Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2008-00074832-CU-BC-SC, William S. Cannon, Judge.
IRION, J.
Arthur Lopez appeals the summary judgment entered against him on claims for breach of contract and declaratory relief arising out of his resignation as Director of Financial Aid of Southwestern Community College District (the District). After independently examining the record, we find no triable issues of material fact and affirm the summary judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez's Resignation
After serving as the District's Director of Financial Aid for several years, Lopez received a notice of recommended disciplinary action from the District recommending that his employment be terminated based on charges he sexually harassed another employee. Lopez denied the charges and requested an administrative hearing. Lopez tendered his defense to the District, but it refused to provide a defense or reimburse him for legal fees incurred in connection with the administrative hearing. According to Lopez, because he could not afford to pay for an attorney, he resigned. Pursuant to a written agreement, Lopez submitted his notice of resignation, and the District withdrew the disciplinary proceedings.
B. The Litigation
Based on the events described above, Lopez sued the District for damages on theories of breach of contract, breach of the covenant of good faith and fair dealing, and wrongful termination, and also requested declaratory relief requiring the District to reinstate him to his former position. In a second amended complaint, Lopez alleged that the District "forced [him] out of [its] ranks on a pretext arising from a past consensual relationship with a co-worker" by initiating proceedings to terminate his employment without providing counsel to represent him. Lopez further alleged he had "no choice but to incur significant expense to defend himself or be terminated [and] was forced to resign his position, thereby constructively being forced to end his employment with [the District]."
The trial court sustained without leave to amend the District's demurrers to Lopez's claims for breach of the covenant of good faith and fair dealing and wrongful termination. The court subsequently granted the District's motion for summary judgment on Lopez's claims for damages for breach of contract and for declaratory relief. The trial court entered judgment in favor of the District. Lopez filed a timely notice of appeal.
Lopez does not challenge this ruling on appeal.
II
DISCUSSION
A. Standard of Review
On appeal from a summary judgment in favor of the defendant, "[t]he rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the [plaintiff]. [Citation.] We review the record and the determination of the trial court de novo." (Shin v. Ahn (2007) 42 Cal.4th 482, 499.) With this standard of review in mind, we will address Lopez's contentions that there are factual disputes with respect to his breach of contract and declaratory relief claims which require a trial and that the trial court therefore erred in granting the District's motion for summary judgment.
B. Breach of Contract Claim
Lopez contends the trial court should not have granted the District's motion for summary judgment on his breach of contract claim because he submitted evidence showing the District breached the employment contract by refusing to provide counsel to defend him in the disciplinary proceedings, which forced him to resign due to his inability to afford counsel. To establish his claim for breach of contract, Lopez had to prove the existence of a contract, his performance or excuse for nonperformance, breach by the District and resultant damages. (See, e.g., First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745; McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) The District sought summary judgment on the ground that Lopez could not establish two elements of this claim: (1) the existence of an employment contract and (2) the District's breach of that contract. (See Code Civ. Proc., § 437c, subd. (p)(2) [defendant may seek summary judgment by showing one or more elements of plaintiff's claim cannot be established].) As we shall explain, we reject the first ground but agree with the second, as did the trial court.
1. Lopez Raised a Triable Issue of Fact as to the Existence of a Contract with the District
Lopez raised a triable issue of fact with respect to the existence of an employment contract with the District. In opposition to the District's motion for summary judgment, Lopez submitted a declaration stating that he had been employed by the District since 1987 and had held the position of Director of Financial Aid since 2000. Lopez also submitted several offers of reemployment, which he had accepted over the years. With respect to his most recent term of employment, Lopez submitted a classified employee list containing his name and position, and minutes of a meeting at which the District's governing board approved reemployment of the individuals on the list. The record also contains a Classified Administrator Handbook, which states that classified administrators may be disciplined "for cause." This evidence was sufficient to raise a triable issue of fact regarding the existence of an employment agreement between Lopez and the District. (See Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [longevity of service and personnel practices are factors to be considered in ascertaining existence of employment agreement]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1313 [evidence plaintiff worked for defendant for 21 years and defendant had practice of not terminating employees without cause was sufficient to establish employment agreement].)
2. Lopez Cannot Prove aBreach of Contract by the District
To defeat the District's motion for summary judgment, Lopez had to raise a triable issue of material fact that the District breached the employment agreement. A breach is an unjustified failure or refusal to perform a contractual obligation. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277; Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 514 & fn. 3.) As discussed below, the summary judgment record indicates the District did not breach the contract by refusing to defend Lopez in the disciplinary proceedings.
a. Lopez Resigned
The record shows that Lopez voluntarily resigned, not that the District discharged him in violation of the employment agreement. As part of its motion for summary judgment, the District submitted a letter, signed by both parties' counsel, stating that Lopez would submit an irrevocable letter of resignation stating that he was resigning for personal reasons. The letter also stated that the District would take no further action against Lopez in the disciplinary proceedings. When shown a copy of this letter during his deposition, Lopez testified that he approved it. Since Lopez voluntarily resigned and a voluntary resignation is not a discharge (see, e.g., Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255, 1260; Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 115), there was no discharge that could constitute a breach of the employment agreement.
b. The District Did Not Constructively Discharge Lopez
Despite his letter agreement with the District, Lopez argues his resignation was really a "forced discharge" because the District instituted disciplinary proceedings against him without also providing counsel, whom he could not afford to retain. In making this argument, Lopez relies on Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245, where our Supreme Court held: "Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, 'I quit, ' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation." According to Turner, a constructive discharge by itself does not constitute a breach of contract; such a discharge is actionable only if it violates a term of the employment contract or a public policy embodied in a constitutional or statutory provision. (Id. at pp. 1251-1252.) Here, Lopez appears to argue his resignation is actionable as a constructive discharge because it involved the District's breach of a term of his employment agreement. As best we can tell from his briefs, Lopez contends the District had a "policy" of providing counsel to defend employees in disciplinary proceedings — based on a combination of a written personnel policy concerning suspension, demotion and dismissal of classified employees (Policy No. 5215) and Government Code section 995.4 — that is part of the employment agreement.
The interpretation of the personnel policy and of the statute Lopez relies on presents pure questions of law. (See McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 472 [interpretation of statute is judicial function]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [interpretation of contract is judicial function].) We conclude neither imposes an obligation on the District to provide counsel to employees in disciplinary proceedings.
Nothing in the documents constituting the parties' employment contract required the District to hire counsel to defend Lopez in the disciplinary proceedings. Lopez asserts the District "rendered empty and meaningless" its Policy No. 5215 when it "flatly refused to provide its employee with counsel while hiring a high-powered, 3 time nominated 'Super Lawyer' " for itself. That policy, which is referenced in the termination provisions of the Classified Administrator Handbook, states that in a hearing on recommended disciplinary action, an employee "shall have the right to be represented by counsel." This provision merely permits an employee facing disciplinary action to retain counsel to represent him at the hearing; it does notobligate the District to hire counsel for the employee.
The statute cited by Lopez, Government Code section 995.4, also makes plain that the District had no duty to provide him with counsel in the disciplinary proceedings. Under that statute, "[a] public entity may, but is not required to, provide for the defense of.. . [¶]... [a]n action or proceeding brought by the public entity to remove, suspend or otherwise penalize its own employee...." (Gov. Code, § 995.4, subd. (a), italics added.) Thus, where, as here, "it is the public entity that brings the action or proceeding against the employee, the public entity has no duty to provide the defense to its own action." (City of Huntington Beach v. Petersen Law Firm (2002) 95 Cal.App.4th 562, 566.)
In his pleadings, Lopez alleged Labor Code section 2802 required the District to provide him with a defense in the disciplinary proceedings and to indemnify him for all related expenses. That statute requires an employer to indemnify an employee "for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties." (Lab. Code, § 2802, subd. (a).) But it does not apply because Government Code section 995.4 "must prevail to the extent necessary over Labor Code section 2802 in cases involving public employees." (Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 179.)
Finally, we are not persuaded by Lopez's argument that the District constructively discharged him because "notions of fair play" embodied in the concept of "due process of law" impose "higher standards of conduct" on public entities like the District which require them to provide counsel for employees in disciplinary proceedings. Lopez did not allege a violation of his due process rights in his pleadings and may not avoid summary judgment by raising a due process claim for the first time in opposition to the District's motion. (See Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885 [pleadings define issues relevant to summary judgment motion], revd. on other grounds, (1981) 453 U.S. 490; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 ["summary judgment cannot be denied on a ground not raised by the pleadings"].) Moreover, Lopez has no right to his former position as Director of Financial Aid that is protected by the requirements of due process. (Loehr v. Ventura County Community College Dist. (9th Cir. 1984) 743 F.2d 1310, 1315 ["neither [Ed. Code, § 72411] nor any other section of California law relating to the employment of superintendents provides [plaintiff] a property interest in his position"]; Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 341 ["former community college administrators do not have either a statutory right or property right to their former administrative positions that would entitle them to writ of mandate relief reinstating them to their former positions"].)
C. Declaratory Relief Claim
Lopez also contends his entitlement to declaratory relief precluded entry of summary judgment. In his opening brief, however, Lopez makes no discernible argument as to how the trial court erred in summarily adjudicating this claim against him. In his reply brief, he mentions the claim in one short paragraph, without any citation to the record or to any authority. We therefore may deem abandoned any claim of error regarding the disposition of this claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re Phoenix H. (2009) 47 Cal.4th 835, 845; Estate of Randall (1924) 194 Cal. 725, 728-729.)
We note that the claim for declaratory relief has no merit in any event. The claim is based on the same alleged violation of the employment agreement that forms the basis of Lopez's claim for breach of contract — namely, the District's refusal to provide counsel to defend him in the disciplinary proceedings. Since we have already determined, in part II.B.2., ante, that there was no such violation, there is no basis for declaratory relief. In addition, the specific relief Lopez seeks — reinstatement to his former position with the same salary and benefits — is not available because employment contracts generally may not be specifically enforced. (Civ. Code, § 3390, subd. 2; Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473 [employee not entitled to specific performance of employment contract absent statutory authorization].) " '[N]either an agreement to render personal service, nor an agreement to employ another in personal service, is specifically enforceable; i.e., the employee cannot be forced to serve, and the employer cannot be forced to hire.' " (Barndt v. County of Los Angeles (1989) 211 Cal.App.3d 397, 404.) Lopez was therefore not entitled to declaratory relief, and summary judgment was proper.
D. Evidentiary Issues
Lopez complains that the trial court did not specify the grounds on which it sustained the District's objections to several items of evidence he offered in opposition to the District's summary judgment motion. Again, however, Lopez has not included in his brief any discernible argument to support this point. He did not identify the specific objections he contends were erroneously sustained or explain how any of the excluded material would have raised an issue of material fact sufficient to defeat the District's motion for summary judgment. We may therefore deem these evidentiary issues abandoned. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re Phoenix H., supra, 47 Cal.4th at p. 845; Estate of Randall, supra, 194 Cal. at pp. 728-729.)
Nevertheless, we have reviewed the evidence to which the trial court sustained the District's objections. None of the excluded material supports the existence of an obligation on the part of the District to provide counsel to defend Lopez in the disciplinary proceedings. Rather, the excluded evidence suggests the District might have had improper motives for pursuing disciplinary proceedings against Lopez. Although such evidence might be relevant to statutory employment discrimination claims (see, e.g., Reid v. Google, Inc. (2010) 50 Cal.4th 512, 545 [evidence of discriminatory comments by decision makers and coworkers properly considered on summary judgment in age discrimination case]), "the law generally does not distinguish between good and bad motives for breaching a contract." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516; see also JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 182 ["motive, regardless of how malevolent, remains irrelevant to a breach of contract claim"].) Since this case involves only contract-based claims, the error, if any, in the trial court's sustaining of the District's objections to some of Lopez's evidence was harmless and does not warrant reversal. (Cal. Const., art. VI, § 13; Evid. Code, § 354; Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 221.)
Among the evidence to which the trial court sustained objections by the District were the following: (1) portions of Lopez's declaration describing positive performance reviews, statements by the District's superintendent that he always prevailed in litigation, statements by the District's counsel that the District would not provide counsel for Lopez, and the District's governing board's knowledge that two investigations had cleared Lopez of the sexual harassment charges; (2) portions of a declaration from the District's former Vice-president of Student Affairs describing the District's procedure for employing and reemploying administrators; (3) declarations from three District employees describing statements by the District's superintendent that he intended to "get rid of" certain administrators and always prevailed in litigation; and (4) copies of a printout from the Web site of the law firm that represented the District in the disciplinary proceedings against Lopez, and of reports of the investigations that had cleared Lopez of the sexual harassment charges, which were attached to a declaration of Lopez's counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.