Gionis v. Bureau For Private Postsecondary Education et al

Filing 90

ORDER signed by Chief Judge Morrison C. England, Jr. on 1/24/2014 GRANTING 7 R & R Staffing Agency's Motion for More Definite Statement, 15 Motion to Dismiss filed by Mark Wyland, 22 Motion to Dismiss filed by Pacific Health Education Cent er's, and 28 Motion to Dismiss by Connie Bouvia et al; Plaintiff's 56 Motion to Voluntarily Dismiss the complaint without prejudice is DENIED as MOOT: the hearing on these motions are hereby VACATED and are submitted on the briefs; the causes of action dismissed by this Order are DISMISSED with LEAVE to AMEND. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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XANTHI GIONIS,

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No. 2:13-cv-00912-MCE-CKD

Plaintiff,
v.

ORDER

CALIFORNIA BUREAU OF PRIVATE
POSTSECONDARY EDUCATION, ET.
AL.,
Defendants.

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Plaintiff Xanthi Gionis (“Plaintiff”) seeks relief from Defendants for claims arising

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from her term as Provost of Aristotle University and her candidacy for the California

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State Senate. Specifically, Plaintiff alleges causes of action for violations of due process

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pursuant to the Fourteenth Amendment, the Private Post-Secondary Education Act of

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2009, the California Education Code, the California Code of Regulations, and the

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California Business and Professions Code. Compl., May 8, 2013, ECF No. 1. Plaintiff

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also alleges causes of action for negligence, misrepresentation, breach of contract,

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intentional infliction of emotional distress, and defamation. Id.

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Currently pending before the Court are the following motions by Defendants:

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Defendant R&R Staffing Agency’s Motion for a More Definite Statement, ECF No. 7;

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Defendant Mark Wyland’s Motion to Dismiss and Motion to Strike, ECF No. 15;
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Defendant Pacific Health Education Center’s Motion to Dismiss, ECF No. 22; and a

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Motion to Dismiss by Defendants Connie Bouvia, the California Bureau for Private

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Postsecondary Education, the California Department of Consumer Affairs, Russ

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Heimerich, Laura Metune, and Julissa Silva-Garcia, ECF No. 28. Also pending before

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the Court is Plaintiff’s Motion for Order Allowing Voluntary Dismissal of Complaint

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Without Prejudice, ECF No. 56.1 Plaintiff filed an opposition to Pacific Health’s Motion to

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Dismiss, ECF No. 77.2

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Several of these motions were set for hearings in October. However, Plaintiff

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represented to the Court that Plaintiff had been abandoned by her counsel and thus she

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was unable to respond to the motions in a timely manner. The Court therefore continued

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motion hearings and issued an Order to Show Cause to Plaintiff’s Counsel, Keith R.

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Oliver, as to why sanctions should not issue against him pursuant to Rule 11. Order,

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Oct. 28, 2013, ECF No. 58.

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Thereafter, Plaintiff filed a motion for a sixty day extension of time to retain new

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counsel, to allow Plaintiff to respond to these various motions by Defendants. Mot., Oct.

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28, 2013, ECF No. 63. Based on Plaintiff’s representations that she had been

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abandoned by her attorney, the Court granted this motion for an extension of time and

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granted Plaintiff sixty days to retain competent counsel and oppose the various motions

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filed by Defendants. That order was docketed on November 15, 2013. See ECF No. 76.

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Plaintiff’s sixty days expired on January 14, 2014, and Plaintiff did not file any additional

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responses to Defendants’ motions. Nor did Plaintiff inform the Court of her reasons for

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failing to respond, failing to retain new counsel, or failing to apprise the Court within the

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sixty day period that she did not intend to retain new counsel. Additionally, Plaintiff has

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not retained new counsel, leading the Court to suspect that Plaintiff, and Plaintiff’s

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counsel Keith R. Oliver, have abused the Court’s lenience in granting the sixty-day

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Additionally pending before the Court is Defendant Pacific Health Education Center’s Motion for
Sanctions, ECF No. 33, which is addressed in a separate order.
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Because oral argument would not be of material assistance, the Court orders these matters
submitted on the briefs pursuant to E.D. Cal. Local R. 230(g).

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extension.

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A.

Unopposed Motions

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Pursuant to Local Rule 230(c), the opposition to a motion must be filed not less

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than fourteen (14) days prior to the date of the hearing. The date of the hearing on

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these Motions was set for February 6, 2014. Fourteen (14) days prior to the hearing was

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January 23, 2014. Moreover, the sixty days which the Court afforded Plaintiff to oppose

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these motions expired on January 14, 2014.

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Because no oppositions were filed as required, Defendant R&R Staffing Agency’s
Motion for a More Definite Statement, ECF No. 7; Defendant Mark Wyland’s Motion to

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Dismiss and Motion to Strike, ECF No. 15; Defendants Connie Bouvia, the California

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Bureau for Private Postsecondary Education, the California Department of Consumer

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Affairs, Russ Heimerich, Laura Metune, and Julissa Silva-Garcia’s Motion to Dismiss,

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ECF No. 28, are each GRANTED.

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B.

Pacific Health Education Center’s Motion to Dismiss

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Plaintiff did file an opposition, ECF No. 78, and then an amended opposition, ECF

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No. 77, to Defendant Pacific Health Education Center’s Motion to Dismiss, ECF No. 22.

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However, this opposition merely asks the Court for leave to amend, as Plaintiff claims

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she “has been effectively abandoned by her attorney of record . . . .” Am. Opp’n at 2.

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Plaintiff states that she will file an amended complaint which states sufficient facts to

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support her claims. Id. While Plaintiff makes the half-hearted argument that she has

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successfully stated a claim for a violation of California’s Unfair Competition Law, Cal.

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Bus. & Prof. Code § 17200, claims for violations of the “unlawful” prong of the UCL must

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be tethered to a violation of some underlying law. People v. McKale, 25 Cal.3d 626, 635

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(1979). Because Plaintiff’s UCL claim is predicated on the same conduct giving rise to

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plaintiff's other causes of action, all of which are subject to dismissal, Plaintiff’s UCL

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claim fails as well. See generally Cel–Tech Comms., Inc. v. L.A. Cellular Tel. Co., 20

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Cal.4th 163, 180 (1999) (claim under “unfair” prong of UCL requires conduct threatening

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incipient violation of antitrust laws); Krantz v. BT Visual Images, LLC, 89 Cal. App. 4th
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164, 178 (2001) (violation under “unlawful” prong of UCL requires underlying violation of

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law).

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Accordingly, Defendant Pacific Health Education Center’s Motion to Dismiss, ECF
No. 22, is GRANTED.

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CONCLUSION

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Accordingly, the following motions are GRANTED:

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1.

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Defendant R&R Staffing Agency’s Motion for a More Definite Statement,
ECF No. 7;

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2.

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Defendant Mark Wyland’s Motion to Dismiss and Motion to Strike, ECF No.
15;

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3.

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Defendant Pacific Health Education Center’s Motion to Dismiss, ECF No.
22;

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4.

Defendants Connie Bouvia, the California Bureau for Private

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Postsecondary Education, the California Department of Consumer Affairs,

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Russ Heimerich, Laura Metune, and Julissa Silva-Garcia’s Motion to

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Dismiss, ECF No. 28;

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5.

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Plaintiff’s Motion to Voluntarily Dismiss the Complaint Without Prejudice,
ECF No. 56, is DENIED AS MOOT; and

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The hearing on these motions, currently scheduled for February 6, 2014, is

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HEREBY VACATED and these matters are submitted on the briefs

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pursuant to Local Rule 230(g).

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The causes of action dismissed by this Order are DISMISSED WITH LEAVE TO

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AMEND. If no amended complaint is filed within thirty (30) days of the date of this Order,

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the causes of action dismissed by this Order shall be dismissed with prejudice without

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further notice to the parties.

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IT IS SO ORDERED.

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Dated: January 24, 2014

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