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________________________________________________________ In the

Court of Appeal
of the

State of California
SIXTH 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-andstipend paying research assistantship into a Ph.D. program of aeronautics and astronautics, which allowed for intermediate attainment of a master

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,

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

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.

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

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.

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 postremittitur 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.

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

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-thansubstantive 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

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.

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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 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-CV039451&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

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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.

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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.

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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

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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

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ATTACHMENTS PURSUANT TO RULE 8.204.(d)

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SHORT TITLE:

CASE N U M B E R :

Gribovszki vs. Stanford University


C A U S E OF A C T I O N B r e a c h of Contract
(number)

105CV039451
Page

ATTACHMENT TO

X Complaint

Cross-Complaint

(Use a separate cause of action form for each cause of action.) BC-1. Plaintiff (name):

Thomas Gribovszki student-university covenant Thomas Gribovszki, Stanford University

alleges that on or about (date): 1 January 1997 a written oral X other (specify): implied

agreement was made between (name parties to agreement): 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 (specify):

November 2002
the acts specified in Attachment BC-2 X the following acts

defendant breached the agreement by

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. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement as stated in Attachment BC-4 X as follows (specify):

BC-4.

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 , 1 9 8 2 Rule 982.1(21)

C A U S E O F A C T I O N B r e a c h of Contract

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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. Date: Time: Dept.: Judge:

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

Complaint Filed: April 15,2005 [Demurrer and Notice of Demurrer filed concurrently herewith]

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Case No. 1-05-CV-039451


M E M O R A N D U M 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 B R E A C H OF C O N T R A C T

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I.

INTRODUCTION.

On April 15, 2005, plaintiff filed his original complaint in this action. Plaintiff never served defendant Stanford University ("Stanford") with that complaint. On September 22, 2005 plaintiff filed his First Amended Complaint ("FAC") with this Court and on October 11, 2005 attempted to serve defendant with the summons and FAC by having a process server leave a copy with the receptionist at the Office of the President of Stanford University. The FAC alleges that an "implied student-university covenant" existed between plaintiff and defendant and that "Departmental representative(s)" of defendant did "obstruct" and "deny" plaintiffs due process rights with respect to his requests for degree conferral. Based on these allegations, the FAC purports to state a single cause of action for breach of contract. However, plaintiff fails to plead facts sufficient to constitute a cause of action for breach of contract. II. FACTS ALLEGED IN THE COMPLAINT.

Stanford University ordinarily would not consider a demurrer to a form complaint. However, this demurrer is necessitated by plaintiffs skimpy and inconsistent allegations. Plaintiff alleges a single cause of action for breach of contract, but fails to allege the nature or terms of the alleged contract and how actual terms of an alleged contract were allegedly breached. What plaintiff does allege only confuses matters: he characterizes Stanford's alleged conduct variously as a breach of a covenant, a breach of a contract, tortious and/or negligent misrepresentation of facts, and arbitrary and capricious behavior. The result of this confusion is that Stanford cannot decipher plaintiffs actual claim and is therefore hamstrung in formulating an answer to the FAC. Using a three-page Judicial Council form for personal injury, property damage, wrongful death and attaching a one-page breach of contract cause of action form, plaintiff alleges (by checking the "other" box) that he entered into an "implied student-university covenant" with Stanford. FACTfBC-1. But when plaintiffis required to describe the terms of this purported covenant, plaintiff generally describes a theory of a contract between
700075114v3

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Case No. 1-05-CV-O39451

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

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students and educational institutions. Id. Plaintiff broadly alleges that "[w]hen a student commences studies at an educational institution, an implied contract is formed" whereby the student agrees to pay the necessary fees, fulfill the scholastic requirements, and abide by the school's code of ethics, and the institution agrees to then award the student with the degree or certificate, and that certain procedures are generally implied on the institution's part for fair and expeditious review of a student's application for degree conferral, irrespective of a student's non-registration status at the time of application. Id. (emphasis added). Plaintiff then continues, in paragraph BC-2, to allege that defendant engaged in "tortious and/or negligent misrepresentation offacts, as well as instances of arbitrary and capricious behavior" when its representatives allegedly obstructed and denied due process with respect to plaintiffs degree conferral requests. Id. ^ BC-2 (emphasis added). What plaintiff fails to allege is fatal to his claim. If plaintiff is alleging breach of some implied covenant, he fails to allege: the terms of the implied covenant defendant allegedly breached; conduct giving rise to the implied covenant; whether the contract underlying the covenant was written, oral or implied; and how Stanford actually breached the covenant.

If plaintiff is alleging breach of contract, he fails to allege: whether the contract was written, oral or implied, and, if implied, the conduct giving rise to the contract; the terms of plaintiff s alleged contract with Stanford, including the referenced term about non-registration status; and how Stanford allegedly breached specific terms of the contract.

Between the dearth of factual allegations and the inconsistencies among them, what exactly Stanford is alleged to have done to give rise to this lawsuit is unclear. These deficiencies interfere with Stanford's right to understand the claim against it and defend itself.
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Case No. 1-05-CV-039451

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

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III.

ARGUMENT.

A demurrer should be sustained when the pleading does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code 430.10(e); Under v. Thrifty Oil Co., 23 Cal. 4th 429, 437 n.4 (2000). Furthermore, a demurrer should be sustained if the pleading is uncertain, unintelligible or ambiguous. Cal. Civ. Proc, Code 430.10(f); see Hay v. Temple, 23 Cal. App. 2d 690, 694-95 (1937) (sustaining demurrers on the grounds of ambiguity, unintelligibility, and uncertainty since complaint did not show that appellant was entitled to compensation under the alleged agreement); Hills Transp. Co. v. Southwest Forest Indus., Inc., 266 Cal. App. 2d 702, 706 (1968) (sustaining demurrers where complaint was uncertain about the duration of the contract and where the complaint alleged that certain parts of the contract were written but did not specify whether other parts were written or oral). Finally, a demurrer should be sustained in an action founded upon a contract where it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct. Cal. Civ. Proc. Code 430.10(g); see Bollotin v. California State Personnel Bd, 131 Cal. App. 2d 197,202-203 (1955) (affirming lower court order sustaining demurrer where the amended complaint did not state whether the contractual undertakings were expressed orally or in writing), All these bases for sustaining Stanford's demurrer are present. A. The demurrer should be sustained because FAC does not state facts sufficient to support a cause of action. The elements a plaintiff must plead to state a claim for breach of contract are: (1) the existence of a contract between the parties; (2) plaintiff s performance of the contract or excuse for nonperformance; (3) defendant's breach; and (4) the resulting damages to plaintiff. Careau & Co. v. Security Pacific Business Credit, Inc., 222 Cal, App. 3d 1371, 1388 (1990) (citing Reichert v. General Ins. Co., 68 Cal.2d 822, 830 (1968)); see 1 Witkin, Summary of California Law, Contracts, 847, at 955 (10th ed. 2005). To state a cause of action for an implied contract, a plaintiff must allege the facts and conduct from which the promise is implied. See Lundeen Coatings Corp. v. Dept. of Water and Power of the City of
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Los Angeles, 232 Cal. App. 3d 816, 826; 4 Witkin, California Procedure, Pleading, 487, at 578 (4th ed. 1997). When tested by these elements, plaintiffs breach of contract claim must fail. Plaintiff does not allege that he had a contract with Stanford. He checks the "other" box and alleges that he had an "implied student-university covenant" with Stanford. FAC U BC-1. But plaintiffs specific allegations are general notions regarding a typical contract allegedly entered into between students and educational institutions. Id. Plaintiff never alleges that he actually entered into such a contract with Stanford. Nor does he allege whether the actual contract (if he is alleging there was one) was written, oral or implied. If plaintiff means to allege he had an express contract with Stanford, he does not allege the terms of the actual contract. He makes a generalized statement about "nonregistration status" but does not allege the specific terms of the contract that deal with nonregistration status. See FAC f BC-1. If plaintiff means to allege he had an implied contract, he does not allege the conduct from which the promise is implied. Id. If plaintiff means to allege breach of some implied covenant, he does not state what this covenant was nor what conduct gave rise to such covenant. Id. And finally, the import of plaintiff s passing reference to "tortious and/or negligent misrepresentation of facts" is unintelligible, since he used the cause of action form for breach of contract. Id. The pleading's deficiencies and ambiguities regarding the existence of a contract fatally infect plaintiffs allegations regarding breach of contract (or covenant) and resulting damages to plaintiff. Plaintiff checks the box providing a conclusory allegation of breach, but when required to state the acts constituting breach, plaintiff states only that unnamed "Departmental representative(s)" denied due process with respect to plaintiffs degree conferral requests while possessing evidence that plaintiff satisfied the degree requirements. FAC H BC-2. He never alleges who did what that breached a specific term of an alleged contract. Alleging that Stanford had "evidence" that plaintiff satisfied the degree requirements is not the same as alleging plaintiff actually satisfied his degree requirements. See Careau, 222 Cal. App. 3d at 1390 ("A complaint must allege the ultimate facts
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necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.") P l a i n t i f f s few allegations are inconsistent, ambiguous and insufficient to provide Stanford with a basis to determine what obligations it and plaintiff are alleged to have agreed to, and whether those agreed obligations were met or have been breached. B. The demurrer should be sustained because the allegations of the F A C are uncertain, ambiguous and unintelligible, As described above, the allegations of the F A C are uncertain, ambiguous and unintelligible. Cal. Civ. Proc. Code 430.10(f); Hay, 23 Cal. App. 2d at 694-95. W h i l e plaintiffs use of a breach of contract form for a cause of action suggests he is suing for breach of a contract, his entries on the form (and the fact that it is attached to the form complaint for personal injury, property damage and wrongful death) suggest he m a y be relying on breach of an implied covenant or a tort theory for "tortious and/or negligent misrepresentation of facts." See F A C \ B C - 1 . If plaintiff is suing for breach of a contract or implied covenant, it is unclear what the terms of this contract or implied covenant are and how Stanford allegedly breached specific terms of this contract or implied covenant, much less how the alleged breach links with the alleged damages. Id. T h e lack of

information is even more extreme if he thinks that he has presented a tort claim. Because of the conflicting and ambiguous allegations, Stanford cannot determine p l a i n t i f f s actual claim. C. The demurrer should be sustained because it cannot be ascertained whether the contract alleged in the FAC is written, is oral, or is implied by conduct. For the reasons described above, it cannot be ascertained from the allegations of the F A C whether the contract is written, oral or implied by conduct. Cal. Civ. Proc. Code 430.10(g); see Bollotin, 131 Cal. App. 2d at 202-203. Plaintiff alleges that he had an "implied" covenant with Stanford and states a generalized notion about typical "implied" contracts between students and educational institutions. Plaintiff does not allege whether the actual contract that he alleges w a s entered into with Stanford (whether underlying the
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implied covenant or providing the basis for his claim) is written, oral or implied. FAC J BC-1. This deficiency leaves Stanford unable to investigate plaintiffs actual claim. IV. CONCLUSION.

For the foregoing reasons, and the fact that plaintiff has already amended his complaint once, the Court should sustain Stanford University's demurrer to the first amended complaint without leave to amend it a second time.

Dated: November/^, 2005. PILLSBURY WINTHROP SHAW PITTMAN LLP SARAH G. FLANAGAN RAN AH L. ESMAILI 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880

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Attorneys for Defendant STANFORD UNIVERSITY

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Case No. 1-Q5-CV-039451

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

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