Filed 5/15/18 Barrett v. The Regents of the University of California CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


JULIE BARRETT,
Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.

A150944

(Alameda County
Super. Ct. No. RG16829662)


Plaintiff Julie Barrett appeals in propria persona from a judgment of dismissal entered after the trial court sustained the demurrer of defendant The Regents of the University of California (University) without leave to amend. Barrett, who was enrolled in a self-supporting graduate degree program at the University, alleges the University breached employment contracts purportedly requiring it to remit her full tuition costs as part of her compensation as a graduate student reader. Because Barrett cannot state a cause of action for breach of contract as a matter of law, we shall affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, plaintiff enrolled at the University’s Berkeley Law School in a master of laws postgraduate degree program, otherwise referred to as an LL.M. program. The LL.M. program is self-supporting. “ ‘Self-supporting’ programs are those degrees at the University of California that raise their funding from private tuition rather than from state funding.” Such programs receive no state support but have the potential to generate resources to enhance the University’s academic programs and departments. Self-supporting programs are typically directed at non-traditional student populations, such as full-time employees, mid-career professionals, and international students. In general, tuition for self-supporting programs is substantially higher than tuition charged for state-supported graduate programs.
Plaintiff alleges she planned to pay for her tuition “like other graduate students at UC Berkeley do, by working as an Academic Student Employee (ASE).” The University hired her to work as an Academic Student Employee on two occasions, the first time as a reader in the International and Area Studies program in the Fall semester of 2013, and the second time as reader in the History department in the Spring semester of 2014. A reader is required to attend lectures, assist with course assignments, hold office hours, grade exams, and monitor student attendance and participation, among other duties. The notices offering plaintiff an appointment as a reader provided that she would be paid at the hourly rate of $12.92. In addition, the appointment notices specified that Academic Student Employees receive certain health benefits and are eligible to participate in the University’s partial fee remission program in accordance with the terms of that program. The fee remission program allows an eligible graduate student to offset all or a portion of the tuition charged by the University.
The International and Area Studies program paid a salary to plaintiff and remitted her health insurance and student service fees for work performed during the Fall semester of 2013. However, the program did not cover any part of her LL.M. program tuition. The law school instructed the International and Area Studies program that “students in ‘self-supporting’ programs would not be paid” their tuition fees.
After plaintiff received her appointment as a reader for the History department in the spring semester of 2014, she exchanged emails with a representative of the law school regarding fee remission. She was informed that “LLM students are not eligible for fee remission” and was directed to follow up to see if the History department wanted to provide some other form of remuneration.
Plaintiff attended the first day of class for which she was a reader in the History department but was thereafter terminated. As alleged in the operative complaint, plaintiff’s “retaliatory termination came the day after the union filed a second grievance for nonperformance of the [Academic Student Employee] contract.” Plaintiff was paid for 12 hours of work performed as a reader for the History department but received no fee remission for tuition.
Plaintiff sued the University for breach of contract. In the operative first amended complaint (hereafter, complaint), she alleges in effect that the University breached the terms of her Academic Student Employee contracts by failing to honor its obligation to pay her tuition as part of the fee remission program. She claims that merely designating a degree program as “self-supporting” does not exempt the University from its obligations under the contracts.
The University demurred to the complaint on the ground that plaintiff cannot plead a cause of action for breach of an employment contract as a matter of law against a public entity such as the University. The University also asked the court to take judicial notice of certain policies governing self-supporting graduate degree programs and fee remissions. Among other things, the policy on self-supporting graduate degree programs provides that “University employees enrolled in self-supporting degree programs are not eligible for reduced course tuition and fees.” The University argued that plaintiff’s appointments as a reader allowed fee remission only to the extent an Academic Student Employee is eligible, and students in self-supporting degree programs are ineligible under the terms of those programs.
The trial court granted the University’s request for judicial notice and sustained the demurrer without leave to amend. Following entry of a judgment of dismissal, plaintiff timely appealed.
DISCUSSION
1. Standard of review
We apply two separate standards of review when considering a trial court order sustaining a demurrer without leave to amend. (McClain v. Octagan Plaza (2008) 159 Cal.App.4th 784. 791.) First, we apply de novo review in assessing whether the trial court erred as a matter of law in sustaining the demurrer. (Ibid.) “ ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” ’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Second, if the facts as pleaded do not state a cause of action, we then consider whether the court abused its discretion in denying leave to amend the complaint. (See McClain v. Octagan Plaza, supra, at pp. 791–792.)
“We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.” (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)
2. Breach of contract
In sustaining the University’s demurrer without leave to amend, the trial court reasoned that, as a matter of law, plaintiff cannot state a viable action against the University for breach of an employment contract. We agree with the trial court.
It is well established that public employment in the State of California is held by statute, not by contract. (Miller v. State of California (1977) 18 Cal.3d 808, 813; accord, Shoemaker v. Myers (1990) 52 Cal.3d 1, 23–24.) “A California public employee, whether civil service or not, 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.” (Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 207 (Lachtman).)
“Employees of the University of California are state employees, and therefore, hold their employment by statute, not by contract. [Citation.] The Regents of the University of California have rulemaking and policymaking power, and their policies and procedures have the force and effect of statute.” (Lachtman, supra, 158 Cal.App.4th at p. 207.)
In Lachtman, a graduate student researcher alleged that The Regents of the University of California breached his contract for employment by withdrawing his offer of employment and not paying his tuition after learning he was not a Ph.D. student. (Lachtman, supra, 158 Cal.App.4th at p. 207.) The Court of Appeal held that the graduate student researcher could not state a cause of action for breach of contract as a matter of law. (Ibid.) The court reasoned as follows: “Since Lachtman was an employee of the University of California, his employment was held by statute, not by contract, and his remedies for breach were limited to those afforded by statute and the University’s rules and policy. Lachtman did not bring a statutory cause of action.” (Id. at pp. 207–208.)
Just as in Lachtman, plaintiff was an employee of the University and her employment was governed by statute, not by contract. As a matter of law, she cannot state a cause of action for breach of an employment contract.
Plaintiff has offered no reason for this court to disregard well-settled case law establishing that her breach of contract action is not viable. Indeed, not only did she fail to address the authorities cited above and relied upon by the trial court, but she also neglected to cite any legal authority supporting her position. Her sole claim appears to be that the University cannot avoid its legal obligations under an Academic Student Employee contract simply because it deems the program in which the student is enrolled as self-supporting. Her claim does not address the fundamental principle that she is barred from pursuing a breach of contract action arising out of her public employment. Accordingly, the trial court did not err in sustaining the demurrer without leave to amend as to her sole cause of action for breach of contract.
3. Other theories of liability
We are not limited to plaintiff’s asserted theory of recovery in testing the sufficiency of her complaint. In assessing whether the demurrer was properly sustained, we consider whether she can state a cause of action under any possible legal theory. (Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 631.) As we explain, plaintiff’s factual allegations are inadequate to state a cause of action.
The key factual allegation is that the University refused to pay plaintiff’s tuition in compensation for her work as a reader. In support of her entitlement to a fee remission, plaintiff attached to the complaint the University’s appointment letters for the reader positions. Both appointment letters address fee remission. The appointment letter associated with the reader position in the International and Area Studies program provided that eligible Academic Student Employees who are graduate students may participate in the University’s partial fee remission program “in accordance with the terms of that program.” Similarly, the appointment letter for the History department reader position provided that eligible Academic Student Employees who are graduate students may participate in the partial fee remission program and health insurance programs “in accordance with the policies and provisions established for those programs.” Thus, eligibility for fee remission was subject to the terms and policies established for that program.
The trial court took judicial notice of the University’s policy governing self-supporting degree programs. The policy has the force and effect of statute and is therefore a proper subject of judicial notice. (Evid. Code, § 452, subd. (a); Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160, 165 [University “policies and procedures have the force and effect of statute”]; see People v. Lofchie (2014) 229 Cal.App.4th 240, 260, fn. 9 [granting judicial notice of University policies and guidelines].) The University’s policy states that “employees enrolled in self-supporting degree programs are not eligible for reduced course tuition and fees.” (Italics added.) Thus, by its plain terms, the policy does not allow graduate students in self-supporting degree programs to participate in the fee remission program. Plaintiff’s appointments as a reader were subject to this policy.
Accordingly, plaintiff cannot state a cause of action against the University no matter how she might choose to denominate her claim. As noted, she is barred from pursuing a breach of contract claim. Although plaintiff has not made a statutory claim, or suggested how she might do so, any such claim would likewise fail. The University’s policies, which have the effect of statute, specifically provide that graduate students in self-supporting programs are ineligible for reduced course tuition and fees. There can be no statutory claim when the University’s policies explicitly authorize it to take the action it did in plaintiff’s case.
Plaintiff’s primary grievance appears to be that the University’s policies on self-supporting degree programs essentially allow it to charge private school tuition for public school programs. She complains that the University has aggressively privatized what should be public education. These are policy arguments and not contentions that bear upon whether she has a viable cause of action against the University. We observe that, if graduate students in self-supporting degree programs were allowed to have their tuition entirely paid for by working as an Academic Student Employee, there would cease to be any meaningful distinction between such programs and degree programs supported by state funding. Indeed, if a graduate student in a self-supporting program were eligible for the partial fee remission program, it would almost certainly be the case that state funds would have to be used to subsidize that student’s tuition. But that would defeat the primary purpose of a self-supporting program—because it would no longer be self-supporting but would instead rely upon state funding.
We conclude that plaintiff’s factual allegations do not support a cause of action under any possible theory of liability. Further, because plaintiff has not explained how she could amend her complaint to state a viable cause of action, the trial court did not abuse its discretion in denying further leave to amend.
DISPOSITION
The judgment is affirmed. Respondent shall be entitled to recover its costs on appeal.




_________________________
McGuiness, Acting P.J.*


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.