Rassaii v. Bd. of Trs. of the Cal. State Univ.

• Decision Date: 17 June 2022
• Docket Number: H048281
• Parties: FRED RASSAII, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

FRED RASSAII, Plaintiff and Appellant,
v.
BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

H048281

California Court of Appeals, Sixth District

June 17, 2022

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 19-CV-353871

Grover, J.

Section 41300, subdivision (f) of title 5 of the California Code of Regulations states, in relevant part: "A graduate or post-baccalaureate student shall be subject to disqualification if while on probation the student fails to earn sufficient grade points to be removed from probationary status." Under that regulation, plaintiff Fred Rassaii was disqualified from a graduate school program at San Diego State University after failing to meet the program's GPA requirements for two consecutive semesters. Rassaii sued the Board of Trustees of the California State University, challenging the regulation as facially unconstitutional. The trial court sustained the Trustees' demurrer without leave to amend. Rassaii argues on appeal that his complaint stated a valid facial challenge to the regulation. Finding no error, we will affirm the judgment of dismissal.

I. TRIAL COURT PROCEEDINGS

Representing himself, Rassaii sued the Trustees in 2019. According to the complaint, plaintiff was enrolled in a graduate program in Medical Physics at San Diego State University. The minimum GPA for the program was 2.85. Rassaii was placed on

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probation after the fall 2018 semester for failing to earn the minimum GPA. When he again failed to earn the minimum GPA during the spring 2019 semester, he was disqualified from the program. Rassaii alleges he was informed that he would not be allowed to apply for reentry into the program for one semester, which delayed his studies by at least a full year because the university does not offer spring admissions. The complaint further alleges that reentry is not assured because he will have to compete with new applicants for limited graduate school openings.

Rassaii's complaint states it is a "facial challenge to the first part" of section 41300, subdivision (f) of title 5 of the California Code of Regulations (section 41300(f)). The complaint alleges the regulation violates equal protection "by promoting those students who manage to receive the required grade and GPA in their first try and reject[ing] those students who may need to revisit a course a second time." The complaint asserts the regulation "criminalizes a grade point average (GPA) lower than the minimum required GPA set by graduate schools," and that it "promotes the same ideology" as that of the "leaders of Nazi Germany" by "promot[ing] the idea that only those who have the ability to receive the required grades and GPA on the first try can stay and continue with their graduate studies, and all others must be filtered out." The complaint seeks a declaration that the challenged regulation is "unlawful, unfair, discriminatory and unconstitutional."

The Trustees demurred, arguing the complaint failed to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) After a hearing, the trial court adopted its tentative ruling as the order sustaining the demurrer without leave to amend. Rassaii prematurely appealed from that order. This court stayed the appeal pending receipt of a final judgment, which was filed in the trial court in September 2020.

II. DISCUSSION

We review de novo a judgment of dismissal based on a sustained demurrer. (Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790.)

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We will reverse the dismissal if the allegations of the petition state a cause of action under any legal theory. (Ibid.) We assume the truth of all facts alleged in the petition (id. at pp. 790-791), but we do not consider conclusory factual or legal allegations. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953.) Constitutional claims can be resolved on demurrer if they are limited to questions of law. (Code Civ. Proc., § 589, subd. (a); Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 509-510.) Although we note that demurrer is not the favored means to test a request for declaratory relief (because a plaintiff is entitled to a declaration of his or her rights even if the declaration is adverse), as here where the issue is purely a question of law"' "the opinion of the reviewing court will constitute the declaration of the legal rights and duties of the parties concerning the matter in controversy." '" (Levi v. O'Connell (2006) 144 Cal.App.4th 700, 706 (Levi).)

A. The Regulation Does Not Violate Equal Protection

Rassaii contends he has stated a valid cause of action by alleging section 41300(f) facially violates the equal protection clauses of the federal and California constitutions.^[1]Two standards have been applied in evaluating facial challenges to statutes and regulations. (See T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1117, fn. 6 [noting "uncertainty regarding the standard for facial...