Filed 12/20/23 Francis Parker School v. O’Brien CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FRANCIS PARKER SCHOOL,

Plaintiff and Respondent,

v.

MICHAEL O’BRIEN et al.,

Defendants and Appellants.

 D081291

 (Super. Ct. No. 37-2020-

 00043797-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel and Eddie C. Sturgeon, Judges. Affirmed.

Law Offices of David J. Gittelman and David J. Gittelman; Law Offices 

of Mary A. Lehman and Mary A. Lehman for Defendants and Appellants.

Littler Mendelson and Mattheus E. Stephens for Plaintiff and 

Respondent.
2

Michael and Julie O’Brien1 appeal the summary judgment Francis 

Parker School (the School) obtained against them for withdrawing their 

children from the School and refusing to pay the balance of tuition for the 

academic year after the entire amount of tuition had become due, payable, 

and nonrefundable. The O’Briens contend: (1) the provisions of the contract

requiring them to pay the full amount of tuition for the academic year 

constitute an invalid provision for liquidated damages; (2) the superior court 

erroneously ruled the School had no obligation to mitigate damages; and 

(3) the court erroneously denied their motions to compel further responses to 

written discovery requests concerning the School’s efforts to mitigate 

damages. We reject the O’Briens’ contentions and affirm the judgment.

I.

BACKGROUND

A. Enrollment and Withdrawal

The O’Briens enrolled their four children in the School for the academic 

year from September 3, 2019, to June 12, 2020, on February 11, 2019. They 

did so by accessing the Web site of a third party (Tuition Aid Data Services) 

the School uses to provide a platform for enrollment of students, payment of 

tuition, and purchase of a tuition refund plan for students who withdraw. 

The following language appeared under the heading “School Terms and 

Conditions”: “By signing below, the person(s) completing this Tuition 

Agreement, expressly acknowledge and agree that you (we) are responsible 

for the full amount of tuition and the timely payment of tuition when Your 

student is accepted for enrollment, pursuant to the following terms and 

conditions:

1 The complaint identifies the defendants as Michael and Julie O’Brien. 

In their answer, the O’Briens assert “Michael” is erroneous and should be 

“Mike.”
3

“1. •The entire amount of tuition is due and payable on 

or before Friday, June 14, 2019, unless you withdraw 

your student before Friday, June 14, 2019. In the 

event the student withdraws on or after June 

14, 2019, tuition is NONREFUNDABLE.

“2. •Tuition payments will not be refunded or discharged 

in the event of an unpaid obligation if Your student is 

absent, withdraws, or is dismissed for any reason at 

any time.

“3. •[The School] is at no time required to offset its 

damages due to withdrawal by enrolling another 

student, nor is it obligated to mitigate its damages 

due to withdrawal or separation, in the event Your 

student withdraws or is otherwise separated from 

[the School].

“4. •In the unlikely event that tuition is not paid, or only 

paid in part, [the School] will exercise its right to 

collection to the fullest extent of the law, including 

but not limited to, sending the account to a collection 

agent of [the School’s] choice and/or legal action.”

The O’Briens electronically signed the Tuition Agreement. 

The O’Briens chose to pay the tuition in installments. That choice 

obligated them to purchase a tuition refund plan from another third party 

(A.W.G. Dewar, Inc.), which was offered “[i]n consideration of [the] 

unconditional obligation to pay the entire amount of tuition when [a] student 

is accepted for enrollment,” and would allow them to recover 75 percent of the 

unused tuition if the children withdrew from the School for certain reasons. 

The Tuition Agreement included an itemization of the tuition, transportation 

fee, and tuition refund plan premium for each child, which totaled 

$117,532.52. 
4

On August 30, 2019, the O’Briens withdrew their children from the 

School. By that time, they had made installment payments totaling $29,689, 

and, with interest and other charges, owed an additional $98,329.24. The 

O’Briens made no further payments.

B. Litigation

1. Pleadings

The School filed a complaint against the O’Briens in the superior court 

to recover the unpaid portion of the tuition for the 2019–2020 academic year. 

It asserted counts for breach of contract and two common counts (open book 

account and account stated). 

The O’Briens filed an answer in which they asserted a general denial 

and 22 affirmative defenses. The fourth affirmative defense was that the 

School was barred from recovery because it had failed to make any attempt to 

mitigate damages. The eighth affirmative defense was that the School’s 

recovery had to be reduced by any monies paid by students who filled the 

vacancies created by the withdrawal of the O’Briens’ children. No defense 

challenged any specific term of the tuition agreement as unenforceable.

2. Discovery

The O’Briens served the School with special interrogatories, demands 

for production of documents, and requests for admissions seeking information 

on admissions standards, student withdrawals, waiting lists, and efforts to 

fill the vacancies created by the withdrawal of their children before the 2019–

2020 academic year began. The School objected to the written discovery 

requests on the grounds, among others, that the requests sought information 

that was neither relevant nor likely to lead to the discovery of admissible 

evidence and the disclosure of which would violate the privacy rights of third 

parties. With exceptions for information or documents concerning the 
5

O’Briens’ children, the School provided no substantive responses to the 

interrogatories and produced no documents, admitted some requests for 

admissions, and denied others. 

The O’Briens filed motions to compel further responses to their written 

discovery requests. They argued the information they sought regarding the 

School’s admissions and waiting lists was relevant to mitigation of damages, 

and its disclosure would not violate anyone’s right to privacy. The School 

opposed the motions on the grounds it had no duty to mitigate damages and 

thus discovery on that issue was inappropriate, and disclosure of information 

about persons admitted or on a waiting list would violate their privacy rights. 

The superior court held a hearing and denied the O’Briens’ motions. 

The court ruled “discovery related to mitigation [of damages] is irrelevant or 

unlikely to lead to the discovery of admissible evidence given that the Tuition 

Agreement states: ‘[The School] is at no time required to offset its damages 

due to withdrawal by enrolling another student, nor is [i]t obligated to 

mitigate its damages due to withdrawal or separation, in the event Your 

student withdraws or is otherwise separated from [the School].’ ”

3. Summary Judgment

The School filed a motion for summary judgment or, in the alternative, 

for summary adjudication. (Code Civ. Proc., § 437c.) It argued there was no 

dispute the O’Briens withdrew their children after the full amount of tuition 

had become due, payable, and nonrefundable and did not pay the full 

amount. The School further agued the O’Briens had asserted no recognized 

defense to its claims. In support of the motion, the School submitted a 

declaration from the Head of School, who described in general the School’s 

planning, budgeting, and enrollment process, and in particular the O’Briens’ 

enrollment and withdrawal of their children for the 2019–2020 academic year
6

without paying the full amount of tuition, and authenticated the Tuition 

Agreement and other documents. The School also submitted a declaration 

from its counsel, who attached the Tuition Agreement, discovery responses, 

documents produced in discovery, and other documents. 

The O’Briens opposed the motion on several grounds. They argued: (1) 

the School failed to prove the existence of a contract, because the School did 

not sign the Tuition Agreement; (2) any portion of the tuition they did not pay 

was covered by the tuition refund plan they had purchased; (3) they could 

rescind the Tuition Agreement based on unilateral mistake, because they did 

not understand they would have to pay the full amount of tuition even if they 

withdrew their children; (4) the School interfered with the tuition refund plan 

by refusing to allow their children to attend the School for 14 days as 

required by the plan; (5) the School filled one of the vacancies created by the 

withdrawal of the children, and there were triable questions of fact on 

whether the School took reasonable steps to mitigate damages by trying to fill 

the others; and (6) the School could not satisfy the elements of its common 

counts. With their opposition, the O’Briens submitted declarations from 

themselves describing their enrollment and withdrawal of the children from 

the School and various communications they had with the School, and 

authenticating the Tuition Agreement, e-mail communications with the 

School, and other documents. The O’Briens’ counsel submitted a declaration 

authenticating and attaching discovery-related documents. 

The superior court held a hearing and granted the motion for summary 

judgment. The court ruled the School had proved the existence of a contract 

(the Tuition Agreement the O’Briens signed), its performance of the contract 

(by planning the academic year with the enrolled students in mind), the 

O’Briens’ breach of the contract (by refusing to pay the full amount of tuition 
7

after it became due, payable, and nonrefundable), and resulting damages 

($98,329.24 in unpaid tuition). The court rejected the arguments the 

O’Briens made in their opposition papers, including the argument about 

mitigation of damages. As to that argument, the court noted the O’Briens 

had provided no authority the duty to mitigate could not be waived and no 

evidence the provision relieving the School of that duty was unconscionable. 

The court further ruled the School’s evidence establishing the elements of the

count for breach of contract also established the elements of the common 

counts. 

The superior court later entered a judgment against the O’Briens for 

$98,329.24. From that judgment, they appealed. (Code Civ. Proc., §§ 437c, 

subd. (m)(1), 904.1, subd. (a)(1).)

II.

DISCUSSION

The O’Briens contend the superior court erred by granting the School’s 

motion for summary judgment. They argue the provisions of the Tuition 

Agreement requiring payment of full tuition, disallowing refunds, and 

relieving the School of any obligation to mitigate damages, even though they 

withdrew their children before the academic year started, amount to an 

unenforceable liquidated damages clause. The O’Briens alternatively argue 

that if the challenged provisions do not amount to an unenforceable 

liquidated damages clause, the superior court erred in ruling the School could 

contract out of its legal obligation to mitigate damages. They finally argue 

the court erroneously denied them discovery into the School’s actual damages 

and its efforts to mitigate damages. The O’Briens ask us to reverse the 

summary judgment and to remand the matter to the superior court with 

directions to allow them “to litigate the validity of the damages provisions of 
8

the Tuition Agreement and to allow discovery into [the School’s] actual 

damages, including whether and how [the School] exercised its duty to 

mitigate.” 

A. Order Granting Motion for Summary Judgment

We first consider the O’Briens’ challenge to the superior court’s order 

granting the School’s motion for summary judgment. Such a motion is 

properly granted when there is no triable issue of material fact and the 

moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 

§ 437c, subd. (c).) We review the order de novo. (Dore v. Arnold Worldwide, 

Inc. (2006) 39 Cal.4th 384, 388–389; Thompson v. Ioane (2017) 11 

Cal.App.5th 1180, 1195.) We must determine whether the School met its

initial burden to prove each element of its cause of action. (Code Civ. Proc., 

§ 437c, subd. (p)(1); Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 374; 

Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 

241.) If the School met its burden, we then must determine whether the 

O’Briens met their burden to submit evidence establishing a triable issue of 

material fact as to an element of the cause of action or a defense thereto. 

(Code Civ. Proc., § 437c, subd. (p)(1); Meda, at p. 374; Law Offices of Dixon R. 

Howell v. Valley (2005) 129 Cal.App.4th 1076, 1091–1092.) In making these 

determinations, we liberally construe the evidence in favor of the O’Briens as 

the parties opposing the motion and resolve all doubts about the evidence in 

their favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39; Dore, at p. 389; J.P. 

Morgan Trust Co. of Delaware v. Franchise Tax Bd. (2022) 79 Cal.App.5th 

245, 262.)

The School met its initial burden on the motion. To establish the count

for breach of contract, the School had to prove: (1) existence of a contract; (2) 

performance by the School; (3) nonperformance by the O’Briens; and (4) harm 
9

resulting from the nonperformance. (Aton Center, Inc. v. United Healthcare 

Ins. Co. (2023) 93 Cal.App.5th 1214, 1230; CSAA Ins. Exchange v. Hodroj 

(2021) 72 Cal.App.5th 272, 276.) The School did so by submitting the Tuition 

Agreement the O’Briens signed and the declaration of the Head of School, 

who authenticated the Tuition Agreement; stated the School had reserved 

spaces for the O’Briens’ children for the 2019–2020 academic year and 

budgeted and planned in consideration of their enrollment for the year;

asserted the O’Briens withdrew the children after the full amount of tuition 

had become due, payable, and nonrefundable without paying that amount;

and identified the balance due. This evidence also sufficed to establish a 

prima facie case for the common counts, which merely restated the count for 

breach of contract. (See Farmers Ins. Exchange v. Zerin (1997) 53 

Cal.App.4th 445, 460 [common count elements are statement of indebtedness 

in certain sum, consideration, and nonpayment]; Rains v. Arnett (1961) 189 

Cal.App.2d 337, 344 [common count available when defendant prevents full 

performance by plaintiff or repudiates contract].)

The burden then shifted to the O’Briens to “set forth the specific facts 

showing that a triable issue of material fact exists as to the cause of action or 

a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) In the superior 

court, they tried to meet this burden by showing that no contract existed, 

because the School did not sign the Tuition Agreement; that they could 

rescind the contract, because they were mistaken about their obligation to 

pay the full amount of tuition if they withdrew their children after the stated 

deadline; that the tuition refund plan would have paid the remaining balance 

had the School not prevented it from taking effect; and that the School could 

not recover the full amount of tuition, because it had filled one of the 

vacancies created by the withdrawal of their children and could have further 
10

mitigated damages by filling the others. (See pt. I.B.3., ante.) Except for the 

mitigation argument, which we discuss below, on appeal the O’Briens have

not renewed any of these arguments. We therefore deem the other 

arguments abandoned and do not address them. (Tiernan v. Trustees of Cal. 

State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Joshi v. Fitness 

Internat., LLC (2022) 80 Cal.App.5th 814, 826.)

The primary argument the O’Briens urge on appeal is a new one. They 

claim the provisions of the Tuition Agreement making the full amount of 

tuition for the 2019–2020 academic year due and payable by June 14, 2019, 

and nonrefundable if their children withdrew on or after that date and 

relieving the School of any obligation to mitigate damages together constitute 

an unenforceable liquidated damages clause. Citing Civil Code section 

1671,2 the O’Briens argue the Tuition Agreement is a “consumer contract” in 

which such a clause is presumptively void. (See, e.g., Cell Phone Termination 

Fee Cases (2011) 193 Cal.App.4th 298, 322.) The School responds that the 

O’Briens forfeited this argument by not making it in the superior court. The 

School is correct.

We generally do not permit a party to raise a theory for the first time 

on appeal from a summary judgment, because to do so would be unfair to the 

2 As relevant to the O’Briens’ argument, the statute provides: “The 

validity of a liquidated damages provision shall be determined under 

subdivision (d) . . . where the liquidated damages are sought to be recovered 

from . . . [a] party to a contract for the retail purchase, or rental, by such 

party of personal property or services, primarily for the party’s personal, 

family, or household purposes.” (Civ. Code, § 1671, subd. (c)(1).) Under 

subdivision (d), a “provision in [such] a contract liquidating damages for the 

breach of the contract is void except that the parties to such a contract may 

agree therein upon an amount which shall be presumed to be the amount of 

damage sustained by a breach thereof, when, from the nature of the case, it 

would be impracticable or extremely difficult to fix the actual damage.”
11

other party, which had no opportunity to respond to the theory, and to the 

superior court, which had no opportunity to consider it. (E.g., Meridian 

Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 698; Saville v. 

Sierra College (2005) 133 Cal.App.4th 857, 872–873; American Continental 

Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) Although 

the O’Briens asserted in their answer defenses regarding mitigation of 

damages and argued in opposition to the summary judgment motion that the 

School had a duty to mitigate, nowhere in the answer or in the opposition did 

they cite Civil Code section 1671 or assert the Tuition Agreement contained 

an unenforceable liquidated damages clause. The O’Briens correctly assert in 

their reply brief that we may consider a new theory that presents a pure 

question of law on undisputed facts. (Ryan v. Real Estate of the Pacific, Inc. 

(2019) 32 Cal.App.5th 637, 644; Dudley v. Department of Transportation 

(2001) 90 Cal.App.4th 255, 259.) But as the O’Briens also correctly assert in 

their opening and reply briefs, the validity of a liquidated damages clause 

involves questions of fact specific to the particular contract at issue. (Rice v. 

Schmid (1941) 18 Cal.2d 382, 385; Beasley v. Wells Fargo Bank (1991) 235 

Cal.App.3d 1383, 1394.) “[P]ossible theories that were not fully developed or 

factually presented to the trial court cannot create a ‘triable issue’ on appeal.” 

(American Continental Ins. Co., at p. 1281.) We conclude the O’Briens’

forfeited the argument based on section 1671. (Meridian Financial Services, 

Inc., at p. 700.)

The O’Briens alternatively argue the superior court erred by ruling 

that under the terms of the Tuition Agreement the School had no obligation

to mitigate damages. They rely on the general common law rule that a party 

injured by a breach of contract must take reasonable steps to mitigate its 

losses and cannot recover for losses it could have avoided had it done so. 
12

(Agam v. Gavra (2015) 236 Cal.App.4th 91, 111; Valle de Oro Bank v. 

Gamboa (1994) 26 Cal.App.4th 1686, 1691.) The O’Briens say they could find 

no California case holding the duty to mitigate can be waived by contract, 

and they contend the School had to attempt mitigation because to do so would 

not have required the sacrifice and surrender of important and valuable 

rights. We reject this alternative argument.

“A bedrock principle of contract law in California has always been that 

competent parties should have ‘ “ ‘the utmost liberty of contract’ ” ’ to arrange 

their affairs according to their own judgment so long as they do not 

contravene positive law or public policy.” (Series AGI West Linn of Appian 

Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164; see SouthWestern Pub. Co. v. Simons (9th Cir. 1981) 651 F.2d 653, 657 [“Parties are 

entitled to contract for anything that is not illegal.”].) In particular, a party 

may by contract waive a right, benefit, or advantage unless prohibited from 

doing so by statute. (Civ. Code, § 3513; Simmons v. Ghaderi (2008) 44 

Cal.4th 570, 585.) The Tuition Agreement explicitly relieved the School of 

any obligation “to offset” or “to mitigate” damages caused by the withdrawal 

of the O’Briens’ children after the full amount of tuition had become due, 

payable, and nonrefundable. That provision is presumptively fair, regular, 

and legal. (Civ. Code, §§ 3545, 3548; Wooton v. Coerber (1963) 213 

Cal.App.2d 142, 145.) It was the O’Briens’ burden to prove it was not. 

(Hamilton v. Abadjian (1947) 30 Cal.2d 49, 53; Fellom v. Adams (1969) 274 

Cal.App.2d 855, 863.) As the superior court noted in its order granting the 

School’s summary judgment motion: “The problem is that the O’Briens 

provided no authority that . . . mitigation cannot be waived.” They have not 

solved that problem on appeal.
13

Another problem with the O’Briens’ alternative argument is that “[n]o 

case has been called to our attention wherein this rule as to the duty to 

minimize the damages has been applied to a situation in which the 

defendant’s breach of duty consisted solely of the failure or refusal to pay a 

liquidated sum of money when due, and it may perhaps be doubted that the 

rule is applicable to such a case.” (Vitagraph, Inc. v. Liberty Theaters Co. 

(1925) 197 Cal. 694, 698–699.) Casting further doubt on the applicability of 

the rule are decisions of this and other Courts of Appeal that when a parent 

enrolls a student in a private school for a specified term, agrees to pay tuition 

by a certain date without reduction if the student does not complete the term, 

and the student separates from the school after that date, the parent is liable 

for payment of the full amount of tuition for the term. (Stewart v. Claudius 

(1937) 19 Cal.App.2d 349, 354–355 (Stewart) [school entitled to full amount of 

tuition, even though student was dismissed for violating school rule, when 

contract required full payment and disallowed refund]; Hoadley v. Allen 

(1930) 108 Cal.App. 468, 471–472 (Hoadley) [same]; Hitchcock Military 

Academy v. Myers (1926) 76 Cal.App. 473, 476–478 (Hitchcock) [same when 

student withdrew].) Each case endorsed the rule that a contract for a course 

of instruction for a specified term is “entire,” and a school is entitled to 

recover the agreed contract price whether or not a student completes the 

term. (Stewart, at p. 355; Hoadley, at p. 472; Hitchcock, at p. 476.)

The O’Briens try to avoid the cases cited in the previous paragraph by 

pointing out certain factual differences between those cases and theirs. For 

example, they note that in Stewart, supra, 19 Cal.App.2d 349, and Hoadley, 

supra, 108 Cal.App. 468, the students were dismissed for violating school 

rules, but the O’Briens withdrew their children. As noted above, however, 

Hitchcock, supra, 76 Cal.App. 473, applied the rule requiring full payment of 
14

tuition when a mother voluntarily withdrew her children from the school.

The O’Briens say the “two prerequisites” of Hitchcock, namely, that the 

student withdrew without any fault on the part of the school and that the 

resultant vacancy could not reasonably be filled, are not satisfied, because 

they “withdrew their children due to the school’s fault in not addressing 

[their] valid concerns” and the School could have filled the vacancies. Even if 

we assume those are “prerequisites” to application of the rule requiring full 

payment of tuition, they do not prevent application here. The first 

prerequisite pertains to a withdrawal “ ‘during the term of the 

contract’ ”(Hitchcock, at p. 477), not to a withdrawal, like that of the O’Briens’ 

children, before the term began. The second is satisfied. The Head of School 

stated that by the time the O’Briens withdrew their children (i.e., one 

business day before the start of the academic year), there was no active 

waiting list because students had enrolled in other schools and their families 

had assumed tuition obligations to those schools. The distinctions drawn by 

the O’Briens thus do not render the rule of Stewart, Hoadley, and Hitchcock

inapplicable. Rather, because the terms of the Tuition Agreement are 

substantially the same as the terms of the contracts in those cases, the rule of

those cases requiring full payment of tuition applies to this case. (See Civ. 

Code, § 3511 [“Where the reason is the same, the rule should be the same.”].)

The O’Briens also disparage Stewart, supra, 19 Cal.App.2d 349, 

Hoadley, supra, 108 Cal.App. 468, and Hitchcock, supra, 76 Cal.App. 473, as

“antiquated,” but they acknowledge the cases have not been overruled or 

disapproved. In fact, an appellate court in another state more recently cited 

all three cases in support of the following holding: “Under a contract 

whereby an educational institution agrees to provide instruction for a 

specified period and a parent of a student agrees to pay a definite sum for 
15

tuition and similar charges in consideration therefor, . . . where the contract 

expressly provides that no deduction or refund will be made, the entire 

tuition is payable despite the fact that the student withdraws from school. In 

these circumstances, the educational institution has no duty to mitigate 

damages.” (Princeton Montessori Soc. v. Leff (N.J.App.Div. 1991) 591 A.2d 

685, 687, italics added (Princeton Montessori); see Waterfront Montessori, 

LLC v. Xu (N.J.App.Div., Apr. 11, 2019, No. A-3388-17T3) 2019 WL 1567807, 

at p. *2 [declining to overrule Princeton Montessori]; Barrie School v. Patch 

(Md. 2007) 933 A.2d 384, 393 [“Courts around the country have addressed 

similar fact patterns and many have held that there is no duty to mitigate 

damages under these circumstances.”].) Under that holding, with which we 

agree, the School had no obligation to mitigate damages when the O’Briens 

withdrew their children after the date full tuition had become due, payable, 

and nonrefundable.

In sum, the Tuition Agreement “allocated to [the O’Briens] the risk that 

[their children] would not attend. Since the terms of the contract are clear 

and unambiguous, we are bound to enforce it as written.” (Princeton 

Montessori, supra, 591 A.2d at p. 690; see Bank of the West v. Superior Court 

(1992) 2 Cal.4th 1254, 1264 [“If contractual language is clear and explicit, it 

governs.”].) We thus reject the O’Briens’ argument the School had an 

obligation to mitigate its damages.

B. Order Denying Motions to Compel Further Discovery Responses

We next consider the O’Briens’ challenge to the superior court’s order 

denying their motions to compel further discovery responses from the School. 

A discovery order may be reviewed on appeal from the judgment (Code Civ. 

Proc., § 906; Deck v. Developers Investment Co., Inc. (2023) 89 Cal.App.5th 

808, 825), but the judgment will not be reversed based on an erroneous order 
16

unless the error “resulted in a miscarriage of justice” (Cal. Const., art. VI, 

§ 13; see People v. Landau (2013) 214 Cal.App.4th 1, 24; County of Nevada v. 

Kinicki (1980) 106 Cal.App.3d 357, 363). The O’Briens complain the court 

erroneously deprived them of discovery into the School’s mitigation of

damages after they withdrew their children before the academic year started. 

As we have explained, however, under the express terms of the Tuition 

Agreement the School had no obligation to mitigate, and the O’Briens were 

liable for the full amount of tuition for the year. The information they sought 

therefore would not have supported a defense to the School’s claim and

allowed them to defeat the motion for summary judgment. Since the 

O’Briens have “not show[n] how they would have received a more favorable 

outcome in this litigation had the trial court allowed them to conduct their 

requested discovery,” no miscarriage of justice requires reversal. (Property 

Reserve, Inc. v. Superior Court (2016) 6 Cal.App.5th 1007, 1020.)
17

III.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

KELETY, J.