Rassaii v. Bd. of Trustees of the Cal. State University CA6

Filed 6/17/22 Rassaii v. Bd. of Trustees of the Cal. State University CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FRED RASSAII, H048281 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 19-CV-353871)

v.

BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY,

Defendant and Respondent.

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

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, 2