Crow v. State of California

• Decision Date: 22 June 1990
• Docket Number: No. C005616,C005616
• Citation: 271 Cal.Rptr. 349,222 Cal.App.3d 192
• Court: California Court of Appeals Court of Appeals
• Parties: , 61 Ed. Law Rep. 187 Charles CROW, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Page 349

271 Cal.Rptr. 349

222 Cal.App.3d 192, 61 Ed. Law Rep. 187

Charles CROW, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

No. C005616.

Court of Appeal, Third District, California.

June 22, 1990.

J. Michael Brown, Livermore, Estelle A. Schleicher and E. Katherine Dashiell, Sacramento, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Darryl L. Doke, Supervising Deputy Atty. Gen., Stephen J. Egan and Thomas McCrackin, Deputy Attys. Gen., for defendant and respondent.

SPARKS, Acting Presiding Justice.

Plaintiff Charles Crow filed a multicount complaint naming as defendants the State of California, California State University Sacramento (CSUS), and its trustees as well as other individual and fictitious defendants. The public entity defendants, whom we shall collectively referred to as CSUS, successfully moved for summary judgment. The plaintiff appeals from the judgment dismissing his complaint as to CSUS. We shall affirm.

THE PLEADINGS AND SUMMARY JUDGMENT MOTION

Although this is an appeal from a summary judgment motion, the material facts are not in dispute. Thus, the three-step paradigm for summary judgments (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203) boils down to the simple question of whether CSUS is entitled to judgment as a matter of law on these facts.

During the fall term of 1985, the plaintiff was a student at the Sacramento campus of the California State University and a resident of Sutter Hall, a dormitory located on the campus. Although the document has never actually been produced, the complaint alleged (and we accept for purposes of argument) that the plaintiff had signed a written residency agreement with the university for occupancy in Sutter Hall for the 1985-86 academic year, which incorporated by reference a set of guidelines entitled "Rules, Regulations, and Policies for Use of Residence Halls and Dining Commons." These guidelines in turn provided that "[p]hysical or verbal abuse or abusive behavior directed toward ... other students will not be tolerated."

George Saipole was another university student and Sutter Hall resident who happened to be the starting nose guard on the university's football team and, perhaps not surprisingly, to have worked as a bouncer. Mr. Saipole lived directly over the plaintiff; they were vaguely acquainted. On October 27, 1985, Mr. Saipole got drunk and assaulted a residence hall advisor who declined to press charges. The director of dormitories, Gary Webbenhurst, told Mr. Saipole this was unacceptable behavior which would be grounds for termination of his scholarship and expulsion from the university. He was also excoriated by one of his coaches. However, no discipline was actually imposed.

At about 1 a.m. on December 14, 1985, the plaintiff went to a keg party in another dormitory, Draper Hall. He had drunk a half-glass of beer when Mr. Saipole arrived. The football player forced first another person and then the plaintiff to drink more beer. Shortly afterward (for reasons Mr. Saipole could not remember later), he punched the much slighter plaintiff in the face and threw him against the wall, poured beer all over him, and then continued to punch and kick the plaintiff.

In March 1986, the plaintiff filed a claim with the State Board of Control detailing his account of the attack (which we will shortly recount) and demanding recompense for medical expenses and loss of earnings. In December 1986, he filed his complaint. In it, he alleged four causes of action, only three of which involve defendant State. The first stated the plaintiff was "visiting friends and fellow students in Draper Hall ...; at said time and place the defendants ... so negligently and carelessly owned[,] operated, maintained and supervised said dormitories and residence hall as to allow the defendant George Ace Saip[o]le to attack, beat and assault the plaintiff.... [p] That at all times herein mentioned the defendants ... knew of the vicious and dangerous propensities of Saip[o]le; ... [p] That [notwithstanding] that the said defendants ... failed, refused and neglected to take any action to prevent said ... Saip[o]le from continuing in his vicious and dangerous propensities and to prevent the attack, assault and battery on plaintiff." The third cause of action, referring to the previously mentioned dormitory residence agreement, averred, "Said written agreement ... constituted a warrant of habitability of said dormitory premises and was relied upon by plaintiff in the selection of said dormitory premises as a safe and secure place to live ...; that the conduct of defendants ... as hereinabove alleged ... constituted a breach of said warranty of habitability...." Finally, the fourth The CSUS defendants answered in May 1987. Following the depositions of the plaintiff and Mr. Saipole in January and April 1988, those defendants moved for summary judgment in July 1988. In its moving papers, CSUS argued that it owed no legal duty to plaintiff, that he had failed to state a cause of action under his claim and that there was no triable issue of fact. CSUS argued that it was under no duty to control the acts of adult students and that immunity was conferred upon it by virtue of Government Code section 845, 846, and 818.6. The trial court found the first cause of action did not state a claim under Government Code section 835 (undesignated section references will be to this code) for maintenance of a dangerous condition on public property because a third party could not be a "dangerous condition." The court also found the third and fourth causes of action were barred as exceeding the scope of the claim filed with the Board of Control. This appeal followed.

                cause of action alleged the defendants "represented to plaintiff that the campus ... and the dormitories thereon were reasonably safe and secure for residence by students ... and that said defendants would abide by and enforce rules and procedures for the safety of said students.  [p]  That said representations ... were negligently and falsely made....  [p]  That in commencing residence ... plaintiff relied on said negligent false representations ... in choosing residence in said dormitory over other available housing;  ..."   Although the representations were not specified in the complaint, the plaintiff suggests none other than the residence agreement
                

DISCUSSION

I

The theories "based on" contract now are barred as not within the ambit of the claim.

Both below and on appeal the plaintiff has claimed his third and fourth causes of action are "contractual" causes of action based on the alleged dormitory residence agreement between himself and CSUS, describing them as "aris[ing] from the written contract between himself and Respondents for use of the student housing." Given the relief sought in the complaint, we believe he actually is suing in tort, using the existence of the contract to provide the necessary duty elements. But we need not resolve this "duck-rabbit" question. (See Perry v. Robertson (1988) 201 Cal.App.3d 333, 335, fn. 1, 247 Cal.Rptr. 74.) In accordance with a line of cases, which we recently lengthened with this court's decision in Blair v. Superior Court (1990) 218 Cal.App.3d 221, 267 Cal.Rptr. 13), CSUS is correct these causes of action may not proceed because there were no direct or inferential facts in the claim filed with the Board of Control which would support them.

Under the Tort Claims Act, ¹ "There shall be presented in accordance with Chapter 1 [§ 900 et seq.] and Chapter 2 [§ 910 et seq.] of [Part 3] all claims for money or damages against the state: ... (c) For money or damages (1) on express contract, or (2) for an injury for which the state is liable." (§ 905.2; see also § 905.) Thus, although actions arising out of contract are not affected by the immunities and liabilities in part 2 of the Tort Claims Act (§ 814), they are nonetheless subject to its procedural requirements. (White v. State of California (1987) 195 Cal.App.3d 452, 477, 240 Cal.Rptr. 732; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079, 195 Cal.Rptr. 576.) It goes without saying that any tort cause of action must similarly meet this requirement.

Section 910 prescribes the contents of the claim, including the name and address of the claimant; the date, place, and circumstances As a result, there is a sympathetic bond between the administrative claim and the judicial complaint. "If a plaintiff relies on more than one theory of recovery against the [State], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer [or a motion for judgment on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the written claim." (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434, 253 Cal.Rptr. 587 [citations & internal quotation marks deleted].) As we summarized it most recently, "in each of the [cited] decisions the plaintiff did not merely elaborate or add further detail [in the complaint] to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegation, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim." (Blair, supra, 218 Cal.App.3d at p. 226, 267 Cal.Rptr. 13.) Blair, distinguishing itself from these decisions, found the facts underlying the complaint before it to have been present in the claim filed with the Board of Control. (Ibid.)

                of the occurrence "or transaction" giving rise to the

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