Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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. Judgment was entered for the Regents on December 21, 2005, and this appeal followed.
The appellant’s appendix includes only the initial moving papers for the two motions for judgment on the pleadings and one of the two demurrers. Neis did not include any points and authorities or responding papers, nor did he designate reporter’s transcripts of the hearings on the motions. As a result, our record of the arguments presented below, and the reasoning behind the court’s rulings, is unusually sparse.
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.
I. Discrimination Claim Is Barred by Estoppel
As noted, Neis pursued a formal grievance through the University’s internal review procedures, and in this grievance he specifically complained that he had been denied tenure due to his “German national origin.” Neis’s claim of national origin discrimination was thus before the Privilege and Tenure Committee, and, as we observed in Neis I, the Committee implicitly rejected this allegation when it concluded the tenure denial was “ ‘amply justif[ied]’ ” by Neis’s “failure to demonstrate superior intellectual attainment.”
In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 469, 484 (Westlake), the Supreme Court held that a party who seeks to challenge adverse findings in a quasi-judicial proceeding must do so by filing a petition for writ of mandate in the superior court. “This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 241.) Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.] Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding ‘effect to the administrative agency’s decision, because that decision has achieved finality due to the aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing administrative action.’ (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 646, original italics.)” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 (Johnson).) “The underpinnings of this rule of exhaustion of judicial remedies . . . are buried in the doctrine of res judicata or that portion of it known as collateral estoppel and more recently as issue preclusion.” (Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at p. 241.) “Unless the administrative decision is challenged, it binds the parties on the issues litigated and if those issues are fatal to a civil suit, the plaintiff cannot state a viable cause of action.” (Id. at p. 243; see also State Bd. of Chiropractic Examiners v. Superior Court (2007) 148 Cal.App.4th 142, 153 [failure to overturn decision on writ of mandate precludes tort suit and binds plaintiff to all issues actually litigated].)
The trial court sustained a demurrer to Neis’s original complaint (in Neis I) based on failure to exhaust judicial remedies. In response, Neis filed a verified petition for writ of mandate under the same superior court case number. It is not enough for a plaintiff to merely file a writ petition, however. The plaintiff must succeed in overturning the administrative decision before he can pursue civil remedies. The Supreme Court held in Westlake that a plaintiff “must first succeed in setting aside the quasi-judicial decision in a mandamus action before he may institute a tort action for damages.” (Westlake, supra, 17 Cal.3d at p. 469.) The court explained that “so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the [challenged] action.” (Id. at p. 484; see also Johnson, supra, 24 Cal.4th at p. 70.) “A quasi-judicial decision is set aside when a court in a mandate proceeding determines that the decision cannot stand ‘either because of a substantive or procedural defect . . . .’ [Citation.]” (Johnson, supra, 24 Cal.4th at p. 70.)
Neis did not succeed in overturning the decision of the Privilege and Tenure Committee on a writ of mandate. The trial court denied his petition on the merits, and we affirmed on appeal. The propriety of the Committee’s decision has therefore been conclusively established, and Neis is barred from mounting a collateral attack on the decision through a subsequent civil action. (Johnson, supra, 24 Cal.4th at pp. 70-71; Westlake, supra, 17 Cal.3d at p. 484; Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at p. 243.) “Any other conclusion would mean the administrative proceeding was a waste of time.” (State Bd. of Chiropractic Examiners v. Superior Court, supra, 148 Cal.App.4th at p. 156.)
Having apparently accepted this result with respect to the dismissal of his public policy claim (which was not appealed), Neis nevertheless argues his discrimination claim is not barred because the trial court observed that the Committee addressed his discrimination allegations in a conclusory manner. He contends that in Neis I neither the superior court nor this court addressed the merits of his claim of national origin discrimination. This assertion is simply not accurate. Neis’s mandate petition alleged he was ridiculed and attacked due to his German national origin; thus, one question squarely raised by the petition was whether the Privilege and Tenure Committee’s decision should be set aside because it was the result of unlawful discrimination. The trial court decided it should not. We decided the same thing when we reviewed the Committee’s decision on appeal. We related the specific statements Neis cited as evidence of discrimination (i.e., a description of his work as “Nazi architecture” and a professor’s remark that “they”—presumably referring to other faculty members—“do not like Germans here”), and we concluded the Privilege and Tenure Committee had implicitly rejected Neis’s discrimination claim when it found “much” to justify his denial of tenure. We too rejected the discrimination claim, based on the unanimously expressed opinions of University committees and decision-makers that Neis had failed to demonstrate sufficient intellectual attainment to be awarded tenure. Neis complained of discrimination at every stage in the tenure review process, and both the trial court and this court concluded it did not infect the University’s decision. Despite Neis’s attempt to downplay its role in the former litigation, his discrimination claim was raised, addressed and rejected in Neis I. Furthermore, because Neis failed to set aside the Committee’s tenure decision, the propriety of this decision is conclusively established and Neis may not litigate the matter a second time. (State Bd. of Chiropractic Examiners v. Superior Court, supra, 148 Cal.App.4th at p. 161.) “In short, plaintiff is bound by the [Committee’s] determination and to the extent that his causes of action are inconsistent with that determination, they are fatally flawed.” (Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at p. 244; see also State Bd. of Chiropractic Examiners v. Superior Court, supra, 148 Cal.App.4th at p. 161 [failure to set aside administrative finding precludes a civil action predicated on the same factual claims].)
In mandamus proceedings such as Neis I, an appellate court reviews the challenged administrative action without regard to the trial court’s decision. (See McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786.)
Neis suggests collateral estoppel should not apply because the Privilege and Tenure Committee did not hold a hearing on his discrimination claim, and therefore its decision did not result from a “fair” proceeding. (See Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 739-744 (Payne) [for purposes of exhaustion doctrine, quasi-judicial proceeding must afford aggrieved party fair procedural rights].) Payne is distinguishable, however. In Payne, a physician sought to raise a complaint about racist behavior by another physician, but hospital bylaws only allowed him to file a written grievance. (Id. at pp. 739, 741.) Not only did Payne have no right to a hearing, “[h]e had no right to compel anyone to take his assertions seriously, let alone to examine them in the context of a quasi-judicial proceeding.” (Id. at p. 739.) “To constitute an internal or administrative remedy requiring exhaustion before filing suit, ‘ “[t]here must be ‘clearly defined machinery’ for the submission, evaluation and resolution of complaints by aggrieved parties.” ’ [Citation.] This procedure must include adequate notice of the proposed administrative action, a fair right to be heard, and a decision rendered by an impartial trier of fact. [Citation.]” (Lifecare Centers of America v. CalOptima (2005) 133 Cal.App.4th 1169, 1177.)
In sharp contrast to the scanty procedures afforded the plaintiff in Payne, which consisted of nothing more than the right to submit a form (see Payne, supra, 130 Cal.App.4th at pp. 741-742), Neis’s complaints were reviewed on the merits numerous times by several impartial University committees, each of which rendered decisions on the merits of his claims. It is well settled that recommendations as to tenure are best left to a party’s academic peers, and an aggrieved professor has no right to a jury trial to revisit such decisions. (Pollock v. University of Southern California, supra, 112 Cal.App.4th at pp. 1425-1426; see also McGill v. Regents of University of California, supra, 44 Cal.App.4th at pp. 1785-1786 [holding there is “no legal requirement” that a decision to deny tenure result from an evidentiary hearing, and an untenured professor has no due process right to demand such a hearing].) Moreover, in the exhaustion context, “[i]t is not the case that only a trial-like hearing is entitled to dignity. [Citation.]” (State Bd. of Chiropractic Examiners v. Superior Court, supra, 148 Cal.App.4th at p. 158.) Review of documentary evidence by an impartial decision-maker is sufficient to require that a plaintiff overturn the decision by writ of mandate. (Id. at pp. 158, 161; see also Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 768-769 [distinguishing Payne and holding university’s internal procedures for investigating and deciding the merits of a complaint were sufficiently quasi-judicial to require exhaustion of judicial remedies].) As was established in Neis I, the University’s decision resulted from quasi-judicial proceedings and could only be set aside by writ of mandate.
This is not the first time Neis has complained about the adequacy of the University’s procedures. In Neis I, Neis attempted to argue the exhaustion doctrine did not apply because the proceedings before University committees were not quasi-judicial in nature, but we concluded he waived this claim by amending his complaint to petition for a writ of mandate.
Finally, Neis suggests the Supreme Court’s decision in Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 (Schifando) authorizes him to proceed with a discrimination claim despite his failure to set aside the contrary administrative decision. Schifando is inapplicable to this case, however, because it concerns the exhaustion of administrative remedies, not judicial remedies. (See Johnson, supra, 24 Cal.4th at p. 70 [summarizing the difference between these two doctrines].) The Supreme Court in Schifando held that a public employee need not exhaust a city’s internal grievance procedures in addition to Department of Fair Employment and Housing procedures before filing a claim under the California Fair Employment and Housing Act (FEHA). (Schifando, supra, 31 Cal.4th at pp. 1080, 1087-1089.) In reaching this conclusion as to administrative exhaustion requirements, the Supreme Court expressly reaffirmed its decision in Johnson, which is the case directly on point with respect to Neis’s claim. (Schifando, supra, 31 Cal.4th at pp. 1089-1091.) In Johnson, a city employee who availed himself of an internal review process but failed to obtain (or seek) judicial relief from the adverse determination later filed a civil complaint alleging causes of action under FEHA. (Johnson, supra, 24 Cal.4th at p. 71.) Because the employee had not exhausted his judicial remedies, the Supreme Court held the city’s adverse finding was binding on his subsequent FEHA claims. (Id. at p. 76.) Likewise, here Neis pursued administrative remedies provided by the University, and he failed to have the University’s adverse findings set aside by the courts. As such, he is estopped from collaterally attacking these findings by way of a FEHA claim, and the trial court properly dismissed this cause of action. (See Schifando, supra, 31 Cal.4th at p. 1090 [“We serve judicial economy by giving collateral estoppel effect to appropriate administrative findings”].)
II. Labor Code 970 Claims Are Barred by Statutory Immunity
According to Neis’s amended complaint, the Regents violated Labor Code section 970 and violated the public policy expressed in Labor Code section 970 by inducing him to move from Japan to Berkeley based on false representations as to the nature and duration of employment he would have at the University. Specifically, the complaint alleges Neis moved to Berkeley based on assurances from University officials that he would join the Department of Architecture faculty as a proponent of building process theory and that he could obtain tenured employment so long as he met the University’s standards. The amended complaint also includes a cause of action for breach of an employment contract based on these same allegations.
Labor Code section 970 prohibits any “person” from soliciting an employee to move to California based on misrepresentations as to the existence or type of employment to be performed, the duration of the job, or the employee’s compensation. The Code defines “person” as “any person, association, organization, partnership, business trust, limited liability company, or corporation.” (Lab. Code, § 18.) However, the University is none of these things. The University is a “public entity” (Gov. Code, § 811.2; Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909); therefore, it does not fall within the Labor Code’s definition of a person. (Cf. California Medical Assn. v. Regents of University of California (2000) 79 Cal.App.4th 542, 551 [holding the University of California is not a “person” for purposes of the Unfair Practices Act (Bus. & Prof. Code, § 17200 et seq.)].)
The statute provides, in relevant part: “No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: [¶] (a) The kind, character, or existence of such work; [¶] (b) The length of time such work will last, or the compensation therefor . . . .” (Lab. Code, § 970.)
In addition, as the trial court observed, the Regents have statutory immunity from misrepresentation claims such as those premised on Labor Code section 970. Government Code section 818.8 states: “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” In Burden v. County of Santa Clara (2000) 81 Cal.App.4th 244, 251-252 (Burden), the Sixth District Court of Appeal held that Government Code section 818.8 gives public entities immunity from claims alleging violation of Labor Code section 970. Just like here, the plaintiff in Burden alleged he had been wrongfully induced to relocate to the Bay Area based on a public entity’s false promise of permanent employment. (Burden, supra, 81 Cal.App.4th at p. 246.) The court rejected Burden’s argument that the hiring process does not constitute the type of “financial or commercial transaction” protected by Government Code section 818.8 immunity. (Burden, supra, 81 Cal.App.4th at p. 248; see Johnson v. State of California (1968) 69 Cal.2d 782, 800.)
Neis contends Burden was wrongly decided. Citing the maxim that when two statutes address the same subject matter, the more specific statute controls (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1423-1424 (Shoemaker)), Neis asserts the specific protection against fraudulent inducement afforded to employees by Labor Code section 970 must prevail over the more general immunity in business dealings afforded to the government by Government Code section 818.8. However, the Burden court rejected this same argument, i.e., “that Labor Code section 970, as an element of a ‘detailed statutory scheme’ implementing an important public policy objective, supersedes the immunities of the Tort Claims Act.” (Burden, supra, 81 Cal.App.4th at p. 252.) The court observed that “Labor Code section 970 creates a statutory tort cause of action” that prohibits employers from inducing an employee’s relocation by making knowingly false statements about the terms and conditions of employment. (Burden, supra, 81 Cal.App.4th at p. 253; see also Lab. Code, § 972 [authorizing civil action for double damages].) We agree that Labor Code section 970 gives rise to a statutory tort. Accordingly, a cause of action for violation of Labor Code section 970 falls squarely within the Tort Claims Act and is subject to the immunities of the Act, including Government Code section 818.8. (See Burden, supra, 81 Cal.App.4th at p. 253.)
Neis insists a contrary result is required by Shoemaker, supra, 2 Cal.App.4th 1407, but that case addressed two completely different statutes. In Shoemaker, the Court of Appeal considered a whistleblower statute that applies specifically to complaints by state employees. (Gov. Code, § 19683; see Shoemaker v. Myers (1990) 52 Cal.3d 1, 21-22 [purpose of the whistleblower statute is to provide redress to state employees for damages suffered as a result of their proper reporting of unlawful government actions]; Shoemaker, supra, 2 Cal.App.4th at p. 1424 [“purpose underlying the whistle-blower statute is to provide redress to a limited class, state employees, for harm suffered by the use of official power to deter reporting of unlawful government activity”].) Not surprisingly, the court concluded the general prosecutorial immunity provided to public employees (Gov. Code, § 821.6) does not immunize them from suit under the whistleblower statute. (Shoemaker, supra, 2 Cal.App.4th at p. 1424.) Such a construction would have practically eliminated the protection provided by the whistleblower statute, since nearly all wielders of “official power” who violate the statute will be public employees. (Ibid. [“Because it is far more likely the party violating [Government Code] section 19683 will be a public employee, the result urged by defendants would immunize the most egregious conduct undertaken to discourage whistle-blowing”].) In contrast, Labor Code section 970 is not limited to the context of governmental employment. Indeed, as we have noted, the statute apparently does not apply to public entities such as the Regents at all. (Lab. Code, § 18; Gov. Code, § 811.2.) Shoemaker’s analysis simply does not apply in this context.
Neis also alleged claims for violation of the public policy expressed in Labor Code section 970—commonly known as a Tameny claim (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167)—and for breach of contract. Both of these claims are expressly barred under settled law.
Unless a statute provides otherwise, a public entity such as the University is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (Gov. Code, § 815, subd. (a).) A cause of action for violation of public policy is a common law, judicially created tort. (See Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d at pp. 176-178; Palmer v. Regents of University of California, supra, 107 Cal.App.4th at p. 909.) Because the Tameny cause of action is a common law claim and not authorized by statute, it is not properly asserted against the Regents. (Palmer v. Regents of University of California, supra, 107 Cal.App.4th at p. 909.)
Moreover, as a public employee, Neis cannot state a cause of action for breach of his employment contract. The University of California “is a statewide administrative agency with constitutionally derived powers. [Citations.] Its employees are public employees. [Citation.]” (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165.) The University is administered by the Regents, whose policies and procedures have the force and effect of statutory law. (Ibid.) It is well settled that public employment in California is held not by contract, but by statute. (Miller v. State of California (1977) 18 Cal.3d 808, 813.) Based on this principle, “our Supreme Court has made it clear that civil service employees cannot state a cause of action for breach of contract or breach of the implied covenant of good faith and fair dealing. (Shoemaker v. Myers[, supra,] 52 Cal.3d [at pp.] 23-24.) This same general principle of law applies to civil service and noncivil service public employees alike. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690.)” (Kim v. Regents of University of California, supra, 80 Cal.App.4th at p. 164.)
Neis alleges the Regents breached a contract of employment by failing to give him the benefit of University policies and procedures. However, because the terms of his employment with the University were established by law, not contract, Neis cannot state a cause of action against the Regents for breach of contract. (Shoemaker v. Myers, supra, 52 Cal.3d at pp. 23-24; Miller v. State of California, supra, 18 Cal.3d at p. 813; Kim v. Regents of University of California, supra, 80 Cal.App.4th at pp. 164-165.)
DISPOSITION
The judgment is affirmed. Neis shall bear costs on appeal.
We concur:
Pollak, J.
Siggins, J.