Summary
finding no claim for conversion "for breach of duties that merely restate ... contractual obligations," where student sought partial refund from college for not providing in-person education during COVID-19
Summary of this case from Steen v. Am. Nat'l Ins. Co.Opinion
Case No. 20-cv-04195-JSW
2021-03-30
Duy NGUYEN, Plaintiff, v. STEPHENS INSTITUTE, Defendant.
David Ryan Shoop, Pro Hac Vice, Shoop Aplc, Beverly Hills, CA, Jason Paul Sultzer, The Sultzer Law Group, Poughkeepsie, NY, Benjamin Zakarin, Mindy Dolgoff, The Sultzer Law Group P.C, New York, NY, Michael A. Tompkins, Leeds Brown Law, P.C., Carle Place, NY, Thomas Steven Alch, Shoop, A. Professional Law Corporation, Beverly HIlls, CA, for Plaintiff. Gerald Matthew Ritzert, Pro Hac Vice, Steven Martin Gombos, Pro Hac Vice, Ritzert and Leyton PC, Jacob C. Shorter, Pro Hac Vice, Gombos Leyton PC, Fairfax, VA, Paul David Fife, Fife Law, LLP, San Francisco, CA, for Defendant.
David Ryan Shoop, Pro Hac Vice, Shoop Aplc, Beverly Hills, CA, Jason Paul Sultzer, The Sultzer Law Group, Poughkeepsie, NY, Benjamin Zakarin, Mindy Dolgoff, The Sultzer Law Group P.C, New York, NY, Michael A. Tompkins, Leeds Brown Law, P.C., Carle Place, NY, Thomas Steven Alch, Shoop, A. Professional Law Corporation, Beverly HIlls, CA, for Plaintiff.
Gerald Matthew Ritzert, Pro Hac Vice, Steven Martin Gombos, Pro Hac Vice, Ritzert and Leyton PC, Jacob C. Shorter, Pro Hac Vice, Gombos Leyton PC, Fairfax, VA, Paul David Fife, Fife Law, LLP, San Francisco, CA, for Defendant.
ORDER GRANTING, IN PART, AND DENYING, IN PART DEFENDANT'S MOTION TO DISMISS
Re: Dkt. No. 24
JEFFREY S. WHITE, United States District Judge Now before the Court for consideration is the motion to dismiss filed by Stephens Institute. Having reviewed the parties' papers, relevant legal authority, and record in this case, the Court hereby GRANTS, IN PART, AND DENIES, IN PART, the motion to dismiss.
BACKGROUND
This case is one of many lawsuits across the nation relating to a university's decision to transition in-person class instruction to online and to close on-campus services in response to the COVID-19 pandemic. Stephens Institute is a for-profit corporation doing business as the Academy of Art University ("AAU"), a private university located in San Francisco, CA.
Duy Nguyen ("Nguyen") was enrolled as an undergraduate student at AAU. According to Nguyen, he and AAU entered into a contract where Nguyen agreed to pay tuition and fees in exchange for AAU providing in-person instruction and access to on-campus services. (Compl. ¶ 7, 10.) Nguyen alleges AAU made these promises in its "marketing, advertisements, and other public representations." (Id. ¶ 8.) In Nguyen's Enrollment Agreement with AAU, the parties agreed Nguyen would pay the Student Activity Fee. (Dkt. No. 24, Declaration of Jacob Shorter ("Shorter Decl.") Ex. 10, at 2.) As defined in the Spring 2020 Catalog Addendum, the Student Activity Fee "[c]overs various services provided on-campus. This includes services from the Academic Resource Center, some special events and bus services. Students taking one or more courses on-campus are charged this fee whether or not they avail themselves of the services." (Dkt. No. 24, Declaration of Chris Visslailli ("Visslailli Decl.") Ex. 16, at 28.) This fee is waived for students taking solely online courses. (Shorter Decl. Ex. 10, at 2; Visslailli Decl. Ex. 16, at 28.)
Nguyen enrolled for the Spring 2020 semester and paid tuition and fees to AAU. (Compl. ¶¶ 9, 10.) Over a month into the Spring 2020 Semester, AAU announced that it was transitioning all in-person class instruction to online in response to the COVID-19 pandemic. (Id. ¶ 12.) As a result, Nguyen claims AAU breached the contract when it failed to fulfill its promise to provide in-person instruction and access to on-campus services. (Id. ¶ 15.) Nguyen claims he is entitled to a pro-rata refund of tuition and fees for the in-person instruction and on-campus services he did not receive from AAU. (Id. ¶ 17.)
Nguyen brings this putative class action on behalf of all those who paid tuition and fees for the Spring 2020 semester at the University. He sues AAU for breach of contract, conversion, and unjust enrichment. AAU now moves to dismiss Nguyen's claims for failure to state his claims for relief under Federal Rule of Civil Procedure 12(b)(6).
A. Applicable Legal Standard.
A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court's "inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff." Lazy Y Ranch Ltd. v. Behrens , 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading standard of Rule 8(a)(2), Nguyen must provide more than mere labels, conclusions, and formulaic recitations of their claims' requisite elements. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nguyen must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc. , 912 F.2d 291, 296 (9th Cir. 1990) ; Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc. , 911 F.2d 242, 246-47 (9th Cir. 1990).
B. Request for Judicial Notice.
AAU requests the Court to take judicial notice of two sets of exhibits. Nguyen does not oppose AAU's requests.
Generally, "a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Branch v. Tunnell , 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds as recognized in Galbraith v. Cty. of Santa Clara , 307 F.3d 1119 (9th Cir. 2002) (internal quotation marks omitted). However, the Court may take judicial notice of a fact that is not subject to reasonable dispute. Fed. R. Evid. 201(b).
In the first set of exhibits, AAU requests the Court to take judicial notice of specific facts contained in various government publications regarding the spread of COVID-19. (Shorter Decl. Exs. 1, 3, 5, 13, 14.) Generally, a court may take judicial notice of government publications. See McDougall v. Cty. of Ventura , Case No.: 2:20-cv-02927-CBM-AS, ––– F. Supp. 3d ––––, ––––, 2020 WL 6532871, at *3 (C.D. Cal. Oct. 21, 2020) ; Hadley v. Kellogg Sales Co. , 243 F. Supp. 3d 1074, 1088 (N.D. Cal. 2017). While these documents are proper subjects for judicial notice, the Court need not consider these facts to resolve the motion to dismiss. See also Saroya v. Univ. of the Pac. , Case No. 5:20-cv-03196-EJD, ––– F. Supp. 3d ––––, ––––, 2020 WL 7013598, at *3 (N.D. Cal. Nov. 27, 2020) (denying defendant's request to take judicial of government publications concerning COVID-19 as unnecessary to the motion to dismiss analysis). Accordingly, the Court DENIES AAU's request to take judicial notice of Exhibits 1, 3, 5, 13, and 14.
In the second set of exhibits, AAU requests the Court to take judicial notice of specific facts contained in various news articles regarding the spread of COVID-19 in the Bay Area and the community's response to the pandemic. (Shorter Decl., Exs. 2, 4, 6, 12.) A court may generally take judicial notice of news articles, but it may only do so to "indicate what was in the public realm at the time, not whether the contents of those articles were in fact true." Von Saher v. Norton Simon Museum of Art at Pasadena , 592 F.3d 954, 960 (9th Cir. 2010) (quoting All. Premier Growth Fund v. All. Capital Mgmt. L.P. , 435 F.3d 396, 400 n. 14 (3d Cir. 2006) ). Again, the Court need not consider the facts contained in these publications to resolve the motion to dismiss. Accordingly, the Court DENIES AAU's request to take judicial notice of Exhibits 2, 4, 6, and 12.
AAU also seeks to incorporate by reference a set of university documents, most of which concern AAU's response to COVID-19 and the Spring 2020 semester. (Shorter Decl., Ex. 10; Visslailli Decl. Exs. 7, 8, 9, 10, 15, 16.) The incorporation-by-reference doctrine allows a court to "treat[ ] certain documents as though they are part of the complaint itself." Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 1002 (9th Cir. 2018). A "defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.’ " Id. (quoting United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003) ). When a court incorporates a document by reference, it may assume all contents of the document are true for the purposes of a motion to dismiss under 12(b)(6). Id. at 1003 (citing Marder v. Lopez , 450 F.3d 445, 448 (9th Cir. 2006) ).
Here, Exhibits 7 and 8 are communications sent from AAU's president concerning the university's response to COVID-19 and updates regarding fees. Exhibit 9 is a document outlining important dates for the Spring 2020 semester. Exhibit 10 is Nguyen's Enrollment Agreement with AAU. Exhibit 15 is a press release from AAU regarding its students' use of 3D technology to produce face shields for front-line workers. Exhibit 16 is a copy of AAU's Spring 2020 Catalog Addendum. Because Exhibits 7, 8, 9, 10, and 16 all deal with issues related to Nguyen's underlying claims, the Court GRANTS AAU's request to incorporate these exhibits. The Court DENIES, however, AAU's motion to incorporate Exhibit 15 because it is irrelevant to this case.
C. Failure to State Claims for Relief.
1. Nguyen Sufficiently Alleges Facts to State a Breach of Contract Claim.
The first issue is whether Nguyen sufficiently alleges facts to state a breach of contract claim. To prevail on a breach of contract claim, Nguyen must allege (1) that a contract existed, (2) his performance or excuse for nonperformance, (3) AAU's breach, and (4) damages. Oasis W. Realty, LLC v. Goldman , 51 Cal. 4th 811, 821, 124 Cal.Rptr.3d 256, 250 P.3d 1115 (2011). "[T]he basic legal relationship between a student and a private university is contractual in nature." Kashmiri v. Regents of Univ. of California , 156 Cal. App. 4th 809, 823-24, 67 Cal.Rptr.3d 635 (2007) (citing Zumbrun v. Univ. of S. California , 25 Cal. App. 3d 1, 10, 101 Cal.Rptr. 499 (1972) ). A contract is formed between a student and university when the student matriculates to the university and pays the required fees. Id. at 824, 67 Cal.Rptr.3d 635.
Because a formal contract between a student and university is rarely prepared, "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 implications." Id. at 828, 67 Cal.Rptr.3d 635 (internal quotation marks omitted). But not all statements in a university's publications become contractual obligations. Id. at 829, 67 Cal.Rptr.3d 635. Whether such statements become part of the contract, the Court looks at the reasonableness of the parties' expectations at the time the contract was formed by looking at the totality of the circumstances. Id. at 831-32, 67 Cal.Rptr.3d 635. "The reasonableness of the student's expectation is measured by the definiteness, specificity, or explicit nature of the representation at issue." Id. at 832, 67 Cal.Rptr.3d 635 ; but see Zumbrun , 25 Cal. App 3d at 10, 101 Cal.Rptr. 499 (1972) (noting that by default all "catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract").
AAU argues Nguyen fails to state a breach of contract claim for several reasons. AAU argues it entered into an express Enrollment Agreement with Nguyen, which controls this dispute. AAU correctly asserts that nowhere in the Enrollment Agreement did it promise to provide in-person instruction or access to on-campus services. What AAU neglects to mention is the Enrollment Agreement is not inclusive of all terms of the contract. (See Shorter Decl. Ex. 10, at 1 ("[This Enrollment Agreement] IS PART OF YOUR CONTRACT WITH THE UNIVERSITY").) Indeed, as Nguyen alleges and makes clear in his opposition, AAU made the promise to provide in-person instruction and access to on-campus services in its "marketing, advertisements, and other public representations," (Compl. ¶ 7), coupled with any statements made in the Enrollment Agreement. As such, these statements collectively formed the implied contract to where AAU allegedly promised to provide in-person instruction and access to on-campus services.
Even so, AAU argues Nguyen's breach of contract claim still fails because he does not identify specific statements in AAU's marketing, advertisements, and public representations from which it can be inferred AAU made this promise. To maintain his implied contract claim, Nguyen must identify those specific statements in AAU's publications that formed AAU's alleged promise. See, e.g., Bridget McCarthy v. Loyola Marymount Univ. , Case No.: 2:20-cv-04668-SB (JEMx), 2021 WL 268242, at *4 (C.D. Cal. Jan. 8, 2021) (finding plaintiff sufficiently identified a promise to provide in-person instruction where she identified numerous statements touting in-person teaching and on-campus experience); Ford v. Rensselaer Polytechnic Inst. , 1:20-CV-470, ––– F. Supp. 3d ––––, ––––, 2020 WL 7389155, at *4 (N.D.N.Y. Dec. 16, 2020) (finding plaintiff sufficiently identified specific statements in the university catalog touting the in-person nature of its program); Saroya , ––– F. Supp. 3d at ––––, 2020 WL 7013598, at *5 (finding plaintiff sufficiently identified a promise to provide in-person education where he consulted the university's course catalog, which provided "days and times" and "the location" where the courses would be held and identified various publications that reference the in-person nature and touted "campus life"); Salerno v. Florida S. Coll. , 488 F. Supp. 3d 1211, 1211 (M.D. Fla. 2020) (finding plaintiff sufficiently identified a promise to provide in-person education where she identified the university's publications touting its on-campus resources and facilities).
Here, Nguyen alleges AAU promised him in-person instruction and access to on-campus services through its "marketing, advertisements, and other public representations." (Id. ¶ 7.) Nguyen relies on statements contained in the Enrollment Agreement and Spring 2020 Catalog Addendum to bolster the allegations made in the complaint. Specifically, in the Enrollment Agreement, Nguyen and AAU agreed that he would pay the student activity fee. (Shorter Decl. Ex. 10, at 2.) As defined in the Spring 2020 Catalog Addendum, the Student Activity Fee "[c]overs various services provided on-campus. This includes services from the Academic Resource Center, some special events and bus services. Students taking one or more courses on-campus are charged this fee whether or not they avail themselves of the services." (Visslailli Decl. Ex. 16, at 28.) Students taking solely online courses need not pay this fee. (Id. ; see also Shorter Decl. Ex. 10, at 2 (Student activity fee is "[w]aive for on-line only students").) While Nguyen does not directly allege he paid the Student Activity Fee in the complaint, the parties agreed that AAU would bill him for this fee, and he paid fees for the Spring 2020 semester. (See Shorter Decl. Ex. 10, at 2.) It is thus fair to infer he expected to have access to on-campus services in exchange for his payment of fees. In turn, because this fee is only charged for those students enrolled for on-campus classes, it is likewise reasonable to infer that he paid tuition with the expectation to receive in-person instruction. The Court thus finds Nguyen alleges sufficient facts to state a breach of contract claim.
AAU argues that, even if an implied contract existed, its performance is excused because the COVID-19 pandemic rendered its performance impossible. The doctrine of impossibility would discharge AAU from performing under the contract if its performance was made impossible by a supervening event, the non-occurrence of which was a basic assumption on which the contract was formed. See Restatement (Second) of Contracts § 261 (Am. Law. Inst. 1981). AAU bears the burden of proving this affirmative defense. Hensler v. City of Los Angeles , 124 Cal. App. 2d 71, 83, 268 P.2d 12 (1954). An affirmative defense may not ordinarily be raised on a motion to dismiss. United States Commodity Futures Trading Comm'n v. Monex Credit Co. , 931 F.3d 966, 972 (9th Cir. 2019). "An affirmative defense may be considered if the defense is based on undisputed facts or if the basis for the argument appears on the face of the complaint and any materials the court takes judicial notice of." Ellsworth v. U.S. Bank, N.A. , 908 F. Supp. 2d 1063, 1083 (N.D. Cal. 2012).
The Court finds AAU's argument unavailing. To begin, it is unclear from the face of the complaint whether COVID-19 rendered it physically impossible to provide in-person instruction and on-campus services. See also Rosado v. Barry Univ. Inc. , CASE NO. 1:20-CV-21813-JEM, ––– F. Supp. 3d ––––, ––––, 2020 WL 6438684, at *4 (S.D. Fla. Oct. 30, 2020) ("Although the existence of COVID-19 is generally known and cannot reasonably be questioned, that does not conclusively establish the defense of impossibility ..., particularly given the overlapping and sometimes contradictory state and local regulations, and evolving standards, for dealing with the virus."). Moreover, AAU provides no authority supporting the application of impossibility in this context. Thus, the Court finds AAU has failed to carry its burden and declines to address this issue until these issues are fully developed.
Accordingly, the Court concludes that Nguyen alleges sufficient facts to state a breach of contract claim and DENIES AAU's motion to dismiss this claim.
AAU's remaining argument regarding the refund policy is more appropriate for summary judgment or trial. See also Saroya , ––– F. Supp. 3d at ––––, 2020 WL 7013598, at *6 (noting the university argument regarding its tuition refund policy is "more appropriate at the dispositive motion stage").
2. Nguyen Fails to Allege Sufficient Facts to State an Unjust Enrichment Claim.
The next issue is whether Nguyen sufficiently alleges facts to state his unjust enrichment claim. In California, there is no independent claim for unjust enrichment because unjust enrichment "describe[s] the theory underlying a claim that a defendant has been unjustly conferred a benefit through mistake, fraud, coercion, or request." Astiana v. Hain Celestial Grp., Inc. , 783 F.3d 753, 762 (9th Cir. 2015) (internal quotation marks omitted). While Nguyen raises an unjust enrichment claim, the Court "construe[s] the cause of action as a quasi-contract claim seeking restitution." Id. (quoting Rutherford Holdings, LLC v. Plaza Del Rey , 223 Cal. App. 4th 221, 231, 166 Cal.Rptr.3d 864 (2014) ; see also Bruton v. Gerber Prods. Co. , 703 F. App'x 468, 470 (9th Cir. 2017) ("[T]he California Supreme Court has clarified California law, allowing an independent claim for unjust enrichment to proceed[.]")).
AAU moves to dismiss Nguyen's unjust enrichment claims for two reasons. AAU first argues Nguyen cannot maintain both claims for breach of contract and unjust enrichment simultaneously. As a matter of law, a quasi-contract claim for unjust enrichment " ‘cannot lie where there exists between the parties a valid express contract covering the same subject matter.’ " Rutherford Holdings, LLC , 223 Cal. App. 4th at 231, 166 Cal.Rptr.3d 864 (quoting Lance Camper Mfg. Corp. v. Republic Indem. Co. , 44 Cal. App. 4th 194, 203, 51 Cal.Rptr.2d 622 (1996) ); see also Durell v. Sharp Healthcare , 183 Cal. App. 4th 1350, 1370, 108 Cal.Rptr.3d 682 (2010) ("As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract."). Nguyen is correct that, at the pleading stage, he may alternatively allege both a breach of contract claim and a quasi-contract claim. See Fed. R. Civ. P. 8(d)(2). But to do so, Nguyen must allege that the supposed contract between him and AAU was unenforceable or void. See Saroya , ––– F. Supp. 3d at ––––, 2020 WL 7013598, at *6 (noting a plaintiff may alternatively plead a breach of contract claim and quasi-contract claim only if "the plaintiff also pleads facts suggesting that the contract may be unenforceable or invalid"); Lennar Mare Island, LLC v. Steadfast Ins. Co. , No. 2:12-cv-02182-KJM-KJN, 2016 WL 829210, at *4 (E.D. Cal. Mar. 3, 2016) (same).
Here, Nguyen alleges an enforceable contract existed between him and AAU but fails to allege that the same contract was unenforceable or void. Accordingly, the Court finds he does not adequately plead his unjust enrichment claim. See also Saroya , ––– F. Supp. 3d at ––––, 2020 WL 7013598, at *6 (dismissing plaintiff's unjust enrichment claim because he "did not deny the existence or enforceability of the alleged enforceable agreement"); Lindner v. Occidental Coll. , Case No. CV 20-8481-JFW(RAOx), 2020 WL 7350212, at *9 (C.D. Cal. Dec. 11, 2020) (dismissing unjust enrichment claim where it was undisputed that the relationship between a student and a university was governed by a contract).
AAU also argues Nguyen fails to allege facts showing that it unjustly retained the tuition and fees at Nguyen's expense. To prevail on a quasi-contract claim based on an unjust enrichment theory, Nguyen must allege that AAU received a benefit, and it unjustly retained that benefit at Nguyen's expense. Lyles v. Sangadeo-Patel , 225 Cal. App. 4th 759, 769, 171 Cal.Rptr.3d 34 (2014). Merely conferring some benefit to another is insufficient by itself to require the other party to pay restitution. Peterson v. Cellco P'ship , 164 Cal. App. 4th 1583, 1593, 80 Cal.Rptr.3d 316 (2008). "There is no equitable reason for invoking restitution when the plaintiff gets the exchange which he expected." Id. at 1593, 80 Cal.Rptr.3d 316 (quoting Comet Theatre Enters., Inc. v. Cartwright , 195 F.2d 80, 83 (9th Cir. 1952) ). Here, Nguyen alleges that AAU promised him in-person instruction and access to on-campus services but failed to deliver on its promise. Despite AAU's failure to deliver on its promise, Nguyen alleges AAU has kept all the tuition and fees for which he paid. The Court finds these allegations sufficient to infer that AAU has unjustly retained the tuition and fees for which Nguyen paid.
Accordingly, the Court GRANTS, IN PART, and DENIES, IN PART AAU's motion to dismiss Nguyen's quasi-contract claim for unjust enrichment.
3. Nguyen Fails to Allege Sufficient Facts to State a Conversion Claim.
The last issue is whether Nguyen sufficiently alleges facts to state a conversion claim. "Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages[.]" Lee v. Hanley , 61 Cal. 4th 1225, 1240, 191 Cal.Rptr.3d 536, 354 P.3d 334 (2015) (internal quotation marks omitted).
AAU moves to dismiss Nguyen's conversion claim for three reasons. First, AAU argues Nguyen's conversion claim fails because it is based on the alleged breach of contract. A plaintiff may not ordinarily recover for the tort of conversion "for the breach of duties that merely restate contractual obligations." Aas v. Superior Court , 24 Cal. 4th 627, 643, 101 Cal.Rptr.2d 718, 12 P.3d 1125 (2000), superseded by statute on other grounds as recognized in Rosen v. State Farm Gen. Ins. Co. , 30 Cal. 4th 1070, 135 Cal.Rptr.2d 361, 70 P.3d 351 (2003). "Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law." Applied Equip. Corp. v. Litton Saudi Arabia Ltd. , 7 Cal. 4th 503, 515, 28 Cal.Rptr.2d 475, 869 P.2d 454 (1994). "An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty." Erlich v. Menezes , 21 Cal. 4th 543, 551, 87 Cal.Rptr.2d 886, 981 P.2d 978 (1999) (internal quotation marks omitted).
In support of his conversion claim, Nguyen alleges he has "an ownership right to the in-person educational services" for his payment of tuition and fees for the Spring 2020 semester. (Compl. ¶ 60.) According to Nguyen, AAU interfered with his ownership right when AAU "canceled in-person instruction[ ]" for the remainder of the semester. (Id. ¶ 61.) Nguyen claims that because AAU failed to deliver on its promise, AAU wrongfully converted the tuition and fees he paid for the Spring 2020 semester. (See id. ¶ 63.) These allegations make clear that Nguyen's conversion claim is premised on AAU's breached contractual duty to provide in-person instruction and access to on-campus services. Nguyen cannot recover though for conversion "for breach of duties that merely restate[s] [AAU's] contractual obligations." Aas , 24 Cal. 4th at 643, 101 Cal.Rptr.2d 718, 12 P.3d 1125 ; see also In re Columbia Tuition Refund Action , 20-CV-3208(JMF), 20-CV-3210(JMF), ––– F. Supp. 3d ––––, ––––, 2021 WL 790638, at *9 (S.D.N. Y Feb. 26, 2021) (dismissing plaintiffs' conversion claim where it was predicated on the university's contractual duty to provide in-person instruction and on-campus services).
The Court finds unpersuasive Nguyen's argument that he can maintain a conversion claim because it is based on an independent harm—AAU's alleged wrongful retention of his tuition and fees—and because he seeks additional punitive damages. Nguyen misunderstands the law. To maintain his conversion claim, he must allege AAU had an independent duty separate from its contractual duty that would show AAU's retention of his tuition and fees is unlawful. Applied Equip. Corp. , 7 Cal. 4th at 515, 28 Cal.Rptr.2d 475, 869 P.2d 454. Nguyen has not done so here.
Second, AAU argues Nguyen's conversion claim fails because it is a generalized claim for money. A generalized claim for money is not actionable as conversion unless there is a specific, identifiable sum involved. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP , 150 Cal. App. 4th 384, 395, 58 Cal.Rptr.3d 516 (2007). Nguyen "must specifically identify the amount of money converted, not that a specific, identifiable amount of money has been entrusted to [AAU]." Welco Elecs., Inc. v. Mora , 223 Cal. App. 4th 202, 216, 166 Cal.Rptr.3d 877 (2014).
Here, Nguyen alleges he paid a total of approximately $12,601.00 for tuition and fees for the Spring 2020 semester. (Compl. ¶ 9.) Nguyen does not seek to recover the entire amount of tuition and fees he paid but rather seeks an unspecified "pro-rata share of the tuition and fees" for AAU's alleged failure to provide in-person educational services, experiences, and opportunities. (Id. ¶ 63.) An obligation to pay an unspecified, nonidentifiable amount of a "pro-rata share of tuition and fees," as Nguyen does here, is insufficient to qualify for recovery under a conversion claim. See also Saroya , ––– F. Supp. 3d at ––––, 2020 WL 7013598, at *7 (dismissing conversion claim where plaintiff sought "unspecified ‘prorated portion’ of tuition and fees for educational services not provided"); Lindner , 2020 WL 7350212, at *10 (same); Salerno , 488 F. Supp. 3d at 1211 (same). Accordingly, Nguyen cannot recover for a conversion claim for a pro-rata share of his tuition and fees.
Third, AAU argues Nguyen fails to allege how it wrongfully asserted dominion over his personal property. However, because AAU fails to provide any legal authority to explain in support of its argument, the Court concludes it has failed to carry its burden on this ground.
Accordingly, the Court GRANTS AAU's motion to dismiss Nguyen's conversion claim.
CONCLUSION
For the above reasons, the Court GRANTS AAU's motion to dismiss. The Court also GRANTS Nguyen leave to amend the complaint. If Nguyen elects to do so, he shall file and serve it within 14 days of the date of this Order, and Stephens Institute shall file either an answer or move to dismiss within 20 days of service of the amended complaint.