opposition to tjsl motion for summary judgment or adjudication

i PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

Page

Preliminary Statement ............................................................................................................................. 1

TJSL’s Motion for Summary Judgment. .................................................................................... 4

Procedural History .................................................................................................................................. 6

Statement of Facts ................................................................................................................................... 8

I. TJSL’S EMPLOYMENT FIGURES .................................................................. 8

II. TJSL’S SECRET GOALS CONCERNING THE EMPLOYMENT DATA ................................................................................................................. 9

III. TJSL HAD A POLICY AND PRACTICE OF INFLATING ITS EMPLOYMENT FIGURES ............................................................................. 12

IV. THE EVIDENCE OF MISREPORTING ......................................................... 15

V. TJSL KNEW THAT ITS EMPLOYMENT DATA WAS MISLEADING AND INACCURATE ............................................................. 21

VI. PLAINTIFFS RELIED ON TJSL’S INFLATED FIGURES ........................... 22

Legal Standard ...................................................................................................................................... 23

Argument .............................................................................................................................................. 24

I. TJSL CANNOT SHIFT THE BURDEN ON SUMMARY JUDGMENT BY IGNORING THE RELIANCE ALLEGATIONS IN THE COMPLAINT .......................................................................................... 24

II. THERE IS A TRIABLE ISSUE OF FACT CONCERNING CAUSATION, MATERIALITY AND REASONABLE RELIANCE ............ 25

A. TJSL’s Employment Data Was Material To Plaintiffs’ Decision To Enroll ............................................................................................... 25

1. Materiality Is a Question of Fact .............................................. 25

2. This Court Previously Found That TJSL’s Employment Data Was Material ................................................................... 26

3. Plaintiffs’ Declarations Create A Triable Issue of Fact Concerning Materiality ............................................................ 26

B. Plaintiffs’ Reliance On TJSL’s Published Employment Figures Was Reasonable .................................................................................... 28

1. Reasonable Reliance Is a Question of Fact for the Jury ........... 28

2. Plaintiffs Reasonably Relied on TJSL’s Published Employment Figures ................................................................. 29

3. TJSL Fails to Present any Evidence That Plaintiffs’ Interpretation Was Unreasonable as a Matter of Law ............. 30

ii PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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C. Plaintiffs Had No Obligation To “Investigate” TJSL’s Misrepresentations ................................................................................ 32

III. TJSL WRONGLY ARGUES THAT A FIDUCIARY RELATIONSHIP IS REQUIRED TO PROVE NEGLIGENCE ................................................... 33

A. Negligence Requires A Duty of Care Based On Foreseability ............. 33

IV. TJSL IS NOT ENTITLED TO SUMMARY ADJUDICATION AS TO THE CLRA CLAIMS ....................................................................................... 35

A. The Court Previously Held That TJSL’s Conduct Is Proscribed By The CLRA ....................................................................................... 35

B. TJSL’s CLRA Notice Argument Is Meritless ....................................... 35

1. Alaburda Provided Notice on Behalf of All Plaintiffs .............. 35

2. Summary Adjudication Is Inappropriate Even if Plaintiffs Failed to Provide Notice of the CLRA Claim .......... 36

V. TJSL FAILS TO ESTABLISH UNCLEAN HANDS AS A MATTER OF LAW ........................................................................................................... 37

VI. THERE IS A TRIABLE ISSUE OF FACT AS TO PLAINTIFFS’ FRAUD CLAIM ............................................................................................... 38

A. TJSL Has Presented No Credible Evidence In Support Of Its Argument .............................................................................................. 38

B. Fraud May Be Proven By Circumstantial Or Indirect Evidence .......... 39

Conclusion ............................................................................................................................................ 41

iii PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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TABLE OF AUTHORITIES

Page

CASES

Aguilar, 25 Cal. 4th at 856 ...................................................................................................................... 23

Alliance Mortg. Co. v. Rothwell, 10 Cal. 4th 1226 (1995) ............................................................................................................ 28

Ample Bright Dev., Ltd. v. Comis Int'l, 913 F. Supp. 2d 925 (C.D. Cal. 2012) ...................................................................................... 37

Apollo Capital Fund LLC, 158 Cal. App. 4th at 241 ........................................................................................................... 29

Arthur v. Davis, 126 Cal. App. 3d 684 (1981) .................................................................................................... 37

Atlantic Richfield Co., 25 Cal. 4th 826 (2001) .............................................................................................................. 23

Boyd v. Bevilacqua, 247 Cal. App. 2d 272 (1966) .................................................................................................... 39

City of Hope Nat’l Med. Ctr. v. Genentech, Inc., 43 Cal. 4th 375 (2008) ............................................................................................................... 34

Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351 (2003) .................................................................................................. 28

Corra v. Energizer Holdings, Inc., 962 F. Supp. 2d 1207 (E.D. Cal. 2013)..................................................................................... 36

Donnell v. California Western School of Law, 200 Cal. App. 3d 715 (1988) .............................................................................................. 34, 35

In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159 (S.D. Cal. 2010) ..................................................................................... 38

Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951 (1997) .............................................................................................................. 25

Garcia v. Superior Court, 50 Cal. 3d 728 (1990) ............................................................................................................... 33

Gomez-Jimenez v. New York Law School, 36 Misc. 3d 230 (2012) ............................................................................................................. 32

Grant-Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361 (2002) ................................................................................................... 24

iv PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Gray v. Don Miller & Assocs., Inc., 35 Cal. 3d 498 (1984) (same) ................................................................................................... 28

Guido Koopman, 1 Cal. App. 4th 837 (1991) ....................................................................................................... 30

Hadland v. NN Investors Life Ins. Co., 24 Cal. App. 4th 1578 (1994) .................................................................................................... 32

Hall v. Time Inc., 158 Cal. App. 4th 847 (2008) .................................................................................................... 29

Hart v. Browne, 103 Cal. App. 3d 947 (1980) .................................................................................................... 39

Hebbard v. Colgrove, 28 Cal. App. 3d 1017 (1972) .................................................................................................... 39

Henderson v. Pac. Gas & Elec. Co., 187 Cal. App. 4th 215 (2010) ................................................................................................... 31

Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295 (2011) .................................................................................................. 32

Hussey-Head v. World Sav. & Loan Ass’n, 111 Cal. App. 4th 773 (2003) ................................................................................................... 24

In re Tredinnick, 264 B.R. 573 (B.A.P. 9th Cir. 2001)......................................................................................... 31

Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990 (2003) .............................................................................................................. 23

Kipp v. City & Cnty. of San Francisco, 145 Cal. App. 3d 875 (1983) .................................................................................................... 40

Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) .......................................................................................................... 6, 26

Ladd v. County of San Mateo, 12 Cal 4th 913 (1996) .......................................................................................................... 33, 34

Morgan v. AT & T Wireless Servs., Inc., 177 Cal. App. 4th 1235 (2009) ................................................................................................. 36

OCM Principal Opportunities Fund v. CIBC World Mkts. Corp., 157 Cal. App. 4th 835 (2007) ................................................................................................... 28

Phillips v. DePaul Univ., Case No. 12 CH 3523, Ill. Cir. Ct., Mem. & Order (Sept. 11, 2012) ................................... 5, 34

Saelzler v. Advanced Grp. 400, 25 Cal. 4th 763 (2001) .............................................................................................................. 24

Seeger v. Odell, 18 Cal. 2d 409 (1941) ......................................................................................................... 32, 33

v PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Shopoff & Cavallo LLP v. Hyon, 167 Cal. App. 4th 1489 (2008) .................................................................................................. 34

Small v. Fritz Cos., Inc., 30 Cal. 4th 167 (2003) .............................................................................................................. 29

Sprague v. Equifax, Inc., 166 Cal. App. 3d 1012 (1985) .................................................................................................. 39

Teselle v. McLoughlin, 173 Cal. App. 4th 156 (2009) ................................................................................................... 24

Tillery v. Richland, 158 Cal. App. 3d 957 (1984) .................................................................................................... 40

Weirum v. RKO Gen., Inc., 15 Cal. 3d 40 (1975) ................................................................................................................. 33

Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324 (1986) .................................................................................................. 30

Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1 (1972) .......................................................................................................... 34

STATUTES

Cal. Civ. Code § 1782 ..................................................................................................................... 35, 36

Cal. Civ. Proc. Code § 437c(c) ............................................................................................................. 23

Cal. Civ. Proc. Code § 437c(o) ....................................................................................................... 23, 24

Cal. Civ. Proc. Code § 437c(p)(2) ........................................................................................................ 23

Cal. Evid. Code § 1101(b) .................................................................................................................... 39

Cal. Evid. Code § 1105 ......................................................................................................................... 39

269933.19 1 PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Preliminary Statement

Mark Twain once said, “there are three kinds of lies: lies, damn lies and statistics.” This case

concerns all three.

With this lawsuit, Plaintiffs allege that Defendant Thomas Jefferson School of Law (“TJSL”)

engages in a course of conduct designed to inflate its employment statistics. TJSL’s internal

documents reflect a consistent set of practices that were designed to deceive prospective students,

including Plaintiffs. TJSL’s improper practices include: (1) falsifying graduates’ employment status

on the eve of the reporting deadline; (2) disregarding communications from graduates who said they

were unemployed; (3) falsely claiming that graduates were “unknown” rather than unemployed; (4)

improperly submitting employment data to NALP well after the reporting deadline; (5) concealing

unfavorable “salary” and “employed at graduation” figures from U.S. News; (6) reporting graduates

as “employed” if they had a job any time “since graduation,” even if they were unemployed at the

time of the reporting deadline; (7) sending biased cover letters along with the employment surveys;

(8) disciplining employees who fail to hit target employment numbers; and (9) training employees to

falsify the numbers. In the end, TJSL simply manufactures the employment status of its graduates

and reports those made up numbers to the public.

TJSL has at all times operated in the dark. TJSL was not subject to any oversight or

supervision when reporting its employment figures. No one checked or verified the information that

TJSL submitted. No one looked at TJSL’s source data to determine whether it was reliable (or that it

even existed). TJSL had the ability to manufacture and manipulate its employment figures, and it did

just that. As Laura Weseley —the Assistant Dean of the Career Services Office (the “CSO”)—stated

concerning the misreporting of numbers: “It is no big deal. Everyone does it.”

TJSL also had an incentive to mislead the public. It would be an understatement to say there

is a lot riding on these employment figures. The employment figures comprise 20 percent of the

rankings published each year in the annual U.S. News “Best Graduate Schools” edition. The

employment figures are also published on the ABA website and on TJSL’s website. These figures

can determine whether a law school thrives or fails. The figures can also determine whether and

which students decide to attend TJSL.


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Beverly Bracker worked in TJSL’s CSO from 2001-2014. She was the Director of the CSO

when she left, and TJSL designated her to testify as one of its Persons Most Qualified (“PMQ”).

Bracker testified at deposition that she did not give TJSL’s rankings “any consideration.” When

Bracker provided that testimony, she was obviously aware of the inherent conflict of interest she

had—the person collecting and reporting TJSL’s employment figures clearly should not have a

“goal” or target concerning the employment figures or a plan for TJSL to move up in the rankings.

Bracker’s job was to ensure that TJSL reported accurate information to the public, not to ensure that

TJSL moved up in the rankings.

Bracker lied under oath when she said that she never gave the rankings “any consideration.”

The evidence suggests that both Bracker and TJSL were obsessed with the rankings and the

employment figures. In fact, Bracker’s own internal emails state that: “of course we all agree the

school deserves to be ranked higher! And I firmly believe that will be the case in the not to [sic]

distant future.” In that email, Bracker demonstrated a very detailed understanding of how US News

calculates its rankings. Not only was Bracker well aware of the rankings, she actually had a plan for

TJSL to move up in the rankings. That plan involved inflating TJSL’s employment figures and

moving to a new $90 million building in downtown San Diego. As Bracker told a TJSL graduate:

“we WILL move up in the ranks, and I think many of us feel that will happen with our move to the

new building downtown.” She further stated in an email that “Raising the profile and reputation of

the law school and increasing the career opportunities for all our students and graduates are

constantly in the minds of us in Career Services.” The notion that Bracker and TJSL did not care

about the U.S. News rankings is a total fabrication and it is belied by the evidence.

Bracker was not alone. Numerous employees at TJSL were responsible for tracking TJSL’s

employment data. Over the years, TJSL created internal memos—not released to the public—that

analyzed its employment data and compared it from year to year. TJSL has been unable to explain

why so much time was devoted to analyzing its employment figures. The fact of the matter is that

TJSL recognized that its employment figures needed to be high (i.e., inflated) or it had no chance of

moving up in the rankings (or paying for its new $90 million building).


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TJSL not only tracks its employment figures, it implemented policies that were designed to

ensure that TJSL hit “goal” or target numbers. TJSL disciplined employees who failed to hit these

targets. In one year, TJSL instructed Karen Grant, the Associate Director of the CSO, that, “given the

strength of the market, our numbers should be higher than last year, which was 82.37 percent.” TJSL

gave Grant poor reviews and ultimately terminated her for failing to meet TJSL’s “goals.”

Frank Mead, the Assistant Dean of Career Services at TJSL, represented in one year that TJSL

was “going to exceed NALP’s national average” when reporting its employment rates. Mead made

that promise nine months before the reporting deadline (in fact, TJSL reported one of its best

employment figures on record during that year).

TJSL’s obsession with its employment figures resulted in a practice of book cooking. In an

effort to meet its “goals,” TJSL developed a systematic plan deigned to game the system. Through

discovery, Plaintiffs have learned that TJSL routinely violates its own internal policies and the NALP

instructions in order to inflate its numbers. For instance, at all relevant times, TJSL had a policy of

reporting the employer names for its graduates when it submits information to NALP. This policy is

evidenced by TJSL’s internal memos, and several TJSL employees testified to this fact at deposition.

TJSL’s internal policy is consistent with the NALP User Guide, which provides that law schools are

required to report employer names. There is no legitimate reason a law school would be ignorant of

an employer’s name if it decided to report a graduate as “employed” (i.e., if TJSL knew someone was

working, it should have known where that person was working). TJSL, though, reported no employer

names for up to 30 percent of graduates that it reported as “employed” for the Class of 2003. And

TJSL did the same thing in other years. TJSL was entirely unable to explain the fact that it violated

its own internal policies for roughly one-third of those it reported as employed.

With their opposition papers, Plaintiffs have submitted the Declaration of Prof. Michael

Belch. Prof. Belch has a Ph.D. in marketing and has designed and conducted hundreds of surveys.

He surveyed TJSL graduates for the Classes of 2009 and 2010. Those surveys reveal that TJSL

misreported the employment status of roughly 20 and 28 percent of its graduates, respectively.

Significantly, there was not a single instance where TJSL reported a graduate as unemployed who


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actually had a job (i.e., virtually all of the misreporting benefitted TJSL). These surveys illustrate

TJSL’s course of conduct in deliberately and flagrantly attempting to inflate its employment figures.

TJSL’s course of conduct also involves a cover-up. TJSL claims to have shredded all of the

graduate surveys that existed before 2009. The documents seem to have disappeared from this planet

without anyone at TJSL being able to explain this phenomenon. Indeed, several TJSL employees

testified they are aware of no policy or practice of shredding CSO documents. And TJSL has been

unable to state when or how the documents actually disappeared.

TJSL’s Motion for Summary Judgment.

The arguments made by TJSL in its Motion for Summary Judgment ignore the facts and

misstate the law. TJSL argues that a fiduciary duty is required in order to prove negligence. None of

the cases cited by TJSL actually hold that (or anything close to it). That is simply not the law. A

duty of care on a negligence claim is owed to all foreseeable plaintiffs—a fiduciary duty is simply not

an element of a negligence claim. TJSL does not address the relevant test for foreseeability and its

argument therefore fails.

TJSL also argues that Plaintiffs cannot establish reliance on TJSL’s misrepresentations as a

matter of law. It contends that the employment figures at issue were not “material” to Plaintiffs’

decision to enroll. TJSL, though, already lost this argument when it moved for summary judgment in

2012. This Court held precisely the opposite: that the declaration submitted by Alaburda was

sufficient to raise a triable issue of fact as to materiality. Indeed, it is simply not credible to suggest

that employment figures are immaterial to prospective students who intend to spend hundreds of

thousands of dollars and three years of their lives attending law school.

Indeed, TJSL has not even shifted the burden of production on the issue of reliance. It

decided to file declarations that were previously submitted by Plaintiffs in this case. Those

declarations clearly state that Plaintiffs would not have attended TJSL if they knew that TJSL had

falsely inflated its employment figures. TJSL fails to address this evidence, much less rebut it. TJSL

cannot simply ignore the evidence that it decided to file with the Court.

TJSL’s motion for summary adjudication as to fraud is equally without merit. TJSL claims

there is no triable issue of fact that its employment figures are misleading. TJSL, though, has


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submitted no evidence indicating that its figures are accurate. TJSL did not attach any evidence

substantiating its published figures. It did not file declarations from the individuals who collected

and reported the employment data attesting to their accuracy. Moreover, TJSL ignores the allegations

in the Sixth Amended Complaint relating to its misconduct.1 In TJSL’s moving papers, there is not a

single citation to any of the allegations of wrongdoing in the operative complaint. California law is

clear—a motion for summary judgment must be denied when the moving party fails to address

material allegations in the operative complaint. Again, TJSL cannot prevail on summary judgment

by simply ignoring the issues.

Regardless, TJSL’s entire argument on the fraud claim is based on a single piece of evidence.

TJSL cites to Plaintiffs’ written discovery responses in order to establish that Plaintiffs fail to identify

the specific individuals that TJSL misreported from the Classes of 2000-2003. There is no

requirement, though, that Plaintiffs identify the specific individuals in the first place. A jury can infer

from TJSL’s improper policies and practices that TJSL misreported its employment data. Moreover,

Plaintiffs have submitted direct evidence that the figures were inflated during the relevant period,

including the fact that TJSL violated its own internal policies by reporting that graduates were

“employed” without any employer data for up to one-third of the class. And Plaintiffs’ survey

evidence indicates that TJSL inflated its employment figures by more than 20 percent.

Finally, during the course of this lawsuit, TJSL has repeatedly cited to other cases against law

schools around the country. Those cases are easily distinguished. As the trial court noted in Phillips

v. DePaul Univ., Case No. 12 CH 3523, Ill. Cir. Ct., Mem. & Order at 4 (Sept. 11, 2012), “The

Complaint does not allege that any of the Employment Information was false.” In none of the law

school cases cited by TJSL did the plaintiffs allege that the employment information was inflated or

simply inaccurate. Instead, the plaintiffs in those cases argued that the employment figures were

misleading in that they failed to disclose the fact that the figures included non-law related and part

time employment. In contrast, Plaintiffs here expressly allege that the employment information

1 The Fifth Amended Complaint (“5AC”) was the operative pleading at the time TJSL filed its Motion for Summary Judgment. Plaintiffs filed the Sixth Amended Complaint (“6AC”) after TJSL filed its Motion for Summary Judgment. The allegations in the 5AC and 6AC are virtually identical as to all matters pertaining to this Motion.


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disseminated by TJSL is false, that TJSL has engaged in a course of conduct designed to inflate its

employment figures.

Procedural History

The Original Complaint. Alaburda filed this lawsuit on May 26, 2011. (Register of Action

(“ROA”), No. 1.) On July 18, 2011, Defendant filed a demurrer and motion to strike. (ROA, Nos.

11-12.) On August 17, 2011, Defendant withdrew both motions. (ROA, Nos. 13, 17-18).

Demurrer to the Fourth Amended Complaint. Plaintiffs filed the Fourth Amended

Complaint (“4AC”) on August 11, 2012. The 4AC was filed on behalf of Alaburda, Ballard, Loomis

and Nguyen. (4AC, ¶¶ 75-86.) TJSL demurred to the 4AC. (ROA, No. 84.) This Court heard

Defendant’s Demurrer to the 4AC on November 16, 2012. (ROA, Nos. 109-110.) This Court

overruled the Demurrer in all respects. (ROA, Nos. 111-116.)

The 2012 Motion for Summary Judgment. This Court heard Defendant’s Motion for

Summary Judgment on November 16, 2012 (the “First MSJ”). There, Defendant argued that: (1)

Alaburda’s claims are barred by the statute of limitations; (2) Alaburda was not injured by

Defendant’s misconduct; (3) Alaburda failed to mitigate her damages; and (4) Alaburda is not a

“consumer” under the Consumer Legal Remedies Act (“CLRA”). The Court denied summary

judgment. (ROA Nos. 113-116.) In its written order dated November 29, the Court rejected all of

Defendant’s arguments. (November 29, 2012 Order at pp. 1-9.)

Significantly, the Court rejected Defendant’s argument on the question of injury and

causation. The Court held: “Based upon the reasoning in Kwikset, a plaintiff is entitled to relief when

he or she, ‘would not have bought the product but for the misrepresentation. That assertion is

sufficient to allege causation, the purchase would not have been made but for the misrepresentation.

It is also sufficient to allege economic injury.’” (Id. at p. 9.) The Court further held that: Simply stated, labels matter. Labels on locksets and labels on higher education. Consumers’ right to make informed, educated decisions when determining an education investment depends upon transparency and accurate information. To the extent misrepresentations were made, consumers are injured by enrolling in an institution that is not what it purports to be. (Id.)

The Court noted that Plaintiff bargained for a legal education and that “representations

regarding that legal education are material to the decision of whether to enroll.” (Id.)


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Class Certification. This Court denied Plaintiff’s Motion for Class Certification on October

21, 2013. (ROA No. 169.) The Court held that there were individualized issues of restitution and

that class treatment was therefore inappropriate. The Court, though, did find that Plaintiffs

established a common practice: “In our case, plaintiffs have alleged a uniform practice on the part of

TJSL.” (Certification Order at p. 10:24.) The Court noted that Plaintiffs “have the burden on

certification to show that defendant conducts itself in a common way or that the policies have a

widespread illegal effect.” (Id. at 10:25-26.) This Court relied upon the evidence presented by

Plaintiffs—including deposition transcripts, TJSL’s written discovery responses and the Declaration

of Karen Grant—in holding that “plaintiffs have established for purposes of certification a common

practice by TJSL.” (Id. at 10:25-11:26.)

The Sixth Amended Complaint. The 6AC was filed by Alaburda, Loomis, Ballard and

Nguyen, all of whom graduated from TJSL. (ROA, No. 473.) There, Plaintiffs allege they were

misled by TJSL’s false and inaccurate employment statistics. The 6AC alleges that Defendant has a

policy of, among others: (1) routinely counting unemployed graduates as “employed”; (2) shredding

critical documents relating to Defendant’s employment data (id); (3) counting unemployed graduates

as “unknown” in order to improperly skew the data (id.); (4) reporting unpaid volunteers and interns

as “employed,” in violation of the NALP and ABA guidelines; and (5) failing to record the source of

the employment information it receives and using generally unreliable sources (6AC, ¶¶ 3, 68, 69).

Plaintiffs collectively owe more than $650,000 in connection with their law school education

at TJSL. (6AC, ¶¶ 16, 26, 34, 43.) Plaintiffs would not have enrolled at TJSL if they knew that

Defendant inflated its employment data. (Id., ¶¶ 18, 28, 36, 44.) The 6AC seeks damages and

restitution in the amount of all tuition and fees paid by Plaintiffs. (Id., ¶ 121.) Plaintiffs also seek

injunctive relief, disgorgement, punitive damages, and attorneys’ fees. (Id. at 24:12-25:11.) The

6AC contains claims for violations of Business & Professions Code sections 17200 and 17500,

violations of the CLRA, intentional and negligent misrepresentation and negligence.

The Current Motion for Summary Judgment. TJSL filed four separate Motions for

Summary Judgment against all Plaintiffs. The Motions largely overlap. TJSL makes identical

arguments in all four motions that Plaintiffs’ fraud claims fail as a matter of law because there is no


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evidence of misreporting. (Alaburda Motion at 12:12-13:3; Ballard Motion at 12:11-13:2; Nguyen

Motion at 14:1-14:20; Loomis Motion at 12:20-13:10.)

TJSL fails to present any evidence substantiating its argument that its figures are accurate.

(Id.) Nor does TJSL cite any law in connection with this argument. (Id.)

TJSL also argues that Plaintiffs did not reasonably rely on the employment figures in US

News. (Alaburda Motion at 6:10-11:5; Ballard Motion at 5:21-10:14; Nguyen Motion at 5:19-12:3;

Loomis Motion at 6:8-10:23.) TJSL claims that Alaburda, Nguyen and Ballard could not have relied

on the employment figures because they were only accepted at one school (TJSL). (Alaburda Motion

at 5:1-6:9; Ballard Motion at 4:15-5:2; Nguyen Motion at 5:21-7:3.) And TJSL argues as to all

Plaintiffs that they failed to conduct an adequate investigation of the accuracy of the employment

figures. (Alaburda Motion at 6:10-11:5; Ballard Motion at 9:25-10:14; Nguyen Motion at 11:1-12:3;

Loomis Motion at 10:5-23.)

TJSL argues as to all Plaintiffs that their negligence claims fail because there is no evidence

they were owed a fiduciary duty. (Alaburda Motion at 11:6-12:2; Ballard Motion at 10:15-11:11;

Nguyen Motion at 12:1-24; Loomis Motion at 10:24-11:20.)

And TJSL contends that the CLRA claims filed by Nguyen, Loomis and Ballard must be

dismissed because they allegedly failed to provide statutory notice. (Ballard Motion at 11:12:12-1;

Nguyen Motion at 13:2-8; Loomis Motion at 11:22-12:10.) In fact, there is no dispute that Alaburda

provided notice of the only CLRA claim at issue in this lawsuit before she filed.

Statement of Facts

I. TJSL’S EMPLOYMENT FIGURES

Each year, TJSL collects employment data for its students and graduates. TJSL reports this

employment data to publications like U.S. News, as well as the ABA and NALP. Defendant’s

published employment statistics in NALP and U.S. News emanate from the same source data.

(Plaintiffs’ Consolidated Additional Material Facts in Support of Their Opposition to TJSL’s Motion

for Summary Judgment (“AMF”) 1.)

The process starts off with TJSL collecting and reporting employment and salary data on a

graduate-by-graduate basis to information clearinghouse NALP. (AMF 2.) Based on this data that it


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receives from TJSL, NALP prepares a summary that contains aggregate employment and salary

figures for the recent graduating class (the “NALP Summaries”). (AMF 3.)

TJSL then uses the numbers and percentage from the annual NALP summaries to complete a

questionnaire from U.S. News. (AMF 4.)

II. TJSL’S SECRET GOALS CONCERNING THE EMPLOYMENT DATA

TJSL’s Internal Documents Reflect Secret Targets and Goals. In 2007, the head of the

CSO—Assistant Dean Laura Weseley—told the employee responsible for collecting and reporting

employment data—Karen Grant (“Grant”)—that TJSL expected to see an employment statistic that

exceeded 82 percent for that year. (AMF 5.) When Grant asked for a one-day vacation, Weseley

reminded Grant about the target: “given the strength of the market, our numbers should be higher

than last year, which was 82.37 percent.” (AMF 6.) Weseley then states that Grant could only take a

vacation day “so long as it won’t interfere with the numbers.” (AMF 7.) TJSL had no explanation

for why the top official in the CSO was instructing Grant to hit a target number. (AMF 8.)

TJSL prepared and circulated an internal memo entitled “NALP Employment Data.” (AMF

9.) The memo compares TJSL’s employment figures for 2003-2006, including TJSL’s “total

employed,” “total unemployed” and “job status unknown.” (AMF 10.) The chart reflects the

percentage “increase/decrease” for each category of employment data from 2003 to 2006. (AMF 11.)

There is no other information in the chart. (AMF 12.) TJSL could not explain why it decided to

compare its employment figures year-over-year. (AMF 13.)

TJSL issued an internal document entitled “Career Development Proposal for Recent Grads.”

(AMF 14.) The Proposal provides that TJSL’s: “goal is to have as many [graduates] as possible

employed by the time we do ERSS stats in January, 2007.” (AMF 15.) TJSL could not explain why

it had a “goal” that was directly tied to the ERSS reporting deadline. (AMF 16.)

TJSL drafted internal documents summarizing TJSL’s employment figures year-over-year

from 1996-2008. (Jan. 26, 2010 Email from Kransberger (AMF 17.) The internal documents

contained headings expressly referencing “Career Services.” (AMF 18.) Bracker could not explain

why these documents were created, even though they represent an analysis of the CSO and she was

the Director of the CSO. (AMF 19.)


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Frank Mead, the Assistant Dean of Career Services, closely tracked TJSL’s employment

figures. He issued a prediction nine months before the reporting deadline to Dean Kransberger that

TJSL’s employment figures were “going to exceed NALP’s national average for 2010.” (AMF 20.)

In fact, TJSL’s employment figure for the Class of 2010 was 84.36 percent (Mead’s prediction was

apparently a self-fulfilling prophesy—TJSL reported one of the highest employment figures ever for

the Class of 2010). (AMF 21.)

Mead sent emails to the CSO employees who were responsible for collecting employment

data, and he instructed them to “make the numbers ladies.” (AMF 22.) Mead routinely asked for

updates regarding the employment figures during the collection process. (AMF 23.) Mead stated that

TJSL had a “goal” for “TJSL to exceed by as much as possible the national percentage of those

employed 9 months out.” (AMF 24.) He announced that “goal” to the very same TJSL employees

who were responsible for collecting and reporting the data. (AMF 25.)

The purpose of any survey should be to gather accurate data, not to create data. (AMF 26.)

Setting goals and targets for employees conducting a survey is likely to influence the results and

produce employment figures that are flawed and unreliable. (AMF 27.)

TJSL Disciplined Employees for Failing to Meet the Goals and Targets. TJSL did a year-

end employee review of Grant on December 4, 2006. (AMF 28.) TJSL’s review of Grant at that time

was glowing. In six out of seven categories, Grant received either “good” or “excellent” marks.

(AMF 29.) The notes indicated that Grant “has demonstrated a tremendous level of enthusiasm.”

(AMF 30.)

After TJSL performed its initial performance review of Grant, she collected and reported the

employment figures for the Class of 2006. (AMF 31.) Grant complained about TJSL’s improper

practices before reporting the employment data for the Class of 2006. (AMF 32.) She was told by

Laura Weseley, the Assistant Dean of the CSO, that “It is no big deal. Everyone does it.” (AMF 33.)

TJSL then changed its tune. On September 4, 2007, TJSL did another employee performance

review of Grant. At that time, TJSL indicated that Grant “needs improvement” in four out of the five

categories reviewed. (AMF 34.) Grant’s review indicates that she “had a hard time reaching a large

number of [graduates].” (AMF 35.) In fact, in 2006 when Grant was responsible for collecting the


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employment data, TJSL had the fewest number of “unknowns” in the history of the school (i.e.,

TJSL’s criticism of Grant was entirely unfounded). (AMF 36.)

Grant was terminated by TJSL in September 2007. (AMF 37.)

TJSL Lies About Having Goals and Targets. At deposition, TJSL’s PMQ Bracker denied

that there was a desire to see TJSL move up in the U.S. News rankings:

Q: Did you believe that Thomas Jefferson should have been ranked higher?

A· · I never gave that any thought.

Q· · Did you believe that Thomas Jefferson would go up in the rankings?

A· · That just really wasn't in my way of looking at it. I don't really give it

consideration.

(AMF 38.) She also testified that the desire to move up in the rankings did not influence any of her

decisions: “that that was not any motivation that I had.” (AMF 39.)

But Bracker stated exactly the opposite in written correspondence at the time. Indeed,

Bracker, the head of the office at TJSL charged with collecting and reporting the employment data,

stated that “of course we all agree the school deserves to be ranked higher! And I firmly believe that

will be the case in the not to [sic] distant future.” (AMF 40.) Bracker then explains in great detail the

process for TJSL to “move up in the ranks” in the U.S. News rankings. (AMF 41.) She knew in

2009—when she was the Director of Career Services at TJSL—that the rankings take into

consideration the “reputation of the school, undergraduate GPA, LSAT scores, acceptance rate of

applicants, bar pass rate, employment placement rate, faculty-student ratio and size of the library.”

(AMF 42.) Bracker then describes TJSL’s efforts to move up in the ranks. She notes that TJSL’s

employment placement rate increased five percent that year; that TJSL’s library will increase in size

when it moves to the new $90 million building; and that “the reputation of the school is ever-

improving.” (AMF 43.) She then promises that: “we WILL move up in the ranks, and I think many

of us feel that will happen with our move to the new building downtown.” (AMF 43.) Bracker was

unable to offer any explanation as to the reason she made the foregoing promise. (AMF 44.)

Bracker testified that she was unconcerned with TJSL’s reputation and ranking during her

employment at TJSL:


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Q: Were you focused, as the director of career services, on the reputation of Thomas

Jefferson?

A:· · No.· I would say I was focused on trying to help the students find jobs.

Q:· · So, no, you were not?

· · · · · MR. SULLIVAN: Objection; asked and answered, misstates witness' testimony.

THE DEPONENT: That wasn't a particular focus.

(AMF 45.)

The truth of the matter is set forth in black and white. As Bracker stated in an email: “Raising

the profile and reputation of the law school and increasing the career opportunities for all our students

and graduates are constantly in the minds of us in Career Services.” (AMF 46.)

III. TJSL HAD A POLICY AND PRACTICE OF INFLATING ITS EMPLOYMENT

FIGURES

TJSL Trains Its Employees to Misreport the Employment Figures. TJSL has a practice of

instructing employees in its CSO to report students as “employed” even though they were known to

be “unemployed.” (AMF 47.) Specifically, TJSL instructed its employees to report graduates as

“employed” if they had a job at any time since graduation (even though TJSL knew the graduate was

currently unemployed). (AMF 48.) TJSL admits that the practice of reporting students as

“employed” if they were known to be unemployed is improper. (AMF 49.)

TJSL also switches graduates from “unemployed” to “employed,” before the reporting

deadline, “but not vice-versa.” (AMF 50.) In other words, if TJSL learned that an unemployed

graduate found a job, that graduate would be reported as “employed.” (AMF 51.) If TJSL learned

that an employed graduate lost a job, that graduate would still be reported as “employed.” (AMF 52.)

The foregoing policies and practices are reflected in Grant’s handwritten notes that she took during a

TJSL staff meeting on October 16, 2006. (AMF 53.)

TJSL Skews the Results of Post-Graduation Employment Surveys. TJSL sent surveys to

its graduates in connection with the employed at nine months figure. (AMF 54.) In many years TJSL

sent a cover letter along with these surveys. (AMF 55.) For the Class of 2003, TJSL sent a cover

letter stating: “These statistics are widely published, and go a long way to improving (or diminishing)


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a law school’s reputation and ranking.” (AMF 56.) For the Class of 2005, TJSL sent its survey with

the following message: “A full, accurate response from our recent graduates can only help the school

become more prestigious, thus making your degree more marketable.” (AMF 57.) TJSL could not

explain its decision to remind graduates that their responses will affect the “marketability” of their

degree. (AMF 58.) TJSL’s decision to include cover letter to the post-graduate employment

questionnaire compromised the integrity of the survey and rendered the results unreliable. (AMF 59.)

Each February, TJSL sent a questionnaire to its graduates in relation to the annual “survey.”

The questionnaire asks whether the graduates had been employed any time “since graduation.” (AMF

60.) The questionnaire did not distinguish at all between current and former employment. (AMF

61.). The same is true for a call script for telephonic surveys. (AMF 62.). In other words, TJSL

would report a graduate as “employed,” even though that graduate was unemployed so long as the

graduate was working any time “since graduation.” Indeed, Nikki Love—who was responsible for

collecting and reporting the employment data—admits that the “employed” figure includes those

“who have recently been employed.” (AMF 63.) This practice renders TJSL’s entire survey results

unreliable because it results in unemployed graduates reporting themselves as employed. (AMF 64.)

TJSL also circulated an internal email discussing whether to participate in Princeton Review’s

“Best Law Schools Student Survey.” (AMF 65.) TJSL decided to game the system by sending the

survey only “to students who will paint the most positive picture possible of TJSL.” (AMF 66.)

Bracker denied having any knowledge of the Princeton Review survey, even though she was copied

on numerous emails relating to it. (AMF 67.)

TJSL Hires Its Own Graduates.2 TJSL claims that “it was not a common practice” that

TJSL hired its own graduates. (AMF 68.) In fact, TJSL prepared an internal document reflecting

employer names for the Classes of 2007-2010. (AMF 69.) That document indicates that TJSL hired

its own graduates every year between 2007 and 2010.3 TJSL’s deposition testimony on this issue is

2 The New York Times’ January 8, 2011 article “Is Law School A Losing Game?” by David Segal. states that “[a] number of law schools hire their own graduates, some in hourly temp jobs that, as it turns out, coincide with the [NALP reporting deadline]” thereby improving the law school’s employment figures. See http://www.nytimes.com/2011/01/09/business/09law.html. 3 There has been a great deal of controversy in recent years concerning law schools hiring their own graduates in order to report them as employed to ERSS. This practice is widely regarded as improper


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demonstrably false.

TJSL Inflates the Number of “Unknown” Graduates to Mask Unemployment. For

purposes of reporting employment data to U.S. News (as well as NALP and the ABA), law schools

are better off reporting a graduate as “unknown” as opposed to “unemployed.” During the relevant

period, U.S. News treated 25 percent of all “unknown” graduates as being employed. (AMF 70.)

NALP, the ABA, and TJSL’s own website simply excluded all “unknown” graduates when

calculating the percent of graduates known to be employed. (AMF 71.)

The percentage of TJSL’s graduates that were “unknown” was a large percentage of the class.

Class of 2000 Graduates—22.4 Percent. There were 143 graduates in the Class of 2000. TJSL reported 32 Class of 2000 graduates—or 22.4 percent—as “unknown.” (AMF 72.)

Class of 2001 Graduates—22.7 Percent. There were 154 graduates in the Class of 2001. TJSL reported 35 Class of 2001 graduates—or 22.7 percent—as “unknown.” (AMF 73.)

Class of 2002 Graduates—21.3 Percent. There were 141 graduates in the Class of 2002. TJSL reported 30 Class of 2002—or 21.3 percent— as “unknown.” (AMF 74.)

Class of 2003 Graduates—24.2 Percent. There were 149 graduates in the Class of 2003. TJSL reported 36 Class of 2003—or 24.2 percent—of graduates as “unknown.” (AMF 75.)

During this period, the national average of unknown graduates for law schools was approximately 8-

10 percent. (i.e., TJSL’s unknown rate was more than double the national average). (AMF 76.)

TJSL did not even attempt to “find” many of the graduates that it later reported as unknown.

For the Class of 2009, TJSL circulated an email requesting information on the eve of the reporting

deadline for its “unknown” graduates. (AMF 77.) Significantly, that email contained only 11 names.

(AMF 77.) TJSL, though, ultimately reported 31 graduates as “unknown.” (i.e., TJSL was apparently

not even looking for 20 graduates that it ultimately reported as “unknown.”). (AMF 78.)

Plaintiffs are also aware that TJSL classified a graduate as unknown even though they were

unemployed. TJSL reported Plaintiff Daniela Loomis as “unknown.” (AMF 79.) Loomis, though,

told TJSL on two different occasions before the reporting deadline that she was unemployed. (AMF

if the law school fails to disclose it. See http://www.wsj.com/articles/law-schools-face-new-rules-on-reporting-graduates-success-1426629126.


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80.) Moreover, TJSL’s own internal notes from February 10, 2011, reflect the fact that Loomis was

“seeking employment” (i.e., unemployed). (AMF 81.) TJSL was unable to substantiate its decision

to report Loomis as “unknown.” (AMF 82.)

TJSL Conceals Employment and Salary Data That Could Hurt Its Rankings.

Until Plaintiffs filed this lawsuit, TJSL did not report its “employed at graduation” figures to

U.S. News. (AMF 83.) There is no dispute that TJSL had this information available at its fingertips

during many of the years at issue. (AMF 84.) When TJSL did finally disclose the “employed at

graduation” figure for the first time for the Class of 2010, the figure was remarkably low (28.10

percent). (AMF 85.) The following year, TJSL reported an employed at graduation figure of 9.7

percent. (AMF 86.) From 2000-2011, TJSL successfully presented a lopsided and misleading picture

of its employment figures by concealing its “employed at graduation” figures from the public. TJSL

offered no explanation for its decision to conceal this information. (AMF 87.)

TJSL also concealed salary figures from U.S. News—it did not report salary data to for the

Classes of 2000-2003, even though it was in possession of that information. (AMF 88.)

IV. THE EVIDENCE OF MISREPORTING

TJSL’s False and Inaccurate Reporting.

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates As “Employed”

Ryan Kohut. Kohut sent an email dated February 21, 2006, to Rauber indicating he was unemployed but that that he “did a little bit of contract legal work before Christmas.” (AMF 89.) TJSL reported Kohut as employed, even though TJSL knew he was currently unemployed and had not worked in months. (AMF 90.)

Kyle Ishmael. He returned a survey on February 9, 2011 indicating that he was

unemployed and “seeking work.” (AMF 91.) TJSL reported him as “employed.” (AMF 92.)

Erin King. She submitted a survey to TJSL on February 5, 2011 indicating that she

was “unemployed” and “seeking work.” (AMF 93.) TJSL reported her as employed. (AMF 94.)

Mindy Facer. TJSL knew she was unemployed and seeking work as of February 27, 2007 (well after the employment cutoff). (AMF 95.) TJSL reported her as “employed.” (AMF 96.)

Benedict Hoffman. TJSL knew that he was unemployed and seeking work as of February 27, 2007. (AMF 97.) TJSL reported him as “employed.” (AMF 98.)


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Jaclyn Swe. TJSL knew she was unemployed and seeking work as of February 27, 2007 (well after the employment cutoff). (AMF 99.) TJSL reported her as “employed.” (AMF 100.)

Rene Larson. TJSL reported Rene Larson as “employed,” even though TJSL knew that she was unemployed and studying for the Bar as of February 27, 2007 (well after the employment cutoff). (AMF 101.)

Kimberly McCabe. TJSL reported Kimberly McCabe employed, even though TJSL knew that she was unemployed and studying for the Bar as of February 27, 2007 (well after the employment cutoff). (AMF 102.)

Orchid Barzin. TJSL knew that Orchid Barzin was unemployed on the February 15, 2011 reporting cutoff and that she did not find employment until weeks after the cutoff had passed (AMF 103.) TJSL reported her as “employed.” (TJSL’s ERSS Printout for Class of 2010 at DTJSL 009319 (PAE, Ex. 56).)

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates as “Not Seeking

Work”

Veronica Ramallo. TJSL reported Veronica Ramallo as unemployed “not seeking work,” even though it knew that she was studying for the Bar and seeking work (i.e., unemployed) right before the cutoff. (AMF 105.)

Nine Different Graduates from the Class of 2007. On February 28, 2008, TJSL

reported Jennifer Barta, Gary Tadashi Dote, Henry Garon, Comran Hojabrpour, Nataline Muenster, Theresa Segbersm, Andrew Vogel. Wendy Ward, and Awbrey Watts as unemployed, studying for the Bar full-time. (AMF 106.) TJSL then went back and changed its reporting of these graduates to unemployed “not seeking work” on May 6, 2008 (more than two months after the reporting cutoff).4 (AMF 107.)

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates as Students

Eric Johnson. Five days before the reporting cutoff, TJSL was aware that Eric

Johnson had just (unsuccessfully) finished running for political office and that he was unemployed. (AMF 109.) In spite of that, TJSL reported Eric Johnson as “enrolled in a full-time degree program” even though it knew that to be false. (AMF 110.)

TJSL Has A Practice of Knowingly Misreporting Unpaid Graduates as “Employed

Eight Class of 2005 Graduates. TJSL knew that Darren Bean, Adriana Cespedes, Jacqueline Del Chiaro, James Hassan, David Kawk, Andrew Moher, William Sharp, and Veda Tavakkoly were working in unpaid positions. (AMF 111.) It reported them as “employed” (i.e., unemployed).5 (AMF 112.)

4 Graduates reported as unemployed “not seeking work” are excluded from U.S. News’s calculation of a law school’s employment rate. (AMF 108.) Graduates reported as studying for the Bar are considered to be unemployed in U.S. News’s employment figure. (Id.) These inaccurate reporting changes had the net effect of inflating TJSL’s employment figure reported in U.S. News. 5 Graduates working in unpaid positions must be reported as “unemployed seeking work” pursuant to the NALP Guidelines. (AMF 113.)


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Plaintiffs’ Survey Evidence Demonstrates Further Misreporting. Plaintiffs’ expert, Prof.

Belch, performed a survey that he sent to all graduates from the Classes of 2009 and 2010. (AMF

114.) That survey revealed that TJSL misreported a significant number of those graduates, including

20 percent for 2009 and 28 percent for 2010. (AMF 115.) Significantly, there was not once instance

where TJSL incorrectly misreported an employed graduate to TJSL as unemployed (i.e., the only

misreported graduates were those that TJSL had counted as employed or unknown). (AMF 116.)

This represents empirical data evidencing TJSL’s fraudulent practices.6

TJSL Conceals the Number of Graduates Working in Unskilled Jobs. Recent TJSL

graduate Mary Cheney reported that she was earning $9 per hour at Banana Republic. (AMF 117.)

TJSL reported her as being employed in a professional job. (Id.) Bracker instructed the CSO to

report another recent graduate, Erin King, as being employed because she believed King was working

at Victoria’s Secret. (AMF 118.) TJSL reported that King’s employment job type was “unknown,”

even though TJSL knew that King was working at Victoria’s Secret. (AMF 119.)

TJSL has practice of misreporting graduates as working in “other-professional” jobs even

when TJSL has no information on the type of job or employer name. (AMF 120.)

TJSL Switches Graduates’ Employment Status on the Eve of the Reporting Deadline. In

2008, TJSL circulated an email the day before the employment status cutoff. (AMF 121.) TJSL did

not know the employment status of 24 graduates as of February 14, 2008. (Id.) TJSL admits that it

had been attempting to collect employment data for these graduates for approximately four months at

that point, to no avail. (AMF 122.) TJSL ultimately reported 21 out of the 24 graduates as

“employed” or “unemployed not seeking” (i.e., TJSL switched the employment status of 87.5 percent

of this group in its favor at the last possible minute). (AMF 123.) At deposition, TJSL was unable to

state what it relied on when it reported these graduates as “employed.” (AMF 124.) TJSL ultimately

reported zero graduates as “unknown” for the Class of 2007. (AMF 125.)

Similarly, for the Class of 2008, TJSL circulated an email on the eve of the reporting deadline.

(AMF 126.) That email reflected 22 graduates whose employment status was “unknown” on

6 Prof. Belch also performed a survey of the Class of 2003. He did not receive a sufficient

number of responses to draw a meaningful conclusion.


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February 16, 2009. (Id.) TJSL ultimately reported 13 of those graduates as “employed.” (AMF

127.) And TJSL provided absolutely no employer data for six of these graduates (i.e., no employer

name, salary, city, job type—TJSL essentially submitted a blank form that said “employed”). (AMF

128.) TJSL was unable to explain why it reported these 13 individuals as employed or what it relied

on in doing so. (AMF 129.) TJSL also reported three graduates as “unknown” who were not

identified on the February 16 list (indicating that TJSL apparently decided to report certain graduates

as “unknown” without looking for them). (AMF 130.)

TJSL Reports Graduates as “Employed” But Fails to List Their Employers. TJSL’s

internal policies require the CSO to identify a graduate’s employer name when reporting the data to

ERSS. (AMF 185.) The NALP User’s Guide requires TJSL to enter employer data for its graduates.

(Id.) TJSL admits that its policy was, during all years, to enter the employer name into the software

when reporting graduates’ employment status. (AMF 186.)

In fact, TJSL produced ERSS Printouts for 2003, 2009 and 2010.7 In 2003, TJSL reported 46

graduates with no employer names (i.e., approximately 30 percent of reported graduates had no

employer names) (AMF 132); in 2009, TJSL reported 11 percent of its graduates with no employer

names (AMF 133); and in 2010, TJSL reported 41 graduates as “employed” with no employer name

(i.e., 18.5 percent). (AMF 134.)

At deposition, TJSL failed to explain the reason why even a single graduate was reported as

“employed” with no employer data. (AMF 135.) Bracker testified that it may have been because

TJSL was under a “time crunch” in each of these years, but she did not recall that being the case.

(AMF 136.) Bracker also claimed it may have been a “glitch in the system,” even though she did not

recall that being the case. (AMF 137.) No one at TJSL has been able to explain these violations.

The ERSS Printouts are consistent with a 2011 TJSL internal memorandum (the “2011

Memo”). (AMF 138.) The 2011 Memo reflects the fact that TJSL tracked employer names for its

graduates. The 2011 Memo does not mention a “time crunch” or “glitch in the system.” Instead, the

2011 Memo reflects only 81 employer names for the Class of 2007, even though TJSL reported 169

7 TJSL claims to have shredded/deleted all ERSS Printouts, except for the Classes of 2003, 2009 and 2010 prior to the filing of this lawsuit. (AMF 131.)


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graduates as employed (i.e., TJSL had no employer data for 52 percent of its graduates). (AMF 139.)

The Classes of 2008-2010 also contain gaps ranging from 21 percent to 27 percent. (AMF 140.)

TJSL was unable to explain these gaps. (AMF 141.)

TJSL Shredded the Source Data Relating to Graduate Employment. TJSL did not

provide its source data to NALP during the relevant period (i.e., TJSL did submit the surveys and

spreadsheets it relied upon to NALP). (AMF 142.) It claims that it had a policy of shredding the

surveys after the reporting deadline had passed each year. (AMF 143.)

Notwithstanding TJSL’s alleged policy of shredding its source documents, TJSL’s PMQ did

not know how the ERSS submissions were destroyed. (AMF 144.) Bracker denies knowing what

happened to the graduate surveys for the Classes of 2003-2012, even though she worked in the CSO

during all of those years and was the Director of Career Services from 2007-2013. (AMF 145.)

According to Bracker, TJSL had no policy with respect to the retention of these surveys. (AMF 146.)

In contrast, Grant testified that she is unaware of TJSL shredding any of its employment

documents and that she did not do so. (AMF 147.) And Lisa Kellogg testified that she never

shredded the employment surveys or the student files when she was in charge of collecting and

reporting the employment data. (AMF 148.) According to Kellogg, all of the graduates surveys and

student files were still in the Alumni Office when she retired in 2003. (AMF 149.) And Bracker

admits she does not remember the spreadsheets relied upon by TJSL being destroyed. (AMF 150.)

TJSL has no explanation as to how and when these documents disappeared.

The fact that TJSL claims to have shredded all graduate surveys prior to 2009 is even more

puzzling in light of the fact that the CSO maintains student files going back to 2003. (AMF 151.)

TJSL claims that it deliberately kept the employment surveys separate from the student files. (Id.)

TJSL’s PMQ could not explain why the student surveys were never placed in the student files (even

though that information would obviously assist TJSL in counseling its graduates). (Id.)


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TJSL Games The System By Submitting Employment Data Well After The Deadline.

The deadline to submit employment data to NALP is in February or early March each year. (AMF

152.) In 2005, TJSL submitted employer data to NALP on April 13 (more than one month after the

reporting deadline). (AMF 153.). That email reflects the fact that TJSL “had two late

respondents.” (Id.) TJSL admits that it decided to submit these “late respondents” to NALP more

than one month after the deadline. (AMF 154.) The following year, TJSL again submitted employer

data after the reporting deadline. (AMF 155.) When asked, Bracker testified regarding the NALP

deadline that “I'm not sure exactly that I would say mandatory.” (AMF 156.)

TJSL’s Policies and Practice Have Remained Constant Over the Years. The collection

and reporting of employment data was initially performed by TJSL’s Alumni Office. In 2003, TJSL

decided to transfer the collection and reporting of employment data from the Alumni Office to the

CSO. The transfer was insignificant. In fact, the Alumni Office relied upon information provided by

the CSO anyway. (AMF 157.) The CSO was in possession of this information because the CSO

provided employment counseling to graduates and maintained notes regarding their employment

status. (AMF 158.) In fact, the CSO had more information regarding the students’ and graduates’

employment information than the Alumni Office. (AMF 159.) The CSO employees ultimately asked

the Dean to transfer the collection and reporting to the CSO. (Id.)

Other than the fact that some sources of information have changed—like the advent of

Facebook and LinkedIn—TJSL admits that its employment collection and reporting practices have

remained constant during the relevant period. (AMF 160.) TJSL described a consistent course of

conduct relating to the collection and reporting of employment data when it filed its 2012 Motion for

Summary Judgment. (AMF 161.) (describing standardized process that TJSL utilizes “each year”).

And TJSL’s written discovery responses evidence a consistent pattern of collecting and reporting the

employment data. (AMF 162.) Significantly, TJSL’s PMQ could not identify any differences

regarding the manner in which TJSL analyzed information regarding graduates’ employment status

each year. (AMF 163.)

Dean Kransberger admitted at deposition that TJSL has no written policy concerning the

sources of information that are acceptable when collecting and reporting employment data.


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Q: Okay. Does Thomas Jefferson have a policy concerning the acceptable sources of information to confirm somebody’s employment? Let me ask it a different way. Does Thomas Jefferson have a written policy concerning the acceptable source of information to confirm somebody’s employment status? A: No.

(AMF 164.)

V. TJSL KNEW THAT ITS EMPLOYMENT DATA WAS MISLEADING AND

INACCURATE

TJSL Knows That Graduates Do Not Find Employment. The CSO has no effective

solution to the issue of rampant unemployment among TJSL graduates. In response to the significant

number of unemployed graduates, TJSL’s Professor Herrera advised the CSO to tell unemployed

graduates: “you will have to volunteer until you can get a job.” (AMF 165.) She further states that “I

know that doesn’t pay the bills but neither does sending 50 resumes a week without having someone

on the receiving side know who you are.” (Id.)

The advice provided by Dean Kransberger is precisely the opposite. When a graduate

complained that he had sent out “a couple hundred resumes” and only received “rejection letters,”

Dean Kransberger responded in a single sentence fragment: “Need to send more than a couple

hundred . . .” (AMF 166.) TJSL’s solution to the plight of its graduates appears to be either commit

to working for free or send hundreds of resumes to employers who are not interested.

Dean Kransberger sent an internal email recognizing that Knobbe Martens, a reputable law

firm, has been telling TJSL students “that they need to transfer if they want to be hired.” (AMF 167.)

In another email, Dean Kransberger discusses the fact that TJSL’s top students transfer to other

schools because of “the reality that some firms in town won’t hire our graduates,” and the “received

[sic] wisdom of how inadequate our Career Services Office has been.” (AMF 168.)

TJSL conducted an extensive “self-study” of the CSO (the “Self-Study”). (AMF 169.)

Bracker denied any knowledge of the CSO “Self-Study,” even though she was the Director of the

CSO at the time. (AMF 170.) The “Self-Study” analyzed and compared job placement rates for

TJSL graduates from 1996-2008. The Self-Study recognizes that TJSL “continues to battle lingering

negative perceptions of the quality of the law school’s graduates.” (AMF 171.) It states that


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attorneys at “large local law firms advised our students to transfer to another school if they wanted

the opportunity of permanent employment after graduation.” (Id.) The “Self-Study” states that “we

also continue to encounter firms that will not consider hiring our graduates regardless of class rank,

incoming LSAT score or prior work experience.” (Id.) And TJSL acknowledges that it has been

unable to attract law firms willing to conduct on-campus interviews (it has instead relied upon a

“resume drop program” where employers do not commit to interview anyone at TJSL). (AMF 172.)

Indeed, Bracker, who worked in the CSO for 13 years, could only name two law firms that ever

participated in an on-campus interviewing program. (AMF 173.)

TJSL Is Entirely Indifferent to the Plight of Its Graduates. TJSL has done no analysis at

any time to determine whether graduates will be able to pay off their student loans. (AMF 174.)

TJSL does not counsel students on finding jobs that will allow them to pay off their student loans.

(Id.) TJSL does not keep track of how many graduates have been able to pay off their student loans.

(Id.) TJSL does not know how many total graduates have defaulted on their student loans. (Id.)

TJSL does not know how many graduates have deferred repayment of their student loans. (Id.) TJSL

does not know how much money graduates need to make in order to pay down average indebtedness.

(Id.) TJSL does not know the prevailing interest rate on student loans. (Id.) TJSL does not know the

monthly payment required to pay down the average student indebtedness (Id.) TJSL does not take

loans into consideration when counseling graduates. (Id.) And TJSL does not counsel students on

finding jobs that permit deferment or forgiveness. (Id.)

VI. PLAINTIFFS RELIED ON TJSL’S INFLATED FIGURES

Alaburda reviewed the employment figures for TJSL in the 2004-2006 Editions of U.S. News

& World Report “Best Graduate Schools.” (AMF 175.) Believing those figures to be accurate, she

applied, was accepted and enrolled at TJSL. (AMF 176.)

Alaburda would never have enrolled at, or paid tuition to attend, TJSL if she had known that

TJSL’s “employment nine months after graduation” figures in U.S. News were actually lower than

reported. (AMF 177.) Alaburda would not have attended a school that misreported its employment

data. (Id.) In addition, TJSL held itself out as an ABA-accredited institution and Alaburda enrolled

there believing that its reported employment data complied with the standards established by the


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ABA. (AMF 178.) She would never have enrolled at, or paid tuition to attend, a law school that

reported inaccurate employment data to the ABA, U.S. News & World Report or NALP which, in

turn, could jeopardize its accreditation status. (Id.)8 Ballard, Nguyen and Loomis also declare that

they relied on TJSL’s inaccurate and misleading employment figures in the 2003 and 2006 Editions

of U.S. News in deciding to enroll—none would have attended TJSL had they known that the school

was inflating its employment data in violation of the rules (AMF 179.)

The other Plaintiffs all believed that the employment figures related to attorneys or graduates

in law-related jobs at law firms or in business, government, clerkships, etc. (AMF 180.) None of the

Plaintiffs believed that the employment figures included non-professional jobs, like waiters, pool

cleaners and grocery store clerks. (AMF 181.)

Legal Standard

A party is entitled to summary judgment only if there is no triable issue of material fact and

the party is entitled to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(c). A defendant

moving for summary judgment has the burden of showing that a cause of action lacks merit because

one or more elements cannot be established or there is a complete defense to that cause of

action. Cal. Civ. Proc. Code § 437c(o); Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850

(2001). If the defendant fails to make this initial showing, the motion must be denied. Id.

If the moving papers make a prima facie showing that justifies a defense judgment, the motion

must nevertheless be denied if the plaintiff makes a prima facie showing of the existence of a triable

issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal. 4th at 856 (“[T]he court

may not weigh the plaintiff’s evidence.”). The burden of persuasion remains with the moving

party. Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 1002-03 (2003). The court strictly

construes the moving party’s declarations; the opposition evidence and the reasonable inferences

therefrom must be accepted as true and liberally construed. Aguilar, 25 Cal. 4th at 843, 850. Grant-

8 Plaintiffs filed this lawsuit after reviewing a New York Times Article published in January 2011. The article states that many law schools were using “Enron-type accounting standards” to report their employment data; had been temporarily hiring graduates shortly before the reporting deadline in order to inflate their employment figures; and contains a quote from TJSL’s Associated Dean of Student Affairs, Dean Beth Kransberger, who admitted that some law schools “are manipulating” their employment “results.”


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Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361, 1369 (2002). “Circumstantial evidence is just

as good as direct evidence to create a triable issue of fact.” Hussey-Head v. World Sav. & Loan

Ass’n, 111 Cal. App. 4th 773, 780 (2003); Saelzler v. Advanced Grp. 400, 25 Cal. 4th 763, 767 (2001)

(moving party must establish that “‘under no hypothesis is there a material issue of fact that requires

the process of trial’”).

Argument

I. TJSL CANNOT SHIFT THE BURDEN ON SUMMARY JUDGMENT BY IGNORING

THE RELIANCE ALLEGATIONS IN THE COMPLAINT

In order to prevail on summary adjudication, TJSL must present evidence demonstrating that

Plaintiffs cannot prove reliance as a matter of law. Cal. Civ. Proc. Code § 437c(o). TJSL must do

this with respect to the allegations in the operative complaint. Indeed, the Court of Appeal has held

that “a summary judgment motion necessarily is addressed to the pleadings. The purpose of a

summary judgment proceeding is to permit a party to show that material factual claims arising from

the pleadings need not be tried because they are not in dispute. . . .” Teselle v. McLoughlin, 173 Cal.

App. 4th 156, 172 (2009) (citations and internal quotation marks omitted) (reversing order granting

summary judgment on ground that defendant failed to address material fact in complaint).

Here, TJSL fails to cite to any of the allegations regarding its alleged misconduct in the

operative complaint. Instead, TJSL has decided to inaccurately characterize the issues by cherry-

picking a single allegation in the complaint. (Alaburda Motion at 8:11-11:5.) TJSL’s entire reliance

argument is focused on the definition of the term “employed” as it is used in U.S. News. (Id.) TJSL

argues that Plaintiffs have misinterpreted the term “employed” and that they failed to investigate its

meaning. (Id.) According to TJSL, Plaintiffs’ reliance is therefore unreasonable. (Id.)

The 6AC, though, contains allegations that are far broader than the definition of the term

“employed.” The 6AC alleges that TJSL has “adopted a practice of misreporting its post-graduation

employment statistics.” (6AC, ¶ 6.) TJSL deceptively concealed its “employed at graduation” figure

until after this lawsuit was filed. (Id., ¶¶ 6, 68, 71-72, 75, 77, 118.) TJSL does not mention or even

allude to the “employed at graduation” figure even once. TJSL cannot shift the burden of production

by ignoring material allegations in the complaint. See Teselle, 173 Cal. App. 4th at 172.


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The 6AC also alleges, among others, that TJSL: (1) misreports unemployed graduates as

employed; (2) uses unreliable sources of information in order to inflate its figures; (3) misrepresents

the number of “unknown” graduates in order to mask those who are unemployed; (4) disregards

statements from graduates that they are unemployed; (5) conceals its “employed at graduation”

figures from U.S. News; (6) fails to establish a policy concerning the collection and reporting of

employment data; (7) improperly reports graduates in volunteer positions as “employed,” in violation

of the NALP rules; and (8) reports graduates as employed with no employer name or data to support

that classification. (6AC, ¶¶ 6, 70-79.) All of these allegations pertain to a “course of conduct”

undertaken by TJSL to inflate its employment figures during all of the relevant years. (Id.) The 6AC

further alleges that the foregoing practices resulted in TJSL publishing inflated employment figures

and that Plaintiffs relied on those inflated employment figures. (Id., ¶¶ 18, 26, 36, 44, 52, 71-80.)

TJSL’s motion did not address any of the foregoing improper practices. TJSL simply fails to

address the fact that Plaintiffs relied on figures that were inflated. TJSL’s decision to focus solely on

the definition of “employed” is without merit, and TJSL’s motion must be denied by default. TJSL

cannot shift the burden of production by simply ignoring the allegations in the complaint.

II. THERE IS A TRIABLE ISSUE OF FACT CONCERNING CAUSATION,

MATERIALITY AND REASONABLE RELIANCE

A. TJSL’s Employment Data Was Material To Plaintiffs’ Decision To Enroll

1. Materiality Is a Question of Fact

To demonstrate actual reliance or causation, the plaintiff need only show “that the

representation has played a substantial part, and so has been a substantial factor, in influencing his

decision.” Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 976-77 (1997) (internal quotation

marks omitted). However, the plaintiff need not show that reliance upon the truth of the

misrepresentation be the sole or even the predominant factor in influencing his conduct. Id.

Moreover, a presumption, or at least an inference, of reliance arises wherever there is a showing that a

misrepresentation was material. Id. at 977. “[M]ateriality is generally a question of fact unless the

'fact misrepresented is so obviously unimportant that the jury could not reasonably find that a

reasonable man would have been influenced by it.’” Id.


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2. This Court Previously Found That TJSL’s Employment Data Was

Material

Defendant argues that all of Plaintiffs’ claims fail “because there is no material dispute as to

reliance and causation”; employment figures were not “material” to Plaintiffs’ decision to enroll at

TJSL. (Motion at 5:1-6:9.) This argument was previously rejected by the Court. In its ruling on the

2012 Motion for Summary Judgment, the Court held that:

Representations regarding that legal education are material to the decision of whether to enroll. Just as “Made in the U.S.A. was material and significant to some consumers of locksets, the employment data was significant for this particular plaintiff. Plaintiff states in her declaration that she would not have enrolled at, or paid tuition to attend, TJSL if she had known that TJSL’s ‘employed nine months after graduation’ figures were actually lower than reported.

(Ruling at p. 9 (emphasis added).)

The Court further held that “a plaintiff is entitled to relief when he or she ‘would not have

bought the product but for the misrepresentation. That assertion is sufficient to allege causation . . .’”

(Id.) (quoting Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011).

TJSL is effectively asking the Court to reverse itself. There is no basis to revisit this issue.

3. Plaintiffs’ Declarations Create A Triable Issue of Fact Concerning

Materiality

Plaintiffs have all submitted declarations indicating that: “I would not have attended TJSL if I

had known that it had inflated its post-graduation employment statistics.” (AMF 182.). Plaintiffs

further declare they would not have attended TJSL if they knew that the school was inflating its

figures—TJSL’s conduct amounts to serious violations of the ABA Rules, thereby jeopardizing

TJSL’s accreditation. (AMF 183.) Tellingly, TJSL does not discuss the foregoing language in its

motion, and it mentions Plaintiffs’ declarations on this issue only in passing. (Alaburda Motion at

5:24-26 (citing TJSL Ex. 7).) TJSL does not claim that Plaintiffs’ prior declarations are insufficient

to create a triable issue of fact. TJSL does not dispute the evidentiary value of the declarations.

Instead, TJSL argues that the declarations should be “disregarded” because they contradict Plaintiffs’

sworn deposition testimony. (Alaburda Motion at 5:26-27.)9 TJSL points out that Alaburda, Ballard

9 TJSL made a similar argument in connection with the 2012 Motion for Summary Judgment. TJSL


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and Nguyen were only admitted to one school, TJSL. (Id. at 3:24-28.) TJSL then claims that its

inflated employment figures could not have been material because TJSL was Plaintiffs’ “only

option.” (Id.) TJSL effectively argues that it is impossible to defraud someone who has “only one

option.” According to TJSL, a slumlord cannot defraud a tenant because that tenant may have

nowhere else to go. An unqualified doctor cannot defraud patients who don’t have the money to be

treated elsewhere. That is simply not the law, and TJSL’s position, if anything, is evidence of its

intention to prey upon certain individuals who have few options.

The fact of the matter is that anyone attending law school has more than one option—they can

simply decide not to go (or wait another year and then apply to different schools). Plaintiffs

previously declared to this fact, preempting TJSL’s argument: “If faced with the choice, I would

decide not to attend law school rather than attend a school that misreports its figures to the public, in

violation of the ABA Rules.” (AMF 183.) TJSL simply decided to ignore the relevant evidence and

to make an argument that is unsupported and illogical. There is no evidence in the record to rebut

Plaintiffs’ assertion that they would have decided not to attend law school if they knew the

employment figures were inflated.

TJSL also claims that the employment figures were not material because Plaintiffs considered

other factors, like location, ABA-approval and cost. (Alaburda Motion at 3:18-4:5.) This argument

is inconsistent with well-settled law on the issue of reliance. See Engalla, 15 Cal. 4th at 976-77 (the

plaintiff need not show that “reliance upon the truth of the misrepresentation be the sole or even the

predominant or decisive factor in influencing his conduct”). The fact that Plaintiffs considered other

factors is not even relevant to the question of whether TJSL has established a lack of reasonable

reliance as a matter of law.

As to Loomis, TJSL claims that she is not entitled to a materiality presumption because: “she

cannot say whether she would have enrolled at TJSL even if the employment statistic had been 50%,

60% or 70%, rather than 77%. (Loomis Motion at 6:26-7:2.) However, Loomis filed a declaration

asked this Court to disregard Alaburda’s declaration on the issue of the discovery rule. This Court rejected TJSL’s argument and held that Plaintiff’s evidence was not inconsistent. (November 29, 2012 Minute Order at p. 8.)


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with the Court explaining her answer. (See Loomis Decl., ¶ 15 (PAE, Ex. 3).) The questions posed to

Loomis were entirely speculative, and they constituted incomplete hypotheticals. (Id.) The

hypothetical questions posed by TJSL’s counsel failed to indicate the reason that the figures changed

from 77 to 70 to 60 to 50 percent in the hypothetical scenario (i.e., counsel never indicated in his

hypothetical that the definition of employment remained constant in each scenario). (Id.) Loomis

could not have answered those questions because they were poorly phrased and entirely ambiguous.

If the figures went from 77 percent to 50 percent based on the same set of criteria, Loomis would not

have attended TJSL. (Id.) However, if the numbers decreased from 77 percent to 50 percent because

the definition changed from all employment to only law firms with more than 250 attorneys, for

instance, Loomis still would have considered attending TJSL. (See id.) This Court should not find as

a matter of law that Loomis would have attended TJSL even if it inflated its employment figures.

B. Plaintiffs’ Reliance On TJSL’s Published Employment Figures Was Reasonable

1. Reasonable Reliance Is a Question of Fact for the Jury

Reasonable reliance is an inherently factual inquiry. Alliance Mortg. Co. v. Rothwell, 10 Cal.

4th 1226, 1239 (1995) (“Except in the rare case where the undisputed facts leave no room for a

reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a

question of fact.”) (internal quotation marks omitted); Gray v. Don Miller & Assocs., Inc., 35 Cal. 3d

498, 503 (1984) (same). Generally, "[a] plaintiff will be denied recovery only if his conduct is

manifestly unreasonable in the light of his own intelligence or information. It must appear that he put

faith in representations that were ‘preposterous’ or ‘shown by facts within his observation to be so

patently and obviously false that he must have closed his eyes to avoid discovery of the truth.’” OCM

Principal Opportunities Fund v. CIBC World Mkts. Corp., 157 Cal. App. 4th 835, 865 (2007)

(additonal quotation marks omitted).

The cases that TJSL cites on reasonable reliance undermine its own argument. (See, e.g.,

Motion at 6:11-26 (citing Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351,

1360 (2003), and Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App. 4th 226,

243 (2007).) Consumer Advocates reversed an order granting summary judgment on a CLRA claim

where there was triable issue concerning whether a reasonable consumer was likely to be deceived.


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Apollo Capital held that reasonable reliance was a question of fact even though the plaintiffs signed

an agreement that was inconsistent with the reliance allegations in the complaint. See Apollo Capital

Fund LLC, 158 Cal. App. 4th at 241 (reversing trial court order sustaining demurrer on ground that:

“The question whether the investors actually or reasonably relied on the representations, in view of

their own written representation to the contrary in the purchase agreements, is for the trier of fact”).10

2. Plaintiffs Reasonably Relied on TJSL’s Published Employment Figures

With its Motion, TJSL decided to file Plaintiffs’ Class Certification declarations. The

Alaburda Declaration states that: “I would not have attended TJSL if I had known that it had inflated

its post-graduation employment statistics.” (Jul. 20, 2013 Alaburda Declaration, ¶ 12 (TJSL Ex. 7).)

The Declaration further states that: “I would not have chosen to attend a law school that lacked the

integrity to accurately represent its post-graduation employment figures.” (Id.)11 The other Plaintiffs

submitted virtually identical declarations. (Jul. 19, 2013 Ballard Declaration, ¶ 9 (TJSL, Ex. 12); Jul.

19, 2013 Nguyen Declaration ¶ 10 (TJSL, Ex. 16) ; Loomis Decl., ¶ 12 (Loomis Motion, Ex. 4.)

Tellingly, TJSL does not discuss the foregoing language in its moving papers. TJSL is

asking this Court to “disregard” Alaburda’s sworn declaration without even presenting the Court with

the relevant language. More importantly, the deposition testimony cited by TJSL is entirely

consistent with her declaration. TJSL cites to Alaburda’s deposition testimony indicating that she

decided to attend TJSL because it was “her only option” (i.e., TJSL was the only law school at which

she was admitted). (Alaburda Motion at 6:3-8.) Attending TJSL was obviously not Alaburda’s “only

option.” Alaburda could have decided not to attend any law school at all, and she could have simply

continued working at her then-current job. (Alaburda Declaration, ¶¶ 2-4, 14-17 (PAE, Ex. 1).) She

did not need to go to TJSL. (Id.) There is simply no evidence to suggest that Alaburda would have

10 TJSL also cites to case law for the unremarkable proposition that conclusory allegations of

reliance are insufficient to state a fraud claim. See Small v. Fritz Cos., Inc., 30 Cal. 4th 167, 184 (2003).

11 See also Motion at 6:11-14 (citing Hall v. Time Inc., 158 Cal. App. 4th 847, 859 (2008).) The Hall Court dismissed a UCL claim by the buyer of a book who failed to allege that: “he did not want the book, the book was unsatisfactory, or the book was worth less than what he paid for it.” Hall, 158 Cal. App. 4th at 855. In contrast, Plaintiffs in this case have affirmatively stated that they would not have attended TJSL if they knew about the misrepresentations.


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attended TJSL even if she knew about TJSL’s fraudulent conduct. TJSL has provided this Court with

no reason to disregard the other Plaintiffs’ declarations on this issue either. (AMF 179.)12

3. TJSL Fails to Present any Evidence That Plaintiffs’ Interpretation Was

Unreasonable as a Matter of Law

TJSL further contends that Plaintiffs’ interpretation of the employment figures contained in

U.S. News was unreasonable. (Motion at 8:10-11:5.) Plaintiffs all believed that the employment

figures reflected the status of graduates who either worked in a professional capacity, worked as

attorneys or worked in law-related jobs. (Alaburda Decl., ¶¶ 4-5; Ballard Decl., ¶¶ 5-6; Loomis

Decl., ¶¶ 5-6; Nguyen Decl., ¶¶ 5-6 (PAE, Ex. 1-4).) None of the Plaintiffs believed that the

employment figures reflected any and all jobs, including grocery store clerks and bartenders. (Id.)

TJSL suggests that Plaintiffs failed to read the methodology closely (or in some cases,

Plaintiffs did not recall reading the methodology at all). (Motion at 9:9-15.) TJSL, though, fails to

identify anything in the U.S. News methodology section that would have rendered Plaintiffs’

interpretation manifestly unreasonable. Tellingly, TJSL fails to cite, quote or even discuss anything

contained in the “methodology.” An examination of the “methodology” section of U.S. News, if

anything, supports Plaintiffs’ interpretation. (ALA000035 (TJSL Ex. 13).) There is absolutely

nnothing in the “methodology” section indicating that the employment figures include any and all

jobs or that the figures include non-law related jobs.

TJSL also points to a section in the back of the U.S. News magazine that provides some

additional detail concerning the employment figures. (Alaburda Motion at 8:22-9:19 (citing

ALA00041, ALA 00064, ALA00096). There, U.S. News provides a percentage breakdown of the

graduates who were working in: law firms, business & industry (legal), business & industry

(nonlegal), government, public interest, and academia. (ALA000041). Here, Plaintiffs’ interpretation

12 TJSL cites to a handful of cases where a court granted summary judgment on the issue of reliance. In one case, the Court of Appeal held that there was no reasonable reliance because the source of information was inherently unreliable. See Guido Koopman, 1 Cal. App. 4th 837, 843-44 (1991) (granting summary judgment on fraud claim where it was unreasonable for practicing attorney to rely on legal advice provided by horse trainer as a matter of law). TJSL cites another case that stands for the same proposition. See Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324, 1332 (1986) (holding that plaintiff failed to demonstrate reasonable reliance where he relied on legal advice provided by opposing counsel, even though he was represented by his own attorney).


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is entirely reasonable. (Belch Decl., ¶¶ 33-36 (PAE, Ex. 6); Alaburda Decl., ¶¶ 4-5 (PAE, Ex. 1);

Ballard Decl., ¶¶ 4-5 (PAE, Ex. 2); Nguyen Decl., ¶¶ 5-6 (PAE, Ex. 3); Loomis Decl., ¶¶ 5-6 (PAE,

Ex. 4).) TJSL has pointed to no language anywhere that contradicts Plaintiffs’ interpretation. Indeed,

Prof. Belch—who has 39 years of experience in marketing and the analysis of consumer

information—has indicated that TJSL’s interpretation is actually without merit. (Belch Decl., ¶¶ 33-

36 (PAE, Ex. 6).) A reasonable consumer would not believe that the employment figures included

any and all employment. (Id.) Such a figure is entirely meaningless. (Id.) No reasonable consumer

of a law degree is interested in a total employment figure that includes law school graduates who are

working as pool cleaners, bartenders or waitresses. (Id.) A reasonable consumer expects the

employment figure to include only those graduates working in law-related jobs (i.e., those related in

some way to the degree they just spent the last three years obtaining). (Id.)

It is worth noting that U.S. News changed its methodology after the filing of this lawsuit.

(2014 Edition of U.S. News (PAE, Ex. 32).) For instance, in the 2014 Edition of U.S. News “Best

Graduate Schools,” the rules changed to include only graduates who were employed in a job for

which a JD was required or conferred an “advantage.” (Id.) In other words, U.S. News changed the

employment figures to reflect the reasonable expectation of consumers—that the employment figures

included only law-related jobs and not bartenders, waiters and other non-professionals. (Id.) The

figures now conform to Plaintiffs’ interpretation when they applied to law school. (Alaburda Decl.,

¶ 14 (PAE, Ex. 1); Ballard Decl., ¶ 12 (PAE, Ex. 2); Loomis Decl., ¶ 14 (PAE, Ex. 3); Nguyen Decl.,

¶ 14 (PAE, Ex. 4).) TJSL cannot argue that Plaintiffs’ interpretation was “manifestly unreasonable” –

U.S. News ultimately adopted Plaintiffs’ interpretation of the figures. (Id.)

TJSL also argues that Plaintiffs’ interpretation is unreasonable because they should have

known graduates were working in non-law related jobs due to TJSL’s low bar passage rate. That

argument is flawed for several reasons. First, paralegals do not need to pass the Bar. See generally

In re Tredinnick, 264 B.R. 573, 574 (B.A.P. 9th Cir. 2001) (“At the time of the agreement, Knutson

was a paralegal awaiting California bar examination results”); Henderson v. Pac. Gas & Elec. Co.,

187 Cal. App. 4th 215, 220 (2010). Second, many attorneys are able to practice without passing the

Bar (contract lawyers performing document review, legal research and other office tasks do not need


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to be licensed to practice law). Id.; see also Lola v. Skadden, Arps, Slate, Meagher & Flom, No. 14-

3845 (2d Cir. 2015). Third, the bar passage rate published in U.S. News does not remotely correlate

with the employment figure. The bar passage rate includes only those taking the Bar in California for

the first time (i.e., those taking the Bar out of state and those taking the bar more than once are not

included in the figure). For instance, for the Class of 2003, there were more than 140 graduates

included in TJSL’s employment figure, but only 91 were included in the bar passage figure. (It is

simply not possible to conclude that graduates were working in non-law related jobs when 35 percent

of the graduates were not accounted for at all.

The cases relied upon by TJSL are inapposite. See Hadland v. NN Investors Life Ins. Co., 24

Cal. App. 4th 1578, 1588-89 (1994) (holding that plaintiff failed to show justifiable reliance where

allegations were directly at odds with express terms of written contract); Hill v. Roll Int’l Corp., 195

Cal. App. 4th 1295, 1304 (2011) (holding that mere presence of non-descript “green drop” on

packaging of Fiji water bottles did not signify that product was environmentally superior to all other

water brands or that it was endorsed by unnamed environmental group).

C. Plaintiffs Had No Obligation To “Investigate” TJSL’s Misrepresentations

TJSL relies exclusively on an out-of-state decision that it was unreasonable as a matter of law

for Plaintiffs to rely on their published employment figures. (Alaburda Motion at 9:22-11:5 (citing

Gomez-Jimenez v. New York Law School, 36 Misc. 3d 230 (2012) (holding there was no reasonable

reliance where allegations were contradicted by sources available to prospective law students).)

According to TJSL, Plaintiffs’ claims are barred because they could have—but failed to—conducted

a reasonable investigation that would have yielded all of the relevant information concerning these

numbers. This argument is undermined by TJSL’s own case law.

Indeed, TJSL’s argument is belied by the authority cited in its own brief. In California, “[t]he

fact that an investigation would have revealed the falsity of the misrepresentation will not alone bar

his recovery.” (Alaburda Motion at 7:1-3 (citing Seeger v. Odell, 18 Cal. 2d 409, 414-15 (1941)

(reversing trial court order sustaining demurrer on ground that plaintiff stated fraud claim even

though an investigation of recorded title would have revealed that defendant’s representations were

false).) Furthermore, “[n]egligence on the part of the plaintiff in failing to discover the falsity of a


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statement is no defense when the misrepresentation was intentional rather than negligent.” Seeger, 18

Cal. 2d at 414. In short, there is no obligation under California law that a plaintiff conduct an

investigation of the defendant’s wrongful conduct.

Regardless, TJSL fails to present evidence of what a reasonable investigation would have

revealed. There is no evidence that a reasonable investigation would have shown that TJSL was

inflating its employment figures. There is no evidence that a reasonable investigation would have

shown that TJSL was pressuring Career Services employees to hit certain goals and targets (which

caused them to fudge the numbers). There is no evidence that a reasonable investigation would have

revealed that TJSL was disregarding information that graduates were unemployed; that TJSL was

falsely reporting graduates as “unknown”; or that TJSL was reporting manufactured employment

information for its graduates.

III. TJSL WRONGLY ARGUES THAT A FIDUCIARY RELATIONSHIP IS REQUIRED

TO PROVE NEGLIGENCE

A. Negligence Requires A Duty of Care Based On Foreseability

According to TJSL, a negligence claim requires duty to use due care. (Alaburda Motion at

11:8 (citing Ladd v. County of San Mateo, 12 Cal 4th 913 (1996)).) TJSL then claims this duty of care

“only arises as a result of a fiduciary or special relationship.” (Alaburda Motion at 11:8-15.)

On a negligence claim, the general rule is “that all persons are required to use ordinary care to

prevent others from being injured as the result of their conduct.” Weirum v. RKO Gen., Inc., 15 Cal.

3d 40, 46 (1975). “[T[he question whether one owes a duty to another must be decided on a case-by-

case basis.” Id. The “primary consideration” in establishing whether a duty of care exists is whether

the harm to the plaintiff was foreseeable. Id. “While duty is a question of law, foreseeability is a

question of fact for the jury.” Weirum, 15 Cal. 3d at 46.

B. A Fiduciary Duty Is Not An Element Of A Negligence Claim

TJSL cites to a California Supreme Court case that holds exactly the opposite of what it

claims is the law—a special relationship is not required to allege a negligence-based claim. (See

Motion at 6:23-26 (citing Garcia v. Superior Court, 50 Cal. 3d 728, 734 (1990) (reversing order

sustaining demurrer on negligent misrepresentation claim without leave to amend and holding that


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negligent misrepresentation based on affirmative act does not require special relationship).) Another

case relied upon by TJSL—Ladd v. County of San Mateo—did not discuss or even mention the term

“fiduciary duty.” Id. Needless to say, TJSL is simply wrong on the law. Plaintiffs are aware of no

case holding that a fiduciary duty is a required element of a negligence claim.

TJSL also miscites case law in making its argument. (Alaburda Motion at 11:9-11 (citing

Shopoff & Cavallo LLP v. Hyon, 167 Cal. App. 4th 1489 (2008)).) Shopoff was a legal malpractice

action in which the plaintiff alleged claims for both breach of fiduciary duty and professional

negligence. The Shopoff court held that a fiduciary relationship was required to prove the breach of

fiduciary duty claim. Id. at 1509. The Shopoff court, though, also held that “Actionable legal

malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty,

breach of duty, causation, and damage.” Id. at 1508-09 (internal quotation marks omitted). Shopoff

does not in any way hold that a fiduciary relationship is required to prove a negligence claim.13

TJSL’s citation to Phillips v. DePaul Univ., Case No. 12 CH 3523, Illinois Circuit Court

(Sept. 11, 2012), is also based on a misreading of the case. TJSL contends that the plaintiffs in

DePaul “alleged a negligence claim on the theory that they were misled by the law school’s post-

graduation employment statistics . . .” (Alaburda Motion at 11:25-12:2.) That is incorrect. There

was no negligence claim alleged by the plaintiffs in Phillips (there was a negligent misrepresentation

claim). (See Phillips at 10-11.) Moreover, the court in Phillips sets forth the elements of a negligent

misrepresentation claim under Illinois law. Id. Noticeably absent from the list of elements is a

fiduciary duty. Again, TJSL is attempting to create an obligation that simply does not exist—neither

California nor Illinois requires a plaintiff to allege a fiduciary duty in order to prove negligence (or

negligent misrepresentation).

TJSL also cites to Donnell v. California Western School of Law, 200 Cal. App. 3d 715 (1988).

13 TJSL cites to several cases concerning the relevant standard for a breach of fiduciary duty claim. See City of Hope Nat’l Med. Ctr. v. Genentech, Inc., 43 Cal. 4th 375, 389 (2008) (holding that breach of fiduciary duty claim failed because plaintiff failed to establish a fiduciary duty—no negligence claim was at issue); Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1, 13-14 (1972) (holding that plaintiff failed to allege a claim for breach of fiduciary duty because school did not owe a fiduciary duty to its students—there is no suggestion that a fiduciary duty was required to prove a negligence claim).


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(Alaburda Motion at 11:16-19.) There, the plaintiff filed a negligence claim against his school after

he was stabbed on a public sidewalk. The plaintiff claimed that the school was negligent in failing to

maintain proper lighting and security. Donnell, 200 Cal. App. 3d at 717-18. The trial court held that

a defendant generally does not owe a duty to control another’s conduct on property he does not own.

Id. at 717. However, the court held that the defendant could still be liable if the plaintiff established a

“special relationship.” Id. at 719. The Court of Appeal held that no special relationship was present

in that case, and the negligence claim therefore failed. Id. at 720. In other words, Donnell stands for

the proposition that negligence may be found in some cases where the parties are in a special

relationship; Donnell does not suggest that a special relationship is required to prove negligence.

IV. TJSL IS NOT ENTITLED TO SUMMARY ADJUDICATION AS TO THE CLRA

CLAIMS

A. The Court Previously Held That TJSL’s Conduct Is Proscribed By The CLRA

TJSL contends that Plaintiffs’ CLRA claims fail because the statute does not specifically

prohibit an education institution from misreporting its post-graduate employment rates. (Alaburda

Motion at 12:3-11.) This argument has already been considered—and expressly rejected—by the

Court. (See November 29, 2012 Order; TJSL’s Demurrer to Fourth Amended Complaint at 5:20-

10:28.) Indeed, this Court has expressly held that Plaintiffs’ allegations that TJSL misreported its

employment data was sufficient to state a cause of action under the CLRA. (November 29, 2012

Order at p. 3.) B. TJSL’s CLRA Notice Argument Is Meritless

1. Alaburda Provided Notice on Behalf of All Plaintiffs

The CLRA requires that the defendant receive notice “[t]hirty days or more prior to the

commencement of an action for damages.” Cal. Civ. Code § 1782(a). TJSL concedes that it received

a CLRA demand letter at the outset of this litigation. (Alaburda Motion at 12:3-11.) TJSL, though,

contends that Nguyen, Loomis and Ballard’s CLRA claims should be dismissed because they failed

to provide separate notice letters. (Ballard Motion at 11:13-12:1; Nguyen Motion at 13:2-18; Loomis

Motion at 11:22-12:10.) In the class action context, a single CLRA demand letter is sufficient to

satisfy the notice requirement on behalf of the putative class. In re Easysaver Rewards Litig., 737 F.


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Supp. 2d 1159, 1178-79 (S.D. Cal. 2010) (holding that putative class complied with CLRA notice

requirements based on CLRA demand letter sent by class representatives).

Here, TJSL admits that it received a CLRA demand letter from Alaburda on June 14, 2011.

Alaburda was the lone class representative at the time she sent the letter. Ballard, Loomis and

Nguyen were members of the putative class that Alaburda purported to represent. The Second

Amended Complaint further confirms that “on June 14, 2011, Plaintiff and the Class provided written

notice, as required by Civil Code section 1782, to TJSL regarding the above described violations of

the Consumer Legal Remedies Act.” (Second Amended Complaint, ¶ 104.)

TJSL fails to present any authority that would require the defendant to receive a new demand

letter each time a new class representative is added in a putative class action. That is especially true

when the operative complaint contains a single CLRA claim and the language of the notice applies to

the allegations made by all of the Plaintiffs. (June 14, 2011 CLRA Letter (PAE, Ex. 115).)

2. Summary Adjudication Is Inappropriate Even if Plaintiffs Failed to

Provide Notice of the CLRA Claim

The notice requirement under the CLRA applies only to “the commencement of an action for

damages.” Cal. Civ. Code § 1782(a). The express language of the CLRA permits a claim for

injunctive relief to be filed without compliance with any notice requirement. Cal. Civ. Code §

1782(d) (“An action for injunctive relief brought under the specific provisions of Section 1770 may

be commenced without compliance with subdivision (a).”)

The operative complaint in this case seeks both damages and injunctive relief. TJSL is not

entitled to summary adjudication even if its argument is correct—Plaintiffs are entitled to seek

injunctive relief even if they failed to provide notice under the CLRA.

Moreover, the alleged lack of notice would merely permit the Court to dismiss the CLRA

claims without prejudice so that Plaintiffs could cure the defect. Morgan v. AT & T Wireless Servs.,

Inc., 177 Cal. App. 4th 1235, 1260-61 (2009) (reversing trial court order dismissing CLRA claim and

holding that plaintiffs were entitled to dismiss and re-file the CLRA claim after providing notice).

Plaintiffs would be entitled to amend their CLRA claim to cure any defect without seeking leave of

court. Corra v. Energizer Holdings, Inc., 962 F. Supp. 2d 1207, 1220 (E.D. Cal. 2013).


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V. TJSL FAILS TO ESTABLISH UNCLEAN HANDS AS A MATTER OF LAW

TJSL argues that Loomis and Nguyen’s claims are barred by the doctrine of unclean hands

because their Linked-In profiles did not accurately depict their post-graduation employment.

(Nguyen Motion at 14:21-15:13; Loomis Mot. at 13:11-28.) “Whether a claim is barred by unclean

hands is a question of fact.” Ample Bright Dev., Ltd. v. Comis Int'l, 913 F. Supp. 2d 925, 940 (C.D.

Cal. 2012). “The unclean hands doctrine bars recovery by a plaintiff (1) whose behavior is tainted by

inequity or bad faith (2) that occurred in acquiring the right he now asserts.” Id. The party asserting

an unclean hands defense must demonstrate that the plaintiffs’ alleged misconduct “relate directly to

the transaction concerning which the complaint is made.” Arthur v. Davis, 126 Cal. App. 3d 684,

693-94 (1981) (internal quotation marks omitted). Courts have held the doctrine “inapplicable” when

the alleged acts of misconduct occurred after the transaction at issue occurred. Id. at 693 (1981).

Here, the arguments made against Loomis are spun from whole cloth. TJSL apparently

claims that Loomis’ 2013 LinkedIn profile is misleading. (Loomis Motion at 13:18-24.) Her 2013

LinkedIn profile, though, is irrelevant to the facts of this case. TJSL reported to NALP Loomis’

employment status as of February 15, 2011. It could not have relied on her 2013 LinkedIn profile

because it did not exist. (Separate Statement In Support of Loomis Motion, No. 48.) Nor can TJSL

show that it actually relied on a misstatement in Loomis’ profile—TJSL reported Loomis as

“unknown.” (i.e., nothing found in Loomis’ profile influenced the manner in which TJSL reported

her). And TJSL’s wrongly contends that Loomis has done anything wrong. Loomis’ LinkedIn

profile states that she clerked in the San Diego Public Defender’s Office (which is true). (Loomis

Decl., ¶ 12 (PAE, Ex. 3).) And her profile states that she had a solo practice (which is also true).

(Id., ¶ 10.)

TJSL’s unclean hands argument as to Nguyen is also misplaced. TJSL admits that is would

not be appropriate to report a graduate as employed nine months after graduation based solely on his

or her LinkedIn profile. (AMF 184.) Based on Nguyen’s online LinkedIn profile, there was no way

to tell: whether Nguyen was employed in a paid position; whether Nguyen was working on a project-

by-project basis; and how often she was actually employed. (Id.) TJSL violated its own policies by

relying exclusively on a LinkedIn profile and by failing to ever contact Nguyen to confirm any of the


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information. (Nguyen Decl., ¶¶ 11-13 (PAE, Ex. 3).)

VI. THERE IS A TRIABLE ISSUE OF FACT AS TO PLAINTIFFS’ FRAUD CLAIM

TJSL argues that Plaintiffs cannot prove misrepresentation as a matter of law. (Alaburda

Motion at 12:12-13:3.) TJSL fails to cite even a single case in support of its argument. TJSL has no

authority for the proposition that a misrepresentation may be decided as a matter of law. And TJSL

spent less than one total page in making this argument.

A. TJSL Has Presented No Credible Evidence In Support Of Its Argument

TJSL fails to present any evidence that its employment figures are actually accurate. The only

evidence TJSL submits that is even relevant to this issue is contained in the Kransberger Declaration.

There, Dean Kransberger claims that she is “aware of no occasion” when TJSL misreported its

employment figures. (Kransberger Decl., ¶¶ 15-17 (TJSL Ex. 8).) Dean Kransberger, though, never

states that she was personally involved with the collection and reporting of employment figures.

In fact, Dean Kransberger admitted at deposition that she does not know whether the

underlying data supporting TJSL’s employment figures were accurate. (Kransberger Tr. (Vol. I) at

218:10-20 (PAE, Ex. 8).) Thus, Dean Kransberger admittedly does not know whether TJSL

misreported any information. More importantly, TJSL designated Dean Kransberger as the PMQ

concerning the accuracy of its employment figures. (Kransberger Tr. (Vol. I) at 18:12-19:13 & 20:8-

21:13 (PAE, Ex. 8).) TJSL cannot now claim that the employment figures were accurate when TJSL

admitted at deposition that it does not know that to be the case.

Dean Kransberger also admitted that she knew very little about the collection and reporting

process. She testified that she did not know:

whether TJSL contacts the graduates’ employers in order to gather employment data (Kransberger Tr. (Vol. I) at 126:14-23);

the methodology that U.S. News utilizes to calculate employment statistics (id. at 200:22-201:10);

why TJSL did not provide a response concerning the “employed at graduation” statistic in the U.S. News surveys (id. at 204:11-21);

whether the data on TJSL’s website complied with reporting guidelines set forth by U.S. News, NALP or the ABA (id. at 191:16-19, 180:15-25);


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why TJSL classified graduates as “employed” even though it had no employer or salary data on those graduates (id. at 183:16-23).

There are numerous other categories upon which Dean Kransberger either did not know or

upon which she simply refused to testify. Her declaration attesting to the accuracy of TJSL’s

employment figures has no evidentiary value.

B. Fraud May Be Proven By Circumstantial Or Indirect Evidence

It is well-settled that parties can establish misrepresentations using circumstantial and indirect

evidence:

Our Supreme Court, in affirming a judgment against the defendant, stated: “It would in most cases be extremely difficult, and in many cases absolutely impossible, to procure direct evidence of this nature. In all cases it is permissible to prove fraud by circumstances, and in most cases it is the only evidence available. In aid of the direct facts proved, legitimate inferences are permitted to be indulged to establish other facts not directly in evidence.”

Hart v. Browne, 103 Cal. App. 3d 947, 957-58 (1980).

A fraudulent representation, like any other fact, can be established by circumstantial or

indirect evidence. Hebbard v. Colgrove, 28 Cal. App. 3d 1017, 1028 (1972). Actual fraud is a

question of fact and like any other fact may be proved by circumstantial evidence. Boyd v.

Bevilacqua, 247 Cal. App. 2d 272, 292 (1966).

Indeed, circumstantial evidence in the form of custom and habit evidence is routinely

admitted to prove tort liability. See Cal. Evid. Code § 1105. And courts also have the discretion to

admit evidence of a common plan or scheme. See Cal. Evid. Code § 1101(b); Sprague v. Equifax,

Inc., 166 Cal. App. 3d 1012, 1032-34 (1985) (affirming judgment in favor of plaintiff on fraud

claim—trial court properly admitted evidence of defendant’s course of conduct relating to bad faith

denials of insurance claims, even though evidence was entirely unrelated to plaintiffs’ insurance

claim).

Here, TJSL admits that its policies and practices have effectively remained the same at all

times during the relevant period. (AMF 160-164; Apr. 10, 16 2013 Further Supp. Response to

Special Rog No. 25 (PAE, Ex. 20).) During numerous depositions, TJSL was unable to identify even

a single practice that changed over the years (with exception of the fact that different websites came

into existence, like Facebook and LinkedIn). (Id.)


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Accordingly, Plaintiffs are entitled to present evidence of TJSL’s practices from 2000 through

the present. See, e.g., Kipp v. City & Cnty. of San Francisco, 145 Cal. App. 3d 875 (1983) (holding

under section 1105 “the jury would have been permitted to conclude that [defendant’s] conduct on the

day of the accident was ‘in conformity with’ his established habit or custom”); Tillery v. Richland,

158 Cal. App. 3d 957, 969 (1984) (affirming trial court’s decision to admit evidence under section

1105 that physician had a practice of treating patients—other than plaintiff—without regard for

whether they were able to pay the cost of treatment).

Plaintiffs’ expert, Prof. Belch, performed a survey that he sent to all graduates from the

Classes of 2009 and 2010. (Belch Decl., ¶¶ 38-41 & Ex. B thereto (PAE, Ex. 6).) That survey

revealed that TJSL misreported a significant number of those graduates, including 20 percent for

2009 and 28 percent for 2010. (Id., ¶¶ 42-43 & Ex. B thereto (PAE, Ex. 6).) Significantly, there was

not once instance where TJSL incorrectly misreported an employed graduate to TJSL as unemployed

(i.e., the only misreported graduates were those that TJSL had counted as employed or unknown).

(Id.) This represents empirical data evidencing TJSL’s fraudulent practices.14

Plaintiffs have also presented evidence that TJSL engaged in fraudulent conduct by: (1)

falsifying graduates’ employment status on the eve of the reporting deadline; (2) disregarding

communications from graduates who said they were unemployed; (3) falsely claiming that graduates

were “unknown” rather than unemployed; (4) improperly submitting employment data to NALP well

after the reporting deadline; (5) concealing unfavorable “employed at graduation” figures from U.S.

News; (6) reporting graduates as “employed” if they had a job any time “since graduation,” even if

they were unemployed at the time; (7) sending a biased cover letter along with the surveys; (8)

disciplining employees who fail to hit target employment numbers; (9) training employees to falsify

the numbers; and (10) simply manufacturing the employment status of graduates with no evidence to

support it. (See 8:22-23:10, above.)

14 Prof. Belch attempted to conduct a survey for the Class of 2003, but he received only eight

responses. (Belch Decl., ¶ 40 (PAE, Ex. 6).) Even though TJSL misreported graduates from the Class of 2003, Prof. Belch did not receive a sufficient number of responses to rely on this data. (Id.) Plaintiffs decided to survey the Classes of 2009 and 2010 because the most robust employment data was available for those years (TJSL destroyed the source data for many of the other years, including 2000-2002). (Id., ¶¶ 37-38.)

1 TJSL is not entitled to summary adjudication as a matter of law—it has failed to address or

2 rebut the vast majority of these issues. TJSL presents no evidence that would even warrant shifting

3 the burden of persuasion.

4 Conclusion

5 For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendant’s

6 motion for summary judgment.

7DATED: November 25, 2015 MILLER BARONDESS, LLP

~10 •anProcel

Attorneys for Plaintiffs11 Anna Alaburda, Jill Ballard, Daniela Loomis,

12 and Nikki Nguyen

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269933.19 41PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT