Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIC401499. Erik Michael Kaiser, Judge.
James S. Link for Plaintiff and Appellant.
Lewis, Brisbois, Bisgaard & Smith, Arthur K. Cunningham and Jeffry A. Miller for Defendants and Respondents.
Donald H. Dye, in pro. per., as Amicus Curiae in support of Appellant.
OPINION
HOLLENHORST, Acting P. J.
Plaintiff Sarkis Joseph Khoury (Khoury) appeals after summary judgment was granted in favor of defendants The Regents of the University of California (Regents) and Dr. David Warren (Warren) in Khoury’s action, which alleged breach of contract, discrimination in violation of Government Code section 12940, subdivision (a), and retaliation under Government Code section 12940, subdivision (h).
I. PROCEDURAL BACKGROUND AND FACTS
Khoury, a finance professor, has been employed at the University of California Riverside (UCR) as a faculty member of the A. Gary Anderson Graduate School of Management (AGSM) since 1984. During his employment, a dispute arose between Khoury and the Regents over circumstances involving Khoury’s sabbatical leave at the University of British Columbia in fall 1988. In connection with the dispute, Khoury was demoted from full professor Step II to associate professor Step I on or about August 1, 1996. Khoury challenged this demotion by filing a petition for writ of mandate in the Superior Court of Riverside County, case No. 288254.
On April 25, 2007, defendants requested this court take judicial notice of six documents: (1) civil case search results of the Riverside Superior Court Web site, wherein Khoury is a party; (2) the docket of actions taken in case No. CIV288254; (3) the petition for writ of mandate in case No. CIV288254; (4) the docket of actions taken in case No. RIC299889; (5) the complaint in case No. RIC299889; and (6) the request for judicial notice of Regents filed on September 29, 2005, in the Riverside Superior Court in this case (RIC401499). Khoury opposed the request on the grounds that the documents are irrelevant. We grant defendants’ request. (Evid. Code, § 452, subd. (d).)
In 1997, Khoury initiated an action in Riverside County against the Regents, case No. RIC299889. Khoury alleged, inter alia, violations of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. Specifically, Khoury claimed that because he acted as a witness to race discrimination, the Regents retaliated against him by investigating his 1988 sabbatical. He further claimed the retaliation was based on his complaint about UCR’s hiring and employment practices for minority faculty workers.
Khoury’s lawsuit was settled on or about January 7, 2002 (2002 Settlement Agreement). Pursuant to the 2002 Settlement Agreement, Khoury agreed to release all claims related in any way to the transactions or occurrences described in the action. However, Khoury did not release any claims for “non-monetary relief or attorneys’ fees, if any, related to his status as a non-member of a department” at AGSM. The 2002 Settlement Agreement included a “nurturing environment” provision which Khoury now contends the Regents have breached. Specifically, the provision states: “The REGENTS encourage the creation of a nurturing environment for [KHOURY] and all other faculty and staff at AGSM. The Dean of AGSM has the discretion to take such action as is appropriate, in his discretion, to foster such an environment; the Dean shall have the same discretion as to the fostering of such an environment as is possessed by the Deans of any other Schools within the UC Riverside campus. The meaning and details of such a nurturing environment have been negotiated between the Dean of AGSM and [KHOURY].”
Neither this provision nor the 2002 Settlement Agreement mentions the statement of policy regarding a nurturing environment for faculty which Khoury contends is incorporated into the 2002 Settlement Agreement.
Approximately six months after signing the 2002 Settlement Agreement, Khoury filed a complaint with the California Department of Fair Employment & Housing. Khoury asserted several complaints. First, he claimed that Warren did not approve his promotion to full professor Step VI despite the recommendation from the majority of voting members. Second, he claimed that although he received the majority votes for promotion to Steps III, IV, V, and VI, he received only a promotion to Step III. Third, he claimed that he was the only faculty member at UCR with an “orphan status.” Finally, he complained that both his salary and research funding were inadequately low and that he was being discriminated against because of his ethnicity, i.e., being Lebanese. On July 30, 2003, the California Department of Fair Employment & Housing issued a “right-to-sue” letter to Khoury.
According to Khoury, “orphan status” means that he was not a member of a department.
On October 16, 2003, Khoury initiated this action. He alleged that defendants engaged in a “discriminatory and abusive course of conduct,” retaliating against him because of his 1998 complaint, the 2002 Settlement Agreement, and his ethnicity. Specifically, Khoury claims that defendants (1) excluded him from departmental membership; (2) falsely accused him of giving a grade to a student on nonacademic grounds; (3) failed to promote him above a Step III; (4) denied him adequate research funding; (5) failed to consider him for administrative positions; (6) created a hostile and discriminatory work environment; and (7) assigned him excessive workloads.
On September 29, 2005, defendants moved for summary judgment. Defendants asserted that Khoury could not establish adverse employment action to support his retaliation claim. Specifically, defendants argued that the 2002 Settlement Agreement barred Khoury’s departmental membership and hostile work environment claims. Defendants further claimed that Khoury’s hostile work environment claims did not rise to the level of a justiciable controversy; he was promoted; he was not disciplined by the outcome of the grade dispute; he received a level of research funding consistent with other similarly situated faculty; and he had the average four-course-per-year workload.
Defendants also asserted Khoury’s discrimination claim should be summarily adjudicated because Khoury could not demonstrate that an adverse employment action was taken against him, and even if he could demonstrate an adverse employment action, the Regents had a legitimate nondiscriminatory reason for their actions. Further, defendants argued that Khoury could not show that the explanation for defendants’ conduct was mere pretext for discrimination. Regarding the breach of contract claim, defendants claimed that the “nurturing environment” provision was too uncertain to be enforced and that Khoury failed to exhaust his administrative remedies.
In opposition, Khoury maintained that triable issues of material fact existed to deny summary judgment. However, Khoury’s primary source for establishing these factual issues was his own declaration. Specifically, in support of his retaliation claim, Khoury maintained that he was promoted only to Step III and he was excluded from departmental membership. Regarding his discrimination claim, Khoury asserted that the Regents excluded another Lebanese applicant from professorship and denied a Lebanese applicant admission as a student. As to his breach of contract claim, Khoury argued that the Regents previously lost their argument that the “nurturing environment” provision was too uncertain to be enforced on demurrer and thus “law of the case” had been established on that issue. Khoury further claimed that he did not have to exhaust administrative remedies because the internal grievance procedure of Regents did not provide redress for the breach of contract claim.
Defendants objected to most of the contents of Khoury’s declaration. In reply to his opposition, defendants offered six points: (1) Khoury failed to dispute the facts set forth by defendants; (2) the 2002 Settlement Agreement bars Khoury from any money damages resulting from matters that were previously litigated; (3) adverse employment actions are only those actions that materially affect the terms, conditions, or privileges of employment; (4) Khoury failed to meet his burden of demonstrating that the explanation for the actions of the Regents was a pretext for illegal discrimination; (5) Khoury has not shown any adverse employment action taken by Warren; and (6) Khoury has not offered any legitimate opposition to the attack on his breach of contract claim.
At the hearing on the motion, the trial court sustained all but four of defendants’ objections to Khoury’s declaration. In its order granting motion for summary judgment, the court stated: “As to the first cause of action, the undisputed facts establish both that there was no prima facie case of retaliation and that, even if such a prima facie case had been shown, there was no admissible evidence that the reasons given by the Regents for their conduct were pretexts for illegal retaliation. Many of the alleged acts of adverse action pre-date the settlement of January 7, 2002[,] and are barred thereby. The plaintiff was receiving an above-scale salary and fails to submit any contrary evidence to raise an issue of material fact that the actions of the Regents as to the salary decision made on his application for Professor Step VI were pretextual.
“As to the second cause of action for discrimination, the same reasoning applies. Plaintiff did not put forward a prima facie case of discrimination and even had he been able to do so, he did not offer admissible evidence to raise an issue of material fact that the non-discriminatory explanations for Regents’ conduct was a pretext for illegal discrimination.
“As to the third cause of action for breach of contract, the undisputed facts, particularly those as set forth in the Declaration of [Lawrence] Zahn and the accompanying exhibits, establish that such a claim is subject to the requirement that plaintiff first exhaust his administrative remedies thereon; he did not so exhaust. Plaintiff does not dispute the existence of Bylaw 335, which is controlling.
Lawrence Zahn is a member of the faculty of the AGSM and was the interim dean in 2005.
“Further, as to the third cause of action for breach of contract, the court finds that the ‘nurturing environment’ provision is not sufficiently certain to give rise to a contractual duty.”
Defendants were thus granted summary judgment, and the trial court awarded attorney fees to the Regents in the amount of $46,706.05. Khoury appeals.
II. STANDARD OF REVIEW
The purpose of summary judgment is “to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citations.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).) Our de novo review is governed by Code of Civil Procedure section 437c, which provides in subdivision (c) that a motion for summary judgment may be granted only when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue. This burden is met by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show by producing evidence of specific facts that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar, supra, at pp. 849-851, 854-855.)
In an employment discrimination case, an employer may move for summary judgment by negating an essential element of the employee’s claim or by showing a legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.) If the employer meets the burden, the employee must produce substantial responsive evidence that the employer’s showing was untrue or pretextual. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036-1037.) An employee’s suspicions of improper motives, based on speculation and conjecture, are not sufficient to create a triable issue of material fact. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.)
III. PRIMA FACIE CASE FOR DISCRIMINATION AND RETALIATION
To prevail on a discrimination claim, Khoury must demonstrate: (1) he is a member of a protected class; (2) he was qualified for the position he sought or was performing competently in his position; (3) he suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111-112.) “To establish a prima facie case of retaliation, [Khoury] must show (1) he . . . engaged in a protected activity; (2) the [Regents] subjected [him] to an adverse employment action; and (3) a causal link between the protected activity and the [Regents’] action. [Citations.] Once [Khoury] establishes a prima facie case, the [Regents are] required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the [Regents] produce[] a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to [Khoury] to prove intentional retaliation. [Citation.]” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
As defendants point out, the common element in each of these claims is the existence of an adverse employment action. An adverse employment action has been defined as follows: “‘Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of [Government Code] section 12940[, subdivision] (a) . . . the phrase “terms, conditions, or privileges” of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.’ [Citation.] The court elaborated that ‘the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers of fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940[, subdivision] (a) and 12940[, subdivision] (h).’ [Citation.]” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.)
In other words, not every change in an employee’s working conditions constitutes an adverse employment action. “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455.) Rather, there must be an action that has a “detrimental and substantial effect.” (Id. at p. 1454.)
According to Khoury, he experienced the following adverse employment actions: (1) exclusion from departmental membership; (2) being falsely accused of assigning a student a grade on nonacademic grounds; (3) being subjected to the alleged bias of Professors Warren, Montgomery, and Mayers against him and other minorities; (4) receiving inadequate research funding; and (5) being promoted to professor Step III instead of Step IV. However, Khoury fails to explain how any of these actions detrimentally and substantially affected his employment. Instead, he asserts that “the unprecedented manner in which he was treated, along with the failure to promote, despite the resolution of the Prior Retaliation Action with the Nurturing Environment Policy, demonstrated the discriminatory animus.” Nonetheless, Khoury acknowledges that he did become a member of a department in August 2004, the grade dispute was ruled on by the AGSM executive committee, which unanimously concluded that the grade must be changed, and Khoury was promoted to professor Step III in 2002 and was given a salary above the scale for his rank. Thus, defendants argue that Khoury cannot explain how these actions detrimentally and substantially affected his employment. We agree.
Professors Montgomery and Mayers are AGSM faculty members who were also members of the AGSM executive committee.
A. Promotion to Step III.
According to the record before this court, Khoury received a promotion (from Step II to Step III); however, the promotion was not as high as he sought (Step VI). Despite Khoury’s claim that he should have been promoted to Step VI, he acknowledges that (1) former Dean Donald H. Dye (Dye) recommended only a promotion to Step IV, and (2) the vote of the Committee on Academic Personnel (CAP) to promote him to Step III was unanimous. It was Warren’s common practice to act according to CAP’s recommendation. Thus, although promotion to Step III might not be to Khoury’s liking, this is insufficient to demonstrate an adverse employment action. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)
B. Inadequate Research Funding, Excessive Workload, Etc.
Khoury states that AGSM was found to have a deficit of approximately $4 million in late 2001, of which $12,000 was attributed to Khoury’s research account. He disagreed with being assessed a $12,000 deficit. He claimed that the “deficit pertained to INVENT related travel, which was not part of [his] research activity and had been approved by the Dean prior to these trips being taken.” Khoury further complains about not being considered for administrative positions, and having an excessive workload. However, he is unable to provide any evidence that these allegedly adverse employment actions had any negative effect on his employment. He has been promoted. He receives a salary that is above scale for his rank. Khoury admitted in his deposition that he did not teach more than the four courses per year that faculty is expected to teach. He acknowledged that he received “summer ninths” in 2002, 2003, and 2004. He also admits that he took a sabbatical during the entire calendar year of 2004.
C. Bias Against Khoury and Other Minorities.
Khoury claims that he, student applicants, and faculty applicants have been discriminated against because of their ethnicity, specifically being Lebanese. However, other than his self-serving declaration, most of which was objected to and found to be inadmissible, he offers no evidence that defendants engaged in a pattern of rejecting Lebanese applicants as students or faculty members.
D. Student Grade Dispute.
One of Khoury’s students complained that he had been assigned a grade based on “non-academic grounds.” Despite Khoury’s claim that he had not corrected the student’s exam, the AGSM executive committee unanimously found that “some violation of academic senate procedures of grade appeals did occur . . . .” The committee ruled that the grade must be changed. Khoury objected. His objection was denied, and Khoury charges that he was not given the benefit of fair procedures. Khoury claims that his grievance took six months beyond the six-week deadline, that one of the committee members never proposed ethnic minorities to the faculty in the department that she headed, and she exhibited a pattern of hostility towards Khoury. In response to his Academic Personnel Manual (APM) 0015 grievance regarding the committee’s finding, the academic senate’s committee on charges ruled against Khoury. It could not find any probable cause to charge any member of the committee with a violation of the faculty code of conduct. Khoury did not pursue this matter further.
Although Khoury may not have liked the result of the grade dispute, he has not explained what detrimental and substantial effect the committee’s decision has had on his employment.
E. Exclusion from Departmental Membership.
Khoury’s exclusion from departmental membership is central to his claims of employment discrimination. However, defendants contend the 2002 Settlement Agreement permits Khoury to recover only nonmonetary relief or attorney fees relating to this exclusion. Because Khoury became a member of the department of management, economic approach in 2004, defendants contend there is no nonmonetary relief available to him. We agree.
As discussed above, defendants demonstrated that Khoury failed to provide any evidence disputing their claim that he suffered no adverse change in the terms and conditions of his employment. Specifically, Khoury never experienced a loss or reduction in his classification, position, salary, benefits and work hours, and his employment was not terminated. Rather, he merely listed various minor or relatively trivial adverse actions or conduct by defendants or Khoury’s colleagues that, from an objective perspective, can only be characterized as doing no more than angering or upsetting him. These actions did not materially affect the terms, conditions, or privileges of his employment. Accordingly, Khoury’s claim of retaliation, like the other causes of action arising under FEHA, cannot be sustained.
Defendants point out that in response to their explanation for their conduct, “Khoury plainly made no effort to establish pretext; his opposition to the Regents’ summary judgment motion never even mentions the word pretext. . . . Instead, . . . [he] submitted an inadmissible and lengthy declaration full of uncorroborated opinions and beliefs that fail to create a triable issue of material fact to avoid summary judgment.” We agree.
IV. DECLARATION OF KHOURY
Khoury primarily relied upon his own declaration to refute defendants’ motion for summary judgment. However, defendants objected to Khoury’s declaration on various grounds, and the trial court sustained the majority of such objections. Of Khoury’s 35-paragraph declaration, all but the first five paragraphs were objected to. Of the 30 paragraphs objected to, the trial court sustained the objections to all but four, namely paragraphs 10, 19, 24 and 25. On appeal, Khoury challenges the trial court’s ruling.
A. Presettlement Facts and Evidence/Relevance.
Khoury complains that the trial court improperly sustained objections to statements involving matters that occurred on or before the 2002 Settlement Agreement. He argues, “The relevance of the past conduct not only explains the meaning of the ‘nurturing environment’ provision but also provides proof for the discrimination and retaliation alleged in the present action.” We disagree.
Relevant evidence relates to some matter at issue in the case that has a logical tendency to prove the matter at issue. (Evid. Code, § 210; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2007) ¶ 8:103, p. 8B-1.) Here, any events that occurred prior to the 2002 Settlement Agreement and which resulted in the creation of the 2002 Settlement Agreement are irrelevant. The 2002 Settlement Agreement speaks for itself. As for Khoury’s delayed membership in a department, the fact remains that he did become a member in 2004. Thus, Khoury’s “orphan status” and the problems that he alleges resulted from it are irrelevant.
Khoury cites Professional Fire Fighters, Inc. v. Los Angeles (1963) 60 Cal.2d 276, 285-286, for the proposition that past discriminatory conduct is relevant and admissible. In that case, which involved injunctive relief, there were actual past acts of discrimination. The plaintiffs showed that their superiors discriminated against them for being members of a particular labor union. For example, if plaintiffs failed to join a different union, they were transferred to a less desirable location. Also, plaintiffs’ membership in their current union would militate against promotion in the department. (Id. at p. 286.)
Here, Khoury merely assumes that his past exclusion from departmental membership is retaliatory and discriminatory. However, there is no evidence to support this assumption. As previously noted, Khoury was admitted into the department, he received a salary that was above scale for his rank, and he took a full year’s sabbatical in the calendar year of 2004. Accordingly, we cannot say the trial court abused its discretion in sustaining defendants’ objection to events occurring prior to Khoury being admitted as a member of a department.
Likewise, we agree with defendants and find that Khoury’s allegations regarding a Lebanese student initially being denied admission and a Lebanese professor being passed over for a position at the university are irrelevant to his case. Neither of these allegations proves or disproves Khoury’s claim that he received less research funding, or that he was not promoted to the level which he wanted, because of his ethnicity.
B. Khoury’s Improper Opinion/Lack of Foundation.
Khoury contends that the trial court erred in finding the following to be improper opinion or lacking in foundation: (1) his orphan status denied him the right to shared governance under The Call and APM; (2) the ad hoc process was not approved by UCR or AGSM faculty and denied him the use of a faculty advocate; (3) APM 005 requires academic freedom; (4) no provision in The Call allows for redress for breach of contract; (5) APM 210 precludes harassment and discrimination, which defendants violated by continuing to exclude Khoury from participation in governance; (6) defendants’ actions resulted in a permanent reduction of salary and benefits levels; (7) grade controversy shows discrimination and harassment because of Khoury’s ethnicity; (8) a Lebanese student was admitted only after Khoury intervened; (9) Dr. Montgomery is biased against Khoury and minorities; (10) Dr. Mayers hired a less qualified applicant over a more qualified Lebanese applicant and supported Khoury’s orphan status; (11) Khoury was never interviewed for or offered an administrative position, which undermined his progress and economic position; and (12) Khoury proposed the INVENT program, which was shelved strictly for prejudicial reasons.
Defendants note that “The Call” is a document governing academic personnel review procedures. A copy of “The Call” may be found at [as of Jan. 18, 2008].
According to Warren, it was decided not to move forward with the INVENT program because it would not be self-supporting, per the Regents’ policy.
Khoury argues that the above statements are admissible as proper lay opinion or simply as statements of fact. In support of his argument, he cites Kruezberger v. Wingfield (1892) 96 Cal. 251 (Kruezberger), where our state’s highest court ruled that a party’s testimony regarding the meaning of an agreement and performance under the agreement is admissible. (Id. at p. 256.) Khoury contends his declaration compares to the testimony in Kruezberger because he is stating his understanding of the 2002 Settlement Agreement, the UCR policies and procedures that govern his employment, and his employment obligations as well.
While a lay witness can provide opinion testimony that is rationally based upon his or her perception (Evid. Code, § 800) he or she may not speculate about another person’s state of mind without proper evidence of that person’s state of mind. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 582.) A declaration that contains statements about someone else’s intent is a mere opinion or conclusion and does not create a triable issue as to such person’s intent to avoid summary judgment. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1240-1241.) Thus, Khoury’s belief and contentions regarding the consequences of others’ actions, others’ intent, or the basis for others’ decisions are not things he personally observed.
C. Khoury’s Lack of Personal Knowledge.
Khoury faults the trial court for sustaining numerous objections to his declaration on the grounds of a lack of personal knowledge. Specifically, Khoury argues that he personally has knowledge of the following: (1) his record as a professor at UCR; (2) his prior action, which resulted in the 2002 Settlement Agreement; (3) his being informed that he was the only faculty saddled with orphan status; (4) his inability to vote because of his “orphan status”; (5) faculty recommendations carry great weight on promotion decisions; (6) his understanding of the APM and academic senate bylaws; (7) his opinion that Warren acted improperly regarding the vote for Khoury’s requested promotion; (8) his belief that he was denied department chair or area coordinator because of his “orphan status”; (9) the committee members who reviewed the student’s grade dispute were all “[W]hite Caucasians”; (10) his receipt of a lower research allocation than any other full professor in the finance department in 2002 and 2003; and (11) Dr. Montgomery’s bias towards him.
In response, defendants argue that that Khoury has no personal knowledge of (1) what Warren relied on in making decisions; (2) Khoury’s promotion process never being approved by UCR or AGSM faculty; (3) a change in the vote of the external committee; (4) the grade dispute being handled the way it was due to defendants’ discrimination; (5) the cause of Khoury’s deficit; (6) who has authority to set aside deficits; (7) Khoury’s course load exceeded that of others; (8) Dr. Montgomery’s pay increase; (9) whether the procedures were incorrectly followed regarding the grade dispute; (10) whether Dr. Mayers was responsible for procedural violations regarding the grade dispute; (11) publications of other faculties; and (12) who was responsible for Professor Hanson’s promotion. Instead, defendants argue that Khoury is merely asserting his personal knowledge. We agree. Khoury must show his personal knowledge by competent evidence. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶¶ 8:211-8:213, p. 8C-4; Evid. Code, § 702.) Having failed to provide the competent evidence, the trial court correctly sustained defendants’ objections.
D. Hearsay.
Finally, the trial court also sustained defendants’ hearsay objections to Khoury’s declaration. Hearsay evidence is inadmissible except as otherwise provided by law. (Evid. Code, § 1200, subds. (a) & (b).) Khoury attached exhibit G to his declaration. The exhibit, entitled “Procedure for Promotion, Appraisal, and Career Reviews in AGSM,” was prepared by Dr. Dodin, who recounts his recollection of the contents of The Call. Dr. Dodin’s statements clearly amount to hearsay.
For the above reasons, we find no abuse of discretion in the trial court’s rulings regarding defendants’ objections to Khoury’s declaration.
V. BREACH OF CONTRACT
Regarding Khoury’s claim for breach of the “Nurturing Environment Policy” that was incorporated in the 2002 Settlement Agreement, the trial court found that (1) Khoury had failed to exhaust his administrative remedies, and (2) the “nurturing environment clause is not a term subject to reasonable certainty or sufficiently definite to create a contractual duty.” Khoury contends the scope of the grievance process by its own terms does not apply to his breach of the 2002 Settlement Agreement claim, and thus he was not required to exhaust the administrative remedies. Furthermore, he challenges the trial court’s finding that the nurturing environment clause is not sufficiently certain.
Attached to Dye’s July 17, 2001, letter was the “Statement of Policy Regarding a Nurturing Environment for Faculty,” which provides:
In response to Khoury, defendants claim that the Regents are an arm of the State of California with nearly exclusive power to control and operate its universities. Defendants argue that their policies of internal regulation are equivalent to that of state statutory authority such that by having provided an internal grievance mechanism, Khoury must exhaust the internal remedies before seeking a private civil action. We, like the trial court, agree with defendants. Moreover, defendants contend the nurturing policy is uncertain.
Separately, Dye filed an amicus curiae brief in which he contends that (1) the trial court erred in its interpretation of the policy; (2) the 2002 Settlement Agreement is destroyed if the policy is not given effect; and (3) the policy is expressly included in the 2002 Settlement Agreement.
In response to Dye, defendants argue that (1) he incorrectly confuses contract interpretation with contract formation; (2) the 2002 Settlement Agreement is not destroyed because of the severability clause contained therein; and (3) the 2002 Settlement Agreement fails to mention the policy.
A. Exhaustion of Administrative Remedies.
We begin by addressing the issue of exhaustion of administrative remedies. “‘The California constitution grants broad autonomy to the University, subject to limited legislative interference.’ [Citation.] ‘“Under article IX, section 9, of the California Constitution, the University constitutes ‘a public trust’ possessing ‘full powers of organization and government’ and ‘all the powers necessary or convenient for the effective administration of its trust. . . .’ ‘The Regents have the general rule-making or policy-making power in regard to the University [citation], and are (with exceptions not material here) fully empowered with respect to the organization and government of the University. . . .’ [Citation.] ‘As a consequence, policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes . . . .’”’ [Citation.]” (Regents of University of California v. Benford (2005) 128 Cal.App.4th 867, 872.)
As our Supreme Court has noted, “the rule of exhaustion of administrative remedies is well established in California jurisprudence, and should apply to [a University employee’s] action. ‘In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ [Citation.] The rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts.’ [Citation.] We have emphasized that ‘Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” [Citation].’ [Citation.]” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)
Here, defendants point out that there was an administrative remedy for Khoury’s alleged claim of breach of contract. Lawrence Zahn, interim dean of AGSM in September 2005, noted, “The Academic Personnel Manual contains the faculty code of conduct, found at APM 015. . . . Violations of the code of conduct are addressable under the grievance procedures of the Academic Senate under Bylaw 335.” Zahn attached a copy of Bylaw 335 to his declaration. Subdivision (A)(1) provides: “Any member of the Academic Senate may grieve to the Divisional Privilege and Tenure Committee (hereafter the Committee) that the member’s rights or privileges have been violated.” Relying on Bylaw 335, defendants argued that Khoury’s action asserts a violation of his rights and privileges, namely, exclusion from departmental membership, false accusation of assigning a grade to a student on nonacademic grounds, promotion to Step III only, inadequate research funding, excessive workload, and denial of consideration for administrative positions. As Khoury admitted in his deposition, the nurturing environment policy did not create new rights, it merely “clarif[ied] or ma[de] specific reference to rights that already existed in [his] favor under the APM.” Viewing Khoury’s breach of the 2002 Settlement Agreement as nothing more than an alleged violation of his rights and privileges, Bylaw 335(A)(1) requires him to exhaust his administrative remedies.
Nonetheless, Khoury contends there are exceptions to the exhaustion rule. He cites Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520, where the court stated, “‘the doctrine of exhaustion of administrative remedies has not hardened into inflexible dogma. [Citation.] It contains its own exceptions, as when the subject of the controversy lies outside the administrative agency’s jurisdiction [citation]. . . .’” However, the plaintiff in Edgren was still required to exhaust administrative remedies (id. at pp. 522-523), and so too should Khoury. The fact that Khoury has asserted FEHA claims in addition to his contract claim does not excuse him from failing to do so. As defendants note, the purpose of the exhaustion rule is to (1) mitigate damages, (2) recognize the quasi-judicial tribunal’s expertise, and (3) promote judicial economy by bringing forth the relevant evidence and creating a record for judicial review. (Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 322.) Thus, Khoury needs to provide defendants with an opportunity to mitigate damages, use its expertise, and make an adequate record, by handling Khoury’s complaints when they first arise.
B. The Nurturing Environment Policy Is Uncertain.
Having found that Khoury failed to exhaust his administrative remedies, we need not consider whether the nurturing environment policy is uncertain. However, we will make these observations. The trial court found that “the ‘nurturing environment’ provision is not sufficiently certain to give rise to a contractual duty.” Both Khoury and Dye challenge this finding. Khoury contends that the policy is certain because the 2002 Settlement Agreement incorporates the statement of policy attached to Dye’s July 17, 2001, letter. However, the only reference to a “nurturing environment” is found in paragraph 8 on page 4 of the 2002 Settlement Agreement. It provides: “Environment. The REGENTS encourage the creation of a nurturing environment for [KHOURY] and all other faculty and staff at AGSM. The Dean of AGSM has the discretion to take such action as is appropriate, in his discretion, to foster such an environment; the Dean shall have the same discretion as to the fostering of such an environment as is possessed by the Deans of any other Schools within the UC Riverside campus. The meaning and details of such a nurturing environment have been negotiated between the Dean of AGSM and [KHOURY].” While Dye’s July 17, 2001, letter was attached as an exhibit to the 2002 Settlement Agreement, it was in reference to Khoury’s receipt of summer support. According to defendants, there is “no clear and unequivocal reference to the Statement of Policy in the 2002 Settlement Agreement.”
On February 20, 2007, Khoury filed a motion for this court to take additional post-appeal evidence. Specifically, Khoury asks this court to consider a two-page memorandum from Interim Dean Anil B. Deolalikar to Khoury dated January 30, 2007. In that memorandum, the interim dean notifies Khoury that the payment of his summer ninths have been discontinued due to his failure to meet all of the conditions required of him pursuant to Dye’s letter dated July 17, 2001, including the requirement that he “‘[s]upport the creation and maintenance of a nurturing environment as discussed in a separate document.’” On March 7, 2007, defendants filed their opposition to the motion on the grounds that such motions are rarely granted, and even if we were to grant the motion, there is another independent basis other than the uncertainty of the “nurturing environment” provision upon which summary judgment may be affirmed, i.e., failure to exhaust administrative remedies. Having considered the arguments for and against the motion, we deny Khoury’s motion.
The language in the 2002 Settlement Agreement states that the Regents are to “encourage the creation of a nurturing environment.” However, there are no specifics of what the Regents are to do, nor does the provision state the Regents shall do anything. Defendants ask, “[W]hat does ‘nurturing environment’ mean? What does ‘take such action as is appropriate’ mean? What does ‘has the same discretion . . . as is possessed by the Deans of other Schools’ mean? Even if the above terms are properly defined, how can this court fashion a remedy?” In his deposition, Khoury stated the statement of policy was to “clarif[y] or mak[e] specific reference to rights that already existed in [his] favor under the APM.” As such, it appears that Khoury should turn to the APM and seek redress via his administrative remedies. This brings us back to our resolution of the first issue, that Khoury’s breach of contract claim fails as a result of his failure to exhaust his administrative remedies.
VI. LIABILITY OF WARREN
Having failed to establish any adverse employment action, Khoury’s claims against Warren necessarily fail.
VII. ATTORNEY FEES
Having won their motion for summary judgment, defendants moved to recover their attorney fees. Khoury opposed the motion; however, on August 3, 2006, the trial court granted the motion, awarding an amount of $46,706.50, and finding that “the action was frivolous, unreasonable and without foundation within the meaning of cases such as Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412 [(Christianburg)].”
On appeal, Khoury challenges the award of attorney fees on the grounds that the trial court failed to make the necessary findings that the action was groundless or without foundation. Defendants disagree. They argue that it was not necessary for the trial court to specify why it found the action to be frivolous. Rather, the court only needed to find that the action was frivolous. Thus, the issue before this court is whether findings of the trial court are sufficient to sustain the attorney fees award.
In awarding attorney fees to the prevailing defendant in a FEHA action, the applicable standard was set forth in federal civil rights legislation as articulated in Christianburg, supra, 434 U.S. 412. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (Cummings).) Attorney fees should be awarded to a prevailing defendant “‘“only where the action brought is found to be unreasonable, frivolous, meritless or vexatious,”’” and “‘the term “meritless” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . .’” (Ibid.) Our colleagues in the Second District have held that the trial court must expressly state its findings that reflect the Christianburg/Cummings standard. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 867-868 (Rosenman).)
“In imposing ‘a non-waivable requirement that trial courts make written findings reflecting the Christianburg/Cummings standard in every case where they award attorney fees in favor of defendants in FEHA actions,’ the court accepted the argument that ‘such a requirement serves the important public purpose of ensuring fees are awarded only in the rare cases envisioned by the Supreme Court in Christianburg, so as to avoid discouraging litigants from bringing meritorious but not airtight claims to court. . . . [¶] . . . [R]equiring such findings will go a long way towards limiting defendants’ receipt of attorney fee awards to the extreme cases envisioned by Cummings and Christianburg.’ [Citation.]” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831, fn. omitted.)
Here, the trial court merely stated that it found “the action was frivolous, unreasonable and without foundation within the meaning of cases such as [Christianburg].” It did not make written findings. As the Rosenman court observed, “If we permit such awards to stand without written findings, we fear the chilling effect . . . whereby employment lawyers must warn clients with valid claims of discrimination they may be subject to an award of attorney fees against them, in an amount far in excess of their life savings. Many such clients may opt to forgo the rights and remedies provided by FEHA, rather than risk an attorney fees award which may well destroy their financial well-being. Such a result would be directly contrary to the public policies FEHA was designed to vindicate.” (Rosenman, supra, 91 Cal.App.4th at p. 868.) Accordingly, because the required findings were not made by the trial court, the matter of attorney fees must be reversed and remanded for such findings, unless this court determines that no such findings reasonably could be made from the record. (Ibid.) We cannot say that. Thus, we will reverse and remand.
VIII. DISPOSITION
The order awarding to defendants’ their attorney fees is reversed. The matter is remanded for further proceedings on the issue of attorney fees. On remand, if the trial court affirms its prior order awarding attorney fees, it must make written findings reflecting the Christianburg/Cummings standard. In all other respects, the judgment is affirmed. Costs to defendants.
We concur: RICHLI, J., GAUT, J.
“In order to create, maintain and encourage the existence of a nurturing environment for the faculty of AGSM, the following principles should govern: [¶] 1. AGSM will follow the dictates of governing rules and regulations, including the Academic Personnel Manual and the Call, with strict adherence to the following: [¶] ▪ Fairness for everyone and consistency in the application of standards; [¶] ▪ Academic freedom without retribution; [¶] ▪ Freedom of opportunity to participate in the system of shared governance; [¶] ▪ Strict observance of faculty rights and responsibilities; [¶] ▪ Strict and careful handling of personnel files in terms of use and access; [¶] ▪ Strict application of the principle of nondiscrimination. [¶] 2. Teaching loads, when feasible, will be consistent with the average load of the area of discipline within AGSM, in terms of number of courses and preparations and students taught. [¶] 3. Every effort will be made to maintain an environment free of retribution, recrimination, or harassment. [¶] d4. An appropriate set of incentives to encourage faculty to achieve AGSM objectives and to recognize faculty contributions to meeting those objectives will be developed. [¶] 5. Faculty members, who want to serve, will be provided the opportunity to serve on AGSM committees.”