The Regents of the University of California v. Khoury




Filed 4/19/11 The Regents of the University of California v. Khoury CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Plaintiff and Appellant, v. SARKIS JOSEPH KHOURY, Defendant and Respondent.

E050160 (Super.Ct.No. RIC473028) OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed with directions.
Reed Smith, Raymond A. Cardozo, Dennis Peter Maio; Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Charles F. Robinson, Jeffrey A. Blair, Christopher M. Patti, and Michael R. Goldstein for Plaintiff and Appellant.
James S. Link for Defendant and Respondent.
The Regents of the University of California (the Regents) claim that Sarkis Joseph Khoury, a member of the faculty of the University of California, Riverside, violated written university policies by receiving outside income while on sabbatical. In this action, they seek to recover the amount of that income as compensatory damages, along with treble damages and civil penalties under the False Claims Act and punitive damages.
Other written university policies, however, essentially provide that the administration cannot discipline a faculty member for professional misconduct except by bringing him or her up on charges before the privilege and tenure committee (the Committee) of the Academic Senate. In light of these policies, the trial court ruled that the Regents had failed to exhaust their own internal administrative remedies. It therefore granted summary judgment in favor of Khoury and against the Regents.
We will hold that the applicable doctrine was not exhaustion of remedies, but rather primary jurisdiction. Under this doctrine, the trial court was required to stay the case until the Regents obtained a final determination by the Committee that Khoury had, in fact, improperly received outside income; then the Regents could return to court to seek damages.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Allegations of the Complaint.
The Regents filed this action against Khoury in June 2007. Their complaint, as subsequently amended, included the following allegations.
Since 1984, Khoury has been a member of the faculty of the Graduate School of Management at the University of California, Riverside.
The Regents have adopted an â€