EDWARD C. LUCK, Ph.D v. University of San Diego; Ami Carpenter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD C. LUCK, Ph.D,
Plaintiff-Appellant,
v.
UNIVERSITY OF SAN DIEGO; AMI
CARPENTER,
Defendants - Appellees.
No. 16-55276
D.C. No. 3:13-cv-03088-JLS-BGS
MEMORANDUM*
Appeal from the United States District Court
For the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted December 7, 2017
Pasadena, California
Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.
Plaintiff-Appellant Edward C. Luck appeals the district court’s grant of
summary judgment for Defendants-Appellees University of San Diego (USD) and
Ami Carpenter on six claims: intentional misrepresentation, negligent
misrepresentation, fraud by concealment, negligence, defamation, and failure to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
JAN 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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pay wages (violation of California Labor Code § 201). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
On appeal, Dr. Luck argues that the district court erred in granting summary
judgment on each of these claims because he established triable questions of
material fact warranting a trial. After reviewing the record, we conclude that the
district court properly applied the summary judgment standard. There is no
evidence that statements made to Dr. Luck as to the nature of his employment with
the school were false, that USD knew the statements were false, or that they were
made with the intent to deceive Dr. Luck into accepting the Kroc school deanship
and a professorship at the time they were made. See Gentry v. eBay, Inc., 99 Cal.
App. 4th 816, 835, 121 Cal. Rptr. 2d 703, 718 (Cal. Ct. App. 2002). Indeed, at the
outset Dr. Luck was able to develop a vision statement and implement significant
changes to financial and administrative processes. Aplt. Br. at 9–10, 27.
Furthermore, no academic administrator could reasonably expect to operate with
complete independence from the faculty and the University administration.
Statements concerning Dr. Luck’s position within the university were not false; Dr.
Luck was both a dean and full tenured professor upon hire.
Dr. Luck’s negligence claim fails because he voluntarily resigned from his
position. Accordingly, he cannot prove that the alleged negligent hiring of the
investigator or releasing of the investigator’s report was the proximate cause of his

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damages. Dr. Carpenter’s filing of the gender discrimination complaint was not
malicious because it was couched in terms of opinion and was supported by factual
allegations Dr. Luck does not challenge. See Ruiz v. Harbor View Cmty. Assn.,
134 Cal. App. 4th 1456, 1471, 37 Cal. Rptr. 3d 133, 144 (Cal. Ct. App. 2005). Dr.
Carpenter’s statements at the all-school meeting were not false, as corroborated in
the affidavits submitted by Dr. Carpenter’s colleagues, and so cannot be
defamatory. Finally, because Dr. Luck did not work after he resigned, he did not
“earn” any wages and is therefore not entitled to any back pay. See Smith v.
Superior Court, 39 Cal. 4th 77, 92, 137 P.3d 218, 228 (Cal. 2006).
AFFIRMED.

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