Case 1:12-cv MGC Document 35 Entered on FLSD Docket 07/26/2012 Page 1 of 3

Similar documents
Case 9:15-cv KAM Document 37 Entered on FLSD Docket 06/03/2015 Page 1 of 7

Case 1:11-cv MGC Document 81 Entered on FLSD Docket 09/21/2011 Page 1 of 6

Case 1:16-cv DPG Document 509 Entered on FLSD Docket 12/06/2018 Page 1 of 9

Case 0:16-cv WPD Document 29 Entered on FLSD Docket 02/07/2017 Page 1 of 4

Case 1:13-cv BB Document 42 Entered on FLSD Docket 05/18/2016 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

Case 1:12-cv MGC Document 155 Entered on FLSD Docket 02/13/2013 Page 1 of 8

Case 0:18-cv FAM Document 1 Entered on FLSD Docket 03/19/2018 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 0:17-cv BB Document 89 Entered on FLSD Docket 07/19/2018 Page 1 of 4

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO DEPARTMENT 501. Defendant's Motion for Summary Judgment came on regularly for hearing on June 18,

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Petitioners, Real Parties in Interest.

Case 1:16-cv RNS Document 24 Entered on FLSD Docket 08/16/2016 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA. CASE NO.: Civ-Martinez

Case 2:18-cv R-AGR Document 7 Filed 02/05/18 Page 1 of 2 Page ID #:26

UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA. Case No.:

Case 1:17-cv DPG Document 3 Entered on FLSD Docket 08/04/2017 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

IN THE DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT OF FLORIDA ) ) ) ) ) ) ) ) ) ) ) )

Case 1:16-cv DPG Document 145 Entered on FLSD Docket 05/26/2016 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

PlainSite. Legal Document. Florida Southern District Court Case No. 1:13-cv Lardner v. Diversified Consultants, Inc. Document 42.

Case 1:16-cv RNS Document 13 Entered on FLSD Docket 06/02/2016 Page 1 of 3

Case 0:12-cv WJZ Document 7 Entered on FLSD Docket 12/13/2012 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION No GOLD/MCALILEY (and consolidated cases)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT APPELLANT S SECOND SUPPLEMENTAL OPENING BRIEF

Case 1:17-cv MGC Document 107 Entered on FLSD Docket 09/28/2018 Page 1 of 21

Case 1:11-cv MGC Document 78 Entered on FLSD Docket 08/15/2011 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, TALLAHASSEE DIVISION

Case 1:16-cv FAM Document 13 Entered on FLSD Docket 07/12/2016 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

SUPERIOR COURT OF CALIFORNIA,. COUNTY OF.PLUMAS

F 1 CLEFIA OF THE- COURT O SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO DEPARTMENT 305. Case No. CGC

NOTICE OF FILING REVISED PROPOSED ORDER ON MOTION TO AMEND COMPLAINT (DE61)

Case 1:18-cv JLK Document 1 Entered on FLSD Docket 02/22/2018 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 4D JOHN TAGLIERI, an individual, Appellant, Appellees. REPLY BRIEF

B CALIFORNIA COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION FIVE. LINDA DE ROGATIS, et al., Plaintiffs and Appellants,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO

PlainSite. Legal Document. California Northern District Court Case No. 3:11-cv County of Marin v. Deloitte Consulting LLP et al.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:10-CV ANSWER TO PLAINTIFF S FIRST AMENDED COMPLAINT

Case 3:16-md VC Document 1461 Filed 05/18/18 Page 1 of 3

Case 9:18-cv RLR Document 1 Entered on FLSD Docket 05/22/2018 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.

Case 1:16-cv CMA Document 126 Entered on FLSD Docket 01/30/2017 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case M:06-cv VRW Document 424 Filed 02/04/2008 Page 1 of 5

Case 9:07-cv DTKH Document 87 Entered on FLSD Docket 02/10/2010 Page 1 of 5. E UNITED STATES DISTRICT COURT \e* SOUTHERN DISTRICT OF FLORIDA

Case 1:15-mc ESH Document 17 Filed 05/18/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Case 1:11-mc MGC Document 1 Entered on FLSD Docket 07/07/2011 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 5:08-cv RMW Document 7 Filed 06/30/2008 Page 1 of 7

Case 9:18-cv RLR Document 1 Entered on FLSD Docket 05/14/2018 Page 1 of 8

Case 9:17-cv KAM Document 10 Entered on FLSD Docket 04/25/2017 Page 1 of 6

Case 2:14-cv WBS-EFB Document 14 Filed 08/07/14 Page 1 of 5

Case 9:03-cv KAM Document 2795 Entered on FLSD Docket 01/17/2014 Page 1 of 8

Woods et al v. Vector Marketing Corporation Doc. 276 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Case 1:11-cv JEM Document 60 Entered on FLSD Docket 06/22/2011 Page 1 of 8

Case 0:09-cv WPD Document 53 Entered on FLSD Docket 07/01/2011 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 9:03-cv KAM Document 2926 Entered on FLSD Docket 09/19/2014 Page 1 of 2

Case 1:11-cv MGC Document 14 Entered on FLSD Docket 06/17/2011 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

I will continue to provide updates to creditors as relevant matters arise.

FILED: NEW YORK COUNTY CLERK 04/15/2014 INDEX NO /2013 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/15/2014

Case 1:16-cv CMA Document 257 Entered on FLSD Docket 04/13/2017 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 4:17-cv JLK Document 29 Entered on FLSD Docket 02/13/2018 Page 1 of 5

Case 1:04-cv ASG Document 656 Entered on FLSD Docket 07/09/2012 Page 1 of 12

Case 1:16-cv FAM Document 36 Entered on FLSD Docket 03/29/2016 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 1:16-cv DPG Document 318 Entered on FLSD Docket 04/20/2017 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Case 0:13-cv JIC Document 318 Entered on FLSD Docket 12/30/2016 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CLERK'S CERTIFICATE OF SERVICE BY MAIL (Minute Order)

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Case 9:15-cv JIC Document 75 Entered on FLSD Docket 12/07/2016 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

ATTORNEYS FOR PLAINTIFFS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

Judicial Assistant s > ALWAYS copy opposing counsel(s) on correspondence to the Court

HAROLD P. STURGEON, Plaintiff and Petitioner, COUNTY OF LOS ANGELES, et al., Defendants and Respondents, and

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON AT YAKIMA

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

Case 3:14-cv REP-AWA-BMK Document 157 Filed 05/16/17 Page 1 of 10 PageID# 5908

Judicial Practice Preferences Circuit Civil/Section 11

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:15-cv PAE

Case 1:04-cv JLK Document 213 Entered on FLSD Docket 04/04/2007 Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Case 1:16-cv CMA Document 296 Entered on FLSD Docket 05/09/2017 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 0:17-cv BB Document 42 Entered on FLSD Docket 05/05/2017 Page 1 of 6. Case No. 0:17-cv BB RICHARD WIGGINS,

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:14 cv RDM

) ) ) ) ) ) ) ) ) ) ) )

':.Ji.. zo1'i/p. I?. By S' ANT Ell EWBERRY FILED. v. ' ALAMEDA COUNTY. STEPHANIE STIA VETTI, et al, Case No. RG Plaintiffs,

Case3:09-cv RS Document78 Filed05/03/11 Page1 of 7

Case 9:16-cr RLR Document 91 Entered on FLSD Docket 03/03/2017 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case 0:12-cv WJZ Document 97 Entered on FLSD Docket 11/27/2017 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

PARKER, et al., THE STATE OF CALIFORNIA, et al., STIPULATION FOR SECOND EXTENSION OF TIME TO FILE BRIEF PURSUANT TO RULES OF COURT, RULE 8.

Case LMI Doc 23 Filed 09/04/15 Page 1 of 10. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA Miami Division

Case 1:14-cv Document 430 Filed in TXSD on 11/18/16 Page 1 of 6

UNITED STATES DISTRICT COURT THE SOUTHERN DISTRICT OF FLORIDA CASE NO CIV-KING/O SULLIVAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA. Case No.: CIV-SEITZ/MCALILEY

Case 9:14-cv DMM Document 118 Entered on FLSD Docket 09/17/2014 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

Case 2:14-cv R-RZ Document 52 Filed 08/27/14 Page 1 of 9 Page ID #:611

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION

Case 1:16-cv FAM Document 44 Entered on FLSD Docket 09/30/2016 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA. Case No.: CIV-ALTONAGA/Turnoff

Case 6:11-ap SC Doc 14 Filed 12/08/11 Entered 12/08/11 15:28:33 Desc Main Document Page 1 of 5

Case 0:16-cv WPD Document 34 Entered on FLSD Docket 01/22/2017 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

[QIJ$&J ORDER PRELIMINARILY APPROVING SETTLEMENT AND

Case 2:11-cv JEM Document 38 Entered on FLSD Docket 04/18/2011 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Transcription:

Case 1:12-cv-20785-MGC Document 35 Entered on FLSD Docket 07/26/2012 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 12-20785-CIV-MGC TAYLOR CASE, AUDRA AWAI, CLIFFORD KLEIN, JOYCELYN STINSON, MELISSA SHIPMAN, and AMY KISZ, on Behalf of themselves and all others similarly situated, v. Plaintiffs, FLORIDA COASTAL SCHOOL OF LAW, INC. and DOES 1-20, Defendants. / NOTICE OF FILING SUPPLEMENTAL AUTHORITY IN SUPPORT OF PLAINTIFFS MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS TAYLOR CASEY, AUDRA AWAI, CLIFFORD KLEIN, JOYCELYN STINSON, MELISSA SHIPMAN, and AMY KISZ ( Plaintiffs ), on behalf of themselves and all others similarly situated, hereby give notice of filing Supplemental Authority in Support of Plaintiff's Response in Opposition to Motion to Dismiss (ECF # 22). 1 See attached Composite Exhibit A. Respectfully submitted, s/ Elio F. Martinez, Jr. ELIO F. MARTINEZ, JR. Florida Bar No.: 501158 MARIAN KENNADY Florida Bar No. 379580 LESLIE V. MARENCO Florida Bar No. 078303 1 Plaintiffs Memorandum in Opposition to Motion to Dismiss (ECF #22) addressed primarily the issue of transfer and included a reservation of right to file further response to the Motion to Dismiss upon a determination of the Plaintiffs Motion for Leave to Amend Complaint (ECF # 20) which remains pending.

Case 1:12-cv-20785-MGC Document 35 Entered on FLSD Docket 07/26/2012 Page 2 of 3 CASE NO. 12-20785-CIV-MGC CONCEPCION MARTINEZ & BELLIDO 255 Aragon Ave. 2nd Floor Coral Gables, FL 33134 Tel: 305-444-6669 / Fax: 305-444-3665 emartinez@cfclaw.com mkennady@cfclaw.com lmarenco@cfclaw.com -and- David Anziska, Esq. The Law Offices of David Anziska 305 Broadway, 9 th Fl. New York, NY 10007 Phone (212) 822-1496; Fax: (212) 822-1437 Jesse Strauss, Esq. (Pro Hac Vice) Strauss Law, PLLC 305 Broadway, 9 th Fl. New York, NY 10007 Phone (212) 822-1496; Fax (212) 822-1437 Counsel for Plaintiffs, individually and for all others similarly situated CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via transmission of Notices of Electronic Filing generated by CM/ECF on July 26, 2012, on all counsel or parties of record on the Service List below. By: s/ Elio F. Martinez, Jr. ELIO F. MARTINEZ, JR. Florida Bar No.: 501158 2

Case 1:12-cv-20785-MGC Document 35 Entered on FLSD Docket 07/26/2012 Page 3 of 3 CASE NO. 12-20785-CIV-MGC SERVICE LIST Taylor Casey, et al. v. Florida Coastal School of Law United States District Court, Southern District of Florida Case No. 12-20785-CIV-MGC Herman J. Russomanno, Esq. Herman J. Russomanno, III, Esq. RUSSOMANNO & BORRELLO, P.A. Museum Tower, Penthouse 2800 150 West Flagler Street Miami, Florida 33130 -and- Michael J. Volpe, Esq. (Pro Hac Vice) Edmund M. O'Toole, Esq. (Pro Hac Vice) Venable LLP 1270 Avenue of the Americas, 24th Floor New York, NY 10020 Counsel for Defendant Florida Coastal School of Law 3

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 1 of 11 Composite Exhibit "A"

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 2 of 11 1 Prepared by the Court 2 3 4 5 FILED San Francisco County Superlor Court JUL 1 9 2012 CLE K or THE COURT BY: Deputy Clark 7 8 9 10 SUPERIOR COURT OF CALIFORNIA County Of San Francisco Department No. 302 11 12 13 14 15 16 17 18 CAIONLEAN AIMING, et al, Plaintiffs, V. GOLDEN GATE UNIVERSITY, et al, Defendants. No. CGC-12-517837 ORDER OVERRULING DEMURRER TO FIRST AMENDED COMPLAINT 19 20 21 22 23 24 On June 13, 2012 a hearing was held on defendant Golden Gate University's demurrer to the first amended complaint. The demurrer asserted three grounds why the claims alleged by the plaintiffs were deficient: 1) all three claims fail because they did not allege that defendant's statements were likely to deceive reasonable prospective and current law students; 2) the claim under the Consumer Legal Remedies Act (CLRA) fails because education is neither a good nor a service as those terms are defined in the CLRA; and 3) the Unfair Competition Law (UCL) claim 25 Page 1

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 3 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is time-barred. At the hearing I orally rejected the third ground. At the conclusion of the hearing I took the first and second grounds under submission so that I could more fully consider the parties' oral and written arguments as to those grounds. Having completed my further review, I reject the first and second grounds asserted by defendant and thus overrule the demurrer in its entirety. California case law establishes that ordinarily the issue of whether a statement is likely to deceive a reasonable consumer is a question of fact, Relying heavily on the reasoning of a New York trial court decision, defendant argues that a reasonable prospective or current law student would surely understand that the statements attributed to the defendant did not pertain only to jobs requiring or preferring a law school degree. Accepting the truth of plaintiffs' well-pleaded allegations, as I am required to do at this stage of the case, I disagree. Each of the plaintiffs allege that they were in fact deceived by the statements they attribute to the defendant, and there is nothing before me to suggest that any of the plaintiffs were not reasonable consumers of a law school education. Moreover, the statements attributed to defendant were allegedly made in a context (i,e. in materials designed to attract and retain law students to defendant's law school) where a reasonable prospective or current law student could reasonably believe that the statements pertained only to jobs for which a law school education is a requirement or preference and did not include jobs for which a law school education is irrelevant or of minimal utility. This issue is simply not amenable to resolution on a demurrer and must await factual development by the parties. The New York trial court decision is distinguishable to the extent that there are different rules for deciding motions to dismiss in New York than there are for deciding demurrers, different rules as to the scope of judicial notice, and differences in the governing substantive law. To the extent, if any, the New York trial court decision rests on the same procedural and 25 Page 2

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 4 of 11 substantive law that apply to deciding the cognizability of plaintiffs' claims, the New York decision is not in accord with California procedural and substantive law and thus I decline to follow it. The provision of education, and specifically a law school education, falls well within CLRA's broad definition of "services." Therefore, per Fairbanks v. Superior Court p009) 46 Cal, 4 th 56, which teaches that no further inquiry is needed when the statutory language resolves the issue, defendant's second ground lacks merit. Defendant places much emphasis on a single paragraph in Fairbanks, which states that the legislative history of the CLRA showing that the statute had been adapted from a model law that included the word "insurance" within the definition of services confirms that insurance, which is not explicitly included in the CLRA's definition of services, is outside of CLRA"s definition of services. There are several problems with this argument as pertains to the issue of whether education is within CLRA"s definition of "services." First, the word "education" appears in the model act not by itself but as an object to the antecedent phrase of "privileges with respect to." This strongly suggests that the drafters of the model act had something in mind other that just the provision of education when the word education was included in the model act's definition of services. This is, in marked contrast, to the unqualified word "insurance" used in the model act. Second, defendant's argument does not account for the fact that none of the activities specifically identified in the model act as services that appear in the same subsection of the model act as the word "education" ("transportation, hotel and restaurant accommodations...entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations") appear in CLRA"s definition of services. Yet many, if not all, of those Page 3

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 5 of 11 activities unquestionably fall within CLRA"s defmition of services and the CLRA has been applied to many of them. Third, defendant's argument fails to take into account that Fairbanks also looked to the Unruh Act for confirmation of its holding that life insurance is not within the CLRA's defmition of services because the word insurance does appear in the Unnih Act's definition of services. In contrast, the word education is not expressly included in the Unruh Act's definition of services, yet there are cases that have applied that statute to educational instituitons. Accordingly, for the reasons set forth above and at the hearing, defendant's demurrer is overruled in its entirety. IT IS SO ORDERED. Dated: July 19, 2012 Harold alm Superior Court Judge Page 4

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 6 of 11 Superior Court of California County of San Francisco CAIONLEAN ARRING, et al, VS. GOLDEN GATE UNIVERSITY, et al, Plaintiff(s) Defendant(s) Case Number: CGC-12-517837 CERTIFICA I OF MAILIN6 (CCP 1013a (4) ) I, Gina Gonzales, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On July 19, 2012, I served the attached Order Overruling Demurrer To First Amended Complaint by placing a copy thereof in a sealed envelope, addressed as follows: ROSEMARY M. RIVAS, ESQ. DANIELLE A. STOUMBOS, ESQ. FINKELSTEIN THOMPSON LLP 100 Bush Street, Ste. 1450 San Francisco, CA 94104 Si EPHAN1E A. SHERIDAN, ESQ. KELLY SAVAGE DAY, ESQ. ' SEDGWICK, LLP 333 Bush Street, 30 TH Fl San Francisco, CA 94104 JOHN PARKER, ESQ, KERSHAW CUTTER & RATINOFF, LLP 401 Watt Avenue Sacramento, CA 95864 and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: July 19, 2012 MICHAEL YUEN, Clerk B :

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 7 of 11 1 Prepared by the Court 2 3 4 5 6 FILED San Francisco County Superior Court BY: JUL 19 2012 CLE*K OF THE COURT / /, /de../ Deputy Clerk 7 8 9 10 SUPERIOR COURT OF CALIFORNIA County Of San Francisco Department No. 302 11 12 ELIZABETH HALLOCK, et al, No, CGC-12-517861 13 14 V. Plaintiffs, ORDER OVERRULING DEMURRER TO FIRST AMENDED COMPLAINT 15 16 UNIVERSITY OF SAN FRANCISCO, et al, Defendants. 17 18 19 20 21 22 23 24 On June 13, 2012 a hearing was held on defendant University of San Francisco's demurrer to the first amended complaint. The demurrer asserted three grounds why the claims alleged by the plaintiffs were:deficient: 1) all three claims fail because they did not allege that defendant's statements were likely to deceive reasonable prospective and current law students; 2) the claim under the Consumer Legal Rernedies Act (CLRA) fails because education is neither a good nor a service as those terms are defined in the CLRA; and 3) the Unfair Competition Law 25 Page 1

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 8 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (1./CL) claim is time-barred. At the hearing I orally rejected the third ground. At the conclusion of the hearing I took the first and second grounds under submission so that I could more fully consider the parties' oral and written arguments as to those grounds. Having completed my further review, I reject the first and second grounds asserted by defendant and thus overrule the demurrer in its entirety. California case law establishes that ordinarily the issue of whether a statement is likely to deceive a reasonable consumer is a question of fact. Relying heavily on the reasoning of a New York trial court decision, defendant argues that a reasonable prospective or current law student would surely understand that the statements attributed to the defendant did not pertain only to jobs requiring or preferring a law school degree. Accepting the truth of plaintiffs' well-pleaded allegations, as I am required to do at this stage of the case, I disagree. Each of the plaintiffs allege that they were in fact deceived by the statements they attribute to the defendant, and there is nothing before me to suggest that any of the plaintiffs were not reasonable consumers of a law school education. Moreover, the statements attributed to defendant were allegedly made in a context (i.e. in materials designed to attract and retain law students to defendant's law school) where a reasonable prospective or current law student could reasonably believe that the statements pertained only to jobs for which a law school education is a requirement or preference and did not include jobs for which a law school education is irrelevant or of minimal utility. This issue is simply not amenable to resolution on a demurrer and must await factual development by the parties. The New York trial court decision is distinguishable to the extent that there are different rules for deciding motions to dismiss in New York than there are for deciding demurrers, different rules as to the scope of judicial notice, and differences in the governing substantive law. To the extent, if any, the New York trial court decision rests on the same procedural and 25 Page 2

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 9 of 11 1 substantive law that apply to deciding the cognizability of plaintiffs' claims, the New York decision is not in accord with California procedural and substantive law and thus I decline to 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 follow it. The provision of education, and specifically a law school education, falls well within CLRA's broad definition of "services." Therefore, per Fairbanks v. Superior Court (2009) 46 Cal. 4 1h 56, which teaches that no further inquiry is needed when the statutory language resolves the issue, defendant's second ground lacks merit. Defendant places much emphasis on a single paragraph in Fairbanks, which states that the legislative history of the CLRA showing that the statute had been adapted from a model law that included the word "insurance" within the defmition of services confirms that insurance, which is not explicitly included in the CLRA's definition of services, is outside of CLRA"s definition of services. There are several problems with this argument as pertains to the issue of whether education is within CLRA"s definition of "services." First, the word "education" appears in the model act not by itself but as an object to the antecedent phrase of "privileges with respect to." This strongly suggests that the drafters of the model act had something in mind other that just the provision of education when the word education was included in the model act's definition of services. This is, in marked contrast, to the unqualified word "insurance" used in the model act. Second, defendant's argument does not account for the fact that none of the activities specifically identified in the model act as services that appear in the same subsection of the model act as the word "education" ("transportation, hotel and restaurant accommodations...entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations") appear in CLRA"s defmition of services. Yet many, if not all, of those 24 25 Page 3

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 10 of 11 1 2 3 4 5 6 7 activities unquestionably fall within CLRA"s definition of services and the CLRA has been applied to many of them. Third, defendant's argument fails to take into account that Fairbanks also looked to the Unruh Act for confirmation of its holding that life insurance is not within the CLRA's definition of services because the word insurance does appear in the Unruh Act's definition of services. In contrast, the word education is not expressly included in the Unruh Act's definition of services, yet there are cases that have applied that statute to educational instituitons. Accordingly, for the reasons set forth above and at the hearing, defendant's demurrer is 9 10 11 overruled in its entirety. IT IS SO ORDERED. Dated: July 19, 2012 12 13 14 Harold Kahn Superior Court Judge 15 16 17 18 19 20 21 22 23 24 25 Page 4

Case 1:12-cv-20785-MGC Document 35-1 Entered on FLSD Docket 07/26/2012 Page 11 of 11 Superior Court of California County of San Francisco ELIZABETH HALLOCK, et al, vs. Plaintiff(s) Case Number: CGC-12-517861 CERTIFICATE OF MAILING (CCP 1013a (4) ) UNIVERSITY OF SAN FRANCISCO, et al, Defendant(s) I, Gina Gonzales, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action.. On July 19, 2012,1 served the attached Order Overruling Demurrer To First Amended Complaint by placing a copy thereof in a sealed envelope, addressed as follows: ROSEMARY M. RIVAS, ESQ. DANIELLE A. STOUMBOS, ESQ. FINKELSTEIN THOMPSON LLP 100 Bush Street, Ste. 1450 San Francisco, CA 94104 SIEPHANIE A. SHERIDAN, ESQ. KELLY SAVAGE DAY, ESQ. SEDGWICK, LLP 333 Bush Street, 30 TH Fl San Francisco, CA 94104 JOHN PARKER, ESQ. KERSHAW CUTTER & RATINOFF, LLP 401 Watt Avenue Sacramento, CA 95864 and, I then. placed the sealed envelopes in the outgoing mail at 400 McAllister Street, *San Francisco, CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices. Dated: July 19, 2012 MICHAEL YUEN, Clerk ' By: 4/Ig ina Gonz es, D9 uty Clerk