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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 Superior Court of Los Angeles County, 

Michael M. Johnson, Judge. Affirmed. 

 Alan Burton Newman, Alan Burton Newman and Sigalit 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, Xiaohong Fei, Xiyong Wu and Meinan Yin 

(collectively, plaintiffs) appeal from a judgment in favor of defendant and respondent 

University of Southern California (USC) following the trial court’s sustaining of USC’s 

demurrer to the second amended complaint without 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 and 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 robbery “in the neighborhood surrounding 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 areas adjacent to the campus 

through “showing a police presence, ‘security and license plate recognition cameras, 

uniformed officers, and yellow jacketed security ambassadors.’ ” USC was alleged to 

have breached its duty of care to the decedents “by not providing security; by not 

warning them it was in a high crime area; and by misleading them into thinking it was 
3 

safe to live and go into the area.” The complaint also alleged that USC made 

misrepresentations about the school’s safety on its website. 

 USC demurred to each cause of action alleged, and plaintiffs filed an amended 

complaint. The first amended complaint asserted 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 “patrolled zone” in the neighborhoods surrounding 

campus. Plaintiffs further alleged that USC only provided security on campus and in 

the “patrolled zone,” even though 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 protect its students is by providing housing on 

campus which is surrounded by high walls and patrolled by armed security guards and 

the Los Angeles Police Department.” USC was alleged to have breached its duty of 

care to the decedents by not providing security in the quick response area. 

 USC demurred to each cause of action, and the court sustained the demurrer with 

leave to amend. Plaintiffs filed a second amended complaint again alleging wrongful 

death based on negligence, negligent misrepresentation, and intentional 

misrepresentation. The second amended complaint 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 “ ‘USC Public Safety Officers provide 24-hr law enforcement 

services on the University Park and Health Sciences campuses, as well as in 
4 

surrounding neighborhoods.’ ” These statements were allegedly “conveyed by way of 

[USC’s] website which the overseas graduate students accessed when applying for the 

school.” Plaintiffs alleged that these representations 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 alleged 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 proximate cause of the harm to Ming Qu and 

Ying Wu because it was foreseeable 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 the following grounds: (1) the second amended complaint 

“fails to allege any facts to support the existence of a voluntary duty, or any duty at all”; 

(2) plaintiffs “fail[] to explain how USC’s [alleged negligent] conduct caused the deaths 

of Qu and Wu”; (3) “[p]laintiffs have provided 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 and Wu would not have enrolled at the university, their 

parents would not have let them enroll at the university, and [Qu] and [Wu] would not 
5 

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 statements on USC’s website were false, and 

(4) those misrepresentations proximately 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 truth 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 review de novo whether the complaint 

alleges facts sufficient to state a cause of action. (Farm Raised Salmon Cases (2008) 

42 Cal.4th 1077, 1089, fn. 10.) 

 2. The Court Properly Sustained the Demurrer as to the Negligence Claims

 a. Plaintiffs Did Not Allege Facts Showing That USC 

 Had a Legal Duty 

 A defendant is liable for negligence where 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.) The 
6 

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 student relationship [citations] to impose on 

Cal Western a duty to insure its adult students’ 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 college 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 assumed where a person who otherwise has 

no duty to act ‘undertakes to come 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, having 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 increases 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 enforcement services in the 

neighborhoods surrounding the campus when it made the alleged representations about 

safety and security on its website. According to the second amended complaint, USC 

stated on its website that it provided “24-hour law enforcement services” on-campus 

and “in surrounding neighborhoods.” However, allegations contained within the 

original and first amended complaints expand upon these representations. Although, 

when reviewing a judgment dismissing a complaint after the court sustains a demurrer, 

we generally rely on the facts as alleged 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, superseded by statute on other grounds as stated in White v. 

Cridlebaugh (2009) 178 Cal.App.4th 506, 521.) Here, 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 parts of the neighborhood surrounding USC were 

“patrolled areas” where security services were provided. Therefore, according to 

plaintiffs’ allegations, USC represented to the decedents that it did not provide security 

services in the area where they were killed, but only provided a “quick response” 
8 

service. In fact, the original complaint alleged that USC did provide the promised 

security services in the “patrolled 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 were killed, or, as a result, that they had a duty to do so. 

 b. Plaintiffs Did Not Allege Facts Showing a Causal Connection 

 Between USC’s Alleged Negligence and the Death of the Decedents 

 There were also insufficient allegations showing that USC’s alleged breach of its 

duty to the decedents was 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 negligence 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 harm 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 the negligence and injury suffered is 

“ ‘accomplished by implication from the juxtaposition of the allegations of wrongful 

conduct and harm. [Citation.] However, where 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 only made the conclusory allegation that 

USC’s failure to provide “twenty four hour law enforcement services” in “the area 
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surrounding the University” caused “harm” to the decedents because “it was foreseeable 

to USC that the risk of violent crime against the students without the twenty four hour 

law enforcement services, was much higher.” This allegation does not naturally give 

rise to an inference that such nonfeasance caused the decedents to be killed by third 

parties. 

 Furthermore, there were no specific facts alleged showing causation. Plaintiffs 

did not allege that the assailants would not have attacked the decedents had “law 

enforcement services” been employed, only that, in general, there was a risk of 

increased violent crime. In fact, in the first amended complaint, plaintiffs alleged that 

“the only effective way [USC] can protect its students is by providing housing on 

campus which is surrounded by high walls and patrolled by armed security guards and 

the Los Angeles Police Department,” and that (2) “USC law enforcement services have 

not been effective in deterring crime in the patrolled area.” These allegations suggest 

that had USC provided security services in the area where Qu and Wu were killed, this 

still would not have prevented the attack upon them. Accordingly, the trial court 

properly sustained the demurrer to the negligence causes of action on the grounds that 

plaintiffs’ allegations did not afford the inference that USC’s failure to provide security 

services was the legal cause of the decedents’ deaths. 
10 

 3. The Court Properly Sustained the Demurrer as to the Misrepresentation 

 Causes of Action 

 a. Falsity Was Not Pled With Specificity

 To state a cause of action for intentional misrepresentation, the plaintiff must 

plead facts showing “ ‘(a) misrepresentation . . . ; (b) knowledge of falsity (or 

“scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 

(e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The 

elements of a negligent misrepresentation 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 statement 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 complaint’s intentional and negligent 

misrepresentation claims were based on USC’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 programs in the nation,” and (3) it provided 

24-hour law enforcement services on campus and “in surrounding neighborhoods.” The 

court sustained USC’s demurrer on the grounds that plaintiffs “provided no detail as to 

how the statements are false,” but simply “allege[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 Respondent 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, plaintiffs have not shown that USC misrepresented 

its ranking. As the second amended complaint 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 Misrepresentations and the 

 Death of the Decedents 

 “[T]o obtain a recovery for fraud, a claimant 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 the 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 mechanism of fraud. [Citation.] . . . [¶] ‘[R]eliance is 

proved by showing that the defendant’s misrepresentation or nondisclosure was “an 

immediate cause” of the plaintiff’s injury-producing conduct. [Citation.] A plaintiff 

 1

 Plaintiffs’ brief does not address the other two alleged misrepresentations. 
12 

may establish that the defendant’s misrepresentation is an “immediate cause” of the 

plaintiff’s conduct by showing that in its absence the plaintiff “in all reasonable 

probability” would not have engaged in the injury-producing conduct.’ [Citation.]” 

(In re Tobacco II Cases (2009) 46 Cal.4th 298, 326.) 

 Here, Plaintiffs contend that the decedents would not have attended USC and 

would not have been killed if not for the alleged misrepresentations 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 representations but only that they 

“accessed” the website where the statements were posted. Furthermore, the alleged 

reliance is too remote and vague: plaintiffs do not allege that the decedents would not 

have ventured into the neighborhoods surrounding USC but for the representations, or 

that the decedents failed to take safety precautions in reliance on the representations. 

On these grounds, the trial court did not err in concluding that the complaint did not 

adequately allege a causal connection between the misrepresentations and the death of 

the decedents. 

 4. Amendment to the Complaint

 Although the trial court must grant leave to amend if there is “a reasonable 

probability that the complaint could have been amended to cure the defect,” here, 

plaintiffs did not argue in the trial court, and do not argue now, that they could amend 

the complaint to cure its defects. (Sprinkles v. Associated Indemnity Corp. (2010) 

188 Cal.App.4th 69, 75-76.) 
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DISPOSITION 

 The judgment is affirmed. Defendant shall recover its costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 CROSKEY, J. 

WE CONCUR: 

 KLEIN, P. J. 

 ALDRICH, J.