Filed 5/20/13 Abney v. Bd. of Trustees of The Cal. State University CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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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,                                                       B234539

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC402504)
         v.

BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of 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.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.




1      Defendant was erroneously sued as California State University of Northridge. For
ease of reference, we refer to defendant throughout this opinion as CSUN.


                                             2
       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

                                               3
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



                                              4
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 Skelly2 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



2      Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.


                                             5
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

                                              6
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.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



3      The Supreme Court subsequently granted review in that case, C.A. v. William S.
Hart Union High School Dist. (2010) 189 Cal.App.4th 1166, review granted February 23,
2011, S188982, and reversed the appellate court‟s decision, C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 866. C.A. involved a student‟s claim of
negligent hiring and retention, not an employee‟s.


                                              7
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

                                               8
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,

                                               9
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.



                                             10
          “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),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 . . . .”



4         All further section references are to the Government Code, unless otherwise
stated.


                                                11
       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

                                              12
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

                                               13
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.)




                                             14
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.)



                                             15
       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

                                             16
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

                                               17
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.5
In support of his claim, plaintiff relies on the principle that “[a]n employee who is hired
pursuant to a 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,


5     Plaintiff also claims he had a contractual relationship with CSUN based on the
Department‟s Procedures and Guidelines. He cites no authority in support of this claim.

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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



                                             19
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.)




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                                 DISPOSITION


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



                                             JACKSON, J.


We concur:



             PERLUSS, P. J.



             WOODS, J.




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