________________________________________________________

In the

Court of Appeal of the

State of CaliforniaSIXTH APPELLATE DISTRICT

________________________________________________________

Case No. H037663

THOMAS GRIBOVSZKI,

Plaintiff-Appellant

V.

STANFORD UNIVERSITY

Defendant-Respondent

_________________________________

APPEAL FROM SANTA CLARA COUNTY SUPERIOR COURT,

HON. KEVIN E. MCKENNEY – CASE NO. CV110340

_________________________________APPELLANT'S OPENING BRIEF

THOMAS GRIBOVSZKI C/O MR. JOERG KREISEL MELANIEWEG 25, 52072 AACHEN, GERMANY

Tel: +49-931-66394180 Fax: +49-931-66394189 Email: aviasia@stanfordalumni.org

In Propria Persona

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES …................................................................ iv

I. JUDGMENT APPEALED FROM (Dismissal per CCP 472.(b)) ....... 1

II. NATURE OF THE ACTION AND SUMMARY OF PROCEDURAL HISTORY …...................... 1

(Student-University Contract: Breach and Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing in Denial of Non-Thesis Master Degree, Disabled Ph.D. Program, and Denial of Access to University Transcripts)

III. RELIEF SOUGHT. IN TRIAL COURT …....................................... 5

(Remand with Directions for Leave to Amend to Restore Lost Claims of Degree and Disabled Ph.D. Program, and for Expedited Hearing for Injunction to Compel Degree Conferral etc.)

IV. SUMMARY OF ARGUMENT …....................................................... 5

(No Adjudication on the Merits on any of the Issues: No Substantive Grounds Given, No Evidentiary Exhibits Submitted or Hearings Held)

V. LEGAL DISCUSSION ….................................................................... 7

A. The Present Dismissal Grounded in CCP 472.(b) Should be Reversed Because it is not on the Merits …................................................. 7 B.The Master Degree Claim Should be Restored Because it was Never Adjudicated on the Merits and is Thus not Barred by Res Judicata............. 8

1. A Dismissal Upon Demurrer is not Automatically on the Merits for the Mere Fact that the Demurrer Alleged Failure to State a Cause of Action: An Unfortunate Misinterpretation of the Pivotal Keidatz Phrase …............ 8

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2. The 039451 Demurrer Did Not Go to the Merits of the Master Degree Claim, and Therefore, the Subsequent Dismissal was Also not on the Merits …............................................................................................... 11

3. The Master Degree Claim has also not been Finally Adjudicated, as with the 039451 Appeal Noticed but not Dismissed, the Appeal is Technically Still Pending Awaiting the Trial Court's Granting of Access to Justice by Fee Waiver In Forma Pauperis ….............................................. 13

C. The Claim for Disabled Ph.D. Program Should be Restored Because it was not Considered in the First Appeal of H034330 and has Thus not been Adjudicated on the Merits …............................................................. 13

VI. CONCLUSION ….............................................................................. 14

CERTIFICATE OF WORD COUNT …................................................ 15

ATTACHMENTS PURSUANT TO RULE 8.204.(d) …....................... 16

Appellant's Complaint and Respondent's Demurrer in Prior Action of 105CV039451

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TABLE OF AUTHORITIES

California Cases Page

Paulsen v. Golden Gate University (1979) , 25 Cal.3d 803 …............... 3, 11

Keidatz v. Albany (1952), 39 Cal.2d 826 …......................................... 6, 8, 9

Everts v. Blaschko (1957), 17 Cal.App.2d 188 …........................................ 8

Olwell v. Hopkins (1946), 28 Cal.2d 147 …................................................ 9

Zumbrun v. University of Southern California

(1972) , 25 Cal.App.3d 1 …........................................................ 9, 12

Goddard v. Security Title Ins. & Guar. Co. (1939), 14 Cal.2d 47 …........... 9

Sterling v. Galen (1966), 242 Cal.App.2d 178 …...................................... 10

California Law

CCP 472.(b) …................................................................................. 1, 4, 6, 7

CCP 430.10.(f) and (g) …............................................................................ 9

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I. JUDGMENT APPEALED FROM

Appellant appeals from a judgment of dismissal following a denial

of his motion for leave to amend to restore claims lost in an intermediate

res judicata judgment which Appellant will show to have been erroneous in

that the prior action's dismissal following order sustaining demurrer was not

on the merits.

Actually precipitating the dismissal after the hearing for leave to

amend was the Respondent's motion to dismiss on the color of California

Code of Civil Procedure ('CCP') 472.(b), which was submitted in tandem

with the Respondent's opposition to motion for leave to amend, but for

which no hearing was held.

II. NATURE OF THE ACTION

AND SUMMARY OF PROCEDURAL HISTORY

The Appellant seeks compensatory and injunctive relief from

breaches of contract and tortious breaches of the implied covenant of good

faith and fair dealing inherent in the three issues of a denied non-thesis

master degree, the disabling of a Ph.D. program prior agreed upon, and

denied access to the Appellant's university transcripts by financial hold on

account of tuition billed for a term the Appellant did not enroll in (as well

as the erroneous record-keeping of that term in the transcripts).

Essentially, the Appellant was accepted, with offer of a tuition-and-

stipend paying research assistantship into a Ph.D. program of aeronautics

and astronautics, which allowed for intermediate attainment of a master

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degree. The Appellant advanced through the program, attaining candidacy,

up to the terminal stage where he had fulfilled all requirements but the

dissertation research and defense. At that point, he found himself without

assistantship, and as a result, was forced to take a leave from the

Respondent university (and being a German citizen, from the country, as

well). For the greater part of his time at the university, he did not have an

effective dissertation adviser, never had an assigned dissertation topic, and

the assistantship early on became a patchwork of temporary project

assignments, eventually outside the department, and even outside the

university, albeit with an industrial affiliate of the department. The

Appellant's career at the Respondent university might perhaps be suitably

described as having been “left behind,” as the mainstream slogan goes, in a

Ph.D. program, a phenomenon that is perhaps lesser known than for lower

education levels, but not altogether uncommon. The Appellant then

requested award of the department's 15-class non-thesis master degree

based exclusively on the objective criteria of class requirements, GPA, and

completion time, the requirements for which he had comfortably fulfilled in

passing during his Ph.D. program. He was denied the degree for reasons

that are not clear. In addition, the university denied access to his transcripts

by a financial hold for tuition billed for his last quarter of residence, in

which he was not enrolled – precisely because he had no tuition-paying

assistantship – but was only engaged in trying to secure an assistantship for

the following term so as to be able to continue his Ph.D. program.

A brief recap of procedural history describes a res judicata sequence

of initial prior action on the master degree only, and the present follow-up

action. The Appellant brought his prior action of 1-08-CV-039451

(hereinafter '039451' or 'prior action') aimed at the master degree only,

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shortly after the official denial of his request for the degree. The action was

dismissed upon first demurrer without leave to amend, even though the

demurrer did not field any of the limited grounds available for addressing

the Appellant's claim to the master degree, i.e. it did not attack the

Appellant's qualifications for the degree, did not cite preclusive disciplinary

action, nor did it state the existence of a preclusive contract entered in

addition to, and superseding, the normal student-university contract (as

happened in Paulsen v. Golden Gate University, (1979) , 25 Cal.3d 803).

Furthermore, notably, the demurrer contained no exhibits, and no

evidentiary hearing was held. For this Court's convenience, the 039451

complaint and demurrer are given in attachment at the end of this brief,

pursuant to Rule 8.204.(d), although they are also found in the record, as

part of the Appellant's aforementioned motion for leave to amend (appellate

record, p.85 and pp.89-95).

The Appellant then timely filed notice of appeal, but was unable to

proceed, as the trial court had reversed the standing fee waiver In Forma

Pauperis without notice or stated reason after the notice of appeal.

However, the appeal was never dismissed, and there is no appellate docket,

suggesting that the trial court never notified this Court. The trial court

docket ends with the notice of appeal and denial of fee waiver.

After some regrouping, the Appellant brought the present action,

adding the issues of the disabled Ph.D. program and the denial of access to

university transcripts. A first dismissal, on the sole ground of res judicata,

was followed by the first appellate opinion of H034330, which affirmed res

judicata on the master degree issue (though conspicuously omitting a

discussion of the contents of the 039451 demurrer), was silent on the Ph.D.

program issue and the disabled 039451 appeal, but remanded on the

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transcripts issue (H034330 is found in the appellate record, pp.2-23). After

remittitur, the Appellant, after a protracted renewed application for fee

waiver In Forma Pauperis, filed the aforementioned motion for leave to

amend to restore the master degree and Ph.D. program issues, arguing that,

H034330 notwithstanding, since the 039451 demurrer did not reach the

merits, there was never an adjudication on the merits of the master degree

issue, because by logical necessity, a res judicata opinion is entirely

retrospective and could therefore not be any more on the merits than the

judgment it purports to affirm as preclusive. In addition, the motion raised

the disabled/pending 039451 appeal with its overriding constitutional

questions of full and fair opportunity and due process in access to justice In

Forma Pauperis.

As stated above, a hearing was held for the motion for leave to

amend, and the motion was denied, and subsequently, the case was

dismissed on the CCP 472.(b)-based MTD, which was filed in tandem with

the opposition for motion for leave to amend, but for which no hearing was

held.

4

III. RELIEF SOUGHT IN TRIAL COURT

The Appellant respectfully requests that this Court reverse the

dismissal, and remand with directions to grant leave to amend to restore the

master degree and Ph.D. Program claims, as well as to allow him to

properly formulate his claims for breach of contract and tortious breach of

the implied covenant of good faith and fair dealing.

In addition, the Appellant requests that this Court direct the trial

court to entertain, in the short term, a hearing for injunction to compel

degree conferral, as well as to compel access to university transcripts,

specifically, by expunction of the falsely billed tuition debt and of the

inactive last term erroneously recorded in the Appellant's university

transcripts.

IV. SUMMARY OF ARGUMENT

The essence of this appeal is that none of the three issues of degree

denial, disabled Ph.D. program, and denied access to transcripts have yet

been adjudicated on the merits, and that therefore this action should be

remanded to trial court complete with all of the original issues restored in

one action for breach of contract and tortious breach of the implied

covenant of good faith and fair dealing.

The transcripts issue is not forfeited because the Appellant prevailed

on first appeal on a demurrer that was overruled on a res judicata defense,

so that, by the nature of such proceedings, there was no adjudication on the

merits of the issue, and he was not fatally negligent by first moving for

5

leave to amend to restore all claims before filing an amended complaint

upon remittitur. The dismissal for the Appellant's infraction of the CCP

472.(b) time limit for amendment in case of overruled demurrers is not on

the merits

The master degree issue is not precluded because its demurrer in a

prior action did not go to the merits, and therefore, the ensuing dismissal

could also not have been on the merits, which follows from a correct

interpretation of the pivotal phrase in the landmark case of Keidatz v.

Albany (1952), 39 Cal.2d 826, 828: "[a dismissal upon demurrer] ... is a

judgment on the merits to the extent that it adjudicates that the facts alleged

do not constitute a cause of action." The use of the word 'adjudicate' was

meant to imply that there were substantive grounds before the court to be

able to do the adjudicating on, as opposed to merely formal, technical, or

procedural grounds, which, by definition, could not have resulted in an

"adjudication" in the true legal vernacular sense of the word, i.e. as a

judgment on the merits. In addition, as the prior action's appeal was timely

noticed, but stands pending awaiting the trial court's granting of access to

justice In Forma Pauperis, there has not been a final adjudication on the

issue.

The Ph.D. issue has not been adjudicated on the merits because it

was simply overlooked in the first appeal of the present action.

6

V. LEGAL DISCUSSION

A. The present Dismissal grounded in CCP 472.(b) should be

reversed because it is not on the Merits

The H034330 opinion as to the transcripts issue did not affirm

substantive grounds invalidating the Appellant's claim to access to his

university transcripts. On the contrary, it affirmed the transcripts as a

distinct primary right separate from the master degree issue. As the

Respondent's argument centered exclusively on the principle of claim

preclusion, this Court's overruling opinion in H034330, even if it directed

the Appellant to amend complaint, effectively reduced the demurrer to the

category of special demurrer for mere defects of form.

Failure to amend in response to the sustaining of a special demurrer

by the time limit provided for in such circumstances might trigger dismissal

essentially for failure to prosecute, but this is a merely a procedural matter

which does not go the merits of the action.

Nor, incidentally, was the Appellant negligent because his post-

remittitur renewal fee waiver application In Forma Pauperis was not

granted until well after the CCP 472.(b) time limit, and more importantly,

his motion for leave to amend prior to submitting an amended complaint

was appropriate in terms of expediency and economy of justice. If

amendment is necessary, it makes sense to correct as many defects as

possible in one single amendment, rather than have a sequence of

amendments, with answers and court proceedings for each. Also, the MTD

was granted without a hearing on the matter, which was not in line with due

process.

7

B. The Master Degree Claim Should be Restored Because it was

Never Adjudicated on the Merits and is Thus not Barred by Res

Judicata

1. A Dismissal Upon Demurrer is not Automatically on the

Merits for the Mere Fact that the Demurrer Alleged Failure to State a

Cause of Action: An Unfortunate Misinterpretation of the Pivotal

Keidatz Phrase

Discussion of this point comes down to a correct interpretation of the

aforementioned pivotal phrase in Keidatz v. Albany, on which this Court

mostly relied in the first appeal of H034330: "[a dismissal upon

demurrer] ... is a judgment on the merits to the extent that it

adjudicates that the facts alleged do not constitute a cause of action"

(appellate record, p. 12).

By use of the word 'adjudicate' in the key phrase above, the

honorable justices in Keidatz meant to imply that the trial court had

substantive grounds before it on which to be able to perform an

adjudication in the first place, or in other words, that the existence of an

adjudication in the proper legal sense is conditioned upon reliance on

substantive grounds that go to the merits of the claim. A good discussion in

that vein is found in Everts v. Blaschko (1957), 17 Cal.App.2d 188, 191,

whose relevance to the present point is not diminished by the fact that it

discusses dismissals on motions to dismiss rather than orders sustaining

demurrers.

To insist otherwise, e.g. on the rigid interpretation that as long as the

phrase 'failure to state a cause of action' appeared somewhere in the

8

judgment roll, the judgment can be deemed to have been on the merits,

would be something resembling a circular argument and would create a

loophole inviting the predictable defendant abuse of dressing less-than-

substantive grounds - even contrived argument in blatant feigning of

ignorance or lack of understanding – with the respect-inducing label of

'failure to state a cause of action,' and still stand a chance of being deemed

to have filed a general demurrer by a court that signs off in oversight..

Incidentally, such tactic would, of course, attempt to exploit the

mainstream colloquial understanding of the words 'failure' and 'sufficiency,'

which, unlike the narrower legal use of the words, extends to instances of

omission or uncertainty of required elements. In contrast, in the legal

realm, unless it is shown substantively and conclusively that required

elements can not be stated under any circumstances (cf. the discussion in

Olwell v. Hopkins (1946), 28 Cal.2d 147, 150), merely absent or vaguely

stated elements are classified as defects of uncertainty, complete with

separate governing statutes (e.g. CCP 430.10.(f) and (g) ), which are

deemed merely formal in nature, rather than substantive, and therefore, by

definition do not go to the merits (as e.g. discussed in Zumbrun v.

Universiity of Southern California (1972) , 25 Cal.App.3d 1, 9).

However, the tone, context and fundamental considerations of

fairness inherent in Keidatz and other deciding caselaw on res judicata of

dismissals preclude such a superficial interpretation of the Keidatz phrase

as described above (cf the discussion in Goddard v. Security Title Ins. &

Guar. Co. (1939), 14 Cal.2d 47, 54 on the lack of significance of the phrase

'with prejudice' when following a dismissal upon a special demurrer that by

nature did not reach the merits).. Rather, these opinions are based on the

underlying constitutionally intuitive awareness that because a dismissal on

9

demurrer is not preceded by a full trial, and often, as here, not even by an

evidentiary proceeding, the principle of full and fair opportunity dictates

that the doctrine of res judicata must be carefully and not overbroadly

applied to ensure that the merits have been reached. Consequently, these

opinions suggest an approach to determination of res judicata that goes past

surface labels to an in-depth merits analysis of the prior action's demurrer in

context with the complaint. A good case in point is Sterling v. Galen 242

Cal.App.2d 178, discussion on 184, which is particularly relevant to the

present action because it also involved a cause of action of breach of

contract.

In sum, relevant caselaw, as well as the fundamental fairness

considerations on which it rests, do not support the notion that a dismissal

on demurrer should be automatically deemed on the merits for the mere fact

that the demurrer alleged 'failure to state a cause of action,' but on the

contrary they do suggest that a reviewing court in a res judicata question

must go beyond judgment roll labels and perform its own merits analysis of

the prior action's complaint and demurrer, and in particular, search the

demurrer for substantive grounds given, in order to determine whether a

dismissal on demurrer was an adjudication on the merits.

10

2. The 039451 Demurrer Did Not Go to the Merits of the

Master Degree Claim, and Therefore, the Subsequent Dismissal was

Also not on the Merits

For this Court's convenient perusal, the 039451 demurrer is attached

to this brief, pursuant to Rule 8.204.(d), along with the Appellant's 1-page

form complaint. Both are also contained in the appellate record, on p. 85

and pp.89-95).

A merits analysis of the demurrer reveals that it does not give

substantive grounds going to the merits of the Appellant's master degree

claim. It also does not include exhibits, and in any case, there was no

evidentiary hearing (see 039451 docket, accessible online at

www.sccaseinfo.org/pa6.asp?full_case_number=1-05-CV-

039451&crumbs=Civil%20Index&crumbs=Case%20Number

%20Search&crumbs=Case%20Number%20Results).

The only substantive grounds available for a defense against a claim

for denied master degree are lack of qualifications for the degree,

preclusion by disciplinary action, or prior mutual agreement, in addition to

the fundamental implied student-university contract, that a degree would

not be conferred (as occurred in Paulsen v. Golden Gate University).

Furthermore, the nature of each of these defenses requires review of

evidence.

The demurrer conspicuously does not contain any of these grounds,

and it does not include exhibits, nor was an evidentiary hearing held, in any

case.

Instead, the demurrer alleges that the complaint does not list all of

the four elements required for a cause of action of breach of contract, but

11

without making the necessary showing that the allegedly absent elements

could not be construed under any circumstances under the facts alleged,

which would be the required substantive ground to establish 'failure to state

a cause of action,' as opposed to the necessarily formal grounds that can be

used for a mere allegation of uncertainty. In particular, considering the

specific context of a student-university contract for degree award, the

demurrer does not show that the contract described on the complaint for

degree award in return for academic performance, tuition payment, and

good conduct is invalid; nor does the demurrer show that the Appellant did

not perform his part of the contract, nor that the Respondent did not breach

the contract by denying the degree, nor, finally, that the Appellant did not

suffer the damages stated on the complaint as a result of the breach. In

colloquial terms, the 039451 demurrer appears to contain no more than

allegations of (feigned) uncertainty and the Respondent's 'say-so' that

required contract elements are not given in the complaint, without proper

explanation supported by references to the contents of the 039451

complaint.

The defense of uncertainty is that of a special demurrer (cf. Zumbrun

v. University of Southern California (1972) , 25 Cal.App.3d 1). Thus,

notwithstanding its allegation of 'failure to state a cause of action,' the

demurrer remains a special demurrer that does not go to the merits.

12

3. The Master Degree Claim has also not been Finally

Adjudicated, as with the 039451 Appeal Noticed but not Dismissed, the

Appeal is Technically Still Pending Awaiting the Trial Court's Granting

of Access to Justice by Fee Waiver In Forma Pauperis

The 039451 docket also reveals that the Appellant filed timely notice

of appeal.. As the trial court subsequently revoked its standing fee waiver

In Forma Paupers without notice or stated grounds, and denied the

Appellant's renewed application after a hearing to which it denied the

overseas Plaintiff access by denying fee waiver In Forma Pauperis for

telephone appearance, the Appellant found his access to justice denied on

appeal and was unable to proceed. However, the appeal was never

dismissed, nor did the trial court apparently notify this Court of the appeal.

Thus, the appeal is technically still pending, and there has not been a final

adjudication. Consequently, pursuant to California res judicata law

standards, the master degree claim is not barred by res judicata. One way

to address this issue would be to consolidate

C. The Claim for Disabled Ph.D. Program Should be Restored

Because it was not Considered in the First Appeal of H034330 and has

Thus not been Adjudicated on the Merits

This point requires no further elaboration beyond the fact that this

issue was originally brought in this action, and apparently only 'vanished'

by honest court oversight.

13

VI. CONCLUSION

For the aforementioned reasons which show that there has never

been an adjudication on the merits on any issue, the Appellant respectfully

requests that this Court reverse the dismissal, and remand with directions to

grant leave to amend to restore the master degree denial and disabling of

Ph.D. program claims, for proper formulation of causes of action for breach

of contract and tortious breach of the implied covenant of good faith and

fair dealing surrounding those issues and the third issue of denial of

university transcripts.

The Appellant also requests respectfully that this Court add

directions to entertain, in the short term, a hearing for injunction to compel

degree conferral, as well as to compel access to university transcripts,

specifically, by expunction of the falsely billed tuition debt and of the

inactive last term erroneously recorded in the Appellant's university

transcripts.

DATED: 22 April, 2012 Respectfully submitted,

By: ___________________________

Thomas Gribovszki

In Propria Persona

14

CERTIFICATE OF COMPLIANCE WITH RULE 8.204.(c) OF THE

CALIFORNIA RULES OF COURT

Appellant hereby certifies under Rule 8.204.(c) of the California

Rules of Court that this Appellant's Opening Brief was produced on a

computer and contains a total of 3994 words, based on the word count of

the computer program used to prepare the brief

DATED: 22 April, 2012 Respectfully submitted,

By: ___________________________

Thomas Gribovszki

In Propria Persona

15

ATTACHMENTS PURSUANT TO RULE 8.204.(d)

16

SHORT TITLE: CASE NUMBER:

Gribovszki vs. Stanford University 105CV039451

CAUSE OF ACTION—Breach of Contract Page(number)

ATTACHMENT TO X Complaint Cross-Complaint

(Use a separate cause of action form for each cause of action.)

BC-1. Plaintiff (name): Thomas Gribovszki

alleges that on or about (date): 1 January 1997a written oral X other (specify): implied student-university covenantagreement was made between (name parties to agreement): Thomas Gribovszki, Stanford University

A copy of the agreement is attached as Exhibit A, or

X The essential terms of the agreement are stated in Attachment BC-1 X are as follows (specify):

When a student commences studies at an educational institution, an implied contract is formed

whereby the student agrees to pay all of (but no more than) the necessary fees, fulfill all of the

scholastic requirements, and abide by the institution's code of ethics, and the institution agrees to

the student the appropriate degree or certificate upon the completion of his part of the bargain.

Such contract implies the institution's agreement to provide a bona fide appropriate process for

fair and expeditious review of a student's application for degree conferral, irrespective of the

student's registration status at the time of application (i.e. without imposition of undue, unequal

or unreasonable procedure or burden merely on account of non-registration status).

BC-2. On or about (dates): 25 November 2002defendant breached the agreement by the acts specified in Attachment BC-2 X the following acts

(specify):

Defendant, through departmental representative(s), failed to show due process in response to

Plaintiff's repeated requests for master degree conferral where there was sufficient doubt in favor of

Plaintiff's having satisfied the necessary requirements. Said representatives engaged in arbitrary and

capricious conduct over a period of time by unduly delaying the review of Plaintiffs academic

achievements, tortiously or negligently misrepresenting said achievements, and then unfairly closing

the matter after failing to recognize Plaintiff's completion of an arbitrarily imposed new requirement.

BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused

from performing.

BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement

as stated in Attachment BC-4 X as follows (specify):

Damages consist of loss of earning capacity over several years due to absence of degree and due to

the stigma on the curriculum vitae of extended time spent at university without result; furthermore,

emotional distress and costs of mediation and litigation over time, as well as loss of previous

investments in time, effort, and money in extended doctoral-level academic activity not likely, after

present litication. to result in Ph.D. even in another department at Defendant institution.

BC-5. Plaintiff is entitled to attorney fees by an agreement or a statute

of $

according to proof.

BC-6. Other:

Form Approved by the

Judicial Council of California

January 1 ,1982 C A U S E O F ACTION—Breach of ContractRule 982.1(21)

1 PILLSBURY WINTHROP SHAW PITTMAN LLP SARAH G. FLANAGAN #70845 RANAH L. ESMAILI #233477 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 Telephone: (415) 983-1000 Facsimile: (415)983-1200

Attorneys for Defendant STANFORD UNIVERSITY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SANTA CLARA

CIVIL DIVISION, SAN JOSE FACILITY

THOMAS GRIBOVSZKI,

Plaintiff,

vs.

STANFORD UNIVERSITY,

Defendant.

No. 1-05-CV-039451

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT

Date: January 12, 2006 Time: 9:00 a.m. Dept.: 16 Judge: Hon, J. Kevin E. McKenney

Complaint Filed: April 15,2005

[Demurrer and Notice of Demurrer filed concurrently herewith]

700075114v3 Case No. 1-05-CV-039451

MEMORANDUM OF POINTS A N D AUTHORITIES IN SUPPORT OF D E F E N D A N T S DEMURRER TO PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT

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1 I. INTRODUCTION.

2 On April 15, 2005, plaintiff filed his original complaint in this action. Plaintiff

3 never served defendant Stanford University ("Stanford") with that complaint. On

4 September 22, 2005 plaintiff filed his First Amended Complaint ("FAC") with this Court

5 and on October 11, 2005 attempted to serve defendant with the summons and FAC by

6 having a process server leave a copy with the receptionist at the Office of the President of

7 Stanford University.

8 The FAC alleges that an "implied student-university covenant" existed between

9 plaintiff and defendant and that "Departmental representative(s)" of defendant did

10 "obstruct" and "deny" plaintiffs due process rights with respect to his requests for degree

11 conferral. Based on these allegations, the FAC purports to state a single cause of action for

12 breach of contract. However, plaintiff fails to plead facts sufficient to constitute a cause of

13 action for breach of contract.

14 II. FACTS ALLEGED IN THE COMPLAINT.

15 Stanford University ordinarily would not consider a demurrer to a form complaint.

16 However, this demurrer is necessitated by plaintiffs skimpy and inconsistent allegations.

17 Plaintiff alleges a single cause of action for breach of contract, but fails to allege the nature

18 or terms of the alleged contract and how actual terms of an alleged contract were allegedly

19 breached. What plaintiff does allege only confuses matters: he characterizes Stanford's

20 alleged conduct variously as a breach of a covenant, a breach of a contract, tortious and/or

21 negligent misrepresentation of facts, and arbitrary and capricious behavior. The result of

22 this confusion is that Stanford cannot decipher plaintiffs actual claim and is therefore

23 hamstrung in formulating an answer to the FAC.

24 Using a three-page Judicial Council form for personal injury, property damage,

25 wrongful death and attaching a one-page breach of contract cause of action form, plaintiff

26 alleges (by checking the "other" box) that he entered into an "implied student-university

27 covenant" with Stanford. FACTfBC-1. But when plaintiffis required to describe the terms

28 of this purported covenant, plaintiff generally describes a theory of a contract between

700075114v3 - 2 - Case No. 1-05-CV-O39451

MEMORANDUM OF POINTS AND AUTHORITIES rN SUPPORT OF DEFENDANTS DEMURRER TO PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT

1 students and educational institutions. Id. Plaintiff broadly alleges that "[w]hen a student

2 commences studies at an educational institution, an implied contract is formed" whereby

3 the student agrees to pay the necessary fees, fulfill the scholastic requirements, and abide by

4 the school's code of ethics, and the institution agrees to then award the student with the

5 degree or certificate, and that certain procedures are generally implied on the institution's

6 part for fair and expeditious review of a student's application for degree conferral,

7 irrespective of a student's non-registration status at the time of application. Id. (emphasis

8 added). Plaintiff then continues, in paragraph BC-2, to allege that defendant engaged in

9 "tortious and/or negligent misrepresentation offacts, as well as instances of arbitrary and

10 capricious behavior" when its representatives allegedly obstructed and denied due process

11 with respect to plaintiffs degree conferral requests. Id. ^ BC-2 (emphasis added).

12 What plaintiff fails to allege is fatal to his claim. If plaintiff is alleging breach of

13 some implied covenant, he fails to allege:

14 • the terms of the implied covenant defendant allegedly breached;

15 • conduct giving rise to the implied covenant;

16 • whether the contract underlying the covenant was written, oral or implied;

17 and

18 • how Stanford actually breached the covenant.

19 If plaintiff is alleging breach of contract, he fails to allege:

20 • whether the contract was written, oral or implied, and, if implied, the

21 conduct giving rise to the contract;

22 • the terms of plaintiff s alleged contract with Stanford, including the

23 referenced term about non-registration status; and

24 • how Stanford allegedly breached specific terms of the contract.

25 Between the dearth of factual allegations and the inconsistencies among them, what

26 exactly Stanford is alleged to have done to give rise to this lawsuit is unclear. These

27 deficiencies interfere with Stanford's right to understand the claim against it and defend

28 itself.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT

1 III. ARGUMENT.

2 A demurrer should be sustained when the pleading does not state facts sufficient to

3 constitute a cause of action. Cal. Civ. Proc. Code § 430.10(e); Under v. Thrifty Oil Co., 23

4 Cal. 4th 429, 437 n.4 (2000). Furthermore, a demurrer should be sustained if the pleading

5 is uncertain, unintelligible or ambiguous. Cal. Civ. Proc, Code § 430.10(f); see Hay v.

6 Temple, 23 Cal. App. 2d 690, 694-95 (1937) (sustaining demurrers on the grounds of

7 ambiguity, unintelligibility, and uncertainty since complaint did not show that appellant

8 was entitled to compensation under the alleged agreement); Hills Transp. Co. v. Southwest

9 Forest Indus., Inc., 266 Cal. App. 2d 702, 706 (1968) (sustaining demurrers where

10 complaint was uncertain about the duration of the contract and where the complaint alleged

11 that certain parts of the contract were written but did not specify whether other parts were

12 written or oral). Finally, a demurrer should be sustained in an action founded upon a

13 contract where it cannot be ascertained from the pleading whether the contract is written,

14 oral or implied by conduct. Cal. Civ. Proc. Code § 430.10(g); see Bollotin v. California

15 State Personnel Bd, 131 Cal. App. 2d 197,202-203 (1955) (affirming lower court order

16 sustaining demurrer where the amended complaint did not state whether the contractual

17 undertakings were expressed orally or in writing), All these bases for sustaining Stanford's

18 demurrer are present.

19 A. The demurrer should be sustained because FAC does not state facts

20 sufficient to support a cause of action.

21 The elements a plaintiff must plead to state a claim for breach of contract are: (1)

22 the existence of a contract between the parties; (2) plaintiff s performance of the contract or

23 excuse for nonperformance; (3) defendant's breach; and (4) the resulting damages to

24 plaintiff. Careau & Co. v. Security Pacific Business Credit, Inc., 222 Cal, App. 3d 1371,

25 1388 (1990) (citing Reichert v. General Ins. Co., 68 Cal.2d 822, 830 (1968)); see 1 Witkin,

26 Summary of California Law, Contracts, § 847, at 955 (10th ed. 2005). To state a cause of

27 action for an implied contract, a plaintiff must allege the facts and conduct from which the

28 promise is implied. See Lundeen Coatings Corp. v. Dept. of Water and Power of the City of

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT

1 Los Angeles, 232 Cal. App. 3d 816, 826; 4 Witkin, California Procedure, Pleading, § 487, at

2 578 (4th ed. 1997). When tested by these elements, plaintiffs breach of contract claim

3 must fail.

4 Plaintiff does not allege that he had a contract with Stanford. He checks the "other"

5 box and alleges that he had an "implied student-university covenant" with Stanford.

6 FAC U BC-1. But plaintiffs specific allegations are general notions regarding a typical

7 contract allegedly entered into between students and educational institutions. Id. Plaintiff

8 never alleges that he actually entered into such a contract with Stanford. Nor does he allege

9 whether the actual contract (if he is alleging there was one) was written, oral or implied.

10 If plaintiff means to allege he had an express contract with Stanford, he does not

11 allege the terms of the actual contract. He makes a generalized statement about "non-

12 registration status" but does not allege the specific terms of the contract that deal with non-

13 registration status. See FAC f BC-1. If plaintiff means to allege he had an implied

14 contract, he does not allege the conduct from which the promise is implied. Id. If plaintiff

15 means to allege breach of some implied covenant, he does not state what this covenant was

16 nor what conduct gave rise to such covenant. Id. And finally, the import of plaintiff s

17 passing reference to "tortious and/or negligent misrepresentation of facts" is unintelligible,

18 since he used the cause of action form for breach of contract. Id.

19 The pleading's deficiencies and ambiguities regarding the existence of a contract

20 fatally infect plaintiffs allegations regarding breach of contract (or covenant) and resulting

21 damages to plaintiff. Plaintiff checks the box providing a conclusory allegation of breach,

22 but when required to state the acts constituting breach, plaintiff states only that unnamed

23 "Departmental representative(s)" denied due process with respect to plaintiffs degree

24 conferral requests while possessing evidence that plaintiff satisfied the degree requirements.

25 FAC H BC-2. He never alleges who did what that breached a specific term of an alleged

26 contract. Alleging that Stanford had "evidence" that plaintiff satisfied the degree

27 requirements is not the same as alleging plaintiff actually satisfied his degree requirements.

28 See Careau, 222 Cal. App. 3d at 1390 ("A complaint must allege the ultimate facts

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT

1 necessary to the statement of an actionable claim. It is both improper and insufficient for a

2 plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.")

3 Pla int i f fs few allegations are inconsistent, ambiguous and insufficient to provide

4 Stanford with a basis to determine what obligations it and plaintiff are alleged to have

5 agreed to, and whether those agreed obligations were met or have been breached.

6 B. The demurrer should be sustained because the allegations of the F A C are

7 uncertain, ambiguous and unintelligible,

8 As described above, the allegations of the FAC are uncertain, ambiguous and

9 unintelligible. Cal. Civ. Proc. Code § 430.10(f); Hay, 23 Cal. App. 2d at 694-95. While

10 plaintiffs use of a breach of contract form for a cause of action suggests he is suing for

11 breach of a contract, his entries on the form (and the fact that it is attached to the form

12 complaint for personal injury, property damage and wrongful death) suggest he m a y be

13 relying on breach of an implied covenant or a tort theory for "tortious and/or negligent

14 misrepresentation of facts." See FAC \ BC-1 . If plaintiff is suing for breach of a contract

15 or implied covenant, it is unclear what the terms of this contract or implied covenant are

16 and how Stanford allegedly breached specific terms of this contract or implied covenant,

17 much less how the alleged breach links with the alleged damages. Id. The lack of

18 information is even more extreme if he thinks that he has presented a tort claim. Because of

19 the conflicting and ambiguous allegations, Stanford cannot determine p la in t i f fs actual

20 claim.

21 C. The demurrer should be sustained because it cannot be ascertained whether

22 the contract alleged in the FAC is written, is oral, or is implied by conduct.

23 For the reasons described above, it cannot be ascertained from the allegations of

24 the FAC whether the contract is written, oral or implied by conduct. Cal. Civ. Proc. Code §

25 430.10(g); see Bollotin, 131 Cal. App. 2d at 202-203. Plaintiff alleges that he had an

26 "implied" covenant with Stanford and states a generalized notion about typical " implied"

27 contracts between students and educational institutions. Plaintiff does not allege whether

28 the actual contract that he alleges was entered into with Stanford (whether underlying the

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS DEMURRER TO PLAfN TIFF'S COMPLAINT FOR BREACH OF CONTRACT

1 implied covenant or providing the basis for his claim) is written, oral or implied. FAC J

2 BC-1. This deficiency leaves Stanford unable to investigate plaintiffs actual claim.

3 IV. CONCLUSION.

4 For the foregoing reasons, and the fact that plaintiff has already amended his

5 complaint once, the Court should sustain Stanford University's demurrer to the first

6 amended complaint without leave to amend it a second time.

7

8 Dated: November/^, 2005.

9 PILLSBURY WINTHROP SHAW PITTMAN LLP SARAH G. FLANAGAN

10 RAN AH L. ESMAILI 50 Fremont Street

11 Post Office Box 7880 San Francisco, CA 94120-7880 12

14 Attorneys for Defendant

15 STANFORD UNIVERSITY

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DEMURRER TO PLAINTIFFS COMPLAINT FOR BREACH OF CONTRACT