Kashmiri v. Regents of the University of California

Opinion

Mohammad Kashmiri, Benson R. Cohen, Anupama K. Menon, Sally Schwettmann, John Alden, Janet Lee, Teddy Miller, and Jennifer Blake, individually and on behalf of a class of similarly situated persons (collectively, respondents), filed an action for injunctive and declaratory relief and for damages against The Regents of the University of California (the Regents or University) after the University increased various fees. The University asserts that it did not breach any contract with the students and, even if it did, this court should reduce the damages by the amount of grant money provided by the University to the students.

*815 We conclude that implied contracts were formed between the University and respondents. The University breached its contracts with the professional students when it raised the professional educational fees for continuing students after promising on its Web site and in its catalogues that such fees would not be raised for the duration of the students’ enrollment in the professional program. The University also breached its contracts with the students attending the spring and summer sessions in 2003 by raising the educational fees for these terms after the students had received bills specifying the exact amount to be paid. We also reject the University’s challenge to the damages award, since the record contains no facts to establish the amount the University now claims should be deducted from the award. Accordingly, we affirm the judgment of the lower court.

BACKGROUND 1

The Regents set and receive the educational fees for all students attending the University (or UC). 2 On January 21, 1994, the Regents approved a fee policy that included an educational fee for all UC students and a professional degree fee (PDF) for some UC graduate students.

The PDF

For the 1994-1995 academic year, the Regents imposed a PDF on all students in graduate professional degree programs, including dentistry, veterinary medicine, business/management, law, and medicine. In the 1996-1997 academic year, the University also charged the PDF for students enrolled in graduate programs in nursing, optometry, pharmacy, and theater, film, and television.

The PDF policy approved in January 1994 stated that the following factors would be considered when assessing the PDF: “the amount of resources required to sustain academic quality at, and enrollments in, the particular professional program; the ability of UC to remain competitive with other institutions; the cost of education for each specific program; the average fees charged by comparable public and private institutions for each specific program; overall State General Fund support for the University; and other market-based factors that permit University programs to compete successfully for students.” Additionally, the policy called for the PDF to “be phased in *816 over time so that the total fees charged to students enrolled in each of the five professional programs be similar to the average fee charged for that program by comparable, high-quality institutions across the nation.” At least one-third of the total fee revenue was to be “used to provide supplemental financial aid, including loan forgiveness programs, to help maintain the affordability of a professional school education . . . .”

When approving the professional fee policy, the Regents declared that “the level of the [PDF] remain 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, until such time as the fee for each professional program reaches approximately the average of fees charged for that program by comparable high-quality institutions across the nation.”

The office of the president of the university maintains on its Web site an annual guide to student fees and deposits, described as “ ‘the official guide for all University departments in the area of general University fees and deposits and miscellaneous University fees for which Regental or Presidential approval is required.’ ” Immediately following the foregoing language is the phrase, in bold font, “Fees are subject to change without notice.” Following this phrase are links to specified fees and other topics, including “Fee for Selected Professional School Students.” At the Web pages for the professional school students during the academic years of 1994-1995 to 2002-2003, the following statement was posted: “Increases in the Fee 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.” The particular schedules of the PDF were posted on the Web site of the office of the president of the university.

Additionally, from the academic year of 1994-1995 through the academic year of 2002-2003, the University’s annual budget documents provided: “Until the fee is fully phased in, the level of the [PDF] 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.”

The catalogues for Boalt Hall School of Law (Boalt) at UC Berkeley for the academic years of 1999-2000 and 2000-2001 stated the following: “The [PDF] is one component of the total fees for J.D. students. For students entering in [1999 or 2000], the [PDF] is $6,000 per year, and it will remain at that level for their three years in the J.D. program. Other components of total fees, however, could change.” Similarly, the Boalt catalogues for the academic years of 2001-2002 and 2002-2003 provided: “All students who enter the J.D. Program pay tuition and fees. The [PDF] is one component of the total fees. The professional degree fee remains at the same level for the three *817 years in which the student is enrolled in the program. Other components of total fees, however, could change.” 3

In addition to the various catalogues and the University’s Web site admonishing that fees were subject to change, 4 many catalogues for the professional schools cautioned that policies could be changed. Thus, Boalt’s catalogues for the academic years of 2001-2002 and 2002-2003 provided; “[UC] Berkeley reserves the right to add, amend, delete or otherwise modify its policies, information, rules and regulations. This includes, but is not limited to, the modification of its degree programs or courses of study; its rules affecting the admission and retention of students, or the granting of credit and degrees; the academic calendar, course offerings or course content; and its fees, tuition and other charges, whenever it deems such changes desirable or necessary.” Similarly, the UC Davis School of Law catalogues for the academic years of 2001-2002 and 2002-2003 contained the following language under the heading “Costs of Education”: “Tuition and fees are subject to legislative and gubernatorial action—they may change without notice.” 5

PDF Charged.

From 1994 until the 2002-2003 academic year, the University did not raise the PDF for continuing students. The PDF was increased three times during this period, but the increases applied only to incoming students. On December 16, 2002, the Regents approved increases in the PDF for the spring 2003 term for all professional students, both incoming and continuing students. The increases were as follows: $150 for nursing and theater, film, and television; $250 for pharmacy and optometry; $350 for veterinary medicine; and $400 for medicine, business, law, and dentistry.

On July 17, 2003, the Regents voted to increase the PDF by 30 percent for the academic year of 2003-2004, for continuing as well as for newly *818 enrolled students. For this academic year, the Regents charged the following PDF, no matter when the student entered the program: law, $9,473; medicine, $8,173; business, $9,360; dentistry, $8,060; veterinary medicine, $6,565; pharmacy, $4,875; optometry, $4,875; nursing, $2,925; and theater, film, and television, $3,185. Approximately 6,315 continuing professional degree students were impacted by the increase in the PDF.

The Regents again authorized an increase in the PDF for the academic year of 2004-2005, for both incoming and continuing students. These increases were as follows: $4,500 for business, medicine, and dentistry; $4,000 for veterinary medicine; $3,800 for law, pharmacy, and optometry; and $2,600 for theater, film, and television. The lowest PDF charged was $2,925 for nursing students and the highest was $15,792 for business students at UCLA. For the academic year of 2005-2006, the Regents increased the PDF by 3 percent above the fee of the prior year.

Educational Fee

The educational fee is a mandatory charge assessed against each student attending UC. In press releases the University warned students that further fee increases were likely and that the fees would depend upon the budget situation. In January 2003, the University posted on its Web site questions and answers regarding student fees. It advised, “The governor’s budget proposal for 2003-04 assumes these [PDF’s] will rise further in fall 2003” and that “further student fee increases in 2003-04 are likely given the severity of the state’s budget situation and the University’s commitment to protecting student instructional programs from cuts.”

In November and early December 2002, the University billed students for the spring term. The billing statements confirmed each student’s enrollment for the spring semester and set forth the specific amount that had to be paid by the applicable deadline. The billing statements did not warn that the price billed for the semester was subject to change. On December 16, 2002, the Regents approved a $135 fee increase for each student for spring 2003. 6 No spring 2003 student received individualized notice of an increase prior to receiving the original bill. Students started their spring semester in January 2003, and some students did not receive any notification about the increase until after they started spring classes. Between December 18, 2002, and February 5, 2003, the University notified students by e-mail of the higher educational fee, and subsequently sent them a written notice.

*819 Similarly, students were sent their bills for the summer 2003 session in February 2003, and the bills set forth a specific price that the student needed to pay by a certain deadline. In May 2003, after the students had been billed for the summer term, the Regents increased the summer 2003 fees by a range of $160 to $182 per student at UC Berkeley and $18 per unit at UCLA. The students received no individualized warning or notice of increased fees prior to the receipt of their bills. All of the in-state summer 2003 students at UCLA and UC Berkeley received individual notices of the fee increases prior to the deadline to withdraw from summer sessions with a full refund.

Filing the Lawsuit

On July 24, 2003, respondents—eight current or former UC students—filed this action on behalf of three subclasses of students. In August 2004, respondents filed their first amended complaint for injunctive and declaratory relief and damages. They asserted a breach of contract claim on behalf of the professional student subclass, a breach of contract claim on behalf of the spring 2003 student subclass, and a breach of contract claim on behalf of the summer 2003 student subclass.

The superior court certified three stipulated subclasses. The professional student subclass consisted of all students subjected to the PDF charge who first enrolled in their respective professional degree programs prior to December 16, 2002, and who paid an increased PDF after that date. The spring 2003 student subclass encompassed any students at UC who were billed, assessed, or charged fees for the spring 2003 semester prior to receiving individualized notice that the educational and/or PDF would be increased for that semester and whose educational and/or PDF were increased subsequent to that bill, assessment, or charge. Finally, the third subclass was comprised of the summer 2003 students. This subclass included any students at UC Berkeley or UCLA “who were billed, assessed, or charged fees for the summer 2003 session prior to receiving individualized notice that the per-unit and/or per-student fees would be increased for that session and whose per-unit and/or per-student fees were increased subsequent to that bill, assessment, or charge.”

Summary Judgment Motions

In the summer of 2004, respondents and the Regents filed cross-motions for summary judgment. In support of their motion for summary judgment, respondents submitted declarations stating that the unexpected fee increases significantly affected them. For example, a Boalt student withdrew from his fall 2003 semester classes because he did not have the funds to pay the increase; he returned to Boalt for the spring 2004 semester. Another Boalt *820 student did not participate in a planned externship at a nonprofit legal services organization but applied for part-time jobs in order to be able to pay the fee increase.

The trial court denied both summary judgment motions on January 24, 2005. The court denied the Regents’ motion on the merits. The court denied respondents’ motion because they failed to show they could prevail on an entire cause of action. They produced evidence to support the element of breach for each of their three contract claims, but they did not try to prove the amount of their alleged damages.

Subsequently, with regard to the issue of damages, the parties stipulated that the total fee increases “were not paid in full by all members of the affected” subclasses, because some members received scholarships, fellowships, grants and/or fee remissions “that paid or reimbursed, in whole or in part, the challenged increases” in the PDF and/or educational fee. According to the director of student financial support in the office of the president of the university, the receipt of aid resulted in many students not paying any fees. The director also reported that approximately 25 percent of the professional students did not receive gift aid and used their own resources or loans to pay the increases.

The parties entered into stipulations preserving the Regents’ legal positions, but permitting the superior court to resolve the case without trial. They stipulated to reasonable, good faith estimates that, because of the contested PDF increases, grant awards to the professional students rose by one-third of the fee increases in 2002-2003 and 2003-2004, and by one-quarter in 2004-2005 and 2005-2006. They also stipulated to reasonable, good faith estimates that grant awards for spring 2003 and summer 2003 students rose by approximately 40 percent and one-third, respectively, of the educational fee increases. In February 2006, the parties filed stipulated calculations of the contested fee increases charged to each subclass, the increases in gift aid resulting from the increases, and the appropriate prejudgment interest.

Court’s Statement of Decision

On March 2, 2006, the trial court issued its statement of decision granting respondents’ motion for summary judgment. The court stated that, in its earlier summary judgment ruling, it found that enforceable contracts existed between each of the three subclasses of students and the University and that the University breached those contracts by increasing the educational fees and the PDF.

With regard to the Regents’ argument that it had warned students that fees could be changed and therefore the PDF could be increased, the court found *821 that the disclaimer was “irreconcilable” with its promises not to raise the PDF. The court ruled that the more specific or exact term was more likely to express the intent of the parties. It therefore concluded that the more specific promise not to increase the PDF for the duration of a student’s enrollment was an exception to the general disclaimer that it may raise fees. The court explained: “There is an enforceable contract between the Professional Student Subclass and the University. That contract incorporated the University’s clear and unambiguous statements that it would not increase the students’ professional degree fee throughout their enrollment. The specific promise not to raise the professional degree fee is an exception to, and takes precedence over, general disclaimers that prices were subject to change. The students performed the contract by enrolling and by paying the professional degree fee for previous terms. The University breached the contract by unilaterally increasing the professional degree fee for the spring 2003 term and for subsequent years.”

With respect to the 2003 spring and summer student subclasses, the court found that the contract term at issue was the price for a specific semester or term. It stated that the University’s publications containing price information regarding upcoming semesters or terms were advertisements or invitations to enter a contract. When students enrolled in the classes, they made offers to purchase. The court determined that the University accepted the students’ offers when it sent them bills. The court stated that the University’s position that it could raise the fees by any amount at any time would put “students at the complete mercy of the University” and was unconscionable as was held in Gamble v. University of New Hampshire (1992) 136 N.H. 9, 14 [610 A.2d 357, 361] (Gamble). The court decided that, once the University billed or assessed students a certain price for the spring and summer 2003 terms and, in many cases, accepted payment from them, the University could not unilaterally demand a higher price without providing new consideration.

With respect to damages, the court noted that the parties had stipulated to the amount of the increased fees charged to each subclass. Pursuant to the stipulation, the professional student subclass was damaged by $34,287,787; the spring 2003 student subclass was damaged by $3,972,645; and the summer 2003 student subclass was damaged by $2,712,681.

The University sought to reduce these amounts by the amount of grant money received by the students. The trial court partially rejected this argument, because it concluded that the students could have used their grant money for living expenses or other costs if they had not been compelled to use this money for fees. The court, however, acknowledged that there was some increase in grant money as a result of the increase in the fees. The parties stipulated that grant awards to the professional student subclass *822 increased in an amount equal to approximately one-third of the contested PDF’s during the 2002-2003 and 2003-2004 academic years, and one-quarter of the contested PDF’s during the 2004-2005 and 2005-2006 academic years. The parties further stipulated that grant awards to the subclasses of the spring and summer 2003 students increased in amounts equal to approximately 40 percent of the contested educational fee increases in spring 2003 and one-third of the contested educational fee increases in summer 2003. The court found that the students would not have received these grant amounts in the absence of the fee increases, and it therefore reduced the students’ total damages by these amounts.

Accordingly, the court awarded the professional student subclass $23,901,219 ($34,287,787 less $10,386,568), plus prejudgment interest. It gave the spring 2003 student subclass the amount of $2,383,587 ($3,972,645 less $1,589,058), plus prejudgment interest. The summer 2003 student subclass received $1,808,454 ($2,712,681 less $904,227), plus prejudgment interest.

The court concluded that about 1,000 members of the professional student subclass had not yet graduated and it permanently enjoined the University from charging members of the professional student subclass any PDF greater than the amount charged when these students first enrolled in their professional degree program.

The Regents filed a timely notice of appeal. 7

DISCUSSION

I. Standard of Review for the Granting of Summary Judgment

The court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “[T]he *823 party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [107 Cal.Rptr.2d 841, 24 P.3d 493].) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) We review the record de novo. (Id. at

p. 860.)

H. The PDF

The University’s Web site contains a statement that fees can be changed without notice. Links follow this disclaimer, including a link for the fee for “[s]elected Professional School Students.” At the Web page for this link, the University declared that increases in the PDF would apply only to new students and that the PDF would remain “the same for each student for the duration of his or her enrollment in the professional degree program.” Various catalogues, including the catalogue for Boalt law students, included the statement that the PDF would remain at the same level while the student was enrolled in the program. The catalogues also cautioned that fees and policies could be changed.

It is undisputed that the Regents increased the PDF for the professional student subclass beyond the amount these students paid when they entered the professional program. Thus, the questions presented by this appeal are whether the University and this subclass of students have a contractual relationship and, if so, what are the terms governing that relationship.

A. The Relationship of the Students and the University

1. Contract Theory

The court in Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 10 [101 Cal.Rptr. 499] (Zumbrun) held that the basic legal relationship between a student and a private university is contractual in *824 nature. 8 Although Zumbrun concerned a private university, other courts have recognized that a contractual relationship applies equally to state universities. (See, e.g., Andersen v. Regents of University of California (1972) 22 Cal.App.3d 763, 769 [99 Cal.Rptr. 531].) Indeed, “ ‘[t]here seems to be almost no dissent from the proposition that the relationship’ ” “ ‘between a public post-secondary educational institution and a student’ ” “ ‘is contractual in nature.’ ” (Wickstrom v. North Idaho College (1986) 111 Idaho 450, 452 [725 P.2d 155, 157] (Wickstrom).)

“ ‘[B]y the act of matriculation, together with payment of required fees, a contract between the student and the institution is created ....’” (Andersen v. Regents of University of California, supra, 22 Cal.App.3d at p. 769; see also Searle v. Regents of University of California, supra, 23 Cal.App.3d at p. 452 [“students have certain contractual rights”].) When a student is attending a publicly financed institution of higher education, as in the present case, attendance is regarded as a benefit somewhat analogous to that of public employment. (Andersen, supra, at p. 770, citing Goldberg v. Regents of the University of California (1967) 248 Cal.App.2d 867, 877 [57 Cal.Rptr. 463].)

Although courts have characterized the relationship between the student and educational institution as contractual, they have recognized that contract law should not be strictly applied. 9 “ ‘The student-university relationship is unique, and it should not be and can not be stuffed into one doctrinal category. . . .’ ” (Lyons v. Salve Regina College (1st Cir. 1977) 565 F.2d 200, 202.) Universities are entitled to some leeway in modifying their programs from time to time to exercise their educational responsibility properly. (Mahavongsanan v. Hall (5th Cir. 1976) 529 F.2d 448, 450.) Additionally, courts have often deferred to any challenge based in contract to universities’ *825 academic and disciplinary decisions. (See, e.g., Ross v. Creighton University (7th Cir. 1992) 957 F.2d 410, 414-415 (Ross).)

The University insists that the lower court failed to apply this rule of “flexibility” when applying contract law to the present situation. We agree with the University that it is well settled that contract law is not always rigidly applied, especially in actions challenging the academic decision of a university or a student’s qualifications for a degree. (See, e.g., Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551 [42 Cal.Rptr.2d 110]; see also Ross, supra, 957 F.2d at p. 416 [“ ‘[cjourts are not qualified to pass an opinion as to the attainments of a student . . . and . . . courts will not review a decision of the school authorities relating to academic qualifications of the students’ ”].) “There is a widely accepted rule of judicial nonintervention into the academic affairs of schools.” (Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 808 [159 Cal.Rptr. 858, 602 P.2d 778] (Paulsen).)

Our Supreme Court in Paulsen applied contract law, although it noted that contract was not always the most apt description of the relationship between the student and educational institution. (Paulsen, supra, 25 Cal.3d at p. 811.) The court denied a student’s breach of contract claim based on the law school’s refusal to provide him a degree. (Ibid.) The court explained: “[A]fter [the student’s] academic disqualification [the law school] agreed to allow him to enroll in additional courses only on the express condition that he would not be eligible for a degree. Any contract between the parties would therefore have included that condition, and by its terms would have precluded awarding Paulsen a degree under any circumstances.” (Ibid.) Although the court applied contract law, in dicta it noted its doubts that the parties viewed their relationship as contractual. (Paulsen, supra, 25 Cal.3d at p. 811, fa. 7, citing Note, Developments in the Law: Academic Freedom (1968) 81 Harv. L.Rev. 1045, 1147 [“Although the framing of the student-university relationship in contractual terms may provide a potential source for some student curricular and extracurricular rights, it incorrectly portrays the manner in which the parties themselves view the relationship”].)

The University maintains that no case rejects “the rule of flexibility in a fee case, or states that it applies only to academic matters.” It further asserts that the lower court’s reliance on the “specific promise” exception as set forth in Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44 [67 Cal.Rptr.2d 850] is, according to the University, “illusory.” It is unclear what the University means by “illusory,” but we do agree that Shaw, which concerns the interpretation of a faculty member’s patent contract and the incorporation of the patent policy, is not particularly helpful when considering the type of contractual relationship between a student and a university.

*826 The University, however, ignores the types of cases that have applied the rule of flexibility to the relationship of the student and educational institution. Courts have applied contract law flexibly to actions involving academic and disciplinary decisions by educational institutions because of the lack of a satisfactory standard of care by which to evaluate these decisions. (See, e.g., Ross, supra, 957 F.2d at p. 414; see also Paulsen, supra, 25 Cal.3d at p. 808.) Courts also have been reluctant to apply contract law to general promises or expectations. (See, e.g., Basch v. George Washington University (D.C. 1977) 370 A.2d 1364, 1366-1367.) 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. (See, e.g., Ross, supra, at pp. 415-417; see also Steinberg v. Chicago Medical School (1977) 69 Ill.2d 320 [13 Ill.Dec. 699, 371 N.E.2d 634] [contract law applies to agreement that medical school application would be evaluated according to the criteria described by the medical school in its literature]; DeMarco v. University of Health Sciences (1976) 40 Ill.App.3d 474 [352 N.E.2d 356] [refusal to award M.D. degree for reasons unrelated to academic qualifications constitutes breach of contract]; Cencor, Inc. v. Tolman (Colo. 1994) 868 P.2d 396 [breach of contract action could be maintained against vocational school where there were allegations that school had made specific promises, such as promises to provide modem, functioning equipment, computer training, and qualified instructors, and did not do so]; Reynolds v. Sterling College, Inc. (2000) 170 Vt. 620, 621 [750 A.2d 1020, 1022] [contract formed when students paid enrollment fee and signed registration statement and one of the terms of the agreement was the catalogue statement about the effective refund policy].) Courts have uniformly held that a contract between an educational institution and a student “confers duties upon both parties which cannot be arbitrarily disregarded and may be judicially enforced.” 10 (DeMarco, supra, at pp. 361-362.) A breach of contract action regarding a specific promise about the fee to be charged is similar to a breach of contract action based on the failure to provide a specifically promised educational service.

The present action does not involve what is essentially an educational malpractice claim or a decision that involves disciplinary discretion. Moreover, it does not involve a general statement or expectation regarding the PDF. “Ruling on this [fee dispute] would not require an inquiry into the nuances of educational processes and theories, but rather an objective assessment” (Ross, supra, 957 F.2d at p. 417) of the University’s performance of its *827 promise. Accordingly, we conclude that contract law applies to the students’ claims regarding the increased fees.

2. Express or Implied-in-fact Contract

Respondents argue that the promise not to raise the PDF is an implied term of the students’ express contract with the University. The Regents counter that any promise regarding the PDF was part of an implied-in-fact contract, like those between employers and employees, not a term of an express contract. (See Pacella v. Tufts University School of Dental Med. (D.Mass. 1999) 66 F.Supp.2d 234, 241; Zellman v. Ind. School Dist. No. 2758 (Minn.Ct.App. 1999) 594 N.W.2d 216, 219; Mittra v. University of Medicine (App.Div. 1988) 316 N.J. Super. 83 [719 A.2d 693, 696-698].) Unilaterally promulgated written guidelines, according to the Regents, constitute an express contract only if “the parties expressly agreed that [the] guidelines governed [their relationship].” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 675, fn. 20 [254 Cal.Rptr. 211, 765 P.2d 373]; see also id. at pp. 677-682 (Foley).)

Respondents object to analogizing contracts between students and the University to those between employers and employees, because private employment is presumed to be at will and public employment is governed by statute. Thus, there is a presumption that the employer and employee relationship is not contractual. {Foley, supra, 47 Cal.3d at p. 676.) No such presumption exists in the context of the student and educational institution.

We need not determine whether the contracts between the University and the students are analogous to employment contracts. There were no formal agreements between the students and the University and, therefore, their agreements were implied-in-fact contracts. Respondents have not pointed to any express promise between the University and the professional student subclass that the University intended the terms in the catalogues or on the Web site to be binding. The terms of an express contract “are stated in words” (Civ. Code, § 1620), while the terms and the existence of an implied contract “are manifested by conduct” {id., § 1621).

In urging us to conclude that there was an express rather than an implied contract, respondents cite to the pronouncement in Zumbrun that “catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.” {Zumbrun, supra, 25 Cal.App.3d at p. 10.) In Zumbrun, the court held that a student who had paid tuition for a course had a cause of action for breach of contract after the instructor failed to deliver the anticipated number of lectures announced in the university catalogue. {Ibid.) The court expressed no opinion as to the merit of the *828 plaintiff’s claim, but held that the pleading could be amended to state a breach of contract claim. (Ibid.)

Similarly, here, respondents contend that the University breached its express promise on its Web sites and in its catalogues not to increase the PDF for continuing students. The promise not to raise the PDF for continuing students was clear and explicit. Consequently, respondents maintain that the University breached this provision when raising the PDF for continuing students.

The court in Zumbrun broadly stated that the catalogues become part of the contract between the student and the institution of higher learning. 11 However, federal courts have almost uniformly held that, in the absence of any formal agreement between the student and the college, the terms of the contract are implied. (See, e.g., Ross, supra, 957 F.2d at p. 417; Lyons v. Salve Regina College, supra,