Judge: Elaine W. Mandel, Case: 23SMCV03162, Date: 2024-01-10 Tentative Ruling

Case Number: 23SMCV03162    Hearing Date: January 10, 2024    Dept: P

Tentative Ruling

Wetzel v. Board of Trustees of the California State University, Case No. 23SMCV03162

Hearing Date: January 10, 2024

Defendant Board of Trustees of the California State University’s Demurrer to the First Amended Complaint and Motion to Strike Portion of the First Amended Complaint

Plaintiff Wetzel alleges she paid Defendant Board of Trustees of the California State University $10,600 for a certificate program represented as necessary for certification by the California Department of Consumer Affairs to become a speech language pathologist assistant. Plaintiff alleges she learned the program does not enable her to become a speech language pathologist assistant. Defendant demurs and moves to strike the requested attorney’s fees.

First Cause of Action: Breach of Contract (Express)

To prevail on breach of contract claim, plaintiff must prove (1) the contract, (2) plaintiff's performance, (3) defendant’s breach, and (4) damage. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. “Where a written instrument is the foundation of a cause of action, it may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference.” Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.

A complaint is subject to demurrer if, “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” Code Civ. Proc., § 430.10, subd. (g). The FAC does not clearly allege whether the contract is oral, written or implied by conduct.

Plaintiff refers both to written documents (see FAC at ¶38) and specific conduct (see FAC at ¶¶ 22-23). No written agreement is attached, nor does the FAC quote any terms or sufficiently allege the legal effect of any such written agreement. See FAC at ¶¶35-51. The FAC fails to clearly allege whether the contract is oral, written or implied. SUSTAINED with leave to amend.

Second Cause of Action: Breach of Contract (Implied in Fact)

Defendant demurs on the same grounds, and this cause of action fails for the same reasons. Labeling the first cause of action “breach of contract (express)” and the second “breach of contract (implied in fact)” supports a finding that it cannot be ascertained whether the contract is oral, written or implied. SUSTAINED with leave to amend.

Third Cause of Action: Unjust Enrichment/Quasi-Contract (Implied in Law) and Fourth Cause of Action: Conversion

Plaintiff concedes the FAC fails to allege sufficient facts to state the third cause of action for unjust enrichment/quasi contract (implied in law) and the fourth cause of action for conversion and agrees to dismiss those causes of action. MOOT as to the third and fourth causes of action

Motion to Strike Attorney’s Fees

Defendant moves to strike; this is MOOT, as the court sustains the demurrer as to the contract claims, and plaintiff dismisses the others.