Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV110340
McAdams, J.
This is an appeal from a judgment of dismissal, which followed the sustention of a demurrer on res judicata grounds. Upon independent review, we conclude that res judicata bars all of the claims asserted in this action, except the seventh cause of action alleging “business tort.” Because the pleading defects in that cause of action may be curable, we reverse and remand, directing the trial court to give plaintiff an opportunity to amend as to the seventh cause of action only.
BACKGROUND
The parties to this action are plaintiff Thomas Gribovski and defendant Stanford University. Plaintiff is a former student at Stanford. Plaintiff’s central claim in this litigation is that Stanford improperly withheld a master’s degree that he has earned. Plaintiff asserted the same claim in two prior actions.
In all of the current and prior actions, plaintiff has represented himself. He does so in this court as well.
Prior Actions
2005 Civil Action (CV039451)
The first of plaintiff’s two prior actions was a civil complaint filed against Stanford University in April 2005 (docket number 1-05-CV039451). Plaintiff used a form complaint (personal injury, property damage, wrongful death), attaching a separate form cause of action for intentional tort. In it, he alleged: “By intentionally and without valid reason withholding the degree of Master of Science, Aeronautics and Astronautics, which was documentedly earned by 1999 and requested since 2002, Stanford University is in continuing violation of the consumer law-type principle expressed in the California Education Code....”
In September 2005, plaintiff filed a second complaint against Stanford under the same docket number. Plaintiff used the same form pleading as before, this time with a separate form cause of action for breach of contract. In the section of the form for describing the essential terms of the agreement, plaintiff stated: “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 award 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 undue, unfair, or unreasonable procedure or burden merely on account of non-registration status).” In the section of the form for describing the defendant’s breach of the agreement, plaintiff stated: “Departmental representative(s) of Defendant did obstruct and ultimately deny due process in the matter of Plaintiff’s repeatedly requested degree conferral, all the while in possession of substantial evidence in favor of Plaintiff’s having satisfied the necessary degree requirements. Defendant demeanor included tortious and/or negligent misrepresentation of facts, as well as instances of arbitrary and capricious behavior.”
In November 2005, Stanford demurred to the second complaint, citing several statutory grounds. (Code Civ. Proc., § 430.10, subds. (e), (f), (g).)
The cited provisions of Code of Civil Procedure section 430.10 permit a demurrer where: “(e) The pleading does not state facts sufficient to constitute a cause of action. [¶] (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. [¶] (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”
Plaintiff filed no written opposition, but he did appear telephonically at the hearing, which was held in January 2006. Plaintiff stated that he would stand on his complaint.
At the conclusion of the hearing, the trial court sustained the demurrer without leave to amend. The court later entered judgment of dismissal, in March 2006. Plaintiff did not appeal.
2005 Mandamus Action (CV043364)
Plaintiff’s second action was a petition for a writ of mandamus, filed in July 2005, against “Brian Cantwell, of Stanford University” (docket number 1-05-CV043364). The petition identified Cantwell as Chairman of the Department of Aeronautics and Astronautics at Stanford University, it referred to Cantwell’s decision “to close the matter of Plaintiff’s pending master degree conferral” and it requested writ relief.
The pendency of the mandamus action was noted at the January 2006 demurrer hearing. After asking plaintiff about his intentions concerning the petition, the court stated that the matter would be put on for dismissal review in March 2006.
Judgment of dismissal was later entered, in May 2006. Plaintiff did not appeal.
Current Action
Plaintiff brought this action in 2008. His initial complaint was filed, nunc pro tunc, on March 28, 2008. The named defendants were Stanford University, its Department of Aeronautics and Astronautics, Brian Cantwell, and 10 other individuals.
Defendants demurred to plaintiff’s initial complaint. The court sustained the demurrer with leave to amend.
Plaintiff filed a first amended complaint in December 2008, naming Stanford as the sole defendant. As indicated in its caption, the first amended complaint is for “arbitrary and capricious stonewalling, delay, and denial of master degree application, breach of contract, business tort, and other causes.”
Stanford demurred to the first amended complaint, joined by the other defendants named in the initial 2008 complaint. The demurrer separately addressed each of plaintiff’s seven causes of action, asserting as to each that it “does not state facts sufficient to constitute a cause of action.” As subsidiary grounds for that assertion, the demurrer stated that each cause of action is barred by res judicata and the statute of limitations, and that each is uncertain.
Following a hearing in March 2009, the trial court sustained the demurrer to the first amended complaint, without leave to amend, “on the ground that the action is barred by the doctrine of res judicata.” The court explained: “The present action involves the same claim or issues that were raised or could have been raised in the first action filed by plaintiff against Stanford University, and the first action terminated as a result of a final judgment on the merits.”
The court thereafter entered a judgment of dismissal.
This appeal ensued.
CONTENTIONS
On appeal, plaintiff argues (a) the two prior judgments of dismissal should not be given preclusive effect, because no facts or evidence were considered in either action; (b) the dismissal of the mandamus action should not be given preclusive effect, because the only defect in the writ petition was a misconception of the remedy; (c) the dismissal of the civil action should not be given preclusive effect, because the pleading defects in the complaint were curable, not substantive, and thus the judgment was not on the merits; and (d) the business tort claim is not barred by the doctrine of res judicata, because it seeks to vindicate a primary right different from those asserted in the prior actions.
Stanford defends the judgment of dismissal on res judicata grounds. Stanford also asserts the existence of alternative grounds to support the judgment.
DISCUSSION
To establish the proper framework for discussing the parties’ contentions, we begin by summarizing the legal principles that inform our analysis.
I. Legal Principles
A. Res Judicata
“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896; accord, Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 683 (Consumer Advocacy Group).) “Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” (Mycogen Corp. v. Monsanto Co., at p. 897.) The doctrine precludes not only “issues that were actually litigated but also issues that could have been litigated.” (Federation of Hillside and Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202 (Federation).) “Res judicata is one of the oldest and least flexible doctrines in American jurisprudence. It is also one of the most important.” (Robert J. v. Leslie M. (1997) 51 Cal.App.4th 1642, 1647.) “A clear and predictable res judicata doctrine promotes judicial economy.” (Mycogen Corp. v. Monsanto Co., at p. 897.)
There are three requirements for application of the res judicata doctrine: (1) the issues in the earlier and later actions must be identical; (2) the prior judgment must have been final and on the merits; and (3) the two actions must involve the same parties or their privies. (Levy v. Cohen (1977) 19 Cal.3d 165, 171; Consumer Advocacy Group, supra, 168 Cal.App.4th at pp. 685-686.)
“The doctrine applies basically to all types of final judgments that are rendered on the merits of litigation.” (Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 216.) “It may apply to a final judgment, i.e., a dismissal, even though entered after sustaining a demurrer, if the demurrer was sustained on substantive grounds.” (Ibid.; see also, e.g., Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1428; Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 383-384; McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 794.)
B. Demurrers
“A general demurrer searches the complaint for all defects going to the existence of a cause of action and places at issue the legal merits of the action on assumed facts.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) “A demurrer tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) For that reason, we “assume the truth of the complaint’s properly pleaded or implied factual allegations.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We also “consider judicially noticed matters.” (Ibid.) “In addition, we give the complaint a reasonable interpretation, and read it in context.” (Ibid.; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
On appeal from a judgment of dismissal after a demurrer has been sustained, the plaintiff has the burden of proving error. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Because the trial court’s determination is made as a matter of law, we review the ruling de novo.” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423.) We will affirm “if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.” (Carman v. Alvord, supra, 31 Cal.3d at p. 324.)
“If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.” (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) “As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.) “Nevertheless, where the nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.” (Ibid.; Yee v. Mobilehome Park Rental Review Bd. (City of Escondido) (1998) 62 Cal.App.4th 1409, 1429 [leave to amend properly denied where claims were “subject to demurrer as being barred either by res judicata or various applicable limitations statutes”].)
II. Analysis
Guided by the above principles, we examine the judgment of dismissal following the demurrer to plaintiff’s first amended complaint. Our analysis proceeds in two steps. First, we independently review the sufficiency of plaintiff’s first amended complaint. We conclude that the doctrine of res judicata bars the first six causes of action, but not the seventh (plaintiff’s business tort claim). As to the seventh cause of action, we conclude that it is vulnerable to demurrer on other grounds. Second, we consider whether leave to amend should have been granted. We conclude that the defects in the first six causes of action cannot be cured under the governing substantive law. As to the business tort claim, however, plaintiff must be given an opportunity to amend.
A. Sufficiency of the Complaint
The trial court sustained the demurrer on the ground that the current action is barred by the doctrine of res judicata. As noted above, there are three requirements for res judicata to apply: an identity of issues in the prior and current action; a final judgment on the merits in the prior action; and an identity of parties in the prior and current action. (Levy v. Cohen, supra, 19 Cal.3d at p. 171.)
In this case, plaintiff disputes the first requirement – identity of issues – but only as it relates to his business tort claim. Plaintiff also disputes the second requirement, based on his contention that the 2005 judgment of dismissal after demurrer was not on the merits. Plaintiff makes no argument concerning the third element, identity of parties, and there is no question that it is satisfied. (See Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1428, fn. 4.)
We address plaintiff’s arguments, beginning with a consideration of whether the prior judgments were on the merits.
1. Res Judicata – Determination on the Merits
Plaintiff maintains that the prior judgments are not on the merits for purposes of res judicata, arguing (a) no evidence was introduced in the prior actions; (b) the defects in his prior writ petition were matters of form not substance; and (c) the defects in his prior civil complaint were curable and the resulting judgment thus was not on the merits. We disagree on all counts.
a. Failure to consider evidence
According to plaintiff, res judicata is not a bar here because no evidence was considered in either of his prior cases.
In support of his argument, plaintiff cites Everts v. Blaschko (1936) 17 Cal.App.2d 188. That case does not assist him. Everts was “an appeal from a judgment entered after granting a motion to dismiss the action.” (Id.at p. 189.) One of the grounds for the dismissal motion was res judicata. (Id.at pp. 189-190.) The court rejected that ground, based on the California Supreme Court decision in Campanella v. Campanella (1928) 204 Cal. 515. (Everts v. Blaschko, at p. 191.) Everts quoted extensively from Campanella, including statements suggesting that a determination on the merits requires proof. (Id. at pp. 191-192.) But the actual holding of Campanella, which controlled Everts, was that the record of the prior judgment of dismissal – the judgment roll – failed to show that it was on the merits. (Ibid.)
Sustaining a general demurrer is “a method of deciding the merits of the cause of action on assumed facts without a trial.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437, fn. 4.) Evidence thus is not required to decide the merits of a claim. Furthermore, in the procedural posture of this case, the question of evidence is no longer relevant. “Appellant permitted his judgment to become final without objection, so that however drastic, this court must assume that the judgment is supported by substantial evidence.” (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 378, fn. 1.) “By failing to appeal and seek a correction of the error through a reversal of the judgment, it is as conclusive upon the plaintiff as if at the trial he had omitted to present sufficient evidence to the court in support of his demand.” (Lamb v. Wahlenmaier (1904) 144 Cal. 91, 95.)
b. Pleading defects in the prior writ petition
Plaintiff next argues that the prior judgment in the mandamus action is not a bar to the current action, because the pleading defects there were not substantive but rather were merely misconceptions of the proper remedy.
In proffering this argument, plaintiff relies on Goddard v. Security Title Insurance & Guarantee Co. (1939) 14 Cal.2d 47. Goddard involved a prior “ ‘judgment of dismissal based upon a demurrer sustained for defects of form, under circumstances where it was possible to plead a good cause of action in another suit.’ ” (Id. at p. 55.) “Such a judgment is clearly not on the merits, and under the rules set forth above, is not res judicata.” (Id. at p. 53.)
Goddard has no application to plaintiff’s prior mandamus action, which was dismissed through some unspecified procedural mechanism other than demurrer. (Cf. Goddard v. Security Title Insurance & Guarantee Co., supra, 14 Cal.2d at p. 55.)
Moreover, plaintiff’s 2005 writ petition sought to vindicate the same primary right as his 2005 civil complaint – degree conferral. For that reason, the preclusive effect of the judgment in the mandamus action is immaterial. The same claim is precluded by the judgment in the civil action, which, as we now explain, was on the merits.
c. Substantive ground for demurrer in the prior civil complaint
As explained in Goddard, “it is the nature of the action and the character of the judgment that determines whether it is res judicata.” (See Goddard v. Security Title Insurance & Guarantee Co., supra, 14 Cal.2d at p. 54.) The pivotal question is whether “the demurrer was sustained on substantive grounds.” (Shuffer v. Board of Trustees, supra, 67 Cal.App.3d at p. 216.)
In the 2005 civil action, defendants’ demurrer was brought on several grounds, including failure to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The trial court cited the same statutory grounds in its 2006 order sustaining the demurrer. In support of their demurrer, defendants had argued: “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.” As explained in authority cited in defendants’ memorandum: “A complaint must allege the ultimate facts necessary to the statement of an actionable claim.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) For a contract claim, the plaintiff must allege four essential elements: “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Id. at p. 1388.) “The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer.” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 437, fn. 4.)
Under longstanding California Supreme Court precedent, failure to state a cause of action is a substantive ground for demurrer. (Crowley v. Modern Faucet Mfg. Co. (1955) 44 Cal.2d 321, 323; Keidatz v. Albany (1952) 39 Cal.2d 826, 828.) The ensuing judgment thus is on the merits. “A judgment entered after a general demurrer has been sustained ‘is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will accordingly, be a bar to a subsequent action alleging the same facts.’ ” (Crowley v. Modern Faucet Mfg. Co., at p. 323, quoting Keidatz v. Albany, at p. 828; see also, e.g., McKinney v. County of Santa Clara, supra, 110 Cal.App.3d at p. 794.)
Applying those principles here, it is clear that the prior judgment was on the merits. That judgment is a determination that the facts alleged in the 2005 action did not constitute a cause of action. The same operative facts are alleged in the current action, albeit in much greater detail. The prior judgment therefore is a bar to this “subsequent action alleging the same facts.” (Keidatz v. Albany, supra, 39 Cal.2d at p. 828.)
Plaintiff nevertheless maintains that dismissal of the 2005 civil action “was not an adjudication on the merits in that the stated grounds of insufficient facts to show breach of contract was not an affirmative defense, because the demurrer does not categorically rule out the possibility of a contract between the Plaintiff and the Defendant, or a breach thereof.” Plaintiff cites case law in support of his contention that a student can state a claim for breach of contract against a university. (See Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 811, fn. 7 [“the framing of the student-university relationship in contractual terms may provide a potential source for some student curricular and extracurricular rights”]; Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 10 [“basic legal relation between a student and a private university or college is contractual in nature”]; cf. Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1553 [finding that college did not “breach any express or implied contract with appellant”]; see also, Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 823-829, and cases cited therein.) Plaintiff argues: “The defects in the prior action’s complaint were thus curable and indeed cured in the present action.”
Plaintiff’s argument betrays a fundamental misunderstanding of the legal principle of finality. At this juncture, it is immaterial whether the defects in plaintiff’s 2005 complaint were curable. He failed to cure them. And he failed to appeal. “Appellant’s arguments with respect to the correctness of the judgment entered in the former action are not relevant to this appeal. Appellant had an opportunity to appeal the judgment entered in the former action, but failed to do so.” (McKinney v. County of Santa Clara, supra, 110 Cal.App.3d at p. 799; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.)
The only question presented in this appeal is whether plaintiff’s current claims are barred by his failure to state a cause of action with respect to those same claims in his prior action. As explained above, they are.
To sum up, the demurrer in the prior action was based on “the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action.” (Goddard v. Security Title Insurance & Guarantee Co., supra, 14 Cal.2d at p. 52.) “Both actions arose out of the same transaction, both actions were for the same breach of the same contract, and both involve the same facts. The judgment in the first action is therefore a complete bar to the present action.” (Crowley v. Modern Faucet Mfg. Co., supra, 44 Cal.2d at p. 324.)
2. Res Judicata – Identity of Issues
a. First six causes of action
With respect to the first six causes of action, plaintiff effectively concedes the identity of issues. In papers filed in December 2008, in opposition to defendants’ demurrer to his initial complaint in the current action, plaintiff acknowledged that the “master degree matter is the main subject of this action, ” and that his prior actions also “were of course intended for aiming at the master degree....” In papers filed in February 2009, in opposition to the demurrer to his first amended complaint, plaintiff made no argument that the prior and current actions involved different claims. Rather, he asserted: “Assuming that the actions are deemed sufficiently similar, ” res judicata does not apply “because the ruling was erroneously made” and for other reasons. In papers captioned “Addendum to Opposition to Demurrer to First Amended Complaint, ” filed in March 2009 (after defendants’ reply), plaintiff stated that “the issue presented in prior action was essentially the same, although perhaps over-concisely expressed on a single page....” In his opening brief on appeal, plaintiff refers to the current action as “a retake” of his prior claims.
Plaintiff’s concession is well-taken. The first six causes of the first amended complaint in the current action seek the same relief as the prior actions: degree conferral.
b. Seventh cause of action
Plaintiff takes a different view of the seventh cause of action of his first amended complaint, which alleges improper withholding of his transcripts. Plaintiff asserts that “access to a degree and access to transcript records are two different primary rights. The primary right to transcript records was not part of the prior actions, and therefore it could not have been adjudicated, and no bar therefore exists.”
The business tort claim appears in plaintiff’s first amended complaint, captioned “SEVENTH CAUSE OF ACTION (FOR BUSINESS TORT – UNFAIR BUSINESS PRACTICES).” Among the allegations in that cause of action are these: “Defendant SU [Stanford University] is charging the Plaintiff tuition for two classes allegedly taken during the spring quarter of 2001, and housing and telecommunication fees allegedly incurred by the Plaintiff in the subsequent summer quarter. Defendant SU is withholding official transcripts from the Plaintiff on account of said charges.” Plaintiff further alleges: “In addition, Defendant SU has unjustifiably marred the Plaintiff’s scholastic record with two failing grades.”
Stanford offers a two-pronged response. First, Stanford counters plaintiff’s argument on the merits, asserting that “in the context of [plaintiff’s] other allegations, it is clear that the transcript allegation does relate to his claimed right to a Master’s Degree.” Additionally, Stanford contends that plaintiff forfeited that argument by failing to raise it in the trial court.
We begin with Stanford’s contention of forfeiture, which we find unpersuasive. As longstanding case law holds, new theories may be presented on appeal in support of a demurrer. “If for any reason the demurrer should have been sustained, the demurrant was entitled to present that reason to this court.” (Meier v. Hayes (1937) 20 Cal.App.2d 451, 453; accord, Zumbrun v. University of Southern California, supra, 25 Cal.App.3d at p. 9.) The same rule applies to the party attacking the demurrer. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103 [reviewing court is “not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer”].) “Further, the rule that on appeal a litigant may not argue theories for the first time does not apply to pure questions of law.” (Carman v. Alvord, supra, 31 Cal.3d at p. 324.)
On the merits, we conclude that plaintiff’s business tort claim represents a different primary right, distinct from his claims for degree conferral. To provide context for that conclusion, we begin by summarizing the governing law.
“California’s res judicata doctrine is based upon the primary right theory.” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.) A prior judgment bars a second action “if both suits seek to vindicate the same primary right.” (Ibid.) “The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) The primary right is distinct both from the legal theory and from the remedy sought. (Id. at pp. 681-682.) The invasion of a primary right gives rise to only one cause of action, “even if multiple theories of recovery are asserted.” (Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1067 (Citizens for Open Access); see also, e.g., Mycogen Corp. v. Monsanto Co., at p. 904; Consumer Advocacy Group, supra, 168 Cal.App.4th at p. 686 .)
“As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered.” (Crowley v. Katleman, supra, 8 Cal.4th at p. 681.) The key factor in the analysis is the harm suffered. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4; Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 992.) “The scope of the primary right therefore depends on how the injury is defined.” (Federation, supra, 126 Cal.App.4th at p. 1202.) “An injury is defined in part by reference to the set of facts, or transaction, from which the injury arose.” (Id. at p. 1203.) Even so, different claims can “arise from the same set of operative facts.” (Agarwal v. Johnson, at p. 954.) Thus, the same wrongful conduct can violate different primary rights. (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 342.)
In assessing whether the same primary right underlies two different claims, we examine the pleadings and evidence in the two actions, “looking at the rights which are sought to be vindicated and the harm for which redress is claimed.” (Citizens for Open Access, supra, 60 Cal.App.4th at p. 1067.) In doing so, “judicial notice may be taken of a prior judgment and other court records.” (Id. at p. 1065.) That was done here.
In this case, the gist of plaintiff’s 2005 action is a claimed right to a master’s degree and claimed harm from defendants’ actions in withholding that degree. Thus, the primary right asserted in the prior action was degree conferral. (See Paulsen v. Golden Gate University, supra, 25 Cal.3d at pp. 810-811; Kashmiri v. Regents of University of California, supra, 156 Cal.App.4th at p. 828, fn. 11.)
Likewise, the main thrust of plaintiff’s 2008 action is his claimed entitlement to conferral of a degree. The first amended complaint thus alleges that the action was brought both “to seek declaratory relief for the award of a... master degree” and to seek damages sustained “as a result of the protracted obstruction and ultimate denial of his degree award” and as a result of the “earlier destruction of his former Ph.D. program....” But the complaint also seeks “declaratory relief for three additional hurdles to degree award” – (1) the University’s reinstatement procedures, (2) the University’s imposition of “an exorbitant graduation fee” and (3) the University’s claims for tuition, housing, and telephone fees. Plaintiff’s business tort claim derives from the third “hurdle.”
While the complaint as a whole challenges denial of the master’s degree, the business tort claim challenges the refusal to provide accurate and official student transcripts. Withholding transcripts is not the same as withholding a degree. The nature of the alleged harm is distinct. (See Agarwal v. Johnson, supra, 25 Cal.3d at p. 955.) The corresponding right likewise is distinct. As plaintiff observes in his opening brief, “he would still be entitled to official transcripts” even if he has no right to a degree. Plaintiff’s claim of entitlement to official transcripts thus represents a different primary right from his claim of entitlement to a degree. (See Branson v. Sun-Diamond Growers, supra, 24 Cal.App.4th at p. 343 [primary right “to seek authorization for indemnity” pursuant to statute “is not the same cause of action as one for breach of a contract for indemnity”]; Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102 [request for statutory attorney’s fees and costs in dissolution action does not involve the same primary right as cause of action for malicious prosecution].)
Because a different primary right is at stake in plaintiff’s claim for transcripts, and because that claim was not asserted in the prior action, the demurrer cannot be sustained on res judicata grounds as to that cause of action.
3. Other Grounds for Demurrer
Because res judicata does not bar the seventh cause of action, we must determine whether the demurrer is proper on any other grounds stated in the demurrer. (Carman v. Alvord, supra, 31 Cal.3d at p. 324.) Stanford proffered several other grounds below in support of its demurrer to the seventh cause of action. We consider each in turn.
a. Statute of limitations
Stanford demurred to the seventh cause of action on the ground that it was time-barred under Code of Civil Procedure sections 335.1 and 339(1). “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; accord, Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.) In this case, however, nothing on the face of complaint, or in the judicially noticed documents, demonstrates that the claim is time-barred. The demurrer to the seventh cause of action thus cannot be sustained on this ground.
b. Failure to state claim
Stanford’s demurrer to the seventh cause of action also asserted plaintiff’s failure to allege “the requisite elements of a cause of action for unfair business practices.” On appeal, Stanford contends that this cause of action “fails to allege any legal support.”
A statutory claim for unfair business practices is a recognized cause of action. (See Barquis v. Merchants Collection Assn., supra, 7 Cal.3d at p. 113; Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 562.) Here, however, plaintiff has failed to adequately allege its elements. (See, e.g., Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC (N.D.Cal. 2007) 634 F.Supp.2d 1009, 1022 [claimants’ pleading inadequate where they did “not specify any statute that they allege was violated” or plead “facts that satisfy the standing requirement” under Bus. & Prof. Code, § 17200]; Sybersound Records, Inc. v. UAV Corp. (9th Cir. 2007) 517 F.3d 1137, 1152 [pleading inadequate where plaintiff did not allege “that the breaches of contract are independently unlawful, unfair, or fraudulent”].)
Because plaintiff has not alleged the necessary elements of a claim for unfair business practices, the seventh cause of action is vulnerable to demurrer on that ground. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 437, fn. 4.)
c. Defective pleading of contract claim
As Stanford points out in its respondent’s brief, the allegations of the seventh cause of action suggest that plaintiff’s legal theory is breach of contract. But Stanford challenges the adequacy of those allegations, saying: “Plaintiff alleges in a conclusory fashion that there were breaches of contract, but he fails to identify which of the ‘several kinds of contracts’ was breached and the nature of these alleged breaches.” Additionally, Stanford maintains, the claims “also fail because Plaintiff has not alleged whether the underlying contract is written, oral or implied by conduct.” Stanford noted this same defect in its papers below.
When a contract claim is asserted, a demurrer will lie if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g); see Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 501; Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 706.) That is the case here. The demurrer to the seventh cause of action is therefore proper on this ground as well.
Having assessed the sufficiency of plaintiff’s pleading, we undertake the second step in the analysis – consideration of the question of leave to amend.
B. Leave to Amend
“Whether to grant leave to amend a complaint is a matter within the discretion of the trial court.” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) “The trial court abuses its discretion in denying leave to amend only if the plaintiff shows a reasonable possibility of curing any defect by amendment.” (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) Denial of leave to amend is reviewable “even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.) But the appellant nevertheless bears the burden of demonstrating a reasonable possibility that the pleading’s defects can be cured by amendment. (Reynolds v. Bement, at p. 1091; Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.)
In this case, as we explain below, only the seventh cause of action may be curable. (See Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1303.)
1. First Six Causes of Action
As stated above, “where the nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.) In analyzing liability under the governing substantive law, “we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” (Montclair Parkowners Assn. v. City of Montclair, supra, 76 Cal.App.4th at p. 790.)
In this case, the nature of plaintiff’s claims is clear. He seeks degree conferral. As a matter of law, however, those claims are precluded by the doctrine of res judicata. Therefore, as to the first six causes of action of plaintiff’s first amended complaint, denial of leave to amend was proper. (Yee v. Mobilehome Park Rental Review Bd. (City of Escondido), supra, 62 Cal.App.4th at p. 1429.)
2. Seventh Cause of Action
As explained above, the seventh cause of action is vulnerable to demurrer on two grounds. First, to the extent that plaintiff is asserting a claim for unfair business practices, he has not alleged the necessary elements of that cause of action. Second, to the extent that plaintiff is asserting a claim for breach of contract, he has failed to specify whether the contract is written, oral, or implied by conduct.
Under settled law, when there is a reasonable possibility that the defect in a pleading can be cured, the court should grant leave to amend. (Skopp v. Weaver (1976) 16 Cal.3d 432, 441; Frommhagen v. Board of Supervisors, supra, 197 Cal.App.3d at p. 1304.)
That principle applies here. We acknowledge that plaintiff had one opportunity to amend already. Nevertheless, we conclude that there is a reasonable possibility that plaintiff can cure the defects in his claim of entitlement to transcripts. Plaintiff should be given the opportunity to do so.
SUMMARY OF CONCLUSIONS
I. The first six causes of action of plaintiff’s first amended complaint challenge defendant’s denial of a master’s degree. The doctrine of res judicata bars those causes of action, because plaintiff’s degree conferral claims were the subject of a prior judgment on the merits. Because those claims are precluded as a matter of law, there is no basis for granting leave to amend.
II. The seventh cause of action of plaintiff’s first amended complaint (“business tort—unfair business practices”) challenges defendant’s withholding of student transcripts. This cause of action embodies a primary right that is distinct from plaintiff’s other claims. Because plaintiff did not assert this claim in his prior actions, it is not barred by the doctrine of res judicata. But it is vulnerable to demurrer on other grounds. Since the pleading defects may be curable by amendment, plaintiff should be given leave to amend this cause of action to state a claim for the withholding of his transcripts.
DISPOSITION
The judgment of dismissal is reversed and the cause is remanded to the superior court with directions to (1) sustain the general demurrer to the first six causes of action of plaintiff’s first amended complaint, without leave to amend; (2) sustain the demurrer to the seventh cause of action of plaintiff’s first amended complaint; and (3) grant plaintiff leave to file an amended complaint with respect to that cause of action only. Each side shall bear its own costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.