Opinion
Case No. CV 20-4928-DMG (KSx)
2023-03-07
IN RE PEPPERDINE UNIVERSITY TUITION AND FEES COVID-19 REFUND LITIGATION
ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [79]
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
Before the Court is a Motion for Summary Judgment filed by Defendant Pepperdine University. [Doc. # 79.] The MSJ is fully briefed. [Doc. ## 85 ("Opp."), 88 ("Reply").] The Court held a hearing on March 3, 2023. For the following reasons, the Court GRANTS in part and DENIES in part Pepperdine's MSJ.
Page citations herein refer to the page numbers inserted by the CM/ECF system.
I.
FACTUAL BACKGROUND
The summary of the facts is undisputed, unless otherwise stated. Facts are drawn from Defendant's Statement of Undisputed Facts ("SUF"), as set forth with its Reply. [Doc. # 89.]
The parties dispute certain facts only on the basis of objections to the opposing side's evidence, without citing contrary evidence. If those objections are overruled, the Court will treat those facts as undisputed for purposes of this motion.
The Court has reviewed the parties' evidentiary objections. To the extent the Court does not address any of them, it is because the Court did not rely on the objected-to evidence in reaching its ruling. Any objections to such evidence are OVERRULED as moot.
Plaintiffs Joseph Pinzon, Jr. and Mathew Rezvani were students at Pepperdine University in the spring of 2020. SUF 4-5. Pinzon was a student at Pepperdine's Graduate School of Education and Psychology ("GSEP"), and Rezvani was a student at Pepperdine's Caruso School of Law ("Law School"). SUF 1-2. Both were taking classes at Pepperdine in March 2020, when the COVID-19 pandemic caused Pepperdine to transition its in-person course offerings to an online-only system because it was not safe for students to be on campus. SUF 37. Between March 4 and 12, 2020, the State of California and the County of Los Angeles declared states of emergency and issued orders banning large gatherings. SUF 28-31. On March 11, 2020, Pepperdine announced that it would stop in-person classes, effective March 13, and that classes would continue online starting on March 16, 2020 for the remainder of the semester. SUF 33. On March 19, 2020, the Governor of California issued Executive Order N-33-20, which ordered "all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors." SUF 34. The same day, Los Angeles County issued a similar order. SUF 35.
The Court GRANTS Pepperdine's unopposed request for judicial notice of proclamations and guidance issued by federal, state, and local governments relating to the COVID-19 pandemic. [Doc. # 81.] The documents in question are government orders and their authenticity is undisputed. See Fed. R. Evid. 201; see also Tandon v. Newsom, 517 F. Supp. 3d 922, 944 (N.D. Cal. 2021) (taking judicial notice of state executive orders relating to COVID-19).
Pinzon applied to Pepperdine because he liked the program and "the scenery, facilities." Costanzo Decl., Ex. C at 3:5-7 [Doc. # 79-5]. Rezvani applied to Pepperdine, in part, because of "the campus, what the school had to offer, scholarship, faculty, community, the accommodations they were able to provide." Costanzo Decl., Ex. K at 10:1-4 [Doc. # 79-16]. Pepperdine's website describes the beauty of the University's Malibu location, the ocean views from the law library, and the campus facilities, including conference rooms, and dining hall, and technology services. See Kurowski Decl., Ex. 13 [Doc. # 85-14]; id., Ex. 15 [Doc. # 85-16]. The Law School's Academic Catalog highlights on-campus aspects of the law school, including its Malibu campus, libraries, courtrooms, auditoriums, conference centers, and student lounges. PSUF 20-21. It also highlights the availability of externships, field placements, and clinics. PSUF 22-24. It states that law students have access to the University's pool, gym, tennis courts, and other on-campus facilities. PSUF 25. Rezvani's Sports Law Class syllabus included a site visit. PSUF 39. Pepperdine's Spring 2020 course search feature provided on-campus locations for GSEP classes. PSUF 34. The GSEP Academic Catalog touts the West Los Angeles Graduate Campus's "classrooms, faculty and administrative offices, . . . library, academic computing facilities, . . . bookstore, and . . . Psychological and Educational Clinic," as well as the three "on-campus counseling clinics" that provide services to students and the surrounding communities. Kurowski Decl., Ex. 19 at 18 [Doc. # 85-20]. GSEP students can also use the University's athletic facilities. See id. at 53. Both the Law School and GSEP offer separate, online-only graduate degrees, but neither Plaintiff was enrolled in one, and the Law School does not offer an online-only option for a J.D., the program in which Rezvani was enrolled. PSUF 26, 17-18.
Pepperdine objects to these documents as improperly authenticated. The attorney declaration to which the documents are attached states that they were produced by Plaintiffs in discovery, but does not identify on what date the PDFs were created, or by whom. Still, because the documents appear to be PDFs of pages from Pepperdine's website, the Court will allow Plaintiffs to file a proper authenticating declaration. See infra (setting deadline for submission of revised authenticating declaration); see also Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) ("At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.").
Plaintiffs' counsel's declaration does not properly authenticate this document. The Court will therefore order counsel to file a proper authenticating declaration.
Pepperdine admitted this fact in its Answer. See Answer ¶ 59. Its objection to Plaintiffs' evidence offered to prove this fact is therefore OVERRULED as moot.
Both Plaintiffs completed all their classes during the Spring 2020 semester, and received credit for those classes. SUF 22-25. But both Plaintiffs identified certain elements of an in-person education they believed were lacking during the second half of the spring 2020 semester. These included face-to-face interactions and classes and in-person field-based internships. See, e.g., Costanzo Decl., Ex. F at 9 (Pinzon Interrogatory Responses) [Doc. # 79-8]; id., Ex. O at 9 (Rezvani Interrogatory Responses) [Doc. # 79-22]. After the transition to online classes, Pepperdine continued to provide students with access to student support and health and wellness services, and provided remote student programs and extra-curricular activities. SUF 48. Neither Plaintiff lived in Pepperdine student housing in spring 2020, so did not pay housing fees, and Pinzon received a partial refund of meal fees he had paid. SUF 49-52. Rezvani did pay $30 in Student Bar Association fees, for which he is seeking at least a partial refund. SUF 56. Pinzon paid $1,585 per credit unit in tuition for the spring 2020 semester, for a total of $17,345. SUF 57. He received a $4,000 grant from Pepperdine for that semester, paid half his remaining tuition using a loan, and paid the remainder out of his checking account. SUF 58-60. Rezvani paid $28,750 in tuition for the spring 2020 semester. SUF 61.
Both Plaintiffs have now graduated. SUF 1-3.
Neither Plaintiff is seeking a refund for any insurance or health center fees, parking fees, or student life fees.
Each Plaintiff executed a Financial Responsibility Agreement ("FRA") for each semester he took classes at Pepperdine, including the spring 2020 semester. SUF 6-7. The FRA states, under the heading "Payment of Fees/Promise to Pay":
I, the undersigned, understand that when I register for any class at Pepperdine University or receive any service from Pepperdine University I accept full responsibility to pay all tuition, fees and other associated costs assessed as a result of my registration and/or receipt of services. I further understand and agree that my registration and acceptance of these terms constitutes a promissory note agreement (i.e., a financial obligation in the form of an educational loan as defined by the U.S. Bankruptcy Code at 11 U.S.C. § 523(a)(8)) in which Pepperdine University is providing me educational services, deferring some or all of my payment obligation for those services, and I promise to pay for all assessed tuition, fees and other associated costs by the published or assigned due date.Costanzo Decl., Ex. E at 6 [Doc. # 79-7]. Later, the FRA states that "if I decide to completely withdraw from Pepperdine University, I will follow the instructions as published in applicable catalog(s) which I understand and agree are incorporated herein by reference." Id. at 8. An integration clause specifies that the FRA "constitutes the entire agreement between the parties with respect to the matters described." Id. at 9. Both the GSEP and the Law School Academic Catalogs contain refund policies that specify that refunds are available when students withdraw, or are dismissed, only if the student withdrew within four weeks after the beginning of the semester. SUF 40-41. Pinzon testified at his deposition that he did not interpret any statements in the FRA as a promise of in-person instruction. Costanzo Decl., Ex. C at 14:2-8 [Doc. # 79-5]. Rezvani testified at his deposition that he thought "at Pepperdine University" meant in-person, and that he "assum[ed]" that the FRA's statement that "Pepperdine University is providing me education services" meant that the services would be provided at the law school. Costanzo Decl., Ex. K at 43:3-6, 43:12-16 [Doc. # 79-16].
I understand and agree that if I drop or withdraw from some or all of the classes for which I register, I will be responsible for paying all or a portion of tuition and fees in accordance with the published tuition refund schedule included in applicable catalogs and schedules. I have read the terms and conditions of the published tuition refund schedule and understand those terms are incorporated herein by reference. I further understand that my failure to attend class or review my student account does not absolve me of my financial responsibility as described above.
The GSEP Academic Catalog includes a reservation of rights that reads: "The provisions of this academic catalog, including rules of conduct, academic offerings, policies, procedures, and all charges, are subject to change by Pepperdine University at any time." SUF 20. The Law School Academic Catalog includes a reservation of rights that reads: "The university reserves the right to modify the requirements for admission or graduation, to change the curriculum, to make and alter rules and regulations concerning the student body, to vary the tuition, fees, and manner of payment, or to make other desirable or necessary changes." SUF 21.
Tuition and fees paid by students cover only a fraction of Pepperdine's total operating expenses, the remainder of which is paid by endowment support, private gifts, government grants, sales and services, and revenue from other sources including athletic activities. SUF 75-76. Pepperdine continued to incur the costs associated with providing educational services even after it transitioned to online classes. SUF 77. In fact, Pepperdine's natural and functional expenses in the financial year ending July 31, 2020 were higher than for the financial year ending July 31, 2019. See Kurowski Decl., Ex. 27 at 30-31 [Doc. # 85-28] (showing total expenses of $416,238,000 for FY 2020 and $390,985,000 for FY 2019).
Plaintiffs did not respond to Pepperdine's State of Undisputed Facts after Fact No. 75. The Court therefore treats Facts No. 76-78 as undisputed for purposes of this MSJ. See C.D. Cal. L.R. 56-3.
II.
PROCEDURAL HISTORY
Former Plaintiff Joseph Pinzon, Sr. filed this action in this Court on June 3, 2020, asserting claims for (1) breach of express and implied contract, (2) unjust enrichment, (3) conversion, and (4) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. [Doc. # 1.] On August 5, 2021, the Court granted in part Pepperdine's motion to dismiss certain of Pinzon, Sr.'s claims, and ordered this case consolidated with another case asserting similar claims, Rezvani v. Pepperdine University, CV 20-8582-DMG (KSx) (C.D. Cal.). MTD Order [Doc. # 63]. The MTD Order dismissed Pinzon, Sr.'s breach of contract claim because Pinzon, Sr. was not a party to any contract with Pepperdine, and dismissed the conversion claim for failure to allege the amount converted, but permitted Pinzon, Sr. to proceed on his quasi-contract claim and his UCL claim under the "unfair" prong, and granted leave to amend as to the breach of contract claim. Id.
The current Plaintiffs filed the operative consolidated complaint on behalf of themselves and a proposed class on September 16, 2021. [Doc. # 66.] They assert claims for (1) breach of express contract, (2) breach of implied contract, (3) restitution based on quasi-contract, and (4) unfair business practices in violation of the UCL. Id. Pepperdine filed its Answer on October 12, 2021. [Doc. # 67.] Pepperdine now moves for summary judgment on all of Plaintiffs' claims.
III.
LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by [his or] her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) ("Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). "Rather, it draws all inferences in the light most favorable to the nonmoving party." Id.
IV.
DISCUSSION
A. Express and Implied Contract Claims
Pepperdine seeks summary judgment on Plaintiffs' express and implied contract claims.
1. Effect of FRA
Pepperdine argues that the FRA constitutes an express contract that contains the whole agreement between Pepperdine and Plaintiffs with respect to the payment of tuition. Because the FRA does not specify that classes will be held in-person, Pepperdine contends that Plaintiffs' contract claims must fail because, where an express contract exists, an implied contract cannot. See MSJ at 10-11 (citing Wal-Noon Corp. v. Hill, 45 Cal. App. 3d 605, 119 Cal.Rptr. 646 (1975)).
Pepperdine is incorrect. Pepperdine cites to Wal-Noon for the proposition that "[t]here cannot be a valid, express contract and an implied contract, each embracing the same subject matter, existing at the same time." See MSJ at 10 (citing 45 Cal. App. 3d at 613, 119 Cal.Rptr. 646). But Wal-Noon is inapposite. The Wal-Noon court held that the trial court had erred in extending, sua sponte, an equitable remedy to the plaintiffs where neither the plaintiffs nor the defendants had argued that the contract at issue—a lease—was invalid or otherwise unenforceable. 45 Cal. App. 3d at 612-613, 119 Cal.Rptr. 646. In referring to "express" and "implied" contracts, the court was actually distinguishing between an express contract and a quasi-contract. See 1 Williston on Contracts § 1:6 (4th ed.) ("There are two kinds of implied contracts, one implied in fact and the other implied in law: the first does not exist unless the parties manifest assent, by reason of words or conduct, while the second is quasi or constructive, and does not require mutual assent but is imposed by a fiction of the law, to enable justice to be accomplished, even when no contract was intended by the parties."). Pepperdine also cites to Kashmiri v. Regents of Univ. of California, 156 Cal. App. 4th 809, 67 Cal. Rptr.3d 635 (2007), for the proposition that "an implied-in-fact contract may only arise if there is no express agreement between student and school." MSJ at 11 (citing 156 Cal. App. 4th at 827, 67 Cal.Rptr.3d 635). But Kashmiri's reasoning is in fact more limited, and instead holds only that, in the absence of a formal agreement between the University of California and its students, "their agreements were implied-in-fact contracts." 156 Cal. App. 4th at 827, 67 Cal.Rptr.3d 635.
The Court acknowledges that Pepperdine, in its citations to Wal-Noon and Kashmiri, repeats the reasoning of another district court in California in another case litigated by Pepperdine's counsel. See Randall v. Univ. of the Pac., No. 5:20-CV-03196-EJD, 2022 WL 1720085, at *4-5 (N.D. Cal. May 28, 2022) (citing Wal-Noon and Kashmiri for the same propositions for which Pepperdine cites them herein). The Court respectfully disagrees with the Randall court's description of California law.
In fact, under California law, "even when a written contract exists, evidence derived from experience and practice can . . . trigger the incorporation of additional, implied terms," although "implied terms should never be read to vary express terms." Retired Emps. Assn. of Orange Cnty., Inc. v. Cnty. of Orange, 52 Cal. 4th 1171, 1178-79, 134 Cal.Rptr.3d 779, 266 P.3d 287 (2011); see also Santa Clara Waste Water Co. v. Allied World Nat'l Assurance Co., 18 Cal. App. 5th 881, 889, 227 Cal.Rptr.3d 257 (2017) ("Where there is both an express and implied contract, relief is available under an implied contract if the material terms do not conflict with the express contract."). The FRA leaves room for additional implied terms not contained in the FRA. The FRA contains certain terms relating to students' obligation to pay tuition and fees, but is not dispositive as to Pepperdine's obligation to its students. And Pepperdine identifies no term of the FRA that would prevent a reasonable trier of fact from finding that its agreement with its students contained an implied term requiring in-person instruction. Accord Omori v. Brandeis Univ., 635 F. Supp. 3d 47, 52-53 (D. Mass. 2022) (denying summary judgment where similar FRA was not dispositive regarding a university's obligation to refund tuition and fees to students after ceasing to provide in-person instruction).
Randall, on which Pepperdine relies heavily, is distinguishable. In Randall, the court reasoned that, because the parties had entered into the FRA and the FRA did not require the provision of in-person instruction, the plaintiff's contract claims were subject to summary judgment. For the reasons described supra, the Court disagrees with the Randall court's statement of California law. What is more, the FRA in Randall "[did] not contain any language that would allow the Court to find that the Parties had another implied contract." 2022 WL 1720085, at *5 (distinguishing Nguyen v. Stephens Inst., 529 F. Supp. 3d 1047, 1055 (N.D. Cal. 2021)). The FRA in this case states that it "constitutes the entire agreement between the parties with respect to the matters described." FRA at 9 (emphasis added). This case is therefore more like Nguyen, in which the district court held that an enrollment agreement that stated "[t]his Enrollment Agreement is part of your contract with the University" was not inclusive of all terms of the contract between a university and its students. 529 F. Supp. 3d at 1054-55. The language in the FRA that limits its application to "the matters described" indicates that the agreement between the parties might encompass matters beyond the scope of the FRA. See Fiore v. Univ. of Tampa, 568 F. Supp. 3d 350, 371 (S.D.N.Y. 2021) (concluding that the same phrase limited the scope of a similar FRA).
The Court therefore concludes that the terms of the FRA do not resolve all of Plaintiffs' breach of contract claims.
2. Express Contract Claim
Pepperdine is entitled, however, to summary judgment on Plaintiffs' claim for an express breach of contract. The terms of an express contract "are stated in words," whereas the existence and terms of an implied contract "are manifested by conduct." Cal. Civ. Code §§ 1620-21. Plaintiffs point to no express or formal agreement that Pepperdine will provide in-person instruction and, indeed, appear to concede that the agreement was manifested by conduct. See Opp. at 8-9 (asking the Court to look to the parties' course of conduct). The Court therefore GRANTS Pepperdine's MSJ as to Plaintiffs' express contract claim.
3. Implied Contract Claim
Finally, the Court must determine whether Plaintiffs have a viable implied contract claim.
Ordinary principles of contract construction govern whether the "catalogues, bulletins, circulars, and regulations" of a university become part of an implied-in-fact contract between student and university. Kashmiri, 156 Cal. App. 4th at 829, 67 Cal.Rptr.3d 635; Zumbrun v. Univ. of S. California, 25 Cal. App. 3d 1, 10, 101 Cal.Rptr. 499 (1972). California courts look to the parties' "reasonable expectation" at the time of contracting to "give effect to the mutual intention of the parties as it existed at the time the contract was executed." 156 Cal. App. 4th at 832, 67 Cal.Rptr.3d 635. Reasonableness, in turn, depends on the definiteness and specificity of the promise in question. Id. "Whether an implied contract exists is usually a question of fact for the trial court." Unilab Corp. v. Angeles-IPA, 244 Cal. App. 4th 622, 636, 198 Cal.Rptr.3d 211 (2016), as modified (Feb. 1, 2016) (citations omitted). At summary judgment, if the uncontroverted evidence is susceptible to more than one reasonable inference, and those reasonable inferences are in tension, this too is a question of fact. Id.
Pepperdine argued at the hearing that Kashmiri changed this principle in the context of agreements between a university and its students. The Court disagrees. Kashmiri did make the unremarkable observation that not all statements in university catalogs are binding on the university, but that ordinary contract principles apply to this question. See 156 Cal. App. 4th at 829, 67 Cal.Rptr.3d 635 ("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.") (citations omitted).
In this case, a reasonable jury could conclude that, based on Pepperdine's representations on its website and in its Academic Catalogs, the mutual intent of the parties was to contract for in-person classes. Indeed, Pepperdine also offered online-only degrees, some of which did not permit students in the online-only degree course to register for in-person classes, and vice versa. See, e.g., Kurowski Decl., Ex. 19 at 169 [Doc. # 85-20] ("The online and on-campus [Master of Arts in Psychology] programs are separate, and students enrolled in one program are not eligible to take courses in the other."). Pepperdine repeatedly emphasized the beauty of its campus and its on-campus offerings. These include, for GSEP students, on-campus counseling clinics, and for law students, courtrooms and a law library with ocean views. See Kurowski Decl., Exs. 13, 15, 19 at 18; PSUF 20-21. The Law School highlighted its in-person field placements and site visits. PSUF 22-24, 39. Both schools offered students access to the University's pool, gym, tennis courts, and other on-campus facilities. PSUF 25; Kurowski Decl., Ex. 19 at 53. The schools identified on-campus locations for classes and group activities. See, e.g., PSUF 34. Drawing all reasonable inferences in the light most favorable to Plaintiffs, a factual dispute exists regarding whether the parties intended to contract for an in-person education. The Court turns next to whether the impossibility defense defeats the implied contract claim, even assuming the existence of an implied contract.
Pepperdine emphasizes the on-campus experience much more for undergraduates. See PSUF 7, 9-14. Because neither Plaintiff is an undergraduate, the Court does not rely heavily on these representations in reaching its conclusions. Still, making all inferences in Plaintiffs' favor, these representations also manifest Pepperdine's intent to agree to provide an in-person education.
Pepperdine argued at the hearing that only one other court has denied summary judgment to a university on similar grounds, in Omori. Not so. In Arredondo v. Univ. of La Verne, 618 F. Supp. 3d 937, 946-48 (C.D. Cal. 2022), another judge in this district granted summary judgment for the plaintiffs on the question of whether a university's representations to students constituted an implied promise of in-person instruction under California law.
4. Impossibility
Pepperdine argues that, even if an implied contract obligated it to provide in-person classes, its performance was excused because provision of in-person classes was impossible under California's operative stay at home orders. See MSJ at 21. When performance of a contract is prevented "by the operation of law," performance is excused. Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 772 (9th Cir. 1986) (citing Cal. Civ. Code § 1511). Plaintiffs suggest that Pepperdine could have continued to hold classes in person by holding classes of fewer than 10 people. See Opp. at 19-20. But the contents of the operative California stay-at-home orders are undisputed. Even construing all the facts in the light most favorable to Plaintiffs, no reasonable trier of fact could find that Pepperdine could have continued to hold classes in person during the remainder of the spring 2020 semester in the face of the state-wide and city-wide prohibitions.
The Court therefore GRANTS Pepperdine's MSJ as to its impossibility defense to Plaintiffs' implied contract claim.
B. Quasi-Contract Claim
Pepperdine argues that, because Plaintiffs have alleged the existence of a contract, they cannot pursue an equitable quasi-contract claim. See MSJ at 22-23. But where, as here, performance of an otherwise valid contract has been rendered impossible, a plaintiff may still pursue restitution on a quasi-contract theory. Arredondo, 618 F.Supp.3d at 946-48 (citing Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370, 108 Cal.Rptr.3d 682 (2010)). Quasi-contract claims require the plaintiff to show "(1) a defendant's receipt of a benefit and (2) unjust retention of that benefit at the plaintiff's expense." MH Pillars Ltd. v. Realini, 277 F. Supp. 3d 1077, 1094 (N.D. Cal. 2017) (citing Peterson v. Cellco P'ship, 164 Cal. App. 4th 1583, 1593, 80 Cal.Rptr.3d 316 (2008)). There is no question that Pepperdine has received a benefit (Plaintiffs' tuition). Construing the facts in the light most favorable to Plaintiffs, a trier of fact could reasonably find that the existence of a promise to provide in-person classes and activities that were not in fact provided would render retention of that full benefit unjust. For all the reasons stated supra with respect to Plaintiffs' implied contract claim, the Court concludes that triable issues of fact remain as to Plaintiffs' quasi-contract claim, including whether Pepperdine's retention of the benefit it received was unfair and the measure of restitution, if any. Accord Arredondo, 618 F.Supp.3d at 946-48 (denying summary judgment on quasi-contract claim where the plaintiffs had demonstrated the existence of an implied contract but defendant had shown performance was impossible).
Pepperdine's argument that Plaintiffs' damages/restitution theory would require the Court to violate the educational malpractice doctrine are likewise unpersuasive. The Court has previously rejected the same arguments. See MTD Order at 11. Moreover, Plaintiffs have proffered portions of an expert report that purports to calculate Plaintiffs' damages by determining the objective value of an in-person education relative to an online-only education, see Kurowski Decl., Ex. 2 [Doc. # 85-3], which creates a triable issue as to Pepperdine's contention that calculation of restitution would necessarily require an assessment of the quality of the education provided to these Plaintiffs specifically. This argument does not bar Plaintiffs' quasi-contract claim.
Accordingly, the Court DENIES Pepperdine's MSJ as to Plaintiffs' quasi-contract claim.
C. UCL Claim
Finally, Pepperdine seeks summary judgment on Plaintiffs' UCL claim. The UCL prohibits "unfair competition," which is defined as "any unlawful, unfair, or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. An "unfair" business practice "is one that either offends an established public policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008) (citation and quotation marks omitted). For the same reasons that the Court concludes Plaintiffs have shown a triable dispute of fact as to their quasi-contract claim based on Pepperdine's retention of their full tuition and fees, Plaintiffs have also shown a triable issue as to their unfair business practices claim under the UCL.
The Court agrees with Pepperdine, however, that Plaintiffs lack standing to seek injunctive relief under the UCL. To have standing to seek an injunction, there must be a chance that the plaintiff will face the complained-of conduct in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-106, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Plaintiffs have already graduated and in-person classes have resumed. SUF 1-3. Although Plaintiffs argue in their Opposition that they might enroll in another degree program at Pepperdine, they have presented no evidence to support that bald assertion. The Court therefore GRANTS Pepperdine's MSJ as to Plaintiffs' entitlement to injunctive relief, but otherwise DENIES Pepperdine's MSJ as to Plaintiffs' UCL claim.
V.
CONCLUSION
For the foregoing reasons, the Court:
1. GRANTS Pepperdine's MSJ as to Plaintiffs' express contract claim;Plaintiffs shall file a revised declaration properly authenticating the exhibits attached to their MSJ by March 14, 2023.
2. GRANTS the MSJ as to Plaintiff's implied contract claim based on Pepperdine's impossibility defense;
3. DENIES the MSJ as to Plaintiffs' quasi-contract claim; and
4. DENIES the MSJ as to Plaintiffs' UCL claim, but GRANTS the MSJ as to Plaintiffs' entitlement to injunctive relief.