Filed 2/29/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAMANTHA BERLANGA, et al.,

Plaintiffs and Appellants,

v.

UNIVERSITY OF SAN 

FRANCISCO,

Defendant and Respondent.

 A165976; A166231

 (San Francisco City & County

Super. Ct. No. CGC-20-584829)

During the COVID-19 pandemic, numerous universities including 

respondent University of San Francisco (USF) transitioned to remote, online 

learning. Appellants Samantha Berlanga, Joseph Oliva, Jasmine Moore 

(jointly, student appellants), and Amber Kaiser sued USF alleging it 

breached its promise to provide in-person instruction and should refund a 

portion of their tuition payments. The trial court granted USF’s motion for 

summary adjudication, concluding appellants failed to raise a triable issue of 

fact regarding whether USF promised to provide exclusively in-person 

instruction. We affirm.

BACKGROUND

Student appellants were enrolled at USF as undergraduate students in 

the spring 2020 semester. Prior to March 2020, they attended their USF 

classes in-person. 

On March 4, 2020, Governor Gavin Newsom declared a state of 

emergency in response to the global outbreak of COVID-19, a new disease 
2

caused by a “novel coronavirus.” That declaration emphasized the need to 

“mitigate the spread of COVID-19” due to concerns that “the number of 

persons requiring medical care may exceed locally available resources.” On 

March 16, 2020, the San Francisco Health Officer issued a shelter-in-place 

order requiring residents of San Francisco County to remain in their homes 

except when engaging in essential activities, and to stay at least six feet 

apart from other persons when leaving their homes. A few days later, the 

Governor issued an executive order requiring all Californians to stay at home 

except for essential activities.

As a result, USF was prohibited by law from holding large in-person 

gatherings, and USF suspended all in-person instruction and closed its oncampus facilities. USF announced all classes would transition to distance 

learning for the remainder of the semester.

In July 2020, USF announced instruction would be “primarily remote 

for the fall 2020 semester” due to a COVID-19 surge and California’s delay in 

reopening plans. USF informed students the San Francisco Department of 

Public Health “cannot tell us when we will receive clearance from the state to 

reopen campus for in-person instruction, so we are planning to conduct the 

entire fall semester remotely.” USF again informed students in October 2020

that the spring 2021 semester would also be conducted via distance learning. 

Student appellants continued to attend USF during these semesters. 

Appellants filed a complaint against USF alleging breach of contract, 

violation of the California Unfair Competition Law (Bus. & Prof. Code, 

§ 17200 et seq.; UCL), quasi-contract, and promissory estoppel. Appellant

Oliva filed a separate action alleging breach of contract, unjust enrichment, 

and conversion. Both complaints were filed as class actions.
3

These matters were consolidated into a single class action complaint for 

breach of contract, violation of the UCL, quasi-contract, and promissory 

estoppel. As relevant here, the consolidated complaint alleges “USF has not 

delivered the educational services, facilities, access and/or opportunities for 

which Plaintiffs and the proposed Class and Subclasses contracted and paid”

as a result of the transition to remote learning due to the COVID-19 

pandemic. It further asserts “[t]hrough the admission agreement and 

payment of tuition and fees, Plaintiffs and each member of the Class and 

Subclasses entered a binding contract with USF.” The complaint asserts 

USF “promised to provide certain services” pursuant to this contract, and 

appellants were “entitled to in-person educational services.”

USF moved for summary judgment or, alternatively, summary 

adjudication of the consolidated complaint. USF raised various arguments in 

support of its motion, including: (1) appellants failed to identify any specific 

promise by USF to provide them with in-person instruction “under all 

circumstances;” (2) USF was excused from providing any required in-person 

instruction by state and local orders related to COVID-19; (3) appellants

cannot now seek to modify the terms of any contract with USF; (4) appellants

failed to identify any practices by USF that violate the UCL; (5) appellants 

were aware USF would conduct classes either remotely or via a hybrid format

during the Fall 2020 and Spring 2021 semesters prior to paying tuition; 

(6) appellant Kaiser lacked standing; and (7) appellants’ arguments were

barred by the doctrine of educational malpractice. 

Appellants opposed the motion. They asserted a triable issue of fact 

existed regarding the terms of their contracts with USF. Appellants relied on 

the following statements from the admission letter to argue USF promised to 

provide in-person instruction: (1) “ ‘As a member of the USF community, you 
4

will join a dynamic student body that represents a diversity of cultures, 

interests, thoughts, and experiences’ ”; (2) “ ‘You will be challenged 

intellectually and encouraged to put thought into action, an important tenet 

of the nearly 500 years of Jesuit educational tradition that underpins and 

guides USF’ ”; (3) “ ‘You will develop amazing friendships and expand your 

horizons, and you will be surrounded by the best city ever”; (4) “Please join us 

at one of our admitted student visit days . . . to meet your future classmates 

and experience the richness of our university’ ”; and (5) “ ‘The [USF] family of 

faculty, students, and staff welcomes you, and I personally look forward to 

greeting you on campus . . . .’ ” 

Appellants also argued an implied-in-fact contract was formed based on 

conduct, custom, usage, and history. They contended USF’s 165-year history 

of in-person instruction, the course syllabi referencing the physical location of 

in-person classes, the course descriptions in the course catalog, and the 

student schedules stating the physical locations and times of in-person 

classes all indicate USF represented itself as a “residential university, 

offering in-person instruction and on-campus facilities.” Appellants noted 

none of these materials contained any reference to online instruction, and 

USF’s general reservation of rights1 cannot excuse its failure to provide 

promised services. 

Appellants further argued USF’s affirmative defenses of impossibility 

and educational malpractice were inapplicable, fact issues existed as to their 

UCL, quasi-contract, and promissory estoppel claims, and appellant Kaiser 

had standing.

1 USF’s catalog provides the information contained therein “is subject to 

change” and USF “reserves the right to revise its regulations and programs 

in accord with sound academic standards and requirements.” 
5

The trial court granted USF’s motion as to the breach of contract, 

breach of the implied covenant of good faith and fair dealing, quasi-contract, 

and promissory estoppel causes of action, but denied it as to the UCL cause of 

action.2 The court noted “[t]he fact and substance of Plaintiffs’ admissions 

letters offering them admission to USF . . . are undisputed.” The court 

explained the letters “do not contain any promise of in-person instruction, nor 

do they contain unqualified promises of exclusively in-person instruction even 

during an emergency like the COIVD-19 pandemic.” The court likewise 

concluded other documents referenced by appellants, such as syllabi, student 

schedules, and course catalogs, do not contain and “cannot give rise to a 

binding agreement for in-person instruction.” Accordingly, the trial court 

held appellants could not establish a breach “based on the failure to provide 

in-person instruction during the COVID-19 pandemic” or otherwise raise a 

triable issue of fact. 

The court also concluded appellants could not sustain a quasi-contract 

claim because they challenged the terms of their contract with USF, not its 

existence. Finally, the court rejected appellants’ promissory estoppel claim 

because “the undisputed evidence establishes that USF did not make clear 

and unequivocal promises” for in-person instruction. 

Appellants requested the court dismiss the UCL cause of action with 

prejudice, which the court granted. They now appeal. 

DISCUSSION

I. Standard of Review

“Summary judgment is appropriate when there are no triable issues of 

material fact such that the moving party is entitled to judgment as a matter 

2 We do not address the court’s holding on the UCL cause of action 

because that part of the ruling was not appealed.
6

of law on all causes of action.” (Choi v. Sagemark Consulting (2017) 18 

Cal.App.5th 308, 318 (Choi).)

“We review an order granting summary judgment de novo, applying the 

same three-step analysis as the trial court. [Citations.] First, we identify the 

causes of action framed by the pleadings. Second, we determine whether the 

moving party has satisfied its burden of showing the causes of action have no 

merit because one or more elements cannot be established, or that there is a 

complete defense to that cause of action. Third, if the moving party has made 

a prima facie showing that it is entitled to judgment as a matter of law, the 

burden of production shifts and we review whether the party opposing 

summary judgment has provided evidence of a triable issue of material fact 

as to the cause of action or a defense. [Citations.] A party opposing summary 

judgment may not ‘rely upon the allegations or denials of its pleadings’ but 

must set forth ‘specific facts’ beyond the pleadings to show the existence of a 

triable issue of material fact. [Citation.] The evidence must be viewed in the 

light most favorable to the nonmoving party.” (Choi, supra, 18 Cal.App.5th 

at p. 318.) We independently determine whether the record supports the 

trial court’s conclusions that the asserted claims fail as a matter of law, and 

we are not bound by the trial court’s stated reasoning or rationales. 

(Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)

II. Breach of Contract

The parties do not dispute that an implied-in-fact contract existed 

between USF and the appellant students, created via the students’ 

matriculation and payment of tuition and based on some but not necessarily 

all the information USF provided to matriculants in its catalogs, bulletins, 

circulars, and/or regulations. Rather, the parties dispute whether that 

contract committed USF to provide exclusively in-person instruction. 
7

A contract is either express, meaning it is stated in words, or implied, 

meaning its existence and terms are manifested by the conduct of the parties. 

As with any contract claim, a key element is the mutual assent of the parties 

to the contract. “ ‘[T]he vital elements of a cause of action based on contract 

are mutual assent (usually accomplished through the medium of an offer and 

acceptance) and consideration. As to the basic elements, there is no 

difference between an express and implied contract. While an express 

contract is defined as one, the terms of which are stated in words (Civ. Code, 

§ 1620), an implied contract is an agreement, the existence and terms of 

which are manifested by conduct (Civ. Code, § 1621). . . . [B]oth types of 

contract are identical in that they require a meeting of minds or an 

agreement [citation]. Thus, it is evident that both the express contract and 

contract implied in fact are founded upon an ascertained agreement or, in 

other words, are consensual in nature, the substantial difference being in the 

mode of proof by which they are established.’ ” (Pacific Bay Recovery, Inc. v. 

California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215.)

The question of whether the parties’ conduct evidences an implied-infact contract is generally a question of fact for the trier of fact unless the 

underlying facts are undisputed and support only one conclusion. (Foley v. 

Interactive Data Corp. (1988) 47 Cal.3d 654, 677, 682; Eisenberg v. Alameda 

Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386–1387).

A. The Parties’ Implied-In-Fact Contract

“[T]he basic legal relationship between a student and a private 

university is contractual in nature.” (Kashmiri v. Regents of Univ. of 

California (2007) 156 Cal.App.4th 809, 823–824 (Kashmiri) [a contract is 

created by the act of matriculation plus the payment of required fees].) 

However, courts “have recognized that contract law should not be strictly 
8

applied. . . . Universities are entitled to some leeway in modifying their 

programs from time to time to exercise their educational responsibility 

properly.” (Id. at p. 824) “Courts have applied contract law flexibly to 

actions involving academic and disciplinary decisions by educational 

institutions . . . . Courts also have been reluctant to apply contract law to 

general promises or expectations. [Citation.] Courts have, however, not been 

hesitant to apply contract law when the educational institution makes a 

specific promise to provide an educational service, such as a failure to offer 

any classes or a failure to deliver a promised number of hours of instruction.” 

(Id. at p. 826.)

Kashmiri, supra, 156 Cal.App.4th 809 provides a useful comparison in 

evaluating whether USF promised to provide exclusively in-person 

instruction. In Kashmiri, students alleged the university had promised not to 

impose certain fee increases on continuing students but rather only on new 

students. (Id. at pp. 815–816.) The students relied on three publications 

setting forth this “unequivocal” promise. (Id. at p. 833.) First, the Office of 

the President of the University’s “ ‘ “official guide for all University 

departments in the area of general University fees” ’ ” provided: “Increases in 

the Fee [for Selected Professional School Students] apply to new students 

only. The Fee will remain the same for each student for the duration of his or 

her enrollment in the professional degree program.” (Id. at p. 816.) Second, 

in connection with its approval of the fee policy, the Regents of the University 

of California declared, “ ‘the level of the [challenged fee] remains the same for 

each student for the duration of his or her enrollment in the professional 

degree program, with increases in the fee applicable to new students only.” 

(Ibid.) Finally, the university’s annual budget documents stated, “ ‘the level 

of the [challenged fee] remains the same for each student for the duration of 
9

his or her enrollment in the professional degree program, with increases in 

the fee applicable to new students only.’ ” (Ibid.) 

In evaluating these statements, our colleagues in Division Two clarified 

that not all statements in university catalogs and bulletins amount to 

contractual obligations. “[L]ike all obligations imposed pursuant to implied 

contractual terms, the contractual obligations imposed by the language in 

catalogues ‘center around what is reasonable.’ ” (Id. at pp. 828–829.) What is 

reasonable is based on the totality of the circumstances including the acts 

and conduct of the parties and the subject matter, and “the reasonableness of 

the student’s expectation is measured by the definiteness, specificity, or 

explicit nature of the representation at issue.” (Id. at pp. 831–832.) Applying 

these principles, the court concluded “it was reasonable for students to 

believe” the professional degree fees “would remain the same for the duration 

of that student’s enrollment in the professional program.” (Id. at p. 833.) 

The court thus held the university made a “specific promise” through its 

“unequivocal” statements, and not merely “a general statement or 

declaration.” (Ibid.)

Here, by contrast, there are no comparable “unequivocal” statements. 

Appellants rely on the following evidence to assert a contractual term for inperson instruction: (1) statements inviting them to “join a dynamic student 

body,” “develop amazing friendships,” “be surrounded by the best city ever,” 

and “join . . . one of our admitted student visit days,” and (2) documents 

referencing the physical locations of classes.

3 Unlike the statements in 

3 Appellant Berlanga also testified she received a “verbal promise[]” from 

“whoever was giving me the tour” of USF that “ ‘[t]his is where you’ll spend 

your four years at . . . USF.’ ” She does not identify who made this alleged 

promise and what authority, if any, that individual had to contract on behalf 

of USF.
10

Kashmiri which specifically mentioned fees, none of these statements provide

a specific promise of exclusive in-person instruction for the duration of the 

Spring 2020 semester. 

Moreover, the statements in Kashmiri provided specific details 

regarding the scope of how and when the fee increases would be applied—i.e., 

fees would stay the same for the duration of a student’s enrollment. 

(Kashmiri, supra, 156 Cal.App.4th at p. 816.) Here, even assuming the 

students were promised in-person instruction, appellants fail to identify the 

terms under which such in-person instruction and access to campus would be 

offered. (See e.g., Kashmiri, supra, 156 Cal.App.4th at p. 832 [“words, such 

as ‘estimated’ . . . were too indefinite to create a contractual obligation.”].) 

Appellants do not assert such statements entitle them to 24/7 access to every 

building on campus. Nor do they assert that a change in class location, from 

one building to another, would constitute a contractual breach based on the 

course catalog. And, in fact, appellants Moore and Oliva testified they did 

not interpret the admission letter as promising in-person instruction during a 

health and safety emergency.

The generality of USF’s statements is particularly pronounced when 

compared to the specific and repeat promises in Kashmiri regarding fee 

increases. At most, these statements, construed in a light most favorable to 

appellants, support the proposition that USF made sufficiently specific 

representations to infer a contractual promise to provide some in-person 

instruction and on-campus services in exchange for appellants’ tuition. But 

the record does not support an inference of exclusively in-person instruction 

under the circumstances of a global health and safety emergency. 

Appellants also fail to identify specific evidence of past conduct or 

custom to support their contract claims. While USF has generally provided 
11

in-person instruction and access to its campus, appellants have not identified

any evidence that USF has historically provided in-person instruction during 

public health or safety emergencies. Nor do they identify any evidence 

indicating an expectation that USF would offer in-person instruction during 

such emergencies. 

In Randall v. Univ. of the Pac., (N.D. Cal., May 28, 2022, No. 5:20-CV03196-EJD) 2022 WL 1720085 (Randall)), the Northern District of California 

considered a similar claim arising from the failure to provide in-person 

instruction during the COVID-19 pandemic. (Id. at p. *2.) The plaintiff 

relied on general statements in university materials that referenced 

(1) consulting faculty advisors, (2) engaging in experiential learning, 

(3) accessing a personalized learning environment, and (4) engaging in 

collaboration, as well as documents identifying (1) campus locations for 

classes, (2) lab components of classes, (3) attendance policies, (4) an oncampus credit requirement, (5) residence policies, and (6) an “online” format

designation for certain classes to support his breach of contract claim. (Ibid.) 

The court granted summary judgment, relying on Kashmiri to explain the 

plaintiff “must offer evidence of a specific, unequivocal promise by [the 

university] that it would provide in-person instruction and services. . . . 

Plaintiff uses various, vague statements in [the university’s] promotional 

materials and course catalogs to demonstrate a specific promise. This is 

insufficient.” (Id. at p. *6.) The court held these statements and publications 

“created an expectation that classes would be taught in-person and that 

students would be able to take advantage of a myriad of on-campus 

opportunities,” but “do not contain any specific or identifiable promise that is 

adequate to support a breach of contract, even one implied in fact.” (Ibid.)

We agree with the Randall court’s analysis.
12

We recognize some federal authorities have found comparable evidence 

sufficient to raise a fact issue regarding in-person instruction.4 (See, e.g., In 

re Pepperdine University Tuition and Fees COVID-19 Refund Litigation (C.D. 

Cal. 2023) 659 F.Supp.3d 1086, 1094; Arredondo v. University of La Verne

(C.D. Cal. 2022) 618 F.Supp.3d 937, 946.) We are not bound by these 

authorities and, in any event, find their reasoning flawed to the extent they 

rely on generalized statements regarding campus experiences or facilities. 

Such generalized statements fail to delineate the specific terms under which 

the universities were offering in-person instruction or campus access as 

required by California law. (See Weddington Productions, Inc. v. Flick (1998) 

60 Cal.App.4th 793, 811 [“If . . . a supposed ‘contract’ does not provide a basis 

for determining what obligations the parties have agreed to, and hence does 

not make possible a determination of whether those agreed obligations have 

been breached, there is no contract.”]; Ladas v. California State Auto. Ass’n

(1993) 19 Cal.App.4th 761, 770 [“To be enforceable, a promise must be 

definite enough that a court can determine the scope of the duty and the 

limits of performance . . . .”].) And these cases assume the promise for inperson instruction was made without exception. 

4 Appellants also rely on various cases (1) decided at the motion to 

dismiss stage, or (2) outside California. We find those cases distinguishable 

because they either require a different evidentiary showing from the parties 

(see Randall, supra, 2022 WL 1720085 at p. *6 [“While this Court concluded 

at the motion to dismiss stage that Plaintiff had sufficiently alleged facts that 

could show a specific promise by Defendant to hold in-person instruction and 

services, at the summary judgment phase Plaintiff must provide evidence 

supporting his assertion that Defendant made express promises. Statements 

in the course catalog about the ‘days and times’ and the ‘location’ of courses 

are not express promises to provide in-person instruction.”]) or do not apply 

California law.
13

While we recognize that all parties expected classes to be conducted inperson, those general expectations do not amount to an enforceable term of 

the parties’ contract. (Kashmiri, supra, 156 Cal.App.4th at p. 832 [“ ‘At best, 

these words expressed an expectancy by the [educational institution] . . . .

This is not a promise susceptible of enforcement.’ ”].) Interpreting general 

statements about campus life as binding contracts for in-person instruction or 

access to campus facilities without exception places universities in an 

impossible situation—violating state and/or local stay-at-home orders or 

breaching their contracts with students. We cannot conclude it is objectively 

reasonable that universities agreed to such an arrangement. (Accord Vierra 

v. Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 1142, 1148 [“A 

contract must be lawful [citation]; i.e., it must not be in conflict either with 

express statutes or public policy.].) 

The underlying facts are undisputed, and California law supports only 

one conclusion from this record: that appellants failed to raise a triable issue 

of fact as to whether USF contractually committed to offering exclusively inperson instruction during a global pandemic. Accordingly, the trial court did 

not err in granting summary adjudication of this claim.

B. Appellants’ Additional Challenges to the Court’s Ruling on 

the Breach of Contract Claim

Appellants raise two additional arguments in connection with the 

court’s ruling on their breach of contract claim. First, they assert the trial 

court erred by concluding their complaint only alleged breach of an express 

contract rather than an implied-in-fact contract. Second, appellants assert 

the court only relied on the admission letter rather than USF’s past conduct 

in rejecting its implied-in-fact contract theory. Both arguments fail.
14

Contrary to the arguments in appellants’ brief, the court did not reject 

their breach of contract claim based solely on an express contract theory. The 

court evaluated whether an implied contract was formed and concluded the 

various documents at issue, such as the admissions letter, syllabi, student 

schedules, and course catalogs, did not give rise to a binding agreement for 

in-person instruction. The court explained (1) these materials do not contain 

promises or definite offers to provide in-person instruction; (2) appellants 

failed to explain how professors could bind USF to contract terms by 

providing students with syllabi; and (3) documents such as syllabi and 

student schedules were not provided at the time of enrollment and thus could 

not have been part of the accepted offer.

Second, the court properly focused on the admissions letter because 

that document formed the basis for appellants’ breach of contract allegations. 

The complaint states appellants entered into a binding contract with USF 

“[t]hrough the admission agreement and payment of tuition and fees.” The 

complaint does not identify any other documents or conduct as either forming 

or supplementing the contractual relationship between the parties. Nor have 

appellants identified any “conduct” the trial court failed to consider. A

plaintiff opposing summary judgment may not raise facts or legal theories 

not encompassed by his complaint to defeat a summary judgment motion. 

(See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 & fn. 7 

[“The complaint limits the issues to be addressed at the motion for summary 

judgment. The rationale is clear: It is the allegations in the complaint to 

which the summary judgment motion must respond.”]; accord Youngman v. 

Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 246–247 [plaintiff alleging 

cause of action for an implied-in-fact contract must plead “the facts from 

which the promise is implied.”].) Accordingly, the trial court properly 
15

evaluated appellants’ claims based on the complaint allegations, and 

appellants do not assert they ever sought to amend their complaint to 

conform to proof. 

C. Fall 2020 and Spring 2021 Semesters

In addition to contesting the switch from in-person to remote learning 

in the Spring 2020 semester, appellants assert they should receive tuition 

refunds for the ongoing remote instruction in the Fall 2020 and Spring 2021 

semesters. 

As USF correctly notes, appellants were aware these semesters would 

be conducted either entirely remotely or in a hybrid format prior to enrolling 

or paying tuition for those semesters. In May 2020, USF alerted students of 

the possibility that the Fall 2020 semester would be either remote or a hybrid 

format. In July 2020, USF informed students the Fall 2020 semester would 

primarily be remote. Tuition for that semester was not due until August 

2020. Similar information was provided in advance of the Spring 2021 

semester. Accordingly, appellants could not reasonably have believed USF 

contractually promised to provide an in-person education for the Fall 2020 

and Spring 2021 semesters. 

While appellants contend it would have been disruptive to pause their 

education or transfer to a different university, their breach of contract claim 

fails because they have not identified any contract with USF for in-person 

instruction during those semesters. 

D. Implied Covenant of Good Faith and Fair Dealing

“The covenant of good faith is read into contracts in order to protect the 

express covenants or promises of the contract, not to protect some general 

public policy interest not directly tied to the contract’s purposes.” (Foley v. 

Interactive Data Corp., supra, 47 Cal.3d at p. 690.) “Without a contractual 
16

relationship, [a plaintiff] cannot state a cause of action for breach of the 

implied covenant.” (Smith v. City and County of San Francisco (1990) 225 

Cal.App.3d 38, 49.) “In essence, the covenant is implied as a supplement to 

the express contractual covenants, to prevent a contracting party from 

engaging in conduct which (while not technically transgressing the express 

covenants) frustrates the other party’s rights to the benefits of the contract.”

(Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.) It “cannot 

impose substantive duties or limits on the contracting parties beyond those 

incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. 

Inc. (2000) 24 Cal.4th 317, 349–350.)

As discussed above, the evidence does not raise a triable issue of fact as 

to whether the parties entered into an agreement for USF to provide 

exclusively in-person instruction under the circumstances of a global 

pandemic. USF’s switch from in-person to remote instruction, as required by 

state and local stay-at-home orders, did not frustrate appellants’ rights to any 

contract benefits and thus did not violate the implied covenant of good faith 

and fair dealing.

III. Appellants’ Remaining Claims

Appellants also challenge the trial court’s order granting summary 

adjudication of their quasi-contract and promissory estoppel claims. We 

address each below.

A. Quasi-Contract Claims

Appellants assert the trial court erroneously granted summary 

adjudication of its quasi-contract claim because parties may bring such 

claims when there is either no express contract or the contract is 

“unenforceable or ineffective for some reason.” 
17

A cause of action for quasi-contract “cannot lie where there exists 

between the parties a valid express contract covering the same subject 

matter.” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 

221, 231; see also Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 

1388 [“[a] plaintiff may not . . . pursue or recover on a quasi-contract claim if 

the parties have an enforceable agreement regarding a particular subject 

matter.”].) “[A] plaintiff may not plead the existence of an enforceable 

contract and simultaneously maintain a quasi-contract claim unless the 

plaintiff also pleads facts suggesting that the contract may be unenforceable 

or invalid.” (Saroya v. Univ. of the Pac. (N.D. Cal. 2020) 503 F.Supp.3d 986, 

998; see also Nguyen v. Stephens Inst. (N.D. Cal. 2021) 529 F.Supp.3d 1047, 

1057 [dismissing quasi-contract claim because plaintiff “alleges an 

enforceable contract existed . . . but fails to allege that the same contract was 

unenforceable or void.”]; Lindner v. Occidental Coll. (C.D. Cal., Dec. 11, 2020; 

Case No. CV 20-8481-JFW), 2020 WL 7350212, at *9 [dismissing unjust 

enrichment claim where it was undisputed that the relationship between a 

student and a university was governed by a contract].) Conversely, a plaintiff 

may pursue restitution on a quasi-contract theory when “performance of an 

otherwise valid contract has been rendered impossible.” (In re Pepperdine 

Univ. Tuition & Fees COVID-19 Refund Litig., supra, 659 F.Supp.3d at 

p. 1095; see also Arredondo, supra, 618 F.Supp.3d at pp. 946–948 [denying 

summary judgment on quasi-contract claim where the plaintiffs had 

demonstrated the existence of an implied contract, but defendant had shown 

performance was impossible].)

Here, the court found—and the parties both acknowledge—there was a 

contract between student appellants and USF regarding their enrollment.

The court also did not find that contract unenforceable or invalid. Rather, 
18

the court concluded the terms of the contract did not guarantee students 

exclusive in-person instruction during a global pandemic. Because a valid 

and enforceable contract existed between student appellants and USF 

regarding their enrollment, albeit without the terms they sought, appellants 

are precluded from pursuing their quasi-contract claim. 

B. Promissory Estoppel

In support of their promissory estoppel claim, appellants rely on the 

same evidence cited in connection with their breach of contract claim. Again, 

appellants contend this evidence raises a triable issue of fact as to whether 

USF promised to provide exclusively in-person instruction. As explained in 

Part II.A., the record does not reflect any such promise. Accordingly, the trial 

court properly granted summary adjudication of this claim.

Moreover, we note “[an] action for promissory estoppel is a claim in 

equity that substitutes reliance on a promise for consideration ‘in the usual 

sense of something bargained for and given in exchange.’ [Citation.] If 

actual consideration was given by the promisee, promissory estoppel does not 

apply.” (Fleet v. Bank of Am. N.A. (2014) 229 Cal.App.4th 1403, 1412–1413.) 

Here, appellants provided actual consideration—i.e., payment of tuition. 

Their promissory estoppel claim also fails on that basis.5

DISPOSITION

The trial court’s order granting USF’s motion for summary adjudication

is affirmed. USF is entitled recover its costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(1), (2).)

5 Appellants assert triable issues of fact remain as to various defenses 

asserted by USF. We need not reach these issues, including the question of 

appellant Kaiser’s standing, because we conclude appellants failed to 

establish triable issues of fact as to their claims.
19

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Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Rodríguez, J.

A165976;A166231/Berlanga et al., v. University of San Francisco
20

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Andrew Y.S. Cheng

Counsel: Keller, Fishback & Jackson, Stephen M. Fishback, Tenny 

Mirzayan; Bursor & Fisher, L. Timothy Fisher, Frederick J. 

Klorczyk III, and Brittany S. Scott; The Arkin Law Firm, 

Sharon J. Arkin for Plaintiffs and Appellants. 

Holland & Knight, Vito A Costanzo, Kristina S. Azlin, 

Stacey H. Wang, and Qian Shen, for Defendant and 

Respondent.