Filed 11/27/13 Qu v. Univ. of So. Cal. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
WANZI QU et al., B247933
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC484543)
v.
UNIVERSITY OF SOUTHERN
CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael M. Johnson, Judge. Affirmed.
Alan Burton Newman, Alan Burton Newman and Sigalit Shoghi for Plaintiffs
and Appellants.
Gibson, Dunn & Crutcher, Debra Wong Yang, Kahn A. Scolnick, Ross Halper
and Jennifer E. Rosenberg for Defendant and Respondent.
_______________________________________
Plaintiffs and appellants Wanzi Qu, Xiaohong Fei, Xiyong Wu and Meinan Yin
(collectively, plaintiffs) appeal from a judgment in favor of defendant and respondent
University of Southern California (USC) following the trial court’s sustaining of USC’s
demurrer to the second amended complaint without leave to amend. Plaintiffs contend
that the trial court erred in concluding that their complaint did not allege facts showing
that USC was liable for negligence and fraud. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 2012, Ming Qu and Ying Wu, two graduate students from China
who attended USC, were killed during a robbery “in the neighborhood surrounding of
USC.” The decedents were killed in an area adjacent to campus where USC did not
provide security but only a “ ‘quick response’ ” service. USC did provide security in
other areas of the neighborhood which USC called the “ ‘patrolled area.’ ” On May 16,
2012, Qu’s parents and Wu’s parents filed a complaint against USC alleging wrongful
death based on negligence, negligent misrepresentation, and intentional
misrepresentation.
The complaint alleged that the decedents were killed in the “quick response area”
near the campus, and that USC provided security in other areas adjacent to the campus
through “showing a police presence, ‘security and license plate recognition cameras,
uniformed officers, and yellow jacketed security ambassadors.’ ” USC was alleged to
have breached its duty of care to the decedents “by not providing security; by not
warning them it was in a high crime area; and by misleading them into thinking it was
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safe to live and go into the area.” The complaint also alleged that USC made
misrepresentations about the school’s safety on its website.
USC demurred to each cause of action alleged, and plaintiffs filed an amended
complaint. The first amended complaint asserted wrongful death based on the same
theories, and alleged that USC represented to its graduate students that it had established
both a “quick response zone” and a “patrolled zone” in the neighborhoods surrounding
campus. Plaintiffs further alleged that USC only provided security on campus and in
the “patrolled zone,” even though the “additional cost” of providing security in the
“quick response zone” would have been “ ‘ de minimus;’ ” that “USC law enforcement
services have not been effective in deterring crime in the patrolled area;” and that “USC
knows that the only effective way it can protect its students is by providing housing on
campus which is surrounded by high walls and patrolled by armed security guards and
the Los Angeles Police Department.” USC was alleged to have breached its duty of
care to the decedents by not providing security in the quick response area.
USC demurred to each cause of action, and the court sustained the demurrer with
leave to amend. Plaintiffs filed a second amended complaint again alleging wrongful
death based on negligence, negligent misrepresentation, and intentional
misrepresentation. The second amended complaint alleged that USC stated on its
website that (1) it was “ ‘ranked among the safest of U.S. universities and colleges, with
one of the most comprehensive, proactive campus and community safety programs in
the nation,’ ” and (2) that “ ‘USC Public Safety Officers provide 24-hr law enforcement
services on the University Park and Health Sciences campuses, as well as in
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surrounding neighborhoods.’ ” These statements were allegedly “conveyed by way of
[USC’s] website which the overseas graduate students accessed when applying for the
school.” Plaintiffs alleged that these representations were false because “USC is not
ranked among the safest of U.S. universities and colleges,” “USC does not have one of
the most comprehensive, proactive campus and community safety programs in the
nation,” and “USC Public Safety Officers do not provide twenty four hour law
enforcement services in surrounding neighborhoods.”
The second amended complaint further alleged that “USC had a legal duty to its
students to provide twenty four hour law enforcement services because it made that
representation to USC students on its website,” that “USC breached it[s] duty of care to
its students by not providing the twenty four hour law enforcement services,” and that
“[t]he breach of such duty was a legal or proximate cause of the harm to Ming Qu and
Ying Wu because it was foreseeable to USC that the risk of violent crime against the
students without the twenty four hour law enforcement services, was much higher.”
USC demurred to each cause of action, and the court sustained the demurrer
without leave to amend on the following grounds: (1) the second amended complaint
“fails to allege any facts to support the existence of a voluntary duty, or any duty at all”;
(2) plaintiffs “fail[] to explain how USC’s [alleged negligent] conduct caused the deaths
of Qu and Wu”; (3) “[p]laintiffs have provided no detail as to how the statements are
false”; and (4) the second amended complaint’s “conclusional allegation[]” that “but for
USC’s representations Qu and Wu would not have enrolled at the university, their
parents would not have let them enroll at the university, and [Qu] and [Wu] would not
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have been murdered” was insufficient to show a causal connection between the alleged
misrepresentations and the deaths of Qu and Wu. Plaintiffs timely appealed.
CONTENTIONS
Plaintiffs contend that the court erred in sustaining the demurrer because they
adequately pled facts showing that (1) USC had a legal duty to “protect” the decedents,
(2) USC’s failure to provide security to the area where the decedents were killed was
the legal cause of their death, (3) the statements on USC’s website were false, and
(4) those misrepresentations proximately caused the death of the decedents.
DISCUSSION
1. Standard of Review
When reviewing a judgment dismissing a complaint after the court sustains
a demurrer, we assume the truth of the complaint’s properly pleaded or implied factual
allegations, and also consider judicially noticeable matters. (Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081.) We review de novo whether the complaint
alleges facts sufficient to state a cause of action. (Farm Raised Salmon Cases (2008)
42 Cal.4th 1077, 1089, fn. 10.)
2. The Court Properly Sustained the Demurrer as to the Negligence Claims
a. Plaintiffs Did Not Allege Facts Showing That USC
Had a Legal Duty
A defendant is liable for negligence where it breaches a duty to the plaintiff and
that breach is the legal cause of the plaintiff’s injury. (Nola M. v. University of
Southern California (1993) 16 Cal.App.4th 421, 426 citing Rest.2d Torts, § 281.) The
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existence of a duty is a question of law. (Ibid.) “Ordinarily, there is no duty to protect
others from third party criminal activity.” (Ericson v. Federal Express Corp. (2008)
162 Cal.App.4th 1291, 1300.) However, such a duty may be found where the defendant
has a special relationship with the plaintiff. (Crow v. State of California (1990)
222 Cal.App.3d 192, 208.)
California courts have generally refused to find that schools owe a duty to protect
adult students from third party criminal conduct. (See Donnell v. California Western
School of Law (1988) 200 Cal.App.3d 715, 719 [“We decline to extend principles of
law arising out of the school-minor student relationship [citations] to impose on
Cal Western a duty to insure its adult students’ safety once they have left Cal Western’s
premises.”]; Crow v. State of California, supra, 222 Cal.App.3d at p. 209 [holding that
the school had no legal duty to protect a college student from an on-campus assault by
another student because the school “could ‘not have prevented this incident from taking
place except possibly by posting guards in each dorm room on a 24-hour, 365-day per
year basis.’ ”])
However, “a duty may be created or assumed where a person who otherwise has
no duty to act ‘undertakes to come to the aid of another.’ ” (Rotolo v. San Jose Sports
& Entertainment, LLC (2007) 151 Cal.App.4th 307, 337.) Under the “negligent
undertaking” doctrine, “a volunteer who, having no initial duty to do so, undertakes to
provide protective services to another, will be found to have a duty to exercise due care
in the performance of that undertaking if one of two conditions is met: either (a) the
volunteer’s failure to exercise such care increases the risk of harm to the other person,
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or (b) the other person reasonably relies upon the volunteer’s undertaking and suffers
injury as a result. [Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224,
248-249.)
Here, although plaintiffs do not invoke this doctrine by name, they argue that
USC voluntarily assumed a duty to provide 24-hour law enforcement services in the
neighborhoods surrounding the campus when it made the alleged representations about
safety and security on its website. According to the second amended complaint, USC
stated on its website that it provided “24-hour law enforcement services” on-campus
and “in surrounding neighborhoods.” However, allegations contained within the
original and first amended complaints expand upon these representations. Although,
when reviewing a judgment dismissing a complaint after the court sustains a demurrer,
we generally rely on the facts as alleged in the pleading to which the demurrer was
sustained, where a plaintiff omits facts pled in an earlier complaint, we may take
judicial notice of those complaints. (Holland v. Morse Diesel Intern., Inc. (2001)
86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v.
Cridlebaugh (2009) 178 Cal.App.4th 506, 521.) Here, according to the allegations in
the original and first amended complaints, USC represented to its graduate students that
the area where Qu and Wu were killed was a “quick response zone” where no security
services were provided, and that other parts of the neighborhood surrounding USC were
“patrolled areas” where security services were provided. Therefore, according to
plaintiffs’ allegations, USC represented to the decedents that it did not provide security
services in the area where they were killed, but only provided a “quick response”
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service. In fact, the original complaint alleged that USC did provide the promised
security services in the “patrolled areas” where it advertised it would. Therefore,
plaintiffs did not allege facts showing that USC undertook to provide security services
in the area where the decedents were killed, or, as a result, that they had a duty to do so.
b. Plaintiffs Did Not Allege Facts Showing a Causal Connection
Between USC’s Alleged Negligence and the Death of the Decedents
There were also insufficient allegations showing that USC’s alleged breach of its
duty to the decedents was the legal cause of their death. “ ‘[I]n order that a negligent
actor shall be liable for another’s harm, it is necessary not only that the actor’s conduct
be negligent toward the other, but also that the negligence of the actor be a legal cause
of the other’s harm.’ [Citation.] ‘Legal cause’ exists if the actor’s conduct is
a ‘substantial factor’ in bringing about the harm and there is no rule of law relieving the
actor from liability. [Citations.]” (Nola M. v. University of Southern California, supra,
16 Cal.App.4th at p. 427.)
Generally, a causal connection between the negligence and injury suffered is
“ ‘accomplished by implication from the juxtaposition of the allegations of wrongful
conduct and harm. [Citation.] However, where the pleaded facts of negligence and
injury do not naturally give rise to an inference of causation the plaintiff must plead
specific facts affording an inference the one caused the others.’ [Citation.]”
(Christensen v. Superior Court (1991) 54 Cal.3d 868, 900-901.)
Here, the second amended complaint only made the conclusory allegation that
USC’s failure to provide “twenty four hour law enforcement services” in “the area
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surrounding the University” caused “harm” to the decedents because “it was foreseeable
to USC that the risk of violent crime against the students without the twenty four hour
law enforcement services, was much higher.” This allegation does not naturally give
rise to an inference that such nonfeasance caused the decedents to be killed by third
parties.
Furthermore, there were no specific facts alleged showing causation. Plaintiffs
did not allege that the assailants would not have attacked the decedents had “law
enforcement services” been employed, only that, in general, there was a risk of
increased violent crime. In fact, in the first amended complaint, plaintiffs alleged that
“the only effective way [USC] can protect its students is by providing housing on
campus which is surrounded by high walls and patrolled by armed security guards and
the Los Angeles Police Department,” and that (2) “USC law enforcement services have
not been effective in deterring crime in the patrolled area.” These allegations suggest
that had USC provided security services in the area where Qu and Wu were killed, this
still would not have prevented the attack upon them. Accordingly, the trial court
properly sustained the demurrer to the negligence causes of action on the grounds that
plaintiffs’ allegations did not afford the inference that USC’s failure to provide security
services was the legal cause of the decedents’ deaths.
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3. The Court Properly Sustained the Demurrer as to the Misrepresentation
Causes of Action
a. Falsity Was Not Pled With Specificity
To state a cause of action for intentional misrepresentation, the plaintiff must
plead facts showing “ ‘(a) misrepresentation . . . ; (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.) The
elements of a negligent misrepresentation claim are similar except “in a claim for
negligent misrepresentation, the plaintiff need not allege the defendant made an
intentionally false statement, but simply one as to which he or she lacked any
reasonable ground for believing the statement to be true. [Citations.]” (Charnay v.
Cobert (2006) 145 Cal.App.4th 170, 184.) When alleging fraud, “general and
conclusory allegations [will] not suffice,” rather, each element “must be pled
specifically.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)
Here, the second amended complaint’s intentional and negligent
misrepresentation claims were based on USC’s representations that (1) it was ranked
among the safest of universities and colleges, (2) it had “one of the most comprehensive
proactive campus and community safety programs in the nation,” and (3) it provided
24-hour law enforcement services on campus and “in surrounding neighborhoods.” The
court sustained USC’s demurrer on the grounds that plaintiffs “provided no detail as to
how the statements are false,” but simply “allege[d] that USC’s statements were false by
simply inserting the word ‘not’ in front of each representation.”
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Plaintiffs now contend only that “since the neighborhood surrounding USC is in
a high crime area, it is not true as Respondent claims that USC is ‘ranked among the
safest of US universities and colleges.’ ”1 Plaintiffs have still not pointed to any alleged
facts pertaining to USC’s ranking in relation to other schools. That the neighborhood
surrounding USC has a high crime rate does not suggest that USC's representation that
some third party ranked it as a relatively safe school is inaccurate, only that the ranking
itself may be inaccurate. Therefore, plaintiffs have not shown that USC misrepresented
its ranking. As the second amended complaint does not allege any facts supporting the
allegation that USC’s representations were false, the demurrer was properly sustained
on this ground.
b. Plaintiffs Did Not Allege Facts Showing a Causal Connection
Between the Alleged Misrepresentations and the
Death of the Decedents
“[T]o obtain a recovery for fraud, a claimant must prove, inter alia, that damages
were sustained as a proximate cause of the fraudulent conduct. [Citation.]” (Kruse v.
Bank of America (1988) 202 Cal.App.3d 38, 60.) “Ordinarily, proximate cause is
a question of fact . . . [however,] where the facts are such that the only reasonable
conclusion is an absence of causation, the question is one of law, not of fact.
[Citations.]” (Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1084.)
“[R]eliance is the causal mechanism of fraud. [Citation.] . . . [¶] ‘[R]eliance is
proved by showing that the defendant’s misrepresentation or nondisclosure was “an
immediate cause” of the plaintiff’s injury-producing conduct. [Citation.] A plaintiff
1
Plaintiffs’ brief does not address the other two alleged misrepresentations.
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may establish that the defendant’s misrepresentation is an “immediate cause” of the
plaintiff’s conduct by showing that in its absence the plaintiff “in all reasonable
probability” would not have engaged in the injury-producing conduct.’ [Citation.]”
(In re Tobacco II Cases (2009) 46 Cal.4th 298, 326.)
Here, Plaintiffs contend that the decedents would not have attended USC and
would not have been killed if not for the alleged misrepresentations by USC. That
decedents relied on the representations is not shown by the second amended complaint,
which did not allege that the decedents ever read the representations but only that they
“accessed” the website where the statements were posted. Furthermore, the alleged
reliance is too remote and vague: plaintiffs do not allege that the decedents would not
have ventured into the neighborhoods surrounding USC but for the representations, or
that the decedents failed to take safety precautions in reliance on the representations.
On these grounds, the trial court did not err in concluding that the complaint did not
adequately allege a causal connection between the misrepresentations and the death of
the decedents.
4. Amendment to the Complaint
Although the trial court must grant leave to amend if there is “a reasonable
probability that the complaint could have been amended to cure the defect,” here,
plaintiffs did not argue in the trial court, and do not argue now, that they could amend
the complaint to cure its defects. (Sprinkles v. Associated Indemnity Corp. (2010)
188 Cal.App.4th 69, 75-76.)
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DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
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