Abney v. Bd. of Trustees of The >Cal.> >State> >University>















Filed 5/20/13 Abney v. Bd. of Trustees of The Cal. State University CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

RANDELL ABNEY, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

B234539 (Los Angeles County Super. Ct. No. BC402504)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Gregory W. Alarcon, Judge. Affirmed.

Law Offices
of Hugh Duff Robertson, Hugh Duff Robertson; Law Offices of Allan A. Siegel and
Alan A. Siegel for Plaintiff and Appellant.

Seyfarth
Shaw, Colleen M. Regan and Ann H. Qushair for Defendant and Respondent.



_________________________

INTRODUCTION



Plaintiff Randell Abney appeals from a judgment in favor
of defendant Board of Trustees of the California
State University.href="#_ftn1" name="_ftnref1" title="">^[1] We affirm.



FACTS



Plaintiff
was hired as a peace officer for CSUN’s Department of Public Safety
(Department) in 2001. He was promoted to
Acting Corporal/Detective in 2003. In
September 2005, he was promoted to Sergeant.

Plaintiff’s
employment was governed by a collective
bargaining agreement (CBA) between The California State University and the
State University Police Association.
Pursuant to the CBA, promotions are probationary for one year. At any time during the probationary period,
an employee can be returned to his or her former position.

In May
2006, Robert Rodriguez (Rodriguez), a Department employee, filed a complaint of
sexual harassment and discrimination
against the Department’s Chief of Police, Anne Glavin. He alleged that Chief Glavin was involved in
a sexual relationship with a subordinate, Special Assistant to the Chief
Christina Villalobos (Villalobos), causing her to give preferential treatment
to Villalobos and create a hostile work environment for other employees,
including Rodriguez.

Rodriguez’s
complaint lists a number of witnesses, but plaintiff is not among them. However, at some point Rodriguez told
plaintiff that he had named plaintiff as a witness. Plaintiff thought Rodriguez said he had named
plaintiff as a witness both orally and in writing.

On June 1,
plaintiff received an oral reprimand for insubordinate behavior. Plaintiff and Captain Scott VanScoy had a
heated discussion which was overheard by junior officers. Plaintiff angrily said to Captain VanScoy,
“So what, everything changes because somebody folded?” The captain ordered plaintiff into his
office, and Sergeant Douglas Flores, who heard the exchange, sent the junior
officers to their watch so they would not witness the disagreement between two
senior officers.

Captain
VanScoy confirmed that he had a conversation with plaintiff regarding
scheduling. When the captain reminded
plaintiff that he was on probation, plaintiff got upset and angry. When the conversation got louder, Captain
VanScoy noticed that there were other officers nearby and directed plaintiff to
his office. He told plaintiff not to
disagree with him in front of lower ranking officers, and to consider this an
oral reprimand.

On July 17,
during a scheduled exit interview with Chief Glavin, Officer Leon Ortiz-Gil
alleged misconduct by plaintiff stemming from a July 6 conversation between
plaintiff and Corporal Nathan Jones, in Officer Ortiz-Gil’s presence. Chief Glavin assigned Captain Alfredo
Fernandez to investigate the matter.

According
to Officer Ortiz-Gil, plaintiff and Corporal Jones were discussing dating, and
Corporal Jones said he had dated Villalobos a few times. Plaintiff said that Villalobos and Chief
Glavin were in a relationship, and that Villalobos “went both ways.” Officer Ortiz-Gil also heard plaintiff refer
to Chief Glavin as “the thing” or “it.”
This occurred while they were on duty and plaintiff was acting as
Officer Ortiz-Gil’s field training officer.
Officer Ortiz-Gil said that plaintiff also found fault with field
training policies. Other officers also
heard plaintiff make derogatory comments about Chief Glavin or complaining
about Department policies in front of subordinates.

On July 20,
in response to Rodriguez’s complaint, Chief Glavin’s attorney wrote to
Rodriguez and a union representative handling his complaint. The attorney stated that the complaint “lacks
substance and merit, however it also contains actionable defamation in that it
alleges, without any sort of responsible factual support, an improper
relationship between the Chief of Police and Special Assistant to the Chief
Christina Villalobos. This accusation is
false and factually unsupported. It is
also extremely injurious to the good name and reputation of the Chief of Police
and that of Ms. Villalobos.” The
attorney warned that further statements to this effect would be viewed as
intentional defamation.

On July 21,
Captain Fernandez sent a memo to plaintiff ordering plaintiff to contact him to
schedule an interview regarding an internal affairs investigation. The memo listed the Department Standards of
Conduct he was alleged to have violated and specified: “A complaint was brought forth by Corporal
Nathan Jones alleging that a violation of department policy(s) occurred on or
about July 6, 2006 at
approximately 0730 hours within the lower level of the Oviatt Library. [¶] An
allegation of gross misconduct violating department policy(s) was brought forth
by Sergeant Doug Flores for an incident that occurred June 1, 2006 at approximately 2200 hours within
the supervisor’s office within the Department of Public Safety.”

Captain Fernandez
interviewed plaintiff, who did acknowledge referring to a relationship between
Chief Glavin and Villalobos and referring to Chief Glavin as “it,” but he
denied this occurred in the way the other witnesses said it occurred. He acknowledged making negative references to
Department policies, but only past policies, not current ones.

On August
15, Captain Fernandez sent a report to Chief Glavin containing the results of
his investigation. Captain Fernandez
concluded that plaintiff had made defamatory and unprofessional comments about
Chief Glavin in the presence of subordinate officers, for which the captain
recommended that plaintiff be reduced in rank to police officer. Captain Fernandez also found that plaintiff
made untruthful and misleading statements during the investigation, for which
the captain recommended that plaintiff be terminated.

The
following day, August 16, Chief Glavin sent plaintiff notice of the results of
the completed internal affairs investigation.
In addition, plaintiff was sent a notice of rejection during probation,
stating that he had been rejected during probation from his position as
sergeant. It further stated that
pursuant to the CBA, he was entitled to return to his previous position of
corporal. Effective August 17, plaintiff
was reduced in rank from sergeant to corporal.

On October
23, plaintiff was given a three-day suspension for his misconduct. Plaintiff requested a Skellyhref="#_ftn2" name="_ftnref2"
title="">^[2] hearing.
Based on a number of factors, including plaintiff’s superior record of
service and questions about the evidence against plaintiff, the hearing officer
recommended that plaintiff’s discipline be reduced to a formal Letter of
Counsel. The hearing officer added that,
“[g]iven the disturbing timing of [plaintiff’s] performance evaluations [July
19 and August 15] and the manner of their completion, the matter of his
probationary period as sergeant should also be reconsidered.”

However, on
December 6, a CSUN vice-president notified plaintiff that he had reviewed the
matter, including the hearing officer’s report, and the three-day suspension
would stand. His final decision was as
follows: “I find that there is evidence
that the misconduct supports the proposed sanction and that there is not a
basis for modification of the proposed suspension.”

Plaintiff
appealed his suspension to the State Personnel Board (Board). The matter was heard on February 15, 2007. On April 30, the Board issued its decision
sustaining plaintiff’s suspension.

The Board
disbelieved plaintiff’s claims that his comments regarding Chief Glavin were
flippant rather than derogatory, and that he did not mean to imply Chief Glavin
had a sexual relationship with Villalobos.
However, the Board did not believe that plaintiff was untruthful during
the investigation and dismissed the dishonesty allegation.

The Board
concluded plaintiff’s conduct was harmful to CSUN and the Department. His “rude, disrespectful and defamatory
comments about his Chief served to undermine her authority, and to reduce the
confidence of other employees in the department’s leadership team,”
particularly since the comments were made to subordinate officers and
trainees. In addition, the Board found
“[r]ecurrence of the misconduct is likely.
[Plaintiff] appeared to lack insight regarding the harmful effects of
his derogatory comments, took no responsibility for his misconduct and showed
no remorse for it, and made it clear that he still lacks respect for his
superiors. [¶] Given the significant consequences of
[plaintiff’s] misconduct and the likelihood of its recurrence, a three-day
suspension without pay is appropriate.”



PROCEDURAL BACKGROUND



Plaintiff
and Rodriguez filed this action against CSUN, Chief Glavin and Captain VanScoy
on November 21, 2008. They alleged causes of action for retaliation
and failure to take corrective action/prevent retaliation against all
defendants, and causes of action for breach of the implied covenant of good
faith and for negligent hiring and retention against CSUN only. Plaintiff also alleged a cause of action
against CSUN for violation of the Public Safety Officers Procedural Bill of
Rights Act (POBRA, Gov. Code, § 3300 et seq.). Rodriguez subsequently reached a settlement
and dismissed his action with prejudice.

The
defendants answered the complaint, and the case was set for trial on February 23, 2010. On December
18, 2009, the defendants filed a motion for judgment on the
pleadings as to the cause of action for negligent hiring and retention on the
ground a public entity cannot be held liable for common law negligent hiring
and retention. The trial court denied
the motion as untimely. It also noted
that to the extent plaintiff was alleging a tort claim against CSUN, granting
defendants’ motion “would amount to an improper summary adjudication of issues
without a complete review of the evidence.”

Trial was
continued to December 7, 2010. On November 12, the trial court heard various
motions in limine and held a bifurcated bench trial as to legal issues raised
by the motions. In response to the issue
of whether plaintiff could maintain his causes of action for retaliation and
failure to take corrective action/prevent retaliation against Chief Glavin and
Captain VanScoy, plaintiff stipulated to the dismissal of the two individual
defendants, and they were dismissed from the action. The trial court also found plaintiff could
not maintain a private cause of action for failure to take corrective
action/prevent retaliation under Government Code section 12940, subdivision (k),
and it dismissed that cause of action.

On December
3, CSUN filed an ex parte application for dismissal of plaintiff’s cause of
action for negligent hiring and retention based on a recent appellate court
decision holding such a cause of action could not be maintained unless grounded
in the breach of a statutory duty.href="#_ftn3"
name="_ftnref3" title="">^>[3] The trial court granted the application but
permitted plaintiff to file a written motion to amend the pleadings.

Plaintiff
filed his written motion to amend the pleadings and for reconsideration of the
order dismissing his cause of action for negligent hiring and retention. That motion was denied.

The case
proceeded to a jury trial on December 9 on plaintiff’s three remaining causes
of action, retaliation, breach of the implied covenant of good faith, and
violation of POBRA. On plaintiff’s
retaliation cause of action, the jury found that plaintiff assisted or appeared
to have assisted Rodriguez in filing a sexual harassment complaint against
Chief Glavin, CSUN reduced plaintiff’s rank to corporal, but plaintiff’s
assistance of Rodriguez was not a motivating reason for CSUN’s decision to
reduce plaintiff’s rank.

On
plaintiff’s cause of action for violation of POBRA, the jury found no violation
of plaintiff’s rights under the POBRA.
As to his cause of action for breach of the implied covenant of good
faith, the jury found plaintiff had a contract with CSUN, and he did all he was
required to do under the contract. The
jury found all the conditions occurred for CSUN’s performance under the
contract, but CSUN unfairly interfered with plaintiff’s right to receive the
benefits of the contract, and that interference harmed plaintiff. The jury awarded plaintiff $65,670 for past
lost earnings and benefits. The trial
court signed a judgment in favor of plaintiff in that amount.

CSUN then
filed a motion for partial judgment notwithstanding the verdict, seeking
judgment in its favor on plaintiff’s cause of action for breach of the implied
covenant of good faith based on the lack of evidence of an employment contract
containing an implied covenant of good faith.
Plaintiff filed a motion for new
trial on the ground the verdict was inadequate as a matter of law and
failed to include prejudgment interest.

The trial
court granted CSUN’s motion and denied plaintiff’s motion. It agreed that there was no evidence at trial
that plaintiff was employed by CSUN pursuant to an employment contract, a
prerequisite to finding a breach of the implied covenant of good faith. The court noted the only contract referred to
by witnesses at trial was a collective bargaining agreement, which could not
serve as the basis for the cause of action for various reasons. Additionally, state employees like plaintiff
are employed pursuant to statute, not contract, so plaintiff’s remedies are
statutory, not contractual. Based on the
foregoing, the trial court found the question of damages raised in plaintiff’s
new trial motion irrelevant.

The trial
court therefore entered judgment in favor of the defendants and against plaintiff.



>DISCUSSION



A. Instruction on Violation of POBRA

The trial
court in a civil case has the duty to instruct the jury on “‘all points of law
necessary to a decision.’” (>Christler v. Express Messenger Systems, Inc.
(2009) 171 Cal.App.4th 72, 82.) Toward
that end, “[a] party is entitled upon request to correct, nonargumentative
instructions on every theory of the case advanced by him which is supported by
substantial evidence. The trial court
may not force the litigant to rely on abstract generalities, but must instruct
in specific terms that relate the party’s theory to the particular case. [Citations.]”
(Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 572.)

On appeal,
our review of the propriety of a jury instruction is de novo. (Christler
v. Express Messenger Systems, Inc., supra,
171 Cal.App.4th at p. 82.) We evaluate
the propriety of the instruction in the context of the instructions as a whole,
and we view the evidence to which the instruction applies in the light most
favorable to the appellant. (>Ibid.; Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 754.) We will not reverse the judgment for
instructional error unless the error results in a miscarriage of justice, i.e.,
if there is a reasonable probability of a result more favorable to the
appellant in the absence of the error. (>Soule v. General Motors Corp., >supra, 8 Cal.4th at p. 574.) Stated otherwise, we will reverse “only
‘“[w]here it seems probable that the jury’s verdict may have been based on
the erroneous instruction . . . .”’ [Citations.]”
(Ibid.)

The trial
court instructed the jury on POBRA as follows:
“Public safety officers employed by CSUN, such as Plaintiff Randell
Abney, are considered public safety officers for purposes of the Public Safety
Officers Procedural Bill of Rights Act.
The Legislature has declared that the rights and protections provided to
public safety officers under the Public Safety Officers Procedural Bill of
Rights Act constitute a matter of statewide concern. The Legislature further has declared that
effective law enforcement depends upon the maintenance of stable
employer-employee relations, between public safety employees and their
employers. In order to assure that
stable relations are continued throughout the state and to further assure that
effective services are provided to all people of the state, it is necessary
that the Public Safety Officers Procedural Bill of Rights Act be applicable to
all public safety officers, as defined in this section, wherever situated
within the State of California. [¶] Because Mr. Abney is a public safety officer
within the meaning of the Act, he is entitled to all of the rights and
privileges granted by the Public Safety Officers Procedural Bill of Rights
Act.” (Plaintiff’s Special Instruction
No. 5.)

“Under the
Public Safety Officers Procedural Bill of Rights Act, punitive action means any
action that may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of punishment.” (Plaintiff’s Special Instruction No. 6.)

“A police
officer who is the subject of an internal affairs investigation shall be
informed of the nature of the investigation prior to any interrogation.” (Defendant’s Special Instruction No. 21.) “The Police Officers Bill of Rights does not
apply to any interrogation of a public safety officer in the normal course of
duty or other routine or unplanned contact with a supervisor.” (Defendant’s Special Instruction No. 24.) “A public safety department may be liable for
damages under the Police Officer’s Bill of Rights only if a Plaintiff proves
Defendant acted maliciously and with an intent to injure a police
officer.” (Defendant’s Special
Instruction No. 18.)

The trial
court refused plaintiff’s proposed special instructions on what constitutes a
violation of POBRA and the definition of malice. These instructions provided: “Any of the following constitutes a violation
of the Public Safety Officers Procedural Bill of Rights Act:

“1. Failing to notify the public safety officer
being investigated of the charges being made against him before interrogating
the public safety officer.

“2. When an interrogation is conducted, the
public safety officer has a right to record the interrogation and has a right
to a transcribed copy of any notes, reports or complaints made by any
investigator or any person. The failure
to provide the public safety officer with the opportunity to record the
interrogation, or the failure to provide a transcribed copy of any notes,
reports or complaints made by any investigator or any person is a violation of
the Act.

“3. A temporary or permanent transfer or duty
assignment for the public safety officer if another member of his or her
department would not normally be sent to that location or would not normally be
given that duty assignment under similar circumstances.

“4. Failing to treat the investigation, or any
part thereof including any reports of findings made in the investigation, as a
confidential matter.

“5. “Failing to conduct the interrogations or
investigation in a fair and impartial manner.”
(Plaintiff’s Special Instruction No. 7.)

The trial
court also refused another version of this instruction, which eliminated
numbers 4 and 5 and inserted in their place:
“4. Any punitive action
undertaken by CSUN against Abney who has successfully completed the
probationary period that may be required by CSUN without providing Abney with
an opportunity for administrative appeal.”

In
addition, the trial court refused plaintiff’s instruction, “‘Malice’ means that
Cal State Northridge acted with intent to cause injury.” (Plaintiff’s Special Instruction
No. 16.)

Plaintiff
first contends the instructions given were insufficient to apprise the jury
that the July 21, 2006 memo
ordering him to schedule an interview regarding the internal affairs
investigation violated POBRA, in that it failed to notify him of the potential
discipline he could receive if found to have violated Department policy. Plaintiff claims that Government Code section
3304, subdivisions (d) and (f),href="#_ftn4"
name="_ftnref4" title="">^>[4] required that the memo contain that
information.

Subdivision
(d) of section 3304 sets forth the time limits in which an investigation of
misconduct must be completed before punitive action may be taken by the
employer. It states in paragraph (1): “In the event that the public agency
determines that discipline may be taken, it shall complete its investigation
and notify the public safety officer of its proposed discipline by a Letter of
Intent of Notice of Adverse Action articulating the discipline” within the
specified time period. Subdivision (f)
of section 3304 provides: “If, after
investigation and any predisciplinary response or procedure, the public agency
decides to impose discipline, the public agency shall notify the public safety
officer in writing of its decision to impose
discipline . . . .”

Subdivisions
(d)(1) and (f) of section 3304 require the agency to notify the officer of
discipline to be imposed after completion of the investigation, once the
decision to impose discipline has been made.
Nothing in the language of these two subdivisions suggests that an
officer must be notified of potential discipline at the time the agency orders
the officer to be interviewed in the course of the investigation.

>Mays v. City of >Los Angeles
(2008) 43 Cal.4th 313, on which plaintiff relies, supports this
conclusion. In Mays, which dealt with the nature of the time limits in section
3304, subdivision (d), the court noted that the normal procedure would be an
investigation, a predisciplinary response and/or hearing, and then written
notification of the decision to impose discipline. (Mays,
supra, at p. 322.) “It would be anomalous to require the public
agency to reach a conclusion regarding potential discipline prior to any
predisciplinary proceedings or response on the part of the officer.” (Ibid.)

CSUN was
not required to state potential discipline to be imposed in the July 21, 2006 memo ordering plaintiff
to schedule an interview regarding the internal affairs investigation. Therefore, the trial court did not err in
refusing plaintiff’s instruction that the failure to state potential discipline
was a violation of POBRA.

Plaintiff
next contends that the failure of the July 21 memo to inform him of “exactly
what charges were being made against him” violated section 3303,
subdivision (c), and the jury should have been instructed that such
failure was a violation of POBRA.

Section
3303 sets forth the procedures to be applied “[w]hen any public safety officer
is under investigation and subjected to interrogation by his or her commanding
officer, or any other member of the employing public safety department, that
could lead to punitive action.”
Subdivision (c) provides that “[t]he public safety officer . . .
shall be informed of the nature of the investigation prior to any
interrogation.”

Nothing in
section 3303, subdivision (c), requires the agency to notify the officer of
“exactly what charges were being made against him” while the investigation is
ongoing and prior to interrogation of the officer. It simply requires to the agency to notify the
officer of the “nature of the investigation.”
To paraphrase Mays, “It would
be anomalous to require the public agency to reach a conclusion regarding [what
charges to make against an officer] prior to any predisciplinary proceedings or
response on the part of the officer.” (>Mays v. City of Los Angeles, >supra, 43 Cal.4th at p. 322.) Again, plaintiff’s claim of error in the
instruction given is incorrect.

Plaintiff
also contends the instruction was erroneous because it failed to inform the
jury regarding violation of POBRA by reassignment in contravention of section
3303, subdivision (j). This
provides: “No public safety officer shall
be loaned or temporarily assigned to a location or duty assignment if a sworn
member of his or her department would not normally be sent to that location or
would not normally be given that duty assignment under similar
circumstances.” Plaintiff argues that
the evidence shows that CSUN violated this provision when it placed plaintiff
on night watch for four years even though Department policy was not to keep an
officer on night watch for more than a year.

However, as
set forth above, section 3303 sets forth the procedures to be applied “[w]hen
any public safety officer is under investigation and subjected to interrogation
by his or her commanding officer, or any other member of the employing public
safety department, that could lead to punitive action.” (See Crupi
v. City of Los Angeles (1990) 219 Cal.App.3d 1111, 1118.) Plaintiff cites nothing which suggests that
subdivision (j) applies at all times, not merely while the officer is under
investigation. Since plaintiff was
placed on night watch after the investigation was concluded and after punitive
action—a suspension—was imposed, subdivision (j) was inapplicable. Thus, there was no error in refusing to
include a violation of section 3303, subdivision (j), in the instruction on
violation of POBRA.

Plaintiff
further contends the jury should have been instructed on violation of section
3303, subdivision (g). The basis of his
contention is that Captain VanScoy and Chief Glavin interrogated Officer
Ortiz-Gil as part of their investigation, and “there was no recording or notes
of this interview, depriving Plaintiff of the information sought to be used
against him.”

Section
3303, subdivision (g), provides: “The
complete interrogation of a public safety officer may be recorded. If a tape recording is made of the
interrogation, the public safety officer shall have access to the tape if any
further proceedings are contemplated or prior to any further interrogation at a
subsequent time. The public safety
officer shall be entitled to a transcribed copy of any notes made by a
stenographer or to any reports or complaints made by investigators or other
persons, except those which are deemed by the investigating agency to be
confidential. No notes or reports that
are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall
have the right to bring his or her own recording device and record any and all
aspects of the interrogation.”

Nothing in
subdivision (g) of section 3303 requires the agency to record every interview
conducted during the course of the investigation and provide the officer with a
copy of that recording. >San Diego Police Officers Assn. v. City of
San Diego (2002) 98 Cal.App.4th 779, on which plaintiff relies, holds “that
section 3303, subdivision (g)’s reference to reports and complaints provides
officers with protections similar to those enjoyed by criminal defendants,
including the rights to raw notes and tape-recorded statements of witnesses
preserved by City.” (>San Diego Police Officers Assn., >supra, at p. 785.) It does not hold that the agency must record
witness statements to provide to the officer.
Again, plaintiff has failed to show that the instruction on POBRA
violations was incorrect.

As to
plaintiff’s proposed instruction on malice, the matter was adequately covered
by Defendant’s Special Instruction No. 18, which similarly instructed the jury
that the Department may be liable under POBRA “if a Plaintiff proves Defendant
acted maliciously and with an intent to
injure a police officer.” (Italics
added.)

In sum, the
instructions given properly covered “‘all points of law necessary to a
decision.’” (Christler v. Express Messenger Systems, Inc., supra, 171 Cal.App.4th at p. 82.) Plaintiff’s proposed instructions were
incorrect and/or unsupported by the evidence, and the trial court did not err
in refusing them. (Soule v. General Motors Corp., supra,
8 Cal.4th at p. 572.)



B. Dismissal of Cause of Action for Negligent Hiring and Retention

Since the
proceedings below, the Supreme Court has held that a public entity may be held
liable for negligent hiring and retention of its employees. (See C.A.
v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 865.)
Defendant argues that the trial court’s ruling dismissing this cause of
action was nonetheless correct as a matter of law, in that plaintiff’s cause of
action is barred by the Workers’ Compensation Act. Plaintiff counters that the Workers’
Compensation Act does not apply.
Plaintiff also claims that the trial court abused its discretion in
denying him leave to amend his complaint to state a cause of action for
negligent hiring and retention.

The
dismissal of plaintiff’s cause of action for negligent hiring and retention was
akin to a judgment on the pleadings. A
judgment on the pleadings should be granted only where, under the facts alleged
and those of which judicial notice may be granted, plaintiff has failed to
state a claim for relief. (>Ludgate Ins. Co. v. Lockheed Martin Corp.
(2000) 82 Cal.App.4th 592, 602; Saltarelli
& Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) If judgment on the pleadings is granted,
plaintiff should be granted leave to amend if he can show that he is able to
state a claim for relief. (See >Ludgate Ins. Co., supra, at p. 609.) We review
the judgment on the pleadings de novo and the denial of leave to amend for
abuse of discretion. (>Id. at p. 602.)

The
Workers’ Compensation Act (Lab. Code, § 3200 et seq.) provides that
workers’ compensation benefits are “the sole and exclusive remedy of an
employee against an employer for injury arising out of and in the course of
employment. (Lab. Code, §§ 3600,
3602.)” (Arriaga v. >County of Alameda (1995) 9 Cal.4th 1055,
1058-1059.) Workers’ compensation covers
personal injuries to both the mind and body.
(Pichon v. Pacific Gas &
Electric Co. (1989) 212 Cal.App.3d 488, 494; Howland v. Balma (1983) 143 Cal.App.3d 899, 903 and fn. 6.) This includes emotional distress caused by
on-the-job harassment of an employee or the employee’s termination. (Pichon,
supra, at pp. 494-498.) It does not cover injuries other than
personal injuries. (Howland, supra, at p.
904.)

To
the extent plaintiff alleged in his complaint that CSUN’s negligent hiring and
retention of Chief Glavin caused him emotional distress, his claim is barred by
the Workers’ Compensation Act. He also
alleged, however, that CSUN’s negligence caused him lost earnings and other
employment benefits and damage to his career.
These claims are not barred by the Workers’ Compensation Act.

The
question thus is whether plaintiff can amend his complaint to state a cause of
action for negligent hiring and retention.
In response to defendant’s argument that plaintiff could not have
alleged any facts that would state a cause of action, plaintiff asserts that
this “argument puts the cart before the horse.
There was no way to tell what facts could have been alleged to support
the negligent hiring and retention claim because [plaintiff] was never given
the opportunity to do so. To claim
otherwise, you would have to be clairvoyant.”

Inasmuch
as neither defendant nor this court is clairvoyant, in order to show that the
trial court abused its discretion in denying him leave to amend his complaint,
plaintiff now bears the burden of showing how he can amend his complaint and
how the amended complaint states a cause of action. (Cf. Goodman
v. Kennedy (1976) 18 Cal.3d 335,
349; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
(1998) 68 Cal.App.4th 445, 459-460; J.B.
Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59
Cal.App.4th 6, 18.) This showing may be
made for the first time on appeal. (>Careau & Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)

Plaintiff
fails to meet his burden. He suggests
ways in which the jury might have found negligent hiring and retention of Chief
Glavin and complains that the jury was not allowed to consider certain actions
taken by Captains Fernandez and VanScoy.
He also argues that “[s]imply because the jury found no [POBRA] violations
based on a decided lack of jury instructions does not indicate that a jury
would not have been able to find liability on a Negligent Hiring and Retention
cause of action given the opportunity to do so.” But he fails to set forth what facts he could
allege and how those facts state a cause of action. Since plaintiff has not shown how he can
amend his complaint to state a cause of action, we find no abuse of discretion
in denial of leave to amend. (See >Hendy v. Losse (1991) 54 Cal.3d 723,
742.)



C. Grant of Judgment Notwithstanding the Verdict and Denial of a New Trial

A motion
for a judgment notwithstanding the verdict “‘may properly be granted only if it
appears from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence to support the
verdict. If there is any substantial
evidence, or reasonable inferences to be drawn therefrom, in support of the
verdict, the motion should be denied.”’
(Hauter v. >Zogarts (1975) 14 Cal.3d 104, 110;
accord, Clemmer v. >Hartford (1978) 22 Cal.3d 865,
878.) In ruling on the motion, the trial
court cannot weigh the evidence or assess witness credibility. (Hauter,
supra, at p. 110; accord, >Clemmer, supra, at p. 877.) If there
is conflicting evidence or conflicting reasonable inferences may be drawn
therefrom, a judgment notwithstanding the verdict should not be granted. (Hauter,
supra, at p. 110; accord, >Clemmer, supra, at pp. 877-878.)

On appeal
from a judgment notwithstanding the verdict, this court also views the evidence
and reasonable inferences drawn therefrom in the light most favorable to the
verdict. (Hauter v. Zogarts, >supra, 14 Cal.3d at p. 111; >Jones v. McFarland Co-op Gin, Inc. (1965) 237 Cal.App.2d 94, 97.) The judgment will be affirmed only if there
is no substantial evidence to support the verdict. (Hauter,
supra, at p. 110; >Jones, supra, at p. 97.)

A covenant
of good faith and fair dealing is
implied in every contract. (>Foley v. Interactive Data Corp. (1988)
47 Cal.3d 654, 683-684; Ocean Services
Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1780.) Pursuant to this covenant, the parties agree
not to do anything which injures the right of the other parties to receive the
benefits of the contract. (>Ocean Services Corp., >supra, at p. 1780.)

This
“implied covenant of good faith and fair dealing rests upon the existence of
some specific contractual obligation.” (>Racine & Laramie, Ltd. v. Department of
Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031; accord, >Foley v. Interactive Data Corp., >supra, 47 Cal.3d at pp. 683-684,
689-690.) That is, it “‘protect[s] the
express covenants or promises of the contract,’” rather than general public
policy. (Racine & Laramie, Ltd., supra,
at p. 1031.) “There is no obligation to deal
fairly or in good faith absent an existing contract. [Citations.]”
(Id. at p. 1032.)

Plaintiff
claims he had a contractual relationship with CSUN based on the CBA.href="#_ftn5" name="_ftnref5" title="">^[5] In support of his claim, plaintiff relies on
the principle that “[a]n employee who is hired pursuant to a href="http://www.fearnotlaw.com/">collective bargaining agreement between a
labor union and an employer is deemed to be a third party beneficiary, with a
relationship to the employer the same as if the contract had been made directly
with him. [Citations.]” (Reynolds
Elec. Etc. Co. v. Workmen’s Comp. App. Bd. (1966) 65 Cal.2d 429, 433; >Cione v. Foresters Equity Services, Inc.
(1997) 58 Cal.App.4th 625, 636, fn. 9.)

On
the other hand, “it is well settled in California
that public employment is not held by contract but by statute.” (Miller
v. State of California (1977) 18 Cal.3d 808, 813.) Employment by the State of California,
“including employment by the [State] University . . . , is
held by statute rather than by contract.
[Citation.] ‘The University is a
statewide administrative agency with constitutionally derived powers. [Citations.]
Its employees are public employees.
[Citation.] The University is
administered by the [Board of Trustees].
[Citation.] [Trustees] have
rulemaking and policymaking power in regard to the University; their policies
and procedures have the force and effect of statute. [Citation.]’
[Citation.]” (>Lachtman v. Regents of >University> of California (2007) 158 Cal.App.4th
187, 198.)

Therefore,
“[a] California public employee
. . . cannot state a cause of action for breach of contract or breach
of the implied covenant of good faith and fair dealing arising out of the
public employment relationship.
[Citations.] The public
employee’s remedies are limited to those provided by statute or ordinance. [Citation.]”
(Lachtman v. Regents of University
of California, supra, 158
Cal.App.4th at p. 207; accord, Shoemaker
v. Myers (1990) 52 Cal.3d 1, 23-24; Kim
v. Regents of University of California (2000) 80 Cal.App.4th 160, 164-165.)

Plaintiff
does not address the foregoing authorities in his briefs, instead focusing on
the provisions of the CBA and the Department’s Procedures and Guidelines. In light of the authorities that clearly hold
that a state employee holds his position pursuant to statute, not contract, we
are unconvinced by plaintiff’s arguments.
In the absence of evidence of a contractual relationship between
plaintiff and CSUN, the trial court properly granted defendant’s motion for a judgment
notwithstanding the verdict on plaintiff’s cause of action for breach of the
implied covenant of good faith and fair dealing. (Hauter
v. Zogarts, supra, 14 Cal.3d at p. 110; Lachtman
v. Regents of University of California, supra,
158 Cal.App.4th at p. 207.)

In
light of this conclusion, we need not address plaintiff’s contention that the
trial court erred in denying him a new trial based on inadequate damages.



D. Dismissal of Cause of Action for Failure To Take Corrective
Action/Prevent Retaliation

Section
12940, subdivision (k), part of the Fair Employment and Housing Act, makes it
an unlawful practice for an employer “to fail to take all reasonable steps
necessary to prevent discrimination and harassment.” The trial court dismissed plaintiff’s cause
of action under this subdivision based on its interpretation of a decision of
the Department of Fair Employment and
Housing as barring a private cause of action under the subdivision.

Defendant
concedes the trial court was incorrect, and an individual may bring a cause of
action under subdivision (k) of section 12940.
Inasmuch as the cause of action was dismissed prior to trial, we will
treat the dismissal in the same manner as an order sustaining a demurrer or a
judgment on the pleadings. That is, we
examine de novo the facts alleged and those of which judicial notice may be
granted to determine whether plaintiff has alleged facts which state a claim
for relief. (Ludgate Ins. Co. v. Lockheed Martin Corp., supra, 82 Cal.App.4th at p. 602; Saltarelli & Steponovich v. Douglas, supra, 40 Cal.App.4th at p. 5.)

In
Trujillo v. North County Transit Dist.
(1998) 63 Cal.App.4th 280, the court held that section 12940 “creates a tort
that is made actionable by statute.” (>Trujillo, supra, at p. 286.) Thus,
plaintiff must allege “the usual elements of a tort, enforceable by private
plaintiffs . . . : defendant[’s] legal duty of care toward
plaintiff[], breach of duty (a negligent act or omission), legal causation, and
damages to the plaintiff.
[Citation.]” (>Id. at pp. 286-287.) Trujillo also held specifically that a
factual prerequisite to liability under section 12940 is that discrimination or
harassment actually occurred and caused damage to the plaintiff. (Id.
at p. 289.)

Plaintiff
acknowledges that the jury found that no retaliation occurred. Under >Trujillo,
without retaliation, CSUN could not be liable to failure to prevent
retaliation. Plaintiff’s only response
is that, “given the numerous incorrect rulings that occurred through the case
and trial, on a new trial, a jury could find on the retaliation claim and thus
the failure to prevent claim.”
Plaintiff’s response is inadequate.

First,
there were not “numerous incorrect rulings” in this case, and plaintiff raised
no claims of error with respect to the verdict on his retaliation cause of
action. Second, plaintiff moved for a
new trial based on inadequate damages on his breach of the implied covenant
cause of action. A new trial would not
include his cause of action for retaliation.

Inasmuch
as there is no factual basis for a cause of action for failure to prevent
retaliation, the trial court’s dismissal of that cause of action must be
affirmed. (Ludgate Ins. Co. v. Lockheed Martin Corp., supra, 82 Cal.App.4th at p. 602; Saltarelli & Steponovich v. Douglas, supra, 40 Cal.App.4th at p. 5.)



DISPOSITION



The
judgment is affirmed. Defendant is
awarded costs on appeal.





JACKSON,
J.





We concur:







PERLUSS, P. J.







WOODS, J.