Danam v. Gcu

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RAFAEL CEZAR DANAM, Plaintiff/Appellant,

v.

GRAND CANYON UNIVERSITY, Defendant/Appellee.

No. 1 CA-CV 23-0776

FILED 11-21-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-007775
The Honorable Jay R. Adleman, Judge

AFFIRMED IN PART AND REVERSED IN PART

COUNSEL

Rafael C. Danam, North Las Vegas
Plaintiff/Appellant

Zelms Erlich Lenkov & Mack, Phoenix
By Robert B. Zelms, Nishan J. Wilde
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael J. Brown and Judge D. Steven Williams joined.
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K I L E Y, Judge:

¶1 Rafael Cezar Danam appeals from the superior court’s ruling
dismissing his claims against Grand Canyon University (“GCU”) without
leave to amend. For the following reasons, we affirm in part and reverse in
part.

FACTS AND PROCEDURAL HISTORY

¶2 Danam’s inappropriate behavior as a substitute teacher at an
elementary school – which included discussing employment grievances
with fourth graders and threatening “[v]engeance” against school officials
when his employment was terminated – led the Arizona State Board of
Education (the “Board”) to investigate and, after a hearing, revoke his
substitute teaching certificate. See Rafael Danam v. Ariz. Bd. of Educ.,
Maricopa County Superior Court Case No. LC2018-000093, Minute Entry
dated September 27, 2018, at p. 1. The revocation was affirmed on appeal.
See id. at p. 5; Danam v. Ariz. Bd. of Educ., 2019 WL 5617577 at *1-2, ¶¶ 3-6
(Ariz. App. Oct. 31, 2019).

¶3 In May 2023, Danam filed a complaint against GCU, asserting
a variety of constitutional and statutory claims. He alleged, for example,
claims arising under “42 U.S.C. § 1983 & 1988 for 5th and 8th Amendments,
US Constitution,” the “Higher Education Act (1965), 20 U.S.C.A. § 403 et
seq.,” and “Ariz. Rev. Stat. Ann. § 23-1501(A)(3)(c)(i),” also known as the
Arizona Employment Protection Act. The factual basis of Danam’s
complaint, however, was unclear; he alleged merely that from “September
thru December 2017, [he] was in direct communication with
Representativ[e] Defendants with official offer to receive MA in Elem Ed
as-is without Practicum/Teacher [sic].”

¶4 Shortly after filing his complaint, Danam filed a motion for
leave to amend the complaint. Because he did not attach a copy of the
proposed amended complaint as required by Arizona Rule of Civil
Procedure (“Rule”) 15(a)(4), the superior court denied his motion to amend.

¶5 Danam then filed another motion for leave to amend along
with a proposed amended complaint, which he entitled “Amended
Complaint Plaintiff Special Action Brief,” that purported to set forth the
factual and legal basis for his claims against GCU. Referring to the Board as
the “originating Defendant,” the proposed amended complaint alleged,
inter alia, that the originating Defendant caused him to suffer both
“injurious effects to [his] employment as a teacher” and the “loss of

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graduation ability with [GCU].” The proposed amended complaint further
alleged that GCU “extended” the Board’s “horrendous” decision by
“withholding [his] graduate degree” in “violat[ion]” of his “constitutional
rights.”

¶6 The proposed amended complaint alleged that “official
executive representatives” of GCU “offered” to “award” him a “graduate
degree without completion of Arizona certification,” but that “[he] did not
accept because [he] only had one final semester to complete in 2018, and []
was not expecting extensive litigation against” the Board. In effect, Danam
admitted that he rebuffed GCU’s offer to grant him a degree without
certification because he anticipated, erroneously, that he would complete
the additional requirements for certification. Danam further alleged that
GCU “violated [his] rights” by “directly hinder[ing]” his ability to pursue
“alternative routes to certification” through “Graduate Programs . . . at
other universities.”

¶7 In his proposed amended complaint, Danam asserted a claim
for punitive damages, citing the “significant harm done to children” who
were his “former students.” “The direct harm suffered by former students”
due to the Board’s revocation of his certificate, Danam alleged, “justifies”
an award of punitive damages, which Danam promised to “direct toward
former students[’] families” for a “special social event at Disneyland &
Disneyland Resort . . . in addition to awards of scholarships for collegiate
or technical school pursuits.”

¶8 Finally, the proposed amended complaint alleged that
Danam “earned a grade of ‘A’,” but was given a “C,” in a class he took in
2017 entitled “ELM 580-Methods and Strategies for Teaching English
Language Arts.” He “submitted proper documents and forms,” Danam
alleged, to give GCU an “opportunity for correction” of the erroneous grade
“prior to current litigation.” He asked that GCU be required “to correct” the
grade of “C” that he was given in this class.

¶9 GCU moved to dismiss the complaint, asserting that Danam
has no viable claim against GCU for failing to grant him the degree he
sought because, by his own admission, he did not complete the required
coursework. GCU further argued that Danam’s complaint and his proposed
amended complaint alleged that the Board, and not GCU, was the cause of
his damages. GCU asked that the court deny Danam leave to amend his
complaint, asserting that Danam’s inability to prove that GCU caused any
damages doomed all of his claims against the university. GCU made no
reference, however, to the proposed amended complaint’s claim for

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punitive damages or the claim that Danam was improperly denied the “A”
he earned in one of his classes.

¶10 The superior court determined that the complaint and the
additional allegations in the proposed amended complaint neither “set
forth any specific facts to support an identifiable cause of action” nor
“identify any damages purportedly arising from [GCU’s] conduct.”
Accordingly, the court found that Danam “failed to state a claim for relief
with respect to any cognizable cause of action,” dismissed the complaint,
and denied leave to amend.

¶11 Danam timely appealed. We have jurisdiction under A.R.S. §
12-2101(A)(1).

DISCUSSION

¶12 Danam argues, inter alia, that the superior court erred in
dismissing his claims against GCU without leave to amend. In response,
GCU argues, first, that Danam has “waived the right to challenge” the
dismissal order by submitting briefing that consists of “bizarre and
nonsensical arguments” supported by “conclusory statements about
irrelevant topics.”

¶13 GCU makes a valid point. Danam’s briefing is confusing,
often to the point of unintelligibility. Danam’s brief, for example, quotes the
“closing narrative commentary” of the 65th episode of the TV show “The
Twilight Zone” for the proposition that “[a]ny state . . . which fails to
recognize the worth, the dignity, the rights of Man . . . is obsolete.” Even
less comprehensible is Danam’s assertion that “Walt Disney, Dr. Seuss aka
Theodor Seuss Geisel, Charles Schulz, Mr. Rogers aka Fred McFeely Rogers,
and Stan Lee provide direct inferences for precise application of abuse of
power, discrimination and bigotry.”

¶14 Nevertheless, because “resolution of cases on their merits is
preferred,” DeLong v. Merrill, 233 Ariz. 163, 166, ¶ 9 (App. 2013), we will
address the substance of the cognizable arguments presented and
preserved for review to the extent they are developed and articulated
sufficiently for us to do so. See MacMillan v. Schwartz, 226 Ariz. 584, 591,
¶ 33 (App. 2011) (“Merely mentioning an argument in an appellate opening
brief is insufficient.”); see also Schabel v. Deer Valley Unified Sch. Dist. No. 97,
186 Ariz. 161, 167 (App. 1996) (holding issues not argued in a party’s
appellate brief waived).

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¶15 First, Danam argues that the superior court “violat[ed]” his
“constitutional rights by denying [him] fair trial procedures.” By
dismissing his claims without an evidentiary hearing, Danam maintains,
the court “failed to fulfill [its] judicial duty and obligations as ‘trier of
facts.’” In response, GCU argues that a plaintiff is not entitled to “fair trial
procedures” unless the plaintiff “first plead[s] a valid cause of action,” and
Danam did not do so here.

¶16 As GCU correctly argues, a plaintiff is not entitled to a trial
without first pleading facts which, if true, could entitle the plaintiff to relief.
Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012); see also Danko v. Jackson,
1 CA-CV 23-0662, 2024 WL 2859439 at *5, ¶ 30 (Ariz. App. June 6, 2024)
(mem. decision) (“Due process does not entitle [a plaintiff] to a hearing to
present evidence in support of legally deficient claims.”). In evaluating
whether Danam stated a claim for relief, the court properly considered only
the pleadings themselves. Coleman, 230 Ariz. at 356, ¶ 9 (“In determining if
a complaint states a claim on which relief can be granted,” a court “look[s]
only to the pleading itself” and “must assume the truth of all well-pleaded
factual allegations.”). The court’s failure to conduct evidentiary
proceedings before dismissing Danam’s claims entitles him to no relief.

¶17 Danam next argues that the superior court “exhibited bias
and partiality” by “denying, ignoring, or omitting evidence, facts, laws,
[and] case law.” This argument is unavailing. As noted above, whether a
plaintiff has stated a claim upon which relief could be granted does not turn
on the existence of evidentiary support for the plaintiff’s claims. See Ariz.
R. Civ. P. 12(b)(6); see also Coleman, 230 Ariz. at 356, ¶ 9. Further, the fact
that the court ruled adversely to Danam does not give rise to an inference
of bias or partiality. Liteky v. United States, 510 U.S. 540, 555 (1994) (noting
that “judicial rulings alone almost never” establish bias or partiality); see
also Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63 (App. 2010) (holding that
plaintiff “failed to demonstrate judicial bias” merely by alleging “that the
judge consistently ruled against him”). Danam’s “judicial bias” claim
entitles him to no relief.

¶18 Danam argues that the superior court erred in determining
that he failed to state a claim for which relief could be granted against GCU,
insisting that he presented “sufficient allegations to put defendants [sic]
fairly on notice of the claims against them.” In response, GCU argues that
the dismissal “was entirely justified under Arizona law” because Danam’s
“complaint and proposed amended complaint did not set forth the
elements” of a viable cause of action, and instead were “riddled with
conclusory statements” unsupported by “any factual allegations.”

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¶19 Rule 8 requires “that a pleading contain a short and plain
statement of the claim showing that the pleader is entitled to relief.” Cullen
v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008) (citing Ariz. R. Civ. P.
8). “If a pleading does not comply with Rule 8, an opposing party may move
to dismiss the action” under Rule 12(b)(6). Id. at ¶ 7. Dismissal is
appropriate only if, as a matter of law, the plaintiff would not be entitled to
relief under any interpretation of the facts alleged in the complaint. Id. at
419-20, ¶ 8; see Sanchez-Ravuelta v. Yavapai County, __ Ariz. __, __, ¶ 22, 548
P.3d 347, 355 (App. 2024) (“We . . . will not affirm [a] dismissal unless
satisfied as a matter of law that plaintiffs would not be entitled to relief
under any interpretation of the facts susceptible of proof.”). We review de
novo an order granting a motion to dismiss for failure to state a claim.
Coleman, 230 Ariz. at 355, ¶ 7. We must “assume the truth of the well-pled
factual allegations and indulge all reasonable inferences therefrom,” but
“mere conclusory statements are insufficient to state a claim upon which
relief can be granted.” Cullen, 218 Ariz. at 419, ¶ 7. Additionally, a court
considering a motion to dismiss may not “speculate about hypothetical
facts that might entitle the plaintiff to relief.” Id. at 420, ¶ 14 (cleaned up).

¶20 The denial of leave to amend is reviewed for abuse of
discretion. Carranza v. Madrigal, 237 Ariz. 512, 515, ¶ 13 (2015). Though
“[l]eave to amend is discretionary,” a proposed amendment “will be
permitted unless the court finds undue delay in the request, bad faith,
undue prejudice, or futility in the amendment.” MacCollum v. Perkinson, 185
Ariz. 179, 185 (App. 1996). “[U]nless the court finds” one of these factors,
“leave to amend a pleading should be granted if the underlying facts or
circumstances relied upon may be a proper subject of relief.” Id. (cleaned
up).

¶21 As GCU correctly points out, Danam’s complaint and
proposed amended complaint attribute his damages largely to the Board’s
revocation of his license. The Board was the “originating Defendant,”
Danam alleged, and caused “injurious effects to [his] employment as a
teacher” and the “loss of graduation ability with [GCU].” Even accepting as
true Danam’s allegations about the Board’s purportedly “horrendous”
decision to revoke his license, those allegations cannot, of course, support a
claim against GCU.

¶22 Although Danam alleges that GCU wrongfully refused to
grant him a graduate degree, he also admitted, in his proposed amended
complaint, that he did not complete the required coursework. Danam has
cited no authority, and we are aware of none, that could support his claim
of entitlement to a degree that he admits he had not yet earned. Cf. Cesca v.

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W. Ill. Univ. Bd. of Trustees, 716 F. Supp. 3d 696, 716 (C.D. Ill. 2024) (“[T]he
basic bargain undergirding a university education is that a student in good
standing who successfully completes her coursework and pays her tuition will
receive a degree.”) (emphasis added). Danam further admitted that GCU
offered to grant him a “graduate degree without completion of Arizona
certification,” but he “did not accept” GCU’s offer. As GCU correctly
argues, Danam cannot assert a viable claim against GCU based on his
decision to reject an offer made by GCU.

¶23 In his proposed amended complaint, Danam alleged that
GCU engaged in unspecified acts that purportedly “directly hindered” his
ability to pursue “alternative routes to certification” through “Graduate
Programs . . . at other universities.” The lack of any factual allegations to
support this claim renders it insufficient as a matter of law. See Cullen, 218
Ariz. at 419, ¶ 7 (“[A] complaint that states only legal conclusions, without
any supporting factual allegations, does not satisfy” Arizona’s pleading
rules.).

¶24 Danam argues that he “seeks ‘punitive damages’
compensation [sic],” asserting that he “can prove that the Defendant acted
with an ‘evil hand and evil mind.’” He further asserts that he will
“distribute[]” sums awarded as punitive damages “to all public and charter
students effected by erroneous actions of Defendant [sic].”

¶25 Neither Danam’s complaint nor his proposed amended
complaint alleged any act by GCU that could warrant an award of punitive
damages. Instead, the allegations in support of punitive damages involved
the Board’s conduct in instituting proceedings that resulted in the
revocation of his teaching certificate. Moreover, by Danam’s own
admission, the purported harm that he identifies as justifying an award of
punitive damages was suffered by his former students, not Danam himself.
Indeed, Danam promises, in effect, to hold an award of punitive damages
in trust to benefit his former students and their families. Danam has cited
no authority, and we are aware of none, entitling him to assert a claim for
punitive damages on behalf of third parties. See Philip Morris USA v.
Williams, 549 U.S. 346, 353 (2007) (holding that due process prohibits
imposition of punitive damages “to punish a defendant for . . . injury that
it inflicts upon those who are, essentially, strangers to the litigation”).
Accordingly, the superior court did not abuse its discretion in denying
Danam leave to assert a claim for punitive damages. See Hayden Bus. Ctr.
Condominiums Ass’n v. Pegasus Dev. Corp., 209 Ariz. 511, 515-16, ¶ 25 (App.
2005) (“Leave to amend is . . . properly denied when the proffered
amendment . . . is legally insufficient on its face.”).

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¶26 Finally, Danam reasserts that he “earned a grade of ‘A’” in
one of his classes at GCU but was given a “C” instead. He asks that GCU
be required to “correct” his grade. In its briefing, GCU does not respond to
this argument.

¶27 During the proceedings below, GCU did not expressly
oppose Danam’s proposed amendment to assert a claim to correct the grade
he received, and the court made no finding that the proposed amendment
involved undue delay, bad faith, unfair prejudice, or futility. MacCollum,
185 Ariz. at 185. Further, the allegations in support of this claim, though
meager, are sufficient to meet Rule 8’s minimal pleading standards. See, e.g.,
BLK III, LLC v. Skelton, 252 Ariz. 583, 588, ¶ 15 (App. 2022) (“Under [Rule
8], a pleading must give the opposing party fair notice of the nature and
basis of the claim by setting forth a short and plain statement that
demonstrates entitlement to relief.”) (cleaned up).

¶28 Although leave to amend to add a claim is proper if the claim
would not be viable anyway, see Hayden Business Ctr., 209 Ariz. at 515-16,
¶ 25, we cannot conclude, on the present record, that Danam’s challenge to
GCU’s grading decision is not cognizable as a matter of law. Courts in other
jurisdictions have long recognized the viability of challenges “by public
university students” to “arbitrary, capricious, or bad-faith grading.” Melvin
v. Troy Univ., 609 F. Supp. 3d 1262, 1272 (M.D. Ala. 2022). Although those
challenges are often grounded in the due process clause of the Fourteenth
Amendment to the U.S. Constitution, which protects against arbitrary state
action, at least some courts have held that such claims may be viable when
brought against private universities as well. See Abbario v. Hamline Univ.
Sch. of Law, 258 N.W.2d 108, 113 (Minn. 1977) (reversing dismissal of
complaint by student expelled from private university for poor grades and
holding that complaint stated a claim for relief by alleging arbitrary conduct
by university officials; “The requirements imposed by the common law on
private universities parallel those imposed by the due process clause on
public universities.”); cf. Guidry v. Our Lady of the Lake Nurse Anesthesia
Program, 170 So. 3d 209, 215-17 (La. App. 1 Cir. 2015) (affirming summary
judgment in favor of private university on student’s challenge to calculation
of her final grade because student “failed to establish that [instructor] was
arbitrary and capricious in determining her grade”; “[T]he decisions of
educators are not completely immune from judicial scrutiny, and courts
will intervene if an institution exercises its discretion in an arbitrary or
irrational fashion.”).

¶29 Whether Danam’s challenge to GCU’s grading decision is
cognizable under Arizona law is an open question, and one on which we

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express no opinion. But GCU never addressed this claim, and, without
briefing on the issue, we cannot say that we are “satisfied as a matter of
law” that Danam “would not be entitled to relief under any interpretation
of the facts susceptible of proof.” See Sanchez-Ravuelta, 548 P.3d at 355, ¶ 22.
Under the circumstances, and assuming, as we must, the truth of Danam’s
allegation that he “earned a grade of ‘A’” but was given a “C,” the liberality
with which Arizona law allows pleading amendments required that
Danam be granted leave to amend his complaint to assert this claim. See
MacCollum, 185 Ariz. at 185 (noting that absent undue delay, bad faith,
undue prejudice, or futility, “leave to amend a pleading should be granted
if the underlying facts or circumstances relied upon may be a proper subject
of relief”) (cleaned up).

CONCLUSION

¶30 For these reasons, we reverse the denial of Danam’s request
to amend his complaint to add a claim challenging the grade he received in
one class and remand for further proceedings on that claim. In all other
respects, we affirm the dismissal of the complaint and denial of leave to
amend.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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