Problem.Dispute.Bar examination instructor

     You are a law clerk for a judge sitting on a Court of Appeals of the State of California.  You prepared a memorandum for the judge summarizing the facts and argument in Rodriguez v. Burns, now pending before the Court. Your memorandum reads as follows:

     "In this case, the defendant, Mr. Burns, engaged the plaintiff, Ms. Rodriguez, to tutor Burns in preparation for the Somewhere State Bar Examination. The agreed compensation was $1,500.00, payable on completion of the tutoring, plus a $1,000.00 bonus payable in the event Burns passed the examination on his first attempt. Rodriguez agreed to provide twenty-five hours of tutoring during the three week period immediately preceding the examination.

     "During the week preceding the examination, after eighteen hours of tutoring and without any notification to Burns, Rodriguez left Somewhere to take a job with a bar review organization across the country. She therefore failed to render the final five hours of tutoring promised. In the week remaining before the examination, Burns did not have time to seek a replacement tutor. He passed the examination on his first attempt but has refused to pay Rodriguez any of the compensation promised despite her demand for payment of a pro rata portion of $2,500.

     "Rodriguez initiated this action seeking compensation for her tutoring services, alleging both a cause of action for breach of contract and a common count in quantum meruit. Burns answered and filed a cross-complaint seeking damages for breach of contract. Thereafter, the trial court granted cross-motions for summary judgment, adjudging Burns not liable on either cause of action of  the complaint and awarding Burns nominal damages ($5.00) on his cross-complaint. The Court of Appeals affirmed without opinion.  Rodriguez, but not Burns, appealed. 

     "In its rulings on the motions for summary judgment, the trial court denied relief on the Rodriguez contract claim upon a finding of material breach by Rodriguez, and denied relief on the Rodriguez common count relying on Fish v. Correll, 4 Cal. App. 521 (Cal. Ct. App. 1906).  In the pending appeal, appellee Burns urges us to apply Fish.    Appellant Rodriguez urges us to distinguish Fish, or to overrule it.

     Both parties also argue that their respective positions are supported by Restatement of Contracts First 357, which reads, in relevant part, as follows:

Where the defendant fails to perform his contract and is justified therein by the plaintiff's own breach of duty, but the plaintiff has rendered a part performance under the contract that is a net benefit to the defendant, the plaintiff can get judgment for the amount of such benefit in excess of the harm that he has caused the defendant by his own breach, if: (a) the plaintiff's breach or non-performance is not willful and deliberate; or (b) the defendant, with knowledge that the plaintiff's breach of duty has occurred, assents to the rendition of the part performance, or accepts the benefit of it.

      Rodriquez also claims support from R.2d Contracts 374, which reads, in relevant part, as follows:

. . . [I]f a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach. 

     California courts have not considered the question of restitution by a breaching party since the decision in Fish and therefore have not had occasion to consider the wisdom of either R.1st 357 or R.2d 374. 

     Rodriquez claims further support, by analogy, from U.C.C 2-607(1) and 2-714." 

     The judge returned the memorandum to you with the following note:  "Good start. Please flesh out with your evaluation of the arguments and a suggested resolution.  If you think that I should award restitution, how should I determine the appropriate amount?  Consider R.2d Contracts 371."  Outline the balance of the opinion or, even better, write it.