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 CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT
DIVISION THREE

WANZI QU et al., Plaintiffs and Appellants,

v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent. B247933 (Los Angeles County Super. Ct. No. BC484543)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed. Alan Burton Newman, Alan Burton Newman and Siga lit Shoghi for Plaintiffs and Appellants. Gibson, Dunn & Crutcher, Debra Wong Yang, Kahn A. Scolnick, Ross Halper and Jennifer E. Rosenberg for Defendant and Respondent.

___________________ ____________________2 Plaintiffs and appellants Wanzi Qu, Xi aohong Fei, Xiyong Wu and Meinan Yin (collectively, plaintiffs) appeal from a judgm ent in favor of defendant and respondent University of Southern California (USC) fo llowing the trial court’s sustaining of USC’s demurrer to the second amended complaint with out 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 a nd 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 ro bbery “in the neighbo rhood surr ounding 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 ar eas adjacent to the campus through “showing a police presence, ‘secur ity and license plate recognition cameras, uniformed officers, and yellow jacketed secu rity ambassadors.’ ” USC was alleged to have breached its duty of care to the dece dents “by not providing security; by not warning them it was in a high crime area; a nd by misleading them into thinking it was3 safe to live and go into th e area.” The complaint also alleged that USC made misrepresentations about the sc hool’s safety on its website. USC demurred to each cause of action alle ged, and plaintiffs filed an amended complaint. The first amended complaint as serted 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 “patro lled zone” in the neighborhoods surrounding campus. Plaintiffs further alleged that USC only provided security on campus and in the “patrolled zone,” even t hough 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 prot ect its students is by providing housing on campus which is surrounded by high walls a nd patrolled by armed security guards and the Los Angeles Police Department.” USC wa s alleged to have br eached its duty of care to the decedents by no t providing security in the quick response area. USC demurred to each cause of action, an d the court sustained the demurrer with leave to amend. Plaintiffs filed a sec ond amended complaint ag ain alleging wrongful death based on negligence, negligent misrepresentation, and intentional misrepresentation. The second amended co mplaint 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 “ ‘U SC Public Safety Officers provide 24-hr law enforcement services on the University Park and Hea lth Sciences campuses, as well as in4 surrounding neighborhoods.’ ” These statements were alle gedly “conveye d by way of [USC’s] website which the overseas gradua te students accessed when applying for the school.” Plaintiffs alleged that these repr esentations 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 a lleged 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 pr oximate cause of the harm to Ming Qu and Ying Wu because it was forese eable 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 th e following grounds: (1) th e second amended complaint “fails to allege any facts to support the existence of a volunt ary duty, or any duty at all”; (2) plaintiffs “fail[] to explain how USC’s [a lleged negligent] conduct caused the deaths of Qu and Wu”; (3) “[p]laintiffs have provid ed 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 a nd Wu would not have enrolle d at the university, their parents would not have let th em enroll at the university, and [Qu] and [Wu] would not5 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 st atements on USC’s webs ite were false, and (4) those misrepresentations proximatel y 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 trut h 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 re view de novo whet her the complaint alleges facts sufficient to st ate a cause of action. ( Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10.)
2. The Court Properly Sustained the De murrer as to the Negligence Claims

a. Plaintiffs Did Not Allege Facts Showing That USC Had a Legal Duty A defendant is liable for negligence wh ere 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.) The6 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 stude nt relationship [citations] to impose on Cal Western a duty to insure its adult studen ts’ 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 co llege 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 a ssumed where a person who otherwise has no duty to act ‘undertakes to co me 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, ha ving 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 increa ses the risk of harm to the other person,7 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 enforcemen t services in the neighborhoods surrounding the campus when it made the alleged representations about safety and security on its website. Acco rding to the second amended complaint, USC stated on its website that it provided “24- hour law enforcement services” on-campus and “in surrounding neighborhoods.” Howe ver, allegations contained within the original and first amended complaints expa nd upon these representations. Although, when reviewing a judgment dismissing a comp laint after the court sustains a demurrer, we generally rely on the facts as allege d 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, supe rseded by statute on othe r grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.) He re, 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 part s of the neighborhood surrounding USC were “patrolled areas” where security services were provided. Therefore, according to plaintiffs’ allegations, USC represented to th e decedents that it did not provide security services in the area where th ey were killed, but only pr ovided a “qui ck response”8 service. In fact, the orig inal complaint alleged that USC did provide the promised security services in the “p atrolled 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 we re killed, or, as a result, that they had a du ty to do so. b. Plaintiffs Did Not Allege Facts Showing a Causal Connection Between USC’s Alleged Negligen ce and the Death of the Decedents There were also insufficient allegations showing that USC’s alleged breach of its duty to the decedents wa s 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 ne gligence 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 ha rm 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 th e negligence and in jury suffered is “ ‘accomplished by im plication from the juxtaposition of the allegations of wrongful conduct and harm. [Citation.] However, wh ere 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 onl y made the conclusory allegation that USC’s failure to provide “twe nty four hour law enforcem ent services” in “the area9 surrounding the Univers ity” caused “harm” to the decedents because “it was foreseeable to USC that the risk of violent crime agains t the students without th e twenty four hour law enforcement services, was much higher.” This allegation does not naturally give rise to an inference that such nonfeasance caused the dece dents to be killed by third parties. Furthermore, there were no specific fact s alleged showing causation. Plaintiffs did not allege that the assa ilants would not have attack ed the decedents had “law enforcement services” been employed, only that, in gene ral, there was a risk of increased violent crime. In fact, in the firs t amended complaint, plaintiffs alleged that “the only effective way [USC] can protec t its students is by providing housing on campus which is surrounded by high walls a nd patrolled by armed security guards and the Los Angeles Police Department,” and that (2) “USC law enforc ement services have not been effective in deterri ng crime in the patrolled area.” These allegations suggest that had USC pr ovided security services in the area where Qu and Wu were killed, this still would not have prevented the attack upon them. Accordingl y, the trial court properly sustained the demurrer to the neglig ence causes of action on the grounds that plaintiffs’ allegations did not afford the infe rence that USC’s failure to provide security services was the legal cause of the decedents’ deaths.10 3. The Court Properly Sustained the De murrer as to the Misrepresentation Causes of Action

a. Falsity Was Not Pl ed With Specificity To state a cause of action for intentiona l misrepresentation, the plaintiff must plead facts showing “ ‘(a) misrepresentati on . . . ; (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) jus tifiable reliance; and (e) resulting damage.’ ” ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a negligent misr epresentation 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 stat ement 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 compla int’s intentional and negligent misrepresentation claims were based on US C’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 prog rams in the nation,” and (3) it provided 24-hour law enforcement services on campus and “in surrounding ne ighborhoods.” The court sustained USC’s demurrer on the grounds that plaintiffs “provi ded no detail as to how the statements are false,” but simply “all ege[d] that USC’s statements were false by simply inserting the word ‘not’ in front of each representation.”11 Plaintiffs now contend only that “since the neighborhood surrounding USC is in a high crime area, it is not true as Resp ondent 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, plainti ffs have not shown that USC misrepresented its ranking. As the second amended compla int 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 Mi srepresentations and the Death of the Decedents “[T]o obtain a recovery for fraud, a claima nt 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 th e 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 me chanism of fraud. [Citation.] . . . [¶] ‘[R]eliance is proved by showing th at the defendant’s misrepresent ation or nondisclosure was “an immediate cause” of the plain tiff’s injury-producing conduc t. [Citation.] A plaintiff

1 Plaintiffs’ brief does not address th e other two alleged misrepresentations.12 may establish that the defendant’s misrepre sentation is an “immediate cause” of the plaintiff’s conduct by showin g that in its absence the plaintiff “in all reasonable probability” would not ha ve engaged in the in jury-producing conduct.’ [Citation.]” ( In re Tobacco II Cases (2009) 46 Cal.4th 298, 326.) Here, Plaintiffs contend that the de cedents would not have attended USC and would not have been killed if not for the alleged misrepre sentations 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 repres entations but only that they “accessed” the website where the statements were posted. Furthe rmore, the alleged reliance is too remote and vague: plaintiffs do not allege that the decedents would not have ventured into the neig hborhoods surrounding USC but for the representations, or that the decedents failed to ta ke safety precautions in reliance on the representations. On these grounds, the trial court did not e rr in concluding that the complaint did not adequately allege a causal connection betwee n the misrepresentations and the death of the decedents.
4. Amendment to the Complaint Although the trial court must grant leav e to amend if there is “a reasonable probability that the co mplaint could have been amende d to cure the defect,” here, plaintiffs did not argue in the trial court, and do not argue now, th at they could amend the complaint to cure its defects. ( Sprinkles v. Associated Indemnity Corp. (2010) 188 Cal.App.4th 69, 75-76.)13 DISPOSITION The judgment is affirmed. Defenda nt shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J. WE CONCUR:

KLEIN, P. J.

ALDRICH, J.