Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05225842
Pollak, Acting P. J.
Plaintiff Gary S. DeWeese was a longtime employee of the Office of the Treasurer of the University of California (the university, UC, or the Regents). In 2002 the group in which he worked was eliminated. All of the employees in DeWeese’s group, including DeWeese, were notified that their employment was to be terminated. DeWeese approached David Russ, the treasurer, with a proposal for the creation of a real asset investment group that DeWeese would direct. Russ approved a one-year trial period for both the group and DeWeese as its director. When Russ decided to make the group permanent but hired someone other than DeWeese to head the group, DeWeese filed a formal complaint with the university. After both DeWeese and Russ submitted evidence, a fact finder found that DeWeese had not been promised employment beyond a one-year term and denied his request to be hired as the director. DeWeese challenged that finding by filing in the superior court a petition for a writ of mandate alleging that he had been denied a fair hearing and that the fact finder’s decision was not based on substantial evidence. He included in his petition causes of action for breach of contract. The trial court found that DeWeese was a temporary employee and therefore could be discharged without being afforded all of the due process rights of a permanent employee, and that in any event he had been afforded a fair hearing. The court granted summary judgment on the breach of contract claims on the ground that the rights of a public employee are determined by statute and not by contract. DeWeese challenges both the denial of the writ petition and the dismissal of his breach of contract claims.
We conclude that, assuming DeWeese’s one-year assignment as the director of the new asset investment group should be regarded as an extension of his prior long-term employment with the university and that he therefore was entitled to due process before termination, he received all of the protections provided by the rules of the university and guaranteed by due process. In terminating DeWeese, the university neither breached a contract nor violated the provisions of any applicable statute. Therefore, the trial court properly denied the petition and dismissed the contractual claims.
BACKGROUND
In his superior court pleading, DeWeese alleged that he “began work with UC in 1974, assigned to the Office of the Treasurer as Assistant to the Real Estate Officer, and then became an Assistant Real Estate Officer. In about 1980 he became the Real Estate Officer, and, in 1984, the Assistant Treasurer–Real Estate. In that position, he was fully responsible for UC’s acquisition and disposition of real property, as well as for UC’s investment in real estate as part of its endowment portfolio.”
“In 2001, David Russ became the Regents’ new Treasurer and Vice President for Investments. . . . [¶] In November 2002, upon the Treasurer’s recommendation, the Regents (through the Treasurer) decided to move billions of dollars of assets into Index funds pending their eventual redistribution to multiple outside investment management companies, thus making the duties of DeWeese’s group superfluous; the group was fired.” The employees of the group were offered six months’ severance pay and health, dental and life insurance benefits through February 28, 2003, and assistance with job placement. DeWeese approached Russ and suggested that the Regents invest in real estate. “At that time, there was no separate real estate allocation or formal program established to invest in real estate. DeWeese’s recommendation was to establish such a program.” He provided Russ with a proposed real estate investment program. Russ took the proposal to the Senior Vice President of Administration, Joseph Mullinix, who approved the new position. DeWeese proposed that he become the new Director for Real Estate Investments.
Russ approved the position for one year with the same salary and benefits that DeWeese previously had been receiving. In a November 14, 2002 letter, Russ wrote to DeWeese, “This letter is to confirm our agreement with regard to your continuing employment with the University of California (UC). As we discussed, I would like to pursue the possibility of Real Asset Investing; including Private Real Estate, REITs, natural resources, timberland, oil and gas, and commodities. [¶] Given your strong background in Real Estate investment, I would like to offer you a one year assignment beginning November 15, 2002 as the Director of Real Estate Investments. An outline of the job description we developed is attached. Your current annual salary and level of benefits will be maintained during this extended assignment. In addition, the Human Resources Compensation and Employment Services Unit will determine the appropriate MSP salary grade for this position and advise me accordingly under separate cover. [¶] After one year, if this extended assignment is not converted into an on-going position for you, or if you have not obtained another appointment with UC, you will be eligible for the benefits outlined in the letter to you dated November 5, 2002.”
On November 18, 2002, DeWeese wrote to Russ confirming the new position. “With minor clarifications contained in this letter, I accept your offer. [¶] . . . [¶] As I have communicated all along, my concern is the one-year nature of the assignment. I share your optimism that the Regents will approve at least one area of real asset investing. I also appreciate your willingness to make the new assignment permanent as soon as one area is approved. However, I still need to consider the possibility that the assignment will not become permanent, or that I have not obtained another acceptable appointment with UC, by November 15, 2003. If that occurs, I am not certain that the severance/termination benefits outlined in your letter of November 5, 2002 are appropriate for an employee at my level, with my performance record, or with my years of employment. Rather than be concerned with what is or is not appropriate at this time, or whether I am bound by the benefits outlined in your letter of November 5, 2002, my suggestion, which I understand is acceptable to you, is that we simply defer any discussion of what benefits I would be entitled to upon termination, if and when that occurs.”
DeWeese further alleged that “[o]n May 16, 2003, [he] gave [Russ] his staff recruitment plan [which] showed DeWeese as the Managing Director, as well as two open positions.” On June 4, Russ told “DeWeese, for the first time, that he wanted to pursue open recruitment for the Director position.” On July 23, Russ presented DeWeese with a draft of an announcement soliciting applications to permanently fill the Director position. Russ “told DeWeese that he intended to formally issue the notification and that DeWeese could and should apply for the position.” An outside firm was engaged to seek candidates for the position.
The complaint goes on to allege that “[d]uring the same meeting, [Russ] asked DeWeese if he could be part of the team as number two. DeWeese said no, because it had been agreed that he would have the number one position. [Russ] and DeWeese then further discussed DeWeese’s professional real estate background in detail, and specifically addressed DeWeese’s qualifications for the number one position.”
On October 6, 2003, DeWeese was “notified of the University’s notice of intent to terminate [his] employment with the Treasurer’s Office.” In the same letter Russ expressed “that he lacked ‘confidence in [DeWeese’s] experience and abilities.’ [Russ] explained to DeWeese that ‘the individual must have extensive experience in institutional real estate investment as well as demonstrated success in selecting and managing external managers in this asset class.’ He told DeWeese . . . that he lacked the requisite ‘in-depth experience.’ ” The letter also expressed concern “about DeWeese’s judgment. [Russ] told DeWeese that ‘the most serious situation occurred in June, two days after I told you . . . that I was planning to use a search firm to find the most qualified individual to lead the nascent Real Estate group.’ According to [Russ], DeWeese then . . . proposed investing ‘$75 million in Blackstone Real Estate LLC that you wanted me to approve quickly because Blackstone would only hold space in the fund for us for a short period of time. I learned later that the fund was not closing on June 30. The fund size was greater than $4 billion. In reviewing this proposal, I found that it was incomplete and it did not follow the decision tree process for the internal process and consultant due diligence as we had committed to with the Regents.’ ”
On October 9, 2003, DeWeese filed with Senior Vice-President Mullinex an appeal of the decision to terminate his employment. Mullinex decided “to proceed with your termination, effective December 5, 2003.”
On December 1, 2003, DeWeese filed a complaint with the university requesting review of Russ’s decision to terminate his employment and Mullinex’s decision affirming the termination. In accordance with section X of the university’s Human Resources procedure, the complaint was assigned to Sheila O’Rourke (the fact finder) to determine the facts concerning DeWeese’s complaint. On November 3, 2004, O’Rourke issued an eight-page report concluding that DeWeese had been promised only a one-year appointment, that “legitimate management considerations” supported the decision to post the director position for open recruiting, that DeWeese was offered “the number two position” but had not accepted it, and that “[t]he decision to terminate [DeWeese’s] one-year appointment seem[ed] logically the result of [DeWeese’s] turning down the offer of continued employment.” O’Rourke found that there was “no basis for upholding the complaint” under the relevant personnel policy.
O’Rourke’s report stated: “The allegations and responses in this case reflect the differing perceptions of two individuals regarding the same set of events. I find both parties to be reasonable and credible in their interpretations of what transpired in this case. In addition, there are documents and letters that corroborate the significant events.” “As a threshold matter, it would be reasonable to conclude that management action in this case did not adversely affect the terms and conditions of [DeWeese’s] employment. In light of the fact that [DeWeese] had a one-year appointment beginning November 14, 2002, the termination of his appointment on December 5, 2003 did not adversely affect the terms and conditions of his employment. In fact, the 60 days paid notice to [DeWeese] that his temporary assignment would be terminated provided him with a longer term of employment than he was entitled to under the one-year assignment. [¶] Even if it were determined that the management act adversely affected [DeWeese’s] existing terms and conditions of employment, there is insufficient evidence to conclude that the management act by [Russ] in deciding to recruit for the Real Estate Director position and consequently not extending [DeWeese’s] one-year appointment was arbitrary. [Russ] provided adequate justification that the decision to recruit for the position was consistent with departmental practice. [Russ] provided adequate justification that his decision to terminate [DeWeese’s] one-year appointment was supported by legitimate management considerations. [DeWeese] had an opportunity to compete for the position when it was listed and [he] was not selected. [¶] There is also insufficient evidence to conclude that the management act by SVP Joseph Mullinix to support [Russ’s] action was arbitrary. The letter dated October 29, 2003 from SVP Mullinix to [DeWeese] provided adequate justification for his decision that there is no justification to rescind [Russ’s] notice of intent to terminate [DeWeese’s] temporary appointment. [¶] Further, in this case, there is insufficient evidence to conclude that . . . a provision of PPSM has been violated by a management action. First, there is no entitlement to continuing employment where there is a one-year contract. Second, even if one were to believe [DeWeese’s] assertion that verbal promises were made that created an expectation of continuing employment in light of his long service to UC, there is sufficient evidence to conclude that [DeWeese] was given ample notice that a search would be conducted and that he was not guaranteed the position. [DeWeese] stated in his interview that he knew in July that he was not guaranteed the job.”
On November 19, 2004, DeWeese wrote to Judith Boyette, an Associate Vice President of the university, challenging O’Rourke’s finding that the Treasurer’s “decision to terminate my employment was supported by adequate management considerations. Unfortunately, [O’Rourke’s] report and conclusions are based on false, incomplete or simply misleading statements by the Treasurer. These statements, and their internal inconsistency, have led [O’Rourke] to the wrong conclusions in the matter. I was not able to respond to these statements during the hearing process.” DeWeese asked “that this letter be reviewed by [O’Rourke] and that I be allowed to demonstrate with notes from meetings, other documents, and if necessary 3rd party testimony that many of the Treasurer’s statements are false, incomplete or misleading. I provided [O’Rourke] only with notes that were responsive or relevant to my statements or [O’Rourke’s] inquiries during the hearing, not to the Treasurer’s statements.” In the letter, DeWeese disputed most of the factual findings in O’Rourke’s report. He asked that the University “re-open this grievance for the submittal of additional testimony and evidence by either party.”
On December 23, 2004, counsel for the university replied that the university’s personnel policy “does not provide for reopening the record once the factfinder makes her findings and conclusions about the matter before her. However, in the interest of giving Mr. DeWeese the benefit of all doubt so that there is no dispute that he has had every opportunity to submit fully his case, the University will do the following as a consequence of his extraordinary request: [¶] 1. The University will make an exception to allow [DeWeese] to submit any further records or documentation he wishes the factfinder to consider. . . . [¶] 2. In fairness to the Respondent, the University will also allow the Treasurer’s Office to submit any further evidence or documentation in rebuttal to the evidence submitted by [DeWeese]. . . . [¶] 3. After the submission of all further evidence and argument, the factfinder, if she deems it necessary, will issue further findings of fact and conclusions. These shall be final . . . .”
On January 7, 2005, DeWeese submitted his additional evidence to O’Rourke. On February 1, 2005, O’Rourke’s final report was issued. In it she stated that she had reviewed DeWeese’s additional evidence but that “[n]othing he presented persuades me to alter my original conclusion that this is a case of differing perceptions of two individuals regarding the same set of events. I did not find, and do not find now, sufficient evidence that the terms and conditions of [DeWeese’s] employment were adversely affected by management action, or that management action was arbitrary, or that any provision of [the University’s personnel policies] was violated by management action.”
On August 2, 2005, DeWeese filed a petition for a writ of mandate under Code of Civil Procedure sections 1094.5 and 1085, combined with a complaint for breach of contract. The petition asked the court to issue a writ “to compel Respondent the Regents to comply with its binding contract to appoint him the permanent position of Director of Real Estate Investments.” The petition alleged that the Regents acted “in excess of their jurisdiction, because the Regents failed to grant DeWeese a fair trial or hearing,” that “DeWeese was not given an opportunity to review any document submitted by” Russ, that the Regents’ “decision is not supported by the findings and the findings are not supported by any or substantial evidence,” that the Regents’ “decision, through O’Rourke, was arbitrary, capricious or lacking in evidentiary support, that O’Rourke did not adequately consider all relevant factors, and that O’Rourke did not demonstrate a rational connection between those factors and her decision.” The breach of contract causes of action alleged that he and “the Regents entered into a valid oral contract, which was confirmed in writing. Pursuant to the contract, DeWeese agreed to continue on as an employee of the Regents in order to run the newly created real estate investment program, and, pursuant to the contract, the Regents agreed to make DeWeese’s temporary position permanent upon approval by the Regents of one investment area.”
On April 4, 2006, the trial court issued a statement of decision denying the petition and on October 12, 2006, the court granted summary judgment in favor of the Regents, and dismissed DeWeese’s complaint. Judgment was entered on October 31 and DeWeese timely appealed.
DISCUSSION
Due process
DeWeese first challenges the trial court’s ruling denying the petition for writ of mandate on the ground that he was not entitled to due process protections. In its statement of decision denying DeWeese’s petition, the trial court rejected what it characterized as DeWeese’s two arguments, that he was terminated in violation of his right to due process and that the fact finder’s conclusions were not supported by the evidence.
As to the first argument, the trial court found that DeWeese was a temporary employee and therefore not entitled to the due process rights of a permanent employee, but concluded that the university had nevertheless afforded him a fair hearing. In concluding that DeWeese was a temporary employee, the trial court reasoned, “An essential predicate of a federal constitutional due process claim in this case is a protected property interest. [Cite.] If a public employee has no right to continued employment, he has no protected property interest in continued employment, and thus no right to due process in connection with the end of that employment. . . . [¶] [DeWeese’s] due process claim, which depends on the assertion that his appointment included an enforceable promise to hire him in the future as the permanent Director of Real Asset Investments, fails because the fact finder found that DeWeese was a temporary employee which, by definition, is a determination that there was no such enforceable promise. The court agrees that there is substantial evidence in support of the fact finder’s determination that DeWeese had only a one-year temporary position. The written offer to DeWeese was for a ‘one year assignment beginning November 15, 2002 as Director of Real Estate Investments.’ . . . It is clear that DeWeese understood and accepted that his new position was temporary, that it terminated one year later, and that if the stated contingencies did not occur, he would revert to his status quo [at] the time of his acceptance of the temporary job. [¶] Neither the statement in DeWeese’s acceptance letter regarding the Treasurer’s ‘willingness to make the new assignment permanent,’ nor the parties’ conduct, constituted a binding agreement or rose to the level of a mutually explicit understanding that DeWeese had a right to continued employment beyond the one-year term specified in the offer letter. The most that can be said about any future employment is that at the time the Treasurer offered and DeWeese accepted the one-year appointment, both had expressed hopes of and were optimistic about entering into a permanent employment relationship in the future. But hopes and optimistic expectations do not give rise to a binding obligation. . . . The parties’ subsequent conduct also was consistent with the stated terms of the one-year appointment, including the fact that months later, when DeWeese first claimed he was entitled to become the permanent Direct[or] of Real Asset Investment, the Treasurer immediately disagreed.”
Addressing DeWeese’s complaints regarding the procedure by which he was terminated, the trial court found that DeWeese was not entitled to due process protections but that “the University followed its own complaint resolution procedures” and that the fact finder provided DeWeese a fair hearing. We have serious reservations about the court’s conclusion that DeWeese was not entitled to due process, but we have no hesitancy in agreeing that he received all the process he was due, if not more.
Whether or not DeWeese was promised a permanent position as director of the newly created office for real asset investments, he was nonetheless a long-term employee entitled to the protections of due process before being terminated. In Mendoza v. Regents (1978) 78 Cal.App.3d 168, 175 the court analyzed the university’s rules and noted that a “career employee employed for an indefinite term may be dismissed from his employment only in case of misconduct and/or poor, inadequate work performance, i.e., for cause. It is, of course, widely recognized that if the employee is subject to discharge only for cause, he has a property interest which is entitled to constitutional protection.” The record is unequivocal that DeWeese had been an employee of the university for more than 20 years. There is no suggestion that the university acted improperly in eliminating his former position and in terminating the other members of his former group. While the university therefore might have terminated DeWeese in November 2002, along with the other members of the group, DeWeese persuaded his superiors not to terminate him and he was not then terminated. His employment continued in a new position within the newly created office for real asset investments. Although the new position was described as temporary, this did not undo DeWeese’s prior years of service or constitute a break in his employment. He remained entitled to the protections provided by the university’s policies for long-term employees and those guaranteed by due process. (See, e.g., Shields v. Poway Unified School Dist. (1998) 63 Cal.App.4th 955, 959 [teacher whose teaching credential had been suspended was nevertheless a “permanent employee” entitled to due process protections].) Indeed, by the manner in which it terminated DeWeese’s employment and defended itself against his complaint—i.e., by offering proof that it had cause to terminate him—the university tacitly acknowledged that he was a career employee subject to discharge only for cause.
DeWeese also contends the trial court exceeded the scope of its review in a mandamus action by determining that he was a temporary employee. This contention becomes academic in view of our determination that DeWeese was entitled to the rights of a permanent employee. However, we note that whether DeWeese was a temporary or permanent employee is a predicate fact necessary to resolve his claim that he was entitled to the rights of a permanent employee. (See, e.g., Dorr v. County of Butte (1986) 795 F.2d 875, 876 [“Under California law, a ‘permanent employee,’ dismissible only for cause, has ‘a property interest in his continued employment which is protected by due process.’ Skelly v. State Personnel Board, 15 Cal.3d 194, 207-08 (1975). While ‘a probationary (or nontenured) civil service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good cause’ ”]; see also Mendoza v. Regents of University of California, supra, 78 Cal.App.3d at p. 174 [“the Rules adopted by the University abundantly support the proposition that the nonacademic career university workers employed for an indefinite term were intended to and in fact did acquire a property interest in their continued employment and as a consequence were protected by the pretermination procedural safeguards”]; but see Board of Regents v. Roth (1972) 408 U.S. 564, 578 [where professor was hired for fixed one-year term and not rehired at the end of that term, he “had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment”].) Hence, the trial court necessarily was acting within its jurisdiction in determining this predicate fact on which DeWeese’s claim was based. (See, e.g., Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 726-727 [trial court properly examined underlying facts surrounding approval of an environmental impact report to decide whether challenge was properly brought by ordinary or administrative mandamus].)
DeWeese’s ultimate termination was pursuant to the university’s Human Resources Procedure 65, which governs termination of career employees. It provides that “managers and senior professionals [holding career appointments] in salary grades I through VII may be terminated when, in management’s judgement, the needs or resources of a division or department or the performance or conduct of an employee does not justify the continuation of any employee’s appointment.” DeWeese did not dispute that the needs of the department no longer required his services in his former discontinued position, but he disputed whether his performance justified denying him the position of permanent director of the new group (though offering him a subordinate position).
DeWeese argued to the trial court that he “was denied a fair trial” of this issue because the fact finder allowed “the submission and consideration of prejudicial secret evidence . . . ” and he was “deprived of an opportunity to object to, confront, or rebut the secret evidence.” We disagree. DeWeese was informed that he was not being hired for the director position and the university presented evidence that DeWeese’s “conduct . . . [did] not justify the continuation of [his] appointment.” He received notice of the reason for termination and two opportunities to present his case that he was qualified for the director position and should not be terminated. The trial court found that “[t]here is no requirement that the fact finder provide a complainant with copies of documents submitted by witnesses,” “[t]here also is no requirement that the fact finder must interview every individual a complainant asks be interviewed,” and finally that “[t]he fact finder’s eight-page, single spaced report also complied with the requirements of” the University’s procedural manual. Specifically the trial court found that the report “describes the issues under review, the position of the opposing parties, the general information the fact finder received during her investigation, and her findings and conclusions, and DeWeese was provided with a copy of the report. Because the fact finder’s report fully summarized the position of the parties, including making specific reference to documents the parties provided, DeWeese was fairly apprised of the contrary evidence. DeWeese did not ask for copies of the documents referenced by the fact finder. Instead, he submitted a six-page, single-spaced point-by-point rebuttal to the fact finder’s report. He then asked that the fact finding process be re-opened and to submit additional material. The Regents agreed, and DeWeese submitted another six-page, single-spaced response, plus 26 pages of additional exhibits. The fact finder considered these additional materials but did not change her findings and conclusions . . . .” DeWeese makes no contention on appeal that the procedures followed by the fact finder and the university failed to comply with the university’s rules and procedures, detailed in the university’s Human Resources Procedure 70, section X, and we see no basis for concluding that he was not provided with due process. “The essence of procedural due process is notice and an opportunity to respond.” (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279.) DeWeese received both.
“ ‘ “[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ [Citation.] ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” (Gilbert v. Homar (1997) 520 U.S. 924, 930.) “To determine what process is constitutionally due, we have generally balanced three distinct factors: ‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest.’ ” (Id. at pp. 931-932.) “ ‘ “Due process requires a fair trial before an impartial tribunal and that requires that the person or body who decides the case must know the evidence, but due process is not interested in mere technical formalism. It is the substance that is determinative of whether” ’ an administrative procedure affords due process.” (Bockover v. Perko (1994) 28 Cal.App.4th 479, 487-488.) We have no doubt that DeWeese was fully and fairly heard. His position was rejected, but he was not denied due process.
DeWeese additionally argues that the finding that he was not qualified for the director position was not supported by substantial evidence. He argues at length regarding the weight he feels should have been accorded various pieces of evidence concerning Russ’s proffered reasons for hiring another person as the director of the new group. These arguments are beyond the purview of this court. The trial court reviewed all of the evidence in the record and found ample evidence to support the basis on which Russ deemed DeWeese unqualified for the director position. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) The record presents ample reasons why Russ chose not to hire DeWeese for the director position, and supports the conclusion that DeWeese was offered the “number two” position and declined it, thereby effectively choosing to terminate his own employment. DeWeese’s contrary views do not negate the existence of substantial evidence to support the view adopted by the fact finder and the trial court.
Motion for summary judgment
In his complaint, DeWeese alleged causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. The Regents sought summary judgment on the ground that DeWeese was a public employee whose rights are governed by statute and that in his petition for writ of mandate he had failed to overturn the university’s decision. The trial court granted the motion, ruling that “[t]he undisputed facts establish that Plaintiff’s claims in this action arise from Defendant’s alleged breach of a contract to give Plaintiff a job. . . . Public employment is held not by contract but by statute, and Plaintiff’s remedies against Defendant are limited to those provided by statute or ordinance. (See Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160, 164-165.) Plaintiff’s assertion that he is not suing for breach of an employment contract, but rather for breach of a contract that he would be given a job, is a distinction without any legal significance.”
The trial court was correct. “Employees of the University of California are state employees, and, therefore, hold their employment by statute, not by contract.” (Lachtman v. Regents of the University of California (2007) 158 Cal.App.4th 187, 207.) “[I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law.” (Miller v. State of California (1977) 18 Cal.3d 808, 813.)
Shaw v. Regents (1997) 58 Cal.App.4th 44, on which DeWeese relies, has no application to the present case. In Shaw, a professor signed an agreement when he was hired by the university, under which he assigned to the university patent rights to any inventions created while employed by the university in exchange for 50 percent of any royalties derived from his inventions. The university later modified its policy to reduce the amount of royalties that its employees received on their inventions. The court examined whether the professor could sue for breach of contract or whether the royalties were within a personnel policy that could be changed unilaterally by the university, concluding that “the patent agreement between Shaw and the University is a contract which incorporates the terms of the patent policy in effect at the time Shaw was hired. Although the University is entitled to revise its patent policy, it cannot do so with respect to Shaw because of its written agreement with him, specifying that he would receive 50 percent of the net royalties and fees from his inventions patented by the University.” (Id. at p. 47.) DeWeese entered into no analogous separate agreement with the university. He was an employee who successfully avoided termination with other members of his department by proposing the creation of a new investment group within his department. He hoped to be hired as its permanent director, but no separate agreement promised him such. Even if such a promise were made, it would have been an employment agreement and thus one for the breach of which he had no right to sue. (Kim v. Regents of the University of California, supra, 80 Cal.App.4th 160.)
DeWeese also argues that “whether the contract was or was not an employment agreement was inappropriately resolved by summary judgment,” citing Lachtman v. Regents of the University of California, supra, 158 Cal.App.4th at page 209 for the proposition that “a contractual relationship could not be determined as a matter of law.” In Lachtman, however, the court merely held that on the record before it, it could not determine “as a matter of law, whether or not these documents create a contractual relationship.” (Ibid.) Here, summary judgment was granted not by resolving the disputed meaning of terms to which the parties had agreed, but by relying on the established principle that terms of employment with the university do not give rise to contractual obligations subject to enforcement in a breach of contract action.
DISPOSITION
The judgment is affirmed.
We concur Siggins, J., Jenkins, J.