Neis v. Regents of University of California, A113146 (Cal. App. 5/30/2007)

• Decision Date: 30 May 2007
• Docket Number: A113146
• Court: California Court of Appeals Court of Appeals
• Parties: HANSJOACHIM NEIS, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

Page 1

HANSJOACHIM NEIS, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

A113146

Court of Appeals of California, First Appellate District, Division Three

May 30, 2007

NOT TO BE PUBLISHED

Appeal from the Alameda County, Super. Ct. No. RG03093559.

McGUINESS, P.J.

This appeal marks the second time we have been called upon to address claims by architecture professor Hansjoachim Neis arising from his denial of tenure at the University of California, Berkeley (University). Over two years ago, we affirmed a judgment denying Neis's petition for writ of mandate against the Regents of the University of California (Regents). (Neis v. Regents of the University of California (Mar. 21, 2005, A102479) [nonpub. opn.] (Neis I).) While that appeal was pending, Neis filed a new civil complaint against the Regents alleging claims for discrimination, fraud and violation of public policy. The trial court concluded two of these claims were barred by res judicata and one was barred by governmental immunity; accordingly, it dismissed Neis's second complaint at the pleadings stage. We conclude these rulings were proper and affirm this second judgment in favor of the Regents.

BACKGROUND

I. University Proceedings

In November 1990, after a split faculty vote, the University's Department of Architecture (Department) hired Neis as an assistant professor to teach courses in "building process theory," which was his field of specialization. At the time, the dean of the University's College of Environmental Design remarked that the vote appeared to reflect many faculty members' concerns about the building process discipline and observed that it might prove impossible for Neis to achieve tenure. Unaware of this gloomy prediction, Neis accepted the appointment and moved to Berkeley from Japan. Neis applied for promotion to tenure in June 1997. Despite an initial endorsement from an internal review committee, in October 1997 the Department's faculty voted to deny tenure.

During the next two years, Neis availed himself of the University's internal review procedures. The decision to deny Neis tenure was approved after further review by the Campus Ad Hoc Review Committee (Ad Hoc Committee), the University's Budget Committee, and, ultimately, the Privilege and Tenure Committee of the University's Academic Senate (Privilege and Tenure Committee or Committee). Represented by counsel, Neis filed a formal grievance with the Privilege and Tenure Committee claiming the faculty had relied on three impermissible criteria in denying tenure: (1) his professional relationship with architecture professor Christopher Alexander (a controversial figure in the Department); (2) his adherence to building process theory; and (3) "[h]is ethnicity as a person of German national origin." The Committee observed it had found much in the Ad Hoc Committee's report that justified the decision to deny tenure, but it concluded further review was necessary because the Ad Hoc Committee gave excessive deference to prior levels of review. After the evidence was reexamined by a new ad hoc committee, which included a representative from Neis's discipline from the architecture faculty of another University of California campus, the denial of tenure was approved yet again. Neis's position at the University was terminated effective June 30, 2000.

II. Neis I

Neis then initiated his first civil lawsuit against the Regents. On September 6, 2000, Neis filed a civil complaint against the Regents seeking damages and injunctive relief for fraud, discrimination and violation of public policy. The trial court sustained two successive demurrers to all causes of action based on Neis's failure to exhaust judicial remedies or allege facts justifying his failure to seek a writ of mandate before filing suit. Rather than amend his complaint after the second demurrer was sustained, Neis filed a petition for writ of mandate under the same superior court case number. Based on the same factual allegations stated in the prior complaints, the petition sought to vacate the University's denial of Neis's grievance. On March 4, 2003, the trial court denied the petition after a hearing. Although the order did not elaborate on the court's reasons for denying the petition, it included two paragraphs addressing an "issue injected into the matter concerning whether the decision of the Privilege and Tenure Committee has collateral estoppel effect on certain of the issues at bar." Because Neis did not claim fraud in the inducement during the grievance process, and because the Privilege and Tenure Committee apparently gave Neis's national origin discrimination claim only cursory treatment, the trial court observed these claims did not appear to be subject to collateral estoppel.

Neis appealed, and on March 21, 2005, we issued an opinion affirming the judgment on his petition. We concluded Neis waived his challenge to the trial court's rulings on demurrer when he amended his complaint to petition the court for a writ of mandate. On the merits, we concluded the University's decision to deny tenure was not arbitrary or capricious and was supported by sufficient evidence. Finally, in a section titled "Collateral Estoppel Issues Are Beyond Scope of the Appeal," we addressed arguments Neis had attempted to raise about the collateral estoppel effect of the Privilege and Tenure Committee's decision and the trial court's demurrer rulings. We stated: "To the extent Neis's arguments seek to revisit the merits of the order on the demurrer, they are procedurally improper because Neis waived his right to challenge this ruling. (Leibert v. Transworld Systems, Inc. [(1995)] 32 Cal.App.4th [1693,] 1698-1699.) To the extent these arguments are an attempt to determine whether decisions by the University's committees will be entitled to preclusive effect in separate litigation raising claims of discrimination and fraud, they raise an issue not properly before us in this appeal. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084 [courts may not adjudicate hypothetical claims or issue advisory opinions, especially when the factual record in a case is inadequate to support the arguments].)" (Neis I (Mar. 21, 2005, A102479) [nonpub. opn.].)

III. Neis II

Neis's concern with collateral estoppel issues is undoubtedly explained by the fact that he had filed a new civil complaint against the Regents on April 25, 2003, while the appeal in Neis I was pending. The factual allegations and claims for relief in this complaint were virtually identical to those in the original Neis I complaint. The new complaint added only that Neis had exhausted his administrative remedies by filing a grievance with the Privilege and Tenure Committee and that University procedures provided no remedy for any of his three claims (for violation of public policy, discrimination and fraud) and no opportunity to litigate them. The Regents demurred to the entire complaint on res judicata grounds, but by order of September 24, 2003, the trial court sustained the demurrer as to Neis's public policy claim only. Neis does not challenge this ruling on appeal.

On May 3, 2005, shortly after this court issued a decision in Neis I, the Regents filed a motion for judgment on the pleadings in Neis II, once again arguing Neis's claims were barred by the doctrine of res judicata. On June 8, 2005, the trial court granted the motion as to Neis's discrimination claim but denied it as to the fraud claim. Later that month, the Regents filed another motion for judgment on the pleadings, this time seeking to dismiss the fraud claim on the ground that it was barred by Government Code section 818.8. The trial court granted the motion with leave to amend, and on September 6, 2005, Neis filed an amended complaint alleging three new claims: (1) wrongful termination in violation of public policy; (2) violation of Labor Code section 970; and (3) breach of contract. The Regents demurred to this new complaint, and this time the trial court sustained the demurrer without leave to amend.¹ Judgment was entered for the Regents on December 21, 2005, and this appeal followed.

DISCUSSION

"The standard of review for an order granting judgment on the pleadings is the same as that for an order sustaining a general demurrer: We treat as admitted all material facts properly pleaded, give the complaint's factual allegations a liberal construction, and determine de novo whether the complaint states a cause of action under any legal theory. [Citation.] We may rely on any applicable legal theory in affirming or reversing because we ` "review the trial court's disposition of the matter, not its reasons for the disposition."' [Citation.]" (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 671.)

The University contends both of Neis's claims are barred by res judicata based on our prior decision in Neis I. We are inclined to agree. " `The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.' [Citation.]" (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427.) Neis I is a final judgment on the merits upholding the denial of tenure to Neis. The same parties are before the court again, and the claims asserted now either were raised or could have been raised in Neis I to attack the tenure decision. Thus, it would appear res judicata bars this second action in its entirety. (Pollock v. University of Southern California, supra, 112 Cal.App.4th at pp. 1427-1428 [professor's second complaint challenging denial of tenure was barred by res judicata].) In an abundance of caution, however, we shall address Neis's arguments with respect to each dismissed claim.

...