Zumbrun v. University of Southern California

CourtCalifornia Court of Appeals
Citation101 Cal.Rptr. 499,25 Cal.App.3d 1,603 P.2d 454
Decision Date18 April 1972
Parties, 51 A.L.R.3d 991 Jean ZUMBRUN, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation, sued as The University of Southern California, a corporation, et al., Defendants and Respondents. Civ. 38312.

Page 499

101 Cal.Rptr. 499
25 Cal.App.3d 1, 51 A.L.R.3d 991
Jean ZUMBRUN, Plaintiff and Appellant,
UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation, sued as The University of Southern California, a corporation, et al., Defendants and Respondents.
Civ. 38312.
Court of Appeal, Second District, Division 5, California.
April 18, 1972.

Page 501

[25 Cal.App.3d 6] Donald M. Pach, Sacramento, and Ronald A. Zumbrun, Carmichael, for plaintiff and appellant.

Musick, Peeler & Garrett, Christopher A. Carr, Veatch, Carlson, Dorsey & Quimby, William W. Huss, Jr., and Henry F. Walker, Los Angeles, for defendants and respondents.

ALSO, Associate Justice.

Plaintiff Jean Zumbrun filed a complaint entitled, 'Complaint for Breach of Fiduciary Duties, Unjust Enrichment, Punitive Damages and Other Relief,' against the defendants University of Southern California, a non-profit corporation, Norman Topping, Justin Dart as an individual and as the chairman and representative of the Board of Trustees of said institution, Jon P. Miller, and James McBath as an individual and as the chairman and representative of the faculty members of said institution. The demurrers, general and special, interposed by said defendants were sustained without leave to amend. Plaintiff appeals from the ensuing judgment (order) of dismissal. (Code Civ.Proc., § 581, subd. 3.)


The core of plaintiff's grievance, according to plaintiff's allegations, grew out of the following facts:

Plaintiff, who was 63 years old, enrolled in the University of Southern California (USC) for the purpose of concluding her college education and 'becoming fully qualified in the fields of Gerontology and Sociology.' On November 7, 1969, she

Page 502

was admitted as a full-time student in the College of Letters, Arts, and Sciences of USC as a 'junior.' '(T)ime was of the essence due to plaintiff's age, . . . the employment situation in the field of Gerontology and in the Southern California area, and due to other related factors.' She paid her required tuition and other fees amounting to $518 on January 28, 1970. (It is not stated whether the $518 was the total amount paid or just the portion allocable to the course 'Sociology 200.')

'Sociology 200' was required of sociology majors and was a prerequisite to other advanced courses in sociology and gerontology. On February 3, 1970, she commenced attending the spring classes, including 'Sociology 200' taught by defendant Jon P. Miller, an assistant professor in the Department of Sociology and Athropology.

[25 Cal.App.3d 7] '(D)efendants, and each of them, represented, agreed, promised, and warranted to plaintiff that said Sociology 200 course would be a full and complete course with a final examination, that said class would be conducted on Tuesdays and Thursdays at 11:00 a.m. until 12:50 p.m. beginning February 3, 1970, and ending with a final examination on or before June 2, 1970, and that defendants would exercise good faith and judgment concerning said course.' (Par. XV.)

Defendant Miller refused to teach the class commencing on May 1, 1970, and refused to conduct a final examination despite plaintiff's written demand (dated May 18, 1970) that he complete 'Sociology 200' as originally planned. (Exhibit A, attached to complaint.) In said demand, she stated, Inter alia, 'at age sixty three it is essential that I . . . become qualified to commence my intended profession of Gerontology prior to reaching age sixty five. Your course was to be the foundation for my education in this field. The mere receipt of a grade in this course does not add a thing to my actual qualifications.'

From admissions in plaintiff's opening brief (Estate of Kretschmer (1965) 232 Cal.App.2d 789, 790, 43 Cal.Rptr. 121; Wittmann v. Whittingham (1927) 85 Cal.App. 140, 147, 259 P. 63; see 4 Cal.Jur.2d, Appeal and Error, § 485, p. 321), we learn that Professor Miller's conduct was a part of a faculty strike to register disapproval of United States policies being pursued in Cambodia and that plaintiff did receive a grade of 'B' for the course. In response to this court's inquiry as to what prevented her enrollment in any advanced courses, her counsel replied that it was due to too many students signing up for those she wanted to take.

Plaintiff avers as to compensatory damages that she 'has been deprived of her education, has suffered mental and financial strain and distress, has wasted $518.00 for tuition and other fees, has wasted other sums for books and other necessities, has suffered a loss of present income in the amount of approximately $5,000.00, has suffered a potential loss of future income estimated to be $60,000, and other damage, the exact amount of which is unknown at the present time.'

The complaint also includes a second count which attempts to plead a cause of action in the form of a common count. In her first count, which is the one in which she pleads specific matters, there are allegations indicative of an attempt to plead (as claimed in her opening brief) theories of breach of fiduciary duties, fraud, constructive fraud, breach of warranty, misrepresentation, negligence, breach of trust, and conspiracy. To minimize repetition, we shall refer to such averments more specifically where pertinent to the discussion below.

[25 Cal.App.3d 8] Defendants demurred generally upon the following grounds: (1) plaintiff's complaint does not state facts sufficient to constitute a cause of action against defendants, or any of them, and (2) plaintiff's complaint does not state facts sufficient to constitute a cause of action as to defendants Justin Dart and James McBath. They

Page 503

demurred specially specifying: (1) several causes of action have not been separately stated, (2) the complaint and each cause of action is uncertain, and (3) it cannot be ascertained whether the contract which plaintiff relies upon is written or oral.

The trial court sustained the demurrers without leave to amend on 'the grounds stated in the moving papers' and ordered the action dismissed with prejudice 'as to the demurring defendants, only.'


It is hornbook law that the 'purpose of a complaint is to furnish the defendants with certain definite charges which can be intelligently met. . . . The point is that the accuser must place his finger squarely and directly upon whatever dereliction is relied upon (by plaintiff).' (Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69, 326 P.2d 238, 246.) General and indefinite assertions of liability are not sufficient compliance with the rules of pleading (Lavine v. Jessup, Supra) even when adorned with a verbal masterpiece of Chief Judge Cardozo 1 inserted without quotation marks. Facts, not conclusions, must be pleaded.

On the other hand, it is an abuse of discretion to sustain a demurrer to an original complaint without leave to amend unless disclosures on the face of the complaint point to its being incapable of amendment. (Phillips v. Phillips (1955) 137 Cal.App.2d 651, 653, 290 P.2d 611.) A complaint which is sustainable upon any theory is immune from a general demurrer. (Schumm v. Berg (1951) 37 Cal.2d 174, 183, 231 P.2d 39; Baker Aircraft Sales, Inc. v. Cassel (1962) 200 Cal.App.2d 563, 565, 19 Cal.Rptr. 481.) The complaint need only show that plaintiff is entitled to some kind of relief to withstand the attack by general demurrer. (Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354, 83 Cal.Rptr. 347; Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894, 57 Cal.Rptr. 19.) It is an abuse of discretion to sustain a special demurrer without leave to amend since it is directed to a defect of form rather than of substance. (Linggi v. Garovotti (1955) 45 Cal.2d 20, 23, 286 P.2d 15; Helfrich v. Kerley (1961) 192 Cal.App.2d 726, 729, 13 Cal.Rptr. 753.) As to general demurrers, 'the demurrant [25 Cal.App.3d 9] is not limited to the reasons and arguments he advanced below, but is entitled to present to the appellate court any and all reasons whereunder the demurrer is properly sustainable.' (2 Chadbourn et al., Cal.Pleading (1961) § 1402, p. 528; Meier v. Hayes (1937) 20 Cal.App.2d 451, 453, 67 P.2d 120.)


The special demurrers were properly sustained.

In the first count, which is specifically pleaded, there is at least one instance where two causes of action have been united without being separately stated. 2 There is a cause of action for a breach of a contract between plaintiff and USC as we shall elaborate in more detail below. There is also a paragraph which sounds as if plaintiff is seeking to make herself a third party beneficiary of a contract of employment between USC and defendant Miller. Plaintiff also argues in her brief that she has pled such a cause of action. The transactions relating to a contract entered into by USC and defendant Miller involve acts separate and distinct from the contract between plaintiff and USC. Consequently, there is a uniting of two causes of action in one count without separate statement.

Since the contractual relationship between a student and a university arises out of both oral and written elements, 3 the special demurrer upon the ground that it cannot be ascertained whether the contract

Page 504

upon which plaintiff bases her action is written or oral was well taken.

As to the special demurrer on grounds of uncertainty, it is...

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