Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CC09107, Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Kenneth D. Sisco for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman, Jeffry A. Miller and Lisa Willhelm Cooney for Defendant and Respondent.
OPINION
O’LEARY, ACTING P. J.
This is Howard Hao Jian’s second appeal. In 2007, he appealed from a judgment of dismissal entered after the trial court sustained the Regents of the University of California’s (the Regents’) demurrer to his third amended complaint without leave to amend. This court determined he should have been given leave to amend only as to his breach of academic contract claim and judgment was properly entered as to his other causes of action. (Jian v. The Regents of the University of California (July 25, 2007) G036625 [nonpub. opn.].)
The case was remanded and on the third day of trial, the parties agreed to bifurcate a statute of limitations issue. After evaluating Jian’s evidence and arguments, the trial court determined the contract claim was time barred. It then granted the Regents’ motion for nonsuit and entered judgment in its favor. In this appeal, Jian argues the court applied the wrong statute of limitations because his breach of contract claim is based on an express contract (having a four-year statute of limitations) rather than an implied-in-fact contract (having a two-year statute of limitations). He also asserts the court abused its discretion in deciding a question of fact regarding when the statute of limitations was triggered. Finding his contentions lack merit, we affirm the judgment.
I
In the interests of clarity, we will restate portions of our prior summary of the facts underlying the complaint: In 1999, Jian, a Chinese national, applied for and was accepted to the history Ph.D. program at the University of California, Irvine (UCI). In September 2001, Jian was informed he would be given a master’s degree (MA), and he would be terminated from the Ph.D. program. He also lost his teaching assistant position and was evicted from graduate student housing.
In his complaint, Jian asserted UCI failed to follow any of its academically-related procedures before dismissing him from the program. UCI never gave him advance written notice of any academic deficiencies, or an opportunity to address them. UCI did not provide a written statement giving the reasons for his dismissal from the Ph.D. program. He claimed his dismissal was due to (1) discrimination and retaliation based on his race, nationality, and age (46 years old), and (2) arbitrary and bad faith conduct by the history department professors. He asserted the primary source of his mistreatment was his faculty advisor, and chair of the history department, Kenneth Pomeranz. Jian maintained Pomeranz lacked the authority to terminate him, and he was denied use of UCI’s grievance procedures to appeal Pomeranz’s decision.
The court sustained demurrers to Jian’s original, first, and second amended complaints with leave to amend. The court strongly advised Jian to retain counsel. Jian’s third amended complaint alleged (1) breach of an academic contract, (2) fraud, (3) violation of Title VI (42 U.S.C.A. § 2000d), (4) violations of the First and Fourteenth Amendments addressed through an action under title 42 U.S.C.A. section 1983, and (5) violation of Title VII (42 U.S.C.A. § 2000e-2(a)), and California’s Fair Employment and Housing Act (FEHA). He sought damages in excess of $1 million. This court affirmed the trial court’s order sustaining the Regent’s demurrer as to all causes of action except the breach of contract count. (Jian v. The Regents of the University of California, supra, G036625 [nonpub. opn.].) Applying our limited standard of review for rulings on demurrers, we concluded Jian sufficiently alleged facts from which it could be inferred the faculty acted arbitrarily or in bad faith in their decision to dismiss him from the Ph.D. program and award him a terminal MA. We remanded the matter for further proceedings.
The Regents filed a motion for summary judgment alleging, inter alia, the breach of contract cause of action was time barred. The Regents asserted Jian’s had an implied-in-fact contract with the university and therefore his claim was barred by the applicable two-year statute of limitations. Jian responded by arguing he was suing on a written contract (having a four-year statute of limitations) and, moreover, the Regents had no evidentiary support for their argument. Alternatively, Juan argued the contract was not breached until August 2004 and he timely filed the lawsuit three months later. The motion was considered by a different trial judge, Judge James Di Cesare. The court denied the summary judgment motion. In its minute order, the court stated Jian created a triable issue of fact as to when the statute of limitations was triggered. The case was then assigned to Judge Robert D. Monarch.
On the first day of trial in April 2009, the trial court questioned the parties about whether there was a statute of limitations issue with the breach of contract claim. It invited the parties to further brief the issue. The court also discussed several motions in limine, taking them all under submission. The parties stipulated to waive reporting of (1) the jury voir dire, and (2) the court’s reading of the jury instructions.
The following day, the proceedings were heard in open court and in the presence of the jury. The jury heard opening statements from both parties and counsel discussed the jury would be asked to decide whether or not Jian timely filed his lawsuit. Jian began his direct examination.
On the third day of trial, the court told the parties it had received and reviewed the supplemental briefing on the statute of limitations issue. The court stated it believed there was an implied-in-fact academic contract and it asked counsel if there was a dispute over when the contract claim was triggered. The court stated it believed “the death knell of the academic contract” was likely the moment the MA was imposed, and it would be a stretch to say it was triggered when Jian later attempted to register for Ph.D. classes and was rejected. The court noted both of these triggering events occurred in 2001, and giving Jian the benefit of the later event it would not affect the statute of limitations analysis. It asked Jian’s counsel if there was a different possible later date. Jian’s counsel replied, “All I can say or offer on that, your honor, is I could not establish that it was within two years from the date the original lawsuit was actually filed.” The trial court stated if Jian intended to argue the statute of limitations was tolled by the academic review process then he needed to submit applicable legal authority to support that claim.
The court then asked the parties if they would be willing to “bifurcate the trial and receive all evidence with respect to the issue of whether or not the contract is written. Once that’s established I think the dominoes start to fall.” It noted, “Then the only issue, if it is an issue and maybe it isn’t, is when the statute commenced to run.” The court asked Jian’s counsel again if it was his “proposition that [it is] a later date based upon the administrative proceedings argument.” Counsel replied, “That’s correct.”
The court continued by stating, “So I’m thinking what about bifurcation? That I receive all evidence with respect... but just in case the jury will be here and they won’t be disappointed if, you know, if they’re let go early.” Jian’s counsel agreed with the court’s proposal, and confirmed the court already had everything it would need to make its decision. Jian’s counsel stated there was nothing further he wished to submit for the court’s consideration. The Regents’ counsel asked for a few minutes to cross-examine Jian on the statute of limitations issue and then the issue “would then be ripe for decision.”
During cross-examination, Jian was asked questions about several emails suggesting when he was aware he was terminated from the Ph.D. program. On redirect examination, Jian testified he did not believe his Ph.D. program at UCI was ever terminated, and he was “technically” still part of the program. On recross examination, Jian admitted the last time he took a class in the Ph.D. program was in the spring of 2001.
The court asked counsel if there were any further exhibits or witnesses on the bifurcated issue. Both counsel stated no. The court then ruled as follows: “With a degree of reluctance the court finds that the agreement between the university and... Jian is an implied-in-fact agreement, or it may be construed as an oral agreement. I’m not sure it makes much difference from the standpoint of the issue before the court. The documents referred to in the eloquent brief presented by [Jian’s counsel] do not in the court’s mind generate a sufficient basis to conclude that the various documents he referred to, over 20 or thereabouts, rose to the level of a written agreement, a written academic agreement.” The court concluded the statute of limitation for Jian’s contract with the Regents was two years, Jian was aware that his Ph.D. status was terminated in September or October 2001, and he filed his complaint in September 2004. Because the statute of limitations had run by 2004, Jian had no basis to pursue a breach of academic contract and “his cause of action is dismissed.”
The Regents then orally “made a motion for nonsuit after the bifurcation of the issue of the statute of limitations issue.” The court granted the motion and entered a judgment in favor of the Regents.
II
1. Standard of Review
Both parties refer to the de novo standard of review generally applied to motions for nonsuit. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.) However, this record shows this case was resolved after a trial by the court on the bifurcated issue of the statute of limitations. In a court trial a “motion for nonsuit is not recognized. The correct motion is for judgment pursuant to Code of Civil Procedure section 631.8, the purpose of which is to enable the court, after weighing the evidence at the close of the plaintiff’s case, to find the plaintiff has failed to sustain the burden of proof, without the need for the defendant to produce evidence. [Citation.] ‘“[I]n weighing the evidence, the trial judge may exercise the prerogatives of a fact trier by refusing to believe witnesses and by drawing conclusions at odds with expert opinion. If the motion is granted, his [or her] findings are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence. [Citations.]”’ [Citation.]” (Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.)
Accordingly, “Where two or more inferences reasonably can be drawn from the facts, an appellate court is without power to substitute its deductions for those of the trial court. [Citations.] The rules applying to appellate review of a nonsuit granted in a jury trial are not applicable. [Citation.] We treat the court’s findings made pursuant to granting a motion under [(Code Civ. Proc., §] 631.8 as though made after a trial in which evidence was produced by both sides; thus the evidence is viewed in the light most favorable to respondents. [Citation.]” (Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 853.)
To the extent Jian suggests the court erred by not permitting the jury to consider the statute of limitations issue, we recommend he review the reporter’s transcript of the proceedings. The trial court did not mandate a bifurcated court trial. Rather, it sought the parties’ consent. Jian’s counsel did not raise any objections and he also took steps to facilitate the bifurcated trial. For example, he advised the court “I anticipated... you were going to look at the issue and make that call... [and it] was my intent and goal yesterday to make sure that all the documents, all these writings that we believe make up the academic contract and the evidence and the testimony in regard to that were presented.”
2. The Triggering Event
Jian asserted there is a factual dispute about when the statute of limitations was triggered and the trial court abused its discretion in deciding, as a matter of law, the statute was triggered when Jian “was allegedly granted a terminal masters degree, thus taking the issue away from the jury.” Not so. As discussed above, the parties agreed to a bifurcated court trial thereby permitting the trial judge to become the trier of fact as well as deciding issues of law relating to the statute of limitations issue. Simply stated, the trial court properly resolved the factual dispute regarding the trigger date.
We find there was substantial evidence supporting the trial court’s factual determination. There was ample evidence proving Jian learned his Ph.D. status was terminated in September or October of 2001 because he received a terminal MA and he was not permitted to register for any more Ph.D. classes. Jian asks this court to reconsider the evidence, specifically the testimony he believed he was still part of the Ph.D. program and never consented to the terminal MA degree. However, as stated above, we are bound by the trial court’s factual determination in the Regents’ favor and do not reweigh the evidence or reassess issues of credibility. (Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289, 1293-1294.)
3. The Legal Question
Jian asserts the trial court erred in concluding he had an implied-in-fact contract with the Regents, as opposed to a written contract (having a longer statute of limitations period). We conclude the court got it right.
We find instructive the case Kashmiri v. The Regents of the University of California (2007) 156 Cal.App.4th 809, 827 (Kashmiri). In that case undergraduate students filed a class action against the Regents after the University increased various fees. The court determined that unlike cases involving educational malpractice or disciplinary discretion where courts must apply contract law flexibly, a court’s ruling on a fee dispute does “‘not require an inquiry into the nuances of educational processes and theories, but rather an objective assessment.’” (Id. at p. 826.) Therefore, the court applied basic contract law principles and decided, “There were no formal agreements between the students and University and, therefore, their agreements were implied-in-fact contracts. [The students] have not pointed to any express promise between the University and the professional student subclass that the University intended the terms in the catalogues or on the web site to be binding. The terms of an express contract ‘are stated in words’ (Civ. Code, § 1620), while the terms and the existence of an implied contract ‘are manifested by conduct.’ ([(Civ. Code, §] 1621.)” (Kashmiri, supra, 156 Cal.App.4th at p. 827.)
In the Kashmiri case, the students argued there was an express rather than an implied contract based on the “pronouncement in Zumbrun that ‘catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.’ (Zumbrun [v. University of Southern California (1972)] 25 Cal.App.3d [1, 10.) In Zumbrun, the court held that a student who had paid tuition for a course had a cause of action for breach of contract after the instructor failed to deliver the anticipated number of lectures announced in the university catalogue. [Citation.] The court expressed no opinion as to the merit of the plaintiff’s claim, but held that the pleading could be amended to state a breach of contract claim. [Citation.]” (Kashmiri, supra, 156 Cal.App.4th at pp. 827-828.) The students argued the University breached its express promise on its web sites and in its catalogues not to increase fees for continuing students. (Ibid.)
The Kashmiri court disagreed with the Zumbrun court to the extent it stood “for the principle that all of the statements in the catalogues are binding on the institution of higher learning....” (Kashmiri, supra, 156 Cal.App.4th at p. 828.) It explained, “federal courts have almost uniformly held that, in the absence of any formal agreement between the student and the college, the terms of the contract are implied. (See, e.g., [Ross v. Creighton University (7th Cir. 1992) 957 F.2d 410, ] 417; Lyons v. Salve Regina College [(1st Cir. 1977) 565 F.2d 200, ] 202 [terms of contract between student and college may include statements provided in student manuals and registration materials]; Mangla v. Brown University (1st Cir. 1998) 135 F.3d 80, 83 [standard for interpreting contractual terms is that of ‘“reasonable expectation-what meaning the party making the manifestation, the university, should reasonable expect the other party to give it”’]; Johnson v. Schmitz (D.Conn. 2000) 119 F.Supp.2d 90, 93 [‘Because a student bases his or her decision to attend a college or university, in significant part, on the documents received concerning core matters, such as faculty, curriculum, requirements, costs, facilities and special programs, application of contract principles based on these documents and other express or implied promises... appears sound’].) Similarly, state courts in other jurisdictions have concluded that, ‘“[s]ince a formal contract is rarely prepared [between the student and the institution of higher learning], the general nature and terms of the agreement are usually implied, with specific terms to be found in the university bulletin and other publications; custom and usages can also become specific terms by implication.’” [Citation.]” (Kashmiri, supra, 156 Cal.App.4th at p. 828, fn. omitted.)
The Kashmiri court held, “If the catalogue or the web site of the university does not expressly state that it intends to be bound by these statements, such statements become part of the enrollment agreement only if they are ‘implied-in-fact’ contract provisions. [Citation.] Universities frequently publish numerous catalogues and bulletins, but not all statements in these publications amount to contractual obligations. ‘Whether a given section of the bulletin [or catalogue] becomes part of the contractual obligations between the students and the university... must depend upon general principles of contract construction.’ [Citation.] Thus, the case law recognizes that, like all obligations imposed pursuant to implied contractual terms, the contractual obligations imposed by the language in catalogues ‘center around what is reasonable.’ [Citations.]” (Kashmiri, supra, 156 Cal.App.4th at pp. 828-829.)
The court in Kashmiri concluded “no formal contract exists between the University and the professional student subclass, but that an implied contract was created by the students’ conduct when they accepted the University’s offer of enrollment.” (Kashmiri, supra, 156 Cal.App.4th at p. 829.) It held the University’s statement promising not to raise the fees for continuing students was “not a general statement or declaration in the catalogue. Rather, it [was] a specific promise.... [¶]... It is reasonable that an institution of higher education would promise not to increase the [fees] for continuing students in exchange for the student’s promise to attend that institution. (Id. at p. 833.)
Jian asserts the Kashmiri case is distinguishable because he entered into a formal contract with the Regents. Specifically, on appeal Jian discusses three documents (as opposed to the 20 plus documents submitted to the trial court) as being the “formalized” written documents “embodying the policies and procedures of the Ph.D. program” that were breached. We conclude the documents Jian refers to do not create a written contract upon which Jian can base his lawsuit. We will address each document in turn.
The first document (exhibit 209) is a letter sent to Jian offering him admission into the university. The gravamen of Jian’s breach of academic contract claim arises from allegations the university faculty acted arbitrarily or in bad faith in their decision to dismiss him from the Ph.D. program, breaching the Ph.D. program’s policies, procedures and guidelines. However, none of these policies, procedures, or guidelines was expressly referred to in the admission letter. The university makes no specific promises regarding its termination policies or procedures. And Jian offers no legal authority on how such terms could reasonably be inferred, incorporated, or “embodied” into the offer letter. He puts forward nothing to refute the Kashmiri court’s determination a letter offering admission is evidence of an implied contract if a student accepts the offer. (Kashmiri, supra, 156 Cal.App.4th at p. 829.)
The second document (exhibit 210) is a letter sent one month after the admission letter. This follow-up letter from the vice chair of the office of the director of graduate studies offered Jian “some comments about [his] schedule and some suggestions about how [he] might put the relative freedom of the summer to good use.” In addition, the director outlined several requirements and expectations of Ph.D. candidates. He also enclosed, inter alia, a schedule of classes booklet, a copy of the department’s advising procedures, the academic calendar, and a campus map. At best this letter offering Jian advice and recommendations may give rise to the implied terms of Jian’s contract with the university. It cannot reasonably be construed as a certain or express written agreement between the parties to be bound to every statement contained therein or the supplemental booklets.
Jian characterizes the third listed document (exhibit 3) as the most important one. Jian and Pomeranz executed a written “Graduate Student Advising Agreement.” Jian asserts, “If this agreement is to have any meaning whatsoever, it necessarily means, that the parties agree to be bound by all of the [p]olicies, [p]rocedures, [d]efinitions[, ] and [g]uidelines of the University Ph.D. program.” (Bold omitted, ) We have carefully examined this document and reach a much different conclusion.
The agreement consists of one paragraph, which we will recite in its entirety. “GRADUATE STUDENT ADVISING AGREEMENT [¶] The professor signing below will serve as faculty advisor (Candidacy Committee Chair, etc.) for the graduate student signing below until and unless this agreement is terminated by mutual consent, at which time a new form will be initiated and submitted by the student.” The agreement was signed by both Pomeranz and Jian.
On its face, the terms of this written agreement cannot form the basis of Jian’s breach of academic contract claim. While this agreement clearly binds Pomeranz to serve as Jian’s faculty advisor, Jian does not allege Pomeranz breached this particular promise. Rather the gravamen of the breach of contract claim relates to his wrongful termination from the Ph.D. program. That Jian selected an advisor when he was still enrolled in the program does not “necessarily mean” Pomeranz, other faculty members, or the university expressly agreed to be bound by “all of the [p]olicies, [p]rocedures, [d]efinitions and [g]uidelines of the University Ph.D. program” relating to termination. (Italics added.)
It is well settled, for an action to be based upon a written document, the writing must express the obligation sued upon. “[A] cause of action is not upon a contract founded upon an instrument in writing, within the meaning of the code, merely because it is in some way remotely or indirectly connected with such an instrument, or because the instrument would be a link in the chain of evidence establishing the cause of action. In order to be founded upon an instrument in writing, the instrument must, itself, contain a contract to do the thing for the nonperformance of which the action is brought.” (McCarthy v. Mt. Tecarte Land & Water Co. (1896) 111 Cal. 328, 340.)
Jian seeks to dodge around these well-settled principles of law by focusing on case law upholding the use of extrinsic evidence to supply missing terms of a contract. However, these cases relate to whether all the contract terms must be expressly stated for there to be an enforceable contract. (e.g., Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 269 [contract enforceable even though not every term or condition regarding fees was set forth].) He forgets this case is not about the validity or enforceability of the academic contract. We have no doubt Jian’s implied-in-fact academic contract with the university was enforceable and, if he had timely filed the lawsuit, its terms could be inferred from the extrinsic evidence. The issue in this case is whether there was a breach of an express obligation founded upon “an instrument in writing” as defined by Code of Civil Procedure section 337 [four-year statute of limitations for breach of written contract]. None of the written documents submitted by Jian satisfy the requirements for definite terms that would justify invoking a longer statute of limitations.
III
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.