NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD C. LUCK, Ph.D, No. 16-55276

Plaintiff-Appellant, D.C. No. 3:13-cv-03088-JLS-BGS

v.

UNIVERSITY OF SAN DIEGO; AMI

CARPENTER,

MEMORANDUM*

Defendants - Appellees.

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. 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

2 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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