’s disability confidential. See Kashmiri v. Regents of Univ. of

Cal., 67 Cal. Rptr. 3d 635, 646–47 (Ct. App. 2007); Zumbrun v. Univ. of S. Cal.,

101 Cal. Rptr. 499, 504 (Ct. App. 1972); cf. Paulsen v. Golden Gate Univ., 602

P.2d 778, 783 (Cal. 1979) (in bank).

      We thus reverse the district court’s dismissal of Tecza’s breach of contract

claim. Since the district court did not consider the other elements of this claim,

beyond the existence of a contract, we remand to the district court for its

consideration of the remaining elements in the first instance.

      4. We also conclude that the district court erred in dismissing Tecza’s

common-law invasion of privacy claim for public disclosure of private facts. To

establish the tort of public disclosure of private facts, a plaintiff must show “(1)

public disclosure (2) of a private fact (3) which would be offensive and

objectionable to the reasonable person and (4) which is not of legitimate public

concern.” Shulman v. Grp. W Prods., Inc., 955 P.2d 469, 478 (Cal. 1998). The

district court concluded that Tecza failed to allege the second element—that the

facts disclosed were private. We disagree. Tecza sufficiently alleged that


                                           4
information disclosed by USF regarding his accommodations was not already

public knowledge. See Gill v. Hearst Pub. Co., 253 P.2d 441, 444 (Cal. 1953) (in

bank); Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665, 669 (Ct. App. 1984).

Moreover, to the extent that USF’s disclosure indirectly revealed some underlying

medical information—that Tecza likely had a disability and some additional

information that might allow a person to make inferences about the general nature

of Tecza’s disability—California courts have considered medical information to be

a private fact. See Jeffrey H. v. Imai, Tadlock & Keeney, 101 Cal. Rptr. 2d 916,

920–21 (Ct. App. 2001); cf. Hill v. Nat'l Collegiate Athletic Assn., 865 P.2d 633,

657–58 (Cal. 1994).

      We thus reverse the district court’s dismissal of Tecza’s claim of public

disclosure of private facts. Since the district court did not consider the other

elements of this claim, we remand to the district court for its consideration of the

remaining elements in the first instance.

      5. With regard to Tecza’s claim for invasion of privacy under the California

Constitution, the district court failed to address this claim in its decision. Although

Tecza did not allege constitutional privacy as a separate cause of action in his

complaint, he did specifically allege the claim. Since we construe complaints

drafted by pro se plaintiffs liberally, see Wolfe, 392 F.3d at 362, the district court


                                            5
should have considered Tecza’s constitutional privacy claim. We thus remand to

the district court for its consideration of this claim in the first instance.

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, REVERSED and REMANDED in part.




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