Pomona College v. Superior Court (45 Cal. App. 4th 1716, 1996)

Opinion

BOREN, P. J.

Petitioner, Pomona College, seeks a writ of mandate directing the superior court to set aside its order overruling Pomona’s demurrer to the complaint of real party Andrew Corin.

Corin filed a complaint for damages, claiming wrongful termination and breach of contract and of implied covenants after Pomona declined to offer him lifetime academic tenure as a college professor. Pomona demurred on the ground that Corin’s exclusive remedy is administrative mandamus review under Code of Civil Procedure section 1094.5. We conclude that mandamus review is the exclusive remedy and that the superior court should have sustained without leave to amend Pomona’s demurrer to Corin’s operative complaint. We therefore grant the writ.

I. Factual and Procedural Background

Pomona employed Corin as an assistant professor in the department of modem languages and literature from March 1987 to July 1994. (His chosen field of scholarship is Serbo-Croatian linguistics—historical as well as synchronic-descriptive—and philological research, with a particular emphasis on Old Church Slavonic. Corin taught courses primarily in Russian language and historical linguistics.)

Upon learning that he would not be offered lifetime tenure, Corin filed suit, claiming that in 1987 Pomona promised him a permanent teaching position as long as his performance was “acceptable” and in accordance with the “guidelines” and “policies” as outlined in Pomona’s faculty handbook (Handbook). He alleges Pomona breached these promises by failing to follow its policies and procedures during the tenure review process. Specifically, Pomona improperly evaluated his teaching, scholarship and service, improperly gave unfair and inappropriate weight to certain evidence presented to Pomona for consideration in the tenure review process, provided improper and inadequate counseling throughout the tenure evaluation process, improperly changed the standards for awarding tenure only as to Corin, without notice or opportunity to be heard by Corin, and failed to adequately define the official role of the linguistics department in the tenure granting process.

Pomona demurred to Corin’s complaint on the ground that his exclusive remedy for the wrongs he alleges is administrative mandamus review under section 1094.5. The superior court overruled the demurrer, stating “[t]he [c]ourt finds that this is a strictly [b]reach of [c]ontract lawsuit.” This petition for writ of mandate followed.

II. Discussion

A. Contentions

Pomona contends that section 1094.5 should be extended to review quasi-judicial decisions of private universities, and that because Corin seeks de novo reevaluation of his lifetime tenure candidacy, administrative mandamus is his exclusive remedy.

Although Corin concedes that section 1094.5 has been applied to various private institutions, he claims the statute should not be applied to private universities. However, assuming we hold that it does, he claims he should not be required to avail himself of the remedy because his is a simple breach of contract claim based on Pomona’s “failure to follow its established policies and procedures” during the tenure review process. Alternatively, Corin argues that he should not be required to seek mandamus because, in making its final administrative decision to deny him tenure, Pomona failed to hold a hearing regarding his grievance and failed to take evidence as required by section 1094.5.

B. Standard of Review

We treat the pleadings as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)

We independently construe statutes as a matter of law according to their purpose and intent. (Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9 [28 Cal.Rptr.2d 133].) If there is no liability as a matter of law, leave to amend should not be granted. We consider evidence outside the pleadings which the trial court considered without objection. (O’Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1 [5 Cal.Rptr.2d 712].)

C. Section 1094.5

Section 1094.5 provides, in pertinent part, that mandamus is available to review "... any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.”

D. Does Section 1094.5 Apply to Private Universities?

We first examine whether section 1094.5 applies to the adjudicatory decisions of a private organization such as Pomona.

It is now authoritatively established that section 1094.5 will apply to nongovernmental administrative agencies. In Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802 [140 Cal.Rptr. 442, 567 P.2d 1162] (Anton), a licensed physician and surgeon brought a mandamus proceeding to compel a private, nonprofit hospital corporation to reappoint him to its medical staff. (Id. at p. 808.) Our Supreme Court declared: “It has been widely assumed that mandate review via section 1094.5 is available only with respect to administrative decisions by governmental agencies. However, we find nothing in the statutory language or supporting legislative materials which would lead us to accept that assumption as warranted. Section 1094.5, . . . is by its terms made applicable to any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer . . . .’ Clearly this language is not limited, ... to governmental as opposed to nongovernmental agencies. Moreover, the last-italicized language appears to have been drawn directly from the terms of section 1085, dealing with so-called ‘traditional mandate.’ It has long been clear, of course, that section 1085 mandate is available not only to compel official acts on the part of governmental agencies but also to compel nongovernmental bodies or officers to perform their legal duties. It would seem to follow, therefore, that section 1094.5, by using substantially identical language in describing the kind of administrative body whose decisions are subject to review under its provisions, was intended to apply to the same spectrum of agencies to which section 1085[] has been held applicable in all cases in which the subject decision is the product of a proceeding in which a hearing and related procedural protections are required by law.” (Id. at pp. 815-817, original italics, fns. omitted.)

Courts following Anton have held that section 1094.5 applies to various private institutions. (Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th 1598, 1608 [33 Cal.Rptr.2d 381] [mandamus available to review private dental plan’s decision regarding fees that could be charged by participating dentists]; Wallin v. Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1056 [203 Cal.Rptr. 375] [private manufacturer’s decision to terminate employee pursuant to grievance procedure reviewable under section 1094.5]; Bray v. International Molders & Allied Workers Union (1984) 155 Cal.App.3d 608, 616 [202 Cal.Rptr. 269] [trade union decision to remove officer pursuant to formal hearing reviewable under section 1094.5].)

(1c) Bolstering our conclusion that section 1094.5 is applicable here, is that the statute has routinely been applied to public university employment decisions. For example, in Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515 [205 Cal.Rptr. 6], the plaintiff, an architect, alleged the Regents of the University of California breached an employment contract with him by laying him off in violation of the Regents’ personnel policies and procedures. (Id. at p. 519.) The Court of Appeal affirmed the trial court’s order sustaining the Regents’ demurrer to the complaint, concluding that the plaintiff’s contract action was barred by his refusal to exhaust the Regents’ internal grievance procedures. (Id. at p. 523.) The court also noted that once the plaintiff exhausted the internal grievance procedures, the proper means for obtaining review of the adequacy of the grievance proceedings was not a civil action, but rather an administrative mandamus proceeding under section 1094.5. (158 Cal.App.3d at p. 522; see also Poschman v. Dumke (1973) 31 Cal.App.3d 932, 938 [107 Cal.Rptr. 596] [mandamus available to review denial of tenure] disapproved on another point in Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204, fn. 3 [149 Cal.Rptr. 1, 583 P.2d 744]; King v. Regents of University of California (1982) 138 Cal.App.3d 812, 814 [189 Cal.Rptr. 189] [assistant professor sought mandate to compel the Regents of the University of California to conduct a full adversary hearing on the decision to deny him tenure].)

Corin suggests that two cases, McGough v. University of San Francisco (1989) 214 Cal.App.3d 1577 [263 Cal.Rptr. 404] and University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028 [272 Cal.Rptr. 264], provide authority for the proposition that private university faculty members may bring civil suits against their employers even where the requirements of section 1094.5 are met.

McGough was a contract action in which the plaintiff sought to enforce the terms of a collective bargaining agreement governing his employment relationship with a private university. The Court of Appeal affirmed summary judgment in favor of the university on the ground that plaintiff’s contract claims were preempted by the National Labor Relations Act. (McGough v. University of San Francisco, supra, 214 Cal.App.3d at p. 1581.) Whether administrative mandamus was available to review the plaintiff’s tenure decision was neither raised by the parties nor addressed by the court.

In University of Southern California, a tenured associate professor brought an action against her private university employer and various university employees for breach of the implied covenant of good faith and fair dealing, employment discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and intentional infliction of emotional distress. The university sought summary adjudication of issues, including whether the plaintiff had introduced sufficient evidence to support her claim under Government Code section 12940 that she had been denied promotion because she was a woman. (University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1031.) The only issue before the Court of Appeal was whether the trial court erred in denying summary adjudication on this issue. Again, neither the parties nor the court addressed the availability of administrative mandamus.

E. Public Policy

Important public policy interests are served by providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions to deny lifetime academic tenure.

“[T] enure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally. [Citation.]” (Zahorik v. Cornell University, supra, 729 F.2d at p. 92.)

“Colleges may fail to promote or to grant tenure for a variety of reasons, such as anticipated decline in enrollment, retrenchment for budgetary reasons, termination of some departments, or determination that there are higher priorities elsewhere. These are decisions which may affect the quality of education but do not necessarily intrude upon the nature of the educational process itself. [