Pollock v. University of So. Cal.

• Decision Date: 30 October 2003
• Docket Number: No. B159352,B159352
• Citation: 112 Cal.App.4th 1416,6 Cal.Rptr.3d 122
• Court: California Court of Appeals Court of Appeals
• Parties: Vicki E. POLLOCK, etc., Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, etc., et al., Defendants and Respondents.

6 Cal.Rptr.3d 122

112 Cal.App.4th 1416

Vicki E. POLLOCK, etc., Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, etc., et al., Defendants and Respondents.

No. B159352

Court of Appeal, Second District, Division Three

October 30, 2003

Rehearing Denied December 1, 2003

Review Denied February 24, 2004.

E. Lyn Lemaire, Agoura Hills, for Plaintiff and Appellant.

Paul, Hastings, Janofsky & Walker, Christina L. McEnerney, Los Angeles, and J. Al Latham, Jr. for Defendants and Respondents.

ALDRICH, J.

INTRODUCTION

This is the second lawsuit filed by plaintiff Vicki E. Pollock, Ph.D. against her former employer, the University of Southern California. The earlier lawsuit (Pollock I) was filed during the termination process. The instant lawsuit (Pollock II) was filed after Pollock was finally discharged from employment, but while her appeal in Pollock I was pending before this Court. In both actions Pollock challenged the method by which she was terminated from her tenured position. In Pollock I, we held all of Pollock's contentions were without merit and her sole remedy for alleged defects in the process by which the University revokes her tenure and discharges her for service is by administrative mandamus.

In this appeal, we review the judgment entered after the trial court sustained the demurrer filed by the University and defendant William G. Tierney, Ph.D. (together, defendants are referred to as the University) and denied Pollock leave to amend. The contentions raised in Pollock II are nearly identical to those raised in Pollock I and again we conclude they are meritless. Moreover, as the same issues were decided in Pollock I, much of Pollock's complaint here is barred by the doctrine of res judicata. Accordingly, we affirm the judgment.

We issued an order to show cause why we should not impose sanctions for a frivolous appeal. (Cal. Rules of Court, rule 27(e)(3).) Concluding Pollock's appeal is meritless, we hold her appeal is frivolous (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179) and impose sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

1. Predicate facts.

For review purposes, we assume the truth of the allegations in Pollock's complaint. (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 429 103 Cal.Rptr.2d 305.) Since 1992, Pollock was a tenured member of the University's Department of Psychiatry and Behavioral Sciences faculty. In 1998, Pollock was assigned to a full-time clinical position as a psychologist with the Department of Psychiatry's Ingleside Hospital. The University also required her to obtain funding to conduct research independently through outside grants. Pollock protested her assignment by agreeing to teach only on Tuesdays and Thursdays. After two years during which Pollock reported to Ingleside Hospital only two out of the five assigned days per week, the University charged her with serious neglect of duty.

The University commenced dismissal proceedings. Pollock unsuccessfully attempted to enjoin the proceedings and then sued the University. The gravamen of the complaint in Pollock I was that the University secretly modified the faculty handbook by changing the bases and procedures for dismissal in an effort to facilitate dismissal of tenured faculty, and created a "dismissal machinery" with which it could remove tenured faculty "virtually at will." (Pollock v. University of Southern California (November 29, 2001, B145203, 2001 WL 1513870) [nonpub. opn.].)¹ Pollock further alleged in that action that the University falsified charges against her and forced her out of her research position into clinical work. In our earlier opinion, we affirmed the sustaining of the demurrer to Pollock's complaint on the ground, because the dismissal process had not been completed and no decision about Pollock's continued employment had been made, no cognizable adverse employment action had yet been taken against Pollock. (Pollock I, supra, B145203, 2001 WL 1513870.)

More relevant to this appeal, we held in Pollock I that Pollock's challenges to the procedure by which the University revoked her tenure and discharged her from employment (as distinguished from her claims for retaliation and discrimination) were barred by the rule of Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 53 Cal.Rptr.2d 662 (hereinafter, Pomona College). In Pomona College, a professor sued the college after being denied tenure. Division Two of this District Court of Appeal held in Pomona College that "judicial review of tenure decisions" as opposed to discrimination claims, in both public and private universities in California "is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action." (Id. at pp. 1722-1724, 1726, 53 Cal.Rptr.2d 662.) The Pomona College Court explained, academic peers are uniquely positioned to evaluate a tenure candidate's teaching, research, and contributions to particular field of study. (Id. at p. 1726, 53 Cal.Rptr.2d 662.) The Pomona College Court recognized, "`courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure." (Id. at p. 1725, 53 Cal.Rptr.2d 662.) As they are not positioned to consider the substantive merits of the tenure decision, absent discrimination, courts are left only with reviewing the fairness of the hearing in an administrative mandamus action. (Id. at p. 1726, 53 Cal.Rptr.2d 662.) The Pomona College Court held, "California law provides to those who feel wronged by procedural defects in the tenure process — as opposed to those who disagree with substantive evaluations — a remedy. That remedy is administrative mandamus." (Id. at p. 1727, 53 Cal.Rptr.2d 662.)

Applying Pomona College, we held in Pollock I: "[T]he gravamen of Pollock's ... complaint is that the University utilized questionable and unauthorized methods and procedures to force her to resign or to revoke her tenure. The complaint repeatedly attacks the `dismissal machinery' or the process by which a tenured faculty member is dismissed from service with the University. It is therefore manifest that Pomona College finally disposes of Pollock's claims other than those for discrimination and retaliation." (Pollock I, supra, B145203, 2001 WL 1513870.)

Also in Pollock I, 2001 WL 1513870 we "reject[ed] Pollock's repeated arguments that the University's dismissal process is replete with procedural and due process deficiencies and that it would be futile to pursue her administrative remedies because they are rife with flaws and are part of the scheme to force her to resign." (Pollock I, supra, B145203, 2001 WL 1513870.) We said that Pollock could not "avoid mandamus review by seeking damages for the procedural unfairness in the University's dismissal process. That is exactly the purpose behind administrative mandamus review — to evaluate the fairness of the administrative hearing. [Citation.] Such purpose `extend [s] to the questions [of] whether the [defendant] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.' [Citation.]" (Pollock I, supra, B145203, 2001 WL 1513870 quoting from Code Civ. Proc., § 1094.5, subd. (b).) In Pollock I, we held Pollock was required to file a petition for writ of administrative mandamus to pursue her claims.

While the appeal in Pollock I was pending, the University completed its dismissal process in August 2000. Pollock had been given a hearing before a faculty panel. The University's hearing panel found adequate cause to dismiss Pollock. Pollock was formally discharged from her position in September 2000.

On June 7, 2001, while the appeal in Pollock I was before this court, Pollock commenced Pollock II, her second lawsuit seeking damages from the University arising from the revocation of her tenure and her termination from employment.

2. Pollock II.

Cast as seven causes of action, the complaint against the University seeks damages for (1) perjury; (2) fraud and deceit; (3) wrongful termination in violation of public policy; (4) breach of contract; (5) retaliation in violation of California's Fair Employment and Housing Act (Gov.Code, § 12940 et seq., the FEHA); (6) sex discrimination in violation of the FEHA; and (7) age discrimination in violation of the FEHA.

In her complaint, just as in Pollock I, Pollock describes in the first 44 pages how the University created its "dismissal machine" by surreptitiously and without notice to the tenured faculty, altering key terms of the tenure contract defining the bases for dismissal, and falsely asserting the changes were approved by the faculty's representative body, the Academic Senate. Specifically, Pollock alleges, just as she did in her first lawsuit, that the University substituted a semi-colon for a comma after the word misconduct in the section defining "adequate cause," changed the size and selection method for grievance and dismissal panels, and rigged "sham panel[s]." Continuing, she alleges the University used this "dismissal machine" to implement a scheme to terminate tenured professors, including Pollock, virtually at will.

In her first cause of action entitled "perjury," Pollock alleges the University made false assertions about the punctuation in the faculty handbook's definition of "adequate cause." These false assertions were allegedly made in a declaration signed by Tierney and filed in Pollock I. Tierney was the then President of the University Faculty and of the Academic Senate. In his declaration, Tierney stated he had conducted an investigation into Pollock's allegation that the University "`Administration had fraudulently altered the USC Faculty Handbook'" and concluded that the changes were proposed by the Academic Senate. Attached to his declaration were the e-mail...