Opinion
B155508.
7-31-2003
SANDRA V., Plaintiff and Appellant, v. CALIFORNIA INSTITUTE OF THE ARTS et al., Defendants and Respondents.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-Lewis for Plaintiff and Appellant. Musick, Peeler & Garrett, Stuart W. Rudnick and Kirsten C. Love for Defendants and Respondents.
I. INTRODUCTION
Plaintiff, Sandra V., appeals from a judgment entered after the trial court sustained without leave to amend demurrers to certain causes of action and granted summary judgment on her contract breach and negligence claims. Plaintiff has also appealed from an order denying a motion to tax costs. For the reasons stated below, we affirm the judgment in its entirety.
II. THE DEMURRER
A. The Pleading
The operative pleading in this case is the second amended complaint filed November 28, 2000, after the trial court sustained demurrers to the original and first amended complaints. Plaintiff named as defendants the California Institute of the Arts (the school) and certain of its employees: David Rosenbloom (Dean of the Music School); Steven Levine (President); Beverly ONeill (Provost); John Bache (Assistant Provost); and Yvonne Guy (Dean of Student Affairs). The second amended complaint asserted claims for: express and implied contract breach (first); fraud (second); negligence (third), intentional infliction of emotional distress (fourth); violation of civil rights, anti-discrimination and Sex Equity in Education Act (fifth); and violation of Business and Profession Code section 17200 (sixth). The fourth cause of action for intentional emotional distress infliction was against an individual who is not a party to this appeal.
Plaintiff, a Mexican-American woman, became a student at the school in the fall of 1996. She alleged the school had a contract with her to provide her the best education possible in a safe and secure environment which was free from harassment, retaliation, and abuse. Plaintiff was pursuing a bachelor of fine arts degree in the Musical Arts Instrumental Studies Program, which included study of West African music. The West African music program was taught by Kobla, Alfred, and Beatrice Ladzekpo. Kobla and Ms. Ladzekpo, who were husband and wife, taught a class together. Mr. Ladzekpo, was Koblas brother. Mr. Ladzekpo taught his own classes. The brothers did not get along and had very different teaching styles. Students in the program were required to take courses from the two brothers at the same time. The students were subjected to abuse, chastisement, and public humiliation for utilizing the styles and methods taught by the brothers when taking a class taught by the other sibling.
Solely for purposes of clarity and not out of any disrespect of them, Kobla Ladzekpo will be referred to as Kobla. Alfred Ladzekpo will be referred to as Mr. Ladzekpo. Beatrice Ladzekpo will be referred to as Ms. Ladzekpo.
Between the fall of 1996 and into 1997, plaintiff was subjected to unwanted sexual advances by her instructor, Kobla. In the spring of 1997, plaintiff attended a graduation reception, which was open to the public. A public announcement was made asking all persons present to join in a dance performance. When plaintiff along with other members of the audience joined in, Ms. Ladzekpo stopped the music and pointed at plaintiff. Ms. Ladzekpo indicated that, if plaintiff did not leave, the dance performance would not continue. Plaintiff alleged that she was effectively prevented from taking a full range of courses because she could not take any classes from Kobla from 1998 to 1999.
In July 1997, Koblas unwanted sexual advances caused plaintiff to file a complaint with the school. On July 24, 1997, Dr. ONeill, Dr. Bache, and Dr. Guy, sent a letter to plaintiff. The letter indicated they had discussed the sexual harassment allegation with Kobla. The letter also reiterated the schools policy against retaliation for making harassment and discrimination complaints. Thereafter, plaintiff was subjected to harassment, retaliation, and abuse from staff and instructors. She was ostracized and harassed until she graduated in May 1999. On an unspecified date after July 24, 1997, plaintiff alleged that Kobla asked her to leave his classroom and when she refused, he left the room and would not teach the class.
On April 15, 1999, the students at the school produced a noon-time concert, in which plaintiff was a scheduled dancer as a member of Mr. Ladzekpos dance ensemble group. Yeko Ladzekpo, who is also a defendant in this action but not a party to this appeal, was to be the lead drummer of the dance group. Yeko was the daughter of Kobla and Ms. Ladzekpo and a student at the school. Yeko refused to play the drums if plaintiff was allowed to participate in the program. Plaintiff alleged that she "backed out" of the performance because she did not want to cause the dance presentation to be cancelled. Plaintiff reported the incident to Dr. Rosenbloom, the music school dean, stated, "I wish this problem did not exist" and "I dont know how to get rid of the problem without cancelling the program." Plaintiff filed an incident report and turned it into the deans office.
For purposes of clarity and not out of any disrespect, Yeko Ladzekpo will be referred to as Yeko.
On April 16, 1999, plaintiff and Yeko passed each other in the hallway. Yeko stated, "I never said you couldnt dance, I just told Marla that there was no way that I was going to sit there and play next to your lying bitch ass." Yeko then accused plaintiff of lying about the sexual harassment complaint about her father, Kobla. Yeko stated that plaintiff would get what was "coming to her." When plaintiff turned to leave, Yeko stated, "Dont you ever fuck with my family, or youll get whats coming to you." As plaintiff walked away, Yeko stated, "And, dont worry, youre going to get your little graduation present."
On April 17, 1999, the next day, plaintiffs father reported the incident to the school. It was alleged on information and belief that Yeko had a history of physical confrontation with other students and the school had previously restricted her from being at the campus. The report was sent to Dr. Levine, Dr. ONeill, Dr. Bache, and Dr. Rosenbloom, who did nothing to stop the ongoing retaliatory conduct. Plaintiff further alleged that instead of handling the confidentially issues with the Ladzekpo family, the school treated the matter publicly which caused her to suffer humiliation, anxiety, and embarrassment. According to plaintiff, the school targeted the entire African music program implying that it would be cancelled because of her complaints, which caused the student body to blame her.
On December 28, 2000, defendants demurred to the second amended complaint. Defendants argued the fraud cause of action (second) was not pled with sufficient specificity. Defendants further argued that the violation of civil rights cause of action (fifth) failed to allege facts showing: the intimidation by threat of violence was based on plaintiffs sex; the school committed any intentional act of violence or intimidation by threat or violence; or that the school discriminated or harassed plaintiff on the basis of her sex. The demurrer to the violation of the unfair business practice cause of action (sixth) was brought on the grounds there were no facts showing the public was likely to be deceived or that the schools acts or practices were illegal.
The trial court sustained the demurrers to the second, fifth, and sixth cause of actions without leave to amend. The court ordered the defendants to answer the remaining causes of action.
B. Review of the Demurrers
The Supreme Court has defined our task as follows, "`Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action." (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300, 926 P.2d 1042; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal. Rptr. 146, 793 P.2d 479.) The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v . Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558, 950 P.2d 1086; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300;Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 831 P.2d 317.) However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at pp. 300-301; Moore v. Regents of University of California supra, 51 Cal.3d at p. 125.) Furthermore, any allegations that are contrary to the law or to a fact of which judicial notice may be taken will be treated as a nullity. (Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143; Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal. App. 3d 951, 955, 199 Cal. Rptr. 789.) The Supreme Court has held: "On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 819 P.2d 1; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal. Rptr. 375, 556 P.2d 737.) For the reasons stated below, we conclude the trial court did not err is sustaining the demurrers to the causes of action for fraud (second), violation of statutes prohibiting discrimination (fifth), and unfair business practices (sixth).
1. The fraud cause of action
Plaintiff argues the trial court erred in sustaining without leave to amend the demurrer to the fraud cause of action. The Supreme Court has held, "`The elements of fraud . . . are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 909 P.2d 981 quoting 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778.) A complaint which alleges a traditional fraud cause of action must be pled specifically because general and conclusory allegations do not suffice to withstand a challenge at the pleading stage. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645; Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 74, 269 Cal. Rptr. 337; 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 662, pp. 111-112.) The policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a defective fraud claim. (Lazar v. Superior Court , supra, 12 Cal.4th at p. 645; Cooper v. Equity Gen. Insurance (1990) 219 Cal. App. 3d 1252, 1262, 268 Cal. Rptr. 692.) The Supreme Court held, "`This particularity requirement necessitates pleading facts which "show how, when, where, to whom, and by what means the representations were tendered."" (Stansfield [v. Starkey ], supra, 220 Cal. App. 3d at p. 73 [].) A plaintiffs burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must `allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157, [].)" (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)
In this case, plaintiff alleged that the school from 1996 through May 21, 1999, through its agents and employees promised that her enrollment would continue and that she would obtain the best possible education without fear of harassment, retaliation, humiliation, embarrassment, and abuse. The promises were alleged to have been in the written polices including the schools sexual harassment policy. The policies were also alleged to have been in the letter sent to her on July 24, 1997, by Dr. ONeill, Dr. Bache, and Dr. Guy who acted on behalf of the school and Dr. Rosenbloom. This letter stated in part, "Cal Arts will not tolerate any form of retaliation against you for having brought this serious matter to our attention." Plaintiff alleged that in July 1997 through May 1999, Dr. Rosenbloom, Dr. ONeill, Dr. Bache, and Dr. Guy promised to conduct a thorough, complete, and confidential investigation into the harassing and retaliatory conduct of Kobla, Ms. Ladzekpo, and Yeko following the sexual harassment complaint. Plaintiff further alleged she relied on these representations which she discovered were false on or about April 15, 1999, when she was harassed, humiliated, and embarrassed and retaliated against for her July 24, 1997, complaint.
We agree with the trial court that these allegations are insufficient to meet the fraud pleading requirements. The policy and July 24, 1997, letter establish the existence of a policy against sexual harassment and retaliation for making complaints. The policy and letter also demonstrate that the school would take immediate action should plaintiff report any violations of the policy or retaliation for such actions. Absent from the second amended complaint are any factual allegations that the persons making representations concerning the sexual harassment policy to plaintiff knew of their falsity at the time the statements were made. (Sun N Sand, Inc. v. United Calif. Bank (1978) 21 Cal.3d 671, 703, 148 Cal. Rptr. 329, 582 P.2d 920.) There are also no allegations that the statements concerning the sexual harassment policy were made with intent to deceive or they were in fact false at the time they were made. (Ibid.; Harding v. Robinson (1917) 175 Cal. 534, 539, 166 P. 808.) Furthermore, contrary to plaintiffs suggestions, the policy and letter do promise not purport to promise that plaintiff would never suffer harassment or discrimination while attending the school. In that respect, plaintiff alleged no facts to demonstrate: what specific persons made the representation that she would never be exposed to such conduct; the authority of such person or persons to make such a representation; when and where such a representation was made; and whether the representation was oral or written.
With respect to the retaliation claims, a careful reading of the second amended complaint shows that there are no specific acts of retaliation alleged against plaintiff until April 1999. The second amended complaint alleged that plaintiff was sexually harassed by Kobla in the fall of 1996 and until 1997. She complained about the harassment to the school administrators in July 1997. After she filed a complaint, the school sent a letter on July 24, 1997, to her disclosing the actions the school had taken to remedy the situation. The July 24, 1997, letter, signed by Dr. ONeill, Dr. Bache, and Dr. Guy, was attached to the second amended complaint. The letter stated that: they had discussed the complaint with Kobla; the school had a policy against retaliation for making sexual harassment and discrimination complaints; and that no forms of harassment, discrimination, or retaliation would be tolerated. The second amended complaint alleged that after she rejected his sexual advances and complained against him, plaintiff was subjected to retaliation and inequitable treatment. The retaliation was directed at plaintiff by Kobla and Ms. Ladzekpo, another instructor at the school. Kobla was alleged to have asked plaintiff to leave the classroom in front of an entire class or he would not teach. When she refused, he left and refused to teach the class. However, no date is alleged with regard to this incident with Kobla. Ms. Ladzekpo was alleged to have refused to participate in a program in the spring of 1997, which predated the July 1997 sexual harassment complaint. There was misconduct by Yeko, which occurred 21 months after plaintiff filed the complaint against Kobla. But there were no specific allegations linking Yekos April 15 and 16, 1999, misconduct in connection with the concert and the threats. Under these circumstances, the trial court properly sustained the demurrer.
Plaintiff has also failed to demonstrate that the trial court abused its discretion in sustaining the demurrer without leave to amend. (Hendy v. Losse, supra, 54 Cal.3d at p. 742; Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) Plaintiff was given three opportunities to allege fraud. She has also not shown how the defects could have been cured. Accordingly, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.
2. The statutory violations
Plaintiff argues that the trial court erred in sustaining a demurrer to her cause of action for violation of her civil rights under Civil Code section 51.7 and discrimination under the Education Code section 66270 (fifth). This is because: she was a Mexican-American female who filed a sexual harassment complaint; Kobla, Ms. Ladzekpo, and Yeko harassed and retaliated against plaintiff due to the July 1997 sexual harassment complaint; the school intentionally failed to prevent or prohibit the harassment, retaliation, and abuse from occurring; and the schools inaction led to Yekos threats of violence.
Civil Code section 51.7 provides in part: "(a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification of this subdivision of particular bases of discrimination is illustrative rather than restrictive." Education Code section 66270 provides: "No person shall be subjected to discrimination on the basis of sex, ethnic group identification, race, national origin, religion, color, or mental or physical disability, or any basis that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid."
After the third attempt to state a claim, the trial court properly sustained the demurrer to this cause of action without leave to amend on both statutory theories. The second amended complaint contains no allegations that plaintiff was subjected to violence or intimidation by threat on the basis of her sex. (Civ. Code, § 51.7; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111; see also Coon v. Joseph (1987) 192 Cal. App. 3d 1269, 1277, 237 Cal. Rptr. 873 [unambiguous language of Civil Code section 51.7 requires that violence or intimidation be "because of" specific classification].) The only allegation of threats made against plaintiff related to conduct by Yeko, who was not a school employee, in April 1999. However, the allegations do not establish that Yeko made the alleged threats on the basis of plaintiffs sex or ethnicity. There is also no allegation which would establish that the school acted or failed to act on the basis that plaintiff is a Mexican-American female. Likewise, there are no allegations that the school discriminated against plaintiff on the basis of her sex in violation of Education Code section 66270 which prohibits "discrimination on the basis of sex."
3. The unfair competition cause of action
Plaintiff contends the demurrer to her Business and Professions Code section 17200 cause of action should have been overruled. Plaintiff contends the allegations of the second amended complaint were sufficient to establish defendants engaged in an unlawful, unfair, and fraudulent business practice: by breaching the aforementioned contract; by acting negligently; and in falsely advertising in their policy handbook that no harassment, abuse, or retaliation would be condoned.
Business and Professions Code section 17200 provides: "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." In Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266-1267, 833 P.2d 545 explained: "The Unfair Business Practices Act defines `unfair competition as any `unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising . . . . ( § 17200.) The Legislature intended this `sweeping language to include `"anything that can be properly called a business practice and that at the same time is forbidden by law." [Citations.] In drafting the act, the Legislature deliberately traded the attributes of tort law for speed and administrative simplicity. As a result, to state a claim under the act one need not plead and prove the elements of a tort. Instead, one need only show that `members of the public are likely to be deceived. [Citations.]" (See also Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561-567, 950 P.2d 1086; Hernandez v. Atlantic Finance Co. (1980) 105 Cal. App. 3d 65, 71-73, 164 Cal. Rptr. 279.) Section 17200 "borrows" violations of federal, state, or local law and treats them as unlawful practices which are independently actionable under the Unfair Business Practices Act. (State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1102-1103; People v. Morse (1993) 21 Cal.App.4th 259, 270-271.) Because Business and Professions Code section 17200 is in the disjunctive, it prohibits practices that are either "unfair," or "unlawful," or "fraudulent." (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647; State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1102.) Thus, it is not unnecessary for a business practice to be unlawful in order to be subject to the Unfair Business Practices Act. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180, 973 P.2d 527; see Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) The "unlawful" prong makes a violation of the underlying law itself violative of Business and Professions Code section 17200. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th at p. 180; People ex rel. Bill Lockyer v. Fremont Ins. Co. (2002) 104 Cal.App.4th 508, 515.) The "unfair" standard is sufficiently broad to allow courts to have maximum discretion to prohibit schemes to defraud. (Podolsky v. First Healthcare Corp., supra, 50 Cal.App.4th at p. 647; State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1103.) Courts weigh competing interests in Business and Professions Code section 17200 litigation as follows, "Whether a business practice or act is `unfair . . . entails examination of the impact of the practice or act on its victim . . . against the reasons, justifications and motives of the alleged wrongdoer." (Klein v . Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969; State Farm Fire & Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at pp. 1103-1104.) An "unfair" business practice is actionable under Business and Professions Code section 17200 even if it is not "deceptive" or "unlawful." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th at p. 180; Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal.App.4th 345, 351.) The term `fraud is not predicated upon proof of the common law tort of deceit or deception but simply means whether the public is likely to be deceived. (Committee on Childrens Television, Inc. v. General Foods, Corp. (1983) 35 Cal.3d 197, 211, 197 Cal. Rptr. 783, 673 P.2d 660; Klein v. Earth Elements, Inc., supra, 59 Cal.App.4th at p. 970.) A plaintiff can prove a prima facie case of a "fraudulent" business practice without having to show intent, scienter, actual reliance, or damage. (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167; Podolsky v. First Healthcare Corp., supra, 50 Cal.App.4th at pp. 647-648.) A plaintiff is not required to allege actual deception but is merely required to allege that "members of the public are likely to be deceived." (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267 .)
The sixth cause of action incorporated all of the allegations of the second amended complaint. Plaintiffs theory is that the sexual harassment policy constituted false advertising. At the hearing on the demurrer, plaintiff asserted that the unfair competition law cause of action was based primarily on the alleged statutory violations of Civil Code section 51.7 and Education Code section 66720. As we have concluded above, there is no merit to these claims. Our previously articulated analysis applies equally to the sixth cause of action. On appeal and without citing to any authority, plaintiff argues the contract breach and negligence claims are sufficient to satisfy the pleading standards for an unfair competition law violation cause of action. We disagree.
Plaintiff was allowed to proceed with her contract breach and negligence claims after the demurrer to the second amended complaint was sustained in part without leave to amend. But, the conduct alleged in the second amended complaint does not fit the likely to be deceived, unfairness, or unlawful requirements of the unfair competition law. While according to the second amended complaint, plaintiff was sexually harassed and subjected to other types of oppressive conduct, there is no indication that the policy caused the conduct, was unlawful, or likely to deceive. Plaintiff has cited no authority which makes any sexual harassment incident actionable under the unfair competition law. Such a standard would require the school to guarantee that the behavior of all its faculty and students would act consistent with the policy at all times. This would be exceptionally unreasonable burden to place on a college. Furthermore, there is absolutely nothing deceptive, unfair, or unlawful about having a policy prohibiting such actions. Likewise, there is nothing which establishes the schools conduct alleged in the second amended complaint violates the unfair competition law. In fact, the second amended complaint shows that upon learning of the sexual misconduct allegations, the school acted immediately to correct the situation. Thus, to the extent that it was alleged that the school acted negligently in conducting an investigation into plaintiffs particular case, there are insufficient allegations that the public was likely to be deceived by the handbook. After three attempts to cure the defects in this claim, the trial court, without abusing its discretion, could properly sustain the demurrer to the sixth cause of action without leave to amend.
III. SUMMARY JUDGMENT
A. The Summary Judgment Motion
1. The moving papers
After answering the second amended complaint, the school moved for summary judgment or adjudication of issues. In support of the motion, defendants identified 28 undisputed facts. Those facts consisted of the following. The school is a fully accredited, private postsecondary educational institution that confers fine arts degrees at the undergraduate and graduate level. The school has a written Policy on Sexual Harassment. The written policy provides in part: "I. INTRODUCTION [P] [the school] is committed to maintaining a learning and working environment that is free from sexual harassment. It is equally committed to maintaining a learning and working environment that guarantees academic and artistic freedom. It is essential to promote a climate of mutual trust conducive to the free examination of challenging ideas, whether in the classroom or the studio, a climate which seeks neither to neutralize content nor to prohibit experimentation. To support academic and artistic freedom and to promote freedom is consistent both with the highest artistic and ethical standards and with Institute goals. [P] II. PURPOSE OF POLICY [P] The purpose of this policy is to (1) familiarize all faculty, staff and students with the definition of sexual harassment and the forms it can take; (2) make clear that sexual harassment is prohibited and will be punished; (3) inform victims of the course of action they should take to report sexual harassment; and (4) clarify the rights of those accused of harassment. . . . [P] VII. RETALIATION PROHIBITED [P] Retaliation against any individual for seeking assistance or bringing a sexual harassment complaint through the processes described in this policy is strictly prohibited. Similarly, any person who participates or cooperates in any manner in an investigation or any other aspect of the process described herein shall not be retaliated against. Retaliation is itself a violation of this policy and is a serious separate offense."
Plaintiff enrolled as a student at the school in the fall of 1996. On or around July 10, 1997, plaintiff made a complaint to the school that Kobla sexually harassed her during the fall 1996 semester. When the school received the complaint, it conducted an investigation. The persons who conducted the investigation were unable to substantiate the truth of plaintiffs allegations that she had been sexually harassed by Kobla. However, in July 1997, Kobla was informed orally and in writing that he was prohibited from retaliating against plaintiff for exercising her right to complain under the schools sexual harassment policy. The school reported the results of the investigation and described its policy concerning retaliation to plaintiff by letter dated July 24, 1997. Plaintiff admitted in her deposition that, Kobla did not sexually harass her or commit any acts of retaliation against her for making the July 1997 sexual harassment complaint at any time after she complained. At plaintiffs deposition, defendants attorney inquired: "After you complained [to] Yvonne Guy on July 10, 1997, did Kobla commit any further acts of sexual harassment against you?" Plaintiff responded: "No." The following colloquy then occurred. "[By defense counsel]: "So Kobla only committed the two acts prior to July 10, 1997 that you reported to Yvonne Guy? [P] A. Yes. [P] Q: There were no further incidents? [P] A. Correct. Im sorry. Can you repeat that question what I just answered? [P] Q: Sure. Kobla only committed the two acts prior to July 10, 1997 that you reported to-Im sorry-maybe you better read that back. [P] (Record read.) [P] The Deponent: Okay. I was interpreting that question based on the previous question which was about sexual harassment. So was that question asking me if no more sexual harassment happened after that point or no more acts, period, like retaliatory act? [P] [By defense counsel] Q: No more sexual harassment acts. [P] A. What I answered the first time is correct. [P] Q. Well, my next question is: Did Kobla engage in any actions that you construed to be in retaliation for your sexual harassment complaint about him in July 1997? [P] A. Im sorry. Can you repeat the question? [P] Q. Did Kobla engage in any actions against you that you construed to be in retaliation for your sexual harassment complaint about Kobla in July of 1997? [P] A. Not for the sexual harassment complaint. [P] Q. You do believe that Kobla engaged in retaliatory actions against you? [P] A. Yes. [P] Q. What did you believe that those actions were in retaliation for? [P] A. For going to him and telling him that - about his teaching methods and not taking his classes anymore. [P] Q. Please specifically describe to me the first act of retaliation that you feel that Kobla took against you because you criticized him for his teaching methods. [P] A. The first incident was [the] spring of 1997 and I was in class and I was doing what I was supposed to do. I was dancing in the African class. And if I remember correctly, it was the Beginning Ensemble class. And that class at that time was being co-taught by Mr. Ladzekpo and Kobla. And in the middle of class Kobla got up and left the room. And five minutes later Donna Holbrook, the music secretary, came down to the African room and removed myself and Tonya Ridgeley out of the class. And she said, `What are you guys doing? [P] And I said, `What do you mean what are we doing? Were in class. [P] She said, `Well, you must be doing something because Kobla [is] really upset. [P] And I said, `I dont know what he would be upset about. Were enrolled in his class and were in our class. Were not doing anything. [P] And she said `Well, he says either you leave or he leaves. [P] And . . . I said `You know what? Im paying a lot of money to go to this school. Im enrolled in that class. And Im going to go back to my class. [P] And at that time . . . Tonya and I both went back to our class, and Kobla at that time had already returned to the classroom. And when we walked in he left. [P] Q. This event that you just described happened sometime during the spring semester 1997? [P] A. Correct. [P] Q. But before July 10, 1997? [P] A. Yes. [P] Q. Let me step back and clarify. [P] When you went back to Kobla and . . . talked to him about his teaching methods before and told him you would no longer be taking his course, what course was that. [P] A. All of them. Whatever class that he was leading."
On April 15, 1999, a performance entitled, "Whythm: Women in World Music," took place on campus, which was student organized, sponsored, and controlled. The student who organized the performance invited plaintiff to participate in the performance as a dancer. The student organizer also asked Koblas daughter, Yeko, to participate in the performance as the lead drummer. Just before the performance was to begin, the student organizer spoke to plaintiff. The student organizer stated plaintiff could not dance in the performance. This was because Yeko, who was also a student, would not play lead drum if plaintiff danced. Because of Yekos conduct, plaintiff did not dance in the performance. On the same day, plaintiff told the Dr. Rosenbloom, the music dean, about Yekos refusal to perform in the concert. Plaintiff also delivered a written complaint to the Dean of Student Affairs Office about the incident.
On April 16, 1999, the day after the performance, plaintiff approached Yeko in the hallway at the school regarding the incident on the previous day. Plaintiff stated, "Do you want me to put your name or your fathers name on the incident report?" Plaintiff alleged that Yeko then stated: "I didnt say you couldnt be in the performance. I just told Marla there was no way I was going to sit next to your lying bitch ass and play the drums"; "If you ever fuck with my family again, youre going to get whats coming to you"; and "Dont worry. Youre going to get your little graduation present too."
On April 16, 1999, plaintiff told Dr. Rosenbloom about the encounter with Yeko. Plaintiff alleged that Yekos comments had been threatening. In response to plaintiffs complaints, the school began an investigation on April 16, 1999. As part of the investigation, persons who may have witnessed the April 15, 1999, or April 16, 1999, incident were interviewed. Yeko and plaintiff were also interviewed. Yeko admitted making statements to the student organizer. This led the student organizer to believe that Yeko would not play lead drums while plaintiff performed as a dancer. Yeko also admitted becoming involved in a verbal altercation. However, Yeko denied making any threats to harm plaintiff.
On April 19, 1999, Yeko was notified in person and in writing that her behavior in refusing to participate in the concert was inappropriate and there would be no further incidents involving plaintiff. Yeko was instructed in a meeting on April 19, 1999, to stay away from plaintiff during the remainder of the school year and at graduation. Yeko indicated that she understood what was expected of her. Yeko promised that she would not have any contact with plaintiff for the remainder of the semester. The school took these actions even though the persons conducting the investigation were unable to substantiate the truth of plaintiffs allegations that Yeko had made a threat. Plaintiff was notified orally and in writing of the results of the investigation. Plaintiff was instructed to contact administrators immediately if there were any further problems with Yeko. Plaintiff admitted in her deposition that after April 16, 1999, she did not encounter any further problems. On May 21, 1999, plaintiff attended the graduation ceremony where she was awarded a bachelor of fine arts degree. Dr. Rosenbloom, Dr. Levine, Dr. ONeill, Dr. Bache, and Dr. Guy declared that they did not know or had no reason to know that Yeko was aware of or knew that plaintiff had filed a sexual harassment complaint in July 1997 concerning Kobla. They also all declared that they had no reason to believe that Yeko had engaged in any conduct with intent to retaliate against plaintiff.
2. The opposition
In opposition to the summary judgment motion, plaintiff argued the motion was procedurally defective in that the statement of facts did not comply with Code of Civil Procedure section 437c, subdivision (h). In addition, plaintiff raised evidentiary and other objections to defendants separate statement of undisputed facts. Rather than addressing the points of laws raised by the summary judgment or adjudication motion, plaintiff indicated that her opposition would be confined to the issue of the sufficiency of the separate statement and to whether discovery had been completed in the matter. The trial court subsequently granted a continuance to allow discovery to be completed.
Plaintiff then argued that summary judgment was inappropriate based on the fact that she is a Mexican-American female who was promised: "the best education possible"; the education would be provided in a safe and secure environment; and her educational experience would be free "from harassment, retaliation and abuse." Plaintiff further argued that she was subjected for "several years" to unwanted sexual advances by a teacher. After reporting the conduct, plaintiff argued she was subject to harassment, retaliation, and abuse from staff and students. Plaintiff argues she was ostracized by the student body and making her life "a living hell" until she graduated in May 1999.
In support of her arguments, plaintiff declared that prior to enrolling at the school, she and her father went to the campus. An individual took plaintiff and her father on a tour and explained the schools programs and facilities. Plaintiff specifically inquired about the policies as to student and teacher, male and female, and racial makeup because she was entering a male-dominated music field. She inquired about the policies concerning areas of sexual preference. The individual assured plaintiff that the school had strong anti-discriminatory policies and there were no problems concerning male domination in the study of music. Plaintiff also received the written policies and believed they would be followed. Plaintiff began taking classes from Kobla, Ms. Ladzekpo and Mr. Ladzekpo. Plaintiff discovered that Mr. Ladzekpo and Kobla did not speak to one another or get along. The teaching methods differed greatly and each would criticize the others styles of instruction. The brothers would verbally abuse, chastise, and publicly humiliate the students who used the others styles. This was done even though the students were required to study under both Kobla and Mr. Ladzekpo. In June 1997, plaintiff along with several other students complained to school administrators. Although plaintiff declared that the meeting took place in June 1997, she inconsistently declared, "Thereafter I attended several meetings between students, faculty and administration regarding the conduct of the teachers, specifically Kobla and [Ms]. Ladzekpo in the Spring of 1997."
Also, plaintiff declared that she was sexually harassed by Kobla in the fall of 1996 and into 1997, which caused her to file a complaint in July 1997. She declared: "After rejecting the sexual advances of Kobla Ladzekpo and filing the sexual harassment complaint against him. I was subjected to retaliation and inequitable academic treatment by him and his family. This included being asked by Kobla to leave a class in front of the entire class of students or he would not teach the class. When I refused, Kobla left the room and refused to teach the class. [P] Additionally, towards the end of the Spring semester, 1997, I was at a graduation reception on school premises, which was a school event open to the public, where there were students, faculty and visitors present. Although I was not a dance performer for the event, I had every right to attend this public event. A public announcement was made for all persons present to join into the dance performance. People from the audience joined in as did I. Suddenly [Ms.] Ladzekpo stopped the music and pointed at me and said `Sorry, we are not going to do it, unless she leaves. I was forced to leave the performance. The Dean, defendant Rosenbloom, was present and witnessed this retaliatory conduct, defendant, [the school], took no action whatsoever to stop it. [The school] knew, from this event, of the hostility of [Ms.] Ladzekpo, Koblas wife. [The school] knew this fact in the Spring of 1997."
Plaintiff described the incidents involving Yeko on April 15, and 16, 1999. Therefore, plaintiff and her father were afraid for her safety. This was based in part on evidence that Yeko had previously been restricted from being at the school due to an altercation with another student. However, Yeko was not suspended after the incident with plaintiff. Yeko was allowed to attend plaintiffs graduation.
3. The courts ruling
At the summary judgment hearing, the trial court noted that plaintiff had not filed any written points and authorities in opposition to the motion. After the parties argued the motion, the trial court took the matter under submission. On October 15, 2001, the trial court issued a lengthy order on submitted matters. The court order provides in part as follows. "The Court has read and considered all of the voluminous evidentiary objections and responses thereto filed by the parties. Because plaintiff has argued that the deposition testimony cited by defendants (particularly from her own deposition) should not be considered because the questions were objected to, or the responses were misstated, or the full deposition transcript was not lodged with the Court, the Court has reviewed the pertinent portions of the various deposition transcripts lodged by the parties, including reading the full text of and the exhibits to plaintiffs deposition. [P] In connection with this motion, the Court has considered only what it considers to be admissible evidence. Biljac Associates v. First Interstate Bank, 218 Cal. App. 3d 1410, 1419, 267 Cal. Rptr. 819 (1990). The Court notes that plaintiffs evidentiary objections are frequently non-specific as to what portion is objected to and why, and they generally lack merit. In addition, the Court notes that Plaintiffs Response to Defendants Separate Statement of Undisputed Material Facts attacks many of the 28 facts tendered by the moving parties in a way which does not actually address the particular facts set forth, and concludes that the specific facts enumerated by defendants actually are undisputed. To the extent plaintiff asserts these are in some sense incomplete, she does not properly and separately enumerate any additional material facts which are disputed. CCP § 437c(b). [P] Plaintiffs counsel has consciously chosen to rest on her objections to plaintiffs evidence and the format of defendants papers, plus submitting a recent declaration by plaintiff. At page 8 of the Opposition filed September 25, 2001, counsel states that plaintiff `declines to argue the questions of law posited by the defendants. The Court takes that statement as an express waiver of the opportunity to argue those issues of law." The court noted that plaintiffs recently filed declaration in opposition to the motion contradicted or was inconsistent with her deposition testimony and to the extent it did so, it would be disregarded.
With respect to the contract breach claim, the trial court ruled the schools contention that no contractual relationship existed was without merit. The trial court also ruled that the school had not established the absence of damages. However, the trial court held that the contract breach claim was without merit because the school did not breach any contractual obligation with plaintiff; rather, the school acted in full conformity with its policy against sexual harassment in investigating her claims against Kobla. The trial court concluded that there was no evidence that Yekos conduct on April 15 and 16, 1999, almost two years after the sexual harassment complaint, was filed was in retaliation for the July 1997 allegation against Kobla. The trial court held that plaintiff did not identify any evidence but relied upon speculation in the opposition papers that Yekos actions were retaliatory. The trial court indicated that in reaching this conclusion it was disregarding plaintiffs recently filed declaration because it was contrary to her deposition testimony. The excluded declaration stated that Yeko had accused plaintiff of lying in connection with the sexual harassment allegation.
In any event, the court concluded that there was no evidence that the school did anything to breach its contractual obligations to plaintiff after the April 1999 incidents with Yeko. The court stated: "The procedures followed conformed to the policy, the investigation was undertaken promptly, a written response was given, and there was no repetition of the problem. The opposition suggests no fault with the procedure, except that either (1) the incident with Yeko never should have happened, or (2) Yeko should have been expelled as a result. These suggestions misconceive the issue. [The schools] contractual obligation to plaintiff did not include a guarantee that there would be no incidents, but rather (consistent with its policy) to promptly investigate, react to, and report on any incidents. The single incident (in two phases) involving Yeko-two and a half years after the Kobla incident and 21 months after plaintiff reported the Kobla incident-was not repeated. In addition, [the school] had no contractual obligation under these circumstances to impose the discipline of plaintiffs choice on Yeko for either the 1996 incident involving another student or for the incidents of April 15th and 16th, 1999. Whatever plaintiffs perception of the reasons for Yekos action, plaintiff has not persuaded the Court under these undisputed facts, any violation of [the schools] contractual obligation to her occurred in the way these matters were handled. [P] The final argument in plaintiffs opposition is that [the school] somehow breached a duty of confidentiality with respect to her complaints about sexual harassment. The moving partys declarations deny this occurred, and there is absolutely no competent admissible evidence to support this argument in any of the opposition papers. The Court concludes there is no triable issue of fact on this point."
The trial court also concluded that the summary judgment was appropriate on the negligence claim. The trial court held: defendants owed no duty to plaintiff to prevent sexual harassment; defendants owed no duty to plaintiff to prevent retaliation; there was no evidence Kobla or Ms. Ladzekpo committed any acts of retaliation; and any evidence that Yeko retaliated was "pure speculation." As to Yekos disciplinary history, the trial court concluded: Yeko "struck another student" in the fall of 1996; Yeko was suspended for the remainder of the year; inferentially, Yeko returned to campus in the fall of 1997; there was no evidence Yeko engaged in any misconduct until the April 15, 1999, threats directed at plaintiff; and under the authority of Crow v. State of California (1990) 222 Cal. App. 3d 192, 207-209, 271 Cal. Rptr. 349, defendants owed no duty to plaintiff.
B. The Standard of Review
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, the Supreme Court described a partys burdens on summary judgment motions as follows: "From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a courts action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . . [P] The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Id. at pp. 850-851, fns. omitted; see Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) The trial courts stated reasons for granting summary judgment are not binding on us because we review its ruling not its rationale. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19; Barnett v. Delta Lines, Inc. (1982) 137 Cal. App. 3d 674, 682, 187 Cal. Rptr. 219.) For the reasons, stated below, we conclude summary judgment was appropriate on the contract breach and negligence claims because the separate statement of undisputed facts was sufficient to negate an element in each of the remaining two causes of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851; Continental Ins. Co. v. Columbus Line, Inc., supra, 107 Cal.App.4th at pp. 1196-1200.) In addition, once the burden shifted, plaintiff failed to meet her responsibility of producing "specific evidence" of the existence of triable issues of material fact. ( § 437c, subd. (o)(2), as amended by Stats. 1994, ch. 493, § 1, p. 2677; see Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148.) We respectfully reject her contentions to the contrary.
C. The Contract Breach Claim
Plaintiffs contract claim was predicated upon the theory that the school breached its obligation to provide her with an education free from sexual harassment or retaliation. The written policy provides in part: "I. INTRODUCTION [P] [the school] is committed to maintaining a learning and working environment that is free from sexual harassment. It is equally committed to maintaining a learning and working environment that guarantees academic and artistic freedom. It is essential to promote a climate of mutual trust conducive to the free examination of challenging ideas, whether in the classroom or the studio, a climate which seeks neither to neutralize content nor to prohibit experimentation. To support academic and artistic freedom and to promote freedom is consistent both with the highest artistic and ethical standards and with Institute goals. [P] II. PURPOSE OF POLICY [P] The purpose of this policy is to (1) familiarize all faculty, staff and students with the definition of sexual harassment and the forms it can take; (2) make clear that sexual harassment is prohibited and will be punished; (3) inform victims of the course of action they should take to report sexual harassment; and (4) clarify the rights of those accused of harassment. . . . [P] VII. RETALIATION PROHIBITED [P] Retaliation against any individual for seeking assistance or bringing a sexual harassment complaint through the processes described in this policy is strictly prohibited. Similarly, any person who participates or cooperates in any manner in an investigation or any other aspect of the process described herein shall not be retaliated against. Retaliation is itself a violation of this policy and is a serious separate offense."
The undisputed evidence established that the school never obligated itself to provide plaintiff with an atmosphere completely free of sexual harassment or retaliation. Rather, the policy provided that the school sought to have an atmosphere free of such conduct. The school indicated that it would: provide procedures for making such complaints; investigate the complaints; and punish offenders. The policy further provided that retaliatory conduct would be treated as a separate offense. This policy does not guarantee the absence of either sexual harassment or retaliatory conduct.
Further, the sexual harassment allegedly occurred sometime between the fall of 1996 until 1997. Plaintiff complained about the incidents on or about July 10, 1997. When plaintiff complained, the school immediately investigated her complaint. School officials heard different versions of the incidents and was unable to substantiate her allegations. On July 25, 1997, the school nevertheless wrote to Kobla and plaintiff concerning the incident. They were both advised of the schools policies against sexual harassment and retaliation. Plaintiff admitted in her deposition testimony that Kobla did nothing to retaliate against her for making the sexual harassment complaint after July 1997. Furthermore, plaintiff admitted in her deposition that she believed that the retaliatory actions that she had alleged in the second amended complaint against Kobla (refusing to teach a class she was attending) was not motivated by her July 1997 sexual harassment allegation. Rather, according to plaintiff, Kobla refused to instruct the class because she had apparently sided with Mr. Ladzekpo. Also, Kobla refused to allow plaintiff to sit in the class because she had complained about his teaching methods to administrators. Plaintiff also testified at her deposition that it was her decision to refrain from taking his classes because she did not like his teaching methods. Plaintiff testified that none of the schools employees ever said that she could not take classes from Kobla.
The evidence also showed that the incidents alleged in the sexual harassment complaint concerning Ms. Ladzekpos conduct at the spring 1997 graduation, May 17, 1997, could not have been related to the sexual harassment allegation which plaintiff did not make until July 1997. Plaintiff believed Ms. Ladzekpo was upset because plaintiff had criticized Koblas teaching methods. There was no evidence Ms. Ladzekpo did anything to plaintiff after the spring 1997 graduation.
Plaintiff did not create any triable issues of fact by filing a declaration which contradicted her prior sworn testimony admitting the absence of retaliation by either Kobla or Ms. Ladzekpo on the basis of the sexual harassment complaint. To the extent that plaintiffs declaration sought to contradict her prior discovery admissions, it is disregarded. A party, who has made an admission at a deposition, cannot rely upon contradictions in his or her own declaration to create a triable issue of material fact. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, 112 Cal. Rptr. 786, 520 P.2d 10; Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1341; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 545; Visueta v. General Motors Corp. (1991) 234 Cal. App. 3d 1609, 1613, 286 Cal. Rptr. 402; Thompson v. Williams (1989) 211 Cal. App. 3d 566, 573, 259 Cal. Rptr. 518.)
The only potential retaliatory conduct which allegedly occurred after the July 1997 sexual harassment complaint was almost two years later in April 1999. The question therefore remains whether Yekos April 15 and 16, 1999, conduct amounts to a breach of the school contractual obligations. With the exception of plaintiffs contradictory declaration, there was no evidence that Yekos April 15 and 16, 1999, conduct was based on the sexual harassment complaint. There was also no evidence that any school employee told Yeko or anyone else about the July 1997 sexual harassment complaint. The school employees who handled the July 1997 investigation declared that plaintiffs sexual harassment against Kobla, the complaint and results of the investigation were not disclosed to Yeko. The undisputed evidence shows that the April 15 and 16, 1999, incident occurred 21 months after plaintiff made her July 1997 sexual harassment complaint to the school making a connection between the two events remote and speculative. Furthermore, the school did not breach a contractual obligation to plaintiff concerning Yekos conduct. Immediately after plaintiff complained about Yekos April 15 and 16, 1999, conduct, the school began an investigation into the circumstances. The school reprimanded Yeko. However, the school could not substantiate that Yeko had threatened plaintiff. Indeed, the evidence shows that the altercation was in part provoked by plaintiff. Plaintiff admitted approaching Yeko and made a remark about Kobla. Plaintiff asked Yeko, "Do you want me to put your name or your fathers name on the incident report?" Yeko was advised both orally and in writing to have no further contact with plaintiff. No further incidents occurred. Thus, the school response to these incidents was prompt and consistent with its policy to investigate and respond to claims of retaliatory conduct.
Finally, we disagree with plaintiff that the school response to Yekos conduct was a breach of its contractual obligations. According to plaintiff, Yeko should have been suspended or expelled. Plaintiff has cited no contractual obligation on the part of the school which required Yeko be suspended. Thus, the undisputed evidence established that the school did not breach any contractual obligations owed to plaintiff.
D. The Negligence Claim
Plaintiff argues the trial court erroneously adjudicated the negligence claim against her because triable issues of fact remained based on the allegations of the second amended complaint and the school failed to address the duty issue in its separate statement of undisputed facts which made summary judgment inappropriate. The gravaman of the second amended complaint is that plaintiff was subjected to retaliatory conduct because she reported in July 1997 that Kobla had sexually harassed her. In that regard, the second amended complaint alleges that the school negligently allowed the student body to blame plaintiff for causing the potential cancellation of the African music program in retaliation for the July 1997 sexual harassment complaint and such eventually led to Yekos conduct on April 15 and 16, 1999.
Dr. Rosenbloom, Dr. Levine, Dr. ONeill, Dr. Bache, and Dr. Guy presented declarations that they had no knowledge that Yeko knew about plaintiffs July 1997 sexual harassment complaint. They also had no reason to believe that Yeko would retaliate against plaintiff. In opposition to the motion, plaintiff presented evidence that Yeko had previously been suspended for physically abusing another student. The summary judgment motion was granted on the basis that defendants owed no duty to plaintiff to protect her from the actions of other students, specifically Yeko. The existence of a duty is a question of law for the court which is determined de novo on appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674, 863 P.2d 207; see also Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) The Supreme Court has held: "Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. [Citations.]" (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678; accord, Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181, 1188, 989 P.2d 121, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.)
Decisional authority construing the law of negligence has consistently held that, in the absence of a special relationship, universities have no duty to supervise college age students from behavior which causes injury to another student. (See Ochoa v. California State University (1999) 72 Cal.App.4th 1300, 1305-1306 [no duty to protect one student playing in soccer game who was punched by a member of rival team]; Tanja H. v. Regents of University of California (1991) 228 Cal. App. 3d 434, 437-439, 278 Cal. Rptr. 918 [university not liable to student raped by a fellow student in a dormitory]; Crow v. State of California, supra, 222 Cal. App. 3d at pp. 207-209 [college had no duty to protect college student assaulted by another student where school knew of prior acts of assault]; Baldwin v. Zoradi (1981) 123 Cal. App. 3d 275, 287-291, 176 Cal. Rptr. 809 [college administrators had no special relationship imposing a duty of care to prevent a college student from being injured by fellow student engaged in a car race after drinking in a dormitory].) These cases construing the law of negligence support the proposition that college students are generally responsible for their own actions and welfare. There was no evidence that any special relationship existed in this case. Accordingly, there was no duty to protect plaintiff from injury by Yeko. This is true even if Yeko had a history of such behavior. (Crow v. State of California, supra, 222 Cal. App. 3d at pp. 197, 207-209.) In any event, the record is speculative at best concerning a connection between Yekos behavior towards a student in 1996, for which she was promptly suspended and an entirely unrelated incident 3 years later. It bears emphasis that once the production burden shifted as it did, plaintiff had the responsibility to produce specific evidence of a relationship between the July 1997 sexual harassment allegation and the April 15 and 16, 1999, events. Where the opposition only presents speculation in lieu of specific facts, summary judgment should be entered if the burden of production has shifted. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 490; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.) Under these circumstances, the trial court properly found that summary judgment was appropriate on the negligence claim.
Plaintiff argues that a number of other theories were raised concerning the duties that were owed to her. She states at page 41 of the opening brief that her complaint was based on a theory of negligent hiring. However, the gravamen of the complaint is retaliatory conduct after the sexual harassment complaint. Plaintiff states as much in her opening brief on appeal at page 28 which provides: "[The complaint] was specifically based upon the retaliation and harassment [plaintiff] suffered after she lodged her sexual harassment complaint. Plaintiff in fact did not base her civil complaint on the sexual harassment by Kobla." At page 47 of the opening brief on appeal, plaintiff states the sexual harassment was the precipitating event that led to an "ongoing course of intimidation and retaliation that formed the basis of [the second amended complaint]." Moreover, plaintiffs attorney made a deliberate decision to not address the legal issues in the court below by refusing to file points and authorities. In any event, there were no allegations in the second amended complaint or evidence offered in opposition to the summary judgment motion to support a theory of negligent hiring. The second amended complaint does allege that the school was aware of any propensities in Kobla to sexually harass the students. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 843.)
IV. THE MOTION TO TAX COSTS
Plaintiff argues the trial court abused its discretion when it denied her motion to tax costs of $ 5,100.31, consisting of $ 3,797.32 for depositions and $ 1,303 for filing and motion fees. A prevailing party is entitled to costs that are reasonably necessary to the litigation and reasonable in amount. (Code of Civ. Proc., § 1033.5; Perkos Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244.) We review a trial court order on a motion to tax costs for abuse of discretion. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506;Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774; Posey v. State of California (1986) 180 Cal. App. 3d 836, 852, 225 Cal. Rptr. 830.)
Plaintiff argues that the trial court should have reduced the costs of $ 3,141.32 for three volumes of her depositions by one-half because: there was no reason for three sessions; the depositions were oppressive and harassing; the depositions were repetitious (which the court so found); and only a small amount of plaintiffs testimony was actually utilized in the summary judgment motion. The Court of Appeal has explained: "`The necessity for a deposition and for the related expenditures is a question for the trial courts sound discretion. [Citation.] The burden of proof that the deposition was unnecessary . . . is on the party seeking to have that item taxed. . . . [Citation.] (County of Kern v. Ginn (1983) 146 Cal. App. 3d 1107, 1113, 194 Cal. Rptr. 512 [].)" (Silver v. Gold (1989) 211 Cal. App. 3d 17, 26, 259 Cal. Rptr. 185.) Our colleagues in Division Two of the First Appellate District have held: "If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.]" (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774; County of Kern v. Ginn, supra, 146 Cal. App. 3d at p. 1113.) Plaintiff makes only conclusory allegations concerning why the depositions were unnecessary or oppressive. Moreover, we find nothing constituting an abuse of discretion in the trial courts determination that, although the questions were repetitive in some respects, it did not render the costs incurred by defendants unreasonable. In reading the depositions, the trial court noted that plaintiff was deposed over a three-day period. There was no harm in the schools attempts to be thorough considering the allegations of the second amended complaint which were in many instances vague concerning dates and conduct by individual defendants and parties, some of whom were not identified with any specificity. Accordingly, the trial courts order denying the motion to tax costs must be affirmed because plaintiff has not established any abuse of discretion.
V. DISPOSITION
The judgment is affirmed in all respects. Defendants, California Institute of the Arts, Steven Lavine, Beverly ONeill, John Bache, Yvonne Guy, and David Rosenbloom, are entitled to their costs on appeal, from plaintiff, Sandra V.
We concur: GRIGNON, J., MOSK, J.